DOJ-OGR-00008931.jpg

Case 1:20-cr-00330-PAE Document600_ Filed 02/11/22 Page /7 of 37 them with respect to only one, and only one, criminal statute - New York Penal Law, Section 130.55. In the final jury charge, the Court denied several of the defense requests for clarifying language, including that the Mann Act charges were premised on travel to New York and that sexual activity that occurred outside of New York could not be considered “illegal sexual activity” as charged in the Indictment. It is evident from the record, however, that there is a substantial likelihood that Ms. Maxwell was convicted on three of the four Mann Act counts based on Jane’s testimony about sexual abuse she experienced at Epstein’s ranch in New Mexico when she was 15 or 16 years old. A jury note sent during their deliberations (Court Exhibit #15) clearly indicated that the jurors were considering convicting Ms. Maxwell on Count Four of the Indictment based solely on the New Mexico conduct. The Court denied the defense’s request to give a clarifying instruction to the jury that the New Mexico conduct could not form the basis of a conviction on the substantive Mann Act counts because it was not a violation of New York law. Instead, the Court directed the jury to the existing jury charge for Count Four. The jury ultimately convicted Ms. Maxwell on Count Four and the two Mann Act conspiracies charged in Counts One and Three. Jane’s testimony about sexual abuse in New Mexico presented the jury with an alternative basis for conviction on the Mann Act counts that was entirely distinct from the charges in the Indictment, which were premised on a violation of New York law. The Court’s instructions to the jury were insufficient to prevent them from convicting on this basis, which constituted a constructive amendment and/or a variance from the charges in the Indictment. Accordingly, Ms. Maxwell moves under Rule 33 of the Federal Rules of Criminal Procedure for the Court to vacate her convictions on Counts One, Three, and Four and grant a new trial. DOJ-OGR- 00008931