In United States v. Voris, --- F.3d ---, No. 19-10075 (9th Cir. 2020), the defendant was convicted of multiple counts of assault on a federal officer with a deadly or dangerous weapon. He was sentenced to 1,750 months.
The case arose after the defendant shot at U.S. Marshals trying to arrest him on a warrant.
On appeal, the defendant argued: (1) his five assault convictions are multiplicitous, (2) his 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.
The Court vacated one of the assault convictions, one of the 924(c) convictions, and otherwise affirmed.
As to the assault convictions, the Court held: "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."
"Nor does logic support Voris’s position. Voris committed four assaultive acts by firing his weapon four separate times toward the door."
"As long as there were four assaultive acts and at least four potential victims, there were four assaults."
The Court then considered "whether § 924(c) requires that each § 924(c) charge be based on a separate firearm use." It held: "the undisputed facts make clear that Voris’s conduct amounts to four such 'uses.' Here Voris used his gun four separate times when he fired four shots toward the door—he pulled the trigger four times, in four slightly different directions, resulting in four separate discharges, and there were at least four potential victims."
"Because each discharge here may be considered a use within the meaning of the statute, it was appropriate to charge Voris with four § 924(c) offenses based on the four shots he fired toward the door."
As to the resentencing argument, the Court held: "§ 403 of the First Step Act does not apply to cases pending on appeal in which the district court sentenced the defendant before the enactment of the First Step Act. Voris therefore is not entitled to resentencing under the First Step Act in this appeal. [But it might still apply on resentencing].
Finally, the Court rejected the defendant's arguments for a new trial.
In United States v. Vandergroen, --- F.3d ---, No. 19-10075 (9th Cir. 2020), the Court affirmed the denial of the defendant's motion to suppress a gun found on him during a Terry step.
The question was whether the 911 call reporting a man with a gun generally meeting the defendant's description provided sufficient reasonable suspicion. The Court held that it did.
When evaluating the reliability of a tip such as the 911 call here, in which a caller reports information from a third party regarding possible criminal activity, we consider the reliability of both the caller himself and the third party whose tip he conveys.
The totality of the circumstances in this case demonstrates that the 911 call was sufficiently reliable to support reasonable suspicion.
While the 911 call was thus reliable, it may only support reasonable suspicion if it also “provide[d] information on potential illegal activity.” In other words, a tip must demonstrate that “criminal activity may be afoot,” and the “absence of any presumptively unlawful activity” from a tip will render it inadequate to support reasonable suspicion, Furthermore, any potential criminal activity identified must be serious enough to justify “immediate detention of a suspect.”
The 911 call gave the police reason to suspect Vandergroen was carrying a concealed firearm, which is presumptively a crime in California.
Witness 2 indicated that patrons had seen Vandergroen with a gun “on him.” This language, conveyed to the police by the dispatcher, would suggest to a reasonable police officer that Vandergroen at least potentially had the gun concealed on his body.
