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United States v. Porter

United States Court of Appeals, Tenth Circuit

June 28, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee/Cross-Appellant,
MARK OLIC PORTER, Defendant-Appellant/Cross-Appellee.

          Appeal from the United States District Court for the District of Utah (D.C. No. 2:17-CR-00527-DB-1)

          Daphne 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 -Appellant/Cross-Appellee.

          Max 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 - Appellee/Cross-Appellant.

          Before MATHESON, EBEL, and PHILLIPS, Circuit Judges.


         Mark 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 the complex.

         A jury 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 sentence.

         On 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.

         On 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.

         Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b), we affirm Mr. Porter's conviction and remand for resentencing.

         I. BACKGROUND

         A. Factual Background[1]

         1. The Incident

         The 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.

         On 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 lovers." Id.[2]

         During 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 do so.

         Lucas 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.

         Mr. 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.

         She also explained:

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 problem.
Q. When you say cause a problem, do you mean for the defendant?
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. Waldvogel?
A. Yes.

Id. at 251.

         Mr. 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.

         During 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.

         Mr. 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.

         While 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.

         When 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.

         Mr. 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.

         2. Mr. Porter's Animosity Toward African Americans

         As conceded in his brief and as the evidence confirmed, Mr. Porter holds racist views. See Porter Opening Br. at 2, 11.

         When 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.

         Ms. 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." Id.

         Mr. 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.

         3. The FBI's Arrest of Mr. Porter

         Mr. 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.

         In 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).

         4. Mr. Waldvogel's Family and Race

         Mr. Waldvogel and his two children moved into the Adagio in March 2016.[3] He described his seven-year-old son, Lucas, as "African American" and his daughter as "mixed race." Id. at 166.

         At 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.

         Mr. 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 American." Id.

         Mr. 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.

         B. Procedural History

         1. Indictment and Trial

         A 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.

         Mr. Porter pled not guilty. At his three-day jury trial, the Government called nine witnesses and Mr. Porter called one.

         2. Rule 29 Motion and Verdict

         At the 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 ...

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