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Case 1:20-cr-00330-PAE Document621 Filed 02/25/22 Page 37 of51 witness and missing documents insufficient prejudice); United States v. Pierre-Louis, No. 16 Cr. 541 (CM), 2018 WL 4043140, at *4-5 (S.D.N.Y. Aug. 9, 2018) (death of a defense witness and defendant’s own memory issues insufficient prejudice). Moreover, even when a claim of prejudice is based upon the complete loss of a witness’s testimony or other evidence, a defendant nevertheless must show how that testimony or evidence would have affected the outcome or otherwise have assisted the case. See United States v. Gilbert, 266 F.3d 1180, 1187 (9th Cir. 2001) (defendant’s pre-indictment delay claim rejected due to failure to show “how the testimony from [three absent] witnesses would have benefitted his case”); United States v. Spears, 159 F.3d 1081, 1085 (7th Cir. 1998) (“[A] defendant must do more than show that a particular witness is unavailable and that the witness’ testimony would have helped the defense. He must also show that the witness would have testified, withstood cross-examination, and that the jury would have found the witness credible.”’). “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 324-26 (fading witness memories insufficient; “no one suggests that every delay- caused detriment to a defendant’s case should abort a criminal prosecution’); Snyder, 668 F.2d at 689 (death of a defense witness three years before indictment insufficient prejudice); King, 560 F.2d at 130-31 (death of witness and missing documents insufficient prejudice); United States v. Tannelli, 461 F.2d 483, 485 (2d Cir. 1972) (unavailability of witnesses insufficient prejudice); 36 DOJ-OGR-00009599