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Case 22-1426, Document 58,_02/28/2023, 3475901, Page26 of 221 A-226 Case 1:20-cr-00330-AJN Document 566 Filed 12/28/21 Page 4 of 7 The Honorable Alison J. Nathan December 27, 2021 Page 4 Despite the government’s confidence, Court Exhibit #15 indicates that the jury is considering a conviction on Count Four based on Jane’s travel to and from New Mexico and alleged sexual abuse that purportedly took place in New Mexico. Should the jury convict on this basis, it would be a constructive amendment and/or a variance from the express language of Count Four. Jane’s alleged travel from Florida to New York and the sex acts that she purportedly engaged in there in violation of New York law are part of the “core of criminality” charged in Count Four. See Wozniak, 126 F.3d at 109-111 (finding constructive amendment where indictment charged a conspiracy to distribute cocaine and methamphetamine, but the evidence at trial focused on marijuana). A conviction based on Jane’s travel to and from New Mexico and any sexual activity that allegedly occurred while she was there would be premised on facts elicited at trial that are “completely distinct” from the allegations in the indictment. Gross, 2017 WL 4685111, at *20. Ifthe Court does not instruct the jury that they cannot convict Ms. Maxwell on Count Four based on the alleged events in New Mexico, it would permit the jury to convict Ms. Maxwell of an offense “other than that charged in the indictment” and constitute a constructive amendment. /d. A constructive amendment like this is per se reversible error without a showing of prejudice. United States v. Frank, 156 F.3d 332, 337 n.5 (2d Cir. 1998). At the very least, if the jury convicts Ms. Maxwell on Count Four based on Jane’s alleged sexual activity in New Mexico, it would be a substantial variance from the allegations in the S2 Indictment, which requires an intent that Jane travel to New York and violate New York law. The Court should instruct the jury as requested below to prevent such a variance from occurring. Ms. Maxwell has no burden to prove prejudice at this point since the variance can still be prevented by 2068538.1 DOJ-OGR- 00020852