Argued: December 12, 2018
from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:12-cr-00021-JLK-2)
Taylor Monday, GENTRY LOCKE, Roanoke, Virginia, for
Appellant. Jeffrey M. Smith, UNITED STATES DEPARTMENT OF
Washington, D.C., for Appellee.
M. Lugar, GENTRY LOCKE, Roanoke, Virginia, for Appellant.
A. Benczkowski, Assistant Attorney General, Matthew S. Miner,
Deputy Assistant Attorney General, Caitlin R. Cottingham,
Trial Attorney, Fraud Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Thomas T. Cullen, United States
Attorney, Roanoke, Virginia, Heather L. Carlton, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlottesville, Virginia, for Appellee.
AGEE, DIAZ, and HARRIS, Circuit Judges.
in the Western District of Virginia convicted William R.
Whyte of three counts of major fraud against the United
States, in violation of 18 U.S.C. § 1031; three counts
of wire fraud, in violation of 18 U.S.C. § 1343; and
three counts of presentation of false or fraudulent claims,
in violation of 18 U.S.C. § 287. Asserting various
errors by the district court, Whyte asks this Court to
reverse his convictions. For the reasons that follow, we affirm
the judgment of the district court.
case involves parallel False Claims Act ("FCA"), 31
U.S.C. § 3729 et seq., and criminal proceedings
stemming from Whyte's failure to provide multinational
forces in Iraq with contracted-for armored vehicles. In
December 2005, a U.S. Army officer- who was in Iraq as part
of the Joint Contracting Command-Iraq (the
"JCC-I")- undertook the acquisition of armored
vehicles that would be suitable for transporting senior Iraqi
officials. Armet Armored Vehicles, Inc. ("Armet"),
an American company owned and run by Whyte,  received a
contract in April 2006 to provide twenty-four armored
vehicles to the JCC-I in exchange for approximately $4.8
million. Armet President Skinner and U.S. Air Force Master
Sergeant Michael Hollon-as "contracting officer" on
behalf of the U.S.-signed the contract, J.A. 3263, which
stated that it was issued by the JCC-I and that payment would
be made by the U.S. Army Corps of Engineers (the
"USACE") Finance Center.
contract further specified a delivery timeline: four vehicles
were to be delivered within forty-five days of the award and
the remaining twenty no later than July 31, 2006. In June
2006, the JCC-I awarded Armet a second contract for eight
more armored vehicles, at the cost of approximately $1.6
million. These additional vehicles were to be delivered no
later than ninety days from the second award date.
Altogether, Armet was to provide thirty-two vehicles with the
last set to be delivered by mid-September 2006.
than a month after the first contract had been signed, Armet
began requesting progress payments. The JCC-I initially
denied these requests as contrary to the terms of the
contract, which specified payment upon delivery. Nonetheless,
following the delivery of the first four vehicles in August
and October 2006,  Armet continued requesting such payments,
noting at one point that a cash infusion was necessary for
Armet to complete the remaining twenty-eight vehicles. Armet
also sent emails stating it had "alternative business
decisions to consider" if it did not receive such
payments. J.A. 3415, 3417. In December 2006, the JCC-I issued
a progress payment to Armet of $824, 531.
the payment, Armet delivered only two of the remaining
twenty-eight vehicles over the next year. Instead,
Whyte-while continuing to provide estimated delivery
schedules to the JCC-I-directed Armet to prioritize other,
higher-paying contracts. By March 2008, the JCC-I had
terminated its contracts with Armet. As of that date, Armet
had delivered six of the thirty-two vehicles and had been
paid $2 million in delivery and progress payments.
the DOD and the Federal Bureau of Investigation (the
"FBI") had learned that Armet's vehicles were
potentially deficient and did not meet the contract
specifications. Toward the end of 2006, Skinner had become a
confidential informant for the FBI in relation to a separate
national security investigation. Through him, the FBI had
discovered armoring and ballistic weaknesses in the vehicles.
The FBI informed the DOD of the defects. In response, the DOD
began pulling the vehicles from the field. Ballistics and
explosives testing by the FBI in 2008 confirmed significant
deficiencies in the Armet vehicles. For example, at least
three test shots "penetrated or perforated the roof of
the [vehicle]." J.A. 1250. A test explosion punctured
parts of the vehicle that held motor oil and transmission
fluid, as well as three of four tires, and also caused pieces
of metal to enter the interior of the vehicle. And every test
shot penetrated the gunner turret, which was fabricated with
only one sheet of steel despite a contract specification of
2012, a federal grand jury in the Western District of
Virginia indicted Whyte on twelve counts of major fraud
against the U.S., wire fraud, and presentation of false
claims. The Government requested Whyte's
extradition from Canada, which Whyte opposed.
October 2012, Skinner filed a separate FCA civil suit in the
Western District of Virginia as relator against Whyte and
Armet. See United States ex rel. Skinner v. Armet Armored
Vehicles, Inc., No. 4:12cv00045, 2015 WL 6446226 (W.D.
Va. Oct. 16, 2012). The Government opted not to intervene,
and the case went to trial in June 2015. Skinner's
case-in-chief included his own testimony, a videotaped
deposition of Whyte, and deposition testimony from a former
Armet consultant. The jury returned a verdict in favor of
Armet and Whyte, finding Whyte had not presented fraudulent
claims for payment for the vehicles.
was eventually extradited from Canada to the U.S. in
September 2016. He then sought to dismiss the Indictment,
contending any criminal proceeding was collaterally estopped
by the FCA action. The district court rejected this argument,
concluding the Government was not precluded from filing the
Indictment because it could not have been a party to an FCA
suit in which it had not intervened: "The [G]overnment
is not bound by the findings of a jury in which the
[G]overnment was only a party in interest with no authority
to participate in the action." United States v.
Whyte, 229 F.Supp.3d 484, 491 (W.D. Va.
Whyte filed a second motion to dismiss the Indictment on the
grounds that the Government could not prove the legal
elements of the major fraud and false claims charges, which
require that the Government or one of its agencies be the
victim of the fraud. Whyte argued that even if he had engaged
in the charged conduct, neither the Government nor one of its
agencies had been defrauded because Armet had contracted with
the JCC-I-which fell under the multinational MNF-I-and not a
Government agency. The district court also denied this
motion, concluding that payment of Government funds was
sufficient to establish the Government as a party to the
contract for the purposes of the major fraud and false claims
a September 2017 trial, the jury convicted Whyte on all nine
counts. The district court sentenced Whyte to seventy
months' imprisonment on the major fraud and wire fraud
counts and sixty months' imprisonment on the false claims
counts, to be served concurrently.
now appeals and seeks reversal of his convictions on three
grounds. Ground One contends that the district court
erroneously concluded that the Government was not precluded
from prosecuting Whyte for the same conduct as alleged and
adjudicated in the FCA action. Ground Two asserts that the
Government could not prove the elements of the fraud counts
because a Government agency was not a party to the contract.
And Ground Three contends that the district court deprived
Whyte of his due process right to a fair trial because of
allegedly improper comments by the Government. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291.
first consider whether Whyte's criminal prosecution was
collaterally estopped by the prior FCA action. This Court
reviews "de novo a district court's refusal to
dismiss an indictment assertedly barred by collateral
estoppel." United States v. Ruhbayan, 325 F.3d
197, 201 (4th Cir. 2003). The district court's factual
findings made "in connection with such a ruling are
reviewed for clear error." Id.
following elements determine whether collateral estoppel bars
a criminal prosecution: (1) whether the issue in question is
identical to the issue adjudicated in the prior proceeding;
whether the issue was (2) actually and (3) necessarily
determined in the prior adjudication; (4) "whether the
resulting judgment settling the issue was final and valid[;]
and (5) whether the parties had a full and fair opportunity
to litigate the issue in the prior proceeding."
United States v. Fiel, 35 F.3d 997, 1006 (4th Cir.
1994). In order for a prosecution to be barred under
Fiel, "each of the five elements must be
resolved in the movant's favor." Ruhbayan,
325 F.3d at 202.
there is some dispute among the parties as to the resolution
of the first four factors, we can resolve this case by
discussing only the fifth factor: did the Government have a
full and fair opportunity to litigate the issue in the prior
proceeding? Although this factor would typically be resolved
by determining whether the Government was a party to the
prior proceeding, our analysis is complicated under the FCA
by the Government's party status to an FCA action in
which it did not intervene. Therefore, our resolution of this
issue depends on what impact, if any, the Government
declining to intervene in an FCA action has on determining
whether the Government was a party to the prior FCA action.
Whyte argues that because (1) a relator brings each FCA
action on behalf of the Government and (2) the FCA accords a
number of unique statutory powers to the Government, the
Government is necessarily a party to every FCA case. The
Government contends that it cannot be considered a party-with
a full and fair opportunity to ...