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Case 1:20-cr-00330-PAE Document 657 Filed 04/29/22 Page 24 of 45

justice so requires.” Fed. R. Civ. P. 33(a). Such a motion is granted “sparingly and in the most extraordinary circumstances, and only in order to avert a perceived miscarriage of justice.” United States v. Gramins, 939 F.3d 429, 444 (2d Cir. 2019) (cleaned up).

B. No constructive amendment occurred.

Count Four charged the Defendant with transportation of an individual under the age of seventeen with intent to engage in illegal sexual activity, and Count Three charged a conspiracy to do the same. The core of criminality of these counts, the parties agree, was a scheme by Epstein and the Defendant to cause underage girls to travel to New York with the intent that they would engage in sexual activity in violation of New York law. Gov. Br. at 6; Maxwell Br. at 9.4

The Defendant contends that a jury note received during deliberations revealed that the jury convicted the Defendant on a crime different from this core of criminality. Namely, the Defendant argues that in convicting her of Count Four, the jury found she intended for Jane to engage in sexual activity in New Mexico, without finding that she intended for Jane to engage in sexual activity in New York. Maxwell Reply at 2. She argues the Court’s decision to refer the jury back to the charge and refusal to give a supplemental instruction was error. As a result of this same error, she says, the jury also improperly convicted her of Count Three. For the reasons that follow, the Court concludes that there is not a “substantial likelihood” that the Defendant was “convicted of an offense other than that charged in the indictment.” D’Amelio, 683 F.3d at 416 (quoting United States v. Mollica, 849 F.2d 723, 729 (2d Cir. 1988)).

4 The Defendant also contends that her conviction on Count One was the result of a constructive amendment. Because the Court will not enter judgment on Count One per the parties’ consent, the Court does not address Count One here. In any event, the Defendant’s argument as to why Count One was constructively amended is the same as her argument as to Count Three, and the Court’s analysis would be the same. See Maxwell Br. at 16.

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