United States v. Estes ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-2111
UNITED STATES OF AMERICA,
Appellee,
v.
SCOTT ESTES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch and Barron, Circuit Judges,
Burroughs, District Judge.
Robert C. Andrews, by appointment of the Court, for appellant.
Julia M. Lipez, Assistant United States Attorney, with whom
Halsey B. Frank, United States Attorney, was on brief, for
appellee.
January 14, 2021

Of the District of Massachusetts, sitting by designation.
Burroughs, District Judge. The defendant, Scott Estes,
appeals from the district court's grant of the Government's motion
in limine to admit a recording of a 911 call placed by Estes'
girlfriend. Estes argues that his girlfriend's statements during
the call are testimonial in nature, triggering his Confrontation
Clause rights under the Sixth Amendment, and that the district
court should have therefore precluded the Government from
introducing the recording without calling the declarant as a
witness at trial. He also argues that, even assuming the
statements contained in the 911 recording are non-testimonial, the
district court erred by allowing the recording to be admitted
because he has an independent right to face-to-face confrontation
and because there was no applicable hearsay exception. We hold
that the statements in the 911 recording are non-testimonial and
that where a statement is non-testimonial, the Confrontation
Clause is not implicated and the only bar to admission is the rule
against hearsay. Because the district court did not abuse its
discretion in applying a hearsay exception, we affirm.
I.
A. Facts
Katherine Hutchins ran a house cleaning service. On the
morning of November 13, 2017, she and her boyfriend of a few
months, Estes, had just finished cleaning a house together and
were leaving the job. Hutchins was driving. During the car ride,
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Hutchins learned that Estes had stolen a firearm from the house
that they had just cleaned. Estes loaded this firearm, showed it
to Hutchins, and pointed it at her. Estes had previously told
Hutchins that he was a felon and could not have a gun. She also
believed that he might be using drugs because he was behaving
erratically and had needles in his pocket.
During the car ride, at approximately 11:20 AM, Hutchins
called 911.1 When she made the 911 call, Estes had temporarily
left the vehicle to help another motorist. Hutchins began the
call by stating that Estes "loaded a gun, and he has it in his
pocket and he's a felon." The 911 dispatcher said that he would
send officers to her location.2 She then told him that she would
have to pretend to be speaking to someone other than the police
because she did not want to "get shot." She further explained
that Estes had "needles in his pocket," was "not good," and had
loaded the gun and pointed it at her, causing her to be "a little
nervous right now." She added that she was "shaking" and "scared,"
and implored the police to take her call "really seriously right
1 The district court granted the Government's motion in limine
based on a version of the 911 recording and transcript that had
been redacted to exclude those portions of the conversation that
constituted hearsay within hearsay. The redacted version of the
transcript, the admission of which is the subject of Estes' appeal,
appears in his Appendix.
2 Throughout the call, the 911 dispatcher asked questions
designed to ascertain Hutchins' and Estes' locations, both in
absolute terms and as compared to one another.
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now." The 911 dispatcher assured her that the police were taking
her call seriously and again told her that he was sending officers
to her location.
At that point, presumably because Estes had re-entered
the vehicle, Hutchins began pretending to speak to her credit card
company. The 911 dispatcher played along with Hutchins' ruse,
encouraging her to "keep makin[g] . . . conversation." After a
few minutes, Hutchins told the 911 dispatcher that Estes was
running into his friend's apartment and that, as soon as officers
arrived, she would show them where Estes had gone. She reiterated
that Estes was "probably going to shoot [her]," adding that she
was "nervous" and "scared shitless." The 911 dispatcher told her
that he wanted to ensure that she was safe and asked her to stay
on the phone with him until officers arrived at the scene. They
discussed which apartment Estes had entered, and she volunteered
additional information, including Estes' name and birthdate.
Officers then arrived, and Hutchins ended the call.
Prior to, and during, the 911 call, Hutchins
communicated via text and/or Facebook Messenger, with two
individuals, Ashley Wing (the client whose house she and Estes had
cleaned that morning) and Bethany Maheux.3 In her text exchange
with Wing, which began at 10:59 AM (approximately twenty minutes
3
Hutchins' communications with Wing and Maheux also appear
in Estes' Appendix.
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before the 911 call) and continued until 11:35 AM, Hutchins
attempted to determine whether Estes had stolen the gun from Wing's
home. Wing confirmed that the gun was hers. Hutchins asked Wing
to call the police and wrote "[p]lease know he loaded it and I am
scare [sic] I will be hurt." In her exchange with Maheux, which
began at approximately 11:06 AM, Hutchins tried to determine
whether Maheux had purchased a gun for Estes. Maheux denied doing
so, and when Hutchins asked her to call the police, Maheux replied
that she was "not involved" and encouraged Hutchins to call the
police herself.
B. Procedural History
Estes was indicted for possessing a stolen firearm and
being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(j) and 922(g)(1), respectively. Prior to trial, the
Government filed a motion in limine seeking to introduce the 911
recording without calling Hutchins as a witness. Estes opposed
the motion. After a hearing, the district court orally granted
the Government's motion. The district court concluded that the
statements in the 911 recording were non-testimonial and therefore
did not implicate the Sixth Amendment. The district court then
analyzed whether there were any applicable hearsay exceptions and
found that the 911 recording was admissible under Federal Rules of
Evidence 803(2) (excited utterance) and 803(1) (present sense
impression) and that parts of the recording were also admissible
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under Rule 803(3) (then-existing mental, emotional, or physical
condition).
After the district court's ruling on the motion in
limine, Estes entered a conditional guilty plea pursuant to Federal
Rule of Criminal Procedure 11(a)(2), reserving his right to appeal
the district court's order granting the motion. The district
court then sentenced Estes to thirty-six months' imprisonment, and
Estes timely appealed.
II.
On appeal, Estes challenges the district court's
determination that the statements in the 911 recording were
non-testimonial and asserts that even if they were
non-testimonial, the district court still should not have admitted
the recording because Estes has a right to confront Hutchins, and
further, that no hearsay exception applies.
This Court reviews the question of whether a given
statement is testimonial de novo, United States v. Brito, 427 F.3d
53, 59 (1st Cir. 2005) (citing United States v. Tse, 375 F.3d 148,
159 (1st Cir. 2004)), and reviews the question of whether a
district court properly applied a hearsay exception for abuse of
discretion, Packgen v. Barry Plastics Corp., 847 F.3d 80, 90 (1st
Cir. 2017) (citing Shervin v. Partners Healthcare Sys., Inc., 804
F.3d 23, 41 (1st Cir. 2015)).
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A. The Statements in the 911 Recording Are Non-Testimonial
"In Crawford v. Washington, the Supreme Court held that
the Sixth Amendment's Confrontation Clause bars 'admission of
testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had a prior
opportunity for cross-examination.'" United States v. Cadieux,
500 F.3d 37, 40 (1st Cir. 2007) (quoting Crawford v. Washington,
541 U.S. 36, 53–54 (2004)), cert. denied, 552 U.S. 1190 (2008).
The determination as to whether a statement is testimonial is an
"objective[] evaluat[ion of] the circumstances in which the
encounter occurs and the statements and actions of the parties."
Michigan v. Bryant, 562 U.S. 344, 359 (2011).
In Cadieux, this Court assessed whether statements in a
911 recording were testimonial within the meaning of Crawford and
set forth an analytical framework based on the Supreme Court's
decision in Davis v. Washington. "[S]tatements made to a 911
operator 'are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency.'" Cadieux, 500 F.3d at 41 (quoting
Davis, 547 U.S. 813, 822 (2006)). "By contrast, such statements
are testimonial 'when the circumstances objectively indicate that
there is no such ongoing emergency, and that the primary purpose
of the interrogation is to establish or prove past events
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potentially relevant to later criminal prosecution.'" Id.(quoting Davis, 547 U.S. at 822). A number of factors "should
guide courts in this objective inquiry, including":
(1) Was the declarant speaking about current
events as they were actually happening,
requiring police assistance rather than
describing past events?
(2) Would a reasonable listener conclude that
the declarant was facing an ongoing emergency
that called for help?
(3) Was the nature of what was asked and
answered during the course of a 911 call such
that, viewed objectively, the elicited
statements were necessary to be able to
resolve the present emergency rather than
simply to learn . . . what had happened in the
past?
(4) What was the level of formality of the
interview? For example, was the caller
frantic, in an environment that was neither
tranquil nor safe?
Id. (internal citations and quotation marks omitted).
A straightforward application of the Cadieux factors to
the facts here leads to the conclusion that the statements in the
911 recording are non-testimonial.4
With respect to the first factor, the declarant,
Hutchins, was speaking about current events in real time. She
told the 911 dispatcher that Estes possessed a loaded gun in his
4 At oral argument, Estes suggested that the Cadieux factors
are inappropriate and inconsistent with Supreme Court guidance.
Because we derived the Cadieux factors directly from the Supreme
Court's decision in Davis, see Cadieux, 500 F.3d at 41, we find
Estes' argument to be without merit.
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pocket. She also repeatedly reported on her current location,
both in absolute terms and as compared to Estes. Finally, she
described her feelings in the present tense ("I'm shaking," "I'm
really nervous," "I'm scared shitless"), and requested immediate
assistance from the police.
With respect to the second factor, a reasonable listener
would conclude that Hutchins faced an ongoing emergency that called
for help. During the call, she was in a vehicle with (or otherwise
in close proximity to) Estes, a felon who was in possession of a
loaded gun that she believed he had stolen. Moreover, he had
already pointed the gun at her and was otherwise acting in an odd
and unstable manner. Importantly, Hutchins communicated each of
these facts to the 911 dispatcher during the call.
With respect to the third factor, the dispatcher's
questions were designed to elicit answers necessary to resolve the
emergency. He asked her where Hutchins and Estes were, both in
absolute and relative terms, to be able to safely dispatch law
enforcement to her location. Additionally, the fact that the 911
dispatcher played along with Hutchins' ruse regarding a phony call
with her credit card company shows that he believed there was an
ongoing situation that warranted such subterfuge. Finally, the
911 dispatcher's statements and questions evidence his concern
with Hutchins' wellbeing and suggest that he was attempting to
safely resolve the situation. For instance, he asked her "to stay
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on the phone with [him] until [she'd] made contact with the
officer" and told her that he "want[ed] to make sure [she was]
safe."5 In light of those questions, the background information
that the dispatcher elicited is also best understood to be designed
to assist him in resolving the emergency.
With respect to the fourth factor, the 911 call was
informal and took place while Hutchins was near a felon who had
recently pointed a loaded gun at her. Despite remaining
relatively calm and not sounding "frantic," Hutchins was
undoubtedly in an environment that was neither tranquil nor safe.
Estes' arguments as to why the statements in the 911
recording are testimonial are unavailing. First, he argues that
the ongoing emergency had ended by the time the 911 call was made
because Hutchins placed the call twenty to thirty minutes after
Estes pointed the gun at her, by which time he had put the gun in
his pocket. Hutchins likely waited as long as she did to place
the 911 call because she was in a car with Estes, who would have
overheard at least her side of any telephone conversation. The
record indicates that she called 911 as soon as Estes left the
vehicle, which allowed her to make the call without being
overheard. The emergency had not concluded simply because Estes
5 The 911 dispatcher also asked questions about Estes' name
and birthdate after Hutchins had already volunteered that
information.
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was no longer brandishing the loaded gun. He still had the gun
and could have taken it from his pocket at any time.
Second, Estes argues that Hutchins' investigation into
Estes' acquisition of the gun renders the statements in the 911
recording testimonial. The fact that she communicated with Wing
and Maheux prior to placing the 911 call does not negate the fact
that Hutchins was with an individual who had recently pointed a
loaded gun at her. Additionally, as the Government notes,
Hutchins' investigation into how Estes obtained the gun would,
quite reasonably, inform her level of concern. Her level of
concern for her own safety was understandably raised by learning
that he had just stolen a gun from Wing's home while they were
cleaning it, knowing that he was a felon who should not have a gun
at all, and experiencing his reckless disregard for the law and
her safety. Her realization that he might be high on drugs likely
heightened her level of concern. Hutchins' texts and messages
with Wing and Maheux confirm that she was fearful and believed
that an emergency was underway. In fact, she asked both Wing and
Maheux to call the police, perhaps because she felt she could not
safely do so herself while Estes was in the car.
In sum, under the factors set forth in Cadieux and
consistent with this Court's precedent, the statements in the 911
recording here are non-testimonial. See Cadieux, 500 F.3d at 41(finding statements in a 911 recording non-testimonial where
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caller was speaking about events in real time and asked for police
assistance, and where the dispatcher's questions were tailored to
elicit pertinent facts regarding the emergency); Brito, 427 F.3d
at 62–63 (finding statements in a 911 recording non-testimonial
where caller heard gunshots, then saw a man with a gun who pointed
the gun at her and remained in her sight).
B. The Confrontation Clause Is Not Implicated by Non-Testimonial
Statements and the District Court Did Not Abuse Its Discretion
by Admitting the 911 Recording
Estes argues that regardless of whether the statements
in the 911 recording are testimonial, he has a right to confront
Hutchins at trial. He is incorrect.6 It is well-settled that
when a statement is non-testimonial, there is no right to
confrontation. See Bryant, 562 U.S. at 354 ("We therefore limited
the Confrontation Clause's reach to testimonial statements
. . . ."); Davis, 547 U.S. at 821 ("Only [testimonial] statements
. . . cause the declarant to be a 'witness' within the meaning of
the Confrontation Clause. It is the testimonial character of the
6
The two Supreme Court cases that Estes cites, Maryland v.
Craig and Coy v. Iowa, are inapposite. Both pre-date Crawford,
the seminal Supreme Court Confrontation Clause case, which
established the current testimonial versus non-testimonial test.
In any event, those cases concerned trial testimony and involved
clearly testimonial statements. Craig, 497 U.S. 836, 860 (1990)
(allowing child victim to testify via one-way closed-circuit
television did not violate Confrontation Clause); Coy, 487 U.S.
1012, 1020–21 (1988) (finding Confrontation Clause violation where
child victim testified from behind a large screen). Craig and Coy
do not concern a defendant's right to confrontation with respect
to non-testimonial statements, like the ones at issue here.
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statement that separates it from other hearsay that, while subject
to traditional limitations upon hearsay evidence, is not subject
to the Confrontation Clause." (citation omitted)); United States
v. Ponzo, 853 F.3d 558, 578 (1st Cir. 2017) ("The Confrontation
Clause . . . bars admission of testimonial hearsay unless 'the
declarant is unavailable' and 'the defendant had a prior
opportunity' for cross-examination . . . ." (quoting Crawford, 541
U.S. at 59)); United States v. Castro-Davis, 612 F.3d 53, 64 n.14
(1st Cir. 2010) ("After Davis, however, non-testimonial hearsay no
longer implicates the Confrontation Clause at all."); United
States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir. 2010) ("The
threshold question in every case is whether the challenged
statement is testimonial. If it is not, the Confrontation Clause
'has no application.'" (quoting Whorton v. Bockting, 549 U.S. 406,
420 (2007))); United States v. Earle, 488 F.3d 537, 542 (1st Cir.
2007) (noting that the Confrontation Clause "applies only to
testimonial hearsay" (citing Davis, 547 U.S. at 821)); see also
United States v. Rodriguez-Berrios, 573 F.3d 55, 61 n.4 (1st Cir.
2009) (rejecting argument that admission of non-testimonial
hearsay violated the Confrontation Clause).
Accordingly, because the statements in the 911 recording
are non-testimonial, the only remaining question is whether the
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district court abused its discretion in admitting the recording
pursuant to a hearsay exception.7 We find that it did not.
The district court found that three hearsay exceptions
were applicable,8 but we need discuss only the first in any detail
because one hearsay exception is sufficient to support the 911
recording's admission. Under the "Excited Utterance" exception,
a "statement relating to a startling event or condition, made while
the declarant was under the stress of excitement that it caused"
is admissible. Fed. R. Evid. 803(2). At the time Hutchins placed
the call, Estes had recently pointed a loaded gun at her, which is
unquestionably a startling event. Although some time had passed,
Hutchins was still "under the stress of excitement" for the
duration of the call, id., especially given that Estes was still
nearby with the gun. See United States v. Rondeau, 430 F.3d 44,
48 (1st Cir. 2005) (finding that where 911 call was made "as or
immediately after [someone] threatened [the caller] with the gun,"
the statements were excited utterances); Brito, 427 F.3d at 62–63
7 Contrary to Estes' assertion, the fact that Hutchins was
available to testify is of no consequence because each of the
hearsay exceptions relied upon by the district court applies
"regardless of whether the declarant is available as a witness."
Fed. R. Evid. 803.
8 The district court found that Federal Rules of Evidence
803(2) (Excited Utterance), 803(1) (Present Sense Impression), and
803(3) (Then-Existing Mental, Emotional, or Physical Condition)
were all applicable.
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(noting that statements by 911 caller who had recently had gun
pointed at her were excited utterances). Thus, the district court
did not abuse its discretion in admitting the 911 recording under
Rule 803(2).9
III.
We affirm the district court's grant of the Government's
motion in limine.
Affirmed.
9 For the reasons articulated by the district court, we agree
that the other two hearsay exceptions it applied are also
applicable here.
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