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Case 1:20-cr-00330-PAE Document621 Filed 02/25/22 Page11of51 2. There is No Substantial Likelihood That The Jury Convicted The Defendant Solely Because Jane was Sexually Abused in New Mexico The defendant argues that a constructive amendment or variance occurred because the jury “improperly based their conviction solely on the sexual abuse that Jane experienced in New Mexico.” (Def. Mot. at 13). That argument can be readily rejected. There is no likelihood—much less a substantial likelihood—that the jury disregarded the Court’s instructions and applied an unidentified New Mexico law to brief testimony about Jane’s abuse in New Mexico and convicted the defendant solely on that basis. Neither the Government’s proof at trial nor the Court’s jury instructions provide a basis for that conclusion. At no point during the trial, including its summation, did the Government argue that the jury could convict on a theory that the defendant intended Jane to be abused in New Mexico. Similarly, the Court’s charge required the jury to decide whether the defendant intended to violate New York law. The jury was not informed of the age of consent in New Mexico or any particular criminal statute in New Mexico. The defendant does not explain how the jury charge permitted the jury to convict the defendant for transporting Jane to New Mexico with the intent that she engage in sexual activity violative of some unidentified New Mexican criminal law.” In support of her argument, the defendant relies on (1) the fact that Jane testified about being sexually abused in New Mexico, and (2) the jury note regarding New Mexico. (/d.) Neither ? Ironically, it is the defendant who proposed instructing the jury on the relevant ages of consent in states other than New York. (See Dkt. No. 410-1 at 51-52). Such an instruction would have provided the jury some state law to compare to the facts and determine whether it was violated, 10 DOJ-OGR-00009573