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not "uncertain whether [Maxwell] was convicted of
conduct that was the subject of the grand jury's
indictment."44
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."45 To prevail and
win reversal, the defendant must further show “that
substantial prejudice occurred at trial as a result" of
the variance. 46 "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."47
For reasons similar to the ones noted above in the
context of the constructive amendment, the evidence
at trial did not prove facts "materially different"
from the allegations in the Indictment. 48 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
jury is able to proceed properly with its deliberations, and [] has
considerable discretion in determining how to respond to commu-
nications indicating that the jury is experiencing confusion.")
44 United States v. Salmonese, 352 F.3d 608, 620 (2d Cir. 2003).
45 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 quota-
tion marks omitted); see also Khalupsky, 5 F.4th at 294.
48 Dove, 884 F.3d at 149.
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