Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`August 5, 2022
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`UNITED STATES OF AMERICA,
`
` Plaintiff - Appellee,
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`v.
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`ORLANDO CORTEZ-NIETO,
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` Defendant - Appellant.
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`–––––––––––––––––––––––––––––––––––
`
`UNITED STATES OF AMERICA,
`
` Plaintiff - Appellee,
`
`v.
`
`JESUS CERVANTES-AGUILAR,
`
` Defendant - Appellant.
`_________________________________
`
`
`
`
`
`No. 20-3184
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`
`
`
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`
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`
`
`No. 20-3189
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`Appeal from the United States District Court
`for the District of Kansas
`(D.C. Nos. 2:18-CR-20030-JAR-1 & 2:18-CR-20030-JAR-2)
`_________________________________
`
`Paige Nichols, Assistant Federal Public Defender (Melody Brannon, Federal Public
`Defender, with her on the briefs), Office of the Federal Public Defender, District of
`Kansas, for Defendant - Appellant Orlando Cortez-Nieto.
`
`Candace Caruthers, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
`Defender, and Shira Kieval, Assistant Federal Public Defender, on the briefs), Office of
`the Federal Public Defender, Districts of Colorado and Wyoming, for Defendant -
`Appellant Jesus Cervantes-Aguilar.
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`James A. Brown, Assistant United States Attorney (Duston J. Slinkard, Acting United
`States Attorney, and Emma J. Staats, Legal Intern, with him on the brief), Office of the
`United States Attorney, District of Kansas, for Plaintiff - Appellee.
`_________________________________
`
`Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
`_________________________________
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`HARTZ, Circuit Judge.
`_________________________________
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`Defendants Orlando Cortez-Nieto and Jesus Cervantes-Aguilar were convicted
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`by a jury of four methamphetamine offenses committed within 1,000 feet of a
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`playground. After their convictions Defendants filed motions for judgment of
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`acquittal. The district court granted the motions in part, setting aside the convictions
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`on the ground that there was insufficient evidence that any of the offenses of
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`conviction occurred within 1,000 feet of a playground but entering judgments of
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`conviction on lesser-included offenses—the four offenses without the proximity
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`element.
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`In their consolidated appeal, Defendants raise three issues. First, they claim
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`(a) that a jury instruction stating that the jury should not consider the guilt of any
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`persons other than Defendants improperly precluded the jury from considering that
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`two government witnesses were motivated to lie about Defendants to reduce or
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`eliminate their own guilt and (b) that the prosecutor improperly magnified this error
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`by explicitly arguing that the jurors could not consider the witnesses’ guilt in
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`assessing their credibility. We reject this claim because the instructions, taken as a
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`whole, were unlikely to mislead the jury and the prosecutor’s argument likely
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`reduced the possibility of misunderstanding the instructions. Second, Defendants
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`contend that the district court should not have imposed judgments of conviction on
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`the lesser-included offenses after determining that the original charges had not been
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`proved because the jury had not been instructed on the lesser-included offenses. We
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`hold that the district court simply performed its duty, and Defendants were not
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`prejudiced by the absence of lesser-included-offense instructions. Third, Defendants
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`assert that remand is necessary to correct a clerical error in the judgment forms. The
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`government concedes the point, and we agree. Exercising jurisdiction under 28
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`U.S.C. § 1291, we affirm the district-court judgments except that we remand for
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`correction of the clerical error.
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`I.
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`BACKGROUND
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`On December 1, 2017, a fire broke out at a residence on Cleveland Avenue in
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`Kansas City, Kansas. Firefighters and a search-and-rescue crew responded to the
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`scene, but when they arrived the fire was already extinguished, and it had caused
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`little to no damage to the residence. No one was in the house. The house was within
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`walking distance of Klamm Park, which has a baseball field, tennis courts, and
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`playgrounds.
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`Investigators looking for the cause of the fire discovered inside the residence
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`some $200,000 worth of methamphetamine and various items used in
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`methamphetamine manufacturing, including empty cans of acetone, heating devices,
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`thermometers, pails, pots, and coolers. The investigators suspected that an apparatus
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`set up in the residence’s basement was a clandestine methamphetamine lab designed
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`to convert liquid methamphetamine to its crystalline form.
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`Further search of the residence turned up several receipts (dated less than
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`10 days before the fire) for goods purchased from general-merchandise, hardware,
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`and automotive stores in Kansas City. Among other things, the receipts listed boxes,
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`coolers, thermometers, pails, and spray bottles. And, most notably, 11 receipts
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`reflected the purchase of acetone, sometimes in quantities as large as a gallon (the
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`function of acetone in producing marketable methamphetamine was not disputed at
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`trial). Law-enforcement officers obtained video-surveillance footage from the stores
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`named on the receipts, which showed Defendants purchasing the items on the
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`receipts.
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`Defendants were arrested and indicted on four counts: (1) conspiracy to
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`manufacture over 50 grams of methamphetamine within 1,000 feet of real property
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`comprising a playground; (2) manufacturing and attempting to manufacture 50 grams
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`or more of methamphetamine within 1,000 feet of a playground; (3) possession with
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`intent to distribute 50 grams or more of methamphetamine within 1,000 feet of a
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`playground; and (4) opening, using, and maintaining a residence for the purpose of
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`manufacturing methamphetamine within 1,000 feet of a playground. See 21 U.S.C.
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`§§ 841(a)(1), 841(b)(1)(A)(viii), 846, 856(a)(1), 860(a).
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`Defendants did not challenge at trial, and have conceded on appeal, that they
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`bought the materials listed on the receipts found at the Cleveland Avenue residence.
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`But they have argued that they had no knowledge of the methamphetamine lab and
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`only purchased those materials at the request of others. The issue of knowledge was
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`the focus of the trial.
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`To tie Defendants to the Cleveland Avenue residence, the government offered
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`a fair amount of nontestimonial evidence. A FedEx parcel shipped on November 22
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`and addressed to Mr. Cortez-Nieto at the residence was found in the house, as was a
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`sticky note on which was written the name “Orlando” and a phone number for which
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`Mr. Cortez-Nieto was the named subscriber. In addition, police found within the
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`home a camouflage-style coat that matched the coat worn by Mr. Cortez-Nieto on the
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`videos of his store purchases. As for Mr. Cervantes-Aguilar, officers found a receipt
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`for sending a money transfer on November 24 that bore his name and the Cleveland
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`Avenue address. They also found a “ledger” (a blue spiral book of index cards on
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`which were recorded apparent financial transactions), which testimony (as explained
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`below) tied to Mr. Cervantes-Aguilar. And investigators obtained a Kansas certificate
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`of title dated November 13 showing that someone acting with a power of attorney for
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`Mr. Cervantes-Aguilar purchased a Honda on November 12 and listed Mr. Cervantes-
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`Aguilar’s address as the Cleveland Avenue residence. (Mr. Cervantes-Aguilar
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`changed the address on the title a few days after the fire.)
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`Two siblings connected to the house, Celia Suarez and Victor Suarez, were
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`witnesses for the prosecution. Celia had rented the Cleveland Avenue house a few
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`weeks before the fire. She testified under an agreement with the government to
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`provide complete and truthful information; in return, the government promised that
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`her statements would not be used against her in any federal prosecution. Celia told
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`the jury that she had rented the house on behalf of a Mexican drug dealer named Jose
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`Pantoja for use by a “Jesus Estrella,” the name by which she knew Mr. Cervantes-
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`Aguilar. When she met with the landlord for the Cleveland Avenue property to look
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`at the residence, she was accompanied by her brother Jaime (not Victor) and Mr.
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`Cervantes-Aguilar. (At trial the landlord identified Mr. Cervantes-Aguilar as having
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`accompanied Celia to the meeting.) She said that she had been romantically involved
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`with Mr. Pantoja until the day of the fire. At the same time, however, she had also
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`briefly dated Mr. Cervantes-Aguilar and planned to move into the Cleveland Avenue
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`residence with him until he broke things off upon learning that Celia had children.
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`Celia denied knowing that the house she rented would be used for drugs and denied
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`any involvement in the drug operations there. She said she first learned the house was
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`being used for methamphetamine manufacturing on the day of the fire, when Mr.
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`Cervantes-Aguilar called her to report the fire and referred to the house as a
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`“chingadera,” which she understood to mean that the house contained drugs. R.,
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`Vol. II at 513–14. Despite her professed lack of knowledge about what was
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`happening in the Cleveland Avenue residence, she testified that Mr. Cervantes-
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`Aguilar was in charge of the methamphetamine lab at the house and that he was
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`working for another Mexican trafficker named Jesus Mendoza—the cousin of Mr.
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`Pantoja and apparently a superior of Mr. Pantoja. Celia testified that she had never
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`interacted much with Mr. Cortez-Nieto and knew him only as “Pacha.” She had seen
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`him just twice—once at a horse race and once outside the Cleveland Avenue
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`residence.
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`Telephone records confirmed that Celia received a phone call less than a half
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`hour after the fire started. The phone number was linked to a prepaid phone, so no
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`subscriber information was available; but the number was in Celia’s phone-contact
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`list and she told investigators that the number belonged to Mr. Cervantes-Aguilar. Of
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`the 210 cell-tower connections made by that phone from November 20 (when the
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`phone was activated) to December 1 (after which the phone was not used), 100 were
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`to cell towers near the Cleveland Avenue residence, indicating that the user was not
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`far from the residence.
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`Victor also testified under an agreement with the government. He had been
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`indicted on federal drug and firearms charges arising out of his involvement with a
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`methamphetamine lab in Kansas City, Missouri. Under his agreement his testimony
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`would not be used against him in his Missouri case and it might result in a lower
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`sentence. Victor testified that he worked for Mr. Mendoza, who managed two
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`separate groups producing and distributing methamphetamine, one in Missouri and
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`one in Kansas. Victor was one of the men leading the Missouri operation. He
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`identified “Jesus” (Mr. Cervantes-Aguilar) and “Pacha” (Mr. Cortez-Nieto) as the
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`leaders of Mr. Mendoza’s Kansas operation, with Mr. Cortez-Nieto manufacturing
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`methamphetamine and Mr. Cervantes-Aguilar distributing it. Victor said that on
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`several occasions when he owed money to Mr. Mendoza, he was instructed to give
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`the money to Mr. Cervantes-Aguilar. According to Victor, various entries in the
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`ledger found at the Cleveland Avenue residence reflected those transactions. For
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`example, the entry “Chongo medio $500 hotel” was stating that “Chongo [which
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`Victor said was his own nickname] gave me $500 [at a] hotel” (“me dio” is Spanish
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`for “gave me”). R., Vol. II at 656–57. Although Victor did not recognize the
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`handwriting in the ledger or see Mr. Cervantes-Aguilar make entries in it, he inferred
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`that the entries were made by Mr. Cervantes-Aguilar because he was the one Victor
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`dealt with. The inference is also supported by the absence of Mr. Cervantes-Aguilar’s
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`name or nickname in the ledger.
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`Victor and Celia were not the most credible witnesses to ever testify in federal
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`court. As the prosecutor recognized in her rebuttal closing argument, “If I got to pick
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`witnesses, . . . I’d pick my mom, my minister.” Id. at 1196. Celia did not explain how
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`she knew that Mr. Cervantes-Aguilar was in charge of the methamphetamine
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`operation on Cleveland Avenue and was working for Mr. Mendoza despite her
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`professed ignorance about there being a methamphetamine laboratory there. Also,
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`before her testimony at trial she had given several different versions of who was with
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`her when she met the landlord, when and with whom she was having affairs, and who
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`asked her to rent the residence. Victor denied any involvement with the operation on
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`Cleveland Avenue even though his name was on the gas account for the address. A
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`jury might well have doubted his explanation that his sister asked him to open the
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`account in his name because she already owed money to the gas company. And the
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`jury might not have believed that the ledger entries for money coming from him
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`reflected merely his repayment of debts to Mr. Mendoza.
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`The major thrust of the attacks on Celia and Victor by defense counsel,
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`however, focused on their motives to lie to escape the consequences of their own
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`criminal activity. Counsel suggested that the true culprits—those who were really
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`running the methamphetamine lab on Cleveland Avenue—were Victor and Celia.
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`Defendants had merely been enlisted to purchase supplies, they argued, and they had
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`no idea what the supplies would be used for. In closing argument, counsel for Mr.
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`Cervantes-Aguilar said, “Celia Suarez, if she didn’t have any problems with
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`innocence or guilt, then why does she need a letter from the government to protect
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`her on what she’s saying and a lawyer to help her get it?” Id. at 1189–90. And on
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`cross-examination, Victor, who had acknowledged that he hoped his testimony in this
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`trial would help reduce his sentence in the Missouri case, agreed with defense
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`counsel that “people that are charged with drug crimes will lie and say anything to try
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`to reduce their sentence,” id. at 683, although he explained his own testimony
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`otherwise, saying, “I am here because I don’t want another person to stain my name
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`about something that I did not do.” Id.
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`The jury convicted Defendants as charged. After the verdict, however,
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`Defendants, who had not previously challenged the distance of the laboratory from
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`Klamm Park, moved for judgments of acquittal. The district court agreed that there
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`was not sufficient evidence to prove beyond a reasonable doubt that the drug offenses
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`occurred within 1,000 feet of Klamm Park. But the district court held that the
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`government had presented sufficient evidence to support the lesser-included offenses
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`of the charged crimes—that is, the four charged crimes without the proximity
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`element—and therefore entered against each Defendant judgments of conviction on
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`those four lesser-included offenses.
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`II. DISCUSSION
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`On appeal Defendants argue (1) that an improper jury instruction, exacerbated
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`by the prosecutor’s improper closing argument, foreclosed consideration by the jury
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`of their chief defense theory, (2) that the district court erred in entering judgments of
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`conviction on lesser-included offenses after determining that there was insufficient
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`evidence of an element of the charged offenses, and (3) that the district court
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`misstated the offenses of conviction in the judgments of conviction. We begin with
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`the jury instruction.
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`A.
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`Jury instructions and alleged prosecutorial misconduct
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`We review jury instructions de novo to determine whether they, as a whole,
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`correctly state the governing law, but we review for abuse of discretion the district
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`court’s decisions regarding such matters as the framing, articulation, and detail of the
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`instructions. See United States v. Jean-Pierre, 1 F.4th 836, 846 (10th Cir. 2021)
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`(“This court reviews the jury instructions de novo in the context of the entire trial to
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`determine if they accurately state the governing law and provide the jury with an
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`accurate understanding of the relevant legal standards and factual issues in the case.
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`In doing so, we consider whether the district court abused its discretion in shaping or
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`phrasing a particular jury instruction and deciding to give or refuse a particular
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`instruction.” (citation, brackets, and internal quotation marks omitted)).
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`Defendants focus their challenge on the last sentence of the following jury
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`instruction:
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`INSTRUCTION NO. 24
`You are here to decide whether the government has proved beyond a
`reasonable doubt that each defendant is guilty of the crimes charged. The
`defendants are not on trial for any act, conduct, or crime not charged in the
`Superseding Indictment.
`It is not up to you to decide whether anyone who is not on trial in this case
`should be prosecuted for the crime charged. The fact that another person
`also may be guilty is no defense to a criminal charge.
`The question of the possible guilt of others should not enter your thinking
`as you decide whether these defendants have been proved guilty of the
`crimes charged.
`
`R., Vol. I at 343 (emphasis added). The challenged sentence conveys an important,
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`and quite proper, message. The jury should not be more lenient toward the accused
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`just because others who have committed the same or similar offenses have gone free;
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`nor should the jury be more inclined to convict the accused because of the guilt of
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`others. See Osborne v. United States, 371 F.2d 913, 923–24 (9th Cir. 1967) (guilt-of-
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`others instruction properly conveyed that “appellant stood alone as a defendant, and
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`that his acts only were to be judged”); United States v. Oberle, 136 F.3d 1414, 1423
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`(10th Cir. 1998) (similar instruction “focused jurors on the task at hand: determining
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`whether [defendant] was guilty of the [charged offense]”). But Defendants suggest
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`that the sentence could also have an improper effect. As we understand their
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`argument, their complaint is that if the guilt of Celia and Victor was not to enter the
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`minds of the jurors, then the jurors could not consider the possibility that the two
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`witnesses were lying to cover up or mitigate their own guilt.
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`There is enough force to this argument for us to recommend modifying the
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`language of the instruction in similar future cases. But that force is greatly
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`diminished in this case by the other instructions given to the jury, as well as the
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`closing arguments of counsel.
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`At least three other instructions unambiguously impressed upon the jury its
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`duty to examine the Suarezes’ motives for their testimony. Instruction No. 4
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`addressed the beyond-a-reasonable-doubt standard and instructed the jurors generally
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`on their duty to evaluate witness credibility:
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`INSTRUCTION NO. 4
`I remind you that it is your job to decide whether the government has
`proved the guilt of each defendant beyond a reasonable doubt. In doing so,
`you must consider all of the evidence. This does not mean, however, that
`you must accept all of the evidence as true or accurate.
`You are the sole judges of the credibility or “believability” of each witness
`and the weight to be given to the witness’s testimony. . . . In making that
`decision, I suggest that you ask yourself a few questions: Did the witness
`impress you as honest? Did the witness have any particular reason not to
`tell the truth? Did the witness have a personal interest in the outcome in
`this case? Did the witness have any relationship with either the government
`or the defense? Did the witness seem to have a good memory? Did the
`witness clearly see or hear the things about which he/she testified? Did the
`witness have the opportunity and ability to understand the questions clearly
`and answer them directly? Did the witness’s testimony differ from the
`testimony of other witnesses? When weighing the conflicting testimony,
`you should consider whether the discrepancy has to do with a material fact
`or with an unimportant detail. And you should keep in mind that innocent
`misrecollection—like failure of recollection—is not uncommon.
`
`R., Vol. I at 318 (emphasis added).
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`Instruction No. 6 emphasized the credibility concerns specific to witnesses like
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`accomplices and informants who may have a special interest in the outcome of a
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`case:
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`INSTRUCTION NO. 6
`Accomplice
`An accomplice is someone who joined with another person in committing a
`crime, voluntarily and with common intent. The testimony of an
`accomplice may be received in evidence and considered by you, even
`though it is not supported by other evidence. You may decide how much
`weight it should have.
`You are to keep in mind, however, that accomplice testimony should be
`received with caution and considered with great care. You should not
`convict a defendant based on the unsupported testimony of an alleged
`accomplice, unless you believe the unsupported testimony beyond a
`reasonable doubt.
`
`Informant
`An informant is someone who provides evidence against someone else for a
`personal reason or advantage. The testimony of an informant alone, if
`believed by the jury, may be of sufficient weight to sustain a verdict of
`guilt, even though not corroborated or supported by other evidence. You
`must examine and weigh an informant’s testimony with greater care than
`the testimony of an ordinary witness. You must determine whether the
`informant’s testimony has been affected by self-interest, by an agreement
`he has with the government, by his own interest in the outcome of the case,
`or by prejudice against the defendant.
`You should not convict a defendant based on the unsupported testimony of
`an informant, unless you believe the unsupported testimony beyond a
`reasonable doubt.
`
`R., Vol. I at 321 (emphasis added).1
`
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`1 Counsel for Mr. Cortez-Nieto recognized the importance of Instruction No. 6
`to the jury’s task of evaluating the Suarezes’ credibility. In her closing argument, she
`specifically invoked this instruction, saying that the jurors would “see very quickly
`that Celia and Victor fit into either one of these categories [accomplice or
`informant],” and admonishing the jurors to “proceed with caution,” “exercise great
`care,” and “slow down, pause, and question” the Suarezes’ testimony “very
`carefully.” R., Vol. II at 1175.
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`And Instruction No. 7 reiterated that accomplice testimony presented by the
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`government required the jury’s particular attention:
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`INSTRUCTION NO. 7
`The government called as one of its witnesses an alleged accomplice, who
`was charged in another case.
`An alleged accomplice, including one who has pending charges, is not
`prohibited from testifying. On the contrary, the testimony of an alleged
`accomplice may, by itself, support a guilty verdict. You should receive this
`type of testimony with caution and weigh it with great care. You should
`never convict a defendant upon the unsupported testimony of an alleged
`accomplice, unless you believe that testimony beyond a reasonable doubt.
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`R., Vol. I at 322 (emphasis added).
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`Our precedents support the use of Instruction No. 24. This court has upheld
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`identical or similar language in at least three previous cases. In Oberle a robbery
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`defendant complained that an instruction telling jurors “not to concern themselves
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`with the guilt of anyone except Oberle” foreclosed the jury’s consideration of his
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`defense that his brother was the real perpetrator. 136 F.3d at 1422. We rejected the
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`challenge, observing that the instruction, in combination with the standard beyond-a-
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`reasonable-doubt instruction, correctly “focused jurors on the task at hand:
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`determining whether Oberle was guilty of the . . . robbery.” Id. at 1423. In United
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`States v. Arras, 373 F.3d 1071, 1076 (10th Cir. 2004), the instruction at issue stated:
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`“You are here to decide whether the government has proven beyond a reasonable
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`doubt that each defendant is guilty of the crimes charged. And you must not be
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`concerned with the guilt or innocence of other persons not on trial as a defendant in
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`this case.” The defendants’ trial strategy had been to show that a government
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`cooperating witness named Nielsen had been “lying to cover for” other individuals
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`involved in the charged drug-dealing conspiracies. Id. The defendants argued that the
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`guilt-of-others instruction foreclosed their defense theory because “the guilt of these
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`external parties was relevant to [Nielsen’s] credibility.” Id. We rejected the
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`challenge, first by holding that the argument was foreclosed by Oberle, and second
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`by observing that the jury was given “specific instructions . . . admonishing them to
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`weigh . . . Nielsen’s credibility with considerable caution because she was a drug
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`user, an accomplice, and a criminal defendant who was testifying as part of a plea
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`agreement.” Id. at 1077. The guilt-of-others instruction was again at issue in United
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`States v. Little, 829 F.3d 1177, 1186 (10th Cir. 2016), in which the defendant
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`attacked an instruction that read: “[T]he question of the possible guilt of others
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`should not enter your thinking as you decide whether this defendant has been proved
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`guilty of the crime charged.” Little argued that the instruction undermined his chief
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`defense at trial—that someone else was responsible for the charged firearms offense.
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`Id. We held that “[t]he district court properly instructed the jury that involvement by
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`third parties would not constitute an absolute defense” and that Oberle precluded
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`Little’s argument. Id.
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`We are not persuaded by Defendants’ attempts to distinguish Oberle and
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`Arras. There are minor differences in the language of the instructions challenged in
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`those cases and the language of Instruction No. 24; but substantively they are
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`identical. Nor are we persuaded by Defendants’ attempts to distinguish Little. They
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`argue that although the instruction in Little was identical to the one challenged here,
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`Little’s defense that “someone else committed the crime,” 829 F.3d at 1186, was not
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`quite the same as Defendants’ defense here that key witnesses were not credible
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`because of their own guilt. But the defendants’ trial strategy in Arras was essentially
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`the same as that of Defendants here—arguing that a cooperating witness was “lying
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`to cover for” other guilty individuals and therefore was not credible. 373 F.3d
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`at 1076.
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`Instructions 4, 6, and 7 told the jury to carefully consider the Suarezes’
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`motives to lie and to credit their unsupported testimony only if credible beyond a
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`reasonable doubt. Under our precedents, that sufficed to protect Defendants’ efforts
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`to impeach the Suarezes’ credibility.
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`We do, however, add one qualification to this conclusion. We might take a
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`different view of the challenged sentence from Instruction No. 24 if it had been
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`improperly used, without correction from the district court, in closing argument. But
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`we see no improper use by the prosecutor in this case. Defendants allege that the
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`prosecutor engaged in misconduct in closing argument by telling the jury that it could
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`not consider the Suarezes’ motive to lie to conceal their own guilt in the offenses
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`charged. See Cervantes-Aguilar Br. at 39 (prosecutor “not only emphasized the
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`district court’s instructional error, but it also explicitly used that misstatement to
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`improperly negate a legitimate defense theory”); Cortez-Nieto Br. at 27 (“The
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`prosecutor misstated the law when she told the jurors that the defendants’ challenge
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`to the Suarezes’ credibility was foreclosed by Instruction 24.”). They focus on two
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`sentences from the prosecutor’s rebuttal closing argument: “Instruction No. 24 tells
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`Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 17
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`you what to do with this kind of argument. It tells you that the possible guilt of other
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`people should not enter into your thinking as you decide whether or not these two
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`defendants are guilty of the crimes that are charged in this indictment.” R., Vol. II
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`at 1196. In identical language they both assert that the “prosecutor argued during
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`rebuttal that the jurors should not consider [their] challenge to the Suarezes’
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`credibility to the extent that that challenge was based on their possible guilt.”
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`Cervantes-Aguilar Br. at 35; Cortez-Nieto Br. at 26.
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`This assertion, however, ignores context. The prosecutor’s rebuttal argument
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`began as follows:
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`Let’s start by talking about Victor and Celia. I didn’t pick them as
`witnesses. If I got to pick witnesses, . . . I’d pick my mom, my minister.
`You know who picked them as witnesses? These two because they got in
`bed with Victor and Celia to run this methamphetamine lab.
`Instruction No. 24 tells you what to do with this kind of argument. It tells
`you that the possible guilt of other people should not enter into your
`thinking as you decide whether or not these two defendants are guilty of the
`crimes that are charged in this indictment.
`And it reminds me of when you get stopped for speeding, and you get
`stopped for speeding and you are speeding. But there are people who are
`flying by you, going faster than you. When you get pulled over, you’re like,
`yeah, I was speeding, but those people were speeding faster; why didn’t
`you get them . . . instead? It’s the same argument. It doesn’t make you less
`guilty.
`And Celia and Victor they don’t have to be innocent for you to find these
`two defendants guilty.
`But what we do . . . when we have people who are accomplices or
`informants is we try to corroborate them.
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`R., Vol. II at 1196–97 (emphasis added).
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`We think it clear that the lesson the prosecutor was drawing from Instruction
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`No. 24 was that the jury should not concern itself with whether accomplices were
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`going free. The fact that the Suarezes may have been escaping punishment for their
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`crimes did not lessen Defendants’ culpability. Defendants argue that there was no
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`need to make this point because they did not suggest to the jury that it should grant a
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`jury pardon on the ground that those who were equally, or even more, culpable were
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`escaping punishment. We take the point. Defendants did not make that argument; we
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`have not been directed to anything improper in the closing arguments for the defense.
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`But that does not mean that the jury, particularly after hearing defense closing
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`arguments (such as the arguments in this case) that paint the government witnesses as
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`the real culprits, would not entertain the thought that it would be unfair in the
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`circumstances to convict the defendants. The prosecution has every right to try to
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`forestall such action by the jury.
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`Further, the prosecutor did not argue, or insinuate, that the criminality of the
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`Suarezes should not diminish their credibility; nor did she object