20250117133905126_22-1426.pdf

22-1426-cr
United States v. Maxwell
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2023
No. 22-1426-cr
UNITED STATES OF AMERICA,
Appellee,
v.
GHISLAINE MAXWELL, also known as Sealed Defendant 1,
Defendant-Appellant.

On Appeal from the United States District Court for the Southern
District of New York

ARGUED: MARCH 12, 2024
DECIDED: SEPTEMBER 17, 2024

Before: CABRANES, WESLEY, and LOHIER, Circuit Judges.

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Defendant Ghislaine Maxwell appeals her June 29, 2022,
judgment of conviction in the United States District Court for the
Southern District of New York (Alison J. Nathan, Judge). Maxwell was
convicted of conspiracy to transport minors with intent to engage in
criminal sexual activity in violation of 18 U.S.C. § 371; transportation
of a minor with intent to engage in criminal sexual activity in violation
of 18 U.S.C. § 2423(a); and sex trafficking of a minor in violation of 18
U.S.C. § 1591(a) and (b)(2). She was principally sentenced to
concurrent terms of imprisonment of 60 months, 120 months, and 240
months, respectively, to be followed by concurrent terms of
supervised release.
On appeal, the questions presented are whether (1) Jeffrey
Epstein’s Non-Prosecution Agreement with the United States
Attorney’s Office for the Southern District of Florida barred Maxwell’s
prosecution by the United States Attorney’s Office for the Southern
District of New York; (2) a second superseding indictment of March
29, 2021, complied with the statute of limitations; (3) the District Court
abused its discretion in denying Maxwell’s Rule 33 motion for a new
trial based on the claimed violation of her Sixth Amendment right to a
fair and impartial jury; (4) the District Court’s response to a jury note
resulted in a constructive amendment of, or prejudicial variance from,
the allegations in the second superseding indictment; and (5)
Maxwell’s sentence was procedurally reasonable.
Identifying no errors in the District Court’s conduct of this
complex case, we AFFIRM the District Court’s June 29, 2022, judgment
of conviction.
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ANDREW ROHRBACH, Assistant United States
Attorney (Maurene Comey, Alison Moe,
Lara Pomerantz, Won S. Shin, Assistant
United States Attorneys, on the brief), for
Damian Williams, United States Attorney
for the Southern District of New York, New
York, NY, for Appellee.
DIANA FABI SAMSON (Arthur L. Aidala, John
M. Leventhal, on the brief), Aidala Bertuna &
Kamins PC, New York, NY, for Defendant
Appellant.

JOSÉ A. CABRANES, Circuit Judge:
Defendant Ghislaine Maxwell appeals her June 29, 2022,
judgment of conviction in the United States District Court for the
Southern District of New York (Alison J. Nathan, Judge). Maxwell was
convicted of conspiracy to transport minors with intent to engage in
criminal sexual activity in violation of 18 U.S.C. § 371; transportation
of a minor with intent to engage in criminal sexual activity in violation
of 18 U.S.C. § 2423(a); and sex trafficking of a minor in violation of 18
U.S.C. § 1591(a) and (b)(2). The District Court imposed concurrent
terms of imprisonment of 60 months, 120 months, and 240 months,
respectively, to be followed by concurrent terms of supervised release
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of three years, three years, and five years, respectively. The District
Court also imposed a fine of $250,000 on each count for a total of
$750,000.
On appeal, the questions presented are (1) whether Jeffrey
Epstein’s Non-Prosecution Agreement (“NPA”) with the United States
Attorney’s Office for the Southern District of Florida (“USAO-SDFL”)
barred Maxwell’s prosecution by the United States Attorney’s Office
for the Southern District of New York (“USAO-SDNY”); (2) whether
Maxwell’s second superseding indictment of March 29, 2021 (the
“Indictment”) complied with the statute of limitations; (3) whether the
District Court abused its discretion in denying Maxwell’s Rule 33
motion for a new trial based on the claimed violation of her Sixth
Amendment right to a fair and impartial jury; (4) whether the District
Court’s response to a jury note resulted in a constructive amendment
of, or prejudicial variance from, the allegations in the Indictment; and
(5) whether Maxwell’s sentence was procedurally reasonable.
We hold that Epstein’s NPA did not bar Maxwell’s prosecution
by USAO-SDNY as the NPA does not bind USAO-SDNY. We hold
that Maxwell’s Indictment complied with the statute of limitations as
18 U.S.C. § 3283 extended the time to bring charges of sexual abuse for
offenses committed before the date of the statute’s enactment. We
further hold that the District Court did not abuse its discretion in
denying Maxwell’s Rule 33 motion for a new trial based on one juror’s
erroneous answers during voir dire. We also hold that the District
Court’s response to a jury note did not result in a constructive
amendment of, or prejudicial variance from, the allegations in the
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Indictment. Lastly, we hold that Maxwell’s sentence is procedurally
reasonable.
Accordingly, we AFFIRM the District Court’s June 29, 2022,
judgment of conviction.
I. BACKGROUND ¹
Defendant Ghislaine Maxwell coordinated, facilitated, and
contributed to Jeffrey Epstein’s sexual abuse of women and underage
girls. Starting in 1994, Maxwell groomed numerous young women to
engage in sexual activity with Epstein by building friendships with
these young women, gradually normalizing discussions of sexual
topics and sexual abuse. Until about 2004, this pattern of sexual abuse
continued as Maxwell provided Epstein access to underage girls in
various locations in the United States.
1. Epstein’s Non-Prosecution Agreement
In September 2007, following state and federal investigations
into allegations of Epstein’s unlawful sexual activity, Epstein entered
into an NPA with USAO-SDFL. In the NPA, Epstein agreed to plead
guilty to one count of solicitation of prostitution, in violation of Florida

¹ Unless otherwise noted, the following facts are drawn from the evidence presented at trial
and described in the light most favorable to the Government. See United States v. Litwok, 678
F.3d 208, 210-11 (2d Cir. 2012) (“Because this is an appeal from a judgment of conviction
entered after a jury trial, the [ ] facts are drawn from the trial evidence and described in the
light most favorable to the Government.”).
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Statutes § 796.07,² and to one count of solicitation of minors to engage
in prostitution, in violation of Florida Statutes § 796.03.³ He agreed to
receive a sentence of eighteen months’ imprisonment on the two
charges. In consideration of Epstein’s agreement, the NPA states that
“the United States also agrees that it will not institute any criminal
charges against any potential co-conspirators of Epstein, including but
not limited to Sarah Kellen, Adriana Ross, Lesley Groff, or Nadia
Marcinkova.”⁴
2. Maxwell’s Indictment and Trial-Related Proceedings
The Indictment filed against Maxwell contained eight counts,
six of which proceeded to trial.⁵ Prior to the commencement of trial,

² Florida Statutes § 796.07 provides in relevant part:
(2) It is unlawful:
(f) To solicit, induce, entice, or procure another to commit prostitution,
lewdness, or assignation.
³ Florida Statutes § 796.03, which has since been repealed, provided in relevant part: “A
person who procures for prostitution, or causes to be prostituted, any person who is under
the age of 18 years commits a felony of the second degree.”
⁴ A-178.
⁵ Count One charged Maxwell with conspiracy to entice minors to travel to engage in illegal
sex acts, in violation of 18 U.S.C. § 371. Count Two charged Maxwell with enticement of a
minor to travel to engage in illegal sex acts, in violation of 18 U.S.C. §§ 2422 and 2. Count
Three charged Maxwell with conspiracy to transport minors with intent to engage in
criminal sexual activity, in violation of 18 U.S.C. § 371. Count Four charged Maxwell with
transportation of a minor with intent to engage in criminal sexual activity, in violation of 18
U.S.C. §§ 2423(a) and 2. Count Five charged Maxwell with sex trafficking conspiracy, in
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prospective jurors completed a lengthy questionnaire, with several
questions raising issues relevant to the trial. Based on the completed
questionnaires, the parties selected prospective jurors to proceed to in
person voir dire. The District Court ultimately empaneled a jury.
During the four-and-a-half-week jury trial, the Government
presented evidence of the repeated sexual abuse of six girls. At the
conclusion of trial, on December 29, 2021, the jury found Maxwell
guilty on all but one count.⁶
Following the verdict, Juror 50 gave press interviews during
which he stated that he was a survivor of child sexual abuse.⁷ In his
answers to the written jury questionnaire, however, Juror 50 answered
“no” to three questions asking whether he or a friend or family
member had ever been the victim of a crime; whether he or a friend or
family member had ever been the victim of sexual harassment, sexual
abuse, or sexual assault; and whether he or a friend or family member
had ever been accused of sexual harassment, sexual abuse, or sexual

violation of 18 U.S.C. § 371. Count Six charged Maxwell with sex trafficking of a minor, in
violation of 18 U.S.C. §§ 1591(a), (b)(2), and 2. Counts Seven and Eight charged Maxwell
with perjury, in violation of 18 U.S.C. § 1623. The perjury charges were severed from the
remaining charges and ultimately dismissed at sentencing.
⁶ The jury found Maxwell guilty on Counts One, Three, Four, Five, and Six. Maxwell was
acquitted on Count Two.
⁷ Consistent with a juror anonymity order entered for trial, the parties and the District Court
referred to the jurors by pseudonym.
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assault.⁸ Upon learning of the interviews, the Government filed a letter
on January 5, 2022, requesting a hearing; Maxwell then moved for a
new trial under Federal Rule of Criminal Procedure 33. On March 8,
2022, the District Court held a hearing and Juror 50 testified—under
grant of immunity—that his answers to three questions related to
sexual abuse in the jury questionnaire were not accurate but that the
answers were an inadvertent mistake and that his experiences did not
affect his ability to be fair and impartial. Finding Juror 50’s testimony
to be credible, the District Court denied Maxwell’s motion for a new
trial in a written order.
Maxwell was subsequently sentenced to a term of 240 months’
imprisonment to be followed by five years’ supervised release, and the

⁸ Question 2 asked “[h]ave you, or any of your relatives or close friends, ever been a victim
of a crime?” Question 48 asked “[h]ave you or a friend or family member ever been the
victim of sexual harassment, sexual abuse, or sexual assault? (This includes actual or
attempted sexual assault or other unwanted sexual advance, including by a stranger,
acquaintance, supervisor, teacher, or family member.)” Finally, Question 49 asked
[h]ave you or a friend or family member ever been accused of sexual harassment,
sexual abuse, or sexual assault? (This includes both formal accusations in a court of
law or informal accusations in a social or work setting of actual or attempted sexual
assault or other unwanted sexual advance, including by a stranger, acquaintance,
supervisor, teacher, or family member.
See A-299, A-310.
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District Court imposed a $750,000 fine and a $300 mandatory special
assessment. This appeal followed.
II. DISCUSSION
1. The NPA Between Epstein and USAO-SDFL Did Not Bar
Maxwell’s Prosecution by USAO-SDNY
Maxwell sought dismissal of the charges in the Indictment on the
grounds that the NPA made between Epstein and USAO-SDFL
immunized her from prosecution on all counts as a third-party
beneficiary of the NPA. The District Court denied the motion, rejecting
Maxwell’s arguments. We agree. We review de novo the denial of a
motion to dismiss an indictment.⁹
In arguing that the NPA barred her prosecution by USAO-SDNY,
Maxwell cites the portion of the NPA in which “the United States [ ]
agree[d] that it w[ould] not institute any criminal charges against any
potential co-conspirators of Epstein.”¹⁰ We hold that the NPA with
USAO-SDFL does not bind USAO-SDNY.
It is well established in our Circuit that “[a] plea agreement binds
only the office of the United States Attorney for the district in which
the plea is entered unless it affirmatively appears that the agreement

⁹ See, e.g., United States v. Walters, 910 F.3d 11, 22 (2d Cir. 2018).
¹⁰ A-178.
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contemplates a broader restriction.”¹¹ And while Maxwell contends
that we cannot apply Annabi to an agreement negotiated and executed
outside of this Circuit, we have previously done just that.¹² Applying
Annabi, we conclude that the NPA did not bar Maxwell’s prosecution
by USAO-SDNY. There is nothing in the NPA that affirmatively shows
that the NPA was intended to bind multiple districts. Instead, where
the NPA is not silent, the agreement’s scope is expressly limited to the
Southern District of Florida. The NPA makes clear that if Epstein
fulfilled his obligations, he would no longer face charges in that district:
After timely fulfilling all the terms and conditions of the
Agreement, no prosecution for the offenses set out on pages 1
and 2 of this Agreement, nor any other offenses that have been
the subject of the joint investigation by the Federal Bureau of
Investigation and the United States Attorney's Office, nor any

¹¹ United States v. Annabi, 771 F.2d 670, 672 (2d Cir. 1985). We recognize that circuits have
been split on this issue for decades. See United States v. Harvey, 791 F.2d 294, 303 (4th Cir.
1986); United States v. Gebbie, 294 F.3d 540, 550 (3d Cir. 2002).
¹² See, e.g., United States v. Prisco, 391 F. App’x 920, 921 (2d Cir. 2010) (summary order)
(applying Annabi to plea agreement entered into in the District of New Jersey); United States
v. Gonzalez, 93 F. App’x 268, 270 (2d Cir. 2004) (summary order) (same, to agreement entered
into in the District of New Mexico). Nor does Annabi, as Maxwell contends, apply only
where subsequent charges are “sufficiently distinct” from charges covered by an earlier
agreement. In Annabi, this Court rejected an interpretation of a prior plea agreement that
rested on the Double Jeopardy Clause, reasoning that even if the Double Jeopardy Clause
applied, the subsequent charges were “sufficiently distinct” and therefore fell outside the
Clause’s protections. Annabi, 771 F.2d at 672. This Court did not, however, conclude that the
rule of construction it announced depended on the similarities between earlier and
subsequent charges.
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offenses that arose from the Federal Grand Jury investigation
will be instituted in this District, and the charges against Epstein
if any, will be dismissed.¹³
The only language in the NPA that speaks to the agreement’s scope is
limiting language.
The negotiation history of the NPA, just as the text, fails to show
that the agreement was intended to bind other districts. Under our
Court’s precedent, the negotiation history of an NPA can support an
inference that an NPA “affirmatively” binds other districts.¹⁴ Yet, the
actions of USAO-SDFL do not indicate that the NPA was intended to
bind other districts.
The United States Attorney’s Manual that was operable during
the negotiations of the NPA required that:
No district or division shall make any agreement, including any
agreement not to prosecute, which purports to bind any other
district(s) or division without the express written approval of

¹³ A-175 (emphasis added). The agreement’s scope is also limited in an additional section:
THEREFORE, on the authority of R. Alexander Acosta, United States Attorney for
the Southern District of Florida, prosecution in this District for these offenses shall be
deferred in favor of prosecution by the State of Florida, provided that Epstein
abides by the following conditions and the requirements of this Agreement set forth
below.
Id. (emphasis added).
¹⁴ See United States v. Russo, 801 F.2d 624, 626 (2d Cir. 1986).
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the United States Attorney(s) in each affected district and/or the
Assistant Attorney General of the Criminal Division.¹⁵
Nothing before us indicates that USAO-SDNY had been notified or
had approved of Epstein’s NPA with USAO-SDFL and intended to be
bound by it. And the Assistant Attorney General for the Criminal
Division stated in an interview with the Office of Professional
Responsibility that she “played no role” in the NPA, either by
reviewing or approving the agreement.
The history of the Office of the United States Attorney is instructive
as to the scope of their actions and duties. The Judiciary Act of 1789
created the Office of the United States Attorney, along with the office
of the Attorney General. More specifically, the Judiciary Act provided
for the appointment, in each district, of a “person learned in the law to
act as attorney for the United States in such district, who shall be sworn
or affirmed to the faithful execution of his office, whose duty it shall
be to prosecute in such district all delinquents for crimes and offences,
cognizable under the authority of the United States, and all civil
actions in which the United States shall be concerned.”¹⁶ The Judiciary
Act thus emphasized that U.S. Attorneys would enforce the law of the
United States but did not determine that the actions of one U.S.
Attorney could bind other districts, let alone the entire nation. In fact,
the phrase “in such district,” repeated twice, implies that the scope of

¹⁵ United States Attorney’s Manual § 9-27.641 (2007).
¹⁶ An Act to Establish the Judicial Courts of the United States, ch. 20, § 35, 1 Stat. 73, 92-93
(1789) (emphasis added).
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the actions and the duties of the U.S. Attorneys would be limited to
their own districts, absent any express exceptions.
Since 1789, while the number of federal districts has grown
significantly, the duties of a U.S. Attorney and their scope remain
largely unchanged. By statute, U.S. Attorneys, “within [their] district,
shall (1) prosecute for all offenses against the United States; (2)
prosecute or defend, for the Government, all civil actions, suits or
proceedings in which the United States is concerned.”¹⁷ Again, the
scope of the duties of a U.S. Attorney is cabined to their specific district
unless otherwise directed.¹⁸
In short, Annabi controls the result here. Nothing in the text of
the NPA or its negotiation history suggests that the NPA precluded
USAO-SDNY from prosecuting Maxwell for the charges in the

¹⁷ 28 U.S.C. § 547.
¹⁸ This does not suggest that there are no instances in which a U.S. Attorney’s powers do not
extend beyond their districts. For instance, under 28 U.S.C. § 515 a U.S. Attorney can
represent the Government or participate in proceedings in other districts, but only when
specifically directed by the Attorney General:
The Attorney General or any other officer of the Department of Justice, or any
attorney specially appointed by the Attorney General under law, may, when
specifically directed by the Attorney General, conduct any kind of legal proceeding
. . . which United States attorneys are authorized by law to conduct, whether or not
he is a resident of the district in which the proceeding is brought.
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Indictment. The District Court therefore correctly denied Maxwell’s
motion without an evidentiary hearing.
2. The Indictment Is Timely
Maxwell argues that Counts Three and Four of the Indictment
are untimely because they do not fall within the scope of offenses
involving the sexual or physical abuse or kidnapping of a minor and
thereby do not fall within the extended statute of limitations provided
by § 3283.¹⁹ Separately, Maxwell contends that the Government cannot
apply the 2003 amendment to § 3283 that extended the statute of
limitations to those offenses that were committed before the enactment
into law of the provision. On both points, we disagree and hold that
the District Court correctly denied Maxwell’s motions to dismiss the
charges as untimely. We review de novo the denial of a motion to
dismiss an indictment and the application of a statute of limitations.²⁰
First, Counts Three and Four of the Indictment are offenses
involving the sexual abuse of minors. The District Court properly
applied Weingarten v. United States.²¹ In Weingarten, we explained that
Congress intended courts to apply § 3283 using a case-specific

¹⁹ 18 U.S.C. § 3283 provides: “[n]o statute of limitations that would otherwise preclude
prosecution for an offense involving the sexual or physical abuse, or kidnaping, of a child
under the age of 18 years shall preclude such prosecution during the life of the child, or for
ten years after the offense, whichever is longer.”
²⁰ United States v. Sampson, 898 F.3d 270, 276, 278 (2d Cir. 2018).
²¹ 865 F.3d 48, 58-60 (2d Cir. 2017); see also United States v. Maxwell, 534 F. Supp. 3d 299, 313-
14 (S.D.N.Y. 2021).
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approach as opposed to a “categorical approach.”²² We see no reason
to depart from our reasoning in Weingarten. Accordingly, the question
presented here is whether the charged offenses involved the sexual
abuse of a minor for the purposes of § 3283 based on the facts of the
case. Jane, one of the women who testified at trial, gave evidence that
she had been sexually abused when transported across state lines as a
minor. Counts Three and Four thus qualify as offenses, and § 3283
applies to those offenses.
Second, Maxwell argues that Counts Three, Four, and Six of the
Indictment are barred by the statute of limitations because the
extended statute of limitations provided by the 2003 amendment to
§ 3283 does not apply to pre-enactment conduct. In Landgraf v. USI
Film Products, the Supreme Court held that a court, in deciding
whether a statute applies retroactively, must first “determine whether
Congress has expressly prescribed the statute’s proper reach.”²³ If
Congress has done so, “the inquiry ends, and the court enforces the

²² The “categorical approach” is a method of statutory interpretation that requires courts to
look “only to the statutory definitions of the prior offenses, and not to the particular facts
underlying those convictions” for sentencing and immigration purposes. Taylor v. United
States, 495 U.S. 575, 600 (1990). We properly reasoned in Weingarten that § 3283 met none of
the conditions listed by Taylor that might require application of the categorical approach.
See Weingarten, 865 F.3d at 58-60. First, “[t]he language of § 3283[] . . . reaches beyond the
offense and its legal elements to the conduct ‘involv[ed]’ in the offense.” Id. at 59-60. Second,
legislative history suggests that Congress intended § 3283 to be applied broadly. Id. at 60.
Third, a case-specific approach would not produce practical difficulties or potential
unfairness. Id.
²³ 511 U.S. 244, 280 (1994); see also Weingarten, 865 F.3d at 54-55.
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statute as it is written.”²⁴ If the statute “is ambiguous or contains no
express command regarding retroactivity, a reviewing court must
determine whether applying the statute to antecedent conduct would
create presumptively impermissible retroactive effects.”²⁵
Here, the inquiry is straightforward. In 2003, Congress
amended § 3283 to provide: “No statute of limitations that would
otherwise preclude prosecution for an offense involving the sexual or
physical abuse, or kidnaping, of a child under the age of 18 years shall
preclude such prosecution during the life of the child.”²⁶ The text of
§ 3283—that no statute of limitations that would otherwise preclude
prosecution of these offenses will apply—plainly requires that it
prevent the application of any statute of limitations that would
otherwise apply to past conduct.
The statutory text makes clear that Congress intended to extend
the time to bring charges of sexual abuse for pre-enactment conduct as
the prior statute of limitations was inadequate. This is enough to
conclude that the PROTECT Act’s amendment to § 3283 applies to
Maxwell’s conduct as charged in the Indictment.

²⁴ In re Enter. Mortg. Acceptance Co., LLC, Sec. Litig., 391 F.3d 401, 406 (2d Cir. 2004) (citing
Landgraf, 511 U.S. at 280).
²⁵ Weingarten, 865 F.3d at 55 (citation and internal quotation marks omitted).
²⁶ PROTECT Act, Pub. L. No. 108-21, § 202, 117 Stat. 650, 660 (2003).
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3. The District Court Did Not Abuse Its Discretion in Denying
Maxwell’s Motion for a New Trial
Maxwell contends that she was deprived of her constitutional right
to a fair and impartial jury because Juror 50 failed to accurately
respond to several questions related to his history of sexual abuse as
part of the jury questionnaire during jury selection. Following a special
evidentiary hearing, the District Court denied Maxwell’s motion for a
new trial.
We review a District Court’s denial of a motion for a new trial for
abuse of discretion.²⁷ We have been extremely reluctant to “haul jurors
in after they have reached a verdict in order to probe for potential
instances of bias, misconduct or extraneous influences.”²⁸ While courts
can “vacate any judgment and grant a new trial if the interest of justice
so requires,” Fed. R. Crim. P. 33(a), they should do so “sparingly” and
only in “the most extraordinary circumstances.”²⁹ A district court “has

²⁷ See Rivas v. Brattesani, 94 F.3d 802, 807 (2d Cir. 1996). “[W]e are mindful that a judge has
not abused her discretion simply because she has made a different decision than we would
have made in the first instance.” United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001).
We have repeatedly explained that the term of art “abuse of discretion” includes errors of
law, a clearly erroneous assessment of the evidence, or “a decision that cannot be located
within the range of permissible decisions.” In re Sims, 534 F.3d 117, 132 (2d Cir. 2008)
(citation and internal quotation marks omitted).
²⁸ United States v. Moon, 718 F.2d 1210, 1234 (2d Cir. 1983).
²⁹ Ferguson, 246 F.3d at 134.
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broad discretion to decide Rule 33 motions based upon its evaluation
of the proof produced” and is shown deference on appeal.³⁰
A Rule 33 motion based on a juror’s alleged erroneous response
during voir dire is governed by McDonough Power Equipment, Inc. v.
Greenwood.³¹ Under McDonough, a party seeking a new trial “must first
demonstrate that a juror failed to answer honestly a material question
on voir dire, and then further show that a correct response would have
provided a valid basis for a challenge for cause.”³²
The District Court applied the McDonough standard, found Juror
50’s testimony credible, and determined that Juror 50’s erroneous
responses during voir dire were “not deliberately incorrect” and that
“he would not have been struck for cause if he had provided accurate
responses to the questionnaire.”³³ In fact, as the District Court noted,
Maxwell did not challenge the inclusion of other jurors who disclosed
past experience with sexual abuse, assault, or harassment. This is

³⁰ United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995) (citation and internal quotation
marks omitted).
³¹ 464 U.S. 548 (1984).
³² Id. at 556.
³³ A-340 (emphasis added). The Supreme Court reminds us that “[t]o invalidate the result
of a [ ] trial because of a juror’s mistaken, though honest response to a question, is to insist
on something closer to perfection than our judicial system can be expected to give.”
McDonough, 464 U.S. at 555.
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enough; the District Court did not abuse its discretion in denying
Maxwell’s motion for a new trial.³⁴
4. The District Court’s Response to a Jury Note Did Not Result
in a Constructive Amendment of, or Prejudicial Variance
from, the Allegations in the Indictment
During jury deliberations, the jury sent the following jury note
regarding Count Four of the Indictment:
Under Count Four (4), if the defendant aided in the
transportation of Jane’s return flight, but not the flight to
New Mexico where/if the intent was for Jane to engage in
sexual activity, can she be found guilty under the second
element?³⁵
The District Court determined that it would not respond to the note
directly because it was difficult to “parse factually and legally” and
instead referred the jury to the second element of Count Four.³⁶

³⁴ Nor did the District Court err in questioning Juror 50 rather than allowing the parties to
do so. In conducting a hearing on potential juror misconduct, “[w]e leave it to the district
court’s discretion to decide the extent to which the parties may participate in questioning
the witnesses, and whether to hold the hearing in camera.” United States v. Ianniello, 866 F.2d
540, 544 (2d Cir. 1989). And while Maxwell contends that the District Court improperly
limited questioning about Juror 50’s role in deliberations, she both waived that argument
below and fails to show here how any such questioning would not be foreclosed by Federal
Rule of Evidence 606(b).
³⁵ A-238.
³⁶ A-207-221. The District Court’s instruction on the second element of Count Four required
the jury to find that “Maxwell knowingly transported Jane in interstate commerce with the
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Maxwell subsequently filed a letter seeking reconsideration of the
District Court’s response, claiming that this response resulted in a
constructive amendment or prejudicial variance. The District Court
declined to reconsider its response and denied Maxwell’s motion.
Maxwell appeals the District Court’s denial and argues that the
alleged constructive amendment is a per se violation of the Grand Jury
Clause of the Fifth Amendment. Specifically, Maxwell argues that
testimony about a witness’s sexual abuse in New Mexico presented the
jury with another basis for conviction, which is distinct from the
charges in the Indictment. Similarly, Maxwell argues that this
testimony resulted in a prejudicial variance from the Indictment. We
disagree and affirm the District Court’s denial.
We review the denial of a motion claiming constructive
amendment or prejudicial variance de novo.³⁷ To satisfy the Fifth
Amendment’s Grand Jury Clause, “an indictment must contain the
elements of the offense charged and fairly inform the defendant of the
charge against which he must defend.”³⁸ We have explained that to
prevail on a constructive amendment claim, a defendant must
demonstrate that “the terms of the indictment are in effect altered by
the presentation of evidence and jury instructions which so modify
essential elements of the offense charged that there is a substantial

intent that Jane engage in sexual activity for which any person can be charged with a
criminal offense in violation of New York law.” A-205.
³⁷ See United States v. Dove, 884 F.3d 138, 146, 149 (2d Cir. 2018).
³⁸ United States v. Khalupsky, 5 F.4th 279, 293 (2d Cir. 2021).
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likelihood that the defendant may have been convicted of an offense
other than that charged in the indictment.”³⁹ A constructive
amendment requires reversal.⁴⁰
We cannot conclude that a constructive amendment resulted
from the evidence presented by the Government—namely, Jane’s
testimony—or that it can be implied from the jury note. We have
permitted significant flexibility in proof as long as a defendant was
“given notice of the core of criminality to be proven at trial.”⁴¹ In turn,
“[t]he core of criminality of an offense involves the essence of a crime,
in general terms; the particulars of how a defendant effected the crime
falls outside that purview.”⁴²
We agree with the District Court that the jury instructions, the
evidence presented at trial, and the Government’s summation
captured the core of criminality. As the District Court noted, while the
jury note was ambiguous in one sense, it was clear that it referred to
the second element of Count Four of the Indictment. Therefore, the
District Court correctly directed the jury to that instruction, which
“accurately instructed that Count Four had to be predicated on finding

³⁹ United States v. Mollica, 849 F.2d 723, 729 (2d Cir. 1988).
⁴⁰ See United States v. D’Amelio, 683 F.3d 412, 417 (2d Cir. 2012).
⁴¹ United States v. Ionia Mgmt. S.A., 555 F.3d 303, 310 (2d Cir. 2009) (per curiam) (emphasis
omitted).
⁴² D'Amelio, 683 F.3d at 418 (internal quotation marks omitted).
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a violation of New York law.”⁴³ It is therefore 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

⁴³ A-387; see United States v. Parker, 903 F.2d 91, 101 (2d Cir. 1990) (“The trial judge is in the
best position to sense whether the jury is able to proceed properly with its deliberations,
and [ ] has considerable discretion in determining how to respond to communications
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 quotation marks omitted); see also
Khalupsky, 5 F.4th at 294.
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“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 in New Mexico.⁴⁹ Furthermore,
Maxwell cannot demonstrate “substantial prejudice.” Maxwell
received—over three weeks before trial—notes of Jane’s interview
recording the abuse she suffered in New Mexico. This is enough to
conclude that Maxwell was not “unfairly and substantially”
prejudiced.⁵⁰
5. Maxwell’s Sentence Was Procedurally Reasonable
Lastly, Maxwell argues that her sentence was procedurally
unreasonable because the District Court erred in applying a leadership
sentencing enhancement under the Sentencing Guidelines and
inadequately explained its above-Guidelines sentence.⁵¹ We disagree.

⁴⁸ Dove, 884 F.3d at 149.
⁴⁹ As the District Court found, “[t]he Indictment charged a scheme to sexually abuse
underage girls in New York. In service of this scheme, the Indictment alleged that Epstein
and the Defendant groomed the victims for abuse at various properties and in various
states, including Epstein’s ranch in New Mexico.” A-393.
⁵⁰ See United States v. Lebedev, 932 F.3d 40, 54 (2d Cir. 2019) (concluding that a defendant was
not “unfairly and substantially” prejudiced because “[t]he government disclosed the
evidence and exhibits . . . four weeks prior to trial”).
⁵¹ At sentencing, the District Court calculated a Guidelines range of 188 to 235 months’
imprisonment and sentenced Maxwell to a slightly above-Guidelines term of 240 months’
imprisonment.
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We review a sentence for both procedural and substantive
reasonableness, which “amounts to review for abuse of discretion.”⁵²
We have explained that procedural error is found when a district court
“fails to calculate (or improperly calculates) the Sentencing Guidelines
range, treats the Sentencing Guidelines as mandatory, fails to consider
the [Section] 3553(a) factors, selects a sentence based on clearly
erroneous facts, or fails adequately to explain the chosen sentence.”⁵³
The District Court did none of that. It is important to emphasize that
the Sentencing Guidelines “are guidelines—that is, they are truly
advisory.”⁵⁴ A District Court is “generally free to impose sentences
outside the recommended range” based on its own “informed and
individualized judgment.”⁵⁵
With respect to the four-level leadership enhancement, the District
Court found that Maxwell “supervised” Sarah Kellen in part because
of testimony from two of Epstein’s pilots who testified that Kellen was
Maxwell’s assistant. The District Court found that testimony credible,
in part because it was corroborated by other testimony that Maxwell
was Epstein’s “number two and the lady of the house” in Palm Beach,

⁵² United States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en banc). “Regardless of whether
the sentence imposed is inside or outside the Guidelines range, the appellate court must
review the sentence under an abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 51 (2007).
⁵³ United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012).
⁵⁴ Cavera, 550 F.3d at 189.
⁵⁵ Id.
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where much of the abuse occurred and where Kellen worked.⁵⁶ We
therefore hold that the District Court did not err in applying the
leadership enhancement.
With respect to the length of the sentence, the District Court
properly discussed the sentencing factors when imposing the
sentence, and described, at length, Maxwell’s “pivotal role in
facilitating the abuse of the underaged girls through a series of
deceptive tactics.”⁵⁷ The District Court recognized that the sentence
“must reflect the gravity of Ms. Maxwell’s conduct, of Ms. Maxwell’s
offense, the pivotal role she played in facilitating the offense, and the
significant and lasting harm it inflicted.”⁵⁸ And the District Court
explained that “a very serious, a very significant sentence is necessary
to achieve the purposes of punishment” under 18 U.S.C. § 3553(a). In
sum, the District Court did not err by failing to adequately explain its
sentence.
CONCLUSION
To summarize, we hold as follows:

⁵⁶ A-417.
⁵⁷ SA-459.
⁵⁸ SA-461.
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1. The District Court did not err in holding that Epstein’s NPA
with USAO-SDFL did not bar Maxwell’s prosecution by USAO-
SDNY.
2. The District Court did not err in holding that the Indictment
was filed within the statute of limitations.
3. The District Court did not abuse its discretion in denying
Maxwell’s Rule 33 motion for a new trial.
4. The District Court’s response to a jury note did not result in a
constructive amendment of, or prejudicial variance from, the
allegations in the Indictment.
5. The District Court’s sentence was procedurally reasonable.
For the foregoing reasons, we AFFIRM the District Court’s June
29, 2022, judgment of conviction.
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UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
_____________________________________________
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
25th day of November, two thousand twenty-four.
________________________________________
United States of America,
Appellee,
v.
ORDER
Docket No: 22-1426
Ghislaine Maxwell, AKA Sealed Defendant 1,
Defendant - Appellant.
_______________________________________

Appellant, Ghislaine Maxwell, filed a petition for panel rehearing, or, in the alternative,
for rehearing en banc. The panel that determined the appeal has considered the request for panel
rehearing, and the active members of the Court have considered the request for rehearing en banc.
IT IS HEREBY ORDERED that the petition is denied.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
Case 22-1426, Document 120, 11/25/2024, 3637560, Page1 of 1