     Case: 09-20129     Document: 00511083764          Page: 1    Date Filed: 04/19/2010




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

                                                  FILED
                                                                            April 19, 2010
                                     No. 09-20129
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CALVIN WILLIAMS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:08-CR-636-1


Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
        A jury convicted Calvin Williams of falsifying entries and reports of monies
while performing his duties as an employee of the U.S. Postal Service, and he
was sentenced to two years probation and ordered to pay $1,400 in restitution.
On appeal, Williams’s sole argument is that the evidence presented at trial was
insufficient to convict him of the crime as charged in the indictment.
        Williams has preserved for review his challenge to the sufficiency of the
evidence because he moved for a judgment of acquittal at the close of the

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                 No. 09-20129

Government’s case and presented no evidence of his own. United States v.
Resio-Trejo, 45 F.3d 907, 911 n.6 (5th Cir. 1995). We review de novo the district
court’s decision to deny the motion. United States v. Mitchell, 484 F.3d 762, 768
(5th Cir. 2007). We view all of the evidence and draw all reasonable inferences
in the light most favorable to the verdict and will affirm the conviction if a
rational juror could have found the elements of the offense beyond a reasonable
doubt. United States v. Garcia, 567 F.3d 721, 731 (5th Cir.), cert. denied, 130
S. Ct. 303 (2009).
      Williams was charged with violating 18 U.S.C. § 2073 by making a “false
and fictitious entry of a matter relating to his duties, to wit: by making a false
entry of stamp purchases.” To secure a conviction, the Government must prove
the specific allegations set forth in the indictment. Stirone v. United States, 361
U.S. 212, 217-19 (1960); United States v. Hoover, 467 F.3d 496, 502 (5th Cir.
2006). If instead the Government proves that the defendant committed the
crime in a manner that was not charged, then the indictment has been
constructively amended and the defendant is entitled to a new trial. Hoover, 467
F.3d at 502; United States v. Chambers, 408 F.3d 237, 247 n.6 (5th Cir. 2005).
      Here, the evidence was sufficient to support the verdict. The Government
submitted video recordings showing Williams making sales to customers and the
corresponding daily reports of Williams’s transactions. An investigator testified
based on the recordings and reports that when customers paid for stamps in
cash, Williams often failed to scan the stamps into the point-of-service (POS)
system as required and instead used the “no sale” key to open the cash drawer
and complete the transactions. In other words, according to her testimony, he
falsely entered stamp purchases as “no sale” or non-revenue transactions. Based
on this evidence, a rational juror could conclude that the Government proved
beyond a reasonable doubt that Williams made a false entry of stamp purchases.
      Williams contends that the specific charge required the Government to
establish that he actually made an entry of stamp purchases, i.e., revenue

                                        2
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                                No. 09-20129

transactions, in the POS system.       Williams parses the language in the
indictment too narrowly. It was sufficient, and consistent with the charge in the
indictment, for the Government to prove that Williams made a false entry of
stamp purchases by recording a “no sale” or non-revenue entry into the POS
system when, in fact, a customer had made a cash purchase (i.e., a revenue
transaction).
      Accordingly, the judgment is AFFIRMED.




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