UNITED STATES OF AMERICA, Plaintiff - Appellee/Cross-Appellant,
MARK OLIC PORTER, Defendant-Appellant/Cross-Appellee.
from the United States District Court for the District of
Utah (D.C. No. 2:17-CR-00527-DB-1)
Oberg, Assistant Federal Public Defender (Kathryn N. Nester,
Federal Public Defender; Scott Keith Wilson and Bretta Pirie,
Assistant Federal Public Defenders, District of Utah, on the
briefs), Salt Lake City, Utah, for the Defendant
Lapertosa, Attorney (Eric S. Dreiband, Assistant Attorney
General; Erin H. Flynn, Attorney, U.S. Department of Justice,
with him on the brief), Washington, D.C. for the Plaintiff -
MATHESON, EBEL, and PHILLIPS, Circuit Judges.
MATHESON, CIRCUIT JUDGE
Olic Porter shouted racial epithets at Lucas Waldvogel, a
seven-year-old African American who lived in Mr. Porter's
apartment complex. After hearing Mr. Porter's language,
the boy's father, Michael Waldvogel, confronted Mr.
Porter, who then assaulted Mr. Waldvogel with a stun cane.
Shortly thereafter, Mr. Waldvogel and his family moved out of
convicted Mr. Porter of interfering with Mr. Waldvogel's
housing because of Mr. Waldvogel's race, a violation of
the Fair Housing Act, 42 U.S.C. § 3631. The district
court sentenced Mr. Porter to nine months in prison. He
appeals his conviction. The Government cross-appeals his
direct appeal, Mr. Porter first argues the evidence was
insufficient to show he assaulted Mr. Waldvogel because of
his race. Based on our review of the trial evidence, we
disagree and hold that a reasonable jury could find Mr.
Porter guilty beyond a reasonable doubt. Mr. Porter also
argues the district court plainly erred by allowing the
prosecution's opening statement and closing arguments,
the trial evidence, and the jury instructions to make it
likely that the jury convicted him for his actions against
Lucas rather than Michael Waldvogel, thereby constructively
amending the indictment. We disagree and hold that the
presentations at trial clearly identified Michael Waldvogel
as the alleged victim.
cross-appeal, the Government argues procedural sentencing
error. It first argues the district court miscalculated the
advisory sentencing range under the United States Sentencing
Guidelines ("U.S.S.G." or "Guidelines")
because the evidence showed that Mr. Porter committed an
aggravated assault rather than a simple assault against Mr.
Waldvogel. We disagree, holding the district court's
implicit finding that Mr. Porter did not intend to inflict
bodily harm was not clearly erroneous. The Government
alternatively argues the district court erred when it failed
to apply a base level of 10 under the applicable sentencing
Guideline when Mr. Porter's offense involved "the
use or threat of force against a person." We agree with
the alternative argument and hold the district court erred in
calculating Mr. Porter's sentence.
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §
3742(b), we affirm Mr. Porter's conviction and remand for
assault occurred at the Adagio Apartments in Draper, Utah,
where both men lived in 2016. Mr. Waldvogel and his neighbor,
Kaitlin Adair, described the incident at trial.
November 3, 2016, Ms. Adair returned home from work and saw
Mr. Porter on his front patio. He spoke to her, first making
small talk and then "talking about immigration."
Record on Appeal ("ROA"), Vol. V at 246. Ms. Adair
testified: "I don't remember specifically everything
that he said, but I remember him saying that we need to
exterminate all of the motherfucking niggers, but first we
need to exterminate all the motherfucking nigger
this conversation, seven-year-old Lucas Waldvogel, who is
African American, was riding his scooter on the sidewalk
within view of Mr. Porter's patio. Ms. Adair noticed that
Mr. Porter's attitude changed when he saw Lucas: "He
seemed to get more agitated. His volume seemed to increase.
It seemed like he was getting louder because the boy was out
there." Id. at 248. Ms. Adair withdrew from the
conversation and considered calling the police. She did not
went inside and informed his father "that there was a
man outside shouting at him." Id. at 175. Mr.
Waldvogel told Lucas to go back outside. When Lucas returned
with the same complaint, Mr. Waldvogel went to the balcony of
his apartment to see what was happening. He heard Mr. Porter
say to Lucas, "[G]et out of here, nigger."
Id. at 177.
Waldvogel ran outside toward Mr. Porter's apartment. As
he approached, Ms. Adair summoned him. She warned him that
Mr. Porter "ha[d] been saying some pretty crazy things
out here while your boy has been out here." Id.
at 250. She urged Mr. Waldvogel to "be cautious, because
it looked like [Mr. Porter] had been drinking."
Id. She recalled that during this interaction, Mr.
Waldvogel "didn't seem threatening" and
"didn't make [her] feel nervous." Id.
A. It didn't seem like Mr. Porter had great judgment at
the time with everything that was going on and Mr. Waldvogel,
I am not sure of his race or ethnicity, but he didn't
look white, and so I was concerned that that might cause a
Q. When you say cause a problem, do you mean for the
A. For Mr. Waldvogel.
Q. Explain why.
A. I was not sure if Mr. Porter would lash out or if he would
be violent. With how he was acting, I believe that he might,
that it might take that turn.
Q. That is what you were trying to communicate to Mr.
Id. at 251.
Waldvogel retrieved Lucas, and they began walking toward
their apartment. As they passed Mr. Porter's patio, Mr.
Porter came outside. Mr. Waldvogel approached the patio and
said "something to the effect of . . . I don't care
what you're saying in your house, but, you know,
don't yell that stuff at my son." Id. at
180-81. Mr. Porter responded, "[Y]ou and your nigger son
can get out of here." Id. at 181.
this interaction, Mr. Porter was holding a stun cane in his
hand near his right leg. The cane included a flashlight and a
small barbed part on the end that, when activated, would send
an electric shock into anything it touched. Mr. Waldvogel
testified, "[T]he next thing I remember was hearing the
arcing of a device as it came over this side of my head and
then it hit me on my neck." Id. at 182. The
cane "pretty much incapacitated" Mr. Waldvogel, who
fell to the ground. Id. at 183. Mr. Waldvogel then
grabbed the stun cane and pulled it away from Mr. Porter. Mr.
Waldvogel fell backward into the grass, and the stun cane
broke. Ms. Adair testified that, during this encounter, Lucas
"stayed away," id. at 252, and remained
"far off on kind of the other side of the grassy
area," id. at 251.
Porter announced he was going to call the police because Mr.
Waldvogel had stolen his property. Mr. Waldvogel responded
that he intended to call the police, and, after discarding
the broken stun cane and walking back to his apartment, he
did. Mr. Waldvogel next saw Mr. Porter leave the apartment
complex in his car.
Mr. Porter was away, three Draper Police Department officers
responded to Mr. Waldvogel's call. They examined and
photographed Mr. Waldvogel's neck, which had a small red
mark, and asked whether Mr. Waldvogel needed medical
attention. He declined. The Government introduced a picture
of Mr. Waldvogel's neck at trial.
Mr. Porter returned to the Adagio, the police arrested him.
Mr. Waldvogel recounted that, during the arrest, Mr. Porter
"was telling all the officers to F off. He called the
officers nigger lovers and a lot of F bombs."
Id. at 193.
Waldvogel testified that the altercation deeply affected
Lucas. In the ensuing weeks, Lucas slept in Mr.
Waldvogel's bed and insisted that Mr. Waldvogel block the
front door with a large elliptical exercise machine. Lucas
also stopped playing outside and would no longer retrieve the
mail with his father. As a result, Mr. Waldvogel asked for
and received permission to terminate his lease and move away
from the Adagio. He eventually moved away from Draper because
he feared running into Mr. Porter.
Mr. Porter's Animosity Toward African
conceded in his brief and as the evidence confirmed, Mr.
Porter holds racist views. See Porter Opening Br. at
Mr. Porter moved to the Adagio Apartments in 2016, he asked
the leasing agent how many African Americans lived there.
After he moved in, Mr. Porter told Adagio maintenance worker
Tyler Young, who was working on a vacant apartment above Mr.
Porter's apartment, "not to move any niggers in
above him." ROA, Vol. V at 130. On another occasion,
while fixing Mr. Porter's water heater, Mr. Young
overheard Mr. Porter deliver a parody of Dr. Martin Luther
King's "I Have a Dream" speech, offering his
own dream "that all niggers were dead."
Id. at 132.
Adair said that Mr. Porter told her he was
"concerned" that the paperboy, who was African
American, would break into his apartment. Id. at
245. She also stated, "The way [Mr. Porter] spoke about
immigration led me to believe that he didn't like
Mexicans or South Americans maybe." Id. She
added, "He didn't like black people."
Porter also demonstrated his racial animus in his comments to
Ms. Adair immediately before the assault, to the Draper
Police shortly after the assault, and later to the FBI when
he was arrested the second time.
The FBI's Arrest of Mr. Porter
Porter was released after his initial arrest. Shortly
thereafter, the Adagio evicted him, and he moved to Arizona.
In 2017, nearly a year after the incident, FBI agents
arrested Mr. Porter at his new home in Arizona and recorded
their interviews with him. In one of these recordings, Mr.
Porter recounted his version of the incident and admitted
that he had told Lucas, "Get out of here you little
stinking nigger." ROA, Vol. III, Exh. 6-3 at 0:38-56.
another recording, Mr. Porter stated: "I don't want
nothing to do with [African Americans]. I even told 'em
when I moved in, I said, I don't want to live next to any
of 'em. I told 'em at the complex."
Id., Exh. 6-5 at 0:33-42. Mr. Porter continued to
make anti-African American statements while the FBI agents
transported him to a magistrate judge for his arraignment.
Special Agent Elliot White reported: "[Mr. Porter] also
said that real white men should kill niggers and asked if
that was a federal offense. Also, during [sic] multiple times
during the transport Mr. Porter said that Hitler had it
right, he just had the wrong people, and that he felt that
niggers were not even human." ROA, Vol. V at 290
(repeating Mr. Porter's statements that were quoted in
the agent's report).
Mr. Waldvogel's Family and Race
Waldvogel and his two children moved into the Adagio in March
2016. He described his seven-year-old son,
Lucas, as "African American" and his daughter as
"mixed race." Id. at 166.
trial, witnesses offered varied views about Mr.
Waldvogel's race. Ms. Adair identified Lucas as
"African American," though she was "not sure
of [Mr. Waldvogel's] race or ethnicity, but he didn't
look white." Id. at 246-47, 251. The
Adagio's leasing agent believed Mr. Waldvogel was from
"a Latin country" based on Mr. Waldvogel's
appearance and conversations they had about food.
Id. at 123.
Waldvogel testified, "I have always said my ethnicity is
Latin American and my race is mixed." Id. at
164. He explained that both his mother and father were Costa
Rican, and both were "mixed race." Id. at
165. He considered himself "partially African
Porter stated in his FBI interviews that Mr. Waldvogel
"looked like he was white. He was probably half Negro
and then his wife works, and his kids look all a hundred
percent, you know." ROA Vol. III, Exh. 6-5 at 0:23-33.
Mr. Porter also told the FBI that Mr. Waldvogel
"wasn't a Negro, he was a half-Negro."
Id., Exh. 6-3 at 1:03-05.
Indictment and Trial
federal grand jury charged Mr. Porter with one count of
"Interference with Housing" in violation of 42
U.S.C. § 3631. ROA, Vol. I at 15. The indictment alleged
that Mr. Porter
did by force and threat of force, willfully injure,
intimidate, and interfere with, and attempt to injure,
intimidate, and interfere with, M.W., an African-American
man, because of M.W.'s race and color and because M.W.
was occupying a dwelling; specifically, the defendant yelled
"nigger," said get out of here to M.W. and
M.W.'s seven-year-old-son, and used a stun cane (a Zap
Cane) to assault M.W., resulting in bodily injury to M.W. and
involving the use of a dangerous weapon . . . .
Id. at 15-16.
Porter pled not guilty. At his three-day jury trial, the
Government called nine witnesses and Mr. Porter called one.
Rule 29 Motion and Verdict
close of the Government's case, Mr. Porter moved for a
judgment of acquittal under Federal Rule of Criminal
Procedure 29. He challenged the sufficiency of the evidence
"as to each and every element of this offense generally,
and then specifically and in addition dealing with the
element of race, we believe the government has failed to
prove that Mr. Porter acted ...