DOJ-OGR-00021837.pdf

Case 22-1426, Document 117, 11/01/2024, 3636586, Page13 of 51 In Annabi, the defendants were charged under a three-count indictment in the EDNY with conspiring to import, importing, and possessing heroin with intent to distribute. See 771 F.2d at 671. After they pled guilty to the substantive importation charge (Count Two), the prosecutor represented to the court that "the only agreement that exists between defendants and the Government is that at the time of the imposition of sentence on Count Two, the Government would move to dismiss the two open remaining counts..." Id. Accordingly, the conspiracy and possession counts were dismissed. See id. Subsequently, the defendants were indicted in the SDNY with conspiracy to distribute heroin. See id. Whereas the dismissed EDNY charges had only alleged a conspiracy on or about a date in 1982, the new SDNY charges alleged criminal conduct extending from 1982 to 1985. The defendants argued that these new charges were barred by their plea agreement with the USAO-EDNY. See id. The District Court conducted an evidentiary hearing—obtaining testimony from both the prosecutor and the defense attorney from the EDNY proceedings—and concluded that the agreement was not meant to bind the USAO-SDNY. See id. The Second Circuit noted that this result was highly counterintuitive, acknowledging that "[a] plea agreement whereby a federal prosecutor agrees that 'the Government' will dismiss counts of an indictment...might be thought to bar the United States from reprosecuting the dismissed charges in any judicial district...." Id. at 672. Nevertheless, the Court declared, "the law has evolved to the contrary," 8 DOJ-OGR-00021837