     Case: 09-10905     Document: 00511255466          Page: 1    Date Filed: 10/06/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           October 6, 2010
                                       No. 09-10905
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ROY DAVID WILLIAMS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 2:09-CR-33-1


Before DAVIS, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
        A jury found Roy David Williams guilty on 29 counts stemming from a
scheme to defraud the Department of Energy by overbilling one of its
contractors, B & W Pantex (Pantex), for work performed by Williams’s company,
WAATTS, Inc. (WAATTS), at a nuclear facility operated by Pantex and funded
by the Department of Energy. Specifically, Williams was convicted of wire fraud,
producing false invoices billing Pantex for unjustified per diems with the
purpose of defrauding the United States, presenting false time sheets to a



       *
        Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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United States agency, and receiving public money knowing it was obtained by
fraud. He was sentenced to a total of 30 months of imprisonment, to be followed
by a total of 5 years of supervised release, and ordered to pay $168,848 in
restitution.
      Williams’s defense in the district court, and his primary contention on
appeal, was that the three contracts between Pantex and WAATTS were “fixed-
price” contracts, which he argued meant that WAATTS was entitled to receive
progress payments based on the percent of the projects WAATTS had completed
and, once the work was complete, it was entitled to the full amount of the
contract price. Thus, in Williams’s view, even if he provided Pantex with false
invoices and time sheets, he was not guilty because he received only what he was
entitled to under the contracts.
      Williams first argues, as he did in the district court, that the dispute in
this case amounts to a disagreement between WAATTS and Pantex over the
terms of their contracts, that the contracts were not federal procurement
contracts, and thus that the federal courts lack jurisdiction. However, the
Government did not allege that Williams is liable to it under a theory of contract
law. Rather, this is a criminal proceeding alleging violations of federal criminal
statutes. Federal district courts have jurisdiction over all cases in which a
defendant is charged with a federal offense. 18 U.S.C. § 3231; United States v.
Clark, 577 F.3d 273, 281 (5th Cir.), cert denied, 130 S. Ct. 809 (2009). To the
extent that Williams argues that the indictment was insufficient because it did
not allege that WAATTS had a contract with the government, he still cannot
succeed because the existence of a government contract is not an element of any
of the offenses that he was charged with. See 18 U.S.C. §§ 287, 494, 641, 1343.
      Williams also challenges the district court’s failure to grant his request to
instruct the jury that the contracts were fixed-price contracts and its decision to
allow a Pantex employee to testify as to the contracts’ meaning, contending that
construction of the unambiguous contracts was a question of law for the judge

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to determine. As for the jury instruction, Williams must show that there was a
sufficient evidentiary foundation for his proposed instruction and that the
district court abused its discretion in refusing to give it. See United States v.
Reagan, 596 F.3d 251, 255 (5th Cir. 2010). Williams cannot prevail, however,
because he cannot surmount the first hurdle by showing that the contracts were
fixed-price contracts.     Williams contends that the Federal Acquisition
Regulations, laid out in the Code of Federal Regulations, apply to the contracts
between Pantex and WAATTS and require that all government contracts “must
fall   withing   two   mandated   categories”—fixed-price   contracts   or   cost-
reimbursement contracts. See 48 C.F.R. §§ 16.101(b), 16.201. However, he
simply presumes that the contracts are governed by the Federal Acquisition
Regulations without presenting any evidence that the contracts are government
acquisition contracts. To the contrary, all of the evidence supports the opposite
conclusion. The United States is not a party to the contracts. Cf. 48 C.F.R.
§§ 1.104, 2.101 (defining an acquisition that is subject to the federal rules and
as a contract for supplies and services “by and for the use of the Federal
Government”). Indeed, Pantex’s Procurement Manuel explains that “Pantex’s
procurements are not Federal procurements, and are not directly subject to the
Federal Acquisition Regulations (FAR) in 48 CFR.” Furthermore, the contracts
and the documents incorporated into the contracts establish that Pantex was not
required to pay periodic progress payments based on the percentage of the
project WAATTS completed nor was it was obligated to pay the entire contract
price regardless of the amount of time WAATTS employees worked. To the
contrary, Pantex and WAATTS specifically agreed that WAATTS would be paid
only for the time that its employees actually worked on the projects.
       As for the challenged testimony, Williams argues that, though the witness
was called to provide fact testimony, her testimony regarding the nature of the
contract amounted to impermissible expert testimony about an issue of law—the
proper construction of a contract. Williams objected to the testimony at trial;

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thus, we review the district court’s decision to allow it for abuse of discretion.
United States v. McMillan, 600 F.3d 434, 456 (5th Cir. 2010). The testimony was
admissible. As a lay witness, the Pantex employee was permitted to provide
opinions based on her personal knowledge, though she was not permitted to
opine on subjects that required technical or specialized knowledge. See F ED. R.
E VID. 701, 702; McMillan, 600 F.3d at 456.         She testified that she was
responsible for managing the contracts with WAATTS and so she had personal
knowledge of each party’s responsibilities under them.         In describing the
contracts and invoicing procedures, she provided no expert opinion that required
specialized knowledge of contract law. She merely explained how the parties
operated under the contract and testified that the contracts were target-price
contracts (and not fixed-price contracts) based on her knowledge of the contracts
as the contract manager and her observation of the parties’ performance. Cf.
United States v. Riddle, 103 F.3d 423, 428-29 (5th Cir. 1997) (explaining that a
lay witnesses may express opinions that required specialized knowledge where
the testimony was based on personal experience). Moreover, her testimony that
the contracts were target-price contracts that required Pantex to pay only for the
amount of time WAATTS employees spent working on the projects was
consistent with conclusions that an ordinary person could draw from reviewing
the contracts and the documents incorporated into them. See United States v.
Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008).
      Finally, Williams advances three arguments that amount to challenges to
the sufficiency of the evidence used to convict him. After trial, Williams filed a
timely motion for acquittal based in part on his argument that the evidence was
insufficient to support his conviction.     See Fed. R. Crim. P. 29(c).     In the
alternative, he requested a new trial. The district court denied the motion. Id.
at 848-57.    Williams, thus, has preserved his sufficiency-of-the-evidence
challenge for appellate review. See United States v. Villareal, 324 F.3d 319, 322
(5th Cir. 2003). Accordingly, we review the issue de novo, viewing the evidence

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and drawing all reasonable inferences in the light most favorable to the verdict,
to determine whether a rational trier of fact could have found Williams guilty.
See United States v. Ollison, 555 F.3d 152, 158 (5th Cir. 2009). We review the
decision to deny a new trial for abuse of discretion. See United States v. Arnold,
416 F.3d 349, 360 (5th Cir. 2005).
      Williams contends that the evidence was insufficient to convict him of the
charges stemming from his submission of false time sheets and invoices,
asserting that he received no more that he was entitled to under the terms of the
contracts and thus that any false statements he made were immaterial.
Williams’s argument fails because witness testimony and documentary evidence
established that the contracts were target-price contracts under which WAATTS
was to be paid for the amount of time its employees worked plus allowable per
diems and was not entitled to payment of the contract price absent proper
invoices that this amount had been earned. Thus, the evidence was sufficient
for the jury to conclude that in claiming unjustified per diems, Williams
presented false claims for payment, and in altering time sheets, he falsified
writings for the purposes of defrauding the United States.
      Next, Williams argues that the Government failed to link the evidence to
the particular counts related to two of the contracts, but he is wrong. For each
count, the Government listed on the indictment the date of the offense and the
relevant invoice number, and at trial it offered into evidence the invoices and
proof that Pantex paid them. For each charge related to the per diems, the
Government submitted evidence that the relevant invoices contained charges for
unjustified per diems, and for each charge related to the forged time sheets, the
Government submitted evidence that Williams had altered employee time sheets
that corresponded to each invoice or billed for his own time when he was not
working on authorized projects. Moreover, a criminal investigator and special
agent from Department of Energy and a Pantex employee testified regarding
each of the invoices, explaining why each was fraudulent.

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      Finally, Williams argues that the evidence was insufficient to support the
jury’s finding relating to the amount of the loss, because, in his view, the
Government failed to prove that one of WAATTS’s employees, Mark Armstrong,
was not entitled to per diems. WAATTS employees who lived more than 45
miles away from the Pantex facility were entitled receive a per diem from Pantex
for each day they worked at the facility. The facility is within 45 miles of
Amarillo, Texas. The evidence established that Armstrong received per diems
based on his false representation to Pantex that he lived in Leonard, Texas; the
investigation showed that he provided what seems to be his mother-in-law’s
address.   Armstrong testified that he had a home in Amarillo and the
Department of Energy investigator confirmed that Armstrong had lived in
Amarillo since around 1994. Though Armstrong also testified that he had a
house in Georgia, the evidence that Armstrong lied about his address combined
with the testimony of the investigator that Armstrong lived in Amarillo was
sufficient for the jury to conclude that Armstrong was not entitled to a per diem.
      Accordingly, the judgment of the district court is AFFIRMED.




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