FILED
UNITED STATES COURT OF APPEALS
NOV 20 2018
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 16-10005
16-10328
Plaintiff-Appellee,
D.C. No.
v. 2:14-cr-00848-SPL-1
District of Arizona,
ELIJAH LOREN ARTHUR, SR., aka Phoenix
Elijah Loren Arthur,
Defendant-Appellant. ORDER
Before: SCHROEDER, SILER,* and GRABER, Circuit Judges.
The memorandum disposition filed on September 21, 2018, is amended by
the memorandum disposition filed concurrently with this order, as follows:
On page 4, lines 14–20, change “Id. (quoting . . . .” to:
Id. (quoting Descamps v. United States, 570 U.S. 254, 257 (2013)).
Arthur’s claim that the first-degree murder statute is not categorically
a crime of violence is foreclosed by circuit precedent. See United
States v. Studhorse, 883 F.3d 1198, 1205–06 (9th Cir. 2018) (holding
that attempted first-degree murder is categorically a crime of
violence). See also United States v. Calvillo-Palacios, 860 F.3d 1285,
1291 (9th Cir. 2017) (holding that aggravated assault is categorically a
crime of violence because it requires as an element serious bodily
injury, which necessarily requires violent physical force); Arellano
Hernandez v. Lynch, 831 F.3d 1127, 1131 (9th Cir. 2016) (same as to
a threat of death or great bodily injury). Thus, the district court did
*
The Honorable Eugene E. Siler, Circuit Judge for the U.S. Court of
Appeals for the Sixth Circuit, sitting by designation.
not err by determining that first-degree murder is a crime of violence
for purposes of Arthur’s conviction and the restitution he was ordered
to pay.
With this amendment, Appellant’s petition for panel rehearing is DENIED.
No further petitions for panel rehearing or rehearing en banc may be filed.
2
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 16-10005
16-10328
Plaintiff-Appellee,
D.C. No. 2:14-cr-00848-SPL-1
v.
AMENDED MEMORANDUM*
ELIJAH LOREN ARTHUR, SR., aka
Elijah Loren Arthur,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Arizona
Stephen P. Logan, District Judge, Presiding
Argued and Submitted August 16, 2018
San Francisco, California
Before: SCHROEDER, SILER,** and GRABER, Circuit Judges.
In these criminal appeals, Elijah Arthur challenges his conviction for first-
degree murder and using a firearm during and in relation to a crime of violence and
challenges his order of restitution. Arthur shot and killed a tribal police officer. The
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
shooting was captured on camera, so the only material issue at trial was whether
Arthur acted with premeditation.
1. The district court did not abuse its discretion by refusing to declare a
mistrial or hold an evidentiary hearing regarding the presence in the courtroom of
law enforcement agents who displayed official “STATE GANG FORCE” logos to
the jury. See United States v. Ubaldo, 859 F.3d 690, 700 (9th Cir. 2017) (stating
standard of review), cert. denied, 138 S. Ct. 704 (2018). The district court did not
abuse its discretion by concluding that the officers’ clothing did not “pose[] a serious
and imminent threat to a fair trial.” Norris v. Risley, 878 F.2d 1178, 1180–81 (9th
Cir. 1989). Similarly, the district court did not abuse its discretion by weighing the
factors in United States v. Navarro-Garcia, 926 F.2d 818, 822 (9th Cir. 1991), and
concluding that an evidentiary hearing was not warranted.
2. The district court also did not abuse its discretion by admitting, over
Arthur’s objection under Federal Rule of Evidence 403, a recording of a prison
telephone call that took place three months after the shooting. See United States v.
Hagege, 437 F.3d 943, 956 (9th Cir. 2006) (stating standard of review). As we have
explained, “[t]hat evidence may decimate an opponent’s case is no ground for its
exclusion under 403.” United States v. Cruz-Garcia, 344 F.3d 951, 956 (9th Cir.
2003). “The rule excludes only evidence where the prejudice is ‘unfair’—that is,
based on something other than its persuasive weight.” Id.
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3. The district court’s finding that Arthur knowingly and intelligently waived
his Miranda rights was not clearly erroneous. See United States v. Garibay, 143
F.3d 534, 536 (9th Cir. 1998) (stating standard of review). “For inculpatory
statements made by a defendant during custodial interrogation to be admissible in
evidence, the defendant’s waiver of Miranda rights must be voluntary, knowing, and
intelligent.” Id. at 536 (italics added; internal quotation marks omitted). In all the
circumstances, both of Arthur’s Miranda waivers—first when questioned by a police
officer and second when questioned by the FBI—were voluntary. United States v.
Rodriquez-Preciado, 399 F.3d 1118, 1127–28 (9th Cir. 2005). Concerning the
second waiver, although Arthur contends that the agents erred by not re-reading him
his Miranda rights, “[a] rewarning is not required simply because there is a break in
questioning.” Guam v. Dela Pena, 72 F.3d 767, 769–70 (9th Cir. 1995).
Likewise, the district court’s finding that Arthur’s statements, made after his
valid waivers, were voluntary, which we review de novo, Rodriquez-Preciado, 399
F.3d at 1127, was not erroneous. Here, we consider “whether a defendant’s will was
overborne by the circumstances surrounding the giving of a confession.” Dickerson
v. United States, 530 U.S. 428, 434 (2000) (internal quotation marks omitted).
Nothing in this record suggests that any tactics used by the officers or agents were
coercive or overpowered Arthur’s will in either interrogation. Thus, the district court
did not err by denying Arthur’s motion to suppress.
3 16-10005/10328
4. Arthur’s claim about the duplicity of his indictment also fails. Although
the indictment in this case included the extra word “possessed,” that word is properly
considered surplusage and was unnecessary for the government to prove. Bargas v.
Burns, 179 F.3d 1207, 1216 n.6 (9th Cir. 1999). Additionally, as Arthur
acknowledges, his claim is precluded by this court’s precedent. See United States v.
Arreola, 467 F.3d 1153, 1161 (9th Cir. 2006) (“conclud[ing] that § 924(c)(1)(A)
defines only one offense”).
5. To determine whether Arthur’s conviction for first-degree murder is a
“crime of violence,” we employ the categorical approach. United States v. Benally,
843 F.3d 350, 352 (9th Cir. 2016). Under that approach, we do not look to the
particular facts underlying Arthur’s conviction, but instead “compare the elements
of the statute forming the basis of the defendant’s conviction with the elements of a
‘crime of violence.’” Id. (quoting Descamps v. United States, 570 U.S. 254, 257
(2013)). Arthur’s claim that the first-degree murder statute is not categorically a
crime of violence is foreclosed by circuit precedent. See United States v. Studhorse,
883 F.3d 1198, 1205−06 (9th Cir. 2018) (holding that attempted first-degree murder
is categorically a crime of violence). See also United States v. Calvillo-Palacios,
860 F.3d 1285, 1291 (9th Cir. 2017) (holding that aggravated assault is categorically
a crime of violence because it requires as an element serious bodily injury, which
necessarily requires violent physical force); Arellano Hernandez v. Lynch, 831 F.3d
4 16-10005/10328
1127, 1131 (9th Cir. 2016) (same as to a threat of death or great bodily injury). Thus,
the district court did not err by determining that first-degree murder is a crime of
violence for purposes of Arthur’s conviction and the restitution he was ordered to
pay.
6. The government concedes that we must vacate the restitution order and
remand for recalculation on an open record. The parties agree that a remand is
necessary so the district court may consider whether a consumption offset is
necessary concerning the officer’s projected lost income, United States v. Serawop,
505 F.3d 1112, 1127 (10th Cir. 2007), and whether the district court made an
arithmetic error in computing the insurance proceeds that the officer’s parents had
received, United States v. Sheng Kuo Fu, 620 F.3d 1158, 1166 (9th Cir. 2010).
7. Finally, we deny Arthur’s conditional motion to defer resolution of his
appeal. We need not await a decision in United States v. Begay, No. 14-10080 (9th
Cir.), because we are reviewing only for plain error. See United States v. Gonzalez-
Aparicio, 663 F.3d 419, 426–27 (9th Cir. 2011) (declining to exercise discretion to
deviate from plain error review). The district court did not plainly err because first-
degree murder is categorically a crime of violence under the “elements” clause of 18
U.S.C. § 924(c), not the “residual” clause.
The judgment of conviction is AFFIRMED. The order of restitution is
VACATED, and the case is REMANDED for reconsideration of the restitution.
5 16-10005/10328
Arthur’s Conditional Motion to Defer Resolution of Appeal (Docket Entry No. 62)
is DENIED.
6 16-10005/10328