Document 117

Case 1:20-cr-00330-AJN Document 117 Filed 01/25/21 Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK United States of America, -v- Ghislain Maxwell, Defendant. 20-CR-330 (AJN) ORDER ALISON J. NATHAN, District Judge: On January 25, 2021, the Court received by email the attached letter from the Bureau of Prisons ("BOP"). In the letter, the BOP requests that the Court vacate its January 15, 2021 Order, Dkt. No. 116, which directed the BOP to give the Defendant access to her Government-provided laptop computer on weekends and holidays during the hours that she is permitted to review discovery. The Defendant and the Government may respond to the BOP's letter within one week of this Order. SO ORDERED. Dated: January 25, 2021 New York, New York ALISON J. NATHAN United States District Judge 1 DOJ-OGR-00002272 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page1 of 51 22-1426-cr United States Court of Appeals for the Second Circuit UNITED STATES OF AMERICA, Appellee, -v.- GHISLAINE MAXWELL, AKA Sealed Defendant 1, Defendant-Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK PETITION FOR REHEARING EN BANC ARTHUR L. AIDALA DIANA FABI SAMSON AIDALA BERTUNA & KAMINS PC Attorneys for Defendant-Appellant 546 Fifth Avenue, 6th Floor New York, New York 10036 (212) 486-0011 CP COUNSEL PRESS (800) 4-APPEAL (334032) DOJ-OGR-00021825 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 117 Filed 01/25/21 Page 2 of 3 U.S. DEPARTMENT OF JUSTICE Federal Bureau of Prisons Metropolitan Detention Center 80 29th Street Brooklyn, New York 11232 January 25, 2021 BY ECF The Honorable Alison J. Nathan United States District Court Southern District of New York 40 Foley Square New York, NY 10007 Re: United States v. Ghislaine Maxwell, 20 Cr. 330 (AJN) Ghislaine Maxwell, Reg. No. 02879-509 Dear Judge Nathan: This letter is written in response to Order granted on January 15, 2021, concerning Ghislaine Maxwell, Reg. 02879-509., an inmate currently confined at the Metropolitan Detention Center ("MDC") in Brooklyn, New York. The MDC Brooklyn respectfully requests that Your Honor vacate the Order given MDC Brooklyn was not given the opportunity to object to defense counsel's claims, although the objection had been reiterated to the U.S. Attorney's Office numerous times. Defense counsel expressed various concerns regarding Ms. Maxwell's confinement limiting her access to discovery. However, Ms. Maxwell has received a significant amount of time to review her discovery. On November 18, 2020, the Government provided the MDC Brooklyn with a laptop for Ms. Maxwell to use to review discovery. Ms. Maxwell has been and will continue to be permitted to use that laptop to review her discovery for thirteen (13) hours per day, five (5) days per week. In addition to the Government laptop, she has access to the MDC Brooklyn discovery computers. Although defense counsel has indicated that the MDC Brooklyn discovery computers are not equipped to read all of her electronic discovery, the computers are capable of reviewing most of the electronic discovery. Despite defense counsel's claim that Ms. Maxwell's lacks sufficient time to fully review her discovery, her consistent use of Government laptop and MDC Brooklyn's discovery computers undercuts this claim. Moreover, Ms. Maxwell continues to have contact with her legal counsel five (5) days per week, three (3) hours per day via video-teleconference and via telephone; this is far more time than any other MDC inmate is allotted to communicate with their attorneys. DOJ-OGR-00002273 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page2 of 51 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ....................................................... ii INTRODUCTION AND RULE 35(B)(1) STATEMENT ............................... 1 ISSUE PRESENTED ............................................................... 3 BACKGROUND ................................................................... 3 PANEL DECISION ................................................................ 5 ARGUMENT ........................................................................ 7 EN BANC REVIEW IS NECESSARY TO DETERMINE WHETHER ANABI'S CANON OF CONSTRUCTION FOR PLEA AGREEMENTS SHOULD BE OVERRULED OR LIMITED ....................... 7 CONCLUSION ..................................................................... 16 i DOJ-OGR-00021826 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 117 Filed 01/25/21 Page 3 of 3 We respectfully request that Your Honor vacate the order of January 15, 2021, and allow the institution to resume the prior schedule of laptop access, Monday through Friday, 7:00 AM - 8:00 PM. Respectfully submitted, /s/ Sophia Papapetru Sophia Papapetru Staff Attorney MDC Brooklyn Federal Bureau of Prisons DOJ-OGR-00002274 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page3 of 51 TABLE OF AUTHORITIES Page(s) Cases: Egbert v. Boule, 142 S.Ct. 1793 (2022) ...............................................................................................................................13 Giglio v. United States, 405 U.S. 150 (1972) ...................................................................................................................................10 In re Altre, 180 F.3d 372 (2d Cir. 1999).......................................................................................................................12 In re Arnett, 804 F.2d 1200 (11th Cir. 1986) .................................................................................................................14 Little v. U.S., Nos. 1:08-cr-59, 1:09-cv-822, 2010 WL 3942749 (S.D. Ohio Oct. 7, 2010) ...............................................12 Margalli-Olvera v. I.N.S., 43 F.3d 345 (8th Cir. 1994).......................................................................................................................11 Rowe v. Griffin, 676 F.2d 524 (11th Cir. 1982) ...................................................................................................................14 Santobello v. New York, 404 U.S. 257 (1971) ...............................................................................................................................2, 10 Thomas v. I.N.S., 35 F.3d 1332 (9th Cir. 1994).....................................................................................................................11 U.S. v. Abbamonte, 759 F.2d 1065 (2d Cir. 1985) .....................................................................................................................9 U.S. v. Alessi, 544 F.2d 1139 (2d Cir. 1976) .................................................................................................................9, 15 U.S. v. Ashraf, 320 F. App'x 26 (2d Cir. Apr. 6, 2009) .......................................................................................................13 U.S. v. Brown, Nos. 99-1230(L), 99-1762, 2002 WL 34244994 (2d Cir. Apr. 26, 2002) ......................................................13 U.S. v. Carmichael, 216 F.3d 224 (2d Cir. 2000).......................................................................................................................12 ii DOJ-OGR-00021827 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page4 of 51 U.S. v. Carter, 454 F.2d 426 (4th Cir. 1972)...............................................................................12 U.S. v. Gebbie, 294 F.3d 540 (3d Cir. 2002)...............................................................................9, 10, 11, 14 U.S. v. Gonzales, 93 F. App'x 268 (2d Cir. Mar. 24, 2004) ...............................................................13 U.S. v. Harvey, 791 F.2d 294 (4th Cir. 1986)...............................................................................12, 14 U.S. v. Jefferies, 908 F.2d 1520 (11th Cir. 1990)...........................................................................14 U.S. v. Levasseur, 846 F.2d 786 (1st Cir. 1988) .............................................................................11 U.S. v. Maxwell, 118 F.4th 256 (2d. Cir. 2024)..............................................................................6, 7 U.S. v. Nersesian, 824 F.2d 1294 (2d Cir. 1987).............................................................................13 U.S. v. Papa, 533 F.2d 815 (2d Cir. 1976)...............................................................................9, 15 U.S. v. Persico, 774 F.2d 30 (2d Cir. 1985), aff'g 620 F. Supp. 836 (S.D.N.Y. 1985) .......................13 U.S. v. Prisco, 391 F. App'x 920 (2d Cir. Sept. 2, 2010) .............................................................13 U.S. v. Reiter, 848 F.2d 336 (2d Cir. 1988)...............................................................................13 U.S. v. Rivera, 844 F.2d 916 (2d Cir. 1988)...............................................................................13 U.S. v. Robinson , 924 F.2d 612 (6th Cir. 1991)...............................................................................11 U.S. v. Rourke , 74 F.3d 802 (7th Cir. 1996)...............................................................................11 U.S. v. Russo, 801 F.2d 624 (2d Cir. 1986)...............................................................................13 iii DOJ-OGR-00021828 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page5 of 51 U.S. v. Salameh, 152 F.3d 88 (2d Cir. 1998)......................................................................................................................................13 U.S. v. Van Thournout, 100 F.3d 590 (8th Cir. 1996)..............................................................................................................................11, 14 United States v. Annabi, 771 F.2d 670 (2d Cir. 1985)............................................................................................................................passim United States v. Difaux, 163 F.3d 725 (2d Cir 1998)......................................................................................................................................1 United States v. Johnson, 93 F.4th 605 (2024)................................................................................................................................................1 United States v. Padilla, 186 F.3d 136 (2d Cir. 1999)......................................................................................................................................1 United States v. Ready, 82 F.3d 551 (2d Cir. 1996)...............................................................................................................................1, 12 United States v. Wilkerson, 361 F.3d 717 (2d Cir 2004)......................................................................................................................................1 Young v. U.S., 953 F. Supp. 2d 1049 (D.S.D. 2013)......................................................................................................................12 Ziglar v. Abbasi, 137 S. Ct. 1843 (2017)..........................................................................................................................................14 Statutes & Other Authorities: 18 U.S.C. § 2255........................................................................................................................................................3 Restatement (Second) of Agency § 272......................................................................................................................10 iv DOJ-OGR-00021829 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page6 of 51 INTRODUCTION AND RULE 35(B)(1) STATEMENT En Banc may be ordered when, as here, the panel decision was based on a decision of this Court that it was not permitted to overrule.1 That decision, United States v. Annabi, 771 F.2d 670 (2d Cir. 1985) (per curiam), created a canon of construction for interpreting plea agreements that conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue and stands in tension with what the Supreme Court and this Circuit have written about plea and immunity agreements. Annabi holds that "a plea agreement binds only the office of the United States Attorney for the district in which the plea is entered unless it affirmatively appears that the agreement contemplates a broader restriction." Annabi at 672. This default rule necessarily conflicts with the long-standing rule in this circuit (and others) that plea agreements are to be construed "strictly against the Government." United States v. Padilla, 186 F.3d 136, 140 (2d Cir. 1999) (quoting United States v. Ready, 82 F.3d 551, 558-59 (2d Cir. 1996). United States v. Johnson, 93 F.4th 605, 616-617 (2024). See also United States v. Difeaux, 163 F.3d 725, 728 (2d Cir. 1998) ("The reviewing court must ... construe ambiguous 1 A panel is bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court See United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004). 1 DOJ-OGR-00021830 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page7 of 51 provisions against the government, which drafted the agreement and enjoys unequal bargaining power in the sentencing process. The Court should overrule Annabi because it is an outlier and incompatible with "fairness in securing agreement between an accused and a prosecutor." See Santobello v. New York, 404 U.S. 257, 261 (1971). Alternatively, the Court should limit Annabi as follows: Annabi should not apply (1) to plea agreements from other circuits that do not have such a rule; (2) to offenses based on the same conduct that was the subject of a non-prosecution or plea agreement; (3) where there are "affirmative indications" that the defendant reasonably understood the agreement to bind other districts; and (4) without discovery and an evidentiary hearing. Here, Annabi was applied to a plea that was negotiated and executed in the Eleventh Circuit (a circuit that does not follow Annabi); to an offense based on the same conduct that the "United States" had agreed not to prosecute; despite affirmative appearances of intent to bind other districts; and without discovery and a hearing. 2 DOJ-OGR-00021831 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page8 of 51 ISSUE PRESENTED Whether the canon of construction adopted by the Second Circuit in Annabi, whereby perceived ambiguities in the scope of immunity in a plea agreement are resolved in favor of the government, should be overruled or limited. BACKGROUND In September 2007, following state and federal investigations of alleged unlawful sexual activity, Jeffrey Epstein entered into a non-prosecution and plea agreement ("NPA") with the United States Attorney's Office for the Southern District of Florida ("USAO-SDFL"). A173-179.2 In return for pleading guilty to state charges, receiving an eighteen-month sentence and consenting to jurisdiction and liability for civil suits under 18 U.S.C. Section 2255, irrespective of where those claims arose, the government agreed, inter alia, not to prosecute Epstein in the SDFL for the offenses from 2001-2007 then under investigation. In addition, "the United States also agree[d] that it will not institute any criminal charges against any potential co-conspirators of Epstein, including but not limited to [four named individuals]." A178. The co-conspirator clause was negotiated at the same time that the terms of Epstein's liability for civil claims without geographic 2 Numerical references preceded by "A" and "SA" are to the appendices filed with Appellant's Brief and the Government's Brief, respectively. 3 DOJ-OGR-00021832 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page9 of 51 limitation were negotiated. SA78. Relying on the NPA, Epstein pled guilty in state court on June 30, 2008, and fulfilled all his promises. SA137. In July of 2019, Epstein was indicted in the SDNY on charges of sex trafficking and conspiracy related to conduct in Florida and New York between 2003 and 2005. He died by suicide on August 10, 2019. One year later, Maxwell was indicted. Initially, Maxwell was charged with crimes in the 1994 to 1997 timeframe, in an apparent effort to circumvent the time frame covered by the NPA. However, on March 29, 2021, the SDNY added in its superseding indictment, a sex trafficking offense (Count Six) related to conduct and offenses wholly within the timeframe and subject matter covered by the NPA and contained in the proposed indictment in SDFL that was resolved by the NPA. A114. Doc 293 at p10 as referenced in A45. Maxwell moved to dismiss the indictment based on the clear language of the NPA. Alternatively, in the event that the court determined that the language of the NPA was ambiguous, Maxwell, who was not a party to the agreement, sought discovery and a hearing to establish affirmative evidence of intent to bind other districts consistent with the plain language in the co-conspirator clause. Her motion was denied without a hearing or discovery.3 A145. The District Court found that 3 While the District Court did not order discovery, it did order the government to disclose to Maxwell "any evidence supporting a defense under the NPA." A145. The government responded 4 DOJ-OGR-00021833 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page10 of 51 while Maxwell was a beneficiary of the NPA and had standing to enforce its terms, the NPA did not grant immunity to Maxwell in the SDNY. The District Court based its decision on Annabi. The case proceeded to trial and the jury found Maxwell guilty on, inter alia, Count Six. In 2019 the Department of Justice Office of Professional Responsibility investigated whether and to what extent prosecutors in the SDFL improperly resolved the federal investigation of Epstein in 2007-2008 by the very NPA at issue here. Their investigation overlapped the prosecutions of Epstein and Maxwell in the SDNY and did not involve interviewing any defense counsel. The OPR did not contain a finding as to whether the co-conspirator clause of the NPA bound other districts, although it stated that "witnesses" stated that the clause provided transactional immunity and "found no policy prohibiting a U.S. Attorney from declining to prosecute third parties or providing transactional immunity." SA165. PANEL DECISION On appeal, Maxwell argued, inter alia, that the NPA barred her prosecution in the SDNY by its express language. That language read In consideration of Epstein's agreement to plead guilty and to provide compensation in the manner described above, if Epstein successfully fulfills all the terms and conditions of this agreement, the United States also agrees that it will not institute any criminal charges against any that its review "did not include search terms relevant to the NPA, and the Government has not searched [the SDFL prosecutor's] inbox for communications relating to the NPA." 5 DOJ-OGR-00021834 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page11 of 51 potential co-conspirators of Epstein, including but not limited to [four named individuals]. A178. A unanimous panel of this Court applied the holding in Annabi, 771 F.2d. at 672, to the co-conspirator clause in the NPA to permit the prosecution of Maxwell, a beneficiary of that agreement, in the SDNY, notwithstanding that clause contained no limiting language. U.S. v. Maxwell, 118 F.4th 256 (2d. Cir. 2024). The Court, quoting Annabi held, that "[a] plea agreement binds only the office of the United States Attorney for the district in which the plea is entered unless it affirmatively appears that the agreement contemplates a broader restriction." Id at 263. The Court applied Annabi even though the NPA had been negotiated in the Eleventh Circuit where no such contrarian rule of construction exists and did so without benefit to Maxwell of discovery or an evidentiary hearing. The Court found that neither the plea agreement nor the "negotiation history" showed that the co-conspirator clause was "meant to" bind other districts. Yet the clause contained no limiting language and "several witnesses told OPR that they believed the government's agreement not to prosecute unidentified "potential co-conspirators" amounted to "transactional immunity" (SA165). Notably, Maxwell was denied both discovery and a hearing and was therefore left to rely on the NPA and the OPR which was based on documents that were not shared with Maxwell and an investigation that did not include 6 DOJ-OGR-00021835 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page12 of 51 interviewing Epstein's lawyers. Notably, the prosecutors could not recall why the clause had been added, much less who it was meant to immunize. SA104-106. The Court also relied on the United States Attorneys' Manual's directive that districts not bind other districts without the express written approval of the United States Attorneys in the affected districts and the Judiciary Act of 1789 to suggest that US Attorneys are "cabined to their specific district unless otherwise directed." 118 F.4th at 265. Notably, the Manual also contains an admonition that USAOs who do not wish to bind USAOs in other districts explicitly limit the scope of an NPA to their districts. Justice Manual 9-27-630. This admonition implicitly acknowledges that AUSAs can bind other districts and that it is the obligation of the government to make explicit any limitation in the scope of immunity. ARGUMENT EN BANC REVIEW IS NECESSARY TO DETERMINE WHETHER ANNABI'S CANON OF CONSTRUCTION FOR PLEA AGREEMENTS SHOULD BE OVERRULED OR LIMITED The Panel based its decision on Annabi. Annabi should be overruled because its canon of construction for interpreting plea agreements conflicts with the authoritative decisions of other circuits that have addressed the issue and stands in tension with what the Supreme Court and this Circuit have written about plea and immunity agreements. 7 DOJ-OGR-00021836 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page13 of 51 In Annabi, the defendants were charged under a three-count indictment in the EDNY with conspiring to import, importing, and possessing heroin with intent to distribute. See 771 F.2d at 671. After they pled guilty to the substantive importation charge (Count Two), the prosecutor represented to the court that "the only agreement that exists between defendants and the Government is that at the time of the imposition of sentence on Count Two, the Government would move to dismiss the two open remaining counts..." Id. Accordingly, the conspiracy and possession counts were dismissed. See id. Subsequently, the defendants were indicted in the SDNY with conspiracy to distribute heroin. See id. Whereas the dismissed EDNY charges had only alleged a conspiracy on or about a date in 1982, the new SDNY charges alleged criminal conduct extending from 1982 to 1985. The defendants argued that these new charges were barred by their plea agreement with the USAO-EDNY. See id. The District Court conducted an evidentiary hearing—obtaining testimony from both the prosecutor and the defense attorney from the EDNY proceedings—and concluded that the agreement was not meant to bind the USAO-SDNY. See id. The Second Circuit noted that this result was highly counterintuitive, acknowledging that "[a] plea agreement whereby a federal prosecutor agrees that 'the Government' will dismiss counts of an indictment...might be thought to bar the United States from reprosecuting the dismissed charges in any judicial district...." Id. at 672. Nevertheless, the Court declared, "the law has evolved to the contrary," 8 DOJ-OGR-00021837 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page14 of 51 adding, "[a] plea agreement binds only the office of the United States Attorney for the district in which the plea is entered unless it affirmatively appears that the agreement contemplates a broader restriction." Id. The Court concluded that, because the conspiracy alleged in the SDNY indictment "extended for an additional two years" beyond the date of the conspiracy alleged in the EDNY indictment, "the new charges are sufficiently distinct at least to warrant application of [this] rule concerning construction of plea agreements." Id. Annabi has been sharply criticized. One circuit said it was "unable to discern a sound basis for the [Annabi] rule," adding that the decision "really has no analytically sound foundation." U.S. v. Gebbie, 294 F.3d 540, 547 (3d Cir. 2002). Annabi cited three prior cases from this Circuit in support of the rule. 771 F.2d at 672 (citing U.S. v. Abbamonte, 759 F.2d 1065 (2d Cir. 1985); U.S. v. Alessi, 544 F.2d 1139 (2d Cir. 1976); and U.S. v. Papa, 533 F.2d 815 (2d Cir. 1976)). But, as Gebbie explained, Annabi misread this Court's precedent and fashioned an "illogical" rule out of whole cloth: The first case cited in Annabi is Abbamonte, but Abbamonte merely relies upon the other two cases cited in Annabi—Alessi and Papa ... The court in Alessi relies upon Papa, which is a related case. ... Papa, however, provides no support for the rule the Second Circuit follows. ... Although Papa held that the plea agreement did not bind other districts because the evidence revealed an intent to bind only one district, the Second Circuit apparently has broadly interpreted this case as meaning that plea agreements do not bind other districts absent an 9 DOJ-OGR-00021838 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page15 of 51 affirmative appearance of doing so. Papa does not explain or attempt to rationalize the rule that has evolved. 294 F.3d at 547-48 (brackets and italics in original; bold added). Annabi stands in tension with what the United States Supreme Court has written about plea and immunity agreements. In Santobello, 404 U.S. 257 (1971)—the seminal case on plea bargaining—the Supreme Court held that one prosecutor's promise in a plea agreement would bind other prosecutors, even those who might have been unaware of the promise. As Santobello explained, "[t]he staff lawyers in a prosecutor's office have the burden of 'letting the left hand know what the right hand is doing' or has done." 404 U.S. at 262. And in Giglio v. United States, the Supreme Court held that an AUSA had a duty under Brady to disclose a promise of immunity that another AUSA had made to a testifying witness, even though the first AUSA had been falsely assured that no such promise was made. See 405 U.S. 150, 154 (1972) ("The prosecutor's office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government") (citing Restatement (Second) of Agency § 272). These premises are inconsistent with the notion that a federal prosecutor in one district has no obligation to honor promises made by his or her counterpart in another. Appellant is not aware of any published authority from another circuit that follows Annabi in holding that an ambiguous promise made in a plea agreement by 10 DOJ-OGR-00021839 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page16 of 51 one USAO is presumed not to bind other USAOs.4 To the contrary, the weight of authority holds that a representation by the United States Attorney or her agents will bind USAOs in other districts, if not the federal Government as a whole. See Gebbie, 294 F.3d at 550 (“[W]hen a United States Attorney negotiates and contracts on behalf of ‘the United States’ or ‘the Government’ in a plea agreement ... that attorney speaks for and binds all of his or her fellow United States Attorneys with respect to those same crimes and those same defendants. ... United States Attorneys should not be viewed as sovereigns of autonomous fiefdoms.”); U.S. v. Van Thournout, 100 F.3d 590, 594 (8th Cir. 1996) (“Absent an express limitation, any promises made by an [AUSA] in one district will bind an [AUSA] in another district”); Margalli-Olvera v. I.N.S., 43 F.3d 345, 353 (8th Cir. 1994) (“promises made by an [AUSA] in a plea agreement “bind all agents of the United States government”); Thomas v. I.N.S., 35 F.3d 1332 (9th Cir. 1994) (enforcing against the INS a cooperation agreement between defendant and an AUSA promising that “the government” would not oppose defendant’s application for relief from deportation); U.S. v. Levasseur, 846 F.2d 786, 799 (1st Cir. 1988) (expressly declining to apply Annabi in the estoppel context, instead holding that “the representation of any [AUSA] may, in appropriate circumstances, bind the government”). 4 The Seventh Circuit held in U.S. v. Rourke that a plea agreement did not bind the Federal Aviation Administration. See 74 F.3d 802, 807 n.5 (7th Cir. 1996). But Rourke did not go as far as Annabi in ruling that a promise by one USAO is presumptively nonbinding on other USAOs. The Sixth Circuit in U.S. v. Robinson held, on the facts before it, that a plea agreement in the Eastern District of North Carolina was not binding in the Eastern District of Michigan, but explicitly declined to take a position on Annabi’s broader rule. See 924 F.2d 612, 613 (6th Cir. 1991). 11 DOJ-OGR-00021840 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page17 of 51 appropriate circumstances, be invoked to estop the United States..."); U.S. v. Harvey, 791 F.2d 294, 303 (4th Cir. 1986) ("Whenever a United States Attorney negotiates and enters a plea agreement, it is the Government that 'agrees' to whatever is agreed to."); U.S. v. Carter, 454 F.2d 426 (4th Cir. 1972) (en banc) (vacating conviction where a plea "bargain was allegedly breached in a neighboring district," adding that "[t]he United States government is the United States government throughout all of the states and districts"); Young v. U.S., 953 F.Supp.2d 1049, 1069 n.4 (D.S.D. 2013) (plea agreement between defendant and "the United States" in West Virginia would bind federal prosecutors in South Dakota); Little v. U.S., Nos. 1:08-cr-59, 1:09-cv-822, 2010 WL 3942749, at *3 (S.D. Ohio Oct. 7, 2010) (plea agreement between defendant "and the United States of America," which was "silent as to the effect it may have with respect to other United States Attorneys," would be interpreted to "bind[] the United States Attorneys in all other districts"). Annabi is also out of step with the law of this Circuit. It is well-settled that "we determine whether a plea agreement has been breached by looking to the reasonable understanding of the parties and by resolving any ambiguities against the Government." In re Altro, 180 F.3d 372, 375 (2d Cir. 1999); see also U.S. v. Carmichael, 216 F.3d 224 (2d Cir. 2000) ("[W]e 'construe plea agreements strictly against the Government.'") (quoting U.S. v. Ready, 82 F.3d 551, 559 (2d Cir. 1996)). But Annabi flips this formulation on its head, holding that an ambiguous promise of 12 DOJ-OGR-00021841 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page18 of 51 immunity by "the United States" is to be construed against the defendant—binding just one USAO rather than the Government as a whole, "unless it affirmatively appears that the agreement contemplates a broader restriction." 771 F.2d at 672. Annabi did not explain or acknowledge its departure from this longstanding doctrine. This Court has been exceedingly reluctant, until now, to affirm a conviction on the force of Annabi's reasoning. Previous decisions from this Court that cited Annabi have done so essentially in dictum (as in cases involving unambiguous plea agreements, which do not require resort to Annabi's canon of construction),5 or for points unrelated to whether an agreement with one USAO will bind another,6 or—in one case—in an unpublished decision that provided too little information to clarify whether the plea agreement as a whole was ambiguous.7 Annabi's analytical faults support limiting application of the rule. Cf. Egbert v. Boule, 142 S.Ct. 1793, 1803 (2022) (where underlying precedent may have been 5 See U.S. v. Prisco, 391 F. App'x 920, 921 (2d Cir. Sept. 2, 2010) (agreement stated it was "limited to the United States Attorney's Office for the District of New Jersey and cannot bind other federal, state, or local authorities"); U.S. v. Ashraf, 320 F. App'x 26, 28 (2d Cir. Apr. 6, 2009) (agreement, "by its express terms, bound only the U.S. Attorney's Office for the Eastern District of Virginia"); U.S. v. Gonzales, 93 F. App'x 268, 271 (2d Cir. Mar. 24, 2004) (agreement "explicitly states that the agreement binds only the United States Attorney's Office for the District of New Mexico"); U.S. v. Salameh, 152 F.3d 88, 119, 120 (2d Cir. 1998) ("[T]his agreement is limited to the United States Attorney's Office for the Eastern District of New York and cannot bind other federal, state or local prosecuting authorities."); U.S. v. Russo, 801 F.2d 624, 626 (2d Cir. 1986) ("[W]e need not resolve the question whether the Southern District is bound by this particular plea agreement...."); U.S. v. Persico, 774 F.2d 30 (2d Cir. 1985), aff'g 620 F.Supp. 836, 846 (S.D.N.Y. 1985) ("Persico's plea agreement explicitly states that it 'is binding on the United States only in [the Eastern] district'") (brackets in original). 6 See U.S. v. Reiter, 848 F.2d 336, 340 (2d Cir. 1988) (discussing double jeopardy issue); U.S. v. Rivera, 844 F.2d 916, 923 (2d Cir. 1988) (plea agreement and later charges arose in the same district, unlike Annabi); U.S. v. Nersesian, 824 F.2d 1294, 1321-22 (2d Cir. 1987) (case related to Annabi itself). 7 See U.S. v. Brown, Nos. 99-1230(L), 99-1762, 2002 WL 34244994, at *2 (2d Cir. Apr. 26, 2002). 13 DOJ-OGR-00021842 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page19 of 51 doctrinally flawed, expanding it into "new...context[s]" would be "a disfavored judicial activity") (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1857, 1859 (2017)). At minimum, Annabi's questionable doctrine should limited in four respects: First, Annabi should not apply to pleas that originate outside the Second Circuit. Unlike the plea agreement in Annabi, the NPA originated in the Eleventh Circuit. Under textbook choice-of-law rules and principles of fairness, it would be unreasonable to graft a unique, pro-prosecution canon of construction, derived from the law of a foreign circuit—this circuit—onto a plea agreement negotiated with prosecutors in a circuit where the very opposite rule applies, i.e. that ambiguities in plea agreements are to be resolved against the government. Under Eleventh Circuit precedent, even if the reference to "the United States" were deemed ambiguous, the ambiguity "must be read against the government." U.S. v. Jefferies, 908 F.2d 1520, 1523 (11th Cir. 1990) (citing In re Arnett, 804 F.2d 1200, 1203 (11th Cir. 1986)); see also Rowe v. Griffin, 676 F.2d 524, 526 n.4 (11th Cir. 1982). And this result would bring the Eleventh Circuit in line with every circuit that has directly confronted this question (other than the Second Circuit). See Gebbie, 294 F.3d at 550; Van Thournout, 100 F.3d at 594; Harvey, 791 F.2d at 303. Second, Annabi should only apply when "the new charges are sufficiently distinct" from the old ones. 771 F.2d at 672. And Annabi made clear that charges are "sufficiently distinct" when they cover a different or expanded period of time. 14 DOJ-OGR-00021843 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page20 of 51 Id. Here, the USAO-SDNY charged Appellant under Count Six with conduct from 2001 through 2004 that falls entirely within the 2001-2007 offense period contemplated by the NPA. Third, Annabi should apply only if there are no “affirmative” indications whatsoever that the plea agreement was intended to bind other USAOs. See Annabi, 771 F.2d at 671; Alessi, 544 F.2d at 1154; Papa, 533 F.2d at 823-25. That is not the case here. Appellant produced ample evidence that the NPA was intended to bind other USAOs. See Appellant’s Principal Brief at 33-38. The investigation itself suggests it was meant to bind the SDNY, in particular, because the investigation was active in the SDNY at the time the NPA was negotiated. SA72, 84, 86, 127. See Doc 293 at 16. Defense counsel understood the plea agreement to provide “genuine finality.” SA118. This reasonable understanding, supported by the NPA itself and the limited negotiation history contained in the one-sided OPR was sufficient to preclude application of Annabi. Fourth, at most, Annabi should apply, if at all, only after the court permits discovery and conducts an evidentiary hearing. See Annabi, 771 F.2d at 671; Papa, 533 F.2d at 823. Here, appellant was denied discovery and an evidentiary hearing. 15 DOJ-OGR-00021844 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page21 of 51 CONCLUSION For the foregoing reasons, Appellant respectfully requests that this Petition be granted and that this Court vacate the Panel decision, overrule Annabi and dismiss the indictment or remand for an evidentiary hearing. Dated: New York, New York November 1, 2024 Respectfully Submitted, By: /s/Diana Fabi Samson ARTHUR L. AIDALA DIANA FBI SAMSON AIDALA, BERTUNA & KAMINS PC Attorneys for Defendant-Appellant Ghislaine Maxwell 546 Fifth Avenue, Sixth Floor New York, New York 10036 212 486-0011 16 DOJ-OGR-00021845 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page22 of 51 CERTIFICATE OF COMPLIANCE This document complies with the type-volume limit of Fed. R. App. P. 40(b)(1), because, excluding the parts of the document exempted by Fed. R. App. P. 32(f): this document contains 3,889 words. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because the brief has been prepared in a proportionally spaced typeface using Microsoft Word, in 14-point Times New Roman. Dated: New York, New York November 1, 2024 DOJ-OGR-00021846 --- PAGE BREAK --- Case 22-1426, Document 117, 11/01/2024, 3636586, Page23 of 51 ORDER DOJ-OGR-00021847 --- PAGE BREAK --- Case 20-cr-00330-AJN Document 117 Filed 08/20/20 Page 30 of 125 Q. List all the people under the age of 18 that you interacted with at any of Jeffrey's properties? A. I'm not aware of anybody that I interacted with, other than obviously [the plaintiff] who was 17 at this point. (Title 18, United States Code, Section 1623.) COUNT SIX (Perjury) The Grand Jury further charges: 22. The allegations contained in paragraphs 1 through 8 of this Indictment are repeated and realleged as if fully set forth within. 23. On or about July 22, 2016, in the Southern District of New York, GHISLAINE MAXWELL, the defendant, having taken an oath to testify truthfully in a deposition in connection with a case then pending before the United States District Court for the Southern District of New York under docket number 15 Civ. 7433, knowingly made false material declarations, to wit, MAXWELL gave the following underlined false testimony: Q: Were you aware of the presence of sex toys or devices used in sexual activities in Mr. Epstein's Palm Beach house? A: No, not that I recall. . . . Q. Do you know whether Mr. Epstein possessed sex toys or devices used in sexual activities? A. No. 16 App.028 DOJ-OGR-00019487