486 F.3d 177 (6th Cir. 2007), 04-5384, United States v. Arnold

Docket Nº:04-5384.
Citation:486 F.3d 177
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Joseph ARNOLD, Defendant-Appellant.
Case Date:May 18, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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486 F.3d 177 (6th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Joseph ARNOLD, Defendant-Appellant.

No. 04-5384.

United States Court of Appeals, Sixth Circuit.

May 18, 2007

Argued: Sept. 13, 2006.

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[Copyrighted Material Omitted]

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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.

Before BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, ROGERS, SUTTON, COOK, McKEAGUE, and GRIFFIN, Circuit Judges. [*]

SUTTON, J.,, 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. 196) and GRIFFIN (pp. 196-202), 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. 202-17), delivered a separate dissenting opinion, in which MARTIN, COLE, and GILMAN, JJ., joined.

OPINION

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 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

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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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (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 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

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"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, 99 S.Ct. 2781, 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 Fed.Appx. 271, 275 (6th Cir.2005) (upholding felon-in-possession conviction where arresting officer observed defendant "with a weapon from

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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").

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