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Case 1:20-cr-00330-PAE Document 647 Filed 03/11/22 Page 9 of 24

a result, there is a substantial likelihood that the jury convicted Ms. Maxwell on Count Four based on a constructive amendment of the crime charged in the Indictment.

The government goes to great lengths to muddy the common sense reading of the Jury Note by focusing on peripheral or irrelevant issues, or by mischaracterizing the text of the Note, or even by inserting words, phrases, and punctuation that are not contained in the Note, in an effort to confuse and complicate the analysis. (Opp. at 15-17). This is nothing more than misdirection and should be rejected.

For example, the government asserts that Jane’s testimony concerning the New Mexico conduct was proper and relevant to the jury’s consideration of the Mann Act counts, and that the jury “could have convicted even if no sexual abuse occurred in New York, so long as it concluded that the defendant intended for abuse to occur in New York.” (Opp. at 11-12 (emphasis in original)). The Court itself raised this same point in declining to give the jury the requested supplemental instruction. (Tr. 3149-50). Ms. Maxwell does not dispute either assertion. But that is not the issue raised by the Jury Note. In fact, the Jury Note makes clear that the jury was considering convicting Ms. Maxwell on Count Four without concluding that she intended for Jane to be abused in New York. The question posed in the Jury Note was whether Ms. Maxwell could “be found guilty” under the second element of Count Four (to use the jury’s own words) if the jury found that Ms. Maxwell’s intent was for Jane to engage in sexual activity in New Mexico. (Court Exhibit #15). In other words, the jury was asking whether they could convict Ms. Maxwell on Count Four based on that intent, and that intent alone. The answer to that question is no, and the jury should have been so instructed to prevent a constructive amendment.

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