EPSTEIN
page 9 / 1261 . OCR, unverified
in general terms; the particulars of how a defendant effected the crime
falls outside that purview.”
We agree with the District Court that the jury instructions, the
evidence presented at trial, and the Government's summation
captured the core of criminality. As the District Court noted, while the
jury note was ambiguous in one sense, it was clear that it referred to
the second element of Count Four of the Indictment. Therefore, the
District Court correctly directed the jury to that instruction, which
“accurately instructed that Count Four had to be predicated on finding
39 United States v. Mollica, 849 F.2d 723, 729 (2d Cir. 1988).
40 See United States v. D’Amelio, 683 F.3d 412, 417 (2d Cir. 2012).
“/ United States v. lonia Memt. S.A., 555 F.3d 303, 310 (2d Cir. 2009) (per curiam) (emphasis
omitted).
2 D’Amelio, 683 F.3d at 418 (internal quotation marks omitted).
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a violation of New York law.”* It is therefore not “uncertain whether
[Maxwell] was convicted of conduct that was the subject of the grand
jury’s indictment.” #
We also cannot conclude that the evidence at trial prejudicially
varied from the Indictment. To allege a variance, a defendant “must
establish that the evidence offered at trial differs materially from the
evidence alleged in the indictment.” To prevail and win reversal, the
defendant must further show “that substantial prejudice occurred at
trial as a result” of the variance.* “A defendant cannot demonstrate
that he has been prejudiced by a variance where the pleading and the
proof substantially correspond, where the variance is not of a character
that could have misled the defendant at the trial, and where the
variance is not such as to deprive the accused of his right to be
protected against another prosecution for the same offense.” ””
For reasons similar to the ones noted above in the context of the
constructive amendment, the evidence at trial did not prove facts
4 A-387; see United States v. Parker, 903 F.2d 91, 101 (2d Cir. 1990) (“The trial judge is in the
best position to sense whether the jury is able to proceed properly with its deliberations,
and [] has considerable discretion in determining how to respond to communications
indicating that the jury is experiencing confusion.”)
“ United States v. Salmonese, 352 F.3d 608, 620 (2d Cir. 2003).
Dove, 884 F.3d at 149
46 Id. (citation and internal quotation marks omitted).
47 Salmonese, 352 F.3d at 621-22 (citation and internal quotation marks omitted); see also
Khalupsky, 5 F.4th at 294.
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“materially different” from the allegations in the Indictment. The
evidence indicated that Maxwell transported Jane to New York for
sexual abuse and conspired to do the same. Maxwell knew that the
evidence also included conduct in New Mexico.*? Furthermore,
Maxwell cannot demonstrate “substantial prejudice.” Maxwell
received—over three weeks before trial—notes of Jane’s interview
recording the abuse she suffered in New Mexico. This is enough to
conclude that Maxwell was not “unfairly and _ substantially”
prejudiced.*°
5. Maxwell’s Sentence Was Procedurally Reasonable
Lastly, Maxwell argues that her sentence was procedurally
unreasonable because the District Court erred in applying a leadership
sentencing enhancement under the Sentencing Guidelines and
inadequately explained its above-Guidelines sentence.*! We disagree.
48 Dove, 884 F.3d at 149.
*” As the District Court found, “[t]he Indictment charged a scheme to sexually abuse
underage girls in New York. In service of this scheme, the Indictment alleged that Epstein
and the Defendant groomed the victims for abuse at various properties and in various
states, including Epstein’s ranch in New Mexico.” A-393.
50 See United States v. Lebedev, 932 F.3d 40, 54 (2d Cir. 2019) (concluding that a defendant was
not “unfairly and substantially” prejudiced because “[t]he government disclosed the
evidence and exhibits . . . four weeks prior to trial”).
5! At sentencing, the District Court calculated a Guidelines range of 188 to 235 months’
imprisonment and sentenced Maxwell to a slightly above-Guidelines term of 240 months’
imprisonment.
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