United States Court of Appeals

for the Fifth Circuit

No. 20-40718

Summary Calendar

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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

November 29, 2021

Lyle W. Cayce

Clerk

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(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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