                                                                           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                           NOT FOR PUBLICATION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.




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