DOJ-OGR-00009582.jpg

Case 1:20-cr-00330-PAE Document621 Filed 02/25/22 Page 20o0f51 defendant based on an unsupported speculative leap from Jane’s testimony. That is not plausible, and it certainly is not a “substantially likely” conclusion that can be drawn from an inscrutable jury note. Second, even if the jury was so confused, the Court’s response ameliorated that confusion. The Court did not tell the jury that it could convict based solely on conduct occurring in New Mexico. Instead, it referred the jury to the instruction that explained that the second element of Count Four requires the Government to prove the defendant’s intent “that Jane engage in sexual activity for which any person can be charged with a criminal offense in violation of New York Law,” and further stated that “Count Four alleges sexual activity for which an individual could be charged with a violation of New York Penal Law, Section 130.55.” (Inst. No. 21). The defendant does not argue that this instruction incorrectly states the law.* Nor does the instruction make any reference to New Mexico whatsoever, much less does it suggest that conviction is available if the defendant intended to violate some New Mexican statute. The jury is presumed to have followed this instruction correctly. See United States v. Joyner, 313 F.3d 40, 47 (2d Cir. 2002) (reciting the * The defendant complains that the jury instructions were “stripped of any mention of travel to New York,” such as a limitation that the travel be “from Florida to New York.” (Def. Mot. at 1- 2, 15). The defendant tried to incorporate several limitations from the “to wit” clause of the Indictment into the jury charge, and the Court correctly rejected that attempt, because the Government is not strictly bound by facts in the “to wit” clause of an indictment. See, e.g., United States v. Little, 828 F. App’x 34, 38 (2d Cir. 2020) (“Such a discrepancy, however, does not rise to the level of a constructive amendment because ‘to wit’ clauses do not modify essential elements of the offense.”). For instance, if the jury had concluded that the defendant transported Jane from New Mexico to New York with intent to violate New York law—which is one available reading of the jury note—that would be a permissible basis for conviction, but outside the limitations proposed by the defendant. The defendant’s proposed instructions containing those limitations would have been erroneous. 19 DOJ-OGR- 00009582