United States v. Tavares , 849 F.3d 529 ( 2017 )

United States Court of Appeals
For the First Circuit
______________________________
No. 14-2319
UNITED STATES OF AMERICA,
Appellee,
v.
VERISSIMO TAVARES,
Defendant, Appellant.
___________________
Before
Thompson, Selya, and Kayatta,
Circuit Judges.
__________________
ORDER OF COURT
Entered: March 1, 2017
In a timely petition for rehearing en banc, which the panel herein treats as also a petition
for rehearing, see First Circuit Internal Operating Procedure X(C), Petitioner challenges, among
other things, our conclusion that Massachusetts ABDW is a divisible offense with at least one
elemental form that is a crime of violence. In so doing, Petitioner raises, among other
contentions, an argument not made in his briefs on appeal: That, in determining whether the
reckless and intentional forms of ABDW constitute alternative elements or simply alternative
methods of satisfying a single element under Mathis v. United States, 136 S. Ct. 2243 (2016), we
must follow the decision of the Massachusetts Appeals Court (MAC) in Commonwealth v.
Mistretta, 995 N.E.2d 814 (Mass. App. Ct. 2013), even if we conclude (as we have) that the
Massachusetts Supreme Judicial Court (SJC) would most likely rule that fundamentally different
degrees of mens rea serve as different elements for different forms of the offense, rather than as
mere methods of accomplishing a single indivisible offense. The rationales offered in support of
this argument appear to be that (1) trial courts in Massachusetts likely followed Mistretta in the
absence of an actual SJC opinion to the contrary; (2) criminal defendants have a due process right
to rely on Mistretta in the same circumstances; and (3) the presence of an extant, as yet unrejected,
MAC decision at least means that Massachusetts law does not provide a sufficiently "clear
answer[]" under Mathis, 136 S. Ct. at 2256.
Because this argument was never raised below or on appeal, it is waived. See Trull v.
Volkswagen of Am., Inc., 187 F.3d 88, 104 (1st Cir. 1999) (new arguments raised for the first time
in a petition for rehearing are waived). We observe, too, that Petitioner's 2011 conviction at issue
here was entered before Mistretta was decided in 2013, and there is no reason to think that the
model jury instruction described in our opinion, Slip Op. at 29 n.8, was not presumed to be correct
at the time of that conviction.
In any event, our opinion provides that upon remand, Shepard documents may be
submitted. To the extent that these documents shed new light on the nature of Petitioner's
conviction for ABDW, see Mathis, 136 S. Ct. at 2256 ("And if state law fails to provide clear
answers, federal judges have another place to look: the record of [the] prior conviction itself."),
Petitioner is not barred from arguing that that new information calls for a different conclusion than
the one we have reached.
The petition for rehearing is denied.
By the Court:
/s/ Margaret Carter, Clerk
cc:
Hon. Douglas P. Woodlock
Robert Farrell, Clerk, United States District Court for the District of Massachusetts
Dina Michael Chaitowitz
Randall Ernest Kromm
John Albert Wortmann Jr.
Judith H. Mizner
Behzad Mirhashem
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