DOJ-OGR-00021070.pdf

Case 22-1426, Document 59, 02/28/2023, 3475902, Page23 of 113 SUMMARY OF THE ARGUMENT 1. The NPA immunized Maxwell from prosecution for all counts. Maxwell has standing to enforce the NPA as a third-party beneficiary. The "potential conspirators" provision binds the USAO-SDNY by its express terms. Hence, the canon of construction enunciated in United States v. Annabi, 771 F.2d 670 (2d Cir. 1985), 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." is inapplicable here. Id. at 672. But even if the immunity provision was ambiguous, which it is not, Annabi should not apply here because (1) the NPA originated in a district outside this circuit with different rules that should control; (2) Annabi applies only if the new charges are sufficiently distinct and Count Six is not; (3) Annabi applies only where there is no affirmative indication that the agreement was intended to bind other districts and there were affirmative indications here; and (4) Annabi is a tiebreaking rule for ambiguous agreements which should be used only after an evidentiary hearing determines the intent of the parties. Here, the court refused to grant discovery or a hearing on this issue. 2. The convictions are time-barred. Section 3283 does not extend the statute of limitations for violations of § 2423(a), or conspiracy to do the same, because the "sexual or physical abuse...of a child" is not a necessary element of those offenses. 8 DOJ-OGR-00021070