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Case 1:20-cr-00330-PAE Document657_ Filed 04/29/22 Page 35of45 understanding. See D’Amelio, 683 F.3d at 416. Accordingly, the Court concludes that no constructive amendment resulted as to Count Four. 3. No constructive amendment occurred as to Count Three. The Defendant’s argument as to constructive amendment of Count Three, conspiracy to transport, wholly depends on her theory as to Count Four.’ She argues that since it is “clear” that the jury convicted the Defendant of Count Four based only on Jane’s New Mexico testimony, it must have convicted on the same basis for the conspiracy counts. Maxwell Br. at 16. Because no constructive amendment resulted as to Count Four, this argument is unavailing. But even if the Court were persuaded that the jury note revealed that the jury convicted the Defendant of Count Four on that basis, the note pertained only to Count Four and provided no basis to speculate as to the jury’s conviction of Count Three. Moreover, it is not substantially likely that the jury convicted the Defendant of Count Three on Jane’s New Mexico testimony alone. As described in detail above in the Court’s denial of the Defendant’s Rule 29 motion, the Government presented evidence that Annie and Carolyn were also victims of the conspiracy. Accordingly, even if a constructive amendment resulted as to Count Four, vacatur would still not be warranted as to Count Three. C. No prejudicial variance occurred. In the alternative, the Defendant argues that she was substantially prejudiced because the Indictment did not contain any allegations that Jane was sexually abused in New Mexico. She therefore claims she was unfairly surprised by its introduction. For purposes of this motion, the Court will assume that Jane’s testimony regarding New Mexico constituted a variance from the ° As noted above, because the Court will not enter judgment on Count One on the parties’ consent, the Court addresses only Count Three here. In any event, the Defendant’s arguments as to why Counts One and Three were constructively amended are the same. See Maxwell Br. at 16. 35 DOJ-OGR-00010401