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Case 1:20-cr-00330-PAE Document 204 Filed 04/16/21 Page 76 of 239

death.17 As such, it is neither surprising nor terribly probative of any issue in dispute in this case
that Detective Recarey might have testified to a lack of knowledge as to what the victims identified
in this Indictment have told the USAO-SDNY. In sum, the defendant has not put "specific
evidence" before this Court demonstrating that the loss of Detective Recarey’s testimony, even if
admissible, has caused her actual prejudice. Scala, 388 F. Supp. 2d at 400.

The defendant next contends that had the Government brought the charges earlier, she
would have interviewed and subpoenaed as witnesses "the many Epstein employees that were
present at the different locations during that three-year period." (Def. Mot. 7 at 11). She does not
specify which employees she would have called as witnesses, the grounds for contending they are
"lost" or "missing," whether they would have been willing to testify, or what admissible evidence
they would have provided. She merely speculates that the evidence could have helped her defense.
This is far from the definite proof of prejudice required to state a due process claim. See United
States v. Greer, 956 F. Supp. 525, 528 (D. Vt. 1997) ("In the context of unavailable witnesses, the
defendant must offer some grounds for his belief that the absent witness would have helped his
case in a material way." (internal quotation marks and citation omitted)).

The defendant also argues that "[m]any potential witnesses have been contacted in relation
to this matter and other related litigations," noting that "[s]ignificant numbers of potential
witnesses no longer remember when events may have occurred" or "who was present." (Def. Mot.
7 at 12). Dimming or fading memories over the passage of time are not in themselves sufficient
to "demonstrate that [defendants] cannot receive a fair trial" or "justify the dismissal of the
indictment." Marion, 404 U.S. at 326; Elsbery, 602 F.2d at 1059. Indeed, the fact that the defense
described the witnesses as "potential witnesses" suggests that she might still call them. Further,

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17 The third victim, Minor Victim-2, was interviewed previously by the FBI. The Government is
not aware of Detective Recarey having participated in an interview of Minor Victim-2.

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