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Case 1:20-cr-00330-PAE Document600_ Filed 02/11/22 Page 12 of 37 The defense followed up with a letter requesting that the Court give the jury the following additional instruction to avoid a conviction on the substantive Mann Act counts based on a constructive amendment or a prejudicial variance: As to the third element of Count Two, you must determine whether the Government has proven beyond a reasonable doubt that the Defendant acted with the intent that Jane would engage in sexual activity within the state of New York in violation of New York Penal Law 130.55. As to the second element of Count Four, you must determine whether the Government has proven beyond a reasonable doubt that the Defendant transported Jane with the intent that Jane would engage in sexual activity within the state of New York in violation of New York Penal Law 130.55. An intent that Jane engage in sexual activity in any state other than New York cannot form the basis of these two elements of Counts Two and Four. (Dkt. 566). The defense further argued that it would be insufficient and improper for the jury to convict Ms. Maxwell based solely on New Mexico conduct and that the instruction was necessary to prevent that outcome. Tr. 3152:11-3154:10. The Court declined to give the supplemental instruction. The jury ultimately convicted Ms. Maxwell on Count Four and the two Mann Act conspiracies charged in Counts One and Three. B. Applicable Law “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 DOJ-OGR- 00008936