                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 11-2180


UNITED STATES OF AMERICA ex rel. MELAN DAVIS; UNITED STATES
OF AMERICA ex rel. BRAD DAVIS,

                 Plaintiffs - Appellants,

           v.

U.S. TRAINING CENTER INCORPORATED, f/k/a Blackwater Lodge
and Training Center, Incorporated,

                 Defendant – Appellee,

           and

BLACKWATER SECURITY CONSULTING, LLC; BLACKWATER ARMOR AND
TARGETS, LLC; BLACKWATER LOGISTICS, LLC; BLACKWATER CANINE;
RAVEN DEVELOPMENT GROUP LLC; GREYSTONE LIMITED; THE PRINCE
GROUP, LLC; XE SERVICES LLC, f/k/a EP Investments, LLC,
d/b/a   Blackwater  Worldwide;   ERIK   PRINCE;  BLACKWATER
AIRSHIPS, LLC,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   T. S. Ellis, III, Senior
District Judge. (1:08-cv-01244-TSE-TRJ)


Argued:   October 25, 2012                   Decided:   December 6, 2012


Before MOTZ and KEENAN, Circuit Judges, and James K. BREDAR,
United States District Judge for the District of Maryland,
sitting by designation.
Affirmed by unpublished opinion.        Judge Keenan    wrote   the
opinion, in which Judge Motz and Judge Bredar joined.


ARGUED: Susan L. Burke,       BURKE PLLC, Washington, D.C., for
Appellants. David William    O'Brien, Brian T. McLaughlin, CROWELL
& MORING, LLP, Washington,   D.C., for Appellee. ON BRIEF: Susan
M. Sajadi, BURKE PLLC,        Washington, D.C., for Appellants.
Richard L. Beizer, CROWELL   & MORING, LLP, Washington, D.C., for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                 2
BARBARA MILANO KEENAN, Circuit Judge:

      Relators Brad Davis and Melan Davis (Relators) brought this

qui tam lawsuit under the False Claims Act, 31 U.S.C. §§ 3729-

3733, against U.S. Training Center, Inc. (USTC), formerly known

as    Blackwater    Worldwide     Lodge    and     Training    Center,   Inc.

(Blackwater), 1    and    several    other     defendants      (collectively,

Defendants). 2     The Relators, a married couple formerly employed

by    USTC,   alleged     that    Defendants      overbilled    the   federal

government and committed other acts of fraud in connection with

two   contracts    that   USTC   entered   into   with   the   Department   of

Homeland Security (DHS), and the Department of State (the State

Department), respectively.

      The district court granted summary judgment in favor of

USTC with respect to the contract with DHS, which required USTC

to provide security services in support of DHS’ efforts in 2005

to assist affected areas in the aftermath of Hurricane Katrina



      1
       We refer to the principal defendant as USTC, although we
note that the company was known as Blackwater during the events
that gave rise to the Relators’ complaint.
      2
       The other parties named as defendants in the Relators’
second amended complaint were Erik Prince, the founder and CEO
of Blackwater, and several corporate entities affiliated with
Blackwater, including Blackwater Security Consulting, LLC,
Greystone Limited, The Prince Group LLC, and Xe Services LLC.
These parties were dismissed from the lawsuit by the district
court, such that the only defendant relevant to this appeal is
USTC.



                                      3
(the Katrina contract).            Relators appeal from the court’s grant

of summary judgment with respect to the Katrina contract.

       The   district      court     allowed      two   of      Relators’        claims

concerning    the    State    Department       contract,       under     which    USTC

provided security services in Iraq and Afghanistan in connection

with the United States’ military presence in those areas (the

Protective Services contract), to proceed to a jury trial.                         The

jury    rendered    a   verdict      in   favor    of    USTC       on   the     claims

presented.     The Relators sought a new trial on the basis that

one of USTC’s trial witnesses allegedly committed perjury.                         The

district court denied the motion.

       On appeal, Relators argue that they are entitled to a new

trial    because     the     district     court     made       certain     erroneous

evidentiary    rulings,       prohibiting       Relators        from     introducing

evidence that would have bolstered their claims and would have

undermined    USTC’s    defenses.         Relators      also    appeal     from    the

district court’s denial of their motion for a new trial.

       Upon our review, we hold that the district court: (1) did

not err in granting summary judgment in favor of USTC on the

claims relating to the Katrina contract; (2) did not abuse its

discretion    in    excluding      certain     categories      of    evidence     that

Relators sought to introduce at trial; and (3) did not abuse its

discretion in denying Relators’ motion for a new trial because



                                          4
Relators    failed           to     establish      that     USTC’s      witness     committed

perjury.    Accordingly, we affirm the district court’s judgments.



                                                 I.

                                                 A.

      In 2005, the Federal Protective Service division of DHS

selected USTC to provide armed guard services in Louisiana in

support of DHS’ Hurricane Katrina recovery efforts.                               Under the

parties’        written        agreement,        USTC     was     required     to    provide

fourteen armed guards and four vehicles to protect a temporary

morgue     in        Baton     Rouge,        Louisiana. 3         The   Katrina      contract

specified that the armed security guards provided by USTC were

required        to     meet        certain     minimum      qualifications,         including

United States citizenship, a high school diploma, proficiency in

the   English         language,        current       or   prior    security    experience,

“[s]ubstance            screening,”              firearms          training,         firearms

qualifications,              and     valid     firearms-related          licenses.        The

contract further specified that the security guards must undergo

a “NCIC check,” which is a criminal background check conducted


      3
       The Katrina contract also provided that DHS could direct
USTC to perform additional duties, potentially increasing the
number of personnel required. The contract authorized a maximum
of 4494 “man days,” and described a “man day” as consisting of a
“minimum of 12 productive hours of security service or directly
related work in support of the ongoing security operation.”



                                                 5
in   conjunction   with   the     Federal   Bureau    of   Investigation’s

National Crime Information Center (NCIC). 4          However, the contract

also provided that DHS, rather than USTC, was responsible for

obtaining these background checks.

     Also in 2005, the State Department selected USTC to provide

security services in Iraq and Afghanistan under a “Worldwide

Personal Protective Services” agreement.             Under the Protective

Services   contract,   security    personnel   provided    by   USTC   would

assist the Bureau of Diplomatic Security of the State Department

(the Bureau) in fulfilling the Bureau’s security goals. 5

     The Protective Services contract provided that USTC would

be compensated for its personnel on a fixed “per-person-per-day”

basis, referred to as the “boots on the ground” billing rule.

As required by the contract, USTC used “muster sheets,” which

are computer spreadsheets that require manual input, to “track[]

     4
        See Federal Bureau of Investigation, National                  Crime
Information Center, http://www.fbi.gov/about-us/cjis/ncic.
     5
        The “Statement of Work” in the Protective Services
contract identified the following “specific goals” of the
Bureau:   “Prevent[ing] loss of life, injury to personnel, and
damage/destruction of facilities or equipment, worldwide as
specified by individual Task Orders issued under this contract.
Ensur[ing] security and safety of personnel and facilities in
static   (fixed)   locations  and/or   in mobile  (in  transit)
operations.    Expedit[ing] the movement of personnel in the
accomplishment of their missions. Secur[ing] the environment to
enable personnel to conduct their business and complete their
missions.    Protect[ing] personnel and the organizations they
represent from harm or embarrassment.”



                                     6
the daily duty status for each authorized position at a duty

station.”      The State Department used these “muster sheets” for

purposes       of     validating          USTC’s        monthly     labor      invoices.

Essentially, a “muster sheet” functioned as a daily time sheet,

and recorded whether and how many of USTC’s personnel had “boots

on the ground” each day.                 Additionally, USTC was permitted to

receive      reimbursement         for    certain       expenses,    such    as    travel

expenditures,        by    submitting      to     the   State     Department      invoices

supported by appropriate documentation such as hotel bills and

flight itineraries.

                                             B.

       Relators both were formerly employed by USTC.                        Brad Davis

(Brad), a former member of the United States Marine Corps, was

hired by USTC in April 2005.                 Upon being hired, he was sent to

work    in    Iraq        in    connection       with    the    Protective     Services

contract.      Brad worked in Iraq on USTC’s behalf for about three

months in 2005, and later returned to Iraq in 2006 to conduct

additional work for USTC.                 During the interim period, he was

sent by USTC to provide security services in Louisiana under the

Katrina contract.              He worked in Louisiana for one month, first

as an assistant area manager, and later was promoted to the

position of area manager.                During his employment in Iraq and in

Louisiana for USTC, Brad allegedly observed fraud and other acts



                                             7
that,    in    his    view,       were   in   violation      of   USTC’s      contractual

responsibilities.

       Melan Hebert Davis (Melan) became engaged to Brad shortly

before he was hired by USTC and sent to Iraq.                            When Brad was

working in Louisiana under the Katrina contract, he learned that

USTC    needed       personnel      to     perform    record-keeping          and   billing

responsibilities.            Melan applied and was hired to work for USTC

in    that    capacity.           During    her    employment     in    Louisiana,      she

allegedly observed numerous fraudulent acts, such as overbilling

and submission of false invoices.

       Melan alleged that she was discharged from her position

when she raised these concerns to her supervisors.                              She later

was    rehired       by    USTC    to    perform      work    under     the    Protective

Services contract, serving as a “cost reimbursable” clerk on

USTC’s finance team.              In this position, she allegedly discovered

additional fraudulent billing and other acts of fraud committed

by Defendants.            Melan eventually was discharged from USTC during

a health-related leave of absence.

                                              C.

       On behalf of the United States pursuant to the qui tam

provision of the False Claims Act, Relators filed a complaint

against       Defendants      in     December        2008    in   the   United       States

District Court for the Eastern District of Virginia.                                Relators

twice amended their complaint, once in April 2010, and again in

                                              8
July 2010 with the filing of the Second Amended Complaint (the

Complaint), which is the set of allegations relevant to this

appeal.

    As     set   forth   in    the     Complaint   and    the   accompanying

disclosure statements, Relators alleged that Defendants engaged

in widespread fraud against the government and otherwise failed

to comply with the duties required by the Katrina contract and

the Protective Services contract.           With respect to the Katrina

contract, Relators alleged that Defendants provided “worthless

services” to DHS under the contract because Defendants failed to

manage personnel, failed to monitor the distribution of weapons,

and failed to ensure that weapons were not given to felons or

guards otherwise disqualified 6 from carrying firearms.               After

discovery, the district court granted summary judgment in favor

of Defendants on all claims relating to the Katrina contract. 7

Relators   appeal   from      the    district   court’s   summary   judgment

award.

    6
       The Complaint referred to the Lautenberg Act, 18 U.S.C. §
922(g)(9), otherwise known as the Lautenberg Amendment, which
prohibits access to firearms by persons convicted of misdemeanor
crimes of domestic violence.
    7
       Relators also alleged that Defendants submitted falsified
time cards for employees performing services required by the
contract, and used false accounting records to justify the
“daily rate” paid for employees.   Relators do not challenge on
appeal the district court’s dismissal of these additional
allegations.


                                        9
     With respect to the Protective Services contract, Relators

alleged      that     Defendants        submitted     false     “muster     sheets,”

resulting in USTC receiving compensation for hours in which USTC

employees      were     not     performing       contractual     services.       The

Relators     also     alleged    that    Defendants    submitted     false    travel

records. 8      The case proceeded to trial on the false “muster

sheets”      claims    and    the   false    travel   records    claims     asserted

against USTC. 9        As described in greater detail later in this

opinion,     the    district     court    made    certain     evidentiary     rulings

before and during trial prohibiting the admission of several

categories of evidence offered by Relators.

     The jury found in USTC’s favor on both claims presented at

trial.       After    the     trial   concluded,      Relators    filed   a   motion

seeking a new trial pursuant to Rule 59(a)(1) of the Federal

Rules of Civil Procedure, arguing that Danielle Esposito, USTC’s

     8
       Relators alleged in the Complaint two additional claims
relating to the Protective Services contract.    First, Relators
asserted that Defendants provided “worthless services” to the
State Department under the contract because USTC employees used
steroids, “smuggled” weapons, and engaged in the unjustified use
of excessive force.    The district court dismissed this claim
before discovery.    Second, Relators alleged that Defendants
falsely billed for expenses incurred by affiliates and submitted
false invoices. The district court granted summary judgment in
favor of Defendants on this claim after discovery. Relators do
not challenge on appeal the district court’s dismissal of those
two claims.
     9
       The district court granted summary judgment in favor of
all Defendants except USTC on these claims.



                                            10
former    Chief       Operating        Officer,       allegedly     committed    perjury.

During her trial testimony, Esposito stated that she provided to

government auditors a copy of a report prepared by an accounting

firm,     which       had    criticized        USTC’s    accounting     practices       and

controls.             After     the     trial,        Relators      obtained    a     sworn

declaration prepared by the government representative to whom

Esposito purportedly gave the accounting firm’s report.                             In that

declaration, the government representative stated that Esposito

did not provide him the report.                     The district court reviewed the

declaration       and       concluded,    among       other   things,    that    Relators

failed to prove that Esposito perjured herself.                         The court thus

denied the Relators’ Rule 59 motion.



                                               II.

     As    described          above,    the    Relators’      appeal    presents      three

issues for our review.                 First, we address whether the district

court erred in granting summary judgment in USTC’s favor on the

“worthless       services”       claim    relating       to   the    Katrina    contract.

Second,     we    address       whether        the     district     court   abused      its

discretion       in    excluding        from    evidence      certain    categories      of

documents and testimony offered by Relators in support of their

claims relating to the Protective Services contract.                            Third and

finally,     we       address    whether        the    district     court   abused      its

discretion in denying Relators’ motion for a new trial on the

                                               11
basis of Esposito’s allegedly perjured testimony.                             We address

each of these issues in turn.

                                              A.

      We review de novo the district court’s award of summary

judgment in favor of USTC on the allegations relating to the

Katrina contract.             See S.C. Green Party v. S.C. State Election

Comm’n, 612 F.3d 752, 755 (4th Cir. 2010).                          We view the facts,

and   all    reasonable        inferences      that     may    be    drawn    from   those

facts, in the light most favorable to Relators, the non-moving

parties.         See Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir.

2011).      Summary judgment is appropriate only when “there is no

genuine     dispute      as    to    any    material    fact    and    the    movant    is

entitled to judgment as a matter of law.”                            Fed. R. Civ. P.

56(a);     Celotex      Corp.    v.      Catrett,   477   U.S.       317,    322   (1986);

Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 295

(4th Cir. 2010).

      The False Claims Act (the Act) provides that a complaint

may be brought against anyone who “knowingly presents” to the

government        “a    false       or     fraudulent     claim      for     payment    or

approval.” 10      31 U.S.C. § 3729(a)(1)(A).             The elements of a claim

under      the   Act,    which      are    predicated     on    fraudulent         conduct,

      10
         The Act similarly allows suit against anyone who
“knowingly makes . . . a false record or statement material to a
false or fraudulent claim.” 31 U.S.C. § 3729(a)(1)(B).



                                              12
required that Relators establish: (1) that USTC engaged in a

fraudulent course of conduct; (2) that such conduct was carried

out knowingly; (3) that the conduct was material; and (4) that

the    conduct      caused    the       government       to    pay    money     in    return.

United States ex rel. Owens v. First Kuwaiti Gen. Trading &

Contracting Co., 612 F.3d 724, 729 (4th Cir. 2010).

       The    essence   of       Relators’      claim     relating      to     the    Katrina

contract      was   that     USTC’s      performance          under   the     contract   was

materially deficient in three respects described below, and that

had    the    government         been    aware      of    these       deficiencies,      the

government justifiably would have refused to compensate USTC for

the services it provided.                  Relators alleged in the Complaint

that    “[t]he      contract       required     that     [USTC]       management       manage

personnel,     monitor       the    distribution         of    weapons[,]       and    ensure

that    the   company      did     not   give      weapons      to    felons    or    persons

disqualified from using weapons by the Lautenberg Act, which

prohibits      those    involved         in     domestic       abuse     from    obtaining

weapons.”      In light of this allegation that comprised the core

of Relators’ “worthless services” claim, 11 we analyze the Katrina



       11
        As described by the Second Circuit, “[i]n a worthless
services claim, the performance of the service is so deficient
that for all practical purposes it is the equivalent of no
performance at all.”   Mikes v. Straus, 274 F.3d 687, 703 (2d
Cir. 2001).



                                              13
contract    to    determine    whether      USTC    actually    was    required    to

carry out the obligations identified by Relators.

      Our review of the Katrina contract requires us to apply

settled principles of contract interpretation.                  “When the United

States enters into contract relations, [the government’s] rights

and duties therein are governed generally by the law applicable

to   contracts     between    private    individuals.”          Lynch   v.    United

States, 292 U.S. 571, 578 (1934); see also In re Peanut Crop

Ins. Litig., 524 F.3d 458, 470 (4th Cir. 2008); United States v.

Bankers Ins. Co., 245 F.3d 315, 321 (4th Cir. 2001).                          Except

when Congress has explicitly adopted a different standard, we

apply    “the    principles    of   general     contract      law,    which   become

federal common law” in interpreting government contracts.                     In re

Peanut Crop Ins. Litig., 524 F.3d at 470 (quoting Long Island

Sav. Bank, FSB v. United States, 503 F.3d 1234, 1245 (Fed. Cir.

2007)).

      As   a     primary   principle     of     contract      interpretation,     we

“begin[]    with    the    language    of     the   written    agreement.”        NVT

Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir.

2004).     In construing the language of a contract, “the plain and

unambiguous meaning of [the] written agreement controls.”                     Craft

Mach. Works, Inc. v. United States, 926 F.2d 1110, 1113 (Fed.

Cir. 1991).



                                         14
       Applying        these       principles,          we       agree     with    the    district

court’s conclusion that the Katrina contract did not require

USTC     to    manage        personnel,          to     monitor          the   distribution       of

weapons, or to ensure that weapons were not given to felons or

persons disqualified from using them by the Lautenberg Act.                                        We

observe that the Katrina contract, by its plain terms, did not

assign        USTC     the     responsibility            for        managing      personnel       or

monitoring the distribution of weapons.                                 We also conclude that

the    contract        did    not       require       USTC    to    ensure     that      felons    or

persons        ineligible          to     possess        weapons          by   virtue      of     the

Lautenberg Act did not receive weapons.                                 As the district court

correctly explained, ensuring that such people do not receive

firearms requires a background check to determine their criminal

history.        However, under the Katrina contract, DHS, rather than

USTC,    expressly           was    given     the       responsibility            of     performing

criminal         background             checks         for         the     security         guards.

Accordingly, we conclude that the underlying basis for Relators’

remaining claim under the Katrina contract, that USTC rendered

“worthless           services”       in     failing          to     fulfill       its    purported

contractual responsibilities, is illusory.

       Our     conclusions          are    not    altered          by    Relators’       additional

argument, in which Relators assert that summary judgment was

unwarranted          because       there    remained         a     factual     dispute      whether

USTC falsely certified to the government that USTC was providing

                                                  15
contractually-conforming services.                The district court held that

Relators could not avoid summary judgment on this basis, because

Relators did not allege such a “false certification” claim in

the Complaint.         We agree with the district court’s conclusion.

See Owens, 612 F.3d at 731 (plaintiff may not raise new claims

after discovery has begun without first amending the complaint);

Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 617 (4th

Cir. 2009) (same).           Accordingly, we affirm the district court’s

award    of   summary       judgment    in    favor   of    USTC   on    the    Katrina

contract claim.

                                             B.

     We next address Relators’ argument that they are entitled

to a new trial because the district court erred in excluding

certain categories of evidence that Relators sought to introduce

during the trial.           In reviewing the district court’s evidentiary

rulings,      we   observe     that    the    district     court   has   substantial

discretion in making rulings on the admissibility of evidence.

See United States v. Hedgepeth, 418 F.3d 411, 418–19 (4th Cir.

2005).        We     have     stated    that      “[j]udgments      of   evidentiary

relevance      and   prejudice     are    fundamentally       a    matter      of   trial

management, for ‘[t]rial judges are much closer to the pulse of

a trial than we can ever be and broad discretion is necessarily

accorded them.’”            United States v. Benkahla, 530 F.3d 300, 309



                                             16
(4th Cir. 2008) (quoting United States v. Simpson, 910 F.2d 154,

157 (4th Cir. 1990)).

     For     these      reasons,        we    afford    the     district      court

“substantial deference,” and we will not overturn any of the

court’s    evidentiary        rulings    absent    an   abuse      of   discretion.

United States v. Medford, 661 F.3d 746, 751 (4th Cir. 2011).                     A

district court abuses its discretion when the court acts in an

arbitrary manner, when the court fails to consider judicially-

recognized factors limiting its discretion, or when the court

relies on erroneous factual or legal premises. 12                   United States

v. Henry, 673 F.3d 285, 291 (4th Cir. 2012).

                                         1.

     We first consider the district court’s exclusion of certain

portions     of    an   electronic       mail     (email)     attachment,    which

Relators    alleged     was    a   genuine    itinerary     from    USTC’s   travel

agency     containing    a     handwritten      note    from    one     of   USTC’s

employees.        Relators sought to introduce this evidence as part

of their claim that USTC was overbilling the State Department

for travel reimbursements.              The district court granted USTC’s


     12
         Even if we concluded that the district court’s
evidentiary   rulings  constitute   an  abuse  of the   court’s
discretion, any such errors would not entitle a party to a new
trial unless those errors affected the party’s substantial
rights. Schultz v. Capital Int’l Sec., Inc., 466 F.3d 298, 310
(4th Cir. 2006) (citing Fed. R. Evid. 103(a)).



                                         17
motion    to    exclude    this     evidence    under   the     rule    prohibiting

hearsay.

     On appeal, Relators argue that the email attachment should

have been admitted because it was not being offered for the

truth of the matter asserted, cf. Fed. R. Evid. 801(c), and

because     the       attachment    was    admissible     under        the   hearsay

exemption for party admissions, see Fed. R. Evid. 801(d)(2)(D).

Upon our review of the record, we conclude that Relators did not

sufficiently raise these arguments in the district court and,

accordingly, have waived them. 13              See Jimenez v. DaimlerChrysler

Corp., 269 F.3d 439, 453 (4th Cir. 2001) (evidence is properly

excluded when alternative theory of admissibility is not timely

offered); see also Wheatley v. Wicomico Cnty., 390 F.3d 328, 334

(4th Cir. 2004) (issues raised for the first time on appeal are

generally       not    considered     absent     exceptional     circumstances).

Because Relators do not otherwise challenge the district court’s

bases     for    excluding    portions     of     the   email    attachment,     we

conclude that this evidentiary ruling was not an abuse of the

court’s discretion.

     13
       During trial, Relators argued that the attachment was not
hearsay because they offered it to show that Melan’s supervisor
directed her to fraudulently alter travel invoices. Relators do
not raise this theory on appeal, and instead argue that the
attachment is not hearsay because Relators sought its admission
to prove “notice” to USTC that the travel agency had the ability
to generate accurate travel documentation retroactively.


                                          18
                                             2.

     We next address the district court’s exclusion of certain

testimony and exhibits relating to the State Department’s 2007

review     of    USTC’s       operations     in     Iraq.        Relators        sought    to

introduce this evidence, which they claim suggested that the

reviewers found that USTC was altering billing records and that

a USTC employee issued a “death threat” to one of the reviewers,

to show USTC’s intent to defraud and “hide its bad acts through

intimidation.”            The    district         court   excluded        this     evidence

because the court found that the evidence lacked significant

probative       value     and    was   highly        prejudicial,         and    thus     was

inadmissible under Federal Rule of Evidence 403. 14

     Upon       our   review     of    the    record,       we   conclude        that     the

district    court       did   not   abuse    its     discretion      in    making       these

determinations.           In    our    view,       the    evidence    concerning          the




     14
        Rule 403 of the Federal Rules of Evidence provides that
“[t]he court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of
the   following:   unfair   prejudice,   confusing  the  issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.”       The district court also
excluded several exhibits that are part of this category of
evidence on authentication grounds, as well as certain testimony
on hearsay grounds.    Relators do not argue on appeal that the
district court erred in reaching those conclusions.



                                             19
alleged “death threat” was inherently sensational, and was only

marginally, if at all, relevant to Relators’ claims. 15

       We further agree with the district court that the evidence

concerning the alteration of billing records lacked probative

value and thus was properly excluded from admission, because

there        is   no   evidence    that    the       records    alleged   to   have    been

altered were related to USTC’s billing or submission of claims

to the government at issue in this case.                           Relators conceded at

trial that the reviewer who purportedly observed USTC employees

making alterations did not know whether the alterations were

improper          or   whether   they    pertained         to   billing   records     to   be

submitted to the State Department.                          Accordingly, we conclude

that     the       district      court    did        not   abuse    its   discretion       in

excluding from evidence testimony and exhibits relating to the

State Department’s 2007 review.

                                                3.

       The next category of excluded evidence that we consider

includes testimony and email records allegedly showing that USTC

paid     “bribes”        to   officials     in       Afghanistan     to   expedite     visa

        15
        In making its ruling, the district court observed,
accurately in our view, that there is no evidence suggesting
that the “death threat” was related to the reviewers’ search for
billing discrepancies or other falsehoods. As explained by the
district court, the confrontation “could have been clash of
personalities.   It could have been anger about something that
happened somewhere else.”



                                                20
renewals for USTC personnel, and that USTC submitted bills to

the State Department to be reimbursed for such bribes.             Relators

sought to introduce this evidence to refute USTC’s defense that

any overbillings occurred because of “innocent mistakes,” and

also    to   bolster   Melan’s   credibility.         The   district   court

excluded this evidence under Rule 404(b), which prohibits the

use of evidence of crimes, wrongs or other acts as evidence of

character or to show that a party acted in conformance with that

character.     The court also cited Rule 403 in support of its

ruling.

       Evidence concerning “prior bad acts” is admissible under

Rule 404(b) only if the evidence is: (1) relevant to an issue

other than character, (2) necessary, and (3) reliable.                 United

States v. Hernandez, 975 F.2d 1035, 1039 (4th Cir. 1992) (citing

United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988)).

However, even if the evidence satisfies this test, the evidence

still may be excluded under Rule 403.           Id.    The district court

addressed these factors, finding that the bribery evidence was

not necessary because it was relevant only to the character of

USTC’s employees, implying that the employees were “bad people

willing to pay bribes,” and that the evidence was not reliable




                                    21
because it was “sharply disputed.” 16                        Upon our review of the

record and the parties’ arguments, we agree with the district

court’s reasoning, and we conclude that the court acted well

within     its       discretion         in     excluding     under       Rule   404(b)    the

evidence concerning alleged bribes to Afghani officials. 17

     Our       conclusion         is    not     altered      by    Relators’     additional

argument that the evidence was admissible because the bribes

purportedly were part of the “false billings” at issue in this

case.      The district court ruled on summary judgment that the

Complaint        “does      not        allege     that     [D]efendants         billed     the

Department       of    State      for        bribes   paid    to    Afghani     officials.”

Relators       did    not   appeal       that    aspect      of    the   district   court’s

judgment, and thus have waived argument concerning any potential

claims alleging bribes to foreign officials.                             See Wheatley, 390

F.3d at 334; Jimenez, 269 F.3d at 453.

                                                 4.

     We next address Relators’ argument that the district court

erred     in    excluding      a       draft    audit     report     prepared     by     David




     16
        The district court further concluded that whether the
payments were actually bribes was contested and that admission
of this evidence could lead to a “side litigation.”
     17
        In light of our holding, we need not reach the issue
whether this category of evidence also would have been properly
excluded under Rule 403.



                                                 22
Cotton, Chairman of the firm Cotton & Company, 18 and testimony

concerning the report.         The district court allowed Mr. Cotton to

testify   concerning     any   matters      within    his    personal   knowledge

during his work as an auditor that were relevant to Relators’

claims.     However, because Relators did not designate Mr. Cotton

as an expert witness or provide an expert witness disclosure as

mandated by Rule 26 of the Federal Rules of Civil Procedure, the

court prohibited Mr. Cotton from offering any expert opinions.

Accordingly, Mr. Cotton was not permitted to offer any testimony

concerning    discrepancies      in   the     bills   USTC    submitted   to   the

government, or to provide an analysis of USTC’s bills or billing

procedures.

     Relators    argue     that       the     district       court   abused    its

discretion in characterizing the prohibited subjects as matters

of expert testimony, rather than as lay testimony.                   We disagree

with Relators’ argument.        Based on our review of the draft audit

report, we easily conclude that the report, and Mr. Cotton’s

potential    testimony    concerning        the   report’s     conclusions,    are

matters of expert testimony.                Relators’ unsupported assertion

that lay testimony is appropriate on complicated matters such as



    18
        Cotton & Company was retained by the government to
conduct an audit of USTC’s performance under the Protective
Services contract.



                                       23
the interpretation of billing practices does not make it so. 19

See United States v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006)

(“Rule 701 forbids the admission of expert testimony dressed in

lay witness clothing.”).                  Rather, opinions offered on matters

relating        to        “scientific,         technical,     or     other      specialized

knowledge”          are    considered      expert      testimony     under   the      Federal

Rules of Evidence, see Fed. R. Evid. 701, and are subject to the

limitations contained in Fed. R. Evid. 702 and the disclosure

requirements contained in Fed. R. Civ. P. 26(a)(2).                             See United

States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010) (opinions

not    based        on    witnesses’      own    perception      but   rather     on   their

experience          and    training      are    expert    opinions     rather     than   lay

opinions); United States v. White, 492 F.3d 380, 403-04 (6th

Cir.        2007)        (concluding      that        Medicare     auditors’      testimony

concerning           the       Medicare    reimbursement           process      and    their

understanding             of   certain    terms        constituted     expert    testimony

subject to Fed. R. Evid. 702).                        For these reasons, we conclude


       19
        For instance, the report reflected Cotton & Company’s
conclusions   in   three   categories:  “1)   Internal   Control
Deficiencies; 2) Questioned Costs; and 3) Compliance Issues.”
The report further summarized Cotton & Company’s “audit
objectives,” such as the performance of a “risk assessment,” the
evaluation of USTC’s “internal controls,” and reviewing the
Protective Service contract’s “current cost model.”    Relators’
argument that the excluded testimony concerning the report’s
conclusions is fact testimony rather than expert opinion
testimony strains credulity.



                                                 24
that     the   district         court     did        not    abuse      its        discretion      in

prohibiting the introduction of the Cotton & Company report and

testimony      concerning        that      report,          because        Relators       did    not

designate these matters as expert opinion evidence.

                                                5.

       We also conclude that the district court did not abuse its

discretion       in    excluding          evidence          relating         to     the    alleged

falsification         of   a    government           form       by   Gary    Jackson,        USTC’s

former      president. 20        The      document         at    issue      was    a    Bureau     of

Alcohol, Tobacco, Firearms, and Explosives (ATF) form relating

to a separate matter for which Jackson had been indicted by the

government.       The ATF form that Jackson allegedly falsified was

not related to the Protective Services contract, and therefore

was not directly at issue in this case.

       Relators       sought         to   ask        Jackson         about        the     allegedly

falsified      ATF    form      as    part      of    Relators’          inquiry        concerning

“Jackson’s      willingness          to   sign       his    name      to     government         forms

swearing to the truth of statements and claims that are in fact

false.”        Relators        intended      by      such       questioning        to     “provoke”

Jackson to assert his Fifth Amendment rights, thereby allowing

Relators to obtain an instruction advising the jurors that they

       20
        According to Relators, Jackson certified several of the
USTC invoices billed to the State Department that were at issue
in this case.



                                                25
were    permitted         to   draw      an   adverse    inference    from    Jackson’s

invocation of his constitutional rights.

       The        district       court    granted       USTC’s   motion      in    limine

regarding          this   line    of     questioning,     concluding      that    it   was

inadmissible under Federal Rule of Evidence 404(a) as character

evidence offered for the purpose of proving action in conformity

with    that       character. 21         We   agree     with   the   district     court’s

conclusion, because the ATF form was not a form identified in

the complaint as having been falsified, and, as noted above, the

form        was    unrelated       to     the    Protective      Services     contract.

Therefore, testimony regarding this form would have related only

to Jackson’s character and his purported propensity to falsify

government forms, 22 bases of inquiry expressly prohibited by Rule

404(a).           Accordingly, we hold that the district court did not




       21
        Rule 404(a) of the Federal Rules of Evidence provides
that “[e]vidence of a person’s character or character trait is
not admissible to prove that on a particular occasion the person
acted in accordance with the character or trait.” The district
court also held that evidence concerning the ATF form was
subject to exclusion under Rule 403.
       22
        We find no merit in Relators’ conclusory argument that
evidence concerning the ATF form was admissible to prove “intent
and motive.” Even assuming that there was a minimal connection
between the allegedly falsified form and Jackson’s motive and
intent in this case, the substantial deference we afford to the
district court’s evidentiary rulings would require us to reject
Relators’ argument.



                                                26
abuse its discretion in barring Relators from asking Jackson any

questions concerning the allegedly falsified ATF form.

                                                    6.

       We        next     address          the    final    category          of    evidence       that

Relators          argue       was    wrongly      excluded        from     admission,          namely,

certain testimony from Relators’ expert witness, John Willis, a

forensic          accountant.               The    district        court      limited         Willis’

testimony only to the extent that he was not permitted to state

that        he     found        “fraud       indicators”           upon      reviewing          USTC’s

documents.              The     court       allowed      Willis       to   testify       concerning

certain          travel       and    “muster      sheet”        discrepancies,          so    long   as

Willis did not state that such discrepancies were an “indicator

of fraud.”           The court prohibited this narrow aspect of Willis’

testimony because, in the court’s view, “[f]raud requires proof

of     things       that        no     accountant          has,”       and    thus,          testimony

concerning “fraud indicators” was beyond Willis’ expertise.

       Although this ruling presents a closer question than the

other evidentiary challenges raised by Relators, we hold that

the    district          court       did    not    abuse    the       broad       and   substantial

discretion that the court is afforded in ruling on evidentiary

matters. 23             See    Benkahla,         530     F.3d    at    309.        The       testimony


       23
        We also observe that Relators did not cite any cases to
the district court supporting their position that an accounting
expert may label certain findings “fraud indicators.”        On
(Continued)
                                                    27
excluded by the district court was only one discrete aspect of

Willis’   conclusions,     and   Willis    expressly      was   permitted   to

testify   about     any    and    all     travel    and     “muster    sheet”

discrepancies     that    he   observed    during   his     review    of    the

documents.      Accordingly, for these reasons, we hold that the

district court did not abuse its discretion in making the above

evidentiary rulings challenged in this appeal.

                                    C.

     Finally, we address Relators’ argument that the district

court erred in failing to grant a new trial or to order an

evidentiary hearing on the Rule 59 motion involving Relators’

contention that Esposito, the former Chief Operating Officer of

USTC, committed perjury.         A new trial is warranted based on a

witness’ perjury when: (1) the trial court is “reasonably well

satisfied” that a material witness gave false testimony; (2) in

the absence of the false testimony, the jury may have reached a




appeal, however, Relators cite United States v. Bollin, 264 F.3d
391 (4th Cir. 2001), in support of their argument. We stated in
Bollin, in the course of holding that the evidence supported the
defendant’s   conviction,   that   “[t]he  Government’s   expert
testified that there were numerous indicators of fraud” in the
documents he reviewed. Id. at 407. Our decision in Bollin did
not, however, involve a challenge to the admissibility of
testimony concerning “fraud indicators.” Accordingly, Relators’
reliance on Bollin for the proposition that “[t]his Circuit
routinely allows qualified experts to testify about fraud
indicators” is misleading and unavailing.



                                    28
different conclusion; and (3) the party requesting the new trial

was “taken by surprise” when the false testimony was given, and

was unable to address it or was not aware of its falsity until

after the trial.            United States v. Wallace, 528 F.2d 863, 866

(4th Cir. 1976); see also Davis v. Jellico Cmty. Hosp., Inc.,

912 F.2d 129, 134 (6th Cir. 1990) (applying this test in civil

context).     In reviewing the district court’s denial of Relators’

motion, we observe that “[t]he decision to grant or deny a new

trial is within the sound discretion of the district court, and

we respect that determination absent an abuse of discretion.”

Cine v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998)

(citing Atlas Food Sys. & Servs., Inc. v. Crane Nat’l Vendors,

Inc., 99 F.3d 587, 594 (4th Cir. 1996)).

     As noted previously, Esposito testified at trial that she

provided to government auditors a copy of an independent audit

report    (the    report)     that    was    critical       of    USTC’s   accounting

procedures       and   controls. 24      Esposito      was       asked,    “[D]id   you

provide   a   copy     of    [the    report]     to   the    [government’s]     audit

team?”    Esposito replied, “Yes, I did.”               Relators’ counsel asked

Esposito, “[W]ho did you provide it to?”                         Esposito answered,

     24
        The report, prepared by the accounting firm BDO Seidman,
concluded that USTC managerial practices in Iraq “resulted in a
fair amount of unnecessary or inappropriate expenditures, as
well as waste,” and “created an environment lacking sufficient
accountability and asset security.”



                                            29
“[Robert] Farrell or one of his three reps, but I am pretty sure

it was Mr. Farrell.” 25

      Robert Farrell, a Certified Fraud Examiner hired by Cotton

&   Company,     the   government’s        auditing     firm      in    this    matter,

executed a sworn declaration after the trial that was appended

to Relators’ Rule 59 motion.              In his declaration, responding to

Esposito’s claim at trial that she provided him or his employees

a copy of the report, Farrell stated, “Ms. Esposito’s testimony

is incorrect.      Ms. Esposito never gave me or any of the other

Cotton & Company representatives a copy of [the report].”

      Relators     argued    in     the    district       court    that        Farrell’s

declaration      established        that       Esposito     committed          perjury.

Relators further asserted that they were entitled to a new trial

because if the jury had been made aware of the purported false

testimony, USTC’s defenses of “government knowledge” and “lack

of intent to defraud” would have been undermined.

      The district court denied Relators’ Rule 59 motion without

a   hearing.      Among     other   reasons,      the     court        concluded   that

Relators failed to satisfy their evidentiary burden because the

evidence offered by Relators, namely Farrell’s declaration, did

      25
        Esposito further testified that there was no document
that memorialized her transmission of the report because she
“hand delivered it to [the government’s audit team].” Esposito
also stated during her testimony that she could not remember the
exact date on which she provided the report.



                                          30
not    establish         that     Esposito’s            testimony        was    false. 26         See

Wallace,      528        F.2d     at       866     (movant      seeking        new     trial     must

establish       to       the    district           court’s       satisfaction          that      “the

testimony      given       by     a    material         witness     is    false”)        (citation

omitted).          According          to    the    district      court,        “[a]t    most,     the

record      discloses       that       the       witness      alleged     to    have     committed

perjury      has     a    different          recollection         from     the        witness     now

adduced by [Relators], and there simply is no way to determine

which witness has a better memory or remembers the events in

question more accurately.”

       We    agree        with        the        district       court’s        conclusion        that

Farrell’s       declaration             does       not      establish          that     Esposito’s

testimony     was        false,       but    rather,       at   most,     suggests       that     her

recollection of the events was different than Farrell’s.                                       A mere

discrepancy in the testimony of two witnesses does not establish

perjury.      See United States v. Anderson, 509 F.2d 312, 327 (D.C.

Cir.    1974)      (holding           that       the   fact     that    two     witnesses        gave

       26
        The district court provided two additional bases for its
denial of the Rule 59 motion.       First, the court held that
Relators’ post-trial assertion of perjury by Esposito was
untimely, because Relators had sufficient time to present
Farrell as a witness to the jury.    Second, the court held that
even if Esposito’s testimony was false, the jury would not have
reached a different verdict because the contested testimony was
“incidental, rather than central,” to the issues before the
jury. In light of our analysis of the court’s primary basis for
denying Relators’ motion, we need not address these additional
reasons for concluding that a new trial was not warranted.



                                                   31
different testimony “is obviously insufficient to establish that

either is a perjurer”).               Because this discrepancy is the basis

for    Relators’    accusation        that    Esposito       committed      perjury,     we

hold that the district court did not abuse its discretion in

denying Relators’ Rule 59 motion for a new trial.

       Likewise, we find no merit in Relators’ argument that they

were entitled to an evidentiary hearing to develop further their

contention       that    Esposito     perjured       herself.        As    we    noted   in

United    States       v.    Smith,   62    F.3d    641,     651    (4th    Cir.    1995),

“[j]ust as the district court has broad discretion in resolving

a new trial motion, so too does it enjoy discretion whether to

hold an evidentiary hearing on the motion.”                        (Citation omitted).

This    degree    of    deference      is    appropriate      because       “the    acumen

gained by a trial judge over the course of the proceedings”

makes the court “well qualified” to rule on a motion for a new

trial    without        an    evidentiary         hearing.         United       States   v.

Hamilton, 559 F.2d 1370, 1373–74 (5th Cir. 1977).                                Upon our

review of the record and the parties’ arguments, we have no

difficulty in concluding that the district court did not abuse

its discretion in resolving Relators’ motion on the pleadings

rather than ordering a post-trial evidentiary hearing.




                                             32
                                 III.

     In sum, we hold that the district court correctly concluded

that USTC was entitled to summary judgment on claims arising

under the Katrina contract.      We further hold that the district

court did not abuse its discretion in its evidentiary rulings or

in concluding that Relators were not entitled to a new trial on

claims   arising   under   the    Protective   Services   contract.

Accordingly, we affirm the district court’s judgments.

                                                           AFFIRMED




                                  33
