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Case 1:20-cr-00330-PAE Document554 _ Filed 12/18/21 Page2of3 and Shawn, and their prior convictions were only discussed briefly during their direct testimony— and not at all on cross-examination. Including the instruction therefore would not serve its intended purpose. Rather, it would have the opposite effect of overemphasizing the prior convictions. If the Court nevertheless gives this instruction, the Government requests that it be included as part of the Court’s general instruction on credibility, Instruction 44. That instruction already discusses particular circumstances of certain witnesses, namely, those testifying under pseudonyms. Because the proposed instruction at most reflects brief testimony by only two witnesses, it is appropriate to provide, at most, a similarly brief and balanced treatment of the instruction. Second, the Government opposes the removal of “equally” from the standard instruction regarding uncalled witnesses. During the charge conference, the defense argued that some witnesses were not “equally” available because they would or did invoke their protection against self-incrimination. Many circuits have held, however, that “despite the government’s power to grant immunity, a witness invoking his constitutional rights is unavailable to the government as well as the defense.” United States v. Myerson, 18 F.3d 153, 158 (2d Cir. 1994) (collecting cases); see United States v. Romero, 304 F. App’x 14, 18 (2d Cir. 2008) (summary order) (affirming the “equally unavailable” instruction where a witness invoked the protections of the Fifth Amendment); Sand Instr. 6-7 (explaining that the “uncalled witness equally available” instruction “includes situations when the witness has indicated that he would assert his Fifth Amendment right not to testify if called”). That is a sensible result: a witness with criminal jeopardy is not “available” to the Government in any more than an abstract sense. To obtain their testimony, the DOJ-OGR-00008429