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Case 22-1426, Document 121-2, 12/02/2024, 3637741, Page22 of 26 a violation of New York law.”* It is therefore not “uncertain whether [Maxwell] was convicted of conduct that was the subject of the grand jury’s indictment.” # We also cannot conclude that the evidence at trial prejudicially varied from the Indictment. To allege a variance, a defendant “must establish that the evidence offered at trial differs materially from the evidence alleged in the indictment.” To prevail and win reversal, the defendant must further show “that substantial prejudice occurred at trial as a result” of the variance.* “A defendant cannot demonstrate that he has been prejudiced by a variance where the pleading and the proof substantially correspond, where the variance is not of a character that could have misled the defendant at the trial, and where the variance is not such as to deprive the accused of his right to be protected against another prosecution for the same offense.” ”” For reasons similar to the ones noted above in the context of the constructive amendment, the evidence at trial did not prove facts 4 A-387; see United States v. Parker, 903 F.2d 91, 101 (2d Cir. 1990) (“The trial judge is in the best position to sense whether the jury is able to proceed properly with its deliberations, and [] has considerable discretion in determining how to respond to communications indicating that the jury is experiencing confusion.”) “ United States v. Salmonese, 352 F.3d 608, 620 (2d Cir. 2003). Dove, 884 F.3d at 149 46 Id. (citation and internal quotation marks omitted). 47 Salmonese, 352 F.3d at 621-22 (citation and internal quotation marks omitted); see also Khalupsky, 5 F.4th at 294. 22 DOJ-OGR-00021899