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Case 1:20-cr-00330-PAE Document621 Filed 02/25/22 Page4of51 33(a).! “The defendant bears the burden of proving that he is entitled to a new trial under Rule 33[.]” United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009). Because motions for a new trial are strongly disfavored, “the standard for granting such a motion is strict,” United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995), and it should be granted “sparingly and in the most extraordinary circumstances, and only in order to avert a perceived miscarriage of justice.” United States v. Gramins, 939 F.3d 429, 444 (2d Cir. 2019). In deciding the motion, courts “should generally defer to the jury’s resolution of conflicting evidence and assessment of witness credibility.” United States v. Landesman, 17 F 4th 298, 330 (2d Cir. 2021). The “ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice.” United States v. Peters, 843 F. App’x 369, 374 (2d Cir. 2021) (quoting United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001)). ARGUMENT I. The Defendant Was Convicted of the Crimes Charged in the Indictment, So No Constructive Amendment or Variance Occurred In her motion, the defendant claims that the Government’s proof at trial differed from the crimes charged in the Second Superseding Indictment (the “S2 Indictment” or “Indictment’’), and that the Government therefore constructively amended Counts One, Three, and Four of the Indictment. Not so. At all times—before trial, in its presentation of the evidence, at closing argument, and in seeking jury instructions—the Government consistently argued that the ' Unless otherwise noted, case text quotations omit all internal quotation marks, citations, and alterations. DOJ-OGR-00009566