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Case 1:20-cr-00330-PAE Document621 Filed 02/25/22 Page 39of51 States v. Long, 697 F. Supp. 651, 657 (S.D.N.Y. 1988). The defendant has not made such a showing. Her abstract assertions simply do not rise to that level, and the law is clear that “proof of prejudice must be definite and not speculative.” Birney, 686 F.2d at 105-06; see also Long, 697 F. Supp. at 657 (finding that “perceived prejudice is speculative” where there was “no way of knowing what [the unavailable witness’s] testimony would have been”); United States v. Valona, 834 F.2d 1334, 1339 (7th Cir. 1987) (noting that prejudice analysis must consider whether the missing witness “would have withstood cross-examination,” whether the jury would have found him a “credible witness,” and whether the testimony, when compared to other trial evidence “would affect the trial outcome”); Spears, 159 F.3d at 1085. “Courts have generally found that vague assertions that a deceased witness might have provided favorable testimony do not justify dismissing an indictment for delay.” (Dkt. No. 207 at 17); see also United States v. Scala, 388 F. Supp. 2d 396, 399-400 (S.D.N.Y. 2005) (“Counsel’s unsworn assertions as to vague generalities” that witnesses, “if alive, would give testimony helpful to [the defendant] do not show that [the defendant’s] ability to present a defense has been substantially and actually prejudiced.”). Here, “there is no evidence before the Court as to what [the deceased witnesses] would have testified, much less specific evidence of how losing that testimony has caused [the defendant] actual prejudice.” Jd. at 400. The defense’s unsworn assertions about what “the defense believes” these witnesses “could have established” or “could have testified” to do not justify dismissing the Indictment or vacating the defendant’s conviction. (Def. Mot. at 29-30). Second, even assuming that Pinto, Salhi, Markham, and Fontanilla would have testified as the defendant contends, such testimony would have no bearing on whether the defendant did, in 38 DOJ-OGR-00009601