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Case 1:20-cr-00330-PAE Document657_ Filed 04/29/22 Page 36 of 45 Indictment. The Defendant has nevertheless failed to show that she was substantially prejudiced by this evidence. See Salmonese, 352 F.3d at 621. When a defendant has notice of the government’s theory of the case before trial, she is not prejudiced by a variance. See Kaplan, 490 F.3d at 129-30. Pretrial disclosures may put a defendant on notice of evidence not specifically included in the indictment. See Khalupsky, 5 F.4th at 294. And a defendant’s failure to object to allegedly surprising evidence or to request a continuance when evidence is introduced suggests that a defendant was not unfairly surprised or prejudiced. See Kaplan, 490 F.3d at 130. Here, the Defendant had sufficient notice of the Government’s theory of the case, and of Jane’s testimony regarding New Mexico specifically, to avoid substantial prejudice. The Indictment charged a scheme to sexually abuse underage girls in New York. In service of this scheme, the Indictment alleged that Epstein and the Defendant groomed the victims for abuse at various properties and in various states, including Epstein’s ranch in New Mexico. Jane had long recalled traveling to New Mexico, see Maxwell Br. at 16-17, although she did not report that Epstein had engaged in sexual activity with her at this property until closer to trial. But the Defendant had adequate notice of this particular testimony such that there was no danger of substantial prejudice. The Defendant received the Government’s notes of Jane’s interview where she recalled abuse in New Mexico on November 6, 2021, more than three weeks before trial. At that point, the parties were still litigating the very instructions for Kate and Annie that the Defendant claims she would have sought for Jane had she received adequate notice. See, e.g., Nov. 23, 2021 Tr. at 28-38; see also Lebedev, 932 F.3d at 54 (concluding in part that the defendant was not “unfairly and substantially” prejudiced because “[t]he government disclosed the evidence and exhibits . . . four weeks prior to trial”). Moreover, that the Defendant did not 36 DOJ-OGR-00010402