DOJ-OGR-00008945.jpg

Case 1:20-cr-00330-PAE Document600_ Filed 02/11/22 Page 21 of 37 charged offense and created a substantial likelihood that Ms. Maxwell was convicted of a crime other than the one alleged in the Indictment. D’Amelio, 683 F.3d at 419-21. Moreover, given the substantial likelihood that the jury convicted Ms. Maxwell on Count Four based on the New Mexico conduct, there is also a substantial likelihood that they improperly convicted her on the Mann Act conspiracy counts (Counts One and Three) based on the same conduct. The substantive transportation offense charged in Count Four was the object of the conspiracy charged in Count Three, and both conspiracy counts required an agreement to violate New York law. See Gross, 2017 WL 4685111, at *23 (citing examples where the Second Circuit found a constructive amendment “where the district court either refused to give a limiting instruction defining the scope of a conspiracy or relevance of certain evidence, or where it gave an instruction defining the conspiracy too broadly”). For the foregoing reasons, Ms. Maxwell’s convictions on Counts One, Three, and Four were based on a constructive amendment to the charged offenses. The Court must vacate these convictions and grant a new trial on these counts. E. The Variance Between the Proof at Trial and the Allegations in the Indictment Substantially Prejudiced Ms. Maxwell. In the alternative, the Court must vacate Ms. Maxwell’s convictions on Counts One, Three, and Four because the record demonstrates a variance between the proof at trial and the allegations in the Indictment that substantially prejudiced Ms. Maxwell. See Gross, 2017 WL 4685111, at *31 (cleaned up) (“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” which causes “substantial prejudice” to the defendant). Here, the Mann Act counts did not contain any allegations concerning Jane’s sexual abuse in New Mexico. Indeed, although Jane had previously told the FBI about the trip to New 16 DOJ-OGR-00008945