DOJ-OGR-00021024.jpg

Case 22-1426, Document 58_02/28/2023, 3475901, Page198 of 221 A-398 Case 1:20-cr-00330-AJN Document 657 Filed 04/29/22 Page 41 of 45 not entitled to the inference that all absent evidence would have been both favorable and material to her case. United States v. Berry, No. 20-CR-84 (AJN), 2021 WL 2665585, at *2 (S.D.N.Y. June 29, 2021). Third, the Defendant must show that the prejudicial loss of evidence was caused by the pre-indictment delay. That is, the Defendant must show that the evidence was at one point available but that at trial “the lost testimony or information was not available through other means.” Pierre-Louis, 2018 WL 4043140, at *4 (quoting United States v. Sprouts, 282 F.3d 1037, 1041 (8th Cir. 2002)). Here, the Defendant has made only a “bare allegation that [certain] records have been lost or destroyed,” but without explaining when or why they were lost. United States v. Dornau, 356 F. Supp. 1091, 1094 (S.D.N.Y. 1973). Further, the Defendant does not explain whether any attempt was made to acquire these records either directly or by other means. It is unexplained, for example, why the Defendant believes that government property records that at one point existed are no longer available. Or why the Defendant could not have proven Epstein’s residency by any alternative means. Similarly, the Defendant does not explain why the flight manifests that pilot Larry Visoski delivered to Epstein’s office in New York have been lost. See Trial Tr. at 172. In short, the Defendant fails to show that the absence of documentary evidence was causally related to any decision by the Government to delay the Indictment. For similar reasons, the Defendant fails to demonstrate prejudice by reference to the deceased potential witnesses. Hirst, “[c]ourts have generally found that vague assertions that a deceased witness might have provided favorable testimony do not justify dismissing an indictment for delay.” Maxwell, 534 F. Supp. 3d at 317; see, e.g., United States v. Lovasco, 431 U.S. 783, 785-86, 788-90 (1977) (reversing dismissal for pre-indictment delay where a material defense witness had died); United States v. Snyder, 668 F.2d 686, 689 (2d Cir. 1982) (two 41 DOJ-OGR-00021024