DOJ-OGR-00009579.jpg

Case 1:20-cr-00330-PAE Document621 Filed 02/25/22 Page17of51 That fact is compounded by the lack of clarity about where the jury believed the sexual activity occurred. It is not clear whether the flight on which the “intent was for Jane to engage in sexual activity” references the flight to New Mexico, as the defendant suggests, or the return flight. If it is the flight to New Mexico, it would still be probative evidence on Count Two, albeit not sufficient for conviction. If it is a flight from New Mexico, it would also still be probative and would not pose any risk that the jury convicted based on conduct occurring in New Mexico. And if the jury thought that the defendant intended Jane to engage in sexual activity at the conclusion of a return flight from New Mexico to New York, it could well have been sufficient for conviction on Count Two. The issue is further confused by the uncertainty about the question posed by the jury. The defendant understands the question to be about whether sexual activity in New Mexico is sufficient to find the defendant guilty. First, the jury’s question does not ask whether certain facts are sufficient for guilt; it asks whether the defendant “‘can be found guilty” if certain fact is true. The defendant “can” be found guilty based in part on sexual activity occurring in New Mexico, as described above. That is a perfectly sensible question for the jury to ask—indeed, it was repeatedly raised by defense counsel to the Court at trial. (See, e.g., Tr. 3149 (Court stating: “This is the same discussion we’ve had a couple of times [defense counsel]. Sexual activity with respect to Jane in New Mexico under the age of 17 can be relevant to an intent to transport to New York to engage in sexual activity under the age of 17, I think. I think this is the same basic discussion that we’ve had. So... I think the proposal made by the defense is wrong.”). And second, the question specifically uses the word “aided,” suggesting that the jury note may have been a question about 16 DOJ-OGR-00009579