United States v. Voris

• Decision Date: 07 July 2020
• Docket Number: No. 18-10410,18-10410
• Citation: 964 F.3d 864
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack Witt VORIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

964 F.3d 864

UNITED STATES of America, Plaintiff-Appellee,

v.Jack Witt VORIS, Defendant-Appellant.

No. 18-10410

United States Court of Appeals, Ninth Circuit.

Submitted May 11, 2020^* San Francisco, California

Filed July 7, 2020

Carol Lamoureux and Joshua F. Hamilton, Hernandez & Hamilton PC, Tucson, Arizona, for Defendant-Appellant.

Michael Bailey, United States Attorney; Robert L. Miskell, Appellate Chief; Matthew C. Cassell, Assistant United States Attorney; United States Attorney's Office, Tucson, Arizona; for Plaintiff-Appellee.

Before: Sidney R. Thomas, Chief Judge, and Michelle T. Friedland and Mark J. Bennett, Circuit Judges.

OPINION

BENNETT, Circuit Judge:

A jury convicted Jack Voris on six counts of assault on a federal officer with a deadly or dangerous weapon in violation of 18 U.S.C. § 111(a)(1) and (b), six counts of discharging a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A), and one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court sentenced him to 1,750 months (about 146 years) in prison.

Voris argues on appeal that (1) five assault convictions are multiplicitous, (2) five § 924(c) convictions are multiplicitous, (3) he is entitled to resentencing under § 403 of the First Step Act, and (4) the district court abused its discretion in denying his motions for a mistrial and new trial.

We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We reverse one assault conviction and one § 924(c) conviction, and remand to the district court with instructions to vacate one assault conviction and one § 924(c) conviction and to resentence Voris. We affirm the district court in all other respects.

I. Factual and Procedural Background

Voris was wanted on several outstanding warrants. In October 2016, nine officers of the U.S. Marshals Task Force ("Task Force") went to the Quality Inn motel near Phoenix International Airport, as they believed Voris and his girlfriend were staying in a second-floor room. The nine officers surrounded the room. Two were in the parking lot behind the room. Five went to the front door of the room in a "stack" formation, where individuals form a straight line and are very close to one another. Two were also located outside the front of the room but were not part of the stack formation.

An officer in the stack knocked on the door. A few seconds later, Voris opened the door and then quickly slammed it shut and locked it. Voris later admitted that he knew the individuals outside the room were police officers. Voris then tried to escape out the back window of his room. After Voris opened the window, Officer Garcia shouted at him, "Police, Police, let me see your hands." Voris responded by reaching out the window with his gun and firing one shot at Officer Garcia. He missed. Officer Garcia and the other officer in the parking lot returned fire, also missing.

Voris then pushed his girlfriend out the door of his room.¹ The officers moved her out of the way, and the stack moved a few feet away to the side of the door. A few seconds later, Voris fired four shots toward the front of the room. Two bullets exited through the bottom of the front door and two hit a wall next to the door but did not exit the wall. No officer was hit.

The officers retreated, evacuated neighboring rooms, blocked the area, and called for backup. Voris surrendered after several hours of negotiations.

The government charged Voris with nine counts of assault on a federal officer with a deadly or dangerous weapon in violation of 18 U.S.C. § 111(a)(1) and (b), nine counts of discharging a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A), and one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2).

Officer Smith testified at Voris's trial as to how the Task Force generally plans an operation to arrest a suspect. He explained that Task Force members consider, among other things, why the person is wanted. Officer Smith then explained that the officers were wearing protective equipment, and some were armed with rifles. Later, when asked what happened after Voris opened and closed the door, Officer Smith testified that "I called out to our team that we're going to treat this as a barricaded situation because we were already in possession of information related to Mr. Voris’ criminal history." The government immediately redirected Officer Smith's testimony by asking him how far the stack had moved after the door closed and telling Officer Smith that "[w]e don't need to initially get into the why."

Later that day, after the court recessed and excused the jury, Voris moved for a mistrial. He argued that the comment about his "criminal history" and the context in which it was made would cause the jury to speculate that he had a "horrible criminal history requiring immediate use of a barricade." The district court denied the motion the next day after reviewing the transcript. The court determined that a mistrial was not warranted because the reference to Voris's criminal history was brief and vague, and the jurors already knew that Voris was a convicted felon. The court also decided that a limiting instruction would do more harm than good because it would highlight the testimony for the jury. Voris did not object to the court's decision not to give a limiting instruction.

After the four-day trial, the jury convicted Voris on six counts of assault on a federal officer with a deadly or dangerous weapon, six counts of discharging a firearm in furtherance of a crime of violence, and one count of being a prohibited possessor of a firearm. The six assault and six § 924(c) convictions were based on the shots that Voris fired toward Officer Garcia in the parking lot and the five officers in the stack formation. Voris moved for a new trial based on Officer Smith's testimony referencing his criminal history. The district court denied the motion for essentially the same reasons it had denied the mistrial motion.

The district court sentenced Voris on October 9, 2018. The court adopted the presentence report's recommended sentence and sentenced Voris to 1,750 months. Voris's sentence consisted of concurrent terms of 130 months on each of the six assault counts and prohibited possessor count, a consecutive 10-year sentence for the first § 924(c) conviction, and five consecutive 25-year sentences for the remaining five § 924(c) convictions.

Voris appeals his convictions and sentences related to the five assault counts and five § 924(c) counts based on the four gunshots that he fired toward the front door. He does not appeal from the convictions based solely on his firing out of his motel room's back window. Voris also argues that he is entitled to resentencing under § 403 of the First Step Act, which amended when the 25-year minimum in § 924(c)(1)(C) applies, but which became law after the district court sentenced him. Finally, he challenges the district court's denial of his motions for a mistrial and new trial.

II. Standard of Review

We review Voris's challenges to his assault convictions for plain error as he concedes that he failed to raise them below. "Under plain error review, a defendant ‘must show (1) an error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ " United States v. Zalapa , 509 F.3d 1060, 1064 (9th Cir. 2007) (quoting United States v. Smith , 424 F.3d 992, 1000 (9th Cir. 2005) ).

Voris contends that de novo review applies to his § 924(c) statutory interpretation argument because he sufficiently raised this argument below. He alternatively argues that even if he failed to raise it below, we should apply the "pure question of law" exception to plain error review. See United States v. Wijegoonaratna , 922 F.3d 983, 992 (9th Cir. 2019). Because it does not affect our conclusion, we assume without deciding that de novo review applies.

We similarly need not decide on the appropriate standard of review to apply to Voris's arguments related to the First Step Act because his arguments fail even under the de novo standard.

Finally, we review the district court's denial of a motion for a mistrial and new trial for abuse of discretion. See United States v. Dorsey , 677 F.3d 944, 954 (9th Cir. 2012). The burden is on Voris to show that the district court abused its discretion. See United States v. Escalante , 637 F.2d 1197, 1202 (9th Cir. 1980).

III. Analysis

A. Assault Convictions

Voris argues that his sentences and convictions for the five assault counts based on the four shots he fired toward the door are multiplicitous in violation of the Double Jeopardy Clause. See United States v. Chilaca , 909 F.3d 289, 291 (9th Cir. 2018) ("The Double Jeopardy Clause of the Fifth Amendment protects against multiple criminal punishments for the same offense."). We conclude that because Voris fired four shots, only four assault convictions are constitutionally permissible, even though at least five officers came under his fire from those four shots. Thus, one assault conviction is multiplicitous and must be reversed. But Voris fails to show that the remaining four assault convictions are multiplicitous.

In Ladner v. United States , 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958), the Supreme Court construed 18 U.S.C. § 254, the predecessor statute to § 111 (the statute of conviction for the assaults here). Id. at 171, 176 n.4, 79 S.Ct. 209. The Court applied the rule of lenity and held that the petitioner could be found guilty of only one assault if he discharged his firearm only once, no matter how many officers may have been impacted. Id. at 177–78, 79 S.Ct. 209. Ladner establishes that one gunshot can support only one assault under § 111. Thus, Voris can be convicted of only four assaults based on the four shots he fired toward the door.

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