                                                                           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.


                                           2                               16-10005/10328
      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.




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