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Case 1:20-cr-00330-PAE Document566- Filed 12/28/21 Page3of7 The Honorable Alison J. Nathan December 27, 2021 Page 3 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. at 20 (cleaned up). Court Exhibit #15 indicates that the jury is considering a conviction on the substantive transportation offense charged in Count Four based on Jane’s alleged travel to and from New Mexico and sexual activity that purportedly took place while she was there. That is not what the indictment alleges. Count Four alleges that Ms. Maxwell “arranged for [Jane] to be transported from Florida to New York, New York on multiple occasions with the intention that [Jane] would engage in one or more sex acts with Jeffrey Epstein, in violation of New York Penal Law, Section 130.55.” S2 Ind. § 21 (emphasis added). As such, a conviction on Count Four must be based on evidence that Ms. Maxwell intended Jane to travel from Florida to New York, and while in New York, engage in one or more sex acts that violated Section 130.55 of the New York Penal Law. The government has represented to the Court on numerous occasions that Ms. Maxwell cannot be convicted on any of the four Mann Act counts, including Count Four, without proof of an intent to violate New York law. That excludes any conduct that may have occurred in New Mexico. Indeed, in the discussion about Court Exhibit #15, the government stressed this point: The only illegal sexual activity identified in the entirety of the jury charge is a statute in New York. There cannot be any risk of confusion on that score. This particular charge reminds the jury of that and includes that language as well. The jury has not been charged about any laws in New Mexico; so there can’t be any risk of confusion for exactly that reason. Tr. 3140:10-16 (emphasis added). 2068538.1 DOJ-OGR- 00008792