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Case 1:20-cr-00330-PAE Document600_ Filed 02/11/22 Page 23 of 37 New York law. Tr. 2048:20-2049:1. See Wozniak, 126 F.3d at 110 (vacating conviction for constructive amendment because the defense was not aware that the government would elicit evidence of marijuana distribution and may have modified its defense strategy had it known). Instead, the only option left to the defense after Jane’s testimony was to request a similar instruction in the jury charge, which the Court denied. Tr. 2775:14-2777:25. The Court further denied the defense’s request for a clarifying instruction in response to the Jury Note, which made clear that the jury had likely done exactly what the limiting instruction would have prevented — namely, concluded that Jane’s sexual abuse in New Mexico could constitute the “illegal sexual activity” charged in the Indictment, even though it did not violate New York law. This resulted in the ultimate prejudice against Ms. Maxwell: a conviction on three of the four Mann Act counts. Accordingly, Ms. Maxwell was convicted on Counts One, Three, and Four based on a prejudicial variance from the charges in the Indictment. The Court must therefore vacate these convictions and order a new trial. Il. The Court Should Enter Judgment on Only One of the Three Conspiracy Counts Because They Are Multiplicitous.° Since the very first indictment in this case, the government’s conspiracy charges have been premised on a single criminal scheme between Epstein and Ms. Maxwell to recruit and “groom” underage females to engage in illegal sexual activity with Epstein. See Ind. {| 1-2. Although Counts One, Three, and Five of the S2 Indictment (the “Indictment”) charged Ms. Maxwell with three separate conspiracies under the general conspiracy statute, 18 U.S.C. § 371, the allegations in the indictment were based on a single conspiratorial agreement to sexually abuse minors, not three separate agreements to violate three different statutes. See Ind. § 2 (“As 3 We accept the jury’s verdict on the conspiracy counts solely for the purposes of this motion. Ms. Maxwell maintains her position that the conspiracy counts should be vacated or dismissed for the reasons stated in her other post-trial motions set forth in this memorandum. 18 DOJ-OGR-00008947