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.

REVISED March 24, 2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10905

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ROY DAVID WILLIAMS,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:09-CR-33-1

Before DAVIS, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

A jury found Roy David Williams guilty on 29 counts stemming from a

scheme to defraud the Department of Energy by overbilling one of its

contractors, B & W Pantex (Pantex), for work performed by Williams’s company,

WAATTS, Inc. (WAATTS), at a nuclear facility operated by Pantex and funded

by the Department of Energy. Specifically, Williams was convicted of wire fraud,

United States Court of Appeals

Fifth Circuit

F I L E D

October 6, 2010

Lyle W. Cayce

Clerk
No. 09-10905

2

producing false invoices billing Pantex for unjustified per diems with the

purpose of defrauding the United States, presenting false time sheets to a

United States agency, and receiving public money knowing it was obtained by

fraud. He was sentenced to a total of 30 months of imprisonment, to be followed

by a total of 5 years of supervised release, and ordered to pay $168,848 in

restitution.

Williams’s defense in the district court, and his primary contention on

appeal, was that the three contracts between Pantex and WAATTS were “fixedprice” contracts, which he argued meant that WAATTS was entitled to receive

progress payments based on the percent of the projects WAATTS had completed

and, once the work was complete, it was entitled to the full amount of the

contract price. Thus, in Williams’s view, even if he provided Pantex with false

invoices and time sheets, he was not guilty because he received only what he was

entitled to under the contracts. 

Williams first argues, as he did in the district court, that the dispute in

this case amounts to a disagreement between WAATTS and Pantex over the

terms of their contracts, that the contracts were not federal procurement

contracts, and thus that the federal courts lack jurisdiction. However, the

Government did not allege that Williams is liable to it under a theory of contract

law. Rather, this is a criminal proceeding alleging violations of federal criminal

statutes. Federal district courts have jurisdiction over all cases in which a

defendant is charged with a federal offense. 18 U.S.C. § 3231; United States v.

Clark, 577 F.3d 273, 281 (5th Cir.), cert denied, 130 S. Ct. 809 (2009). To the

extent that Williams argues that the indictment was insufficient because it did

not allege that WAATTS had a contract with the government, he still cannot

succeed because the existence of a government contract is not an element of any

of the offenses that he was charged with. See 18 U.S.C. §§ 287, 494, 641, 1343.

Williams also challenges the district court’s failure to grant his request to

instruct the jury that the contracts were fixed-price contracts and its decision to
No. 09-10905

3

allow a Pantex employee to testify as to the contracts’ meaning, contending that

construction of the unambiguous contracts was a question of law for the judge

to determine. As for the jury instruction, Williams must show that there was a

sufficient evidentiary foundation for his proposed instruction and that the

district court abused its discretion in refusing to give it. See United States v.

Reagan, 596 F.3d 251, 255 (5th Cir. 2010). Williams cannot prevail, however,

because he cannot surmount the first hurdle by showing that the contracts were

fixed-price contracts. Williams contends that the Federal Acquisition

Regulations, laid out in the Code of Federal Regulations, apply to the contracts

between Pantex and WAATTS and require that all government contracts “must

fall withing two mandated categories”—fixed-price contracts or costreimbursement contracts. See 48 C.F.R. §§ 16.101(b), 16.201. However, he

simply presumes that the contracts are governed by the Federal Acquisition

Regulations without presenting any evidence that the contracts are government

acquisition contracts. To the contrary, all of the evidence supports the opposite

conclusion. The United States is not a party to the contracts. Cf. 48 C.F.R.

§§ 1.104, 2.101 (defining an acquisition that is subject to the federal rules and

as a contract for supplies and services “by and for the use of the Federal

Government”). Indeed, Pantex’s Procurement Manuel explains that “Pantex’s

procurements are not Federal procurements, and are not directly subject to the

Federal Acquisition Regulations (FAR) in 48 CFR.” Furthermore, the contracts

and the documents incorporated into the contracts establish that Pantex was not

required to pay periodic progress payments based on the percentage of the

project WAATTS completed nor was it was obligated to pay the entire contract

price regardless of the amount of time WAATTS employees worked. To the

contrary, Pantex and WAATTS specifically agreed that WAATTS would be paid

only for the time that its employees actually worked on the projects.

As for the challenged testimony, Williams argues that, though the witness

was called to provide fact testimony, her testimony regarding the nature of the
No. 09-10905

4

contract amounted to impermissible expert testimony about an issue of law—the

proper construction of a contract. Williams objected to the testimony at trial;

thus, we review the district court’s decision to allow it for abuse of discretion.

United States v. McMillan, 600 F.3d 434, 456 (5th Cir. 2010). The testimony was

admissible. As a lay witness, the Pantex employee was permitted to provide

opinions based on her personal knowledge, though she was not permitted to

opine on subjects that required technical or specialized knowledge. See FED. R.

EVID. 701, 702; McMillan, 600 F.3d at 456. She testified that she was

responsible for managing the contracts with WAATTS and so she had personal

knowledge of each party’s responsibilities under them. In describing the

contracts and invoicing procedures, she provided no expert opinion that required

specialized knowledge of contract law. She merely explained how the parties

operated under the contract and testified that the contracts were target-price

contracts (and not fixed-price contracts) based on her knowledge of the contracts

as the contract manager and her observation of the parties’ performance. Cf.

United States v. Riddle, 103 F.3d 423, 428-29 (5th Cir. 1997) (explaining that a

lay witnesses may express opinions that required specialized knowledge where

the testimony was based on personal experience). Moreover, her testimony that

the contracts were target-price contracts that required Pantex to pay only for the

amount of time WAATTS employees spent working on the projects was

consistent with conclusions that an ordinary person could draw from reviewing

the contracts and the documents incorporated into them. See United States v.

Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008).

Finally, Williams advances three arguments that amount to challenges to

the sufficiency of the evidence used to convict him. After trial, Williams filed a

timely motion for acquittal based in part on his argument that the evidence was

insufficient to support his conviction. See Fed. R. Crim. P. 29(c). In the

alternative, he requested a new trial. The district court denied the motion.

Williams, thus, has preserved his sufficiency-of-the-evidence challenge for
No. 09-10905

5

appellate review. See United States v. Villareal, 324 F.3d 319, 322 (5th Cir.

2003). Accordingly, we review the issue de novo, viewing the evidence and

drawing all reasonable inferences in the light most favorable to the verdict, to

determine whether a rational trier of fact could have found Williams guilty. See

United States v. Ollison, 555 F.3d 152, 158 (5th Cir. 2009). We review the

decision to deny a new trial for abuse of discretion. See United States v. Arnold,

416 F.3d 349, 360 (5th Cir. 2005).

Williams contends that the evidence was insufficient to convict him of the

charges stemming from his submission of false time sheets and invoices,

asserting that he received no more that he was entitled to under the terms of the

contracts and thus that any false statements he made were immaterial.

Williams’s argument fails because witness testimony and documentary evidence

established that the contracts were target-price contracts under which WAATTS

was to be paid for the amount of time its employees worked plus allowable per

diems and was not entitled to payment of the contract price absent proper

invoices that this amount had been earned. Thus, the evidence was sufficient

for the jury to conclude that in claiming unjustified per diems, Williams

presented false claims for payment, and in altering time sheets, he falsified

writings for the purposes of defrauding the United States. 

Next, Williams argues that the Government failed to link the evidence to

the particular counts related to two of the contracts, but he is wrong. For each

count, the Government listed on the indictment the date of the offense and the

relevant invoice number, and at trial it offered into evidence the invoices and

proof that Pantex paid them. For each charge related to the per diems, the

Government submitted evidence that the relevant invoices contained charges for

unjustified per diems, and for each charge related to the forged time sheets, the

Government submitted evidence that Williams had altered employee time sheets

that corresponded to each invoice or billed for his own time when he was not

working on authorized projects. Moreover, a criminal investigator and special
No. 09-10905

6

agent from Department of Energy and a Pantex employee testified regarding

each of the invoices, explaining why each was fraudulent.

Finally, Williams argues that the evidence was insufficient to support the

jury’s finding relating to the amount of the loss, because, in his view, the

Government failed to prove that one of WAATTS’s employees, Mark Armstrong,

was not entitled to per diems. WAATTS employees who lived more than 45

miles away from the Pantex facility were entitled receive a per diem from Pantex

for each day they worked at the facility. The facility is within 45 miles of

Amarillo, Texas. The evidence established that Armstrong received per diems

based on his false representation to Pantex that he lived in Leonard, Texas; the

investigation showed that he provided what seems to be his mother-in-law’s

address. Armstrong testified that he had a home in Amarillo and the

Department of Energy investigator confirmed that Armstrong had lived in

Amarillo since around 1994. Though Armstrong also testified that he had a

house in Georgia, the evidence that Armstrong lied about his address combined

with the testimony of the investigator that Armstrong lived in Amarillo was

sufficient for the jury to conclude that Armstrong was not entitled to a per diem.

Accordingly, the judgment of the district court is AFFIRMED.