the leading question in this appeal is whether there is an unacceptable risk but impermissible factors came into play in mr arthurs trial where the nature and extent of his gang involvement was a crucial disputed issue in the trial and during the trial uniformed law enforcement officers with uniform t shirts that were that bore the legend state gang force sat in the gallery the answer to the question is yes in order to examine it we need to look at the full circumstances the facts the evidence and the issues in the trial how long were they in there afford the judge did something about the record is not very clear and that's the minimum as the government observes the minimum is about an hour to an hour and a half depending on how you interpret the the record because there was a comment about a break took place at two thirty eight there was a discussion a side bar at three pm and later in the day and that was when there was a reference to them displaying these t shirts what's unclear is how long in the the rest of that trial day they were displaying the t shirts it might have been from early on in the day for all the record shows the evidence is a little unclear if it was from early on in the day it could have been six hours but the minimum would be from that sidebar discussion at three pm on day two of the trial to the end of that trial day which  when the jury left it was about four thirty six there was a sidebar discussion again around four pm there was there was a sidebar discussion it when the when the jury left where mr sands defense counsel said i look back at four when i was doing an examination i saw one they were there the there was uniformed police presence on subsequent days which was discussed but the specific issue of the state gang force logos appears to have been confined to day two of the trial no w as your owners are aware having looked at the reckons case this is it this is a case where there was an exhibit which was a video of mr arthur actually shooting the victim and when mr sands got up to give the opening statement for defense he right off the bat said to the jury mr arthur killed this this officer this was a terrible things this tragic it was senseless and we are really here to argue one thing to you there was one key issue and that is was this premeditated this trial was about the issue of premeditation now the jury had many facts that would make them reasonably wonder and doubt that there was premeditation if you had to come up with a law school hypothetical scenario of a second degree so called killing on impulse this would be a pretty good example or a scenario to use there was no connection between mr arthur or the other people in the car that was shown between them and this this lawn this police officer there was no apparent motive for this killing there was a really no escape plan right after the shooting in the seconds after the shooting mr arthur who had no underwear and no shoes ran off into the darkness dropped his gun right out in the open and started trying to hide behind bushes at the wal mart the driver of the car mr thomas appeared to sit frozen possibly in shock for quite a while while officers swarmed around from the entire area they were there for a dui task force and then later emerged that he had wet his pants and  gutierrez the other passenger in the car in a second or so after the shooting came out with his hands up and ran off into the darkness and was later apprehended elsewhere on the reservation and speaking of mr  was a reference in one of the sidebar discussions by judge logan to the notion that he was supposed to be the government's so called ace in the hole apparently there was some expectation he was going to say something that would indicate real premeditation happened in fact when he testified he was described by many witnesses as a founding member of the eastside logic and when he testified he said he was not familiar with that gang he also apparently was not able to identify or or acted like he was not able to identify mr arthur on the stand so much for the ace in the hole to prove premeditation what the government was left with to make that case on that sole crucial important disputed issue of premeditation was taking all the gang evidence all the stuff connecting mr arthur to the seaside bloods gang scraping scraping it all together and trying to make it show that he was not only connected to the gang not only surrounded by signs and people involved in this gang but a serious committed harden gang member so seriously committed that he would do this he would shoot a cop in cold blood just to gain status in the gang now i certainly will acknowledge that the gang related evidence was ample you know your honor  however it was not clear what all that gang related evidence meant there was evidence that he joined as a young boy of ten that he was formally taken out of the gang through this difficult ceremony when he was about seventeen  that his participation waxed and waned and on this evidence a reasonable jury would have to ask itself clearly there are some connections and clearly he wears the red and clearly he says things like but the crips and the bloods according to the experts testimony and the evidence they're kind of like the hatfields and mccoys of gangs and the testimony was their crips on this reservation as well as bloods and the question is if the jury is asking itself what is this all mean they're probably going to say to themselves or they may well say to themselves quite reasonably if you're in a hatfield mccoy situation and your cousin is this is a serious hatfield and you live in a hatfield house with a hetfield logo outside your window and hatfield people are surrounding you every day do you feel some peer pressure to wear that color to proclaim yourself affiliated and does that really mean that you're a serious member of that clan and would do things that are going to put you in jeopardy like this just to gain status or does it just mean you're trying to get along in that situation with those pressures into that mix of evidence into that situation was introduced official was certainly a lot of evidence elicited by defense about diminished capacity that he was under the influence of the time of methamphetamines alcohol and marijuana and largely the defense is what i'm saying now which was that he had these gang ties he was in a gang environment but he was really not a serious gang member and not the kind of a gang member so committed to that project that he would do something like this for the reasons the government was suggesting and what was th what was the jury instruction was instructed on in the capacity or anything like that or i believe they receive the voluntary intoxication thing as i believe so if i if i check and find that's wrong i'll let the court know so that's a situation where the question this court needs to ask itself on those facts is under the under the standard articulated norris is there an unacceptable risk that impermissible factors came into play and the answer on these facts is that there is that an acceptable risk given that we have a parent well clearly law enforcement officers in a uniform and it's really in significant respects more of a risk then in norris norris involve people who were civilians and not wearing any type of uniform not representing or purporting or or appearing to represent any government entity but just civilians wearing women against rate buttons in a rape trial they were in that case the whole time or the norse gods the findings after the hearing was held on re man is that at any given time there were three of them in the fact i certainly examined whether it should be argued as a as a reversible error that there was simply that uniformed officers per se under the holbrook rubric and felt that  law didn't seem to back that up and i'm specifically focusing on the game gang message because that went directly to a crucial issue that went to the real disputed question of this case which is the prosecution's theory was that he deliberately did this because he was getting laid that was essentially the theory and they had their experts testify their gang expert testified that a gang member would do this to gain status in the gang and of course you know they  that's how they focused on all the things that seem to connect mr arthur to the gang and by the way i certainly would say that the letters from prison that became exhibits in the trial fit into the same narrative that  describing because mr arthur sent letters after when he was in prison after this incident and the gang expert identified eastside bloods formatting and crossing out the letter c because that stands for crips and so forth and that indicated him affiliated himself with this idea of the east side bloods but in the narrative it under scribing that a jury could reasonably adopt it still fits perfectly because if you think about it mr arthur really had two choices after this killing this shooting happened he could be basically a fool who for no reason subjected himself to a life sentence and got nothing from it or he could proclaim i am a hero gangster which is essentially what he did and become the the hero of the east side bloods who did this for the cause it fits into the narrative of somebody who wasn't truly a committed gang member who really didn't have that type of reason to premeditate didn't mention this  conversation that he had with the son that yes when he was in jail and say he was wont to shoot a supervisor that some evidence of premeditation well that's obviously that's the government's position our position is that evidence should not have come in because it doesn't it's not truly probative or premeditation it's probative that he made extremely obnoxious and insensitive remarks three months after the fact in a very jovial call with personal friends from the reservation more value in terms of the gang in terms of premeditation again i believe i don't believe it's really probative that this this type of joking comment was made three months after the fact in a call like this of the idea that that  video but he also said things which the government used against him in closing because they showed because he changed his story around and thought on his feet so to speak that showed he had presence of mind and it took away this idea that he didn't premeditate so that was  court my name is alexander samuels i'm an assistant u s attorney in phoenix arizona i'm here on behalf the united states i'd like to start with the first issue in the briefs and i'd like to start by addressing want to judge siler questions because i think it touches on one of the most important points as it relates to this court's and alice's of that issue it just siler asked a question about the timing of when these two officers were in the courtroom and i think it's important to note that the claim on appeal relates only to two officers who were in these t shirts not to all the officers who were in the courtroom which was much of the objection below these two officers there's no evidence that they were in the courtroom throughout the day there's no evidence that they were in the courtroom on any other day in fact there was a break that was taken in the afternoon around two thirty five it was only after they returned from the break that mr sands defense counsel requested a sidebar and made a full record about these two individuals birthday present this was the first day of testimony the first day of first day of trial as we've refer to in the briefs was taken up entirely by jury selection day two began with opening statements and this occurred during that he stated there was that's precisely and i think that's important too because the implication here by mr arthur is that the jury would have not only seen this message but would have interpreted it as furthering the government's case i think that may read a little bit too much into what jurors knew at this point in the trial at this point in the trial they had been opening statements and there had been and there was a very short section in the government's opening statement about gang affiliation but the testimony throughout the first day of trial had nothing to do with that it was all about the responding officers going to the scene and the only other witness who i believe testified that day was the security officer from wal mart who you know don't disagree that the theory of the prosecution was that this was gang related i think that was that was sort of the theory that's right i'm sorry for interrupting i think it was certainly one theory the prosecution the government did maintain below and i would argue here that it was not necessary to prove premeditation to prove that mr arthur was doing this because of any sort of gang affiliation i think there was other evidence in the case that showed that he premeditated this act at least for the couple of minutes leading up to it and that would be enough regardless of his gang affiliation but certainly the gang affiliation was a central component of the government's case but regarding the timing and the reason i raise judge silence question is because when you look at this court case law and others where courts have found problems where courts have reversed those are cases where the presence in the courtroom of whatever was in there was base of enormous of these individuals were in the courtroom throughout the trial nora cites a case from west virginia where similar individuals were in a courtroom throughout the trial  mostly dean which was eventually reversed by the supreme court same thing and here we simply don't have that what we have is a fleeting presence of one or two hours and in terms of whether we would need to have an evidentiary hearing on this issue the district court was in the courtroom and was aware of their presence judge siler also asked how long it took for the district court to address this issue and i think it's important to note how the district court address this issue the issue was raised at sidebar and the district judge noted right away that this was a potential problem although the district judge allowed uniformed police presence in the courtroom which is not challenged on appeal he said immediately look having individuals in these t shirts that say gang on them that's a problem we need to take care of it how do we best address it and it was clear that the district court was concerned about further prejudicing the defendant having the individuals having a government counsel was suggested go talk to these individuals have them leave the courtroom that would obviously drawn attention to the issue and maybe had jurors turn their heads towards that part of the court room which is in the back of the courtroom and the district court didn't want to do that so in fact what they discussed was to leave them in place for that time but to ensure that someone spoke with those two individuals and the other police officers from these departments to make sure nothing like that happened again during the trial at the end of the day the district court took the additional step of addressing all the officers in the courtroom talking about the incident that happened and telling them please avoid bringing in any sort of tactical vest tasers or any anything unusual other than just your ordinary that district court abused its discretion both by denying the motion and by denying the request for a hearing as it relates to a request for a hearing i would note that this court's in a little this case was in a little different posture than some of the other ones cited by the defendant cases like morris trial was long gone by the time they were discussing whether to have a hearing on hay vs review so the verdict was already in place and it was a question of inquiring into that verdict if the district court had chosen to have a hearing in this case already had the information in front of the about what had happened in the courtroom the key question would have been whether jurors saw the this display by the two officers asking jurors that question would have perhaps by itself drawn attention to the issue in a way that nobody in the courtroom wanted to see happen and so the district court had very good reason not to want to inquire further and i would also note that i think inquiring further would of not change the calculus even if a juror had seen this particular display it's not the type of display that is so pervasive that is so inherently prejudicial what kind of hearing did the defense ask for i don't believe that the defense was very specific about the request for a hearing but it's certainly the case that they asked for something i would note that the district actually in the motion for mis trial there were two issues within that motion which were the issue we're talking about now and then an issue about press coverage related to officer shootings and to this particular case and the district court actually did conduct some hearing maybe a strong word but did conduct some inquiry as to whether jurors had seen any sort of press coverage and things like that so it's clear that the district court was attuned to these issues and was willing to talk to the jury when it thought it was appropriate to do so to ensure that the defendant was receiving a fair trial this was very different than the trial judge and norris who simply declared that he had no power whatsoever to address the issues this this district court talked a lot about the importance of these issues and inquired into them and i think the manner in which it did so was not only proper but was certainly not an abuse of discretion there is some discussion about how the difference one difference between this case and norris is that the two individuals at issue here were government actors they were police officers i would note the message on their shirt that we're all talking about now was about the state gang task force there actually witnesses who testified at trial in this case who testified to their prior relationship with the state gang task force the state and the government's gang expert detective cress al testified that he was a member of the career criminal unit in essence and had previously been a member of the state gang task force and another individual testified that he worked for the years on the department of public safety that he had in two thousand and eleven been a member of the state gang task force and in that capacity he had talked to mr arthur about his gang affiliation and that was evidence that was presented at trial so i don't think it's a i don't think it's right when when mr arthur argues here that he was accused by these individuals in a way that was not from the witness stand there were witnesses in this case that talked about this information and so to the extent there was any sort of message conveyed by the shirts that the state gang task force was involved in the case that message was conveyed directly from the witness stand by to government witnesses in that regard i would also note that the  gang evidence in the case was quite strong there was not only the testimony from the gang expert there was mr arthur's own admissions that he had been a beside blood member there were post trial admissions in his  letters not admissions but ways in which he wrote in his letters that were very idiosyncratic and they were clearly ways that someone from the side bloods would write and that there were c's crossed out to signify disrespect to the crips there were seas turn in case for the same reason there were bees underlined or capitalized in order show respect for the bloods it judge graber point about the phone call the admission of which is challenge here in which he said he was aiming at a supervisor i don't believe this is in the briefs but the way that that portion of the phone call starts is the other individual on the call says i appreciate what you did i love that and so there was clear evidence in the record that mr arthur did receive some sort of elevation in status both from from his friends and from other individuals who may have been affiliated with the gang consistent with the government's theory at trial was the other person then if ever the person on the other in the phone call i don't believe that their identity was i don't know if they were identified but i certainly don't think the identity was discussed at trial so i don't know i don't know if we know that that person was a gang member for example  the police were following in terms of the way that this incident started started yeah yeah i think that's an important point to make so what happened is the salt river reservation as your honor might know it directly border scottsdale arizona and so the individuals including mr arthur were driving westbound on chaparral road toward scottsdale the officer was actually driving in the opposite direction towards the center of the reservation they came to a stop sign and it was at that stop sign and this captured on the dash camera that mr thomas the driver of mr arthurs car actually flashed his lights and what the government intended was some sort of signaling at the officer the officer then turned around and chased after mr thomas after he sped off from the stop sign and activated lights to pull over mr thomas said of pulling over on the side of the road the car then pulled into the chevron station where this happened and pulled into the parking spot chevron station was on yet if it was at the corner shop around pima roads the one other interesting thing that seen on videotape is not talking about the dash camera from officer cabrera's dash cam but the chevron footage which shows the opposite angle  talking about premeditation even if just for a short period of time there was testimony that the doors automatically locked in the car and so that mr arthur would have had to ensure the doors were unlocked he actually unlocked or opened the door as the car was still moving and you can see on the  footage actually balances himself on the edge of the car with the firearm which he would have had to make sure the safety was off on and the bolt was pulled back and the gun was loaded and then as soon as the car stopped he jumped out of the car and shot an officer  it's very interesting to me that the government would say don't worry about the people in the gallery of the officers with the state can force logos because there were witnesses on the stand who said they were the state gang force that telegraphs to me that the government doesn't get it who take the stand are subject to cross examination that's the problem that's what norris was largely about the problem is you have people who are not subject to cross examination who are telegraphing an important message that goes straight to the key disputed issue in th court should have at that moment called a mistrial well yes yes the district court should have called the mr on the alternative they just record should have had the hearing that we asked for in writing and several times orally in the course of this trial and the government says there was no need for that but the fact is even though the judge was in the courtroom and all these lawyers are in the courtroom we have disputed issues that we still don't know the answers to this which the government suggested significant nor a suggest may be pertinent to whether there was an intent to broadcast a message what the actual shirt said there was a dispute between defense and government counsel whether the shirt said gang force only on the front i'm sorry on both sides is as defense lawyer said or only on the back as the government said so what are the shirts look like how long as the as your runners have been asking me how long were they actually there displaying this message that's not perfectly clear so to the extent the court was not prepared to grant a mistrial until a new facts like that which remain disputed today it could have had that hearing and it could ask the jurors as was done in norris without violating rule of evidence six zero six did they see the message just couldn't ask them did it affect your deliberations in the into there any discussions they might have had but they could ask them if they had seen anything in the gallery that pertained to that if the parties agreed that was the right course you know the government says that would have been made things worse maybe that's what the parties and lawyers would have decided but they were never given that opportunity and the government says that it's unlike norris because they're the judge said he couldn't do anything about it well the judge in this trial said that many times he said i have no control in this public trial so it really is exactly the same in that respect as well