United States v. Joseph Arnold , 410 F.3d 895 ( 2005 )

CARMAN, J., delivered the opinion of the court, in which MOORE, J., joined.

SUTTON, J. (pp. 907-19), delivered a separate dissenting opinion.

OPINION

CARMAN, Judge.

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, this Court REVERSES and REMANDS the case for entry of a judgment of acquittal.

BACKGROUND

At about 7:43 a.m. on September 19, 2002 (J.A. at 197), 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”). (Audio tape: 911 Recording (Sept. 19, 2002) (Ct.Ex. 9).) 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. (J.A. at 112-113.) The officers later learned that the young woman’s name was Tamica Gordon. (J.A. at 122.) 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. (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. (J.A. at 151.) Based on Gordon’s hand gestures, the officers inferred that she was describing a semiautomatic weapon. . (J.A. at. 127.)

During a brief conversation,¹ Gordon began to calm. (J.A. at 115.) A short time after the officers arrived, a car pulled up to the address where Gordon and officers were conversing. (Id.) A woman was driving the car, and a man was in the passenger seat. (J.A. at 116.) As the car pulled up, Gordon became excited again. (J.A. at 115.) 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. (Id.) According to one responding officer’s testimony, Gordon said, “[T]hat’s him, that’s the guy that pulled the gun on me, Joseph Arnold, that’s him.” (Id.)

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. (Id.) Arnold was cooperative and did not attempt to elude the police or run away. (J.A. at 126.) The officers then asked for and received consent from the car’s owner (Gordon’s mother) to search the automobile. (J.A. at 117, 129.) Under the passenger seat of the automobile, the officers found a loaded, black, semiautomatic handgun with a bullet in the chamber. (J.A. at 118-19.) The gun was in a clear plastic bag when the police located it. (J.A. at 142.) There were no fingerprints on the gun, and it was not stolen. (J.A. at 130-31.) The prosecution submitted no evidence that the gun belonged to Arnold, and Arnold did not admit that the gun was his. (J.A. at 131).

The government subpoenaed Gordon for the trial, but she did not appear. (J.A. at 28-29.) 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. (J.A. at 38-39.) The government argued that the 911 tape was admissible under two exceptions to the hearsay rule: excited utterance and present sense impression. (J.A. at 38.) The government argued that Gordon’s statements to the police were admissible as excited utterances. (J.A. at 39.)

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 (J.A. at 64-65) but not as a present sense impression (J.A. at 63). The District Court also ruled that Gordon’s statements to the police at the scene of Arnold’s arrest were admissible as excited utterances. (J.A. at 78-79.) 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.)

Standards Op Review

All evidentiary rulings, including those that challenge constitutionality, are reviewed by the appellate court under the “abuse of discretion” standard. U.S. v. Schreane, 331 F.3d 548, 564 (2003), cert, denied, 540 U.S. 973, 124 S.Ct. 448, 157 L.Ed.2d 323 (2003). See also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (“We have held that abuse of discretion is the proper standard of review of a district court’s evidentiary rulings.”). This Court will find an abuse of discretion when there is a “definite and firm conviction that the court below committed a clear error of judgment in' the conclusion it reached upon a weighing of the relevant factors.” Schreane, 331 F.3d at 564 (quoting Super Sulky, Inc. v. U.S. Trotting Ass’n, 174 F.3d 733, 740 (6th Cir.1999)). Abuse of discretion also results when the “lower court relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.” U.S. v. Heavrin, 330 F.3d 723, 727 (6th Cir.2003) (quotation and citation omitted).

As to Arnold’s contention that the proof submitted to the jury was not constitutionally sufficient to sustain a guilty verdict, this Court must assess “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.” U.S. v. Samuels, 308 F.3d 662, 666 (6th Cir.2002), cert, denied, 537 U.S. 1225, 123 S.Ct. 1335, 154 L.Ed.2d 1085 (2003) (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). On appeal, the court must “determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 318, 99 S.Ct. 2781. In assessing the sufficiency of the evidence, the court does not substitute its judgment for that of the jury and draws inferences in favor of the jury’s verdict. Salgado, 250 F.3d at 446. Nonetheless, there must be “substantial evidence”² of the elements of the crime upon which the jury could determine the defendant’s guilt beyond a reasonable doubt. Burks v. U.S., 437 U.S. 1, 17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); U.S. v. Orrico, 599 F.2d 113, 117 (6th Cir.1979). If this Court finds that the evidence was insufficient to sustain a defendant’s conviction, the case must be reversed with direction to the lower court to enter judgment of acquittal. Burks, 437 U.S. at 18, 98 S.Ct. 2141.³

Discussion

On appeal, Arnold asserts- that his conviction should be overturned for any, or in 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 constitutional- • ly insufficient to sustain a conviction; and

3. Defense counsel should have been permitted' to present an impeachment witness.

(Arnold Br. at ii.) Each of these arguments will be examined in turn.

I.Gordon’s Out-Of-Court Statements Were Erroneously Admitted.

The District Court admitted three out-of-court statements into evidence under the excited utterance exception to the hearsay rule:

1. A tape recording of the 911 call;

2. The statements Gordon made to police officers upon their arrival; and

3. The statements Gordon made to police officers when Arnold arrived.

For the reasons that follow, this Court finds that none of the statements was admissible as a matter of law.

A. The spontaneity required to admit the 911 call as an excited utterance was not proved.

The District Court admitted the 911 call under the “excited utterance” exception to the hearsay rule. Fed.R.Evid. 803(2). An “excited utterance” is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Id.

The basis for the “excited utterance” exception, for example, 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 and that cross-examination would be superfluous.

Idaho v. Wright, 497 U.S. 805, 820, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).

In order for a statement to be admitted as an “excited utterance,” three elements must be satisfied:

1. There must be an event startling enough to cause nervous excitement;

2. The statement must be made before there is time to contrive or misrepresent; and

3. 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), cert, denied, 464 U.S. 1071, 104 S.Ct. 980, 79 L.Ed.2d 217 (1984). This Court has previously recognized that “the length of time between the event and the statement” is a critical — if not the most important— factor in determining whether the statement was spontaneous. Id. at 1057-1058.

This Court does not suggest that the 911 call did not relate to an event startling enough to cause nervous excitement. Further, we do not doubt that the caller — presumably Gordon⁴ — was upset when the call was made. Nevertheless, the record reveals no evidence as to when the alleged incident between Gordon and Arnold occurred. The District Court acknowledged as much. (J.A. at 56 (“I don’t know the time frame.”).) Consequently, the District Court lacked any evidence with which to determine whether the 911 call was made before there was time to contrive or misrepresent. Without such evidence, a finding that the 911 call satisfied the spontaneity element for it to be considered an “excited utterance” was pure supposition.⁵ The District Court could not have known and did not know that there was sufficient assurance that the content of the 911 call was trustworthy and that cross-examination would be superfluous. Wright, 497 U.S. at 820, 110 S.Ct. 3139.

The Confrontation Clause provides that in all criminal prosecutions, the accused has the right to be confronted with the witnesses against him. U.S. Const, amend. VI. Cross-examination has been recognized as the “greatest legal engine ever invented for the discovery of truth.” White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). Because exceptions to the hearsay rule may not be permitted to supercede a defendant’s right to confront his accuser as guaranteed by the Sixth Amendment of the United States Constitution, use of the exceptions must be closely scrutinized. Without proof of spontaneity, there can be no assurance that the statements were not contrived and did not misrepresent the situation.

This Court finds that the District Court erred in determining that the 911 call was spontaneous. Therefore, the 911 call was not — as a matter of law- — an excited utterance and, thus, was inadmissible hearsay.

B. Gordon’s initial statements to the police lack the spontaneity required to be considered excited utterances.

For the same reasons that the 911 call could not be considered an excited utterance, Gordon’s initial statement to the police cannot be considered excited utterances. See Section I.A., supra. In the initial statement, which began approximately fifteen minutes after the 911 call, Gordon seemed to reiterate the substance of the 911 call. Again, the record reveals that Gordon did not provide any information to the police about when the alleged incident with Arnold occurred. Despite her excited state during the interview by the police, the District Court was completely without evidence concerning the time that elapsed between the alleged event and the statements being made. Thus, the District Court erred in concluding that Gordon’s initial statements to the police were excited utterances.

C. Gordon’s statements when Arnold arrived appear to satisfy the excited utterance criteria.

When Arnold arrived at the scene of his arrest and in the presence of Gordon and the police, Gordon became excited and identified him to the police as the man who had threatened her. These statements appear to satisfy the criteria for the District Court to have considered them excited utterances. The arrival of Arnold may have been an event startling enough to cause nervous excitement. Having been made within moments of Arnold’s arrival, Gordon’s statements identifying Arnold to the police were made before she had time to contrive or misrepresent. Based upon Gordon’s state when the statements were made, the District Court could conclude that she was still under the stress of the startling event when the statements identifying Arnold to the police were made. Nevertheless, for the reasons that follow in Section I.D., infra, Gordon’s statements identifying Arnold to the police were not admissible.

D. Even if Gordon’s out-of-court statements met the “excited utterance” criteria, they were testimonial and, therefore, inadmissible.

The U.S. Supreme Court recently ruled that out-of-court statements that are “testimonial” and made by a witness not present at trial are admissible only if the declarant is unavailable and the defendant had a prior opportunity to cross-examine. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004). According to Crawford, the Sixth Amendment’s Confrontation Clause requires such safeguards on the use of out-of-court testimony. Crawford, 124 S.Ct. at 1370 (“Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation.”). The Sixth Amendment “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Id. Accordingly, Crawford requires exclusion of some hearsay statements that previously were admissible under hearsay exception rules. See 5 Jack B. Weinstein et al, Weinstein’s Federal Evidence § 802.05[3][e] (2d ed.2004).

While the Supreme Court did not establish a comprehensive definition for the term “testimonial,” it did provide some guidance on its-meaning. The Supreme Court noted that “testimony” is typically a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id. at 1364 (internal quotation and citation omitted). “Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” ⁶ Id. at 1374. Testimonial statements may also include, but are not limited to, affidavits, custodial examinations, confessions, depositions, prior testimony without the benefit of cross-examination, and “statements that declarants would reasonably expect to be used prosecutorially.” Id. at 1364 (internal quotation and citation omitted).

Although the record does not establish that Gordon was “unavailable”⁷ at trial, it is clear that she was not present. More to the point, the record is clear that Arnold did not have an opportunity to cross-examine Gordon concerning her out-of-court statements. Thus, it is left to this Court to determine whether Gordon’s statements were “testimonial” under the rubric of Crawford. If so, the statements were inadmissible.

The Oxford English Dictionary (“OED”) defines “testimonial” as “serving as evidence; conducive to proof;” as “verbal or documentary evidence;” and as “[s]ome-thing serving as proof or evidence.” XVII The Oxford English Dictionary 832 (2d ed., J.A. Simpson & E.S.C. Weiner eds., Clarendon Press 1989). The OED defines “testimony” as “[p]ersonal or documentary evidence or attestation in support of a fact or statement; hence, any form of evidence or ‘proof.” Id. at 833 (emphasis added). Similarly, Webster’s defines “testimonial” as “something that serves as evidence: proof.” Webster’s Third New International Dictionary of the English Language (Unabridged) 2362 (Merriam-Webster Inc. 1993). “Testimony” is “firsthand authentication of a fact: evidence;” “something that serves as an outward sign: proof;” or “an open acknowledgment: profession.” Id.⁸

At issue are Gordon’s three out-of-court statements: (1) the 911 call, (2) the initial statement to the police at the Memphis address, and (3) the statements made to the police contemporaneously with Arnold’s arrival on the scene. The Crawford court stated that an “accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Crawford, 124 S.Ct. at 1364. On all three occasions, Gordon made the statements to government officials: the police.⁹ This fact alone indicates that the statements were testimonial; further details support this conclusion.

As the only witness to the alleged incident, Gordon could reasonably expect that her statements would be used to prosecute Arnold. See Id. (testimonial statements include “statements that declarants would reasonably expect to be used prosecutorially”). Although one purpose of the 911 call may have been to secure assistance, it remains that Gordon could also reasonably expect the statements to be used in a future trial. In addition, Gordon’s statements were declarations made for the purpose of “establishing or proving some fact.” Id. (quotation and citation omitted). It would be antithetical to this entire examination were the government to suggest that Gordon made the statements for any other reason than to establish that the alleged incident occurred. Further, Gordon’s statements were evidence and proof of a matter, firsthand authentication of a fact, and open acknowledgments.

This jurisdiction has previously considered this issue. See U.S. v. Cromer, 389 F.3d 662 (6th Cir.2004). In Cromer, which was fully briefed when Crawford was issued, the court considered whether the trial court’s admission of testimony of .a police officer witness concerning information provided by a confidential informant violated the Confrontation Clause. The court stated that the decisive inquiry should be “whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting the crime.” Id. -at 675. The court further stated that a “statement made knowingly to the authorities that describes criminal activity is almost always testimonial.” Id. (quotation and citation omitted). The Cromer court found two of the three statements at issue to be testimonial.¹⁰ Accordingly, the court found that the trial court committed plain error by allowing the police officer’s testimony and reversed the conviction. Id. at'679.

We see no reason for deviating from the Cromer holding. As in Cromer and as this Court has stated supra, Gordon could reasonably expect that her statements would be used to prosecute Arnold. Further, her statements, which were made knowingly to authorities, described criminal activity. After full consideration of the record before us and for the preceding reasons, this Court holds that Gordon’s out-of-court statements were testimonial.

When out-of-court statements are testimonial, the safeguards of the Sixth Amendment’s Confrontation Clause must be observed. Thus, to be admissible at trial, Gordon must have been unavailable for trial, and Arnold must have had a prior opportunity to cross-examine Gordon concerning the statements. Crawford, 124 S.Ct. at 1374. It is sufficient that Arnold did not have an opportunity to cross-examine Gordon about the statements for this Court to find that Gordon’s testimonial out-of-court statements were inadmissible at trial. Therefore, the District Court committed reversible error by allowing the statements to be introduced during Arnold’s trial. Accordingly, Arnold’s conviction must be reversed.

II. The Proof Was Constitutionally Insufficient to Sustain a Conviction.

Arnold was convicted of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). (J.A. at 15.) The elements of a violation of 18 U.S.C. § 922(g)(1) are (1) the defendant had a prior felony conviction, (2) the defendant possessed a firearm, and (3) the firearm traveled in or affected interstate commerce. U.S. v. Moreno, 933 F.2d 362, 372 n. 1 (6th Cir.1991), cert. denied, 502 U.S. 895, 112 S.Ct. 265, 116 L.Ed.2d 218.(1991) (internal quotation and citation omitted). On appeal, Arnold challenges only the possession element.

Evidence of either actual or constructive possession of a firearm is sufficient to sustain the verdict. Id. at 373.

Actual possession exists when a tangible object is in the immediate possession or control of the party. 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.

U.S. v. Craven, 478 F.2d 1329, 1333 (6th Cir.1973), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973). “Both actual and constructive possession may be proved by either direct or circumstantial evidence.” Id. The government may prove constructive possession by presenting evidence that the person has dominion over the premises where the firearm was located. U.S. v. Kincaide, 145 F.3d 771, 782 (6th Cir.1998), cert. denied, 525 U.S. 1166, 119 S.Ct. 1085, 143 L.Ed.2d 86 (1999) (citation omitted). However, presence where a weapon was found, without more, is insuffi-dent to establish “knowledge, power, or intention to exerdse control” over the firearm. U.S. v. Birmley, 529 F.2d 103, 107-08 (6th Cir.1976).

A. Gordon’s out-of-court statements were inadmissible and cannot be used to support conviction on the basis of actual possession.

No weapons were found on Arnold’s person. Gordon’s out-of-court statements were the only evidence presented at trial that Arnold actually possessed a firearm. This Court rules those statements to be inadmissible. Thus, there is no evidence to link Arnold to actual possession of any firearm and, therefore, no basis upon which a rational trier of fact could convict of actual possession.

B. The evidence of constructive possession is also insufficient to affirm conviction.

We now consider whether sufficient evidence existed to find Arnold guilty of constructive possession of a firearm based on the gun police recovered from the car in which Arnold was riding. Arnold was not driving the car, and the car was not registered to him. There is no indication that Arnold exercised any dominion or control over the vehicle. Further, there is no evidence on the record to suggest that Arnold even knew the gun, which was located under the passenger seat and out of plain view, was in the car. In addition, the gun was not registered to Arnold, and his fingerprints were not found on the weapon. Arnold’s presence in the vicinity of the weapon is insufficient basis for conviction. See Birmley, 529 F.2d at 107-08. With no evidence of Arnold’s knowledge of the gun’s location and no evidence that he exercised dominion or control over the vehicle in which it was found, no rational trier of fact could find Arnold guilty of constructively possessing a firearm.

In light of these facts, there is insufficient evidence upon which a rational trier of fact could infer possession — either actual or constructive — of the firearm by Arnold. Accordingly, Arnold’s conviction must be set aside.

C.Even if admissible, Gordon’s statements were insufficient evidence of actual possession to affirm conviction.

Even if Gordon’s statements were admissible, they were insufficient to tie the seized gun to Arnold. Gordon told the police she saw Arnold with a “black handgun.” (J.A. at 127.) The police did find a black handgun in the automobile in which Arnold was a passenger. Given that fifty percent — the estimation of the police¹¹ — of handguns are black, the description was too generic and overly broad to overcome any rational fact finder’s reasonable doubt that the weapon found was the same weapon Gordon allegedly saw Arnold wielding.

Further, this Court and others have held that uncorroborated, out-of-court statements are insufficient bases on which to sustain a conviction. See U.S. v. Orrico, 599 F.2d 113, 118-19 (6th Cir.1979) (prior inconsistent statement and past recollection recorded); State v. Webb, 779 P.2d 1108, 1115 (Utah 1989) (out-of-court statement of non-testifying minor); U.S. v. Bahe, 40 F.Supp.2d 1302, 1311 (D.N.M.1998) (prior inconsistent statement). Although the type of hearsay evidence in the cited. cases differs from the (presumed) excited utterances in the case at bar, we see no reason that they should be treated differently or accorded more evidentiary weight than the statements in the cited cases. See Orrico, 599 F.2d at 118 (adopting prior court’s analysis with regard to prior inconsistent statement to past recollection recorded). The statements share the common identity of being out-of-court statements that, but for acknowledged exceptions to the otherwise standard rule of excluding hearsay evidence, would be excluded from trial.

This case is similar to a recent case decided by this Court. McKenzie v. Smith, 326 F.3d 721, 728 (6th Cir.2003); cert. denied, 540 U.S. 1158, 124 S.Ct. 1145, 157 L.Ed.2d 1057 (2004). McKenzie was convicted of assault with intent to commit murder based pn the out-of-court statement of a minor and absent any physical evidence linking him to the crime or any eyewitness testimony. The trial court ruled that the minor victim’s out-of-court statement implicating McKenzie was admissible as an excited utterance and refused to allow introduction of a subsequent contradictory statement. After a lengthy appellate history, the appellate court ruled that “given the circumstances of the child’s out-of-court statement and the lack of any corroborating evidence, we hold — -upon the record as a whole — that the petitioner’s conviction is not supported by constitutionally sufficient evidence.” Id. at 728.

As to the use'of out-of-court statements as the basis for conviction, this Court has previously stated that

... when such evidence is the only source of support for the central allegations of the charge, especially when the statements barely, if at all, meet the minimal requirements of admissibility, we do not believe that a substantial factual basis as to each element of the crime providing support for a conclusion of guilt beyond reasonable doubt has been offered by the Government.

Orrico, 599 F.2d at 118; see also Bake, 40 F.Supp.2d at 1309. This Court has previously noted the importance of the notions of fairness upon which our judicial system is based. Foremost among them is the “principle that man should not be allowed to be convicted on the basis of unsworn testimony.” U.S. v. Shoupe, 548 F.2d 636, 644 (6th Cir.1977) (citations omitted). To that end, we agree with the rule iterated in Orrico:

They [out-of-court statements] may be used to corroborate evidence which otherwise would be inconclusive, may fill in gaps in the Government’s reconstruction of events, or may provide valuable detail which would otherwise have been lost through lapse of memory. But the Government having offered such statements as the sole evidence of a central element of the crime charged, we hold that the Government has failed to sustain its burden'of proving guilt beyond a reasonable doubt.

Orrico, 599 F.2d at 119.

Gordon’s out-of-court statements are the only evidence linking Arnold to an alleged criminal act — possession of a firearm by a convicted felon. There was no physical evidence linking Arnold to the weapon and no eyewitness testimony. Based on the foregoing analysis, Gordon’s out-of-court statements alone cannot support conviction. We conclude that Gordon’s out-of-court statements were insufficient bases upon which to sustain Arnold’s conviction. Accordingly, Arnold’s conviction must be reversed.

III. Defense Counsel Should Have Been Permitted to Present an Impeachment Witness.

During trial, defense counsel sought to introduce evidence that subsequent to Arnold’s arrest Gordon had made statements indicating she had not seen Arnold with a gun on the day of the alleged incident. (J.A. at 66-67.) The trial court refused to admit the evidence ruling that it was hearsay for which there was no exception. (J.A. at 67-68.)

The Federal Rules of Evidence permit the introduction of impeachment testimony, not as an exception to hearsay, but as a matter of course.

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been' admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if the declarant had testified as a witness....

Fed.R.Evid. 806. On the basis of this rule, prior and subsequent inconsistent statements should be allowed to be introduced at trial to impeach the out-of-court statements of the declarant. See Carver v. U.S., 164 U.S. 694, 698, 17 S.Ct. 228, 41 L.Ed. 602 (1897) (“As these declarations are necessarily ex parte, we think the defendant is entitled to the benefit of any advantage he may have lost by the want of an opportunity for cross-examination.”); see also Fed.R.Evid. 806 advisory committee notes (1972 Proposed Rules) (“His [the out-of-court declarant’s] credibility should in fairness be subject to impeachment and support as though he had in fact testified.”).

This Court has misgivings about the trial court’s failure to allow evidence of inconsistent statements that would tend to impeach the earlier 911 call and Gordon’s statements to police. However, we need not reach a determination as to what — if any — error occurred as a result of their exclusion. Our ruling on the insufficiency of evidence against Arnold renders moot the question of error regarding the trial court’s refusal to allow impeachment testimony. See McKenzie, 326 F.3d at 728.

Conclusion

For the foregoing reasons, we hold that Gordon’s out-of-court statements were inadmissible hearsay. Further, we hold that there was insufficient evidence introduced at trial to sustain Arnold’s conviction. Accordingly, we REVERSE and REMAND for entry of a judgment of acquittal.

1 . The initial conversation between the officers and the young woman apparently lasted between thirty seconds (LA. at 115) and five minutes (J.A. at 146).

2 . Substantial evidence is greater than a "mere scintilla.” U.S. v. Orrico, 599 F.2d 113, 117 (6th Cir.1979). "It means such relevant evidence as a reasonable mind might accept to support a conclusion. It is evidence affording a substantial basis of fact from which the fact in issue can be reasonably inferred.” Id.

3 . The "Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient.” Burks, 437 U.S. at 18, 98 S.Ct. 2141. Hence, judgment of acquittal must be entered if the evidence is legally insufficient. Id.

4 . This Court also notes that the 911 tape appears to have been admitted lacking proper foundation. Not one witness at Arnold’s trial confirmed that Gordon was the female whose voice is heard on the tape of the 911 call. Fed.R.Evid. 901(b)(5).

5 . The dissent makes much of the 911 caller's excited state during the call as evidence that the call was made close in time to the alleged threat. For support of this proposition, the dissent quotes a lengthy paragraph from the Haggins opinion. (Haggins involved the admissibility of statements made by a four-year-old child after an alleged forcible rape. 715 F.2d 1050.) The majority does not read Hag-gins in the same light as the dissent. In fact, the language following that quoted and emphasized by the dissent only proves the importance of the lapse of time in a determining whether a statement is an excited utterance: “It is important to remember, however, that 'the ultimate question is whether the statement was the result of reflective thought or whether it was a spontaneous reaction to the exciting event.' ” Haggins, 715 F.2d at 1058 (citation omitted) (emphasis added). The District Court in the present matter had no means by which to answer the "ultimate question.” The District Court could not overcome the spontaneity element of the excited utterance analysis because it had no evidence upon which to conclude that the caller had no time to reflect or contrive.

The dissent also cited several cases in which courts have found that quite a long period (hours as opposed to moments) of time may pass between the startling event and an excited utterance. The majority notes that the "time lapse in most excited utterance cases is usually a few seconds or a few minutes.” U.S. v. Taveras, 380 F.3d 532, 537 (1st Cir.2004) (citations omitted). The Taveras court referred to longer lapses, like those found U.S. v. Cruz, 156 F.3d 22 (1st Cir.1998), a case cited by the dissent, as "extreme circumstances.” Id.

In principle, the majority does not take issue with the cases cited by the dissent. However, those cases are readily distinguishable from the facts of this case. In all cases cited by the dissent, the trial courts had explicit evidence of the time that elapsed between the startling event and the statement. The amount of lapsed time together with other factors allowed the courts to determine whether the person malting the statement was still under the stress of the event. The District Court in the present matter had no such evidence upon which to determine whether the 911 caller remained under the stress of the alleged event and whether she had time to contrive or misrepresent.

A record to support the finding of an excited utterance may be "less than perfect” (J.A. at 64), but it cannpt be devoid of evidence concerning the time that elapsed between the alleged startling event and the statement offered as the excited utterance. In the present matter, the District Court lacked the evidence to conclude that the 911 call was made before the caller had an opportunity to contrive or misrepresent. Therefore, the- call cannot be considered an excited utterance.

6 . The Supreme Court noted that it used the term ''interrogation” in "its colloquial, rather than any technical legal, sense.” Crawford, 124 S.Ct. at 1365 n. 4. The Supreme Court recognized that the term has "various definitions” and specifically left the definition open. Id.

7 . The dissent suggests that the Confrontation Clause analysis may not be available to Arnold if he was responsible for Gordon's failure to appear at his trial. The majority asserts that the facts of this case do not support the dissent’s position.

Firstly, there is no evidence in the record that Arnold had any influence over or put any pressure on Gordon not to appear at Arnold's trial. The only reference to possible pressure on Gordon not to appear at Arnold’s trial may be inferred from a self-serving response to a question posed by the prosecutor during Gordon’s contempt hearing for her failure to appear at Arnold's trial. (J.A. at 254.) Gordon agreed that she had been under pressure from her mother about her involvement in Arnold's case. However, when asked whether that pressure was the reason for her failure to appear, Gordon responded, "No, no, no, it was some things going on with me that my mom didn’t even really know about.” (J.A. 254.) The majority finds no reason to discount Gordon’s testimony and certainly no reason to impute to Arnold any possible pressure the mother may have placed on Gordon.

Secondly, although Crawford was decided after the trial in this case, the parties briefed the case on appeal. The prosecution had an opportunity to raise in its brief the rule of forfeiture by wrongdoing. It failed to do so. Accordingly, we need not consider it now.

8 . A review of relevant lexicographic sources is consistent with the U.S. Supreme Court’s own jurisprudence on this issue. See Crawford, 124 S.Ct. at 1364 (''[The Confrontation Clause] applies to ‘witnesses’ against the accused — in other words, those who ‘bear testimony.’ 1 N. Webster, An American Dictionary of the English Language (1828).”).

9 . The Memphis Police Communications Bureau receives 911 calls and dispatches appropriate calls to officers in the field. (J.A. at.92-93.)

10 . The third statement did not violate the Confrontation Clause because it did not contain hearsay and was presented for background information rather than for the truth of the matter asserted. Cromer, 389 F.3d at 676.

11 . On cross-examination, a police officer who was at the scene was questioned about how many handguns are black. (J.A. at 128.) He answered that "probably half are black and half are silver.” (Id.)