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Case 1:20-cr-00330-PAE Document621 Filed 02/25/22 Page13o0f51 which gave rise to a constructive amendment. Relative to that evidence, Jane’s testimony about New Mexico, spanning less than three pages of the transcript of her direct examination, was brief and general. (Tr. 321-23). All of this evidence was a “a single set of discrete facts consistent with the charge in the indictment.” Gross, 2017 WL 4865111, at *21 (quoting D Amelio, 683 F.3d at 419). And even if that were not so, the Government is permitted “significant flexibility in proof” so long as the defendant has “notice of the core of criminality to be proven at trial,” as the defendant undoubtedly did. Lebedev, 932 F.3d at 53. The defendant overstates the issue by suggesting that a constructive amendment would have occurred if the jury “based their conviction solely on the sexual abuse that Jane experienced in New Mexico.” (Def. Mot. at 13). In fact, the jury was free to rely principally on that evidence to satisfy elements of Counts One, Three and Four. That is, the jury could have convicted even if no sexual abuse occurred in New York, so long as it concluded that the defendant intended for abuse to occur in New York. And evidence of the defendant’s knowledge of sexual abuse that occurred in New Mexico would support such a conclusion about the defendant’s intent as to what would happen in New York. But there is no substantial likelihood that the jury erroneously convicted the defendant of transporting Jane to New Mexico with the intent that she be abused in violation of some law in New Mexico. That theory of guilt was neither pursued by the Government nor available under the Court’s jury instructions. See Lebedev, 932 F.3d at 54 (“[T]he evidence at trial directly addressed the core of criminality charged in the indictment... .”). It is not a constructive amendment that the Government presented relevant evidence that could lead to a 12 DOJ-OGR-00009575