United States v. Butler
Commentary on the Tenth Circuit’s Published Opinion (June 25, 2025)

Introduction

On 25 June 2025, the United States Court of Appeals for the Tenth Circuit delivered a published opinion in United States v. Butler, No. 24-3061. The panel (Hartz, Kelly, and Carson, JJ.; Kelly, J. writing) affirmed G’Ante Butler’s convictions for (1) forcible assault on a federal officer with a deadly weapon, 18 U.S.C. § 111(b), and (2) use of a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii).

The decision is significant for two chief reasons:

1. It re-affirms that § 111(b) categorically qualifies as a “crime of violence” under § 924(c) even after the Supreme Court’s recklessness decision in Borden v. United States, 593 U.S. 420 (2021).
2. It clarifies how the absence of a requested limiting instruction on prior inconsistent statements may constitute harmless error when overwhelming corroborative evidence exists.

Summary of the Judgment

The Court rejected all five grounds of appeal:

1. Limiting Instruction. Failure to instruct the jury that an unsworn, prior inconsistent statement could only be used for impeachment was error, but harmless in light of abundant corroborative evidence.
2. Rule 403 Testimony. Admission of an elderly neighbour’s narrative of the shooting was not an abuse of discretion; its probative value on motive and scene-context outweighed any prejudice or cumulativeness.
3. Prosecutorial Closing. The prosecutor’s remarks neither shifted the burden of proof, nor constituted improper vouching or attacks on defence counsel; hence no plain error.
4. Cumulative Error. Only one (harmless) error occurred, so the doctrine was inapplicable.
5. Crime-of-Violence Challenge. Consistent with United States v. Kendall, 876 F.3d 1264 (10th Cir. 2017), § 111(b) requires intentional conduct and therefore remains a valid § 924(c) predicate post-Borden.

Detailed Analysis

1. Precedents Cited and their Influence

• United States v. Carter, 973 F.2d 1509 (10th Cir. 1992) – established the requirement that unsworn, prior inconsistent statements are admissible only for impeachment; Butler extends the doctrine by declaring the omission of such an instruction harmless where corroborative evidence is overwhelming.
• United States v. McGirt, 71 F.4th 755 (10th Cir. 2023) – furnished the harmless-error standard used by the panel.
• Borden v. United States, 593 U.S. 420 (2021) – held that crimes committed with a mens rea of mere recklessness are not “violent felonies” under ACCA. Butler confronts Borden’s ripple effect on § 924(c).
• United States v. Kendall, 876 F.3d 1264 (10th Cir. 2017) – previously categorised § 111(b) as a crime of violence. Butler relies on stare decisis and harmonises Kendall with Borden.
• Other precedents: Young (limits on closing argument), Old Chief (government’s choice of evidence), Archuleta (Rule 403 prejudice), and circuits’ recent post-Borden cases (McDaniel, 4th Cir.; Medearis, 8th Cir.) endorsing the same result as Butler.

2. Legal Reasoning

a. Limiting Instruction – Harmless Error Framework

The Court acknowledged the district judge breached the Carter mandate but stressed Fed. R. Crim. P. 52(a): non-constitutional errors must be disregarded absent an effect on substantial rights. Weighing the error in the context of:

• eyewitness testimony by co-defendant Chase Lewis;
• phone-location, DNA, ballistics, and gang-rivalry evidence;
• vigorous cross-examination of the defence witnesses,

the panel found no “grave doubt” that the error affected the verdict. This effectively raises the evidentiary bar for defendants attempting to overturn convictions on a missing limiting instruction where other corroboration abounds.

b. Admissibility under Rule 403

The Court treated Ms. Newsome’s testimony as:

• probative of the extraordinary duration and intensity of gunfire (showing retaliatory motive and intent), and
• non-cumulative because she was an unbiased civilian witness contrasted with impeached law-enforcement officers.

Prejudice was minimal given the brevity of her testimony (7 transcript pages in a nine-day trial). Butler thus underscores appellate deference to trial-court Rule 403 balancing.

c. Prosecutorial Misconduct – Plain-Error Review

The remarks challenged—e.g., describing defence theory as “mental gymnastics” or noting that the prosecutor presented “exactly what [the government] believed happened”—were contextualised as permissible commentary on credibility, not burden-shifting or vouching. By reiterating that jury instructions on burden and counsel statements cured any potential taint, the Court illustrated the high hurdle facing appellants who fail to contemporaneously object.

d. § 111(b) as a Crime of Violence Post-Borden

The crux: does § 111(b) contain a reckless mental state? The Tenth Circuit said “no,” relying on:

1. Feola, 420 U.S. 671 (1975) – § 111 requires “intent to assault.”
2. Kendall — binding Tenth Circuit precedent, still good law post-Borden.

Because § 111(b) “requires a more culpable mens rea than mere recklessness,” it meets § 924(c)’s elements clause. The Court also exercised discretion to allow Butler to incorporate co-defendant Barnes’s arguments under Fed. R. App. P. 28(i), clarifying its application to “companion” as well as consolidated appeals.

3. Impact of the Judgment

• Mens Rea Clarification. Reinforces that § 111(b) prosecutions require proof of intentional force, keeping the statute viable as a predicate across the Tenth Circuit.
• Harmless-Error Doctrine. Signals that missing Pattern Instruction 1.10 is rarely reversible if the record is otherwise strong.
• Trial Practice. Encourages prosecutors to tie corroborating digital and forensic evidence to cooperating witnesses, immunising against instructional missteps.
• Appellate Strategy. Warns defence counsel that un-objected prosecutorial comments face formidable plain-error barriers.
• National Persuasion. Adds the Tenth Circuit to the Fourth and Eighth Circuits in expressly holding § 111(b) survives Borden, creating consistency and diminishing prospects of future circuit splits.

Complex Concepts Simplified

Crime of Violence (18 U.S.C. § 924(c))

In federal law, certain firearms enhancements apply only if the underlying offence—called a “crime of violence”—requires, at minimum, the intentional use, attempted use, or threatened use of physical force against another person.

Categorical vs. Modified Categorical Approach

The “categorical” test asks whether any way of violating the statute necessarily involves violent force. If the statute lists alternative sets of elements (“divisible”), courts identify which set formed the actual conviction and then apply the categorical test to that set (“modified categorical approach”).

Harmless Error

An error that does not affect the trial’s outcome. Under Rule 52(a), appellate courts will not overturn convictions for non-constitutional errors unless they have “grave doubt” the verdict was affected.

Limiting Instruction

A directive to the jury restricting the purpose for which specific evidence may be considered (e.g., only to impeach credibility, not to prove guilt).

Improper Vouching

When a prosecutor suggests she personally knows a witness is telling the truth or implies hidden facts validate testimony; improper because it places the prosecutor’s credibility in place of evidence.

Conclusion

United States v. Butler is a robust, multi-issue opinion that chiefly:

1. cements § 111(b)’s status as an intentional, violent offence notwithstanding Borden—a holding that will reverberate in any future § 924(c) or ACCA litigation involving assaults on federal officers;
2. re-affirms that failure to give a limiting instruction on impeachment evidence, while erroneous, is not automatically reversible;
3. illustrates the Tenth Circuit’s deference to district-court discretion under Rules 403 and 52, and the strictures of plain-error review for un-objected prosecutorial statements.

Collectively, the opinion supplies prosecutors, defence counsel, and trial judges with clear guidance on jury-instruction obligations, evidentiary balancing, and the mens rea demands for violent-crime predicates in federal firearms cases.