United States v. McBride, 94 F.4th 1036

Whitney McBride, through her company Odyssey International Inc., fraudulently obtained a $99 million government contract for Fort Drum, NY, by falsely representing HUBZone eligibility.
After bid protests and an investigation, McBride was indicted and convicted on charges including conspiracy to commit wire fraud, wire fraud, major fraud against the United States, and making false declarations.
McBride challenged her convictions on appeal, referencing the Supreme Court’s post-conviction decision in Ciminelli v. United States, which invalidated the "right to control" theory of fraud.
She argued also that the jury instructions for making a false declaration were erroneous and that the government failed to prove her statement false.
The trial court had adopted jury instructions proposed by both the government and McBride; McBride’s challenges focused particularly on instructions she herself proposed or failed to object to during trial.
The Tenth Circuit ultimately affirmed the convictions, focusing on procedural defaults (such as invited error and failure to argue plain error on appeal) rather than the substance of McBride’s claims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ciminelli/Post-trial change in law	Convictions should be vacated as jury instructions did not reflect Ciminelli's restriction to property loss	Invited error precludes review; McBride proposed the instruction	Waived by invited error doctrine; supervening-decision exception inapplicable here
Jury instruction—scheme to defraud	Instruction allowed conviction based on harm to policy, not property	Instruction tracked then-prevailing law, and was jointly proposed	Court denied relief; instruction not preserved for review
Jury instruction—Count V (false declaration)	Instruction misstated law and paraphrased statement; government failed to prove falsity	McBride failed to argue standard of review; issues were unpreserved	Unpreserved claims waived for failure to argue plain error; preserved claims dismissed
Appellate procedural defaults	(Implicit) Failure excused by law change (Ciminelli); preserved below suffices	Failure to state/argue standard of review waives appellate claims	Appellate arguments forfeited/waived for failure to comply with appellate procedure rules

Ciminelli v. United States, 598 U.S. 306 (2023) (Supreme Court rejected the "right to control" theory as a basis for federal wire fraud)
United States v. Deberry, 430 F.3d 1294 (10th Cir. 2005) (invited error prevents appellate review where party proposed challenged task below)
United States v. Jereb, 882 F.3d 1325 (10th Cir. 2018) (plain error is required for unpreserved jury instruction issues)
Kelly v. United States, 140 S. Ct. 1565 (2020) (scheme to defraud under federal law must have money or property as its object)
United States v. Lamirand, 669 F.3d 1091 (10th Cir. 2012) (failure to argue plain error in appellate briefing waives the issue)