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Case 22-1426, Document 59, 02/28/2023, 3475902, Page89 of 113 conspiracies (Counts One and Three). There is a substantial likelihood that the jury believed that sexual activity that violated New York Penal Law §130.55 need not have occurred in New York and that Maxwell was convicted of Count Four based on Jane’s testimony about sexual activity with Epstein at his ranch in New Mexico. Jane’s testimony about sexual abuse in New Mexico presented the jury with an alternative basis for conviction that was entirely distinct from the charges in the Indictment. The Court’s refusal to correct the jury’s obvious misunderstanding, constituted a constructive amendment and/or a variance from the charges in the Indictment. Accordingly, this Court should vacate Maxwell’s convictions on Counts Three and Four and grant a new trial. A. Background Facts 1. The Jury Note During their deliberations, the jury sent a note (the “Jury Note” or the “Note’”’) inquiring about the proper basis to convict under Count Four of the Indictment (the substantive transportation count). The Jury Note read as follows: Under Count Four (4), if the defendant aided in the transportation of Jane’s return flight, but not the flight to New Mexico where/if the intent was for Jane to engage in sexual activity, can she be found guilty under the second element? 74 DOJ-OGR-00021136