RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 18a0061p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

ROBERT PORTER, 

Defendant-Appellant. 

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No. 17-5064 

Appeal from the United States District Court 

for the Eastern District of Kentucky at Pikeville. 

No. 7:15-cr-00022-1—Danny C. Reeves, District Judge. 

Decided and Filed: February 12, 2018*

Before: COLE, Chief Judge; MERRITT and BOGGS, Circuit Judges. 

_________________ 

COUNSEL 

ON BRIEF: Jarrod J. Beck, LAW OFFICE of R. MICHAEL MURPHY, PLLC, Lexington, 

Kentucky, Mark A. Wohlander, WOHLANDER LAW OFFICE, PSC, Lexington, Kentucky, for 

Appellant. Charles P. Wisdom, Jr., Jennifer A. Williams, UNITED STATES ATTORNEY’S 

OFFICE, Lexington, Kentucky, for Appellee. 

_________________ 

ORDER 

_________________ 

Robert Porter, a federal prisoner, appeals the district court’s judgment of conviction. The 

parties have waived oral argument, and this panel unanimously agrees that oral argument is not 

needed. See Fed. R. App. P. 34(a). 

 *

This decision was originally filed as a panel order on February 12, 2018. The court has now designated 

the order for publication. 

>
No. 17-5064 United States v. Porter Page 2

 In 2016, a federal grand jury returned a superseding indictment charging Porter with three 

counts of theft concerning programs receiving federal funds, in violation of 18 U.S.C. 

§ 666(a)(1)(A), and one count of bribery concerning programs receiving federal funds, in 

violation of 18 U.S.C. § 666(a)(1)(B). The indictment arose, in pertinent part, from Porter using 

his power and influence as mayor of Paintsville, Kentucky, to steer business and contracts to 

companies owned by his co-defendant, Eulas Crace, as well as to ensure payment of a fraudulent 

invoice to Crace’s company. In return, Porter received payments disguised as loans. Porter 

made a motion for judgment of acquittal following the government’s case-in-chief, which the 

district court denied. The jury found Porter guilty of two counts under § 666(a)(1)(A) and guilty 

of one count under § 666(a)(1)(B). The district court sentenced Porter to a 48-month term of 

imprisonment, and Porter timely appealed. 

 Porter advances four arguments on appeal. First, he argues that his conviction under 

§ 666(a)(1)(B) is unsupported by sufficient evidence. Second, he contends that the admission of 

a witness’s prior statements to investigators violated his confrontation rights. Third, Porter 

argues that the admission of another witness’s deposition testimony violated his confrontation 

rights. Finally, he contends that cumulative error requires the reversal of his convictions. 

A. Sufficiency of the Evidence 

Porter argues that there is insufficient evidence to support his conviction for bribery 

concerning programs receiving federal funds in violation of § 666(a)(1)(B). Specifically, he 

argues that the prosecutor failed to present evidence showing that he contemplated a quid pro 

quo, express or implied, “in connection with” any “official act” in his capacity as Mayor of 

Paintsville. § 666(a)(1)(B). Additionally, Porter contends that the government failed to present 

evidence demonstrating that he ever accepted “anything of value . . . intending to be influenced 

or rewarded in connection with any business, transaction, or series of transactions” of the City of 

Paintsville. Id. Porter does not contest the sufficiency of the evidence with respect to his 

convictions under § 666(a)(1)(A). 

When reviewing sufficiency-of-the-evidence claims, a court must determine “whether, 

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact 
No. 17-5064 United States v. Porter Page 3

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

Virginia, 443 U.S. 307, 319 (1979). To prove theft of federal funds, the prosecution must show 

that Porter was “an agent of an organization, or of a State, local, or Indian tribal government, or 

any agency thereof” § 666(a)(1), and that he 

corruptly solicit[ed] or demand[ed] for the benefit of any person, or accept[ed] or 

agree[d] to accept, anything of value from any person, intending to be influenced 

or rewarded in connection with any business, transaction, or series of transactions 

of such organization, government, or agency involving any thing of value of 

$5,000 or more[.] 

§ 666(a)(1)(B). 

 Porter first argues that, pursuant to the Supreme Court’s decision in McDonnell v. United 

States, 136 S. Ct. 2355 (2016), the government’s burden when prosecuting an individual under 

§ 666(a)(1)(B) must be the same as in prosecutions under the federal bribery statute, 18 U.S.C. 

§ 201, and the Hobbs Act, 18 U.S.C. § 1951. Specifically, Porter asserts that § 666(a)(1)(B) is a 

bribery statute in form and substance like its counterparts 18 U.S.C. §§ 201 and 1951 and, thus, a 

conviction under § 666(a)(1)(B) requires evidence of a quid pro quo “in connection with” any 

“official act.” 

Porter’s reliance on McDonnell is misplaced. In McDonnell, the Supreme Court limited 

the interpretation of the term “official act” as it appears in § 201, an entirely different statute than 

the one at issue here. Moreover, our precedent explicitly forecloses Porter’s argument on this 

point. We have held that the text of § 666(a)(1)(B) “says nothing of a quid pro quo requirement 

to sustain a conviction, express or otherwise: while a ‘quid pro quo of money for a specific . . . 

act is sufficient to violate the statute,’ it is ‘not necessary.’” United States v. Abbey, 560 F.3d 

513, 520 (6th Cir. 2009) (quoting United States v. Gee, 432 F.3d 713, 714 (7th Cir. 2005)). 

“Rather, it is enough if a defendant ‘corruptly solicits’ ‘anything of value’ with the ‘inten[t] to be 

influenced or rewarded in connection’ with some transaction involving property or services 

worth $5000 or more.” Id. (quoting § 666(a)(1)(B)). We are bound by the holding in Abbey, as 

“a later panel of the court cannot overrule the published decision of a prior panel . . . in the 

absence of en banc review or an intervening opinion on point by the Supreme Court.” 
No. 17-5064 United States v. Porter Page 4

United States v. Lee, 793 F.3d 680, 684 (6th Cir. 2015) (emphasis added). Accordingly, Porter’s 

McDonnell-based argument is without merit. 

Porter next argues that the government failed to meet its burden of production with 

respect to the specific-intent element of § 666(a)(1)(B). However, a review of the record reflects 

that Porter waived his sufficiency-of-the-evidence argument on this point. “Although specificity 

in a Rule 29 motion is not required, where the defendant makes a Rule 29 motion on specific 

grounds, all grounds not specified in the motion are waived.” United States v. Chance, 306 F.3d 

356, 369 (6th Cir. 2002); accord United States v. Wesley, 417 F.3d 612, 617-18 (6th Cir. 2005). 

Here, defense counsel made the following Rule 29 motion following the government’s case-inchief: 

If I could just start off by saying that I would start with the bribery count first, and 

I would offer, Your Honor, that at this point in time [McDonnell] versus United 

States the — the United States has not offered any proof to support that there was 

a bribe or any agreement on the part of Robert Porter to do anything in his official 

capacity in this case as it relates to — and I believe that there were — bribes have 

to do with the three loans. 

So under the authority of [McDonnell] versus United States, I believe Count 4 

needs to be dismissed. 

The remainder of defense counsel’s Rule 29 motion pertained to the other counts contained in 

the indictment, which Porter does not contest on appeal. Thus, as it pertains to his indictment 

under § 666(a)(1)(B), Porter’s Rule 29 motion was specifically limited to his McDonnell-based 

argument, and Porter has therefore waived all other sufficiency-of-the-evidence arguments. The 

district court therefore did not err by denying Porter’s Rule 29 motion for judgment of acquittal. 

B. Admission of Witnesses’ Out-of-Court Statements 

Porter argues that his confrontation rights were violated when the district court permitted 

Detective Amos Mitch Atkins to testify about prior statements made by Chet Crace, Eulas 

Crace’s son, to investigators during an interview on April 10, 2015. Chet Crace asserted his 

Fifth Amendment privilege against self-incrimination at trial. Thereafter, Detective Amos 

testified regarding Chet Crace’s: (1) inability to explain discrepancies in two storage bills that 

his father’s company had submitted to the City of Paintsville; (2) statements made concerning 
No. 17-5064 United States v. Porter Page 5

checks that had been written to Porter’s wife; and (3) statement that certain billing records 

related to the storage invoices had been destroyed in a fire. The district court permitted 

Detective Amos’s testimony regarding Chet Crace’s various statements, determining that the 

testimony was not hearsay because it was offered to prove the making of the statements, whose 

falsity would later be shown. 

We review a district court’s evidentiary rulings for an abuse of discretion. Griffin v. 

Finkbeiner, 689 F.3d 584, 592 (6th Cir. 2012). But whether a statement is hearsay is a legal 

question that we review de novo. See Back v. Nestle USA, Inc., 694 F.3d 571, 577 (6th Cir. 

2012). “An abuse of discretion occurs when the reviewing court is left with the definite and firm 

conviction that the trial court committed a clear error of judgment.” Tennial v. United Parcel 

Serv., Inc., 840 F.3d 292, 301 (6th Cir. 2016) (quoting F.T.C. v. E.M.A. Nationwide, Inc., 

767 F.3d 611, 623 (6th Cir. 2014)). Hearsay is “an out-of-court statement ‘offered in evidence to 

prove the truth of the matter asserted.’” Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 

1073, 1081 (6th Cir. 1999) (quoting Fed. R. Evid. 801(c)). Thus, statements that are offered to 

prove the falsity of the matter asserted are not hearsay. United States v. Hathaway, 798 F.2d 

902, 905 (6th Cir. 1986). 

Detective Atkins’s testimony concerning Chet Crace’s prior statements to investigators 

did not violate Porter’s confrontation rights because they were not offered to prove the truth of 

the matter asserted. Rather, it was the government’s position that Chet Crace’s statements were 

false. See United States v. Sherlin, 67 F.3d 1208, 1216 (6th Cir. 1995) (citing Anderson v. 

United States, 417 U.S. 211, 220-21 (1974) (“[T]he point of the prosecutor’s introducing those 

statements was simply to prove that the statements were made so as to establish a foundation for 

later showing, through other admissible evidence, that they were false.”)). Because the 

government’s position was that Chet Crace’s prior statements to investigators during the April 

10, 2015, interview were false, Atkins’s statements were not hearsay and did not implicate 

Porter’s confrontation rights. See Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004); United 

States v. Thompson, 501 F. App’x 347, 363 (6th Cir. 2012). 

Porter next argues that his confrontation rights were violated when the district court 

permitted the government to admit the deposition testimony of Paintsville’s former city treasurer, 
No. 17-5064 United States v. Porter Page 6

Laura “Jackie” Miller. The Confrontation Clause of the Sixth Amendment protects a criminal 

defendant’s right “to be confronted with the witnesses against him.” U.S. CONST. amend. VI. 

Under the Confrontation Clause, testimonial, out-of-court statements offered against the accused 

to establish the truth of the matter asserted may be admitted only where (1) the declarant is 

unavailable and (2) the defendant has had prior opportunity to cross-examine the declarant. 

Crawford, 541 U.S. at 68. Here, Porter was present with counsel at Miller’s deposition and 

defense counsel cross-examined Miller. Porter’s argument hinges on the “unavailability” portion 

of Crawford’s holding. We review for abuse of discretion the admission of deposition testimony 

at trial in place of a live witness. United States v. Campbell, 845 F.2d 1374, 1378 (6th Cir. 

1988). 

“When the question is one of the health of the witness, there must be ‘the requisite 

finding of necessity’ which is ‘case specific’ in order to dispense with confrontation in open 

court.” Stoner v. Sowders, 997 F.2d 209, 212 (6th Cir. 1993) (quoting Maryland v. Craig, 

497 U.S. 836, 855 (1990)). When the government claims that a witness is unavailable due to 

illness: 

the judge must consider both the duration and the severity of the illness. With 

regard to duration, it is not essential to a finding of unavailability that the illness 

be permanent. The duration of the illness need only be in probability long enough 

so that, with proper regard to the importance of the testimony, the trial cannot be 

postponed. 

Burns v. Clusen, 798 F.2d 931, 937-38 (7th Cir. 1986); see also Stoner, 997 F.2d at 212-13. 

Prior to the start of trial, counsel for the government filed a motion under seal for leave to 

take Miller’s deposition “in order to preserve her testimony for trial.” Within the motion, 

counsel for the government explained that Miller is a cancer survivor but that her cancer had 

recently returned. The motion noted that Miller was scheduled for invasive surgery the week 

before she was expected to testify at trial. Counsel for the government subsequently emailed a 

letter from Miller’s doctor to the district court and Porter’s trial counsel. The letter explained 

that Miller was “unable to appear in court” due to her illnesses, which included stage IV tongue 

cancer, gynecologic cancer, and melanoma. The letter went on to say that Miller was “quite ill 

and unable to present in court as a witness” and that a recent surgical procedure had left Miller 
No. 17-5064 United States v. Porter Page 7

“weak,” “unable to get out of bed,” “unable to travel outside of her home,” and “debilitated.” 

The doctor further opined that it would be unsafe for Miller to try to appear in court and that her 

weakened condition would “continue for an extended period of time (months to a year).” 

Based on the foregoing, the government made a sufficient showing regarding Miller’s 

unavailability to testify at trial. The doctor’s letter was specific as to the nature of Miller’s 

illness and very clearly opined that Miller’s health would be jeopardized if she were required to 

testify at trial. Miller’s doctor and counsel for the government both specifically articulated the 

nature and severity of Miller’s health problems to the district court. Accordingly, because Porter 

was able to, and did, cross-examine Miller at her deposition, and because the government 

sufficiently demonstrated her unavailability to testify at trial, no Confrontation Clause violation 

occurred. The district court therefore did not abuse its discretion in admitting Miller’s deposition 

at trial. 

C. Cumulative Error Doctrine 

Finally, Porter argues that the cumulative effect of the district court erroneously 

admitting Chet Crace’s out-of-court statements and Jackie Miller’s deposition testimony into 

evidence was so prejudicial as to warrant a new trial. “A cumulative error claim alleges a 

violation of a defendant’s due process right to a fair trial.” United States v. Eaton, 784 F.3d 298, 

310 (6th Cir. 2015). “However, cumulative-error analysis is not relevant where no individual 

ruling was erroneous.” United States v. Deitz, 577 F.3d 672, 697 (6th Cir. 2009). The district 

court did not err by admitting Chet Crace’s statements and Jackie Miller’s deposition testimony. 

Accordingly, cumulative error did not render Porter’s trial unfair. See id. 

Based on the foregoing, we AFFIRM the district court’s judgment. 

 ENTERED BY ORDER OF THE COURT 

 Deborah S. Hunt, Clerk