DOJ-OGR-00008941.jpg

Case 1:20-cr-00330-PAE Document600_ Filed 02/11/22 Page17 of 37 additional clarifying instructions in response to the Jury Note, constructively amended the Indictment and allowed the jury to convict Ms. Maxwell on three of the four Mann Act counts based on “distinctly different” crimes than those charged in the Indictment. See Gross, 2017 WL 4685111, at *21 (“After identifying the core of criminality, a court must then determine whether the evidence or jury instructions at trial created a substantial likelihood that the defendant was not convicted of the crime described in that core, but of a crime ‘distinctly different’ from the one alleged.” (citing D’Amelio, 683 F.3d at 419-21)). Count Four of the Indictment, which was the subject of the Jury Note, charged Ms. Maxwell with the substantive offense of transporting an underaged individual in interstate commerce with the intent that the individual engage in sexual activity for which a person can be charged with a criminal offense. Ind. § 21. The “to wit” clause of Count Four specified that the underaged individual was Jane, the transportation in interstate commerce was Jane’s travel “from Florida to New York, New York,” and the illegal sexual activity was a violation of New York Penal Law, Section 130.55. Id. Pursuant to the Court’s practice, the jurors were not given the Indictment. The jury charge, which was given to the jury, included most, but not all, of these allegations. The jury charge specified that Count Four related “solely to Jane” and instructed the jury that to convict on this count, the government had to prove that (1) Ms. Maxwell knowingly transported Jane “in interstate commerce, as alleged in the Indictment”; (2) Ms. Maxwell did so with the intent that Jane would engage in sexual activity in violation of New York Penal Law, Section 130.55; and (3) Ms. Maxwell knew that Jane was under the age of 17 years old. Dkt. 565 at 26-29. The jury charge did not include, however, that the relevant interstate travel “as charged in the Indictment” {2 DOJ-OGR-00008941