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Case 22-1426, Document 58, 02/28/2023, 3475901, Page180 of 221
A-380

Case 1:20-cr-00330-AJN Document 657 Filed 04/29/22 Page 23 of 45

Banki, 685 F.3d 99, 118 (2d Cir. 2012) (quoting United States v. Rigas, 490 F.3d 208, 228 (2d Cir. 2007)). Thus, the defendant must show that “the challenged evidence or jury instructions tied a defendant’s conviction to ‘behavior entirely separate from that identified in the indictment.’” United States v. Bastian, 770 F.3d 212, 223 (2d Cir. 2014) (emphasis added) (quoting United States v. Danielson, 199 F.3d 666, 670 (2d Cir. 1999)).

By contrast, “[a] variance occurs when the charging terms of the indictment are left unaltered, but the evidence at trial proves facts materially different from those alleged in the indictment.” Salmonese, 352 F.3d at 621 (quoting Frank, 156 F.3d at 337 n.5). “Although the distinction between constructive amendment and variance may appear ‘merely one of degree,’ there is an important difference in outcome: ‘a constructive amendment of the indictment is considered to be a per se violation of the grand jury clause, while a defendant must show prejudice in order to prevail on a variance claim.’” Id. (quoting Frank, 156 F.3d at 337 n.5); see also Rigas, 490 F.3d at 226 (“[A] defendant alleging variance must show ‘substantial prejudice’ to warrant reversal.”). “A defendant cannot demonstrate that [s]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.” Khalupsky, 5 F.4th at 294 (quoting Salmonese, 352 F.3d at 621–22). Moreover, when a defendant has sufficient notice of the Government’s theory at trial, she cannot claim that she was unfairly or substantially prejudiced. See United States v. Kaplan, 490 F.3d 119, 129–30 (2d Cir. 2007).

Finally, the Court bears in mind that the Defendant brings her motion pursuant to Rule 33, which permits the Court to “vacate any judgment and grant a new trial if the interest of

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