DOJ-OGR-00021676.pdf

Case 22-1426, Document 79, 06/29/2023, 3536060, Page29 of 93 16 F.2d 670, 672 (2d Cir. 1985); accord, e.g., United States v. Prisco, 391 F. App'x 920, 921 (2d Cir. 2010); United States v. Salameh, 152 F.3d 88, 120 (2d Cir. 1998). The requisite affirmative appearance may be established by "an express statement" in the plea agreement, or it may be "inferred from the negotiations between defendant and prosecutor, as well as from statements at the plea colloquy." United States v. Russo, 801 F.2d 624, 626 (2d Cir. 1986). This Court reviews de novo both the denial of a motion to dismiss an indictment and the interpretation of a plea agreement. United States v. Montague, 67 F.4th 520, 527 (2d Cir. 2023); United States v. Padilla, 186 F.3d 136, 139 (2d Cir. 1999). This Court reviews for abuse of discretion a district court's denial of an evidentiary hearing before ruling on a motion to dismiss. United States v. Walters, 910 F.3d 11, 22, 28 (2d Cir. 2018); United States v. Greenberg, 835 F.3d 295, 305 (2d Cir. 2016). C. Discussion The District Court correctly rejected Maxwell's argument that the NPA bars this prosecution. Maxwell has no right to invoke the protections of the NPA because she is neither a party to nor a third-party beneficiary of the agreement. But even if Maxwell had standing under the NPA, it would not bar this prosecution because it was plainly intended to bind only the USAO-SDFL. Thus, Judge Nathan rightly concluded that under longstanding Second Circuit precedent, the NPA does not bind USAO-SDNY. Accordingly, this DOJ-OGR-00021676