United States v. Arnold ( 2005 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0451a.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 04-5384
v.
,
>
JOSEPH ARNOLD, -
Defendant-Appellant. -
N
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 03-20089—John Phipps McCalla, District Judge.
Submitted: March 9, 2005
Decided and Filed: November 23, 2005
Before: MOORE and SUTTON, Circuit Judges; CARMAN, Judge.*
_________________
COUNSEL
ON BRIEF: Robert C. Brooks, Memphis, Tennessee, for Appellant. David N. Pritchard,
ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
The court delivered a PER CURIAM opinion. SUTTON, J. (pp. 10-14), delivered a separate
dissenting opinion.
______________________
AMENDED OPINION
______________________
PER CURIAM. This matter is before the Court on the government’s petition for rehearing
en banc. Upon consideration of the relevant briefs and the record, we vacate our prior opinion,
United States v. Arnold, 410 F.3d 895 (6th Cir. 2005), and replace it with this amended opinion.
On November 5, 2003, Defendant-Appellant, Joseph Arnold (“Arnold”), was convicted after
a trial by jury in the United States District Court for the Western District of Tennessee of possession
of a firearm by a convicted felon. Arnold appealed his conviction to this Court. On appeal, Arnold
argues that the District Court committed error in allowing the out-of-court statements of his accuser
to be introduced during his trial, that the proof submitted to the jury was not constitutionally
sufficient to sustain the guilty verdict, and that the Court committed error in excluding a witness
*
The Honorable Gregory W. Carman, United States Court of International Trade, sitting by designation.
1
No. 04-5384 United States v. Arnold Page 2
whom the defense sought to introduce to impeach the statements of the accuser. For the reasons
stated herein, we REVERSE and REMAND the case for entry of a judgment of acquittal.
I. BACKGROUND
At about 7:43 a.m. on September 19, 2002, a woman called the 911 emergency telephone
number in Memphis, Tennessee, to report that her mother’s boyfriend — Arnold — had threatened
her with a gun. At the end of the call, the caller identified herself as Tamica Gordon (“Gordon”).
At approximately 8:00 a.m., local police officers were dispatched to a Memphis address and found
a young woman upset to the point that she was having difficulty speaking. The officers later learned
that the young woman’s name was Tamica Gordon. Although no witness during the trial testified
to such, the young woman the police met was apparently also the same woman who made the 911
call.
Gordon told the officers that Arnold “pulled a gun on her” and threatened to kill her.1 (J.A.
at 114.) Gordon described the gun as a “black handgun.” (J.A. at 127.) She did not indicate that
the gun had any special characteristics. An officer interpreted Gordon’s hand gestures to indicate
a semiautomatic weapon with a chambered round.
During a brief conversation,2 Gordon began to calm. A short time after the officers arrived,
a car pulled up to the address where Gordon and the officers were conversing. A woman was
driving the car, and a man was in the passenger seat. As the car pulled up, Gordon became excited
again. She pointed at the car and told the officers that the man in it was the same man who had
pointed a gun at her.
The officers “went to the car, asked [Arnold] to step out and patted him down for weapons.”
(J.A. at 117.) No weapons were found. Arnold was cooperative and did not attempt to elude the
police or run away. The officers then asked for and received consent from the car’s owner
(Gordon’s mother) to search the automobile. Under the passenger seat of the automobile, the
officers found a black, semiautomatic handgun with a chambered round. The gun was in a clear
plastic bag when the police located it. There were no fingerprints on the gun, and it was not stolen.
The prosecution submitted no evidence that the gun belonged to Arnold, and Arnold did not admit
that the gun was his.
The government subpoenaed Gordon for the trial, but she did not appear. The District Court
issued a warrant for Gordon’s arrest, but she could not be produced before or during the trial.
The government moved at trial to introduce a tape of the 911 call alleged to have been made
by Gordon and statements she later made to the police at the scene of Arnold’s arrest. The
government argued that the 911 tape was admissible under two exceptions to the hearsay rule:
excited utterance and present sense impression. The government argued that Gordon’s statements
to the police were admissible as excited utterances.
After a hearing out of the presence of the jury, the District Court ruled that a redacted 911
tape was admissible as an excited utterance but not as a present sense impression. The District Court
also ruled that Gordon’s statements to the police at the scene of Arnold’s arrest were admissible as
1
Gordon did not testify at trial. Therefore, all references in this opinion to Gordon’s statements and actions in
the presence of the responding officers are derived from the officers’ testimony.
2
The initial conversation between Gordon and the officers apparently lasted between thirty seconds and five
minutes.
No. 04-5384 United States v. Arnold Page 3
excited utterances. In issuing his ruling, the District Judge stated, “[i]t would not upset me if the
Court of Appeals overturned this determination, it wouldn’t bother me.” (J.A. at 80.)
II. ANALYSIS
On appeal, Arnold asserts that his conviction should be overturned for any, or the
combination, of three errors that occurred at trial:
1. The out-of-court statements of Gordon were erroneously admitted;
2. The proof offered was constitutionally insufficient to sustain a conviction; and
3. Defense counsel should have been permitted to present an impeachment witness.
“Where the sufficiency of the evidence is properly before us, we consider that issue first
because it is determinative of whether the appellant may be retried.” United States v. Aarons, 718
F.2d 188, 189 n.1 (6th Cir. 1983); see also United States v. Orrico, 599 F.2d 113, 116 (6th Cir.
1979) (“We decide the issue of sufficiency of the evidence, rather than admissibility, because the
former issue is determinative of the question whether [the defendant] may be retried.”); Delk v.
Atkinson, 665 F.2d 90, 93 n.1 (6th Cir. 1981) (“Several courts including this one have indicated that
where it is claimed on appeal from a federal conviction that the evidence was insufficient, the
reviewing court is required to decide the sufficiency question even though there might be other
grounds for reversal which would not preclude retrial.”).
A. Standard of Review
In reviewing Arnold’s insufficient-evidence claim, “we must determine ‘whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’” United States v.
Humphrey, 279 F.3d 372, 378 (6th Cir. 2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)) (emphasis in Jackson). “This Court reverses a judgment for insufficiency of the evidence
‘only if [the] judgment is not supported by substantial and competent evidence upon the record as
a whole.’” United States v. Barnett, 398 F.3d 516, 522 (6th Cir.) (quoting United States v. Stone,
748 F.2d 361, 363 (6th Cir. 1984)) (alteration in original), cert. dismissed, — U.S. —, 126 S. Ct. 33(2005). “In addressing sufficiency of the evidence questions, this Court has long declined to weigh
the evidence, consider the credibility of witnesses, or substitute its judgment for that of the jury.”
United States v. Chavis, 296 F.3d 450, 455 (6th Cir. 2002) (quoting United States v. Ferguson, 23
F.3d 135, 140 (6th Cir.), cert. denied, 513 U.S. 900 (1994)) (internal quotation marks omitted).
“This standard places a ‘very heavy burden’ upon a defendant making a sufficiency of the evidence
challenge.” Id. (quoting United States v. Tocco, 200 F.3d 401, 424 (6th Cir. 2000)).
When reviewing a sufficiency claim, we consider all the evidence, even if it was improperly
admitted at trial. See United States v. Quinn, 901 F.2d 522, 531 (6th Cir. 1990) (“We are . . . left
with determining whether the evidence ruled inadmissible, with that which was properly presented
before the jury, was sufficient under Jackson v. Virginia . . . .”); Johnson v. Coyle, 200 F.3d 987, 994
(6th Cir. 2000) (recognizing Quinn and therefore considering — with respect to a habeas challenge
claiming insufficient evidence — hearsay that the state supreme court had held to be improperly
admitted at trial). The Supreme Court offered the following rationale for this rule:
No. 04-5384 United States v. Arnold Page 4
[A] reversal for insufficiency of the evidence should be treated no differently than
a trial court’s granting a judgment of acquittal at the close of all the evidence. A trial
court in passing on such a motion considers all the evidence it has admitted, and to
make the analogy complete it must be this same quantum of evidence which is
considered by the reviewing court.
Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988).
B. Merits
Arnold was convicted of possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1). “To obtain a conviction pursuant to § 922(g)(1), the government must prove
beyond a reasonable doubt: (1) that the defendant has a prior conviction for a crime punishable by
imprisonment for a term exceeding one year; (2) that the defendant thereafter knowingly possessed
the firearm and ammunition specified in the indictment; and (3) that the possession was in or
affecting interstate commerce.” United States v. Schreane, 331 F.3d 548, 560 (6th Cir.) (quoting
United States v. Daniel, 134 F.3d 1259, 1263 (6th Cir.) (internal quotation marks omitted), cert.
denied, 525 U.S. 830 (1998)), cert. denied, 540 U.S. 973 (2003). On appeal, Arnold challenges only
the possession element.
Evidence of either actual or constructive possession of a firearm is sufficient to sustain the
verdict. United States v. Moreno, 933 F.2d 362, 373 (6th Cir.), cert. denied, 502 U.S. 895 (1991).
“Both actual possession and constructive possession may be proved by direct or circumstantial
evidence.” United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.), cert. denied, 414 U.S. 866(1973).
The prosecution presented the following evidence to establish possession: (1) the gun that
was found under Arnold’s seat in Gordon’s mother’s car and (2) Gordon’s statements to the 911
dispatcher and the responding officers that at some unspecified time before the discovery of the
firearm, Arnold threatened Gordon with a black gun.3 For the following reasons, we find that the
evidence presented at Arnold’s trial was insufficient to support his conviction.
1. Actual Possession
“Actual possession exists when a tangible object is in the immediate possession or control
of the party.” United States v. Beverly, 750 F.2d 34, 37 (6th Cir. 1984) (quoting Craven, 478 F.2d
at 1333). Put another way, “[a] person who knowingly has direct physical control over a thing at
a given time is then in actual possession of it.” United States v. Frederick, 406 F.3d 754, 765 (6th
Cir. 2005) (quoting United States v. Wolfenbarger, 426 F.2d 992, 994 (6th Cir. 1970)) (internal
quotation marks omitted). Here, the prosecution presented no evidence showing that Arnold had
“direct physical control over” the relevant “tangible object,” i.e., the gun recovered from the vehicle,
at the “given time,” i.e., when the police found the firearm. The gun was not found on Arnold’s
person. See United States v. Pugh, 405 F.3d 390, 394, 404 (6th Cir. 2005) (officers found the
defendant in bed with a shotgun “beneath his body,” so he “actually possessed the gun when he was
apprehended”). Nor did the officers see Arnold holding the firearm just prior to its recovery. See
United States v. Caraway, 411 F.3d 679, 680, 683 (6th Cir. 2005) (officer saw the defendant holding
a firearm, which was then recovered where the officer saw the defendant drop it while fleeing);
United States v. Martin, 399 F.3d 750, 754 (6th Cir. 2005) (same); Barnett, 398 F.3d at 522 (same).
3
Gordon included no additional details in her description of the firearm; however, an officer interpreted her
hand gestures to indicate a semiautomatic gun with a chambered round.
No. 04-5384 United States v. Arnold Page 5
Other than the firearm itself, the government’s only evidence is Gordon’s thrice-repeated
accusation that Arnold had wielded a gun while threatening her. This evidence does not go to the
actual possession of the firearm recovered from the vehicle at the time that it was discovered;
instead, it suggests that at some earlier time, Arnold might have possessed some theoretical gun that
was never recovered. As we have already noted, however, conviction requires proof that Arnold
“possess[ed] the firearm and ammunition specified in the indictment.” Schreane, 331 F.3d at 560(emphasis added). In light of this rule, Gordon’s description — statements referring to a black
handgun and gestures interpreted by an officer to indicate a semiautomatic with a chambered round
— was too vague for the jury to reasonably conclude that the gun found under Arnold’s seat was the
same firearm that Arnold allegedly used4 to threaten Gordon, especially given police testimony that
roughly half of all handguns are black. (J.A. at 128.)
4
The dissent asserts that there was sufficient evidence to prove that the two guns were one and the same and
that Arnold therefore actually possessed it. For various reasons, the cases cited by the dissent are readily distinguishable.
In several cases, an officer saw the defendant both holding the firearm and throwing it away while fleeing, and
the gun was recovered either where the defendant was initially encountered or along the path of his flight. Barnett, 398
F.3d at 522; United States v. Smith, 79 F. App’x 97, 99 (6th Cir. 2003) (unpublished opinion); see also United States
v. Burl, 13 F. App’x 408, 409, 411-12 (6th Cir. 2001) (unpublished opinion) (an officer saw the fleeing defendant
“shifting the gun between his left and right hands” before losing sight of him; a firearm matching the one the officer had
seen was found in the yard of a nearby house). No such evidence was presented here.
In two cases, the firearm was recovered in a vehicle owned or operated by the defendant. United States v.
Patterson, 23 F.3d 1239, 1243-44 (7th Cir.) (also, at trial the victim-witness identified the recovered firearm as the one
the defendant had used to threaten her), cert. denied, 513 U.S. 1007 (1994); United States v. Black, 525 F.2d 668, 669
(6th Cir. 1975) (also, ammunition and a rack fitting the recovered firearm were found in the defendant’s home, and a
witness testified that he had seen the defendant with that firearm on several prior occasions). Arnold neither owned nor
drove the vehicle in which the gun was discovered. For the same reason, we do not rely on cases in which the firearm
was found in a residence owned or otherwise controlled by the defendant. United States v. Crowe, 291 F.3d 884, 885-87
(6th Cir. 2002) (also, the defendant admitted that he kept a firearm in his bedroom and an officer saw the defendant
carrying a similar gun on a prior occasion); United States v. Brewer, 20 F. App’x 539, 540-41 (7th Cir. 2001)
(unpublished opinion) (also, the defendant, who claimed the gun belonged to his wife, was seen wearing his wife’s
security-guard shirt, hat, and holster); United States v. Smith, No. 90-2293, 1991 WL 182634, at *1, *3 (6th Cir. Sept.
18, 1991) (unpublished opinion) (firearm 1: a witness bought the firearm for the defendant, witnesses saw the defendant
with the firearm, and an owner’s manual and ammunition for that type of gun was found in the defendant’s apartment;
firearm 2: a witness “knew” that the defendant carried that type of gun on his person, another witness saw the defendant
outside his door and heard him yell “Open the door or I’ll shoot” before he was shot, and the defendant later admitted
to shooting that witness; firearm 3: the gun was found in a strong box only accessible to the defendant and his girlfriend,
ammunition for that type of gun and photographs of the defendant holding that type of firearm were found in the
defendant’s apartment, and one or more witnesses testified that the defendant used that gun to threaten other drug
dealers).
Another case featured an assortment of additional evidence that is absent in the instant case. United States v.
Whitis, No. 94-6333, 1995 WL 462423, at *1-*2, *4 (6th Cir. Aug. 3, 1995) (unpublished opinion) (the defendant’s
girlfriend recognized the firearm as the one she and the defendant purchased together from a pawnshop, the pawnshop
owner remembered that the two of them had purchased the firearm, and the firearm purchase form was filled out by the
defendant), cert. denied, 516 U.S. 1032 (1995).
Two other cases are inapposite because the defendant did not challenge and the court did not review the
sufficiency of the evidence of possession. United States v. Chesney, 86 F.3d 564, 572-73 (6th Cir. 1996) (ruling on
admissibility under Federal Rule of Evidence 403 and 404(b)), cert. denied, 520 U.S. 1282 (1997); United States v.
Wright, 102 F. App’x 972, 984 (6th Cir. 2004) (unpublished opinion) (ruling on prosecutor’s remarks during closing
argument).
Finally, the evidence here falls short of even the case on which the dissent principally relies. In United States
v. Moore, 208 F.3d 411 (2d Cir.), cert. denied, 531 U.S. 905 (2000), two officers saw a large black and silver handgun
holstered in the defendant’s waistband. When the defendant fled, the officers chased him into an apartment where,
“moments” later, they found a large black and silver handgun on top of some clothes in a doorless closet. Id. at 413.
The defendant was lying in a bed (feigning sleep and with a bulletproof vest hanging from his leg) just a few feet from
the closet. The defendant’s aunt testified that she and her boyfriend shared the room, had never seen the gun before, and
had not placed that or any other firearm in the closet. Id. Several factors make Moore a stronger case for actual
possession than the instant case. The initial sighting of the gun was made by two officers rather than a single accuser;
the defendant did not dispute that he possessed the firearm at the time of the initial sighting; the gun was found mere
“moments” later; the officers closely tracked the defendant between the initial sighting of the firearm and its recovery;
and there was evidence ruling out the room’s residents as the true source of the gun. No such evidence was presented
No. 04-5384 United States v. Arnold Page 6
Because the prosecution presented no evidence showing that Arnold had physical control
over the recovered firearm, no rational trier of fact could have found the possession element proved
beyond a reasonable doubt on the basis of actual possession.
2. Constructive Possession
“Constructive possession exists when a person does not have actual possession but instead
knowingly has the power and the intention at a given time to exercise dominion and control over an
object, either directly or through others.” Craven, 478 F.2d at 1333. The government may prove
constructive possession by presenting evidence that the person has dominion or control over the
premises where the firearm was located. United States v. Kincaide, 145 F.3d 771, 782 (6th Cir.
1998), cert. denied, 525 U.S. 1166 (1999). However, presence where a firearm was found, without
more, is insufficient to establish “knowledge, power, or intention to exercise control” over the
firearm. United States v. Birmley, 529 F.2d 103, 107-08 (6th Cir. 1976).
Our prior decisions have discussed numerous facts that, in varying combinations, served as
evidence that a defendant constructively possessed a firearm found in a vehicle with him: the
defendant was alone in the car, United States v. Murphy, 107 F.3d 1199, 1208 (6th Cir. 1997); fellow
occupants were precluded as the source of the firearm, United States v. Carter, 355 F.3d 920, 925
(6th Cir. 2004); the defendant was the owner or the driver of the car, Birmley, 529 F.2d at 107;
another occupant of the car saw the defendant holding the firearm while in the vehicle, Carter, 355
F.3d at 925; Schreane, 331 F.3d at 560-61; Daniel, 134 F.3d at 1264; the police saw the defendant
making movements indicative of an attempt to conceal the firearm, Carter, 355 F.3d at 925;
Schreane, 331 F.3d at 561; Daniel, 134 F.3d at 1264; the defendant had arranged a meeting to sell
the firearm, Birmley, 529 F.2d at 107; the firearm belonged to someone with whom the defendant
had a close relationship, Schreane, 331 F.3d at 561; only the defendant and a close relative knew
where the firearm was usually stored, Murphy, 107 F.3d at 1208; only the defendant had the key to
the trunk where the firearm was found, Birmley, 529 F.2d at 107; the defendant knew of an
“operational quirk” of the firearm, Daniel, 134 F.3d at 1264; and the defendant disclaimed
knowledge of the firearm before the police disclosed its discovery, Murphy, 107 F.3d at 1208.
These cases stand in stark contrast to Birmley, where we reversed the conviction (for
possession of5unregistered firearms) of one of three occupants of a vehicle that had firearms in a
locked trunk. 529 F.2d at 105. There was no evidence of possession other than his presence as a
passenger in the rear seat. Id. at 107. We held that “[m]ere presence on the scene plus association
with illegal possessors is not enough to support a conviction for illegal possession.” Id. In the
instant case, the prosecution offered no evidence showing that Arnold had dominion or control over
the firearm under his seat. Indeed, several facts point the other way: Arnold was not alone in the
vehicle, he did not own or drive it, and he did not attempt to elude the police before or after they
discovered the gun. Given the state of the evidence in the instant case, all that the government has
shown is that the firearm was found under a seat in a car occupied by Arnold. Birmley established
that this “mere presence on the scene” is insufficient to prove possession.
One might attempt to distinguish Birmley on the basis of the gun’s location: here it was in
the passenger compartment (under a seat), while in Birmley it was in a locked trunk for which the
relevant defendant did not have a key. This is a distinction without a difference, however, because
here.
5
We held that there was sufficient evidence of constructive possession as to the other two defendants. One
defendant was the owner of the vehicle and had arranged a meeting to sell the firearms. Birmley, 529 F.2d at 107. The
other defendant was in the driver’s seat and had the key to the trunk in his pocket, separate from the ignition key. Id.
at 105, 107.
No. 04-5384 United States v. Arnold Page 7
it is well established that a defendant’s mere presence in a car when a firearm is found under a seat
does not establish possession. See United States v. Hishaw, 235 F.3d 565, 572 (10th Cir. 2000), cert.
denied, 533 U.S. 908 (2001); United States v. Chairez, 33 F.3d 823, 825 (7th Cir. 1994); United
States v. Madkins, 994 F.2d 540, 542 (8th Cir. 1993); United States v. Blue, 957 F.2d 106, 108 (4th
Cir. 1992); United States v. Soto, 779 F.2d 558, 560 (9th Cir.), amended on other grounds by 793
F.2d 217 (9th Cir. 1986), cert. denied, 484 U.S. 833 (1987); United States v. Whitfield, 629 F.2d
136, 143 (D.C. Cir. 1980), cert. denied, 449 U.S. 1086 (1981). Courts have adopted this principle
because “mere proximity of a weapon to a passenger in a car goes only to its accessibility, not to the
dominion or control which must be proved to establish possession.” Soto, 779 F.2d at 560. Because
this case marks the first time we have reviewed a sufficiency claim where the prosecution’s only
evidence of possession is that the firearm was found under a seat in a car occupied by the defendant,
it is our first opportunity to join our sister circuits in endorsing the consensus rule. We explicitly
do so now: the fact that the gun was found under a seat in a vehicle occupied by Arnold does not
establish possession.
This conclusion is reinforced by our decision in Beverly, which involved a gun found in a
home.6 An officer executing a search warrant found Beverly and another person (Austin) in the
kitchen of yet another person’s (Hatfield’s) residence. Beverly, 750 F.2d at 35. While patting down
Beverly and Austin, the officer noticed two handguns in a waste basket between the two individuals.
Id. Beverly’s fingerprint was on one of the guns, with the print’s location suggesting that the gun
“would have had to have been laid down.” Id. at 36. We held that these facts were insufficient to
prove constructive possession; instead, the evidence “establishe[d] only that Beverly was in the
kitchen of Hatfield’s residence, that Beverly was standing close to a waste basket which contained
two guns, and that Beverly had at some point touched one of the guns.” Id. at 37. In the instant
case, Arnold and Gordon’s mother were located close to where the gun was discovered, just as the
defendant and his companion were in Beverly. Here, however, no fingerprint was found on the
firearm, meaning that the evidence of constructive possession does not rise even to the level we
rejected as insufficient in Beverly.
Finally, Gordon’s statements and gestures do not change our analysis. The statements and
gestures suggest that Arnold possessed a black, semiautomatic firearm at some unspecified earlier
time. We reiterate that conviction requires proof that Arnold “possess[ed] the firearm and
ammunition specified in the indictment.” Schreane, 331 F.3d at 560 (emphasis added). The
government attempts to meet this basic requirement by asking us to infer from Arnold’s putative
earlier possession that he constructively possessed the black, semiautomatic gun recovered from the
vehicle. We decline the invitation to make such a tenuous leap. While it is true that the recovered
firearm matched Gordon’s generic description — statements that the brandished gun was black and
gestures that an officer interpreted to indicate a semiautomatic with a chambered round — these
attributes are too common for this equivalence to prove that Arnold constructively possessed the gun
found in the car. See Hishaw, 235 F.3d at 571, 572 (holding that testimony that the defendant was
seen with a semiautomatic pistol on several prior occasions was “simply too remote and too vague
6
Constructive-possession decisions involving homes can inform the inquiry in cases involving vehicles. See
United States v. Cazares, 121 F.3d 1241, 1245 (9th Cir. 1997) (“The same reasoning [used in vehicle cases] applies to
occupants of a house.”).
No. 04-5384 United States v. Arnold Page 8
to support the inference that [the defendant] constructively possessed the pistol” found in8the car).7
Mere coincidence is no substitute for constitutionally sufficient evidence of possession.
7
The Hishaw court noted that “in certain circumstances,” possession of a similar gun on prior occasions “may
support an inference of constructive possession.” 235 F.3d at 572. We need not define here the contours of such
circumstances — if they exist at all — because Gordon’s reference to a black handgun is certainly too vague to satisfy
any definition, especially in light of testimony that about half of all handguns are black. (J.A. at 128.)
8
The dissent cites numerous cases in support of its argument that Arnold constructively possessed the firearm
found under the passenger seat. For various reasons, these cases do not deserve the weight that the dissent gives them.
In several cases, an officer saw the defendant both holding the firearm and throwing it away while fleeing, and
the gun was recovered either where the defendant was initially encountered or along the path of his flight. Caraway,
411 F.3d at 680, 680-81, 683; Barnett, 398 F.3d at 522; United States v. Johnson, 55 F.3d 976, 979 (4th Cir. 1995).
These cases are better understood as actual-possession decisions, but in any event, no such evidence was presented here.
In several cases, the firearm was recovered in a vehicle owned and operated by the defendant. See United States
v. Alexander, 331 F.3d 116, 127 (D.C. Cir. 2003); United States v. Harris, No. 99-4759, 2000 WL 903504, at *1 (4th
Cir. July 7, 2000) (unpublished opinion) (also, at trial the defendant’s daughter identified the recovered firearm as one
possessed previously by the defendant); Whitfield, 629 F.2d at 143. Arnold neither owned nor drove the vehicle in which
the gun was discovered. For the same reason, we do not rely on cases in which the firearm was found in a residence
owned or otherwise controlled by the defendant. See United States v. Johnson, No. 98-2212, 2000 WL 222572, at *4
(6th Cir. Feb. 16, 2000) (unpublished opinion) (also, the firearm was in plain view while the defendant was the only
person in the house, and a witness testified that the defendant had handled the firearm); United States v. Duso, Nos. 92-
1162, 92-1274, 92-1289, 1993 WL 131940, at *5-*6 (6th Cir. Apr. 27, 1993) (unpublished opinion) (also, a holster was
hanging just outside the defendant’s bedroom), cert. denied, 510 U.S. 883 (1993).
In several cases, an officer saw the defendant reaching toward the area in the vehicle where the firearm was
found. See United States v. Ocampo, 890 F.2d 1363, 1366 (7th Cir. 1989); United States v. Flenoid, 718 F.2d 867, 868
(8th Cir. 1983); United States v. Coe, 718 F.2d 830, 833 (7th Cir. 1983). Arnold was not seen making any such
movements.
Several other cases featured an assortment of additional evidence that is absent in the instant case. See United
States v. Banks, No. 05-5032, 2005 WL 2508543, at *4 (6th Cir. Oct. 11, 2005) (unpublished opinion) (fellow occupants
of vehicle where firearm was found confirmed victim-witness’s testimony that the defendant had brandished the firearm);
United States v. Collins, No. 96-10518, 1997 WL 599863, at *2 (9th Cir. Sept. 24, 1997) (unpublished opinion) (where
possession of drugs was at issue, officer testified that (i) the defendant admitted the drugs found in the motel room were
his and that the drugs had been delivered to him earlier that evening and (ii) another occupant of the room said that she
and the defendant had conducted drug transactions that day); United States v. Ratcliffe, 550 F.2d 431, 433 (9th Cir. 1977)
(where possession of drugs was at issue, the defendant bought the plane used in the drug smuggling operation and helped
unload the cargo).
Finally, the remaining two cases are also distinguishable. In United States v. Wright, 932 F.2d 868 (10th Cir.),
cert. denied, 502 U.S. 962, 972 (1991), the defendant was arrested at the location of a drug transaction arranged by an
informant working with the police. Id. at 872-73. The police found a rifle hidden in a pipe about eight feet from the
defendant, who was standing between his vehicle and a trailer home. Id. at 873. The Tenth Circuit held that there was
sufficient evidence of constructive possession but provided little analysis of the issue. See id. at 881. The court did state,
however, that the evidence was sufficient “[v]iewed in the context of the drug transaction.” Id. By this the court likely
meant the common sense of a firearm being useful as “protection or coercion” in a drug sale. Id. (discussing this factor
in the context of conviction under § 924(c)(1) for using or carrying a firearm during and in relation to a drug trafficking
offense). Moreover, the prosecution produced evidence at trial that the defendant had carried that rifle in his truck in
the months leading up to the arrest. Id. Neither of these factors is present in the instant case.
In United States v. Richardson, 161 F.3d 728 (D.C. Cir. 1998), the victim-witness testified that the defendant
showed him a gun, walked over to a parked car, leaned into the driver’s side window, and talked to the driver. The
witness left the area and returned about five minutes later. The witness told an officer who was now in the area what
had occurred. A search of the defendant, who was standing ten to fifteen feet from the vehicle, revealed no firearm, but
the officer did find one under the front passenger seat of the car. Although three men were seated in the driver’s seat
and in the rear, the front passenger seat was unoccupied. Id. at 732. The D.C. Circuit held that the evidence was
sufficient to show constructive possession, but it “emphasize[d] that this was not a strong case.” Id. at 733.
In Richardson, there was a direct connection between the initial sighting of the firearm and its eventual
discovery: the witness saw the defendant carrying a gun and leaning into a vehicle, and a few minutes later the officer
recovered the firearm in the same area, inside what the witness identified as the same car. Because, immediately after
brandishing a gun, the defendant had been seen leaning into the vehicle where a firearm was found a few minutes later,
a rational juror could conclude beyond a reasonable doubt that the defendant had stashed his gun in the car and continued
to exercise dominion and control over it.
In the instant case, however, the connection between the initial sighting and the discovery was more tenuous.
No. 04-5384 United States v. Arnold Page 9
In sum, we hold that when the evidence is viewed in the light most favorable to the
prosecution, no rational trier of fact could have found the possession element of § 922(g) proved
beyond a reasonable doubt. “[O]nce the reviewing court has found the evidence legally insufficient,
the only ‘just’ remedy available for that court is the direction of a judgment of acquittal.” Burks v.
United States, 437 U.S. 1, 18 (1978). Therefore, we need not address Arnold’s other claims or
respond to the dissent’s treatment of them.9 See Aarons, 718 F.2d at 189 n.1 (“The issue [of
sufficiency of the evidence] being dispositive of the appeal, we do not consider the other issues
raised.”).
III. CONCLUSION
For the foregoing reasons, we REVERSE and REMAND for entry of a judgment of
acquittal.
Gordon stated in her 911 call that after Arnold threatened her with a gun, she “left, and [she] went around the corner from
the house.” A firearm was eventually found in a vehicle that arrived on the scene some time later. Unlike Richardson,
nobody saw Arnold lean into or otherwise interact with Gordon’s mother’s car in a manner that would suggest that he
was hiding a gun there. Indeed, there was no evidence that the vehicle was even in the area at the time that Arnold
allegedly threatened Gordon with a gun. Given that the Richardson court conceded that its decision was a close one,
this difference is enough to place the instant case on the insufficient side of the evidentiary line. The instant case is more
like the decisions in which simply being a passenger in the vehicle where a firearm was discovered was held to be
insufficient evidence of constructive possession. See ante, at 6-7 (citing cases). Notably, the courts that have so held
include the D.C. Circuit, the court that decided Richardson.
9
We note that the Supreme Court recently granted certiorari in two cases in order to determine whether
statements made in a 911 call and to responding officers are “testimonial” within the meaning of Crawford v.
Washington, 541 U.S. 36 (2004). See Davis v. Washington, — U.S. —, 2005 WL 1671669 (U.S. Oct. 31, 2005) (No.
05-5224); Hammon v. Indiana, — U.S. —, 2005 WL 1914510 (U.S. Oct. 31, 2005) (No. 05-5705).
No. 04-5384 United States v. Arnold Page 10
_______________
DISSENT
_______________
SUTTON, Circuit Judge. When the victim of an assault tells a 911 operator and the police
that the defendant was holding a black, semiautomatic handgun, when the victim provides a motive
for the defendant’s possession of the gun (“he said he was going to kill her”), when the victim
identifies the defendant to the police when he returns to the scene of the crime in a car shortly
thereafter (“That’s him, that’s the guy who pulled a gun on me, Joseph Arnold, that’s him.”), when
the victim at that point tells the police that “he’s got a gun on him” and when the police then recover
a black, semiautomatic handgun under the passenger seat in which the defendant is sitting, a jury
may find that this evidence establishes that the defendant possessed a firearm. As the majority
concludes otherwise, I respectfully dissent.
I.
Arnold challenges the sufficiency of the evidence of just one element of this felon-in-
possession-of-a-firearm charge: Did he possess a firearm? The jury heard several pieces of
evidence allowing it to conclude just that. On September 19, 2002, Tamica Gordon called a 911
operator and told the operator that Arnold, her mother’s boyfriend, had just threatened her with a
gun. When officers responded to the call five to six minutes later, they encountered a visibly shaken
Gordon, who explained that she had just been in an argument with Arnold and that he had threatened
her with a gun. “Joseph Arnold,” she told the officers, “pulled a gun on her, he said he was going
to kill her. He was arguing and she thought he was going to kill her.” JA 114. Gordon “stated that
she [ ] saw him with a gun in his hand,” JA 140, and “that she observed him cock the weapon,” JA
143; see also JA 127, 144. Gordon described Arnold’s weapon as “a black handgun.” JA 127, 140.
“[B]ecause of the way she said that he cocked it,” JA 127—that he “pull[ed] back the slide,”
id.—and because of her other descriptions of the gun, the officers concluded that the gun was a
semiautomatic handgun, id.; JA 133, and that “there would be a round chambered” in it, JA 133.
Minutes after the officers arrived, Gordon’s mother pulled up in a car with Arnold sitting in
the passenger seat. “[A]s the car pulled up, [Gordon] got back excited, she started crying [and]
pointing at the car saying that’s him, that’s the guy that pulled the gun on me, Joseph Arnold, that’s
him . . . . he’s got a gun on him.” JA 115, 116. Arnold “matched the description that was given [to
the officers] by the dispatch,” JA 141, and when the officers approached Arnold and “asked him
what was going on, [ ] he basically said that they were arguing,” JA 117. The argument described
by Gordon to the officers and 911 operator and confirmed by Arnold “flare[d] up” when Arnold
arrived on the scene. JA 131–32. The officers observed Gordon “yelling at” and “passing
comments” to Arnold and “him passing them back to her,” causing them to conclude “they were still
in an argument phase.” JA 148. At this point, the officers discovered a plastic bag containing a
loaded, black, semiautomatic handgun with a round in its chamber directly under the passenger seat
of the car. Nothing “was blocking the passenger from immediate access to the gun.” JA 122.
If we assume that the jury was entitled to consider all of this evidence, as the majority
properly assumes, then the jury assuredly could conclude beyond a reasonable doubt that Arnold
possessed the gun the officers found below his seat. The jury heard evidence that Gordon, her
mother and Arnold were at home that morning, that Arnold and Gordon began arguing, that during
the argument Arnold retrieved a loaded gun, chambered a round and pointed it at Gordon as she fled
to call 911. They heard that Gordon described the gun to officers as a black handgun. They heard
that the way Arnold cocked the weapon indicated to the officers that it was a loaded semiautomatic
and that it had a round of ammunition in it. And the jury learned that when, moments later, a car
No. 04-5384 United States v. Arnold Page 11
containing Arnold arrived back on the scene, the police found a gun inches from the passenger seat
where Arnold was sitting. The gun in every way matched the description Gordon had given of it:
it was black; it was semiautomatic; it was loaded; and it had a round in its chamber. And it was
found within easy reach of Arnold.
Because “possession may be proved by direct or circumstantial evidence,” United States v.
Craven, 478 F.2d 1329, 1333 (6th Cir. 1973), we cannot overturn the jury’s decision merely because
it had to draw reasonable inferences to fill in any gaps in the evidence. True, the government did
not offer direct evidence that after Arnold threatened Gordon with a gun, someone saw him take the
gun, place it in a plastic bag and stick it under his seat in Gordon’s mother’s car. But the jury was
told enough to know that after Gordon left the house to call 911, Arnold had the opportunity to take
these steps and the jury could reasonably infer that he did. True also, the gun recovered by the
police did not have Arnold’s fingerprints on it. But the jury could fairly conclude that the reason
the gun appeared in a plastic bag was that Arnold had just wiped his prints off the gun. See United
States v. Moore, 208 F.3d 411, 413 (2d Cir. 2000) (upholding felon-in-possession conviction even
though “no witnesses saw or heard [the defendant] throw a handgun into the bedroom closet [where
officers found it], and there were no identifiable fingerprints found on the gun that was recovered”
because “such evidence was not necessary for a reasonable jury to conclude that [the defendant] had
been in possession of the gun that was recovered by the police” when officers testified that they had
seen the defendant outside moments earlier possessing a gun of the same size and color).
As in all criminal trials, the jury did not have to draw these inferences. But even if the jury
had not drawn these inferences but accepted all of the other uncontradicted evidence still before it,
the advantage that Arnold could hope to gain still escapes me. The only other conclusion the jury
could have drawn was that Arnold possessed, cocked and pointed a loaded, black, semiautomatic
handgun at Gordon, disposed of it somewhere, got into a car, left and, minutes later, returned to the
scene with another black, semiautomatic, loaded weapon with a chambered round stowed beneath
his seat. That is not a traditional defense to a felon-in-possession charge. Either way, the critical
point is that the jury could have drawn two sets of inferences from this uncontradicted evidence, and
our mandate is to affirm when the jury’s choice was a reasonable one—which it was here. See
United States v. Thomas, 497 F.2d 1149, 1150 (6th Cir. 1974).
In reaching a different conclusion, the majority reasons that “Gordon’s thrice-repeated
accusation that Arnold had wielded a gun while threatening her . . . does not go to the actual
possession of the firearm recovered from the vehicle at the time it was discovered.” Supra at 4. I
fail to see why. The indictment charged Arnold with possessing “a firearm, that is, a Hi Point, 9
millimeter, semiautomatic pistol.” JA 14. Each and every attribute of the gun that Gordon described
paralleled the attributes of the gun the officers found. Gordon saw Arnold point a handgun. The
officers soon after found a handgun near Arnold. The gun Gordon saw was black. The gun the
officers found was black. The gun Gordon saw was semiautomatic. The gun the officers found was
semiautomatic. And Gordon saw Arnold pull back the gun’s slide and chamber a round, and the gun
the officers found had a round in its chamber. The only additional description the government
provided of the gun specified in the indictment was that it was “a Hi Point, 9 millimeter.” JA 14.
No part of Gordon’s description is inconsistent with these additional details, as she did not claim
Arnold held another brand of gun or that it accepted another caliber round.
No doubt the connection between the two guns would have been even clearer had Gordon
been able to describe some other unique characteristic of the gun or, better yet, been able to describe
the gun as “a Hi Point, 9 millimeter.” But Arnold has pointed to no such characteristic of the gun
that Gordon could have mentioned, and surely we do not require a witness to “make out the name
brand of [a] weapon, the model, the model number, []or the gun’s serial number” as an aggressor
points the weapon at her. See Moore, 208 F.3d at 413 (upholding felon-in-possession conviction
even though the witnesses who saw the defendant possess a “large black and silver handgun” did
No. 04-5384 United States v. Arnold Page 12
not describe the brand, model, or serial number and noting that the jury could reasonably conclude
that the gun the witnesses described and the gun the police recovered “were one and the same”).
Numerous cases hold that evidence not dissimilar to the evidence presented here—eyewitness
testimony describing a firearm actually possessed by the defendant that matches a firearm police
later charge the defendant with actually possessing—sufficiently connects the gun described to the
gun found. And indeed, most of these cases involve connections far more attenuated than those
here. See, e.g., United States v. Barnett, 398 F.3d 516, 522 (6th Cir. 2005); United States v. Crowe,
291 F.3d 884, 887 (6th Cir. 2002); United States v. Chesney, 86 F.3d 564, 567, 572–73 (6th Cir.
1996); United States v. Black, 525 F.2d 668, 669 (6th Cir. 1975); United States v. Wright, No.
03-3810, 2004 U.S. App. LEXIS 13855, at *2–4, *30–31 (6th Cir. June 28, 2004); United States v.
Smith, No. 03-5130, 2003 U.S. App. LEXIS 21734, at *3–5 (6th Cir. Oct. 21, 2003); Whitis v.
United States, No. 94-6333, 1995 U.S. App. LEXIS 22308, at *3, *6, *11 (6th Cir. Aug. 3, 1995);
United States v. Smith, No. 90-2293, 1991 U.S. App. LEXIS 22429, at *7 (6th Cir. Sept. 18, 1991);
United States v. Patterson, 23 F.3d 1239, 1242–45 (7th Cir. 1994); United States v. Burl, No.
00-4343, 2001 U.S. App. LEXIS 14847, at *2, *11 (7th Cir. June 13, 2001); United States v. Brewer,
No. 00-4156, 2001 U.S. App. LEXIS 21566, at *2–3 (7th Cir. Oct. 2, 2001).
All of this, it seems to me, suffices to resolve this case. The defendant was charged with
possessing a handgun, and the government proved that he actually possessed a handgun. The
government has never argued that he constructively possessed the gun and it is quite understandable
why: It had no reason to do so.
Yet even if one thinks of this prosecution as arising under a constructive-possession theory,
I fail to see how that advances Arnold’s cause. “Presence alone” near a gun, it is true, does not
“show the requisite knowledge, power, or intention to exercise control over” the gun to prove
constructive possession. United States v. Birmley, 529 F.2d 103, 107–08 (6th Cir. 1976) (emphasis
added). But that is not what we have here. Here we have “other incriminating evidence, coupled
with presence, . . . [that] serve[s] to tip the scale in favor of sufficiency.” Id. at 108. And of course
that “other incriminating evidence” was incriminating indeed: Minutes before the defendant was
found with a handgun under the car seat in which he was riding, he was seen actually possessing a
gun matching the description of the one found under his seat—and of course not just possessing it
but using it to threaten someone. To say that this “record [was] devoid of any [ ] evidence” aside
from mere presence in a car with a weapon, United States v. Cochran, 14 F.3d 1128, 1133 (6th Cir.
1994), gives precedent a bad name.
No case, to my knowledge, supports invalidating this conviction, and numerous cases
undermine such a conclusion. See, e.g., United States v. Barnett, 398 F.3d 516, 522 (6th Cir. 2005)
(rejecting a sufficiency-of-the-evidence challenge to a felon-in-possession conviction where an
officer testified at trial that he saw the defendant “crouched outside [a] residence . . . holding a long
black object that looked like a shotgun[,] . . . saw [the defendant] throw the object to the ground as
[he] began to flee . . . [and] upon investigating the residence after [the defendant] was apprehended,
[another officer] found a black and chrome rifle in the front yard”); United States v. Banks, No.
05-5032, 2005 WL 2508543, at *4 (6th Cir. Oct. 11, 2005) (rejecting a sufficiency-of-the-evidence
challenge to a felon-in-possession conviction where a witness identified the defendant “as the
individual who robbed her at gunpoint” and where soon after police met with the robbery victims
they stopped a mini-van matching the description the victims provided and found a shotgun “near
the seat in which [the defendant] was sitting”); United States v. Caraway, 411 F.3d 679, 683 (6th
Cir. 2005) (rejecting a sufficiency-of-the-evidence challenge to a felon-in-possession conviction
where a witness “observed an individual point a gun at him, then turn, flee over a fence and hide
under an SUV” and officers “testified that the individual that was found under the SUV” shortly
afterward was the defendant); United States v. Johnson, No. 98-2212, 2000 U.S. App. LEXIS 2475,
at *13 n.3 (6th Cir. Feb. 16, 2000) (rejecting defendant’s claim that the government failed to prove
he possessed a firearm because “[w]hile Cochran stands for the proposition that mere presence on
No. 04-5384 United States v. Arnold Page 13
the scene plus association with illegal possessors is not enough to establish constructive possession,
there was evidence in the instant case that Johnson knew that his co-conspirator owned a firearm and
brought it into the house”) (citations and quotation omitted); United States v. Duso, Nos. 92-1162,
92-1274, 92-1289, 1993 WL 131940, at *6 (6th Cir. 1993) (rejecting a sufficiency-of-the-evidence
challenge to a felon-in-possession conviction because the fact that officers found a gun under the
defendant’s mattress distinguished this case from Birmley’s “presence alone” rule and sufficed to
establish constructive possession by demonstrating knowledge and intent to exercise control).
Other circuits hew to the same rule: While presence in a car with a gun does not by itself
establish constructive possession, presence plus other incriminating evidence will do so. See United
States v. Alexander, 331 F.3d 116, 127 (D.C. Cir. 2003) (rejecting a sufficiency-of-the-evidence
challenge to a felon-in-possession conviction where a witness told a 911 operator and officers
responding to her call that her boyfriend had a gun on him and had threatened her, the boyfriend
appeared while the officers were talking with the witness and continued to fight with her and the
officers discovered a gun in a car parked nearby; holding that while “mere proximity to a gun is
insufficient to establish constructive possession, evidence of some other factor—including
connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement
indicating involvement in an enterprise—coupled with proximity may suffice”) (quotations and
citations omitted); United States v. Harris, No. 99-4759, 2000 U.S. App. LEXIS 15694, at *2 (4th
Cir. June 20, 2000) (rejecting a sufficiency-of-the-evidence challenge to a felon-in-possession
conviction because the defendant was identified as the co-owner and driver of the vehicle in which
the police discovered a revolver and “the testimony of [defendant’s] daughter positively identifying
the weapon as one possessed previously by her father cemented [his] possession of the firearm”);
United States v. Richardson, 161 F.3d 728, 732 (D.C. Cir. 1998) (rejecting a sufficiency-of-the-
evidence challenge to a felon-in-possession conviction where officers discovered a gun near the
defendant and testimony indicated his recent prior possession of a gun with a similar handle because
“proximity coupled with evidence of some other factor . . . is enough to sustain a guilty verdict”)
(quotations and citations omitted); see also United States v. Collins, No. 96-10518, 1997 U.S. App.
LEXIS 26506, at *3 (9th Cir. Sept. 22, 1997); United States v. Johnson, 55 F.3d 976, 979 (4th Cir.
1995); United States v. Wright, 932 F.2d 868, 881 (10th Cir. 1991); United States v. Ocampo, 890
F.2d 1363 (7th Cir. 1989); United States v. Flenoid, 718 F.2d 867, 868–69 (8th Cir. 1983); United
States v. Coe, 718 F.2d 830 (7th Cir. 1983); United States v. Whitfield, 629 F.2d 136, 143 (D.C. Cir.
1980); United States v. Ratcliffe, 550 F.2d 431, 434 (9th Cir. 1976).
“[I]n certain instances,” to be sure, evidence of a defendant’s prior possession may not
support an inference of constructive possession. United States v. Hishaw, 235 F.3d 565, 572 (10th
Cir. 2000). For example: where the defendant’s “actual possession of a firearm involved incidents
more than two years before the charged [ ] offense,” id. at 573; or where the evidence did not even
purport to involve the same gun that was charged in the indictment, compare id. at 571 (defendant
charged with possessing a Norinco nine-millimeter semiautomatic pistol) with id. at 573 (a witness
testified that “he had seen [the defendant] with some kind of firearm—either a pistol or a
revolver—on about four prior occasions”); or where the evidence pertained to situations dissimilar
to the situation at the time the weapon was discovered, see id. (witness described defendant
possessing a gun during a drug transaction but officers found a gun under the passenger seat of a car
driven by the defendant during a traffic stop “and no evidence was presented . . . [that defendant]
was involved in [such a drug transaction] when the officers stopped the car”). Here, however, we
are not dealing with evidence that pertained to events that took place two years, two days or even
two hours before the officers discovered the gun under Arnold’s seat. Gordon did not say she saw
Arnold possess a gun in some other context; she said he possessed a gun during their argument and,
minutes later, Arnold showed up and continued that argument with Gordon and, in this same
context, the officers found a gun matching the description Gordon gave them. Surely, this is one
of those “instances” where evidence of prior possession properly supports an inference of
constructive possession. See Richardson, 161 F.3d at 733 (finding “the requisite connection”
No. 04-5384 United States v. Arnold Page 14
between a witness’s description of a gun he saw the defendant possess and a gun officers later found
in a car near the defendant when the witness testified the handle of the gun officers found “was
similar in appearance” to the handle of the gun he saw the defendant possess).
In the final analysis, I would hold that a rational jury could conclude that uncontradicted
evidence showing that the defendant pointed a gun at the victim, that the defendant was identified
as the man who pointed the gun and that a gun matching the description the victim provided was
found under the defendant’s car seat minutes later suffices to establish that the defendant was guilty
of being a felon in possession of that gun.
II.
Because I cannot agree with Arnold’s challenge to the sufficiency of the evidence, I must
also reach his objections to the district court’s decision to admit Tamica Gordon’s three
statements—first to the 911 operator, next to the police when they arrived at the scene, then to the
police when Arnold suddenly returned to the scene. Arnold challenges the district court’s admission
of this evidence both as a matter of evidence law (the excited-utterance exception to the hearsay
rule) and constitutional law (the Confrontation Clause). As the dissent that I filed when the panel
first heard this case explains my position on these contentions, I will incorporate it here by reference.
See United States v. Arnold, 410 F.3d 895, 907 (6th Cir. 2005) (Sutton, J., dissenting); see also
United States v. Brito, No. 04-1755, slip op. at 14–15 (1st Cir. Oct. 20, 2005); Commonwealth v.
Gonsalves, 445 Mass. 1, 33 (2005).