IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-60963

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MCSHELLE FOSTER WILLIAMS, also known as Rosie McShelle

Williams

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Mississippi

Before WIENER, DeMOSS, and PRADO, Circuit Judges.

PRADO, Circuit Judge:

McShelle Foster Williams (“Williams”) appeals her conviction for three

counts of embezzlement and aiding and abetting embezzlement in violation of

18 U.S.C. § 666(a)(1)(A) and one count of conspiracy to embezzle funds as

prohibited by 18 U.S.C. § 666(a)(1)(A) in violation of 18 U.S.C. § 371. For the

reasons that follow, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The evidence the government presented at trial demonstrated the

following: Williams began working as the payroll clerk and Deputy City Clerk

for the City of Durant, Mississippi, in 1988. Her responsibilities included

preparing payroll checks and W-2 forms. City policy required that all paychecks

United States Court of Appeals

Fifth Circuit

F I L E D

November 9, 2007

Charles R. Fulbruge III

Clerk
No. 06-60963

1 Eddie Logan served as Mayor from 2001 to 2005, and James T. Wiley served as his

predecessor.

2

have two signatures: one from the Mayor or Vice Mayor and another from the

City Clerk or Deputy City Clerk. After she prepared the paychecks, Williams

would have Rosie Hogsett (“Hogsett”), the City Clerk and Williams’s supervisor,

sign the checks. If Hogsett was unavailable, however, Williams would sign the

checks herself in her role as the Deputy City Clerk. She would then transmit

the checks to the Mayor or Vice Mayor for a second signature. The Board of

Aldermen determined the salaries for all city employees, and the minutes from

the Board’s bi-monthly meetings listed all payroll checks.

During an audit of the City’s financial records, auditors noticed that

Hogsett and Williams had received extra payroll checks during 2000, 2001, and

2002. These checks were not listed on Hogsett’s or Williams’s W-2 forms. Upon

further review, auditors found that Hogsett had received approximately $28,000

and that Williams had received approximately $32,000 in additional checks over

a three-year period. The evidence demonstrated that Williams had signed her

own extra checks twenty-nine times and that Hogsett had signed the remainder

of the extra checks before taking them to the Mayor or Vice Mayor. At least

once, Williams prepared several checks for herself on the same day but varied

the amount of each check.

When questioned, Williams admitted that she had received the additional

checks. She claimed that the City’s two Mayors during her tenure had

authorized her to receive “advance checks.”1 Williams contended that this was

a common practice, as the Mayors had authorized early checks for the Chief of

Police and an Alderwoman on several occasions. To explain why the check

amounts varied, Williams stated that she was instructed to prepare them in this

way rather than in one large check to “be in line with [her] payroll.” She also
No. 06-60963

3

claimed that the Mayors told her not to put the extra salary on her W-2s so that

the City’s payroll would remain balanced. 

Hogsett pleaded guilty to embezzlement and testified against Williams.

Hogsett stated that she and Williams periodically signed additional checks for

each other when they needed them. Hogsett testified that the Mayors had

approved her receiving a check earlier in the week than due on occasion, butthat

neither Mayor had approved additional checks above her regular salary. She

stated that she had the Mayor or Vice Mayor sign the payroll checks in large

stacks and that the Mayor or Vice Mayor did not analyze each check before

signing it. Former Mayor Logan and former Alderman and Vice Mayor Roberts

also testified that they never authorized extra checks for Hogsett or Williams.

In particular, Mayor Logan stated that he had authorized “early checks” on a few

occasions for employees other than Hogsett or Williams, but that by “early

check” he meant that he was authorizing someone to receive a check a few days

ahead of time.

Williams testified on her own behalf. She stated that she believed the

Mayors had authorized her to receive these advance payments and that she had

intended to pay them back. She admitted, however, that she would have to work

for free for over two years to make up for her “early” paychecks.

A jury convicted Williams for three counts of embezzlement and aiding and

abetting embezzlement in violation of 18 U.S.C. § 666(a)(1)(A) and one count of

conspiracy to embezzle funds as prohibited by 18 U.S.C. § 666(a)(1)(A) in

violation of 18 U.S.C. § 371. The court denied Williams’s request for a directed

verdict at the close of the government’s case in chief and again at the close of the

evidence. The district court sentenced her to sixteen months’ imprisonment on

each count, to run concurrently, followed by a three-year term of supervised

release. The court also ordered her to pay restitution of $32,122.12 and a special

assessment fee of $400.00. Williams appeals her conviction, arguing that a
No. 06-60963

4

statutory exemption makes 18 U.S.C. § 666 inapplicable to the embezzlement of

a salary and that the evidence is insufficient to support her convictions for

conspiracy or aiding and abetting. We have jurisdiction pursuant to 28 U.S.C.

§ 1291.

II. DISCUSSION

Because Williams moved for a judgment of acquittal at the trial, she

preserved the usual de novo standard of review for challenges to the sufficiency

of the evidence. See United States v. Harris, 420 F.3d 467, 470 (5th Cir. 2005).

Under this standard, we determine whether a reasonable jury could find that the

evidence establishes the guilt of the defendant beyond a reasonable doubt.

United States v. Lewis, 476 F.3d 369, 377 (5th Cir. 2007). We view the evidence

in the light most favorable to the government and give the government the

benefit of all reasonable inferences and credibility choices. See United States v.

Harvard, 103 F.3d 412, 421 (5th Cir. 1997).

A. 18 U.S.C. § 666(c) is inapplicable to salary that is not “bona fide”

or earned in the “in the usual course of business”

Williams argues that, as a matter of law, the government cannot convict

her under 18 U.S.C. § 666(a) because she falls under the exception in § 666(c).

18 U.S.C. § 666(a) provides:

Whoever, if the circumstance described in subsection (b) of this

section exists—

(1) being an agent of an organization, or of a State, local, or

Indian tribal government, or any agency thereof—

(A) embezzles, steals, obtains by fraud, or otherwise without

authority knowingly converts to the use of any person other

than the rightful owner or intentionally misapplies, property

that . . . 

(ii) is owned by, or is under the care, custody, or control of

such organization, government, or agency; . . . 

shall be fined under this title, imprisoned not more than 10 years,

or both.
No. 06-60963

5

Subsection (b) requires the organization listed in subsection (a) to receive

benefits in excess of $10,000 under a federal program. Williams does not dispute

that this provision applies because the City of Durant received over $10,000 in

federal funds every year in 2000, 2001, and 2002. Her argument is that § 666(c)

exempts her from the reach of § 666(a). Section 666(c) provides: “This section

does not apply to bona fide salary, wages, fees, or other compensation paid, or

expenses paid or reimbursed, in the usual course of business.” Williams argues,

therefore, that her “advance” checks were part of her bona fide salary in the

usual course of the City’s business.

Williams’s argument misses the mark. Previous decisions from other

circuits demonstrate that a salary is not bona fide or earned in the usual course

of business under § 666(c) if the employee is not entitled to the money. For

example, in United States v. Tampas, the Eleventh Circuit considered whether

§ 666(c) exempted Tampas’s personal charges to his employee credit card. 493

F.3d 1291, 1299 (11th Cir. 2007). The court ruled that § 666(c) did not apply

because the charge account was not part of Tampas’s bona fide salary. Id.

Similarly, in United States v. Dwyer, the First Circuit ruled that a reasonable

jury could conclude that the wages an employee received due to Dwyer’s

fraudulent actions in filling outthe employee’s timesheets “were not made in the

usual course of business and thus were not bona fide.” No. 05-2051, 2007 WL

2404476, at *14 (1st Cir. Aug. 24, 2007). The court further noted that the wages

would not be bona fide even if they were for some kind of “informal and

unauthorized compensatory time reimbursement.” Id. The Fourth Circuit also

recognized the limit of § 666(c) in United States v. Grubb, where the court

determined that § 666(c) did not apply to the extra wages that a part-time

investigator for the Sheriff’s office received because he “performed little work for

the Sheriff’s office” and did not “perform functions for the sheriff’s office on a
No. 06-60963

2 Although the indictment did not require the jury to find explicitly thatthis money was

not Williams’s bona fide salary, the jury’s conclusion that Williams embezzled the money

demonstrates that the jury implicitly determined that the money was not Williams’s bona fide

salary or earned in the usual course of the City’s business.

3

Indeed, we find it immaterial that Williams testified that she believed the Mayors

authorized the extra checks or that the record of the extra checks appeared in the minutes of

the Board of Aldermen’s meetings. The jury apparently rejected Williams’s argument that this

evidence absolved her of criminal liability, and our review of the record reveals that this

decision was not unreasonable.

6

regular basis.” 11 F.3d 426, 434 (4th Cir. 1993) (internal quotation marks

omitted).

Whether wages are bona fide and earned in the usual course of business

is a question of fact for the jury to decide. See Dwyer, 2007 WL 2404476, at *14

(citing United States v. Cornier-Ortiz, 361 F.3d 29, 36 (1st Cir. 2004)). A

reasonable jury could conclude that Williams’s “advance” paychecks were

actually extra payments for work she had not performed and therefore were not

part of her bona fide salary.2 An employee who receives three years of additional

compensation amounting to over $30,000—which represents more than twice

Williams’s regular annual salary—is more culpable than an employee who

simply works fewer hours than her regular paycheck requires.3 Compare United

States v. Harloff, 815 F. Supp. 618, 619 (W.D.N.Y. 1993) (dismissing an

indictment based on § 666(c) because the employees simply worked fewer hours

than their normal compensation required) with UnitedStates v. Abney, No. 3-97-

CR-260-R, 1998 WL 246636, at *2 (N.D. Tex. Jan. 5, 1998) (holding that § 666(c)

did not exempt prosecution under § 666(a) when a payroll clerk altered her coemployees’ timesheets so they would be paid for overtime hours that the

employees had not worked). Williams fails to make any plausible argument that

she legitimately earned the “advance” payments. Cf. United States v. Mills, 140

F.3d 630, 633-34 (6th Cir. 1998) (holding that the government could not

prosecute the defendant for an illegal employment procurement process under
No. 06-60963

4 To convict Williams of a conspiracy under 18 U.S.C. § 371, the government had to

show “(1) an agreement between two or more persons to pursue an unlawful objective; (2) the

defendant’s knowledge of the unlawful objective and voluntary agreement to join the

conspiracy; and (3) an overt act by one or more ofthe members ofthe conspiracy in furtherance

ofthe objective of the conspiracy.” United States v. Peterson, 244 F.3d 385, 389 (5th Cir. 2001).

7

§ 666(a) because the government did not allege that the jobs in question were

unnecessary or that the salaries that the employees received were not bona fide

for those jobs). As the district court in Abney stated, 

This was not a situation in which Defendants decided to depart

early from work or failed to work their regular hours. Rather,

Defendants were obtaining money through fraudulent means, which

essentially amounts to stealing or misappropriation of funds. As a

result, their compensation was neither “bona fide” nor received “in

the ordinary course of business.”

Abney, 1998 WL 246636, at *2; see also United States v. Shelton, 816 F. Supp.

1132, 1137 (W.D. Tex. 1993) (“Subsection (c) of Section 666 does not serve to

absolve the Defendant of wrongdoing merely because the funds were used to pay

a ‘salary,’ especially where that ‘salary’ is not bona fide.”). Much like the

defendants in these previous cases, Williams fails to show how the extra

payments were part of her bona fide salary. Therefore, we hold that § 666(c)

does not exempt Williams from prosecution because a reasonable jury could

conclude that the extra checks she received were not a part of her bona fide

salary earned in the usual course of business.

B. The government presented sufficient evidence to convict Williams

of conspiracy and aiding and abetting Hogsett in her

embezzlement

The jury found Williams guilty of conspiracy to commit and aiding and

abetting Hogsett’s embezzlement. Regarding the conspiracy conviction, Williams

argues that the government failed to show that she entered into any agreement

with Hogsett.4 As to aiding and abetting, Williams asserts that the government

presented no evidence that she knew about Hogsett’s crime. Williams rests her
No. 06-60963

5 The district court properly instructed the jury that it needed to find that Williams and

Hogsett had at least an implicit agreement to convict Williams of a conspiracy.

8

claim on the fact that signing payroll checks was part of her job, making the

evidence that she signed Hogsett’s extra paychecks insufficient to demonstrate

criminal intent. The evidence, however, belies Williams’s arguments. 

A reasonable jury could infer that Williams and Hogsett had an implicit

agreement to assist each other in obtaining extra checks above their regular

salaries. See United States v. Freeman, 434 F.3d 369, 376 (5th Cir. 2005) (noting

that a conspiracy can consist of an informal or tacit understanding between the

conspirators).5 Hogsett testified that she and Williams prepared extra checks

for each other over the span of three years. Given that the government

presented sufficient evidence that Williams knew she was not entitled to her

own additional checks, a reasonable jury could infer that Williams also assisted

Hogsett in fraudulently obtaining Hogsett’s extra compensation. That is, the

jury relied on more than just the fact that Williams signed Hogsett’s checks to

convict Williams for her involvementin Hogsett’s criminal activity. Instead, the

jury’s conclusion that Williams violated § 666(a) for receiving her own extra

checks and Hogsett’s testimony that they were both involved in the scheme

provides support for its conclusion that Williams conspired with and aided and

abetted Hogsett in embezzling the City’s funds. In short, viewing the evidence

in the light most favorable to the government, a reasonable jury could convict

Williams of conspiracy and aiding and abetting Hogsett in her embezzlement.

III. CONCLUSION 

For the reasons stated above, we affirm Williams’s conviction. 

AFFIRMED.