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Case 22-1426, Document 59, 02/28/2023, 3475902, Page48 of 113

other offenses that were the subject of the FBI and U.S. Attorney’s Office
investigation, and any offenses that arose from the related grand jury
investigation.” A144. Consequently, the charge is not “sufficiently distinct,”
Annabi does not apply, and the USAO-SDNY was bound by the NPA not to bring
this charge. Count Six should be dismissed.

4. There is affirmative indication that the NPA binds the USAO-SDNY

The Annabi rule’s presumption is unavailing by its own terms where “it
affirmatively appears that the agreement contemplates a broader restriction.”
Annabi at 672.

Here, the “affirmative appearance” that a broader restriction was intended
for co-conspirators is evident within the four corners of the NPA, when the NPA is
viewed as a whole. Unlike the agreement in Annabi and Abbamonte, the NPA is in
written form and was carefully negotiated by sophisticated counsel. The absence of
any limiting language in the co-conspirator immunity provision stands in sharp
contrast to the NPA’s provision regarding the non-prosecution of Epstein, which is
expressly limited to prosecution “in this District.” A175. It is difficult to envision a
clearer “affirmative appearance” than the express inclusion elsewhere in the
agreement of a limitation that is conspicuously absent here. Basic principles of
contract interpretation require an inference that the parties considered the inclusion
of the phrase “in this District” necessary to limit the scope of the non-prosecution

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