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Case 1:20-cr-00330-PAE Document621 Filed 02/25/22 Page5of51 defendant enticed and transported Jane to New York with the intent that Jane engage in illegal sexual activity, and that the defendant conspired to do so regarding Jane and the other Minor Victims. That is the issue the Court instructed the jury to resolve. And that is the criminal conduct charged in Counts One through Four of the S2 Indictment. Accordingly, no constructive amendment or variance occurred. A. Applicable Law Under the Fifth Amendment’s Grand Jury Clause, “an indictment must contain the elements of the offense charged and fairly inform the defendant of the charge against which he must defend.” United States v. Khalupsky, 5 F.4th 279, 293 (2d Cir. 2021). “[W]hen the charge upon which the defendant is tried differs significantly from the charge upon which the grand jury voted,” a constructive amendment occurs and reversal is required. /d. “Not every alteration of an indictment, however, rises to the level of a constructive amendment.” United States v. Dove, 884 F.3d 138, 146 (2d Cir. 2018). Instead, “[t]o prevail on a constructive amendment claim, a defendant must demonstrate that the terms of an indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.” United States v. Gross, No. 15 Cr. 769 (AJN), 2017 WL 4685111, at *20 (S.D.N.Y. Oct. 18, 2017), aff'd sub. nom United States v. Lebedev, 932 F.3d 40 (2d Cir. 2019). That is, a defendant “must show that the evidence and jury instructions at trial completely shifted the core of criminality—i.e. proved behavior entirely separate from that identified in the indictment.” /d. at *23. This analysis begins by identifying the “core of criminality,” that is, “the essence of a 4 DOJ-OGR-00009567