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Case 1:20-cr-00330-PAE Document647_ Filed 03/11/22 Page13 of 24 within the state of New York. (See Instr. No. 17, 19, 21). To lawyers, that may seem obvious because we are familiar with the concept of jurisdiction and understand the limited territorial reach of state criminal statutes. But to a juror who does not have legal training, it is not so obvious. Based on the jury instructions they had been given, the jury could have easily (but mistakenly) determined that the sexual abuse Jane described in New Mexico was “sexual activity for which any person can be charged with a criminal offense in violation of New York law,” as long as it met all the elements of Section 130.55, even though all of the conduct took place in New Mexico. It follows, then, that the jury could have mistakenly believed that if they found that Ms. Maxwell intended for Jane to engage in sexual activity in New Mexico, as opposed to New York, that was sufficient to satisfy the second element of Count Four. Ultimately, it is not necessary to determine why the jury was confused on this point. The confusion was clear on the face of the Jury Note and needed to be corrected. The defense’s proposed supplemental instruction would have clarified this very issue. It stated in relevant part: As to the second element of Count Four, you must determine whether the Government has proven beyond a reasonable doubt that the Defendant transported Jane with the intent that Jane would engage in sexual activity within the state of New York in violation of New York Penal Law 130.55. Dkt. 566 (emphasis added). The defense further explained that the instruction needed to be given because, according to the Jury Note, the jury did not understand that Count Four “requires an intent to violate New York law, and you can’t violate this section of New York law in New Mexico.” (Tr. 3154) (emphasis added). But the Court declined to give this instruction, even though neither the Court nor the government questioned its accuracy. (Tr. 3148-54).* The * The Court disagreed with the appropriateness of the first paragraph of the defense’s proposed instruction and questioned the accuracy of the third paragraph. But neither the Court nor the government challenged the accuracy of the second paragraph, which is quoted above. (Tr. 3148-54). Moreover, even if the Court disagreed with the entire text of the defense’s proposed instruction, it was the Court’s responsibility to give the jury an appropriate instruction that clarified the intent requirement and prevented a constructive amendment. DOJ-OGR-00010279