DOJ-OGR-00021086.pdf

Case 22-1426, Document 59, 02/28/2023, 3475902, Page39 of 113 precedent may have been 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)). In this case, the District Court did not just purport to follow Annabi, but expanded its questionable doctrine into new and inapplicable territory. In this regard, the District Court erred in four respects. First, unlike the plea agreement in Annabi, the NPA originated in a federal district outside of the Second 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 elsewhere. Second, Annabi recognized that its "rule concerning construction of plea agreements" was only "warrant[ed]" 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. Id. But 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. Therefore, Annabi is inapplicable at least as to Count Six. Third, Annabi and its predecessors involved situations where there was no "affirmative" indication whatsoever that the plea agreement was intended to bind 24 DOJ-OGR-00021086