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Case 1:20-cr-00330-PAE Document 453 Filed 11/12/21 Page 20 of 52 amendment to, and an impermissible variance of, the Indictment. As this Court previously has ruled: "To 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 charged 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, 683 F.3d 412, 416 (2d Cir. 2012) (quoting United States v. Mollica, 849 F.2d 723, 729 (2d Cir. 1988)). Because the doctrine of constructive amendment protects a defendant’s Grand Jury Clause rights, a constructive amendment constitutes a “per se violation” of the defendant’s constitutional rights—1.e. there is no requirement that a defendant make a specific showing of prejudice. /d. at 417. In contrast to a constructive amendment, “[a] variance occurs when the charging terms of the indictment are left unaltered, but the evidence at trial proves facts materially different from those alleged in the indictment.” /d. (quoting United States _v. Salmonese, 352 F.3d 608, 621 (2d Cir. 2003)). United States v. Gross, 15-cr-769 (AJN), 2017 WL 4685111, at *20 (S.D.N.Y. Oct. 18, 2017). As this Court then recognized, the Second Circuit has consistently relied on the same start and end dates of a conspiracy to find that differing trial proof did not affect a constructive amendment or variance. See id. ("The indictment and the evidence at trial contained the same starting and ending dates of the conspiracy...") (quoting United States v. Rigas, 490 F.3d 208, 229 (2d. Cir. 2007)); see also United States v. Dupre, 462 F.3d 131, 141 (2d Cir. 2006) ("The starting and ending dates of the conspiracy noted in the indictment correspond to the conspiracy proven at trial..."). Conversely, the substantial quantity of testimony — for the post-conspiracy time eric {ls ME. Who never met any of the four accusers as far as can be gleaned, and the documents she intends to authenticate, run a substantial risk that the government's proof at trial will not be the same core evidence charged in the Indictment because it will be based on evidence that post- dates the events charged in the Indictment. 14 DOJ-OGR-00006900