IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-30907

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee,

v.

MICHAEL DEWAYNE WILLIAMS, 

 Defendant – Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

No. 5:15-CR-63-1

Before JOLLY and ELROD, Circuit Judges, and STARRETT, District Judge.*

PER CURIAM:**

Michael Dewayne Williams was convicted of eleven counts of wire fraud 

in violation of 18 U.S.C. § 1343 in connection with a scheme to fraudulently 

obtain money from the Caddo Parish Commission. Williams challenges his 

conviction, arguing that it is not supported by sufficient evidence. He also 

argues that the district court erred in allowing the introduction of inadmissible 

 

* District Judge of the Southern District of Mississippi, sitting by designation. 

** 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.

United States Court of Appeals

Fifth Circuit

FILED

October 19, 2017

Lyle W. Cayce

Clerk

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extrinsic evidence and contends that this same evidence constituted a material 

variance from the indictment. Williams also challenges his sentence, arguing 

that his restitution order was improper. We AFFIRM his conviction and 

sentence except as to the restitution order, which we VACATE.

I.

Defendant Michael Dewayne Williams incorporated SWAG Nation USA, 

Inc. (SWAG Nation) in September 2012. SWAG Nation focused on characterbuilding for at-risk youth.1 After organizing SWAG Nation, Williams did not 

have a formal role within the company. However, his now fiancée, Mary 

Hughes, was the treasurer. 

At the same time, Williams served as a Commissioner on the Caddo 

Parish Commission. At a public meeting for the Parish Commission, Williams 

moved for a $100,000 appropriation to fund SWAG Nation’s Gentleman’s 

Etiquette Academy. Williams voted in favor of this appropriation, and the 

measure passed with six votes in favor and five votes in opposition. Williams 

did not disclose that he was involved in SWAG Nation. According to a 

commissioner’s testimony at trial, commissioners could not vote for

appropriations in which they had a financial interest. This same commissioner

also testified that he would have voted against the measure had he known that 

Williams had a financial interest in this appropriation. 

After the measure passed, the Parish Commission and SWAG Nation 

entered into a contract for a youth etiquette program. Under this contract, 

Caddo Parish Juvenile Court recommended participants for the program, and 

in turn, SWAG Nation received $350 per participant from the Parish

Commission. The Parish Commission paid SWAG Nation after each program 

 

1 SWAG stands for “Style With American Glory.” SWAG Nation is a program designed 

to prepare young men for future education and to help them become productive members of 

society. 

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concluded. That is, SWAG Nation did not receive funds until the program 

concluded. 

After SWAG Nation received its first payment from the Parish 

Commission, SWAG Nation’s financial manager Harold Robinson and 

Williams met to acquire debit cards for SWAG Nation’s bank account. One 

debit card was issued in Robinson’s name, and the other card was issued in 

Hughes’s name. Williams left that meeting in possession of his fiancée’s debit 

card. Over a number of months, Williams used this debit card to make 

numerous cash withdrawals from SWAG Nation’s bank account. The 

Government presented evidence that Williams’s total debit charges amounted 

to $8,590.68.2

After Williams began withdrawing from SWAG Nation’s bank account, 

he told Words in Action, another local organization, about a funding 

opportunity with the Parish Commission. Words in Action successfully 

obtained a $14,000 grant from the Parish Commission. Following Williams’s 

suggestion, Words in Action transferred $9,000 of the grant to SWAG Nation, 

and in exchange, SWAG Nation agreed to complete the youth programming. 

When SWAG Nation received these funds from Words in Action, its bank 

account was negative. 

When the Parish Attorney learned about the transfer, she informed all 

parties that this transfer violated the specific Words in Action grant 

agreement. The Parish Attorney also notified the parties that they would need 

to repay the money. Williams himself assured the Parish Attorney that the 

money would be returned. However, $6,100 of the $9,000 were never repaid. 

During the initial investigation, Williams met with law enforcement 

 

2 It is unclear why the district court ordered Williams to pay six dollars less ($8,584.68) 

than this amount in restitution, but this differential is not in dispute on appeal.

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officers. In this interview, Williams produced a statement, apologizing for his 

conduct. His statement said, “[M]y role in SWAG Nation USA, Inc. was wrong 

and unacceptable.” He also acknowledged that he used Hughes’s SWAG Nation 

debit card “for personal use.” 

Williams pleaded not guilty. At trial, Hughes testified that Williams 

used her SWAG Nation debit card, but she claimed he was authorized to use it 

as reimbursement for money spent organizing SWAG Nation. She admitted 

she did not see any receipts for these expenses. At the conclusion of the 

government’s case, Williams moved for a judgment of acquittal pursuant to 

Federal Rule of Criminal Procedure 29. The district court denied this motion. 

The jury convicted Williams of eleven counts of wire fraud. The district 

court sentenced Williams to a term of imprisonment of 14 months and ordered

restitution in the amount of $8,584.68 to the Parish Commission. Williams 

timely appealed. 

II.

On appeal, Williams argues that the evidence presented at trial was 

insufficient to support his conviction. He also contends (1) that the district 

court erred in admitting evidence of the $9,000 transfer from Words in Action 

to SWAG Nation, and (2) that the introduction of this evidence constituted a 

prejudicial, material variance from the indictment. Last, he argues that the 

district court erred in its restitution order. 

A. Sufficiency of Evidence 

Williams challenges the sufficiency of the evidence as to his conviction 

under 18 U.S.C. § 1343. Because Williams preserved this issue through his 

Rule 29 motion at trial, the standard of review is de novo. United States v. 

Davis, 735 F.3d 194, 198 (5th Cir. 2013). We view all evidence in the light most 

favorable to the government and draw all reasonable inferences in favor of the 

jury’s verdict. United States v. Eghobor, 812 F.3d 352, 362 (5th Cir. 2015). 

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“[T]he relevant question is whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could have found 

the essential elements of the crime beyond a reasonable doubt.” Jackson v. 

Virginia, 443 U.S. 307, 319 (1979).

To support a wire fraud conviction, the government must prove: (1) a 

scheme to defraud; (2) the use of, or causing the use of, wire communications 

in furtherance of the scheme; and (3) a specific intent to defraud. United States 

v. Harris, 821 F.3d 589, 598 (5th Cir. 2016). Because the parties stipulated to 

Williams’s use of interstate wire communications, the dispute is limited to 

whether there was a “scheme to defraud” and whether Williams had the 

“specific intent to defraud.” 

To prove a scheme to defraud, the government must show that the 

defendant made a false or fraudulent material misrepresentation. See Harris, 

821 F.3d at 598. Relevant here, a concealment of material facts establishes 

common-law fraud, as incorporated into this wire fraud statute. See 

Pasquantino v. United States, 544 U.S. 349, 357 (2005). Next, to prove a specific 

intent to defraud, the government must show the defendant’s “conscious 

knowing intent to defraud.” United States v. Brown, 459 F.3d 509, 519 (5th Cir. 

2006) (quoting United States v. Reyes, 239 F.3d 722, 736 (5th Cir. 2001)). Proof 

of intent can arise “by inference from all of the facts and circumstances 

surrounding the transactions.” United States v. Keller, 14 F.3d 1051, 1056 (5th 

Cir. 1994) (quoting United States v. Shively, 927 F.2d 804, 814 (5th Cir. 1991)). 

In this case, the evidence was sufficient for a reasonable jury to find 

Williams guilty of wire fraud. It is rational to conclude that Williams’s failure 

to disclose his relationship with SWAG Nation to the Parish Commission 

constitutes a fraudulent material misrepresentation by concealment, 

establishing a scheme to defraud. As a commissioner, Williams was prohibited 

from voting on an appropriation in which he had a financial interest. Still, 

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Williams moved to approve a dispersal of funds and then subsequently took

these funds from the recipient, a corporation he organized. A reasonable jury 

could conclude that he did not disclose his relationship with SWAG Nation 

because he was orchestrating the vote to obtain these funds for his own use. 

Likewise, it was reasonable for the jury to find that Williams had a 

specific intent to defraud. With Hughes conspicuously absent, he obtained and 

then used a debit card in her name. He also personally instigated a transfer of 

funds from Words in Action to SWAG Nation, an organization with which he 

had no formal role, when its bank account balance was negative. In addition, 

Williams’s own statement acknowledged “inappropriate” wrongdoing and his 

personal use of the funds. In light of this evidence, a reasonable jury could infer 

that Williams’s self-described “inappropriate” conduct involved a conscious 

knowing intent to defraud.

Williams’s sufficiency-of-the-evidence challenge fails. 

B. Admissibility of Evidence 

Williams next argues that evidence about the transfer of Words in Action

funds to SWAG Nation constituted inadmissible evidence under Federal Rule 

of Evidence 404(b). Specifically, he contends that the evidence was extrinsic, 

and therefore inadmissible, because the transfer was not part of the alleged 

scheme to defraud. Williams argues that the Words in Action grant was 

fundamentally different than the unrestricted funding that SWAG Nation 

received. Our standard of review for a district court’s evidentiary rulings is

abuse of discretion. United States v. Sanders, 343 F.3d 511, 517 (5th Cir. 2003). 

Extrinsic evidence is inadmissible “to prove propensity to commit the 

charged crime, see rule 404(a), but may be admissible for other purposes

enumerated under rule 404(b).” United States v. Freeman, 434 F.3d 369, 374 

(5th Cir. 2005). However, “[i]ntrinsic evidence is generally admissible.” Id. To 

determine whether evidence is intrinsic, courts consider whether the evidence 

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is “inextricably intertwined” with the crime charged, whether there was a

“single criminal episode,” or whether the other acts were “necessary 

preliminaries” to the crime charged. Id. (quoting United States v. Williams, 900 

F.2d 823, 825 (5th Cir. 1990)).

The district court did not abuse its discretion in admitting the evidence 

regarding the transfer of Words in Action funds to SWAG Nation because it 

was intrinsic to the charged offense involving Williams’s scheme to acquire

funds through SWAG Nation. As alleged in the indictment and advanced to 

the jury, Williams devised a scheme to obtain public funds for personal use 

through SWAG Nation. Like the SWAG Nation appropriation, the Words in 

Action funding was secured from the same source, the Parish Commission, 

and—at the suggestion of Williams—placed into SWAG Nation’s bank account, 

to which Williams had access. According to the government, Williams arranged 

the Words in Action transfer to replenish SWAG Nation’s depleted account, 

concealing his fraud and ensuring personal access to funds in the future. Under 

the government’s theory, the transfer of Words in Action funds was intertwined 

with and a part of Williams’s scheme to obtain funds illegally. As such, the 

district court did not abuse its discretion in admitting evidence of this transfer.

C. Material Variance

Williams also contends that the introduction of this same evidence 

constituted a material variance from the indictment that prejudiced his

substantial rights. According to Williams, the evidence was prejudicial because 

the jury could have inferred that the Parish Commission restricted SWAG 

Nation’s and Words in Action’s funds in the same way.

Because the Words in Action funds transfer was intrinsic to the charged 

offense, his variance argument lacks merit. See Freeman, 434 F.3d at 375 

(holding that because evidence was intrinsic to the charged offense, there was

no variance). As such, his challenge fails.

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D. Restitution Order

Finally, Williams contends that the district court erred in ordering him 

to pay restitution to the Parish Commission. According to Williams, because 

the Parish Commission received the full benefit of its contract with SWAG 

Nation, the Parish Commission is not a victim, and thus, the order of 

restitution was improper. Because the district court did not focus on the 

pecuniary impact of Williams’s scheme on the Parish Commission, we conclude 

that its restitution order is improper.

We review the legality of restitution awards de novo for preserved 

challenges. United States v. Rosbottom, 763 F.3d 408, 419 (5th Cir. 2014). The

Mandatory Victims Restitution Act (MVRA) grants the district court the power 

to award restitution to victims. 18 U.S.C. § 3663A(a)(1)(A). However, 

restitution is limited to “only those losses that resulted directly from the 

offense for which the defendant was convicted.” United States v. Maturin, 488 

F.3d 657, 660–61 (5th Cir. 2007). Here, the dispute is whether the Parish 

Commission is entitled to restitution for any loss. 

In ordering restitution, the court must consider the “victims’ loss,” not 

the gross gain by the defendant. United States v. Klein, 543 F.3d 206, 215 (5th 

Cir. 2008). When services are rendered, this court calculates the victim’s loss 

based on the difference between the contract price and the fair market value 

of the services rendered by the defendant. See Harris, 821 F.3d at 605 (applying 

general loss principles in its review of a district court’s determination of the 

amount of loss for sentencing purposes). As a result, the inquiry centers on the 

pecuniary impact on the victims themselves. Id. at 606. For example, if the

victim would have paid some amount of money to the defendant regardless of 

the fraudulent scheme, then the defendant’s gross gain is not equivalent to the 

victim’s loss. See Klein, 543 F.3d at 215; see also Harris, 821 F.3d at 605–08 

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(holding that the district court erred when it treated the entire contract price 

as loss when victims “got what they paid for”); United States v. Jimenez, 77 

F.3d 95, 99–100 (5th Cir. 1996) (holding that a victim under the Victim and 

Witness Protection Act suffered no loss when he purchased goods at or below 

market price from the defendant).

In this case, we conclude the restitution order was improper. There is 

nothing to suggest that the Parish Commission did not receive the services for 

which it contracted, nor to suggest that it paid more than the fair market value.

The Parish Commission paid SWAG Nation after the contracted-for program 

was held. In doing so, the Parish Commission acknowledged that SWAG 

Nation had fulfilled its side of the arrangement. Only after this dispersal of 

funds, essentially a payment for SWAG Nation’s services, did Williams begin 

withdrawing SWAG Nation funds for his personal use. While his scheme 

necessarily involved the Parish Commission, the Parish Commission suffered 

no pecuniary loss as a result of Williams’s use of the SWAG Nation’s debit card. 

In fact, the Probation Officer testified, based on a phone call with the Parish 

Attorney, that the Parish Commission was not reporting this amount as a loss 

of income, and it did not consider itself a victim here.3 Thus, the Parish 

Commission was not entitled to restitution.

Nevertheless, without any further explanation, the district court found

that the Parish Commission was the identifiable victim of the fraud and

ordered restitution in the amount of $8,584.68, the amount of money that 

Williams charged to the SWAG Nation debit card. Confusingly, the specific

amount of restitution is calculated based on the amount Williams took from 

SWAG Nation, via the debit card, and not the amount dispersed from the 

 

3 The district court also noted during sentencing that the Parish Commission did not 

pass a resolution to decline to receive or to decline to view itself as the victim in this case. 

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Parish Commission: $16,450. Williams has been ordered to pay the Parish 

Commission based on the amount of money he took from SWAG Nation.4

In defense of the restitution order, the government cites United States v. 

Crawley, 533 F.3d 349 (5th Cir. 2008). In Crawley, the defendant, a union 

president, was ordered to return his salary and pension to the union because 

he obtained his president position by voter fraud. 533 F.3d at 359. Similarly, 

the government argues that it is appropriate for Williams to repay the Parish 

Commission since the appropriation only passed because he did not disclose 

his interest in SWAG Nation.

However, Crawley is distinguishable. First, in Crawley, the defendant 

argued that only a portion of the restitution award did not constitute an actual 

loss to the victim. Id. at 358. By conceding another part of the restitution order 

was proper, he implicitly acknowledged that there was some harm to the union,

to justify awarding restitution.

Second, in Crawley, there is no SWAG Nation equivalent lurking in the 

background. There, the district court calibrated the restitution order in light 

of the victim: the union. Id. at 358–59. Presumably, the union suffered loss 

when it paid salary and pension to someone who obtained the position by voter 

fraud. In our case, the government contends that the Parish Commission would 

not have given money to SWAG Nation if Williams, as a commissioner, had 

disclosed his financial interest in the organization. Even if this is true, the 

Parish Commission received the very services for which it contracted: youth 

programming, and it did not suffer a loss. See Harris, 821 F.3d at 605–08. 

“Restitution is remedial in nature; its goal is to make the victim whole.” 

United States v. Sanjar, 853 F.3d 190, 215 (5th Cir. 2017). Unlike forfeiture, 

 

4 At the time of Williams’s sentencing, SWAG Nation was defunct. 

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restitution is not punitive. Id. When the victim is already whole—having 

already received contracted-for benefits—restitution is not appropriate. 

As the restitution order stands now, it is not focused on the pecuniary 

impact on the Parish Commission, the identified victim, and as such, it is 

improper.

III.

For the foregoing reasons, we AFFIRM his conviction and sentence 

except as to the restitution order, which we VACATE.

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