Date: Feb 8, 2026

Government Contractors as “Public Officials” for Honest-Services Fraud Instructions and U.S.S.G. § 2C1.1

1. 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In United States v. Michael Shirley (11th Cir. Feb. 6, 2026) (unpublished), the Eleventh Circuit affirmed Michael Courtney Shirley’s convictions and 87-month sentence for conspiracy to commit honest services wire fraud and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 an alleged bribery-and-kickback scheme in which Shirley—through his consulting company, Praetorian Integrated Services, LLC—received a lucrative contract with the Seminole County Tax Collector’s Office after helping elect Joseph Greenberg as tax collector, and then funneled $6,000 to Greenberg through a middleman (Joseph Ellicott) while providing little meaningful work.

The appeal raised several issues with broad doctrinal implications: (i) the sufficiency of circumstantial evidence in public-corruption prosecutions; (ii) the boundary between permissible “public official” instructions and constructive amendment; (iii) how post-Percoco v. United States and Ciminelli v. United States arguments interact with “public official” definitions; (iv) the admissibility of co-conspirator statements under the hearsay rules and the Confrontation Clause; (v) whether a witness’s repeated Fifth Amendment invocations require striking testimony or an adverse-inference instruction; and (vi) whether a contractor can be treated as a “public official” for guideline purposes under U.S.S.G. § 2C1.1(a), plus how loss is estimated where the relationship is “permeated with fraud.”

2. Summary of the Opinion

The Eleventh Circuit:

Upheld the convictions, finding sufficient circumstantial evidence of an agreement (conspiracy) and a quid pro quo (bribery/kickback) tied to the contract’s award and continuation.
Rejected jury-instruction challenges, holding there was no constructive amendment and that the “public official” instruction did not violate Percoco v. United States or Ciminelli v. United States as applied.
Rejected evidentiary challenges, concluding Greenberg’s statements were admissible as co-conspirator statements and non-testimonial under the Confrontation Clause; and that Ellicott’s Fifth Amendment invocations concerned collateral credibility issues, so striking his testimony was unnecessary.
Affirmed the sentence, holding (i) Shirley qualified as a “public official” for guideline purposes because the guideline term is broadly construed and includes a “person acting for or on behalf of” government; and (ii) the district court reasonably included the full consulting fees in loss because the relationship was permeated with fraud, and Shirley failed to show legitimate value.
Declined to consider ineffective assistance on direct appeal due to an undeveloped record.

3. Analysis

3.1. Precedents Cited

A. Standards of review and framing

United States v. Langford, 647 F.3d 1309 (11th Cir. 2011): Used for the de novo sufficiency standard and the rule that circumstantial evidence can be enough. The panel leaned on Langford to validate inferences about agreement and quid pro quo without “express” conversations in the record.
United States v. Mayweather, 991 F.3d 1163 (11th Cir. 2021) and United States v. Ruiz, 59 F.3d 1151 (11th Cir. 1995): Provided the three-part test governing refusal of requested defense instructions (correctness, coverage, and vitalness).
United States v. Iriele, 977 F.3d 1155 (11th Cir. 2020): Anchored plain-error review for unpreserved instructional arguments.
United States v. Hasner, 340 F.3d 1261 (11th Cir. 2003): Provided abuse-of-discretion review for evidentiary rulings and the formulation of the co-conspirator exclusion analysis.
United States v. Ahmed, 73 F.4th 1363 (11th Cir. 2023): Supplied the standard for reviewing the denial of a motion to strike testimony when a witness invokes the Fifth Amendment mid-testimony.
United States v. Campbell, 765 F.3d 1291 (11th Cir. 2014): Gave the interpretive framework for guideline application and, critically, the “permeated with fraud” approach to calculating victim pecuniary harm.
United States v. Bender, 290 F.3d 1279 (11th Cir. 2002) and United States v. Patterson, 595 F.3d 1324 (11th Cir. 2010): Supported the court’s decision to defer ineffective-assistance claims to a 28 U.S.C. § 2255 proceeding.

B. Sufficiency of evidence in honest-services bribery/kickback schemes

United States v. Silvestri, 409 F.3d 1311 (11th Cir. 2005): Used for the “no reasonable jury” articulation. The panel applied this high bar to sustain the verdict given concealment and non-performance evidence.
United States v. Aunspaugh, 792 F.3d 1302 (11th Cir. 2015): Cited as an analogous kickback-for-contract case supporting inference of corrupt exchange based on contract favoritism and payments.
United States v. McNair, 605 F.3d 1152 (11th Cir. 2010): Invoked for the proposition that concealment is “powerful evidence” of corrupt intent. The panel treated the sham coin-contract “deniability” and Greenberg’s deposit-splitting as classic corruption markers.
United States v. Sosa, 777 F.3d 1279 (11th Cir. 2015) and United States v. Vernon, 723 F.3d 1234 (11th Cir. 2013): Supported the idea that conspiracy agreements are often proven by inference rather than explicit testimony.

C. Constructive amendment and “public official” instruction

Stirone v. United States, 361 U.S. 212 (1960): Supplied the foundational constitutional rule: a defendant cannot be convicted on a theory not fairly charged by the grand jury.
United States v. Baldwin, 774 F.3d 711 (11th Cir. 2014): Provided the Eleventh Circuit definition of constructive amendment (altering an essential element to broaden conviction bases).
United States v. Zayas, 141 F.4th 1217 (11th Cir. 2025): Confirmed that constructive amendment can occur via argument or instructions; it also implicitly framed the court’s “in context” assessment.
United States v. Behety, 32 F.3d 503 (11th Cir. 1994): Supplied the “in context” approach and the rule that constructive amendments are per se reversible error—raising the stakes, even though the panel found no amendment here.
Percoco v. United States, 598 U.S. 319 (2023) and Ciminelli v. United States, 598 U.S. 306 (2023): Served as the defense’s principal Supreme Court objections; the panel distinguished them on the ground that the jury instructions still required bribery/kickbacks and the case did not convert mere contract disputes into federal crimes.
United States v. Prather, 205 F.3d 1265 (11th Cir. 2000) and United States v. Arias, 984 F.2d 1139 (11th Cir. 1993): Reinforced the broad discretion district courts have in wording instructions so long as the charge as a whole reflects the law and does not mislead the jury.

D. Lesser-offense “unlawful gratuity” instruction

United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993): Controlled the panel’s plain-error conclusion. Even assuming “paying an unlawful gratuity” could be a lesser-included offense, it is not plain error for a district court to fail to give such an instruction sua sponte where the defense did not request it.

E. Adverse inference from Fifth Amendment invocation (criminal case)

Coquina Invs. v. TD Bank, N.A., 760 F.3d 1300 (11th Cir. 2014): Used to distinguish civil practice (adverse inference may be permissible) from criminal practice.
United States v. Lacouture, 495 F.2d 1237 (5th Cir. 1974): The key rule: in criminal cases, neither side may benefit from inferences the jury may draw merely from a witness’s assertion of the Fifth Amendment privilege because such inferences are unreliable.
Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc): Provided the doctrinal mechanism for treating pre-1981 Fifth Circuit decisions like Lacouture as binding in the Eleventh Circuit.

F. Hearsay and Confrontation Clause

Crawford v. Washington, 541 U.S. 36 (2004): Supplied the central Confrontation Clause “testimonial” framework.
Davis v. Washington, 547 U.S. 813 (2006): Provided the “primary purpose” test for testimonial character.
United States v. Caraballo, 595 F.3d 1214 (11th Cir. 2010): Reiterated that the Sixth Amendment prohibits introduction of testimonial statements absent confrontation.
United States v. Holland, 117 F.4th 1352 (11th Cir. 2024): Offered the critical bridge: statements in furtherance of a conspiracy are “by their nature” not testimonial—foreclosing the Crawford argument once the court found 801(d)(2)(E) applicability.

G. Striking testimony after Fifth Amendment invocation

Fountain v. United States, 384 F.2d 624 (5th Cir. 1967): Provided the core inquiry: whether the defendant was deprived of the ability to test the truth of the witness’s direct testimony.
United States v. Darwin, 757 F.2d 1193 (11th Cir. 1985): Reinforced the cross-examination/ability-to-test focus.
United States v. Hirst, 668 F.2d 1180 (11th Cir. 1982): Supplied the collateral-versus-direct distinction; invocation on collateral credibility issues does not compel striking testimony.

H. Sentencing: loss calculation and proof burdens

United States v. Cavallo, 790 F.3d 1202 (11th Cir. 2015) and United States v. Barrington, 648 F.3d 1178 (11th Cir. 2011): Provided the “reasonable estimate” of loss and preponderance burden on the Government.
United States v. Mazkouri, 945 F.3d 293 (5th Cir. 2019) and United States v. Alphas, 785 F.3d 775 (1st Cir. 2015): Not Eleventh Circuit precedent, but persuasive authority the panel used to support shifting the burden of production to the defendant to identify legitimate value once the Government shows fraud permeates the transactions.

3.2. Legal Reasoning

A. Sufficiency: agreement and quid pro quo may be inferred

The panel’s sufficiency analysis is notable for how it treats a public-contract consulting relationship with minimal deliverables as circumstantial proof of corruption when combined with concealment. Without a direct “agreement” conversation, the court held a reasonable jury could infer a conspiracy from (i) the lucrative contract and its unusual persistence despite budget cuts and lack of services, (ii) the $6,000 transfer, and (iii) concealment behavior (sham coin-business contract “for deniability,” alternative furniture explanation, and Greenberg’s bank-deposit structuring). This is consistent with United States v. Sosa and United States v. Vernon, which recognize conspiracies are often provable only through conduct.

On the substantive honest-services counts, the court rejected the defense’s timing argument (payment “long after” the contract was awarded) by treating the “official act” as not merely contract formation but also keeping the contract in place—especially beyond the transition period. The court also permitted inference that the money delivered by Ellicott to Greenberg was the same money later deposited, despite Ellicott not opening the envelope, because circumstantial proof may suffice under United States v. Langford.

B. Constructive amendment: “in context,” the case remained about Greenberg’s acceptance

Shirley’s core constitutional argument was that expanding “public official” to include non-employees (like contractors) and the Government’s rebuttal suggestion that Shirley “works for a government agency” impermissibly broadened the indictment’s theory. Applying Stirone v. United States, United States v. Baldwin, and United States v. Behety, the panel emphasized contextual analysis: even if the instruction’s definition could reach Shirley, the instructions still required that the “public official” solicit or accept a bribe or kickback.

The court treated the trial as singularly focused on Greenberg as the bribe recipient, with no evidence that Shirley solicited or received bribes for his own official action. The Government’s invoice-markup argument was characterized as reinforcing the illegitimacy of the overall arrangement, not as a new bribery theory with Shirley as the recipient. In short: potential definitional breadth does not equal constructive amendment when the operative elements and evidentiary theory remain unchanged.

C. Post-Percoco and Ciminelli: limiting principle is bribery/kickbacks plus the case’s “as applied” posture

Shirley invoked Percoco v. United States to argue the “public official” definition was overbroad and potentially vague, and Ciminelli v. United States to argue federal overreach into state contract matters. The panel’s response was predominantly “as applied”: regardless of whether Shirley could fit within the broad “public official” definition, the instructions still required bribery/kickbacks, and the case did not become a mere breach-of-contract prosecution because the evidence supported a corruption scheme involving concealment and a payment to the elected officeholder.

The opinion thus signals that, in the Eleventh Circuit’s view, Percoco and Ciminelli do not categorically restrict using broad “acts for or on behalf of” language where the conviction rests on classic bribery/kickback facts, rather than amorphous duty theories or “right-to-control” property theories.

D. Lesser offense: no sua sponte unlawful-gratuity instruction under plain-error review

The court acknowledged it had “not addressed whether paying an unlawful gratuity is a lesser included offense of honest services fraud,” but held that even assuming it is, United States v. Chandler foreclosed relief: failure to request the instruction means the district court’s omission is not plain error. This preserves strong incentives for defense counsel to litigate lesser-included alternatives at the charge conference, particularly in cases where timing might support a gratuity narrative.

E. Fifth Amendment invocations: no adverse inference instruction; no striking absent deprivation of meaningful cross

Two distinct doctrines are at work:

No adverse inference instruction: Relying on United States v. Lacouture (binding via Bonner v. City of Prichard), the panel reiterated that criminal juries should not be invited to draw inferences from a witness’s invocation of the privilege. The court also found the general credibility/accomplice instructions substantially covered the defense’s requested charge.
No striking of testimony: Under Fountain v. United States and United States v. Hirst, the question is whether the invocation blocks testing the truth of direct testimony on non-collateral matters. Here, repeated invocations about sex trafficking were deemed collateral to the bribery/kickback narrative; the defense still elicited extensive cooperation-benefit evidence and attacked motive to fabricate.

The practical takeaway is that even numerous privilege invocations will not necessarily lead to striking if the invocations go primarily to “why the witness might lie” rather than “what the witness says happened” on the charged conduct.

F. Co-conspirator statements and the Confrontation Clause

The panel held Greenberg’s statements to Ellicott (“needs a loan,” “getting it from Shirley,” “pick it up”) were admissible under Fed. R. Evid. 801(d)(2)(E) because the Government proved, by a preponderance, a conspiracy between Shirley and Greenberg. On the Sixth Amendment, the court followed Crawford v. Washington, Davis v. Washington, and Eleventh Circuit authority including United States v. Holland: statements in furtherance of a conspiracy are not testimonial because their primary purpose is operational (to advance the scheme), not evidentiary (to create a record for prosecution).

G. Sentencing: (1) contractor as “public official” under U.S.S.G. § 2C1.1; (2) loss and “permeated with fraud”

Public official enhancement: The panel emphasized the Guidelines’ instruction that “public official” “shall be construed broadly” and includes a “person acting for or on behalf of” state/local government “in any official function.” It treated Shirley’s independent-contractor posture as non-dispositive, focusing instead on his function: transition/strategic guidance plus substantial discretion in spending (purchasing supplies/services with public funds).

Loss calculation: Drawing from United States v. Campbell, the panel accepted the “amount transferred” as the starting point when the relationship is permeated with fraud. It then cited United States v. Mazkouri and United States v. Alphas for a burden-of-production concept: once the Government establishes that baseline, the defendant must come forward with evidence of legitimate value to obtain an offset. Shirley did not do so; indeed, the identifiable work (procurement) was tainted by markups.

3.3. Impact

Honest-services prosecutions post-Percoco/Ciminelli: The decision illustrates a path for sustaining convictions by anchoring the case in classic bribery/kickback facts and ensuring jury instructions keep bribery/kickback acceptance/solicitation as the limiting element. Defendants may find “overbreadth” attacks less effective where the record is tightly oriented to a bribe recipient who is plainly a public official.
Constructive-amendment doctrine: The opinion underscores that definitional breadth in an instruction does not necessarily broaden the indictment if the operative elements and trial proof remain constant. This “contextual” approach may make constructive-amendment arguments harder where the Government’s evidence does not actually support the alternative theory.
Fifth Amendment invocations by cooperating witnesses: The court’s treatment strengthens the Government’s ability to rely on cooperators with significant collateral exposure (e.g., unrelated misconduct) without risking wholesale striking, so long as cross-examination can expose bias and deals without delving into the underlying collateral facts.
Guideline exposure for contractors: The U.S.S.G. § 2C1.1 “public official” holding is consequential for sentencing in public-corruption cases involving consultants and vendors. Contractors with meaningful delegated authority or discretionary public-fund spending can face the higher base offense level.
Loss calculation methodology: The endorsement (via persuasive authority) of shifting the burden of production to defendants to prove legitimate value in fraud-permeated service contracts may influence future loss disputes, especially in cases where services are intangible and documentation is thin.

4. Complex Concepts Simplified

Honest services wire fraud (18 U.S.C. §§ 1343, 1346): A fraud theory focused on depriving the public of a public official’s honest work, typically through bribery or kickbacks. After modern Supreme Court cases, honest-services liability is generally confined to bribery/kickback paradigms.
Bribe/kickback vs. unlawful gratuity: A bribe/kickback involves a corrupt exchange (a quid pro quo) tied to official action; an unlawful gratuity is more like an improper “thank you” connected to an official act but without the same exchange requirement. Shirley tried to reframe the $6,000 as (at most) a gratuity because it came after contract award; the court treated the “official act” as including keeping the contract alive.
Constructive amendment: When trial instructions or argument effectively change the charged crime’s essential elements so the jury can convict on a theory not charged by the grand jury. It is per se reversible error, but courts assess whether any expansion actually occurred “in context.”
Co-conspirator statements (Fed. R. Evid. 801(d)(2)(E)): Statements made by one conspirator during and in furtherance of the conspiracy can be used against another conspirator and are not treated as hearsay.
Confrontation Clause “testimonial” statements: Under Crawford, testimonial out-of-court statements generally require cross-examination. Operational statements between conspirators (e.g., arranging a payment) are typically non-testimonial.
Striking testimony after Fifth Amendment invocation: Courts may strike testimony if the privilege prevents meaningful cross-examination on core facts testified to on direct. If the invocation only blocks questions about collateral credibility issues, striking is usually not required.
Guidelines “public official” (U.S.S.G. § 2C1.1): A sentencing concept broader than mere employment status; it includes those acting “for or on behalf of” government in an official function.
Loss amount: In fraud cases, courts estimate loss reasonably. Where transactions are “permeated with fraud,” courts may start with total payments and then consider offsets only if the defendant shows legitimate value delivered.

5. Conclusion

United States v. Michael Shirley affirms a bribery-and-kickback honest-services conviction and highlights several durable principles in Eleventh Circuit practice: (i) circumstantial evidence and concealment can strongly support inferences of agreement and corrupt intent; (ii) broad “public official” definitions in instructions do not necessarily create constructive amendments when the case remains anchored to a charged official’s acceptance of bribes/kickbacks; (iii) Percoco v. United States and Ciminelli v. United States do not bar broad “acts for or on behalf of” language where the jury must still find bribery/kickbacks and the record shows classic corruption; (iv) criminal juries generally should not be instructed to draw adverse inferences from Fifth Amendment invocations; (v) co-conspirator statements in furtherance of a scheme are admissible and typically non-testimonial; and (vi) for sentencing, contractors can qualify as “public officials” under U.S.S.G. § 2C1.1 and loss may include full payments where the arrangement is permeated with fraud absent proof of legitimate value.