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Case 1:20-cr-00330-PAE Document 204 _ Filed 04/16/21 Page 71 of 239 would have found the witness credible” (citations omitted)). “Courts have held that ‘the defendant also has the burden of showing that 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)). The vast majority of pre-indictment delay cases fail on the first prong. See, e.g., Marion, 404 U.S. at 324-25 (fading witness memories insufficient; “no one suggests that every delay- caused detriment to a defendant’s case should abort a criminal prosecution”); United States v. Snyder, 668 F.2d 686, 689 (2d Cir. 1982) (death of a defense witness three years before indictment insufficient prejudice); United States v. Iannelli, 461 F.2d 483, 485 (2d Cir. 1972) (unavailability of witnesses insufficient prejudice); United States v. King, 560 F.2d 122, 130-31 (2d Cir. 1977) (death of witness and missing documents insufficient prejudice); Pierre-Louis, 2018 WL 4043140, at “4-5 (death of a defense witness and defendant’s own memory issues insufficient prejudice). Ze Discussion The defendant points to at least four ways in which she claims the passage of time prejudiced her defense, but none of her hypothetical claims of prejudice withstand scrutiny. In particular, she contends that, as a result of the passage of time, four witnesses have died, unnamed Epstein employees have been “lost,” unspecified witnesses now have “failed or corrupted” memories, and records have been lost or destroyed. She further contends that these collectively demonstrate actual prejudice. (Def. Mot. 7 at 8-14). None has merit, individually or collectively. With respect to the first three arguments, the fact that certain witnesses cannot testify because of their deaths or failed memories does not compel a finding of actual prejudice. “Faded memories or unavailable witnesses are inherent in any delay, even if justifiable. To merit dismissal a defendant must demonstrate a substantial, actual prejudice to his ability to defend himself.” 44 DOJ-OGR-00003005