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

U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

R OBERT P ORTER , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ 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. Wohlande r, WOHLANDER LAW OFFICE, PSC, Lexi ngton, Kentucky, for Appellant. Charles P. Wisdom, Jr., Jenni fer A. Williams, UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.

_________________ ORDER

_________________ Robert Porter, a federal prisoner, appeals the district court’s judgme nt of conviction. The parties have waived oral argument, and this pane l 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 supers eding 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 co ncerning programs receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(B). The indictment arose, in pe rtinent part, from Porter using his power and influence as mayor of Paintsville, Kentucky, to steer bu siness 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 rece ived payments disguised as loans. Porter made a motion for judgment of acquittal follow ing 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 th at 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 vi olated his confrontation rights. Third, Porter argues that the admission of anot her witness’s deposition testim ony 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 ev idence to support his conviction for bribery concerning programs receiving federal funds in vi olation of § 666(a)(1)(B). Specifically, he argues that the prosecutor failed to present ev idence 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). Add itionally, Porter contends that the government failed to present evidence demonstrating that he ever accepted “anyt hing of value . . . intending to be influenced or rewarded in connection with a ny 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 factNo. 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 dema nd[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 seri es of transactions of such organization, government, or ag ency 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 gove rnment’s burden when prosecuting an individual under § 666(a)(1)(B) must be the same as in prosecuti ons under the federal bribery statute, 18 U.S.C. § 201, and the Hobbs Act, 18 U.S.C. § 1951. Specifica lly, Porter asserts that § 666(a)(1)(B) is a bribery statute in form and substance like its co unterparts 18 U.S.C. §§ 201 and 1951 and, thus, a conviction under § 666(a)(1)(B) requires evid ence 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 te rm “official act” as it appears in § 201, an enti rely different statute than the one at issue here. Moreover, our precedent explicitly fo recloses 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, expre ss or otherwise: while a ‘ quid pro quo of money for a specific . . . act is sufficient to violate the st atute,’ 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’ ‘any thing of value’ with the ‘inten[t] to be influenced or rewarded in connection’ with so me 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) (emphasi s added). Accordingly, Porter’s McDonnell -based argument is without merit. Porter next argues that the government fa iled to meet its burden of production with respect to the specifi c-intent element of § 666(a)(1)(B). Howe ver, a review of the record reflects that Porter waived his sufficiency-of-the-evid ence argument on this point. “Although specificity in a Rule 29 motion is not required, where th e 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 w ould start with the bribery count first, and I would offer, Your Honor, that at this point in time [McDon nell] versus United States the — the United Stat es has not offered any proof to support that there was a bribe or any agreement on the part of Robe rt Porter to do anything in his official capacity in this case as it re lates to — and I believe that there were — bribes have to do with the three loans. So under the authority of [McDonnell] ve rsus United States, I believe Count 4 needs to be dismissed.
The remainder of defense counsel’s Rule 29 moti on pertained to the othe r 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 therefor e 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 Witnesse s’ 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 inte rview on April 10, 2015. Chet Crace asserted his Fifth Amendment privilege against self-incrimina tion at trial. Thereafter, Detective Amos testified regarding Chet Crace’s: (1) inability to explain discrepa ncies in two storage bills that his father’s company had submitted to the City of Paintsville; (2) statements made concerningNo. 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 destr oyed 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 cour t’s evidentiary ru lings for an abuse of discretion. Griffin v. Finkbeiner , 689 F.3d 584, 592 (6th Cir. 2012). But whethe r 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 revi ewing court is left with the definite and firm conviction that the trial court comm itted 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)). H earsay is “an out-of-court statem ent ‘offered in evidence to prove the truth of th e 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 confront ation rights because they were not offered to prove the truth of the matter asserted. Rather, it was the government ’s position that Chet Cr ace’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 statemen ts 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 statemen ts 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 c onfrontation rights were violat ed when the district court permitted the government to admit the deposition te stimony 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. C ONST . amend. VI. Under the Confrontation Clause, testimonial, out-o f-court statements offe red 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. Porte r’s argument hinges on the “unavailability” portion of Crawford’s holding. We review for abuse of disc retion 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 cl aims 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 illne ss need only be in probability long enough so that, with proper regard to the importance of the te stimony, 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 f iled 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 tes tify at trial. Counsel for the government subsequently emailed a letter from Miller’s doctor to th e district court and Po rter’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 lett er went on to say that Miller was “quite ill and unable to present in c ourt as a witness” and th at a recent surgical pr ocedure had left MillerNo. 17-5064 United States v. Porter Page 7

“weak,” “unable to get out of be d,” “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 exte nded 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 fo r 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-ex amine Miller at her deposition, and because the government sufficiently demonstrated her unavailability to tes tify at trial, no Confrontation Clause violation occurred. The district court ther efore did not abuse its discretion in admitting Mill er’s deposition at trial.

C. Cumulative Error Doctrine Finally, Porter argues that the cumulative e ffect 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 ne w trial. “A cumulative error claim alleges a violation of a defendant’s due pr ocess right to a fair trial.” United States v. Eaton , 784 F.3d 298, 310 (6th Cir. 2015). “However, cumulative-error an alysis 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 statemen ts 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