DOJ-OGR-00005862.jpg

Case 1:20-cr-00330-PAE Document 397 Filed 10/29/21 Page 79 of 84 credibility.”). Prosecutors are simply using a term that is consistent with the Government’s theory of the case. See United States v. Edwards, No. CR 16-103-BLG-SPW-1, 2017 WL 4159365, at *1 (D. Mont. Sept. 19, 2017) (explaining that “use of the term ‘victim’ is not prejudicial to the defendant’s rights when the presentation of evidence taken as a whole clarifies the government’s burden of proving all of the elements of the crime” and finding that the “jury will not be unduly prejudiced against [the defendant] if the government refers to certain witnesses as victims”); (citing United States v. Washburn, 444 F.3d 1007, 1013 (8th Cir. 2006) (“[A] number of courts have determined that the use of the term “victim” in jury instructions is not prejudicial to a defendant’s rights when, as is the case here, the instructions taken as a whole clarify the government’s burden of proving all elements of the crime”)); Server v. Mizell, 902 F.2d 611, 615 (7th Cir. 1990) (“No logical argument can be made that the mere use of the term ‘victim’ [in jury instructions] somehow shifted the burden of proof.”). In addition, “[t]he term ‘victim’ is not inherently prejudicial. It is a term commonly used in the English language that does not by its nature connote guilt.” United States v. Lussier, No. 18-CR-281 (NEB), 2019 WL 2489906, at *5 (D. Minn. June 15, 2019).7! And just as the defense may make arguments attacking the credibility of victims, the Government is free to argue that these witnesses are, in fact, victims of a crime. Cf United States v. Thai, 29 F.3d 785, 807 (2d Cir. 1994) (explaining that prosecutors may also “respond to an argument that impugns its integrity or the integrity of its case’’). 71 The same is true with references by the Government to “minor victims.” (Cf Def. Mot. 12 at 4- 5). The Government does not expect any other trial participant to use the phrase “minor victims.” 78 DOJ-OGR-00005862