UNITED STATES of America, Plaintiff-Appellee, v. Joseph ARNOLD, Defendant-Appellant, 486 F.3d 177

SUTTON, J., delivered the opinion of the court, 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 eviden-tiary 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 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 “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 east 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 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”). As in all criminal trials, the jury did not have to draw these inferences. But it reasonably could have reached these conclusions — and when that is the case we must respect the jury’s inferences over our own.

Even if the jury had not drawn these inferences, moreover, Arnold had little to gain from the uncontradieted evidence that remained before the jury. The only other conclusion the jury reasonably could have drawn was that Arnold possessed, cocked and pointed a loaded, black, semiautomatic handgun at Gordon, disposed of it somewhere, got into a car, left and, minutes later, returned to the scene with another black, semiautomatic, loaded weapon with a chambered round stowed beneath his passenger seat.

That is not a traditional defense to a felon-in-possession charge, and it was not the defense that Arnold presented to the jury. Arnold argued that he had never threatened Gordon with a gun, period. JA 226-27 (closing argument). He did not argue that, even if he had threatened Gordon with a gun that morning, he managed successfully to hide that gun, and the gun the officers found directly under his passenger seat later that morning was a different weapon.

Regardless of which arguments Arnold did make and regardless of which arguments he did not make, the critical point is that the jury could have drawn different inferences from this evidence, and our mandate is to affirm when the jury’s choice was a rational one — which it was here. See United States v.

Barnett, 398 F.3d 516, 522 (6th Cir.2005) (affirming felon-in-possession conviction over sufficiency challenge; one officer testified that he saw defendant “holding a long black object that looked like a shotgun” and “that he saw [the defendant] throw the object to the ground as [the defendant] began to flee from the residence”; another officer “testified that upon investigating the residence after [the defendant] was apprehended, she found a black and chrome rifle in the front yard”); United States v. Thomas, 497 F.2d 1149, 1150 (6th Cir.1974); see also United States v.

Daniels, 170 Fed.Appx. 409, 410, 412-13 (6th Cir.2006) (affirming felon-in-possession conviction over sufficiency challenge; one officer testified that he saw defendant throw to the ground a “silver metallic” object, “possibly a handgun or something to that effect”; that officer unsuccessfully attempted to locate the object after the defendant was detained; another officer later searched the area and found a “.25 caliber pistol” matching the first officer’s description).

No doubt the linkage between the evidence would have been even stronger had Gordon described some other unique characteristic of the gun or, better yet, described the gun as “a Hi Point, 9 millimeter.” But Arnold has pointed to no other feature of the gun that Gordon should have recalled, and to his credit Arnold does not argue that the sufficieney-of-the-evidence requirement of the Due Process Clause compels a witness to “make out the name brand of [a] weapon, the model, the model number, [ ]or the gun’s serial number” as an assailant threatens her with it.

See Moore, 208 F.3d at 413 (upholding felon-in-possession conviction even though the witnesses who saw the defendant possess a “large black and silver handgun” did not describe the brand, model, or serial number and noting that the jury could reasonably conclude that the gun the witnesses described and the gun the police recovered “were one and the same”).

Numerous cases hold that evidence not unlike the evidence presented here — eyewitness testimony describing a firearm actually possessed by the defendant that matches a firearm later recovered by the police— sufficiently connects the gun described to the gun found. And indeed most of these cases involve connections far more attenuated than the one here. See, e.g., Barnett, 398 F.3d at 522; Crowe, 291 F.3d at 887; United States v. Black, 525 F.2d 668, 669 (6th Cir.1975); see also United States v. Smith, 79 Fed.Appx. 97, 99 (6th Cir.2003); Whitis v.

United States, No. 94-6333, 1995 WL 462423, at *1, *2, *4, 1995 U.S.App. LEXIS 22308, at *3, *6, *11 (6th Cir. Aug. 3, 1995); United States v. Smith, No. 90-2293, 1991 WL 182634, at *3, 1991 U.S.App. LEXIS 22429, at *7 (6th Cir. Sept. 18,1991). All of this suffices to resolve this aspect of the case.

The defendant was charged with possessing a handgun, and the government proved that he actually possessed the handgun identified in the indictment— based on evidence that the victim saw him threaten her with a handgun minutes before the police discovered a handgun under Arnold’s car seat, one that met the description the victim gave of the gun. The government did not argue at trial that he constructively possessed the gun, and it is quite understandable why: It had no reason to do so.

Yet even if we treat this prosecution as arising under a constructive-possession theory, as the dissent does, that does not help Arnold. “Presence alone ” near a gun, true enough, does not “show the requisite knowledge, power, or intention to exercise control over” the gun to prove constructive possession. United States v. Birmley, 529 F.2d 103, 107-08 (6th Cir. 1976) (emphasis added). But that is not what we have here. Here we have “other incriminating evidence, coupled with presence, ... [that] serve[s] to tip the scale in favor of sufficiency.” Id. at 108.

And that “other incriminating evidence” was incriminating indeed: Minutes before the defendant was found with a handgun under the car seat in which he was riding, he was seen actually possessing a gun matching the description of the one found under his seat — and of course not just possessing it but using it to threaten someone. Nor do the cases cited by the dissent alter this conclusion. In some of the cited cases, the sole connection between the defendant and the gun was the gun’s proximity to the defendant. See Birmley, 529 F.2d at 107; see also United States v. Whitfield, 629 F.2d 136, 143 (D.C.Cir. 1980).

But as we have shown, this is not a case in which the “record [was] devoid of any ... evidence” other than the defendant’s mere presence in a car with a weapon. United States v. Cochran, 14 F.3d 1128, 1133 (6th Cir.1994). In some of the cited cases, the only evidence connecting the defendant to the gun (other than proximity) was that the defendant at some distant point in time and in some other place had possessed a gun — in one instance the defendant possessed a gun “more than two years before the charged ... offense,” United States v.

Hishaw, 235 F.3d 565, 573 (10th Cir.2000), and in another instance the defendant had committed “two offenses involving guns” at some unidentified point in the past, United States v. Kelso, 942 F.2d 680, 682 (9th Cir.1991). Here, however, the defendant threatened the victim with a gun minutes before the police found a gun under his car seat, and that same gun matched the description of the gun the defendant used to threaten the victim. And in some of the cited cases, the proffered evidence connecting the defendant to the gun (aside from proximity) was deemed to be too attenuated. See United States v.

Beverly, 750 F.2d 34, 37 (6th Cir.1984) (evidence showed only that the defendant “was standing close to a waste basket which contained two guns, and that [he] had at some point touched one of the guns”; but the evidence did not show when the guns were placed in the waste basket); United States v. Blue, 957 F.2d 106, 107-08 (4th Cir.1992) (holding that facts “barely” fell short of “supporting] a finding of constructive possession” when officer found gun under passenger defendant’s seat after observing defendant’s “shoulder ... dip as if [he] were reaching under the seat”).

But in both of those cases, the courts emphasized that no eyewitness testimony connected the gun to the defendant—an evidentiary gap that the record in this case closes through the statements of the victim. See Beverly, 750 F.2d at 36 (explaining that government’s evidence did not include testimony from anyone who saw defendant “with a gun in his hand”); Blue, 957 F.2d at 108 (“The government introduced no ... testimony that [defendant] had been seen with the gun.”).

In the final analysis, whether one chooses to look at this verdict as resting on actual possession or constructive possession, the fact remains that it legitimately rests on ample evidence of possession— evidence that requires us to uphold the verdict. III. Arnold also challenges the admissibility of three out-of-court statements—the 911 call, Gordon’s initial statements to police officers upon their arrival at the crime scene and Gordon’s statement to officers upon Arnold’s return to the scene—under the excited-utterance exception to the hearsay rule.

Under Rule 803(2) of the Federal Rules of Evidence, a court may admit out-of-court statements for the truth of the matter asserted when they “relat[e] to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” To satisfy the exception, a party must show three things. “First, there must be an event startling enough to cause nervous excitement. Second, the statement must be made before there is time to contrive or misrepresent.

And, third, 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). All three inquiries bear on “the ultimate question”: “[W]hether the statement was the result of reflective thought or whether it was a spontaneous reaction to the exciting event.” Id. at 1058 (internal quotation marks omitted). We apply abuse-of-discretion review to a district court’s application of the rule. See United States v. Beverly, 369 F.3d 516, 540 (6th Cir.2004). The 911 Call.

Gordon’s statements to the 911 operator readily satisfy the first and third prongs of the test. As to the first requirement, being threatened by a convicted murderer wielding a semi-automatic handgun amounts to a startling event that would prompt at least nervous excitement in the average individual, if not outright trauma. As to the third requirement, Gordon plainly remained in this state of anxiety during the 911 call. Throughout the call, the operator had to tell her to “calm down” and “quit yelling” and often had difficulty understanding her frantic pleas for help.

The record also supports the. district court’s finding that the call took place soon after Arnold threatened Gordon—“slightly more than immediately” after the threat, in the district court’s words—which satisfies the second factor. The district court listened to the tape of the 911 call five times, noted that Gordon said “he’s fixing to shoot me,” not that he “was fixing to shoot me,” JA 52 (emphasis added), and ultimately concluded that there was an immediacy to her statements. Arnold does not challenge the district court’s factual conclusions regarding the meaning of the tape.

Case law supports the view that Gordon made the statement “before there [was] time to contrive or misrepresent.” Haggins, 715 F.2d at 1057. Haggins, for example, upheld the admission of statements by a four-year-old child made more than an hour after the incident but while the child was still suffering the trauma from it. Other cases have upheld the admission of statements that also were made 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 several spousal beatings over a three-day period); see also United States v. McCullough, 150 Fed. Appx. 507, 510 (6th Cir.2005) (applying exception to statements made “not ... longer than two-and-a-half hours” after witnessing companion’s arrest); United States v. Green, 125 Fed.Appx. 659, 662 (6th Cir.2005) (applying exception to statements made three hours after the startling event); see also United States v.

Alexander, 331 F.3d 116, 123 (D.C.Cir.2003) (applying exception to statements made 15 to 20 minutes after the startling event); United States v. Cruz, 156 F.3d 22, 30 (1st Cir.1998) (applying exception to statements made four hours after the startling event); United States v. Tocco, 135 F.3d 116, 128 (2d Cir.1998) (applying exception to statements made within three hours of the startling event). Contrary to Arnold’s suggestion, our cases do not demand a precise showing of the lapse of time between the startling event and the out-of-court statement.

The exception may be based solely on “[tjesti-mony that the declarant still appeared nervous or distraught and that there was a reasonable basis for continuing [to be] emotionally] upset,” Haggins, 715 F.2d at 1058 (internal quotation marks omitted); see United States v. Schreane, 331 F.3d 548, 564 (6th Cir.2003), a conclusion that eliminates an unyielding requirement of a time line showing precisely when 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 (internal quotation marks omitted). The dissent, though not Arnold, raises the concern that the uncorroborated content of an excited utterance should not be permitted by itself to establish the startling nature of an event. But this issue need not detain us because considerable non-hearsay evidence corroborated the anxiety-inducing nature of this event:

(1) Gordon’s act of calling 911; (2) the fear and excitement exhibited by the tenor and tone of Gordon’s voice during the 911 call;

(3) Gordon’s distraught demeanor personally observed by Officers Brandon and Newberry upon their arrival at the scene;

(4) Gordon’s renewed excitement upon seeing Arnold return; and (5) the gun matching Gordon’s description found underneath the passenger seat in which Arnold was sitting. This dispute, in short, is not one of the “very few cases” in which this “knotty theoretical problem” has raised its head.

See 2 McCormick on Evidence § 272 (6th ed. 2006) (“Fortunately, only a very few cases need actually confront th[e] knotty theoretical problem [of whether independent corroborating evidence of startling events is necessary] if the courts view what constitutes independent evidence broadly, as they should where the circumstances and content of the statement indicate trustworthiness.”) (internal footnote omitted). Gordon’s statement to officers upon their arrival at the scene.

When the officers arrived at the scene soon after learning of the 911 call, Gordon exited her car and approached the officers, “crying,” “hysterical,” “visibly shaken and upset,” and exclaimed that Arnold had threatened her with a gun. JA 112-14. For many of the same reasons the district court had authority to admit the 911 call, it had authority to admit this statement. It remained the case that a startling event had occurred.

The time that had passed between the end of the 911 call and the officers’ arrival on the scene — 5 to 21 minutes, based on the officers’ testimony that the dispatch contacted them “about 8:00” or “a little bit before 8:00,” JA 71,112, 139, (meaning the dispatch could have occurred any time between the end of the 911 call at 7:45 and 8:00) and that they arrived five to six minutes later' — did not give Gordon sufficient time to misrepresent what had happened.

See Alexander, 331 F.3d at 123 (“Considering the nature of the startling occurrence — Alexander allegedly had a gun and threatened both to ‘do something’ to [declarant] and to ‘mess [up]’ her apartment — the passage of 15 to 20 minutes hardly suggests that the district court abused its discretion in admitting the 911 call.”). And as shown by Gordon’s frantic statements to the officers upon their arrival, she remained visibly agitated by Arnold’s threat. The court did not abuse its discretion in admitting the statement. Gordon’s statement to officers when Arnold pulled up next to the police car.

Soon after the officers’ arrival, which is to say from 30 seconds to 5 minutes after they reached the scene, 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 an excited utterance. “[T]hat’s him,” she said, “that’s the guy who pulled a gun on me, Joseph Arnold, that’s him.” JA 115. The district court permissibly admitted this statement as part of the same emotional trauma that captured Gordon’s earlier statement to the officers.

On top of that, the unexpected appearance of the victim’s assailant independently suffices to establish a startling event followed by an understandably excited verbal response. See Beverly, 369 F.3d at 540; cf. United States v. Scott, 69 Fed.Appx. 317, 321 (6th Cir.2003); United States v. Taylor, No. 92-5120, 1992 WL 322369, at *1, 1992 U.S.App. LEXIS 29048, at *3 (6th Cir. Nov. 5, 1992). The district court did not abuse its discretion in admitting the statement. The dissent’s view of the excited-utterance question prompts a few responses.

First, the dissent, though not Arnold, contends that the district court failed to place the burden of proof on the government. Yet the district court, in making this ruling, concluded that “the elements to allow the exception have been demonstrated by the government.” JA 79. And we, too, have placed the burden on the government. See supra at 184 (noting that, to qualify a statement as an excited utterance, “a party must show three things”).

Second, the dissent claims that, instead of saying “he’s fixing to shoot me,” Gordon said “he finna shoot me,” Dissent at 210, thereby eliminating the “’s” between he and finna (which the dissent finds to be a slang term for “fixing to”). But Arnold has not challenged the district court’s factual determination that Gordon told the 911 operator “he’s fixing to shoot me,” and accordingly this issue is not properly before us.

Nor, at any rate, is it clearly the case, or even somewhat clearly the case, that the dissent properly interprets the tape — given the rapidity and anxiety with which Gordon spoke during the 911 call. This difficulty reinforces not only our decision to defer to the district court’s

interpretation of the tape but also our decision that indeed it was an excited utterance. See Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). IV. A. At trial, Arnold also challenged the admissibility of these three statements under the Confrontation Clause of the Sixth Amendment.

Quite understandably then, quite wrongly now, the district court rejected these challenges on the ground that the applicability of a traditional hearsay exception to each statement (in this instance, the excited-utterance exception) 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). In light of the Supreme Court’s intervening decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that is no longer an accurate mode of analysis. See id. at 61, 124 S.Ct. 1354.

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 subjected to “witnesses against him,” U.S. Const, amend. VI, the defendant generally has 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.

The Confrontation Clause, Crawford thus establishes, bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” 541 U.S. at 53-54, 124 S.Ct. 1354 (emphasis added). In announcing this rule, Crawford chose not to provide a “comprehensive” definition of “testimonial” hearsay, id. at 68, 124 S.Ct. 1354, but it did offer initial guidance on the meaning of the term.

The Court explained that “testimony” involves “‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” Id. at 51, 124 S.Ct. 1354 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). And it explained that testimonial hearsay at a minimum includes “a formal statement to government officers” by “[a]n accuser” in the form of an affidavit, a deposition, prior testimony or the like. Id. at 51-52, 124 S.Ct. 1354.

While these initial explanations sufficed to resolve Crawford, which involved statements made during a station-house interrogation, the Court reviewed two consolidated cases last Term that required it to give further definition to the line between testimonial and nontestimonial hearsay. See Davis v. Washington, - U.S.-, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). “Statements are nontestimonial,” Davis explained, “when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.

They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id. at 2273-74.

Davis applied this definition to two recurring types of witness statements: statements to 911 operators and statements to the police at the scene of the crime. “A 911 call ... and at least the initial interrogation conducted in connection with a 911 call,” the Court held, “is ordinarily not designed primarily to ‘establis[hj or prov[e]’ some past fact, but to describe current circumstances requiring police assistance.” Id. at 2276. In reaching this conclusion, the Court noted four distinctions between the 911 call before it and the interrogation at issue in Crawford.

The accuser, Michelle McCottry, “was speaking about events as they were actually happening," not describing events “hours” after they occurred. Id. “[A]ny reasonable listener would recognize that McCottry (unlike Sylvia Crawford) was facing an ongoing emergency,” prompting her to make “a call for help against bona fide physical threat.” Id. “[T]he nature of what was asked and answered in Davis ” demonstrated that “the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past.” Id.

And there was a “striking” “difference in the level of formality” of the two statements, with Crawford “responding calmly” at the police station to the officer’s questions and the officer taking notes about the answers while “McCottry’s frantic answers were provided over the phone, in an environment that was not tranquil, or even ... safe.” Id. at 2276-77. “[T]he circumstances of McCottry’s interrogation,” the Court concluded, “objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency.” Id. at 2277. She thus “was not acting as a witness; she was not testifying.” Id.

The Court acknowledged that an interrogation that begins as a plea for help may turn into testimony once the emergency purposes of the 911 call have been satisfied. Id. The Court reached a different conclusion in the second case, which also stemmed from a domestic dispute and which concerned Amy Hammon’s statements to investigating police officers at her home after the police responded to a “reported domestic disturbance.” Id. at 2272 (internal quotation marks omitted).

The characterization of these statements was “much easier” to resolve, the Court- held, because they “were not much different” from the statements in Crawford. Id. at 2278.

The interrogation arose from “an investigation into possibly criminal past conduct”; “[tjhere was no emergency in progress”; Hammon told the officers when they arrived that “things were fine”; when an officer eventually questioned Hammon a second time and elicited the challenged statements, “he was not seeking to determine ... ‘what is happening,’ but rather ‘what happened’ ”; the police separated Hammon from her husband during the interview and prohibited him from intervening; and the interview “took place some time after the events described were over.” Id.

Under these circumstances, the Court held, Hammon’s answers to the officers’ questions amounted to testimonial statements. In reaching this conclusion, the Court rejected the theory “that virtually any ‘initial inquiries’ at the crime scene” will be nontestimonial. Id. at 2279. At the same time, it cautioned, it was not “holding] the opposite — that no questions at the scene will yield nontestimonial answers.

We have already observed of domestic disputes that officers called to investigate ... need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.” Id. (internal quotation marks and brackets omitted). “Such exigencies,” the Court added, “may often mean that ‘initial inquiries’ produce non-testimonial statements.

But in cases like this one, where [Hammon’s] statements were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were ‘initial inquiries’ is immaterial.” Id. As Davis’s assessment of the 911 call and the on-the-scene statements indicates, the line between testimonial and nontestimonial statements will not always be clear.

Even if bona fide 911 calls frequently will contain at least some nontesti-monial statements (assuming the emergency is real and the threat ongoing) and even if a victim’s statements to police at the scene of the crime frequently will contain testimonial statements (assuming the emergency has dissipated), that will not always be the case, and difficult boundary disputes will continue to emerge. Each victim statement thus must be assessed on its own terms and in its own context to determine on which side of the line it falls. 1. The 911 Call.

Gordon’s statements to the 911 emergency operator offer a close analogy to McCottry’s statements in Davis. As in Davis, we assume for the sake of argument that the inquiries of the 911 operator amount to “acts of the police.” 126 S.Ct. at 2274 n. 2. And as in Davis, we do not doubt that Gordon sought protection from an ongoing emergency. When Gordon fled from her gun-wielding assailant, the defendant remained at large and remained (in the present tense) “fixing to shoot” her.

See id. at 2276 (“McCottry was speaking about events as they were actually happening, rather than describing past events.”) (internal quotation marks and brackets omitted). The tape of the 911 call itself makes clear that Gordon had made “a call for help against [a] bona fide physical threat.” Id. The 911 operator’s handling of the call shows that she was trying to “elicitf ] statements ... necessary to be able to resolve the present emergency,” id. (emphasis omitted), by attempting to compose Gordon and by seeking to understand the gravity of the peril she faced.

Gordon’s frantic responses “were provided over the phone, in an environment that was not tranquil, or even ... safe” because she had just left the house and had no reason to know whether Arnold was following her or not. Id. at 2277. The fear that the district court noted in Gordon’s voice communicated that she was scarcely concerned with testifying to anything but simply was seeking protection from a man with a gun who had killed before and who had threatened to kill again.

The primary purpose and effect of the 911 operator’s questioning was to resolve the crisis, with the questions and answers coming in spite of, not because of, the possibility of a later criminal trial. Nor had the “exigency of the moment ... ended,” id. at 2277, before Gordon made the 911 call. While Gordon left the house and entered her car around the corner before making the 911 call rather than trying to make the call in Arnold’s presence, that did not make the emergency less real or less pressing.

It is one thing for the assailant to start “runnin[g]” after his victim calls 911, to leave in a car and to give the victim an opportunity to lock the door, all of which happened in Davis and all of which suggested that the responses to the 911 operator may have evolved into testimonial hearsay. Id. at 2271, 2277. It is another thing for the victim to flee the house and for the assailant still to be “fixing to shoot” her.

In Davis, the assailant left the scene in a car because he knew the police were on their way, and there thus was no reason to think that he would be back — factors that markedly diminished the peril the victim faced. Gordon by contrast left the residence, went around the corner and called the police. At the time she made the call, she had no reason to know whether Arnold had stayed in the residence or was following her. What she did know is that he had a gun; he had just threatened her; he was still in the vicinity; there was still “somebody runnin’ around with a gun” nearby, United States v.

Thomas, 453 F.3d 838, 844 (7th Cir.2006) (internal quotation marks omitted); there was in short an “emergency in progress,” Davis, 126 S.Ct. at 2278. Nor need we consider whether the 911 call evolved into testimonial hearsay over the course of its nearly two-minute duration. Arnold makes no such argument; he contends only that the entire call should have been suppressed because the exigency had dissipated before the call began. 2. Gordon’s statement to officers upon their arrival at the crime scene.

While it may often be the case that on-the-scene statements in response to officers’ questions will be testimonial because the presence of the officers will alleviate the emergency, this is not one of those cases. Neither the brief interval of time after the 911 call nor the arrival of the officers ended the emergency. Arnold remained at large; he did not know that Gordon had called 911; and for all Gordon (or the officers) knew Arnold remained armed and in the residence immediately in front of them or at least in the nearby vicinity.

The exchange between Gordon and the officers also suggests that the officers primarily were focused on meeting the emergency at hand, not on preparing a case for trial. As soon as the police arrived and before they had a chance to ask her a question, Gordon exited her car, “walked towards [them], ... crying and ... screaming, [and] said Joseph Arnold pulled a gun on her, [and] said he was going to kill her.” JA 114. The officers tried to “tell[ ] her to gather herself and [to] slow down.” JA 115.

While the fact that Gordon’s initial statement was unprompted and thus not in response to police interrogation does not by itself answer the inquiry, Davis, 126 S.Ct. at 2274 n. 1, this reality at least suggests that the statement was nontesti-monial. So, too, does the distress that the officers described in her voice, the present tense of the emergency, the officers’ efforts to calm her and the targeted questioning of the officers as to the nature of the threat, all of which suggested that the engagement had not reached the stage of a retrospective inquiry into an emergency gone by.

No reasonable officer could arrive at a scene while the victim was still “screaming” and “crying” about a recent threat to her life by an individual who had a gun and who was likely still in the vicinity without perceiving that an emergency still existed. And nothing that Gordon told them, and certainly nothing about the way she told it to them, would have allayed concerns of a continuing threat to Gordon and the public safety, to say nothing of officer safety.

During the few moments the officers spoke to Gordon, moreover, the primary purpose, measured objectively, of the question they asked her — for “a description of the gun,” JA 133 — was to avert the crisis at hand, not to develop a backward-looking record of the crime. Contrary to the contention of the partial dissent, this question did not transform the encounter into a testimonial interrogation. Asking the victim to describe the gun represented one way of exploring the authenticity of her claim, one way in other words of determining whether the emergency was real.

And having learned who the suspect was and having learned that he was armed, they surely were permitted to determine what kind of weapon he was carrying and whether it was loaded — information that has more to do with preempting the commission of future crimes than with worrying about the prosecution of completed ones. What officers would not want this information — either to measure the threat to the public or to measure the threat to themselves?

Cf Davis, 126 S.Ct. at 2276 (911 operator’s questions regarding assailant’s identity objectively aimed at addressing emergency because “the dispatched officers might” then “know whether they would be encountering a violent felon”). And what officer under these circumstances would have yielded to the prosecutor’s concern of building a case for trial rather than to law enforcement’s first and most pressing impulse of protecting the individual from danger? Nor does the fact that Gordon made her statement to investigating police officers on the scene by itself establish that -it was testimonial.

Davis disclaimed creating any such rule. 126 S.Ct. at 2279. Officers investigating domestic disputes, it observed, “need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.... Such exigencies may often mean that initial inquiries produce nontestimonial statements.” Id. (internal quotation marks, brackets and emphasis omitted). Gordon’s statements also stand in marked contrast to Amy Hammon’s on-the-spot testimonial statements in Davis.

Here, by all accounts, the officers sought only to bring initial calm to the situation (by reassuring the victim) and to understand the threat to the public and their own safety (by learning that Arnold had a loaded semiautomatic handgun). To the extent they made inquiries at all, they never strayed from asking questions clarifying the extent of the emergency and obtaining information necessary to resolve it.

Hammon in comparison told the arriving officers that “things were fine ... and there was no immediate threat to her person”; she spoke with officers while “actively separated from the defendant” who had been detained and was with other officers in a different room; she “deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed”; and then she summarized all of this in an affidavit for the officers. Id. at 2278. The ongoing-emergency questioning in the former offers a poor analogy to the structured, distress-free questioning in the latter. 3.

Gordon’s statement to officers when Arnold suddenly returned to the scene. Gordon’s statement to the officers when Arnold returned to the scene bears even less resemblance to testimony than her initial statement to the officers. Her exclamation — “that’s him, that’s the guy that pulled the gun on me” — was prompted not by ex parte questioning by the officers but by Arnold’s sudden reappearance.

When she not only described Arnold as her assailant but also added that “he’s got a gun on him,” JA 116, no one can doubt that Gordon and the officers faced a risky situation or that Gordon sought to obtain their protection. This was not a statement prepared for court. “No ‘witness,’ ” after all, “goes into court to proclaim an emergency and seek help.” Davis, 126 S.Ct. at 2277. The statement thus “was not ‘a weaker substitute for live testimony’ at trial,” id. (quoting United States v.

Inadi, 475 U.S. 387, 394, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986)), but had independent evidentiary value separate and apart from any “courtroom analogue[ ],” id. It was nontestimo-nial. As with the district court’s evidentiary ruling, the dissent questions whether the district court allocated the burden of proof to the government on the Confrontation Clause issue. Arnold again has not raised the issue, and accordingly he has waived it. The point does not, in any event, have traction.

As the above analysis reveals, the government has met its burden of proving that Gordon’s statements to the 911 operator and at the scene were nontes-timonial. Noting that Gordon used “past tense” verbs at several points during the 911 call, the dissent contends that there was no longer an ongoing emergency when Gordon made the 911 call and when the officers arrived on the scene.

But the entire 911 conversation begins with, and takes place in the context of, a present-tense plea for help: “I need police.” Gordon’s “past tense” statements described discrete facts contributing to what, from an objective perspective, constituted an ongoing emergency requiring police protection. It does not improve matters to characterize Gordon’s statement as “he finna shoot me.” Even if “finna ... connotéis] future action,” as the dissent suggests, Dissent at 210 n. 8, it was the future action of Arnold shooting her that Gordon desperately sought to avoid.

Doubtless, “heavy breathing,” “footsteps pounding the pavement,” and the like, Dissent at 215, would make our work easier. But these are not irreducible mínimums of an ongoing emergency. Her 911 call, her frantic behavior during and after the call and the nature of the threat (a gun-wielding assailant who had just been released from jail after a murder conviction, who was “fixing to shoot” her and who was still in the area) all sufficed to show that Gordon had every reason to fear for her safety.

Nor, once the officers arrived, is it the case that Gordon did nothing “consistent with an ongoing emergency.” Dissent at 215. That she rushed up to the officers and was so upset that she initially “couldn’t speak,” JA 73, surely bespeaks the conduct of one who feels threatened— and who could blame her under the circumstances? And by remaining near the house, she hardly showed otherwise.

She called 911 after she got out of the house, and the 911 operator told her that the officers “would be over there as soon as they can” and to “be watching for them.” Staying near the house thus offered the quickest route to making contact with the officers. And staying near her car at the same time gave her an immediate-departure option if Arnold found her before the officers did. B. That leaves a follow-up question: While the Confrontation Clause plainly restricts the admission of testimonial statements, does it continue to place any restrictions on the admission of nontestimonial statements?

Crawford left the question open, 541 U.S. at 61, 124 S.Ct. 1354, and in the absence of direction from the Court we have continued to apply the Roberts test to these types of statements since Crawford, see, e.g., United States v. Johnson, 440 F.3d 832, 843-44 (6th Cir.2006); United States v. Franklin, 415 F.3d 537, 546 (6th Cir.2005); United States v. Gibson, 409 F.3d 325, 338 (6th Cir.2005). Davis answers the question.

The Confrontation Clause, Davis explains, is “solely concerned with testimonial hearsay,” 126 S.Ct. at 2274 (internal quotation marks omitted), meaning that the only admissibility question in this setting is whether the statement satisfies the Federal (or State) Rules of Evidence. See id. (noting that the Confrontation Clause’s “focus on testimonial hearsay” “must fairly be said to mark out not merely its ‘core,’ but its perimeter”) (internal quotation marks and brackets omitted); see also Whorton v.

Bockting, - U.S. -, 127 S.Ct. 1173, 1183, 167 L.Ed.2d 1 (2007) (“[T]he Confrontation Clause has no application” to “out-of-court nontestimonial statement[s].”). Because we have concluded that these three statements were nontesti-monial and because Arnold has not shown that the admission of the statements violated the Federal Rules of Evidence, the district court properly permitted the jury to consider them. V.

Arnold lastly argues that the district court committed reversible error by refusing to admit the statement of a private investigator hired by Arnold in which Gordon told the investigator, eight months after the incident, that in counsel’s words “she never saw [Arnold] with a gun that day.” JA 67. We disagree. At the beginning of the trial, Arnold’s lawyer told the district court that he wished to put the private investigator on the stand to introduce statements, including an affidavit signed by Gordon, to the jury.

In response, the district court told Arnold’s counsel that the proposed evidence was “just hearsay.” Id.

In reply, Arnold’s counsel did not argue generally that an exception to the hearsay rule applied; he did not argue specifically that Rule 806 of the Federal Rules of Evidence permitted the introduction of the evidence, not for the truth of the matter asserted, but for impeachment purposes; and at one point, in response to one of the court’s statements that it was “just hearsay,” Arnold’s lawyer merely said, “I’m just laying it out there for your consideration on the front end, so we don’t go down this path and take valuable time” later on. Id.

On this record, Arnold’s lawyer did not preserve the objection that Rule 806 permits the introduction of the evidence for impeachment purposes. When a trial court refuses to admit evidence on hearsay grounds, counsel must explain whether a hearsay exception applies — here, for example, by pointing to Rule 806 or by stating that the evidence is offered for impeachment purposes — in order to preserve the issue for appeal. Otherwise, the district court has no opportunity to consider the meaning of the exception and no opportunity to address its applicability. Plain-error review thus applies.

Fed.R.Evid. 103(a)(2), 103(d); see, e.g., United States v. Seymour, 468 F.3d 378, 387 (6th Cir.2006) (applying plain-error review to exclusion of evidence because alleged ground for admission was not raised below); United States v. Humphrey, 279 F.3d 372, 377-78 (6th Cir.2002) (applying plain-error review to excluded hearsay evidence that allegedly “could have been admitted as a business record” because “defense counsel did not raise this specific exception at trial”); United States v.

Phillips, 888 F.2d 38, 41 (6th Cir.1989) (applying plain-error review to excluded evidence because the ground for admissibility (bias) was not raised below); United States v. Millen, 594 F.2d 1085, 1088 (6th Cir.1979) (“In the face of the government’s complete failure to present to the District Court a reasoned argument for the admissibility of this evidence ... we decline to speculate about grounds for admissibility .... ”); cf. Barrier v. Pilkington N.

Am., Inc., 399 F.3d 745, 748-49 (6th Cir.2005) (holding that offer of evidence failed to satisfy Rule 103(a)(2) because when the trial court excluded the evidence on hearsay grounds, the attorney did not “argue that the evidence should be admitted under Rule 801(d)(2)(

D) of the Federal Rules of Evidence as statements made by the employees against the interests of Pilkington and within the scope of their employment, which is the plaintiffs’ new position on appeal”). To show plain error, a defendant must establish the following: “(1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (internal quotation marks and brackets omitted).

If these three conditions are met, “an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. Arnold satisfies the first and second prongs of the plain-error test. As the government acknowledges, Rule 806 permits the introduction of this statement for impeachment purposes (though not for its truth), and the error is plain. See U.S. Supp. Br. at 51-52; Fed.R.Evid. 806.

We need not decide whether the evidence satisfies the third prong of the plain-error test because it does not satisfy the fourth prong. At issue are two pieces of evidence: an affidavit signed by Gordon and witnessed by Arnold’s private investigator and an oral statement made by Gordon to Arnold’s private investigator.

While both pieces of evidence apparently are to the effect that Gordon “never saw Arnold with a gun that day” (we say “apparently” because the affidavit was never entered into evidence, though the government concedes that it says as much), their exclusion did not “seriously affect[ ] the fairness, integrity, or public reputation” of the proceedings in this case. Cotton, 535 U.S. at 631, 122 S.Ct. 1781. After the trial, Gordon faced a contempt action for failing to appear in court in response to a government subpoena on the first day of Arnold’s trial.

The record from the contempt hearing, which is included as part of the record in this case, shows that Arnold’s private investigator spoke to Gordon and obtained the affidavit eight months after Arnold’s arrest. At the contempt hearing, which occurred two-and-a-half months after the trial, Gordon testified under oath that she was “positive,” JA 261, and “absolutely sure,” JA 245, that she saw Arnold with a gun.

Acknowledging that she said something else when she met with Arnold’s private investigator, she explained that the statements to Arnold’s investigator were the product of “pressure,” namely pressure from her mom “telling me it wasn’t” a gun that her boyfriend (Arnold) was holding. JA 273.

That Gordon thrice told the police that Arnold possessed a gun, that she made these statements when she had no time to contrive, that the police found a gun under the seat of the car in which Arnold was sitting, that she made a different statement eight months later only after pressure from her mother and that she eventually retracted even that statement under oath at the contempt hearing, all show that the exclusion of the testimony of Arnold’s private investigator was not the kind of “particularly egregious” mistake that would justify a finding of plain error. United States v.

Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (internal quotation marks omitted). Brief responses to the partial dissent and the dissent on this point are in order. The partial dissent concludes that we need not reach the issue because the defense never formally proffered the investigator as a witness. That may be true. But the government did not make this argument on appeal, and it seems odd to hold the defendant responsible for one procedural mistake (not making a formal proffer) when the government has made an equally serious procedural mistake (not challenging the absence of a formal proffer).

The dissent questions whether our cases require more of counsel in proposing evidence than Evidence Rule 103(a)(2) requires. The point may be an interesting one but is best left for resolution in another case. As this appeal comes to the court, the parties have argued the case in the context of satisfying the requirements of our cases, not in the context of overruling those cases.

As we read those prior decisions, moreover, they do not require the proponent of evidence to base a proffer upon a specific rule of evidence; they require the proponent only to inform the trial court why the proposed evidence should be admitted — so, for example, had Arnold’s counsel explained that the investigator’s testimony should be admitted to impeach Gordon, that would have sufficed. Nor have we been able to find any cases— from any circuit court — concluding that the only requirement for preserving error in this setting is to identify the content of the proposed evidence.

At the same time, numerous cases from other circuits embrace our modest requirement that the proponent explain why the evidence “should be admitted.” United States v. Scott, 48 F.3d 1389, 1397 (5th Cir.1995) (“Excluded evidence is sufficiently preserved for review when the trial court has been informed as to what counsel intends to show by the evidence and why it should be admitted.”) (internal quotation marks omitted); see also, e.g., United States v.

Moore, 425 F.3d 1061, 1068 (7th Cir.2005) (“Although this circuit does not require litigants to make formal offers of proof when evidence is excluded, the record must show the equivalent: grounds for admissibility, the proponent must inform the court and opposing counsel what he expects to prove by the excluded evidence, and he must demonstrate the significance of the excluded testimony.”) (internal quotation marks omitted); Polys v. Trans-Colorado Airlines, Inc., 941 F.2d 1404, 1407 (10th Cir.1991) (“[Mjerely telling the court the content of proposed testimony is not an offer of proof.

Rather, ... the proponent must explain what it expects to show and the grounds for which the party believes the evidence to be admissible so that the trial court is on notice of the purpose for which the evidence is offered while there is still time to remedy the situation.”) (internal quotation marks, brackets and ellipses omitted). It also remains unclear whether Evidence Rule 103 operates by itself in this situation. In Beech Aircraft Corp. v.

Rainey, 488 U.S. 153, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988), the Court reasoned that Rule 103(a)(2) and Civil Rule 46 work together to require offers of proof to make apparent not only the content of the evidence but also the grounds for its admission. Id. at 174, 109 S.Ct. 439; see also Kasper v. Saint Mary of Nazareth Hosp., 135 F.3d 1170, 1175-76 (7th Cir.1998) (The proponent “must, however, not only make clear to the judge what the evidence is that he wants to present, Fed.R.Evid. 103(a)(2), but also his ground ... for believing that the evidence should be admitted. Fed. R.Civ.P. 46.”).

Criminal Rule 51 mirrors Civil Rule 46, see Fed.R.Crim.P. 51 advisory committee’s note 1 (“This rule is practically identical with” Civil Rule 46 and it addresses “a matter of trial practice which should be the same in civil and criminal cases in the interest of avoiding confusion.”), and courts have embraced similar reasoning in the criminal context, see United States v. Muniz, 684 F.2d 634, 640 (9th Cir.1982) (“Federal Rule of Criminal Procedure 51 requires a party to state the specific grounds upon which the evidence is admissible.”); United States v.

Fredericks, 599 F.2d 262, 264 (8th Cir.1979) (“Federal Rule of Criminal Procedure 51 requires a party to make known to the trial court the specific grounds upon which the admissibility of evidence is urged.”); see also 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence 2d § 5040, at 882 (2005) (“[I]n considering the elements of an offer of proof, we shall consider not only the language of Rule 103(a)(2) but the implications of Civil Rule 46 and Criminal Rule 51.”). The one case cited by the dissent, United States v.

Ganier, 468 F.3d 920, 924 (6th Cir.2006), does not alter this conclusion. There, in contrast to this ease, no one indicated “that the proposed testimony was not admissible under the Federal Rules of Evidence,” id. at 925, as the trial judge did here. And there, in contrast to this case, “the government adequately made the grounds for admissibility known to the court simply by arguing that it should not be excluded for failure to comply with” the one ground for exclusion identified at trial — Federal Rule of Criminal Procedure 16(a)(1)(G). Id. (emphasis added).

Lastly, while the dissent’s observation about the interplay between Federal Rules of Evidence 103(a)(1) and 103(a)(2) may deserve consideration at some point, now is not the time and this is not the case. The issue has not been joined by the parties, and no appellate court to our knowledge has embraced the argument. VI. For these reasons, we affirm.