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Case 1:20-cr-00330-PAE Document 647 Filed 03/11/22 Page /7 of 24 indicating that it is confused, “[i]t is the responsibility of the trial judge to provide the jury with sufficient instruction to enable it to assess the evidence within the proper legal framework and to reach a rational verdict”). The Court’s decision not to do so and to refer the jurors to the existing jury instructions, which had caused the confusion in the first place, was erroneous and resulted in a constructive amendment and/or variance by permitting the jury to convict Ms. Maxwell on the Mann Act counts based on an alternative theory of guilt not charged in the Indictment. See United States v. Millstein, 401 F.3d 53, 65 (2d Cir. 2005) (“When the trial evidence or the jury charge operates to broaden the possible bases for conviction from that which appeared in the indictment, the indictment has been constructively amended.” (cleaned up)). Accordingly, the Court should vacate her convictions on Counts One, Three, and Four and grant a new trial.! A. The Jury Note Indicated that the Jury Misunderstood the Intent Requirement for Count Four. The Court erred when it concluded that that the Jury Note was “too difficult to parse” and declined to give the jury a supplemental instruction. (Tr. 3126-40). In fact, the text of the Jury Note is straightforward and indicates on its face that the jurors had an incorrect understanding of the intent requirement for Count Four that needed to be clarified with a supplemental instruction. The Note reads: 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 Exhibit #15). Stated slightly differently, but using the same words that the jurors themselves used, the question posed by the Jury Note was the following: ! The government contends that this argument is “better framed as a challenge to the Court’s response to the jury note or a challenge to the jury instructions in the form of a constructive amendment argument.” (Opp. at 20). It is not clear to the defense how these arguments differ in any material respect from the one we are advancing. For the sake of clarity, we are claiming that the Court’s response to the Jury Note was erroneous and resulted in a constructive amendment/variance. DOJ-OGR-00010273