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Case 1:20-cr-00330-PAE Document600_ Filed 02/11/22 Page 14 of 37 sufficient for the defendant to show simply that the proof at trial diverged from the allegations in the indictment. To establish a constructive amendment, the defendant must show that the evidence and jury instructions created a substantial likelihood that she was convicted for “behavior entirely separate from that identified in the indictment.” /d. (cleaned up). The fundamental principle of constructive amendment is clear: ““When the trial evidence or the jury charge operates to ‘broaden [ | the possible bases for conviction from that which appeared in the indictment,’ the indictment has been constructively amended.” United States v. Millstein, 401 F.3d 53, 65 (2d Cir. 2005) (quoting United States v. Miller, 471 U.S. 130, 138 (1985) (emphasis omitted)). 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.” Gross, 2017 WL 4685111, at *31 (cleaned up). A defendant alleging variance must show “substantial prejudice” to warrant reversal. /d. (cleaned up). “The determination of whether a variance between an indictment and the proof at trial is prejudicial turns on whether the variance infringes on the substantial rights that indictments exist to protect—to inform an accused of the charges against him so that he may prepare his defense and to avoid double jeopardy.” /d. (cleaned up). C. The “Core of Criminality” of the Mann Act Counts Was a Scheme to Entice or Cause Underaged Girls to Travel to New York with an Intent to Violate New York Law. There can be no serious dispute that the “core of criminality” of the Mann Act offenses charged in Counts One through Four of the Indictment was a scheme by Epstein and Ms. Maxwell to entice or cause underage girls to travel to New York with the intent that they would engage in sexual activity in violation of New York law. The Indictment itself was clear on its face. The substantive Mann Act offenses (Counts Two and Four) specifically alleged in the “‘to DOJ-OGR- 00008938