United States v. Josette Buendia

NOT RECOMMENDED FOR PUBLICATION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.
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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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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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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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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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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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