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Case 22-1426, Document 58, 02/28/2023, 3475901, Page187 of 221
A-387

Case 1:20-cr-00330-AJN Document 657 Filed 04/29/22 Page 30 of 45

to the second element. Or it could have been asking if it was permissible to consider the New Mexico testimony in its assessment of Count Four. Indeed, the Defendant proffered a different interpretation when the Court first read the note at trial. Initially, the Defendant argued that the jury was asking if the Defendant could be found guilty solely for aiding and abetting a flight home from New Mexico, which she said raised the issue of whether sexual activity could be the “significant or motivating purpose” for the travel. Trial Tr. at 3128–30. It was only after a protracted discussion, spanning ten pages of transcript, that the Defendant eventually suggested that the jury was considering convicting the Defendant on Count Four solely on conduct in New Mexico without any travel to New York. On this score, the Defendant argued at trial and argues now that the absence of a comma between “New Mexico” and “where/if” revealed the jury’s thinking. Maxwell Reply at 6 n.2.⁶ But hinging the note’s meaning on an absent comma does not indicate a meaning “clear on [its] face.” Maxwell Reply at 9. With or without the comma, the note was ambiguous as to the destination of the hypothetical return flight, the testimony being referenced, and the legal question being asked.

The note was clear on one point—the jury was asking about the second element of Count Four. Accordingly, the Court sent the jury back to the charge, which accurately instructed that Count Four had to be predicated on finding a violation of New York law. This response ensured that the jury focused on the correct instruction and, in turn, reminded the jury that the only state law at issue was New York’s, even if sexual abuse in New Mexico was relevant evidence of intent. See United States v. Rommy, 506 F.3d 108, 126 (2d Cir. 2007) (“[A] trial court

⁶ The Defendant also accuses the Government of muddying the inquiry by inserting a comma in this supposedly crucial spot. Maxwell Reply at 5, 6 n.2. It is apparent from the Government’s brief that it relied on the trial transcript for its transcription of the jury note, which included a comma between these words. See Gov. Br. at 13 (quoting Trial Tr. at 3126).

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