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Case 1:20-cr-00330-PAE Document 204 _ Filed 04/16/21 Page 162 of 239 The defendant is, of course, free to testify on her own behalf to her professed confusion or otherwise argue to the jury that the questions were ambiguous or the answers truthful. The issue before the Court is whether the questions were so fundamentally ambiguous that a jury, after hearing the trial evidence, could not conclude that the “response given was false as the defendant understood the question.” Lighte, 782 F.2d at 375 (internal quotation marks omitted). The defendant has failed to establish such a fundamental defect.” 3. Materiality Finally, the defendant argues that none of these answers was material to the defamation action. Asa threshold issue, however, materiality is also not appropriate for resolution on a motion to dismiss the indictment. As noted above, materiality is a jury question “except in the most extraordinary circumstances.” Forde, 740 F.Supp.2d at 412 (citing Gaudin, 515 U.S. at 522-23). As the Supreme Court explained in Johnson v. United States, 520 U.S. 461 (1997), “there is no doubt that materiality is an element of perjury under § 1623,” and its precedent “therefore dictates that materiality be decided by the jury, not the court.” /d. at 465. The Second Circuit has explained that it is inappropriate for courts to resolve questions relating to the sufficiency of the evidence on a motion to dismiss the indictment. The Federal Rules of Criminal Procedure contain no “analogue for summary judgment under Federal Rule of Civil Procedure 56” for several reasons. United States v. Sampson, 898 F.3d 270, 280 (2d Cir. 2018). First, “[p]ermitting civil ‘summary judgment’-like motions . . . would enable an end-run around the calibrated framework for discovery in criminal cases,” and thereby “upset the policy ° Even if the Court concludes that any of the individual statements charged in the Indictment cannot sustain a perjury conviction, the count survives so long as some statement can properly be presented to the jury. See Bonacorsa, 528 F.2d at 1221 (“It is customary, and ordinarily not improper, to include more than one allegedly false statement in a single count. ... Where there are several such specifications of falsity in a single count, proof of any of the specifications is sufficient to support a verdict of guilty.” (citations omitted)). 135 DOJ-OGR-00003096