United States v. Gace, 20-40718

Keith Prescott Gace was convicted by a jury of producing and attempting to produce child pornography (count one) after pleading guilty to distribution, receipt, and possession of child pornography and attempted destruction of property; sentenced to 1,020 months and life supervised release.
The government introduced other images and descriptions of child pornography to prove intent and to distinguish the charged images from an "artistic family photo."
Gace objected under Federal Rule of Evidence 403, arguing the evidence was highly prejudicial and of limited probative value and that he could have stipulated to possession/distribution.
Gace also argued the court should have given a specific unanimity instruction as to production vs. attempt, and that the jury instruction on "sexually explicit conduct" erred by using the Dost factor about eliciting a sexual response.
The district court admitted the contested evidence, gave a general unanimity instruction, and used the Fifth Circuit Pattern Jury Instruction applying Dost; the Fifth Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission under Rule 403	Evidence was probative of intent to produce child pornography	Evidence was highly prejudicial, minimally probative, and unnecessary because of potential stipulation	Admission not an abuse of discretion; probative value outweighed prejudice; stipulation argument unavailing; limiting instruction mitigated risk
Jury unanimity instruction	General instruction sufficed	Court should have given specific unanimity instruction re: production vs. attempt	Plain-error review: no evidence jury was confused; no clear error in omitting a specific unanimity instruction
"Sexually explicit conduct" instruction (Dost factor)	Pattern instruction properly guides jury	Dost factor lacks statutory basis	Court did not abuse its discretion; following Fifth Circuit Pattern Jury Instruction incorporating Dost was proper

United States v. Dillon, 532 F.3d 379 (5th Cir. 2008) (standard of review and deference for Rule 403 rulings)
United States v. Lewis, 796 F.3d 543 (5th Cir. 2015) (use of similar images to show intent)
United States v. Naidoo, 995 F.3d 367 (5th Cir. 2021) (stipulation and limiting-instruction principles; prejudice mitigation)
United States v. Caldwell, 586 F.3d 338 (5th Cir. 2009) (stipulation does not always negate need for proof)
United States v. Grimes, 244 F.3d 375 (5th Cir. 2001) (temporal gap does not necessarily reduce probative value)
United States v. Tucker, 345 F.3d 320 (5th Cir. 2003) (requirements for unanimity instructions)
United States v. Creech, 408 F.3d 264 (5th Cir. 2005) (unanimity instruction analysis)
United States v. McCall, 833 F.3d 560 (5th Cir. 2016) (approving Dost-based instruction)
United States v. Steen, 634 F.3d 822 (5th Cir. 2011) (Dost factors in determining sexual content)
United States v. Toure, 965 F.3d 393 (5th Cir. 2020) (pattern instruction and Dost usage)
United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (factors for determining whether depiction is designed to elicit sexual response)
Puckett v. United States, 556 U.S. 129 (2009) (plain-error review standard)