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Case 22-1426, Document 107-1, 01/22/2024, 3635887, Page 20 of 56

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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