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Case 1:20-cr-00330-PAE Document647_ Filed 03/11/22 Page 12 of 24 4685111, at *23 (“[T]he Second Circuit has emphasized the power of limiting instructions to prevent constructive amendment|.]” (emphasis in original)). By declining to provide a supplemental instruction, the Court created “a substantial likelihood” that Ms. Maxwell was convicted of crimes “distinctly different” from the ones alleged. Gross, 2017 WL 4685111, at *21; see also Millstein, 401 F.3d at 65 (“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)). The government argues that any confusion the jury may have had on the issue of intent was ameliorated by the Court’s decision to refer the jury to the existing instruction on the second element of Count Four. (Opp. at 19). According to that instruction, the government had to prove that Ms. Maxwell intended “that Jane engage in sexual activity for which any person can be charged with a criminal offense in violation of New York law” and further specified that the relevant criminal offense was a violation of New York Penal Law, Section 130.55. (Instr. No. 21). The government contends that the jury could not have misunderstood the instruction because it did not mention New Mexico at all and only mentioned an intent to engage in sexual activity that violated New York law. (Opp. at 19-20). The government’s confidence, however, is belied by the Jury Note, which indicates that the jury thought it could potentially convict Ms. Maxwell on Count Four if it found that she intended for Jane to engage in sexual activity in New Mexico. And it is not hard to see where this confusion came from. Although the jury instructions state that the jury needed to find that Ms. Maxwell intended “that Jane engage in sexual activity for which any person can be charged with a criminal offense in violation of New York law,” nowhere in the jury instructions does it state that a violation of New York law, or specifically a violation of Section 130.55, must occur DOJ-OGR-00010278