                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 06-4007
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the District
                                       * of Nebraska.
Russell Hoffmann,                      *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: September 25, 2007
                                Filed: February 25, 2009
                                 ___________

Before BYE, BENTON, and SHEPHERD, Circuit Judges.
                            ___________

BENTON, Circuit Judge.

      A jury convicted Russell D. Hoffmann of one count of giving a gratuity, 18
U.S.C. § 201(c)(1)(A). Hoffmann appeals. Jurisdiction being proper under 28 U.S.C.
§ 1291, this court affirms.

                                        I.

       Hoffmann was a vice president at Surdex Corporation, a company providing
aerial photography and mapping services. He was the project manager for a two-year
contract (the “1996 contract”) awarded to Surdex by the Omaha Division of the
United States Army Corps of Engineers in May 1996. William F. Schwening was the
Corps’ contact person on the contract.

       Under the Federal Acquisitions Regulations (FAR), contracting agencies must
prepare a performance evaluation report (PER) for each contract over $100,000. See
FAR 42.1502. PERs completed by the Corps are known as ACASS ratings.1 Within
60 days after the completion of the contract, the Corps must file an ACASS rating
prepared by the “engineers, architects and other technical personnel who reviewed and
accepted the [contractor’s] work.” Army Corps’ Engineer Pamphlet EP 715-1-7 at
6.4(c)(1)-(2); see FAR 36.604(a). Agencies consider a contractor’s prior ACASS
rating before filling an open contract.

      Michael Byrne, the acting chief of surveys and mapping for the Omaha Corps,
completed the ACASS rating for Surdex’s 1996 contract. Surdex received an
“outstanding” rating, the highest possible.

      In April 1999, the Corps awarded Surdex a follow-on contract (the “1999
contract”). During this contract, the Corps issued, and Surdex performed, over 30 task
orders. The contract ended in April 2002. Schwening was responsible to prepare the
ACASS rating.

       Over the course of the 1996 and 1999 contracts, Hoffmann and Schwening had
frequent professional and social contact. The federal indictment alleged that
Hoffmann gave Schwening four gifts because of official acts Schwening performed
or would perform: (1) a golf outing on July 1, 2003; (2) a golf outing on July 2, 2003;
(3) a Dell Inspiron 5100 computer in November 2003; and (4) a Titleist driver and a




      1
       ACASS is the abbreviation for the system in which architect-engineer contract
reports are stored: Architect-Engineer Contract Administration Support Systems.

                                         -2-
 three-wood (golf clubs) in October 2003.2 Schwening and Hoffmann pled not guilty
to all charges.

      At trial, the government presented a series of emails between Hoffmann and
Schwening discussing the ACASS rating for the 1999 contract, and the golf clubs
given to Schwening.

      On January 28, 2003, Hoffmann emailed Schwening seeking an “ACASS
Rating” for the 1999 contract:

      Bill,

      Now that our contract is over, can we get another ACASS rating from
      you? I downloaded the ACASS for windows program to peruse but
      couldn’t get anywhere since I did not have authorized access. . . . The
      comments are exactly the same as last time so please read them and
      decide if you want to change anything. . . . I guess outstanding is still the
      highest they will allow you to go and that is fine with me. I don’t want
      to influence you whatsoever in your evaluation (you know I would
      NEVER do that) but if you could do this sometime soon and let me know
      what you are rating us I would certainly appreciate it. if there is
      anything I can do from my end to help please let me know. . . .

      I owe you one (or more).

      Russ

The email attached a duplicate of Byrne’s comments on the 1996 contract.




      2
      The parties stipulated that the value of the gifts was between $5,000 and
$10,000. Hoffmann testified that he used a corporate credit cart or sought
reimbursement for all gifts purchased for Schwening.

                                          -3-
      On July 31, 2003, Hoffmann again emailed Schwening regarding an “ACASS
Rating”:

      Bill,

      The second word file are the remarks “you” made for our first ‘96
      contract. You may want to revise these comments or if you want, we can
      take a stab at it . . . . Then you can “edit” them before submitting into the
      ACASS system. The link below takes you to the Portland ACASS home
      page site.

      ....

      Let me know what I can do.

      Russ

The email attached a copy of Byrne’s comments on the 1996 contract and a list of the
delivery orders from the 1999 contract.

      On August 14, 2003, Hoffmann again emailed Schwening regarding “ACASS”:

      Bill,

      Check out these remarks and if all is well please incorporate into the tail
      end of the ACASS report you submit.

      If you have any questions or comments let me know.

      Russ

      P.S. Call me about questions on long range EDM equipment

The email attachment contained comments authored by Surdex to be incorporated into
the ACASS report.


                                          -4-
       On September 22, 2003, Hoffmann emailed Schwening including small talk
about golf and an individual who formerly commanded the Omaha Corps. The email
also inquired about the potential use of Surdex photography on a Fort Carson project.
 Schwening replied with this email:

      yea I know the guy pretty well and we played together out here the last
      year of his command Mike Muleners that is He’s like a two handicap
      or scrath [sic]. .

      no clubs yet??

      the photography could be used for update as well as orthos. .

The next day, Hoffmann ordered the clubs. Over the following weeks, Schwening
sent several emails to Hoffmann inquiring about the status of the clubs. In late
October, the clubs were delivered. On October 31, 2003, Schwening sent an email to
Hoffmann stating, “hey buddy do you need ANYTHING. . I hit the titelist last night
straight outta the box awesome.”

      By November 10, 2004, Schwening still had not completed the ACASS rating
for Surdex. Hoffmann then sent this email:

      Subject: FW: ACASS

      Bill,

      With the St Louis Corps announcement coming out it sure would be nice
      to have our last contact’s [sic] evaluation in the ACASS system. Oh, by
      the way, how is your golf game since you got those new woods?

      Russ




                                         -5-
On November 16, 2004, the U.S. Department of Defense Criminal Investigative
Service began investigating the relationship between Schwening and Hoffmann.
Schwening never submitted an ACASS rating for the 1999 contract.

      Hoffmann testified at trial that he bought the clubs “to treat a friend” and was
not motivated by a desire to get anything from Schwening. However, Hoffmann
viewed the gift as a company expense, and purchased the clubs with Surdex’s
corporate credit card.

      At the instruction conference, Hoffmann's counsel requested a theory-of-
defense instruction providing that Hoffmann had given the golf clubs out of friendship
and to obtain goodwill. At the government's request, the court inserted the word
“solely.” The case was submitted to the jury with the following instruction:

      Mr. Hoffmann and Mr. Schwening, moreover, contend that each is not
      guilty of the crimes charged because the gifts given or received were not
      given or received because of or for any official acts or acts. Mr.
      Hoffmann and Mr. Schwening contend that the gifts were given or
      received solely because of reasons of goodwill and friendship. The law
      is written to subject to criminal punishment only those people who give
      or receive things of value because of or for an official act.

Jury Instruction 27 (emphasis added).

       The jury returned a verdict acquitting Schwening on all counts against him
(Counts 1-5), and acquitting Hoffmann on Counts 6-8 (which involved the two golf
outings and computer). The jury convicted Hoffman on Count 9 (which involved the
Titleist driver and three-wood). After denying Hoffmann's motion for a new trial, the
district court entered a final judgment, including a sentence of three years probation
and a $5,000 fine. Hoffmann appeals, arguing the court erred in its instructions to the
jury and that the judgment is not supported by sufficient evidence.



                                         -6-
                                          II.

       Hoffmann contends the district court erred in instructing the jury as to his
theory-of-defense. This court reviews a district court’s refusal to give a particularly
worded theory-of-defense instruction for an abuse of discretion. United States v.
McCourt, 468 F.3d 1088, 1094 (8th Cir. 2006); see United States v. Johnson, 278
F.3d 749, 751 (8th Cir. 2002) (“The district court has broad discretion in formulating
jury instructions.”).

       A defendant “has a right to have an instruction read reflecting his or her theory
of the case, provided that the request is made in time and that the instruction is
supported by the evidence and correctly states the law.” United States v. Gonzalez,
495 F.3d 577, 579 (8th Cir. 2007), quoting United States v. Westbrook, 896 F.2d 330,
337 (8th Cir. 1990). “A defendant is not entitled to a particularly worded instruction
where the instructions given adequately and correctly cover the substance of the
requested instruction.” United States v. Wright, 246 F.3d 1123, 1128 (8th Cir. 2001),
quoting United States v. Kouba, 822 F.2d 768, 771 (8th Cir. 1987); see United States
v. Serrano-Lopez, 366 F.3d 628, 636-37 (8th Cir. 2004).

       Hoffmann argues that the court improperly included the word “solely” into
Instruction 27. In United States v. Sun-Diamond Growers of California, 526 U.S. 398
(1999), the Supreme Court held that the illegal gratuity statute requires the
government to establish a reward given for or because of “some particular official act
[to] be identified and proved.” 526 U.S. at 406. Instruction 27 correctly notes
Hoffmann's contention that he gave the golf clubs because of reasons of goodwill and
friendship, motives that do not violate § 201(c). However, Instruction 27 implies that
if Hoffmann did not give the gifts solely because of goodwill and friendship, he
necessarily gave them for or because of an official act. This negated the government’s
burden. Because the instruction erroneously expanded the gratuity statute, it was
improper.


                                          -7-
       Although the instruction misstates the law, this court concludes that the jury
instructions, taken as a whole, were accurate. See United States v. Bishop, 825 F.2d
1278, 1283 (8th Cir. 1987) (reviewing jury instruction to determine “whether the
instructions, when taken as a whole, adequately advise the jury of the essential
elements of the offenses charged and the burden of proof required of the
government”), citing United States v. Sherer, 653 F.2d 334, 337 (8th Cir. 1981).

         Another instruction, Instruction 12, correctly charges the essential elements the
government had to prove beyond a reasonable doubt for the jury to find Hoffmann
guilty under the illegal gratuity statute. See United States v. Voss, 787 F.2d 393, 398
(8th Cir. 1986) (“A jury verdict, if based on an instruction that allows it to convict
without properly finding the facts supporting each element of the crime, is error.”).
With respect to Count 9, Instruction 12 provides the government had to prove: (1)
Hoffmann “gave things of value not authorized by law to William Schwening, namely
. . . [o]n October of 2003, a Titleist driver and 3 wood”; (2) Hoffmann “did so because
of an official act performed or to be performed by William Schwening”; and (3) at the
time, “William Schwening was an employee of the United States Army Corps of
Engineers.”

     Instruction 18 accurately explains the government’s burden to establish a link
between the golf clubs and an official act. Specifically, Instruction 18 provides:

      To prove the giving or receipt of an illegal gratuity, the government must
      prove a link between a thing of value conferred upon a public official
      and an official act for or because of which it was given. However, it is
      not necessary for the government to prove that the gratuity was given or
      received in exchange for the official act. An illegal gratuity may
      constitute merely a reward for some future act that the public official will
      take, and may have determined to take, or for a past act that he has
      already taken.




                                           -8-
These instructions properly advised the jury of the government’s burden of proof.
This court concludes that the jury instructions, taken as a whole, adequately state the
law.

                                          III.

       Hoffmann contends the government presented insufficient evidence that he
intended to give the golf clubs as an illegal gratuity because: 1) he never reasonably
believed that Schwening committed to providing an ACASS rating; 2) the November
2004 email is too remote; and 3) the evidence is inconclusive as to guilt or innocence.
This court reviews an appeal based on the sufficiency of evidence de novo, viewing
the evidence in a “‘light most favorable to the government, resolving conflicts in the
government's favor, and accepting all reasonable inferences that support the verdict.’”
United States v. Hamilton, 332 F.3d 1144, 1148 (8th Cir. 2003), quoting United
States v. Washington, 318 F.3d 845, 852 (8th Cir. 2003). This court will reverse a
jury's decision only if “no reasonable jury could have found the accused guilty beyond
a reasonable doubt.” United States v. Funchess, 422 F.3d 698, 701 (8th Cir. 2005),
quoting United States v. Espino, 317 F.3d 788, 792 (8th Cir. 2003).

      The government alleges that Hoffmann gave golf clubs to Schwening in
exchange for a future act – a favorable ACASS rating.3 The illegal gratuity statute
provides:



      3
         On appeal, the government argues: “The more accurate view of the evidence
is that the golf clubs, along with all the other gifts given to Schwening, were provided
for, or because of, a whole range of official acts performed or to be performed by
Schwening.” In addition to preparing favorable ACASS ratings, those official acts
include: recommending Surdex when sitting on selection boards, sharing confidential
information, and providing highly favorable reviews of the company’s performance
to other agencies. This court concludes that there is insufficient evidence connecting
these acts to the golf clubs at issue.

                                          -9-
      [W]hoever . . . otherwise than as provided by law for the proper
      discharge of official duty . . . directly or indirectly gives, offers or
      promises anything of value to any public official, former public official,
      or person selected to be a public official, for or because of any official
      act performed or to be performed by such public official, former public
      official, or person selected to be a public official . . . shall be fined under
      this title or imprisoned for not more than two years, or both.

18 U.S.C. § 201(c)(1)(A) (emphasis added). An “official act” is “any decision or
action on any question, matter, cause, suit, proceeding or controversy, which may at
any time be pending, or which may by law be brought before any public official, in
such official's official capacity, or in such official's place of trust or profit.” Id. §
201(a)(3). Sun-Diamond requires that “the Government must prove a link between
a thing of value conferred upon a public official and a specific ‘official act’ for or
because of which it was given.” 526 U.S. at 414.

       Hoffmann argues that the government’s evidence is insufficient because he
never reasonably believed that Schwening would provide an ACASS rating, and
Schwening never did so. This court has never interpreted § 201(c)(1)(A) to require
a “reasonable belief” element. See United States v. Patel, 32 F.3d 340, 344-45 (8th
Cir. 1994) (“[T]he government must prove, beyond a reasonable doubt, that the
defendant intended to reward [the official] for past action or action [the official] was
already committed to take.”). This court can locate only Fourth Circuit dicta
proposing such a requirement. Compare United States v. Jennings, 160 F.3d 1006,
1014 (4th Cir. 1998) (“[I]llegal gratuities . . . may be conveyed before the occurrence
of the act (so long as the payor believes the official has already committed himself to
the action”), with Sun-Diamond, 526 U.S. at 405 (“An illegal gratuity . . . may
constitute merely a reward for some future act that the public official will take (and
may already have determined to take) or for a past act that he has already taken.”);
United States v. Schaffer, 183 F.3d 833, 842 (D.C. Cir. 1999) (“[A] gratuity can be
given with the intent to induce a public official to propose, take, or shy away from
some future official act.”); United States v. Agostino, 132 F.3d 1183, 1195 (7th Cir.

                                           -10-
1997) (“If . . . the payer intends the money as a reward for actions the payee has
already taken, or is already committed to take, then the payment is a gratuity.”), citing
United States v. Mariano, 983 F.2d 1150, 1159 (1st Cir. 1993).

       Hoffmann contends that the clubs were not a gratuity because Schwening never
“committed” to issuing an ACASS rating. See Patel, 32 F.3d at 345. In Patel, the
defendant challenged a jury instruction requiring the government to prove that he gave
a reward “because [the official] performed an official act for [the defendant] or was
going to perform an official act for him.” Id. at 344-45. This court reasoned that the
instruction satisfied the illegal gratuity statute because the defendant “intended to
reward [the official] for . . . action [the official] was already committed to take.” Id.
This interpretation of § 201(c)(1)(A) is consistent with Sun-Diamond’s conclusion
that an illegal gratuity is a reward “for some future act that the public official will take
(and may already have determined to take).” 526 U.S. at 405. In this case, Schwening
was responsible for issuing the ACASS rating for the 1999 contract, and Hoffmann
repeatedly requested its submission. The government established that Schwening
asked “no clubs yet??”, and the next day Hoffmann purchased clubs for him. In
November 2004, Hoffmann again asked for an ACASS rating from Schwening and
wrote, “Oh, by the way, how is your golf game since you got those new woods?” A
reasonable juror could conclude that Hoffmann gave the clubs intending to induce
future performance; since the ACASS rating had not been issued by November 2004,
the email could be viewed as a reminder of the gift to prod Schwening to take action.

       Hoffmann next claims that the November 2004 email, sent thirteen months after
the clubs were delivered to Schwening, is too remote to constitute sufficient evidence
of his intent to provide an illegal gratuity. Hoffmann argues that § 201(c)(1)(A)
requires temporal proximity between the illegal gratuity and the defendant’s intent to
influence an official act. See Schaffer, 183 F.3d at 843-45.4 In that case, Schaffer,


       4
        But see United States v. Holck, 398 F. Supp. 2d 338, 353-54 (E.D. Pa 2005)
(stating that Schaffer was not decided on a “temporal attenuation” argument, but on

                                           -11-
a Tyson Foods executive, gave the Secretary of Agriculture several $1,500 tickets to
a presidential inaugural dinner. The tickets were purchased prior to the dinner, and
given to the Secretary the day of the event. On the same day as the dinner, the
Department of Agriculture became aware of an E coli outbreak. The government
alleged that, under Schaffer’s influence, the Secretary subsequently revised USDA
policies in response to the outbreak. Schaffer was convicted for providing the tickets
to the Secretary as an illegal gratuity. The district court granted a post-trial judgment
of acquittal, and D.C. Circuit affirmed, concluding that there was insufficient evidence
from which “the jury could infer that Schaffer and Tyson Foods were aware of the
USDA’s intent to act on the relevant issue at the time of the inaugural dinner.” Id. at
844 n.11.

      Schaffer is inapposite. There, the intent to influence an official act did not
motivate the gift because the USDA policy revisions were sought after the inaugural
dinner. In the present case, Hoffmann asked Schwening for an ACASS rating in
January, July, and August 2003, before he provided the clubs in October 2003. A
reasonable juror could conclude that Hoffmann gave the clubs to Schwening with the
requisite intent to reward future performance. The November 2004 email is not
attenuated; it could be viewed as Hoffmann’s reminder to Schwening to submit an
ACASS rating.

       Hoffmann finally argues that the November 2004 email is just as consistent
with innocence as it is with guilt. Hoffmann testified that he bought the clubs “to treat
a friend” and without a desire for anything in return. However, he also testified that
the clubs were paid for by Surdex, as were all of Schwening’s gifts. “The jury must
resolve conflicts in testimony and judge the credibility of witnesses.” United States
v. Agofsky, 20 F.3d 866, 869 (8th Cir. 1994), citing United States v. Nelson, 984 F.2d
894, 898-99 (8th Cir. 1993). After reviewing the entire record, this court concludes


the fact that the defendant had no “knowledge” that the gift was in exchange for an
official act).

                                          -12-
that a reasonable juror could conclude that the emails – together with the other
evidence and testimony – were sufficient to find the accused guilty beyond a
reasonable doubt.

                                         IV.

      The judgment of the district court is affirmed.



BYE, Circuit Judge, dissenting.

       I would reverse the judgment of the district court and direct the entry of a
judgment of acquittal on Hoffman's conviction on one count of giving an illegal
gratuity. I therefore respectfully dissent.

       When we review the sufficiency of evidence supporting a conviction, the
"conviction must be supported by substantial evidence and cannot be based on mere
suspicion or possibility of guilt." United States v. Robinson, 782 F.2d 128, 129 (8th
Cir. 1986). In addition:

      Where the government's evidence is equally strong to infer innocence as
      to infer guilt, the verdict must be one of not guilty and the court has a
      duty to direct an acquittal. In determining the strength of the evidence
      in a circumstantial case, it is the totality of the circumstances that must
      be weighed in making a decision on a motion for acquittal.

United States v. Davis, 103 F.3d 660, 667 (8th Cir. 1996) (internal citations and
quotation marks omitted). In this case, the government contends Hoffman gave two
golf clubs to Schwening in October 2003 in exchange for a future act that never
occurred, a favorable ACASS rating. The evidence connecting the gift of golf clubs
to a favorable ACASS rating was far from substantial.


                                         -13-
       It is a basic premise of criminal law that, for crimes requiring some state of
mind in addition to an act, the physical conduct and the state of mind must concur.
See, e.g., United States v. McDougald, 990 F.2d 259, 263 (6th Cir. 1993) (holding
there was no showing the defendant purchased a car with knowledge that funds so
used were drug money, as defendant's false statements over a month later, after he
knew authorities thought "he had done something wrong," do not show state of mind
at time of purchase, and thus requisite concurrence not established); United States v.
Fairchild, 990 F.2d 1139, 1142 (9th Cir. 1993) ("[T]he criminal intent essential to the
commission of the crime must exist at the time of the criminal act." (quoting United
States v. Fox, 95 U.S. 670, 671 (1877))). Thus, it was incumbent upon the
government to prove, by proof beyond a reasonable doubt, that when Hoffman gave
Schwening the golf clubs in October 2003, it was his intent at that time to reward
Schwening for a favorable ACASS rating that had yet to be performed.

       Although the Court relies in part upon two emails in which Schwening discusses
the golf clubs in connection with work, the only evidence indicative of Hoffman's
intent is one email sent in November 2004, over a year after Hoffman gave Schwening
the golf clubs. That email stated in its entirety:

      Bill,

      With the St Louis Corps announcement coming out it sure would be nice
      to have our last contact's (sic) evaluation in the ACASS system. Oh, by
      the way, how is your golf game since you got those new woods?

      Russ

      The totality of the circumstances involved here included extensive testimony
about the friendship between Hoffman and Schwening, which revolved in many
respects around golf. It is not uncommon for long-term acquaintances to frequently
talk about business and pleasure in the same conversation, and Hoffman and
Schwening sometimes discussed both golf and work in the same encounter. It cannot

                                         -14-
be said, however, adjacent comments about golf and an ACASS evaluation in a single
email dispatched thirteen months after-the-fact infer guilt any more strongly than
innocence. As a consequence, I am of the firm belief we have a duty and obligation
to direct an acquittal herein.

      I respectfully dissent.
                        ______________________________




                                      -15-
