United States v. Porter, 886 F.3d 562

Background

Robert Porter, mayor of Paintsville, KY, was indicted on three counts under 18 U.S.C. § 666(a)(1)(A) (theft regarding programs receiving federal funds) and one count under § 666(a)(1)(B) (bribery regarding programs receiving federal funds) based on steering city contracts and facilitating payment of a fraudulent invoice to a co-defendant’s company in exchange for payments characterized as loans.
After the government rested, Porter moved for judgment of acquittal (Rule 29); the district court denied the motion and the jury convicted Porter on two § 666(a)(1)(A) counts and one § 666(a)(1)(B) count.
Porter appealed, raising four arguments: insufficiency of evidence on the § 666(b) bribery count, violation of the Confrontation Clause by admission of (1) out-of-court statements made by Chet Crace through Detective Amos’s testimony and (2) deposition testimony of former city treasurer Jackie Miller, and (3) cumulative error.
On sufficiency, Porter relied on McDonnell to argue § 666(a)(1)(B) requires the same quid pro quo/"official act" standard as § 201 prosecutions; the Sixth Circuit rejected that view as foreclosed by prior Sixth Circuit precedent and found Porter waived other specific-intent sufficiency arguments by limiting his Rule 29 motion.
On confrontation issues: the court held Detective Amos’s testimony recounting Chet Crace’s prior statements was not hearsay because the government offered the statements to prove they were made and later show they were false; Miller’s deposition was properly admitted because the government demonstrated her unavailability (detailed doctor’s letter) and Porter had an opportunity to cross-examine at the deposition.
The court rejected Porter’s cumulative-error claim because no individual evidentiary rulings were erroneous, and affirmed the conviction and sentence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for bribery under § 666(a)(1)(B)	McDonnell requires proof of quid pro quo/official act similar to § 201 prosecutions	§ 666 does not require quid pro quo; prior Sixth Circuit precedent permits conviction without an express quid pro quo; Porter also argued insufficient evidence of intent	Rejected Porter’s McDonnell-based claim; bound by United States v. Abbey; other sufficiency grounds waived by limited Rule 29 motion
Rule 29 waiver on specific-intent challenge	Government failed to prove intent to be influenced/rewarded	Defense limited the Rule 29 motion to McDonnell-based argument, waiving other grounds	Waiver applied; district court did not err in denying Rule 29
Admission of Detective Atkins recounting Chet Crace’s statements	Admission violated Confrontation Clause / hearsay rules because Crace did not testify	Statements were admitted not for their truth but to show they were made and to lay foundation for proving falsity; thus not hearsay or testimonial for Confrontation purposes	Admission proper: statements offered to show falsity, so no Confrontation Clause violation
Admission of Jackie Miller’s deposition	Deposition admission violated Confrontation Clause because declarant was unavailable	Government produced doctor’s letter showing severe, long-term illness; Porter had prior opportunity to cross-examine at deposition	District court did not abuse discretion; Miller was properly found unavailable and deposition admissible

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of evidence)
McDonnell v. United States, 136 S. Ct. 2355 (interpretation of "official act" in § 201 prosecutions)
United States v. Abbey, 560 F.3d 513 (6th Cir. 2009) (§ 666 does not require an express quid pro quo)
United States v. Gee, 432 F.3d 713 (7th Cir. 2005) (quid pro quo sufficient but not necessary under § 666)
Crawford v. Washington, 541 U.S. 36 (Confrontation Clause framework for testimonial statements)
United States v. Sherlin, 67 F.3d 1208 (6th Cir. 1995) (statements introduced to show falsity are not hearsay)