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Case 1:20-cr-00330-PAE Document566- Filed 12/28/21 Page2of7 The Honorable Alison J. Nathan December 27, 2021 Page 2 Constructive Amendment / Variance First, without further instruction, the jury could convict Ms. Maxwell based on a constructive amendment and/or prejudicial variance from the S2 Indictment. The Court has recently explained the law on constructive amendment and variance. “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. Gross, No. 15- cr-769 (AJN), 2017 WL 4685111, at *20 (S.D.N.Y. Oct. 18, 2017) (cleaned up). “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— i.e. there is no requirement that a defendant make a specific showing of prejudice.” /d. (quoting United States v. D’Amelio, 683 F.3d 412, 417 (2d Cir. 2012). Although the Second Circuit has “consistently permitted significant flexibility” in how the government proves the crime alleged, the defendant must be “given notice of the core of criminality to be proven at trial.” /d. (cleaned up). “[A]lthough an indictment ‘drawn in general terms’ may articulate a broad core of criminality, an indictment that is drawn in specific terms may be read to specify a narrower set of facts—such that the proof of completely distinct facts at trial could lead to a constructive amendment.” /d. (quoting United States v. Wozniak, 126 F.3d 105, 109-10 (2d Cir. 1997)). 2068538.1 DOJ-OGR-00008791