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Case 1:20-cr-00330-PAE Document621 Filed 02/25/22 Page14of51 conviction outside of the scope of the S2 Indictment only if taken entirely in isolation and applied by a jury that disobeyed the Court’s instructions. b. The Second Jury Note The defendant argues that, notwithstanding the tight connection between the Indictment, evidence at trial, and jury instructions, the jury in fact actually convicted the defendant for transporting Jane to New Mexico to engage in criminal sexual activity there. This argument relies almost entirely on a single jury note. During deliberations, the jury sent the following note: Under Count Four, if the defendant aided in the transportation of Jane’s return flight, but not the flight to New Mexico, where/if the intent was for Jane to engage in sexual activity, can she be found guilty under the second element? (Tr. 3126). The note led to a lengthy discussion, at the conclusion of which the Court concluded it should refer the jury back to the jury charge on the second element of Count Four because the jury note was otherwise “too difficult to parse factually and legally.” (Tr. 3126-40). That night, the defense filed a letter seeking reconsideration of the Court’s response and raising the possibility of a constructive amendment or prejudicial variance. (Dkt. No. 566 at 2-3). The defense asked the Court to give an additional instruction in the morning. (/d. at 7). That proposal instructed the jury as to the intent elements of Counts Two and Four, and ended with the sentence that “[a]n intent that Jane engage in sexual activity in any state other than New York cannot form the basis of these two elements of Counts Two and Four.” (/d.) The Court rejected the defendant’s request. The Court noted that the jury did not inquire about Count Two, so there was no basis to respond to the jury note with information about Count 13 DOJ-OGR-00009576