DOJ-OGR-00006787.pdf

--- Page 1 --- **Case 1:20-cr-00330-PAE** **Document 452** **Filed 11/12/21** **Page 79 of 84** **Case 1:20-cr-00330-PAE** **Document 452** **Filed 11/12/21** **Page 79 of 84** *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). 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").** **21 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**