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Case 1:20-cr-00330-AJN Document 136 Filed 02/04/21 Page 24 of 27 II. None of the Questions or Answers Were Material A. Materiality Section 1623(a) of Title 18 of the U.S. Code states, in relevant part, that “[w]hoever under oath ... in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration” shall be subject to criminal penalty (emphasis added). Thus, to violate § 1623(a), a perjurious statement must be “material to the proceeding in which it is given.” United States v. Zagari, 111 F.3d 307, 329 (2d Cir. 1997) (emphasis omitted). To be “material,” a statement must have “a natural tendency to influence, or [be] capable of influencing, the decision of the decision making body to which it is addressed.” United States v. Gaudin, 515 U.S. 506, 509 (1995) (quotation marks omitted). When made during a civil deposition, statements are material only if “a truthful answer might reasonably be calculated to lead to the discovery of evidence admissible at the trial of the underlying suit.” United States v. Kross, 14 F.3d 751, 754 (2d Cir. 1994). In proving materiality, it “is necessary . . . that the government show that the statement, if believed, could have influenced the decision” of the decision-making body. United States v. Stern, No. 03 Cr. 81, 2003 WL 22743897, at *2 (S.D.N.Y. Nov. 20, 2003). Although issues of materiality are generally mixed questions of law and fact normally left to a jury, see Gaudin, 515 U.S. at 522-23, under certain circumstances, like those presented in this case, a court can decide this issue under Fed. R. Crim. P. 12(b). See United States v. Forde, 740 F. Supp. 2d 406, 412 (S.D.N.Y. 2010). Here, the deposition transcripts and Judge Preska’s ruling provide the Court with the relevant undisputed facts to decide this motion. Thus a trial will not assist in determining whether the Government can prove to a reasonable juror that Ms. Maxwell’s conduct violated 18 U.S.C. § 1623(a). United States v. Nitschke, 843 F. Supp. 2d. 4, 9 19 DOJ-OGR-00002433