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Case 1:20-cr-00330-PAE Document600_ Filed 02/11/22 Page 16 of 37 The government therefore affirmatively stated on several occasions that the “core of criminality” of the Mann Act offenses was a scheme to cause underaged girls to travel to New York to engage in sexual activity that violated New York law. It follows, then, that evidence that an underaged girl traveled to any other state besides New York and engaged in sexual activity that was illegal under that state’s laws would be insufficient, by itself, to convict Ms. Maxwell of the Mann Act counts.” If Ms. Maxwell were convicted on the Mann Act counts based solely on such conduct, that would be a constructive amendment of the charges in the Indictment. See Millstein, 401 F.3d at 65 (“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.” (cleaned up)); see also id. at 65 (constructive amendment found when defendant was convicted of misbranding drugs on an entirely distinct misbranding theory than the one charged in the indictment); Wozniak, 126 F.3d at 106-08 (constructive amendment found when defendant was charged with possession with intent to distribute cocaine and methamphetamines, but the proof at trial showed possession with intent to distribute marijuana); Roshko, 969 F.2d at 4-6 (constructive amendment found when defendant was charged with a conspiracy to change the immigration status of an alien, but the proof at trial related to a conspiracy with an entirely distinct object). D. There is a Substantial Likelihood that Ms. Maxwell Was Convicted on Three of the Mann Act Counts Based on Conduct Not Charged in the Indictment. Yet there is a substantial likelihood that this is exactly what happened in this case: Jane’s testimony about sexual activity that occurred in New Mexico, which did not violate New York law, combined with insufficient jury instructions and the Court’s refusal to give the jury ? Engaging in sexual activity in any other state cannot form the basis for a violation of New York law. 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.”). 11 DOJ-OGR-00008940