United States v. Elijah Arthur, Sr. ( 2018 )

NOT FOR PUBLICATION FILED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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