DOJ-OGR-00021142.pdf

--- Page 1 --- **Case 22-1426, Document 59, 02/28/2023, 3475902, Page95 of 113** **Case 22-1426, Document 59, 02/28/2023, 3475902, Page95 of 113** they found that Maxwell had some role in arranging Jane's return flight from New Mexico, after the sexual abuse had already taken place, they could convict her on the substantive transportation count (Count Four), assuming that arranging the return flight was sufficient to satisfy the second element of Count Four. Hence, the question in the Jury Note. Thus, it was necessary for the Court to give the jury a supplemental instruction, as requested by the defense, to clarify the correct basis for conviction under Count Four. The Court's refusal to do so allowed the jury to modify the essential elements of the charged offense and created substantial likelihood that Maxwell was convicted of a crime other than the one alleged in the Indictment. D'Amelio, 683 F.3d at 419-21. Moreover, given the substantial likelihood that the jury convicted Maxwell on Count Four based on the New Mexico conduct, there is also a substantial likelihood that they improperly convicted her on the related conspiracy count (Count Three) based on the same conduct. The substantive transportation offense charged in Count Four was the object of the conspiracy charged in Count Three, and both conspiracy counts required an agreement to violate New York law. **80** **DOJ-OGR-00021142**