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Case 1:20-cr-00330-PAE Document 204 Filed 04/16/21 Page 175 of 239

as to those counts, and would consent to a similar limiting instruction, which a jury would be presumed to follow. And, of course, in a severed trial exclusively on the perjury counts, the defendant would surely argue that a limiting instruction is necessary to prevent the jury from concluding that the defendant’s statements were false based in part on the substance of Giuffre’s unproven allegations. Just as a jury would set aside the substance of Giuffre’s allegations for that purpose, so can the jury set aside the substance of Giuffre’s allegations for Counts One through Four.

The defendant contends instead that the perjury counts require a “collateral trial” on the truth of Giuffre’s statements and resolution of “more than 50 substantive motions . . . pending before the District Court.” (Def. Mot. 5 at 9-10). As described in Section V, a false statement in a civil deposition is material (1) if a “truthful answer might reasonably be calculated to lead to the discovery of evidence admissible at the trial of the underlying suit,” United States v. Kross, 14 F.3d 751, 753 (2d Cir. 1994), or (2) if it has “a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed,” United States v. Gaudin, 515 U.S. 506, 509 (1995) (alteration in original) (internal quotation marks omitted). Neither of these standards requires the jury to determine whether the defendant’s statements would have tipped the scales in the defamation suit or would likely have led to the discovery of evidence. See Kungys v. United States, 485 U.S. 759, 771 (1988) (“It has never been the test of materiality that the misrepresentation or concealment would more likely than not have produced an erroneous decision, or even that it would more likely than not have triggered an investigation.”); United States v. An Antique Platter of Gold, 184 F.3d 131, 135-36 (2d Cir. 1999) (distinguishing the “natural tendency test” from a but-for test); Kross, 14 F.3d at 754 (rejecting, in a civil forfeiture case, the argument that the defendant’s true testimony would not itself have justified a forfeiture because

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