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United States v. Gomez-Diaz

United States Court of Appeals, Eighth Circuit

December 28, 2018

United States of America Plaintiff- Appellee
Eliseo Florencio Gomez-Diaz Defendant-Appellant

          Submitted: October 19, 2018

          Appeal from United States District Court for the District of Minnesota - St. Paul

          Before SHEPHERD, KELLY, and STRAS, Circuit Judges.

          KELLY, Circuit Judge.

         After a 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.


         Twenty-one-year-old 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.

         Gomez-Diaz 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.

         A 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.

         For 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 lesser-included-offense instruction.


         During 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.

         We 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.

         The 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 overwhelming ...

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