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Case 1:20-cr-00330-PAE Document566- Filed 12/28/21 Page6éof7 The Honorable Alison J. Nathan December 27, 2021 Page 6 instruction is not itself erroneous or highly confusing, a supplemental instruction prompted by a jury question may be so muddled as to warrant vacatur.” /d. at 172. The jury note indicates that the jury is confused about the second element of Count Four, and by extension, the third element of Count Two. Both counts require an intent to violate New York law and cannot be based on any conduct that allegedly occurred in New Mexico (or any other state besides New York). The court’s answer to the jury’s question permits the jury to convict Ms. Maxwell on Count Four based on alleged conduct occurring in New Mexico—aiding in areturn flight from New Mexico. Not only is that conduct not charged in the indictment (see discussion above), it also is not illegal under New York law. Under New York law, an intent to engage in sexual activity in any other state cannot form the basis for a violation of New York law, as charged in Counts Two and Four. See People v. Carvajal, 6 N.Y.3d 305, 312 (2005) (“CPL 20.20[] has codified the general principle that, for New York to exercise criminal jurisdiction, some alleged conduct or a consequence of that conduct must have occurred in the state.”). If the defendant disputes the evidence of the State’s prosecutorial authority at trial, “the trial court should charge the jury that jurisdiction must be proven beyond a reasonable doubt.” People v. McLaughlin, 80 N.Y 2d 466, 472 (N.Y. 1992). 2068538.1 DOJ-OGR-00008795