The following excerpt is from United States v. Velazquez, 19-50099 (9th Cir. 2021):
[4] The majority suggests that my reference to the district court's instruction that the lawyers' arguments are not evidence is misguided because the "concern" here "is not with the prosecutor's characterization of trial evidence, but with his trivialization of the reasonable doubt standard." Maj. Op. 15 n.5. Although that instruction is relevant to the prejudice analysis, it is not the only (or even the primary) reason I conclude that the district court properly neutralized any prejudice. See United States v. Koon, 34 F.3d 1416, 1445 (9th Cir. 1994) (stating that instructing jury "to rely only on the evidence introduced at trial" and that "argument is not evidence . . . dilute[s] the potential prejudice arising from improper statements" (citations omitted)), rev'd in part on other grounds, 518 U.S. 81 (1996). Instead, as described throughout this dissent, I conclude that the district court neutralized any prejudice arising from the prosecutor's comments by properly instructing the jury on the reasonable doubt standard and by repeatedly admonishing the jury that it must apply the court's instructions on the reasonable doubt standard, not counsel's arguments.
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