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Case 22-1426, Document 87, 07/27/2023, 3548202, Page17 of 35

Justice, sent additional comments on the NPA ‘s final draft. SA110. That afternoon, the final version was circulated and signed.

C. The Court’s Failure to Hold a Hearing on the Scope of the Non-Prosecution Agreement is an Error.

What is significant with regard to this issue is the lack of a sufficient record. Given that the District Court ignored the plain language of the co-conspirator clause together with the corroborating evidence from the OPR that establishes that that language was changed to remove rather than add words of limitation, the District Court’s decision to apply Annabi’s rule of construction without a hearing was an error. This is especially so because the OPR was lacking in relevant information from defense counsel as to their understanding of the agreement and, in the absence of such information, the District Court was obligated to resolve any ambiguities in favor of Ms. Maxwell.

The Government argues that, based upon Annabi, there is no need for a hearing. But, in fact, courts in this Circuit have routinely recognized the need for evidentiary hearings where the scope of an agreement is in dispute. The failure to hold a hearing precluded Ms. Maxwell from offering evidence as to the intent and understanding of defense counsel; as a result, the Court did not construe the NPA against the Government, as the law requires, but against Ms. Maxwell. See United States v. Difeaux, 163 F.3d 725, 728 (2d Cir. 1998). A reviewing court must read the

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