                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 18a0243n.06

                                           No. 17-1666

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                                )
                                                                                  FILED
                                                                             May 15, 2018
                                                         )
                                                                         DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                               )
                                                         )
v.                                                       )     ON APPEAL FROM THE
                                                         )     UNITED STATES DISTRICT
JOSETTE BUENDIA,                                         )     COURT FOR THE EASTERN
                                                         )     DISTRICT OF MICHIGAN
       Defendant-Appellant.                              )
                                                         )
                                                         )

BEFORE:        SILER, ROGERS, and LARSEN, Circuit Judges.

       ROGERS, Circuit Judge.         A jury convicted Josette Buendia, an elementary-school

principal, of federal-programs bribery. She ordered school supplies with federally subsidized

funds from contractor Norman Shy, who shorted the school and made up for the shortages with

gift cards and cash given to Buendia. At trial the district court excluded as irrelevant evidence

that supposedly showed how Buendia spent that kickback money for school-related purposes and

excluded as hearsay receipts purportedly showing expenses paid on behalf of the school.

Buendia now challenges those evidentiary rulings, and also makes arguments regarding the

government’s conduct at trial and whether the evidence presented conformed to the allegations in

the indictment. None of these arguments warrants reversal. This is in large part for the reason

that, even if a defendant spent ill-gotten funds for commendable purposes, that is simply not a

defense to this kind of bribery offense.
No. 17-1666
United States v. Buendia

       As principal of Bennett Elementary School, Josette Buendia took kickbacks from

Norman Shy and had Detroit Public Schools (DPS) pay Shy for supplies he never delivered.

Some of the money DPS paid Shy came from the federal government.

       In 2014, while investigating corruption in Detroit schools, the FBI searched the home of

the supplier, Shy, and found twenty manila folders related to bribery schemes. One folder had a

ledger of kickbacks Shy owed Buendia and requests from Buendia for gift cards.               The

government charged Buendia with one count of conspiracy to commit federal-programs bribery

in violation of 18 U.S.C. § 371, and with two counts of federal-programs bribery in violation of

18 U.S.C. § 666(a)(1)(B).

       The case went to trial. The government called three witnesses relevant to this appeal:

Jonathan Salz, who testified that Buendia bought massages using gift cards from Shy; IRS Agent

John Stromberg, who testified about the manila envelopes; and FBI Agent Doug Wood, who also

testified about the envelopes.

       Buendia claimed she was innocent because she spent some of the kickbacks to improve

the school.   Through Shirley Austin—a school secretary—Buendia sought to enter alleged

receipts of school expenditures as records of regularly conducted activity. The government

objected to the receipts as hearsay. The district court sustained the objection. Also, through

John Mohn—a building engineer—Buendia sought to enter a picture of the school’s leaky roof

that apparently had been fixed during her tenure. The government objected to the picture’s

relevance. Buendia argued that evidence of how she spent kickbacks was relevant to whether

she had corruptly solicited them: an element of the bribery charge. The district court sustained

the objection. Buendia argued that the ruling cut off her defense, so she proffered the testimony

of five witnesses, then rested her case.


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No. 17-1666
United States v. Buendia

       The jury convicted Buendia on all counts. The government dismissed the conspiracy

count. The district court sentenced her to 24 months’ imprisonment.

       Buendia argues on appeal that the district court violated her constitutional right to present

a complete defense when it excluded both evidence of her kickback expenditures and the alleged

receipts of expenditures for school purposes. She also argues that the government opened the

door to evidence of her kickback expenditures and sandbagged her with a late objection to that

evidence. Buendia further argues that testimony about the manila envelopes constructively

amended the indictment. Finally, Buendia argues that the district court committed cumulative

error. Ultimately none of these arguments is persuasive.

       Buendia has not shown a violation of her right to present a complete defense because that

right yields to reasonable evidentiary restrictions.     Rockwell v. Yukins, 341 F.3d 507, 512

(6th Cir. 2003) (en banc). It is well settled that a defendant “does not have an unfettered right to

offer testimony that is . . . inadmissible under standard rules of evidence.” Taylor v. Illinois, 484

U.S. 400, 410 (1988). As explained infra, the district court correctly excluded as irrelevant

evidence of how Buendia spent the kickback money, and the court also correctly excluded the

receipts of school expenditures as hearsay. Those rulings were based on exactly the kind of

“standard rules of evidence” to which the Supreme Court referred in Taylor.               Thus, the

constitutional dimension of Buendia’s evidentiary arguments is no ground for reversal.

       Buendia’s first evidentiary challenge—to the exclusion of her kickback expenditures—

fails because none of the excluded evidence was relevant. The jury convicted Buendia of

federal-programs bribery, which requires her to have “corruptly solicit[ed]” the kickbacks.

18 U.S.C. § 666(a)(1)(B). She argues that she lacked the requisite corruptness because, as this

evidence would have shown, she spent the kickbacks to benefit the school. But regardless of


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No. 17-1666
United States v. Buendia

how Buendia might have eventually spent the kickback money, she “corruptly solicit[ed]” it

because, by awarding contracts to Shy in exchange for kickbacks, she subverted the normal

bidding process in a manner inconsistent with her duty to obtain goods and services for her

school at the best value. As Justice Scalia, writing separately, recounted in United States v.

Aguilar, 515 U.S. 593 (1995), “[T]he term ‘corruptly’ in criminal laws has a longstanding and

well-accepted meaning.      It denotes ‘[a]n act done with an intent to give some advantage

inconsistent with official duty and the rights of others.’” Id. at 616 (Scalia, J., concurring in part

and dissenting in part) (citation omitted). The kickback-expenditure evidence would therefore

have made no fact of consequence more or less probable, so the district court correctly excluded

the evidence as irrelevant. See Fed. R. Evid. 401, 402.

       The receipts for purported school expenses were also properly excluded. For one, the

receipts were irrelevant for the same reason just discussed. In addition, the district court’s ruling

that Shirley Austin could not lay the foundation necessary to enter them under Federal Rule of

Evidence 803(6)’s records-of-a-regularly-conducted-activity exception to hearsay was correct.

That foundation must be laid through “the testimony of the custodian or other qualified witness,”

United States v. Jenkins, 345 F.3d 928, 935 (6th Cir. 2003) (quoting Fed. R. Evid. 803(6)), the

latter of which is a person “familiar with the record-keeping procedures of the organization,”

United States v. Baker, 458 F.3d 513, 518 (6th Cir. 2006) (quoting Dyno Constr. Co. v. McWane,

Inc., 198 F.3d 567, 576 (6th Cir. 1999)). Austin was neither. She did not regularly maintain a

record of the receipts, but rather put the receipts into a binder in preparation for Buendia’s trial.

She merely assumed that the receipts in the binder came from the envelope in Buendia’s office.

Further, she did not testify that she knew who submitted each receipt, whether Buendia

reimbursed that person, and—if so—where the money came from. For these reasons, Austin was


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No. 17-1666
United States v. Buendia

not qualified to lay the foundation necessary to enter the receipts. The district court therefore

correctly excluded the receipts as hearsay.

       Nor did the government open the door for Buendia to introduce evidence of her kickback

expenditures. Although a court has discretion to let a party introduce inadmissible evidence

when another party has introduced inadmissible evidence, see United States v. Segines, 17 F.3d

847, 856 (6th Cir. 1994), here the government’s evidence was admissible. Salz’s testimony that

Buendia bought massages using a gift card from Shy connected her to a specific kickback, which

showed that she accepted kickbacks. Because the evidence was admissible, it did not open the

door for Buendia to introduce inadmissible evidence.

       Buendia has not shown that the government engaged in sandbagging by means of a late

objection to the relevance of her kickback expenditures. We do not favor sandbagging, but none

appears to have occurred here.      Instead, the government objected early and often—at the

beginning of Buendia’s case-in-chief, during Glenn Pingilley’s testimony, during Jeanine Gant’s

testimony, during Shirley Austin’s testimony, during Evelyn Adams’s testimony, and during

John Mohn’s testimony. Thus, the government did not sandbag Buendia.

       There was no constructive amendment to the indictment. Buendia argues that the district

court erred by permitting two federal agents to testify about the twenty manila envelopes they

had found in Shy’s home, one of which corresponded to Shy’s dealing with Buendia. This

evidence, so her argument goes, created the inference that she participated in more than one

conspiracy and thus forced her to defend a conspiracy other than the one charged by the

indictment.   But a constructive amendment requires that both the evidence and the jury

instructions undermine the indictment. United States v. Hynes, 467 F.3d 951, 962 (6th Cir.

2006). Here, the jury instructions mirrored the indictment’s allegation that Buendia conspired


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No. 17-1666
United States v. Buendia

only with Shy. Thus, even if the proof at trial went beyond the single accusation in the

indictment, no constructive amendment occurred.

       Finally, Buendia’s cumulative-error argument cannot succeed because she has shown no

error. We have held that “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 judgment of the district court is affirmed.




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