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Case 22-1426, Document 58_02/28/2023, 3475901, Page179 of 221 A-379 Case 1:20-cr-00330-AJN Document 657 Filed 04/29/22 Page 22 of 45 prejudicial variance. For the following reasons, the Court disagrees and denies the Defendant’s motion on this basis. A. Applicable Law Under the Fifth Amendment’s Grand Jury Clause, “a defendant has the right to be tried only on charges contained in an indictment returned by a grand jury.” United States v. Wozniak, 126 F.3d 105, 109 (2d Cir. 1997). “[W]hen the charge upon which the defendant is tried differs significantly from the charge upon which the grand jury voted,” a constructive amendment occurs and reversal is required. United States v. Khalupsky, 5 F Ath 279, 293 (2d Cir. 2021). “To prevail on a constructive amendment claim, a defendant must demonstrate that either the proof at trial or the trial court’s jury instructions so altered an essential element of the charge that, upon review, it is uncertain whether the defendant was convicted of conduct that was the subject of the grand jury’s indictment.” United States v. Salmonese, 352 F.3d 608, 620 (2d Cir. 2003) (quoting United States v. Frank, 156 F.3d 332, 337 (2d Cir. 1998)). In making this determination, the Court first delineates the “core of criminality” of the crime alleged. United States v. Gross, No. 15-cr-769 (AJN), 2017 WL 4685111, at *20 (S.D.N.Y. Oct. 18, 2017), aff'd sub nom. United States v. Lebedev, 932 F.3d 40 (2d Cir. 2019). The “core of criminality... involves the essence of a crime, in general terms.” United States v. Daugerdas, 837 F.3d 212, 225 (2d Cir. 2016) (alteration in original) (quoting United States v. D’Amelio, 683 F.3d 412, 418 (2d Cir. 2012)). The Court then determines whether the evidence or jury instructions at trial created a “substantial likelihood” that the defendant was not convicted of the crime described in that core, but instead of a crime “distinctly different.” D’Amelio, 683 F.3d at 416,419. The Second Circuit has “consistently permitted significant flexibility in proof, provided that the defendant was given notice of the core of criminality to be proven at trial.” United States v. 22 DOJ-OGR-00021005