DOJ-OGR-00021084.pdf

Case 22-1426, Document 59, 02/28/2023, 3475902, Page37 of 113 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.” Albro, 180 F.3d at 375; 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 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. The District Court opined that this Court “has followed [Annabi] steadfastly.” A190. Nothing could be further from the truth. This Court has been exceedingly reluctant to affirm a conviction on the force of Annabi’s reasoning. So reluctant, in fact, that it has never relied on Annabi in a published decision to hold that a plea agreement’s reference to the “United States” or the “Government” was nonbinding on other districts. Every decision from this Court that cited Annabi has done so essentially in dictum (as in cases involving unambiguous plea 22 DOJ-OGR-00021084