                               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,    │
                                                                │
                                                                 >        No. 17-5064
            v.                                                  │
                                                                │
                                                                │
 ROBERT PORTER,                                                 │
                                      Defendant-Appellant.      │
                                                                ┘

                             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-in-
chief:

         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
