United States v. Michael Shirley

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-10672

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL COURTNEY SHIRLEY,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:22-cr-00123-GAP-DCI-1

____________________

____________________

No. 24-10937

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

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2 Opinion of the Court 24-10672

MICHAEL COURTNEY SHIRLEY,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:22-cr-00123-GAP-DCI-1

____________________

Before NEWSOM and BRASHER, Circuit Judges, and HUCK,∗ District

Judge.

PER CURIAM:

Michael Shirley raises several challenges to his conviction

and 87-month sentence for conspiracy to commit honest services

wire fraud and for honest services wire fraud. First, Shirley ques-

tions the sufficiency of the evidence against him. Second, he raises

numerous challenges to the district court’s jury instructions, in-

cluding (1) that the jury instruction’s definition of “public official”

violated Supreme Court precedent and constructively amended

the indictment, (2) that the district court erred by failing to instruct

the jury on the lesser offense of paying an unlawful gratuity, and

(3) by denying a jury instruction allowing an adverse inference

against Shirley’s co-conspirator, Joseph Ellicott, for invoking his

Fifth Amendment privilege against self-incrimination during his

testimony. Third, Shirley raises two evidentiary challenges, arguing

∗ Honorable Paul C. Huck, United States District Judge for the Southern Dis-

trict of Florida, sitting by designation.

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24-10672 Opinion of the Court 3

(1) that the admission of the out-of-court statements of Shirley’s

other co-conspirator, Joel Greenberg, violated the rule against

hearsay and the Sixth Amendment’s Confrontation Clause, and (2)

that the district court’s failure to strike Ellicott’s testimony after El-

licott invoked his privilege against self-incrimination violated the

Confrontation Clause. Fourth, Shirley argues that the district court

erred in overruling Shirley’s objections to his base offense level and

loss amount at sentencing. Finally, Shirley argues that his trial coun-

sel was ineffective for failing to object to certain leading questions

and for failing to argue for a jury instruction on the lesser offense

of paying an unlawful gratuity. We disagree with Shirley on the

first four issues and decline to consider the last issue, Shirley’s inef-

fective assistance of counsel claims. Therefore, we affirm Shirley’s

conviction and sentence.

I. BACKGROUND

A federal grand jury returned a five-count indictment charg-

ing Shirley with conspiracy to commit honest services wire fraud,

in violation of 18 U.S.C. § 1349 (Count I), and honest services wire

fraud, in violation of 18 U.S.C. §§ 1343 and 1346 (Counts II through

V). Shirley proceeded to trial. The Government adduced the fol-

lowing evidence at trial.

A. Offense Conduct

Greenberg was elected as Seminole County Tax Collector

and hired Shirley’s company, Praetorian Integrated Ser-

vices, LLC, as a consultant.

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4 Opinion of the Court 24-10672

In 2016, Greenberg successfully ran for Seminole County

Tax Collector with Shirley serving as his campaign manager. Im-

mediately after working on Greenberg’s campaign, Shirley formed

Praetorian Integrated Services, LLC (“Praetorian”).

A few days into his term, Greenberg hired Praetorian as a

consultant to the Seminole County Tax Collector’s Office (the “Of-

fice”). The consulting contract provided that the Office would pay

Praetorian a fee of $12,500 per month as well as fees and costs re-

lated to purchasing supplies and third-party services. The contract

specified that Praetorian would provide services related to Green-

berg’s transition into the Office, “includ[ing], but not limited to,

review and compilation of the office’s budget, third party services,

strategic planning along with implementation and execution, and

technological review and guidance.”

Shirley—using Ellicott as a middleman—paid Greenberg

$6,000 as a bribe and kickback for the Praetorian contract.

From January through September 2017, pursuant to the con-

sulting contract, Praetorian sent the Office monthly invoices for its

$12,500 fee, which was described as a “transition fee.” The Office

paid the invoices.

On September 25, 2017, Greenberg told his associate, El-

licott, that Shirley was lending Greenberg $6,000 because Green-

berg was out of money. Greenberg asked Ellicott to pick up the

money from Shirley. Ellicott met Shirley, who gave Ellicott $6,000

in an envelope. Shirley asked Ellicott to sign a contract that gave

him a 10 percent stake in Ellicott’s coin business in exchange for

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24-10672 Opinion of the Court 5

$5,000. The contract provided that Ellicott was to return the $5,000

to Shirley in 24 months. Ellicott had reservations about signing the

contract, but Shirley told him, “[I]t’s not really a contract between

us . . . . But Joel [Greenberg] and I have contracts together, and I’m

loaning him this money. But in case somebody asks, I need to have

. . . deniability, and this covers that.” Ellicott signed the contract

and delivered the $6,000 to Greenberg.

Three days later, Greenberg deposited a total of $6,020 in

two of his personal checking accounts. He deposited $3,010 in one

account and $3,010 in another account. Then he transferred $3,000

from one account to the other and made a $6,617.82 payment to

his credit card. At trial, the Government contended that by adding

$20 to the $6,000 and initially depositing the money into two dif-

ferent accounts, Greenberg was attempting to disguise the source

of the $6,000.

From January 2017 to September 2019, the Office paid

Praetorian over $450,000 in consulting fees and from in-

voice mark-ups for little, if any, legitimate services.

In January 2017, Praetorian began working as a consultant

to the Office pursuant to the consulting contract, purportedly

providing various strategic management services, as required by

the contract. However, Office employees and Ellicott testified that

they rarely saw Shirley at the Office after the initial transition pe-

riod, with one observing that she had no idea what Praetorian did

for the Office. Two former part-time Praetorian employees testi-

fied that they did very little work for the Office themselves and did

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6 Opinion of the Court 24-10672

not know what Praetorian did for the Office, even though the Of-

fice was Praetorian’s only client. Nevertheless, Praetorian sent the

Office monthly invoices for its $12,500 fee, which the Office

promptly paid. On October 1, 2017, Praetorian sent the Office an

invoice, which for the first time described its monthly fee as a “stra-

tegic management fee” instead of a “transition fee,” as it had been

described in prior invoices. Over time, because of pressing budget-

ary constraints, Greenberg cancelled some of the Office’s other

consulting contracts and reduced the fees of others. However,

Greenberg never cancelled Praetorian’s contract or reduced its

consulting fee despite the fact it performed few, if any, meaningful

services for the Office. The Office continued to pay all invoices for

Praetorian’s monthly fee through September 2019. In total, Prae-

torian received $412,500 in consulting fees from the Office. Never-

theless, as part of its “services” to the Office, Praetorian purchased

supplies and services from third parties, for which Praetorian re-

ceived additional compensation. When submitting invoices to the

Office for those supplies and services, Praetorian added a mark-up

to the purchase prices for itself. Ultimately, Praetorian received

$43,990.72 from the mark-ups. An Office accountant testified that

while retailers normally mark up their purchase prices when re-

selling products, such mark-ups are uncommon when consultants

are paid a flat fee.

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After the Government started investigating Greenberg,

Shirley and Ellicott met to discuss the $6,000 payment.

By August 2019, the Government was investigating Green-

berg for criminal offenses he allegedly committed while serving as

tax collector. Subsequently, in September, Shirley and Ellicott met

to discuss the investigation. Shirley told Ellicott not to worry about

the $6,000 payment or coin business contract because Shirley and

Greenberg would tell investigators that the $6,000 payment was

covered by an invoice for office furniture that Shirley had taken

from Greenberg’s campaign office.

B. Trial Proceedings

Ellicott’s Testimony Against Shirley

Ellicott testified that on September 25, 2017, Greenberg told

Ellicott that Greenberg “needed a loan because he was out of

money,” “that he was going to get the loan from . . . Shirley,” and

that Greenberg needed Ellicott to pick up the money from Shirley.

Shirley’s counsel objected to this testimony on hearsay and Con-

frontation Clause grounds. The district court overruled the objec-

tions.

Ellicott testified that he now understands the $6,000 was a

bribe and kickback from Shirley to Greenberg, but when he was

first asked to pick up $6,000 from Shirley, he thought it was a loan.

On direct examination, Ellicott acknowledged that he had pleaded

guilty to honest services fraud and illegal distribution of Adderall.

Ellicott testified that he agreed to cooperate with the Government,

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8 Opinion of the Court 24-10672

and the Government agreed not to charge him with any other con-

duct related to those offenses. Ellicott also said he gave the Gov-

ernment information about the sex trafficking of a 17-year-old, for

which he was not charged. Ellicott testified that it was during the

course of the Government’s prosecution of him and through his

cooperation that he realized that the $6,000 payment was a bribe

and kickback.

Shirley’s counsel asked Ellicott if he had previously engaged

in commercial sex with a minor. In response, Ellicott invoked his

Fifth Amendment privilege against self-incrimination. Ultimately,

Ellicott invoked his Fifth Amendment privilege over 60 times in

response to questions about his involvement with a minor, his so-

licitation of sex from adult women, and his knowledge of Green-

berg’s involvement with a minor. When Shirley’s counsel sug-

gested that Ellicott was only saying that the $6,000 was a bribe or

kickback to avoid sex trafficking charges, Ellicott invoked his Fifth

Amendment privilege. Ellicott admitted that he never opened the

envelope from Shirley with the $6,000 to confirm that it contained

$6,000. Ellicott also testified about financial problems he was hav-

ing when he was involved in the conspiracy.

After Ellicott’s testimony, Shirley’s counsel moved to strike

Ellicott’s testimony because Ellicott invoked his Fifth Amendment

privilege against self-incrimination on material points regarding

the significant benefit he received in his case. The district court de-

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24-10672 Opinion of the Court 9

nied the motion because Shirley’s counsel’s cross-examination ef-

fectively made his point, and the district court did not see any prej-

udice.

Motion for Judgment of Acquittal and Jury Instructions

After the Government rested its case, Shirley’s counsel

moved for a judgment of acquittal on all counts. The district court

denied the motion. Shirley’s counsel rested his case without pre-

senting any evidence.

The district court then discussed the proposed jury instruc-

tions. Both parties’ proposed instructions, as initially submitted,

provided that the first two elements of honest services fraud re-

quired the jury to find (1) that “the Defendant knowingly devised

or participated in a scheme to fraudulently deprive the public of the

right to honest services of the Defendant or a public official

through bribery and kickbacks,” and (2) that “the Defendant did so

with an intent to defraud the public of the right to the honest ser-

vices of the Defendant or a public official.” Both parties agreed that

“public official” meant “an officer or employee or person acting for

or on behalf any department, agency or branch of government,”

including “[s]tate and local government.” But the Government’s

proposed instruction had additional language: (1) “[a] ‘public offi-

cial’ need not be an employee of the government agency,” and (2)

“[a] person who acts for or on behalf of the government agency

pursuant to a contract or other business relationship can be a gov-

ernment ‘public official,’ just as an employee can be a ‘public offi-

cial.’” Shirley’s counsel objected to the additional language on the

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10 Opinion of the Court 24-10672

ground that it violated the Supreme Court’s decisions in Percoco v.

United States, 598 U.S. 319 (2023), and Ciminelli v. United States, 598

U.S. 306 (2023). The district court overruled Shirley’s counsel’s ob-

jection.

The Government then contended that the district court

should remove the phrase “the Defendant or” from the jury in-

structions on the first two elements of honest services fraud dis-

cussed in the preceding paragraph. The Government contended

that instead of saying that the jury had to find that Shirley “partici-

pated in a scheme to fraudulently deprive the public of the right to

honest services of the Defendant or a public official through bribery

and kickbacks,” the instructions on the first two elements should

simply say that the jury had to find that Shirley “participated in a

scheme to fraudulently deprive the public of the right to honest

services of a public official through bribery and kickbacks.” Shirley’s

counsel objected and suggested that “a public official” be changed

to “the public official[,]” arguing that the indictment clearly identi-

fied Greenberg as the only public official who accepted a bribe or

kickback. The district court agreed to remove the phrase “the De-

fendant or” from the jury instructions, as the Government re-

quested. However, the district court rejected Shirley’s counsel’s re-

quest to change “a public official” to “the public official” 1 because

1 Therefore, the final jury instructions on the first two elements of honest ser-

vices fraud were as follows: “The defendant can be found guilty of this crime

only if all of the following facts are proved beyond a reasonable doubt: One,

the defendant knowingly devised or participated in a scheme to fraudulently

deprive the public of the right to honest services of a public official through

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24-10672 Opinion of the Court 11

there was ample evidence that multiple people involved in the con-

spiracy, including Shirley and Ellicott, were public officials and be-

cause Shirley’s counsel could argue in his closing argument that

Greenberg was the only public official who solicited or accepted a

bribe or kickback.

Shirley’s counsel also asked the district court to instruct the

jury that it could draw an adverse inference against Ellicott based

on Ellicott’s invocation of his privilege against self-incrimination.

The district court refused to give the requested adverse inference

instruction, determining that it did not apply in criminal cases.

Closing Arguments

The Government’s theory in its closing argument was that

Shirley paid Greenberg a bribe and kickback for the Praetorian con-

tract. Shirley’s counsel’s theory was that Ellicott lied that the $6,000

was a bribe and kickback to avoid sex-trafficking charges and that

the $6,000 was actually a loan to Ellicott, who was broke from

spending all his money on sex. In its rebuttal to Shirley’s closing

argument, the Government suggested that Shirley could be a pub-

lic official, stating that “Shirley works for a government agency,

and he owes the public a duty of honest services.” The Govern-

ment also suggested that Shirley violated his “duty of honest ser-

vices” by marking up Praetorian’s purchase invoices for supplies

and services from third parties, arguing that “[Shirley was] already

bribery or kickbacks; [and] two, the defendant did so with an intent to defraud

the public of the right to the honest services of a public official . . .”

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12 Opinion of the Court 24-10672

being paid for coordinating third-party services. He's sending in-

voices that are representing that these are legitimate and honest

costs of the printing . . . . And it’s a lie. It’s not the price. That’s why

it’s illegal.”

Shirley’s counsel then argued that the Government’s posi-

tion that Shirley was a public official that owed the public a duty of

honest services first came up on rebuttal, which deprived Shirley

of the chance to address the jury on that issue. Shirley’s counsel did

not ask the district court for an opportunity to address that issue

with the jury. Shirley’s counsel only requested that the district

court instruct the jury that to find Shirley guilty of the substantive

honest services fraud counts, they must find that Shirley received a

bribe or kickback. The district court denied Shirley’s counsel’s re-

quest, finding that the Government’s rebuttal did not require that

additional instruction and that the jury instructions as finalized

were appropriate.

Sentencing

The jury convicted Shirley on all five counts. In preparation

for sentencing, the probation officer’s Presentence Investigation

Report (“PSI”) calculated a base offense level of 14 for honest ser-

vices fraud where the defendant was a public official, pursuant to

Section 2C1.1(a)(1) of the United States Sentencing Guidelines

(“U.S.S.G.”). The probation officer’s PSI increased that level by 14

under U.S.S.G. § 2C1.1(b)(2) based on a loss amount of $798,402.30,

consisting of $492.411.60 in Praetorian’s monthly consulting fees

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24-10672 Opinion of the Court 13

and related invoices, $43,990.72 in profits from the marked-up in-

voices, and $262,000 related to Shirley’s other relevant conduct.

Shirley’s counsel objected to the enhancements, arguing (1) that

Shirley was not a public official under U.S.S.G § 2C1.1(a)(1), and (2)

that the loss amount should not include the $412,500 monthly con-

sulting fees since Shirley earned that money doing legitimate work.

The district court overruled both objections.

The district court calculated a guideline range of 97 to 121

months. The district court varied downward and sentenced Shirley

to 87 months’ imprisonment as to Counts I through V, to be served

concurrently, followed by two years of supervised release.

II. STANDARD OF REVIEW

We review de novo the sufficiency of evidence to support a

conviction, viewing all evidence and drawing all inferences in the

light most favorable to the government. United States v. Langford,

647 F.3d 1309, 1319 (11th Cir. 2011). We also review de novo the

constructive amendment of an indictment claim, as well as the cor-

rectness of the jury instructions. United States v. Mayweather, 991

F.3d 1163, 1174 (11th Cir. 2021). However, we defer on questions

of the instructions’ phrasing and the refusal to give a requested jury

instruction absent an abuse of discretion. Id. A district court’s re-

fusal to deliver a defendant’s requested jury instruction “consti-

tutes reversible error only if the instruction (1) is correct, (2) is not

substantially covered by other instructions which were delivered,

and (3) deals with some point so vital that the failure to give the

requested instruction seriously impaired the defendant’s ability to

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14 Opinion of the Court 24-10672

defend.” Id. at 1175 (quotation marks omitted) (quoting United

States v. Ruiz, 59 F.3d 1151, 1154 (11th Cir. 1995)). Where trial coun-

sel did not timely object and preserve an issue for appeal, we review

only for plain error. United States v. Iriele, 977 F.3d 1155, 1176 (11th

Cir. 2020).

We review evidentiary rulings for an abuse of discretion.

United States v. Hasner, 340 F.3d 1261, 1274 (11th Cir. 2003). We also

review for abuse of discretion a district court’s ruling on a motion

to strike witness testimony when the witness invokes his Fifth

Amendment privilege against self-incrimination. United States v.

Ahmed, 73 F.4th 1363, 1373 (11th Cir. 2023).

We review de novo the district court’s interpretation and ap-

plication of the sentencing guidelines. United States v. Campbell, 765

F.3d 1291, 1301 (11th Cir. 2014). We review for clear error the sen-

tencing court’s factual findings. Id.

We review an ineffective-assistance-of-counsel claim de

novo, Nixon v. Newsome, 888 F.2d 112, 115 (11th Cir.1989), rev’d on

other grounds, 888 F.2d 112 (11th Cir. 1989), but “will not generally

consider claims of ineffective assistance of counsel raised on direct

appeal where the district court did not entertain the claim nor de-

velop a factual record.” United States v. Bender, 290 F.3d 1279, 1284

(11th Cir. 2002).

III. DISCUSSION

We address the issues on appeal sequentially. First, we ad-

dress the sufficiency of the evidence. Second, we address Shirley’s

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24-10672 Opinion of the Court 15

challenges to the district court’s jury instructions. Third, we ad-

dress Shirley’s evidentiary challenges. Fourth, we address whether

the district court erred in calculating Shirley’s base offense level and

loss amount. However, we decline to address Shirley’s ineffective

assistance of counsel claims.

A. Sufficiency of the Evidence

Shirley contends that there is insufficient evidence to sup-

port his convictions. Shirley challenges his conviction for conspir-

acy on the ground that there was insufficient evidence of an agree-

ment between Shirley and Greenberg. Shirley argues (1) that the

Government did not present a witness who could testify about a

conversation where Greenberg and Shirley expressly agreed to

commit honest services fraud and (2) that the consulting contract

was not evidence of a conspiracy because there was nothing im-

proper about the contract. Shirley also challenges the sufficiency of

the evidence for the four substantive charges of honest services

fraud on the ground that the Government did not show that Shirley

paid Greenberg $6,000 in exchange for an official action. Shirley

contends that the Government did not show (1) that Shirley actu-

ally paid any money to Greenberg since Ellicott testified that he did

not open the envelope which purportedly contained $6,000 inside

or (2) that the money Greenberg deposited in the bank was money

he received from Shirley. Shirley argues that the evidence, at most,

only showed that he paid Greenberg an unlawful gratuity, not a

bribe and kickback, because Shirley did not pay Greenberg the

$6,000 until long after the Office hired Praetorian.

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16 Opinion of the Court 24-10672

To succeed on his claim, Shirley must establish that, viewing

the evidence and drawing all inferences in favor of the Govern-

ment, no reasonable jury could have convicted him. United States

v. Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005). Viewing the evi-

dence in that light, we find there is sufficient evidence to support

Shirley’s convictions on all counts. Regarding the conviction for

conspiracy, a reasonable jury could have inferred that Greenberg

and Shirley conspired to commit honest services fraud based on the

evidence (1) that Greenberg hired Praetorian with a lucrative con-

tract, continued to employ its services despite the fact that Praeto-

rian performed few, if any, legitimate services for the Office, and

kept the Praetorian contract in place when other consulting con-

tracts were eliminated or reduced for budgetary reasons, (2) that

Shirley paid Greenberg $6,000 while working for the Office, (3) that

Shirley attempted to conceal this payment by entering into a fake

contract for an interest in Ellicott’s coin business and by later telling

Ellicott that Shirley and Greenberg would say the money was for

furniture that Shirley had taken from Greenberg’s campaign office,

and (4) that Greenberg also attempted to conceal the source of the

payment by dividing the $6,000 into two $3,000 deposits, adding

$10 to each, and depositing the funds into two separate bank ac-

counts. See United States v. Aunspaugh, 792 F.3d 1302, 1306–07 (11th

Cir. 2015) (finding sufficient evidence supporting conviction for

conspiracy to commit honest services fraud when owners of com-

pany paid kickbacks to public official for entering into a lucrative

contract with company and continuing to favor company over

other subcontractors); see also United States v. McNair, 605 F.3d 1152,

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24-10672 Opinion of the Court 17

1197 (11th Cir. 2010) (stating that “the extent to which the parties

went to conceal their bribes is powerful evidence of their corrupt

intent”).

That the Government did not present a witness who could

testify about a conversation between Greenberg and Shirley in

which they expressly agreed to commit honest services fraud does

not mean that the evidence was insufficient because there was am-

ple circumstantial evidence from which the jury could reasonably

infer the existence of a conspiracy. See Langford, 647 F.3d at 1319

(“[C]ircumstantial evidence may be used to establish an element of

a crime, even if the jury could draw more than one reasonable in-

ference from the circumstantial evidence, and in judging suffi-

ciency of the evidence, we apply the same standard whether the

evidence is direct or circumstantial.”); see also United States v. Sosa,

777 F.3d 1279, 1290 (11th Cir. 2015) (“[T]he very nature of conspir-

acy frequently requires that the existence of an agreement be

proved by inferences from the conduct of the alleged participants

or from circumstantial evidence of a scheme.” (quoting United States

v. Vernon, 723 F.3d 1234, 1273 (11th Cir.2013)). Shirley’s argument

that Praetorian’s consulting contract was not evidence of the con-

spiracy because it was not improper also fails because based on the

evidence, a reasonable jury could have found that the consulting

contract was not a legitimate arms-length agreement but rather a

sweetheart deal that simply furthered Shirley and Greenberg’s

scheme.

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18 Opinion of the Court 24-10672

Regarding Shirley’s convictions on the four counts of honest

services fraud, a jury could have reasonably inferred that the $6,000

was a bribe and kickback in exchange for an official act based on the

evidence (1) that the consulting contract was a very lucrative ar-

rangement under which Praetorian performed little, if any, legiti-

mate consulting services, (2) that after Shirley gave Ellicott the

$6,000, Praetorian changed its invoices for its monthly $12,500 fee

to reflect that the fee was a “strategic management” fee instead of

the original “transition fee,” and (3) that Greenberg did not cancel

the contract after the transition period was over, even as the

budget-challenged Office had to cancel or reduce other contracts

and even though Praetorian continued to perform few, if any, legit-

imate services for the Office. The Government did not need to pre-

sent direct evidence that Ellicott saw the $6,000 or that the money

Greenberg deposited was the $6,000 from Shirley for the jury to

reasonably infer that Shirley committed honest services fraud.

Shirley’s argument that Shirley did not pay Greenberg $6,000 until

long after the Office hired Praetorian also fails because the evidence

supported a reasonable inference that the $6,000 was paid in ex-

change for an official act: not only entering into the consulting con-

tract but also keeping it in place beyond the transition period de-

spite the Office’s budgetary constraints.

For these reasons, we reject Shirley’s challenges to the suffi-

ciency of the evidence.

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B. Challenges to Jury Instructions

Constructive Amendment of the Indictment

Shirley argues that the indictment was constructively

amended by the definition of “public official” in the jury instruc-

tions, which provided that “[a] public official need not be an em-

ployee of the government agency” and that “[a] person who acts

for or on behalf of the government agency pursuant to a contract

or other business relationship can be a government ‘public official,’

just as an employee can be a ‘public official.’” Shirley also argues

that the Government fundamentally changed its trial theory by sug-

gesting that Shirley was a public official when the Government

stated in its rebuttal to Shirley’s counsel’s closing argument that

“Shirley works for a government agency, and he owes the public a

duty of honest services” 2 and that Shirley violated his duty to pro-

vide honest services by marking up Praetorian’s purchase invoices

for supplies and services from third parties.

The Fifth Amendment prevents the government from try-

ing a defendant “on charges that are not made in the indictment

2 Shirley also argues that the Government’s statements in its rebuttal to

Shirley’s counsel’s closing argument that “all of the overwhelming evidence

. . . suggests to you that Mr. Shirley is guilty of honest services [fraud]” and

“Mr. Shirley did not provide honest services” further show that the Govern-

ment fundamentally changed its trial theory on rebuttal. However, these two

statements were made by the Government in its initial closing argument, not

its rebuttal. In addition, these statements simply emphasize that Shirley was

guilty of committing honest services fraud, a crime for which he was charged

in the indictment.

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20 Opinion of the Court 24-10672

against him” or to be convicted on theories that the indictment

“cannot fairly be read as charging[.]” Stirone v. United States, 361 U.S.

212, 217 (1960); see U.S. Const. amend. V (“No person shall be held

to answer for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury[.]”). A constructive

amendment occurs when an essential element of a charged offense

is altered to broaden the possible bases for conviction beyond those

contained in the indictment. United States v. Baldwin, 774 F.3d 711,

724 (11th Cir. 2014). An indictment can be constructively amended

by the government’s argument or through the district court’s jury

instructions. United States v. Zayas, 141 F.4th 1217, 1225–26 (11th

Cir. 2025). Constructive amendments to an indictment are reversi-

ble error per se. United States v. Behety, 32 F.3d 503, 508 (11th

Cir.1994). To determine whether a constructive amendment oc-

curred, we assess the district court’s instructions or government’s

argument “in context” to see whether the indictment was ex-

panded either literally or in effect. Id. at 508–09.

We find that neither the jury instructions nor the Govern-

ment’s argument constructively amended the indictment. While

the jury instructions did provide that a public official “need not be

an employee of the government,” when considered “in context”

with all of the evidence in the trial, the instructions as a whole did

not allow the jury to convict Shirley on the theory that he, rather

than Greenberg, was the public official that defrauded the public of

honest services because the instructions made clear that the public

official had to solicit or accept a bribe or kickback. The Govern-

ment’s theory throughout the trial was that Greenberg was the

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24-10672 Opinion of the Court 21

public official who solicited or accepted a bribe or kickback, and all

the evidence presented at trial was devoted to proving this theory.

The Government never contended nor offered evidence that

Shirley received or solicited a bribe or kickback in exchange for his

official action. Indeed, that would have been inconsistent with the

Government’s case. And while the Government did argue that the

invoice mark-ups, which Praetorian added to its purchase prices for

supplies and services from third parties, were improper, the Gov-

ernment did not argue these were bribes or kickbacks given to

Shirley. Further, reading the Government’s argument in rebuttal

in this context suggests that a reasonable interpretation of the Gov-

ernment’s arguments was that it was simply emphasizing that the

consulting contract, including the marked-up invoices, was an ille-

gal lucrative agreement under which Shirley, through Praetorian,

provided little or no “honest services” to the Office. Moreover, at

most, the Government’s comments would have caused a nonprej-

udicial ambiguity for the jurors, which does not amount to a con-

structive amendment of the indictment, given the context of the

trial evidence and the jury instructions. See id. at 509 (finding gov-

ernment’s statement in closing argument arguably advancing the-

ory different from that in indictment was not constructive amend-

ment when government’s entire theory at trial was same as that in

indictment).

Violation of Supreme Court Precedent

Shirley challenges the jury instruction’s definition of “public

official” on the grounds that (1) it was erroneous and overbroad in

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22 Opinion of the Court 24-10672

light of the Supreme Court’s decision in Percoco v. United States, 598

U.S. 319 (2023), and (2) it ran the risk of expanding federal criminal

jurisdiction to breach-of-contract cases traditionally left to the

states in defiance of Ciminelli v. United States, 598 U.S. 306 (2023).

“[D]istrict courts have broad discretion in formulating jury instruc-

tions provided that the charge as a whole accurately reflects the law

and the facts,” and we will not reverse a conviction based on a jury

charge unless “the issues of law were presented inaccurately, or the

charge improperly guided the jury in such a substantial way as to

violate due process.” United States v. Prather, 205 F.3d 1265, 1270

(11th Cir. 2000) (quoting United States v. Arias, 984 F.2d 1139, 1143

(11th Cir.1993)).

Here, the jury instruction’s definition of “public official” was

not erroneous, overbroad, or unconstitutionally vague as applied to

Shirley and did not expand federal criminal jurisdiction beyond the

text of the statute in violation of Ciminelli. Even if the jury could have

found that Shirley fell within the instructions’ definition of “public

official,” the instructions as a whole did not allow the jury to con-

vict Shirley on the theory that he, rather than Greenberg, was the

public official that defrauded the public of honest services because

the instructions as a whole made clear that anyone who falls within

its definition of “public official” still must accept or solicit a bribe

or kickback to fall within § 1346’s proscription. We conclude that

the definition of “public official,” as used here, did not violate

Percoco or Ciminelli.

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24-10672 Opinion of the Court 23

District Court’s Failure to Give Unlawful Gratuity Instruc-

tion

For the first time on appeal, Shirley argues that the district

court erred by sua sponte failing to instruct the jury regarding the

lesser offense of paying an unlawful gratuity. We review Shirley’s

claim for plain error. See Iriele, 977 F.3d at 1176.

We have not addressed whether paying an unlawful gratuity

is a lesser included offense of honest services fraud. Assuming that

it is, we have previously held that where a defendant fails to request

a jury instruction on a lesser included offense and fails to object to

the omission of such an instruction, it is not plain error for a district

court to fail to sua sponte give such an instruction. See United States

v. Chandler, 996 F.2d 1073, 1099 (11th Cir.1993). Therefore, Shirley

has not shown that a plain error occurred.

Request for Adverse Inference Jury Instruction

Shirley also contends that the district court erred by failing

to instruct the jury that it could make an adverse inference against

Ellicott’s invocation of his Fifth Amendment privilege against self-

incrimination in response to questions regarding his involvement

in sex trafficking.

As indicated above, a district court’s refusal to deliver a de-

fendant’s requested jury instruction constitutes reversible error

only if the instruction is legally correct on a point not substantially

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24 Opinion of the Court 24-10672

covered by the other instructions and so vital that refusing to de-

liver the instruction would seriously impair the defendant’s ability

to defend. Mayweather, 991 at 1175.

Shirley’s requested instruction fails on all three prongs. We

have previously held that the trier of fact may take an adverse in-

ference against a witness who invokes their Fifth Amendment priv-

ilege against self-incrimination in a civil action. Coquina Invs. v. TD

Bank, N.A., 760 F.3d 1300, 1311 (11th Cir. 2014). But in criminal cases,

“[n]either side has the right to benefit from any inferences the jury may

draw simply from the witness’s assertion of the [Fifth Amendment] priv-

ilege either alone or in conjunction with questions that have been put to

him.” United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir. 1974).3

That is because “reliable inferences from such conduct by a witness

do not ordinarily follow.” Id. Therefore, we find that Shirley’s re-

quested instruction was inappropriate. The requested instruction

was also substantially covered by other instructions to the jury, in-

cluding the instructions (1) that they should ask themselves

whether a witness had any particular reason not to tell the truth,

(2) to consider the fact that a witness has been convicted of a felony

in deciding whether to believe a witness, and (3) that an accomplice

witness like Ellicott who hopes to gain more favorable treatment

may have a reason to make a false statement in order to strike a

3 See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)

(holding that all decisions of the “old Fifth” Circuit handed down prior to the

close of business on September 30, 1981, are binding precedent in the Eleventh

Circuit).

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24-10672 Opinion of the Court 25

good bargain with the Government. The requested instruction also

did not deal with a point so vital that failure to give the requested

instruction seriously impaired Shirley’s ability to defend himself

since Ellicott only invoked his Fifth Amendment privilege in re-

sponse to questions that bore on collateral issues like his credibility.

In addition, as indicated above, Ellicott invoked his Fifth Amend-

ment privilege over 60 times. We agree with the district court that

Shirley’s counsel effectively made his point, and his client was not

prejudiced.

For these reasons, we find that the district court did not

abuse its discretion in refusing to give Shirley’s proposed adverse

inference instruction.

C. Evidentiary Challenges

Hearsay Challenge to Admission of Greenberg’s Statements

to Ellicott

Shirley challenges the trial court’s admission of Ellicott’s tes-

timony regarding Greenberg’s statements to Ellicott that Green-

berg “needed a loan because he was out of money,” that Greenberg

“was going to get the loan from . . . Shirley,” and that Greenberg

“needed [Ellicott] to go pick it up” on the grounds that they are

hearsay or, in the alternative, that no foundation for their admis-

sion under the co-conspirator exclusion to the hearsay rule was es-

tablished.

Hearsay is defined as a statement, other than one made by a

declarant while testifying at trial, offered in evidence to prove the

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26 Opinion of the Court 24-10672

truth of the matter asserted. However, statements of co-conspira-

tors made during the course and in furtherance of the conspiracy

are not hearsay if the government proves the existence of a con-

spiracy between the defendant and the hearsay declarant by a pre-

ponderance of the evidence. Hasner, 340 F.3d at 1274. We find that

Greenberg’s statements to Ellicott were properly admitted under

the co-conspirator exclusion to the hearsay rule because, prior to

the admission of Greenberg’s statements to Ellicott, the Govern-

ment presented sufficient evidence to prove by a preponderance of

the evidence that a conspiracy existed between Shirley and Green-

berg. See Fed. R. Evid. 801(d)(2)(E).

Confrontation Clause Challenge to Greenberg’s Statements

to Ellicott

Shirley further argues that admission of these statements vi-

olated his Confrontation Clause rights. The Sixth Amendment

guarantees a defendant the right “to be confronted with the wit-

nesses against him.” U.S. Const. amend. VI. This prohibits the in-

troduction of a witness’s testimonial statements. Crawford v. Wash-

ington, 541 U.S. 36, 53 (2004); see also United States v. Caraballo, 595

F.3d 1214, 1227 (11th Cir. 2010). A statement is testimonial when

its “primary purpose . . . is to establish or prove past events poten-

tially relevant to later criminal prosecution.” Davis v. Washington,

547 U.S. 813, 822 (2006). “Statements in furtherance of a conspir-

acy” are “by their nature [ ] not testimonial.” United States v. Hol-

land, 117 F.4th 1352, 1359 (11th Cir. 2024). Here, even if Green-

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24-10672 Opinion of the Court 27

berg’s statements to Ellicott were hearsay, they were not testimo-

nial because their primary purpose was not to establish past events

relevant to later criminal prosecution. Rather, they were state-

ments made in furtherance of the conspiracy. Thus, the admission

of the statements did not violate Shirley’s Confrontation Clause

rights.

Challenge to District Court’s Denial of Motion to Strike

Shirley also challenges the district court’s denial of his mo-

tion to strike Ellicott’s testimony after Ellicott invoked his privilege

against self-incrimination as to the underlying facts surrounding his

involvement in sex trafficking, arguing that Ellicott’s refusal to an-

swer questions violated Shirley’s Sixth Amendment right to con-

front witnesses through full cross-examination.

If a witness invokes his privilege against self-incrimination

during cross-examination, “all or part of that witness’s direct testi-

mony may be subject to a motion to strike.” Fountain v. United

States, 384 F.2d 624, 628 (5th Cir. 1967). The ultimate inquiry is

whether the defendant has been deprived of “the ability to test the

truth of the witness’s direct testimony.” Id.; see also United States v.

Darwin, 757 F.2d 1193, 1203 (11th Cir. 1985). Invoking the privilege

as to collateral matters does not require the striking of direct testi-

mony but invoking it as to direct matters does. United States v. Hirst,

668 F.2d 1180, 1183 (11th Cir. 1982).

The district court did not abuse its discretion by declining to

strike Ellicott’s testimony because Ellicott invoked his privilege

against self-incrimination only as to collateral matters on direct: his

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28 Opinion of the Court 24-10672

credibility and his motive to cooperate with the Government. See

id. (declining to strike testimony when invocation related to collat-

eral matters dealing with the witness’s credibility). Shirley’s coun-

sel’s cross-examination fairly allowed him to test Ellicott’s credibil-

ity by asking him about the fact that Ellicott cooperated in a sex-

trafficking case and the benefits he received from his cooperation.

So, there was no need for Shirley to explore the underlying facts of

the sex trafficking cases, questions about which Ellicott refused to

answer.

Nor did Ellicott’s invocation of his privilege against self-in-

crimination violate Shirley’s right to confront witnesses because it

did not deprive Shirley of the ability to support his theories of de-

fense, namely that Ellicott lied about the $6,000 being a bribe or

kickback, that the $6,000 was actually a loan from Shirley to El-

licott, and that Ellicott only implicated Shirley in the offense to

avoid prosecution for sex-trafficking. Ellicott testified about the

benefits he received from his cooperation, and he admitted that he

came to realize that the $6,000 was a bribe or kickback from the

Government’s prosecution of him for honest services fraud. El-

licott also testified about prior instances where he needed to bor-

row money from Shirley. Shirley’s counsel also cross-examined El-

licott about whether his meeting with Shirley in September 2019

was in fact a meeting to repay the $5,000 pursuant to the coin busi-

ness contract, not a meeting to discuss the Government’s investi-

gation into Greenberg. These questions all allowed Shirley to test

the truth of Ellicott’s direct testimony.

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24-10672 Opinion of the Court 29

For these reasons, Shirley was not deprived of his Sixth

Amendment right to confront Ellicott by virtue of his invocation of

his privilege against self-incrimination. Therefore, we find that the

district court did not abuse its discretion by declining to strike El-

licott’s testimony.

D. Sentencing Issues

Shirley challenges the district court’s calculation of his base

offense level, arguing that the district court erred in applying the

enhancement in U.S.S.G. § 2C1.1(a)(l) for defendants who are pub-

lic officials because he was merely an independent contractor, not

a government employee, and thus was not a public official. Shirley

also argues that the district court erred in including Praetorian’s

monthly consulting fees in the loss amount calculation, because

those fees were legitimately earned. We reject both arguments.

Base Offense Level

The base offense level under U.S.S.G. § 2C1.1, which ad-

dresses offenses including honest services fraud, is 12 unless the de-

fendant is a public official, in which case it is 14. U.S.S.G. § 2C1.1(a).

The Sentencing Guidelines state that the term “public official”

“shall be construed broadly[,]” id., comment. (n.1), and that the

term includes in relevant part:

An officer or employee or person acting for or on be-

half of a state or local government, or any depart-

ment, agency, or branch of government thereof, in

any official function, under or by authority of such

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30 Opinion of the Court 24-10672

department, agency, or branch of government, or a

juror in a state or local trial.

Id.

Here, the district court did not clearly err in applying the

base offense level of 14 for defendants who are public officials.

Shirley’s asserted independent-contractor status is irrelevant to de-

termine whether he qualifies as a public official for sentencing be-

cause the application notes for U.S.S.G. § 2C1.1 explain that a “pub-

lic official” need not be an “officer or employee.” See id. Instead,

Shirley’s public-official status depends on his responsibilities and ac-

tions with respect to the Office even as an independent contractor.

See id. As part of Praetorian’s responsibilities for the Office, Shirley,

through Praetorian, purportedly provided services related to

Greenberg’s transition into the Office. These included strategic

planning, implementing and executing those plans, as well as

providing technological review and guidance. In addition, Praeto-

rian purchased substantial supplies and services from third parties,

thereby effectively deciding how the Office would spend over

$220,000 of its funds. Therefore, given that the term “public offi-

cial” should be construed broadly and focus on whether Shirley was

acting on behalf of a government body under that body’s authority,

in an official capacity, the district court did not clearly err in deter-

mining that Shirley was a public official for purposes of U.S.S.G. §

2C1.1(a).

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24-10672 Opinion of the Court 31

Loss Amount

Under U.S.S.G. § 2B1.1(b)(l)(H)–(I), a defendant is subject to

a 14-level enhancement if his offense results in a loss amount of

more than $550,000 and less than $1,500,000. The Government has

the burden to prove the losses attributed to the defendant by a pre-

ponderance of the evidence. United States v. Cavallo, 790 F.3d 1202,

1232 (11th Cir. 2015). The Sentencing Guidelines do not require a

precise determination of loss, only “a reasonable estimate of the

loss, given the available information.” Id. (quoting United States v.

Barrington, 648 F.3d 1178, 1197 (11th Cir. 2011)).

The district court did not clearly err by including the

$412,500 in monthly consulting fees in the loss amount. Where a

defendant’s conduct “was permeated with fraud, a district court

does not err by treating the amount that was transferred from the

victim to the fraudulent enterprise as the starting point for calcu-

lating the victim’s pecuniary harm.” Campbell, 765 F.3d at 1305. The

evidence at trial demonstrated that Shirley’s conduct with the Of-

fice was permeated with fraud. Immediately after working on

Greenberg’s election campaign, Shirley formed Praetorian and en-

tered into a lucrative consulting contract with the Office, Praeto-

rian’s sole client. As Praetorian, however, Shirley either delegated

or disregarded its contractual responsibilities. In September 2017,

Shirley purportedly paid Greenberg a $6,000 bribe to keep Praeto-

rian’s contract in place even though the Office’s transition period

was over. The Office maintained the Praetorian contract through

September 2019 even though the Office had previously cancelled

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32 Opinion of the Court 24-10672

or reduced other consulting contracts due to tight budgetary con-

straints and even though Praetorian performed few, if any, legiti-

mate services for the Office. Given these facts, the district court did

not err by including the $412,500 in monthly consulting fees in its

starting point for calculating the loss amount.

Once that starting point for calculating the Office’s loss was

established, the burden shifted to Shirley to show that Praetorian

provided any legitimate value to the Office. See United States v. Maz-

kouri, 945 F.3d 293, 304 (5th Cir. 2019); see also United States v. Al-

phas, 785 F.3d 775, 784 (1st Cir. 2015) (finding that where defend-

ant’s claims are “demonstrably rife with fraud,” the burden of pro-

duction shifts to defendant, “who must offer evidence to show (if

possible) what amounts represent the legitimate claims”). Shirley

did not meet his burden. The only identifiable evidence showed

that the only meaningful service Praetorian performed for the Of-

fice was purchasing supplies and services from third parties, for

which Shirley submitted inflated invoices to the Office. In the ab-

sence of evidence from Shirley that Praetorian provided any legiti-

mate value to the Office, the district court may reasonably include

the full amount of unearned consulting fees in the intended loss.

Therefore, the district court did not clearly err in including the

$412,500 from the monthly consulting fees in the loss amount. See

Mazkouri, 945 F.3d at 304.

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24-10672 Opinion of the Court 33

E. Ineffective Assistance of Counsel Claims

Shirley also argues for the first time on appeal that his trial

counsel was ineffective for three reasons: (1) failing to object to sev-

eral leading questions that the Government asked Ellicott, (2) fail-

ing to move for acquittal on the ground that the evidence intro-

duced at trial could only have supported a conviction for the lesser

included offense of paying an unlawful gratuity, not honest services

fraud, and (3) failing to argue for a jury instruction on the offense

of paying an unlawful gratuity.

We find that the record is not sufficiently developed for us

to consider Shirley’s claims. See Bender, 290 F.3d at 1284. That is be-

cause the record does not reflect counsel’s strategic reasoning for

making his decisions during trial. In such a case, “the preferred

means for deciding [these ineffective assistance of counsel claims]

is through a 28 U.S.C. § 2255 motion.” See United States v. Patterson,

595 F.3d 1324, 1328 (11th Cir. 2010). Therefore, we decline to con-

sider Shirley’s ineffective assistance of counsel claims at this time.

IV. CONCLUSION

We AFFIRM Shirley’s conviction and sentence.