DOJ-OGR-00010403.jpg

Case 1:20-cr-00330-PAE Document657_ Filed 04/29/22 Page 37 of 45 request a continuance or object to Jane’s testimony until the charging conference suggests that she was not unfairly surprised. See Kaplan, 490 F.3d at 130. Accordingly, there is no indication in the record that the evidence adduced at trial unfairly surprised or prejudiced the Defendant. Finally, the Defendant argues that Jane’s testimony resulted in the “ultimate prejudice” because it led to the jury improperly convicting her on three of the four Mann Act counts. Maxwell Br. at 18. For the same reasons noted above, the Defendant was not prejudiced by the Court’s response to the jury note because the ambiguous note did not reveal that the jury improperly convicted the Defendant of the Mann Act counts. Moreover, as explained above, the Defendant’s request for a limiting instruction in the jury charge and a supplemental instruction following the ambiguous jury note was unnecessary. While Kate’s and Annie’s limiting instructions were appropriate at the time of their testimony when the jury had not yet been instructed on the meaning of “illegal sexual activity,” it was unnecessary and potentially confusing to repeat them again in the context of the charge. At that point, the charge made clear to the jury that only a violation of New York law could form the predicate for the Mann Act counts—not New Mexico law. In sum, the Defendant has not shown that she suffered “substantial prejudice” meriting the vacatur of the Mann Act counts. IV. The Court denies the Defendant’s pre-indictment delay claim. Last, the Defendant argues, as she did in two pretrial motions, that all of her convictions should be vacated because of the Government’s allegedly excessive and prejudicial delay in prosecuting the Defendant. As this Court previously explained, because “the statute of limitations is ‘the primary guarantee against bringing overly stale criminal charges,’” the Defendant must satisfy a stringent two-part test. Maxwell, 534 F. Supp. 3d at 316 (quoting United States v. Cornielle, 171 F.3d 748, 751 (2d Cir. 1999)). The Defendant “must show both 37 DOJ-OGR-00010403