Joint Appendix — Edgardo Esteras, Petitioner v. United States
Supreme Court briefDec 10, 2024
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No. 23-7483
In the
Supreme Court of the United States
EDGARDO ESTERAS,
TIMOTHY MICHAEL JAIMEZ FKA TIMOTHY M.
WATTERS, AND TORIANO A. LEAKS, JR.,
Petitioners,
v.
UNITED STATES,
Respondent.
On Writ of Certiorari to the United States
Court of A ppeals for the Sixth Circuit
JOINT APPENDIX
Christian J. Grostic
Counsel of Record
A ssistant Federal
Public Defender
Northern District of Ohio
1660 W. 2nd Street, Suite 750
Cleveland, OH 44113
(216) 522-4856
christian_grostic@fd.org
Counsel for Petitioners
Elizabeth B. Prelogar
Counsel of Record
Solicitor General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202) 514-2217
supremectbriefs@usdoj.gov
Counsel for Respondent
PETITION FOR CERTIORARI FILED MAY 15, 2024
CERTIORARI GRANTED OCTOBER 21, 2024
130631
A
(800) 274-3321 • (800) 359-6859
i
TABLE OF APPENDICES
Page
UNITED STATES V. ESTERAS
A PPEN DI X A — T R A NS CR I P T OF
PROCEEDINGS IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OHIO, EASTERN DIVISION,
FILED JUNE 22, 2023 . . . . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B — ORDER OF THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO, EASTERN
DIVISION, FILED MAY 9, 2023 . . . . . . . . . . . . . 110a
A PPEN DI X C — OR DER OF T H E
UNITED STATES COURT OF APPEALS
FOR T H E SI X T H CI RCU I T, FI LED
AUGUST 16, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . 117a
APPENDIX D — AMENDED ORDER OF THE
UNITED STATES COURT OF APPEALS
FOR T H E SI X T H CI RCU I T, FI LED
DECEMBER 20, 2023 . . . . . . . . . . . . . . . . . . . . . . 121a
A PPEN DI X E — OR DER OF T H E
UNITED STATES COURT OF APPEALS
FOR T H E SI X T H CI RCU I T, FI LED
DECEMBER 20, 2023 . . . . . . . . . . . . . . . . . . . . . . 136a
A PPEN DI X F — OR DER OF T H E
UNITED STATES COURT OF APPEALS
FOR T H E SI X T H CI RCU I T, FI LED
MARCH 7, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150a
ii
Table of Appendices
Page
UNITED STATES V. JAIMEZ
A PPENDIX G — TRANSCRIPT OF THE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF
OHIO, W ESTERN DI V ISION, FILED
FEBRUARY 17, 2023 . . . . . . . . . . . . . . . . . . . . . . . 155a
A PPEN DI X H — OR DER OF T H E
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF
OHIO, W ESTERN DI V ISION, FILED
FEBRUARY 24, 2023 . . . . . . . . . . . . . . . . . . . . . . . 227a
A P P E N DI X I — O P I N I O N O F T H E
UNITED STATES COURT OF APPEALS
FOR T H E SI X T H CI RCU I T, FI LED
MARCH 12, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . 229a
UNITED STATES V. LEAKS
APPENDIX J — TRANSCRIPT OF THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO, EASTERN
DIVISION, FILED JUNE 29, 2023 . . . . . . . . . . . 237a
APPENDIX K — ORDER OF THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO, EASTERN
DIVISION, FILED JUNE 29, 2023 . . . . . . . . . . . 247a
iii
Table of Appendices
Page
A PPEN DI X L — OR DER OF T H E
UNITED STATES COURT OF APPEALS
FOR T H E SI X T H CI RCU I T, FI LED
MARCH 6, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249a
1a
Appendix A OF PROCEEDINGS
APPENDIX A — TRANSCRIPT
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO,
EASTERN DIVISION, FILED JUNE 22, 2023
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Case No. 4:14-cr-425
Youngstown, Ohio
Tuesday, April 18, 2023
3:11 p.m.
UNITED STATES OF AMERICA,
Plaintiff,
vs.
EDGARDO ESTERAS,
Defendant.
TRANSCRIPT OF PROCEEDINGS BEFORE
THE HONORABLE BENITA Y. PEARSON1
UNITED STATES DISTRICT JUDGE
SUPERVISED RELEASE VIOLATION HEARING
AND SENTENCING
2a
Appendix A
[3]PROCEEDINGS
THE CLERK: The matter before the Court is Case
Number 4:14-cr-425, the United States of America versus
Defendant Number 10, Edgardo Esteras.
THE COURT: Good afternoon, everyone. Thank you
all for standing. Please feel free to retake your seats.
Counsel for the United States, will you please
introduce yourself for the record?
MR. JOYCE: Good afternoon, Your Honor. Chris
Joyce appearing on behalf of the United States.
THE COURT: Good afternoon, Mr. Joyce.
Counsel for the defendant, will you kindly introduce
both yourself and your client for the record?
MR. GROSTIC: Good afternoon, Your Honor.
Christian Grostic on behalf of Mr. Esteras, who is seated
next to me at defense table.
THE COURT: Good afternoon to you both.
And I’d like to welcome you as well, Mr. Zakrajsek,
as the representative from the Office of Pretrial
Services and Probation. Thank you for your assistance
in supervising Mr. Esteras, and also -- “Esteras,” pardon
the mispronunciation -- your willingness to assist Court
and counsel throughout today’s hearing.
3a
Appendix A
OFFICER ZAKRAJSEK: Thank you, Your Honor.
[4]THE COURT: This hearing has been scheduled
to allow me to take up the alleged violations of your term
of supervised release, Mr. Esteras. The reports I have
reviewed in preparation for today’s hearing are several.
And I’d like to check with you, Counsel, to make sure that
you have the same reports that I have. And I will start
from that earlier -- earliest issued this year.
I issued a warrant for Mr. Esteras’s arrest pursuant
to a January 23rd, 2023 report.
Do you have it, Mr. Joyce?
MR. JOYCE: I do, Your Honor.
THE COURT: Have you had enough time to review it?
MR. JOYCE: Yes, I have. Thank you.
THE COURT: Do you also have it, Defense Counsel?
MR. GROSTIC: Yes, Your Honor.
THE COURT: Thank you.
After the arrest of Mr. Esteras, he was before
Magistrate Judge Knapp for a detention hearing. She
ordered that he be detained. Mr. Esteras has asked that I
review that detention ruling. I did review it, and I ordered
that he persist in detention until today’s hearing.
4a
Appendix A
Additionally, I have been informed by Mr. Zakrajsek
that one of the allegations of violation of Mr. Esteras’s
term of supervised release has been resolved, I’ll use that
term, in state court. And to help with this [5]reason for
today’s hearing, Mr. Joyce, I am drawing your attention
to the January 30th report, issued this year, 2023.
Do you have it?
MR. JOYCE: I do, Your Honor.
THE COURT: And you can see there are two alleged
violations, correct, new law violation and possession of a
firearm?
MR. JOYCE: Yes, I can see that.
THE COURT: Mr. Grostic, do you also have that one?
MR. GROSTIC: Yes, Your Honor.
THE COURT: Great. Thank you.
So then walking us full forward -- to my knowledge, if
there is something more, Mr. Zakrajsek will tell us -- to the
supplemental information report dated the 14th of March.
This report is the one I referred to when I am informed
that the domestic violence charge, criminal damaging and
aggravated menacing were dismissed by the Youngstown
Municipal Court, and Mr. Zakrajsek’s report indicates “at
the request of the victim.”
5a
Appendix A
Do you have it, Mr. Joyce?
MR. JOYCE: Yes, I do, Your Honor.
THE COURT: And you as well, Mr. Grostic?
[6]MR. GROSTIC: Yes, Your Honor.
THE COURT: So we’re here because there have been
two allegations of the violation of Mr. Esteras’s term
of supervised release. If you are looking for the most
comprehensive report, I suggest it be the January 30th,
2023 report that not only speaks to both the allegations
of violation, it also speaks to the sentencing options.
It does have one piece of good news in it, and that
is that despite the suspension of the GED requirement,
Mr. Esteras, you earned your GED. I am proud of you
for doing that.
And, of course, the guidelines provisions are outlined
as part of the sentencing options.
With that, I understand that counsel would like to
speak to me. You have my attention.
MR. JOYCE: Thank you, Your Honor. And may I ask,
just to inquire for the sake of clarity, is the matter that
you are referring to what we approached your staff about,
an issue that has arisen prior to the hearing we wanted
to make the Court aware of? Is that what the Court is
referring to?
6a
Appendix A
THE COURT: That is the only message I have
received. If there is something more, you will probably
have to tell me about that as well.
MR. JOYCE: Understood. Your Honor, shortly before
we entered the courtroom here this afternoon, both [7]
Mr. Grostic, counsel for the defendant, and myself were
surprised to see that the alleged victim in the Youngstown
Police Department report of January 23rd, 2023, that
became the subject of the violation report that the Court
has referenced, she is present here today. And both Mr.
Grostic and I have had an opportunity to speak with her.
It is my understanding that she wishes to make a
statement to the Court. And I anticipate, based on what
she told me, and in my conference with Mr. Grostic, what
she told him, that this is going to be different than the
statement she gave to the police.
And so it was my concern, as it was Mr. Grostic’s
concern, that if she did that, she might implicate herself in
some way. And so we wondered if it would be appropriate
for her to have counsel appointed to represent her to
discuss with her the possible consequences of that action.
THE COURT: Thank you, Mr. Joyce. I have
understood you.
Is that the same topic you approached my staff about,
Mr. Grostic?
MR. GROSTIC: Yes, Your Honor.
7a
Appendix A
THE COURT: All right. Just to be clear,
Mr. Joyce, I understood you to say that the victim,
initials MI, correct?
MR. JOYCE: Correct, Your Honor.
[8]THE COURT: Would like to make a statement.
Does that mean that you nor your colleague on the other
side intend to call her as a witness so that she can testify
under oath?
MR. JOYCE: Thank you. Your Honor, I did not intend
to call her, because much of her statement is captured
on the body cam that I was going to present to the
Court today as evidenced through the officer from the
Youngstown Police Department.
It was my understanding, based on the attachment to
the motion filed by counsel for the defendant, to reinstate
a bond -- or pardon me, to revoke the detention order.
Looking at that docket entry he attached, I saw that she
had come to the municipal court, and at her request, asked
these charges be dismissed. And so because of that, it was
my -- I was not intending to call her, because I believed I
could establish the violations through the body cam. So I
was not intending to call her.
And now having spoken with her, I would tell the
Court that I don’t intend to call her because I don’t know
that I could put her on the stand unsure that she is going
to say something that is true or untrue. And so if I can’t
8a
Appendix A
vouch for her credibility, as an officer of the court, I
wouldn’t put her up. That’s my position.
THE COURT: Thank you.
[9]MR. JOYCE: Thank you.
THE COURT: I agree. Suborning perjury is to be
avoided, right?
MR. JOYCE: Absolutely.
THE COURT: Mr. Grostic, do you have a different
idea of employing the victim? Did you intend to call her?
MR. GROSTIC: Your Honor, after speaking with her
today, I did then intend to call her. I did not until I had
spoken with her today.
THE COURT: So you intend to call her still?
MR. GROSTIC: I do.
THE COURT: Then I don’t know what the issue is.
We all know this is a Rule -- it is a preliminary hearing.
It falls under Rule of Evidence 104(a). Rules of Evidence
are suspended.
Unless she testifies as a witness called by one side or
the other, there will be no statements made to the Court.
She is not the victim of this case. The United States is
the victim of the allegations that allege Mr. Esteras has
violated his term of supervision.
9a
Appendix A
The victim would be the victim of the conspiracy to
distribute heroin, and it’s everyone within the Northern
District of Ohio or abroad. She’s a victim of the case that’s
been dismissed, so she has no standing. I am not obligated
by rules that govern allocution to hear from her. [10]And
I won’t. I don’t. I hear from counsel. I hear from victims.
I hear from the defendant.
So she won’t speak to me unless one of you calls her
as a witness, she is placed under oath, and she will testify
under penalties of perjury.
So, Mr. Grostic, I leave it to you to assess, if you believe
she’s going to perjure herself, she will be committing a
crime in this very court. And what we do about that will
remain to be seen.
I can tell you that I would err on the side of doing
what you think is best for your client, but I won’t pause
and hire counsel for her, because she has no standing in
this room other than some member of the public that the
defense team might believe suitable to impart evidence.
You might do just as well by making a proffer if you have
any concerns.
I will leave that to you, along with your client, to
decide. Fair enough?
MR. GROSTIC: Understood, Your Honor.
THE COURT: And you’ll have some time, because
the government will go first.
10a
Appendix A
With that, I have pointed to you -- pointed out to you
my belief that the January 30th, 2023 report is the most
comprehensive in terms of consequences, if I find that
Mr. Esteras has violated his term of supervised release
by [11]either committing a new law violation or possession
of a weapon.
I would like to add one more thing to the record, and
then ask the defense team how you’d like to proceed.
The one other thing I’d like to add to the record, it
is really an amplification of something written by Mr.
Zakrajsek at the bottom of page 3 of the January 30th, 2023
report. He appropriately references -- it’s the paragraph,
everyone, that starts “Pursuant to 18 U.S.C. 3583(g),” and
he’s correct that “revocation of supervision and a sentence
of imprisonment is mandatory for a defendant found to be
in possession of a controlled substance,” and then he goes
on, “possession of a firearm.”
And the only amplification I would like to make, that is
a correct summary of 3583(g), but when you read verbatim
the language, it becomes even more palpable what the
law requires of the Court under circumstances where a
defendant possesses a firearm.
It reads as follows: 3583(g), I am reading from (g)
(1), “If the defendant possesses a firearm,” and it goes
on to say, “as such term is defined in Section 921 of this
title, in violation of Federal law, or otherwise violates a
condition of supervised release prohibiting the defendant
from possessing a firearm.”
11a
Appendix A
I point that out needlessly, because I am sure I [12]
have astute counsel before me. I needn’t find that Mr.
Esteras has committed the new law violation to find that
he possessed a firearm.
I have consulted the judgment and commitment order
issued on the 11th of September, 2018. The tenth standard
condition states, “You must not own, possess, or have
access to a firearm, ammunition, destructive device, or
dangerous weapon (i.e., anything that was designed or
was modified for the specific purpose of causing bodily
injury or death to another person, such as numbchucks
or tasers).”
I make that finding by a preponderance of the
evidence. I employ 3583(g).
So, Mr. Joyce, keep in mind, I will accept what
presentation of evidence is necessary, but what I do, and
both -- as we know from the work sheet Mr. Zakrajsek
generously provided, starting at page 1 of the attachment
to the January 30th report -- both possession of a firearm
and new law violation are Grade C offenses. Neither is
more significant in the eyes of the Court to the other.
The last point along those lines that I would like to
make is -- one perhaps I’ll hold for later. Let me pause
there and ask, do you have any questions about the
amplification of page 3 of the January 30th, 2023 report,
Mr. Joyce?
MR. JOYCE: No, Your Honor. Thank you.
12a
Appendix A
[13]THE COURT: Mr. Grostic?
MR. GROSTIC: No, Your Honor.
THE COURT: Mr. Grostic and Mr. Esteras, the
discussion we should have now is how you’d like to proceed.
As you know, Mr. Esteras has available to him full due
process as outlined in Rule of Criminal Procedure 32.1.
That allows for many things, including the full presentation
of evidence. Meaning that the government would present
what evidence it would choose to persuade the Court that
Mr. Esteras has indeed violated his term of supervised
release. That often includes, although it need not always,
the testimony of his supervising officer, any proffer, video
cam evidence as Mr. Joyce has admitted. Mr. Esteras has
the right to cross-examine, confront that evidence. And
to present his own evidence, including his own testimony,
should he choose to do that.
Sometimes, not in every case, but occasionally the
defendant waives full Rule of Criminal Procedure 32.1 due
process and admits one or both of the violations. I simply
want to know how your client would like to proceed today.
MR. GROSTIC: Your Honor, Mr. Esteras would ask
for a hearing on both violations.
THE COURT: Denying both violations, sir?
MR. GROSTIC: That’s correct.
13a
Appendix A
THE COURT: With that, let me just further [14]
outline, I will hear evidence; and then I will allow
allocution/argument, which will sort of be your summary
of the evidence and allocution at one time; and then I’ll, of
course, hear allocution from Mr. Esteras; and I’ll make
my rulings and impose consequences.
Mr. Joyce, are you prepared to begin?
MR. JOYCE: I am prepared, yes. Thank you, Your
Honor.
THE COURT: Thank you. How would you like to
begin?
MR. JOYCE: Thank you. Your Honor, the government
would call Robert DiMaiolo from the Youngstown Police
Department as its first witness.
THE COURT: Thank you. Will you retrieve your
witness?
MR. JOYCE: Certainly.
THE COURT: Thank you, sir. Please approach to be
sworn.
THE CLERK: Please raise your right hand.
ROBERT DiMAIOLO, of lawful age, a witness called
by the United States, being first duly sworn, was examined
and testified as follows:
14a
Appendix A
THE COURT: Now, if you’d kindly walk around and
take the seat next to mine. Thank you, sir. Make yourself
comfortable there. The microphone is adjustable.
[15]THE WITNESS: Okay.
THE COURT: When you’re ready, you may examine
the witness.
MR. JOYCE: Thank you, Your Honor. And forgive me
for not making this motion prior to actually calling the
witness, but I would move for a separation of witnesses.
THE COURT: Thank you. And what are you asking
in that vein? I don’t see anyone else in the room who might
be a witness other than an officer of the court.
MR. JOYCE: Yes. Nobody else is in the room at
present. I understand there are -- based on what we heard
from defense counsel, there are witnesses in the hall
outside who may at some point wander into the courtroom
and overhear testimony. I thought it appropriate if they
remain separated while Officer DiMaiolo testifies.
THE COURT: Certainly. No one will be admitted in
the room.
Are you concerned also about witnesses who are
outside of the room conversing with one another?
MR. JOYCE: No. I am less concerned about that,
Your Honor.
15a
Appendix A
THE COURT: Okay. You just don’t want anyone
to walk in while your witness is under direct or crossexamination?
MR. JOYCE: Yes, exactly right.
[16]THE COURT: Thank you. Will you assist?
No objection, is there, Mr. Grostic?
MR. GROSTIC: No, Your Honor.
(Pause.)
THE COURT: Thank you, sir.
You may begin when you’re ready.
MR. JOYCE: Thank you, Your Honor.
DIRECT EXAMINATION OF ROBERT DiMAIOLO
BY MR. JOYCE:
Q. Officer, would you please state your name, spell
your last name for the record?
A. Robert C. DiMaiolo, D-i-M-a-i-o-l-o.
Q. Where are you employed, sir?
A. The City of Youngstown Police Department.
16a
Appendix A
Q. And for how long have you worked there?
A. Twenty-five years.
Q. All right. Is that the only position or job you’ve
held with the department, or have you worked in law
enforcement in a different capacity?
A. I have worked in prior smaller departments.
Q. Where did you work prior to the Youngstown Police
Department?
A. Lake Milton Police Department and Mahoning
County Sheriff’s Department.
Q. For how long did you hold those positions?
[17]A. Three years.
Q. But for the last 25 years, on a continuous basis,
you have worked for the Youngstown Police Department?
A. Yes, sir.
Q. All right. And what positions have you held in the
Youngstown Police Department?
A. I am a patrolman and a work for the bomb squad.
Q. Okay. Do you currently work for the bomb squad?
17a
Appendix A
A. Yes.
Q. All right. For how long have you worked in that
detail?
A. Twenty years.
Q. All right. What types of training and education
have you had to undergo in order to hold your position
with the Youngstown Police Department?
A. I went through OPOTA, Ohio Police Officer
Training Academy.
Q. All right. And you attended that course prior to
working -A. Yes.
Q. -- as a police officer?
Are you a registered peace officer in the state of Ohio?
A. Yes.
Q. All right. What position do you currently hold? I
[18]believe you said patrolman; is that right?
A. Yes.
Q. What are your everyday duties and responsibilities
as a patrolman?
18a
Appendix A
A. Answering calls, traffic.
Q. When you say “answering calls,” could you
elaborate a little bit?
A. Any call for service, emergencies.
Q. Citizen complaints, things like that?
A. Yes.
Q. All right. And when you say “traffic,” is it fair to
presume you mean traffic enforcement?
A. Yes.
Q. All right. What shift are you currently working?
A. Midnights, 10 p.m. to 6 a.m.
Q. For how long have you been working that shift?
A. Twenty-five years.
Q. You have worked nights the entire time you worked
at the Youngstown Police Department?
A. Yes.
Q. All right. Did you work last night?
19a
Appendix A
A. Yes.
Q. All right. When did your shift end?
A. 6 a.m. this morning.
Q. All right. And did you have any work related to
your [19]role as a police officer after your shift ended at,
you said 8 a.m. this morning?
A. Yes. I’m an SRO for City Schools.
Q. All right. Could you define SRO, please?
A. School resource officer.
Q. All right. So you work at a school as well?
A. Yes.
Q. And you did that today?
A. Yes.
Q. When did your shift from that position end?
A. 10:45.
Q. A.m.?
A. Yes.
20a
Appendix A
Q. All right. I want to direct your attention to January
the 23rd of 2023.
Do you recall if you were working that evening?
A. Yes.
Q. All right. And based on what you’ve already said,
I presume that was night shift?
A. Yes, sir.
Q. All right. Did you respond to a call at 1137
Inverness?
A. Yes, sir.
Q. All right. And do you recall the nature of what you
learned from your dispatch?
[20]A. It was a call for gunfire.
Q. All right. Were there any other details provided
to you?
A. No.
Q. All right. And are you familiar with that address?
A. No.
Q. How about the area of town where that --
21a
Appendix A
A. Yes.
Q. -- home is situated? Okay.
A. I’ve been on that same beat for 23 years.
Q. And this falls within your beat?
A. Yes.
Q. Okay. All right. So when you received that call for
service, what was your first reaction?
A. I arrived on scene and saw an auto -- it was snowing
out, and I saw an auto sitting in front of the residence with
no snow on it, as it was just like abandoned right in front
of the residence, facing the wrong direction of traffic.
Q. Okay. Was anybody in the -A. No.
Q. When you say “auto,” you mean a vehicle, an
automobile?
A. Yes.
Q. All right. Nobody was in it?
A. Nobody was in it.
[21]Q. And how heavily was it snowing?
22a
Appendix A
A. It was just a squall. It wasn’t much, just flurries.
Q. A ll right. Was the snow collecting, to your
recollection?
A. Yes.
Q. Enough so that it was notable that the vehicle had
no snow on it?
A. Yes.
Q. All right. And do you -- can you approximate the
time that you arrived?
A. No.
Q. Okay. Sometime within your -A. Yes.
Q. -- shift?
Do you recall if it was at the beginning or -A. It was at the beginning.
Q. Okay. All right. When you arrived at the residence,
you said you observed a vehicle in the street facing the
wrong way. What else did you observe?
A. I observed a white auto backed into the driveway
with at least three gunshot holes in the outside of it.
23a
Appendix A
Q. Okay. And based on your experience as a police
officer for at least 25 years, you’ve become familiar with
what a gunshot -- a hole?
A. Yes. A bullet hole, yes.
[22]Q. Now, after your arrival, at any point did you
speak with anybody on scene?
A. Yes, a female victim came out.
Q. All right. And how did she identify herself?
A. She -Q. Strike that. Let me rephrase that question, please.
Did she identify herself as a person who lived at that
residence?
A. Yes.
Q. All right. And did she also identify herself as
the person who had reached out for law enforcement
assistance?
A. Yes.
Q. All right. Where is it that you spoke with her?
A. Outside in the front yard of the residence.
Q. Okay. Did you call her out of the home or was she
outside when you arrived?
24a
Appendix A
A. She walked out when I arrived.
Q. All right. And where did this interaction take place?
A. Right in front of her residence, right near the car
that was left.
Q. Okay. In speaking with her, what did you learn?
A. She stated that the father of her two children came
to the residence while she was inside. She was sitting at the
kitchen table, and he came in, he punched her in the head,
screamed at her a little bit, punched the TV, which he [23]
broke, and walked outside. And at that point she followed
him outside and saw her car, which was the one that was
abandoned in the roadway, and he was getting into it, and
she grabbed the keys from him, and she started to walk
back and he pulled out a handgun, and she retreated back
into the house and then he fired three rounds into her auto.
Q. All right. Can you describe her demeanor when you
first spoke with her?
A. She was scared, as well as her kids.
Q. You eventually spoke to her children as well?
A. Yes.
Q. All right. Did that come later?
A. Yes.
25a
Appendix A
Q. All right. So focusing on your first interaction with
her, it was just the two of you on the outside of the house;
is that right?
A. Yes.
Q. All right. You said she was scared?
A. Yes.
Q. How do you describe somebody who is scared?
What about her made you feel that that was how she felt?
A. The fact that she called on her child’s father, and
then she was -- she was -- she was pretty afraid that he
was going to come back and do it again.
Q. All right. Did you observe anything like tears or
[24]anything like that?
A. No, she wasn’t crying, no.
Q. Now, after you spoke with her in front of the
residence, did she show you the damage to her vehicle?
A. Yes. She showed me the damage, and we walked
inside. Since it was cold out, we went inside and did the
report, and other officers arrived.
Q. All right. But you were the first one on scene?
26a
Appendix A
A. Yes.
Q. All right. Now, we’ll talk about what happened
inside as well. But at some point, did the person you
identified, did she show you where she believed her -- the
father of her children was standing at the time he fired
this weapon?
A. Yes.
Q. And can you describe for the Court where that was?
A. It was right outside the vehicle that was left
abandoned. And she stated that it was right near the door,
right near the door of the auto, the driver’s side.
Q. You said that car was in the roadway parked the
wrong way, right?
A. Yes.
Q. Was it in front of the driveway?
A. Yes, blocking the driveway.
Q. Blocking the driveway. All right.
Did you have an opportunity to look around in the
area [25]where it had been explained to you the person
was standing when they fired this weapon, did you look
around on the ground at all?
27a
Appendix A
A. Yes. I looked around, and I found a casing.
Q. All right. When you say -A. A spent casing.
Q. Explain to the Court what a “spent casing” is,
please.
A. It’s a casing that was ejected from the handgun
after it was fired.
Q. All right. So certainly suggestive that a firearm
had been discharged there?
A. Yes. And due to the snowfall, it was fresh right on
top of the snow.
Q. So by that you mean it was not covered in falling
snow?
A. No.
Q. No, you don’t mean that?
A. It wasn’t covered in falling snow.
Q. Thank you for clarifying.
All right. And in this interaction with the female you
have described, did she identify by name the father of her
children that had perpetrated these acts?
28a
Appendix A
A. Yes.
Q. What was the name she had given?
A. I cannot pronounce his last name.
Q. All right. Can you make an attempt at it or spell it,
[26]an attempt at spelling it?
A. No.
Q. Okay. Is your recollection as to his name -- is there
something that I could present you with that would refresh
your recollection as to his name?
A. My report.
MR. JOYCE: All right. Your Honor, may I approach
the witness and present him his report?
THE COURT: You may, but just show Mr. Grostic
what it is you’ll show the witness.
MR. JOYCE: Certainly, Your Honor.
THE COURT: Thank you.
BY MR. JOYCE:
Q. (Handing.)
29a
Appendix A
Take a moment and look through that. And once you’ve
had a moment, let me know when you are ready for me
to proceed.
A. I’m ready.
Q. All right. Having looked at the document that I
have handed you, what was the name that the -A. Edgardo Esteras.
Q. Edgardo Esteras. All right. Thank you.
Now, what I have handed you, since you are already
holding it, has it been marked already?
A. Yes.
[27]Q. As Government’s Exhibit 1?
A. Yes.
Q. All right. And you recognize that document?
A. Yes.
Q. All right. And what is it that I have handed you?
A. This is my PD2, my report, incident report.
Q. From the events that took place --
30a
Appendix A
A. Yes.
Q. -- on the night you’re talking about?
All right. It appears to be a true and accurate copy of
the report as you remember drafting it?
A. Yes.
Q. All right. Now, you said that -THE COURT: Mr. Joyce, sorry for the interruption.
Do you have a copy for me?
THE WITNESS: She can -- I am fine with this now.
THE COURT: I don’t want to take it from you. I do
have the attachment to Mr. Esteras’s motion to revoke
detention order. Is it -OFFICER ZAKRAJSEK: Your Honor, if I may. I have
a copy I can provide the Court if you would like.
THE COURT: Would you like me to have that?
MR. JOYCE: Yes. It is the very same report.
THE COURT: Would you retrieve it from Officer
Zakrajsek, make sure it is what you would like me to
have, [28]and show it to Mr. Grostic? And that way Officer
DiMaiolo will be able to keep his own.
31a
Appendix A
MR. JOYCE: Your Honor, I would mention to the
Court that this version of the report is just the first I think
six pages of what I believe is an eight-page document. And
the attachment that you referenced, Your Honor, to the
defense counsel’s motion I believe is the full eight-page
document. That’s the very same as what I presented with
the witness. And I apologize for not having an extra copy.
THE COURT: I don’t mind using what’s docketed as
ECF 426-1. It is an eight-page document.
Thank you, Officer. I will let you keep yours.
No objection to using what’s already on the docket,
right, Mr. Grostic?
MR. GROSTIC: No, Your Honor.
THE COURT: All right. Thank you.
MR. JOYCE: May I return it to him?
THE COURT: Please do.
Thank you, Officer. I appreciate it, but I will use this.
THE WITNESS: You’re welcome, ma’am.
MR. JOYCE: May I inquire, Your Honor?
THE COURT: Please do.
32a
Appendix A
MR. JOYCE: Thank you.
BY MR. JOYCE:
[29]Q. All right. Officer DiMaiolo -A. Yes.
Q. -- you said previously that at some point you entered
the home of the female. When you entered the home, how
many people would you estimate were present?
A. There were approximately eight to ten people inside
the residence.
Q. All right. And where in the home were they located
based on -A. Inside the living room, right inside the residence.
Q. All right. And did you have a chance to interview
each and every one of them?
A. I interviewed two of them.
Q. Okay. And generally, based on your discussion
with the complainant, as well as the two people you just
interviewed, who were these people? Did you gain a
general sense?
A. I know it was the victim, her two daughters, which
are Mr. Esteras’s daughters, one of his cousins, a female,
33a
Appendix A
and there were random -- there was one male and a couple
other females there that I have no idea who they were.
Q. Okay. But family and friends of the alleged victim?
A. Yes.
Q. All right. When you went into the home, what, if
anything, did you observe?
A. I observed, it would be the television to the east
side [30]of the living room was destroyed.
Q. Okay. How would you characterize the destruction
to it?
A. As it was punched or something. The whole glass
was all broken on the front of it.
Q. Was the TV on?
A. Yes.
Q. All right. And while you were speaking with the
alleged victim or the complainant, that’s where you made
your -- filled out your full report?
A. Yes.
Q. Okay. All right. Did she describe to you any injuries
that she had sustained?
34a
Appendix A
A. No.
Q. All right. Did she -- did you offer her medical
assistance should she need it?
A. Yes.
Q. All right. And she denied that?
A. Yes.
Q. All right. But she did maintain that she was struck
by the defendant?
A. Yes. And she filled out a PD6, which is a domestic
violence form.
Q. All right. Is that a form that you had provided to
her?
[31]A. Yes.
Q. All right. And did you collect that form from her?
A. Yes.
Q. And did you leave a copy with her?
A. Yes.
Q. All right. You said that you had spoken to the
children, two children that were present in the home.
What did you learn from them?
35a
Appendix A
A. I basically heard most of them saying the same
story that happened, and that this isn’t the first time that
he’s assaulted her or done damage to the residence.
Q. Okay. Did you ask her at any point if there was any
reason she could identify that this might have happened?
A. Yes, I did ask her if it was over a man maybe being
in the house or something, and she just laughed and said,
“No, he just does this regularly.”
Q. All right. So really she couldn’t offer an explanation
as to why he entered the home to do this?
A. No.
Q. All right. And was that sentiment echoed by any of
the other people you interviewed on scene?
A. No.
Q. No, they said something different than she had
said?
A. Nobody said anything different, they all said the
same.
Q. They said the same thing?
[32]A. Yes.
Q. All right. Thank you for clarifying what was
probably a confusing question.
36a
Appendix A
All right. I am going to back up a little bit. You talked
about the vehicle, that it was reported to you that Mr.
Esteras had arrived in a vehicle that remained on scene.
Did you inquire about where he had gone if the vehicle he
came in was still there?
A. Yes. I asked how he left, and there was a female
that was sitting on the couch, and she stated that he -- that
she is Mr. Edgardo’s cousin, and that he took her vehicle,
which you could see the tire prints in the driveway, that
he went through the neighbor’s yard to exit.
Q. Okay. And did you inquire as to how he gained
access to her vehicle?
A. She said it was left running, it was a rental.
Q. Okay. So her -- the vehicle that he left in had been on
and running in the driveway at the time he went to leave?
A. Yes.
Q. All right. And you said that there were tracks
through the neighbor’s yard?
A. Yes.
Q. Tire tracks from the vehicle that had recently left?
A. Yes.
Q. All right. And did these appear to you to be fresh
[33]tracks?
37a
Appendix A
A. Yes.
Q. All right. And why is it -- based on what you could
observe, why is it that that vehicle had to drive through
the yard in order to -A. Because the auto that he drove up in was blocking
it in the driveway, so he couldn’t back out, he had to back
up a little bit and then do a U-turn to get out.
Q. All right. And the tracks you saw were consistent
with that?
A. Yes.
Q. All right. You said that at some point you were
assisted by other officers; is that right?
A. Yes.
Q. Are you aware if any of the officers who were there
assisting you took photographs of the scene?
A. Yes, Detective Sergeant Skowron did.
Q. All right. And have you had an opportunity to look
at the photographs that he took?
A. Yes.
Q. All right. And are they true and accurate depictions
of the scene as you recall it the night of January the 23rd,
2023?
38a
Appendix A
A. Yes.
MR. JOYCE: Your Honor, may I approach the [34]
witness? I would like to present him with Government’s
Exhibits 2, 3 and 4. These are all photographs. I will, of
course, show them to defense counsel first. And I will note
with an apology that the officer brought these photographs
to me today, and I do not have copies of them because he
brought me these physical copies when he arrived here
in court today.
THE COURT: Sure. But I’d like to alter your
suggestion a bit. Of course, show Mr. Grostic. But then
turn on the document camera, and then you can show all
of us at one time. All right with you?
MR. JOYCE: Yes, certainly. A great suggestion.
Thank you, Your Honor.
THE COURT: But do show your colleague on the
other side.
The on/off switch is towards the back. Your hand is
near it. Yes, exactly. It should work, and you should be
able to manipulate, focus as you need.
MR. JOYCE: All right. Is that visible to the Court,
Your Honor.
THE COURT: It is. Thank you.
MR. JOYCE: Certainly.
39a
Appendix A
BY MR. JOYCE:
Q. Officer DiMaiolo, can you see what’s on the screen
in front of you there, sir?
[35]A. No. I can see it on her screen, though. It’s not
on this one. I can see it on that one over there.
THE COURT: Oh, forgive me. I should -THE WITNESS: That’s okay. There we go. I can see
it now.
THE COURT: Deputy, is your screen on? Do you
mind turning it on in the event -- Mr. Zakrajsek, yours
should be on now.
OFFICER ZAKRAJSEK: It is, Your Honor. Thank
you.
THE COURT: Thank you for saying that.
THE WITNESS: You’re welcome, Your Honor.
THE COURT: Yours is working?
THE WITNESS: Yes, ma’am.
THE COURT: Please proceed, Mr. Joyce.
MR. JOYCE: Thank you, Your Honor.
40a
Appendix A
BY MR. JOYCE:
Q. You are able to see the document in front of you, sir?
A. Yes, sir.
Q. It’s marked as Government’s Exhibit 2 in the
bottom corner?
A. Yes, sir.
Q. All right. Do you recognize this?
A. That is a spent casing that Officer Bell found.
Q. All right. Thank you.
And I’m going to gesture with my hand. You tell me if
[36]I’m in the correct spot. Is this area where I am circling,
is this the spent shell casing that you are referencing?
A. Yes.
Q. And I apologize, it looks, because of the glossy
quality of the photo, there’s a little bit of a glare on the -from the light produced by the projector. But you’re still
able to recognize that?
A. Yes, sir.
Q. And that’s the casing you found on scene?
41a
Appendix A
A. Yeah. Officer Bell found it while I was doing the
report.
Q. All right. Thank you.
I would like to present Government’s Exhibit 3.
Are you able to see that document?
A. Yes.
Q. All right. And it’s marked Government’s Exhibit
3. What is this?
A. It’s a bullet hole in the hood of the auto.
Q. All right. There’s a -- the bottom half of the screen
-- for purposes of the record, I will make these statements.
The bottom half of the screen is mostly white and there’s
a black mark there towards the top, or middle left part
of the screen.
Is that the bullet hole that you observed?
A. Yes.
[37]Q. And while it might not be visible because of
the quality of the photograph, did you observe any other
bullet holes in this vehicle?
A. Yes. There was one in the windshield. It’s hard to
tell with the glare. And then there’s one in the front grill.
42a
Appendix A
Q. Okay. Thank you very much.
4.
I am going to present you with Government’s Exhibit
Do you recognize that?
A. Yes, there’s -- yes.
Q. All right. And what is that?
A. There’s a bullet hole right underneath the front
grill, and you still can’t see the one in the windshield, but
there is one.
Q. Okay. This is a zoomed-out version, I will say, of
Government’s Exhibit 3; is that right?
A. Yes.
Q. It’s the same vehicle pictured in both Government’s
Exhibits 3 and 4?
A. Yes.
Q. I can show you Government’s Exhibit 3 again if
you -A. It’s the same.
Q. It’s the same. All right.
43a
Appendix A
And all these pictures are true and accurate depictions
of what you observed that night?
[38]A. Yes.
Q. Officer DiMaiolo, are you -- in all your work with
the Youngstown Police Department, have you become
familiar with the odor of alcohol on a person?
A. Yes.
Q. All right. That’s something you’ve been taught to
detect as you interact with citizens?
A. Yes.
Q. On the night in question here, were you able to
discern any alcoholic odor from Ms. Infante?
A. No.
Q. Did she indicate in any way or give, I don’t know,
symptoms of impairment?
A. No.
Q. All right. And that’s something you’ve been trained
to identify?
A. Yes.
44a
Appendix A
Q. All right. Did she appear to you to be intoxicated?
A. No.
Q. All right. At the time that you responded to the call
for service at 1137 Inverness, were you outfitted with an
audio and video recording device?
A. Yeah, with a body-worn camera, yes.
Q. Are you aware if it was operational that evening?
A. Yes.
[39]Q. Are you aware because audio and video was, in
fact, captured by that device?
A. Yes.
Q. All right. And are you aware of the receipt and
storage procedures at the Youngstown Police Department?
A. Yes.
Q. Do you know if those procedures were followed in
this case?
A. Yes.
Q. Have you had an opportunity to take a look at the
body cam you recorded that evening?
45a
Appendix A
A. Yes.
MR. JOYCE: Your Honor, with the Court’s permission,
I would seek to play what will be marked as Government’s
Exhibit 5. I can represent to you, Your Honor, that this
video has been shared with counsel for the defendant prior
to the hearing. I confirmed with him also telephonically
yesterday and told him I would be playing it, and I made
him aware of that as well.
THE COURT: Thank you for doing that.
How will you play it, from a laptop?
MR. JOYCE: Yes. I have set it up already, if the Court
would be so kind as to switch it.
THE COURT: Certainly.
(Video played.)
[40]MR. JOYCE: Your Honor, for purposes of the
record, I would note that I stopped the video at 23 minutes,
42 seconds. The balance is just the officer getting back
into his vehicle and nothing of substance or relevance to
the case, is my recollection.
BY MR. JOYCE:
Q. Officer, do you recall the balance of the video? Is
there anything of substance on there?
46a
Appendix A
A. No. I usually just get in my auto and shut it off right
then to do the report.
MR. JOYCE: Your Honor, we’re offering the entirety
of the exhibit for the purposes of the hearing, but just in
the interest of time, I will stop it there, unless there is
objection from the Court or counsel for the defendant.
MR. GROSTIC: No objection.
THE COURT: Thank you, Mr. Grostic. I am satisfied
with what you’ve presented, Mr. Joyce.
MR. JOYCE: Thank you. Your Honor, then I’ll just
wrap up very quickly.
BY MR. JOYCE:
Q. Officer, you were able to see and hear the audio and
video that was just presented?
A. Yes.
Q. And was that, in fact, your body camera recording?
[41]A. Yes, that was me.
Q. And that’s a true and accurate depiction of the
events that occurred that evening?
A. Yes.
47a
Appendix A
Q. This is not adulterated or changed in any way?
A. No.
Q. All right. Thank you.
MR. JOYCE: Your Honor, I have no additional
questions for this witness.
THE COURT: Thank you.
Officer DiMaiolo is passed for cross-examination.
CROSS-EXAMINATION OF ROBERT DIMAIOLO
BY MR. GROSTIC:
Q. Good afternoon, Officer.
A. Good afternoon.
Q. I am sorry. I am going to try to speak up because
I’ve got a little frog in my throat, but can you hear me
okay?
A. Yes.
Q. All right. Thank you.
I believe in your direct, you said something about you
didn’t detect any alcohol odor or any inebriation?
48a
Appendix A
A. No.
Q. As we were watching the video, I noticed there’s
kind of two different timestamps, but the timestamp in
the upper right, about 22:50, someone says, “It smells like
a good [42]time in here.”
Do you recall that?
A. Yes.
Q. Do you know what that was referring to?
A. It had to be marijuana.
Q. Okay. So you did smell marijuana?
A. Yes. But she was vaping, I saw.
Q. Okay. Have you spoken to Ms. Infante since that
night?
A. No.
Q. Not at all?
A. No.
Q. Have you seen her at all, until today?
49a
Appendix A
A. I didn’t even know that was her at first.
Q. Fair enough. Okay.
So to the best of your knowledge, except for maybe
what I just told you, you haven’t seen her or talked to her
since then?
A. No.
MR. GROSTIC: Could I have one moment, Your
Honor?
THE COURT: You may.
(Discussion held off the record between the defendant
and Mr. Grostic.)
MR. GROSTIC: No further questions. Thank you.
THE COURT: Is there any redirect examination of
Officer DiMaiolo?
[43]MR. JOYCE: Very, very briefly, Your Honor.
THE COURT: Certainly.
50a
Appendix A
REDIRECT EXAMINATION OF
ROBERT DIMAIOLO
BY MR. JOYCE:
Q. Officer, on cross-examination, you indicated that
the alleged victim was vaping. For the purposes of the
record, what is that? What do you mean by that?
A. It’s just -- actually, I really don’t know what vaping
is. It’s just a chemical that they use to smoke. It’s not -- it
doesn’t make you high or anything.
Q. All right. But so based on what you observed, in
your interactions with her, she did not appear to be using
marijuana in front of you?
A. No. It appeared that the other guys were, because
when they asked them, they started giggling and laughing
about it.
Q. Okay. But again, the alleged victim there, she
didn’t exhibit any symptoms of being under the influence
of marijuana?
A. No.
Q. And that’s something you’ve been trained to
identify?
A. Yes.
51a
Appendix A
MR. JOYCE: Okay. Nothing further, Your Honor.
Thank you very much.
THE COURT: Thank you.
[44]Within the scope of that redirect, Mr. Grostic, is
there any recross-examination?
MR. GROSTIC: No, Your Honor.
THE COURT: Is there any reason Officer DiMaiolo is
not able to leave the building if he should choose to do so?
MR. JOYCE: No, Your Honor.
THE COURT: Thank you, sir, for appearing. You are
free to step down and leave the building.
THE WITNESS: Thank you.
THE COURT: On behalf of the United States, will
you call your next witness?
MR. JOYCE: Thank you. Your Honor, pending
admission of Government’s Exhibits 1 through 4, the
government would rest. I have no additional witnesses
to call.
THE COURT: If you edit that to 1 through 5, I will
ask if there is any objection. Do you mind the edit?
52a
Appendix A
MR. JOYCE: No. Thank you, Your Honor. I appreciate
that edit. In fact, it is five exhibits I intend to offer the
Court. Thank you.
THE COURT: Mr. Grostic, at trial I would hold a
separate exhibits hearing. During this violation hearing,
I will do it now. Is there an objection to any one of the
exhibits?
[45]MR. GROSTIC: No, Your Honor.
THE COURT: Then I will receive Government’s
Exhibits 1 through 5.
Subject to this opportunity to wrap up, the case
turns to Mr. Esteras. Mr. Grostic, would you like to call
a witness?
MR. GROSTIC: Yes, Your Honor. Mr. Esteras would
like to call Ms. Melissa Infante.
THE COURT: And certainly I will allow you. I will
caution you, Mr. Grostic, as an officer of the court, that if
you believe she is going to perjure herself, that you have
a duty to avoid that when possible.
Do you understand?
MR. GROSTIC: Yes, I do, Your Honor.
THE COURT: Would you like to speak with her? I
will make sure that I tell her that she’ll open herself up
53a
Appendix A
to punishment, new law violations, state or federal, for
penalties, including perjury, making a false statement.
Under some circumstances I even include contempt. I’m
not sure that that will be appropriate.
But with that caution made to you, and I’ll repeat it
to her, you may call your witness.
MR. GROSTIC: Thank you, Your Honor. I will go out
into the hallway.
THE COURT: Please do. Thank you.
[46]MR. GROSTIC: Thank you.
THE COURT: Please approach to be sworn. Thank
you.
THE CLERK: Please raise your right hand.
MELISSA INFANTE, of lawful age, a witness called
by the Defendant, being first duly sworn, was examined
and testified as follows:
THE COURT: Thank you. Now take the seat next
to mine.
Madam Court Reporter, did you capture exactly what
my assistant said as she swore the witness?
THE REPORTER: No, Judge.
54a
Appendix A
THE COURT: No? The record shall reflect, and you
tell me if you believe differently, I think you are going
to agree your name is Ms. Infante, that you have been
ordered to either swear or affirm. Did you hear that?
THE WITNESS: Yes.
THE COURT: Do you know the difference?
THE WITNESS: Yes.
THE COURT: What is the difference?
THE WITNESS: You said swear?
THE COURT: Yes. I will tell you.
THE WITNESS: Okay.
THE COURT: It’s either swear to the God of your
choosing, or affirm, meaning if you choose not to swear,
you [47]affirm. That’s still a pledge that you’re bound by
the oath you’ve now taken. Clear?
THE WITNESS: Okay.
THE COURT: Ask the witness to please introduce
herself for the record, and then I’ll caution her.
MR. GROSTIC: Thank you, Your Honor.
55a
Appendix A
DIRECT EXAMINATION OF MELISSA INFANTE
BY MR. GROSTIC:
Q. Ms. Infante, could you state your name for the
record and spell your last name?
A. Melissa Infante, last name I-n-f-a-n-t-e.
THE COURT: Thank you, Mr. Grostic.
Ms. Infante, I am Judge Pearson. There has been a
concern brought to my attention that you intend to testify
and that your testimony might be impeachable, it might
be different from other statements you’ve already made
to law enforcement.
And I just want you to know that should it be proven
up at some time that while under the oath that you’ve
just taken by swearing and affirming that you will tell
the truth, you could expose yourself to new criminal law
violations, civil law violations, such as perjury, making
a false statement. You might even be charged with
something along the lines of wasting the time of the
Youngstown police if you say different today while under
oath that which we’ve [48]already seen in a video recording
made on the 23rd of January, this year.
I don’t say these things to frighten you, but for you
to understand that you don’t have an obligation to make
false statements. You only have an obligation to make
truthful statements.
56a
Appendix A
Is that clear?
THE WITNESS: Yes.
THE COURT: All right. If at any time when you’re
questioned by either Mr. Esteras’s attorney, who awaits
now to question you, or the government’s attorney, you may
not answer, and you may also plead the Fifth Amendment
if you think that’s an appropriate answer, because you
believe your answer will cause legal problems for you.
Make sense?
THE WITNESS: Yes.
THE COURT: We’ll take it question by question, Mr.
Grostic, if you are comfortable with that.
MR. GROSTIC: Thank you, Your Honor.
THE COURT: Certainly.
BY MR. GROSTIC:
Q. Ms. Infante, let me ask first, do you know the person
I am pointing at, the defendant sitting at defense table?
A. Yes.
Q. And who is that?
[49]A. The father of my kids, Edgardo Esteras.
57a
Appendix A
Q. Okay.
MR. GROSTIC: Your Honor, could the record reflect
that the witness has identified the defendant?
THE COURT: Yes, sir, it shall reflect.
MR. GROSTIC: Thank you.
BY MR. GROSTIC:
Q. Now, Ms. Infante, I want to direct your attention
to -- you may not know this date, but January 22nd, the
night of, into January 23rd.
Do you remember that night by date?
A. No.
Q. Understood.
Do you remember a time when Youngstown police
officers came to your home in late January of this year?
A. No. I didn’t call them, so I don’t remember what
was the time.
Q. Fair enough. I am going to state my question very
precisely.
A. Okay.
58a
Appendix A
Q. I’d just ask you to listen carefully.
Do you remember a time when Youngstown police
officers came to your house in -A. No.
Q. -- January of this year?
[50]A. I don’t remember the time. It was nighttime.
I don’t -Q. I understand.
A. But -Q. Let me try it completely differently.
A. Do I remember the time?
Q. No. Let me try and rephrase it completely.
A. Oh.
Q. That’s my fault.
A. Okay.
Q. Do you remember that in January of this year,
Youngstown police officers came to your house?
A. Oh. Yes.
59a
Appendix A
Q. Okay.
A. Uh-huh.
Q. Now we’re on the same page.
A. Okay.
Q. And you’ve already said you don’t remember the
exact time?
A. No.
Q. But do you remember them coming at nighttime?
A. Yeah. It was dark.
Q. It was dark. Was there snow on the ground?
A. Yes.
Q. Okay. Do you remember that night telling them
that [51]something had happened regarding Mr. Esteras?
A. That we were arguing.
Q. And again, I am just going to ask you to listen real
carefully.
A. Yes.
Q. Do you remember telling them anything about Mr.
Esteras?
60a
Appendix A
A. Yes.
Q. Okay. Now, as the judge has already instructed
you, you are under an obligation to tell the truth. And I
believe what the judge also told you is that you -- we are
aware that you’ve made other statements to police before
tonight -- before this afternoon.
A. Yes.
Q. Are you -- do you recall making statements to
police?
A. I don’t remember everything I spoke about, but -Q. Do you remember speaking with police, though, is
my question?
A. Yeah. Yes.
Q. Okay. So I am going to ask you a few questions about
things you may have told them or what you remember
about that night. Okay?
A. Okay.
Q. Okay. So when police arrived, do you remember
telling them that Mr. Esteras had come into your home?
[52]A. Did they ask me that? Yeah, I told them he came
into the kitchen where I was sitting at.
61a
Appendix A
Q. Okay. Do you remember telling them that he
punched your TV?
A. Did he punch it?
Q. Well, my question is actually, do you remember
telling police -A. Telling them?
Q. -- that he punched your TV?
THE COURT: Mr. Grostic, I would rather you do
this differently. Your witness. But it might be nice if Ms.
Infante knows that we’ve seen a 23-minute video -THE WITNESS: Uh-huh.
THE COURT: -- of you speaking with the police.
THE WITNESS: Yes.
THE COURT: So whether she recalls what she said,
there is a video that I received into evidence. It’s not been
objected to. So I really don’t mind whether you recall or
not.
THE WITNESS: Uh-huh.
THE COURT: A nd I think that nar rows the
passageway for Ms. Infante to get herself into a legal
complication.
62a
Appendix A
So do you mind taking into consideration the video,
what it says? If you’d like some parts of it to be [53]shown
to her to see if she wants to respond differently. But we
know what’s on that video. Right?
MR. GROSTIC: Understood, Your Honor. Thank you.
THE COURT: Keep that in mind, please.
BY MR. GROSTIC:
Q. So, Ms. Infante, let me try a different approach.
A. Okay.
Q. What happened that night with Mr. Esteras?
A. Okay. So I had called him -- we were arguing. I
mean, we’re always arguing. But I had called him to ask
him if he knows anything about what happened to my
truck.
He came to the house. We started arguing about it
because he said, “Nobody better find out where we live
at,” being that my son has problems with other people
out there.
He got mad at the fact that there was something
done to the truck. He helped me buy that truck. So I can
understand why he was mad.
63a
Appendix A
So we were arguing inside about other things,
including that. And he has a loud mouth, just like I do.
He was getting loud with me, so I started hitting him. I
punched him in his mouth, and Edgardo started bleeding.
The kids were in the room sleeping, but my daughters
came out crying because they heard all the loud noise.
After that, he tries to leave and all -- he tries to leave.
About the TV, I can’t even remember what happened to
[54]it.
He goes outside. I left behind him. I realized that
they were in my other car that was actually at the shop
supposedly getting fixed. So since I realized that that was
my car, I took the keys and I ran right back inside with
the keys.
Edgardo got in another car that was there in the
driveway and he left. I can’t remember which way the car
was parked. I think it was facing the house. And then he
went through the grass and he left.
But we were arguing inside about what happened to
the -- to the car. I’m thinking it’s him the whole entire
time, because we were arguing. But then I’m thinking
like, could he have been capable of doing this, being that
he helped me get the car.
Q. Well, let me stop you there, actually. I’m not -- let
me back up.
64a
Appendix A
When you said, “I’m thinking this was him,” what are
you referring to? You just described, if I’m not mistaken,
that you were -A. What was done to the vehicle. What was done to
the vehicle, because the vehicle was -Q. Are you -- I am sorry.
A. The vehicle -- I had pulled up -- I was gone. When I
pulled up there, my other two kids were there. And when I
[55]seen my vehicle like that, I’m like -- I’m asking them,
“Do you guys know what happened to my car?”
Q. And let me pause. When you say “like that,” what
are you referring to?
A. With the -- with the hole on the windshield.
Q. So you’re referring to holes in the windshield?
A. Uh-huh.
Q. Okay.
A. Yes.
So then my kids, they were acting like they didn’t
know anything. They were acting like it could have been
-- they were acting like they didn’t know what happened.
But then, a few weeks later, I come to find out that that
day my son was arguing with people who he had problems
65a
Appendix A
with before prior, which they did get to shoot up my mom’s
house, and there was a whole situation with that also. My
son till this day still has problems -THE COURT: Keep to the point. Control your
witness. What’s the question?
BY MR. GROSTIC:
Q. So let’s come all the way back to, you noticed holes
in your car?
A. Uh-huh.
Q. Okay. Did Edgardo shoot a gun into your car?
A. I didn’t see him do that. When I went outside and
[56]noticed that he was in my other car with his friend,
I grabbed the keys that were -- I don’t know why he left
the keys there -- in the cup holder and I ran inside. And
that’s when he’s like, “Melissa, give me the keys. Give me
the keys.” I’m like, “No.”
Q. All right. So let’s back up then.
Did you see Mr. Esteras with a gun?
A. No.
Q. Did he threaten to kill you with a gun?
A. Did he -- no.
66a
Appendix A
Q. Did you -- why did you tell Youngstown police that
he did shoot at your car?
A. Because I was mad.
Q. Okay. So when the police arrived -A. Uh-huh.
Q. -- you spoke with them, correct?
A. Yes.
Q. Do you remember everything you said?
A. Not everything.
Q. Okay. But you’re aware that there is a video
recording of that?
A. Yes.
Q. Have you watched that since then, that video
recording?
it.
A. When I was out there, I seen it on there, but that’s
[57]Q. Okay. Could you hear when you were -A. No.
67a
Appendix A
MR. GROSTIC: Could I have one moment, Your
Honor?
THE COURT: If you need it.
(Discussion held off the record between the defendant
and Mr. Grostic.)
BY MR. GROSTIC:
Q. Now, Ms. Infante, you’re aware that the Youngstown
-- in the Youngstown Municipal Court, Mr. Esteras was
charged with certain crimes, correct?
A. Yes, and that’s why I dropped the charges.
Q. Now, if you could just stick to my question. Okay?
A. Yes. Okay.
Q. Did you appear in Youngstown Municipal Court in
connection with that case?
A. The courthouse over there?
Q. Yes.
A. Just -- just to -Q. Again, my question is just, did you appear there?
A. I appeared there, yes.
68a
Appendix A
Q. And did you tell the officials there that you wanted
to drop those charges?
A. Yes.
MR. GROSTIC: Nothing further, Your Honor.
THE COURT: Cross-examination of Ms. Infante?
[58]MR. JOYCE: Thank you, Your Honor.
CROSS-EXAMINATION OF MELISSA INFANTE
BY MR. JOYCE:
Q. Good afternoon, Ms. Infante. My name is Chris
Joyce. I’m the prosecutor in this case. I am going to ask
you a few questions about what you just testified to. All
right?
A. Okay.
Q. All right. You said that leading up to the events that
you testified to about your house and your argument with
Mr. Esteras, you said you had been arguing.
Do you recall making that statement?
A. What was the last thing?
Q. Do you remember saying that, testifying that you
had been arguing with Mr. Esteras prior to him showing
up at your house?
69a
Appendix A
A. Yes. That’s -- yes. That’s every day.
Q. Okay. The two of you argue every day?
A. Mainly every day.
Q. Okay.
A. But nothing -THE COURT: Listen, the question has been answered.
THE WITNESS: Yes.
THE COURT: Next question.
MR. JOYCE: Thank you, Your Honor.
[59]BY MR. JOYCE:
Q. You said that you had called him that night because
you wanted to ask him if he knew about what happened
to your car, correct?
A. Yes.
Q. And what you were asking about was why there
were bullet holes in your car, correct?
A. Yes.
Q. All right. So when you testified here in court today,
the way you have characterized that, and correct me if I’m
70a
Appendix A
wrong, you did not see him -- you are saying you didn’t
see him fire a gun at your vehicle?
A. No.
Q. Okay. How did you find that your vehicle had been
shot?
A. My kids told me.
Q. When did they tell you?
A. When I arrived at the house.
Q. Okay. So you had been out for the evening, you came
home and your kids told you -A. Yes.
Q. -- your car had been shot?
A. Yes.
Q. Where were you?
A. I was at the store.
[60]Q. Okay. Presumably not in that vehicle?
A. No. I was with a friend.
Q. Okay. And so you had called Mr. Esteras so he could
come and explain if he knew why your vehicle was shot?
71a
Appendix A
A. Yes.
Q. All right. And you said that he then came into your
home after you called him; is that right?
A. Yes, he came.
Q. He came over. All right.
A. Uh-huh.
Q. And that’s when the two of you continued arguing?
A. Yes.
Q. All right. And you said that he -- you were arguing,
and that you punched him in his mouth; is that right?
A. Yes.
Q. With enough force to draw blood, I think is what
you said?
A. Yes.
Q. All right. And had he struck you prior to that?
A. No. All Edgardo did was push my head back.
That’s why my neck was hurting a little. He just pushed
my head back.
Q. All right. Where did that take place?
72a
Appendix A
A. That was near the kitchen.
Q. Okay. You struck him first, and his reaction was
then to push you in your neck?
[61]A. Just try to push me away from him, because
he knows that I can -- I won’t stop hitting him unless
somebody -THE COURT: Stop. Next question.
BY MR. JOYCE:
Q. When this happened, who was with you?
A. I really don’t remember everybody that was there.
Q. All right. You said that your children were home?
A. They were sleeping.
Q. How many children live in the home with you?
A. I have -- I have four. The two oldest; and the two
little ones that are his kids, they were sleeping.
Q. All right. And the older children?
A. They were in their rooms.
Q. So when Mr. Esteras came into your home and
began arguing with you, you were alone; is that right?
73a
Appendix A
A. I was with the girl that had the box braids in the
video. We were sitting in the kitchen.
Q. All right. And who is that?
A. She is -- she is my daughter’s friend.
Q. She is your daughter’s friend?
A. Uh-huh.
Q. Okay. And why was she over?
A. She -- well, currently she’s homeless, so I was
letting her stay there.
Q. All right. And she was sitting with you at the
kitchen [62]table?
A. Yes.
Q. All right. She’s not in any way related to Mr.
Esteras?
A. She says that they’re somewhat related. I don’t
really know.
Q. All right. And she was staying there for the
evening?
A. She was staying there. Even when he was
incarcerated, she was still staying there with me.
74a
Appendix A
Q. All right. But the night that we’re talking about -A. That night, yeah.
Q. -- she was sleeping at your house?
A. Uh-huh.
Q. And where was her car?
A. That car was in the driveway.
Q. All right.
A. That’s the car that he left in.
Q. Okay. “He” being the defendant?
A. Edgardo.
Q. Yes. All right.
And was her car running?
A. I don’t know.
Q. Okay. How did -- were you present when Mr.
Edgardo gained possession of her keys?
A. No. I grabbed my keys from the car and I ran
inside.
75a
Appendix A
[63]Q. All right. You grabbed your keys from which
car?
A. The black car that was in the street.
Q. The one that Mr. Esteras arrived in?
A. Yes.
Q. All right. You said he was with somebody; is that
right?
A. Yes.
Q. Who was he with, do you recall?
A. I don’t know that guy.
Q. All right. And during this whole interaction with
Mr. Esteras, did that person remain in the vehicle?
A. That person was in the vehicle the whole entire
time. When I ran outside to -- I ran behind him, and then
I realized that that was my car, the guy got out the car.
Q. The person that was in the car got out of the car?
A. Yeah, he got out of the car.
Q. And what did he do?
76a
Appendix A
A. He got out the car, he went around the car, and I
ran inside. I don’t know.
Q. All right. You said that your children were all asleep
at the time Mr. Esteras came into the home; is that right?
A. The two little ones, yes.
Q. At some point did they wake up?
A. When they heard all the screaming, or arguing.
Q. And were they present then during the physical
[64]altercation you described?
A. Not that I could remember.
Q. All right. What happened to your television?
A. That -- I was -- okay. I was standing right there,
right next to it, and we were arguing, and he was mad, so
-- I don’t know if he like did like this to it or what it was.
(Indicating.) I can’t remember.
Q. But based on the gesture you just made, he struck
the TV with his hand?
A. Yeah.
Q. With enough force to break it?
A. Could have been. I don’t know.
77a
Appendix A
Q. You don’t remember if it broke when he hit it?
A. Huh-uh.
THE COURT: Mr. Joyce -THE WITNESS: It was turned off. I don’t know.
THE COURT: Mr. Joyce -MR. JOYCE: Yes, Your Honor.
THE COURT: -- you can’t leave that there.
Was the TV broken before he touched it, yes or no?
THE WITNESS: I hope not.
THE COURT: Don’t give me an “I hope not.” I said
yes or no. Which is it, one or the other? Was the TV broken
before he touched it using that gesture you just made,
yes or no?
[65]THE WITNESS: No.
THE COURT: After he touched it, after the gesture,
was the TV broken?
THE WITNESS: When we turned it on, it was broken.
THE COURT: Was the TV broken? On or off, was the
screen broken, yes or no, after he touched it?
78a
Appendix A
THE WITNESS: It was broken.
THE COURT: I infer that when Mr. Esteras touched
the TV using the gesture made by the witness, he broke
it. Next question.
MR. JOYCE: Thank you, Your Honor.
THE COURT: Listen, I’m not sure what game you’re
playing at. This is a court of law. We are here at this hour
not to game with you. Answer as directly as you can every
question regardless of who puts it to you. You won’t make
any final decisions in this room, Ms. Infante.
THE WITNESS: Okay.
THE COURT: I will. And the only thing you’ll delay
is the making of that decision. And I strongly suggest you
not do it. Because the one authority I do have over you is
contempt of court, and I will employ it if you force me to
do so. Listen, cogitate, answer.
Back to you.
MR. JOYCE: Thank you, Your Honor.
BY MR. JOYCE:
[66]Q. Ms. Infante, on the night that we are discussing,
you told the police you wanted to press charges; is that
correct?
79a
Appendix A
A. Yes.
Q. All right. And you filled out a statement indicating
as much; is that correct?
A. Yes.
Q. All right. And in that statement, you told the police
that Mr. Esteras came to your house unannounced; isn’t
that correct?
A. I don’t recall that.
Q. All right. In that statement, you said he came in
and you were sitting at the kitchen table and he struck
you. Do you recall that?
A. No.
Q. All right. You said that in his anger, he also struck
the TV and broke it. Do you recall that?
A. Yes.
Q. All right. You also said that you followed him out
of the house as he went to a vehicle.
Do you recall that?
A. Yes.
80a
Appendix A
Q. All right. You said that you recognized it was your
vehicle that he drove to your home, and so you took the
keys from him.
[67]Do you recall that?
A. Yes.
Q. And you told the police that when that happened,
Mr. Esteras took a gun out and aimed it at you.
Do you recall that?
A. No.
Q. No, you don’t recall that?
A. No.
Q. Is it your testimony here today that that did not
happen?
A. That he pointed a gun at me?
Q. Yes.
A. No, he didn’t.
Q. Okay. You said that he threatened with the gun
that he would kill you.
Do you recall that?
81a
Appendix A
A. No.
Q. All right. You said that you watched as he fired
several rounds into your vehicle that was parked in the
driveway.
Do you recall that?
A. No.
Q. Ms. Infante, as you testified on direct examination,
charges were filed in municipal court. And you know that,
correct?
[68]A. Yes.
Q. And in order to have those charges filed, you had
to appear physically at the municipal court, I believe the
next day after this happened; isn’t that right?
A. Yes.
Q. And you did go down to that court, and you did ask
that charges be filed, correct?
A. Yes.
Q. And those charges were based on the information
that you gave the police on January 22nd or 23rd of 2023,
correct?
A. Yes.
82a
Appendix A
Q. All right. And then sometime later you went and
asked they be dismissed -A. Yes.
Q. -- is that fair?
A. Uh-huh.
Q. What is your -- strike that.
I understand that you have children in common with
Mr. Esteras. Is that correct?
A. Yes.
Q. While he has been in custody since the time of this
event, have you had the ability to communicate with him?
A. With him?
Q. Yes.
[69]A. He calls to speak to my daughters.
Q. Okay. Do you speak with him as well?
A. Not as much.
Q. Is that a yes?
A. A little, not as much.
83a
Appendix A
Q. Yes, sometimes you speak with him?
A. Sometimes.
Q. Okay. W hat is the status of your personal
relationship with him at this point in time?
A. I have nothing against him.
Q. Okay.
MR. JOYCE: Thank you. Your Honor, I have no
additional questions for this witness.
THE COURT: Thank you, Mr. Joyce.
Is there any redirect examination, Mr. Grostic, within
the scope of the cross-examination?
MR. GROSTIC: No, Your Honor. Thank you.
THE COURT: Thank you.
Is there any reason the witness isn’t free to step down
and leave the building?
MR. GROSTIC: No, Your Honor.
THE COURT: You may step down and leave the
building.
THE WITNESS: Okay.
84a
Appendix A
THE COURT: Mr. Grostic, do you have another [70]
witness?
MR. GROSTIC: No, Your Honor. With that, defense
would rest.
THE COURT: All right.
(Witness exited the courtroom.)
THE COURT: Mr. Grostic, I didn’t notice that you
used any exhibits. Have I missed any?
MR. GROSTIC: You have not missed anything, Your
Honor.
THE COURT: No worries.
Then, as I outlined for you earlier, we are through the
submission of evidence. I would like to give you, Officer
Zakrajsek, an opportunity, but not obligate you, to say
anything more you’d like to share on the record about the
experience of supervising Mr. Esteras. Keep in mind that
we’ve all received the reports that you’ve drafted. We have
the evidence that’s been submitted, documentary as well
as testimonial evidence.
Is there anything more that you’d like to inform the
Court and counsel about that you think we might have
missed or wouldn’t otherwise be aware of?
OFFICER ZAKRAJSEK: I have nothing further,
Your Honor. Thank you.
85a
Appendix A
THE COURT: Thank you.
I don’t have any questions for you at this time, [71]but
do you have any questions for Mr. Zakrajsek?
MR. JOYCE: No, Your Honor. Thank you.
THE COURT: Do you, Defense Counsel?
MR. GROSTIC: No, Your Honor.
THE COURT: Counselors, with that then, I will allow
your allocution/argument. And the allocution is an obvious
concept to you. The argument is just to summarize the
evidence you’ve heard, folded into the suggestions you’d
like to make to the Court regarding whether Mr. Esteras
has violated his term of supervised release in the two ways
suggested. And if you care to suggest what consequence,
if any, be imposed should I find he has violated.
Do you mind going first, Government’s Counsel?
MR. JOYCE: Not at all. Thank you, Your Honor. Your
Honor, would the Court prefer I speak from the lectern
or from my seat?
THE COURT: Wherever you are most comfortable.
I think Madam Court Reporter and I can hear you from
there as well as from the podium. So you are welcome to
stay at your seat or walk to the podium, whichever you’d
like.
86a
Appendix A
MR. JOYCE: Thank you, Your Honor. I will elect to
speak from the podium.
Your Honor, I submit to the Court that the evidence
presented here today does establish by a preponderance
of the evidence that Mr. Esteras has, in fact, [72]violated
a number of his conditions, two of which, of course, are
outlined in the report dated January 30th of 2023, Your
Honor.
The first violation, titled as a new law violation,
includes a number of different misdemeanor charges that
had been filed in the Youngstown Municipal Court, those
being domestic violence, aggravated menacing, criminal
damaging/endangering.
And, Your Honor, the evidence presented here clearly
demonstrates that Mr. Esteras did, in fact, violate his
conditions in those ways.
We watched body cam footage that was captured
by the officer who responded shortly after the events in
question took place. And from that footage, which was
very clear in nature, we were benefited with a statement
by Ms. Infante that she offered to him while she was still
really under the stress of what had happened.
While the officer testified that in his recollection he
didn’t recall her to be crying when I asked that on direct
examination, I would submit that rewatching that video,
you can see that when she first interacts with the officer,
she, I believe, is crying.
87a
Appendix A
And the significance of that is just that she was still
under the stress of what happened. Her memory at that
moment in time, I submit, wouldn’t -- will never be better.
[73]Right? She had just experienced it. She was still
shaken up by it.
And it was clear, and she repeated it a number of times
throughout that video, and then submitted it -- committed
it, pardon me, to writing as well.
And the order of what she described was consistent
each time. That Mr. Esteras arrived. He entered her home
unannounced. He struck her, as she said -- she was at the
table when he entered. At some point he struck her. She did
explain on the video that she hit him or scratched him back
or something to that effect. But he initiated that contact.
And then at some point, out of his anger, he punched
the TV. He broke it. And then she followed him outside.
And she approached him at his vehicle. When she saw it
was her vehicle, she was upset. It was supposed to be at
his shop, and here he was driving it, so she took the keys
from him.
And his reaction to that was to pull out a firearm. She
didn’t hesitate in her description to the officer that it was
a firearm. She described where he was standing. She said
how he aimed it. She gestured even in the video, if you
watch, with her hands of how he stood and where he aimed,
fresh in her mind at the time she gave that statement as
to what happened.
88a
Appendix A
[74]And then he fired a number of times. That
statement, again, she made it then, it certainly appeared
truthful and genuine as I watched it. But it’s supported
and buttressed by the fact that the officers who arrived,
pointed to the area where he stood and fired this gun
allegedly, they found a shell casing. That is a piece of
evidence that supports her story that she explained to
the officers that night.
They found bullet holes in the vehicle in the exact
way that she described, where he was standing, how he
aimed, how he fired it. They went and looked at the car
and, sure enough, bullet holes in the windshield and the
hood of the vehicle.
They then went in the home. Of course, they saw, you
can see in the body cam footage, the TV is broken. You can
hear her as she discusses what happens with a number of
the people in the room, people who were, based on their
own statements, not her statement that she told the police,
based on their own statements captured by the body cam,
present when this happened.
They described the manner with which Mr. Esteras
entered the home, how he angrily was stomping and
walked up and how this happens all the time. They
explained -- you can hear some of the children who were
in the home at the time this gun was fired. You can hear
them talking about [75]how they were shocked that he
had pointed the gun at him. They had seen this firearm.
All of that, Your Honor, supports the statement that
was given by Ms. Infante on the day in question that is
89a
Appendix A
captured by the body cam, that, again, she committed to
writing, and then she filed in court the following day in
an effort to have charges filed.
I submit to you that all the evidence that was
presented, the photographs, the testimony and the body
cam footage, all taken together, looking at those, and any
reasonable inferences that can be drawn from all those
evidence viewed in its totality, support the fact that Mr.
Esteras did exactly what she described that evening. That
he did violate his conditions of supervision in the ways that
are described in the violation report of January 30th, 2023.
Thank you, Your Honor.
THE COURT: Thank you, Mr. Joyce.
Mr. Grostic, I would like to hear your allocution/
argument before I hear Mr. Esteras’s allocution. You have
the same opportunity, from where you are or the podium,
your choice.
MR. GROSTIC: Thank you, Your Honor.
My colleague obviously emphasized the body cam
video that we saw. Ms. Infante obviously also was in this
[76]courtroom after being instructed that she was under
penalty of perjury with all the consequences that could
follow. And after that instruction, Ms. Infante corrected
some of the things that she said that night.
My colleague emphasized that that was while she was
under the stress of what happened. As she said here today,
90a
Appendix A
she was angry. The order was not consistent, though, in
that body cam. The first statement she made to police is
that he came and he shot at her vehicle and then came
inside. Later it changed to he shot at the vehicle after she
went outside. It was not consistent between the statements
that were made.
There was no point at which she said that -- or that
a gun was inside the home. I don’t know about this point
about pointing the gun at children. She didn’t say that on
the body cam and she did not say that here.
THE COURT: But the video, you didn’t hear anything
about that during the video? One of the younger women
said, “Why he point that gun at us?”
MR. GROSTIC: I did -- I did hear that said. And it’s -I don’t know what to make of that, because it’s inconsistent
with the story we’ve heard.
THE COURT: Not really. Not really. If you imagine
-- and you saw the video. You saw the car in the driveway
facing the street. You saw the photos that were [77]
separate from the video. You saw that there was a photo
of what’s believed to be -- well, a bullet shot through the
windshield that’s facing the house, through the front grill
that’s facing the house, and then also the hood.
So anyone who is able to connect a bullet with that
vehicle in that way is shooting towards the house. I
understand precisely why anyone inside of the house, Mr.
Grostic, might say, “Why he point that gun at us,” because
that gun was pointed at every individual inside of that
91a
Appendix A
house. The only way that could happen, when the bullets
were made -- bullet holes were made while the gun was
-- while the car was in the driveway, and I haven’t heard
that even from the on-the-stand testimony, that the bullet
shots were otherwise put there.
Make sense?
MR. GROSTIC: Yes, I understand now, Your Honor.
And I guess the only point that I would make is that it’s
not clear, at least to me, that the people inside were saying
that based on what they themselves saw, or whether that
they were hearing something else. I mean, Ms. Infante
testified today that the bullet holes were there before that
he came over.
THE COURT: Well, I won’t disagree with you on that.
Thank you for engaging me. You are free to go on.
MR. GROSTIC: As far as my argument, I would leave
[78]the Court simply with that, that present here in court,
under penalty of perjury and subject to cross-examination,
Ms. Infante said that he did not commit these violations.
I would turn then -- I am, of course, in a difficult
position where I am first trying to persuade the Court
not to impose any penalty. But should the Court decide
that Mr. Esteras has violated the terms of his supervised
release, I do want to emphasize just certain information
that is contained in the violation report. And I know the
Court’s reviewed that, simply because the Court pointed
one of the things out at the beginning.
92a
Appendix A
But that he has been employed full time. He did have
both substance abuse and mental health assessments
complete. He had, as the Court noted already, completed
his GED, even after the Court suspended that requirement.
He had over three years of supervised release where he
was, you know, according to these conditions, doing the
things that the Court wanted him to. And then we’re here
now on something that happened in January.
So I do just want to bring those things up for the
Court’s attention, should the Court decide that there is a
penalty to be imposed here.
THE COURT: Thank you, Mr. Grostic.
Will you have Mr. Esteras join you?
(Discussion held off the record between the defendant
[79]and Mr. Grostic.)
THE COURT: Mr. Esteras, you have the opportunity
to be heard. And I am going to slightly modify the outline
of events that I’ve said. I am going to sum up my findings
so that you can speak in response, which I think is the
way allocution is meant. You know, the attorneys are
comfortable, as you saw your attorney do one thing, argue,
and then allocute. You will only allocute. And I think it
fairest to you to know what my thoughts are.
As you know, you’ve been -- it has been alleged that
you have violated your term of supervised release in two
ways. New law violation, that is, a violation of law here in
Youngstown, Ohio, resulting in you being charged with
93a
Appendix A
three misdemeanor offenses. And then separately, the
possession of a firearm.
It is important that I discern one from the other,
because it’s with similar behavior, or overlapping behavior,
the same behavior that you’ve committed both, or it’s
alleged that you committed both.
I am obligated, as I explained earlier, pursuant
to 3583(g), to revoke the supervision of someone who
possesses a firearm. And I make that finding, if I can, by
a preponderance of the evidence. It is a lesser standard
than beyond a reasonable doubt. It is a higher standard
than probable cause. And I make that finding today,
that [80]you possessed a firearm while under a term of
supervised release.
I make that finding based on the evidence that’s been
presented here, taking into consideration the things that
I should.
First of all, that you were under a term of supervision
that explicitly prohibited you from possessing a weapon, or
having access to a firearm. I believe you did possess and
have access, brandished and shot a firearm, three times,
as Ms. Infante said in the video that we spent at least 23
minutes viewing here together.
And it’s not just that I accept the video cam footage.
I appreciate when it exists. I am happy it existed for this
case. But it was corroborated, not only by the words of
Ms. Infante, but the words of the several others who spoke
about the assault you made on that household that evening.
94a
Appendix A
And then, as Mr. Joyce has explained, she didn’t
just complain to the police that evening, she also
corroborated that complaint by leaving her home, going
to the Youngstown Municipal Court the next day, and
complaining about your behavior. It’s only been here in
this courtroom this evening, as Mr. Grostic said, after
been warned of penalties that could attach if she lied, and
she did anyway, but victims of domestic offense often do
that, that she’d [81]change her story. But only enough to
make her appear confused. Nothing she said that was of
significance while under oath persuades me to believe that
you did not possess the weapon, that you did not point it
at that household, that you did not discharge it at least
three times.
Now, regarding the new law violation, I wish I were
better versed in the ordinances, regulations, the actual law
of Youngstown, knowing its elements. I suspect that your
behavior at targeting the house with a weapon and actually
assaulting the car with at least three bullets, the casing of
one which was found in the driveway, match the elements.
But I just don’t know. And it really doesn’t matter. Because
as I told counsel at the beginning of the hearing, both are
Grade C violations. You are subject to the same penalties
regardless of whether I find that you violated your term
of supervised release in one or two ways.
So I find that the new law violation and Ms. Infante’s
corroboration of it by presenting herself at Youngstown
Municipal Court the next day is evidence that I can
consider in the punishment I will issue today. But I find
explicitly that you violated your term of supervision by
possessing a weapon.
95a
Appendix A
I will allow you to allocute now, and then I will respond
by imposing consequences. You have the opportunity to
speak if you would like to be heard.
[82](Discussion held off the record between the
defendant and Mr. Grostic.)
THE DEFENDANT: I really ain’t got -- I ain’t got
that much to say. If -- it’s -- I don’t.
THE COURT: You choose not to allocute?
THE DEFENDANT: What can I say if you -- I just
don’t.
MR. GROSTIC: Okay. If I could have one moment,
Your Honor.
THE COURT: Certainly.
(Discussion held off the record between the defendant
and Mr. Grostic.)
MR. GROSTIC: Your Honor, after discussion, which
I appreciate the Court’s indulging me, Mr. Esteras has
confirmed with me that he does not want to say anything
further.
THE COURT: Certainly.
That’s fine, Mr. Esteras. You’ve been before a federal
judge at least three times facing a sentencing. The first
96a
Appendix A
time was my colleague, Judge Polster. The last time was
me. This time is also me meting out a sentence.
So I understand that you understand the right you
have and the right you give up. You have been under a
term of supervised release at least twice. When I imposed
sentence upon you the last time, I sentenced you for
the [83]commission of the crime that was on my docket,
conspiracy to distribute heroin, and I also sentenced you
for the violation of the earlier term of supervision imposed
that you were under when you were indicted in the new
case then on my docket, and that was possession with
intent -- conspiracy to possess with intent cocaine and
cocaine base.
So you are no stranger to law violations and no
stranger to federal court. My worry for you, sir, is that
what’s been done before isn’t sufficient enough to deter
you, to encourage you to be respectful of the law, to be
law-abiding.
Even things I heard in the video that were repeated
today, it appears that you assault that household regularly.
That you argue in a violent way with Ms. Infante regularly.
I am not really sure what it will require for you to learn
that enough is enough. You were given probation by Judge
Polster. I imposed two rather lenient sentences, 15 months
on that term of supervision violation for Judge Polster;
for my own case, 12 months. I ran them consecutively. I
thought 27 months might encourage you to do better.
It was with some reluctance, a great deal actually, that
I even suspended the GED qualification, thinking that
97a
Appendix A
perhaps if you were to become better educated, prove to
yourself and others that you can read and write at [84]at
least a high school level, you might begin to see yourself
as something other than a law violator, someone who hits
women, someone who disturbs children in the middle of
the night.
My reading of the police report is that Officer DiMaiolo
was at that household at about 3:28 a.m. on a school night.
Late January. Vacation is over. There were school-aged
persons in that video, and yet they were awake -- not all
of them were school-aged, of course -- because you had
assaulted the car and the household with your intentions
and broken the TV.
One of the youngsters said, “I was scared. Now I
can’t watch TV.” That might seem insignificant to you, but
children shouldn’t grow up afraid of what their father or
their mother’s boyfriend might do to them at night.
When I consider the guidance given to us by Officer
Zakrajsek that I’ve confirmed with you, is not objected to,
and in my opinion is correct, you are subject, pursuant to
the advisory guidelines, to 6 to 12 months. We know that
your offense that’s brought you here on my docket carries
a lifetime of supervision.
Having found that you are in violation of that term of
supervised release by the preponderance of the evidence,
I must escalate the consequences imposed. And I do here
impose escalated consequences by exercising my [85]
discretion to vary upwards, above even the high end of
the advisory guidelines, because your behavior is not
98a
Appendix A
average, it’s not typical, it’s not mine run, it’s exceptional.
It’s disrespectful. It’s dangerous. And it must stop.
And if you cannot stop yourself, I will separate you
from society for long enough to at least allow you to
reconsider your behavior. And hopefully when you return
under the new term of supervision that I will impose, you
will do better. You will think before you act. And you will
understand that never possessing a weapon or dangerous
device or a single bullet is meant for you for the rest of
your natural life.
Please listen as I formally impose consequences.
I revoke your term of supervised release. I hereby
impose a term of incarceration of 24 months. A new
term of supervised release of three years. Every term of
supervised release that I imposed earlier, the last time I
sentenced you in September of 2018, is reimposed unless
it’s been met. For instance, I don’t require you to obtain a
GED again. If you’ve paid your special assessment, that’s
satisfied.
But every other term, including substance abuse
treatment and testing, a search and seizure provision,
mental health treatment are the ones I am listing simply
because I believe they have likely not been met. And if
-- [86]I mean, likely are those that are capable of being
repeated and shall be repeated.
And I am adding a new one. I am adding, for the
first six months of your release -- keep in mind, I can
99a
Appendix A
incarcerate you for up to three years. I have stopped at 24
months. But once you’re released to start this new threeyear term of supervised release, for the first six months,
you are going to be on location monitoring with a curfew.
Mr. Zakrajsek, Mr. Esteras goes nowhere without the
explicit permission of his supervising probation officer.
He shall only live at a place approved by the probation
office. Make sure there are no weapons there. If he’s
unable to find such a place, then he’ll start his term of
release by living in a residential reentry center until he
has enough money to pay his own rent and live in a place
that is suitable.
I order that this curfew allow him to work, to attend
to medical appointments as necessary, and to only be in
the presence of the victim and the minor children who live
with him with the permission of the supervising probation
officer.
Is all of that clear, Mr. Esteras?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Sir, I have revoked your term of [87]
supervised release. You have a new term -- a new ability
to appeal the sentence that I have imposed. There is still
the limit. You’ve heard this before. It remains 14 days from
the date on which I reduce to writing the sentence I’ve
imposed. If you allow that 14-day period to go by without
filing a notice of appeal, you may have forever waived your
appellate rights.
100a
Appendix A
Mr. Grostic, will you speak with your client about his
appellate rights?
MR. GROSTIC: Yes, Your Honor.
THE COURT: Should he ask you to do so, will you
timely file a notice of appeal for him?
MR. GROSTIC: Yes, Your Honor.
THE COURT: You should know, Mr. Esteras, as you
likely do, if you cannot afford counsel, just like you do not
pay Mr. Grostic or his office, counsel will be appointed to
represent you free of charge. So that should not be the
reason you don’t timely file a notice of appeal.
Do you understand that?
THE DEFENDANT: (Nodding head up and down.)
Yes, Your Honor.
THE COURT: Mr. Zakrajsek, you have heard me
reimpose conditions that are obviously not completed
and are capable of being repeated, and I believe will
be of assistance to Mr. Esteras when he returns to the
community. [88]And I have added six months of location
monitoring with a curfew.
Is there anything else you’d like me to consider at
this time?
101a
Appendix A
OFFICER ZAKRAJSEK: Your Honor, I would
like to petition the Court to consider possibly an anger
management program as well due to his anger issues.
THE COURT: Thank you. I think that’s an excellent
suggestion.
So in the past, Mr. Esteras, I have ordered that you
be subjected to mental health treatment. I am ordering
that again. It will start with an evaluation. Part of the
treatment you’ll undergo after that evaluation will be
anger management.
If you do behave in the way that the violation that’s
brought you to court seems to indicate is a regular
occurrence, you must learn to control yourself or you are
likely going to do something that is going to separate you
from society for a much longer period than just 24 months.
So I do impose, as a component of mental health, anger
management.
What else, Mr. Zakrajsek?
OFFICER ZAKRAJSEK: Nothing further, Your
Honor.
Thank you.
THE COURT: Thank you for your work in this case.
[89]Mr. Joyce, what do you believe I can do to improve
the terms of Mr. Esteras’s three years of supervised
release?
102a
Appendix A
MR. JOYCE: Your Honor, I believe the conditions
that you have outlined here, with the addition from -- the
additional recommend by Mr. Zakrajsek are appropriate,
and I would offer nothing additional. Thank you.
THE COURT: Your objection to the sentence imposed,
Government’s Counsel.
MR. JOYCE: I have no objection, Your Honor.
THE COURT: Mr. Grostic, why don’t I start by asking
you what you think I can do to improve the conditions
of supervised release. Of course, all of the mandatory,
standard, and the conditions I’ve just outlined are those
that fall under special conditions.
MR. GROSTIC: (Nodding head up and down.)
THE COURT: Thank you for nodding that you
understood that. If there are any others that you
believe I should impose that will assist your client or
impose in a different way, like Mr. Zakrajsek suggested
regarding refining mental health, it’s not limited to anger
management, but that’s now a specific component, is there
anything else you’d suggest?
MR. GROSTIC: I don’t believe so, Your Honor, as far
as conditions of supervised release.
[90]We would ask, as part of the custodial sentence,
for a recommendation close to home.
103a
Appendix A
THE COURT: And close to home, meaning here in
the Northern District of Ohio?
MR. GROSTIC: Yes.
THE COURT: I will make that recommendation.
Where were you housed during your last term of
incarceration, Mr. Esteras?
THE DEFENDANT: Hazelton.
THE COURT: Hazelton. I don’t know what the policy
of the Bureau of Prisons is regarding sending you back
to a place where you’ve been. If there is no prohibition, if
they were to send you back to Hazelton, is that something
you’d like me to ask for, or would you rather something
even closer to home, such as Elkton?
THE DEFENDANT: Yeah, closer to home.
THE COURT: More like Elkton than Hazelton?
THE DEFENDANT: Yes, ma’am.
T H E C OU RT : A l l r i ght . I w i l l m a ke t h at
recommendation.
What else? What other recommendations, if there are
any, Mr. Grostic?
104a
Appendix A
MR. GROSTIC: May I have one moment, Your Honor?
THE COURT: Certainly.
(Discussion held off the record between the defendant
[91]and Mr. Grostic.)
MR. GROSTIC: Your Honor, Mr. Esteras would also
request that the Court recommend that he be evaluated
for placement in any applicable drug treatment program,
as well as any applicable behavioral management or mental
health treatment program for which he might qualify.
THE COURT: Thank you. I will make both of those
recommendations as well.
My belief, Mr. Esteras, is that a 24-month term, while
longer than one you would like, I’m sure, is not long enough
for the most intensive drug treatment program, but I am
sure there are others that may be helpful to you. And I
hope that along with my recommendation, you will sign up
and apply yourself to any programs that you’re admitted.
And I will recommend those for behavioral management
and drug treatment.
What else, if anything else? I am open to adopting
whatever you recommend if it will help Mr. Esteras.
MR. GROSTIC: No, nothing further, Your Honor.
Thank you.
105a
Appendix A
THE COURT: Your objection to the sentence imposed
on behalf of your client, Mr. Grostic.
MR. GROSTIC: Your Honor, I believe the Court
indicated that it considered factors -- the factor in Section
3553(a)(2)(A) as part of its sentence. I have [92]objected to
that in the past. I am aware that actually the Sixth Circuit
has held that that is something the Court can consider, but
I would simply like to lodge that objection for the record.
THE COURT: Mr. Grostic, when you specify Section
3553(a)(2)(A), are you referring to underneath -- (2) is the
need for the sentence to be imposed, correct? You are
specifically objecting to, “to reflect the seriousness of the
offense, to promote respect for the law, and provide just
punishment for the offense,” that’s what you’re directing
your objection to?
MR. GROSTIC: That’s correct, Your Honor.
THE COURT: To any one of those three subfactors
or all of them?
MR. GROSTIC: All of them, yes.
THE COURT: Well, I would agree with you, part of
my contemplation certainly is the need for the sentence
imposed, to promote respect for the law. I mentioned
deterring Mr. Esteras as well. I also meant, and I think
it’s fair for you to infer, concern about the safety of the
community, which is later beyond (a)(2). And I specifically
referenced the ability even to depart or, pardon me, vary
106a
Appendix A
upwards to separate Mr. Esteras from the average,
typical, mine run-type defendant.
So I think I have sufficiently addressed what your [93]
objection is, and you are entitled to it.
I will add just one other point. If it enlarges your
objection, you will be able to tell me.
When I told counsel earlier that this is a 104(a) hearing,
under the rules of evidence, that they’re suspended, I still,
being a student of the rules of evidence, it is hard to put
them out of your mind. And even though I am not obligated
to explicitly make calls on matters, objections, sustain,
overrule them, I still try to hew closely to considering
evidence in a way that makes sense when the rules of
evidence are considered.
And I want the record to reflect that when I did that,
and I suspect Mr. Grostic might have been doing this as
well, I kept in mind Rule of Evidence 803. Rule of Evidence
803 is one of those rules that outlines exceptions to the
rules against hearsay, and it explicitly says, “Regardless
of whether a declarant is available as a witness, Judge,
you can consider certain things.”
And these are things that are well established to
be truthful, or more likely than not, I should say, to
be truthful, credible. And they include present sense
impressions, statements made while explaining an event
or condition, those statements made immediately after
the declarant perceived it.
107a
Appendix A
So like those statements, Mr. Esteras, that [94]Ms.
Infante made as soon as Officer DiMaiolo showed up, I
considered, because I believe, as Mr. Joyce said, she was
her most credible at those moments.
“Excited utterance, a statement relating to a startling
event or condition made while the declarant was under the
stress of the excitement that it caused.”
Those folks in that house, the youngster, the woman
with the box braids, the two young women who were
standing on either side of Ms. Infante, one of whom was
the one who said, “I was scared. I can’t watch TV.” The
other said, “Why he point a gun at us?” I considered those
excited utterances and found them to be credible.
“ Then existing mental, emotional, or physical
condition” is another one of those categories that has sort
of a threshold, a built-in credibility. I don’t have to accept
them, but I use that as a way to cabin what I was hearing
on the witness stand compared to what I had heard in
that video.
So I used those things, Mr. Grostic. And I think that
was part of the argument made by Mr. Joyce to corroborate
what I heard on the video and to discredit what I heard
from Ms. Infante during most of her testimony. There
were nuggets of truth, very few of them. Most of the time
she made up answers purposefully to distinguish today’s
testimony from what we saw in the video.
[95]If you’d like to enlarge your objection, you have
every right to and I’ll allow it, please.
108a
Appendix A
MR. GROSTIC: No, nothing further, Your Honor.
Thank you.
THE COURT: Thank you.
Thank you for the work you’ve done, Counselors, in
making a full record.
Mr. Esteras, I meant it when I said earlier that I
am proud of you for earning your GED. That told me,
even after you knew you were not obligated to do it, you
persisted and you did it.
My hope is you’ll give some thoughts to your condition,
your own circumstances, your role in these conditions
and circumstances, and you will continue despite what
you think anyone thinks about you, go forward, improve
yourself and have a better life. I still believe you can do
that.
I could have given you the three years. I have not. I
have given you what I have given you. You have earned
what I have given you. But my hope is you’ll go forward.
The three years of supervised release won’t only be
punitive. Meaning the location monitoring with the curfew
is meant to restrict your freedom, make sure you’re not
doing things that you and I will regret. But the terms,
the anger management, the other terms that are there
are [96]there to bolster you, help you to do better going
forward. You are still a young man. I hope you will choose
a different lifestyle.
109a
Appendix A
The hearing is adjourned.
THE CLERK: All rise.
(Proceedings concluded at 5:28 p.m.)
110a
B THE UNITED
APPENDIX B —Appendix
ORDER OF
STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OHIO, EASTERN DIVISION,
FILED MAY 9, 2023
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Case No. 4:14-CR-425-10
UNITED STATES OF AMERICA,
Plaintiff,
v.
EDGARDO ESTERAS,
Defendant.
Filed May 9, 2023
ORDER
On September 6, 2018, Defendant Edgardo Esteras
was sentenced to a 12-month term of incarceration as to
Count 1 of the Indictment for conspiracy to distribute
heroin, such term to be served consecutively to the
15-month term of incarceration imposed for the probation
violation in Case No. 4:11-CR-276-12-DAP, followed by a
six-year term of supervised release, with standard and
special conditions of supervision imposed. Defendant was
further ordered to pay a $100.00 special assessment.
111a
Appendix B
Follow ing Defendant’s ter m of incarceration,
supervised release commenced on January 10, 2020.
On or about February 20, 2020, the United States
Probation Office (“USPO”) submitted a Supervision
Report to request a suspension of the GED condition:
This report serves to request a suspension
of the General Education Diploma (GED)
condition. Before incarceration, Mr. Esteras
was diagnosed with an intellectual development
disorder indicating difficulty with reading,
writing, and comprehension. The undersigned
officer has had multiple conversations with
Mr. Esteras regarding the condition. Mr.
Esteras has expressed a willingness to work
toward obtaining his GED, but disclosed that
he has tried and does not think he is capable of
comprehending the material.
On July 20, 2020, the Court ordered suspension of the
GED requirement under the circumstances described.
On or about September 19, 2022, the USPO issued a
Supervision Report to relay a request from Defendant for
early termination of his term of supervised release.
On September 21, 2022, the Court denied Defendant’s
request for early termination of supervised release,
without prejudice to another request being considered at
a later time.
112a
Appendix B
On or about January 23, 2023, the USPO issued
a Violation Report to notify the Court of Defendant’s
violation of the terms and conditions of his supervised
release:
-New Criminal Charges (filing is pending with
Youngstown Municipal Court)
-Violent Conduct
-Whereabouts Unknown (Absconder)
On January 23, 2023, at 0003 hours, Officers
with the Youngstown Police Department
were dispatched to 1137 Inverness Avenue
in Youngstown in reference to gunfire. Upon
arrival, contact was made with the victim, who
advised the father of her children, Edgardo
Esteras, had physically assaulted her and
threatened to kill her. At approximately 2350
hours, Mr. Esteras stormed into the residence,
struck the victim in the head, punched a
television set, and then stormed outside of the
residence. The victim followed Mr. Edgardo out
of the residence who was now inside a vehicle.
The victim reached inside the vehicle to grab
Mr. Esteras car keys, at which time he produced
a handgun and pointed it at the victim and
stated, “I’m going to kill you”. At this time, the
victim retreated inside the residence at which
time Mr. Esteras fired three rounds into her
vehicle, an Infiniti JX35, which was located in
113a
Appendix B
the driveway of the residence. Mr. Esteras then
fled the scene in a Black Chevy Blazer with an
unknown registration.
Officers recovered spent 9mm shell casings and
observed three bullet holes in the side of MI’s
vehicle, as well as a broken television set. The
victim refused medical treatment but did advise
she wished to file charges of domestic violence
against Mr. Esteras. The victim further
advised that Mr. Esteras frequently assaults
her, and she has had enough. The Youngstown
Police Department is currently pursuing
charges of Domestic Violence, Illegal Discharge
of a Firearm, and Vehicular Vandalism. Formal
charges have not been officially filed and Mr.
Esteras remains at large as of the time of this
report.
On January 23, 2023, the Court ordered the
issuance of a Warrant for Defendant’s arrest.
On or about January 30, 2023, the USPO issued a
Follow Up Violation Report to provide an update to the
Court on Defendant’s violations:
1. New Law Violation: On January 23, 2023,
Mr. Esteras was charged with Domestic
Violence (M1), Aggravated Menacing (M1),
and Criminal Damaging/Endangering (M2)
in the Youngstown Municipal Court under
case number 2023CRB00121.
114a
Appendix B
2. Possession of a Firearm: On January 23,
2023, Mr. Esteras did have in his possession
or under his control a firearm.
Defendant was arrested and appeared before
Magistrate Judge Amanda M. Knapp on January 31,
2023 for an initial appearance. On February 6, 2023,
Magistrate Judge Knapp conducted preliminary and
detention hearings. The Court found that probable cause
existed for the violations, and additional proceedings
would be conducted by the undersigned. Defendant was
remanded to the custody of the U.S. Marshals Service.
On or about March 14, 2023, the USPO issued a
Supplemental Information Report to provide an update
to the Court regarding the status of Defendant’s state
charges:
On January 22, 2023, Mr. Esteras was charged
with Domestic Violence (M1), Aggravated
Menacing (M1), and Criminal Damaging (M2)
in the Youngstown Municipal Court under case
number 2023CRB00121Y. On February 22,
2023, all charges were dismissed at request of
the victim.
On April 18, 2023, the Court conducted a Supervised
Release Violation Hearing and Sentencing, at which time
Defendant denied Violation Numbers 1 and 2. Officer
Robert DiMaiolo testified on direct examination by the
Government, with cross examination by the defense. The
Government played a bodycam video (Exhibit 5) of the
115a
Appendix B
victim and her family’s early morning interactions with
law enforcement officers shortly after the above referenced
crimes occurred.1 During those recorded interactions, no
one indicated a perpetrator other than Defendant. The
alleged victim testified that, after that early morning
interaction with law enforcement, she went to municipal
court and reported Defendant as the perpetrator of the
crimes. Despite the strong evidence against Defendant,
the victim attempted (unpersuasively) to recant, when
examined on direct examination by defense counsel. The
Government effectively cross examined the victim and
submitted Government’s Exhibits 1 through 5, which
were admitted without objection. The Court found by a
preponderance of the evidence that Defendant possessed
a firearm, in violation of the terms of his supervised
release, sustaining Violation No. 2. The Court proceeded
to pronounce sentence after allocution.
SENTENCING
Among other things, the Court has considered the
evidence presented at the violation hearing, statutory
maximum penalties pursuant to 18 U.S.C. § 3583(e)(3);
the advisory policy statements set forth in Chapter Seven
of the United States Sentencing Guidelines; and the
suggested range of incarceration pursuant to U.S.S.G.
§ 7B1.4(a). Furthermore, the Court has considered the
factors and conditions for sentencing listed in 18 U.S.C.
§ 3553(a) and 3583(d), respectively.
1. The video revealed a household of individuals of myriad
ages joining the victim in recounting Defendant’s visit to the home
during which he discharged a firearm into the victim’s car, forcibly
broke the household’s television and punched the victim in the neck.
116a
Appendix B
Based upon the Court’s review and for the reasons set
forth on the record, Defendant’s term of supervised release
is revoked. The Court varied upwards and imposed a term
of incarceration of 24 months, for among other reasons, to
protect society and promote respect for the law. The Court
recommends that Defendant be designated to a facility
close to his home, such as FCI Elkton, Lisbon, OH, and
be permitted to participate in any drug treatment and
anger management/behavioral programs. Upon release,
Defendant shall serve a three-year term of supervised
release, with all uncompleted conditions of supervised
release remaining imposed. The first six months of his
supervised release shall be on location monitoring with a
curfew. Defendant is prohibited from contacting the victim
or her children without permission from his supervising
officer. The special condition of mental health treatment
is reimposed to include an anger management component.
IT IS SO ORDERED.
May 9, 2023
/s/ Benita Y. Pearson
Date Benita Y. Pearson
United States District Judge
117a
C THE UNITED
APPENDIX C —Appendix
ORDER OF
STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT, FILED AUGUST 16, 2023
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 23-3422
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDGARDO ESTERAS,
Defendant-Appellant.
Filed August 16, 2023
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO
ORDER
Before: SUTTON, Chief Judge; WHITE and THAPAR,
Circuit Judges.
Edgardo Esteras appeals the district court’s order
revoking his supervised release and sentencing him to
24 months of imprisonment. The parties have waived oral
argument, and this panel unanimously agrees that oral
118a
Appendix C
argument is not needed. See Fed. R. App. P. 34(a). As
set forth below, we affirm the district court’s revocation
order.
In 2018, Esteras pleaded guilty to conspiring to
distribute and possess with intent to distribute heroin,
in violation of 21 U.S.C. §§ 841(a)(1) and 846. Varying
downward from a guidelines range of 15 to 21 months,
the district court sentenced Esteras to 12 months of
imprisonment, to be served consecutively to a 15-month
prison term for violating his probation for a prior federal
drug-trafficking conviction, followed by six years of
supervised release.
Estera’s six-year term of supervised release began
in January 2020. Three years later, in January 2023, the
probation office reported to the district court that Esteras
had violated the conditions of his supervised release by
(1) committing new law violations (domestic violence,
aggravated menacing, and criminal damaging) and (2)
possessing a firearm. The probation office subsequently
notified the district court that the new criminal charges
against Esteras had been dismissed at the victim’s
request.
Following a hearing on the supervised-release
violations, the district court found by a preponderance
of the evidence that Esteras had possessed a firearm
but declined to find that he had committed a new law
violation. The district court revoked Esteras’s supervised
release and sentenced him to 24 months of imprisonment,
varying upward from a policy-statement range of six to
119a
Appendix C
12 months, followed by three years of supervised release.
Esteras objected to the district court’s consideration of the
factors set forth in 18 U.S.C. § 3553(a)(2)(A)—“the need
for the sentence imposed . . . to reflect the seriousness
of the offense.” The district court confirmed that it had
considered the need to promote respect for the law along
with other § 3553(a) factors, including the need to afford
adequate deterrence and protect the public.
In this timely appeal, Esteras argues that his
sentence is unreasonable because the district court relied
on the factors listed in § 3553(a)(2)(A). The statutory
provision addressing revocation of supervised release,
18 U.S.C. § 3583(e), provides that, if a defendant violates
a condition of supervised release, the district court may,
after considering certain enumerated factors set forth
in § 3553(a), revoke the defendant’s supervised release
and impose an additional prison term. But § 3583(e) does
not include the § 3553(a)(2)(A) factors among the list of
enumerated factors. Nonetheless, as Esteras concedes,
we have held “that it does not constitute reversible error
to consider § 3553(a)(2)(A) when imposing a sentence for
violation of supervised release, even though this factor is
not enumerated in § 3583(e).” United States v. Lewis, 498
F.3d 393, 399-400 (6th Cir. 2007). Esteras contends that
Lewis was wrongly decided. But we “may not overrule
the decision of another panel; only the en banc court or
the United States Supreme Court may overrule the prior
panel.” United States v. Ferguson, 868 F.3d 514, 515 (6th
Cir. 2017).
120a
Appendix C
Because Esteras’s only argument is foreclosed by our
precedent, we AFFIRM the district court’s revocation
order.
ENTERED BY ORDER OF THE COURT
/s/ Deborah S. Hunt
Deborah S. Hunt, Clerk
121a
Appendix D ORDER OF THE
APPENDIX D — AMENDED
UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT, FILED DECEMBER 20, 2023
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 23-3422
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDGARDO ESTERAS,
Defendant-Appellant.
Decided and Filed: December 20, 2023*
AMENDED ORDER
Before: SUTTON, Chief Judge;
WHITE and THAPAR, Circuit Judges.
SUTTON, C.J., delivered the order of the court in
which THAPAR, J., joins in full. WHITE, J., joins in the
result because she agrees that United States v. Lewis,
498 F.3d 393 (6th Cir. 2007) is controlling.
*This decision originally issued as a judge order on August
16, 2023. The court has now designated the amended order for
publication.
122a
Appendix D
SUTTON, Chief Judge. Edgardo Esteras appeals
the district court’s order revoking his supervised release
and sentencing him to 24 months in prison. We affirm the
district court’s revocation order for the reasons that follow.
In 2018, Esteras pleaded guilty to conspiring to
distribute and possess with intent to distribute heroin
in violation of 21 U.S.C. §§ 841(a)(1) and 846. Varying
downward from a guidelines range of 15 to 21 months,
the district court sentenced Esteras to 12 months of
imprisonment, to be served consecutively with a 15-month
prison term for violating his probation for a prior federal
drug-trafficking conviction, followed by six years of
supervised release.
Esteras’s six-year term of supervised release began
in January 2020. Three years later, in January 2023,
the probation officer reported to the district court that
Esteras had violated the conditions of his supervised
release (1) by committing domestic violence, aggravated
menacing, and criminal damaging, and (2) by possessing
a firearm. The probation officer notified the district court
that the new criminal charges against Esteras had been
dismissed at the victim’s request.
Judge Benita Y. Pearson conducted a hearing and
found that Esteras possessed a firearm while under
supervised release. She “worr[ied]” that her previous
sentences for drug crimes and violating an earlier
supervised release term failed “to deter [Esteras], to
encourage [him] to be respectful of the law.” R.439 at 83.
Based on his “dangerous” and “disrespectful” behavior,
123a
Appendix D
she varied upward from an advisory range of six to twelve
months to impose a 24-month jail sentence, “long enough
to at least allow [Esteras] to reconsider [his] behavior.”
Id. at 85. She added three years of supervised release to
the sentence, including an anger management class and
six months of location monitoring. These conditions, Judge
Pearson explained, would teach him to “do better” and
“think before [he] act[s].” Id.
Esteras objected that the court should not have
considered the three subfactors identified in 18 U.S.C.
§ 3553(a)(2)(A) when crafting its sentence: “to reflect the
seriousness of the offense, to promote respect for the law,
and provide just punishment for the offense.” Id. at 92.
Judge Pearson agreed that “part of [her] contemplation
certainly is the need for the sentence imposed, to promote
respect for the law.” Id. But she added that she also
considered deterrence and community safety, which
appear in other statutory provisions. She also referenced
her decision to vary upward “to separate Mr. Esteras
from the average, typical, mine run-type defendant.” Id.
In closing the hearing, Judge Pearson expressed hope
that Esteras would take advantage of this opportunity. She
acknowledged that some of the conventional features of
supervised release could be seen as partly “punitive,” such
as location monitoring and other measures that “restrict
[his] freedom” of movement. Id. She then referred to other
terms, such as anger management, as “there to bolster
[him]” and “help [him] to do better going forward.” Id.
at 95-96.
124a
Appendix D
On appeal, Esteras challenges his sentence on the
ground that the district court relied on prohibited factors
in sentencing him. We disagree.
Congress has authorized district courts to revoke
supervised release. See 18 U.S.C. § 3583(e). In some
settings, district courts have discretion to revoke,
modify, or decrease a term of supervised release. Id. In
other settings, as when a parolee possesses a weapon
as Esteras did here, the district court must revoke the
individual’s supervised release. Id. § 3583(g). Whether at
the outset of sentencing an individual, in the context of a
modified term of supervised release, or in the context of
a required revocation of supervised release, Congress has
directed courts to consider certain factors. In the words
of Congress under the heading “Factors to be considered
in including a term of supervised release”: “The court . . .
consider[s] the factors set forth in section 3553(a)(1), (a)(2)
(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” Id.
§ 3583(c); see also id. § 3583(e) (similar for “modification
of conditions or revocation” of supervised release).
To bring this provision into full view, here is a full
recitation of § 3553(a) that italicizes the factors that
district courts need not consider in supervised-release
determinations:
The court shall impose a sentence sufficient,
but not greater than necessary, to comply
with the purposes set forth in paragraph (2)
of this subsection. The court, in determining
the particular sentence to be imposed, shall
consider—
125a
Appendix D
(1) the nature and circumstances of the
offense and the history and characteristics
of the defendant;
(2) the need for the sentence imposed—
(A) to ref lect the seriousness of the
offense, to promote respect for the law,
and to provide just punishment for the
offense;
(B) to afford adequate deterrence to
criminal conduct;
(C) to protect the public from further
crimes of the defendant; and
(D) to provide the defendant with needed
educational or vocational training,
medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing
range established for—
(A) the applicable category of offense
committed by the applicable category of
defendant as set forth in the guidelines—
126a
Appendix D
(i) i s s ue d by t he S e nt e n c i n g
Commission pursuant to section
994(a)(1) of title 28, United States
Code, subject to any amendments
made to such guidelines by act of
Congress (regardless of whether
such amendments have yet to be
incorporated by the Sentencing
Commission into amendments issued
under section 994(p) of title 28); and
(ii) that, except as provided in section
3742(g), are in effect on the date the
defendant is sentenced; or
(B) in the case of a violation of probation
or supervised release, the applicable
g u ide l i ne s or p ol ic y st at e ment s
issued by the Sentencing Commission
pursuant to section 994(a)(3) of title
28, United States Code, taking into
account any amendments made to such
guidelines or policy statements by act of
Congress (regardless of whether such
amendments have yet to be incorporated
by the Sentencing Commission into
amendments issued under section 994(p)
of title 28);
(5) any pertinent policy statement—
127a
Appendix D
(A) issued by the Sentencing Commission
pursuant to section 994(a)(2) of title
28, United States Code, subject to
any amendments made to such policy
statement by act of Congress (regardless
of whether such amendments have yet
to be incorporated by the Sentencing
Commission into amendments issued
under section 994(p) of title 28); and
(B) that, except as provided in section
3742(g), is in effect on the date the
defendant is sentenced.
(6) the need to avoid unwarranted sentence
disparities among defendants with similar
records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any
victims of the offense.
Invoking the italicized language, Esteras claims
that § 3583(c) and (e) create a divide between permitted
and forbidden supervised-release considerations. As
he sees it, a district court judge who considers the
forbidden factors—“the seriousness of the offense,”
“respect for the law,” “just punishment for the offense,”
or “the kinds of sentences available”—necessarily
imposes a procedurally unreasonable sentence. Notably,
this argument applies to original supervised-release
128a
Appendix D
decisions, which come immediately on the heels of any
prison-sentence determination under all of the § 3553(a)
factors, see 18 U.S.C. § 3583(c), as well as to any revocation,
modification, or reduction determinations with respect to
supervised release, see id. § 3583(e), (g).
United States v. Lewis rejected this argument. 498 F.3d
393, 399-400 (6th Cir. 2007). It provided two explanations:
one textual, one contextual. Textually, Lewis observes
that § 3583 generally gives courts considerable discretion
over supervised-release decisions after considering the
listed factors. Id. at 400. It never says that the court may
consider “only” those factors. Id. Congress, as it happens,
knew how to instruct courts not to consider certain
sentencing factors, as shown in its express command to
disregard the goal of rehabilitation when imposing prison
time. 18 U.S.C. § 3582(a) (“recognizing that imprisonment
is not an appropriate means of promoting correction or
rehabilitation”).
In the context of supervised-release decisions,
moreover, Lewis was concerned that this proposed
bright-line rule was unworkable. Whether in the context
of an initial or later supervised-release decision, the
purportedly forbidden considerations mentioned in
§ 3553(a)(2)(A) tend to be “essentially redundant” with the
permitted ones. Lewis, 498 F.3d at 400. Take § 3553(a)(2)
(A)’s consideration about the “seriousness of the offense.”
It aligns with § 3553(a)(1) and its emphasis on “the nature
and circumstances of the offense.” To think about the one
requires the judge to think about the other.
129a
Appendix D
Or take § 3553(a)(2)(A)’s consideration of the need “to
promote respect for the law.” It meshes with the rationale
that revoking supervised release will “help” the defendant
“learn to obey the conditions of his supervised release.”
Id. (quoting Johnson v. United States, 529 U.S. 694, 709,
120 S. Ct. 1795, 146 L. Ed. 2d 727 (2000)). Indeed, in this
case, Judge Pearson quite understandably could not see
how she could ignore respect for the law but consider
a defendant’s need to respect the terms of supervised
release. To neglect the one dishonors the other.
Or take § 3553(a)(2)(A)’s reference to “just punishment
for the offense.” Under § 3553(a)(5), courts must consider
“any pertinent policy statement” of the Sentencing
Commission. Among other guidance, the Commission
tells judges to “sanction the violator for failing to abide
by the conditions of the court-ordered supervision.” Id.
(quoting U.S.S.G. ch. 7 pt. A § 3(b)). The district court,
in other words, must craft a remedy that corresponds
to how severely the defendant has breached the court’s
trust as “embodied by the original sentence,” which it
cannot do without accounting for the conduct that violated
supervised release. United States v. Johnson, 640 F.3d
195, 204 (6th Cir. 2011). Another enumerated factor tells
a court how to carry out that analysis. Under § 3553(a)(4)
(B)’s command to consult the Sentencing Commission’s
supervised-release guidelines, a court first classifies
how “serious” these violations are and then uses the
categorization to determine the length of any prison
sentence. U.S.S.G. §§ 7B1.1, 7B1.3, 7B1.4.
130a
Appendix D
Esteras’s bright-line rule is unworkable in another
way. Recall that Congress requires courts to consider
the same set of factors when first imposing a term of
supervised release as when revoking one. 18 U.S.C.
§ 3583(c), (e). Under Esteras’s rule, if Congress forbade
district courts from considering anything related to
§ 3553(a)(2)(A) at a revocation hearing, it would not
permit use of anything related to those factors at an
initial sentencing either. How would this work? Would
the sentencing judge have to adjourn the hearing after
imposing a sentence? Then, would she have to start over
with a new unblemished inquiry into the right term of
supervised release without any consideration, explicitly
or implicitly, of considerations related to, say, the “rule of
law”? Congress could not have expected courts to wipe
their minds of these concerns when they move from one
type of sentence to the other, and nothing in the statute
requires such compartmentalization. If anything, the
language points the other way. It specifically allows courts
to account for the length of a supervised-release term
“in imposing a sentence to a term of imprisonment.” Id.
§ 3583(a).
Esteras’s invocation of Tapia v. United States does not
change matters. 564 U.S. 319, 131 S. Ct. 2382, 180 L. Ed.
2d 357 (2011). It did not, most critically, arise under this
statute. The case dealt with a different sentencing law, one
with explicit directions, not uncertain implications. The
statute in no uncertain terms says “that imprisonment is
not an appropriate means of promoting . . . rehabilitation.”
131a
Appendix D
18 U.S.C. § 3582(a). Consistent with that directive, Tapia
ruled that the statute precludes courts from considering
“rehabilitation” when imposing prison time. “Our
consideration of Tapia’s claim,” it reasoned, “starts with
the text of 18 U.S.C. § 3582(a)—and given the clarity of
that provision’s language, could end there as well.” Tapia,
564 U.S. at 326.
In the course of its analysis, it is true, the Court said
in dicta that “a court may not take account of retribution”
when it “impos[es] a term of supervised release.” Id. But
even taken at face value, this reference does not undermine
the district court’s sentence. The provision confirms two
things. First, when the court imposes an initial supervisedrelease term, retribution should not guide the decision.
No one has shown that Judge Pearson did anything of the
sort at that point—and Esteras has not argued otherwise.
Second, if the defendant violates a term of supervised
release or commits a new crime, the government is put to a
choice. If it wishes to exact retribution for the new offense,
new charges and the resulting process that comes with it
are in order. Otherwise, the district court should focus on
non-retributive factors in deciding the new sentence and
the new term of supervised release. But the district court
in this instance did not claim a right to exact retribution
for this violation or for that matter use the word. As shown,
references to other concepts mentioned in § 3553(a)(2) are
hopelessly over-inclusive, and mere references to things
like the “rule of law”—or, worse, concepts that overlap
with it—do not create a procedurally unreasonable
132a
Appendix D
sentence absent evidence that the court was engaged in
imposing a purely retributive sentence. No such evidence
exists here. In fact, Tapia confirms the point. It ruled
for the defendant only after observing that the court’s
“number one thing [was] the need to provide treatment”
and so may have increased the sentence to ensure Tapia
was “in long enough to get the 500 Hour Drug Program.”
Id. at 334 (quotations omitted).
This understanding of § 3583(e) accords with the
analysis of most other circuits and the outcomes of all of
them. The general rule is that courts may invoke factors
related to the three general considerations in § 3553(a)(2)
(A) without creating a procedurally unreasonable sentence.
United States v. Vargas-Davila, 649 F.3d 129, 132 (1st
Cir. 2011) (“Although section 3583(e)(3) incorporates by
reference, and thus encourages, consideration of certain
enumerated subsections of section 3553(a), it does not
forbid consideration of other pertinent section 3553(a)
factors.”); United States v. Williams, 443 F.3d 35, 48
(2d Cir. 2006) (“[Section] 3583(e) cannot reasonably be
interpreted to exclude consideration of the seriousness
of the releasee’s violation, given the other factors that
must be considered.”); United States v. Young, 634 F.3d
233, 240 (3d Cir. 2011) (“[T]he mere omission of § 3553(a)
(2)(A) from the mandatory supervised release revocation
considerations in § 3583(e) does not preclude a court from
taking [the § 3553(a)(2)(A) factors] into account. To hold
otherwise would ignore the reality that the violator’s
conduct simply cannot be disregarded in determining the
133a
Appendix D
appropriate sanction.”); United States v. Webb, 738 F.3d
638, 642 (4th Cir. 2013) (“[A]lthough a district court may
not impose a revocation sentence based predominantly
on [the § 3553(a)(2)(A) factors], we conclude that mere
reference to such considerations does not render a
revocation sentence procedurally unreasonable when
those factors are relevant to, and considered in conjunction
with, the enumerated § 3553(a) factors.”); United States
v. Clay, 752 F.3d 1106, 1108-09 (7th Cir. 2014) (“[T]his
subsection may be considered so long as the district court
relies primarily on the factors listed in § 3583(e) . . . .
[T]here is significant overlap between these factors and
§ 3553(a)(2)(A).”); see also United States v. King, 57 F.4th
1334, 1338 n.1 (11th Cir. 2023) (acknowledging language
in prior cases permitting references to factors that also
appear in § 3553(a)(2)(A)).
Esteras’s argument, notably, does not even work on
its own terms—at least the terms of those circuits that
support some of his reasoning. The circuits that have
described the § 3553(a)(2)(A) factors as impermissible
when used punitively still recognize that they may play
supporting roles in a district court’s analysis. United
States v. Sanchez, 900 F.3d 678, 684 n.5 (5th Cir. 2018)
(“[T]his is not to say that any use of words like ‘punish,’
‘serious,’ or ‘respect’ automatically renders a revocation
sentence void. Mere mention of impermissible factors
is acceptable; to constitute reversible error, our circuit
has said, the forbidden factor must be ‘dominant.’”);
United States v. Porter, 974 F.3d 905, 907 (8th Cir. 2020)
134a
Appendix D
(“Although we have labeled § 3553(a)(2)(A) an improper,
irrelevant, or ‘excluded’ factor, we have not declared its
consideration an error of law and therefore an abuse of
discretion.”); United States v. Simtob, 485 F.3d 1058, 1063
(9th Cir. 2007) (“[A] district court may properly look to
and consider the conduct underlying the revocation as one
of many acts contributing to the severity of the violator’s
breach of trust so as not to preclude a full review of the
violator’s history and the violator’s likelihood of repeating
that history.”); United States v. Booker, 63 F.4th 1254,
1261-62 (10th Cir. 2023) (rejecting the criminal defendant’s
appeal in a plain-error setting and noting that it would
be problematic to rely on a “direct quotation to [two]
factors that may not be considered” and as a result issue
a “retributive” sentence). Even under these decisions,
Judge Pearson acted properly when she considered the
need to promote respect for “the rule of law” alongside
the enumerated § 3553(a) factors. This “highly relevant”
concern clearly speaks to the need to deter Esteras’s
misconduct and protect the public from his disregard of
the rule of law, to say nothing of fulfilling the Sentencing
Guideline’s commentary on sanctioning Esteras for
breaching the court’s trust. Porter, 974 F.3d at 908-09. All
in all, it is highly doubtful that the outcome in this case
would change under any other circuit’s decision.
Last of all, Esteras is concerned that Judge Pearson
used the word “punishment” during the hearing. But this
reference occurred at the beginning of the sentencing
phase of the hearing and simply set the stage. In her
135a
Appendix D
words, “I find that the new law violation” occurred and that
she may “consider” “evidence” of it “in the punishment I
will issue today.” R.439 at 81. This manner of speaking at
the beginning of a sentencing hearing does not remotely
convey an intent to impose a retributive sentence in
the context of a gun-possession violation that required
“punishment”—the revocation of supervised release.
See 18 U.S.C. § 3583(g). Likewise, when the judge later
used the word “punitive” in describing the conditions of
supervised release, R.439 at 95, it was to ensure that
the sentence was not too long—that the “deprivation of
[Esteras’s] liberty” was “no greater . . . than is reasonably
necessary for the purposes set forth” in the enumerated
§ 3553(a)(2) sections, 18 U.S.C. § 3583(d)(2). Surely,
shorthand references to “punitive” or “punishment” in
the context of ensuring a sentence is not too long do not
convey a forbidden focus on retribution.
We AFFIRM the district court’s revocation order.
136a
E THE UNITED
APPENDIX E —Appendix
ORDER OF
STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT, FILED DECEMBER 20, 2023
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Case No. 23-3422
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDGARDO ESTERAS,
Defendant-Appellant.
Decided and Filed: December 20, 2023
On Petition for Rehearing En Banc
United States District Court for the
Northern District of Ohio at Youngstown.
No. 4:14-cr-00425-10—Benita Y. Pearson, District Judge.
ORDER
Before: SUTTON, Chief Judge; WHITE and THAPAR,
Circuit Judges.
The court issued an order denying the petition for
rehearing en banc. MOORE, J. (pp. 3–9), delivered a
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separate opinion dissenting from the denial of the petition
for rehearing en banc. GRIFFIN, J. (pp. 10–11), also
delivered a separate opinion, in which BLOOMEKATZ,
J., joined, dissenting from the denial of the petition for
rehearing en banc.
ORDER
The court received a petition for rehearing en banc.
The original panel has reviewed the petition for rehearing
and concludes that the issues raised in the petition were
fully considered upon the original submission and decision.
The petition then was circulated to the full court. Less
than a majority of the judges voted in favor of rehearing
en banc.
Therefore, the petition is denied.
DISSENT
KAREN NELSON MOORE, Circuit Judge, dissenting
from denial of rehearing en banc.1 The top line of any
1. The court received a petition for rehearing en banc
concerning the original order in this case, which followed binding
Sixth Circuit precedent. The petition for rehearing en banc was
circulated to the entire court, and less than a majority of the judges
voted in favor of rehearing the original order en banc. Following
circulation to the full court of the en banc petition, however, the
panel revised its prior order and circulated it to the en banc court.
En banc rehearing of the prior order was warranted, which is why
I dissent from denial of rehearing en banc. And en banc rehearing
remains warranted now that the panel is issuing an amended
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sentence is generally the term of incarceration. What
catches the eye is how long the defendant will be in
prison, not how long the defendant will remain under
court supervision. But in the federal system, supervised
release—the often years’ long period of court supervision
and restrictions following incarceration—comes with
the specter of more time in a cell. Judges may “revoke”
a defendant’s supervised release if a defendant violates
court-ordered conditions, sending the defendant back
to prison for months or possibly years. After Edgardo
Esteras spent twelve months in federal prison on his
original term of incarceration, the judge in his case
sentenced him to 24 more months in prison—double his
original sentence—for violating conditions of supervised
release. R. 439 (Revocation Tr. at 85:13–21) (Page ID
#2887).
Revocation of supervised release is immensely
impactful, and sometimes carries consequences even
greater than an original term of incarceration. In
sentencing Esteras after revoking his supervised release,
the district court focused on the retributive purpose
of the additional term of incarceration. See, e.g., id. at
81:17–22 (Page ID #2883) (explaining what information
can be considered “in the punishment I will issue today”
(emphasis added)); id. at 83:9–11 (Page ID #2885) (“[W]
order, because that revised decision likewise relies on the same
mistaken precedent. Because both the original and revised orders
rely on United States v. Lewis, 498 F.3d 393 (6th Cir. 2007), I have
addressed both in this dissent from denial of rehearing en banc.
Esteras is of course free to petition for en banc rehearing again,
now that the panel has filed a revised and published decision.
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hat’s been done before isn’t sufficient enough to deter you,
to encourage you to be respectful of the law, to be lawabiding.” (emphasis added)). But the supervised-release
statute tells district courts not to consider punishment
as a purpose when imposing or revoking supervised
release. When defense counsel objected to the district
court’s impermissible consideration of certain statutory
factors embodying retributive purposes, the district court
confirmed that it relied heavily on “promot[ing] respect
for the law” in reaching its sentence, which represented
an upward variance. Id. at 92:16–18 (Page ID #2894). In
effect, there is a real chance that Esteras was essentially
punished twice, raising concerns of a constitutional
dimension and flagrantly violating Congress’s intent
in any event. Our precedent that allows district courts
to consider unenumerated sentencing factors when
revoking supervised release, United States v. Lewis,
498 F.3d 393 (6th Cir. 2007), relies on atextual reasoning
directly contrary to Congress’s purposes. It is an outlier
among the circuits. Our failure today to correct Lewis’s
basic mistakes usurps Congress’s role, runs afoul of
rudimentary principles of statutory interpretation, and
ultimately undermines the purposes of supervised release.
Today’s decision in this case serves only to prolong our
unfortunate adherence to a mistaken precedent.
Today’s opinion defends Lewis on two grounds: “one
textual, [and] one contextual.” Amended Order at 5.
Neither ground supports Lewis or today’s decision. The
statutory text is clear. It directs district judges to take
account of certain sentencing factors, but not others, when
revoking supervised release. Under 18 U.S.C. § 3583(e),
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a court “may, after considering the factors set forth in
section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5),
(a)(6), and (a)(7),” terminate, modify, extend, or revoke a
defendant’s term of supervised release. Notably absent
from this list is § 3553(a)(2)(A), which directs district
courts to consider “the need for the sentence imposed
. . . to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense.” Canons of statutory construction dictate that
this omission was intentional and command district courts
not to take account of the (a)(2)(A) factors when revoking
supervised release. See, e.g., Leatherman v. Tarrant
Cnty. Narcotics Intel. & Coordination Unit, 507 U.S.
163, 168 (1993) (declining to extend Rule 9(b)’s pleading
requirements to complaints alleging municipal liability
because “the Federal Rules do address in Rule 9(b) the
question of the need for greater particularity in pleading
certain actions, but do not include among the enumerated
actions any reference to complaints alleging municipal
liability”); id. (“Expressio unius est exclusio alterius.”);
Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.”
(quoting United States v. Wong Kim Bo, 472 F.2d 720,
722 (5th Cir. 1972))).
Simply put, Lewis and today’s opinion offer no
explanation for why Congress deliberately chose to include
some, but not all, of the § 3553(a) factors in § 3583(e).
Today’s opinion declares that § 3583 “generally gives
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courts considerable discretion over supervised-release
decisions after considering the listed factors.” Amended
Order at 5 (citing Lewis, 498 F.3d at 400). But neither
Lewis nor the instant opinion can ground this contention in
the statutory text. Rather, § 3583(e) explicitly constrains
the exercise of discretion, directing district courts to focus
on only the enumerated factors. Had Congress wished
for district courts to consider the § 3553(a)(2)(A) factors,
it would have made § 3583(e) coterminous with § 3553(a).
Congress did not. See Azar v. Allina Health Servs., 587
U.S
, 139 S. Ct. 1804, 1813 (2019) (explaining that
courts should not rely on the “doubtful proposition that
Congress sought to accomplish in a ‘surpassingly strange
manner’ what it could have accomplished in a much more
straightforward way” (quoting RadLAX Gateway Hotel,
LLC v. Amalgamated Bank, 566 U.S. 639, 647 (2012))).
The context follows from the text. In Tapia v.
United States, the Supreme Court explained that 18
U.S.C. § 3553(a)(2)(A)–(D) reflects “the four purposes
of sentencing generally”: “retribution, deterrence,
incapacitation, and rehabilitation.” 564 U.S. 319, 325
(2011). The statute’s “provisions make clear that a
particular purpose may apply differently, or even not at all,
depending on the kind of sentence under consideration.”
Id. at 326. Following the statute’s plain text, “a court
may not take account of retribution (the first purpose
listed in § 3553(a)(2)) when imposing a term of supervised
release.” Id. Section § 3583(e), which pertains to revoking
supervised release, is the mirror-image of § 3583(c),
which pertains to imposing a term of supervised release.
It follows that both subsections direct district courts
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not to consider retribution when imposing or revoking
supervised release.
Faced with this obvious hurdle, today’s decision
attempts to rewrite Tapia. Of course, I need not put
much gloss on what Justice Kagan straightforwardly
said in that opinion: a district court cannot rely on the
§ 3553(a)(2)(A) factors when making decisions concerning
supervised release. Tapia, 564 U.S. at 326. Today’s
decision attempts to skirt this plain statement through
two paragraphs of explanation of what Justice Kagan
supposedly must have meant. I, like Justice Kagan,
prefer to rely on the actual text of the statute. In any
event, today’s attempt to square what the district court did
with Tapia is futile. For one, today’s opinion gets its facts
wrong. It says in conclusory words that no one has shown
that the district judge let retribution guide the decision.
Amended Order at 7. Most obviously, Esteras has. Pet.
Rehearing En Banc at 10 (“The district court expressly
relied on the section 3553(a)(2)(A) factors—specifically, the
need to punish and to promote respect for the law—when
revoking Esteras’ supervised release.” (emphasis added)).
And this assertion of the panel is belied by the plain words
the district court used in the proceeding, which sounded in
retribution. Like its take on Tapia, today’s decision would
rather reconceptualize the very words the district court
used—“punishment” and “punitive”—and chalk them
up to “set[ting] the stage” rather than an error on the
part of the district court. Of course, “setting the stage”
by thinking of the sentence in terms of punishment is
precisely what a district court must not do per the text of
the statute. To the extent that Tapia explains that taking
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the § 3553(a)(2)(A) factors into account necessarily means
taking retribution into account, today’s decision’s myopic
focus on a word here or there entirely misses the point.
Tapia is also instructive on statute-drafting more
broadly. But once again, today’s decision would rather
ignore its clear import. Today’s decision suggests that
unless Congress enacts a separate statutory provision
forbidding district courts to take account of certain
factors, as it did in § 3582(a), the purposeful omissions
in § 3583(c) and (e) are meaningless. Yet Congress can
accomplish its statutory purposes in a variety of ways,
as Tapia recognizes. Again, the only understanding of
§ 3583(e) that gives effect to its plain text is that explained
by Tapia.
That retributive concerns are not to be taken into
account reflects Congress’s judgment of the purpose
of supervised release. The relevant legislative history
explicitly states that “the sentencing purposes of
incapacitation and punishment would not be served by
a term of supervised release—that the primary goal of
such a term is to ease the defendant’s transition into the
community.” S. Rep. No. 98-225, at *124 (1983); see
also Johnson v. United States, 529 U.S. 694, 708–09
(2000) (citing the Senate Report and discussing the
purpose of supervised release). By contrast, taking the
retributive § 3553(a)(2)(A) factors into account when
imposing or revoking supervised release contravenes
this congressional purpose and also creates “serious
constitutional questions . . . by construing revocation
and reimprisonment as punishment for the violation
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of the conditions of supervised release.” Johnson, 529
U.S. at 700. The Sentencing Guidelines confirm this
understanding: revocation of supervised release is not
meant to “substantially duplicate the sanctioning role
of the court with jurisdiction over a defendant’s new
criminal conduct,” but instead to “sanction primarily
the defendant’s breach of trust.” U.S. Sent’g Guidelines
Manual Ch. 7A Intro. (U.S. Sent’g Comm’n 2023).
No doubt, there is some level of overlap between
the factors district courts must consider when revoking
supervised release, and those that a district court cannot
consider. See Lewis, 498 F. 3d at 400 (explaining that a
district court likely takes into account the seriousness of
an offense when considering the nature and circumstances
of the offense). But today’s opinion treats this reality—
that there is some degree of overlap—as a virtue,
manifestly dishonoring Congress’s decision to omit the
§ 3553(a)(2)(A) factors from consideration. Amended
Order at 6 (“To think about the one requires the judge to
think about the other.”); id. (“To neglect the one dishonors
the other.”). That a district court may consider, to some
degree, the seriousness of the offense, however, does not
justify allowing district courts to disregard Congress’s
mandate that retributive concerns should not influence
the overall sentence. Put differently, the overlap problem
first identified by Lewis is exaggerated to the extent that
a district court can avoid running afoul of the statute
by avoiding viewing revocation of supervised release as
retribution.
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Perhaps recognizing the futility of any text-based
argument, today’s decision reinvents the overlap argument
in the form of a strawman. It suggests that Congress
cannot possibly have meant that district courts should
not rely on the § 3553(a)(2)(A) factors when revoking
supervised release, because “Congress requires courts to
consider the same set of factors when first imposing a term
of supervised release as when revoking one.” Amended
Order at 6. Per today’s decision, district courts would be
forced to “adjourn the hearing after imposing a[n] [initial]
sentence” and “start over with a new unblemished inquiry
into the right term of supervised release” so as to not
mistakenly consider the § 3553(a)(2)(A) factors. Id. This
argument is disingenuous. What the statute requires
is that district courts not view supervised release as
an additional punishment, and that district courts adjust
their rationale and considerations accordingly when
imposing or revoking supervised release. The district
court manifestly failed to do that here.
What is more, some degree of overlap cannot explain
away Congress’s explicit choice to omit certain sentencing
factors from consideration when revoking supervised
release. In this way, the analyses of Lewis and today’s
opinion are self-defeating. If Congress believed that courts
would inevitably consider the § 3553(a)(2)(A) factors when
revoking supervised release, it would not have omitted
such factors from § 3583. Lewis, 498 F.3d at 400. The same
is true if Congress affirmatively wanted district courts
to consider such factors. Id. at 399–400. Regardless,
bare judicial pragmatism cannot overcome the plain text
of the statute, which directs district courts not to take
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retributive sentencing factors into account. United States
v. Tohono O’Odham Nation, 563 U.S. 307, 317 (2011) (“[C]
onsiderations of policy divorced from the statute’s text and
purpose could not override its meaning.”).
Beyond t he se f u nda ment a l er ror s , en ba nc
reconsideration is warranted because the Sixth Circuit’s
approach is an outlier among the circuit courts. Lewis and
today’s opinion are entirely untethered from the statutory
text, and it would appear that they allow a district court
to rely exclusively on the § 3553(a)(2)(A) factors when
revoking supervised release. Lewis, 498 F.3d at 399–400
(holding “that it does not constitute reversible error to
consider § 3553(a)(2)(A) when imposing a sentence for
violation of supervised release, even though this factor
is not enumerated in § 3583(e)”). In other words, our
cases contain no limits and allow district courts to
disregard § 3583(e) in toto. Though there is a circuit split
on this issue, most circuits would find that a revocation of
supervised release principally based on the § 3553(a)(2)
(A) factors is procedurally unreasonable. See, e.g., United
States v. Booker, 63 F.4th 1254, 1260 (10th Cir. 2023) (“[I]t
is procedural error to consider an unenumerated [§ 3553(a)
(2)(A)] factor.”); United States v. Miqbel, 444 F.3d 1173,
1182–83 (9th Cir. 2006) (holding that “mere reference”
to unenumerated § 3553(a)(2)(A) factors would not be
reversible error, but that further consideration of such
factors when revoking supervised release is procedurally
unreasonable); United States v. Rivera, 784 F.3d 1012,
1017 (5th Cir. 2015) (“[A] sentencing error occurs when an
impermissible consideration is a dominant factor in the
court’s revocation sentence.”); United States v. Young,
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634 F.3d 233, 241 (3rd Cir. 2011) (recognizing that
consideration of unenumerated § 3553(a)(2)(A) factors
would not be reversible per se error, but that “there may
be a case where a court places undue weight on the”
§ 3553(a)(2)(A) factors); United States v. Webb, 738 F.3d
638, 642 (4th Cir. 2013) (“[A]lthough a district court may not
impose a revocation sentence based predominately on the
[§ 3553(a)(2)(A) factors], we conclude that mere reference
to such considerations does not render a revocation
sentence procedurally unreasonable.”); United States v.
Clay, 752 F.3d 1106, 1108 (7th Cir. 2014) (“[W]e now join
the majority of circuits that have faced this issue and rule
that this subsection [§ 3553(a)(2)(A)] may be considered so
long as the district court relies primarily on [enumerated]
factors.” (emphasis added)). Lewis appears expressly
to adopt punishment as a valid rationale for revoking
supervised release, directly contrary to the statute and
Congress’s intent. 498 F.3d at 400 (“[A]lthough violations
of supervised release generally do not entail conduct as
serious as crimes punishable under the § 3553(a) regime,
revocation sentences are similarly intended to ‘sanction,’
or, analogously, to ‘provide just punishment for the offense’
of violating supervised release.”).
Lewis and today’s decision bulldoze over each
and every indication of congressional intent available
in favor of an explicitly policy-driven outcome. That
includes plain text, legislative history, and information
from the Sentencing Commission. “[D]eference to the
supremacy of the Legislature, as well as recognition that
Congress[members] typically vote on the language of a
bill, generally requires us to assume that ‘the legislative
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purpose is expressed by the ordinary meaning of the
words used.’” United States v. Locke, 471 U.S. 84, 95
(1985) (quoting Richards v. United States, 369 U.S. 1, 9
(1962)). Here, this deference requires that district courts
honor Congress’s explicit choice that supervised release
not be an additional punishment, and that district courts
adjust their rationale and considerations accordingly.
The district court failed to do that here. It plainly viewed
revocation of supervised release as punishment, and
sentenced Esteras to 24 months’ imprisonment based on
impermissible sentencing factors. R. 439 (Revocation Tr.
at 81:17–22, 83:9–11, 85:13–21) (Page ID #2883, 2885,
2887). Because our precedent mistakenly allows a district
court to do so, I respectfully dissent from the denial of
rehearing en banc in this case.
DISSENT
GRIFFIN, Circuit Judge, dissenting.
I respectfully dissent from the denial of the Petition
for Rehearing En Banc. I would grant the petition
because the question raised is of exceptional importance
warranting consideration and decision by our En Banc
Court after full briefing and argument. Fed. R. App. P. 35(a)(2).
Under United States v. Lewis, district courts may
revoke supervised release—and impose more prison
time—for the purpose of punishment, a consideration
ostensibly prohibited by the statutory text. 498 F.3d 393,
399–400 (6th Cir. 2007); see also 18 U.S.C. § 3583(e) (“The
court may, after considering the factors set forth in section
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3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6),
and (a)(7),” revoke a term of supervised release); Tapia v.
United States, 564 U.S. 319, 326–27 (2011) (explaining that
18 U.S.C. § 3553(a)(2)(A–D) reflects “the four purposes of
sentencing generally” and that § 3553(a)(2)(A) reflects the
purpose of punishment).
Lewis’s holding has enormous consequences for the
liberty of hundreds of defendants within our circuit who
are sentenced every year for violating supervised-release
conditions. See U.S. Sent’g Comm’n, Federal Probation
and Supervised Release Violations, 51–52 (July 2020),
https://www.ussc.gov/sites/default/files/pdf/researchand-publications/research- publications/2020/20200728_
Violations.pdf (reflecting an average of 1,685 probation and
supervised-release violations each year in district courts
within the Sixth Circuit between 2013 and 2017). Under
Lewis, our district courts, when sentencing supervisedrelease violators, are more likely to revoke supervised
release and impose longer prison terms because they are
permitted to punish the violators.
Under the Federal Rules of Appellate Procedure, cases
in which the dispositive issues “have been authoritatively
decided” are not usually set for oral argument. Fed. R.
App. P. 34(a)(2)(B). Because of Lewis, this case was a
“Rule 34” case and decided summarily. In my view, given
the widespread impact of Lewis and the vigorous debate
concerning its viability, as articulated by Judge Moore’s
dissent and the varying circuit decisions on this issue,
this is an exceptionally important issue warranting full
briefing and argument before our En Banc Court.
ENTERED BY ORDER OF THE COURT
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F THE UNITED
APPENDIX F —Appendix
ORDER OF
STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT, FILED MARCH 7, 2024
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 23-3422
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDGARDO ESTERAS,
Defendant-Appellant.
On Petition for Rehearing En Banc.
United States District Court for the
Northern District of Ohio at Youngstown.
No. 4:14-cr-00425-10—Benita Y. Pearson, District Judge.
Decided and Filed: March 7, 2024
Before: SUTTON, Chief Judge; WHITE and
THAPAR, Circuit Judges.
The court issued an order denying the petition for
rehearing en banc. MOORE, J. (pg. 3), delivered a separate
opinion, in which STRANCH, J., joined, dissenting from
the denial of the petition for rehearing en banc. GRIFFIN,
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J. (pp. 4-5), also delivered a separate opinion, in which
STRANCH and BLOOMEKATZ, JJ., joined, dissenting
from the denial of the petition for rehearing en banc.
ORDER
The court received a petition for rehearing en banc.
The original panel has reviewed the petition for rehearing
and concludes that the issues raised in the petition were
fully considered upon the original submission and decision.
The petition then was circulated to the full court. Less
than a majority of the judges voted in favor of rehearing
en banc.
Therefore, the petition is denied.
DISSENT
KAREN NELSON MOORE, Circuit Judge, dissenting
from denial of rehearing en banc. I adhere to my dissent
from the denial of Esteras’s first petition for en banc
rehearing, and again respectfully dissent today. United
States v. Esteras, 88 F.4th 1170, 1171-76 (6th Cir. 2023)
(Moore, J., dissenting). I would grant the current petition
for rehearing because United States v. Lewis, 498 F.3d 393
(6th Cir. 2007), and the amended panel order in this case
contravene the statutory text, disregard Supreme Court
precedent, and place the Sixth Circuit at the extreme of
a circuit split,
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