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Case 22-1426, Document 59, 02/28/2023, 3475902, Page92 of 113 (Ind. 4] 18 at A128) and specified that the relevant criminal offense was a “violation of New York Penal Law, Section 130.55.” Ind. §19b at A128. And the Government consistently represented to the court, in numerous conferences and filings, that a conviction under the Mann Act counts had to be based on an intent or an agreement to violate New York Penal Law §130.55. See, e.g., 11/1/2021 Tr. 68:2- 4; Dkt. 410-1 at 52; and Tr. 2775:3-6. It follows, then, that evidence that Jane traveled to any other state besides New York and engaged in sexual activity, even if illegal under that state’s laws, would be insufficient, by itself, to convict Maxwell of Count Four. If Maxwell were convicted on Counts Three or Four based solely on such conduct, that would be a constructive amendment of the charges in the Indictment. See Millstein, 401 F.3d at 65; Wozniak, 126 F.3d at 106-08; Roshko, 969 F.2d at 4- 6. 2. There is a Substantial Likelihood that. Maxwell Was Convicted on Counts Three and Four Based on Conduct Not Charged in the Indictment. There is a substantial likelihood that Defendant was convicted on Count Four based solely on conduct in New Mexico. The jurors were not given the Indictment and the jury charge failed to include that the relevant interstate travel “as charged in the Indictment” was travel “from Florida to New York, New York,” despite a defense request. Dkt. 77 DOJ-OGR-00021139