                            NOT FOR PUBLICATION                          FILED
                    UNITED STATES COURT OF APPEALS                        SEP 21 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.
                                                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.


      *
             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.
The 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,



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the district court did not err by denying Arthur’s motion to suppress.

      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 acknowledges that his claim—that the first-degree murder statute is

not categorically a crime of violence because it encompasses murders “perpetrated

by poison”—is foreclosed by circuit precedent. United States v. Calvillo-Palacios,

860 F.3d 1285, 1291 (9th Cir. 2017); Arellano Hernandez v. Lynch, 831 F.3d 1127,

1131 (9th Cir. 2016). Thus, the district court did not err by determining that first-



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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.

Arthur’s Conditional Motion to Defer Resolution of Appeal (Docket Entry No. 62)

is DENIED.



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