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United States v. Porter

United States Court of Appeals, Sixth Circuit

February 12, 2018

United States of America, Plaintiff-Appellee,
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.

         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.

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

          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).

          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 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, ...


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