Petition for Writ of Certiorari — Scott Estes, Petitioner v. United States

Docket No:

UNITED STATES SUPREME COURT

United States,

Plaintiff-Respondent,

Vv.

Scott Estes,

Defendant-Petitioner.

On Petition for Writ of Certiorari

TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

ROBERT C. ANDREWS

Attorney for Scott Estes

First Circuit Bar Number 88418

117 Auburn Street Suite 201

Portland, ME 04103

Tel. 207-879-9850

Fax 207-879-1883

E-mail rob.andrews.esq@gmail.com

Case: 19-2111 Document: 00117718379 Page:1 Date Filed: 03/16/2021 — Entry ID: 6409094

United States Court of Appeals

For the First Circuit

No. 19-2111

UNITED STATES

Appellee

Vv.

SCOTT ESTES

Defendant - Appellant

Before

Howard, Chief Judge,

Lynch, Thompson, Kayatta, Barron, Circuit Judges,

and Burroughs,* District Judge.

ORDER OF COURT

Entered: March 16, 2021

The petition for rehearing having been denied by the panel of judges who decided the case,

and the petition for rehearing en banc having been submitted to the active judges of this court and

a majority of the judges not having voted that the case be heard en banc, it is ordered that the

petition for rehearing and the petition for rehearing en banc be denied.

By the Court:

Maria R. Hamilton, Clerk

ce!

Robert Clayton Andrews

Michael Conley

Julia M, Lipez

* Of the District of Massachusetts, sitting by designation.

United States v. Estes, 985 F.3d 99 (2021)

114 Fed. R. Evid. Serv, 891

985 F.3d 99

United States Court of Appeals, First Circuit.

UNITED STATES of America, Appellee,

v.

Scott ESTES, Defendant, Appellant.

No, 19-2111

January 14, 2021

Synopsis

Background: Defendant was convicted in the United States

District Court for the District of Maine, D. Brock Hornby,

Senior District Judge, of possessing a stolen firearm and being

a felon in possession of a firearm, Defendant appealed.

Holdings: The Court of Appeals, Burroughs, J., held that:

[1] caller's statements to 911 dispatcher were nontestimonial

in nature, and

[2] nontestimonial statements made by caller to 911

dispatcher were admissible under the excited utterance

exception to the hearsay rule.

Affirmed.

West Headnotes (7)

(1) Criminal Law

Criminal Law “= Hearsay

o» Review De Novo

The Court of Appeals reviews the question

of whether a given statement is testimonial

de novo, and reviews the question of whether

a district court properly applied a hearsay

exception for abuse of discretion.

[2] Criminal Law

hearsay in general

» Out-of-court statements and

[3]

[4]

[5]

Caller's statements to 911 dispatcher were

nontestimonial in nature, and thus, admission

of statements of caller, who did not testify,

did not violate Confrontation Clause; caller was

speaking about current events in real time when

she told dispatcher that defendant possessed a

loaded gun in his pocket, a reasonable listener

would have concluded that caller faced an

ongoing emergency when she called for help,

the dispatcher's questions were designed to elicit

answers necessary to resolve the emergency, and

the 911 call was informal and took place while

the caller was near a felon who had recently

pointed a loaded gun at her. U.S, Const. Amend.

6.

Criminal Law “= Out-of-court statements and

hearsay in general

The determination as to whether a statement is

testimonial under the Confrontation Clause is

an objective evaluation of the circumstances in

which the encounter occurs and the statements

and actions of the parties. U.S. Const. Amend. 6,

Criminal Law ©= Out-of-court statements and

hearsay in general

Statements made to a 911 operator are

nontestimonial under the Confrontation Clause

when made in the course of police interrogation

under circumstances objectively indicating that

the primary purpose of the interrogation is to

enable police assistance to meet an ongoing

emergency; by contrast, such statements are

testimonial when the circumstances objectively

indicate that there is no such ongoing emergency,

and that the primary purpose of the interrogation

is to establish or prove past events potentially

relevant to later criminal prosecution. U.S.

Const, Amend. 6.

Criminal Law ©= Out-of-court statements and

hearsay in general

A number of factors should guide courts in

determining whether statements made to a 911

operator were testimonial or nontestimonial

United States v. Estes, 985 F.3d 99 (2021)

114 Fed. R. Evid. Serv, 891

under the Confrontation Clause, including: (1)

was the declarant speaking about current events

as they were actually happening, requiring police

assistance rather than describing past events;

(2) would a reasonable listener conclude that

the declarant was facing an ongoing emergency

that called for help; (3) was the nature of what

was asked and answered during the course of

a 911 call such that, viewed objectively, the

elicited statements were necessary to be able

to resolve the present emergency rather than

simply to learn what had happened in the past,

and (4) what was the level of formality of the

interview, for example, was the caller frantic, in

an environment that was neither tranquil nor safe.

U.S. Const. Amend. 6.

[6] Criminal Law «+ Out-of-court statements and

hearsay in general

When a statement is non-testimonial, there is no

right to confrontation. U.S. Const. Amend. 6,

[7] Criminal Law «= Length of time elapsed as

affecting admissibility

Nontestimonial statements made by caller to 911

dispatcher were admissible under the excited

utterance exception to the hearsay rule; at the

time caller made the call, defendant had recently

pointed a loaded gun at her, an unquestionably

startling event, and although some time had

passed, the caller was still under the stress of

excitement for the duration of the call, given that

defendant was still nearby with the gun. Fed. R.

Evid, 803(2).

*101 APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF MAINE, [Hon. D. Brock

Hornby, U.S. District Judge]

Attorneys and Law Firms

Robert C. Andrews, by appointment of the Court, for

appellant.

Julia M, Lipez, Assistant United States Attorney, with whom

Halsey B. Frank, United States Attorney, was on brief, for

appellee,

Before Lynch and Barron, Circuit Judges, Burroughs,”

District Judge.

Opinion

Burroughs, District Judge.

The defendant, Scott Estes, appeals from the district court's

grant of the Government's motion in limine to admit

a recording of a 911 call placed by Estes' girlfriend.

Estes argues that his girlfriend's statements during the

call are testimonial in nature, triggering his Confrontation

Clause rights under the Sixth Amendment, and that

the district court should have therefore precluded the

Government from introducing the recording without calling

the declarant as a witness at trial. He also argues that, even

assuming the statements contained in the 911 recording

are non-testimonial, the district court erred by allowing the

recording to be admitted because he has an independent

right to face-to-face confrontation and because there was no

applicable hearsay exception. We hold that the statements

in the 911 recording are non-testimonial and that where a

statement is non-testimonial, the Confrontation Clause is not

implicated and the only bar to admission is the rule against

hearsay, Because the district court did not abuse its discretion

in applying a hearsay exception, we affirm.

I.

A. Facts

Katherine Hutchins ran a house cleaning service. On the

morning of November 13, 2017, she and her boyfriend of a

few months, Estes, had just finished cleaning a house together

and were leaving the job. Hutchins was driving. During the

car ride, Hutchins learned that Estes had stolen a firearm

from the house that they had just cleaned. Estes loaded this

firearm, showed it to Hutchins, and pointed it at her, Estes had

previously told Hutchins that he was a felon and could not

have a gun, She also believed that he might be using drugs

because he was behaving erratically and had needles in his

pocket.

During the car ride, at approximately 11:20 AM, Hutchins

called 911.' When she made the 911 call, Estes had

United States v. Estes, 985 F.3d 99 (2021)

114 Fed. R. Evid. Serv. 891

temporarily left the vehicle to help another motorist. Hutchins

began the call by stating that Estes “loaded a gun, and he has

it in his pocket and he's a felon.” The 911 dispatcher *102

said that he would send officers to her location.” She then told

him that she would have to pretend to be speaking to someone

other than the police because she did not want to “get shot.”

She further explained that Estes had “needles in his pocket,”

was “not good,” and had loaded the gun and pointed it at her,

causing her to be “‘a little nervous right now.” She added that

she was “shaking” and “scared,” and implored the police to

take her call “really seriously right now.” The 911 dispatcher

assured her that the police were taking her call seriously and

again told her that he was sending officers to her location.

At that point, presumably because Estes had re-entered the

vehicle, Hutchins began pretending to speak to her credit card

company. The 911 dispatcher played along with Hutchins!

Tuse, encouraging her to “keep makin[g] ... conversation.”

After a few minutes, Hutchins told the 911 dispatcher that

Estes was running into his friend's apartment and that, as soon

as officers arrived, she would show them where Estes had

gone. She reiterated that Estes was “probably going to shoot

[her],” adding that she was “nervous” and “scared shitless.”

The 911 dispatcher told her that he wanted to ensure that

she was safe and asked her to stay on the phone with him

until officers arrived at the scene. They discussed which

apartment Estes had entered, and she volunteered additional

information, including Estes' name and birthdate. Officers

then arrived, and Hutchins ended the call.

Prior to, and during, the 911 call, Hutchins communicated

via text and/or Facebook Messenger, with two individuals,

Ashley Wing (the client whose house she and Estes

had cleaned that morning) and Bethany Maheux.> In her

text exchange with Wing, which began at 10:59 AM

(approximately twenty minutes before the 911 call) and

continued until 11:35 AM, Hutchins attempted to determine

whether Estes had stolen the gun from Wing's home. Wing

confirmed that the gun was hers. Hutchins asked Wing to

call the police and wrote “[p]lease know he loaded it and I

am scare [sic] I will be hurt.” In her exchange with Maheux,

which began at approximately 11:06 AM, Hutchins tried to

determine whether Maheux had purchased a gun for Estes.

Maheux denied doing so, and when Hutchins asked her to call

the police, Maheux replied that she was “not involved” and

encouraged Hutchins to call the police herself.

B. Procedural History

Estes was indicted for possessing a stolen firearm and

being a felon in possession of a firearm, in violation of

18 U.S.C. §§ 922(j) and 922(g)(1), respectively, Prior to

trial, the Government filed a motion in limine seeking to

introduce the 911 recording without calling Hutchins as a

witness, Estes opposed the motion. After a hearing, the district

court orally granted the Government's motion. The district

court concluded that the statements in the 911 recording

were non-testimonial and therefore did not implicate the

Sixth Amendment, The district court then analyzed whether

there were any applicable hearsay exceptions and found

that the 911 recording was admissible under Federal Rules

of Evidence 803(2) (excited utterance) and 803(1) (present

sense impression) and that parts of the recording were also

admissible under Rule 803(3) (then-existing *103 mental,

emotional, or physical condition).

After the district court's ruling on the motion in limine, Estes

entered a conditional guilty plea pursuant to Federal Rule of

Criminal Procedure 11(a)(2), reserving his right to appeal the

district court's order granting the motion. The district court

then sentenced Estes to thirty-six months’ imprisonment, and

Estes timely appealed.

Il.

On appeal, Estes challenges the district court's determination

that the statements in the 911 recording were

non-testimonial and asserts that even if they were

non-testimonial, the district court still should not have

admitted the recording because Estes has a right to confront

Hutchins, and further, that no hearsay exception applies.

[1] This Court reviews the question of whether a given

statement is testimonial de novo, United States v. Brito, 427

F.3d 53, 59 (1st Cir. 2005) (citing United States v, Tse, 375

F.3d 148, 159 (1st Cir. 2004)), and reviews the question of

whether a district court properly applied a hearsay exception

for abuse of discretion, Packgen v. Berry Plastics Corp.,

847 F.3d 80, 90 (Ist Cir. 2017) (citing Shervin v. Partners

Healthcare Sys., Inc., 804 F.3d 23, 41 (Ist Cir. 2015)).

A. The Statements in the 911 Recording Are

Non-Testimonial

[2] [3] “In Crawford v. Washington, the Supreme Court

held that the Sixth Amendment's Confrontation Clause bars

‘admission of testimonial statements of a witness who did

United States v. Estes, 985 F.3d 99 (2021)

114 Fed. R. Evid. Serv. 891

not appear at trial unless he was unavailable to testify, and

the defendant had a prior opportunity for cross-examination.’

” United States v. Cadieux, 500 F.3d 37, 40 (1st Cir. 2007)

(quoting Crawford v. Washington, 541 U.S. 36, 53-54, 124

S.Ct. 1354, 158 L.Ed.2d 177 (2004)), cert. denied, 552

U.S. 1190, 128 S.Ct. 1223, 170 L.Ed.2d 77 (2008). The

determination as to whether a statement is testimonial is

an “objective[ ] evaluat[ion of] the circumstances in which

the encounter occurs and the statements and actions of the

parties,” Michigan v. Bryant, 562 U.S. 344, 359, 131 S.Ct.

1143, 179 L.Ed.2d 93 (2011).

[4] [5] In Cadieux, this Court assessed whether statements

in a 911 recording were testimonial within the meaning

of Crawford and set forth an analytical framework based

on the Supreme Court's decision in Davis v. Washington.

“[S]tatements made to a 911 operator ‘are nontestimonial

when made in the course of police interrogation under

circumstances objectively indicating that the primary purpose

of the interrogation is to enable police assistance to meet

an ongoing emergency.’ ” Cadieux, 500 F.3d at 41 (quoting

Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266,

165 L.Ed.2d 224 (2006)). “By contrast, such statements are

testimonial ‘when the circumstances objectively indicate that

there is no such ongoing emergency, and that the primary

purpose of the interrogation is to establish or prove past

events potentially relevant to later criminal prosecution.’ ” Id.

(quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266). A number

of factors “should guide courts in this objective inquiry,

including”:

(1) Was the declarant speaking about current events as they

were actually happening, requiring police assistance rather

than describing past events?

(2) Would a reasonable listener conclude that the declarant

was facing an ongoing emergency that called for help?

(3) Was the nature of what was asked and answered during

the course of a 911 call such that, viewed objectively, the

elicited statements were necessary to be *104 able to

resolve the present emergency rather than simply to learn ...

what had happened in the past?

(4) What was the level of formality of the interview? For

example, was the caller frantic, in an environment that was

neither tranquil nor safe?

Id. (internal citations and quotation marks omitted),

A straightforward application of the Cadieux factors to the

facts here leads to the conclusion that the statements in the

911 recording are non-testimonial.*

With respect to the first factor, the declarant, Hutchins, was

speaking about current events in real time. She told the 911

dispatcher that Estes possessed a loaded gun in his pocket.

She also repeatedly reported on her current location, both

in absolute terms and as compared to Estes. Finally, she

described her feelings in the present tense (“I'm shaking,”

“T'm really nervous,” “I'm scared shitless”), and requested

immediate assistance from the police.

With respect to the second factor, a reasonable listener would

conclude that Hutchins faced an ongoing emergency that

called for help. During the call, she was in a vehicle with

(or otherwise in close proximity to) Estes, a felon who was

in possession of a loaded gun that she believed he had

stolen. Moreover, he had already pointed the gun at her

and was otherwise acting in an odd and unstable manner.

Importantly, Hutchins communicated each of these facts to

the 911 dispatcher during the call.

With respect to the third factor, the dispatcher's questions

were designed to elicit answers necessary to resolve the

emergency. He asked her where Hutchins and Estes were,

both in absolute and relative terms, to be able to safely

dispatch law enforcement to her location. Additionally, the

fact that the 911 dispatcher played along with Hutchins’ ruse

regarding a phony call with her credit card company shows

that he believed there was an ongoing situation that warranted

such subterfuge. Finally, the 911 dispatcher's statements and

questions evidence his concern with Hutchins’ wellbeing and

suggest that he was attempting to safely resolve the situation.

For instance, he asked her “to stay on the phone with [him]

until [she'd] made contact with the officer” and told her that

he “want[ed] to make sure [she was] safe.”> In light of those

questions, the background information that the dispatcher

elicited is also best understood to be designed to assist him in

resolving the emergency.

With respect to the fourth factor, the 911 call was informal and

took place while Hutchins was near a felon who had recently

pointed a loaded gun at her. Despite remaining relatively calm

and not sounding “frantic,” Hutchins was undoubtedly in an

environment that was neither tranquil nor safe.

Estes' arguments as to why the statements in the 911

recording are testimonial are unavailing. First, he argues

United States v. Estes, 985 F.3d 99 (2021)

114 Fed. R. Evid, Serv. 891

that the ongoing emergency had ended by the time the 911

call was made because Hutchins placed the call twenty to

thirty minutes after Estes pointed the gun at her, by *105

which time he had put the gun in his pocket. Hutchins likely

waited as long as she did to place the 911 call because she

was in a car with Estes, who would have overheard at least

her side of any telephone conversation, The record indicates

that she called 911 as soon as Estes left the vehicle, which

allowed her to make the call without being overheard. The

emergency had not concluded simply because Estes was no

longer brandishing the loaded gun. He still had the gun and

could have taken it from his pocket at any time.

Second, Estes argues that Hutchins' investigation into Estes’

acquisition of the gun renders the statements in the 911

recording testimonial, The fact that she communicated with

Wing and Maheux prior to placing the 911 call does not negate

the fact that Hutchins was with an individual who had recently

pointed a loaded gun at her. Additionally, as the Government

notes, Hutchins' investigation into how Estes obtained the

gun would, quite reasonably, inform her level of concern. Her

level of concern for her own safety was understandably raised

by learning that he had just stolen a gun from Wing's home

while they were cleaning it, knowing that he was a felon who

should not have a gun at all, and experiencing his reckless

disregard for the law and her safety. Her realization that he

might be high on drugs likely heightened her level of concern.

Hutchins' texts and messages with Wing and Maheux confirm

that she was fearful and believed that an emergency was

underway, In fact, she asked both Wing and Maheux to call

the police, perhaps because she felt she could not safely do so

herself while Estes was in the car.

In sum, under the factors set forth in Cadieux and consistent

with this Court's precedent, the statements in the 911

recording here are non-testimonial. See Cadieux, 500 F.3d

at 41 (finding statements in a 911 recording non-testimonial

where caller was speaking about events in real time and

asked for police assistance, and where the dispatcher's

questions were tailored to elicit pertinent facts regarding the

emergency); Brito, 427 F.3d at 62-63 (finding statements in a

911 recording non-testimonial where caller heard gunshots,

then saw a man with a gun who pointed the gun at her and

remained in her sight).

B. fr ion Cl I mpli

Non-Testimonial Statements and the District Court Did Not

Abuse Its Discreti itting th

[6] Estes argues that regardless of whether the statements

in the 911 recording are testimonial, he has a right to

confront Hutchins at trial. He is incorrect,® It is wellsettled that when a statement is non-testimonial, there is

no right to confrontation. See Bryant, 562 U.S, at 354, 131

S.Ct. 1143 (“We therefore limited the Confrontation Clause's

reach to testimonial statements ....”); Davis, 547 U.S. at

821, 126 S.Ct. 2266 (“Only [testimonial] statements ...

cause the declarant to be a ‘witness’ within the meaning

of the Confrontation *106 Clause, It is the testimonial

character of the statement that separates it from other hearsay

that, while subject to traditional limitations upon hearsay

evidence, is not subject to the Confrontation Clause.” (citation

omitted)); United States v. Ponzo, 853 F.3d 558, 578 (Ist

Cir, 2017) (“The Confrontation Clause ... bars admission

of testimonial hearsay unless ‘the declarant is unavailable’

and ‘the defendant had a prior opportunity’ for crossexamination ....” (quoting Crawford, 541 U.S. at 59, 124

S.Ct. 1354)); United States v. Castro-Davis, 612 F.3d 53, 64

n.14 (1st Cir. 2010) (“After Davis, however, non-testimonial

hearsay no longer implicates the Confrontation Clause at

all.”); United States v. Figueroa-Cartagena, 612 F.3d 69, 85

(Ist Cir, 2010) (“The threshold question in every case is

whether the challenged statement is testimonial. If it is not,

the Confrontation Clause ‘has no application.’ ” (quoting

Whorton v. Bockting, 549 U.S. 406, 420, 127 S.Ct. 1173,

167 L.Ed.2d 1 (2007))); United States v, Earle, 488 F.3d 537,

542 (Ist Cir. 2007) (noting that the Confrontation Clause

“applies only to testimonial hearsay” (citing Davis, 547 U.S.

at 821, 126 S.Ct. 2266)); see also Unit v. Rodriguez-

Berrios, 573 F.3d 55, 61 n.4 (Ist Cir, 2009) (rejecting

argument that admission of non-testimonial hearsay violated

the Confrontation Clause).

Accordingly, because the statements in the 911 recording are

non-testimonial, the only remaining question is whether the

district court abused its discretion in admitting the recording

pursuant to a hearsay exception,’ We find that it did not.

[7] The district court found that three hearsay exceptions

were applicable,® but we need discuss only the first in

any detail because one hearsay exception is sufficient to

support the 911 recording's admission, Under the “Excited

Utterance” exception, a “statement relating to a startling

event or condition, made while the declarant was under the

stress of excitement that it caused” is admissible. Fed. R.

Evid. 803(2). At the time Hutchins placed the call, Estes had

recently pointed a loaded gun at her, which is unquestionably

a startling event. Although some time had passed, Hutchins

United States v. Estes, 985 F.3d 99 (2021)

114 Fed. R. Evid, Serv. 891

was still “under the stress of excitement” for the duration

of the call, id., especially given that Estes was still nearby TIT.

with the gun, See United States v. Rondeau, 430 F.3d 44,

48 (Ist Cir. 2005) (finding that where 911 call was made We affirm the district court's grant of the Government's

“as or immediately after [someone] threatened [the caller] Motion in limine.

with the gun,” the statements were excited utterances); Brito,

427 F.3d at 62-63 (noting that statements by 911 caller who — Affirmed.

had recently had gun pointed at her were excited utterances).

Thus, the district court did not abuse its discretion in admitting

All Citations

the 911 recording under Rule 803(2).

985 F.3d 99, 114 Fed. R. Evid. Serv. 891

Footnotes

*

Fl

Of the District of Massachusetts, sitting by designation.

The district court granted the Government's motion in limine based on a version of the 911 recording and transcript that

had been redacted to exclude those portions of the conversation that constituted hearsay within hearsay. The redacted

version of the transcript, the admission of which is the subject of Estes’ appeal, appears in his Appendix.

Throughout the call, the 911 dispatcher asked questions designed to ascertain Hutchins' and Estes' locations, both in

absolute terms and as compared to one another.

Hutchins’ communications with Wing and Maheux also appear in Estes' Appendix.

At oral argument, Estes suggested that the Cadieux factors are inappropriate and inconsistent with Supreme Court

guidance. Because we derived the Cadieux factors directly from the Supreme Court's decision in Davis, see Cadieux,

500 F.3d at 41, we find Estes' argument to be without merit.

The 911 dispatcher also asked questions about Estes' name and birthdate after Hutchins had already volunteered that

information.

The two Supreme Court cases that Estes cites, Maryland v. Craig and Coy v. lowa, are inapposite. Both pre-date

Crawford, the seminal Supreme Court Confrontation Clause case, which established the current testimonial versus

non-testimonial test. In any event, those cases concerned trial testimony and involved clearly testimonial statements.

Maryland v. Craig, 497 U.S, 836, 860, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) (allowing child victim to testify via oneway closed-circuit television did not violate Confrontation Clause); Coy v. lowa, 487 U.S. 1012, 1020-21, 108 S.Ct. 2798,

101 L.Ed.2d 857 (1988) (finding Confrontation Clause violation where child victim testified from behind a large screen).

Craig and Coy do not concern a defendant's right to confrontation with respect to non-testimonial statements, like the

ones at issue here.

Contrary to Estes' assertion, the fact that Hutchins was available to testify is of no consequence because each of the

hearsay exceptions relied upon by the district court applies “regardless of whether the declarant is available as a witness.”

Fed. R. Evid. 803,

The district court found that Federal Rules of Evidence 803(2) (Excited Utterance), 803(1) (Present Sense Impression),

and 803(3) (Then-Existing Mental, Emotional, or Physical Condition) were all applicable.

For the reasons articulated by the district court, we agree that the other two hearsay exceptions it applied are also

applicable here.

End of Document © 2021 Thomson Reuters. No claim to original U.S.

Government Works.

Case 2:18-cr-00068-DBH Document 154 Filed 10/30/19 Page 1of7 PagelD #: 1802

AO 245B (Rev. (9/19) Judgment in a Criminal Case

Sheet |

es e 1

United States District Coiapt}'2 2015

District of Maine RECESS ED

UNITED STATES OF AMERICA JUDGMENT INAYGRIMINALC Hse

v.

SCOTT ESTES Case Number: 2: 18-CR-Q0O9F 0A 3

USM Number: 13350-036 .

Robert C. Andrews, Esq.

Defendant's Attomey

THE DEFENDANT:

{X] pleaded guilty to count(s) 1 & 2 of the Indictment

L) pleaded nolo contendere to count(s) which was accepted by the court.

(J was found guilty on count(s) after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title & Section Nature of Offense Offense Ended Count

18 U.S.C. § 922(g)(1), 18 Felon in Possession of November 13, 2017 1

U.S.C. § 924(a) Firearm

18 U.S.C. § 922G)(1), 18 Possession of Stolen November 13, 2017 2

U.S.C. § 924(a) Firearm

The defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence is imposed pursuant to the

Sentencing Reform Act of 1984.

(C) The defendant has been found not guilty on count(s) .

() Count(s) Cis D are dismissed on the motion of the United States.

It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name,

residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If

ordered to pay restitution, the defendant shall notify the court and United States attorney of material changes in economic

circumstances.

October 39; 20

a bsitiofi of Judgment

Di Ao A

Signature of Judge

D. Brock Hornby, U.S. District Judge

Name and Title of Judge

1? (30 fr F

Date Signed

19

Case 2:18-cr-00068-DBH Document 154 Filed 10/30/19 Page 2of7 PagelD #: 1803

AO 24S5B (Rev. 09/19) Judgment in a Criminal Case

Sheet 2 — Imprisonment

Judgment Page = 2 of 7

DEFENDANT: SCOTT ESTES

CASE NUMBER: _ 2:18-CR-00068-001

I SO) NT

The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total

term of 36 months on Counts | and 2, to be served concurrently.

{& The court makes the following recommendations to the Bureau of Prisons:

The defendant shall enroll in the 500 Hour Comprehensive Residential Drug and Alcohol Treatment Program.

Defendant to be assigned to Devens FMC,

{ The defendant is remanded to the custody of the United States Marshal.

(0 The defendant shall surrender to the United States Marshal for this district:

Oo at Oam. Op.m. on y

o as notified by the United States Marshal.

(The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons.

oO before 2 p.m.on___.

o as notified by the United States Marshal.

o as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on to

a , with a certified copy of this judgment.

“UNITED STATES MARSHAL

By

DEPUTY UNITED STATES MARSHAL

20

Case 2:18-cr-00068-DBH Document 154 Filed 10/30/19 Page 3of7 PagelD #: 1804

AO 245B (Rev. 09/19) Judgment in a Criminal Case

Sheet 3 Supervised Release

DEFENDANT: SCOTT ESTES

CASE NUMBER: _—2:18-CR-00068-001

RVIS EAS

Upon release from imprisonment, you will be on supervised release for a term of: 3 years on Counts 1 and 2, to be served

concurrently.

MANDATORY CONDITIONS

1, You must not commit another federal, state or local crime.

2. You must not unlawfully possess a controlled substance.

3. You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of

release from imprisonment and at least two additional drug tests during the term of supervision, but not more than 120

drug tests per year thereafter, as directed by the probation officer.

The above drug testing condition is suspended, based on the court's determination that you

pose a low risk of future substance abuse. (check if applicable)

(J You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a

sentence of restitution. (check if applicable)

[X] You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)

[_] You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901,

et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in

which you reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)

(J You must participate in an approved program for domestic violence. (check if applicable)

aw Sf

_

If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the

Schedule of Payments of this judgment.

You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the

attached page.

21

Case 2:18-cr-00068-DBH Document 154 Filed 10/30/19 Page 4of7 PagelD #: 1805

AO 245B (Rev, 09/19) Judgment in a Criminal Case

Sheet 3A — Supervised Release

DEFENDANT: SCOTT ESTES

CASE NUMBER: _2:18-CR-00068-001

Judgment—Page 4 of 7

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are

imposed because they establish the basic expectations for your behavior while on supervision and identify the minimum tools

needed by probation officers to keep informed, report to the court about, and bring about improvements in your conduct and

condition.

1. You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours

of your release from imprisonment, unless the probation officer instructs you to report to a different probation office or

within a different time frame.

2. After initially reporting to the probation office, you will receive instructions from the court or the probation officer about

how and when you must report to the probation officer, and you must report to the probation officer as instructed.

3. You must not knowingly leave the federal judicial district where you are authorized to reside without first getting

permission from the court or the probation officer.

4. You must answer truthfully the questions asked by your probation officer.

5. You must live at a place approved by the probation officer. If you plan to change where you live or anything about your

living arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the

change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, you must notify

the probation officer within 72 hours of becoming aware of a change or expected change.

6. You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the

probation officer to take any items prohibited by the conditions of your supervision that he or she observes in plain view.

7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer

excuses you from doing so. If you do not have full-time employment you must try to find full-time employment, unless

the probation officer excuses you from doing so. If you plan to change where you work or anything about your work

(such as your position or your job responsibilities), you must notify the probation officer at least 10 days before the

change. If notifying the probation officer at least 10 days in advance is not possible due to unanticipated circumstances,

you must notify the probation officer within 72 hours of becoming aware of a change or expected change.

8. You must not communicate or interact with someone you know is engaged in criminal activity, If you know someone

has been convicted of a felony, you must not knowingly communicate or interact with that person without first getting

the permission of the probation officer.

9. If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours,

10. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.¢.,

anything that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person

such as nunchakus or tasers).

11, You must not act or make any agreement with a law enforcement agency to act as a confidential human source or

informant without first getting the permission of the court.

12. If the probation officer determines that you pose a risk to another person (including an organization), the probation

officer may require you to notify the person about the risk and you must comply with that instruction. The probation

officer may contact the person and confirm that you have notified the person about the risk.

13. You must follow the instructions of the probation officer related to the conditions of supervision.

U.S. Probation Office Use Only

AUS. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy of

this judgment containing these conditions. For further information regarding these conditions, see Overview of Probation and

Supervised Release Conditions, available at: www.uscourts.gov.

Defendant's Signature Date

22

Case 2:18-cr-00068-DBH Document 154 Filed 10/30/19 Page5of7 PagelD #: 1806

AO 245B (Rev. 09/19) Judgment in a Cnminal Case

Sheet 3D . Supervised Release

DEFENDANT: SCOTT ESTES

CASE NUMBER: —2:18-CR-00068-001

PECIAL D FS VIS,

1. Defendant shall participate in mental health treatment, as directed by the supervising officer, until released from the

program by the supervising officer. Defendant shall pay/co-pay for services during such treatment, to the supervising

officer's satisfaction;

2. The Defendant shall inform any prescribing medical practitioner that he/she has a history of substance abuse and shall

provide the supervising officer with written proof of such notice;

3. Defendant shall not use or possess any controlled substance, alcohol or other intoxicant; and shall participate in a

program of drug and alcohol abuse therapy to the supervising officer's satisfaction. This shall include testing to determine if

Defendant has used drugs or intoxicants. Defendant shall pay/co-pay for services during such treatment to the supervising

officer's satisfaction. Defendant shall not obstruct or tamper, or try to obstruct or tamper, in any way, with any tests;

4. The defendant shall participate in workforce development programs and services as directed by the supervising officer,

and, if not employed, shall perform up to 20 hours of community service per week. Workforce development programming

may include assessment and testing; educational instructions; training classes; career guidance; and job search and retention

services;

5. Defendant shall not own or possess any firearm or other dangerous weapon, or knowingly be at any time in the company

of anyone known by the defendant to possess a firearm or other dangerous weapon; and

6. A United States probation officer may conduct a search of the defendant and of anything the defendant owns, uses, or

possesses if the officer reasonably suspects that the defendant has violated a condition of supervised release and reasonably

suspects that evidence of the violation will be found in the areas to be searched. Searches must be conducted at a

reasonable time and in a reasonable manner. Failure to submit to a search may be grounds for revocation of release.

23

Case 2:18-cr-00068-DBH Document 154 Filed 10/30/19 Page 6of7 PagelD #: 1807

AO 245B (Rev. 09/19) Judgment in a Criminal Case

Sheet 5 - Criminal Monetary Penalties

Judgment—Page 6 of 7

DEFENDANT: SCOTT ESTES

CASE NUMBER: 2:18-CR-00068-001

Cc INET, NALTI

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

Count Assessment Restitution Fine AVAA JVTA Assessment **

Assessment *

1 $100 $0 $0

2 $ 100 $0 $0

Totals: $ 200 $0 $0

(J The determination of restitution is deferred until . An Amended Judgment in a Criminal Case (AO 245C) will be entered after such

determination.

(CO The defendant must make restitution (including community restitution) to the following payees in the amount listed below.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in the

priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal victims must be paid before

the United States is paid.

NameofPayvee -—-—‘TrotalLoss*** = Restitution Ordered =» Priority or Percentage

TOTALS $ $

(1 _ Restitution amount ordered pursuant to plea agreement §

(_ The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the

fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject

to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

(The court determined that the defendant does not have the ability to pay interest and it is ordered that:

(the interest requirement is waived for the [[) fine C1 restitution.

C1 the interest requirement forthe 1) fine CO restitution is modified as follows:

* Amy, Vicky, and Andy Child Pomography Victim Assistance Act of 2018, Pub, L. No. 115-299.

** Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22.

*** Findings for the total amount of losses are ig cog under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on

or after September 13, 1994, but before April 23, 1996.

24

Case 2:18-cr-00068-DBH Document 154 Filed 10/30/19 Page 7of7 PagelD #: 1808

AO 245B (Rev. 09/19) Judgment in a Criminal Case

Sheet 6 - Schedule of Payments

Judgment’ Page 7 of 7

DEFENDANT: SCOTT ESTES

CASE NUMBER: 2:18-CR-00068-001

SCHEDU F PAYMENT.

Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties are due as follows:

A (Lump sum payment of $200 due immediately, balance due

{2 Any amount that the defendant is unable to pay now is due and payable during the term of incarceration. Upon release from

incarceration, any remaining balance shall be ~ in monthly installments, to be initiall determined in amount by the supervising

officer. Said payments are to be made during the period of supervised release, subject always to review by the sentencing judge on

request, by either the defendant or the government.

7 not later than , Or

CO inaccordancewith (1 Cc, 0 D, a) E, or CL) F below; or

(1 Payment to begin immediately (may be combined with (1c, ( D,or C1 F below); or

Cc (CO Payment in equal (e.g., weekly, monthly, quarterly) installments of $ over a period of

(e.g., months or years), to commence (e.g., 30 or 60 days) after the date of this judgment; or

D ( Payment in equal fe.g., weekly, monthly, quarterly) installments of $ over a period of

(e.g., months or years), to commence (e.g., 30 or 60 days) after release from imprisonment to a

term of supervision; or

E (1 Payment during the term of supervised release will commence within (e.g., 30 or 60 days) after release from

imprisonment. The court will set the payment plan based on an assessment of the defendant's ability to pay at that time; or

F ( Special instructions regarding the payment of criminal monetary penalties:

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal m penalties is due

during the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’

Inmate Financial Responsibility Program, are made to the clerk of the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

1 Joint and Several

Case Number

Defendant and Co-Defendant Names Joint and Several Corresponding Payee,

(including defendant number) Total Amount Amount if appropriate.

(_ The defendant shall pay the cost of prosecution.

(The defendant shall pay the following court cost(s):

(_ The defendant shall forfeit the defendant’s interest in the following property to the United States:

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) AVAA assessment, (5)

fine principal, (6) fine interest, (7) community restitution, (8) JVTA assessment, (9) penalties, and (10) costs, including cost of prosecution

and court costs.

25

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THE COURT: It got -- it got from Mrs. Wing's place

to some other apartment on the morning in question.

MR. ANDREWS: That's right, and what Mrs. Hutchins

isn't saying is that she had been in that apartment that

morning.

THE COURT: Okay.

MR. ANDREWS: That's -- I mean that's a fact that

will be brought out at trial.

THE COURT: Okay. Thank you. All right, counsel, I

may give a ruling and what I want to do, I'm going to take

20 minutes to half an hour to recess and then come back to

give you my oral ruling. Thank you.

(Recess called)

THE COURT: I previously read your briefs and the

cases that you cited and we've made clear now what the record

is for purposes of the hearing. And the two Government

exhibits have been admitted and the defense exhibits are

admitted that are attached to the defendant's brief at, I

mentioned before -- which is ECF No. 98.

Just to cut to the chase, I am going to allow the 9-1-1

call to come into evidence as it's been redacted most recently

as reflected in Government's 2. I'm assuming therefore that

the audio would be redacted to reflect what the transcript

showed will be taken out that is highlighted, namely

information which is hearsay within hearsay or for which

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there's a lack of foundation.

We talked some about the standards and I've not been

able to find a clear standard. Certainly on evidentiary

rules, it's generally Rule 104 governs. It's not clear to me

whether that governs as well on the confrontation clause

generated by the Crawford line of cases.

And we talked about reliability as a standard. There's

obviously the standard of preponderance of the evidence, clear

and convincing evidence. There's also references by the

courts to whether something is an objective standard. I

conclude here under any of those standards that the 9-1-1 call

as redacted is not testimonial and let me explain why.

I've looked at the case of United States versus Cadieux,

500 F.3d 37; obviously Davis versus Washington, Supreme Court

2006; Michigan versus Bryant, Supreme Court 2011; and the

foundational case, Crawford against Washington 2004.

The 1st Circuit said in Cadieux in 2007, at Page 41, the

court in Davis, I'm quoting, specifically directs courts to

examine the nature of both what was asked and answered. And

when I look at that in this case at the transcript, I find

that the dispatch person was asking questions that were

directed to where the caller was located, who was in

possession of the weapon, but basically that was the focus of

the questions that law enforcement was asking through the

dispatcher.

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Now, it's true that the caller, Ms. Hutchins,

volunteered a lot of information, but it was not as part of an

interrogation. The police here were not questioning her about

a crime. She says on the 9-1-1 call that she's scared, and

sensibly so given the fact that there was a weapon that she

said was pointed at her by a person who possessed needles and

was otherwise behaving in strange ways.

I don't find that to be countered by her tone of voice.

People have different ways that their voice reacts to

situations of stress and here, of course, at the time she was

trying to disguise what it was she that she was doing in

talking to the dispatcher when her boyfriend, the defendant,

was in close proximity. I don't find that her fear and the

context in which she was talking to the dispatcher is

discounted by her earlier texts.

I've thought carefully about Mr. Andrews' arguments

about the passage of time from 10:59 when the first text went

to the client's house where the weapon came from until 11:21

when the caller first contacted 9-1-1, so there was about 20

to 22 minutes time lapse there, but I looked at that ina

number of contexts.

First of all, there is the issue of whether she could

talk out loud on a 9-1-1 call when the person about whom she

is concerned is present in the vehicle with her, unlike

texting, which can take place without it being overheard or

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43

seen.

We do know that the call refers -- when she first opened

the call she says, referring to the defendant, he's

distracted. He's doing so -- excuse me -- that he is doing

something for somebody so he's distracted and that is

apparently the time at which she makes the call and then she

goes on to say that she's going to have to disguise it by

talking about a credit card or bank call, which she does later

on.

And given the fact of her concern of the defendant's

behavior, 20 minutes is not a long time, particularly in the

context of what you can do by way of texts and what you can do

by way of voice, and she also has an ongoing situation with

the defendant because, in fact, they are together in her car

in the summer, so the reason for her concern is an ongoing

concern.

The laugh, the giggle does not change my conclusion on

that. As I say, it could be part of the disguise. It could

also be part of simply the ongoing interchange that she's

having.

So I look directly at the Cadieux statements. Well,

first of all, let me quote something else from -- again from

Davis where they say -- when they found it was not

testimonial, she simply was not acting as a witness. She was

not testifying. That's at Page 828 at 547 U.S., talking there

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about the dispatcher's questioning of that particular person.

And here, the Cadieux case says that Davis said the

court should look at several factors, including, one, was the

declarant speaking about current events as they were actually

happening, requiring police assistance rather than describing

past events, and I conclude the answer to that question is yes

as it relates to the possession of the weapon by this

defendant.

The question of the theft and when and how that occurred

might have been a past event, but that's not being excised

from the 9-1-1 call. And so the only thing remotely possible

as a past event is that the fact -- is the assertion that he

pointed the gun at her, so possession is ongoing. The

pointing at her may have been a past event in a technical

sense, but it was a very recent past event and part of the

ongoing circumstance with which the caller was confronted and

describing to the police in seeking assistance.

Two, would a reasonable listener conclude that the

declarant was facing an ongoing emergency to call for help.

Clearly yes.

Three, was the nature of what was asked and answered

during the course of the 9-1-1 call such that, viewed

objectively -- there's that word objectively -- the elicited

statements were necessary to be able to resolve the present

emergency rather than simply to learn what had happened in the

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45

past. Again, the answer is yes.

Four, what was the level of formality of the interview.

For example, was the caller frantic, in an environment that

was neither tranquil nor safe. I find the caller was scared.

Frantic may be a different matter. She was not in a safe

environment given that he was with her and allegedly had the

weapon. And so I conclude that the Cadieux articulation of

the Davis factors are satisfied and that this is

non-testimonial.

If it is non-testimonial, the 9-1-1 call can come in

regardless of whether the Government is able to call Ms.

Hutchins, the caller. I disagree with Mr. Andrews' argument

that the unavailability is still a requirement. I believe

that applies only when it is testimonial, not when the -- not

when it's non-testimonial.

And so the evidentiary rule question becomes whether

it's admissible under Rule 803 and I find that it is

admissible under 803(2). I find by the standard of Rule 104

that this is an excited utterance, namely a statement related

to a startling event or condition made while the declarant was

under the stress of excitement that it caused.

It also can come in under subsection 1, present sense

impression, because it was a statement describing or

explaining an event or condition made while or immediately

after the declarant perceived of it -- perceived it. And part

3]

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of it can come in under subsection three, namely the fear of

the statement of the declarant's then existing state of mind

or emotional, sensory or physical condition.

The hearsay within hearsay aspect that I was concerned

about and that I expressed to counsel when we met at the jury

empanelment, which is described in Rule 805, the Government

has taken care of that by the redactions that they propose to

make and so with those redactions, I'm no longer concerned

with hearsay within hearsay.

And what remains then is the Rule 403 issue. On the

pointing of the gun as it's described in the 9-1-1 call -- and

by the way, I think that question would be identical whether

she testifies in-person or whether it comes in through the

transcript, the 403 issue remains the same. And I conclude

here that although the defendant has an argument in terms of

the effect on the jury of hearing that he pointed the gun at

her when that's not charged -- the charge is simply possessing

the gun -- nevertheless, it's an important element of the

possession and provides a foundation for showing why she would

see that he had the gun in his possession, unlike simply being

in his pocket or hidden or something.

And so I find that it really is an intrinsic part of the

possession here, given the time that occurred and given the

fact that her credibility will be a very important matter in

trial, maybe the key element in the trial, in deciding

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47

whether, in fact, this defendant possessed the weapon, and so

I will allow it in after considering the 403 factors.

Similarly on the theft, I'm not sure the defendant is

pursuing that any longer what -- as was said at oral argument,

but certainly the Government has to prove that the gun was

stolen. It's part of Count 2, and so the information -- the

evidence is admissible, which will now, as I understand it,

come in from the owner of the gun and not from the 9-1-1 call

transcript.

And finally, I was also concerned under Rule 403 about

the so-called standoff. I wasn't sure what that even was

until it was articulated today by Mr. Conley, but as I

understand it, Mr. Conley does not plan to introduce evidence

of a standoff, but would rather introduce evidence that the

police saw the defendant run as soon as they -- as soon as he

saw them, and that the gun was ultimately recovered in the

bedroom where the apartment tenant had seen the defendant go

at an earlier point in the day's events.

So I think I've ruled on both motions. Have I missed

anything in terms of what -- any concerns from the Government?

MR. CONLEY: No, Your Honor.

THE COURT: Defense?

MR. ANDREWS: No, Your Honor.

THE COURT: And I'll just say to Mr. Estes, your

lawyer did a very fine job. The ruling was not in your favor,

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but he did all that could be done under the circumstance.

Anything else before the trial, counsel, that we need to

talk about?

MR. CONLEY: I don't think so, Your Honor. We will

talk -- there are a couple of stipulations that I had and we

will be finalizing the stipulations shortly.

THE COURT: All right. Thank you all very much.

The Court will stand in recess.

(End of proceeding)

CERTIFICATION

I, Dennis Ford, Official Court Reporter for the United States

District Court, District of Maine, certify that the foregoing

is a correct transcript from the record of proceedings in the

above-entitled matter.

Dated: April 3, 2020

/s/ Dennis Ford

Official Court Reporter

34

Case: 19-2111 Document: 00117612957 Page:1 Date Filed: 07/10/2020 _Entry ID: 6351659

No. 19-1572

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

UNITED STATES OF AMERICA,

Appellee,

Vv.

SCOTT ESTES,

Defendant/A ppellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

APPENDIX

ROBERT C. ANDREWS

Attorney for Scott Estes

Robert C. Andrews Esquire P.C.

117 Auburn Street

Portland, ME 04103

Tel. 207-879-9850

Fax 207-879-1883

E-mail rob.andrews.esq@gmail.com

> SCAN)

Vol hits

Case: 19-2111 Document: 00117612957 Page:2 Date Filed: 07/10/2020 _ Entry ID: 6351659

TABLE OF CONTENTS

DOCKET ENTRIES corsosnsssssoesesonensteneasenssscasqnenstenonontoveeatasenotensestsnsesstseonsssnensasnscosesnnes 1

TRANSCRIIPT OF 911 RECORDING .....c.ccccsssssessssesesesesesseessasssssssseseesesetsceeeseess 18

EXHIBIT. A ssvssssscssssnesonsvossssnerssnewasesaasussavievansiviessnasapaatitayaaasasaanataainetssantecoaniesanensanane 24

EXHIBIT B sss ssssvvssosvssssavenesousnssnsvsnansnxcussesucssosscosvebane vevessssavnesbanens veunees anesvesnonsnsaenss 26

EAHIBIT C wossonenensrssnsssnonsnsnpvennscowssonsnansaseucasesnzseasanemnnavessanavonopneonnvenases ceieaauscevenacsves 28

EXEIBED Di...cascoccapsoseevageerignscrsnentusnaneessnsesiavesensterniseaesensneseeenaenevennasevensepsvagneseqvessses 36

EXHIBID E ssssscnicessxsvasssivanesavacsecteecertecsorsnsosersssonsnssvansovnsnsnssseososerevavassanvensonsonvasaesvenes 40

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Case: 19-2111 Document: 00117612957 Page:3 Date Filed: 07/10/2020 —_ Entry ID: 6351659

APPEAL,CLOSED,COURTEXHIBITS,SEALEDDOC, VICTIM

U.S. District Court

District of Maine (Portland)

CRIMINAL DOCKET FOR CASE #: 2:18-cr-00068-DBH All Defendants

Case title: USA v. ESTES Date Filed: 05/11/2018

Date Terminated: 10/30/2019

Assigned to: JUDGE D. BROCK

HORNBY

Appeals court case number: 19-2111

First Circuit Court of Appeals

Defendant (1)

SCOTT ESTES represented by ROBERT C. ANDREWS

TERMINATED: 10/30/2019 LAW OFFICE OF ROBERT C,

ANDREWS

117 AUBURN STREET

SUITE 201

PORTLAND, ME 04103

207-879-9850

Fax: 879-1883

Email: rob.andrews.esq@gmail.com

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Designation; CJA Appointment

Pending Counts Disposition

Defendant sentenced to 36 months

imprisonment on counts | and 2 to be

FELON IN POSSESSION OF A served concurrently. 3 years supervised

FIREARM, 18:922(g)(1) AND 924(a) release on counts | and 2 to be served

qd) concurrently. $100 Special Assessment

in count | and $100 in count 2 for a

total of $200.

Defendant sentenced to 36 months

imprisonment on counts | and 2 to be

POSSESSION OF STOLEN served concurrently. 3 years supervised

FIREARMS, 18:922(j) AND 924(a)(2). release on counts | and 2 to be served

(2) concurrently. $100 Special Assessment

in count 1 and $100 in count 2 for a

total of $200.

1

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Case: 19-2111

Document: 00117612957 Page:4 Date Filed: 07/10/2020 _ Entry ID: 6351659

Highest Offense Level (Opening)

Felony

Terminated Counts

None

Disposition

Highest Offense Level (Terminated)

None

Complaints Disposition

None

Plaintiff

USA represented by MICHAEL CONLEY

U.S. ATTORNEY'S OFFICE

DISTRICT OF MAINE

100 MIDDLE STREET PLAZA

PORTLAND, ME 04101

207-780-3257

Email: michael.conley@usdoj.gov

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Designation: Assistant US Attorney

Date Filed # | Docket Text

05/11/2018 1 | INDICTMENT as to SCOTT ESTES (1) Counts 1 and 2. (jib) (Additional

attachment(s) added on 5/14/2018: # | Unredacted Document Available at the

Clerk's Office) (jib). (Entered: 05/14/2018)

05/11/2018 2 | SYNOPSIS as to SCOTT ESTES (jib) (Entered: 05/14/2018)

05/17/2018 6 | NOTICE OF HEARING as to SCOTT ESTES: Arraignment, Initial

Appearance, Attorney Appointment Hearing set for 5/23/2018 at 10:00 AM in

Portland Hearing Room before MAGISTRATE JUDGE JOHN H. RICH III.

(jib) (Entered: 05/17/2018)

05/22/2018 7 | MOTION for Detention by USA as to SCOTT ESTES Responses due by

6/12/2018. (CONLEY, MICHAEL) (Entered: 05/22/2018)

05/23/2018 8 | Minute Entry for proceedings held before MAGISTRATE JUDGE JOHN H.

RICH III: Initial Appearance held as to SCOTT ESTES. After court inquiry,

the record reflects the defendant was arrested on 5/21/2018. Attorney

Appointment Hearing held; ROBERT C. ANDREWS appointed. Arraignment

held on Counts | and 2, Plea entered: Not Guilty on counts | and 2; Plea

2

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Case: 19-2111 Document: 00117612957 Page:5 Date Filed: 07/10/2020 _—_ Entry ID: 6351659

Accepted. The defendant is ordered temporarily detained and remanded to the

custody of the US Marshals Service. (Court Reporter: Lori Dunbar) (nrg)

(Entered: 05/23/2018)

PROCEDURAL ORDER IN A CRIMINAL CASE as to SCOTT ESTES

Motions due by 6/6/2018. Ready for Trial on 7/9/2018. By MAGISTRATE

JUDGE JOHN H. RICH III. (nrg) (Entered: 05/23/2018)

05/23/2018 10 | ORDER OF TEMPORARY DETENTION as to SCOTT ESTES Detention

Hearing set for 5/29/2018 10:00 AM in Portland Hearing Room before

MAGISTRATE JUDGE JOHN H. RICH III. By MAGISTRATE JUDGE

JOHN H. RICH III. (nrg) (Entered: 05/23/2018)

05/23/2018 i | Financial Declaration by SCOTT ESTES (Access to document is restricted to

USA and applicable defendant only) (nrg) (Entered: 05/23/2018)

05/23/2018 12 | ORDER approving || Financial Declaration as to SCOTT ESTES (1) By

MAGISTRATE JUDGE JOHN H. RICH III. (nrg) (Entered: 05/23/2018)

05/23/2018 CJA 20 as to SCOTT ESTES: Appointment of Attorney ROBERT C.

ANDREWS;

05/23/2018

ho

NOTICE TO COUNSEL: CJA documents are now processed via eVoucher.

The link to eVoucher and procedural and policy information regarding CJA

appointments can be found on our website at

http://www.med.uscourts.gov/evoucher, Signed by MAGISTRATE JUDGE

JOHN H. RICH III on 5/23/2018. (nrg) (Entered: 05/23/2018)

05/29/2018 13 | Minute Entry for proceedings held before MAGISTRATE JUDGE JOHN H.

RICH III: Detention Hearing Waived as to SCOTT ESTES. The defendant is

ordered detained. (Court Reporter: Lori Dunbar) (nrg) (Entered: 05/29/2018)

05/29/2018 14 | MOTION for Writ of Habeas Corpus ad Prosequendum of SCOTT ESTES

(Access to document is restricted to case participants only) by USA as to

SCOTT ESTES. (nrg) (Entered: 05/29/2018)

05/29/2018 1S | AMENDED Writ of Habeas Corpus ad Issued on 5/29/18 for SCOTT ESTES

as to SCOTT ESTES to appear on 5/23/2018 by MAGISTRATE JUDGE

JOHN H. RICH III (Access to document is restricted to case participants only)

(nrg) (Entered: 05/29/2018)

05/29/2018 16 | ORDER OF DETENTION as to SCOTT ESTES By MAGISTRATE JUDGE

JOHN H. RICH III. (nrg) (Entered: 05/29/2018)

05/29/2018 17 | TRIAL LIST as to SCOTT ESTES Jury Selection set for 7/9/2018 09:00 AM

in Portland Courtroom | before JUDGE D. BROCK HORNBY. On Trial List

for 7/9/2018. Trial Brief due by 7/2/2018. (Irc) (Entered: 05/29/2018)

06/12/2018 18 | Unopposed MOTION to Extend Time to June 27, 2018 to file motions by

SCOTT ESTES Responses due by 7/3/2018. (ANDREWS, ROBERT)

(Entered: 06/12/2018)

06/13/2018 Set Deadlines as to SCOTT ESTES: Proposed Speedy Trial Exclusion Order

due by 6/15/2018. (jib) (Entered: 06/13/2018)

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06/13/2018 19 | Unopposed MOTION to Continue from the July trial list by SCOTT ESTES

Responses due by 7/5/2018. (ANDREWS, ROBERT) (Entered: 06/13/2018)

06/17/2018 20 |SPEEDY TRIAL ORDER granting 18 Motion to Extend Time to file pretrial

motions and 19 Motion to continue trial, Time excluded from 6/8/18 until

6/27/18 and from 7/9/18 until 8/6/18 as to SCOTT ESTES (1) By JUDGE D.

BROCK HORNBY. (jib). Modified on 6/27/2018 to add "19" (jib). (Entered:

06/19/2018)

06/19/2018 Reset Deadlines as to SCOTT ESTES: Motions due by 6/27/2018. Ready for

Trial on 8/6/2018. (jib) (Entered: 06/19/2018)

06/26/2018 21 | TRIAL LIST as to SCOTT ESTES : Jury Selection set for 8/6/2018 at 9:00

AM in Portland Courtroom 1 before JUDGE D. BROCK HORNBY. On Trial

List for 8/6/2018. Trial Briefs due by 7/30/2018. (mnw) (Entered: 06/26/2018)

07/17/2018 22 | Unopposed MOTION to Continue fo September Trial List by SCOTT ESTES

Responses due by 8/7/2018. (ANDREWS, ROBERT) (Entered: 07/17/2018)

07/17/2018 Set Deadlines as to SCOTT ESTES: Proposed Speedy Trial Exclusion Order

due by 7/19/2018. (jib) (Entered: 07/17/2018)

SPEEDY TRIAL ORDER granting 22 Motion to Continue, Time excluded

from 8/6/18 until 9/4/18 as to SCOTT ESTES (1) By JUDGE D, BROCK

HORNBY. (jib) (Entered: 07/20/2018)

07/20/2018 Reset Deadlines as to SCOTT ESTES: Ready for Trial on 9/4/2018. (jib)

(Entered: 07/20/2018)

TRIAL LIST as to SCOTT ESTES Jury Selection set for 9/4/2018 09:00 AM

in Portland Courtroom 1 before JUDGE D. BROCK HORNBY. On Trial List

for 9/4/2018. Trial Brief due by 8/28/2018. (Irc) (Entered: 07/23/2018)

07/25/2018 25 | Pretrial Services Report as to SCOTT ESTES filed by U.S. Probation. (Access

to document is restricted to USA and applicable defendant only) (METCALFE,

JENNIFER) (Entered: 07/25/2018)

08/08/2018 26 | Unopposed MOTION to Reopen Detention Hearing by SCOTT ESTES

Responses due by 8/29/2018. (ANDREWS, ROBERT) (Entered: 08/08/2018)

08/10/2018 27 | ORDER granting without objection 26 Motion to Reopen Detention Hearing as

to SCOTT ESTES (1). By MAGISTRATE JUDGE JOHN H. RICH III. (RICH

II, JOHN) (Entered: 08/10/2018)

08/14/2018 28 | NOTICE OF HEARING ON MOTION as to SCOTT ESTES Re-open

Detention Hearing set for 8/21/2018 11:00 AM in Portland Hearing Room,

before MAGISTRATE JUDGE JOHN H. RICH III. (nrg) (Entered:

08/14/2018)

08/21/2018 29 | Minute Entry for proceedings held before MAGISTRATE JUDGE JOHN H.

RICH III: Conference of Counsel held as to SCOTT ESTES. Reopened

Detention Hearing held. The defendant was ordered detained and remanded to

the custody of the US Marshals Service. (Court Reporter: Tammy Martell)

(slg) (Entered: 08/21/2018)

07/20/2018

IS

07/23/2018

:

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