DOJ-OGR-00009574.jpg

Case 1:20-cr-00330-PAE Document621 Filed 02/25/22 Page12of51 of these provide any likelihood, much less a substantial likelihood, that the jury convicted the defendant solely because she intended for Jane to be sexually abused in New Mexico. a. Jane’s Testimony About Sexual Abuse in New Mexico Jane’s testimony about her abuse in New Mexico cannot provide the basis for any constructive amendment argument. That testimony was entirely proper. As the Court recognized, the evidence of Jane’s abuse in New Mexico was relevant to the jury’s decision on the Mann Act counts. (Tr. 3149-50; see Dkt. No. 566 at 5 n.1 (stating that the defense does “not contest that alleged sexual activity that occurred in other states can be evidence of [the Mann Act] conspiracies”)). That evidence was probative of the defendant’s knowledge that Epstein was having sexual encounters with Jane while she was a minor and that the abuse occurred while traveling to Epstein’s various properties; and it was probative of the defendant’s role in facilitating the abuse. This evidence “fell squarely within the charged scheme” and “was entirely consistent with the indictment,” and was “thus no constructive amendment.” United States v. Jones, 847 F. App’x 28, 30 (2d Cir. 2021); see Gross, 2021 WL 4685111, at *28 (noting that if the jury determined that “inarguably relevant” evidence “described a different conspiracy, the jury instructions ensured that the jury would not convict Gross of this other conspiracy”). Indeed, that evidence was no less relevant and proper than evidence of Jane’s abuse in Florida, or evidence of Annie, Kate, Carolyn, and Virginia’s abuse at Epstein’s properties outside New York—none of enhancing the risk of conviction based on that conduct. But the Court did not give such an instruction, since the Government proceeded only on the theory that it had to prove an intent to violate New York law. 11 DOJ-OGR-00009574