DOJ-OGR-00021072.jpg

Case 22-1426, Document 59, 02/28/2023, 3475902, Page25 of 113

4. Under Count Four, it was necessary to prove that Defendant caused Jane to travel to New York with the intent that she would engage in illegal sexual activity that violated New York Penal Law § 130.55. A juror note plainly indicated that the jury believed that the sexual activity intended need not have occurred in New York. But the court refused to correct the jurors’ misunderstanding, merely directing them to the charge which they had in their possession and to which they were already plainly referring when they asked about the “second element” of “count four.” Jane’s testimony about sexual abuse in New Mexico, to which the Note referred, presented the jury with an alternative basis for conviction that was entirely distinct from the charges in the Indictment. The Court’s refusal to correct the jury’s obvious misunderstanding, constituted a constructive amendment and/or a variance from the charges in the Indictment.

5. Defendant’s sentence was predicated on a miscalculation of the guideline range and the court gave no explanation for her decision to sentence Defendant above the range. In addition, the court erroneously applied the aggravating role adjustment when there was no evidence that defendant supervised another criminal participant.

10

DOJ-OGR-00021072