Case: 20-40718 Document: 00516109272 Page: 1 Date Filed: 11/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 29, 2021
No. 20-40718
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Keith Prescott Gace,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:19-CR-4-1
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Keith Prescott Gace was convicted by a jury of sexual exploitation of
children by producing and attempting to produce child pornography (count
one) after he pled guilty to distribution of child pornography (count two);
receipt of child pornography (count three); possession of child pornography
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-40718
(count four); and attempted destruction of property (count five). The
district court sentenced him to a total of 1,020 months of imprisonment and
a life term of supervised release.
On appeal, Gace argues that the district court abused its discretion
under Rule 403 of the Federal Rules of Evidence in admitting images and
descriptions of child pornography that, he contends, were highly prejudicial
and of limited probative value to count one. When an evidentiary objection
has been properly preserved, it is reviewed for abuse of discretion. United
States v. Dillon, 532 F.3d 379, 387 (5th Cir. 2008). A district court’s ruling
regarding Rule 403 is reviewed “with an especially high level of deference to
the district court, with reversal called for only rarely and only when there has
been a clear abuse of discretion.” Id. (internal quotation marks and citation
omitted).
The district court properly conducted the balancing test under Rule
403 and did not abuse its discretion in determining that the probative value
of the challenged evidence substantially outweighed the danger of unfair
prejudice. See Dillon, 532 F.3d at 387–89. The challenged evidence was
probative of Gace’s intent to produce child pornography of his minor
daughter, rather than an artistic family photo as Gace argued. See United
States v. Lewis, 796 F.3d 543, 547–48 (5th Cir. 2015); Dillon, 532 F.3d at 389.
Gace’s contention that the Government did not need to introduce the
evidence because he offered to stipulate that he pled guilty to possessing and
distributing child pornography is unavailing. See United States v. Naidoo, 995
F.3d 367, 376 (5th Cir. 2021); see also United States v. Caldwell, 586 F.3d 338,
343 (5th Cir. 2009). The risk of unfair prejudice was minimal as the
challenged evidence was similar to the photographs at issue in count one. See
Naidoo, 995 F.3d at 378; Dillon, 532 F.3d at 389. Gace did not show that the
amount of time that elapsed between committing the child exploitation
offense and the other offenses reduced the probative value of the challenged
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evidence. See United States v. Grimes, 244 F.3d 375, 384–85 (5th Cir. 2001).
Finally, any potential for unfair prejudice was mitigated by the district court’s
limiting instruction to the jury. See Naidoo, 995 F.3d at 378; Lewis, 796 F.3d
at 548.
Next, Gace argues that the district court erred by failing to give a
specific instruction that the jury had to reach a unanimous decision as to
whether he actually produced child pornography or attempted to do so.
Because Gace did not raise this argument in the district court, our review is
limited to plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
The district court gave a general unanimity instruction, and Gace has
not presented any evidence “tending to show that the jury was confused or
possessed any difficulty reaching a unanimous verdict.” United States v.
Tucker, 345 F.3d 320, 337 (5th Cir. 2003). Absent such evidence, Gace has
not shown that there is any reason to believe that the jury verdict was not
unanimous. See id. at 336–37. Therefore, he has not shown that the district
court made any clear or obvious error by not giving a specific unanimity
instruction. See id.; see also United States v. Creech, 408 F.3d 264, 269 (5th
Cir. 2005).
Lastly, Gace argues that in instructing the jury as to whether a
depiction constitutes “sexually explicit conduct” under 18 U.S.C. § 2251(a),
the district court erred in directing the jury to consider whether the depiction
was designed to elicit a sexual response in the viewer as laid out in United
States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), asserting that this Dost
factor lacks any basis in statute. As he concedes, the district court’s
instruction followed the Fifth Circuit Pattern Jury Instructions, and the
district court did not abuse its discretion. See United States v. McCall, 833
F.3d 560, 563 (5th Cir. 2016); United States v. Steen, 634 F.3d 822, 826 (5th
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Cir. 2011); United States v. Toure, 965 F.3d 393, 403 (5th Cir. 2020); Fifth
Circuit Pattern Jury Instruction 2.84.
AFFIRMED.
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