DOJ-OGR-00021012.pdf

Case 22-1426, Document 58, 02/28/2023, 3475901, Page186 of 221 A-386 Case 1:20-cr-00330-AJN Document 657 Filed 04/29/22 Page 29 of 45 alter the fact that the evidence and instructions at trial captured the core of criminality of the Indictment. The jury note at issue read: Under Count Four (4), if the defendant aided in the transportation of Jane's return flight, but not the flight to New Mexico where/if the intent was for Jane to engage in sexual activity, can she be found guilty under the second element? Court Ex. 15, Dkt. No. 593 at 23. After hearing from the parties, the Court determined that it was unclear to what testimony the note referred and what legal question the note asked. Accordingly, the Court concluded that the appropriate course was to refer the jury back to the instruction for the second element of Count Four, with a reminder to consider carefully the full instruction. Trial Tr. at 3141. The Court also rejected the Defendant's supplemental instruction proposed the following day because it was partially unresponsive, partially redundant, and partially an erroneous statement of law. Id. at 3148-50. The Defendant's contention that this series of events worked a constructive amendment to the Indictment is without merit. First, the Defendant speculates extensively about which flights and evidence the jury was referencing in the note, hazarding that the jury was focused on a 1997 flight from New York to New Mexico and an unidentified return flight to Florida. See Maxwell Br. at 14-15. But Jane testified about taking numerous flights both on Epstein's private plane and on commercial carriers. The note did not specify which of these many flights or other testimony the jury was considering. The Court could not provide supplemental instruction based on such a speculative foundation. Second, the note was not "crystal clear" as the Defendant contends. Maxwell Reply at 6. Rather, as sometimes occurs, the note was decidedly ambiguous as to the precise legal question being asked. For example, the jury could have been asking about aiding-and-abeting liability as 29 DOJ-OGR-00021012