UNITED STATES COURT OF APPEALS March 5, 2024

FOR THE TENTH CIRCUIT Christopher M. Wolpert Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. Nos. 22-4119 & 22-4122 WHITNEY McBRIDE, and ODYSSEY INTERNATIONAL, INC.,

Defendant - Appellants.

Appeals from the United States District Court for the District of Utah (D.C. No. 2:20-CR-00287-DBB) _________________________________

Matthew R. Lewis, Kunzler Bean & Adamson, PC, Salt Lake City, Utah, for Defendant- Appellant.

Nathan H. Jack, Assistant United States Attorney (Trina A. Higgins, United States Attorney, with him on the brief), Office of the United States Attorney, Salt Lake City, Utah, for Plaintiff-Appellee. _________________________________

Before EID, SEYMOUR, and KELLY, Circuit Judges. _________________________________

SEYMOUR, Circuit Judge. _________________________________

Whitney McBride was tried and convicted for five offenses based on fraudulent

conduct in obtaining a government contract via her company Odyssey International Inc. Appellate Case: 22-4119 Document: 010111009992 Date Filed: 03/05/2024 Page: 2

(“Odyssey”) to service the Army base at Fort Drum, New York. On appeal, McBride

argues that her convictions for conspiracy, wire fraud, and major fraud should be vacated

based on Ciminelli v. United States, 598 U.S. 306 (2023), which was decided by the

Supreme Court after her conviction. She further argues her conviction for making a false

declaration should be vacated due to errors in the jury instructions. Because of McBride’s

numerous procedural errors, we affirm.

Background

In 2011, Whitney McBride and Odyssey won a $99 million government contract

servicing the Army base at Fort Drum. To bid on and win the contract, however, Odyssey

was required to be HUBZone-eligible.1 Odyssey was not. Undeterred, McBride made it

appear as though Odyssey was HUBZone-eligible by cooking the books and fudging the

numbers.

McBride’s fraudulent practices did not go unnoticed by the losing bidders, who

submitted bid protests against Odyssey. To defeat an allegation of common ownership

between Odyssey and the incumbent contractor, Cadence, McBride submitted a letter to

the Small Business Administration denying any relationship between Odyssey and

Patrick Hendrickson, an attorney serving as Cadence’s CAO who had done prior work for

Odyssey on another bid. Odyssey subsequently defeated the bid protests and began work.

1 A company is HUBZone-eligible if at least thirty-five percent of the company’s employees live in a Historically Underutilized Business Zone.

2 Appellate Case: 22-4119 Document: 010111009992 Date Filed: 03/05/2024 Page: 3

Federal agents eventually investigated Odyssey and McBride, uncovering their

fraud. In August 2020, Odyssey and McBride were indicted for conspiracy to commit

wire fraud, wire fraud, and major fraud against the United States. When prosecutors

sought to interview Hendrickson as part of their investigation, McBride filed a

declaration claiming that her prior letter denying an attorney-client relationship between

Odyssey and Hendrickson was false and that Hendrickson had been an attorney for

Odyssey.2 This led the government to bring an additional charge against McBride for

making a false declaration before a court.3

The case proceeded to trial where the parties proposed joint jury instructions.

Relevant here, the district court

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