DOJ-OGR-00004716.pdf

--- Page 1 --- The extracted text is: **Header:** Case 1:20-cr-00330-PAE Document 295 Filed 05/25/21 Page 9 of 26 **Main Text:** Indictment before determining whether the plain-statement rule of Annabi applies. Annabi, the defendant suggests, creates a three-part schema for analyzing the relationship between newly charged offenses and earlier plea agreements: if the offense is not covered by the plea agreement, the agreement is irrelevant; if the offense is covered by the agreement but different from a count "resolved" when that agreement was entered, the Annabi rule applies; and if the offense is identical to a "resolved" count, Annabi is silent. (Def. Mot. at 13-14). Nothing in Annabi comes close to articulating this unusual and confusing rule. Instead, the language the defendant points to in Annabi simply addressed—and rejected—the defendants' effort to distinguish precedent. Indeed, nothing about the reasoning of Annabi turned on whether the new case charged the same offenses that were at issue in the original plea agreement or other offenses that might still be covered by the plea agreement. Moreover, the cases in which the Second Circuit has applied Annabi provide no support to the defendant's theory. Like Annabi itself, those cases evaluate the text and history of plea agreements to determine the scope of the immunity provided by those agreements, including by application of the affirmative appearance rule. See, e.g., United States v. Prisco, 391 F. App'x 920, 921 (2d Cir. 2010) (summary order) ("In the absence of any language in the New Jersey plea agreement to suggest otherwise, and with no compelling reason to infer any intent to the contrary, we decline to extend the New Jersey plea agreement beyond its clearly stated terms.") (citation omitted); United States v. Gonzalez, 93 F. App'x 268, 270 (2d Cir. 2004) ("Thus, we conclude omitted"); United States v. Gonzalez, 93 F. App'x 268, 270 (2d Cir. 2004) ("Thus, we conclude omitted"). 1 The defense motions uses the phrase "exact same" when asserting that this rule exists, but it is unclear what precisely that means because it is not a legal term of art, and there are of course complicated considerations when examining the similarity or differences between charges, as Double Jeopardy Clause jurisprudence illustrates. The defendant's motion does not offer a mode of analysis for this nuanced issue, but in any event the Court need not resolve the question of whether the charges in the NPA are indeed the "exact same," because the NPA does not apply at all in this District. **Footer:** DOJ-OGR-00004716