Multiplicitous Convictions/Unit of Prosecution – A defendant can only be charged for one assault per bullet fired, regardless of the number of victims.
Multiplicitous Convictions/924(c) – A defendant who points a firearm at multiple people and pulls the trigger multiple times can be charged for each shot fired under 18 U.S.C. § 924(c) even if he fires the shots in quick succession.
First Step Act/Convictions Before December 21, 2018 – The First Step Act does not apply to offenses committed before the enactment of the act if a sentence has yet to be imposed.
Motions for Mistrial and New Trial/Improper Evidence – A district court does not abuse its discretion in denying a motion based on the admission of improper evidence if the defendant waives any error regarding the lack of a limiting instruction, if the strength of evidence against the defendant is considerable, and if any prejudicial impact of the statement was minimized.
Jack Voris was convicted of six counts of assault on a federal officer with a deadly weapon under 18 U.S.C. § 111(a)(1) and (b), six counts of discharging a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c)(1)(A), and once count of possession of a firearm by a convicted felon under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Voris was sentenced to 1,750 months’ imprisonment.
On appeal, Voris argued that five of his assault convictions were multiplicitous, five of his § 924(c) convictions were multiplicitous, he was entitled to resentencing under the First Step Act, and that the district court abused its discretion when denying his motions for a mistrial and a new trial.
“Voris was wanted on several outstanding warrants.” When officers approached his motel room door, Voris fired one shot at an officer in the parking lot and retreated into the room. As five officers entered the room, Voris shot four times towards the five entering officers.
The Court agreed in part, holding that “only four assault convictions are constitutionally permissible” because Voris only shot four times at the five entering officers. It did not matter that “at least five officers came under his fire from those four shots.” Voris’s conviction for the shot fired at the officer in the parking lot was unchallenged “Voris [met] the plain error test for one assault conviction” because his substantial rights were affected. He received a sentence for the multiplicitous conviction, which also supported corresponding § 924(c) convictions. Since his Fifth Amendment right was violated, because he was put twice in jeopardy for the same offense, “the proceedings were fundamentally unfair.” Therefore, the Court reversed one of Voris’s assault conviction and the corresponding § 924(c) conviction.
The Court held that the four other assault convictions involving the five entering officers were not multiplicitous because the firing of multiple shots in quick succession does not necessarily constitute “one assaultive act.” The Court held that the district court did not err “in entering judgment on the four assault convictions based on the four shots he fired toward the door.”
The Court also held that the four § 924(c) convictions were appropriate since they were not multiplicitous. His actions qualified as four separate “uses” under the statute since “he pulled the trigger four times, in four slightly different directions, resulting in four separate discharges, and there were at least four potential victims.”
The Court also held that Voris is not entitled to resentencing because “§ 403 of the First Step Act does not apply to cases pending on appeal in which the district court sentenced the defendant before enactment of the First Step Act.”
The Court also held that the district court did not abuse its discretion when allowing an officer to testify about Voris’s criminal history because “any resulting prejudice from the improper testimony was minimal.” The Court held that Voris tacitly conceded that a limiting instruction would have drawn more attention to the improper evidence of his criminal history. The Court noted that Voris did not ask for a limiting instruction nor argue on appeal that the district court should have given one. The Court further noted that any prejudice was minimized since the government “immediately” redirected the testimony and the jurors already knew Voris was a convicted felon. The Court also held that the rest of the evidence against Voris was “very strong.”
Appeal from the District of Arizona
Opinion by Bennett, joined by Thomas and Friedland
Click here to read the opinion.