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encouraged her to massage Epstein's feet, and that the Defendant then gave her a massage during 
which the Defendant touched Annie's breasts. Id. at 2083-86. As noted above, Carolyn testified 
that the Defendant paid her for performing sexualized massages on Epstein. She also testified 
that Epstein and the Defendant asked her about her life and family and discussed sexual topics 
with her. Id. at 1533-36. Epstein then invited her to travel generally, and the Defendant invited 
her to travel to Epstein's private island in the Caribbean. Id. at 1535,1540. A reasonable juror 
could have concluded that the Defendant's and Epstein's actions, including their efforts to 
normalize sexual conduct and invitations for underage girls to travel to New Mexico and the 
Caribbean, were in furtherance of the conspiracy's goal of transporting minors to New York for 
the purpose of engaging in sexual activity illegal under New York law. Finally, although the 
jury was instructed that it could not convict the Defendant solely on the basis of
testimony, her testimony corroborated the testimony of other witnesses as to the Defendant's 
knowledge and role in the conspiracy. Id. at 1177-90. The Court concludes that this evidence 
was sufficient for a reasonable jury to convict the Defendant for conspiring to transport 
individuals in interstate commerce with intent to engage in sexual activity illegal under New 
York law. 
Accordingly, the Court denies the Defendant's Rule 29 motion for a judgment of 
acquittal. 
III. 
The Court denies the Defendant's motion claiming a construct iv e amendment or 
prejudicial variance. 
The Defendant also seeks to vacate her convictions as to Counts One, Three, and Four 
(the Mann Act counts) pursuant to Federal Rule of Criminal Procedure 33. She contends that the 
jury convicted her of intending that Jane engage in sexual activity in New Mexico, rather than 
New York, thus resulting in a constructive amendment of the Indictment, or in the alternative, a 
21 
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prejudicial variance. For the following reasons, the Court disagrees and denies the Defendant's 
motion on this basis. 
A. Applicable Law 
Under the Fifth Amendment's Grand Jury Clause, "a defendant has the right to be tried 
only on charges contained in an indictment returned by a grand jury." United States v. Wozniak, 
126 F.3d 105, 109 (2d Cir. 1997). "[W]hen the charge upon which the defendant is tried differs 
significantly from the charge upon which the grand jury voted," a constructive amendment 
occurs and reversal is required. United States v. Khalupsky, 5 F.4th 279, 293 (2d Cir. 2021). 
"To prevail on a constructive amendment claim, a defendant must demonstrate that either 
the proof at trial or the trial court's jury instructions so altered an essential element of the charge 
that, upon review, it is uncertain whether the defendant was convicted of conduct that was the 
subject of the grand jury's indictment." United States v. Sabnonese, 352 F.3d 608, 620 (2d Cir. 
2003) (quoting United States v. Frank, 156 F.3d 332, 337 (2d Cir. 1998)). In making this 
determination, the Court first delineates the "core of criminality" of the crime alleged. United 
States v. Gross, No. 15-cr-769 (AN), 2017 WL 4685111, at *20 (S.D.N.Y. Oct. 18, 2017), of 'd 
sub nom. United States v. Lebedev, 932 F.3d 40 (2d Cir. 2019). The "core of criminality ... 
involves the essence of a crime, in general terms." United States v. Daugerdas, 837 F.3d 212, 
225 (2d Cir. 2016) (alteration in original) (quoting United States v. D'Amelio, 683 F.3d 412, 418 
(2d Cir. 2012)). The Court then determines whether the evidence or jury instructions at trial 
created a "substantial likelihood" that the defendant was not convicted of the crime described in 
that core, but instead of a crime "distinctly different." D'Amelio, 683 F.3d at 416, 419. The 
Second Circuit has "consistently permitted significant flexibility in proof, provided that the 
defendant was given notice of the core of criminality to be proven at trial." United States v. 
22 
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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 Sahnonese, 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 
23 
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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 Mo 
engage in sexual activity in New Mexico, without finding that she intended for No 
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)). 
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. 
24 
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1. The Court's instructions, the evidence at trial, and the Gm ernmerit's 
summation captured the core of criminality. 
First, the Court's instructions to the jury during trial and after the close of evidence 
captured the core of criminality. As explained above, the Indictment charged the Defendant with 
four counts in violation of the Mann Act, each predicated on a violation of New York Penal Law 
Section 130.55. That provision of New York law criminalizes sexual contact with an individual 
known to be under the age of seventeen. Jury Charge at 24. The jury charge made clear that this 
provision of New York law served as the predicate offense for Counts Two and Four. See id. at 
23-24 (Count Two), 28 (Count Four, instructing the jury to decide whether the Defendant had 
knowingly transported Jane with the intent to engage in sexual activity with Jane in violation of 
New York Penal Law Section 130.55, as alleged in the Indictment). The Court also accepted the 
Defendant's requested edits that further clarified that the predicate state offense was New York 
law. See, e.g., Request to Charge at 19, 23, 26, 30, 31, Dkt. No. 410-1; Jury Charge at 20, 24, 
26, 28 (specifying, e.g., that the predicate state offense was "New York law," rather than an 
unspecified "criminal offense"). 
The jury charge also clearly instructed on the role of New York law in the jury's 
assessment of the Mann Act conspiracy counts, Counts One and Three. The charge explained 
that the object of the conspiracies was a violation of the same New York law at issue in Count 
Two. See Jury Charge at 44-45. In particular, the objects of Counts One and Three were the 
enticement of minors to travel and the transport of minors, respectively, with the intent to engage 
in sexual activity illegal under New York law. See id. As for the overt acts, the Court, at the 
parties' request, did not provide the July with a copy of the Indictment. Trial Tr. at 2781-82. 
Rather, the charge specified the relevant overt acts. Jury Charge at 49-50. For Counts One and 
Three, this included the instruction: "the Indictment alleges as follows: ... (2) In or about 1996, 
25 
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when Jane was under the age of 17, Jane was enticed to travel from Florida to New York for 
purposes of sexually abusing her at the New York Residence, in violation of New York Penal 
Law, Section 130.55." Id. at 49. 
The Court also gave two limiting instructions to ensure that the jury's consideration of 
certain relevant evidence was properly focused on the core of criminality. These instructions 
pertained to testimony about sexual activity that was not criminal conduct under New York Penal 
Law Section 130.55. The first limiting instruction pertained to
 This instruction informed 
the jury that it could not convict the Defendant on Counts One and Three solely on the basis of 
estimony becauseMould not be considered a victim of the crimes charged. Trial Tr. 
at 1167-68. This was so because she was older than seventeen at the time of the events, and, as 
explained, the object of the charged conspiracies was transport with intent to engage in sexual 
conduct in violation of New York Penal Law Section 130.55, which criminalizes sexual contact 
with individuals under the age of seventeen. See Nov. I, 2021 Tr. at 67-68. The second limiting 
instruction pertained to Annie, who testified about sexual contact in New Mexico only. The 
instruction explained that her testimony about sexual conduct did not describe "illegal sexual 
activity" as alleged in the Indictment, which was a legal term that the Court would explain at the 
end of the case. Trial Tr. at 2048-49. This was so because, as explained, the object of the 
charged conspiracies was a violation of New York law, not New Mexico law. Both limiting 
instructions explained that the jury could determine that the testimony was relevant evidence. 
That was so because such evidence tended to establish the Defendant's intent that transport of a 
minor victim to New York was for the purpose of sexual activity illegal under New York law. 
The Defendant concedes this point as to testimony about sexual activity in states other than New 
26 
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York. Maxwell Reply at 5. The jury charge and limiting instructions at trial thus instructed the 
jury on the core of criminality. 
Second, the Government marshaled evidence that captured the core of criminality as pled 
in the Indictment and instructed by the Court 
testified that after she met the Defendant and 
Epstein at a summer camp, Epstein began engaging in sexual activity with her at his residence in 
Florida. Trial Tr. at 293-95,305-06. Men 
began traveling with Epstein and the Defendant 
when she was fourteen years old. Id. at 315. As the Defendant notes, the majority o 
testimony discussing travel pertained to trips to New York and sexual activity that took place in 
New York. Maxwell Br. at 13. In her testimoneecalled specific details of Epstein's New 
York residence and the sexual acts that occurred there. See Trial Tr. at 316-20. She explained 
that while she "mainly" traveled to New York on Epstein's private plane, she also took 
commercial flights. Id. at 316. She further testified that the Defendant assisted in making these 
travel arrangements. Id. at 316-17. Corroborating evidence included flight records to New York 
and photos of Epstein's New York residence matching Mdescription. See id. at 320. 
In addition to the New York trips 
estified about a trip she took to New Mexico with 
the Defendant and Epstein when she was fifteen or sixteen years old. Id. at 321. In her 
testimony regarding this trip, which spanned only three transcript page 
explained that 
during the trip Epstein engaged in sexual activity with her similar to what took place in New 
York. See id. at 321-23. As explained above, testimony about sexual activity in other states, 
including Florida and New Mexico, was relevant to the Defendant's intent. The testimony was 
part and parcel of the Defendant and Epstein's scheme to groom underage girls at Epstein's 
various properties, including in New Mexico and Palm Beach, to then be transported to New 
York for sexual activity illegal under New York law. Accordingly, this particular testimony was 
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part of the same "set of discrete facts consistent with the charge in the indictment," not a 
previously unidentified and independent theory of guilt. D'Amelio, 683 F.3d at 419; see also 
United States v. Jones, 847 F. App'x 28, 30 (2d Cir. 2021) (summary order) (no constructive 
amendment in sex trafficking case where indictment did not allege "advertising" but the 
evidence "fell squarely within the charged scheme" (cleaned up)). 
Third, the Government's summation also reflected the core of criminality of transporting 
d other underage girls to New York with the intention that sexual activity would occur in 
New York. In its summation regarding Count Four, the Government focused on travel to New 
York. See Trial Tr. at 2891-92.5 The Government's explanation of Counts One and Three 
followed this pattern as well, with the summation again making clear that the Defendant and 
Epstein had intended for the victims to be "sexually abused in New York." Id. at 2895. Thus, 
the Court's instructions to the jury, the evidence presented at trial, and the Government's 
argument in summation did not describe "behavior entirely separate from that identified in the 
indictment," Bastian, 770 F.3d at 223 (quoting Danielson, 199 F.3d at 670), but instead 
consistently captured the core of criminality with which the Defendant was charged. 
2. The jury note and the Court's response did not result in a 
constructive amendment. 
The Defendant contends that regardless of whether the Court's prior instructions or 
Government's arguments at trial were proper, a jury note revealed that the jury convicted the 
Defendant for intending that S 
engage in sexual activity in New Mexico, not New York. See 
Maxwell Reply at 2. She argues that the Court then erred by refusing a supplemental instruction. 
The ambiguous note and the Court's rejection of the Defendant's proposed responses to it did not 
5 In its summation regarding Count Two, which introduced the New York predi 
ffense to the jury, the 
Government also repeatedly emphasized that the Defendant and Epstein entice
,
to travel to New York to be 
abused. See Trial Tr. 2889-90. 
al 
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alter the fact that the evidence and instructions at trial captured the core of criminality of the 
Indictment. 
The jury note at issue read: 
Under Count Four (4), if the defendant aided in the transportation of 
return flight, 
but not the flight to New Mexico where/if the intent was for Mto engage in sexual 
activity, can she be found guilty under the second element? 
Court Ex. 15, Dkt. No. 593 at 23. After hearing from the parties, the Court determined that it 
was unclear to what testimony the note referred and what legal question the note asked. 
Accordingly, the Court concluded that the appropriate course was to refer the jury back to the 
instruction for the second element of Count Four, with a reminder to consider carefully the full 
instruction. Trial Tr. at 3141. The Court also rejected the Defendant's supplemental instruction 
proposed the following day because it was partially unresponsive, partially redundant, and 
partially an erroneous statement of law. Id. at 3148-50. 
The Defendant's contention that this series of events worked a constructive amendment 
to the Indictment is without merit. First, the Defendant speculates extensively about which 
flights and evidence the jury was referencing in the note, hazarding that the jury was focused on 
a 1997 flight from New York to New Mexico and an unidentified return flight to Florida. See 
Maxwell Br. at 14-15. Bu 
testified about taking numerous flights both on Epstein's private 
plane and on commercial carriers. The note did not specify which of these many flights or other 
testimony the jury was considering. The Court could not provide supplemental instruction based 
on such a speculative foundation. 
Second, the note was not "crystal clear" as the Defendant contends. Maxwell Reply at 6. 
Rather, as sometimes occurs, the note was decidedly ambiguous as to the precise legal question 
being asked. For example, the jury could have been asking about aiding-and-abetting liability as 
29 
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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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responding to a note from a deliberating jury is only required to answer the particular inquiries 
posed."); see also 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 
[s]he has considerable discretion in determining how to respond to communications indicating 
that the jury is experiencing confusion."). The jury was free to send a clarifying or further note 
following the Court's instruction. 
By contrast, the Defendant failed to propose a legally accurate response for the jury. Her 
proposed responses to the note on the day it was received and the following morning were 
erroneous. At the time the Court received the note and discussed it with counsel, the Defendant 
first proposed that the answer to the note's question was simply "no" because, she argued, a 
return flight is for the purpose of returning home, "not for the purpose of illegal sexual activity." 
Trial Tr. at 3128-30. But the Court could not respond "no" to an ambiguous question. Id. at 
3138. Moreover, the Defendant eventually conceded the principle that assistance with a return 
flight home could aid and abet a trip that was for the purpose of illegal sexual activity. See id. at 
3136. Alternatively, the Defendant requested that if the Court were to refer the jury to the 
charge, that it direct the jury to lines 14 to 17 of Instruction No. 21, which instructed on 
"significant or motivating purpose." Id. at 3131. But it was unclear that those particular lines 
addressed the jury's question, and the Court's decision to refer the jury to the entirety of 
Instruction No. 21 encompassed those lines. 
The following day, although the jury had not sought further clarification, the Defendant 
took another pass at proposing an additional response to the note. She requested a three-
paragraph supplemental instruction that referenced elements of Counts Two and Four. See Dkt. 
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No. 566.7 The Second Circuit has cautioned that supplemental instructions "enjoy special 
prominence in the minds of jurors," Arroyo v. Jones, 685 F.2d 35, 39 (2d Cir. 1982), and that 
complete accuracy is of "crucial importance," United States v. Kopstein, 759 F.3d 168, 172 (2d 
Cir. 2014) (quoting United States v. Lefkowitz, 284 F.2d 310, 314 (2d Cir. 1960)). Portions of 
the requested instruction were unresponsive, portions were redundant, and portions were legally 
inaccurate. The first paragraph, which pertained to Count Two, was unresponsive to the jury's 
note that asked only about Count Four. The second paragraph was unnecessary because it was 
redundant. The Defendant now raises for the first time, in a footnote, that the Court should have 
situ sponte provided the jury this paragraph alone. Maxwell Reply at 9 n.4. But the charge as a 
whole already made clear that a violation of New York Penal Law Section 130.55 was the key 
inquiry. See Jury Charge at 20, 23, 26, (specifying "a criminal offense under New York 
law"), 24 (Count Two instructions on New York Penal Law Section 130.55), 28 (Count Four 
referring back to these instructions), 49-50 (specifying the overt act of Jane traveling "from 
Florida to New York for purposes of sexually abusing her at the New York Residence, in 
violation of New York Penal Law, Section 130.55"). Finally, the proposal also inaccurately 
stated that "sexual activity in any state other than New York cannot form the basis" of 
7 The requested instruction read: 
As to the third element of Count Two, you must determine wt 
r the Government has proven beyond a 
reasonable doubt that the Defendant acted with the intent that 
would engage in sexual activity within 
the state of New York in violation of New York Penal Law 130.55. 
As to the second element of Count Four, you must determine whether the Government has proven beyond a 
reasonable doubt that the Defendant transported 
pith the intent that 
would engage in sexual 
activity within the state of New York in violation of New York Penal Law 
.55. 
An intent that 
engage in sexual activity in any state other than New York cannot form the basis of 
these two elements of Counts Two and Four. 
Dkt. No. 566 at 7. 
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convictions on Counts Two and Four, erroneously implying that such evidence was irrelevant. 
Dkt. No. 566 at 7 (emphasis added). Thus, in light of the note's ambiguity and the Defendant's 
failure to propose an accurate response in either the first attempt or the second attempt a day 
later, the Court's decision to refer the jury back to the legally sound charge was not error and 
plainly did not result in a constructive amendment to the Indictment. 
The Defendant does not expressly contend that the instructions were legally erroneous—
nor could she. As explained above, the charge made clear that the only predicate state law at 
issue was New York's. Instead, the Defendant objects that the charge was "stripped of any 
mention of `travel to New York.'" Maxwell Br. at 15. But the Court rejected the Defendant's 
specific requests that were unnecessary, inaccurate, or would have confused the jury. For 
example, the Court rejected the Defendant's request to limit the charge to requiring travel from 
"Florida to New York," as alleged in the "to wit" clause of the Indictment, because travel from 
New Mexico to New York, for example, would also have been sufficient. See Trial Tr. at 2758-
61 (Charging Conference); see also United States v. Little, 828 F. App'x 34,37-38 (2d Cir. 
2020) (summary order) (noting that generally, "'to wit' clauses do not modify essential elements 
of the offense"). The Court also denied the Defendant's request to instruct the jury on law 
governing the age of consent in New Mexico, the United Kingdom, and Florida. First, the 
Defendant's proposal oversimplified New Mexico's age of consent law. The Court could not 
accurately instruct the jury on New Mexico's law without potentially introducing a theory of 
guilt that the Government had not charged, or resolving a factual question on the use of force for 
the jury. Trial Tr. at 1712-13; Nov. 23,2021, Final Pretrial Conference Tr. at 31-38. And 
second, instructing on state law that the Defendant was not alleged to have violated ran a serious 
risk of confusing the jury as to the role of that law. Indeed, it was the Defendant's proposal that 
33 
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ran the risk of moving the jury away from consideration of the core of criminality alleged in the 
Indictments
The appropriate approach was to instruct the jury on the one and only predicate state 
offense for the Mann Act counts charged in the Indictment: New York Penal Law Section 
130.55. For that reason, the Court also rejected the Defendant's request to repeat in the charge 
the limiting instructions as tc 
testimony and the Defendant's request, raised 
for the first time at the charging conference and well after completion of her testimony, to 
include an unspecified limiting instruction as to 
New Mexico testimony. Trial Tr. at 
2773-77. During the witnesses' testimony, the jury had yet to be instructed on the meaning of 
"illegal sexual activity as alleged in the indictment." But it was unnecessary to repeat the 
limiting instructions alongside the charge's definition of "illegal sexual activity." Id. at 2774-75. 
The jury now had that phrase clearly defined as a violation of New York Penal Law Section 
130.55. In sum, the jury instructions charged that the jury could convict the Defendant only on 
the predicate state offense of New York law. The jury is presumed to have followed these 
instructions. See United States v. Joyner, 313 F.3d 40, 47 (2d Cir. 2002). 
At bottom, the Defendant asks the Court to speculate based on an ambiguous note that 
the jury disregardedMsubstantial testimony about travel to New York and sexual conduct in 
New York and further assumed a violation of New York law could be based on conduct only in 
New Mexico. It is hardly plausible, let alone substantially likely, that this was the jury's 
S The Defendant's proposed instruction on other jurisdictions' ages of consent first stated that "[t]o prove Counts 
One and Three, the government must establish beyond a reasonable doubt that Ms. Maxwell acted with the intent 
that the minors would engage in sexual activity for which any person can be charged with a criminal offense." 
Request to Charge at 51. It then instructed on the ages of consent in several jurisdictions and stated that "[i]f the 
individual was at or above the age of consent in the relevant jurisdiction when the sexual activity occurred, then for 
the purposes of Counts One and Three, the sexual activity was not illegal." Id. at 52. This proposed instruction 
would likely have created the confusion the Defendant raises now. 
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understanding. See D'Amelio, 683 F.3d at 416. Accordingly, the Court concludes that no 
constructive amendment resulted as to Count Four. 
3. No constructive amendment occurred as to Count Three. 
The Defendant's argument as to constructive amendment of Count Three, conspiracy to 
transport, wholly depends on her theory as to Count Four.9 She argues that since it is "clear" that 
the jury convicted the Defendant of Count Four based only on MNew Mexico testimony, it 
must have convicted on the same basis for the conspiracy counts. Maxwell Br. at 16. Because 
no constructive amendment resulted as to Count Four, this argument is unavailing. But even if 
the Court were persuaded that the July note revealed that the jury convicted the Defendant of 
Count Four on that basis, the note pertained only to Count Four and provided no basis to 
speculate as to the jury's conviction of Count Three. Moreover, it is not substantially likely that 
the jury convicted the Defendant of Count Three on .1= New Mexico testimony alone. As 
described in detail above in the Court's denial of the Defendant's Rule 29 motion, the 
Government presented evidence that Annie and Carolyn were also victims of the conspiracy. 
Accordingly, even if a constructive amendment resulted as to Count Four, vacatur would still not 
be warranted as to Count Three. 
C. No prejudicial variance occurred. 
In the alternative, the Defendant argues that she was substantially prejudiced because the 
Indictment did not contain any allegations that Was 
sexually abused in New Mexico. She 
therefore claims she was unfairly surprised by its introduction. For purposes of this motion, the 
Court will assume that.. 
testimony regarding New Mexico constituted a variance from the 
9 As noted above, because the Court will not enter judgment on Count One on the parties' consent, the Court 
addresses only Count Three here. In any event, the Defendant's arguments as to why Counts One and Three were 
constructively amended are the same. See Maxwell Br. at 16. 
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Indictment. The Defendant has nevertheless failed to show that she was substantially prejudiced 
by this evidence. See Sabnonese, 352 F.3d at 621. 
When a defendant has notice of the government's theory of the case before trial, she is 
not prejudiced by a variance. See Kaplan, 490 F.3d at 129-30. Pretrial disclosures may put a 
defendant on notice of evidence not specifically included in the indictment. See Klzalupsky, 5 
F.4th at 294. And a defendant's failure to object to allegedly surprising evidence or to request a 
continuance when evidence is introduced suggests that a defendant was not unfairly surprised or 
prejudiced. See Kaplan, 490 F.3d at 130. 
Here, the Defendant had sufficient notice of the Government's theory of the case, and of 
Jane's testimony regarding New Mexico specifically, to avoid substantial prejudice. The 
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. 
■
 
had 
long recalled traveling to New Mexico, see Maxwell Br. at 16-17, although she did not report 
that Epstein had engaged in sexual activity with her at this property until closer to trial. But the 
Defendant had adequate notice of this particular testimony such that there was no danger of 
substantial prejudice. The Defendant received the Government's notes oainterview where 
she recalled abuse in New Mexico on November 6,2021, more than three weeks before trial. At 
that point, the parties were still litigating the very instructions for 
that the 
Defendant claims she would have sought for Mad she received adequate notice. See, e.g., 
Nov. 23,2021 Tr. at 28-38; see also Lebedev, 932 F.3d at 54 (concluding in part that the 
defendant was not "unfairly and substantially" prejudiced because "[t]he government disclosed 
the evidence and exhibits . . . four weeks prior to trial"). Moreover, that the Defendant did not 
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request a continuance or object taestimony 
until the charging conference suggests that 
she was not unfairly surprised. See Kaplan, 490 F.3d at 130. Accordingly, there is no indication 
in the record that the evidence adduced at trial unfairly surprised or prejudiced the Defendant. 
Finally, the Defendant argues that 
testimony resulted in the "ultimate prejudice" 
because it led to the jury improperly convicting her on three of the four Mann Act counts. 
Maxwell Br. at 18. For the same reasons noted above, the Defendant was not prejudiced by the 
Court's response to the jury note because the ambiguous note did not reveal that the jury 
improperly convicted the Defendant of the Mann Act counts. Moreover, as explained above, the 
Defendant's request for a limiting instruction in the jury charge and a supplemental instruction 
following the ambiguous jury note was unnecessary. WhileM and Annie's limiting 
instructions were appropriate at the time of their testimony when the jury had not yet been 
instructed on the meaning of "illegal sexual activity," it was unnecessary and potentially 
confusing to repeat them again in the context of the charge. At that point, the charge made clear 
to the jury that only a violation of New York law could form the predicate for the Mann Act 
counts—not New Mexico law. In sum, the Defendant has not shown that she suffered 
"substantial prejudice" meriting the vacatur of the Mann Act counts. 
IV. 
The Court denies the Defendant's pre-indictment delay claim. 
Last, the Defendant argues, as she did in two pretrial motions, that all of her convictions 
should be vacated because of the Government's allegedly excessive and prejudicial delay in 
prosecuting the Defendant. As this Court previously explained, because "the statute of 
limitations is `the primary guarantee against bringing overly stale criminal charges,"' the 
Defendant must satisfy a stringent two-part test. Maxwell, 534 F. Supp. 3d at 316 (quoting 
United States v. Cornielle, 171 F.3d 748, 751 (2d Cir. 1999)). The Defendant "must show both 
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that the Government intentionally delayed bringing charges for an improper purpose and that the 
delay seriously damaged [her] ability [to] defend against the charges." Id. (citing Cornielle, 171 
F.3d at 751). 
In its prior rulings, this Court concluded that the Defendant satisfied neither requirement: 
there was "no evidence that the Government's delay in bringing these charges was designed to 
thwart Maxwell's ability to prepare a defense," and she "failed to establish actual prejudice from 
the Government's delay." Id. at 316-17. But, the Court explained, the Defendant could renew 
her motion if the factual record at trial showed prejudice that the pretrial record did not. The 
Defendant now renews her motion, identifying a bevy of documentary records and witnesses 
that, she says, were unavailable because of the Government's delay. The Court, for the reasons 
stated below, disagrees and denies the motion. 
As an initial matter, even if the Court accepts all of the Defendant's contentions in her 
briefing, her pre-indictment delay claim must fail because the Defendant has made no claim that 
the Government intentionally delayed the Indictment to gain a tactical advantage over the 
Defendant. United States v. Alameh, 341 F.3d 167,176 (2d Cir. 2003). The Court has twice 
concluded that "nothing in the record indicates that the Government's delay in bringing these 
charges was designed to thwart Maxwell's ability to prepare a defense." Maxwell, 2021 WL 
3591801, at *5. It is the Defendant's burden to prove the Government's improper motive, but in 
her briefing she does not attempt to present evidence of intentional delay for tactical advantage. 
The Court therefore does not alter its prior conclusion. If anything, as the Government notes, 
testimony at trial supplied legitimate explanations for the Government's failure to indict the 
Defendant at an earlier time. For example, several witnesses testified that their cooperation with 
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the Government's investigation was relatively recent, e.g., Trial Tr. at 354-
1680-84 (Carolyn), suggesting that an earlier prosecution was not feasible. 
Even on the first step of the inquiry, the Defendant has failed to demonstrate that she 
suffered actual and substantial prejudice from delay. United States v. Pierre-Louis, No. 16 CR 
541 (CM), 2018 WL 4043140, at *5 (S.D.N.Y. Aug. 9, 2018). Substantial prejudice is a 
stringent standard. The Defendant's "proof of prejudice must be definite and not speculative." 
United States v. Birney, 686 F.2d 102, 105-06 (2d Cir. 1982). Actual prejudice "is commonly 
demonstrated by the loss of documentary evidence or the unavailability of a key witness." 
Cornielle, 171 F.3d at 752. But "claims of mere loss of memory resulting from the passage of 
time have been held to be insufficient." Pierre-Louis, 2018 WL 4043140, at *4. And for any 
evidence lost because of delay, the Defendant "must `demonstrate how (the loss of evidence) is 
prejudicial' to her." Birney, 686 F.2d at 106 (quoting United States v. Mays, 549 F.2d 670, 677 
(9th Cir. 1977)). 
The Defendant identifies two major sets of lost evidence that, she says, demonstrate 
actual prejudice to her defense at trial. First, she points to documentary evidence absent at trial: 
(1) flight records, including passenger manifests and records from Epstein's travel agent, that 
may have been more detailed than the flight logs entered at trial; (2) financial documents, 
including bank records and credit card records, which would have revealed more about the 
Defendant's receipt of funds from Epstein and could have been used to verify or disprove certain 
dates; (3) a complete set of the Defendant's phone records; and (4) Epstein's property records for 
both his New York and New Mexico residences. Second, the Defendant identifies four deceased 
witnesses: Albert Pinto and Roger Salhi, architects that built and renovated Epstein's residences 
in Florida, New York, and New Mexico; 
property manager for Epstein in the 
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2000s that could have testified the household manual was created by "the Countess," not the 
Defendant; and Lynn Fontanilla, a live-in housekeeper for Epstein in New York that could have 
testified about the Defendant's and Epstein's habits. 
None of these identified pieces of alleged evidence satisfies the Defendant's burden of 
proving actual and substantial prejudice. The Court addresses first the documentary evidence. 
First, the Defendant does not attest, or even suggest, what the absent documents are likely to 
show. Though the Defendant would herself be best positioned to explain her own financial 
transactions (or the lack thereof), her brief does not suggest what the absent financial records 
would have shown. Similarly, the Defendant does not identify what would have been shown in 
the absent phone records. The same is true of the flight records that the Defendant argues were 
missing. At trial, the Government elicited testimony that flight manifests from before September 
11, 2001, were far less detailed than modern manifests. E.g., Trial Tr. at 2518-22. The 
Defendant can therefore only speculate that more accurate records ever existed. The location 
and appearance of Epstein's residences were also the source of significant testimony at trial. The 
Defendant does not explain what additional information would have been contained in official 
property records. 
Second, even if more detail of the contents of these documents were presented, the 
Defendant fails to show why the evidence, if admitted at trial, would have benefitted her case. 
The Defendant's motion presumes that each piece of missing evidence would have favored her: 
an absence of payments by Epstein to the Defendant, an absence of phone calls from the 
Defendant to victims, an absence of the victims on detailed flight manifests. But this 
presumption is purely speculative. Each piece of evidence may very well have further 
substantiated the Government's case. Because the Defendant carries the burden of proof, she is 
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