DOJ-OGR-00021760.pdf

Case 22-1426, Document 87, 07/27/2023, 3548202, Page18 of 35 NPA's ambiguous provisions against the Government, which drafted the agreement and enjoys unequal bargaining power in the sentencing process. See United States v. Aleman, 286 F.3d 86, 89 (2d Cir. 2002); United States v. Ready, 82 F.3d 551, 558-59 (2d Cir. 1996); See also Difeaux at 728. In this instance, the District Court accepted the facts proffered by the U.S. Attorney's Office of the Southern District of New York and relied on Annabi to preclude any further inquiry, thereby eviscerating the exception in U.S. v Russo, supra. Epstein performed under the NPA in response to the promise of the United States. The Government, having received the totality of the benefit of the bargained elements in the NPA, should be held to its terms. There is no remedy other than enforcement of the NPA according to its terms or, should the Court determine that such terms are ambiguous, the holding of a hearing. Should the hearing establish that Epstein understood the co-conspirator clause to be global, while the Government deemed its reach a mistake or the subject of regret, Epstein, now dead, cannot undo it. The Government, having removed limiting language in the NPA, cannot restrict the NPA in retrospect, as it had convinced the District Court. 12 DOJ-OGR-00021760