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Case 1:20-cr-00330-PAE Document621 Filed 02/25/22 Page 22 of 51 did not modify any essential element of the offense or permit conviction based on an entirely different theory. Referring the jury back to the same instructions could not have caused a different result. The S2 Indictment charged the defendant with Mann Act offenses with an intent to engage in sexual activity in violation of a New York statute. The Government put on evidence that the defendant engaged in a course of conduct with the intent to violate that New York statute. The Court charged the jury that the Government had to prove an intent to violate that New York statute beyond a reasonable doubt. “[T]he allegations in the indictment and the proof and jury instructions ‘substantially correspond’ with each other, as they involve a single course of conduct.” D’Amelio, 683 F.3d at 424. “It therefore follows that [the defendant] was convicted of conduct that was the subject of the grand jury’s indictment, and there was no constructive amendment of the indictment.” Jd.° > Even if the Court agreed with the defendant that the proof as to Count Four was constructively amended, vacatur of the Mann Act conspiracy counts would be inappropriate. The jury note asked specifically about Count Four, and suggested no confusion as to the conspiracy counts. Moreover, the jury notes—which are of primary importance under the defendant’s theory—reveal that the jury was focused on Annie Farmer’s testimony as to the Mann Act conspiracy counts (Tr. 3102- 07). And Annie’s testimony of abuse in New Mexico is no less significant than Jane’s. Finally, it is entirely unclear how the jury’s erroneous understanding of the law relating to a substantive transportation offense could prejudice the jury’s understanding for the enticement conspiracy charge. See United States v. Pfaff, 407 F. App’x 506, 510 (2d Cir. 2010) (“Constructive amendment of the conspiracy charge would have warranted vacatur of that charge only; the remainder of the indictment would have stood.”); United States v. Milstein, 401 F.3d 53, 66 (2d Cir. 2005) (per curiam) (reversing on one count due to a constructive amendment but rejecting the contention that it required reversal “as a result of prejudicial spillover”). 21 DOJ-OGR-00009584