DOJ-OGR-00010276.jpg

Case 1:20-cr-00330-PAE Document647_ Filed 03/11/22 Page10of 24 The government further argues that the Jury Note is ambiguous because it is not clear which flights it refers to or where the jury believed the sexual activity occurred. (Opp. at 15-16). The first point is irrelevant and the second is based on a disingenuous reading of the Jury Note. As to the flights, it is true that one of the jury’s questions was whether it was sufficient to convict under Count Four if the jury found that Ms. Maxwell assisted with Jane’s return trip from New Mexico, but not her flight to New Mexico. But the problem raised by the Jury Note had nothing to do with the specific flights the jury may have been referring to, or whether Jane was on those flights, or whether those flights may have gone to New York. The problem raised by the Jury Note related to the jury’s other question about Ms. Maxwell’s intent. The jury was asking whether they could convict on Count Four if they found that Ms. Maxwell’s intent was for Jane to engage in sexual activity in New Mexico. That was the question that raised the potential for a constructive amendment. And contrary to the government’s assertion, the Jury Note was crystal clear about where the jury believed the sexual activity occurred: New Mexico. See Court Exhibit #15 (“... the flight to New Mexico where/if the intent was for Jane to engage in sexual activity ...” (emphasis added)).” Finally, the government attempts to cast further doubt on the clear meaning of the Jury Note by altering its text. The government posits that the jury was asking whether Ms. Maxwell could be found guilty based “in part” on sexual activity occurring in New Mexico. (Opp. at 16). That is simply not what the Jury Note says. The jury could have easily asked that very question: “Can Ms. Maxwell be found guilty on Count Four based in part on Jane’s testimony about sexual abuse in New Mexico?” In fact, as the government points out, the jury had previously sent a 2 We note that the government inserted a comma between “New Mexico” and “where/if,” which does not exist in the Jury Note. Compare Opp. at 13 (“... New Mexico, where/if ...”) with Court Exhibit #15 (“... New Mexico where/if ...”). The absence of a comma is significant to the analysis because it clarifies that the jury was focused on New Mexico as the place where Ms. Maxwell intended Jane to engage in sexual activity. DOJ-OGR-00010276