DOJ-OGR-00021137.pdf

Case 22-1426, Document 59, 02/28/2023, 3475902, Page90 of 113 A238 The second element of Count Four in the Jury Charge to which the jury plainly refers requires "that Maxwell knowingly transported Jane in interstate commerce with the intent that Jane engage in sexual activity for which any person can be charged with a criminal offense in violation of New York law," namely, "New York Penal Law, Section 130.55, sexual abuse in the third degree." Tr. 3037:10-19 B. Applicable Law To prevail on a constructive amendment claim, a defendant must demonstrate that "the terms of the indictment are, in effect, altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment." United States v. D'Amelio, 683 F.3d 412, 416 (2d Cir. 2012). A constructive amendment is a per se violation of the Grand Jury Clause requiring reversal. Id at 417. The defendant must be "given notice of the core of criminality to be proven at trial." Id. "After identifying the core of criminality, a court must then determine whether the evidence or jury instructions at trial created a substantial likelihood that the defendant was not convicted of the crime described in that 75 DOJ-OGR-00021137