DOJ-OGR-00021011.pdf

Case 22-1426, Document 58, 02/28/2023, 3475901, Page185 of 221 A-385 Case 1:20-cr-00330-AJN Document 657 Filed 04/29/22 Page 28 of 45 part of the same "set of discrete facts consistent with the charge in the indictment," not a previously unidentified and independent theory of guilt. D'Amelio, 683 F.3d at 419; see also United States v. Jones, 847 F. App'x 28, 30 (2d Cir. 2021) (summary order) (no constructive amendment in sex trafficking case where indictment did not allege "advertising" but the evidence "fell squarely within the charged scheme" (cleaned up)). Third, the Government's summation also reflected the core of criminality of transporting Jane and other underage girls to New York with the intention that sexual activity would occur in New York. In its summation regarding Count Four, the Government focused on travel to New York. See Trial Tr. at 2891-92.5 The Government's explanation of Counts One and Three followed this pattern as well, with the summation again making clear that the Defendant and Epstein had intended for the victims to be "sexually abused in New York." Id. at 2895. Thus, the Court's instructions to the jury, the evidence presented at trial, and the Government's argument in summation did not describe "behavior entirely separate from that identified in the indictment," Bastian, 770 F.3d at 223 (quoting Danielson, 199 F.3d at 670), but instead consistently captured the core of criminality with which the Defendant was charged. 2. The jury note and the Court's response did not result in a constructive amendment. The Defendant contends that regardless of whether the Court's prior instructions or Government's arguments at trial were proper, a jury note revealed that the jury convicted the Defendant for intending that Jane engage in sexual activity in New Mexico, not New York. See Maxwell Reply at 2. She argues that the Court then erred by refusing a supplemental instruction. The ambiguous note and the Court's rejection of the Defendant's proposed responses to it did not 5 In its summation regarding Count Two, which introduced the New York predicate offense to the jury, the Government also repeatedly emphasized that the Defendant and Epstein enticed Jane to travel to New York to be abused. See Trial Tr. 2889-90. 28 DOJ-OGR-00021011