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Case 1:20-cr-00330-PAE Document621 Filed 02/25/22 Page7of51 from those alleged in the indictment.” Gross, 2017 WL 4685111, at *31. Reversal due to a variance 1s appropriate only when the defendant can establish “that substantial prejudice occurred at trial as a result of the variance,” a showing that cannot be made “where the pleading and the proof substantially correspond, where the variance is not of a character that could have misled the defendant at trial, and where the variance is not such as to deprive the accused of his right to be protected against another prosecution for the same offense.” Khalupsky, 5 F.4th at 294. “The Second Circuit has repeatedly held that, so long as a defendant receives notice of the Government’s theory of the case before trial, he is not prejudiced by a variance.” Gross, 2017 WL 4685111, at ra, B. Discussion No constructive amendment or variance occurred in this case. The grand jury returned the S2 Indictment charging the defendant with knowingly transporting Jane with the intent that Jane engage in criminal sexual activity in New York, and aiding and abetting the same, and with conspiring to entice and transport minors in interstate commerce with the intent that they engage in criminal sexual activity in New York. That is the core of criminality charged in the S2 Indictment, and it is what the Government proved at trial and the Court captured in its jury instructions. 1. The Proof at Trial and Jury Instructions Captured the Core of Criminality The defendant argues that the core of criminality for the Mann Act counts “was a scheme by Epstein and [the defendant] to entice or cause underage girls to travel to New York with the intent that they would engage in sexual activity in violation of New York law.” (Def. Mot. at 9). That is precisely the theory the Government advanced at trial. As the defendant correctly states, 6 DOJ-OGR-00009569