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jury to the second element of Count Four.36 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
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
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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