DOJ-OGR-00010277.jpg

Case 1:20-cr-00330-PAE Document647 _ Filed 03/11/22 Page11of 24 note asking a similar question about Annie Farmer’s testimony. See Court Exhibit # 9 (“Can we consider Annie’s testimony as conspiracy to commit a crime in Counts One and Three?”). But the Jury Note did not say that, nor did it contain the phrase “in part.” Instead, the Jury Note asked a much more specific question about whether the jury could convict Ms. Maxwell on Count Four if it found that she (1) intended for Jane to engage in sexual activity in New Mexico and (2) aided with Jane’s return flight from New Mexico, but not her flight to New Mexico. The government’s speculation about what the jury may have meant cannot alter the clear text and meaning of the Jury Note, which revealed that the jury fundamentally misunderstood the intent requirement necessary for Count Four and needed to be given a supplemental instruction to 3 remedy the confusion. B. The Court Erred When It Declined to Give the Jury a Supplemental Instruction Clarifying the Intent Requirement for Count Four. The Court further erred when it declined to give the jury a supplemental instruction, as requested by the defense, clarifying the intent requirement for Count Four — namely, that the government had to prove that Ms. Maxwell intended for Jane to engage in sexual activity in New York. The Jury Note showed not only that the jury had a mistaken understanding of the law concerming intent, but also indicated that the jury might convict Ms. Maxwell on Count Four based an alternative theory of guilt not charged in the Indictment. At that point, it was the responsibility of the Court to give the jury a supplemental instruction “to enable it to assess the evidence within the proper legal framework and to reach a rational verdict” and to avoid a constructive amendment of the charges. Parker, 903 F.2d at 101; see also Gross, 2017 WL 3 The government chides the defense for engaging in speculation about what the jury may have been thinking before sending the Jury Note. (Opp. 17-19). The defense engaged in that discussion to explain why the proof at trial may have led the jury to focus on Jane’s testimony about the conduct in New Mexico with respect to Count Four. But the Court need not rely on that analysis. The Jury Note speaks for itself. The jury was focused on Jane’s abuse in New Mexico and misunderstood the intent requirement necessary to convict under Count Four. DOJ-OGR-00010277