*

The Honorable Gregory W. Carman, United States Court of International Trade, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0269p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSEPH ARNOLD,

Defendant-Appellant.

X

-

-

-

-

>

,

-

-

N

No. 04-5384

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 03-20089—Jon Phipps McCalla, District Judge.

Submitted: March 9, 2005

Decided and Filed: June 21, 2005 

Before: MOORE and SUTTON, Circuit Judges; CARMAN, Judge.*

_________________

COUNSEL

ON BRIEF: Robert C. Brooks, Memphis, Tennessee, for Appellant. David N. Pritchard,

ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.

CARMAN, J., delivered the opinion of the court, in which MOORE, J., joined. SUTTON,

J. (pp. 12-22), delivered a separate dissenting opinion.

_________________

OPINION _________________

CARMAN, Judge. On November 5, 2003, Defendant/Appellant, Joseph Arnold (“Arnold”),

was convicted after a trial by jury in the United States District Court for the Western District of

Tennessee of possession of a firearm by a convicted felon. Arnold appealed his conviction to this

court. On appeal, Arnold argues that the District Court committed error in allowing the out-of-court

statements of his accuser to be introduced during his trial, that the proof submitted to the jury was

not constitutionally sufficient to sustain the guilty verdict, and that the court committed error in

excluding a witness whom the defense sought to introduce to impeach the statements of the accuser.

For the reasons stated herein, this Court REVERSES and REMANDS the case for entry of a

judgment of acquittal.

1
No. 04-5384 United States v. Arnold Page 2

1

The initial conversation between the officers and the young woman apparently lasted between thirty seconds

(J.A. at 115) and five minutes (J.A. at 146).

BACKGROUND

At about 7:43 a.m. on September 19, 2002 (J.A. at 197), a woman called the 911 emergency

telephone number in Memphis, Tennessee, to report that her mother’s boyfriend – Arnold – had

threatened her with a gun. At the end of the call, the caller identified herself as Tamica Gordon

(“Gordon”). (Audio tape: 911 Recording (Sept. 19, 2002) (Ct. Ex. 9).) At approximately 8:00 a.m.,

local police officers were dispatched to a Memphis address and found a young woman upset to the

point that she was having difficulty speaking. (J.A. at 112-113.) The officers later learned that the

young woman’s name was Tamica Gordon. (J.A. at 122.) Although no witness during the trial

testified to such, the young woman the police met was apparently also the same woman who made

the 911 call.

Gordon told the officers that Arnold “pulled a gun on her” and threatened to kill her. (J.A.

at 114.) Gordon described the gun as a “black handgun.” (J.A. at 127.) She did not indicate that

the gun had any special characteristics. (J.A. at 151.) Based on Gordon’s hand gestures, the officers

inferred that she was describing a semiautomatic weapon. (J.A. at. 127.)

During a brief conversation,1

 Gordon began to calm. (J.A. at 115.) A short time after the

officers arrived, a car pulled up to the address where Gordon and officers were conversing. (Id.)

A woman was driving the car, and a man was in the passenger seat. (J.A. at 116.) As the car pulled

up, Gordon became excited again. (J.A. at 115.) She pointed at the car and told the officers that the

man in it was the same man who had pointed a gun at her. (Id.) According to one responding

officer’s testimony, Gordon said, “[T]hat’s him, that’s the guy that pulled the gun on me, Joseph

Arnold, that’s him.” (Id.)

The officers “went to the car, asked [Arnold] to step out and patted him down for weapons.”

(J.A. at 117.) No weapons were found. (Id.) Arnold was cooperative and did not attempt to elude

the police or run away. (J.A. at 126.) The officers then asked for and received consent from the

car’s owner (Gordon’s mother) to search the automobile. (J.A. at 117, 129.) Under the passenger

seat of the automobile, the officers found a loaded, black, semiautomatic handgun with a bullet in

the chamber. (J.A. at 118-19.) The gun was in a clear plastic bag when the police located it. (J.A.

at 142.) There were no fingerprints on the gun, and it was not stolen. (J.A. at 130-31.) The

prosecution submitted no evidence that the gun belonged to Arnold, and Arnold did not admit that

the gun was his. (J.A. at 131).

The government subpoenaed Gordon for the trial, but she did not appear. (J.A. at 28-29.)

The District Court issued a warrant for Gordon’s arrest, but she could not be produced before or

during the trial.

The government moved at trial to introduce a tape of the 911 call alleged to have been made

by Gordon and statements she later made to the police at the scene of Arnold’s arrest. (J.A. at 38-

39.) The government argued that the 911 tape was admissible under two exceptions to the hearsay

rule: excited utterance and present sense impression. (J.A. at 38.) The government argued that

Gordon’s statements to the police were admissible as excited utterances. (J.A. at 39.)

After a hearing out of the presence of the jury, the District Court ruled that a redacted 911

tape was admissible as an excited utterance (J.A. at 64-65) but not as a present sense impression

(J.A. at 63). The District Court also ruled that Gordon’s statements to the police at the scene of

Arnold’s arrest were admissible as excited utterances. (J.A. at 78-79.) In issuing his ruling, the
No. 04-5384 United States v. Arnold Page 3

2

Substantial evidence is greater than a “mere scintilla.” U.S. v. Orrico, 599 F.2d 113, 117 (6th Cir. 1979). “It

means such relevant evidence as a reasonable mind might accept to support a conclusion. It is evidence affording a

substantial basis of fact from which the fact in issue can be reasonably inferred.” Id.

3

The “Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally

insufficient.” Burks, 437 U.S. at 18. Hence, judgment of acquittal must be entered if the evidence is legally insufficient.

Id.

District judge stated, “[i]t would not upset me if the Court of Appeals overturned this determination,

it wouldn’t bother me.” (J.A. at 80.)

STANDARDS OF REVIEW

All evidentiary rulings, including those that challenge constitutionality, are reviewed by the

appellate court under the “abuse of discretion” standard. U.S. v. Schreane, 331 F.3d 548, 564

(2003), cert. denied, 540 U.S. 973, 124 S. Ct. 448, 157 L. Ed. 2d 323 (2003). See also Gen. Elec.

Co. v. Joiner, 522 U.S. 136, 141, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997) (“We have held that

abuse of discretion is the proper standard of review of a district court’s evidentiary rulings.”). This

Court will find an abuse of discretion when there is a “definite and firm conviction that the court

below committed a clear error of judgment in the conclusion it reached upon a weighing of the

relevant factors.” Schreane, 331 F.3d at 564 (quoting Super Sulky, Inc. v. U.S. Trotting Ass’n, 174

F.3d 733, 740 (6th Cir. 1999)). Abuse of discretion also results when the “lower court relies on

clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal

standard.” U.S. v. Heavrin, 330 F.3d 723, 727 (6th Cir. 2003) (quotation and citation omitted).

As to Arnold’s contention that the proof submitted to the jury was not constitutionally

sufficient to sustain a guilty verdict, this Court must assess “whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” U.S. v. Samuels, 308 F.3d 662, 666 (6th Cir.

2002), cert. denied, 537 U.S. 1225, 123 S. Ct. 1335, 154 L. Ed. 2d 1085 (2003) (emphasis in

original) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).

On appeal, the court must “determine whether the record evidence could reasonably support a

finding of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 318. In assessing the sufficiency

of the evidence, the court does not substitute its judgment for that of the jury and draws inferences

in favor of the jury’s verdict. Salgado, 250 F.3d at 446. Nonetheless, there must be “substantial

evidence”2

 of the elements of the crime upon which the jury could determine the defendant’s guilt

beyond a reasonable doubt. Burks v. U.S., 437 U.S. 1, 17, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978);

U.S. v. Orrico, 599 F.2d 113, 117 (6th Cir. 1979). If this Court finds that the evidence was

insufficient to sustain a defendant’s conviction, the case must be reversed with direction to the lower

court to enter judgment of acquittal. Burks, 437 U.S. at 18.3

DISCUSSION

On appeal, Arnold asserts that his conviction should be overturned for any, or in the

combination, of three errors that occurred at trial:

1. The out-of-court statements of Gordon were erroneously admitted;

2. The proof offered was constitutionally insufficient to sustain a conviction; and

3. Defense counsel should have been permitted to present an impeachment witness.

(Arnold Br. at ii.) Each of these arguments will be examined in turn.
No. 04-5384 United States v. Arnold Page 4

4

This Court also notes that the 911 tape appears to have been admitted lacking proper foundation. Not one

witness at Arnold’s trial confirmed that Gordon was the female whose voice is heard on the tape of the 911 call. Fed.

R. Evid. 901(b)(5).

I. Gordon’s Out-Of-Court Statements Were Erroneously Admitted.

The District Court admitted three out-of-court statements into evidence under the excited

utterance exception to the hearsay rule:

1. A tape recording of the 911 call;

2. The statements Gordon made to police officers upon their arrival; and

3. The statements Gordon made to police officers when Arnold arrived.

For the reasons that follow, this Court finds that none of the statements was admissible as a matter

of law.

A. The spontaneity required to admit the 911 call as an excited utterance was not

proved.

The District Court admitted the 911 call under the “excited utterance” exception to the

hearsay rule. Fed. R. Evid. 803(2). An “excited utterance” is a “statement relating to a startling

event or condition made while the declarant was under the stress of excitement caused by the event

or condition.” Id.

The basis for the “excited utterance” exception, for example, is that such statements

are given under circumstances that eliminate the possibility of fabrication, coaching,

or confabulation, and that therefore the circumstances surrounding the making of the

statement provide sufficient assurance that the statement is trustworthy and that

cross-examination would be superfluous.

Idaho v. Wright, 497 U.S. 805, 820, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990).

In order for a statement to be admitted as an “excited utterance,” three elements must be

satisfied:

1. There must be an event startling enough to cause nervous excitement;

2. The statement must be made before there is time to contrive or misrepresent; and

3. The statement must be made while the person is under the stress of the excitement

caused by the event.

Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050, 1057 (6th Cir. 1983), cert. denied, 464

U.S. 1071, 104 S. Ct. 980, 79 L. Ed. 217 (1984). This Court has previously recognized that “the

length of time between the event and the statement” is a critical – if not the most important – factor

in determining whether the statement was spontaneous. Id. at 1057-1058.

This Court does not suggest that the 911 call did not relate to an event startling enough to

cause nervous excitement. Further, we do not doubt that the caller – presumably Gordon4

 – was

upset when the call was made. Nevertheless, the record reveals no evidence as to when the alleged

incident between Gordon and Arnold occurred. The District Court acknowledged as much. (J.A.

at 56 (“I don’t know the time frame.”).) Consequently, the District Court lacked any evidence with
No. 04-5384 United States v. Arnold Page 5

5

The dissent makes much of the 911 caller’s excited state during the call as evidence that the call was made

close in time to the alleged threat. For support of this proposition, the dissent quotes a lengthy paragraph from the

Haggins opinion. (Haggins involved the admissibility of statements made by a four-year-old child after an alleged

forcible rape. 715 F.2d 1050.) The majority does not read Haggins in the same light as the dissent. In fact, the language

following that quoted and emphasized by the dissent only proves the importance of the lapse of time in a determining

whether a statement is an excited utterance: “It is important to remember, however, that ‘the ultimate question is whether

the statement was the result of reflective thought or whether it was a spontaneous reaction to the exciting event.’”

Haggins, 715 F.2d at 1058 (citation omitted) (emphasis added). The District Court in the present matter had no means

by which to answer the “ultimate question.” The District Court could not overcome the spontaneity element of the

excited utterance analysis because it had no evidence upon which to conclude that the caller had no time to reflect or

contrive.

The dissent also cited several cases in which courts have found that quite a long period (hours as opposed to

moments) of time may pass between the startling event and an excited utterance. The majority notes that the “time lapse

in most excited utterance cases is usually a few seconds or a few minutes.” U.S. v. Taveras, 380 F.3d 532, 537 (1st Cir.

2004) (citations omitted). The Taveras court referred to longer lapses, like those found U.S. v. Cruz, 156 F.3d 22 (1st

Cir. 1998), a case cited by the dissent, as “extreme circumstances.” Id.

In principle, the majority does not take issue with the cases cited by the dissent. However, those cases are

readily distinguishable from the facts of this case. In all cases cited by the dissent, the trial courts had explicit evidence

of the time that elapsed between the startling event and the statement. The amount of lapsed time together with other

factors allowed the courts to determine whether the person making the statement was still under the stress of the event.

The District Court in the present matter had no such evidence upon which to determine whether the 911 caller remained

under the stress of the alleged event and whether she had time to contrive or misrepresent.

A record to support the finding of an excited utterance may be “less than perfect” (J.A. at 64), but it cannot be

devoid of evidence concerning the time that elapsed between the alleged startling event and the statement offered as the

excited utterance. In the present matter, the District Court lacked the evidence to conclude that the 911 call was made

before the caller had an opportunity to contrive or misrepresent. Therefore, the call cannot be considered an excited

utterance.

which to determine whether the 911 call was made before there was time to contrive or misrepresent.

Without such evidence, a finding that the 911 call satisfied the spontaneity element for it to be

considered an “excited utterance” was pure supposition.5 The District Court could not have known

and did not know that there was sufficient assurance that the content of the 911 call was trustworthy

and that cross-examination would be superfluous. Wright, 497 U.S. at 820.

The Confrontation Clause provides that in all criminal prosecutions, the accused has the right

to be confronted with the witnesses against him. U.S. Const. amend. VI. Cross-examination has

been recognized as the “greatest legal engine ever invented for the discovery of truth.” White v.

Illinois, 502 U.S. 346, 356, 112 S. Ct. 736, 116 L. Ed 2d 848 (1992). Because exceptions to the

hearsay rule may not be permitted to supercede a defendant’s right to confront his accuser as

guaranteed by the Sixth Amendment of the United States Constitution, use of the exceptions must

be closely scrutinized. Without proof of spontaneity, there can be no assurance that the statements

were not contrived and did not misrepresent the situation.

This Court finds that the District Court erred in determining that the 911 call was

spontaneous. Therefore, the 911 call was not – as a matter of law – an excited utterance and, thus,

was inadmissible hearsay.

B. Gordon’s initial statements to the police lack the spontaneity required to be

considered excited utterances.

For the same reasons that the 911 call could not be considered an excited utterance, Gordon’s

initial statement to the police cannot be considered excited utterances. See Section I.A., supra. In

the initial statement, which began approximately fifteen minutes after the 911 call, Gordon seemed

to reiterate the substance of the 911 call. Again, the record reveals that Gordon did not provide any

information to the police about when the alleged incident with Arnold occurred. Despite her excited

state during the interview by the police, the District Court was completely without evidence

concerning the time that elapsed between the alleged event and the statements being made. Thus,
No. 04-5384 United States v. Arnold Page 6

6

The Supreme Court noted that it used the term “interrogation” in “its colloquial, rather than any technical legal,

sense.” Crawford, 124 S. Ct. at 1365 n.4. The Supreme Court recognized that the term has “various definitions” and

specifically left the definition open. Id.

the District Court erred in concluding that Gordon’s initial statements to the police were excited

utterances.

C. Gordon’s statements when Arnold arrived appear to satisfy the excited utterance

criteria.

When Arnold arrived at the scene of his arrest and in the presence of Gordon and the police,

Gordon became excited and identified him to the police as the man who had threatened her. These

statements appear to satisfy the criteria for the District Court to have considered them excited

utterances. The arrival of Arnold may have been an event startling enough to cause nervous

excitement. Having been made within moments of Arnold’s arrival, Gordon’s statements identifying

Arnold to the police were made before she had time to contrive or misrepresent. Based upon

Gordon’s state when the statements were made, the District Court could conclude that she was still

under the stress of the startling event when the statements identifying Arnold to the police were

made. Nevertheless, for the reasons that follow in Section I.D., infra, Gordon’s statements

identifying Arnold to the police were not admissible.

D. Even if Gordon’s out-of-court statements met the “excited utterance” criteria, they

were testimonial and, therefore, inadmissible.

The U.S. Supreme Court recently ruled that out-of-court statements that are “testimonial”

and made by a witness not present at trial are admissible only if the declarant is unavailable and the

defendant had a prior opportunity to cross-examine. Crawford v. Washington, 541 U.S. 36, __, 124

S. Ct. 1354, 1374, 158 L. Ed. 2d 177 (2004). According to Crawford, the Sixth Amendment’s

Confrontation Clause requires such safeguards on the use of out-of-court testimony. Crawford, 124

S. Ct. at 1370 (“Admitting statements deemed reliable by a judge is fundamentally at odds with the

right of confrontation.”). The Sixth Amendment “commands, not that evidence be reliable, but that

reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Id.

Accordingly, Crawford requires exclusion of some hearsay statements that previously were

admissible under hearsay exception rules. See 5 Jack B. Weinstein et al., Weinstein’s Federal

Evidence § 802.05[3][e] (2d ed. 2004).

While the Supreme Court did not establish a comprehensive definition for the term

“testimonial,” it did provide some guidance on its meaning. The Supreme Court noted that

“testimony” is typically a “solemn declaration or affirmation made for the purpose of establishing

or proving some fact.” Id. at 1364 (internal quotation and citation omitted). “Whatever else the term

[testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a

grand jury, or at a former trial; and to police interrogations.”6

 Id. at 1374. Testimonial statements

may also include, but are not limited to, affidavits, custodial examinations, confessions, depositions,

prior testimony without the benefit of cross-examination, and “statements that declarants would

reasonably expect to be used prosecutorially.” Id. at 1364 (internal quotation and citation omitted).
No. 04-5384 United States v. Arnold Page 7

7

The dissent suggests that the Confrontation Clause analysis may not be available to Arnold if he was

responsible for Gordon’s failure to appear at his trial. The majority asserts that the facts of this case do not support the

dissent’s position.

Firstly, there is no evidence in the record that Arnold had any influence over or put any pressure on Gordon not

to appear at Arnold’s trial. The only reference to possible pressure on Gordon not to appear at Arnold’s trial may be

inferred from a self-serving response to a question posed by the prosecutor during Gordon’s contempt hearing for her

failure to appear at Arnold’s trial. (J.A. at 254.) Gordon agreed that she had been under pressure from her mother about

her involvement in Arnold’s case. However, when asked whether that pressure was the reason for her failure to appear,

Gordon responded, “No, no, no, it was some things going on with me that my mom didn’t even really know about.” (J.A.

254.) The majority finds no reason to discount Gordon’s testimony and certainly no reason to impute to Arnold any

possible pressure the mother may have placed on Gordon.

Secondly, although Crawford was decided after the trial in this case, the parties briefed the case on appeal. The

prosecution had an opportunity to raise in its brief the rule of forfeiture by wrongdoing. It failed to do so. Accordingly,

we need not consider it now.

8

A review of relevant lexicographic sources is consistent with the U.S. Supreme Court’s own jurisprudence

on this issue. See Crawford, 124 S. Ct. at 1364 (“[The Confrontation Clause] applies to ‘witnesses’ against the accused

– in other words, those who ‘bear testimony.’ 1 N. Webster, An American Dictionary of the English Language (1828).”).

9

The Memphis Police Communications Bureau receives 911 calls and dispatches appropriate calls to officers

in the field. (J.A. at. 92-93.)

Although the record does not establish that Gordon was “unavailable”7 at trial, it is clear that

she was not present. More to the point, the record is clear that Arnold did not have an opportunity

to cross-examine Gordon concerning her out-of-court statements. Thus, it is left to this Court to

determine whether Gordon’s statements were “testimonial” under the rubric of Crawford. If so, the

statements were inadmissible.

The Oxford English Dictionary (“OED”) defines “testimonial” as “serving as evidence;

conducive to proof;” as “verbal or documentary evidence;” and as “[s]omething serving as proof or

evidence.” XVII The Oxford English Dictionary 832 (2d ed., J. A. Simpson & E. S. C. Weiner eds.,

Clarendon Press 1989). The OED defines “testimony” as “[p]ersonal or documentary evidence or

attestation in support of a fact or statement; hence, any form of evidence or proof.” Id. at 833

(emphasis added). Similarly, Webster’s defines “testimonial” as “something that serves as evidence:

proof.” Webster’s Third New International Dictionary of the English Language (Unabridged) 2362

(Merriam-Webster Inc. 1993). “Testimony” is “firsthand authentication of a fact: evidence;”

“something that serves as an outward sign: proof;” or “an open acknowledgment: profession.” Id.8

At issue are Gordon’s three out-of-court statements: (1) the 911 call, (2) the initial statement

to the police at the Memphis address, and (3) the statements made to the police contemporaneously

with Arnold’s arrival on the scene. The Crawford court stated that an “accuser who makes a formal

statement to government officers bears testimony in a sense that a person who makes a casual

remark to an acquaintance does not.” Crawford, 124 S. Ct. at 1364. On all three occasions, Gordon

made the statements to government officials: the police.9

 This fact alone indicates that the

statements were testimonial; further details support this conclusion.

As the only witness to the alleged incident, Gordon could reasonably expect that her

statements would be used to prosecute Arnold. See Id. (testimonial statements include “statements

that declarants would reasonably expect to be used prosecutorially”). Although one purpose of the

911 call may have been to secure assistance, it remains that Gordon could also reasonably expect

the statements to be used in a future trial. In addition, Gordon’s statements were declarations made

for the purpose of “establishing or proving some fact.” Id. (quotation and citation omitted). It

would be antithetical to this entire examination were the government to suggest that Gordon made

the statements for any other reason than to establish that the alleged incident occurred. Further,
No. 04-5384 United States v. Arnold Page 8

10The third statement did not violate the Confrontation Clause because it did not contain hearsay and was

presented for background information rather than for the truth of the matter asserted. Cromer, 389 F.3d at 676.

Gordon’s statements were evidence and proof of a matter, firsthand authentication of a fact, and

open acknowledgments.

This jurisdiction has previously considered this issue. See U.S. v. Cromer, 389 F.3d 662 (6th

Cir. 2004). In Cromer, which was fully briefed when Crawford was issued, the court considered

whether the trial court’s admission of testimony of a police officer witness concerning information

provided by a confidential informant violated the Confrontation Clause. The court stated that the

decisive inquiry should be “whether a reasonable person in the declarant’s position would anticipate

his statement being used against the accused in investigating and prosecuting the crime.” Id. at 675.

The court further stated that a “statement made knowingly to the authorities that describes criminal

activity is almost always testimonial.” Id. (quotation and citation omitted). The Cromer court found

two of the three statements at issue to be testimonial.10 Accordingly, the court found that the trial

court committed plain error by allowing the police officer’s testimony and reversed the conviction.

Id. at 679.

We see no reason for deviating from the Cromer holding. As in Cromer and as this Court

has stated supra, Gordon could reasonably expect that her statements would be used to prosecute

Arnold. Further, her statements, which were made knowingly to authorities, described criminal

activity. After full consideration of the record before us and for the preceding reasons, this Court

holds that Gordon’s out-of-court statements were testimonial. 

When out-of-court statements are testimonial, the safeguards of the Sixth Amendment’s

Confrontation Clause must be observed. Thus, to be admissible at trial, Gordon must have been

unavailable for trial, and Arnold must have had a prior opportunity to cross-examine Gordon

concerning the statements. Crawford, 124 S. Ct. at 1374. It is sufficient that Arnold did not have

an opportunity to cross-examine Gordon about the statements for this Court to find that Gordon’s

testimonial out-of-court statements were inadmissible at trial. Therefore, the District Court

committed reversible error by allowing the statements to be introduced during Arnold’s trial.

Accordingly, Arnold’s conviction must be reversed.

II. The Proof Was Constitutionally Insufficient to Sustain a Conviction.

Arnold was convicted of possession of a firearm by a convicted felon in violation of 18

U.S.C. § 922(g)(1). (J.A. at 15.) The elements of a violation of 18 U.S.C. § 922(g)(1) are (1) the

defendant had a prior felony conviction, (2) the defendant possessed a firearm, and (3) the firearm

traveled in or affected interstate commerce. U.S. v. Moreno, 933 F.2d 362, 372 n.1 (6th Cir. 1991),

cert. denied, 502 U.S. 895, 112 S. Ct. 265, 116 L. Ed. 2d 218 (1991) (internal quotation and citation

omitted). On appeal, Arnold challenges only the possession element.

Evidence of either actual or constructive possession of a firearm is sufficient to sustain the

verdict. Id. at 373.

Actual possession exists when a tangible object is in the immediate possession or

control of the party. Constructive possession exists when a person does not have

actual possession but instead knowingly has the power and the intention at a given

time to exercise dominion and control over an object, either directly or through

others.

U.S. v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973), cert. denied, 414 U.S. 866, 94 S. Ct. 54, 38 L.

Ed. 2d 85 (1973). “Both actual and constructive possession may be proved by either direct or
No. 04-5384 United States v. Arnold Page 9

11On cross-examination, a police officer who was at the scene was questioned about how many handguns are

black. (J.A. at 128.) He answered that “probably half are black and half are silver.” (Id.)

circumstantial evidence.” Id. The government may prove constructive possession by presenting

evidence that the person has dominion over the premises where the firearm was located. U.S. v.

Kincaide, 145 F.3d 771, 782 (6th Cir. 1998), cert. denied, 525 U.S. 1166, 119 S. Ct. 1085, 143 L.

Ed. 2d 86 (1999) (citation omitted). However, presence where a weapon was found, without more,

is insufficient to establish “knowledge, power, or intention to exercise control” over the firearm.

U.S. v. Birmley, 529 F.2d 103, 107-08 (6th Cir. 1976).

A. Gordon’s out-of-court statements were inadmissible and cannot be used to support

conviction on the basis of actual possession.

No weapons were found on Arnold’s person. Gordon’s out-of-court statements were the only

evidence presented at trial that Arnold actually possessed a firearm. This Court rules those

statements to be inadmissible. Thus, there is no evidence to link Arnold to actual possession of any

firearm and, therefore, no basis upon which a rational trier of fact could convict of actual possession.

B. The evidence of constructive possession is also insufficient to affirm conviction.

We now consider whether sufficient evidence existed to find Arnold guilty of constructive

possession of a firearm based on the gun police recovered from the car in which Arnold was riding.

Arnold was not driving the car, and the car was not registered to him. There is no indication that

Arnold exercised any dominion or control over the vehicle. Further, there is no evidence on the

record to suggest that Arnold even knew the gun, which was located under the passenger seat and

out of plain view, was in the car. In addition, the gun was not registered to Arnold, and his

fingerprints were not found on the weapon. Arnold’s presence in the vicinity of the weapon is

insufficient basis for conviction. See Birmley, 529 F.2d at 107-08. With no evidence of Arnold’s

knowledge of the gun’s location and no evidence that he exercised dominion or control over the

vehicle in which it was found, no rational trier of fact could find Arnold guilty of constructively

possessing a firearm.

In light of these facts, there is insufficient evidence upon which a rational trier of fact could

infer possession – either actual or constructive – of the firearm by Arnold. Accordingly, Arnold’s

conviction must be set aside.

C. Even if admissible, Gordon’s statements were insufficient evidence of actual

possession to affirm conviction.

Even if Gordon’s statements were admissible, they were insufficient to tie the seized gun to

Arnold. Gordon told the police she saw Arnold with a “black handgun.” (J.A. at 127.) The police

did find a black handgun in the automobile in which Arnold was a passenger. Given that fifty

percent – the estimation of the police11 – of handguns are black, the description was too generic and

overly broad to overcome any rational fact finder’s reasonable doubt that the weapon found was the

same weapon Gordon allegedly saw Arnold wielding.

Further, this Court and others have held that uncorroborated, out-of-court statements are

insufficient bases on which to sustain a conviction. See U.S. v. Orrico, 599 F.2d 113, 118-19 (6th

Cir. 1979) (prior inconsistent statement and past recollection recorded); State v. Webb, 779 P.2d

1108, 1115 (Utah 1989) (out-of-court statement of non-testifying minor); U.S. v. Bahe, 40 F. Supp.

2d 1302, 1311 (D.N.M. 1998) (prior inconsistent statement). Although the type of hearsay evidence

in the cited cases differs from the (presumed) excited utterances in the case at bar, we see no reason

that they should be treated differently or accorded more evidentiary weight than the statements in
No. 04-5384 United States v. Arnold Page 10

the cited cases. See Orrico, 599 F.2d at 118 (adopting prior court’s analysis with regard to prior

inconsistent statement to past recollection recorded). The statements share the common identity of

being out-of-court statements that, but for acknowledged exceptions to the otherwise standard rule

of excluding hearsay evidence, would be excluded from trial.

This case is similar to a recent case decided by this Court. McKenzie v. Smith, 326 F.3d 721,

728 (6th Cir. 2003); cert. denied, 540 U.S. 1158, 124 S. Ct. 1145, 157 L. Ed. 2d 1057 (2004).

McKenzie was convicted of assault with intent to commit murder based on the out-of-court

statement of a minor and absent any physical evidence linking him to the crime or any eyewitness

testimony. The trial court ruled that the minor victim’s out-of-court statement implicating

McKenzie was admissible as an excited utterance and refused to allow introduction of a subsequent

contradictory statement. After a lengthy appellate history, the appellate court ruled that “given the

circumstances of the child’s out-of-court statement and the lack of any corroborating evidence, we

hold – upon the record as a whole – that the petitioner’s conviction is not supported by

constitutionally sufficient evidence.” Id. at 728.

As to the use of out-of-court statements as the basis for conviction, this Court has previously

stated that

. . . when such evidence is the only source of support for the central allegations of the

charge, especially when the statements barely, if at all, meet the minimal

requirements of admissibility, we do not believe that a substantial factual basis as to

each element of the crime providing support for a conclusion of guilt beyond

reasonable doubt has been offered by the Government.

Orrico, 599 F.2d at 118; see also Bahe, 40 F. Supp. 2d at 1309. This Court has previously noted the

importance of the notions of fairness upon which our judicial system is based. Foremost among

them is the “principle that man should not be allowed to be convicted on the basis of unsworn

testimony.” U.S. v. Shoupe, 548 F.2d 636, 644 (6th Cir. 1977) (citations omitted). To that end, we

agree with the rule iterated in Orrico:

They [out-of-court statements] may be used to corroborate evidence which otherwise

would be inconclusive, may fill in gaps in the Government’s reconstruction of

events, or may provide valuable detail which would otherwise have been lost through

lapse of memory. But the Government having offered such statements as the sole

evidence of a central element of the crime charged, we hold that the Government has

failed to sustain its burden of proving guilt beyond a reasonable doubt.

Orrico, 599 F.2d at 119.

Gordon’s out-of-court statements are the only evidence linking Arnold to an alleged criminal

act – possession of a firearm by a convicted felon. There was no physical evidence linking Arnold

to the weapon and no eyewitness testimony. Based on the foregoing analysis, Gordon’s out-of-court

statements alone cannot support conviction. We conclude that Gordon’s out-of-court statements

were insufficient bases upon which to sustain Arnold’s conviction. Accordingly, Arnold’s

conviction must be reversed.

III. Defense Counsel Should Have Been Permitted to Present an Impeachment Witness.

During trial, defense counsel sought to introduce evidence that subsequent to Arnold’s arrest

Gordon had made statements indicating she had not seen Arnold with a gun on the day of the alleged

incident. (J.A. at 66-67.) The trial court refused to admit the evidence ruling that it was hearsay for

which there was no exception. (J.A. at 67-68.)
No. 04-5384 United States v. Arnold Page 11

The Federal Rules of Evidence permit the introduction of impeachment testimony, not as an

exception to hearsay, but as a matter of course.

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E),

has been admitted in evidence, the credibility of the declarant may be attacked, and

if attacked may be supported, by any evidence which would be admissible for those

purposes if the declarant had testified as a witness. . . .

Fed. R. Evid. 806. On the basis of this rule, prior and subsequent inconsistent statements should be

allowed to be introduced at trial to impeach the out-of-court statements of the declarant. See Carver

v. U.S., 164 U.S. 694, 698, 17 S. Ct. 228, 41 L. Ed. 602 (1897) (“As these declarations are

necessarily ex parte, we think the defendant is entitled to the benefit of any advantage he may have

lost by the want of an opportunity for cross-examination.”); see also Fed. R. Evid. 806 advisory

committee notes (1972 Proposed Rules) (“His [the out-of-court declarant’s] credibility should in

fairness be subject to impeachment and support as though he had in fact testified.”).

This Court has misgivings about the trial court’s failure to allow evidence of inconsistent

statements that would tend to impeach the earlier 911 call and Gordon’s statements to police.

However, we need not reach a determination as to what – if any – error occurred as a result of their

exclusion. Our ruling on the insufficiency of evidence against Arnold renders moot the question of

error regarding the trial court’s refusal to allow impeachment testimony. See McKenzie, 326 F.3d

at 728.

CONCLUSION

For the foregoing reasons, we hold that Gordon’s out-of-court statements were inadmissible

hearsay. Further, we hold that there was insufficient evidence introduced at trial to sustain Arnold’s

conviction. Accordingly, we REVERSE and REMAND for entry of a judgment of acquittal.
No. 04-5384 United States v. Arnold Page 12

______________

DISSENT ______________

SUTTON, Circuit Judge. I would handle this case differently. Prior to the Supreme Court’s

decision in Crawford v. Washington, 541 U.S. 36 (2004), the district court allowed the Government

to introduce four pieces of evidence showing that Arnold was a felon in possession of a firearm:

(1) a recording of a 911 call made by Tamica Gordon indicating that Arnold had threatened her with

a gun; (2) testimony by police officers regarding what Gordon told them when they arrived at the

scene soon after the 911 call; (3) testimony by police officers regarding what Gordon said when

Arnold suddenly arrived at the scene; and (4) the gun that police found under the passenger seat

(where Arnold was sitting) of a car that arrived at the scene of the crime. All agree that the district

court permissibly admitted the gun, which was found in connection with a consensual search. And

virtually everyone (the parties and the court) disagrees (1) about what should have happened with

the three other pieces of evidence—whether as a matter of evidence law (the excited-utterance

exception to the hearsay rule) or constitutional law (the Confrontation Clause)—and (2) about

whether sufficient evidence exists to convict, even assuming all four pieces of evidence were

properly admitted. I have one procedural and three substantive qualms with the majority’s

resolution of these issues.

I.

As a matter of procedure, the majority unnecessarily reaches the most vexing issue in the

case—whether the Confrontation Clause permits the introduction of 911 calls in general or this one

in particular. Once one concludes that the 911 call does not satisfy the requirements of the excitedutterance exception to the hearsay rule, as the majority does, it is no more necessary to decide

whether the Confrontation Clause also bars the admission of this evidence than it is to decide

whether another constitutional provision does so. The reason courts traditionally interpret statutes,

rules and administrative regulations before construing the Constitution is to avoid the constitutional

question, not to tee it up. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 341 (1936)

(Brandeis, J., concurring). The majority’s threshold interpretation of Rule 803(2) of the Federal

Rules of Evidence thus makes it quite unnecessary to decide this difficult Confrontation Clause

question. That this was a case submitted on the briefs and without the benefit of oral argument

doubles my conviction that we should not sidestep this canon of interpretation.

As it turns out, moreover, both the constitutional question and the Rule 803(2) question are

unnecessary to the majority’s disposition of this case. For as the court concludes in section II.C of

its opinion, supra at 9–10, even if all of Gordon’s statements were admissible, there still would be

insufficient evidence to convict Arnold of being a felon in possession of a firearm. If that is true,

one does not need to deal with either the statements’ admissibility under Rule 803(2) or their

admissibility under the Confrontation Clause.

II.

A.

As a matter of substance, the majority concludes that the 911 call is not an excited utterance

under Rule 803(2) and concludes that Gordon’s initial statement to police officers shortly after the

911 call is not an excited utterance. I cannot agree on either front.

The 911 Call. In concluding that the excited utterance exception does not apply to the 911

call, the majority makes three essential points. One, “‘the length of time between the event and the
No. 04-5384 United States v. Arnold Page 13

statement’ is a critical—if not the most important—factor in determining whether the statement was

spontaneous.” Supra at 4 (quoting Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050,

1057 (6th Cir. 1983)). Two, “the district court lacked any evidence with which to determine whether

the 911 [call] was made before there was time to contrive or misrepresent.” Supra at 5. Three, in

the absence of evidence as to when Arnold pointed the gun at Gordon—the adrenaline-producing

event—the 911 call is not an excited utterance. Supra at 4–5. (“[T]he record reveals no evidence

as to when the alleged incident between Gordon and Arnold occurred. . . . Without such evidence,

a finding that the 911 call satisfied the spontaneity element for it to be considered an ‘excited

utterance’ was pure supposition.”).

While I have some sympathy for this train of analysis, it is not consistent with our

precedents. As Haggins explains, evidence that a brief “length of time” lapsed “between the event

and the statement” may be a sufficient (and perhaps the most telling) reason for labeling a statement

an excited utterance but it is not a necessary one.

One of the most relevant factors in determining spontaneity is the length of time

between the event and the statement. “Probably the most important of the many

factors entering into this determination is the time factor . . . . Perhaps an accurate

rule of thumb might be that where the time interval between the event and the

statement is long enough to permit reflective thought, the statement will be excluded

in the absence of some proof that the declarant did not in fact engage in reflective

thought process. Testimony that the declarant still appeared ‘nervous’ or

‘distraught’ and that there was a reasonable basis for continuing [to be]

emotional[ly] upset will often suffice.” It is important to remember [ ] that “the

ultimate question is whether the statement was the result of reflective thought or

whether it was a spontaneous reaction to the exciting event.” Thus, a court must take

into account other factors that could affect spontaneity.

Haggins, 715 F.2d at 1057–58 (6th Cir. 1983) (emphasis added) (quoting McCormick’s Handbook

of the Law of Evidence § 297 at 705–06 (2d ed. 1972)); id. at 1058 (“The lapse of time between the

startling event and the out-of-court statement although relevant is not dispositive in the application

of Rule 803(2).”). See also United States v. Schreane, 331 F.3d 548, 564 (6th Cir. 2003) (quoting,

with minor alterations, the emphasized language from Haggins).

Proving that immediacy is not the sole proxy for evidentiary admissibility, Haggins itself

permitted the admission of statements by a four-year-old child who made the statements more than

an hour after the incident but who was still suffering the trauma from it. Other cases from this court,

as well as from other courts, have permitted the admission of statements that were made well after

the startling event but well within the traumatic range of it. See, e.g., United States v. Baggett, 251

F.3d 1087, 1090 n.1 (6th Cir. 2001) (applying the excited utterance exception to statements made

several hours after the last of three separate spousal beatings over a three-day period); United States

v. Green, No. 04-1499, 2005 U.S. App. LEXIS 4393, at *6 (6th Cir. Mar. 16, 2005) (applying the

excited utterance exception to statements made three hours after the startling event); United States

v. Tabaja, No. 02-2359, 2004 U.S. App. LEXIS 3596, at *14–15 (6th Cir. Feb. 23, 2004) (“While

the record does not clearly establish the exact time interval between the startling event and the

contested statement, it does demonstrate that this interval, at its outermost, could not have exceeded

eleven hours. . . . Even assuming that the time interval . . . was eleven hours and long enough for

[declarant] to have contrived that statement, it was, nevertheless, reasonable to conclude that

[declarant’s] excited emotional state at the time that she made that statement persisted.”); see also

United States v. Cruz, 156 F.3d 22, 30 (1st Cir. 1998) (applying the excited utterance exception to

statements made at 8 a.m. when spousal beating ceased at 4 a.m.); Morgan v. Foretich, 846 F.2d

941, 947 (4th Cir. 1988) (applying the excited utterance exception to statements made three hours

after the startling event).
No. 04-5384 United States v. Arnold Page 14

Nor may the district court fairly be faulted for its efforts to deal with the absence of precise

evidence regarding when Arnold wielded the gun at Gordon. For one, Arnold permissibly exercised

his Fifth Amendment right not to discuss the event and Gordon, perhaps with prompting from Arnold

(more on that later), was not available to testify about the event. For another, the district court did

all that could be asked of it in trying to ascertain the timing of the assault in the absence of this more

direct evidence. The court listened to the tape of the 911 call five times, JA 41, 49, 52, to determine

whether Gordon’s language itself established when the startling event occurred and clearly

determined that there was some contemporaneity between the event and the call—at one point

determining that Gordon stated “he’s fixing to shoot me,” not that he “was fixing to shoot me,” JA

52. And while listening to the tape, the court repeatedly noted that Gordon seemed “very excited.”

JA 50, 52. The court then reasoned as follows:

So I think what we seem to have here is an event that occurred, I must say, slightly

less than immediately thereafter or slightly more than immediately after. It was a

little more than immediate. . . . The question is then was it sufficiently close in time

for her ability to misrepresent facts to be overridden by the excitement of what had

occurred. And the 911 tape, while not perfect, in terms of the information submitted

to the court in terms of timing, when listened to appears to support a finding and, it

does support a finding that the three elements are present. . . . The second thing is

that the statement that she made appears to have been made before there was time to

contrive or misrepresent. That appears to be the case. She appears excited, clearly

under the stress and the influence of the event that she had undergone. The record

is less than perfect in this case, but the tape itself strongly supports a finding in favor

of the government.

JA 63–64.

One other aspect of the 911 tape supports the district court’s conclusion that it happened

immediately after Arnold threatened Gordon. After she states that “he’s fixing to shoot me,” she

adds: “so I got in my car and [inaudible] left, and I went around the corner from the house.” On the

basis of this language, it is quite reasonable to infer that Gordon placed the call immediately after

Arnold’s threat prompted her to leave the house and that she did so from a car parked around the

corner from the house. The dispatcher, notably, seems to have reached the same conclusion: “[The

police] will be over there as soon as they can, ok? You just kind of be watching for him, ok?”

Notwithstanding this evidence, if our court demanded a specific finding as to the moment of

the startling event and the lapse of time between the startling event and the out-of-court statement,

I might support the majority’s assessment of this issue. Yet we have held that the exception may

apply based solely on “testimony that the declarant still appeared nervous or distraught and that there

was a reasonable basis for continuing [to be] emotional[ly] upset,” Haggins, 715 F.2d at 1058;

Schreane, 331 F.3d at 564, a conclusion that eliminates an unyielding requirement of a timeline

showing precisely how long ago the threatening event occurred or precisely how much time there was

for contrivance. The district court made this exact finding, a finding supported by evidence that, in

the words of Haggins, “will often suffice.” 715 F.2d at 1058. Until the en banc court sees fit to

modify this precedent, which indeed may be appropriate, I would adhere to it and thus would hold

that the district court did not abuse its discretion in concluding that Gordon’s 911 call was an excited

utterance. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997) (“[A]buse of discretion is the

proper standard of review of a district court’s evidentiary rulings.”); United States v. Beverly, 369

F.3d 516, 540 (6th Cir. 2004) (applying abuse of discretion standard of review to excited utterance

exception); Baggett, 251 F.3d at 1090 n.1 (same).
No. 04-5384 United States v. Arnold Page 15

Nor, contrary to the majority’s conclusion, supra at 4 n.4, does it matter at this point whether

the 911 tape was admitted without proper foundation. As the Federal Rules of Evidence themselves

make clear, Arnold may waive this objection, see Fed. R. Evid. 103(a), which he in fact did.

Gordon’s statement to officers soon after the 911 call. The majority next concludes that

the district court erred in finding that Gordon’s statement to officers soon after they responded to the

911 call constituted an excited utterance. I again disagree. An additional five or six minutes (JA

114), not fifteen minutes, see supra at 5, lapsed between the 911 call and the officers’ arrival on the

scene. And the district court permissibly exercised its discretion under our precedents in finding that

Gordon was still very excited and crying when the officers arrived and in concluding that her

statement still constituted an excited utterance. See JA 79–80 (“[T]he witness’s ability to contrive

or misrepresent appears to not exist. She appears to, based on the officer’s testimony, to be

overwhelmed by the facts and circumstances, fearful as a result of the incident, highly excited, very

emotional at the time. She has been exposed to an event which is startling and reasonably would

cause anybody to have great nervous excitement, and she did respond in that way, and there does not

appear to have been time to contrive or misrepresent.”); id. at 80–81 (“The degree of excitement by

the witness appears to be really beyond serious question, . . . so all we have left is the statement must

be made before there is time for contrivance or misrepresentation, and the court finds that there is

sufficient evidence to support that determination.”).

Gordon’s statement to officers after Arnold suddenly pulled up next to the police car.

Within a minute of the officers’ arrival, a car with Arnold in it pulled up next to the police car, at

which point Gordon made the last of her statements admitted as excited utterances: “That’s him,

that’s the guy who pulled a gun on me, Joseph Arnold, that’s him.” JA 115. The district court found

this statement admissible as part of the same emotional trauma that captured Gordon’s overall

statements to responding officers. On top of that, the unexpected arrival of the defendant at the scene

of the crime could itself suffice to trigger a startling event and excited verbal response. Cf. Beverly, 369 F.3d at 539–40 (holding that showing a photograph of the declarant’s husband robbing a bank

was a startling event sufficient to evoke an excited utterance); United States v. Scott, No. 02-1139,

2003 U.S. App. LEXIS 14091, at *12–13 (6th Cir. July 10, 2003) (upholding the introduction of

excited utterance by police officer in the course of chasing suspect on foot); United States v. Taylor, No. 92-5120, 1992 U.S. App. LEXIS 29048, at *3 (6th Cir. Nov. 5, 1992) (upholding the introduction

of excited utterance made when armed officers entered home to execute a search warrant). Either

way, whether as part of Gordon’s spontaneous narrative to responding officers or as a reaction to

Arnold’s sudden arrival on the scene, I agree with the majority that the district court did not abuse

its discretion under our precedents in concluding that this last statement could be admitted under Rule

803(2).

B.

As another matter of substance, I would handle the Confrontation Clause claim differently.

In addressing this issue, the district court did so in the context of a pre-Crawford world. Quite

understandably then and quite wrongly now, it reasoned that the applicability of a modern hearsay

exception (here, excited utterances) freed the evidence from challenge under the Confrontation

Clause in accordance with Ohio v. Roberts, 448 U.S. 56 (1980). As the majority correctly recognizes,

that is no longer an accurate method of analysis. See Crawford, 541 U.S. at 61 (“Where testimonial

statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s

protection to the vagaries of the rules of evidence.”). Under Crawford, when the prosecution seeks

to introduce “testimonial” statements against a criminal defendant, when in the words of the Sixth

Amendment the “accused” is being subject to “witnesses against him,” U.S. Const. amend. VI, the

defendant generally will have a right to confront those witnesses—without regard to what the

modern-day Federal (or State) Rules of Evidence have to say about the matter. But see Crawford, 541 U.S. at 56 n.6 (acknowledging that hearsay exception for dying declarations may present an
No. 04-5384 United States v. Arnold Page 16

exception to the Confrontation Clause “on historical grounds” but if so “it is sui generis”); cf. id. at

58 n.8 (observing that any tradition of admitting spontaneous declarations applied at most to

statements made “immediat[ely] upon the hurt received”) (quoting Thompson v. Trevanion, Skin.

402, 90 Eng. Rep. 179 (K.B. 1694)). In re-calibrating the Confrontation Clause analysis, however,

Crawford does not alter the forfeiture-by-wrongdoing exception to the Clause, which applies when

the criminal defendant is responsible for the witness’s unavailability. See 541 U.S. at 62 (accepting

the rule as an “exception to the Confrontation Clause” on “essentially equitable grounds”).

Crawford, then, prompts two inquiries that the parties had no reason to debate below, that the

district court had no reason to consider and that the district court had no reason to make any

factfindings about: Were Gordon’s three statements “testimonial” in nature? And even if the

statements were testimonial, was Arnold responsible for Gordon’s unavailability? Let me consider

each in turn. 

1.

The 911 Call. My first objection to the majority’s analysis is its conclusion that all 911 calls

are testimonial. In United States v. Cromer, 389 F.3d 662 (6th Cir. 2004), the court suggested the

following test for ascertaining whether a statement is testimonial or not: “whether a reasonable

person in the declarant’s position would anticipate his statement being used against the accused in

investigating and prosecuting the crime.” Id. at 675. I am hard pressed to understand how a

“reasonable person” test prompts the conclusion that all 911 calls are testimonial. Surely a victim’s

fear-induced statement to a 911 dispatcher that he is being chased through the house by an assailant

is nothing more than a fervent cry for help, not a “solemn declaration or affirmation made for the

purpose of establishing or proving some fact” in a court of law. Crawford, 541 U.S. at 51. See

Leavitt v. Arave, 383 F.3d 809, 830 n.22 (9th Cir. 2004) (holding that a victim’s fearful statements

to 911 dispatchers and responding officers were not testimonial); People v. Conyers, 777 N.Y.S.2d

274, 276 (N.Y. Sup. 2004) (holding that 911 calls were not testimonial because it was clear to the

court, “having heard the panicked and terrified scream of Ms. Conyers[], that her intention in placing

the 911 calls was to stop the assault in progress and not to consider the legal ramifications of herself

as a witness in a future proceeding”); Pitts v. State, No. A04A1621, 2005 Ga. App. LEXIS 50, at *12

(Ga. Ct. App. Jan. 24, 2005) (holding that victim’s statements on 911 call were not testimonial

because they were made while the incident was ongoing, because the purpose was to stop a crime and

because the statements were made without premeditation or afterthought); State v. Wright, 686

N.W.2d 295, 302 (Minn. Ct. App. 2004), review granted, 2004 Minn. LEXIS 750 (Minn. Nov. 23,

2004) (holding that 911 call “moments after the criminal offense and under the stress of the event”

was not testimonial); People v. Corella, 18 Cal. Rptr. 3d 770, 776 (Cal. Ct. App. 2004) (same); see

generally Akhil Reed Amar, Confrontation Clause First Principles: A Reply to Professor Friedman, 86 Geo. L.J. 1045, 1045 (1998) (The Confrontation “Clause encompasses only those ‘witnesses’ who

testify either by taking the stand in person or via government-prepared affidavits, depositions,

videotapes, and the like.”).

Doubtless, judges are poorly equipped to play arm-chair psychologists or crime-trauma

experts (and perhaps appellate judges are even more poorly equipped to do so). But it does not seem

unduly speculative to conclude that the state of mind of few 911 callers faced with an imminent threat

of violence will bear the collected features that the Court has ascribed to “testimonial”

evidence—namely, a “solemn declaration or affirmation made for the purpose of establishing or

proving some fact” in a court of law. Crawford, 541 U.S. at 51. One can only admire the presence

of mind of a 911 caller who feels that way. At all events, that is not what we have here: The district

court found that Gordon was “upset to the point that she was having difficulty speaking.” Supra at 2.

Nor do statements made by individuals who are overcome by the threat that confronts them

bear apt analogy to the types of statements that the Court has deemed to be testimonial in nature.
No. 04-5384 United States v. Arnold Page 17

Such emergency calls can hardly be said invariably to amount to “ex parte in-court testimony or its

functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony

that the defendant was unable to cross-examine, or similar pretrial statements that declarants would

reasonably expect to be used prosecutorially; extrajudicial statements contained in formalized

testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” Crawford, 541

U.S. at 51–52 (quotations and citations omitted). 

The majority does not overcome these objections by invoking modern-day dictionary

definitions of “testimonial,” supra at 7, that equate “testimonial” with “evidence.” If the only

question in a Confrontation Clause case is whether the government wishes to introduce “evidence,”

there will be little suspense as to whether the Clause applies and great suspense as to what it means

to make a non-testimonial statement. Neither do I understand how this inquiry could turn on whether

the 911 caller is “the only witness to the alleged incident.” Supra at 7. As in this case, fear

frequently will be the emotion that makes it difficult, if not impossible, to say that the 911 caller in

a criminal case is making a “solemn declaration or affirmation.” Crawford, 541 U.S. at 51. And that

fear generally will increase rather than diminish when the witness is alone. To the extent the number

of witnesses to a crime affects this inquiry at all, it seems to me that an isolated individual is more

apt to make a non-testimonial statement than an accompanied one.

It is one thing, I realize, to disagree with your colleagues’ assessment of an issue; it is quite

another to propose an alternative, which in this instance proves that it is far easier to write a

Constitution than to interpret one. In my view, this 911 call, and indeed most 911 calls, should be

treated as non-testimonial. An emergency call does not naturally satisfy the Court’s definitions of

“testimonial” evidence—either because it is not a “solemn declaration or affirmation made for the

purpose of establishing or proving some fact” in a court of law, id., or because it is not a statement

that “declarants would reasonably expect to be used prosecutorially,” id. at 51–52. As in this case,

a 911 call generally will be a plea for help, not an effort to establish a record for future prosecution.

A 911 call represents a backward-looking response to an emergency that has already occurred or a

contemporaneous response to an emergency that is occurring, not a forward-looking statement about

a criminal prosecution that may or may not occur. Such calls also bear poor analogies to the kinds

of testimonial statements that the Court has said will traditionally qualify—“affidavits, depositions,

prior testimony, or confessions,” id. at 51–52. Add to these considerations the following realities—

that the call is frequently made in the context of real or perceived emergencies, that the call is

frequently answered by operators who are not employed by law enforcement and that when the call

is answered by law enforcement personnel that fact is by no means clear to the caller—and it seems

to me that the 911 call that qualifies as testimonial evidence will be the exception, not the rule. 

While this approach likely will mean that most 911 calls will be admissible, it does not mean

that all of them will be admitted. There may well be situations where the 911 call is not far removed

from a deliberative statement to investigating officers or where, to borrow a phrase from Professors

Friedman and McCormack, it amounts to nothing less than “dial-in testimony.” Richard D. Friedman

& Bridget McCormack, Dial-In Testimony, 150 U. Pa. L. Rev. 1171 (2002). District court judges

are well equipped to determine on a case-by-case basis whether such an exception ought to apply,

and we are well equipped to ensure that in the general run of cases “dial-in testimony” is not being

admitted. To the extent there is doubt in this case about whether Gordon’s 911 call should be

testimonial, I would have preferred to give the district court an opportunity, so far denied to it, to

consider the admissibility of the call in the aftermath of Crawford.

In considering this issue, I cannot resist commenting on the nexus between the “excited

utterance” inquiry and the “testimonial” inquiry. When a district court finds that a 911 call “relate[s]

to a startling event or condition made while the declarant was under the stress of excitement caused

by the event or condition”—when in other words the trial judge finds that the call qualifies as an

excited utterance under Rule 803(2) of the Federal Rules of Evidence—it often would seem to be the
No. 04-5384 United States v. Arnold Page 18

case that the call is not testimonial in nature. It is very difficult to imagine a “solemn” excited

utterance or even a semi-solemn excited utterance. Any statement that takes on the qualities that the

Court has ascribed to the definition of testimonial evidence (a “solemn declaration . . . ,” Crawford, 541 U.S. at 51) or to agreed-upon forms of testimonial evidence (“affidavits, depositions, prior

testimony, or confessions,” id. at 51–52) would seem to depart from the prerequisites for establishing

an excited utterance. To respect the one set of requirements would seem to disrespect the other. In

the end, the number of “solemn” statements that also happen to “relate to a startling event or

condition made while the declarant was under the stress of excitement caused by the event or

condition” may be something approaching a null set. 

While this additional consideration is in tension with Crawford’s rejection of the Roberts

regime, it is not clear that Crawford makes the inquiry a forbidden one. True, Roberts linked the

Confrontation Clause inquiry to whether the testimony was eligible for admission under an accepted

hearsay exception. True also, Crawford broke that linkage in concluding that “we do not think the

Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence.”

541 U.S. at 61. But in reaching that conclusion, the Court did so only “[w]here testimonial

statements are involved.” Id. It never addressed—it had no reason to address—whether the Rules

of Evidence could offer insight on whether a statement was “testimonial” or not. Because the very

qualities that make a statement an “excited utterance” seem distantly removed from the qualities of

“solemn declarations” or statements that “declarants would reasonably expect to be used

prosecutorially,” it is difficult to believe that the Court meant to preclude lower courts from

considering whether the Rule 803(2) factfindings and conclusion bear on whether a statement is

testimonial or not. Nor, in contrast to Roberts, will the Rule 803(2) analysis invariably be conclusive.

District courts may admit excited utterances under Rule 803(2) that appellate courts should uphold

under an abuse-of-discretion standard but that they should not uphold under a Confrontation Clause

challenge and the de novo review that accompanies it. In this case, at any rate, I would conclude that

the 911 call was not testimonial or at a minimum I would remand the issue to the district court for

its consideration in the first instance in the aftermath of Crawford. 

Gordon’s two other statements—(1) to officers immediately after the 911 call and (2) to

officers after Arnold suddenly pulled up next to the police car in which Gordon was sitting.

Statements to investigating officers represent a step removed from a 911 call; they will be made

consciously to police officers; and in my view they frequently will be testimonial in nature. In

contrast to 911 calls, they present a more meaningful analogy to the kinds of statements that the Court

has held generally will be testimonial in nature. See, e.g., United States v. Neilsen, 371 F.3d 574, 581

(9th Cir. 2004) (finding statement to an officer during execution of search warrant testimonial);

Moody v. State, 594 S.E.2d 350, 353–54 (Ga. 2004) (finding victim’s statement to investigating

officer “shortly after” event testimonial); State v. Bell, 603 S.E.2d 93, 116 (N.C. 2004) (finding

statement to investigating officer testimonial because it “was made to further [the officer’s]

investigation of the crime”); Lee v. State, 143 S.W.3d 565 (Tex. Ct. App. 2004) (finding statement

to officer at scene of incident after declarant was arrested testimonial).

But I would not go so far as to say, as the majority does, supra at 7, that the fact that a

statement was made to government officials by itself indicates that the statements were testimonial.

That will not always be the case. See Leavitt, 383 F.3d at 830 n.22 (9th Cir. 2004) (holding that a

victim’s fearful statements to 911 dispatchers and responding officers were not testimonial); People

v. Newland, 775 N.Y.S.2d 308, 309 (N.Y. App. Div. 2004) (finding nontestimonial a brief, informal

remark made to an officer conducting a field investigation because no structured police questioning

occurred and the interaction bore no resemblance to civil-law abuses against which the Confrontation

Clause was written to protect); Hammon v. State, 809 N.E.2d 945, 952 (Ind. Ct. App. 2004) (“[W]hen

police arrive at the scene of an incident in response to a request for assistance and begin informally

questioning those nearby immediately thereafter in order to determine what has happened, statements

given in response thereto are not ‘testimonial.’ Whatever else police ‘interrogation’ might be, we do
No. 04-5384 United States v. Arnold Page 19

not believe that word applies to preliminary investigatory questions asked at the scene of a crime

shortly after it has occurred.”). 

In this instance, the factfindings made by the district court in connection with its Rule 803(2)

rulings suggest that these two statements represent the exception that proves the rule. In the district

court’s view, Gordon was “overwhelmed by the facts and circumstances, fearful as a result of the

incident, highly excited, very emotional at the time.” JA 79–80. While most statements made

directly and consciously to investigating officers will be testimonial, the reality that Gordon was still

overcome by the threatened assault in this case suggests that they were not “solemn declarations” or

statements that “declarants would reasonably expect to be used prosecutorially.” I thus either would

uphold the admission of both statements as non-testimonial in nature or remand the case to the district

court to consider the question in the first instance. 

2. 

In addition to the question whether these statements were non-testimonial in nature, Crawford

heightens the importance of another exception to the Confrontation Clause—the rule of forfeiture by

wrongdoing. Under this doctrine, a defendant may not sustain a Confrontation Clause objection if

the defendant is responsible for the declarant’s unavailability at trial. As we have explained:

Employing either a concept of implicit waiver of confrontation or the principle that

a person should not profit by his own wrong, English and American courts have

consistently relaxed the hearsay rule when the defendant wrongfully causes the

witness’s unavailability. The theory of the cases appears to be that the disclosure of

relevant information at a public trial is a paramount interest, and any significant

interference with that interest, other than by exercising a legal right to object at the

trial itself, is a wrongful act. Wrongful conduct obviously includes the use of force

and threats, but it has also been held to include persuasion and control by a

defendant, the wrongful nondisclosure of information, and a defendant’s direction

to a witness to exercise the fifth amendment privilege.

Steele v. Taylor, 684 F.2d 1193, 1201 (6th Cir. 1982) (collecting cases, including (1) Reynolds v.

United States, 98 U.S. 145 (1879); (2) Lord Morley’sCase, 6 State Trials 770 (1666); (3) Harrison’s

Case, 12 State Trials 851 (1692); and (4) Regina v. Scaife, 117 Rev. Rep. 1271 (Q.B. 1851)); see

also Fed. R. Evid. 804(b)(6) (allowing “a statement offered against a party that has engaged or

acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant

as a witness”) (enacted after Steele).

 Our court recently confirmed that the forfeiture doctrine remains alive and well in the

aftermath of Crawford, concluding that it applies even if the defendant’s wrongdoing was not

motivated by an effort to keep an individual off of the witness stand. 

There is no requirement that a defendant who prevents a witness from testifying

against him through his own wrongdoing only forfeits his right to confront the

witness where, in procuring the witness’s unavailability, he intended to prevent the

witness from testifying. Though the Federal Rules of Evidence may contain such a

requirement, see Fed. R. Evid. 804(b)(6), the right secured by the Sixth Amendment

does not depend on, in the recent words of the Supreme Court, “the vagaries of the

Rules of Evidence.” Crawford, 124 S. Ct. at 1370. The Supreme Court’s recent

affirmation of the “essentially equitable grounds” for the rule of forfeiture strongly

suggests that the rule’s applicability does not hinge on the wrongdoer’s motive. The

Defendant, regardless of whether he intended to prevent the witness from testifying

against him or not, would benefit through his own wrongdoing if such a witness’s
No. 04-5384 United States v. Arnold Page 20

statements could not be used against him, which the rule of forfeiture, based on

principles of equity, does not permit.

United States v. Garcia-Meza, 403 F.3d 364, 370–71 (6th Cir. 2005).

At Gordon’s contempt-of-court hearing for failing to appear to testify, the government

introduced evidence suggesting that Gordon’s mother, who was Arnold’s girlfriend at the time of

the assault, pressured Gordon not to testify against Arnold. During the hearing, the government

posed the following question: “Ms. Gordon, you have been getting a little bit of pressure prior to

the trial in November from family members about—specifically your mother about being involved

in all this, is that fair to say?” JA 254. In response, Gordon answered yes. While Gordon later

contended that this pressure did not explain her decision not to call the prosecutor’s office to report

her unavailability to testify, one need not be an incorrigible cynic to question whether Gordon’s

mother (with Arnold’s support) played a role in her daughter’s decision not to testify at Arnold’s

trial. See United States v. Mayes, 512 F.2d 637, 651 (6th Cir. 1975) (holding that the defendant

procured the declarant’s unavailability when his counsel advised the declarant to invoke his Fifth

Amendment right against self-incrimination and there was evidence that the attorney had the

interests of the defendant, not the declarant, in mind and concluding that, despite any direct evidence

of defendant’s own involvement, it “must assume defendant concurred” in his counsel’s actions);

see also United States v. Potamitis, 739 F.2d 784, 788–89 (2d Cir. 1984) (applying forfeiture

doctrine when defendant’s father intimidated two witnesses into not appearing for trial).

Nor can the significance of this exception to the Confrontation Clause be overstated in the

aftermath of Crawford. A significant percentage of Confrontation Clause disputes have arisen, and

sadly are apt to continue to arise, in the context of domestic-abuse and other domestic-disturbance

situations, where family members who have prompted a police investigation (usually through a 911

call) later become “unavailable” to testify. In these situations, there is a palpable risk that the same

threats of domestic violence that prompted the 911 call were later used to dissuade a family member

from testifying. See also Friedman & McCormack, supra, at 1174–75; Richard D. Friedman,

Confrontation and the Definition of Chutzpa, 31 Isr. L. Rev. 506 (1997).

Under these circumstances and on this scant record, I would remand the case to the district

court to hold a hearing on whether Arnold impermissibly played a role in Gordon’s decision not to

testify. Neither the district court nor the parties in the first instance had a reason to consider the

applicability of this exception to the Confrontation Clause. See Reynolds, 98 U.S. at 145 (“[T]he

question [of wrongfully procuring witness unavailability] becomes practically one of fact, to be

settled as a preliminary to the admission of secondary evidence.”); Steele, 684 F.2d at 1201 (citing

Reynolds for this proposition). They should be given that opportunity now. 

C.

As a final matter of substance, I cannot agree with the majority’s sufficiency-of-the evidence

ruling. The majority concludes alternatively that all of this is irrelevant because even if all three of

Gordon’s statements were admissible, there still would be insufficient evidence to sustain Arnold’s

conviction in this case and accordingly any re-prosecution is barred by double jeopardy. See supra

section II.C. This conclusion has no precedent or policy to recommend it.

Arnold challenges the sufficiency of the evidence of just one element of the felon-inpossession-of-a-firearm charge: Did he possess a firearm? If we assume in addressing this

argument that all four pieces of evidence were properly admitted, as we must, then a jury plainly

could conclude beyond a reasonable doubt that he possessed the gun. After all, Gordon told a 911

caller that Arnold threatened her with a gun; she told the police after they arrived at the crime scene

that Arnold “pulled a gun on her” and threatened to kill her with a black handgun; when Arnold
No. 04-5384 United States v. Arnold Page 21

suddenly returned to the scene of the crime in a car, Gordon pointed to him and told the police

“That’s him, that’s the guy who pulled a gun on me, Joseph Arnold, that’s him,” JA 115; then the

police found a black handgun under the passenger seat of the car where Arnold was sitting.

Even if virtually every individual in America owned the same type of black handgun found

under Arnold’s car seat, surely this evidence cumulatively would suffice to show that Arnold

possessed a handgun. The first statement, if properly admitted, should suffice by itself to sustain

this element of the crime. The second statement and the recovery of the handgun under Arnold’s

car seat remove any conceivable doubt about the sufficiency of the evidence. And the third

statement (“That’s him, that’s the guy who pulled a gun on me, Joseph Arnold, that’s him.”) leaves

me wondering what else there is to say.

There is one more thing to say: Precedent offers no refuge for the majority’s ruling and

specifically for its across-the-board conclusion that “uncorroborated, out-of-court statements are

insufficient bases on which to sustain a conviction.” Supra at 9. If a district court permissibly

admits hearsay evidence, that evidence of course may provide the requisite evidence to convict. Not

always, of course, but assuredly in some cases, if not most cases. Otherwise, what is the point of

admitting it? Just to corroborate the non-hearsay evidence? And surely when three pieces of

hearsay evidence, backed up by one piece of non-hearsay evidence, all point unconditionally in the

same direction, that evidence cumulatively may support the conviction.

The quartet of cases upon which the majority relies—United States v. Orrico, 599 F.2d 113

(6th Cir. 1979), McKenzie v. Smith, 326 F.3d 721 (6th Cir. 2003), State v. Webb, 779 P.2d 1108

(Utah 1989), and United States v. Bahe, 40 F. Supp. 2d 1302 (D.N.M. 1998)—say nothing to the

contrary. None of them involves four pieces of corroborating evidence; none of them involves

remotely similar facts; and none of them declares that “uncorroborated, out-of-court statements are

insufficient bases on which to sustain a conviction.” Supra at 9. 

Orrico held that “under the circumstances of this case,” 599 F.2d at 119, statements admitted

as a past recollection recorded, which “barely, if at all, met the minimal requirements of

admissibility,” id. at 118, were not sufficient to sustain a conviction. While the majority “see[s] no

reason that [excited utterances] should be treated differently” from statements admitted as past

recollections recorded, supra at 10, it offers no reason why they should be treated the same, and

above all it offers no reason why a conviction supported by four pieces of evidence (hearsay and

non-hearsay alike) can be meaningfully compared to Orrico.

McKenzie held that “given the circumstances” of the excited utterance admitted against the

defendant, 326 F.3d at 728, the conviction was not supported by sufficient evidence. Those

circumstances, however, have no identifiable parallel to this case. The excited utterance in

McKenzie was that of a declarant not competent to testify, who at the time of the statement was

three years old, “did not appear normal psychologically” and suffered from an “acutely deranged

abnormal condition.” Id. Webb likewise held that a one-year-old’s out of court statements (“Ow,

bum” and “Ow, bum daddy”) did not alone prove the mens rea required to establish aggravated

sexual abuse. 779 P.2d at 1115.

And in Bahe, the court cautioned that it “has no intention of adopting a per se rule regarding

the sufficiency of a prior inconsistent statement to support a conviction, nor will this Court conclude

that evidence in this case is insufficient based on a rigid application of such a rule.” 40 F. Supp. 2d

at 1310–11. It then concluded only that the declarant’s prior inconsistent statement (that the

defendant had abused her) provided insufficient evidence to convict because it conflicted with her

live, in-court testimony (that the defendant had not abused her). Id. at 1311.
No. 04-5384 United States v. Arnold Page 22

In the final analysis, I would hold that a rational jury could conclude that uncontradicted

evidence showing that the defendant pointed a gun at the victim, that the defendant was identified

as the man who pointed the gun and that a gun was found under the defendant’s car seat suffices to

establish that the defendant was guilty of being a felon in possession of a gun.