DOJ-OGR-00021730.jpg

Case 22-1426, Document 79, 06/29/2023, 3536060, Page83 of 93 70 B. Applicable Law “A constructive amendment occurs when the charge upon which the defendant is tried differs sig- nificantly from the charge upon which the grand jury voted.” United States v. Khalupsky, 5 F.4th 279, 293 (2d Cir. 2021). “Not every alteration of an indictment, however, rises to the level of a constructive amend- ment.” United States v. Dove, 884 F.3d 138, 146 (2d Cir. 2018). Instead, “[t]o prevail on a constructive amendment claim, a defendant must demonstrate that the terms of an indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.” United States v. D’Amelio, 693 F.3d 412, 416 (2d Cir. 2012). This Court 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. Lebedev, 932 F.3d 40, 53 (2d Cir. 2019). The “core of criminality” is “the essence of a crime, in general terms,” but not “the particulars of how a defendant effected the crime.” D’Amelio, 693 F.3d at 418. There is no constructive amendment where the allegations in the indictment and the proof at trial both relate to a “single set of discrete facts,” or form “part of a single course of conduct” with the same “ultimate purpose.” Jd. at 419-21. “A variance occurs when the charging terms of the indictment are left unaltered, but the evidence offered at trial proves facts materially different from those DOJ-OGR-00021730