## Facts

- Thomas W. Mitchell entered a bank in Kansas where teller Angela Muller was the only employee present.
- Mitchell approached the teller window and said, in substance, “this is a holdup” and directed Muller to “get back.”
- Mitchell did not display a weapon, claim to have a weapon, yell, expressly threaten injury, or physically touch Muller.
- Muller testified Mitchell’s tone was “serious” and that she felt threatened.
- After obtaining money, Mitchell instructed Muller to go with him; she complied.
- While moving toward the back of the bank, Mitchell yanked a telephone out of the wall.
- Outside the bank, Mitchell ordered Muller to return inside; she complied.
- Muller later locked the back door and exited through the front to call police because she feared Mitchell might return.
- At trial, Mitchell sought to impeach Muller with a counseling record suggesting she had said she was having trouble remembering the robbery; Muller testified she did not recall making that statement.
- A jury convicted Mitchell of bank robbery by intimidation under 18 U.S.C. § 2113(a); the district court sentenced him to 210 months as a career offender under U.S.S.G. § 4B1.1.

## Issues

1. Whether sufficient evidence supported the “intimidation” element of 18 U.S.C. § 2113(a).
2. Whether the district court abused its discretion by excluding extrinsic evidence of a purported prior inconsistent statement when the witness testified she did not recall making it.
3. Whether the district court erred at sentencing by (a) classifying Mitchell as a career offender, including treating a prior escape conviction as a “crime of violence,” (b) denying a reduction for acceptance of responsibility, and (c) concluding it lacked authority to depart downward on the grounds asserted.

## Decision

- The Tenth Circuit affirmed the conviction and sentence in all respects.
- The court held the evidence permitted a rational jury to find intimidation beyond a reasonable doubt.
- The court held the district court did not abuse its discretion in excluding the counseling record as extrinsic impeachment evidence.
- The court held Mitchell was properly sentenced as a career offender; escape qualified as a “crime of violence” even if it involved walking away from an unsecured facility.
- The court upheld the denial of an acceptance-of-responsibility reduction.
- The court agreed the district court correctly concluded a downward departure was not authorized on the proffered grounds.

## Legal Principles

- For sufficiency of the evidence, an appellate court views the evidence in the light most favorable to the government and asks whether any rational trier of fact could find the essential elements beyond a reasonable doubt.
- “Intimidation” under 18 U.S.C. § 2113(a) does not require an express threat, a weapon, or physical contact; it may be shown by conduct that makes the situation appear dangerous and would cause reasonable fear of bodily harm.
- Trial courts have discretion over impeachment by prior inconsistent statements; a witness’s professed lack of memory is not necessarily treated as an affirmative inconsistency requiring admission of extrinsic proof.
- Career-offender predicates are assessed categorically; escape is treated as a “crime of violence” because of the serious risk of physical confrontation, even when accomplished by walking away from an unsecured facility.
- Acceptance-of-responsibility determinations receive substantial deference and are reviewed for clear error.
- Appellate review may reach a sentencing court’s legal determination that it lacks authority to depart, but not a discretionary refusal to depart within its recognized authority.

## Conclusion

The Tenth Circuit affirmed Mitchell’s bank-robbery-by-intimidation conviction and 210-month career-offender sentence, holding that the teller’s objectively reasonable fear supported intimidation, the trial court acted within its discretion in excluding extrinsic impeachment based on a claimed lack of memory, and escape categorically qualified as a crime of violence for career-offender sentencing.


United States v. Mitchell, 113 F.3d 1528 (10th Cir. 1997)