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Case 2:21-cr-00286-JMA Document 109 Filed 10/20/22 Page 21 of 36

likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.”³⁹ A constructive amendment requires reversal.⁴⁰

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.”⁴¹ In turn, “[t]he core of criminality of an offense involves the essence of a crime, in general terms; the particulars of how a defendant effected the crime falls outside that purview.”⁴²

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).

⁴¹ United States v. Ionia Mgmt. S.A., 555 F.3d 303, 310 (2d Cir. 2009) (per curiam) (emphasis omitted).

⁴² D’Amelio, 683 F.3d at 418 (internal quotation marks omitted).

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