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Case 1:20-cr-00330-PAE Document621 Filed 02/25/22 Page6of51 crime, in general terms,” but not “the particulars of how a defendant effected the crime.” Jd. at *20. The “object of a conspiracy constitutes an essential element of the conspiracy offense.” Id. However, text in an indictment, such as “factual allegations that do not prove essential elements of a charge” and “general factual allegations leading into the statutory allegations” are not limitations on the core of criminality alleged in an indictment. /d. Once a court identifies the core of criminality, the court “must then determine whether the evidence or jury instructions at trial created a substantial likelihood that the defendant was not convicted of the crime described in that core, but of a crime ‘distinctly different’ from the one alleged.” Jd. The Second Circuit has “consistently permitted significant flexibility in proof, provided that the defendant was given notice of the core of criminality to be proven at trial.” Lebedev, 932 F.3d at 53. Accordingly, a defendant “cannot simply show that the facts diverged greatly from those alleged in the indictment,” but rather that “the evidence and jury instructions created a substantial likelihood that a defendant was convicted for behavior entirely separate from that identified in the indictment.” Gross, 2017 WL 4685111, at *21; see United States v. McGinn, 787 F.3d 116, 128 (2d Cir. 2015) (“[T]he proof at trial need not, indeed cannot, be a precise replica of the charges contained in an indictment... .”). “[T]he Second Circuit has made clear that a constructive amendment does not occur where the facts at trial involve not a ‘distinctly different complex set of uncharged facts’ but ‘a single set of discrete facts consistent with the charge in the indictment.’” /d. (quoting United States v. D’Amelio, 683 F.3d 412, 419 (2d Cir. 2012)). “Tn contrast to a constructive amendment, a variance occurs when the charging terms of the indictment are left unaltered, but the evidence offered at trial proves facts materially different DOJ-OGR- 00009568