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Case 1:20-cr-00330-PAE Document 204 _ Filed 04/16/21 Page 149 of 239 Finally, even if a defendant makes a knowing false statement, a perjury conviction requires that the statement be material. A false statement is material if it has “a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed.” United States v. Gaudin, 515 U.S. 506, 509 (1995) (alteration in original) (quotation marks omitted). A statement made in a civil deposition is also material 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)); see United States v. Birrell, 470 F.2d 113, 115 n.1 (2d Cir. 1972) (explaining, in the context of a motion to proceed in forma pauperis and for appointment of counsel, that “it must be shown that a truthful answer would have been of sufficient probative importance to the inquiry so that, as a minimum, further fruitful investigation would have occurred.” (citation and internal quotation marks omitted)). “The testimony need not have actually influenced, misled, or impeded the proceeding.” United States v. Chan Lo, No. 14 Cr. 491 (VSB), 2016 WL 9076234, at *8 (S.D.N.Y. Feb. 4, 2016), aff'd 679 F. App’x 79 (2d Cir. 2017); see Forde, 740 F. Supp. 2d at 412. Since materiality is an element of the offense, it is a question for the jury “except in the most extraordinary circumstances.” Forde, 740 F. Supp. 2d at 412 (citing Gaudin, 515 U.S. at 522-23). Discussion The Government expects to prove at trial that the defendant’s deposition statements were knowingly false. The defendant’s strained efforts to inject ambiguity into the questioning and to justify her answers as truthful are in significant part, arguments that are properly put to the jury and not a basis to dismiss the counts pretrial and without the benefit of a complete record. See United States v. Triumph Capital Group, Inc., 237 F. App’x 625, 627-28 (2d Cir. 2007) (“Generally, the meaning and truthfulness of a defendant’s statement is a question of fact for the 122 DOJ-OGR-00003083