Submitted: October 19, 2018
from United States District Court for the District of
Minnesota - St. Paul
SHEPHERD, KELLY, and STRAS, Circuit Judges.
jury trial, Eliseo Florencio Gomez-Diaz was convicted of
producing child pornography, in violation of 18 U.S.C. §
2251(a). Gomez-Diaz appeals, challenging the district
court's denial of a lesser-included-offense instruction,
its denial of his motion for a mistrial, and its application
of an obstruction-of-justice enhancement at sentencing. We
affirm in part and remand for resentencing.
Gomez-Diaz had been sexually abusing his girlfriend's
eight-year-old brother, M., for several months. The sexual
conduct went unnoticed until his girlfriend, looking through
Gomez-Diaz's phone one night, found six pictures of him
and M. performing oral sex on each other, which had been
taken earlier that evening. The girlfriend called the police,
and Gomez-Diaz was promptly arrested.
never denied engaging in sexual contact with M. But his
defense theory at trial was that he did not engage in sexual
contact for the purpose of producing child pornography-an
element of § 2251(a). To that end, Gomez-Diaz asked the
district court to instruct the jury on the lesser-included
offense of possession of child pornography under §
2252(a)(4)(B). The district court refused, reasoning that
possession of child pornography is not a lesser-included
offense of production of child pornography. Reviewing the
district court's decision de novo, see United States
v. Soriano-Hernandez, 310 F.3d 1099, 1103 (8th Cir.
2002), we agree.
defendant's proper request for a lesser-included-offense
instruction will be granted when, among other things,
"the elements of the lesser offense are identical to
part of the elements of the greater offense," that is,
when the lesser offense contains no elements that the greater
offense does not. United States v. Rainbow, 813 F.3d
1097, 1105 (8th Cir. 2016) (quoting United States v.
Felix, 996 F.2d 203, 207 (8th Cir. 1993)). Possession of
child pornography includes at least one element that
production of child pornography does not: possession.
Gomez-Diaz does not dispute this, but he argues that in
practice, it is impossible to produce child pornography
without necessarily possessing it. Gomez-Diaz may be right
that a person who produces child pornography often also
possesses it, but that is not always the case.
example, any person who "persuades" a minor to
engage in "sexually explicit conduct for the purpose of
producing any visual depiction" or
"transports" a minor for that purpose may be
convicted under § 2251(a). Because § 2252(a)(4)(B)
requires an element not required for § 2251(a), the
district court correctly refused to issue a
trial, Gomez-Diaz's counsel explained to the jury that he
was "the voice" for his client. During closing
arguments, the prosecutor reminded the jury of that comment
and stated, "You are the voice for" the victim.
This statement elicited an immediate objection from the
defense; the district court did not rule on the objection
initially, and the prosecutor repeated her statement. The
defense objected again, explaining, "That's improper
argument, your Honor. The jury is not a voice for
anybody." The district court then sustained the
objection and instructed the prosecutor to move on. Later,
Gomez-Diaz moved for a mistrial based on the prosecutor's
statement. The district court denied the motion. But
Gomez-Diaz also requested and received the following curative
instruction: "You are not to make a decision on behalf
of [the victim]. You are to make the decision based upon the
evidence in this case as it applies to the Defendant in this
case." On appeal, Gomez-Diaz contends that the district
court erred in refusing to grant a mistrial.
review the denial of a motion for mistrial based on
prosecutorial misconduct for abuse of discretion. United
States v. Ziesman, 409 F.3d 941, 953 (8th Cir. 2005). We
will reverse a conviction based on a prosecutor's
comments during closing argument only if (1) the
prosecutor's conduct was improper and (2) the conduct
prejudicially affected the "defendant's substantial
rights so as to deprive him of a fair trial." United
States v. Beckman, 222 F.3d 512, 526 (8th Cir. 2000).
The prejudice inquiry focuses on three factors: (1) the
misconduct's cumulative effect, (2) the strength of the
evidence of the defendant's guilt, and (3) the trial
court's curative actions (or lack thereof). Id.
prosecutor's statements here were improper. See
United States v. Alaboudi, 786 F.3d 1136, 1144-45 (8th
Cir. 2015) ("In the context of the government's
closing arguments in this case, we do not condone the
government's comments that the jurors were the only ones
who could 'speak for' or 'stand up for' the
victims."); United States v. Rodriguez, 581
F.3d 775, 803 (8th Cir. 2009) (concluding "that a
prosecutor's brief claim to 'speak for' a victim
is improper if, in the context of the surrounding statements,
the comment appeals excessively to jurors'
emotions"); Roberts v. Delo, 205 F.3d 349, 351
(8th Cir. 2000) ("[I]t is improper to ask jurors to put
themselves in the place of the victim."). But we cannot
say that these limited improper comments were so prejudicial
that they deprived Gomez-Diaz of a fair trial. Most
important, the district court sustained Gomez-Diaz's
objection to the comments and later issued a curative
instruction to the jury. "It is presumed that a jury
will follow a curative instruction unless there is 'an