*

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: 05a0451a.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSEPH ARNOLD,

Defendant-Appellant.

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No. 04-5384

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

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

Submitted: March 9, 2005

Decided and Filed: November 23, 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.

The court delivered a PER CURIAM opinion. SUTTON, J. (pp. 10-14), delivered a separate

dissenting opinion.

______________________

AMENDED OPINION

______________________

PER CURIAM. This matter is before the Court on the government’s petition for rehearing

en banc. Upon consideration of the relevant briefs and the record, we vacate our prior opinion,

United States v. Arnold, 410 F.3d 895 (6th Cir. 2005), and replace it with this amended opinion.

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

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

1

Gordon did not testify at trial. Therefore, all references in this opinion to Gordon’s statements and actions in

the presence of the responding officers are derived from the officers’ testimony.

2

The initial conversation between Gordon and the officers apparently lasted between thirty seconds and five

minutes.

whom the defense sought to introduce to impeach the statements of the accuser. For the reasons

stated herein, we REVERSE and REMAND the case for entry of a judgment of acquittal.

I. BACKGROUND

At about 7:43 a.m. on September 19, 2002, 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”).

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. The officers later learned

that the young woman’s name was Tamica Gordon. 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.1

 (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. An officer interpreted Gordon’s hand gestures to indicate

a semiautomatic weapon with a chambered round.

During a brief conversation,2

 Gordon began to calm. A short time after the officers arrived,

a car pulled up to the address where Gordon and the officers were conversing. A woman was

driving the car, and a man was in the passenger seat. As the car pulled up, Gordon became excited

again. 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.

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. Arnold was cooperative and did not attempt to elude the

police or run away. The officers then asked for and received consent from the car’s owner

(Gordon’s mother) to search the automobile. Under the passenger seat of the automobile, the

officers found a black, semiautomatic handgun with a chambered round. The gun was in a clear

plastic bag when the police located it. There were no fingerprints on the gun, and it was not stolen.

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

that the gun was his.

The government subpoenaed Gordon for the trial, but she did not appear. 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. The

government argued that the 911 tape was admissible under two exceptions to the hearsay rule:

excited utterance and present sense impression. The government argued that Gordon’s statements

to the police were admissible as excited utterances.

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 but not as a present sense impression. The District Court

also ruled that Gordon’s statements to the police at the scene of Arnold’s arrest were admissible as
No. 04-5384 United States v. Arnold Page 3

excited utterances. In issuing his ruling, the 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.)

II. ANALYSIS

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

“Where the sufficiency of the evidence is properly before us, we consider that issue first

because it is determinative of whether the appellant may be retried.” United States v. Aarons, 718

F.2d 188, 189 n.1 (6th Cir. 1983); see also United States v. Orrico, 599 F.2d 113, 116 (6th Cir.

1979) (“We decide the issue of sufficiency of the evidence, rather than admissibility, because the

former issue is determinative of the question whether [the defendant] may be retried.”); Delk v.

Atkinson, 665 F.2d 90, 93 n.1 (6th Cir. 1981) (“Several courts including this one have indicated that

where it is claimed on appeal from a federal conviction that the evidence was insufficient, the

reviewing court is required to decide the sufficiency question even though there might be other

grounds for reversal which would not preclude retrial.”).

A. Standard of Review

In reviewing Arnold’s insufficient-evidence claim, “we must determine ‘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.’” United States v.

Humphrey, 279 F.3d 372, 378 (6th Cir. 2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)) (emphasis in Jackson). “This Court reverses a judgment for insufficiency of the evidence

‘only if [the] judgment is not supported by substantial and competent evidence upon the record as

a whole.’” United States v. Barnett, 398 F.3d 516, 522 (6th Cir.) (quoting United States v. Stone, 748 F.2d 361, 363 (6th Cir. 1984)) (alteration in original), cert. dismissed, — U.S. —, 126 S. Ct. 33

(2005). “In addressing sufficiency of the evidence questions, this Court has long declined to weigh

the evidence, consider the credibility of witnesses, or substitute its judgment for that of the jury.”

United States v. Chavis, 296 F.3d 450, 455 (6th Cir. 2002) (quoting United States v. Ferguson, 23

F.3d 135, 140 (6th Cir.), cert. denied, 513 U.S. 900 (1994)) (internal quotation marks omitted).

“This standard places a ‘very heavy burden’ upon a defendant making a sufficiency of the evidence

challenge.” Id. (quoting United States v. Tocco, 200 F.3d 401, 424 (6th Cir. 2000)).

When reviewing a sufficiency claim, we consider all the evidence, even if it was improperly

admitted at trial. See United States v. Quinn, 901 F.2d 522, 531 (6th Cir. 1990) (“We are . . . left

with determining whether the evidence ruled inadmissible, with that which was properly presented

before the jury, was sufficient under Jackson v. Virginia . . . .”); Johnson v. Coyle, 200 F.3d 987, 994

(6th Cir. 2000) (recognizing Quinn and therefore considering — with respect to a habeas challenge

claiming insufficient evidence — hearsay that the state supreme court had held to be improperly

admitted at trial). The Supreme Court offered the following rationale for this rule:
No. 04-5384 United States v. Arnold Page 4

3

Gordon included no additional details in her description of the firearm; however, an officer interpreted her

hand gestures to indicate a semiautomatic gun with a chambered round.

[A] reversal for insufficiency of the evidence should be treated no differently than

a trial court’s granting a judgment of acquittal at the close of all the evidence. A trial

court in passing on such a motion considers all the evidence it has admitted, and to

make the analogy complete it must be this same quantum of evidence which is

considered by the reviewing court.

Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988).

B. Merits

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

U.S.C. § 922(g)(1). “To obtain a conviction pursuant to § 922(g)(1), the government must prove

beyond a reasonable doubt: (1) that the defendant has a prior conviction for a crime punishable by

imprisonment for a term exceeding one year; (2) that the defendant thereafter knowingly possessed

the firearm and ammunition specified in the indictment; and (3) that the possession was in or

affecting interstate commerce.” United States v. Schreane, 331 F.3d 548, 560 (6th Cir.) (quoting

United States v. Daniel, 134 F.3d 1259, 1263 (6th Cir.) (internal quotation marks omitted), cert.

denied, 525 U.S. 830 (1998)), cert. denied, 540 U.S. 973 (2003). On appeal, Arnold challenges only

the possession element.

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

verdict. United States v. Moreno, 933 F.2d 362, 373 (6th Cir.), cert. denied, 502 U.S. 895 (1991).

“Both actual possession and constructive possession may be proved by direct or circumstantial

evidence.” United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.), cert. denied, 414 U.S. 866

(1973).

The prosecution presented the following evidence to establish possession: (1) the gun that

was found under Arnold’s seat in Gordon’s mother’s car and (2) Gordon’s statements to the 911

dispatcher and the responding officers that at some unspecified time before the discovery of the

firearm, Arnold threatened Gordon with a black gun.3

 For the following reasons, we find that the

evidence presented at Arnold’s trial was insufficient to support his conviction.

1. Actual Possession

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

of the party.” United States v. Beverly, 750 F.2d 34, 37 (6th Cir. 1984) (quoting Craven, 478 F.2d

at 1333). Put another way, “[a] person who knowingly has direct physical control over a thing at

a given time is then in actual possession of it.” United States v. Frederick, 406 F.3d 754, 765 (6th

Cir. 2005) (quoting United States v. Wolfenbarger, 426 F.2d 992, 994 (6th Cir. 1970)) (internal

quotation marks omitted). Here, the prosecution presented no evidence showing that Arnold had

“direct physical control over” the relevant “tangible object,” i.e., the gun recovered from the vehicle,

at the “given time,” i.e., when the police found the firearm. The gun was not found on Arnold’s

person. See United States v. Pugh, 405 F.3d 390, 394, 404 (6th Cir. 2005) (officers found the

defendant in bed with a shotgun “beneath his body,” so he “actually possessed the gun when he was

apprehended”). Nor did the officers see Arnold holding the firearm just prior to its recovery. See

United States v. Caraway, 411 F.3d 679, 680, 683 (6th Cir. 2005) (officer saw the defendant holding

a firearm, which was then recovered where the officer saw the defendant drop it while fleeing);

United States v. Martin, 399 F.3d 750, 754 (6th Cir. 2005) (same); Barnett, 398 F.3d at 522 (same).
No. 04-5384 United States v. Arnold Page 5

4

The dissent asserts that there was sufficient evidence to prove that the two guns were one and the same and

that Arnold therefore actually possessed it. For various reasons, the cases cited by the dissent are readily distinguishable.

In several cases, an officer saw the defendant both holding the firearm and throwing it away while fleeing, and

the gun was recovered either where the defendant was initially encountered or along the path of his flight. Barnett, 398

F.3d at 522; United States v. Smith, 79 F. App’x 97, 99 (6th Cir. 2003) (unpublished opinion); see also United States

v. Burl, 13 F. App’x 408, 409, 411-12 (6th Cir. 2001) (unpublished opinion) (an officer saw the fleeing defendant

“shifting the gun between his left and right hands” before losing sight of him; a firearm matching the one the officer had

seen was found in the yard of a nearby house). No such evidence was presented here.

In two cases, the firearm was recovered in a vehicle owned or operated by the defendant. United States v.

Patterson, 23 F.3d 1239, 1243-44 (7th Cir.) (also, at trial the victim-witness identified the recovered firearm as the one

the defendant had used to threaten her), cert. denied, 513 U.S. 1007 (1994); United States v. Black, 525 F.2d 668, 669

(6th Cir. 1975) (also, ammunition and a rack fitting the recovered firearm were found in the defendant’s home, and a

witness testified that he had seen the defendant with that firearm on several prior occasions). Arnold neither owned nor

drove the vehicle in which the gun was discovered. For the same reason, we do not rely on cases in which the firearm

was found in a residence owned or otherwise controlled by the defendant. United States v. Crowe, 291 F.3d 884, 885-87

(6th Cir. 2002) (also, the defendant admitted that he kept a firearm in his bedroom and an officer saw the defendant

carrying a similar gun on a prior occasion); United States v. Brewer, 20 F. App’x 539, 540-41 (7th Cir. 2001)

(unpublished opinion) (also, the defendant, who claimed the gun belonged to his wife, was seen wearing his wife’s

security-guard shirt, hat, and holster); United States v. Smith, No. 90-2293, 1991 WL 182634, at *1, *3 (6th Cir. Sept.

18, 1991) (unpublished opinion) (firearm 1: a witness bought the firearm for the defendant, witnesses saw the defendant

with the firearm, and an owner’s manual and ammunition for that type of gun was found in the defendant’s apartment;

firearm 2: a witness “knew” that the defendant carried that type of gun on his person, another witness saw the defendant

outside his door and heard him yell “Open the door or I’ll shoot” before he was shot, and the defendant later admitted

to shooting that witness; firearm 3: the gun was found in a strong box only accessible to the defendant and his girlfriend,

ammunition for that type of gun and photographs of the defendant holding that type of firearm were found in the

defendant’s apartment, and one or more witnesses testified that the defendant used that gun to threaten other drug

dealers).

Another case featured an assortment of additional evidence that is absent in the instant case. United States v.

Whitis, No. 94-6333, 1995 WL 462423, at *1-*2, *4 (6th Cir. Aug. 3, 1995) (unpublished opinion) (the defendant’s

girlfriend recognized the firearm as the one she and the defendant purchased together from a pawnshop, the pawnshop

owner remembered that the two of them had purchased the firearm, and the firearm purchase form was filled out by the

defendant), cert. denied, 516 U.S. 1032 (1995).

Two other cases are inapposite because the defendant did not challenge and the court did not review the

sufficiency of the evidence of possession. United States v. Chesney, 86 F.3d 564, 572-73 (6th Cir. 1996) (ruling on

admissibility under Federal Rule of Evidence 403 and 404(b)), cert. denied, 520 U.S. 1282 (1997); United States v.

Wright, 102 F. App’x 972, 984 (6th Cir. 2004) (unpublished opinion) (ruling on prosecutor’s remarks during closing

argument).

Finally, the evidence here falls short of even the case on which the dissent principally relies. In United States

v. Moore, 208 F.3d 411 (2d Cir.), cert. denied, 531 U.S. 905 (2000), two officers saw a large black and silver handgun

holstered in the defendant’s waistband. When the defendant fled, the officers chased him into an apartment where,

“moments” later, they found a large black and silver handgun on top of some clothes in a doorless closet. Id. at 413.

The defendant was lying in a bed (feigning sleep and with a bulletproof vest hanging from his leg) just a few feet from

the closet. The defendant’s aunt testified that she and her boyfriend shared the room, had never seen the gun before, and

had not placed that or any other firearm in the closet. Id. Several factors make Moore a stronger case for actual

possession than the instant case. The initial sighting of the gun was made by two officers rather than a single accuser;

the defendant did not dispute that he possessed the firearm at the time of the initial sighting; the gun was found mere

“moments” later; the officers closely tracked the defendant between the initial sighting of the firearm and its recovery;

and there was evidence ruling out the room’s residents as the true source of the gun. No such evidence was presented

Other than the firearm itself, the government’s only evidence is Gordon’s thrice-repeated

accusation that Arnold had wielded a gun while threatening her. This evidence does not go to the

actual possession of the firearm recovered from the vehicle at the time that it was discovered;

instead, it suggests that at some earlier time, Arnold might have possessed some theoretical gun that

was never recovered. As we have already noted, however, conviction requires proof that Arnold

“possess[ed] the firearm and ammunition specified in the indictment.” Schreane, 331 F.3d at 560

(emphasis added). In light of this rule, Gordon’s description — statements referring to a black

handgun and gestures interpreted by an officer to indicate a semiautomatic with a chambered round

— was too vague for the jury to reasonably conclude that the gun found under Arnold’s seat was the

same firearm that Arnold allegedly used to threaten Gordon, especially given police testimony that

roughly half of all handguns are black.4 (J.A. at 128.)
No. 04-5384 United States v. Arnold Page 6

here.

5

We held that there was sufficient evidence of constructive possession as to the other two defendants. One

defendant was the owner of the vehicle and had arranged a meeting to sell the firearms. Birmley, 529 F.2d at 107. The

other defendant was in the driver’s seat and had the key to the trunk in his pocket, separate from the ignition key. Id.

at 105, 107.

Because the prosecution presented no evidence showing that Arnold had physical control

over the recovered firearm, no rational trier of fact could have found the possession element proved

beyond a reasonable doubt on the basis of actual possession.

2. Constructive Possession

“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.” Craven, 478 F.2d at 1333. The government may prove

constructive possession by presenting evidence that the person has dominion or control over the

premises where the firearm was located. United States v. Kincaide, 145 F.3d 771, 782 (6th Cir.

1998), cert. denied, 525 U.S. 1166 (1999). However, presence where a firearm was found, without

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

firearm. United States v. Birmley, 529 F.2d 103, 107-08 (6th Cir. 1976).

Our prior decisions have discussed numerous facts that, in varying combinations, served as

evidence that a defendant constructively possessed a firearm found in a vehicle with him: the

defendant was alone in the car, United States v. Murphy, 107 F.3d 1199, 1208 (6th Cir. 1997); fellow

occupants were precluded as the source of the firearm, United States v. Carter, 355 F.3d 920, 925

(6th Cir. 2004); the defendant was the owner or the driver of the car, Birmley, 529 F.2d at 107;

another occupant of the car saw the defendant holding the firearm while in the vehicle, Carter, 355

F.3d at 925; Schreane, 331 F.3d at 560-61; Daniel, 134 F.3d at 1264; the police saw the defendant

making movements indicative of an attempt to conceal the firearm, Carter, 355 F.3d at 925;

Schreane, 331 F.3d at 561; Daniel, 134 F.3d at 1264; the defendant had arranged a meeting to sell

the firearm, Birmley, 529 F.2d at 107; the firearm belonged to someone with whom the defendant

had a close relationship, Schreane, 331 F.3d at 561; only the defendant and a close relative knew

where the firearm was usually stored, Murphy, 107 F.3d at 1208; only the defendant had the key to

the trunk where the firearm was found, Birmley, 529 F.2d at 107; the defendant knew of an

“operational quirk” of the firearm, Daniel, 134 F.3d at 1264; and the defendant disclaimed

knowledge of the firearm before the police disclosed its discovery, Murphy, 107 F.3d at 1208.

These cases stand in stark contrast to Birmley, where we reversed the conviction (for

possession of unregistered firearms) of one of three occupants of a vehicle that had firearms in a

locked trunk.5

 529 F.2d at 105. There was no evidence of possession other than his presence as a

passenger in the rear seat. Id. at 107. We held that “[m]ere presence on the scene plus association

with illegal possessors is not enough to support a conviction for illegal possession.” Id. In the

instant case, the prosecution offered no evidence showing that Arnold had dominion or control over

the firearm under his seat. Indeed, several facts point the other way: Arnold was not alone in the

vehicle, he did not own or drive it, and he did not attempt to elude the police before or after they

discovered the gun. Given the state of the evidence in the instant case, all that the government has

shown is that the firearm was found under a seat in a car occupied by Arnold. Birmley established

that this “mere presence on the scene” is insufficient to prove possession.

One might attempt to distinguish Birmley on the basis of the gun’s location: here it was in

the passenger compartment (under a seat), while in Birmley it was in a locked trunk for which the

relevant defendant did not have a key. This is a distinction without a difference, however, because
No. 04-5384 United States v. Arnold Page 7

6

Constructive-possession decisions involving homes can inform the inquiry in cases involving vehicles. See

United States v. Cazares, 121 F.3d 1241, 1245 (9th Cir. 1997) (“The same reasoning [used in vehicle cases] applies to

occupants of a house.”).

it is well established that a defendant’s mere presence in a car when a firearm is found under a seat

does not establish possession. See United States v. Hishaw, 235 F.3d 565, 572 (10th Cir. 2000), cert.

denied, 533 U.S. 908 (2001); United States v. Chairez, 33 F.3d 823, 825 (7th Cir. 1994); United

States v. Madkins, 994 F.2d 540, 542 (8th Cir. 1993); United States v. Blue, 957 F.2d 106, 108 (4th

Cir. 1992); United States v. Soto, 779 F.2d 558, 560 (9th Cir.), amended on other grounds by 793

F.2d 217 (9th Cir. 1986), cert. denied, 484 U.S. 833 (1987); United States v. Whitfield, 629 F.2d

136, 143 (D.C. Cir. 1980), cert. denied, 449 U.S. 1086 (1981). Courts have adopted this principle

because “mere proximity of a weapon to a passenger in a car goes only to its accessibility, not to the

dominion or control which must be proved to establish possession.” Soto, 779 F.2d at 560. Because

this case marks the first time we have reviewed a sufficiency claim where the prosecution’s only

evidence of possession is that the firearm was found under a seat in a car occupied by the defendant,

it is our first opportunity to join our sister circuits in endorsing the consensus rule. We explicitly

do so now: the fact that the gun was found under a seat in a vehicle occupied by Arnold does not

establish possession.

This conclusion is reinforced by our decision in Beverly, which involved a gun found in a

home.6

 An officer executing a search warrant found Beverly and another person (Austin) in the

kitchen of yet another person’s (Hatfield’s) residence. Beverly, 750 F.2d at 35. While patting down

Beverly and Austin, the officer noticed two handguns in a waste basket between the two individuals.

Id. Beverly’s fingerprint was on one of the guns, with the print’s location suggesting that the gun

“would have had to have been laid down.” Id. at 36. We held that these facts were insufficient to

prove constructive possession; instead, the evidence “establishe[d] only that Beverly was in the

kitchen of Hatfield’s residence, that Beverly was standing close to a waste basket which contained

two guns, and that Beverly had at some point touched one of the guns.” Id. at 37. In the instant

case, Arnold and Gordon’s mother were located close to where the gun was discovered, just as the

defendant and his companion were in Beverly. Here, however, no fingerprint was found on the

firearm, meaning that the evidence of constructive possession does not rise even to the level we

rejected as insufficient in Beverly.

Finally, Gordon’s statements and gestures do not change our analysis. The statements and

gestures suggest that Arnold possessed a black, semiautomatic firearm at some unspecified earlier

time. We reiterate that conviction requires proof that Arnold “possess[ed] the firearm and

ammunition specified in the indictment.” Schreane, 331 F.3d at 560 (emphasis added). The

government attempts to meet this basic requirement by asking us to infer from Arnold’s putative

earlier possession that he constructively possessed the black, semiautomatic gun recovered from the

vehicle. We decline the invitation to make such a tenuous leap. While it is true that the recovered

firearm matched Gordon’s generic description — statements that the brandished gun was black and

gestures that an officer interpreted to indicate a semiautomatic with a chambered round — these

attributes are too common for this equivalence to prove that Arnold constructively possessed the gun

found in the car. See Hishaw, 235 F.3d at 571, 572 (holding that testimony that the defendant was

seen with a semiautomatic pistol on several prior occasions was “simply too remote and too vague
No. 04-5384 United States v. Arnold Page 8

7

The Hishaw court noted that “in certain circumstances,” possession of a similar gun on prior occasions “may

support an inference of constructive possession.” 235 F.3d at 572. We need not define here the contours of such

circumstances — if they exist at all — because Gordon’s reference to a black handgun is certainly too vague to satisfy

any definition, especially in light of testimony that about half of all handguns are black. (J.A. at 128.)

8

The dissent cites numerous cases in support of its argument that Arnold constructively possessed the firearm

found under the passenger seat. For various reasons, these cases do not deserve the weight that the dissent gives them.

In several cases, an officer saw the defendant both holding the firearm and throwing it away while fleeing, and

the gun was recovered either where the defendant was initially encountered or along the path of his flight. Caraway, 411 F.3d at 680, 680-81, 683; Barnett, 398 F.3d at 522; United States v. Johnson, 55 F.3d 976, 979 (4th Cir. 1995).

These cases are better understood as actual-possession decisions, but in any event, no such evidence was presented here.

In several cases, the firearm was recovered in a vehicle owned and operated by the defendant. See United States

v. Alexander, 331 F.3d 116, 127 (D.C. Cir. 2003); United States v. Harris, No. 99-4759, 2000 WL 903504, at *1 (4th

Cir. July 7, 2000) (unpublished opinion) (also, at trial the defendant’s daughter identified the recovered firearm as one

possessed previously by the defendant); Whitfield, 629 F.2d at 143. Arnold neither owned nor drove the vehicle in which

the gun was discovered. For the same reason, we do not rely on cases in which the firearm was found in a residence

owned or otherwise controlled by the defendant. See United States v. Johnson, No. 98-2212, 2000 WL 222572, at *4

(6th Cir. Feb. 16, 2000) (unpublished opinion) (also, the firearm was in plain view while the defendant was the only

person in the house, and a witness testified that the defendant had handled the firearm); United States v. Duso, Nos. 92-

1162, 92-1274, 92-1289, 1993 WL 131940, at *5-*6 (6th Cir. Apr. 27, 1993) (unpublished opinion) (also, a holster was

hanging just outside the defendant’s bedroom), cert. denied, 510 U.S. 883 (1993).

In several cases, an officer saw the defendant reaching toward the area in the vehicle where the firearm was

found. See United States v. Ocampo, 890 F.2d 1363, 1366 (7th Cir. 1989); United States v. Flenoid, 718 F.2d 867, 868

(8th Cir. 1983); United States v. Coe, 718 F.2d 830, 833 (7th Cir. 1983). Arnold was not seen making any such

movements.

Several other cases featured an assortment of additional evidence that is absent in the instant case. See United

States v. Banks, No. 05-5032, 2005 WL 2508543, at *4 (6th Cir. Oct. 11, 2005) (unpublished opinion) (fellow occupants

of vehicle where firearm was found confirmed victim-witness’s testimony that the defendant had brandished the firearm);

United States v. Collins, No. 96-10518, 1997 WL 599863, at *2 (9th Cir. Sept. 24, 1997) (unpublished opinion) (where

possession of drugs was at issue, officer testified that (i) the defendant admitted the drugs found in the motel room were

his and that the drugs had been delivered to him earlier that evening and (ii) another occupant of the room said that she

and the defendant had conducted drug transactions that day); United States v. Ratcliffe, 550 F.2d 431, 433 (9th Cir. 1977)

(where possession of drugs was at issue, the defendant bought the plane used in the drug smuggling operation and helped

unload the cargo).

Finally, the remaining two cases are also distinguishable. In United States v. Wright, 932 F.2d 868 (10th Cir.),

cert. denied, 502 U.S. 962, 972 (1991), the defendant was arrested at the location of a drug transaction arranged by an

informant working with the police. Id. at 872-73. The police found a rifle hidden in a pipe about eight feet from the

defendant, who was standing between his vehicle and a trailer home. Id. at 873. The Tenth Circuit held that there was

sufficient evidence of constructive possession but provided little analysis of the issue. See id. at 881. The court did state,

however, that the evidence was sufficient “[v]iewed in the context of the drug transaction.” Id. By this the court likely

meant the common sense of a firearm being useful as “protection or coercion” in a drug sale. Id. (discussing this factor

in the context of conviction under § 924(c)(1) for using or carrying a firearm during and in relation to a drug trafficking

offense). Moreover, the prosecution produced evidence at trial that the defendant had carried that rifle in his truck in

the months leading up to the arrest. Id. Neither of these factors is present in the instant case.

In United States v. Richardson, 161 F.3d 728 (D.C. Cir. 1998), the victim-witness testified that the defendant

showed him a gun, walked over to a parked car, leaned into the driver’s side window, and talked to the driver. The

witness left the area and returned about five minutes later. The witness told an officer who was now in the area what

had occurred. A search of the defendant, who was standing ten to fifteen feet from the vehicle, revealed no firearm, but

the officer did find one under the front passenger seat of the car. Although three men were seated in the driver’s seat

and in the rear, the front passenger seat was unoccupied. Id. at 732. The D.C. Circuit held that the evidence was

sufficient to show constructive possession, but it “emphasize[d] that this was not a strong case.” Id. at 733.

In Richardson, there was a direct connection between the initial sighting of the firearm and its eventual

discovery: the witness saw the defendant carrying a gun and leaning into a vehicle, and a few minutes later the officer

recovered the firearm in the same area, inside what the witness identified as the same car. Because, immediately after

brandishing a gun, the defendant had been seen leaning into the vehicle where a firearm was found a few minutes later,

a rational juror could conclude beyond a reasonable doubt that the defendant had stashed his gun in the car and continued

to exercise dominion and control over it.

In the instant case, however, the connection between the initial sighting and the discovery was more tenuous.

to support the inference that [the defendant] constructively possessed the pistol” found in the car).7

Mere coincidence is no substitute for constitutionally sufficient evidence of possession.8
No. 04-5384 United States v. Arnold Page 9

Gordon stated in her 911 call that after Arnold threatened her with a gun, she “left, and [she] went around the corner from

the house.” A firearm was eventually found in a vehicle that arrived on the scene some time later. Unlike Richardson, nobody saw Arnold lean into or otherwise interact with Gordon’s mother’s car in a manner that would suggest that he

was hiding a gun there. Indeed, there was no evidence that the vehicle was even in the area at the time that Arnold

allegedly threatened Gordon with a gun. Given that the Richardson court conceded that its decision was a close one,

this difference is enough to place the instant case on the insufficient side of the evidentiary line. The instant case is more

like the decisions in which simply being a passenger in the vehicle where a firearm was discovered was held to be

insufficient evidence of constructive possession. See ante, at 6-7 (citing cases). Notably, the courts that have so held

include the D.C. Circuit, the court that decided Richardson.

9

We note that the Supreme Court recently granted certiorari in two cases in order to determine whether

statements made in a 911 call and to responding officers are “testimonial” within the meaning of Crawford v.

Washington, 541 U.S. 36 (2004). See Davis v. Washington, — U.S. —, 2005 WL 1671669 (U.S. Oct. 31, 2005) (No.

05-5224); Hammon v. Indiana, — U.S. —, 2005 WL 1914510 (U.S. Oct. 31, 2005) (No. 05-5705).

In sum, we hold that when the evidence is viewed in the light most favorable to the

prosecution, no rational trier of fact could have found the possession element of § 922(g) proved

beyond a reasonable doubt. “[O]nce the reviewing court has found the evidence legally insufficient,

the only ‘just’ remedy available for that court is the direction of a judgment of acquittal.” Burks v.

United States, 437 U.S. 1, 18 (1978). Therefore, we need not address Arnold’s other claims or

respond to the dissent’s treatment of them.9

 See Aarons, 718 F.2d at 189 n.1 (“The issue [of

sufficiency of the evidence] being dispositive of the appeal, we do not consider the other issues

raised.”).

III. CONCLUSION

For the foregoing reasons, we REVERSE and REMAND for entry of a judgment of

acquittal.
No. 04-5384 United States v. Arnold Page 10

_______________

DISSENT _______________

SUTTON, Circuit Judge. When the victim of an assault tells a 911 operator and the police

that the defendant was holding a black, semiautomatic handgun, when the victim provides a motive

for the defendant’s possession of the gun (“he said he was going to kill her”), when the victim

identifies the defendant to the police when he returns to the scene of the crime in a car shortly

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

the victim at that point tells the police that “he’s got a gun on him” and when the police then recover

a black, semiautomatic handgun under the passenger seat in which the defendant is sitting, a jury

may find that this evidence establishes that the defendant possessed a firearm. As the majority

concludes otherwise, I respectfully dissent. 

I.

Arnold challenges the sufficiency of the evidence of just one element of this felon-inpossession-of-a-firearm charge: Did he possess a firearm? The jury heard several pieces of

evidence allowing it to conclude just that. On September 19, 2002, Tamica Gordon called a 911

operator and told the operator that Arnold, her mother’s boyfriend, had just threatened her with a

gun. When officers responded to the call five to six minutes later, they encountered a visibly shaken

Gordon, who explained that she had just been in an argument with Arnold and that he had threatened

her with a gun. “Joseph Arnold,” she told the officers, “pulled a gun on her, he said he was going

to kill her. He was arguing and she thought he was going to kill her.” JA 114. Gordon “stated that

she [ ] saw him with a gun in his hand,” JA 140, and “that she observed him cock the weapon,” JA

143; see also JA 127, 144. Gordon described Arnold’s weapon as “a black handgun.” JA 127, 140.

 “[B]ecause of the way she said that he cocked it,” JA 127—that he “pull[ed] back the slide,”

id.—and because of her other descriptions of the gun, the officers concluded that the gun was a

semiautomatic handgun, id.; JA 133, and that “there would be a round chambered” in it, JA 133.

Minutes after the officers arrived, Gordon’s mother pulled up in a car with Arnold sitting in

the passenger seat. “[A]s the car pulled up, [Gordon] got back excited, she started crying [and]

pointing at the car saying that’s him, that’s the guy that pulled the gun on me, Joseph Arnold, that’s

him . . . . he’s got a gun on him.” JA 115, 116. Arnold “matched the description that was given [to

the officers] by the dispatch,” JA 141, and when the officers approached Arnold and “asked him

what was going on, [ ] he basically said that they were arguing,” JA 117. The argument described

by Gordon to the officers and 911 operator and confirmed by Arnold “flare[d] up” when Arnold

arrived on the scene. JA 131–32. The officers observed Gordon “yelling at” and “passing

comments” to Arnold and “him passing them back to her,” causing them to conclude “they were still

in an argument phase.” JA 148. At this point, the officers discovered a plastic bag containing a

loaded, black, semiautomatic handgun with a round in its chamber directly under the passenger seat

of the car. Nothing “was blocking the passenger from immediate access to the gun.” JA 122.

If we assume that the jury was entitled to consider all of this evidence, as the majority

properly assumes, then the jury assuredly could conclude beyond a reasonable doubt that Arnold

possessed the gun the officers found below his seat. The jury heard evidence that Gordon, her

mother and Arnold were at home that morning, that Arnold and Gordon began arguing, that during

the argument Arnold retrieved a loaded gun, chambered a round and pointed it at Gordon as she fled

to call 911. They heard that Gordon described the gun to officers as a black handgun. They heard

that the way Arnold cocked the weapon indicated to the officers that it was a loaded semiautomatic

and that it had a round of ammunition in it. And the jury learned that when, moments later, a car
No. 04-5384 United States v. Arnold Page 11

containing Arnold arrived back on the scene, the police found a gun inches from the passenger seat

where Arnold was sitting. The gun in every way matched the description Gordon had given of it:

it was black; it was semiautomatic; it was loaded; and it had a round in its chamber. And it was

found within easy reach of Arnold. 

Because “possession may be proved by direct or circumstantial evidence,” United States v.

Craven, 478 F.2d 1329, 1333 (6th Cir. 1973), we cannot overturn the jury’s decision merely because

it had to draw reasonable inferences to fill in any gaps in the evidence. True, the government did

not offer direct evidence that after Arnold threatened Gordon with a gun, someone saw him take the

gun, place it in a plastic bag and stick it under his seat in Gordon’s mother’s car. But the jury was

told enough to know that after Gordon left the house to call 911, Arnold had the opportunity to take

these steps and the jury could reasonably infer that he did. True also, the gun recovered by the

police did not have Arnold’s fingerprints on it. But the jury could fairly conclude that the reason

the gun appeared in a plastic bag was that Arnold had just wiped his prints off the gun. See United

States v. Moore, 208 F.3d 411, 413 (2d Cir. 2000) (upholding felon-in-possession conviction even

though “no witnesses saw or heard [the defendant] throw a handgun into the bedroom closet [where

officers found it], and there were no identifiable fingerprints found on the gun that was recovered”

because “such evidence was not necessary for a reasonable jury to conclude that [the defendant] had

been in possession of the gun that was recovered by the police” when officers testified that they had

seen the defendant outside moments earlier possessing a gun of the same size and color). 

As in all criminal trials, the jury did not have to draw these inferences. But even if the jury

had not drawn these inferences but accepted all of the other uncontradicted evidence still before it,

the advantage that Arnold could hope to gain still escapes me. The only other conclusion the jury

could have drawn was that Arnold possessed, cocked and pointed a loaded, black, semiautomatic

handgun at Gordon, disposed of it somewhere, got into a car, left and, minutes later, returned to the

scene with another black, semiautomatic, loaded weapon with a chambered round stowed beneath

his seat. That is not a traditional defense to a felon-in-possession charge. Either way, the critical

point is that the jury could have drawn two sets of inferences from this uncontradicted evidence, and

our mandate is to affirm when the jury’s choice was a reasonable one—which it was here. See

United States v. Thomas, 497 F.2d 1149, 1150 (6th Cir. 1974).

In reaching a different conclusion, the majority reasons that “Gordon’s thrice-repeated

accusation that Arnold had wielded a gun while threatening her . . . does not go to the actual

possession of the firearm recovered from the vehicle at the time it was discovered.” Supra at 4. I

fail to see why. The indictment charged Arnold with possessing “a firearm, that is, a Hi Point, 9

millimeter, semiautomatic pistol.” JA 14. Each and every attribute of the gun that Gordon described

paralleled the attributes of the gun the officers found. Gordon saw Arnold point a handgun. The

officers soon after found a handgun near Arnold. The gun Gordon saw was black. The gun the

officers found was black. The gun Gordon saw was semiautomatic. The gun the officers found was

semiautomatic. And Gordon saw Arnold pull back the gun’s slide and chamber a round, and the gun

the officers found had a round in its chamber. The only additional description the government

provided of the gun specified in the indictment was that it was “a Hi Point, 9 millimeter.” JA 14.

No part of Gordon’s description is inconsistent with these additional details, as she did not claim

Arnold held another brand of gun or that it accepted another caliber round. 

No doubt the connection between the two guns would have been even clearer had Gordon

been able to describe some other unique characteristic of the gun or, better yet, been able to describe

the gun as “a Hi Point, 9 millimeter.” But Arnold has pointed to no such characteristic of the gun

that Gordon could have mentioned, and surely we do not require a witness to “make out the name

brand of [a] weapon, the model, the model number, []or the gun’s serial number” as an aggressor

points the weapon at her. See Moore, 208 F.3d at 413 (upholding felon-in-possession conviction

even though the witnesses who saw the defendant possess a “large black and silver handgun” did
No. 04-5384 United States v. Arnold Page 12

not describe the brand, model, or serial number and noting that the jury could reasonably conclude

that the gun the witnesses described and the gun the police recovered “were one and the same”).

Numerous cases hold that evidence not dissimilar to the evidence presented here—eyewitness

testimony describing a firearm actually possessed by the defendant that matches a firearm police

later charge the defendant with actually possessing—sufficiently connects the gun described to the

gun found. And indeed, most of these cases involve connections far more attenuated than those

here. See, e.g., United States v. Barnett, 398 F.3d 516, 522 (6th Cir. 2005); United States v. Crowe, 291 F.3d 884, 887 (6th Cir. 2002); United States v. Chesney, 86 F.3d 564, 567, 572–73 (6th Cir.

1996); United States v. Black, 525 F.2d 668, 669 (6th Cir. 1975); United States v. Wright, No.

03-3810, 2004 U.S. App. LEXIS 13855, at *2–4, *30–31 (6th Cir. June 28, 2004); United States v.

Smith, No. 03-5130, 2003 U.S. App. LEXIS 21734, at *3–5 (6th Cir. Oct. 21, 2003); Whitis v.

United States, No. 94-6333, 1995 U.S. App. LEXIS 22308, at *3, *6, *11 (6th Cir. Aug. 3, 1995);

United States v. Smith, No. 90-2293, 1991 U.S. App. LEXIS 22429, at *7 (6th Cir. Sept. 18, 1991);

United States v. Patterson, 23 F.3d 1239, 1242–45 (7th Cir. 1994); United States v. Burl, No.

00-4343, 2001 U.S. App. LEXIS 14847, at *2, *11 (7th Cir. June 13, 2001); United States v. Brewer, No. 00-4156, 2001 U.S. App. LEXIS 21566, at *2–3 (7th Cir. Oct. 2, 2001).

All of this, it seems to me, suffices to resolve this case. The defendant was charged with

possessing a handgun, and the government proved that he actually possessed a handgun. The

government has never argued that he constructively possessed the gun and it is quite understandable

why: It had no reason to do so. 

Yet even if one thinks of this prosecution as arising under a constructive-possession theory,

I fail to see how that advances Arnold’s cause. “Presence alone” near a gun, it is true, does not

“show the requisite knowledge, power, or intention to exercise control over” the gun to prove

constructive possession. United States v. Birmley, 529 F.2d 103, 107–08 (6th Cir. 1976) (emphasis

added). But that is not what we have here. Here we have “other incriminating evidence, coupled

with presence, . . . [that] serve[s] to tip the scale in favor of sufficiency.” Id. at 108. And of course

that “other incriminating evidence” was incriminating indeed: Minutes before the defendant was

found with a handgun under the car seat in which he was riding, he was seen actually possessing a

gun matching the description of the one found under his seat—and of course not just possessing it

but using it to threaten someone. To say that this “record [was] devoid of any [ ] evidence” aside

from mere presence in a car with a weapon, United States v. Cochran, 14 F.3d 1128, 1133 (6th Cir.

1994), gives precedent a bad name.

No case, to my knowledge, supports invalidating this conviction, and numerous cases

undermine such a conclusion. See, e.g., United States v. Barnett, 398 F.3d 516, 522 (6th Cir. 2005)

(rejecting a sufficiency-of-the-evidence challenge to a felon-in-possession conviction where an

officer testified at trial that he saw the defendant “crouched outside [a] residence . . . holding a long

black object that looked like a shotgun[,] . . . saw [the defendant] throw the object to the ground as

[he] began to flee . . . [and] upon investigating the residence after [the defendant] was apprehended,

[another officer] found a black and chrome rifle in the front yard”); United States v. Banks, No.

05-5032, 2005 WL 2508543, at *4 (6th Cir. Oct. 11, 2005) (rejecting a sufficiency-of-the-evidence

challenge to a felon-in-possession conviction where a witness identified the defendant “as the

individual who robbed her at gunpoint” and where soon after police met with the robbery victims

they stopped a mini-van matching the description the victims provided and found a shotgun “near

the seat in which [the defendant] was sitting”); United States v. Caraway, 411 F.3d 679, 683 (6th

Cir. 2005) (rejecting a sufficiency-of-the-evidence challenge to a felon-in-possession conviction

where a witness “observed an individual point a gun at him, then turn, flee over a fence and hide

under an SUV” and officers “testified that the individual that was found under the SUV” shortly

afterward was the defendant); United States v. Johnson, No. 98-2212, 2000 U.S. App. LEXIS 2475,

at *13 n.3 (6th Cir. Feb. 16, 2000) (rejecting defendant’s claim that the government failed to prove

he possessed a firearm because “[w]hile Cochran stands for the proposition that mere presence on
No. 04-5384 United States v. Arnold Page 13

the scene plus association with illegal possessors is not enough to establish constructive possession,

there was evidence in the instant case that Johnson knew that his co-conspirator owned a firearm and

brought it into the house”) (citations and quotation omitted); United States v. Duso, Nos. 92-1162,

92-1274, 92-1289, 1993 WL 131940, at *6 (6th Cir. 1993) (rejecting a sufficiency-of-the-evidence

challenge to a felon-in-possession conviction because the fact that officers found a gun under the

defendant’s mattress distinguished this case from Birmley’s “presence alone” rule and sufficed to

establish constructive possession by demonstrating knowledge and intent to exercise control).

Other circuits hew to the same rule: While presence in a car with a gun does not by itself

establish constructive possession, presence plus other incriminating evidence will do so. See United

States v. Alexander, 331 F.3d 116, 127 (D.C. Cir. 2003) (rejecting a sufficiency-of-the-evidence

challenge to a felon-in-possession conviction where a witness told a 911 operator and officers

responding to her call that her boyfriend had a gun on him and had threatened her, the boyfriend

appeared while the officers were talking with the witness and continued to fight with her and the

officers discovered a gun in a car parked nearby; holding that while “mere proximity to a gun is

insufficient to establish constructive possession, evidence of some other factor—including

connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement

indicating involvement in an enterprise—coupled with proximity may suffice”) (quotations and

citations omitted); United States v. Harris, No. 99-4759, 2000 U.S. App. LEXIS 15694, at *2 (4th

Cir. June 20, 2000) (rejecting a sufficiency-of-the-evidence challenge to a felon-in-possession

conviction because the defendant was identified as the co-owner and driver of the vehicle in which

the police discovered a revolver and “the testimony of [defendant’s] daughter positively identifying

the weapon as one possessed previously by her father cemented [his] possession of the firearm”);

United States v. Richardson, 161 F.3d 728, 732 (D.C. Cir. 1998) (rejecting a sufficiency-of-theevidence challenge to a felon-in-possession conviction where officers discovered a gun near the

defendant and testimony indicated his recent prior possession of a gun with a similar handle because

“proximity coupled with evidence of some other factor . . . is enough to sustain a guilty verdict”)

(quotations and citations omitted); see also United States v. Collins, No. 96-10518, 1997 U.S. App.

LEXIS 26506, at *3 (9th Cir. Sept. 22, 1997); United States v. Johnson, 55 F.3d 976, 979 (4th Cir.

1995); United States v. Wright, 932 F.2d 868, 881 (10th Cir. 1991); United States v. Ocampo, 890

F.2d 1363 (7th Cir. 1989); United States v. Flenoid, 718 F.2d 867, 868–69 (8th Cir. 1983); United

States v. Coe, 718 F.2d 830 (7th Cir. 1983); United States v. Whitfield, 629 F.2d 136, 143 (D.C. Cir.

1980); United States v. Ratcliffe, 550 F.2d 431, 434 (9th Cir. 1976). 

“[I]n certain instances,” to be sure, evidence of a defendant’s prior possession may not

support an inference of constructive possession. United States v. Hishaw, 235 F.3d 565, 572 (10th

Cir. 2000). For example: where the defendant’s “actual possession of a firearm involved incidents

more than two years before the charged [ ] offense,” id. at 573; or where the evidence did not even

purport to involve the same gun that was charged in the indictment, compare id. at 571 (defendant

charged with possessing a Norinco nine-millimeter semiautomatic pistol) with id. at 573 (a witness

testified that “he had seen [the defendant] with some kind of firearm—either a pistol or a

revolver—on about four prior occasions”); or where the evidence pertained to situations dissimilar

to the situation at the time the weapon was discovered, see id. (witness described defendant

possessing a gun during a drug transaction but officers found a gun under the passenger seat of a car

driven by the defendant during a traffic stop “and no evidence was presented . . . [that defendant]

was involved in [such a drug transaction] when the officers stopped the car”). Here, however, we

are not dealing with evidence that pertained to events that took place two years, two days or even

two hours before the officers discovered the gun under Arnold’s seat. Gordon did not say she saw

Arnold possess a gun in some other context; she said he possessed a gun during their argument and,

minutes later, Arnold showed up and continued that argument with Gordon and, in this same

context, the officers found a gun matching the description Gordon gave them. Surely, this is one

of those “instances” where evidence of prior possession properly supports an inference of

constructive possession. See Richardson, 161 F.3d at 733 (finding “the requisite connection”
No. 04-5384 United States v. Arnold Page 14

between a witness’s description of a gun he saw the defendant possess and a gun officers later found

in a car near the defendant when the witness testified the handle of the gun officers found “was

similar in appearance” to the handle of the gun he saw the defendant possess).

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 matching the description the victim provided was

found under the defendant’s car seat minutes later suffices to establish that the defendant was guilty

of being a felon in possession of that gun.

II.

Because I cannot agree with Arnold’s challenge to the sufficiency of the evidence, I must

also reach his objections to the district court’s decision to admit Tamica Gordon’s three

statements—first to the 911 operator, next to the police when they arrived at the scene, then to the

police when Arnold suddenly returned to the scene. Arnold challenges the district court’s admission

of this evidence both as a matter of evidence law (the excited-utterance exception to the hearsay

rule) and constitutional law (the Confrontation Clause). As the dissent that I filed when the panel

first heard this case explains my position on these contentions, I will incorporate it here by reference.

See United States v. Arnold, 410 F.3d 895, 907 (6th Cir. 2005) (Sutton, J., dissenting); see also

United States v. Brito, No. 04-1755, slip op. at 14–15 (1st Cir. Oct. 20, 2005); Commonwealth v.

Gonsalves, 445 Mass. 1, 33 (2005).