DOJ-OGR-00021093.pdf

Even if, as appellants contend, the Southern District charges result from the same conspiratorial agreement that underlay the charges dismissed in the Eastern District, the allegation [in the Southern District] that the conspiracy extended for an additional two years suffices to show that the new charges are not identical to the dismissed charges. Therefore, regardless of what degree of preclusive effect [under the Double Jeopardy Clause] the dismissal of the Eastern District charges would have if the pending charges had been brought by the United States Attorney for [the Eastern] District, the [Southern District] charges are sufficiently distinct at least to warrant application of the Abbamonte-Alessi rule concerning construction of plea agreements [viz., that '(a) plea agreement binds only the office of the United States Attorney for the district in which the plea is entered....']." Id. (brackets and emphases added). The court misread this portion of Annabi as pertaining only to "a claim based on the Double Jeopardy Clause, not a claim based on the plea agreement[.]". A191. A careful reading of the above shows that Annabi's "sufficiently distinct" standard qualifies what the Court referred to as the "Abbamonte-Alessi rule," i.e., the canon of construction for determining whether a plea agreement's ambiguous reference to "the Government" or "the United States" includes other USAOs. Annabi, 771 F.2d at 672. And under this test, it was dispositive that the later-brought SDNY charges in Annabi alleged a conspiracy period two years longer than the period alleged and resolved in the Eastern District. See id. What this means is that, when new charges stem from "the same" conduct that "underlay" charges resolved by prior plea, Annabi's rule of construction does not apply unless the new charges also cover a new time period; that is what makes