DOJ-OGR-00021022.pdf

Case 22-1426, Document 58, 02/28/2023, 3475901, Page196 of 221 A-396 Case 1:20-cr-00330-AJN Document 657 Filed 04/29/22 Page 39 of 45 the Government's investigation was relatively recent, e.g., Trial Tr. at 354 (Jane), 1245 (Kate), 1680-84 (Carolyn), suggesting that an earlier prosecution was not feasible. Even on the first step of the inquiry, the Defendant has failed to demonstrate that she suffered actual and substantial prejudice from delay. United States v. Pierre-Louis, No. 16 CR 541 (CM), 2018 WL 4043140, at *5 (S.D.N.Y. Aug. 9, 2018). Substantial prejudice is a stringent standard. The Defendant's "proof of prejudice must be definite and not speculative." United States v. Birney, 686 F.2d 102, 105-06 (2d Cir. 1982). Actual prejudice "is commonly demonstrated by the loss of documentary evidence or the unavailability of a key witness." Cornielle, 171 F.3d at 752. But "claims of mere loss of memory resulting from the passage of time have been held to be insufficient." Pierre-Louis, 2018 WL 4043140, at *4. And for any evidence lost because of delay, the Defendant "must 'demonstrate how (the loss of evidence) is prejudicial' to her." Birney, 686 F.2d at 106 (quoting United States v. Mays, 549 F.2d 670, 677 (9th Cir. 1977)). The Defendant identifies two major sets of lost evidence that, she says, demonstrate actual prejudice to her defense at trial. First, she points to documentary evidence absent at trial: (1) flight records, including passenger manifests and records from Epstein's travel agent, that may have been more detailed than the flight logs entered at trial; (2) financial documents, including bank records and credit card records, which would have revealed more about the Defendant's receipt of funds from Epstein and could have been used to verify or disprove certain dates; (3) a complete set of the Defendant's phone records; and (4) Epstein's property records for both his New York and New Mexico residences. Second, the Defendant identifies four deceased witnesses: Albert Pinto and Roger Salhi, architects that built and renovated Epstein's residences in Florida, New York, and New Mexico; Sally Markham, a property manager for Epstein in the 39 DOJ-OGR-00021022