SUTTON, Circuit Judge, dissenting.

I would handle this case differently. Prior to the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the district court allowed the Government to introduce four pieces of evidence showing that Arnold was a felon in possession of a firearm: (1) a recording of a 911 call made by Tamica Gordon indicating that Arnold had threatened her with a gun; (2) testimony by police officers regarding what Gordon told them when they arrived at the scene soon after the 911 call; (3) testimony by police officers regarding what Gordon said when Arnold suddenly arrived at the scene; and (4) the gun that police found under the passenger seat (where Arnold was sitting) of a car that arrived at the scene of the crime. All agree that the district court permissibly admitted the gun, which was found in connection with a consensual search. And virtually everyone (the parties and the court) disagrees (1) about what should have happened with the three other pieces of evidence — whether as a matter of evidence law (the excited-utterance exception to the hearsay rule) or constitutional law (the Confrontation Clause) — and (2) about whether sufficient evidence exists to convict, even assuming all four pieces of evidence were properly admitted. I have one procedural and three substantive qualms with the majority's resolution of these issues.

I.

As a matter of procedure, the majority unnecessarily reaches the most vexing issue in the case — whether the Confrontation Clause permits the introduction of 911 calls in general or this one in particular. Once one concludes that the 911 call does not satisfy the requirements of the excited utterance exception to the hearsay rule, as the majority does, it is no more necessary to decide whether the Confrontation Clause also bars the admission of this evidence than it is to decide whether another constitutional provision does so. The reason courts traditionally interpret statutes, rules and administrative regulations before construing the Constitution is to avoid the constitutional question, not to tee it up. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 341, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). The majority's threshold interpretation of Rule 803(2) of the Federal Rules of Evidence thus makes it quite unnecessary to decide this difficult Confrontation Clause question. That this was a case submitted on the briefs and without the benefit of oral argument doubles my conviction that we should not sidestep this canon of interpretation.

As it turns out, moreover, both the constitutional question and the Rule 803(2) question are unnecessary to the majority's disposition of this case. For as the court concludes in section II.C of its opinion, supra at 905-06, even if all of Gordon's statements were admissible, there still would be insufficient evidence to convict Arnold of being a felon in possession of a firearm. If that is true, one does not need to deal with either the statements' admissibility under Rule 803(2) or their admissibility under the Confrontation Clause.

II. A.

As a matter of substance, the majority concludes that the 911 call is not an excited utterance under Rule 803(2) and concludes that Gordon's initial statement to police officers shortly after the 911 call is not an excited utterance. I cannot agree on either front.

The 911 Call. In concluding that the excited utterance exception does not apply to the 911 call, the majority makes three essential points. One, "`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." Supra at 900 (quoting Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050, 1057 (6th Cir. 1983)). Two, "the district court lacked any evidence with which to determine whether the 911 [call] was made before there was time to contrive or misrepresent." Supra at 900. Three, in the absence of evidence as to when Arnold pointed the gun at Gordon — the adrenaline-producing event — the 911 call is not an excited utterance. Supra at 899-900. ("[T]he record reveals no evidence as to when the alleged incident between Gordon and Arnold occurred. . . . Without such evidence, a finding that the 911 call satisfied the spontaneity element for it to be considered an `excited utterance' was pure supposition.").

While I have some sympathy for this train of analysis, it is not consistent with our precedents. As Haggins explains, evidence that a brief "length of time" lapsed "between the event and the statement" may be a sufficient (and perhaps the most telling) reason for labeling a statement an excited utterance but it is not a necessary one.

One of the most relevant factors in determining spontaneity is the length of time between the event and the statement. "Probably the most important of the many factors entering into this determination is the time factor. . . . Perhaps an accurate rule of thumb might be that where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in reflective thought process. Testimony that the declarant still appeared `nervous' or `distraught' and that there was a reasonable basis for continuing [to be] emotional[ly] upset will often suffice." It is important to remember 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." Thus, a court must take into account other factors that could affect spontaneity.

Haggins, 715 F.2d at 1057-58 (6th Cir. 1983) (emphasis added) (quoting McCormick's Handbook of the Law of Evidence § 297 at 705-06 (2d ed. 1972)); id. at 1058 ("The lapse of time between the startling event and the out-of-court statement although relevant is not dispositive in the application of Rule 803(2)."). See also United States v. Schreane, 331 F.3d 548, 564 (6th Cir. 2003) (quoting, with minor alterations, the emphasized language from Haggins).

Proving that immediacy is not the sole proxy for evidentiary admissibility, Haggins itself permitted the admission of statements by a four-year-old child who made the statements more than an hour after the incident but who was still suffering the trauma from it. Other cases from this court, as well as from other courts, have permitted the admission of statements that were made well after the startling event but well within the traumatic range of it. See, e.g., United States v. Baggett, 251 F.3d 1087, 1090 n. 1 (6th Cir. 2001) (applying the excited utterance exception to statements made several hours after the last of three separate spousal beatings over a three-day period); United States v. Green, 125 F.ed.Appx. 659, 660 (6th Cir. 2005) (applying the excited utterance exception to statements made three hours after the startling event); United States v. Tabaja, 91 Fed.Appx. 405, 407 (6th Cir. 2004) ("While the record does not clearly establish the exact time interval between the startling event and the contested statement, it does demonstrate that this interval, at its outermost, could not have exceeded eleven hours. . . . Even assuming that the time interval . . . was eleven hours and long enough for [declarant] to have contrived that statement, it was, nevertheless, reasonable to conclude that [declarant's] excited emotional state at the time that she made that statement persisted."); see also United States v. Cruz, 156 F.3d 22, 30 (1st Cir. 1998) (applying the excited utterance exception to statements made at 8 a.m. when spousal beating ceased at 4 a.m.); Morgan v. Foretich, 846 F.2d 941, 947 (4th Cir. 1988) (applying the excited utterance exception to statements made three hours after the startling event).

Nor may the district court fairly be faulted for its efforts to deal with the absence of precise evidence regarding when Arnold wielded the gun at Gordon. For one, Arnold permissibly exercised his Fifth Amendment right not to discuss the event and Gordon, perhaps with prompting from Arnold (more on that later), was not available to testify about the event. For another, the district court did all that could be asked of it in trying to ascertain the timing of the assault in the absence of this more direct evidence. The court listened to the tape of the 911 call five times, JA 41, 49, 52, to determine whether Gordon's language itself established when the startling event occurred and clearly determined that there was some contemporaneity between the event and the call — at one point determining that Gordon stated "he's fixing to shoot me," not that he "was fixing to shoot me," JA 52. And while listening to the tape, the court repeatedly noted that Gordon seemed "very excited." JA 50, 52. The court then reasoned as follows:

So I think what we seem to have here is an event that occurred, I must say, slightly less than immediately thereafter or slightly more than immediately after. It was a little more than immediate. . . . The question is then was it sufficiently close in time for her ability to misrepresent facts to be overridden by the excitement of what had occurred. And the 911 tape, while not perfect, in terms of the information submitted to the court in terms of timing, when listened to appears to support a finding and, it does support a finding that the three elements are present. . . . The second thing is that the statement that she made appears to have been made before there was time to contrive or misrepresent. That appears to be the case. She appears excited, clearly under the stress and the influence of the event that she had undergone. The record is less than perfect in this case, but the tape itself strongly supports a finding in favor of the government.

JA 63-64.

One other aspect of the 911 tape supports the district court's conclusion that it happened immediately after Arnold threatened Gordon. After she states that "he's fixing to shoot me," she adds: "so I got in my car and [inaudible] left, and I went around the corner from the house." On the basis of this language, it is quite reasonable to infer that Gordon placed the call immediately after Arnold's threat prompted her to leave the house and that she did so from a car parked around the corner from the house. The dispatcher, notably, seems to have reached the same conclusion: "[The police] will be over there as soon as they can, ok? You just kind of be watching for him, ok?"

Notwithstanding this evidence, if our court demanded a specific finding as to the moment of the startling event and the lapse of time between the startling event and the out-of-court statement, I might support the majority's assessment of this issue. Yet we have held that the exception may apply based solely on "testimony that the declarant still appeared nervous or distraught and that there was a reasonable basis for continuing [to be] emotional[ly] upset," Haggins, 715 F.2d at 1058; Schreane, 331 F.3d at 564, a conclusion that eliminates an unyielding requirement of a timeline showing precisely how long ago the threatening event occurred or precisely how much time there was for contrivance. The district court made this exact finding, a finding supported by evidence that, in the words of Haggins, "will often suffice." 715 F.2d at 1058. Until the en banc court sees fit to modify this precedent, which indeed may be appropriate, I would adhere to it and thus would hold that the district court did not abuse its discretion in concluding that Gordon's 911 call was an excited utterance. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) ("[A]buse of discretion is the proper standard of review of a district court's evidentiary rulings."); United States v. Beverly, 369 F.3d 516, 540 (6th Cir. 2004) (applying abuse of discretion standard of review to excited utterance exception); Baggett, 251 F.3d at 1090 n. 1 (same).

Nor, contrary to the majority's conclusion, supra at 900 n. 4, does it matter at this point whether the 911 tape was admitted without proper foundation. As the Federal Rules of Evidence themselves make clear, Arnold may waive this objection, see Fed.R.Evid. 103(a), which he in fact did.

Gordon's statement to officers soon after the 911 call. The majority next concludes that the district court erred in finding that Gordon's statement to officers soon after they responded to the 911 call constituted an excited utterance. I again disagree. An additional five or six minutes (JA 114), not fifteen minutes, see supra at 900, lapsed between the 911 call and the officers' arrival on the scene. And the district court permissibly exercised its discretion under our precedents in finding that Gordon was still very excited and crying when the officers arrived and in concluding that her statement still constituted an excited utterance. See JA 79-80 ("[T]he witness's ability to contrive or misrepresent appears to not exist. She appears to, based on the officer's testimony, to be overwhelmed by the facts and circumstances, fearful as a result of the incident, highly excited, very emotional at the time. She has been exposed to an event which is startling and reasonably would cause anybody to have great nervous excitement, and she did respond in that way, and there does not appear to have been time to contrive or misrepresent."); id. at 80-81 ("The degree of excitement by the witness appears to be really beyond serious question, . . . so all we have left is the statement must be made before there is time for contrivance or misrepresentation, and the court finds that there is sufficient evidence to support that determination.").

Gordon's statement to officers after Arnold suddenly pulled up next to the police car. Within a minute of the officers' arrival, a car with Arnold in it pulled up next to the police car, at which point Gordon made the last of her statements admitted as excited utterances: "That's him, that's the guy who pulled a gun on me, Joseph Arnold, that's him." JA 115. The district court found this statement admissible as part of the same emotional trauma that captured Gordon's overall statements to responding officers. On top of that, the unexpected arrival of the defendant at the scene of the crime could itself suffice to trigger a startling event and excited verbal response. Cf. Beverly, 369 F.3d at 539-40 (holding that showing a photograph of the declarant's husband robbing a bank was a startling event sufficient to evoke an excited utterance); United States v. Scott, 69 Fed.Appx. 317 (6th Cir. 2003) (upholding the introduction of excited utterance by police officer in the course of chasing suspect on foot); United States v. Taylor, No. 92-5120, 978 F.2d 1260, 1992 WL 322369, at *2, 1992 U.S.App. LEXIS 29048, at *3 (6th Cir. Nov. 5, 1992) (upholding the introduction of excited utterance made when armed officers entered home to execute a search warrant). Either way, whether as part of Gordon's spontaneous narrative to responding officers or as a reaction to Arnold's sudden arrival on the scene, I agree with the majority that the district court did not abuse its discretion under our precedents in concluding that this last statement could be admitted under Rule 803(2).

B.

As another matter of substance, I would handle the Confrontation Clause claim differently. In addressing this issue, the district court did so in the context of a pre- Crawford world. Quite understandably then and quite wrongly now, it reasoned that the applicability of a modern hearsay exception (here, excited utterances) freed the evidence from challenge under the Confrontation Clause in accordance with Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). As the majority correctly recognizes, that is no longer an accurate method of analysis. See Crawford, 541 U.S. at 61, 124 S.Ct. 1354 ("Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence."). Under Crawford, when the prosecution seeks to introduce "testimonial" statements against a criminal defendant, when in the words of the Sixth Amendment the "accused" is being subject to "witnesses against him," U.S. Const. amend. VI, the defendant generally will have a right to confront those witnesses — without regard to what the modern-day Federal (or State) Rules of Evidence have to say about the matter. But see Crawford, 541 U.S. at 56 n. 6, 124 S.Ct. 1354 (acknowledging that hearsay exception for dying declarations may present an exception to the Confrontation Clause "on historical grounds" but if so "it is sui generis"); cf. id. at 58 n. 8, 124 S.Ct. 1354 (observing that any tradition of admitting spontaneous declarations applied at most to statements made "immediat[ely] upon the hurt received") (quoting Thompson v. Trevanion, Skin. 402, 90 Eng. Rep. 179 (K.B. 1694)). In re-calibrating the Confrontation Clause analysis, however, Crawford does not alter the forfeiture-by-wrongdoing exception to the Clause, which applies when the criminal defendant is responsible for the witness's unavailability. See 541 U.S. at 62, 124 S.Ct. 1354 (accepting the rule as an "exception to the Confrontation Clause" on "essentially equitable grounds").

Crawford, then, prompts two inquiries that the parties had no reason to debate below, that the district court had no reason to consider and that the district court had no reason to make any factfindings about: Were Gordon's three statements "testimonial" in nature? And even if the statements were testimonial, was Arnold responsible for Gordon's unavailability? Let me consider each in turn.

1.

The 911 Call. My first objection to the majority's analysis is its conclusion that all 911 calls are testimonial. In United States v. Cromer, 389 F.3d 662 (6th Cir. 2004), the court suggested the following test for ascertaining whether a statement is testimonial or not: "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. I am hard pressed to understand how a "reasonable person" test prompts the conclusion that all 911 calls are testimonial. Surely a victim's fear-induced statement to a 911 dispatcher that he is being chased through the house by an assailant is nothing more than a fervent cry for help, not a "solemn declaration or affirmation made for the purpose of establishing or proving some fact" in a court of law. Crawford, 541 U.S. at 51, 124 S.Ct. 1354. See Leavitt v. Arave, 383 F.3d 809, 830 n. 22 (9th Cir. 2004) (holding that a victim's fearful statements to 911 dispatchers and responding officers were not testimonial); People v. Conyers, 4 Misc.3d 346, 777 N.Y.S.2d 274, 276 (N.Y.Sup. 2004) (holding that 911 calls were not testimonial because it was clear to the court, "having heard the panicked and terrified scream of Ms. Conyers, that her intention in placing the 911 calls was to stop the assault in progress and not to consider the legal ramifications of herself as a witness in a future proceeding"); Pitts v. State, 272 Ga.App. 182, 612 S.E.2d 1, 5 (2005) (holding that victim's statements on 911 call were not testimonial because they were made while the incident was ongoing, because the purpose was to stop a crime and because the statements were made without premeditation or afterthought); State v. Wright, 686 N.W.2d 295, 302 (Minn.Ct.App. 2004), review granted, 2004 Minn. LEXIS 750 (Minn. Nov. 23, 2004) (holding that 911 call "moments after the criminal offense and under the stress of the event" was not testimonial); People v. Corella, 122 Cal.App.4th 461, 18 Cal.Rptr.3d 770, 776 (2004) (same); see generally Akhil Reed Amar, Confrontation Clause First Principles: A Reply to Professor Friedman, 86 Geo. L.J. 1045, 1045 (1998) (The Confrontation "Clause encompasses only those `witnesses' who testify either by taking the stand in person or via government-prepared affidavits, depositions, videotapes, and the like.").

Doubtless, judges are poorly equipped to play arm-chair psychologists or crime-trauma experts (and perhaps appellate judges are even more poorly equipped to do so). But it does not seem unduly speculative to conclude that the state of mind of few 911 callers faced with an imminent threat of violence will bear the collected features that the Court has ascribed to "testimonial" evidence — namely, a "solemn declaration or affirmation made for the purpose of establishing or proving some fact" in a court of law. Crawford, 541 U.S. at 51, 124 S.Ct. 1354. One can only admire the presence of mind of a 911 caller who feels that way. At all events, that is not what we have here: The district court found that Gordon was "upset to the point that she was having difficulty speaking." Supra at 897.

Nor do statements made by individuals who are overcome by the threat that confronts them bear apt analogy to the types of statements that the Court has deemed to be testimonial in nature. Such emergency calls can hardly be said invariably to amount to "ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354 (quotations and citations omitted).

The majority does not overcome these objections by invoking modern-day dictionary definitions of "testimonial," supra at 903, that equate "testimonial" with "evidence." If the only question in a Confrontation Clause case is whether the government wishes to introduce "evidence," there will be little suspense as to whether the Clause applies and great suspense as to what it means to make a non-testimonial statement. Neither do I understand how this inquiry could turn on whether the 911 caller is "the only witness to the alleged incident." Supra at 903. As in this case, fear frequently will be the emotion that makes it difficult, if not impossible, to say that the 911 caller in a criminal case is making a "solemn declaration or affirmation." Crawford, 541 U.S. at 51, 124 S.Ct. 1354. And that fear generally will increase rather than diminish when the witness is alone. To the extent the number of witnesses to a crime affects this inquiry at all, it seems to me that an isolated individual is more apt to make a non-testimonial statement than an accompanied one.

It is one thing, I realize, to disagree with your colleagues' assessment of an issue; it is quite another to propose an alternative, which in this instance proves that it is far easier to write a Constitution than to interpret one. In my view, this 911 call, and indeed most 911 calls, should be treated as non-testimonial. An emergency call does not naturally satisfy the Court's definitions of "testimonial" evidence — either because it is not a "solemn declaration or affirmation made for the purpose of establishing or proving some fact" in a court of law, id., or because it is not a statement that "declarants would reasonably expect to be used prosecutorially," id. at 51-52,

124 S.Ct. 1354. As in this case, a 911 call generally will be a plea for help, not an effort to establish a record for future prosecution. A 911 call represents a backward-looking response to an emergency that has already occurred or a contemporaneous response to an emergency that is occurring, not a forward-looking statement about a criminal prosecution that may or may not occur. Such calls also bear poor analogies to the kinds of testimonial statements that the Court has said will traditionally qualify — "affidavits, depositions, prior testimony, or confessions," id. at 51-52, 124 S.Ct. 1354. Add to these considerations the following realities — that the call is frequently made in the context of real or perceived emergencies, that the call is frequently answered by operators who are not employed by law enforcement and that when the call is answered by law enforcement personnel that fact is by no means clear to the caller — and it seems to me that the 911 call that qualifies as testimonial evidence will be the exception, not the rule.

While this approach likely will mean that most 911 calls will be admissible, it does not mean that all of them will be admitted. There may well be situations where the 911 call is not far removed from a deliberative statement to investigating officers or where, to borrow a phrase from Professors Friedman and McCormack, it amounts to nothing less than "dial-in testimony." Richard D. Friedman Bridget McCormack, Dial-In Testimony, 150 U. Pa. L.Rev. 1171 (2002). District court judges are well equipped to determine on a case-by-case basis whether such an exception ought to apply, and we are well equipped to ensure that in the general run of cases "dial-in testimony" is not being admitted. To the extent there is doubt in this case about whether Gordon's 911 call should be testimonial, I would have preferred to give the district court an opportunity, so far denied to it, to consider the admissibility of the call in the aftermath of Crawford.

In considering this issue, I cannot resist commenting on the nexus between the "excited utterance" inquiry and the "testimonial" inquiry. When a district court finds that a 911 call "relate[s] to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" — when in other words the trial judge finds that the call qualifies as an excited utterance under Rule 803(2) of the Federal Rules of Evidence — it often would seem to be the case that the call is not testimonial in nature. It is very difficult to imagine a "solemn" excited utterance or even a semi-solemn excited utterance. Any statement that takes on the qualities that the Court has ascribed to the definition of testimonial evidence (a "solemn declaration . . .," Crawford, 541 U.S. at 51, 124 S.Ct. 1354) or to agreed-upon forms of testimonial evidence ("affidavits, depositions, prior testimony, or confessions," id. at 51-52, 124 S.Ct. 1354) would seem to depart from the prerequisites for establishing an excited utterance. To respect the one set of requirements would seem to disrespect the other. In the end, the number of "solemn" statements that also happen to "relate to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" may be something approaching a null set.

While this additional consideration is in tension with Crawford's rejection of the Roberts regime, it is not clear that Crawford makes the inquiry a forbidden one. True, Roberts linked the Confrontation Clause inquiry to whether the testimony was eligible for admission under an accepted hearsay exception. True also, Crawford broke that linkage in concluding that "we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence." 541 U.S. at 61, 124 S.Ct. 1354. But in reaching that conclusion, the Court did so only "[w]here testimonial statements are involved." Id. It never addressed — it had no reason to address — whether the Rules of Evidence could offer insight on whether a statement was "testimonial" or not. Because the very qualities that make a statement an "excited utterance" seem distantly removed from the qualities of "solemn declarations" or statements that "declarants would reasonably expect to be used prosecutorially," it is difficult to believe that the Court meant to preclude lower courts from considering whether the Rule 803(2) factfindings and conclusion bear on whether a statement is testimonial or not. Nor, in contrast to Roberts, will the Rule 803(2) analysis invariably be conclusive. District courts may admit excited utterances under Rule 803(2) that appellate courts should uphold under an abuse-of-discretion standard but that they should not uphold under a Confrontation Clause challenge and the de novo review that accompanies it. In this case, at any rate, I would conclude that the 911 call was not testimonial or at a minimum I would remand the issue to the district court for its consideration in the first instance in the aftermath of Crawford.

Gordon's two other statements — (1) to officers immediately after the 911 call and (2) to officers after Arnold suddenly pulled up next to the police car in which Gordon was sitting. Statements to investigating officers represent a step removed from a 911 call; they will be made consciously to police officers; and in my view they frequently will be testimonial in nature. In contrast to 911 calls, they present a more meaningful analogy to the kinds of statements that the Court has held generally will be testimonial in nature. See, e.g., United States v. Nielsen, 371 F.3d 574, 581 (9th Cir. 2004) (finding statement to an officer during execution of search warrant testimonial); Moody v. State, 277 Ga. 676, 594 S.E.2d 350, 353-54 (2004) (finding victim's statement to investigating officer "shortly after" event testimonial); State v. Bell, 359 N.C. 1, 603 S.E.2d 93, 116 (2004) (finding statement to investigating officer testimonial because it "was made to further [the officer's] investigation of the crime"); Lee v. State, 143 S.W.3d 565 (Tex.App. 2004) (finding statement to officer at scene of incident after declarant was arrested testimonial).

But I would not go so far as to say, as the majority does, supra at 903, that the fact that a statement was made to government officials by itself indicates that the statements were testimonial. That will not always be the case. See Leavitt, 383 F.3d at 830 n. 22 (9th Cir. 2004) (holding that a victim's fearful statements to 911 dispatchers and responding officers were not testimonial); People v. Newland, 6 A.D.3d 330, 775 N.Y.S.2d 308, 309 (N.Y.App.Div. 2004) (finding nontestimonial a brief, informal remark made to an officer conducting a field investigation because no structured police questioning occurred and the interaction bore no resemblance to civil-law abuses against which the Confrontation Clause was written to protect); Hammon v. State, 809 N.E.2d 945, 952 (Ind.Ct.App. 2004) ("[W]hen police arrive at the scene of an incident in response to a request for assistance and begin informally questioning those nearby immediately thereafter in order to determine what has happened, statements given in response thereto are not `testimonial.' Whatever else police `interrogation' might be, we do not believe that word applies to preliminary investigatory questions asked at the scene of a crime shortly after it has occurred.").

In this instance, the factfindings made by the district court in connection with its Rule 803(2) rulings suggest that these two statements represent the exception that proves the rule. In the district court's view, Gordon was "overwhelmed by the facts and circumstances, fearful as a result of the incident, highly excited, very emotional at the time." JA 79-80. While most statements made directly and consciously to investigating officers will be testimonial, the reality that Gordon was still overcome by the threatened assault in this case suggests that they were not "solemn declarations" or statements that "declarants would reasonably expect to be used prosecutorially." I thus either would uphold the admission of both statements as non-testimonial in nature or remand the case to the district court to consider the question in the first instance.

2.

In addition to the question whether these statements were non-testimonial in nature, Crawford heightens the importance of another exception to the Confrontation Clause — the rule of forfeiture by wrongdoing. Under this doctrine, a defendant may not sustain a Confrontation Clause objection if the defendant is responsible for the declarant's unavailability at trial. As we have explained:

Employing either a concept of implicit waiver of confrontation or the principle that a person should not profit by his own wrong, English and American courts have consistently relaxed the hearsay rule when the defendant wrongfully causes the witness's unavailability. The theory of the cases appears to be that the disclosure of relevant information at a public trial is a paramount interest, and any significant interference with that interest, other than by exercising a legal right to object at the trial itself, is a wrongful act. Wrongful conduct obviously includes the use of force and threats, but it has also been held to include persuasion and control by a defendant, the wrongful nondisclosure of information, and a defendant's direction to a witness to exercise the fifth amendment privilege.

Steele v. Taylor, 684 F.2d 1193, 1201 (6th Cir. 1982) (collecting cases, including (1) Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879); (2) Lord Morley's Case, 6 State Trials 770(1666); (3) Harrison's Case, 12 State Trials 851 (1692); and (4) Regina v. Scaife, 117 Rev. Rep. 1271 (Q.B. 1851)); see also Fed.R.Evid. 804(b)(6) (allowing "a statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness") (enacted after Steele).

Our court recently confirmed that the forfeiture doctrine remains alive and well in the aftermath of Crawford, concluding that it applies even if the defendant's wrongdoing was not motivated by an effort to keep an individual off of the witness stand.

There is no requirement that a defendant who prevents a witness from testifying against him through his own wrongdoing only forfeits his right to confront the witness where, in procuring the witness's unavailability, he intended to prevent the witness from testifying. Though the Federal Rules of Evidence may contain such a requirement, see Fed.R.Evid. 804(b)(6), the right secured by the Sixth Amendment does not depend on, in the recent words of the Supreme Court, "the vagaries of the Rules of Evidence." Crawford, 124 S.Ct. at 1370. The Supreme Court's recent affirmation of the "essentially equitable grounds" for the rule of forfeiture strongly suggests that the rule's applicability does not hinge on the wrongdoer's motive. The Defendant, regardless of whether he intended to prevent the witness from testifying against him or not, would benefit through his own wrongdoing if such a witness's statements could not be used against him, which the rule of forfeiture, based on principles of equity, does not permit.

United States v. Garcia-Meza, 403 F.3d 364, 370-71 (6th Cir. 2005).

At Gordon's contempt-of-court hearing for failing to appear to testify, the government introduced evidence suggesting that Gordon's mother, who was Arnold's girlfriend at the time of the assault, pressured Gordon not to testify against Arnold. During the hearing, the government posed the following question: "Ms. Gordon, you have been getting a little bit of pressure prior to the trial in November from family members about — specifically your mother about being involved in all this, is that fair to say?" JA 254. In response, Gordon answered yes. While Gordon later contended that this pressure did not explain her decision not to call the prosecutor's office to report her unavailability to testify, one need not be an incorrigible cynic to question whether Gordon's mother (with Arnold's support) played a role in her daughter's decision not to testify at Arnold's trial. See United States v. Mayes, 512 F.2d 637, 651 (6th Cir. 1975) (holding that the defendant procured the declarant's unavailability when his counsel advised the declarant to invoke his Fifth Amendment right against self-incrimination and there was evidence that the attorney had the interests of the defendant, not the declarant, in mind and concluding that, despite any direct evidence of defendant's own involvement, it "must assume defendant concurred" in his counsel's actions); see also United States v. Potamitis, 739 F.2d 784, 788-89 (2d Cir. 1984) (applying forfeiture doctrine when defendant's father intimidated two witnesses into not appearing for trial).

Nor can the significance of this exception to the Confrontation Clause be overstated in the aftermath of Crawford. A significant percentage of Confrontation Clause disputes have arisen, and sadly are apt to continue to arise, in the context of domestic-abuse and other domestic-disturbance situations, where family members who have prompted a police investigation (usually through a 911 call) later become "unavailable" to testify. In these situations, there is a palpable risk that the same threats of domestic violence that prompted the 911 call were later used to dissuade a family member from testifying. See also Friedman McCormack, supra, at 1174-75; Richard D. Friedman, Confrontation and the Definition of Chutzpa, 31 Isr. L.Rev. 506 (1997).

Under these circumstances and on this scant record, I would remand the case to the district court to hold a hearing on whether Arnold impermissibly played a role in Gordon's decision not to testify. Neither the district court nor the parties in the first instance had a reason to consider the applicability of this exception to the Confrontation Clause. See Reynolds, 98 U.S. at 145 ("[T]he question [of wrongfully procuring witness unavailability] becomes practically one of fact, to be settled as a preliminary to the admission of secondary evidence."); Steele, 684 F.2d at 1201 (citing Reynolds for this proposition). They should be given that opportunity now.

C.

As a final matter of substance, I cannot agree with the majority's sufficiency-of-the evidence ruling. The majority concludes alternatively that all of this is irrelevant because even if all three of Gordon's statements were admissible, there still would be insufficient evidence to sustain Arnold's conviction in this case and accordingly any re-prosecution is barred by double jeopardy. See supra section II.C. This conclusion has no precedent or policy to recommend it.

Arnold challenges the sufficiency of the evidence of just one element of the felon-in-possession-of-a-firearm charge: Did he possess a firearm? If we assume in addressing this argument that all four pieces of evidence were properly admitted, as we must, then a jury plainly could conclude beyond a reasonable doubt that he possessed the gun. After all, Gordon told a 911 caller that Arnold threatened her with a gun; she told the police after they arrived at the crime scene that Arnold "pulled a gun on her" and threatened to kill her with a black handgun; when Arnold suddenly returned to the scene of the crime in a car, Gordon pointed to him and told the police "That's him, that's the guy who pulled a gun on me, Joseph Arnold, that's him," JA 115; then the police found a black handgun under the passenger seat of the car where Arnold was sitting.

Even if virtually every individual in America owned the same type of black handgun found under Arnold's car seat, surely this evidence cumulatively would suffice to show that Arnold possessed a handgun. The first statement, if properly admitted, should suffice by itself to sustain this element of the crime. The second statement and the recovery of the handgun under Arnold's car seat remove any conceivable doubt about the sufficiency of the evidence. And the third statement ("That's him, that's the guy who pulled a gun on me, Joseph Arnold, that's him.") leaves me wondering what else there is to say.

There is one more thing to say: Precedent offers no refuge for the majority's ruling and specifically for its across-the-board conclusion that "uncorroborated, out-of-court statements are insufficient bases on which to sustain a conviction." Supra at 905. If a district court permissibly admits hearsay evidence, that evidence of course may provide the requisite evidence to convict. Not always, of course, but assuredly in some cases, if not most cases. Otherwise, what is the point of admitting it? Just to corroborate the non-hearsay evidence? And surely when three pieces of hearsay evidence, backed up by one piece of non-hearsay evidence, all point unconditionally in the same direction, that evidence cumulatively may support the conviction.

The quartet of cases upon which the majority relies — United States v. Orrico, 599 F.2d 113 (6th Cir. 1979), McKenzie v. Smith, 326 F.3d 721 (6th Cir. 2003), State v. Webb, 779 P.2d 1108 (Utah 1989), and United States v. Bahe, 40 F.Supp.2d 1302 (D.N.M. 1998) — say nothing to the contrary. None of them involves four pieces of corroborating evidence; none of them involves remotely similar facts; and none of them declares that "uncorroborated, out-of-court statements are insufficient bases on which to sustain a conviction." Supra at 905.

Orrico held that "under the circumstances of this case," 599 F.2d at 119, statements admitted as a past recollection recorded, which "barely, if at all, met the minimal requirements of admissibility," id. at 118, were not sufficient to sustain a conviction. While the majority "see[s] no reason that [excited utterances] should be treated differently" from statements admitted as past recollections recorded, supra at 906, it offers no reason why they should be treated the same, and above all it offers no reason why a conviction supported by four pieces of evidence (hearsay and non-hearsay alike) can be meaningfully compared to Orrico. McKenzie held that "given the circumstances" of the excited utterance admitted against the defendant, 326 F.3d at 728, the conviction was not supported by sufficient evidence. Those circumstances, however, have no identifiable parallel to this case. The excited utterance in McKenzie was that of a declarant not competent to testify, who at the time of the statement was three years old, "did not appear normal psychologically" and suffered from an "acutely deranged abnormal condition." Id. Webb likewise held that a one-year-old's out of court statements ("Ow, bum" and "Ow, bum daddy") did not alone prove the mens rea required to establish aggravated sexual abuse. 779 P.2d at 1115.

And in Bahe, the court cautioned that it "has no intention of adopting a per se rule regarding the sufficiency of a prior inconsistent statement to support a conviction, nor will this Court conclude that evidence in this case is insufficient based on a rigid application of such a rule." 40 F.Supp.2d at 1310-11. It then concluded only that the declarant's prior inconsistent statement (that the defendant had abused her) provided insufficient evidence to convict because it conflicted with her live, in-court testimony (that the defendant had not abused her). Id. at 1311.

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 was found under the defendant's car seat suffices to establish that the defendant was guilty of being a felon in possession of a gun.