The following excerpt is from United States v. Cardenas, 17-3428 (L), 17-3450 (Con) (2nd Cir. 2019):
We review claims that there was a constructive amendment of, or prejudicial variance from, an indictment de novo. See United States v. Dove, 884 F.3d 138, 146, 149 (2d Cir. 2018). To prevail on a constructive-amendment claim and obtain reversal, 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. Salmonese, 352 F.3d 608, 620 (2d Cir. 2003) (internal quotation marks omitted). To prevail on a prejudicial-variance claim and obtain reversal, a defendant must (1) "establish that the evidence offered at trial differs materially from
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