United States v. Demetrius Gomez ( 2018 )


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  •                                                                            FILED
    NOT FOR PUBLICATION
    DEC 20 2018
    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 17-30123
    Plaintiff-Appellee,                D.C. No. 4:16-cr-00129-BLW-1
    v.
    MEMORANDUM*
    DEMETRIUS ANTHONY GOMEZ,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the District of Idaho
    B. Lynn Winmill, Chief Judge, Presiding
    Argued and Submitted December 7, 2018
    Seattle, Washington
    Before: W. FLETCHER and BYBEE, Circuit Judges, and BURNS,** District
    Judge.
    Defendant-Appellant Demetrius Gomez appeals from a jury conviction for
    second-degree murder in violation of 
    18 U.S.C. §§ 1111
     and 1153. On appeal,
    Gomez contests the district court’s second-degree murder jury instructions, the
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable Larry A. Burns, United States District Judge for the
    Southern District of California, sitting by designation.
    prosecutor’s use of Gomez’s nickname during trial, and the prosecutor’s incorrect
    statements during closing argument regarding the location of the victim Tyrone
    Diaz’s wound. We have jurisdiction pursuant to 
    28 U.S.C. § 1291
    , and we affirm.
    Where, as here, a party did not object to jury instructions or alleged
    prosecutorial misconduct at the time of trial, we review the jury instructions and
    alleged prosecutorial misconduct for plain error. Fed. R. Crim. P. 52(b); United
    States v. Conti, 
    804 F.3d 977
    , 981 (9th Cir. 2015) (jury instructions reviewed for
    plain error); United States v. Washington, 
    462 F.3d 1124
    , 1136 (9th Cir. 2006)
    (prosecutorial misconduct reviewed for plain error); United States v. Atcheson, 
    94 F.3d 1237
    , 1244 (9th Cir. 1996) (denial of motion for new trial due to prosecutorial
    misconduct not raised during trial reviewed for plain error). Under the plain error
    standard of review, relief is warranted if (1) there has been an error; (2) the error is
    “plain”; (3) the error affects substantial rights, “meaning it was prejudicial”; and
    (4) the error “seriously affect[ed] the fairness, integrity, or public reputation of
    judicial proceedings.” Conti, 804 F.3d at 981 (quoting United States v. Olano, 
    507 U.S. 725
    , 734–36 (1993)).
    Here, the district court did not plainly err when it failed to sua sponte
    instruct the jury that a second-degree murder conviction requires the government to
    disprove heat of passion or sudden quarrel beyond a reasonable doubt when no
    2
    evidence of either had been introduced at trial. Further, the district court did not
    plainly err when it failed to prevent the prosecutor from repeatedly and almost
    exclusively referring to Gomez by his nickname “Bash.” Although the
    government’s practice of referring to Gomez as “Bash” was arguably
    inappropriate, we conclude, based on the weight of the evidence, that it did not
    prejudice Gomez. Finally, the district court did not plainly err when it declined to
    order a new trial based on the prosecutor’s arguably inaccurate statements
    regarding the location of Diaz’s wound because those statements were not
    prejudicial.
    AFFIRMED.
    3