United States v. Butler.
No. 24-3061. 6/25/2025. D.Kan. Judge Kelly. Forcible Assault of a Federal Officer—Use of a Firearm in Furtherance of a Crime of Violence—Jury Instructions—Impeachment Evidence—Prior Unsworn Inconsistent Statement.
June 25, 2025
The Kansas City Kansas Police Department (KCKPD) responded to a drive-by shooting at G’Ante Butler’s parents’ house, where Butler and his brother Zarion lived. The Butler brothers were associated with the “Tasha Gang,” as was Boykin, who was injured during the shooting. Shields, a member of Tasha Gang’s rival “BBUx2 Gang,” was the suspected shooter. Officers went to Shields’s residence, where they took Shields into custody and executed a search warrant. As KCKPD officers and ATF agents were leaving Shields’s residence, they were fired upon by multiple shooters. An ATF agent and civilian witness J.B. sustained gunshot wounds, and the gunfire damaged law enforcement vehicles and neighboring homes. A week later, G’Ante was taken into custody on an active parole warrant and his co-defendant Lewis was detained. G’Ante and Lewis denied involvement in the shooting, though officers found a .40-caliber Glock 22 in G’Ante’s pants. Officers seized G’Ante’s and Lewis’s cell phones and, pursuant to a search warrant, found evidence placing G’Ante and Lewis together on the night of the shooting along with Zarion, Barnes, and Hall. Officers suspected that these five individuals carried out the shooting at the Shields residence to retaliate against the BBUx2 Gang for the Butler family home shooting. Zarion was later arrested in connection with the shooting, and he made incriminating statements in a post-Miranda interview. All five individuals were charged with forcible assault of a federal officer and use of a firearm in furtherance of a crime of violence. Except for G’Ante, all defendants pleaded guilty. G’Ante was convicted on both counts and sentenced to 190 months’ imprisonment followed by five years’ supervised release.
On appeal, G’Ante argued that the district court erred by not instructing the jury that Zarion’s prior unsworn inconsistent statement could only be used for impeachment and not as substantive evidence of G’Ante’s guilt. District courts must instruct the jury that a witness’s prior unsworn inconsistent statement can only be used to judge the witness’s credibility and not as substantive evidence of the defendant’s guilt. Here, G’Ante requested an instruction that tracked the Tenth Circuit’s pattern instruction on impeachment by prior inconsistencies, but the district court declined to give the instruction. The district court thus abused its discretion. The government conceded this but argued that any error was harmless. The Tenth Circuit determined that the error was harmless, given that during G’Ante’s nine-day trial, the jury heard unequivocal testimony that was corroborated by substantial circumstantial evidence of G’Ante’s participation in the shooting.
G’Ante also contended that the district court erred by admitting the testimony of government witness Newsome under Fed. R. Evid. 403, asserting that the probative value of this testimony, if any, was weak because Newsome did not give an eyewitness account of G’Ante’s presence at the shooting. However, testimony that does not provide an eyewitness account does not necessarily lack probative value, and Newsome’s testimony related to other relevant issues, including the unusually long duration of the shooting, which suggested a retaliatory motive. And given that this trial was lengthy and the government offered substantial evidence of guilt, any risk of unfair prejudice from Newsome’s testimony did not substantially outweigh the testimony’s probative value.
G’Ante further argued that the prosecutor made improper comments during closing, which G’Ante did not object to at trial. However, the prosecutor’s comment did not distort the government’s burden of proof, vouch for the government’s case, or impugn defense counsel and the defense function.
G’Ante also asserted that cumulative error requires reversal. Having found that the district court committed only one error, the Tenth Circuit determined that cumulative error does not apply.
Lastly, G’Ante argued that his 18 USC § 924(c) conviction for use of a firearm in furtherance of a crime of violence should be vacated. He maintained that forcible assault on a federal officer under 18 USC § 111(b) is not a crime of violence and therefore cannot serve as a predicate offense for his § 924(c) conviction. But as the district court noted, the Tenth Circuit already decided in United States v. Kendall, 876 F.3d 1264, 1271 (10th Cir. 2017), that § 111(b) is a crime of violence, so G’Ante’s argument fails.
The judgment was affirmed.