The Moscow Murders and More

The Docket: The Government Responds To Maxwell's Attempt At Appeal (Parts 7-10) (1/1/25)

In response to Ghislaine Maxwell's appeal, the United States government submitted a brief urging the Second Circuit Court of Appeals to uphold her conviction and sentence. The government contended that Maxwell's arguments lacked merit, emphasizing that her prosecution was not barred by Jeffrey Epstein's 2007 non-prosecution agreement (NPA) with the Southern District of Florida. They argued that the NPA did not extend immunity to Maxwell for crimes prosecuted in the Southern District of New York, asserting that her conviction was based on substantial evidence demonstrating her pivotal role in facilitating Epstein's sexual abuse of minors.

Additionally, the government's brief addressed Maxwell's claims of juror misconduct and alleged procedural errors during the trial. They maintained that the district court had appropriately handled these issues, ensuring Maxwell's right to a fair trial was preserved. The government further argued that the sentence imposed was reasonable and proportionate to the severity of her offenses. Ultimately, the Second Circuit Court of Appeals affirmed Maxwell's conviction and sentence, rejecting her appeal and supporting the government's position.

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Duration:: 52m
Broadcast on:: 01 Jan 2025
Audio Format:: other

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The district court did not abuse its discretion in concluding that Jure 50 could be fair and impartial notwithstanding his inadvertent mistakes on his juror questionnaire. Maxwell contends that she was denied a right to a fair and impartial jury because a juror fell to disclose during Vour Dyer that he was sexually abused as a child and therefore incorrectly answered this question on his written questionnaire. After an extensive hearing, Judge Nathan concluded that the juror's error was inadvertent and in any event, she would not obstruct the juror for cause had he answered those questions accurately because he was not biased in any way against Maxwell and was qualified to serve as a juror. Judge Nathan therefore found that Maxwell failed to meet the high bar for a new trial and denied her motion. This court should affirm that careful determination. A relevant facts. One, the jury selection process. In November 2021, in advance of trial, 694 jurors completed a juror questionnaire approved by the district court. The juror questionnaire was 29 pages and consisted of 51 questions, many of which contained sub parts. After the parties reviewed the questionnaires, 231 of the 694 proceeded to Vour Dyer. The district court then examined prospective jurors asking them about questions in the jury questionnaire that prospective jurors had answered affirmatively. The district court asked the prospective jurors whether the information or experiences resulting in the affirmative answer would interfere with their ability to be fair and impartial. At the conclusion of the Vour Dyer, the district court qualified 58 jurors. Of the 58 individuals who were qualified to serve as jurors, eight individuals responded to question 48 of the juror questionnaire that they themselves had been a victim of sexual harassment, sexual abuse or a sexual assault and that this experience would not affect their ability to serve fairly and impartially as a juror in the case. Each confirmed that he or she could be fair and impartial and defense counsel did not move to strike any of these jurors for cause based on their answers to question 48. For instance, one juror said that she was sexually molested by an uncle when she was 12 or 13, but that would not affect her ability to be fair and impartial in the case. Another juror indicated that she had recently reported that a friend was being coerced and sexually abused by a professor, but confirmed that the experience would not in any way interfere with her ability to be fair and impartial. Neither the government nor the defense counsel challenged those jurors for cause. The parties then exercised their peremptory strikes and the jury was seated. Two, juror number 50. Juror 50 completed the questionnaire and was questioned by Judge Nathan during for a dire. In his questionnaire, juror 50 repeatedly made clear that he could be fair and impartial. In response to question number 13, he indicated that he could decide the case based solely on the evidence or lack of evidence presented in court and not on the basis of conjecture, suspicion, bias, sympathy or prejudice. He also accepted the principle that the law provides that a defendant in a criminal case is presumed innocent and the government is required to prove guilt beyond the reasonable doubt. Juror 50 indicated that there was nothing about the nature of the case and the accusations is summarized in the questionnaire that might make it difficult for him to be fair and impartial. He repeated these assurances at oral for dire. Juror 50 checked the no box in response to question 48, which asked whether he or a friend or family member had ever been the victim of sexual harassment, sexual abuse or a sexual assault. He also checked the no box in response to the question of whether he or any of his relatives or close friends had ever been the victim of a crime. Juror 50 was seated. Following the verdict, he discussed his experience as a juror during interviews with multiple journalists, during these interviews, juror 50, stated that he was a survivor of childhood sexual abuse, which he did not disclose until high school and that his experience of sexual abuse did not affect his ability to view Maxwell as innocent until proven guilty. He also stated that he did not recall the details of the juror questionnaire, which he flew through, but he believed he answered the questions honestly. Three, the hearing. Following these reports, the government filed a letter highlighting juror 50's public statements and requesting that the district court conduct a hearing. After briefing Judge Nathan ordered a limited hearing focused on juror 50's potential failure to respond truthfully to the questions during the jury selection process, that asked for the material information. Judge Nathan denied Maxwell's request to directly question juror 50, which was committed to her sound discretion, but permitted the parties to propose questions in advance of the hearing. The parties did so and Maxwell submitted a letter renewing her request to question juror 50 directly and proposing 21 pages of questions on topics, including the nature and length of the juror 50's sexual abuse, the nature of the sexual abuse experienced by any of juror 50's family or friends, his own employment responsibilities, the impact of his sexual abuse on his life and personal relationships, whether juror 50 ever sought mental health counseling or spoke with the therapist, how he came to give media interviews and whether he was attempting to be viewed as a champion of victims of sexual abuse. The district court held the hearing on March 8th, 2022, at which juror 50 testified under a grant of immunity. Juror 50 testified that his answers to three questions were not accurate. Questions 25, whether he or a close associate had been a victim of a crime, 48, whether he or a friend or a family member had ever been a victim of sexual harassment or abuse and 49, whether he or a family member had been accused of sexual harassment or abuse. He explained that when he was nine or 10 years old, he was sexually abused by a stepbrother who he no longer considered part of the family and the stepbrother's friend. He explained that he answered, question 49, no, because he no longer considered the stepbrother part of his family, although he should have answered yes. He also acknowledged that he should have answered yes to question 25 because he was a crime victim, although he read the question at the time to inquire about robbery, mugging or similar crimes. Juror 50 also testified that his failure to disclose his experience was an inadvertent mistake. He explained that he completely skimmed way too fast when completing the questionnaire. He did so he explained in light of the context. He started the questionnaire after several hours waiting in security lines and after technical issues with the instructions. He was preoccupied with his own recent romantic breakup and with disruptions in the jury room. And he rushed to complete the questionnaire because he thought it virtually impossible that he would be selected as a juror given the number of people completing the questionnaire. He did not generally think about his personal history of sexual abuse and it did not occur to him while carelessly speeding through the questionnaire. At oral vordire, juror 50 had not been asked the questions judge Nathan posed to prospective jurors who answered affirmatively to questions 25, 48 or 49 and therefore was not asked questions about sexual abuse. At the hearing, judge Nathan examined juror 50 in detail and juror 50 emphasized that his experiences did not affect his ability to be fair and impartial or his ability to fairly assess the credibility of victim witnesses or his ability to impartially judge Maxwell's guilt. Four, the district court's decision. Judge Nathan denied Maxwell's motion for a new trial in a detailed written opinion. First, judge Nathan concluded that juror 50's answers were not deliberately inaccurate, crediting juror 50's testimony in light of his demeanor and consistent logical answers to her questions. Second, judge Nathan concluded that she would not have granted a four cause challenge to juror 50 had he provided accurate information. At the hearing, judge Nathan asked juror 50 the questions, she asked other jurors who indicated a personal experience with sexual assault or abuse. She concluded that juror 50's credible responses to those questions under oath at the hearing established that he would not have been struck for cause if he had provided accurate responses to the questionnaire. As judge Nathan explained, other jurors who answered the question similarly were not even challenged for cause and she would not have granted a challenge had one been made. She also rejected the notion that these similarities between juror 50's life experiences and the issues at trial required her to excuse juror 50 for cause. B, applicable law. Federal rule of criminal procedure 33 permits a district court to vacate any judgment and grant a new trial if the interest of justice so requires. As this court has explained, the defendant bears the burden of proving that he is entitled to a new trial under rule 33 and before ordering a new trial pursuant to rule 33, a district court must find that there is a real concern that an innocent person may have been convicted. United States, v. McCordy, 562, F.3D, 458, 475, second circuit, 2009. Post verdict inquiries into juror conduct are strongly disfavored. Such inquiries seriously disrupt the finality of the process. Tanner, v. United States, 483, US 107, 120 and 121, 1987. Permitting post verdict scrutiny of juror conduct would undermine pillars that undergird the jury trial right including full and frank discussions in the jury room, jurors willingness to return an unpopular verdict and the communities trust in a system that relies on the decision of laypeople. Such inquiries may instead lead to evil consequences subjecting juries to harassment, inhibiting jury room deliberation, burdening courts with meritless applications, increasing temptation for jury tampering and creating uncertainty in jury verdicts. United States v. Ayanello, 866, F.2D, 540, 543, second circuit, 1989. Accordingly, a defendant seeking rule 33 relief based on alleged juror misrepresentations during vore dire must satisfy a stringent two-part test. First, a party must demonstrate that a juror failed to answer honestly a material question on vore dire. McDonough, Power Equipment Incorporated, versus Greenwood, 464 US, 548, 556, 1984. Second, the party must show that a correct response would have provided a valid basis for a challenge for cause. To satisfy this prong, a court must determine whether if the juror had answered truthfully, it would have granted a hypothetical strike for cause. United States v. Stewart, 433, F.3D, 273, 304, second circuit, 2006. A party may challenge a juror for cause based only on narrowly specified, provable, and legally cognizable basis. United States v. Torres, 128, F.3D, 38, 43, second circuit, 1997. In the context of vore dire challenges for cause generally fall into one of three limited categories. Actual bias, implied bias, and inferable bias. Actual bias is bias, in fact, the existence of a state of mind that leads to an inference that the person will not act with entire impartiality. Implied bias, also called presumed bias, is a bias conclusively presumed as a matter of law. This court has emphasized that this category is narrow and reserved for exceptional situations. Generally meaning circumstances in which jurors are related to the parties or were victims of the alleged crime itself, ID at 45 and 46. Finally, bias may be inferred when a juror discloses the fact that he speaks a risk partiality sufficiently significant to warrant granting the trial judge discretion to excuse the juror for cause. But not so great as to make mandatory a presumption of bias. Where there are concrete allegations of juror misconduct, a court may conduct a post verdict hearing, c. United States v. Baker, 899, F.3D, 123, 130, 2nd Circuit, 2018. The inquiry should be limited to only what is absolutely necessary to determine the facts with precision. Iannello, 866, F.2D, at 544. The proper functioning of the jury system requires that the courts protect jurors from being harassed and beset by defeated party in an effort to secure from them evidence of fact, which might establish misconduct sufficient to set aside a verdict. Moten 582, F.2D, at 664. Accordingly, the district court has the power and the duty to supervise and closely control such inquiries. United States v. Colbis, 821, F.2D, 887, 896, 2nd Circuit, 1987. For example, the district court may choose to personally conduct the questioning of a juror in order to avoid intruding on the jury's deliberations. CEG, Colbis, 821, F.2D, at 896. At such a hearing and with limited exceptions, the juror may not testify about any statement made or incident that occurred during the jury's deliberations. The effect of anything on that juror or another juror's vote or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters. FedR evidence 606, B1. This court reviews the denial of a Rule 33 motion for abuse of discretion. United States v. Archer 977, F.3D, 181, 187, 2nd Circuit, 2020. A district court only abuses its discretion if its decision rests on an error of law, such as application of the wrong legal principle or a clearly erroneous factual finding or its decision cannot be located within the range of permissible decisions. This court has only, on rare occasions, overturned a verdict or a manded for an evidentiary hearing based on the failure of a juror to disclose information during jury selection. United States v. Teman 465f.supp.3D 277 330 SDNY 2020. Part C, the discussion. Judge Nathan conducted a thorough inquiry and determined that juror fifties in advert errors on the jury questionnaire did not undermine Maxwell's right to a fair trial. Maxwell does not meaningfully engage with Judge Nathan's careful opinion, instead suggesting that juror fifties testimony at the hearing was patently absurd. These conclusionary arguments fall short of establishing that Judge Nathan abused her discretion in finding that this case does not present the extraordinary circumstances that justify overturning a jury's verdict based on an error during vordire. Maxwell's claims fell at the first step of McDonough because juror fifties errors were inadvertent. Juror fiftie testified as much at the hearing, providing a detailed narrative of why his errors were a failure of diligence as he rushed through the questionnaire while distracted. Judge Nathan credited this explanation in light of his demeanor, which she closely observed as he testified, including during his answers to questions. He appeared not to expect. She explained that his answers were logical explanations and generally internally consistent. Given in a common straightforward manner, juror fifties explanations were consistent with his sworn statements months earlier at oral vordire and his testimony that his sexual abuse history was not salient or a front of mind consideration. Judge Nathan also noted that juror fifties answers aligned with his incentives. By testifying under a grant of immunity, he could not be prosecuted for his false answers on the questionnaire, but he could be prosecuted for false testimony at the hearing. And had he hidden his sexual abuse and order to get on the jury, he would not have immediately disclosed it to the media after trial. To the contrary, in one video interview with the media, juror fiftie appears genuinely and completely surprised to learn that the question, error, asked about his history of sexual abuse. Maxwell does not directly challenge Judge Nathan's factual findings on this point, much less demonstrate that they are clearly erroneous. Instead relying on United States versus Langford, 990, F.2D, 65, 68, second circuit, 1993. Maxwell argues that McDonough's first step is satisfied by any falsehood, deliberate or otherwise. - Welcome to pro tips for the pros brought to you by Florent Decor Littleton. In this series, we'll explore essential advice for professional contractors to deliver outstanding renovation results. Let's dive in. Before starting any renovation project, take the time to plan meticulously. Assess the customer's needs, budget and timeline to ensure a smooth and successful renovation process. Thank you for joining us for this pro tip on planning thorough renovations. 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This argument misses the mark. This prong requires a showing of deliberate dishonesty by the juror rather than mere honest mistake. This court has explained that in McDonough, the Supreme Court found that the juror's good faith failure to respond though mistaken did not satisfy even the first prong of the test. United States versus Shao, 41F.3D, 811, 815, Second Circuit, 1994. The defendant in Shao also relied on Langford to contend that a new trial was appropriate even if he can't establish the juror's dishonesty. This court rejected that argument concluding that such a contorted reading of Langford is incorrect because it would eliminate the threshold requirement of the McDonough test, juror's dishonesty. And this court concluded that the defendant failed to satisfy the first prong of the test because Defense Council explicitly conceded the good faith of the juror. ID at 816, C United States versus McCoy, 995, F.3D, 32, 51, Second Circuit, 2021. Holding that district court properly recognized the initial question to be explored is whether the juror's non-disclosure was deliberate or inadvertent. Maxwell's claim also fails at the second step of McDonough. The hearing established that juror 50, Harvard, no bias approached his jury service with an open mind and was committed to deciding the case based on the evidence and the district court's legal instructions. As Judge Nathan found juror 50's credible responses, two questions asked of all jurors who indicated prior personal experiences with sexual abuse under oath at the hearing established that he would not have been struck for cause if he had provided accurate responses to the questionnaire. Judge Nathan would have asked juror 50 follow up questions during vore dire to determine if it would have granted a challenge for cause. Judge Nathan asked those questions at the hearing and juror 50's sworn responses made clear that he was a fair and impartial juror who did not harbor any bias and who would not have been excused for cause. Nor was juror 50 the subject of any bias actual implied or inferred. After assessing juror 50's demeanor, Judge Nathan found that he repeatedly and credibly affirmed that his personal history of sexual abuse would not affect his ability to serve as a fair and impartial juror in any way. Be lying any suggestion that he was actually biased against Maxwell. Judge Nathan also correctly rejected Maxwell's central argument that she should imply or infer bias based on the purported similarities between juror 50's personal history and the issues that trial. Judge Nathan explained that she need not to imagine a holy hypothetical universe to reach that conclusion. During vore dire, she asked every follow up question requested by the defendant with regard to a juror's personal experience with sexual assault, abuse, or harassment. Although for a majority of these eight jurors, the defendant did not propose any follow up questions. One prospective juror described her own childhood sexual abuse at an age closer to the victims in this case. Another described a friend's recent, coercive, sexual abuse by a professor. Maxwell did not even bring a four clause challenge as to either. Similarly, four cause challenge against juror 50 would not have prevailed. On appeal, Maxwell contends that had juror 50 answered the questionnaire accurately, it clearly would have provided a basis for a four cause challenge. In particular, Maxwell challenges Judge Nathan's finding that juror 50 was credible and unbiased, relying on a few isolated statements drawn from various parts of the hearings transcript and some from post verdict statements. As described above Judge Nathan explained how juror 50's explanation for his erroneous answers was plausible and consistent, and she found incredible after assessing his demeanor through challenging questioning. She also properly disregarded his post verdict statements about the case, explaining that a juror's view of a case and defendant would necessarily change after reviewing 13 days of evidence that persuaded 12 jurors of the defendant's guilt. Actual and inferred bias are both committed to the province of the trial judge and Judge Nathan's findings that neither existed were not clearly erroneous. C. Torres 128, F.3D at 44. A finding of actual bias is based upon determinations of demeanor and credibility and are within a trial judge's provenance. United States versus Greer 285, F.3D 158, 172 Second Circuit 2002. A finding of inferred bias is by definition within the discretion of the trial court. Maxwell also argues that Judge Nathan should have implied bias highlighting some similarities between juror 50 sexual abuse and the sexual abuse discussed a trial. That falls far short of requiring the district court to imply bias. First, as Judge Nathan explained, the law is not that bias must be implied when a juror has a personal experience similar to the issues that trial. Rather, this court has consistently refused to create a set of unreasonably constricting presumptions that jurors be excused for cause due to certain occupational or other special relationships which might bear directly or indirectly on the circumstances of a given case. This case is not within one of the rare extreme circumstances where a mandatory presumption of bias applies. See Torres 128 F.3D at 45. Greer 285 F.3D at 172. Second, although there are some similarities between juror 50's childhood sexual abuse, there are also differences. Juror 50 was younger than the trial victims at the time of their abuse. He was abused by a family member and he disclosed his abuse much earlier. And critically, juror 50 credibly testified at the hearing that he was able to put aside his experience of sexual abuse and judge the evidence fairly. This is not the sort of extreme situation that calls for a mandatory removal. More generally, it's entirely appropriate for jurors to rely on their common sense and life experiences to a judge guilt. These very human elements constitute one of the strengths of our jury system and we cannot and should not excommunicate them from jury deliberations. Quoting United States. Owen verse McMahon 435 F.2D 813 818 second circuit 1970. On these facts to imply or infer that juror 50 was biased simply because he was himself a victim of sexual abuse and a trial related to sexual abuse and sex trafficking. And despite his own credible testimony under the penalty of perjury, establishing that he could be an even handed and impartial juror would be tantamount to concluding that an individual with a history of sexual abuse can never serve as a fair and impartial juror in such a trial. That is not the law nor should it be. Finally Maxwell suggests a judge Nathan abused her discretion by precluding defense counsel from questioning juror 50 and precluding inquiry into juror 50 statements to journalists. As to the former, the manner in which the hearing proceeds is committed to a district court sound discretion. Moten 582 F.2D at 666, including specifically the extent to which parties may participate in questioning the witnesses, INLO 866 F.2D at 544. Judge Nathan reasonably decided to leave the questioning herself with repeated opportunities both before and during the hearing for counsel to suggest questions. And judge Nathan's decision is reinforced by counsel's requests for vexacious, intrusive, unjustified subpoenas and for questions that swept well beyond juror 50's ability to be impartial juror and instead probe deeply and other aspects of his life. As to juror 50 statements to journalists, it is not entirely clear which statements Maxwell thinks should have been part of the hearing. The hearing of course covered both the substance of his sexual abuse and the fact of his statements to journalists, C.A.275 asking whether juror 50 understood from your interviews that the fact that you were abused would be a known fact in the world. It appears that in Maxwell's view, Judge Nathan should have inquired into whether and how his sexual abuse affected the deliberations in the jury room. BR-71 suggesting that juror 50 operated as an unsworn expert on the subject of traumatic memory. Acknowledging rule 606B's prohibition on inquiry and the juror's deliberations and mental process, Maxwell argues at the exception for extraneous prejudicial information that was improperly brought to the jury's attention. That our evidence 606B2A applies here. But Maxwell expressly waived this argument in the district court explaining that she does not seek to impeach the verdict based on the content of deliberations and need not inquire into the content of deliberations to establish her jury bias claim. And in any event the exception does not apply because the experiences that jurors are understood to bring with them to the jury room are internal matters that do not constitute extraneous information. Warger versus Shavers, 574 US, 40, 51 and 52, 2014, rejecting party's attempt to use the extraneous information exception to establish that a juror should have been excluded under McDonough based on his personal experiences. Point number four, the district court's response to a jury note did not constructively amend the indictment. At all times the government consistently argued that Maxwell enticed and transported Jane to New York with the intent that Jane engage in illegal sexual activity and that Maxwell conspired to do so regarding Jane and the other victims. That is the issue Judge Nathan instructed the jury to resolve and that is the criminal conduct charge in counts three and four of the indictment. Accordingly, no constructive amendment or variance occurred. A, relevant facts. Count three and four charge Maxwell with arranging for Jane's transportation to New York with the intent that Jane would engage in sex acts with Epstein and violation of New York state law and with a conspiracy to transport minors to New York for the same purpose. At trial, the government martialed evidence that Maxwell transported Jane to New York and aided and abetted Epstein in doing so with the intent that Jane engage in sexual activity there. That evidence included detailed testimony from Jane about Epstein's New York residents and specific sexual acts that took place in New York while Jane was a minor. The government's summation similarly discussed these charges as encompassing conduct directed at New York as to count for the government argued the evidence show Jane was transported to New York and Maxwell was involved in making travel arrangements. The government also clarified that the crime happened the moment Maxwell Epstein and Jane crossed state lines and to be very clear when Epstein flew Jane to New York and Maxwell aided and abetted him, that's enough too. For the conspiracy counts, the government referenced its earlier discussion of the elements of the substantive offenses and the government argued that even though Carolyn and Annie were not sexually abused in New York that it was Maxwell and Epstein, they both intended it. CTR 2895-96 arguing that Maxwell groomed Annie for abuse after she had already visited Epstein in New York. The district court's jury instructions also permitted the jury to determine only whether Maxwell had intended that Jane for the substantive counts or the conspiracy victims engage in sexual activity in New York. During trial, Judge Nathan granted defense requests for limiting instructions at the time evidence came in to make clear that the charges focused on the intent that sexual activity take place in New York. At the conclusion of trial, Judge Nathan instructed the jury that count for alleged that Maxwell knowingly transported Jane 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. Judge Nathan also instructed the jury on one and only one predicate state offense of violation of New York penal law, section 130.55. The instructions on count three incorporated this discussion of the elements of count four and the only statute identified with New York penal law, section 130.50 dot 55. During deliberations, the jury sent the following note. Under count four, 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? The note led to a lengthy discussion at the conclusion of which Judge Nathan determined she should refer the jury back to the jury charge on the second element of count four, because the jury note was otherwise too difficult to parse factually and legally. That night, Maxwell filed a letter seeking reconsideration of Judge Nathan's response and raising the possibility of the constructive amendment or prejudicial variance because in her view, the note showed that the jury might convict based on Jane's testimony that she was abused in New Mexico. Maxwell asked Judge Nathan to instruct the jury as to the intent elements of counts two and four and to add that an intent that Jane engage in sexual activity in any other state, then New York cannot form the basis for these two element counts two and four. Judge Nathan rejected Maxwell's request, both because the jury did not inquire about count two and because the final sentence as just wrong in suggesting that the intent that Jane engage in sexual activity outside of New York may have no relevance. As Judge Nathan explained, this is the same discussion we've had a couple of times. Sexual activity with respect to Jane in New Mexico under the age of 17 can be relevant to intent to transport to New York to engage in sexual activity under the age of 17. Judge Nathan repeated that she did not know how to parse the jury's question exactly, but that her instruction directing the jury to the original charge included a reminder that it's a violation of New York penal law that's charged and is the illegal sexual activity that they're considering. Judge Nathan also pointed out that Maxwell did not seek to exclude Jane's testimony about New Mexico or seek a limiting instruction with respect to that testimony. Judge Nathan added, I have no idea if that's what the jury is asking or in many other plausible readings, noted that the defense had proposed an incorrect instruction and concluded no more was required than sending the jury back to the charge. B, applicable law. A constructive amendment occurs when the charge upon which the defendant has tried differs significantly from the charge upon which the grand jury voted. United States versus colubsky 5f.f4 279, 293, second circuit, 2021. Not every alteration of an indictment, however, rises to the level of a constructive amendment. United States versus Dove 884, f.3d, 138, 146, second circuit, 2018. Instead to prevail on a constructive amendment claim, a defendant must demonstrate that the terms of an indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense that there is a substantial likelihood that the defendant may have been convicted on an offense other than that charged in the indictment. United States versus D. Amelio 693, f.3d, 412, 416, second circuit, 2012. This court has consistently permitted significant flexibility and proof provided that the defendant was given notice of the core of criminality to be proven at trial. United States versus Lebedev 932, f.3d, 40, 53, second circuit, 2019. The core of criminality is the essence of a crime. In general terms, but not the particulars of how a defendant affected the crime. D. Amelio 693, f.3d at 418. There is no constructive amendment where the allegations in the indictment and the proof at trial both relate to a single set of discrete facts or form part of a single course of conduct with the same ultimate purpose, ID at 419 through 421. A variance occurs when the charging terms of the indictment are left unaltered but the evidence offered at trial proves facts materially different from those alleged in the indictment. United States versus Banki 685, f.3d 99, 119 second circuit, 2012. Reversal due to a variance is appropriate only when the defendant can establish that substantial prejudice occurred at trial as a result of the variance. A showing that cannot be made where the pleading and the proof substantially correspond where the variance is not of a character that could have misled the defendant at trial and where the variance is not such as to deprive the accused of the right to be protected against another prosecution for the same offense. Kalupsky 5f.4 at 294. So long as the defendant receives notice of the government's theory, the defendant cannot show prejudice. C.E.G. Banki 685, f.3d at 119. This court reviews claims of constructed amendment and prejudicial variance, de novo, dove 884, f.3d at 146 and 149. Part C, the discussion. There is no likelihood, much less a substantial likelihood that the jury convicted Maxwell solely because Jane was transported to New Mexico. At no point during the trial, including its summation, did the government argue that the jury could convict on a theory that Maxwell intended Jane to be abused in New Mexico. Similarly, the district court's charge required the jury to decide whether Maxwell intended to violate New York law. The trial contained no instructions describing for the jury any particular criminal statute in New Mexico or any other basis by which a jury could convict based on conduct in New Mexico. Maxwell's argument to the contrary rests entirely on her reading of the jury's note. According to Maxwell, the note shows that the jury decided that there was no corroborating evidence that Maxwell was present for or helped arrange any of Jane's trips to New York. But that the flight logs did corroborate that Maxwell was present for Jane's trip to New Mexico. This reading, she claims, is buttressed by the fact that the jury acquitted on count two, which, in her telling, shows that the jury determined that the only corroborating evidence linking Maxwell to the New Mexico trip was a flight log showing that she was present on the trip but said nothing about whether she persuaded, induced, enticed or coerced Jane to take the trip. Judge Nathan correctly rejected this argument. Judge Nathan found that the original jury instructions and the government summation captured the core of criminality charged in the indictment, focusing specifically on conduct directed at a sexual activity in New York. Even if the note revealed that the jury were confused and wondered whether it could convict based on conduct in New Mexico, Judge Nathan's response, he's that confusion. As Judge Nathan explained, she sent the jury back to the instruction, which accurately instructed that count four had to be predicated on finding a violation of New York law. That was sufficient. See United States versus Romney, 506F.3D, 108, 126, Second Circuit 2007. Court enjoys considerable discretion in framing a response to a jury note and is only required to answer the particular inquiries posed. As Judge Nathan explained, Maxwell failed to propose a better response requesting instead a series of instructions that were unresponsive, redundant and legally inaccurate. See Romney, 506F.3D at 126. Judge Nathan's response to the jury note was sound and did not constructively amend the indictment. Maxwell's contrary view rests on extensive speculation about which flights and evidence the jury was referencing in the note. The trial included among other evidence testimony by Jane about taking numerous flights both on Epstein's private planes and on commercial carriers. Maxwell ignores that evidence focusing on a specific trip referenced in the flight logs. Even if Maxwell correctly identified the flight at issue, it still betrayed no jury confusion. The origin of that trip was New York and the jury's focus was on the return flight, which it could have inferred was a flight to New York where Maxwell intended Jane to engage in sexual activity. Her view also rests on adopting one specific reading of a note that as Judge Nathan explained was decidedly ambiguous as to the precise legal questioning being asked. See Romney, 506F.3D at 126. District Court enjoys considerable discretion in construing the scope of a jury inquiry. Maxwell herself initially understood the note to be about aiding and abetting liability and whether sexual activity was a sufficiently significant or a motivating purpose for the travel. See United States verse Kim, 471F, appendix 82, 84, second circuit, 2012. Affirming jury instructions that prostitution must be a significant or motivating purpose of the interstate transportation. Maxwell only came to the theory. She now advances after a lengthy discussion spanning 10 pages of the transcript. And that reading is far from clear. The jury's question does not ask whether certain facts are sufficient for guilt. It asks whether Maxwell can be found guilty if a certain fact is true. Maxwell can be found guilty based in part on sexual activity occurring in New Mexico, which is probative of Maxwell's intent and role in transporting Jane. That is perfectly sensible question for the jury to ask. Indeed, it was repeatedly raised by Defense Council to judge Nathan at trial. Setting aside the jury note, Maxwell's positions require the jury to have reached a series of odd conclusions. Jane testified at length about her travel to New York and the ensuing sexual abuse there. It would make little sense for the jury to reject that testimony and then conclude that Maxwell arranged the unidentified commercial return, flight Maxwell now emphasizes, for which there is no documentary evidence in the record, including no specific corroboration of Maxwell's role in arranging that flight. Compare BR 79 and 80. The jury likely believed that if they found Maxwell had some role in arranging Jane's return flight from New Mexico after the sexual abuse had already taken place, they could convict her on the transportation count. With TR 3133, defense argument that there is no evidence Maxwell arranged a return flight from New Mexico. Maxwell suggests that the jury thought the flight records to be critical evidence, but the flight logs also demonstrate that Jane was flown to New York on Epstein's private jet, corroborating her testimony on that point. CBR 79 citing GX 662-R at 44. The same is true regarding Maxwell's comparison of counts two and four. In Maxwell's view, the jury rejected nearly all of the evidence of Maxwell's enticement of Jane to New York for lack of corroboration and then convicted or based on an unsupported speculative leap about rearranging an unidentified return flight from New Mexico. That is not plausible, and it certainly is not a substantially likely conclusion that can be drawn from an inscrutable jury note. For similar reasons, no variance occurred. As discussed above, the proof of trial corresponded to the allegations in the indictment, namely evidenced an argument that Maxwell enticed and transported Jane to New York in order to facilitate sexual abuse there. Maxwell has also aware that the government's proof would include conduct in New Mexico. Maxwell therefore had fair adequate notice that the conspiracies included conduct at Epstein's New Mexico home, which is all that is required. United States versus Salmanese, 352 F.3D, 608, 622, second circuit 2003. In any event, the government produced on November 6, 2021, more than three weeks before trial notes from an interview with Jane describing sexual abuse in New Mexico. That is sufficient. C. Lebdeve, 932 F.3D at 54, rejecting a prejudiced argument, in part because the government disclosed the evidence and exhibits for weeks prior to trial. Point number five, the sentence was procedurally reasonable. A, applicable law, a district court commits procedural error if among other things, it makes a mistake in its guidelines calculation or fails adequately to explain its chosen sentence. United States versus Cavara, 550 F.3D, 180, 190, second circuit 2008. This court reviews the district court's application of the guidelines de novo, while factual determinations, underlying a district court's guidelines, calculations are reviewed for clear error. United States versus Kramer, 777, F.3D, 597, 601, second circuit 2015. In explaining the sentence, the district court must show that it has considered the party's arguments and that it has reasoned basis for exercising its own legal decision-making authority. Cavara, 550, F.3D at 193. B, the discussion. Maxwell argues that the district court erred by applying a four-level leadership enhancement under 3B1.1 of the sentencing guidelines. That enhancement applies when a defendant was an organizer or leader of a criminal activity that was otherwise extensive, which must include the defendant's leadership of at least one other criminal participant. USSG, section 3B1.1, and CMT number two. Maxwell can test only whether the evidence showed that she led another criminal participant. On that point, Judge Nathan found that Maxwell led Sarah Kellen. Two witnesses, both pilots for Epstein, testified that Kellen was Maxwell's assistant. Judge Nathan 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, where much of the abuse occurred and where Kellen worked, the trial evidence showed that Kellen scheduled sexualized massages and took nude photographs of Kellen, even after Kellen took over some of Maxwell's duties. Maxwell continued to manager by virtue of her position in the house, a fact corroborated by a household manual directing staff to tend to the specific needs of Epstein, Maxwell, and their other guests, as well as flight records, showing that Maxwell and Kellen flew together on Epstein's planes dozens of times. The clear inference from this record is that Maxwell instructed Kellen regarding how to schedule massages and run part of the scheme that Maxwell was previously handled, at which point Kellen switched to making phone calls to schedule appointments following Maxwell's directions. Maxwell argues that Judge Nathan erred because a defense witness testified that she, rather than Kellen, was Maxwell's assistant. That uncorroborated testimony is not enough to render Judge Nathan's finding clearly erroneous. Moreover, what matters is whether Maxwell exercised supervisory authority over Kellen, not whether Kellen or another individual was formally Maxwell's assistant. Maxwell also argues that when imposing the 240-month sentence, which was above the guidelines, range of 188 to 235 months imprisonment, Judge Nathan, then failed to provide reasons for its upward variance. Maxwell's one sentence argument is so cursory and undeveloped that it should be deemed waived. See United States versus Bodie. 711 F.3D 299 313 Second Circuit 2013. It is settled a pellet rule that issues adverted to in a perfunctory manner unaccompanied by some sort at developed argumentation are deemed waived. In any event, Judge Nathan engaged in a lengthy discussion of the sentencing factors when imposing sentence, including Maxwell's pivotal role in heinous and predatory sexual abuse of minor girls. In describing the seriousness of the offense, Judge Nathan, found that Maxwell's crimes to be both extensive and far-reaching and concluded that the damage done to these young girls was incalculable as a result of the painful, horrific, and lasting impact of the trauma that they endured. After an extensive discussion of Maxwell's horrifying crimes, Judge Nathan explained that this conduct demands a substantial sentence that meets the scope of the conduct and the scope of the harm and that the sentence must send an unmistakable message of general deterrence to those who engage in and facilitate the sexual abuse and trafficking of underage victims, that nobody is above the law. Accordingly, Judge Nathan concluded that a very serious, a very significant sentence is necessary to achieve the purposes of punishment under US Code 18, Section 3553A, SA 462. This discussion belies any claim that Judge Nathan inadequately explained the sentence. Conclusion, the judgment of conviction should be affirmed. Dated, June 29th, 2023, and this was signed by Damian Williams. All right, so that concludes the United States government's brief in a response to Maxwell trying to get that appeal. And as you can tell, from this brief, the United States government is not convinced and they shouldn't be. Maxwell had a fair trial, she was found guilty, now she needs to sit in prison and rot. And when all is said and done with this process of her appealing, my guess is that's exactly what's going to occur. But until then, we'll continue our journey through the dark-ass disgusting sewers known as Jeffrey Epstein's criminal enterprise. All of the information that goes with this episode can be found in the description box.