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Case 22-1426, Document 109-1, 09/17/2024, 3634097, Page19 of 26
enough; the District Court did not abuse its discretion in denying
Maxwell’s motion for a new trial.*4
4. The District Court’s Response to a Jury Note Did Not Result
in a Constructive Amendment of, or Prejudicial Variance
from, the Allegations in the Indictment
During jury deliberations, the jury sent the following jury note
regarding Count Four of the Indictment:
Under Count Four (4), 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?5
The District Court determined that it would not respond to the note
directly because it was difficult to “parse factually and legally” and
instead referred the jury to the second element of Count Four.*6
% Nor did the District Court err in questioning Juror 50 rather than allowing the parties to
do so. In conducting a hearing on potential juror misconduct, “[w]e leave it to the district
court’s discretion to decide the extent to which the parties may participate in questioning
the witnesses, and whether to hold the hearing in camera.” United States v. Ianniello, 866 F.2d
540, 544 (2d Cir. 1989). And while Maxwell contends that the District Court improperly
limited questioning about Juror 50’s role in deliberations, she both waived that argument
below and fails to show here how any such questioning would not be foreclosed by Federal
Rule of Evidence 606(b).
3 A-238.
36 A-207-221. The District Court’s instruction on the second element of Count Four required
the jury to find that “Maxwell knowingly transported Jane in interstate commerce with the
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Case 22-1426, Document 109-1, 09/17/2024, 3634097, Page20 of 26
Maxwell subsequently filed a letter seeking reconsideration of the
District Court’s response, claiming that this response resulted in a
constructive amendment or prejudicial variance. The District Court
declined to reconsider its response and denied Maxwell’s motion.
Maxwell appeals the District Court’s denial and argues that the
alleged constructive amendment is a per se violation of the Grand Jury
Clause of the Fifth Amendment. Specifically, Maxwell argues that
testimony about a witness’s sexual abuse in New Mexico presented the
jury with another basis for conviction, which is distinct from the
charges in the Indictment. Similarly, Maxwell argues that this
testimony resulted in a prejudicial variance from the Indictment. We
disagree and affirm the District Court’s denial.
We review the denial of a motion claiming constructive
amendment or prejudicial variance de novo.” To satisfy the Fifth
Amendment’s Grand Jury Clause, “an indictment must contain the
elements of the offense charged and fairly inform the defendant of the
charge against which he must defend.”** We have explained that to
prevail on a constructive amendment claim, a defendant must
demonstrate that “the terms of the indictment are in effect altered by
the presentation of evidence and jury instructions which so modify
essential elements of the offense charged that there is a substantial
intent that Jane engage in sexual activity for which any person can be charged with a
criminal offense in violation of New York law.” A-205.
37 See United States v. Dove, 884 F.3d 138, 146, 149 (2d Cir. 2018).
%8 United States v. Khalupsky, 5 F.4th 279, 293 (2d Cir. 2021).
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Case 22-1426, Document 109-1, 09/17/2024, 3634097, Page21 of 26
likelihood that the defendant may have been convicted of an offense
other than that charged in the indictment.”*° A constructive
amendment requires reversal.*°
We cannot conclude that a constructive amendment resulted
from the evidence presented by the Government—namely, Jane’s
testimony—or that it can be implied from the jury note. We have
permitted significant flexibility in proof as long as a defendant was
“given notice of the core of criminality to be proven at trial.”*! In turn,
“Tt]he core of criminality of an offense involves the essence of a crime,