United States v. Eliseo Gomez-Diaz, 911 F.3d 931

Background

Gomez-Diaz, age 21, was convicted after a jury trial for producing child pornography under 18 U.S.C. § 2251(a) based on photographs of sexual acts with an eight-year-old victim, M.
He admitted sexual contact but argued at trial he did not produce the images for the purpose of producing child pornography (disputing an element of § 2251(a)).
He requested a jury instruction on the lesser-included offense of possession of child pornography (§ 2252(a)(4)(B)); the district court denied the request.
During closing argument the prosecutor stated "You are the voice for" the victim after defense counsel said he was "the voice" for his client; the court sustained objections and gave a curative instruction but denied a mistrial motion.
At sentencing the PSR recommended a 2-level obstruction-of-justice enhancement (USSG § 3C1.1) based on alleged inconsistencies and testimony; the district court adopted the PSR and applied the enhancement without specific findings, then varied downward and imposed 240 months.
The Eighth Circuit affirmed the conviction, held the lesser-included instruction denial was proper, upheld denial of mistrial, but vacated the sentence and remanded because the district court failed to make the required perjury/obstruction findings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether possession of child pornography (§ 2252(a)(4)(B)) is a lesser-included offense of production (§ 2251(a))	Gov: production and possession are distinct; no lesser-included instruction required	Gomez-Diaz: production necessarily entails possession, so jury should get possession instruction	Court: Denied—possession contains an element (possession) not in production, so not a lesser-included offense
Whether prosecutor’s comment asking jurors to be the victim’s "voice" required a mistrial	Gov: comments were improper but curable; no prejudice	Gomez-Diaz: statement improperly appealed to emotions and warranted mistrial	Court: Denied mistrial—comments improper but cured by sustained objection and curative instruction; no reversible prejudice
Whether the district court properly applied a § 3C1.1 obstruction enhancement based on defendant’s testimony	Gov: enhancement supported by inconsistencies and record, so district court may adopt PSR	Gomez-Diaz: enhancement requires independent findings of perjury; jury disbelief alone is insufficient	Court: Vacated enhancement—district court failed to make requisite specific findings that defendant committed perjury or otherwise willfully obstructed justice; remand for resentencing
Whether remand is unnecessary because any error was harmless under the Guidelines cap	Gov: (not argued on appeal) some judges concur that error would be harmless because offense level capped at 43	Gomez-Diaz: favors remand for proper findings	Court: Majority refused to invoke harmless-error sua sponte and remanded; concurrence would have affirmed as harmless error

Key Cases Cited

United States v. Soriano-Hernandez, 310 F.3d 1099 (8th Cir. 2002) (standard of review for lesser-included instruction decisions)
United States v. Rainbow, 813 F.3d 1097 (8th Cir. 2016) (test for lesser-included offenses)
United States v. Felix, 996 F.2d 203 (8th Cir. 1993) (elements test for lesser-included instruction)
United States v. Beckman, 222 F.3d 512 (8th Cir. 2000) (standard for reversal based on prosecutorial misconduct)
United States v. Uphoff, 232 F.3d 624 (8th Cir. 2000) (presumption that juries follow curative instructions)
United States v. Dunnigan, 507 U.S. 87 (1993) (district court must make specific findings before applying perjury-based sentencing enhancements)
United States v. Esparza, 291 F.3d 1052 (8th Cir. 2002) (remand required when record does not compel finding of perjury)
United States v. Stong, 773 F.3d 920 (8th Cir. 2014) (harmlessness when Guidelines cap keeps total offense level unchanged)
United States v. Jensen, 834 F.3d 895 (8th Cir. 2016) (error in enhancements harmless where cap prevents change in total offense level)
United States v. Bastian, 603 F.3d 460 (8th Cir. 2010) (district court statements can show that an erroneous guideline calculation was harmless)