DOJ-OGR-00014326.pdf

Case 1:20-cr-00330-PAE Document 765 Filed 08/10/22 Page 22 of 95 2760 LCI1MAX1 authority if the Court would like -- that the fact that there are proper nouns in the "to wit" clauses does not mean the government is bound by them as elements of the offense, as long as the government is proceeding on the essential elements of the crime as charged by the grand jury. And I think there's no suggestion -- it's quite clear that the government has been trying to prove the offenses in the indictment and there's no need to include words like "travel from Florida to New York," or "Jane," to avoid any suggestion of a variance. THE COURT: Yes, I agree with that. Obviously this dispute was in the parties' proposed charge, and I balanced I think, as appropriate, including the name of the individual where a particular count applies only to them, but not otherwise restating factually in the explanation of the counts and the elements each of the factual points to be proved. So I think here, Mr. Rohrbach, you didn't disagree with substituting Jane for an individual? MR. ROHRBACH: Well, that just creates the -- the government thinks the charge is fine as it is because, in line 11, it says it relates to Jane, and the government would be fine with adding "solely to Jane," or "relates," if that's what the defense would like. I do think adding Jane in line 6 would create a problem when it's later incorporated by the conspiracy instruction. THE COURT: Okay. I agree with that. And that's the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00014326