Broad “Public Official” Definition in Honest-Services Fraud: Contractors Covered for Sentencing; No Adverse Inference from Fifth-Amendment Invocations

Introduction

In United States v. Michael Shirley (11th Cir. Feb. 6, 2026) (unpublished), the Eleventh Circuit affirmed Michael Courtney Shirley’s convictions and 87-month sentence for conspiracy to commit honest services wire fraud and substantive honest services wire fraud. The prosecution centered on Seminole County Tax Collector Joel Greenberg’s award and maintenance of a lucrative consulting contract to Shirley’s company, Praetorian Integrated Services, LLC (“Praetorian”), coupled with a concealed $6,000 payment routed through Greenberg associate Joseph Ellicott.

On appeal, Shirley attacked (1) the sufficiency of the evidence of an agreement and quid pro quo, (2) multiple jury-instruction rulings—including whether the “public official” definition violated Percoco v. United States and Ciminelli v. United States or constructively amended the indictment, whether the court should have instructed on an “unlawful gratuity” lesser offense, and whether the jury should have been allowed to draw an adverse inference from Ellicott’s Fifth Amendment invocations, (3) evidentiary rulings under hearsay and the Confrontation Clause regarding Greenberg’s statements and Ellicott’s partial refusal to answer on cross, and (4) sentencing calculations—especially whether an independent contractor can be treated as a “public official” under U.S.S.G. § 2C1.1 and whether the loss amount properly included the consulting fees.

Summary of the Opinion

The court affirmed across the board (and declined to reach ineffective-assistance claims on direct appeal). It held:

  • Sufficiency: Circumstantial evidence—including concealment, continued payments for minimal services, and the $6,000 payment—supported both the conspiracy and substantive honest-services counts.
  • Jury instructions/constructive amendment: The “public official” definition and the Government’s rebuttal did not broaden the indictment’s bases for conviction because the instructions, read as a whole, still required that the “public official” solicit or accept a bribe or kickback, and the trial theory remained that Greenberg was that official.
  • Percoco/Ciminelli: The instruction did not violate those decisions as applied; any expansive “public official” phrasing did not authorize conviction on a non-bribery theory.
  • Unlawful gratuity lesser instruction: No plain error occurred when the district court did not give such an instruction sua sponte.
  • Adverse inference instruction: Improper in a criminal case for a witness’s Fifth Amendment invocation; other credibility instructions substantially covered the point.
  • Evidentiary/Confrontation Clause: Greenberg’s statements to Ellicott were admissible as co-conspirator statements and were non-testimonial; Ellicott’s invocation concerned collateral credibility issues and did not require striking his testimony.
  • Sentencing: Shirley qualified as a “public official” for U.S.S.G. § 2C1.1(a) despite contractor status; loss properly included consulting fees because the relationship was “permeated with fraud,” shifting to Shirley the burden to show legitimate value he failed to show.

Analysis

Precedents Cited

1) Appellate review standards shaping outcomes

  • United States v. Langford: Provided the de novo sufficiency standard and the rule that circumstantial and direct evidence are treated alike. The panel used Langford to reject Shirley’s “no witness heard an express agreement” argument by emphasizing conspiracies are often proved circumstantially.
  • United States v. Silvestri: Framed Shirley’s heavy burden—he had to show no reasonable jury could convict. This lens made the concealment evidence and contract-favoritism evidence dispositive.
  • United States v. Mayweather and United States v. Ruiz: Supplied the Eleventh Circuit’s three-part test for refusing a requested instruction. The court relied on this framework to uphold the refusal of Shirley’s adverse-inference instruction.
  • United States v. Iriele: Imposed plain-error review for unpreserved claims, dooming Shirley’s “unlawful gratuity” instruction argument raised for the first time on appeal.
  • United States v. Hasner: Provided the abuse-of-discretion standard for evidentiary rulings and the basic co-conspirator statement rule; it supported admission of Greenberg’s statements through Ellicott.
  • United States v. Ahmed: Supplied the abuse-of-discretion standard for motions to strike testimony after a Fifth Amendment invocation; the panel used that deferential standard to affirm.
  • United States v. Campbell: Governed guidelines interpretation (de novo) and factual findings (clear error), and also supplied the “permeated with fraud” concept used to treat victim-to-scheme payments as the starting point for loss.
  • Nixon v. Newsome, United States v. Bender, and United States v. Patterson: Together supported the decision to decline ineffective-assistance claims on direct appeal because the record was not developed and § 2255 is the preferred vehicle.

2) Honest-services fraud sufficiency and corrupt intent

  • United States v. Aunspaugh: A close analogue—kickbacks tied to a lucrative contract and favoritism. The panel used Aunspaugh to validate the inference that a “sweetheart” consulting deal plus concealed payment supports honest-services conspiracy.
  • United States v. McNair: Key proposition: concealment is “powerful evidence” of corrupt intent. The fake “coin business” contract and post-investigation cover story fit McNair’s concealment logic.
  • United States v. Sosa and United States v. Vernon: Reinforced that conspiracy agreements are commonly inferred from conduct. The panel relied on this to answer Shirley’s insistence on proof of an explicit agreement.

3) Constructive amendment and “in context” evaluation

  • Stirone v. United States: Supplied the constitutional baseline—defendants cannot be convicted on theories not charged by the grand jury.
  • United States v. Baldwin: Defined constructive amendment as altering an essential element to broaden bases for conviction.
  • United States v. Zayas: Confirmed that either jury instructions or prosecutorial argument can effect a constructive amendment.
  • United States v. Behety: Provided the decisive “in context” approach and the rule that constructive amendments are per se reversible—making the court’s contextual narrowing of the instructions and rebuttal argument crucial to affirmance.

4) Supreme Court limits on federal fraud theories

  • Percoco v. United States: Shirley invoked Percoco to argue the “public official” definition swept too broadly to cover non-government actors. The panel distinguished the concern by emphasizing the jury instructions still required bribery/kickbacks and the evidence/theory focused on Greenberg as the official who accepted the bribe.
  • Ciminelli v. United States: Shirley argued Ciminelli barred turning state-law contract disputes into federal fraud. The panel treated this case as a bribery-and-kickback prosecution, not a mere “bad bargain” or deprivation-of-control theory, and held the charge as applied did not expand federal jurisdiction beyond the honest-services bribery/kickback core.

5) Lesser offense instruction and plain error

  • United States v. Chandler: The controlling authority on the procedural point—no plain error when a district court fails to give an unrequested lesser-included instruction sua sponte. Even assuming “paying an unlawful gratuity” could be lesser-included, Chandler foreclosed relief.

6) Fifth Amendment invocations and adverse inferences

  • Coquina Invs. v. TD Bank, N.A.: Recognized adverse inferences from Fifth Amendment invocations in civil cases.
  • United States v. Lacouture: The key criminal-case counterrule (binding via Bonner v. City of Prichard)—neither side is entitled to benefit from inferences drawn solely from a witness’s Fifth Amendment assertion because such inferences are not reliably drawn. This foreclosed Shirley’s proposed instruction as legally incorrect.
  • Bonner v. City of Prichard: Explained why old Fifth Circuit decisions (including Lacouture) remain binding Eleventh Circuit precedent.

7) Confrontation Clause and co-conspirator statements

  • Crawford v. Washington and Davis v. Washington: Provided the testimonial/non-testimonial framework (primary purpose test).
  • United States v. Caraballo: Applied Crawford principles in circuit practice.
  • United States v. Holland: Supplied the categorical proposition that statements in furtherance of a conspiracy are non-testimonial “by their nature,” supporting admission of Greenberg’s statements without confrontation.

8) Motions to strike after Fifth Amendment invocation

  • Fountain v. United States: Established that if a witness invokes the privilege on cross, direct testimony may be stricken if the defendant is deprived of the ability to test its truth.
  • United States v. Darwin: Reinforced the focus on whether the defendant can test the truth of the direct testimony.
  • United States v. Hirst: Drew the critical line—invocation as to collateral credibility matters does not require striking; invocation as to direct matters may. The panel treated Ellicott’s invocations as collateral (credibility/motive), so striking was unnecessary.

9) Loss calculation principles

  • United States v. Cavallo and United States v. Barrington: Supported the preponderance burden and the “reasonable estimate” standard for loss.
  • United States v. Campbell: Provided the “permeated with fraud” doctrine enabling the court to start with total amounts transferred from the victim.
  • United States v. Mazkouri and United States v. Alphas: Supported shifting the burden of production to the defendant to show legitimate value once the government establishes a fraud-permeated scheme. The panel invoked these to hold Shirley failed to prove offsetting value for the consulting fees.

Legal Reasoning

1) Proving honest-services bribery without an “express agreement” witness

The court treated the case as an archetypal circumstantial-proof conspiracy: a public official awards and preserves a lucrative contract despite limited performance; a concealed payment is delivered through an intermediary; and both sides take steps to cover the transaction. Using Langford, Sosa, and Vernon, the panel emphasized that conspiratorial agreement is inferred from coordinated conduct. Using McNair, it treated concealment (fake contract, split deposits, cover story) as strong proof of corrupt intent.

2) “Public official” definition, constructive amendment, and the centrality of the bribery/kickback element

The defense theory sought to convert potentially expansive “public official” language into a constitutional flaw: if the jury could treat Shirley (a contractor) as a “public official,” then the indictment might be broadened beyond Greenberg and beyond the government’s trial theory. The panel rejected that move by applying the “in context” approach of Behety: the instructions, read as a whole, required that the public official “solicit or accept a bribe or kickback,” and the trial evidence and theory overwhelmingly targeted Greenberg as the recipient. Thus, even if the definition could have fit Shirley in the abstract, it did not realistically broaden the basis of conviction in this record.

Relatedly, the panel treated the government’s rebuttal remark (“Shirley works for a government agency, and he owes the public a duty of honest services”) as, at most, a potential ambiguity rather than a new, indictment-broadening theory. Under Behety and Zayas, that mattered: ambiguity is not constructive amendment unless it effectively expands the charged offense.

3) Percoco and Ciminelli as guardrails—satisfied here by keeping the case in the bribery/kickback lane

The opinion’s reconciliation of Percoco v. United States and Ciminelli v. United States is practical rather than theoretical: even assuming broader “public official” coverage, the instructions still constrained liability to a bribery/kickback deprivation of honest services, and the prosecution did not argue a Ciminelli-style property/control deprivation or a mere breach-of-contract dispute. In short, the court treated Percoco/Ciminelli concerns as avoided when (a) bribery/kickback remains the liability hook and (b) the “public official who took the bribe” remains the factual nucleus for conviction.

4) Unlawful gratuity: the procedural default mattered more than the substantive question

The court noted it had “not addressed” whether paying an unlawful gratuity is a lesser-included offense of honest-services fraud. But it did not need to answer: United States v. Chandler foreclosed a finding of plain error when the defendant neither requested the instruction nor objected to its omission. This is a reminder that lesser-offense theories must be preserved at trial to be meaningfully reviewable on appeal.

5) Fifth Amendment invocations: no adverse-inference instruction in criminal trials

Shirley’s proposed instruction collided directly with United States v. Lacouture. The panel emphasized the criminal/civil divide: while Coquina Invs. v. TD Bank, N.A. allows adverse inferences in civil matters, Lacouture bars either side from profiting from a witness’s Fifth Amendment invocation in a criminal case because the inference is not reliably drawn. The court also reasoned that standard credibility instructions already gave the jury the proper tools to assess Ellicott’s motives and truthfulness.

6) Confrontation Clause: co-conspirator statements and collateral invocations

On Greenberg’s out-of-court statements, the panel applied Fed. R. Evid. 801(d)(2)(E) as explained in Hasner: once a conspiracy is shown by a preponderance, co-conspirator statements made during and in furtherance are admissible. On confrontation, Crawford and Davis allow admission of non-testimonial statements, and United States v. Holland supplied the shortcut: statements in furtherance of a conspiracy are non-testimonial “by their nature.”

On Ellicott’s Fifth Amendment refusals, the panel applied Fountain and Hirst: striking is warranted only when the invocation blocks testing the truth of direct testimony on non-collateral matters. Because Ellicott invoked on collateral topics (credibility, motives, potential unrelated criminal exposure), and Shirley still cross-examined him about cooperation benefits and bias, the Sixth Amendment was not violated.

7) Sentencing: contractor-as-public-official under U.S.S.G. § 2C1.1 and fraud-permeated loss

The court endorsed a functional approach to “public official” under U.S.S.G. § 2C1.1, emphasizing the commentary’s instruction that the term “shall be construed broadly” and includes a “person acting for or on behalf of” state or local government in an official function. Contractor status was thus not dispositive; the focus was on authority and function (strategic planning/implementation and significant spending decisions for the office).

On loss, the court used Campbell to treat total transfers as the starting point when the relationship is “permeated with fraud,” then used Mazkouri and Alphas to place the production burden on the defendant to prove legitimate value offsets—something Shirley failed to do beyond evidence suggesting the main “services” were purchases later invoiced with markups.

Impact

  • Contractors and guideline exposure: The decision reinforces that, at least for sentencing under U.S.S.G. § 2C1.1, independent contractors who act “for or on behalf of” a government office with delegated functional authority may be treated as “public officials,” increasing the base offense level.
  • Constraining Percoco/Ciminelli challenges: The opinion suggests a pathway for sustaining honest-services convictions post-Percoco/Ciminelli: keep the theory anchored in bribery/kickbacks and ensure jury instructions require that element, reducing the practical risk that broader definitional language will produce reversible constructive amendment.
  • Trial practice—preservation: The unlawful-gratuity discussion underscores that defendants must request lesser-included instructions and object to omissions; otherwise, Chandler makes reversal difficult under plain-error review.
  • Witness Fifth Amendment invocations: The decision reaffirms (via Lacouture) that criminal juries generally should not be instructed to draw adverse inferences from a witness’s invocation, pushing defense counsel to use standard bias/credibility impeachment rather than inference instructions.

Complex Concepts Simplified

  • Honest services wire fraud (18 U.S.C. §§ 1343, 1346): A form of fraud where the public is deprived of a public official’s honest work through bribery or kickbacks (the core post-Skilling understanding of § 1346), often proved by quid pro quo circumstances and concealment.
  • Constructive amendment: When trial instructions/argument effectively let the jury convict on a different charge or essential element than the grand jury indicted, violating the Fifth Amendment. Courts assess this “in context,” not in isolation.
  • Co-conspirator statements (Fed. R. Evid. 801(d)(2)(E)): Statements by one conspirator during and in furtherance of the conspiracy can be admitted against another without being treated as hearsay, if the conspiracy is shown by a preponderance.
  • Confrontation Clause “testimonial” statements: Under Crawford/Davis, the Sixth Amendment generally blocks out-of-court testimonial statements offered for their truth unless the declarant is available for cross-examination; non-testimonial statements (like many co-conspirator operational communications) are not barred on that basis.
  • “Public official” at sentencing: Under U.S.S.G. § 2C1.1, the term is “construed broadly” and can include non-employees who act on behalf of a government office in an official function.
  • Loss amount when “permeated with fraud”: If the entire relationship/contract is infected by fraud, courts may start with the full amount paid by the victim and require the defendant to show legitimate value that should reduce that figure.
  • Plain error: A stringent appellate standard for issues not preserved at trial; even plausible legal claims can fail if the error was not obvious under existing law and not outcome-determinative.

Conclusion

Although unpublished, United States v. Michael Shirley is a tightly reasoned reaffirmation of several practical principles in honest-services prosecutions: circumstantial evidence and concealment can carry bribery-based theories; “public official” language does not create constructive amendment where the charge remains tethered to solicitation/acceptance of bribes or kickbacks by the indicted official; Percoco and Ciminelli concerns are minimized when the case stays within bribery/kickback honest-services doctrine; defendants must preserve lesser-offense instruction issues; criminal juries should not be invited to draw adverse inferences from a witness’s Fifth Amendment invocation; and, at sentencing, government contractors acting on behalf of public offices can qualify as “public officials,” with fraud-permeated contracts supporting loss figures that include paid fees absent proof of legitimate value.