U.S. v. Arnold

• Decision Date: 23 November 2005
• Docket Number: No. 04-5384.,04-5384.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph ARNOLD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 396

434 F.3d 396

UNITED STATES of America, Plaintiff-Appellee, v. Joseph ARNOLD, Defendant-Appellant.

No. 04-5384.

United States Court of Appeals, Sixth Circuit.

Submitted: March 9, 2005.

Decided and Filed: November 23, 2005.

COPYRIGHT MATERIAL OMITTED

ON BRIEF: Robert C. Brooks, Memphis, Tennessee, for Appellant. David N. Pritchard, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

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

The court delivered a PER CURIAM opinion.

SUTTON, J. (pp. 407-12), 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 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 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (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, 162 L.Ed.2d 931 (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, 115 S.Ct. 259, 130 L.Ed.2d 179 (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:

[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, 109 S.Ct. 285, 102 L.Ed.2d 265 (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, 119 S.Ct. 83, 142 L.Ed.2d 65 (1998)), cert. denied, 540 U.S. 973, 124 S.Ct. 448, 157 L.Ed.2d 323 (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, 112 S.Ct. 265, 116 L.Ed.2d 218 (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, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973).

The prosecution presented...