United States v. Arnold

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0181p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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UNITED STATES OF AMERICA,

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Plaintiff-Appellee,

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No. 04-5384

v.

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JOSEPH ARNOLD, -

Defendant-Appellant. -

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Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

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

Argued: September 13, 2006

Decided and Filed: May 18, 2007

Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE,

CLAY, GILMAN, ROGERS, SUTTON, COOK, McKEAGUE, and GRIFFIN, Circuit Judges.*

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COUNSEL

ARGUED: Robert C. Brooks, Memphis, Tennessee, for Appellant. Joseph C. Wyderko, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee ON BRIEF: Robert C.

Brooks, Memphis, Tennessee, for Appellant. Joseph C. Wyderko, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., David N. Pritchard, ASSISTANT UNITED

STATES ATTORNEY, Memphis, Tennessee, for Appellee.

SUTTON, J., delivered the opinion of the court, in which BOGGS, C. J., BATCHELDER,

DAUGHTREY, ROGERS, COOK, and McKEAGUE, JJ., joined, and in which GRIFFIN, J., joined

except with respect to Sections IV.A.2., V., and VI. CLAY (p. 16) and GRIFFIN (pp. 17-22), JJ.,

delivered separate opinions concurring in part and dissenting in part. Judge CLAY joins Judge

Griffin’s opinion except with respect to Section II. of the opinion, and joins Section IV. of Judge

Moore’s dissenting opinion. MOORE, J. (pp. 23-35), delivered a separate dissenting opinion, in

which MARTIN, COLE, and GILMAN, JJ., joined.

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OPINION

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SUTTON, Circuit Judge. Joseph Arnold challenges his felon-in-possession-of-a-firearm

conviction, contending that the evidence does not support the verdict, that the district court violated

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The Honorable Julia S. Gibbons, Circuit Judge, took no part in the consideration or decision of the case.

1

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

his Confrontation Clause rights by admitting testimonial hearsay and that the district court made

several erroneous evidentiary rulings during the course of the trial. We affirm.

I.

At 7:43 a.m. on September 19, 2002, Tamica Gordon called 911 and told the emergency

operator: “I need police. . . . Me and my mama’s boyfriend got into it, he went in the house and got

a pistol, and pulled it out on me. I guess he’s fixing to shoot me, so I got in my car and [inaudible]

left. I’m right around the corner from the house.” Gordon identified her mother’s boyfriend as

Joseph Arnold, a convicted murderer whom the State had recently released from prison.

About five minutes after the dispatcher told three police officers about Gordon’s call, the

officers arrived at 1012 Oak View, the residential address that Gordon had provided to the 911

operator. Gordon exited her car and approached the officers, “crying,” “hysterical,” “visibly shaken

and upset,” and exclaimed that Arnold had pulled a gun on her and was trying to kill her. JA

112–14. She described the gun as a “black handgun.” JA 127.

Soon after the officers arrived, Arnold returned to the scene in a car driven and owned by

Gordon’s mother. Gordon became visibly anxious again, exclaiming, “that’s him, that’s the guy that

pulled the gun on me, Joseph Arnold, that’s him.” JA 115. She also told the officers that “he’s got

a gun on him.” JA 116. Arnold exited the car, and the police patted him down to determine if he

was carrying a weapon. When the pat-down did not produce a weapon, the officers asked Gordon’s

mother for permission to search the car. She consented, and the officers found a black handgun

inside a clear, plastic bag directly under the passenger seat where Arnold had been sitting.

A grand jury charged Arnold with being a felon in possession of a firearm. See 18 U.S.C.

§ 922(g)(1). When Gordon did not appear to testify at Arnold’s trial in response to a government

subpoena, the district court ruled (1) that the government could admit a redacted recording of the

911 call (without the reference to Arnold as a convicted murderer) and Gordon’s two statements at

the scene under the “excited utterance” exception to the hearsay rule and (2) that the applicability

of this well-established hearsay exception authorized the introduction of this evidence under the

Confrontation Clause. The district court also declined to admit a statement from a private

investigator hired by Arnold to the effect that Gordon had told the investigator, eight months after

the incident, that she did not see Arnold with a gun. The jury found Arnold guilty of the single

charge.

II.

Arnold challenges the sufficiency of the evidence with regard to just one element of the

crime: Did he possess a firearm? The jury heard several pieces of evidence that, when

“view[ed] . . . in the light most favorable to the government,” would allow it to conclude just that.

United States v. Morrow, 977 F.2d 222, 230 (6th Cir. 1992) (en banc); see Jackson v. Virginia, 443

U.S. 307, 319 (1979); see also United States v. Aarons, 718 F.2d 188, 189 n.1 (6th Cir. 1983)

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

it is determinative of whether” the Double Jeopardy Clause prevents “the appellant [from] be[ing]

retried.”).

At trial, the jury learned that Tamica Gordon called 911 and told the emergency operator that

Arnold had just threatened her with a gun. When officers arrived at the scene, they encountered a

visibly shaken Gordon, who explained that she had just been in an argument with Arnold, her

mother’s boyfriend, and that he had threatened her with a gun. “Joseph Arnold,” she told the

officers, “pulled a gun on [me], he said he was going to kill [me]. He was arguing and [I] thought

he was going to kill [me].” 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. Gordon described Arnold’s weapon

No. 04-5384 United States v. Arnold Page 3

as “a black handgun.” JA 127, 140. “[B]ecause of the way she said that he cocked it,” JA 127—that

he “pulled back the slide,” id.—and because of the way she described the gun, the officers concluded

that the gun was a semiautomatic handgun, id., and that “there would be a round chambered” in it,

JA 133.

Soon 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 115–16. When the officers approached Arnold and “asked

him what was going on, . . . he basically said that they were arguing.” JA 117. After obtaining

permission to search the car, the officers found a plastic bag containing a loaded, black,

semiautomatic handgun with a round in its chamber directly under the passenger seat of the car.

In the light cast by this evidence, “any rational trier of fact,” Jackson, 443 U.S. at 319, 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 and that during the argument Arnold retrieved a gun and pointed it at

Gordon as she fled to call 911. They learned 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 its chamber. And the jury learned

that when, moments later, a car containing Arnold arrived at the scene, the police found a gun inches

from the passenger seat where Arnold was sitting. The gun in every way matched Gordon’s

description: 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 find Arnold guilty. It is true, for example, that the

government did not offer evidence that, after Arnold threatened Gordon with a gun, someone saw

him take the gun, wipe his fingerprints off it, place the gun 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 “any rational trier of fact” reasonably

could infer that he did. 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 earlier possessing

a gun of the same size and color); see also United States v. Crowe, 291 F.3d 884, 886–87 (6th Cir.

2002) (upholding conviction for carrying a firearm during a drug trafficking crime even though

testifying officer “could see only a small portion of the object” he identified as a firearm and he

“could not state for sure whether the object . . . was a real handgun or only a toy” because evidence

need not “remove every reasonable hypothesis except that of guilt”) (internal quotation marks

omitted); United States v. Austin, 133 F. App’x 271, 275 (6th Cir. May 26, 2005) (upholding felon-

in-possession conviction where arresting officer observed defendant “with a weapon from eight to

ten feet away, through a plate-glass window, before [he] fled down a hallway” and officers later

found a gun “in a trash can in the hallway down which [the defendant] ran”).

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

could have reached these conclusions—and when that is the case we must respect the jury’s

inferences over our own.

No. 04-5384 United States v. Arnold Page 4

Even if the jury had not drawn these inferences, moreover, Arnold had little to gain from the

uncontradicted evidence that remained before the jury. The only other conclusion the jury

reasonably 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 passenger seat. That is not a traditional defense to a felon-in-possession charge,

and it was not the defense that Arnold presented to the jury. Arnold argued that he had never

threatened Gordon with a gun, period. JA 226–27 (closing argument). He did not argue that, even

if he had threatened Gordon with a gun that morning, he managed successfully to hide that gun, and

the gun the officers found directly under his passenger seat later that morning was a different

weapon.

Regardless of which arguments Arnold did make and regardless of which arguments he did

not make, the critical point is that the jury could have drawn different inferences from this evidence,

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

United States v. Barnett, 398 F.3d 516, 522 (6th Cir. 2005) (affirming felon-in-possession conviction

over sufficiency challenge; one officer testified that he saw defendant “holding a long black object

that looked like a shotgun” and “that he saw [the defendant] throw the object to the ground as [the

defendant] began to flee from the residence”; another officer “testified that upon investigating the

residence after [the defendant] was apprehended, she found a black and chrome rifle in the front

yard”); United States v. Thomas, 497 F.2d 1149, 1150 (6th Cir. 1974); see also United States v.

Daniels, 170 F. App’x 409, 410, 412–13 (6th Cir. Mar. 7, 2006) (affirming felon-in-possession

conviction over sufficiency challenge; one officer testified that he saw defendant throw to the

ground a “silver metallic” object, “possibly a handgun or something to that effect”; that officer

unsuccessfully attempted to locate the object after the defendant was detained; another officer later

searched the area and found a “.25 caliber pistol” matching the first officer’s description).

No doubt the linkage between the evidence would have been even stronger had Gordon

described some other unique characteristic of the gun or, better yet, described the gun as “a Hi Point,

9 millimeter.” But Arnold has pointed to no other feature of the gun that Gordon should have

recalled, and to his credit Arnold does not argue that the sufficiency-of-the-evidence requirement

of the Due Process Clause compels a witness to “make out the name brand of [a] weapon, the model,

the model number, []or the gun’s serial number” as an assailant threatens her with it. 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 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

unlike the evidence presented here—eyewitness testimony describing a firearm actually possessed

by the defendant that matches a firearm later recovered by the police—sufficiently connects the gun

described to the gun found. And indeed most of these cases involve connections far more attenuated

than the one here. See, e.g., Barnett, 398 F.3d at 522; Crowe, 291 F.3d at 887; United States v.

Black, 525 F.2d 668, 669 (6th Cir. 1975); see also United States v. Smith, 79 F. App’x 97, 99 (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).

All of this suffices to resolve this aspect of the case. The defendant was charged with

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

in the indictment—based on evidence that the victim saw him threaten her with a handgun minutes

before the police discovered a handgun under Arnold’s car seat, one that met the description the

victim gave of the gun. The government did not argue at trial that he constructively possessed the

gun, and it is quite understandable why: It had no reason to do so.

No. 04-5384 United States v. Arnold Page 5

Yet even if we treat this prosecution as arising under a constructive-possession theory, as the

dissent does, that does not help Arnold. “Presence alone” near a gun, true enough, 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 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.

Nor do the cases cited by the dissent alter this conclusion. In some of the cited cases, the

sole connection between the defendant and the gun was the gun’s proximity to the defendant. See

Birmley, 529 F.2d at 107; see also United States v. Whitfield, 629 F.2d 136, 143 (D.C. Cir. 1980).

But as we have shown, this is not a case in which the “record [was] devoid of any . . . evidence”

other than the defendant’s mere presence in a car with a weapon. United States v. Cochran, 14 F.3d

1128, 1133 (6th Cir. 1994).

In some of the cited cases, the only evidence connecting the defendant to the gun (other than

proximity) was that the defendant at some distant point in time and in some other place had

possessed a gun—in one instance the defendant possessed a gun “more than two years before the

charged . . . offense,” United States v. Hishaw, 235 F.3d 565, 573 (10th Cir. 2000), and in another

instance the defendant had committed “two offenses involving guns” at some unidentified point in

the past, United States v. Kelso, 942 F.2d 680, 682 (9th Cir. 1991). Here, however, the defendant

threatened the victim with a gun minutes before the police found a gun under his car seat, and that

same gun matched the description of the gun the defendant used to threaten the victim.

And in some of the cited cases, the proffered evidence connecting the defendant to the gun

(aside from proximity) was deemed to be too attenuated. See United States v. Beverly, 750 F.2d 34,

37 (6th Cir. 1984) (evidence showed only that the defendant “was standing close to a waste basket

which contained two guns, and that [he] had at some point touched one of the guns”; but the

evidence did not show when the guns were placed in the waste basket); United States v. Blue, 957

F.2d 106, 107–08 (4th Cir. 1992) (holding that facts “barely” fell short of “support[ing] a finding

of constructive possession” when officer found gun under passenger defendant’s seat after observing

defendant’s “shoulder . . . dip as if [he] were reaching under the seat”). But in both of those cases,

the courts emphasized that no eyewitness testimony connected the gun to the defendant—an

evidentiary gap that the record in this case closes through the statements of the victim. See Beverly,

750 F.2d at 36 (explaining that government’s evidence did not include testimony from anyone who

saw defendant “with a gun in his hand”); Blue, 957 F.2d at 108 (“The government introduced

no . . . testimony that [defendant] had been seen with the gun.”). In the final analysis, whether one

chooses to look at this verdict as resting on actual possession or constructive possession, the fact

remains that it legitimately rests on ample evidence of possession—evidence that requires us to

uphold the verdict.

III.

Arnold also challenges the admissibility of three out-of-court statements—the 911 call,

Gordon’s initial statements to police officers upon their arrival at the crime scene and Gordon’s

statement to officers upon Arnold’s return to the scene—under the excited-utterance exception to

the hearsay rule. Under Rule 803(2) of the Federal Rules of Evidence, a court may admit out-of-

court statements for the truth of the matter asserted when they “relat[e] to a startling event or

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

condition.” To satisfy the exception, a party must show three things. “First, there must be an event

No. 04-5384 United States v. Arnold Page 6

startling enough to cause nervous excitement. Second, the statement must be made before there is

time to contrive or misrepresent. And, third, 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). All three inquiries bear on “the ultimate question”: “[W]hether

the statement was the result of reflective thought or whether it was a spontaneous reaction to the

exciting event.” Id. at 1058 (internal quotation marks omitted). We apply abuse-of-discretion

review to a district court’s application of the rule. See United States v. Beverly, 369 F.3d 516, 540

(6th Cir. 2004).

The 911 Call. Gordon’s statements to the 911 operator readily satisfy the first and third

prongs of the test. As to the first requirement, being threatened by a convicted murderer wielding

a semi-automatic handgun amounts to a startling event that would prompt at least nervous

excitement in the average individual, if not outright trauma. As to the third requirement, Gordon

plainly remained in this state of anxiety during the 911 call. Throughout the call, the operator had

to tell her to “calm down” and “quit yelling” and often had difficulty understanding her frantic pleas

for help.

The record also supports the district court’s finding that the call took place soon after Arnold

threatened Gordon—“slightly more than immediately” after the threat, in the district court’s

words—which satisfies the second factor. The district court listened to the tape of the 911 call five

times, noted that Gordon said “he’s fixing to shoot me,” not that he “was fixing to shoot me,” JA

52 (emphasis added), and ultimately concluded that there was an immediacy to her statements.

Arnold does not challenge the district court’s factual conclusions regarding the meaning of the tape.

Case law supports the view that Gordon made the statement “before there [was] time to

contrive or misrepresent.” Haggins, 715 F.2d at 1057. Haggins, for example, upheld the admission

of statements by a four-year-old child made more than an hour after the incident but while the child

was still suffering the trauma from it. Other cases have upheld the admission of statements that also

were made 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 several spousal beatings over a three-day period); see

also United States v. McCullough, 150 F. App’x 507, 510 (6th Cir. Oct. 18, 2005) (applying

exception to statements made “not . . . longer than two-and-a-half hours” after witnessing

companion’s arrest); United States v. Green, 125 F. App’x 659, 662 (6th Cir. Mar. 15, 2005)

(applying exception to statements made three hours after the startling event); see also United States

v. Alexander, 331 F.3d 116, 123 (D.C. Cir. 2003) (applying exception to statements made 15 to 20

minutes after the startling event); United States v. Cruz, 156 F.3d 22, 30 (1st Cir. 1998) (applying

exception to statements made four hours after the startling event); United States v. Tocco, 135 F.3d

116, 128 (2d Cir. 1998) (applying exception to statements made within three hours of the startling

event).

Contrary to Arnold’s suggestion, our cases do not demand a precise showing of the lapse of

time between the startling event and the out-of-court statement. The exception may be based solely

on “[t]estimony 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 (internal

quotation marks omitted); see United States v. Schreane, 331 F.3d 548, 564 (6th Cir. 2003), a

conclusion that eliminates an unyielding requirement of a time line showing precisely when 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 (internal quotation marks omitted).

The dissent, though not Arnold, raises the concern that the uncorroborated content of an

excited utterance should not be permitted by itself to establish the startling nature of an event. But

No. 04-5384 United States v. Arnold Page 7

this issue need not detain us because considerable non-hearsay evidence corroborated the anxiety-

inducing nature of this event: (1) Gordon’s act of calling 911; (2) the fear and excitement exhibited

by the tenor and tone of Gordon’s voice during the 911 call; (3) Gordon’s distraught demeanor

personally observed by Officers Brandon and Newberry upon their arrival at the scene; (4) Gordon’s

renewed excitement upon seeing Arnold return; and (5) the gun matching Gordon’s description

found underneath the passenger seat in which Arnold was sitting. This dispute, in short, is not one

of the “very few cases” in which this “knotty theoretical problem” has raised its head. See

2 McCormick on Evidence § 272 (6th ed. 2006) (“Fortunately, only a very few cases need actually

confront th[e] knotty theoretical problem [of whether independent corroborating evidence of

startling events is necessary] if the courts view what constitutes independent evidence broadly, as

they should where the circumstances and content of the statement indicate trustworthiness.”)

(internal footnote omitted).

Gordon’s statement to officers upon their arrival at the scene. When the officers arrived

at the scene soon after learning of the 911 call, Gordon exited her car and approached the officers,

“crying,” “hysterical,” “visibly shaken and upset,” and exclaimed that Arnold had threatened her

with a gun. JA 112–14. For many of the same reasons the district court had authority to admit the

911 call, it had authority to admit this statement. It remained the case that a startling event had

occurred. The time that had passed between the end of the 911 call and the officers’ arrival on the

scene—5 to 21 minutes, based on the officers’ testimony that the dispatch contacted them “about

8:00” or “a little bit before 8:00,” JA 71, 112, 139, (meaning the dispatch could have occurred any

time between the end of the 911 call at 7:45 and 8:00) and that they arrived five to six minutes

later—did not give Gordon sufficient time to misrepresent what had happened. See Alexander, 331

F.3d at 123 (“Considering the nature of the startling occurrence—Alexander allegedly had a gun and

threatened both to ‘do something’ to [declarant] and to ‘mess [up]’ her apartment—the passage of

15 to 20 minutes hardly suggests that the district court abused its discretion in admitting the 911

call.”). And as shown by Gordon’s frantic statements to the officers upon their arrival, she remained

visibly agitated by Arnold’s threat. The court did not abuse its discretion in admitting the statement.

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

the officers’ arrival, which is to say from 30 seconds to 5 minutes after they reached the scene, 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 an excited utterance. “[T]hat’s him,” she said, “that’s the guy who pulled

a gun on me, Joseph Arnold, that’s him.” JA 115. The district court permissibly admitted this

statement as part of the same emotional trauma that captured Gordon’s earlier statement to the

officers. On top of that, the unexpected appearance of the victim’s assailant independently suffices

to establish a startling event followed by an understandably excited verbal response. See Beverly,

369 F.3d at 540; cf. United States v. Scott, 69 F. App’x 317, 321 (6th Cir. July 10, 2003); United

States v. Taylor, No. 92-5120, 1992 U.S. App. LEXIS 29048, at *3 (6th Cir. Nov. 5, 1992). The

district court did not abuse its discretion in admitting the statement.

The dissent’s view of the excited-utterance question prompts a few responses. First, the

dissent, though not Arnold, contends that the district court failed to place the burden of proof on the

government. Yet the district court, in making this ruling, concluded that “the elements to allow the

exception have been demonstrated by the government.” JA 79. And we, too, have placed the

burden on the government. See supra at 5 (noting that, to qualify a statement as an excited

utterance, “a party must show three things”).

Second, the dissent claims that, instead of saying “he’s fixing to shoot me,” Gordon said “he

finna shoot me,” Dissent at 29–30, thereby eliminating the “’s” between he and finna (which the

dissent finds to be a slang term for “fixing to”). But Arnold has not challenged the district court’s

factual determination that Gordon told the 911 operator “he’s fixing to shoot me,” and accordingly

this issue is not properly before us. Nor, at any rate, is it clearly the case, or even somewhat clearly

No. 04-5384 United States v. Arnold Page 8

the case, that the dissent properly interprets the tape—given the rapidity and anxiety with which

Gordon spoke during the 911 call. This difficulty reinforces not only our decision to defer to the

district court’s interpretation of the tape but also our decision that indeed it was an excited utterance.

See Anderson v. City of Bessemer City, 470 U.S. 564, 573–74 (1985).

IV.

A.

At trial, Arnold also challenged the admissibility of these three statements under the

Confrontation Clause of the Sixth Amendment. Quite understandably then, quite wrongly now, the

district court rejected these challenges on the ground that the applicability of a traditional hearsay

exception to each statement (in this instance, the excited-utterance exception) freed the evidence

from challenge under the Confrontation Clause in accordance with Ohio v. Roberts, 448 U.S. 56

(1980). In light of the Supreme Court’s intervening decision in Crawford v. Washington, 541 U.S.

36 (2004), that is no longer an accurate mode of analysis. See id. at 61. 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 subjected to “witnesses against him,” U.S.

Const. amend. VI, the defendant generally has 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. The

Confrontation Clause, Crawford thus establishes, bars the “admission of testimonial statements of

a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had

a prior opportunity for cross-examination.” 541 U.S. at 53–54 (emphasis added).

In announcing this rule, Crawford chose not to provide a “comprehensive” definition of

“testimonial” hearsay, id. at 68, but it did offer initial guidance on the meaning of the term. The

Court explained that “testimony” involves “‘[a] solemn declaration or affirmation made for the

purpose of establishing or proving some fact.’” Id. at 51 (quoting 2 N. Webster, An American

Dictionary of the English Language (1828)). And it explained that testimonial hearsay at a

minimum includes “a formal statement to government officers” by “[a]n accuser” in the form of an

affidavit, a deposition, prior testimony or the like. Id. at 51–52. While these initial explanations

sufficed to resolve Crawford, which involved statements made during a station-house interrogation,

the Court reviewed two consolidated cases last Term that required it to give further definition to the

line between testimonial and nontestimonial hearsay. See Davis v. Washington, 126 S. Ct. 2266

(2006).

“Statements are nontestimonial,” Davis explained, “when made in the course of police

interrogation under circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial

when the circumstances objectively indicate that there is no such ongoing emergency, and that the

primary purpose of the interrogation is to establish or prove past events potentially relevant to later

criminal prosecution.” Id. at 2273–74. Davis applied this definition to two recurring types of

witness statements: statements to 911 operators and statements to the police at the scene of the

crime.

“A 911 call . . . and at least the initial interrogation conducted in connection with a 911 call,”

the Court held, “is ordinarily not designed primarily to ‘establis[h] or prov[e]’ some past fact, but

to describe current circumstances requiring police assistance.” Id. at 2276. In reaching this

conclusion, the Court noted four distinctions between the 911 call before it and the interrogation at

issue in Crawford. The accuser, Michelle McCottry, “was speaking about events as they were

actually happening,” not describing events “hours” after they occurred. Id. “[A]ny reasonable

listener would recognize that McCottry (unlike Sylvia Crawford) was facing an ongoing

emergency,” prompting her to make “a call for help against bona fide physical threat.” Id. “[T]he

No. 04-5384 United States v. Arnold Page 9

nature of what was asked and answered in Davis” demonstrated that “the elicited statements were

necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford)

what had happened in the past.” Id. And there was a “striking” “difference in the level of formality”

of the two statements, with Crawford “responding calmly” at the police station to the officer’s

questions and the officer taking notes about the answers while “McCottry’s frantic answers were

provided over the phone, in an environment that was not tranquil, or even . . . safe.” Id. at 2276–77.

“[T]he circumstances of McCottry’s interrogation,” the Court concluded, “objectively

indicate its primary purpose was to enable police assistance to meet an ongoing emergency.” Id. at

2277. She thus “was not acting as a witness; she was not testifying.” Id. The Court acknowledged

that an interrogation that begins as a plea for help may turn into testimony once the emergency

purposes of the 911 call have been satisfied. Id.

The Court reached a different conclusion in the second case, which also stemmed from a

domestic dispute and which concerned Amy Hammon’s statements to investigating police officers

at her home after the police responded to a “reported domestic disturbance.” Id. at 2272 (internal

quotation marks omitted). The characterization of these statements was “much easier” to resolve,

the Court held, because they “were not much different” from the statements in Crawford. Id. at

2278. The interrogation arose from “an investigation into possibly criminal past conduct”; “[t]here

was no emergency in progress”; Hammon told the officers when they arrived that “things were fine”;

when an officer eventually questioned Hammon a second time and elicited the challenged

statements, “he was not seeking to determine . . . ‘what is happening,’ but rather ‘what happened’”;

the police separated Hammon from her husband during the interview and prohibited him from

intervening; and the interview “took place some time after the events described were over.” Id.

Under these circumstances, the Court held, Hammon’s answers to the officers’ questions amounted

to testimonial statements.

In reaching this conclusion, the Court rejected the theory “that virtually any ‘initial inquiries’

at the crime scene” will be nontestimonial. Id. at 2279. At the same time, it cautioned, it was not

“hold[ing] the opposite—that no questions at the scene will yield nontestimonial answers. We have

already observed of domestic disputes that officers called to investigate . . . need to know whom they

are dealing with in order to assess the situation, the threat to their own safety, and possible danger

to the potential victim.” Id. (internal quotation marks and brackets omitted). “Such exigencies,”

the Court added, “may often mean that ‘initial inquiries’ produce nontestimonial statements. But

in cases like this one, where [Hammon’s] statements were neither a cry for help nor the provision

of information enabling officers immediately to end a threatening situation, the fact that they were

given at an alleged crime scene and were ‘initial inquiries’ is immaterial.” Id.

As Davis’s assessment of the 911 call and the on-the-scene statements indicates, the line

between testimonial and nontestimonial statements will not always be clear. Even if bona fide 911

calls frequently will contain at least some nontestimonial statements (assuming the emergency is real

and the threat ongoing) and even if a victim’s statements to police at the scene of the crime

frequently will contain testimonial statements (assuming the emergency has dissipated), that will

not always be the case, and difficult boundary disputes will continue to emerge. Each victim

statement thus must be assessed on its own terms and in its own context to determine on which side

of the line it falls.

1.

The 911 Call. Gordon’s statements to the 911 emergency operator offer a close analogy to

McCottry’s statements in Davis. As in Davis, we assume for the sake of argument that the inquiries

of the 911 operator amount to “acts of the police.” 126 S. Ct. at 2274 n.2. And as in Davis, we do

not doubt that Gordon sought protection from an ongoing emergency. When Gordon fled from her

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

gun-wielding assailant, the defendant remained at large and remained (in the present tense) “fixing

to shoot” her. See id. at 2276 (“McCottry was speaking about events as they were actually

happening, rather than describing past events.”) (internal quotation marks and brackets omitted).

The tape of the 911 call itself makes clear that Gordon had made “a call for help against [a] bona

fide physical threat.” Id. The 911 operator’s handling of the call shows that she was trying to

“elicit[] statements . . . necessary to be able to resolve the present emergency,” id. (emphasis

omitted), by attempting to compose Gordon and by seeking to understand the gravity of the peril she

faced. Gordon’s frantic responses “were provided over the phone, in an environment that was not

tranquil, or even . . . safe” because she had just left the house and had no reason to know whether

Arnold was following her or not. Id. at 2277. The fear that the district court noted in Gordon’s

voice communicated that she was scarcely concerned with testifying to anything but simply was

seeking protection from a man with a gun who had killed before and who had threatened to kill

again. The primary purpose and effect of the 911 operator’s questioning was to resolve the crisis,

with the questions and answers coming in spite of, not because of, the possibility of a later criminal

trial.

Nor had the “exigency of the moment . . . ended,” id. at 2277, before Gordon made the 911

call. While Gordon left the house and entered her car around the corner before making the 911 call

rather than trying to make the call in Arnold’s presence, that did not make the emergency less real

or less pressing. It is one thing for the assailant to start “runnin[g]” after his victim calls 911, to

leave in a car and to give the victim an opportunity to lock the door, all of which happened in Davis

and all of which suggested that the responses to the 911 operator may have evolved into testimonial

hearsay. Id. at 2271, 2277. It is another thing for the victim to flee the house and for the assailant

still to be “fixing to shoot” her. In Davis, the assailant left the scene in a car because he knew the

police were on their way, and there thus was no reason to think that he would be back—factors that

markedly diminished the peril the victim faced. Gordon by contrast left the residence, went around

the corner and called the police. At the time she made the call, she had no reason to know whether

Arnold had stayed in the residence or was following her. What she did know is that he had a gun;

he had just threatened her; he was still in the vicinity; there was still “somebody runnin’ around with

a gun” nearby, United States v. Thomas, 453 F.3d 838, 844 (7th Cir. 2006) (internal quotation marks

omitted); there was in short an “emergency in progress,” Davis, 126 S. Ct. at 2278.

Nor need we consider whether the 911 call evolved into testimonial hearsay over the course

of its nearly two-minute duration. Arnold makes no such argument; he contends only that the entire

call should have been suppressed because the exigency had dissipated before the call began.

2.

Gordon’s statement to officers upon their arrival at the crime scene. While it may often

be the case that on-the-scene statements in response to officers’ questions will be testimonial

because the presence of the officers will alleviate the emergency, this is not one of those cases.

Neither the brief interval of time after the 911 call nor the arrival of the officers ended the

emergency. Arnold remained at large; he did not know that Gordon had called 911; and for all

Gordon (or the officers) knew Arnold remained armed and in the residence immediately in front of

them or at least in the nearby vicinity.

The exchange between Gordon and the officers also suggests that the officers primarily were

focused on meeting the emergency at hand, not on preparing a case for trial. As soon as the police

arrived and before they had a chance to ask her a question, Gordon exited her car, “walked towards

[them], . . . crying and . . . screaming, [and] said Joseph Arnold pulled a gun on her, [and] said he

was going to kill her.” JA 114. The officers tried to “tell[] her to gather herself and [to] slow

down.” JA 115.

No. 04-5384 United States v. Arnold Page 11

While the fact that Gordon’s initial statement was unprompted and thus not in response to

police interrogation does not by itself answer the inquiry, Davis, 126 S. Ct. at 2274 n.1, this reality

at least suggests that the statement was nontestimonial. So, too, does the distress that the officers

described in her voice, the present tense of the emergency, the officers’ efforts to calm her and the

targeted questioning of the officers as to the nature of the threat, all of which suggested that the

engagement had not reached the stage of a retrospective inquiry into an emergency gone by. No

reasonable officer could arrive at a scene while the victim was still “screaming” and “crying” about

a recent threat to her life by an individual who had a gun and who was likely still in the vicinity

without perceiving that an emergency still existed. And nothing that Gordon told them, and

certainly nothing about the way she told it to them, would have allayed concerns of a continuing

threat to Gordon and the public safety, to say nothing of officer safety.

During the few moments the officers spoke to Gordon, moreover, the primary purpose,

measured objectively, of the question they asked her—for “a description of the gun,” JA 133—was

to avert the crisis at hand, not to develop a backward-looking record of the crime. Contrary to the

contention of the partial dissent, this question did not transform the encounter into a testimonial

interrogation. Asking the victim to describe the gun represented one way of exploring the

authenticity of her claim, one way in other words of determining whether the emergency was real.

And having learned who the suspect was and having learned that he was armed, they surely were

permitted to determine what kind of weapon he was carrying and whether it was

loaded—information that has more to do with preempting the commission of future crimes than with

worrying about the prosecution of completed ones. What officers would not want this

information—either to measure the threat to the public or to measure the threat to themselves? Cf.

Davis, 126 S. Ct. at 2276 (911 operator’s questions regarding assailant’s identity objectively aimed

at addressing emergency because “the dispatched officers might” then “know whether they would

be encountering a violent felon”). And what officer under these circumstances would have yielded

to the prosecutor’s concern of building a case for trial rather than to law enforcement’s first and most

pressing impulse of protecting the individual from danger?

Nor does the fact that Gordon made her statement to investigating police officers on the

scene by itself establish that it was testimonial. Davis disclaimed creating any such rule. 126 S. Ct.

at 2279. Officers investigating domestic disputes, it observed, “need to know whom they are dealing

with in order to assess the situation, the threat to their own safety, and possible danger to the

potential victim. . . . Such exigencies may often mean that initial inquiries produce nontestimonial

statements.” Id. (internal quotation marks, brackets and emphasis omitted). Gordon’s statements

also stand in marked contrast to Amy Hammon’s on-the-spot testimonial statements in Davis. Here,

by all accounts, the officers sought only to bring initial calm to the situation (by reassuring the

victim) and to understand the threat to the public and their own safety (by learning that Arnold had

a loaded semiautomatic handgun). To the extent they made inquiries at all, they never strayed from

asking questions clarifying the extent of the emergency and obtaining information necessary to

resolve it. Hammon in comparison told the arriving officers that “things were fine . . . and there was

no immediate threat to her person”; she spoke with officers while “actively separated from the

defendant” who had been detained and was with other officers in a different room; she “deliberately

recounted, in response to police questioning, how potentially criminal past events began and

progressed”; and then she summarized all of this in an affidavit for the officers. Id. at 2278. The

ongoing-emergency questioning in the former offers a poor analogy to the structured, distress-free

questioning in the latter.

3.

Gordon’s statement to officers when Arnold suddenly returned to the scene. Gordon’s

statement to the officers when Arnold returned to the scene bears even less resemblance to testimony

than her initial statement to the officers. Her exclamation—“that’s him, that’s the guy that pulled

No. 04-5384 United States v. Arnold Page 12

the gun on me”—was prompted not by ex parte questioning by the officers but by Arnold’s sudden

reappearance. When she not only described Arnold as her assailant but also added that “he’s got a

gun on him,” JA 116, no one can doubt that Gordon and the officers faced a risky situation or that

Gordon sought to obtain their protection. This was not a statement prepared for court. “No

‘witness,’” after all, “goes into court to proclaim an emergency and seek help.” Davis, 126 S. Ct.

at 2277. The statement thus “was not ‘a weaker substitute for live testimony’ at trial,” id. (quoting

United States v. Inadi, 475 U.S. 387, 394 (1986)), but had independent evidentiary value separate

and apart from any “courtroom analogue[],” id. It was nontestimonial.

As with the district court’s evidentiary ruling, the dissent questions whether the district court

allocated the burden of proof to the government on the Confrontation Clause issue. Arnold again

has not raised the issue, and accordingly he has waived it. The point does not, in any event, have

traction. As the above analysis reveals, the government has met its burden of proving that Gordon’s

statements to the 911 operator and at the scene were nontestimonial.

Noting that Gordon used “past tense” verbs at several points during the 911 call, the dissent

contends that there was no longer an ongoing emergency when Gordon made the 911 call and when

the officers arrived on the scene. But the entire 911 conversation begins with, and takes place in the

context of, a present-tense plea for help: “I need police.” Gordon’s “past tense” statements

described discrete facts contributing to what, from an objective perspective, constituted an ongoing

emergency requiring police protection. It does not improve matters to characterize Gordon’s

statement as “he finna shoot me.” Even if “finna . . . connote[s] future action,” as the dissent

suggests, Dissent at 31 n.9, it was the future action of Arnold shooting her that Gordon desperately

sought to avoid. Doubtless, “heavy breathing,” “footsteps pounding the pavement,” and the like,

Dissent at 33, would make our work easier. But these are not irreducible minimums of an ongoing

emergency. Her 911 call, her frantic behavior during and after the call and the nature of the threat

(a gun-wielding assailant who had just been released from jail after a murder conviction, who was

“fixing to shoot” her and who was still in the area) all sufficed to show that Gordon had every reason

to fear for her safety.

Nor, once the officers arrived, is it the case that Gordon did nothing “consistent with an

ongoing emergency.” Dissent at 34. That she rushed up to the officers and was so upset that she

initially “couldn’t speak,” JA 73, surely bespeaks the conduct of one who feels threatened—and who

could blame her under the circumstances? And by remaining near the house, she hardly showed

otherwise. She called 911 after she got out of the house, and the 911 operator told her that the

officers “would be over there as soon as they can” and to “be watching for them.” Staying near the

house thus offered the quickest route to making contact with the officers. And staying near her car

at the same time gave her an immediate-departure option if Arnold found her before the officers did.

B.

That leaves a follow-up question: While the Confrontation Clause plainly restricts the

admission of testimonial statements, does it continue to place any restrictions on the admission of

nontestimonial statements? Crawford left the question open, 541 U.S. at 61, and in the absence of

direction from the Court we have continued to apply the Roberts test to these types of statements

since Crawford, see, e.g., United States v. Johnson, 440 F.3d 832, 843–44 (6th Cir. 2006); United

States v. Franklin, 415 F.3d 537, 546 (6th Cir. 2005); United States v. Gibson, 409 F.3d 325, 338

(6th Cir. 2005).

Davis answers the question. The Confrontation Clause, Davis explains, is “solely concerned

with testimonial hearsay,” 126 S. Ct. at 2274 (internal quotation marks omitted), meaning that the

only admissibility question in this setting is whether the statement satisfies the Federal (or State)

Rules of Evidence. See id. (noting that the Confrontation Clause’s “focus on testimonial

No. 04-5384 United States v. Arnold Page 13

hearsay” “must fairly be said to mark out not merely its ‘core,’ but its perimeter”) (internal quotation

marks and brackets omitted); see also Whorton v. Bockting, 127 S. Ct. 1173, 1183 (2007) (“[T]he

Confrontation Clause has no application” to “out-of-court nontestimonial statement[s].”). Because

we have concluded that these three statements were nontestimonial and because Arnold has not

shown that the admission of the statements violated the Federal Rules of Evidence, the district court

properly permitted the jury to consider them.

V.

Arnold lastly argues that the district court committed reversible error by refusing to admit

the statement of a private investigator hired by Arnold in which Gordon told the investigator, eight

months after the incident, that in counsel’s words “she never saw [Arnold] with a gun that day.” JA

67. We disagree.

At the beginning of the trial, Arnold’s lawyer told the district court that he wished to put the

private investigator on the stand to introduce statements, including an affidavit signed by Gordon,

to the jury. In response, the district court told Arnold’s counsel that the proposed evidence was “just

hearsay.” Id. In reply, Arnold’s counsel did not argue generally that an exception to the hearsay

rule applied; he did not argue specifically that Rule 806 of the Federal Rules of Evidence permitted

the introduction of the evidence, not for the truth of the matter asserted, but for impeachment

purposes; and at one point, in response to one of the court’s statements that it was “just hearsay,”

Arnold’s lawyer merely said, “I’m just laying it out there for your consideration on the front end,

so we don’t go down this path and take valuable time” later on. Id.

On this record, Arnold’s lawyer did not preserve the objection that Rule 806 permits the

introduction of the evidence for impeachment purposes. When a trial court refuses to admit

evidence on hearsay grounds, counsel must explain whether a hearsay exception applies—here, for

example, by pointing to Rule 806 or by stating that the evidence is offered for impeachment

purposes—in order to preserve the issue for appeal. Otherwise, the district court has no opportunity

to consider the meaning of the exception and no opportunity to address its applicability. Plain-error

review thus applies. Fed. R. Evid. 103(a)(2), 103(d); see, e.g., United States v. Seymour, 468 F.3d

378, 387 (6th Cir. 2006) (applying plain-error review to exclusion of evidence because alleged

ground for admission was not raised below); United States v. Humphrey, 279 F.3d 372, 377–78 (6th

Cir. 2002) (applying plain-error review to excluded hearsay evidence that allegedly “could have

been admitted as a business record” because “defense counsel did not raise this specific exception

at trial”); United States v. Phillips, 888 F.2d 38, 41 (6th Cir. 1989) (applying plain-error review to

excluded evidence because the ground for admissibility (bias) was not raised below); United States

v. Millen, 594 F.2d 1085, 1088 (6th Cir. 1979) (“In the face of the government’s complete failure

to present to the District Court a reasoned argument for the admissibility of this evidence . . . we

decline to speculate about grounds for admissibility . . . .”); cf. Barner v. Pilkington N. Am., Inc., 399

F.3d 745, 748–49 (6th Cir. 2005) (holding that offer of evidence failed to satisfy Rule 103(a)(2)

because when the trial court excluded the evidence on hearsay grounds, the attorney did not “argue

that the evidence should be admitted under Rule 801(d)(2)(D) of the Federal Rules of Evidence as

statements made by the employees against the interests of Pilkington and within the scope of their

employment, which is the plaintiffs’ new position on appeal”).

To show plain error, a defendant must establish the following: “(1) error, (2) that is plain,

and (3) that affects substantial rights.” United States v. Cotton, 535 U.S. 625, 631 (2002) (internal

quotation marks and brackets omitted). If these three conditions are met, “an appellate court may

then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id.

No. 04-5384 United States v. Arnold Page 14

Arnold satisfies the first and second prongs of the plain-error test. As the government

acknowledges, Rule 806 permits the introduction of this statement for impeachment purposes

(though not for its truth), and the error is plain. See U.S. Supp. Br. at 51–52; Fed. R. Evid. 806.

We need not decide whether the evidence satisfies the third prong of the plain-error test

because it does not satisfy the fourth prong. At issue are two pieces of evidence: an affidavit signed

by Gordon and witnessed by Arnold’s private investigator and an oral statement made by Gordon

to Arnold’s private investigator. While both pieces of evidence apparently are to the effect that

Gordon “never saw Arnold with a gun that day” (we say “apparently” because the affidavit was

never entered into evidence, though the government concedes that it says as much), their exclusion

did not “seriously affect[] the fairness, integrity, or public reputation” of the proceedings in this case.

Cotton, 535 U.S. at 631. After the trial, Gordon faced a contempt action for failing to appear in

court in response to a government subpoena on the first day of Arnold’s trial. The record from the

contempt hearing, which is included as part of the record in this case, shows that Arnold’s private

investigator spoke to Gordon and obtained the affidavit eight months after Arnold’s arrest. At the

contempt hearing, which occurred two-and-a-half months after the trial, Gordon testified under oath

that she was “positive,” JA 261, and “absolutely sure,” JA 245, that she saw Arnold with a gun.

Acknowledging that she said something else when she met with Arnold’s private investigator, she

explained that the statements to Arnold’s investigator were the product of “pressure,” namely

pressure from her mom “telling me it wasn’t” a gun that her boyfriend (Arnold) was holding. JA

273. That Gordon thrice told the police that Arnold possessed a gun, that she made these statements

when she had no time to contrive, that the police found a gun under the seat of the car in which

Arnold was sitting, that she made a different statement eight months later only after pressure from

her mother and that she eventually retracted even that statement under oath at the contempt hearing,

all show that the exclusion of the testimony of Arnold’s private investigator was not the kind of

“particularly egregious” mistake that would justify a finding of plain error. United States v. Young,

470 U.S. 1, 15 (1985) (internal quotation marks omitted).

Brief responses to the partial dissent and the dissent on this point are in order. The partial

dissent concludes that we need not reach the issue because the defense never formally proffered the

investigator as a witness. That may be true. But the government did not make this argument on

appeal, and it seems odd to hold the defendant responsible for one procedural mistake (not making

a formal proffer) when the government has made an equally serious procedural mistake (not

challenging the absence of a formal proffer).

The dissent questions whether our cases require more of counsel in proposing evidence than

Evidence Rule 103(a)(2) requires. The point may be an interesting one but is best left for resolution

in another case. As this appeal comes to the court, the parties have argued the case in the context

of satisfying the requirements of our cases, not in the context of overruling those cases. As we read

those prior decisions, moreover, they do not require the proponent of evidence to base a proffer upon

a specific rule of evidence; they require the proponent only to inform the trial court why the

proposed evidence should be admitted—so, for example, had Arnold’s counsel explained that the

investigator’s testimony should be admitted to impeach Gordon, that would have sufficed. Nor have

we been able to find any cases—from any circuit court—concluding that the only requirement for

preserving error in this setting is to identify the content of the proposed evidence. At the same time,

numerous cases from other circuits embrace our modest requirement that the proponent explain why

the evidence “should be admitted.” United States v. Scott, 48 F.3d 1389, 1397 (5th Cir. 1995)

(“Excluded evidence is sufficiently preserved for review when the trial court has been informed as

to what counsel intends to show by the evidence and why it should be admitted.”) (internal quotation

marks omitted); see also, e.g., United States v. Moore, 425 F.3d 1061, 1068 (7th Cir. 2005)

(“Although this circuit does not require litigants to make formal offers of proof when evidence is

excluded, the record must show the equivalent: grounds for admissibility, the proponent must inform

the court and opposing counsel what he expects to prove by the excluded evidence, and he must

No. 04-5384 United States v. Arnold Page 15

demonstrate the significance of the excluded testimony.”) (internal quotation marks omitted); Polys

v. Trans-Colorado Airlines, Inc., 941 F.2d 1404, 1407 (10th Cir. 1991) (“[M]erely telling the court

the content of proposed testimony is not an offer of proof. Rather, . . . the proponent must explain

what it expects to show and the grounds for which the party believes the evidence to be admissible

so that the trial court is on notice of the purpose for which the evidence is offered while there is still

time to remedy the situation.”) (internal quotation marks, brackets and ellipses omitted).

It also remains unclear whether Evidence Rule 103 operates by itself in this situation. In

Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988), the Court reasoned that Rule 103(a)(2) and

Civil Rule 46 work together to require offers of proof to make apparent not only the content of the

evidence but also the grounds for its admission. Id. at 174; see also Kasper v. Saint Mary of

Nazareth Hosp., 135 F.3d 1170, 1175–76 (7th Cir. 1998) (The proponent “must, however, not only

make clear to the judge what the evidence is that he wants to present, Fed. R. Evid. 103(a)(2), but

also his ground . . . for believing that the evidence should be admitted. Fed. R. Civ. P. 46.”).

Criminal Rule 51 mirrors Civil Rule 46, see Fed. R. Crim. P. 51 advisory committee’s note 1 (“This

rule is practically identical with” Civil Rule 46 and it addresses “a matter of trial practice which

should be the same in civil and criminal cases in the interest of avoiding confusion.”), and courts

have embraced similar reasoning in the criminal context, see United States v. Muniz, 684 F.2d 634,

640 (9th Cir. 1982) (“Federal Rule of Criminal Procedure 51 requires a party to state the specific

grounds upon which the evidence is admissible.”); United States v. Fredericks, 599 F.2d 262, 264

(8th Cir. 1979) (“Federal Rule of Criminal Procedure 51 requires a party to make known to the trial

court the specific grounds upon which the admissibility of evidence is urged.”); see also 21 Charles

Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence 2d § 5040, at

882 (2005) (“[I]n considering the elements of an offer of proof, we shall consider not only the

language of Rule 103(a)(2) but the implications of Civil Rule 46 and Criminal Rule 51.”).

The one case cited by the dissent, United States v. Ganier, 468 F.3d 920, 924 (6th Cir. 2006),

does not alter this conclusion. There, in contrast to this case, no one indicated “that the proposed

testimony was not admissible under the Federal Rules of Evidence,” id. at 925, as the trial judge did

here. And there, in contrast to this case, “the government adequately made the grounds for

admissibility known to the court simply by arguing that it should not be excluded for failure to

comply with” the one ground for exclusion identified at trial—Federal Rule of Criminal Procedure

16(a)(1)(G). Id. (emphasis added).

Lastly, while the dissent’s observation about the interplay between Federal Rules of

Evidence 103(a)(1) and 103(a)(2) may deserve consideration at some point, now is not the time and

this is not the case. The issue has not been joined by the parties, and no appellate court to our

knowledge has embraced the argument.

VI.

For these reasons, we affirm.

No. 04-5384 United States v. Arnold Page 16

_______________________________________________

CONCURRING IN PART, DISSENTING IN PART

_______________________________________________

CLAY, Circuit Judge, concurring in part and dissenting in part. I join Judge Griffin’s

opinion concurring in part and dissenting in part in its entirety except with respect to section II of

the opinion, which holds that the potential impeachment evidence with respect to the private

investigator was properly excluded. With respect to the district court’s refusal to admit the private

investigator’s statement that Tamica Gordon told him she had never seen Joseph Arnold with a gun

on the day in question, I join section IV of Judge Moore’s dissenting opinion. I would therefore

reverse and remand for a new trial as would Judges Griffin and Moore.

No. 04-5384 United States v. Arnold Page 17

_____________________________________________

CONCURRING IN PART, DISSENTING IN PART

_____________________________________________

GRIFFIN, Circuit Judge, concurring in part and dissenting in part. I join in Sections I, II,

and III of the majority opinion and in the result of Section V and that portion of Section IV that

rejects defendant’s constitutional challenge to the admissibility of complainant Tamica Gordon’s

911 telephone call, her initial 30-second narrative on-the-scene statement, and her later spontaneous

statement, “that’s him, that’s the guy that pulled the gun on me, Joseph Arnold, that’s him.”

However, I respectfully dissent from the majority’s constitutional analysis and disposition pertaining

to the complainant’s hearsay statements made in response to police interrogation. Because these

errors were not harmless, I would reverse and remand for a new trial.

I.

The majority holds that all of Tamica Gordon’s hearsay statements made to the police at the

alleged crime scene were “nontestimonial” and, therefore, not subject to defendant’s right of

confrontation as guaranteed by the Sixth Amendment. I disagree.

The Confrontation Clause of the Sixth Amendment provides: “In all criminal prosecutions,

the accused shall . . . be confronted with the witnesses against him . . . .” In Crawford v.

Washington, 541 U.S. 36 (2004), the Supreme Court held that, consistent with the Confrontation

Clause guarantee, “testimonial” statements made by a declarant who does not testify at trial are

admissible against an accused only if the declarant is unavailable and the accused was afforded a

prior opportunity for cross examination. Although the Crawford Court did not formulate a definition

for “testimonial” statements, it emphasized that under any advocated definition “[s]tatements taken

by police officers in the course of interrogations” are testimonial statements. Id. at 52.

Recently, in Davis v. Washington, 547 U.S. — , 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006),

and its consolidated case, Hammon v. Indiana, the Supreme Court provided further guidance with

regard to the parameters of statements deemed “testimonial.” First, in Davis, the Court held that the

complainant’s 911 telephone call was nontestimonial and, therefore, not subject to the Confrontation

Clause of the Sixth Amendment. In upholding the admissibility of the 911 call, the Court stated:

Statements are nontestimonial when made in the course of police interrogation under

circumstances objectively indicating that the primary purpose of the interrogation is

to enable police assistance to meet an ongoing emergency. They are testimonial

when the circumstances objectively indicate that there is no such ongoing

emergency, and that the primary purpose of the interrogation is to establish or prove

past events potentially relevant to later criminal prosecution.1

__________________________________________________________________

1

Our holding refers to interrogations because, as explained below, the

statements in the cases presently before us are the products of interrogations – which

in some circumstances tend to generate testimonial responses. This is not to imply,

however, that statements made in the absence of any interrogation are necessarily

nontestimonial. The Framers were no more willing to exempt from cross-

examination volunteered testimony or answers to open-ended questions than they

were to exempt answers to detailed interrogation. (Part of the evidence against Sir

Walter Raleigh was a letter from Lord Cobham that was plainly not the result of

sustained questioning. Raleigh’s Case, 2 How. St. Tr. 1, 27 (1603).) And of course

No. 04-5384 United States v. Arnold Page 18

even when interrogation exists, it is in the final analysis the declarant’s statements,

not the interrogator’s questions, that the Confrontation Clause requires us to

evaluate.

Id. at 2273-74. In Davis, because the 911 call was made in response to an ongoing emergency, and

in connection with the need for police assistance, the portions of the 911 call at issue were deemed

nontestimonial.

The dichotomy adopted by the Supreme Court in Davis led to the opposite result in the

companion Hammon case. In Hammon, the police responded to a late-night report of a domestic

disturbance at the home of Hershel and Amy Hammon. Upon arriving at the scene, the police

encountered a “somewhat frightened” Amy, alone on the front porch, who initially told the

investigating officers that “nothing was the matter.” 126 S. Ct. at 2272. Amy gave the police

permission to enter the house, where an officer noticed a gas heating unit in the living room with

pieces of broken glass on the ground in front of it and flame emitting from the front of the heating

unit. Id. Hershel, who was in the kitchen, told the police that he and his wife had been in an

argument, but that “everything was fine now” and the argument “never became physical.” Id. At

this point, Amy had come back inside and, while Hershel was kept in a separate area of the house,

an officer interviewed Amy and then had her fill out and sign a battery affidavit. In the affidavit,

Amy alleged that her husband broke the furnace, shoved her to the floor into the broken glass, hit

her in the chest, and threw her down.

The State charged Hershel with domestic battery and with violating his probation. Amy was

subpoenaed, but she did not appear at her husband’s subsequent bench trial. The trial court admitted

the affidavit and testimony of the officer who questioned her over defense counsel’s objection that

the opportunity for cross examination of the declarant was improperly precluded. The trial judge

thereafter found Hershel guilty on both charges, and the Indiana Supreme Court ultimately affirmed,

concluding in pertinent part that, although Amy’s affidavit was testimonial and wrongly admitted,

its admission was harmless beyond a reasonable doubt.

After granting certiorari, the United States Supreme Court reversed the defendant’s

convictions and remanded for further proceedings, holding that Amy Hammon’s statements were

accusations of past events, not “cries for help” emanating from an ongoing emergency, and, thus,

were testimonial in nature. Consequently, the Court held, under these particular circumstances, that

the Sixth Amendment operated to exclude Amy’s affidavit:

Both Indiana and the United States as amicus curiae argue that this case should be

resolved much like Davis. For the reasons we find the comparison to Crawford

compelling, we find the comparison to Davis unpersuasive. The statements in Davis

were taken when McCottry [the complainant] was alone, not only unprotected by

police (as Amy Hammon was protected), but apparently in immediate danger from

Davis. She was seeking aid, not telling a story about the past. McCottry’s present-

tense statements showed immediacy; Amy’s narrative of past events was delivered

at some remove in time from the danger she described. And after Amy answered the

officer’s questions, he had her execute an affidavit, in order, he testified, “[t]o

establish events that have occurred previously.” App. in No. 05-5705, at 18.

Although we necessarily reject the Indiana Supreme Court’s implication that

virtually any “initial inquiries” at the crime scene will not be testimonial . . . we do

not hold the opposite – that no questions at the scene will yield nontestimonial

answers. We have already observed of domestic disputes that “[o]fficers called to

investigate . . . need to know whom they are dealing with in order to assess the

situation, the threat to their own safety, and possible danger to the potential victim.”

No. 04-5384 United States v. Arnold Page 19

Hiibel, 542 U.S., at 186, 124 S. Ct. 2451. Such exigencies may often mean that

“initial inquiries” produce nontestimonial statements. But in cases like this one,

where Amy’s statements were neither a cry for help nor the provision of information

enabling officers immediately to end a threatening situation, the fact that they were

given at an alleged crime scene and were “initial inquiries” is immaterial. Cf.

Crawford, supra, at 52, n.3, 124 S. Ct. 1354.6

__________________________________________________________________

6

Police investigations themselves are, of course, in no way impugned by our

characterization of their fruits as testimonial. Investigations of past crimes prevent

future harms and lead to necessary arrests. While prosecutors may hope that

inculpatory “nontestimonial” evidence is gathered, this is essentially beyond police

control. Their saying that an emergency exists cannot make it be so. The

Confrontation Clause in no way governs police conduct, because it is the trial use of,

not the investigatory collection of, ex parte testimonial statements which offends that

provision. But neither can police conduct govern the Confrontation Clause;

testimonial statements are what they are.

Id. at 2279.

In the wake of Crawford, our courts must undertake a two-step inquiry before admitting or

excluding hearsay evidence that is subject to a Confrontation Clause challenge. First, it must be

determined whether the hearsay evidence is admissible under the applicable rules of evidence.

Second, if the evidence is admissible under the rules, it must be determined whether the hearsay

statement is testimonial or nontestimonial. The Confrontation Clause bars the “admission of

testimonial statements of a witness who did not appear at trial unless he was unavailable to testify,

and the defendant had had a prior opportunity for cross examination.” Crawford, 541 U.S. at 53-54.

The majority recognizes these principles and correctly applies them to complainant’s 911

call and to her initial 30-second narrative. With regard to Gordon’s initial 30-second statement,

Officer Brandon testified that as soon as she arrived at the scene, “. . . this young woman walked

towards me, and she was crying and she was screaming, she said Joseph Arnold pulled a gun on her,

she said he was going to kill her. He was arguing and she thought he was going to kill her. He

pulled a gun on her.” This initial exchange lasted “[m]aybe 30 seconds at the most,” during which

time Officer Brandon “was telling her to gather herself and slow down.” I agree with the majority

that this initial statement, like the 911 call, was nontestimonial for the reasons that it was not the

product of police interrogation, but rather a “cry for help” made while the declarant perceived an

emergency and the need for immediate police assistance.

In addition, the majority properly affirms the admission of Gordon’s spontaneous statement

“that’s him, that’s the guy that pulled the gun on me, Joseph Arnold, that’s him,” on the ground that

her exclamation was prompted not by the ex parte questioning of the officers, but rather by

defendant’s sudden reappearance and, thus, was nontestimonial.

However, I respectfully disagree with the majority’s analysis and resolution of complainant’s

on-the-scene statements made in response to police interrogation. What may have started as an

emergency police response to a 911 call evolved into a standard police interrogation of a past crime.

Between five and fifteen minutes after the 911 call was received, three police officers arrived at the

given address and observed a young woman (Gordon), who was near a car parked outside the house,

crying and visibly shaken. Although Officer Brandon estimated that the initial conversation between

Gordon and the officers lasted approximately 30 seconds, Officer Newberry testified that the

investigating officers had a conversation with Gordon lasting “a few minutes,” “maybe five minutes”

No. 04-5384 United States v. Arnold Page 20

before defendant arrived on the scene. As previously noted, Gordon told the officers that Arnold

had pulled a gun on her during an argument and had threatened to kill her. During her conversation

with the officers, Gordon began to calm down, and the officers attempted to elicit a description of

the gun from the complainant. As Officer Brandon testified,

[W]hen we got there . . . we was [sic] trying to get a description of the gun, and she

said it was a black gun, a black handgun, which is a very vague description, and we

was [sic] trying to decide whether it was a revolver or semiautomatic revolver which

would be the gun like you think a cowboy would have where you can spin it out, but

a revolver – I mean a semiautomatic gun, most of them are chambered where you

pull the hammer back. This is called a hammer, you pull it back, and she made the

motion that he did that, which means there would be a round chambered, let us know

that it was a semiautomatic black handgun. So that kind of narrowed it down.

In response to these questions posed by the officers regarding the weapon allegedly

possessed by Arnold, Gordon described the gun as a black handgun. She further described to the

officers how defendant stood in the doorway with the gun in his hand and cocked the gun. Based

on Gordon’s hand gestures showing how the gun was cocked, the officers concluded the gun was

a black semi-automatic handgun that would have a round chambered in it.

In my view, the complainant’s description of the gun was testimonial in nature and material

in proving the felon in possession of a firearm charge against defendant. Once Gordon was safely

in the protective custody of the three police officers, the perceived emergency had ceased.

Accordingly, after that point, her responses to questions asked by the police regarding past events

were testimonial and therefore subject to defendant’s right to confrontation as guaranteed by the

Sixth Amendment.

The “safety of the officers” argument posed by the majority is not persuasive. The police

knew defendant might be armed. Obtaining a description of the weapon was standard crime

investigation.

The present case appears to be the scenario envisioned by the Supreme Court in Davis, in

which testimonial statements “evolve” from an initial response to an emergency:

This is not to say that a conversation which begins as an interrogation to determine

the need for emergency assistance cannot, as the Indiana Supreme Court put it,

“evolve into testimonial statements,” 829 N.E.2d, at 457, once that purpose has been

achieved. In this case, for example, after the operator gained the information needed

to address the exigency of the moment, the emergency appears to have ended (when

Davis drove away from the premises). The operator then told McCottry to be quiet,

and proceeded to pose a battery of questions. It could readily be maintained that,

from that point on, McCottry’s statements were testimonial, not unlike the

“structured police questioning” that occurred in Crawford, 541 U.S., at 53, n.4, 124

S. Ct. 1354. This presents no great problem. Just as, for Fifth Amendment purposes,

“police officers can and will distinguish almost instinctively between questions

necessary to secure their own safety or the safety of the public and questions

designed solely to elicit testimonial evidence from a suspect,” New York v. Quarles,

467 U.S. 649, 658-659, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984), trial courts will

recognize the point at which, for Sixth Amendment purposes, statements in response

to interrogations become testimonial. Through in limine procedure, they should

redact or exclude the portions of any statement that have become testimonial, as they

do, for example, with unduly prejudicial portions of otherwise admissible evidence.

Davis’s jury did not hear the complete 911 call, although it may well have heard

No. 04-5384 United States v. Arnold Page 21

some testimonial portions. We were asked to classify only McCottry’s early

statements identifying Davis as her assailant, and we agree with the Washington

Supreme Court that they were not testimonial. That court also concluded that, even

if later parts of the call were testimonial, their admission was harmless beyond a

reasonable doubt. Davis does not challenge that holding, and we therefore assume

it to be correct.

Davis, 126 S. Ct. at 2277-78.

Here, Gordon’s past-tense statements describing the weapon, made in the protective presence

of three police officers and, conversely, out of defendant’s presence, and given in direct response

to the officers’ ex parte questioning, were akin to McCottry’s later statements described above in

Davis, and Amy Hammon’s “narrative of past events . . . at some remove in time from the danger

she described.” Davis, 126 S. Ct. at 2279. Gordon’s statements in this regard were therefore

testimonial and inadmissible pursuant to the Confrontation Clause of the Sixth Amendment.

Having concluded that a confrontation error occurred, the next inquiry is whether the

constitutional error is harmless beyond a reasonable doubt. United States v. Robinson, 389 F.3d 582,

593 (6th Cir. 2004) (citing Delaware v. Arsdall, 475 U.S. 673, 684 (1986) and United States v.

Askarov, 299 F.3d 896, 898 (6th Cir. 2002)). “Whether such an error is harmless in a particular case

depends upon a host of factors, all readily accessible to reviewing courts. These factors include the

importance of the witness’ testimony in the prosecution’s case, whether the testimony was

cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the

witness on material points, the extent of cross-examination otherwise permitted, and, of course, the

overall strength of the prosecution’s case.” Arsdall, 475 U.S. at 684.

Here, at least with respect to the description of the gun, the error is not harmless beyond a

reasonable doubt. Although there was circumstantial evidence connecting defendant to a gun, the

prosecution’s case was strengthened considerably by the match of the complainant’s description of

the firearm to the black, semi-automatic, loaded handgun found under the seat in the vehicle in

which defendant had been sitting. Although complainant Gordon previously told the 911 operator

that defendant had threatened her with a gun and exclaimed to the police upon their arrival that

defendant “pulled a gun on her,” there was no description of the weapon until police questioning.

In the words of Officer Brandon “. . . we was [sic] trying to get a description of the gun . . . .”

Through such questioning, the officers learned from the complainant that the gun was a loaded,

black, semi-automatic handgun. In the absence of any corroborative eyewitness testimony or

evidence that defendant actually possessed a firearm, the admission into evidence of complainant’s

responses to police interrogation asking for a description of the gun was therefore highly prejudicial

and violative of defendant’s Sixth Amendment right to confrontation.

Moreover, at oral argument, the government conceded that, if a confrontation error occurred

with regard to Gordon’s hearsay statements, the error could not be deemed harmless. I accept the

government’s concession in this regard and would reverse and remand for a new trial on this basis.

II.

In Section V, the majority rejects defendant’s challenge relating to impeachment evidence

that could have been offered through the testimony of private investigator Sam Lewis. The majority

holds that error requiring reversal did not occur because defendant failed to sustain his burden of

proving plain error, FED. R. EVID. 103(d). I agree with the result, but disagree with the majority’s

rationale.

The record reveals that, after the jury was selected, the government made two motions in

limine. The first sought the admission of portions of the 911 taped telephone call. The second

No. 04-5384 United States v. Arnold Page 22

requested admission of the on-the-scene hearsay statements made by Tamica Gordon to the police.

During oral argument on the government’s motions to admit its evidence, defense counsel advised

the court that he had a witness (private investigator Sam Lewis) who was prepared to testify that

with regard to Gordon’s repeated claims that defendant had a gun, when talking to investigator

Lewis “. . . she gave a different story.” The court responded “That’s just hearsay. There’s no

exception.” Defense counsel later argued that such evidence may be admissible because “. . . this

is along the lines of rebuttal type information . . . .” Although a discussion occurred between

defense counsel and the trial judge, defense counsel did not move for the admission of the potential

impeachment evidence. Accordingly, the trial court did not make a ruling admitting or excluding

this evidence.

Later, after the government rested its case, the Honorable Jon Phipps McCalla asked defense

counsel “. . . I thought we had an investigator who was going to testify . . . .” Defense counsel

Terrell Harris responded: “No sir, we crossed the investigator yesterday. I knew better to bring him

over here after that discussion yesterday.”

There was no error regarding the potential impeachment evidence for the reason that there

was no motion for a ruling and, thus, no ruling made. Because there was no ruling to appeal, the

majority inappropriately strays into a plain error analysis.

III.

For these reasons, I concur in part and dissent in part. I would reverse and remand for a new

trial.

No. 04-5384 United States v. Arnold Page 23

________________

DISSENT

________________

KAREN NELSON MOORE, Circuit Judge, dissenting. I disagree with the majority

opinion’s conclusions regarding the sufficiency of the evidence, the admissibility of Gordon’s

statements under the excited-utterance exception to the hearsay rule as well as under the

Confrontation Clause, and the district court’s refusal to admit testimony from a defense witness.

Accordingly, I respectfully dissent for the reasons detailed below.

I. SUFFICIENCY OF THE EVIDENCE

The court must first determine whether the prosecution presented sufficient evidence for a

reasonable jury to conclude, beyond a reasonable doubt, that Joseph Arnold possessed the handgun

found in his girlfriend’s car. The only evidence of such possession consists of (1) Arnold’s presence

in the car, and (2) Tamica Gordon’s statements to the police that Arnold had threatened her with a

gun (although not necessarily the gun at issue) earlier that day. As demonstrated by the cases the

majority opinion itself cites, such evidence is not sufficient to support a felon-in-possession

conviction under either an actual or constructive possession theory.

First, the majority opinion tellingly sloughs over a significant piece of evidence that

undercuts its conclusion—the gun retrieved from Gordon’s mother’s car bore no fingerprints. If,

as the majority opinion concludes, Arnold had threatened Gordon with a gun and then took the gun

with him into Gordon’s mother’s car, it stands to reason that the gun would carry his fingerprints.

The gun found in the car, however, had none. This inconvenient fact undercuts the entirety of the

majority’s analysis.

Second, the majority opinion provides no basis for concluding that a reasonable jury could

have found that Arnold actually possessed the gun found in his girlfriend’s car. “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 United States v. Craven, 478 F.2d 1329, 1333

(6th Cir. 1973)). 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)).

The jury lacked sufficient evidence to convict on an actual-possession theory because the

government supplied no evidence that Arnold had “direct physical control over a thing”—the

gun—at the relevant “given time”—when he was in the car. Instead, the government offered

evidence only of Arnold’s mere proximity to the gun. Proximity, however, is insufficient to support

a conviction for actual possession. Cf. Beverly, 750 F.2d at 37 (holding that evidence that defendant

was standing next to a waste basket containing gun was insufficient to prove even constructive

possession, let alone actual possession).

On this basis, each of the cases the majority opinion cites is distinguishable. For instance,

United States v. Moore, 208 F.3d 411 (2d Cir. 2000), involved a situation in which “the officers saw

defendant-appellant Curtis Moore standing in the middle of the courtyard with a black and silver

handgun in his waistband.” Id. at 412. Similarly, in United States v. Crowe, 291 F.3d 884 (6th Cir.

2002), the officer “observed the butt end of a black semi-automatic handgun protruding from under

the waistband of Crowe’s pants.” Id. at 885. See also United States v. Barnett, 398 F.3d 516, 522

(6th Cir. 2005) (officer saw defendant “holding a long black object that looked like a shotgun”

which police later recovered in the area where the defendant had dropped it); United States v.

Daniels, 170 F. App’x 409, 410 (6th Cir. 2006) (unpublished opinion) (officer saw defendant pull

No. 04-5384 United States v. Arnold Page 24

out an object looking like a handgun and throw it to the ground, and handgun was later recovered);

United States v. Austin, 133 F. App’x 271, 275 (6th Cir. 2005) (unpublished opinion) (officer saw

defendant holding a gun before he fled, and later recovered the gun along his path of flight). In each

of these cases, the government had evidence that the defendant had “direct physical control” over

the gun in question at the relevant time because in each case, the police officer witnessed the

defendant with the gun on his person. See Frederick, 404 F.3d at 765. No such evidence exists

here.

As noted in the panel’s per curiam opinion, Gordon’s accusation that Arnold had a gun when

he threatened her does not address whether Arnold had direct physical control over the relevant gun

(the one found in the car) at the relevant time (when officers arrested him). Gordon’s testimony is

insufficient to sustain a conviction because conviction requires proof that Arnold “possess[ed] the

firearm and ammunition specified in the indictment.” United States v. Schreane, 331 F.3d 548, 560

(6th Cir. 2003) (emphasis added). Because the prosecution presented no evidence showing that

Arnold had physical control over the recovered firearm when it was recovered or immediately

before, no rational trier of fact could have found that the government proved actual possession

beyond a reasonable doubt.

Likewise, the government has not provided sufficient evidence for a reasonable jury to

conclude that Arnold constructively possessed the gun found in the car. “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. One way the government may prove the defendant had the

power to exercise dominion over a firearm is through evidence that he had 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, a defendant’s presence where a firearm was

found, without more, is insufficient to establish “the requisite knowledge, power, or intention to

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

Our previous decisions rejecting sufficiency challenges by defendants found in cars

containing guns are all readily distinguishable, as in each case, there was sufficient evidence tying

the defendant to a particular gun found in the car. For instance, in United States v. Murphy, 107

F.3d 1199 (6th Cir. 1997), we noted that a defendant found in a car with a gun could not mount a

successful sufficiency challenge when he was the car’s only occupant, and thus clearly exercised

dominion over the car. Id. at 1208. But Arnold was not alone in the car. In United States v. Carter,

355 F.3d 920 (6th Cir. 2004), a defendant’s sufficiency challenge was unsuccessful because other

occupants in the car were precluded from being the source of the firearm. Id. at 925. But here, the

government presented no evidence showing that Arnold’s girlfriend, the car’s driver, could not have

been the source. In other cases, we rejected sufficiency challenges when the defendant was the

owner of the car and had arranged to sell the gun, Birmley, 529 F.3d at 107, when the defendant

drove the car containing the gun, id., when police saw the defendant attempting to conceal the

weapon, Carter, 355 F.3d at 925; Schreane, 331 F.3d at 561, and when the defendant and the owner

of the gun had a close relationship, id. But here, Arnold neither drove nor owned the car, there is

no evidence that the police saw him attempt to conceal it (let alone touch it at all), and the

government never established the identity of the gun’s owner. Because the record contains no

evidence of any of these factors, this court lacks any basis upon which to conclude that Arnold

exercised dominion or control over the car or the gun found inside it.

No. 04-5384 United States v. Arnold Page 25

This conclusion is reinforced by our decision in United States v. Beverly, 750 F.2d 34 (6th

Cir. 1984), which involved a gun found in a home.1 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,

and the print’s location suggested 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, so the evidence of constructive possession does not rise

even to the level that we rejected as insufficient in Beverly. The majority’s half-hearted attempt to

distinguish Beverly falls flat. The majority emphasizes that no eyewitness had seen Beverly possess

the gun, but fails to explain how such testimony (present in this case) is more indicative of

constructive possession than a defendant’s fingerprint on a gun that had been laid down soon before

it was recovered. Again, if the evidence in Beverly could not sustain a conviction, the evidence in

this case is woefully inadequate.

Similarly, our sister circuits have reversed on sufficiency grounds convictions stemming

from far stronger facts than those of this case. For instance, in United States v. Blue, 957 F.2d 106

(4th Cir. 1992), the Fourth Circuit overturned a conviction for felon-in-possession when the police

found the gun underneath the defendant’s seat, notwithstanding the officer’s testimony that he saw

the defendant “dip as if [he] were reaching under the seat with his right hand” after the officer pulled

the car over. Id. at 107. Similarly, in United States v. Hishaw, 235 F.3d 565 (10th Cir. 2000), cert.

denied, 533 U.S. 908 (2001), the Tenth Circuit overturned such a conviction notwithstanding that

the defendant was the driver of the car, and notwithstanding testimony that he had possessed a

similar weapon on earlier occasions. Id. at 572-73. See also United States v. Kelso, 942 F.2d 680,

681-82 (9th Cir. 1991) (notwithstanding defendant’s access to gun, rejecting argument that the

defendant passenger constructively possessed a gun found behind the driver’s seat because

government failed to show defendant’s ownership or awareness of the gun); United States v.

Whitfield, 629 F.2d 136, 142-43 (D.C. Cir. 1980) (concluding that no reasonable juror could find

evidence that gun was found under defendant passenger’s seat within his reach was sufficient to

support constructive possession).

Nor do Gordon’s statements and gestures, as recounted by the police officers, establish a

sufficient nexus between Arnold and the gun to support Arnold’s conviction. At best, they suggest

that Arnold possessed a black, semiautomatic firearm at some unspecified earlier time. Again,

conviction requires proof that Arnold “possess[ed] the firearm and ammunition specified in the

indictment.” Schreane, 331 F.3d at 560 (emphasis added). Lacking any such evidence, the majority

opinion takes the tenuous leap of inferring from Arnold’s putative earlier possession that he

constructively possessed the black, semiautomatic gun recovered from the vehicle. 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 to support the inference that [the defendant] constructively possessed the

1

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.”)

No. 04-5384 United States v. Arnold Page 26

pistol” found in the car).2 The government has not established any nexus between the gun found

in the car and Arnold. Accordingly, this case is distinguishable from United States v. Thomas, 497

F.2d 1149 (6th Cir. 1974), because in Thomas, the nexus between the defendant and the gun was the

defendant’s own statement referring to the gun in question as “my gun.” Id. at 1150. By contrast,

the only connection between Arnold and the gun specified in the indictment is that officers found

it under a seat where Arnold was sitting in a car he was not driving and did not own.

And even if we were to infer that Arnold had previously possessed the gun found under the

seat, prior possession cannot establish possession at a later time. Beverly, 750 F.2d at 37 (evidence

that defendant had earlier held and laid down a gun was insufficient to establish constructive

possession).

Until today, mere coincidence has never been a substitute for constitutionally sufficient

evidence of possession. But with its opinion, the majority sweeps aside decades of authority from

this court and others, rendering this Circuit alone in the country in holding that possession of a gun

may be shown without some direct nexus between the gun and the defendant.

II. EXCITED UTTERANCE

After rewriting this circuit’s law on the threshold of evidence required to support a

conviction for being a felon in possession of a firearm, the majority opinion next errs by concluding

that Gordon’s statements to the 911 operator and to the police are admissible as excited utterances.

Because the record does not support the conclusion that any of Gordon’s statements fall into this

exception to the hearsay rule, I dissent on this ground as well.

As the majority correctly notes, Federal Rule of Evidence 803(2) permits a court to admit

out-of-court statements for the truth of the matter asserted when they “relat[e] to a startling event

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

condition.” The majority opinion also correctly cites the three elements of the Haggins test: (1) a

startling event, (2) the statement’s being made so temporally close to that event that the declarant

lacked time to contrive or misrepresent, and (3) the statement’s being made under the stress of

excitement caused by the event. Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050, 1057

(6th Cir. 1983). As is typical of evidentiary matters, “the burden of proving that the statement fits

squarely within a hearsay exception” rests with the proponent of the hearsay exception, here, the

government. United States v. Kendrick, 853 F.2d 492, 496 n.3 (6th Cir. 1988) (citing United States

v. Day, 789 F.2d 1217, 1221 (6th Cir.1986)). The district court failed to place the burden of proof

on the government, and the majority repeats this error, notwithstanding its assertion to the contrary.

A. Gordon’s 911 Call

We must decide whether the trial court abused its discretion when it admitted the relevant

out-of-court statements (Gordon’s 911 call and her statements to police officers at the scene) as

excited utterances. With regard to the 911 call, the district court concluded that each statement

contained in the tape recording of the call (save Gordon’s claim that Arnold was convicted murderer,

a statement the government did not seek to admit) was admissible under the excited-utterance

exception to the hearsay rule. To evaluate this decision, I consider the record evidence regarding

the first two prongs of the Haggins test.

2

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. Gordon’s reference to a black handgun is certainly

too vague for this case to constitute such an occasion, especially in light of testimony that about half of all handguns are

black. J.A. at 128.

No. 04-5384 United States v. Arnold Page 27

Startling Event. The government failed to introduce any evidence of a “startling event”

outside of the hearsay statement (the 911 call) itself. The majority glosses over this fact, stating

without analysis that “being threatened by a convicted murderer wielding a semi-automatic handgun

amounts to a startling event that would prompt at least nervous excitement in the average individual,

if not outright trauma.” Maj. Op. at 6. This may well be true, but absent some independent evidence

of such an event, the district court abused its discretion by admitting the tape.

I begin with first principles. Hearsay evidence is generally inadmissible because it is not

sufficiently reliable and cannot be tested through cross-examination. See 1-14 WEINSTEIN’S

EVIDENCE MANUAL § 14.01[1]. However, particular categories of hearsay statements that “contain

inherent guarantees of their truthfulness” constitute exceptions to the general prohibition on hearsay.

Haggins, 715 F.2d at 1057. Excited utterances are one such exception.

“The basis for the ‘excited utterance’ exception . . . 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.” Idaho v. Wright, 497 U.S. 805, 820 (1990) (emphasis added).

More specifically, “a person under the sway of excitement precipitated by an external startling event

will be bereft of the reflective capacity essential for fabrication and that, consequently, any utterance

he makes will be spontaneous and trustworthy.” Haggins, 715 F.2d at 1057 (quoting 4 J. WEINSTEIN

& M. BERGER, WEINSTEIN’S EVIDENCE ¶ 803(2)[01] at 803-79 (1981)). To determine whether a

hearsay statement contains such guarantees of reliability, we apply the aforementioned three-step

inquiry: “First, there must be an event startling enough to cause nervous excitement. Second, the

statement must be made before there is time to contrive or misrepresent. Third, the statement must

be made while the person is under the stress of excitement caused by the event.” Schreane, 331 F.3d

at 564 (internal quotation marks omitted). And as previously mentioned, the government bears the

burden of establishing each of these elements by a preponderance of the evidence. See Kendrick,

853 F.2d at 496 n.3.

These first principles demand that the excited utterance itself cannot constitute the only

evidence of a startling event; instead, the proponent of a hearsay statement must offer independent

corroborating evidence. This is true for two different, but related, reasons.

First, relying on the putative excited utterance itself to show that a startling event occurred

is endlessly circular. In such a scenario, the district court would rely on the statement itself to

establish an element of the test for whether the statement is sufficiently reliable to be admitted into

evidence. Such circularity is problematic in and of itself, although the problem can potentially be

explained away by reference to Federal Rule of Evidence 104(a), which permits district courts to

resolve preliminary questions regarding admissibility by preponderance of the evidence. See

Bourjaily v. United States, 483 U.S. 171, 175-76 (1987) (holding that district courts may resolve

preliminary questions under Federal Rule of Evidence 801(d)(2)(E) by preponderance of the

evidence).3 Notably, the record in this case reflects no such determination under Rule 104(a).

3

In Bourjaily, the Supreme Court concluded that a district court may consider an alleged co-conspirator’s

statements regarding the existence of a conspiracy as an aid to establishing Rule 801(d)(2)(E)’s co-conspirator exception

to the hearsay rule. 483 U.S. at 180-81. However, the Court explicitly refused to decide whether an alleged co-

conspirator’s statements could, in and of themselves, satisfy the proponent’s burden. Id. at 181. Thus, the Supreme

Court left open the issue of whether some independent proof of the relevant preliminary fact was required.

In response to Bourjaily, Rule 801(d)(2) was amended to reflect that the contents of the statement at issue “are

not alone sufficient to establish” the existence of a conspiracy. FED. R. EVID. 801 advisory committee’s note, 1997

amendment. This amendment reflects a policy against the type of bootstrapping that the majority here condones.

No. 04-5384 United States v. Arnold Page 28

Second, and significantly, this circularity contradicts the purpose of the excited-utterance

exception to the hearsay rule. As noted above, excited utterances are admissible because the

startling event and corresponding state of alarm renders it “unlikely that the statement is contrived

or the product of reflection.” Haggins, 715 F.2d 1057. And, as we have previously noted, when

determining whether a statement qualifies as an excited utterance, “the ultimate question is whether

the statement was the result of reflective thought or whether it was a spontaneous reaction to the

exciting event.” Id. at 1058 (quoting MCCORMICK’S HANDBOOK OF THE LAW OF EVIDENCE § 297

at 705-06 (2d ed. 1972)). Without some corroborating evidence of such an exciting event, the

district court lacks the capacity to make such a determination, or to determine even that there was

such an event. Put differently, when the only evidence of the startling event is the proffered

statement, the proponent cannot carry its burden of establishing that the relevant circumstances

“eliminate the possibility of fabrication,” Wright, 497 U.S. at 820, or that the statement “contain[s]

inherent guarantees of truthfulness,” Haggins, 715 F.2d at 1057. To the contrary, anyone could

contrive a fact that—if real—would cause excitement, and state it in an exclamatory manner. To

hold that such a statement, standing alone, is admissible for the truth of the matter asserted stands

the hearsay rule on its head.

In this case, the possibility of fabrication was alive and well. Without any independent

corroborating evidence of Arnold’s alleged gun-brandishing, the following series of events was

certainly possible:

Gordon and Arnold got into an argument and Gordon stormed away angry. Although

Arnold never brandished or mentioned a gun during the argument, Gordon knew that

her mother kept handguns in the house and in her car. Gordon wanted Arnold to

return to jail so that her mother’s relationship with him would end, so she contrived

a story while fleeing the house: Arnold threatened her with a gun in the course of

their argument. She then relayed this story to the 911 operator while still

emotionally upset from the altercation.

The point here is not that this turn of events is more likely true than not, but rather that

without any corroborating evidence of the putative exciting event, the government provided no

indication that Gordon’s statement is any more reliable than any run-of-the-mill inadmissible

hearsay statement.4 The lack of such reliability undermines the rationale for admitting excited

utterances, and accordingly, I would hold that the district court abused its discretion by admitting

Gordon’s statement to the 911 operator without independent corroborating evidence of the alleged

startling event.

Reaching the same conclusion that I have, various courts have held that a hearsay statement

itself cannot serve as the sole evidence of the alleged startling event that spurred the statement. See,

e.g., State v. Post, 901 S.W.2d 231, 234-35 (Mo. Ct. App. 1995); People v. Burton, 445 N.W.2d 133,

144 (Mich. 1989); Commonwealth v. Barnes, 456 A.2d 1037, 1040 (Pa. Super. Ct. 1983); State v.

Terry, 520 P.2d 1397, 1401 (Wash. Ct. App. 1974); Truck Ins. Exch. v. Michling, 364 S.W.2d 172,

174-77 (Tex. 1963); Beck v. Nat’l Sur. Corp., 171 F.2d 862, 863-64 (5th Cir. 1949); see also People

v. Leonard, 415 N.E.2d 358, 362 (Ill. 1981) (upholding admissibility of statement because

independent evidence corroborated occurrence of startling event, but noting that without such

4

Brushing this concern aside, the majority offers five items of “corroborating” evidence. Maj. Op. at 7. As

an initial matter, it is far-fetched to count each of these items as an independent piece of evidence. For example, the

majority attempts to parse surgically Gordon’s “act of calling 911” from the “fear and excitement” in her voice, and to

distinguish both of these from the statements made during the call, counting each as a separate factor indicating that the

alleged startling event actually occurred. But the point remains that each item is part of the same whole, a whole that

is perfectly consistent with the hypothetical contrivance recounted above. The majority’s rationale thus fails to illustrate

how Gordon’s statements in the 911 call are more reliable than any made-up out-of-court allegation.

No. 04-5384 United States v. Arnold Page 29

evidence, statement would be excluded).5 Even a panel of this court has noted in an unpublished

opinion that “an excited utterance can not establish its own underlying event.” United States v.

McCullough, 150 F. App’x 507, 509-10 (6th Cir. 2005) (unpublished opinion). In its supplemental

brief, the government notes that some other authorities have reached the opposite conclusion.

Appellee’s Supp. Br. at 27-28. Although some of these authorities claim that admitting such

statements is the “generally prevailing rule,” see United States v. Brown, 254 F.3d 454, 459 (3d Cir.

2001), they neither cite recent authority nor provide explanations of why such circular reasoning is

permissible. More troubling, not one of these cases addresses the incompatibility of6 such

bootstrapping with the foundations of the excited-utterance exception to the hearsay rule. The

better rule, and the one I would adopt, requires at least some corroborating evidence of the alleged

startling event.

Lack of Time to Contrive or Misrepresent. The district court concluded, and the majority

now concludes, that Gordon lacked the time, between Arnold’s allegedly threatening her with a gun

and her 911 call, to contrive or misrepresent. Neither, however, provides a clear reason for this

conclusion.

In Haggins, we noted that “the lapse of time between the startling event and the out-of-court

statement,” while “not dispositive,” was still “[o]ne of the most relevant factors in determining

spontaneity” and therefore admissibility. Haggins, 715 F.2d at 1057-58.7 Here, the majority

maintains that the government need not establish with precision how much time passed between the

two events. Even if this assumption were correct, the government (as the proponent and therefore

the party bearing the burden of proof on evidentiary questions) must provide some indication of how

closely tethered the two events were. But here, the district court placed no such requirement on the

government. Instead, the district court admitted, “I don’t know the time frame.” J.A. at 56.

Notwithstanding this uncertainty, the district court concluded without explanation that Gordon’s

phone call “appears to have been made before there was time to contrive or misrepresent.” J.A. at

64. Without any explanation or any basis in the record for this conclusion, the district court’s

decision cannot stand.

Next, the majority places undue emphasis on its interpretation of the tape. Although I

question the utility of semantically dissecting Gordon’s statements, even if I take the majority’s

approach, the tape does not indicate that Gordon spoke to the 911 operator before sufficient time to

contrive or misrepresent had passed. According to the majority, Gordon said, “he’s fixing to shoot

me,” as opposed to “he was fixing to shoot me.” Maj. Op. at 6, 7. After listening to the tape

multiple times, I hear the words: “I guess he finna shoot me.” I find this significant for two reasons.

First, Gordon’s inclusion of the words “I guess” (which the majority cleverly excises) renders her

statement far less definitive than the majority chooses to present it. More importantly, the statement

5

The excited-utterance rule applicable in each of these cases is substantively indistinguishable from Rule

803(2).

6

Further, as the Michigan Supreme Court illustrated in Burton, the authorities generally cited in support of the

government’s position are of dubious value. For instance, the vast majority of such authorities predate 1943. Burton,

445 N.W.2d at 142. In many of the cases cited in the McCormick treatise, independent corroborating evidence of the

startling event existed. Id. at 142-43. These cases are therefore distinguishable from the case at bar.

Perhaps in recognition of these distinctions, the latest version of the McCormick treatise now notes that “[t]he

issue [of whether an exciting event may be proved simply by relying on the statement itself] has not yet been resolved

under the Federal Rules.” 2 MCCORMICK ON EVID. § 272 (6th ed. 2006).

7

In Haggins we noted several factors that often will extend the window of time in which a statement may still

be considered spontaneous. These factors include the declarant’s age, the declarant’s physical and mental condition

(including shock, intervening unconsciousness, and pain), “the characteristics of the event, and the subject matter of the

statements.” Haggins, 715 F.2d at 1058.

No. 04-5384 United States v. Arnold Page 30

contains no auxiliary verb (e.g., “is” or “was”) connected to “finna,” which I understand to be a

slang contraction for “fixing to,” much as “gonna” serves as a contraction for “going to.” See, e.g.,

http://www.urbandictionary.com/define.php?term=finna (last visited Apr. 19, 2007) (defining

“finna” as, “Abbreviation of ‘fixing to.’ Normally means ‘going to.’”).8 The lack of an auxiliary

verb renders determination of whether Gordon intended to imply the past or present tense an

exercise in sheer guesswork. Accordingly, the words spoken on the tape do not establish that

Gordon offered these statements before there was time to contrive or misrepresent.

The majority next attempts to satisfy the temporal element by noting that the district court

concluded that Gordon sounded nervous and distraught. But this addresses the third element of the

Haggins test (whether the statement was made while the declarant was under the stress of the event),

not the second (whether the statement was made before there was time to contrive or misrepresent),

and thus impermissibly collapses the second and third prongs such that a nervous tone, without

more, is sufficient to establish both. The speaker’s tone, however, is plainly insufficient to satisfy

the second element, for whether one sounds nervous or distraught is irrelevant to determining

whether sufficient time has passed for the speaker to contrive or misrepresent.

Finally, the cases the majority relies upon are readily distinguishable. In Haggins, the court

found the declarant’s statements admissible because of her young “age and physical condition,”

emphasizing that “[s]he was bleeding and in critical condition.” Haggins, 715 F.2d at 1058.

Gordon, by contrast, is an adult who suffered no physical harm. Similarly, the declarant in United

States v. Baggett, 251 F.3d 1087, 1090 (6th Cir. 2001), had suffered severe physical abuse that

resulted in an undefined period of unconsciousness between the startling event (a prolonged beating)

and the statement, which was made in the hospital after she regained consciousness. Likewise, the

declarant in United States v. Cruz, 156 F.3d 22, 30 (1st Cir. 1998), also suffered an intense and

prolonged beating, and the declarant in United States v. Green, 125 F. App’x 659, 662 (6th Cir.

2005) (unpublished opinion), had been the victim of a physical assault. Again, and unlike each of

these declarants, Gordon suffered no physical harm.

For all of these reasons, I would hold that the district court abused its discretion in admitting

the 911 call, as the record presently before us cannot permit the government to satisfy either its

burden of establishing that an exciting event occurred or its burden of proving that Gordon’s

statements were made before she had the time to contrive or misrepresent.

B. Gordon’s Statements When the Officers First Arrived

Gordon’s statements to the police officers when they first arrived on the scene suffer from

the same fatal defects as her statements to the 911 operator: the government failed to present any

independent evidence that Arnold pulled a gun on Gordon and similarly failed to show that she

lacked the time to contrive or misrepresent. Here, however, the district court and the majority’s

conclusion regarding the second factor is even more specious, as the relevant evidence before the

district court demonstrated a notable temporal disconnect.

Although the district court lacked any evidence regarding whether Gordon had time to

contrive or misrepresent before making her 911 call, the evidence before the district court

8

Understanding Gordon’s statements in the 911 tape requires an understanding of slang, which is constantly

evolving. Turning to a source that operates by consensus, and thus develops along with slang usage, therefore seems

unusually appropriate in this instance. UrbanDictionary.com is such a source, as it permits users to propose definitions

for slang terms, and other users to vote on whether they agree with the particular definitions posited. At the time of the

last visit, the definition cited above (which was posted in June 2003) had received 272 positive votes, and only 45

negative votes, making it the most popular of the twenty proposed definitions of “finna,” all but one of which connote

future action.

No. 04-5384 United States v. Arnold Page 31

demonstrated that Gordon had sufficient time to contrive or misrepresent before talking to the

officers when they arrived on the scene. Gordon made her 911 call at 7:43 a.m., and the call lasted

approximately two minutes. Officer Brandon’s testimony established that the officers were

dispatched sometime between 7:54 and 8:00 and arrived on the scene five to six minutes later. J.A.

at 71-72. Thus, in addition to the unknown period of time between Gordon’s altercation with Arnold

and her 911 call (during the course of which she had begun to calm down), between fourteen and

twenty-one minutes elapsed until the officers arrived on the scene. This clearly represents sufficient

time for someone in Gordon’s position to contrive a story or misrepresent the details of her account.

The majority opinion obscures the time line of these events by assuming that only five

minutes passed between the end of Gordon’s 911 call and the officers’ arrival on the scene. Even

if this were true, it does not follow that five minutes is not sufficient time for Gordon to have

misrepresented what happened. I know of no binding case holding that an adult declarant who

suffered no physical harm is incapable of conscious reflection sufficient to fabricate or misrepresent

a story 9in even this short period of time, let alone the fourteen to twenty-one minutes that actually

passed. For these reasons, I would hold that the district court abused its discretion in admitting

Gordon’s initial statements to the officers as excited utterances.

C. Gordon’s Statements to Officers After Arnold’s Arrival

When Arnold returned to the scene in a car driven by Gordon’s mother, Gordon repeated to

the officers her allegation that Arnold had pulled a gun on her. I would hold that, for reasons similar

to those expressed above, the district court abused its discretion by admitting this statement under

the excited-utterance exception.

As previously shown, the record contains no independent evidence of Arnold’s alleged gun-

brandishing, or any evidence of the amount of time that elapsed between Gordon’s altercation with

Arnold and her 911 call. Because of these defects, the government cannot carry its burden of

establishing that Gordon’s claim that Arnold pulled a gun on her “contain[s] inherent guarantees of

truthfulness,” Haggins, 715 F.2d at 1057, or that there was no “possibility of fabrication,” Wright,

497 U.S. at 820. Merely repeating an unreliable statement does not miraculously imbue it with

reliability. The doubts expressed regarding Gordon’s previous statements lead me to conclude that

this statement, too, was plainly inadmissible on the record before the district court.

In conclusion, the majority opinion eviscerates the three-part test that has long governed the

admissibility of hearsay statements under the excited-utterance exception. The effect of the

majority’s reasoning is that a statement uttered in an exciting manner, alleging that a startling event

occurred, is automatically admissible for the truth of the matter asserted. After today, no

independent evidence is required of either the event’s occurrence (the first prong) or the amount of

time that passed between the alleged event and the statement (the second prong); instead, the

declarant’s excited tone permits the court to infer both. And after making these inferences, the court

may then satisfy the third prong by inferring that the alleged event (the occurrence of which was

inferred from the speaker’s tone) caused the speaker’s tone. Thus, a convincing liar need not fear

the pains of perjury, for a court may admit his out-of-court statement for the truth of the matter

asserted on the basis of the statement and tone alone, insulating the liar from both oath and cross-

examination. This approach is flatly inconsistent with our existing excited-utterance jurisprudence.

9

Even this calculation is extremely charitable to the government, as it assumes that Gordon made the 911 call

immediately after the altercation with Arnold. As noted previously, there is no support for this assumption in the record.

No. 04-5384 United States v. Arnold Page 32

III. CONFRONTATION CLAUSE

Even if each of the statements discussed above were admissible under the Federal Rules of

Evidence, we must undertake an analysis under the Sixth Amendment’s Confrontation Clause. As

the majority notes, the crux of the constitutional inquiry for Confrontation Clause challenges has

changed since Arnold stood trial. Previously, the government needed to establish only (1) the

witness’s constitutional unavailability and (2) the statement’s indicia of reliability (e.g.,

admissibility under a hearsay exception). Ohio v. Roberts, 448 U.S. 56, 65-66 (1980). But now, the

government must establish that the proffered statements were not “testimonial.” Davis v.

Washington, 126 S. Ct. 2266, 2273 (2006); Crawford v. Washington, 541 U.S. 36, 53-54 (2004).

In this case, the government developed the record to fit the first inquiry; quite understandably,

neither the government nor the district court considered the second. But that does not give this court

a license to contort the record to fit the Davis test, which is exactly what the majority opinion does.

In so doing, the majority’s revisionist approach effectively turns the applicable burden of proof on

its head.

A. Burden of Proof

The proper starting point of the Confrontation Clause analysis is the allocation of the burden

of proof, an issue the majority does not address. When a criminal defendant raises a constitutional

challenge to the government’s proffered evidence, the government must show by a preponderance

of evidence that the evidence is constitutionally admissible. This principle rings true in a variety

of circumstances implicating the Fourth and Fifth Amendments. For instance, we have noted that

“[t]he government bears the burden of proving that exigent circumstances such as a medical

emergency existed to justify a warrantless search.” Hardesty v. Hamburg Twp., 461 F.3d 646, 655

(6th Cir. 2006); see also United States v. Huffman, 461 F.3d 777, 783 (6th Cir. 2006) (“The

government, in order to satisfy the exigent-circumstances exception in the present case, must show

that there was a risk of serious injury posed to the officers or others that required swift action.”).

Similarly, in cases involving consent to a search, the government has the burden of demonstrating

that the defendant consented to the search, United States v. Hurst, 228 F.3d 751, 757 (6th Cir. 2000),

“that the consent was freely and voluntarily given and was not the result of coercion, duress, or

submission to a claim of authority,” United States v. Wellman, 185 F.3d 651, 657 (6th Cir. 1999),

and, in cases involving third-party consent, that the third party had common authority sufficient to

consent to a search, Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). In the context of the Fifth

Amendment, the government must establish by preponderance of the evidence that the defendant

knowingly waived his Miranda rights, Colorado v. Connelly, 479 U.S. 157, 169 (1986), and that any

confession was voluntary, Lego v. Twomey, 404 U.S. 477, 489 (1972), if the jury is to receive such

statements.

The same principle applies in determining admissibility in light of a Confrontation Clause

challenge. It is clear that before Crawford the government bore the burden of proving the

admissibility of statements under the Confrontation Clause. Roberts, 448 U.S. at 74-75 (“As with

other evidentiary proponents, the prosecution bears the burden of establishing” that a witness is

constitutionally unavailable); Wright, 497 U.S. at 816 (recognizing that government has the burden

of establishing sufficient indicia of reliability). Nothing in either Crawford or Davis states, or even

hints, that the Supreme Court intended to alter this allocation of burdens. The inescapable

conclusion, then, is that post-Davis, the government retains the burden of defeating, by

preponderance of the evidence, a defendant’s Confrontation Clause challenge. This means that the

government must establish facts showing that the proffered statements are nontestimonial, i.e., that

they were “made in the course of police interrogation under circumstances objectively indicating

that the primary purpose of the interrogation is to enable police assistance to meet an ongoing

emergency.” Davis, 126 S. Ct. at 2273. On the record presently before the court, the government

cannot meet this burden.

No. 04-5384 United States v. Arnold Page 33

B. Gordon’s 911 Call

As noted above, the core inquiry under Davis is whether the statements were offered to

enable police to address an ongoing emergency. Id. at 2273. To determine the purpose of the

statements, courts must consider the circumstances under which they were made, emphasizing both

temporal factors (e.g., whether the statement described present or past events and whether the

emergency was ongoing) and environmental factors (e.g., whether the statements were made in a

formal, or a safe, setting). Id. at 2276-77. Considering these categories of factors as they apply to

Gordon’s statements to the 911 operator, the record does not contain sufficient information for the

government to establish that her statements were nontestimonial. For this reason, the statements are

not admissible on the record presently before the court.

First, I consider temporal factors. Notwithstanding the majority opinion’s insertion of an

auxiliary verb into Gordon’s speculative statement regarding Arnold’s intent to shoot her, Arnold

was clearly reporting past events when she spoke to the 911 operator. While she claimed to “need

police” at the time of the call, her reasons for this need were all stated in the past tense: “Me and

my momma’s boyfriend got in a throw-up, and he went in the house and got a pistol, pulled it out

on me. I guess he finna shoot me. So I got in my car and [inaudible] and went around the corner

from the house.” Audio tape: 911 call dated Sept. 19, 2002. Notably, Gordon spoke in the past

tense, as each of the italicized verbs in Gordon’s statement illustrates. This is notably different from

the statements at issue in Davis, where the 911 caller spoke in the present tense, saying “He’s here

jumpin’ on me again,” “He’s usin’ his fists,” and “He’s runnin’ now.” Davis, 126 S. Ct. at 2271.

While McCottry, the victim in the Davis case, “was speaking about events as they were actually

happening,” id. at 2276, that was not true of Gordon. To the contrary, Gordon was “describ[ing]

past events.” Id. (quoting Lilly v. Virginia, 527 U.S. 116, 137 (1999) (plurality opinion)) (alteration

in original).

Similarly, it is not clear that the environment in which Gordon spoke to the 911 operator was

sufficiently chaotic to render her statements nontestimonial. It is true that Gordon sounded upset,

and that her voice was raised throughout the 911 call. Nonetheless, we know that Gordon had

extricated herself from the scene of the alleged assault, as evidenced by her indication that she had

left the house and gone around the corner (either to, or in, her car). The 911 operator knew this fact

as well; she reminded Gordon, “Ma’am, listen to me. You’re not there now.” Audio tape: 911 call

dated Sept. 19, 2002. Davis strongly suggests that this fact itself may well be sufficient to end the

inquiry, as the Court stated that physical separation between the assailant and the alleged victim is

often sufficient to terminate the emergency. Davis, 126 S. Ct. at 2277 (“after the operator gained

the information needed to address the exigency of the moment, the emergency appears to have

ended (when Davis drove away from the premises).” (emphasis added)).

While the majority insists that the emergency continued, insinuating that Gordon feared that

Arnold might pursue her, Maj. Op. at 10, the circumstances do not objectively reveal that Gordon

considered herself to be in such danger. Short of Gordon’s yelling (which reflects her subjective

emotional state), the 911 call reveals none of the objective indicia of her being hunted that one

would expect to hear from someone facing such an “ongoing emergency.” Davis, 126 S. Ct. at 2276.

The 911 tape does not contain the sound of footsteps pounding the pavement or heavy breathing,

which indicates that Gordon did not run quickly from the house to her car. Nor does it contain any

indication that Gordon was operating the car, let alone the sounds of hurriedly driving away from

a dangerous situation (ignition starting, engine revving, tires screeching). Remaining stationary in

or outside of (the record is unclear) a car sitting “around the corner” from the location of a recent

assault with a firearm is hardly the type of behavior exhibited by someone in the throes of an

“ongoing emergency.”

No. 04-5384 United States v. Arnold Page 34

For these reasons, I would conclude that the statements in Gordon’s 911 call are testimonial,

and therefore not admissible. At minimum, it is clear to me that on the record presently before the

court, the government cannot establish “circumstances objectively indicating that the primary

purpose of the interrogation is to enable police assistance to meet an ongoing emergency,” id. at

2273, based on the factors emphasized in Davis.

C. Gordon’s Statements When the Officers First Arrived

Because the emergency was no longer “ongoing” when Gordon made her 911 call, Gordon’s

statements to the officers were also testimonial and thus inadmissible. But one need not accept my

conclusion regarding the 911 call to agree with me here. As noted supra in Part II, the relevant

testimony establishes that fourteen to twenty-one minutes separated the phone call and the officers’

arrival. This additional time was certainly sufficient to quell any “emergency” that may have been

“ongoing” at the time of the 911 call, especially because the record contains no evidence of any

aggravating factors in the interim sufficient to rekindle the emergency.

Further, the record contains no evidence that Gordon fled from her position “around the

corner” from 1012 Oak View during this intervening period, which renders it doubtful that any real

emergency continued. We know that Joseph Arnold had, at some point, left 1012 Oak View in a car

driven by Gordon’s mother, but we do not know whether Gordon knew that Arnold left. Either way,

the record does not reflect any actions on her part consistent with an ongoing emergency. Assume

first that Gordon did not know that Arnold had left the house, but instead was under the impression

that he remained in the house. The record’s lack of any indication that she left her spot around the

corner implies that she felt safe enough to remain within walking (and shooting) distance of the

house where her alleged assailant remained. Alternatively, assume that Gordon knew that Arnold

had left the house. In this instance, the lack of any evidence that she moved from the corner

indicates that she did not think Arnold was pursuing her to shoot or assault her.10 While the

majority may be correct that remaining in the same place “offered the quickest route to making

contact with the officers,” Maj. Op. at 12, remaining there also offered the quickest route to make

contact with a bullet, assuming that an ongoing emergency existed. Simply put, no matter which

inference one draws regarding Gordon’s knowledge of Arnold’s whereabouts, the circumstances do

not objectively indicate that the emergency was ongoing.

Similarly, Gordon’s statements themselves reveal that they were testimonial. According to

Officer Brandon, Gordon said “that her mother’s boyfriend had pulled a gun on her,” J.A. at 72; and

this thus recounted “what had happened in the past,” Davis, 126 S. Ct. at 2276, as opposed to present

events. Like Amy Hammon, the declarant in the other case the Supreme Court decided under the

caption of Davis v. Washington, Gordon delivered to officers, who had arrived at the scene of an

earlier disturbance, a “narrative of past events . . . at some remove in time from the danger she

described.” Id. at 2279. And unlike McCottry, Gordon was not discussing “events as they were

actually happening,” id. at 2276 (emphasis in original), as Arnold was not even present when her

statements were made. Even if one rejects the previous analyses of which inferences one can

reasonably draw based upon Gordon’s behavior, that Gordon spoke in the past tense, relaying past

events, is sufficient to establish that her statements were testimonial and inadmissible.

D. Gordon’s Statements to Officers After Arnold’s Arrival

10

Further, it is overwhelmingly unlikely that Arnold left the house to hunt Gordon, as Arnold returned to the

scene in a car driven by Gordon’s mother. To conclude otherwise requires one to accept the counterintuitive proposition

that Gordon’s mother decided to aid Arnold’s pursuit of her own daughter, notwithstanding any evidence of hostilities

between Gordon and her mother.

No. 04-5384 United States v. Arnold Page 35

Gordon’s statements to the officers once Arnold arrived are not admissible under the

Confrontation Clause. The relevant testimony indicates that once the car pulled up, Gordon pointed

to it and said, “that’s him, that’s the one that pulled the gun on me.” J.A. at 74. This statement, like

Gordon’s statements to the officers when they first arrived on the scene, clearly references past

events. As noted previously, Gordon was not recounting “events as they were actually happening.”

Davis, 126 S. Ct. at 2276 (emphasis in original). Additionally, similar to declarant Amy Hammon

whose statements were held to be testimonial by the Supreme Court in Davis, Gordon made this

statement while officers were present on the scene to investigate “possibly criminal past conduct.”

Id. at 2278. Further, Gordon, like Hammon, was protected by the officers. Id. at 2279. And, unlike

the declarant McCottry whose statements were held to be nontestimonial in the Davis case, there is

no indication that Gordon was “in immediate danger” when the car arrived. Id. For each of these

reasons, Gordon’s statements were testimonial, and thus inadmissible.

IV. REFUSAL TO ADMIT PRIVATE INVESTIGATOR’S STATEMENT

My final disagreement with the majority opinion lies in its conclusion that the district court

did not commit reversible error by excluding from evidence a private investigator’s statement that

Gordon told him that she had never seen Joseph Arnold with a gun that day. In reaching its

conclusion, the majority opinion applies plain-error analysis. This approach is highly speculative,

as the record demonstrates that Arnold’s counsel “brought to the court’s attention” the error in not

admitting the private investigator’s statement, which is all that is necessary for the harmless-error

standard to apply. Compare FED. R. CRIM. P. 52(a) with FED. R. CRIM. P. 52(b). It is true that

Arnold’s counsel did not specifically mention Federal Rule of Evidence 806 as the basis for

admitting the testimony. But such a “specific ground” is necessary only when a party objects to the

admission of evidence. FED. R. EVID. 103(a)(1). When, as here, a party challenges the exclusion

of evidence, it is sufficient that the basis for admissibility “be apparent from the context.” United

States v. Ganier, 468 F.3d 920, 924 (6th Cir. 2006).11 Because the district court knew that Arnold

sought to introduce testimony that Gordon told a private investigator that Arnold never possessed

a gun that day and because it was apparent that Arnold intended to attack Gordon’s credibility with

this evidence, I believe that harmless-error review should apply.

Assuming arguendo that we should review only for plain error, I cannot conclude that this

error did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings.

Gordon’s statements that Arnold threatened her with a gun constituted the only evidence tying

Arnold to the gun found in the car. Setting aside the constitutional infirmity of convicting a

defendant upon such insufficient evidence, see supra Part I, I cannot see how denying the defendant

the right to introduce evidence that Gordon later recanted these statements could do anything but

affect the fairness and integrity of Arnold’s trial. For this reason, I would hold that Arnold has

demonstrated that the district court’s decision to exclude the investigator’s statement was plain error,

and remand for a new trial.

V. CONCLUSION

For each of the reasons described above, I believe that the district court erred, and the

majority today utilizes incorrect analyses and reaches the wrong result.

11

Even this requirement stretches beyond the bounds of the relevant rule’s text, as Federal Rule of Evidence

103(a)(2) explicitly requires only that the proponent apprise the district court of “the substance of the evidence” he or

she seeks to admit. And that requirement attaches only if the substance of the evidence was not “apparent from the

context within which questions were asked.” FED. R. EVID. 103(a)(2).