United States v. Gomez-Diaz, No. 18-1001 (8th Cir. 2018)
Annotate this CaseDefendant appealed his conviction and sentence for producing child pornography. The Eighth Circuit held that the district court did not err in denying defendant's request for an instruction on the lesser-included offense of possession of child pornography; the district court did not abuse its discretion when it denied defendant's motion for a mistrial where the prosecutor told the jury in closing argument that the jury was the "voice" for the victim, because the improper comments were not so prejudicial as to deprive defendant of a fair trial; but the district court erred by imposing an obstruction of justice enhancement under USSC 3C1.1. Accordingly, the court remanded for resentencing.
Court Description: Kelly, Author, with Shepherd and Stras, Circuit Judges] Criminal case - Criminal law and sentencing. In this prosecution, the district court did not err in denying defendant's request for an instruction on the lesser-included offense of possession of child pornography as possession includes an element - possession - not included in production; the district court did not abuse its discretion in denying defendant's request for a mistrial after the prosecutor told the jury in closing argument that the jury was the "voice" for the victim; while the comments were improper, the court could not say that the limited improper comments were so prejudicial that they deprived defendant of a fair trial; in the absence of any findings concerning obstruction of justice, the district court erred in imposing an obstruction-of-justice enhancement under Guidelines Sec. 3C1.1; remanded to the district court for resentencing. Judge Shepherd, concurring in part and dissenting in part.
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