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NOT FOR PUBLICATION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
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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.
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