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Case 1:20-cr-00330-PAE Document 204 _ Filed 04/16/21 Page 135 of 239 and held that it was a due process violation for the prosecutor to suggest that certain witnesses, who had not testified at trial but who had testified before the grand jury, supported the Government’s theory of the case, when in fact their testimony before the grand jury did not. /d. The Second Circuit stated that this action “violated the due process prohibition against a prosecutor’s making ‘knowing use of false evidence,’ including by misrepresenting the nature of nontestimonial evidence.” Jd. at 570-71 (quoting Miller v. Pate, 386 U.S. 1, 6-7 (1967)). The Second Circuit further noted that reversal of a criminal conviction is a “drastic remedy that courts are generally reluctant to implement,” and that the court would only do so “when a prosecutor’s tactics cause substantial prejudice to the defendant and thereby serve to deprive him of his right to a fair trial.” Jd. The instant case is easily distinguishable from Valentine, as it does not involve any of the same facts, including any alleged mischaracterization of grand jury testimony at trial or any prosecutor making “knowing use of false evidence.” Jd. at 570-71; see also Mills v. Scully, 826 F.2d 1192, 1195 (2d Cir. 1987) (citing Valentine for the proposition that “[e]ven where defense counsel is aware of the falsity, there may be a deprivation of due process if the prosecutor reinforces the deception by capitalizing on it in closing argument, or by posing misleading questions to the witnesses” (citations omitted)). “Prosecutorial misconduct denies a defendant due process only when it is ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’” Blissett v. Lefevre, 924 F.2d 434, 440 (2d Cir. 1991) (quoting Greer v. Miller, 483 U.S. 756, 765 (1987)). The defendant has otherwise failed to identify how she has been deprived of the right to a fair trial. A jury will hear testimony about the defendant’s statements during her April and July 2016 depositions, along with other evidence, and determine if her statements were perjurious. 108 DOJ-OGR-00003069