20250728111721067_24-1073ReplyInSupportOfPetitionForWritOfCertiorari.pdf

No. 24-1073
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
IN THE
Supreme Court of the United States
————
GHISLAINE MAXWELL, AKA SEALED DEFENDANT 1,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
————
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Second Circuit
————
REPLY IN SUPPORT OF
PETITION FOR WRIT OF CERTIORARI
————
DAVID OSCAR MARKUS
Counsel of Record
MONA MARKUS
MARKUS/MOSS PLLC
40 N.W. Third Street
Penthouse One
Miami, FL 33128
(305) 379-6667
dmarkus@markuslaw.com
Counsel for Petitioner
July 28, 2025

(i)
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................ ii
REASONS FOR GRANTING THE PETITION .... 1
I. The government concedes that the
circuits are split as to whether a promise
on behalf of the “United States” by a
United States Attorney’s office in one
district is binding upon other districts. ... 2
II. The Second Circuit’s decision below is
wrong and violates the principles set
forth in this Court’s prior opinions. ......... 4
III. This case is an ideal vehicle for resolving
the split over this important and
recurring question. ................................... 11
CONCLUSION .................................................... 11

ii
TABLE OF AUTHORITIES
CASES Page(s)
Prisco v. United States,
562 U.S. 1290 (2011), No. 10-7895 ........... 2
Santobello v. New York,
404 U.S. 257 (1971) ................................... 4, 6
Thomas v. INS,
35 F.3d 1332 (9th Cir. 1994) ..................... 2
United States v. Andreas,
216 F.3d 645 (7th Cir. 2000) ..................... 10
United States v. Annabi,
771 F.2d 670 (2d Cir. 1985) ...................... 3
United States v. Carmichael,
216 F.3d 224 (2d Cir. 2000) ...................... 6
United States v. Florida West Int’l Airways,
853 F.Supp.2d 1209 (S.D. Fla. 2012) ....... 10
United States v. Johnston,
199 F.3d 1015 (9th Cir. 1999) ................... 2
United States v. Maxwell,
118 F.4th 256 (2d. Cir. 2024) .................... 2
OTHER AUTHORITIES
Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of
Legal Texts (2012) .................................... 5

REASONS FOR GRANTING THE PETITION
This case presents a straightforward and important
question about the government’s obligation to honor
its promises in plea and non-prosecution agreements.
The petition asks whether a U.S. Attorney’s promise
made on behalf of “the United States” binds the entire
United States. The government’s Brief in Opposition
only underscores the importance of this question.
Most significantly, the government concedes a
circuit split on this issue, effectively admitting that
defendants’ rights hinge on the happenstance of
geography. Opp.13. Such an acknowledged conflict
among the circuits demands this Court’s intervention.
Rather than grapple with the core principles of plea
agreements, the government tries to distract by
reciting a lurid and irrelevant account of Jeffrey
Epstein’s misconduct. But this case is about what the
government promised, not what Epstein did.
Even more remarkably, the government advances an
interpretation of its non-prosecution agreement that
flips its plain meaning on its head. Promising “not to
prosecute” somehow meant preserving the right to
prosecute. That is not contract interpretation; it is
alchemy. Plea agreements are supposed to be strictly
construed against the government, yet here the
government isn’t even asking for the benefit of the
doubt; it is asking for a blank check to rewrite its own
promise after the fact. The government’s only real
argument is that the Second Circuit rule is correct on
the merits while the other circuits have it wrong. We
obviously disagree, but regardless, the Court should
grant certiorari so that all circuits employ that same rule.

2
This circuit split presents an exceptionally important
question. Plea and non-prosecution agreements resolve
nearly every federal case. They routinely include
promises that extend to others—co-conspirators, family
members, potential witnesses. If those promises mean
different things in different parts of the country, then
trust in our system collapses. The Court should grant
certiorari and restore consistency, and credibility, to
the government’s word.
I. The government concedes that the circuits
are split as to whether a promise on behalf
of the “United States” by a United States
Attorney’s office in one district is binding
upon other districts.
The government (like the Second Circuit in the
opinion below) agrees that there is a clear circuit split
on the precise question posed by this Petition. Opp.13;1
United States v. Maxwell, 118 F.4th 256, 263 n.11
(2d. Cir. 2024) (“recogniz[ing] that circuits have been
split on this issue for decades.”). As the Second Circuit
noted, this conflict is well-documented and longstanding.
Indeed, the government points out that litigants have
sought the Court’s clarification of this issue at least
as far back as 2011, when this Court denied certiorari
in Prisco v. United States, 562 U.S. 1290 (2011), No.
10-7895.
1 The United States argues that the split is 3-2 in favor of
Petitioner, not 4-2, claiming that that the “Ninth Circuit has not
expressly addressed the matter at issue here.” Opp.13. While not
express, the Ninth Circuit is pretty clear that it agrees with
Petitioner’s position, holding that a U.S. Attorney can bind other
districts and agencies, Thomas v. INS, 35 F.3d 1332 (9th Cir.
1994), and when in doubt, “the government must bear respon
sibility for any lack of clarity in those terms,” United States v.
Johnston, 199 F.3d 1015, 1020 (9th Cir. 1999).

3
The government seeks to minimize the split as of
“limited importance” because “the scope of a plea or
similar agreement is under the control of the parties
to the agreement.” Opp.14. This turns a blind eye
to the problem. The very premise of Petitioner’s
argument is that the parties to the NPA did seek to
control the scope of the relevant clauses by narrowing
the scope of immunity for Epstein through the use of
narrow language specifying enforceability only in the
Southern District of Florida, and then expanding the
scope of it as to his co-conspirators by using the broad
term “the United States.” (App. 30-31). While doing so,
Epstein’s lawyers were no doubt informed by how that
language was interpreted in the jurisdiction in which
they were practicing.
Yet by definition, the issue presented in this case
and every other like it only arises when the language
in question is being interpreted in a different
jurisdiction than the one where the agreement was
negotiated. Accordingly, uniformity in interpretation
of such a provision is unusually and particularly
compelling. The very nature of a clause of this nature
(unlike most other clauses in an agreement, which are
not cross-jurisdictional in nature) cries out for
nationwide symmetry.
The government also contends, rather bizarrely, that
“this is not itself a case that turns on any default rule.”
Opp.14. To the contrary, it is precisely the Second
Circuit’s default rule, adopted in United States v.
Annabi, 771 F.2d 670 (2d Cir. 1985), that doomed
Petitioner to stand trial on a case that would have been
dismissed outright in at least half the country. The
primary reason this Court should grant certiorari is to
create one single default rule across the country as to

4
what parties mean when they use the term “the
United States” without further qualification.
II. The Second Circuit’s decision below is wrong
and violates the principles set forth in this
Court’s prior opinions.
In attempting to defend the Second Circuit’s out
come, the government advances a series of contentions
about the Epstein NPA’s scope, the U.S. Attorney’s
authority, contract law doctrines, and canons of con
struction. Each lacks merit.
As the government acknowledges, Opp.8, the start
ing point in any contract is the text. Here, the text
could not be more clear. In exchange for Epstein’s
guilty plea and other penalties and concessions,
“the United States also agrees that it will not
institute any criminal charges against any potential
co-conspirators of Epstein, including but not limited
to [four names].” (emphasis added).
This promise is unqualified. It is not geographically
limited to the Southern District of Florida, it is not
conditioned on the co-conspirators being known by the
government at the time, it does not depend on what
any particular government attorney may have had in
his or her head about who might be a co-conspirator,
and it contains no other caveat or exception. This
should be the end of the discussion. See Santobello v.
New York, 404 U.S. 257 (1971) (“[W]hen a plea rests in
any significant degree on a promise or agreement of
the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be
fulfilled.”) (ignored by the government in its opposition).
The government seeks to evade this straightforward
language by focusing on other clauses in the NPA and
on extrinsic context, Opp.8-10, but its efforts only

5
underscore that the plain meaning favors Petitioner.
First, the government notes (as did the Second Circuit)
that the NPA explicitly limited Epstein’s own immunity
to the Southern District of Florida, pointing to a clause
stating that after Epstein fulfilled the agreement, “no
prosecution for the offenses set out on pages 1 and 2 of
this Agreement… will be instituted in this District.”
(App. 26a). The government then urges the Court to
follow it through the looking glass, offering the
inexplicable suggestion that the absence of a similar
“in this District” qualifier in the co-conspirator clause
should be ignored as immaterial. Opp.9.
Of course, basic interpretive canons point in exactly
the opposite direction. When parties include an
express territorial limitation in one clause of a
contract and omit it in another, the omission must be
presumed intentional. Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal
Texts (2012). As Justice Scalia and Bryan Garner have
explained, “a material variation in terms suggests a
variation in meaning.” Id. at 170. Here, the drafters
knew how to confine the promise to a single district –
they did so for Epstein’s personal non-prosecution
assurance. Yet when it came to Epstein’s “potential
co-conspirators,” the drafters chose broad, unqualified
language. In fact, not only did the parties use an
unrestricted jurisdictional clause for the co-conspirators,
they amended the document from a previous draft in
which the co-conspirator immunity was limited to the
Southern District of Florida, changing it to refer more
broadly to the “United States.” (Pet. 3; App. 95, 108-126).
The government’s interpretation cannot be correct
because it would render superfluous the phrase
“in this District” in the Epstein clause. If the “United
States” means just the Southern District of Florida,

6
why specify the district for Epstein? The only logical
inference is that the co-conspirator promise was
meant to reach more broadly, in line with its different
phrasing.2
At the very least there is a textual ambi
guity, and under Santobello and the contract inter
pretation principle contra proferentum, such ambigu
ity must be construed against the government as
the drafter and promisor. See, e.g., United States v.
Carmichael, 216 F.3d 224 (2d Cir. 2000) (“[W]e
‘construe plea agreements strictly against the Govern
ment.’”) (internal citation omitted); OPR report
(“OPR”) at 80, 166 (confirming that AUSA wrote the
specific language in question). Under any normal
reading of this contract, then, no federal charges can
be brought against any co-conspirator in any district
in the United States.
Reading the NPA “as a whole” means giving effect to
the deliberate difference in phrasing between the
Epstein-focused clause and the co-conspirator clause.3
2 It is not, as the government contends, “extremely strange” for
Epstein to have secured broader immunity for his co-conspirators
than he was getting for himself, Opp.9. Defendants always try to
get as many benefits in a plea agreement as they can – here,
Epstein was able to obtain an additional benefit for his co
conspirators that he was unable to secure for himself, no doubt
because the government attorneys “wouldn’t have been interested
in prosecuting anyone else.” OPR:70; see also OPR:80, 168.
Epstein “wanted to make sure that he’s the only one who takes
the blame for what happened.” OPR:167 (internal quotation
omitted). In addition, Epstein was concerned that if a co-conspirator
was charged elsewhere, he might be called to testify, opening him
up to potential charges in a different part of the country. This was
antithetical to the global resolution Epstein sought.
3 The government is right about one thing: the scope of a
particular agreement is under the control of the parties. Opp.14.
As the National Association of Criminal Defense Lawyers observes
in its amicus brief, federal prosecutors know well how to draft

7
It means recognizing that when the parties intended
to mean “only in the Southern District of Florida,”
they said so explicitly, and that their use of the
all-encompassing term “the United States” in the
co-conspirator clause was purposeful.
The government’s invocation of “context” and the
purported purpose of the NPA is no more persuasive.
The government suggests that a broad grant of
immunity cannot have been made because there
was no consultation with the Southern District of
New York. Opp.10. The record does not permit such a
conclusion, as the district court denied a hearing and
the Petitioner was not granted any discovery, so there
is no way to confirm who was consulted. But the record
is clear in any event that the NPA was signed on behalf
of the United States Attorney for the Southern District
of Florida, who was heavily involved in the negotiation
and approval process. In addition, representatives of
the Department of Justice were also actively involved
in the drafting and approval process, including the
Chief of the Child Exploitation and Obscenity Section
and the Principal Deputy Assistant Attorney General
for the Department’s Criminal Division. OPR:27, 28, 84.
If these officials failed to do what their internal
policy suggested was appropriate, it is irrelevant. The
provision in the U.S. Attorneys’ Manual advising U.S.
Attorneys not to bind other districts was relevant in
OPR’s review of the government attorneys’ actions
in this case. It does not inform the outcome here,
however, despite the government’s heavy reliance on it
agreements to limit their scope when that is what they intend,
and the burden is on them to be specific. When they decline to use
simple narrowing terms, this Court should make clear that the
broad language they use will be given its ordinary meaning.

8
throughout its brief. What a prosecutor should have
done is not relevant; whether or not the Southern
District of Florida should have prohibited the
Southern District of New York from prosecuting
Ghislaine Maxwell, it clearly did so.
Nor can the government’s appeal to context exclude
Petitioner from the clear “including but not limited to”
language which unmistakably signaled an intent to
cover all “potential coconspirators,” not just those
who were specifically named. Indeed, the broad
“including but not limited to” clause shows the parties
contemplated both known and unknown accomplices,
and it was the government who drafted in the “final
broad language,” intentionally declining to further
enumerate individuals. OPR:70,166. The purpose
was to assure Epstein that pleading guilty would
protect all his associates from federal prosecution4
–
effectively “closing” the federal case completely.5
That
purpose is perfectly consistent with the plain text; it is
the government’s after-the-fact spin that is inconsistent,
4 The government cherry picks snippets of testimony from
the OPR report, many of which are inconsistent with other
statements from the same government attorneys, or which offer
the perspective of those who admitted to unclear memories, or
who were on vacation or otherwise disengaged at the relevant
time. App.108, OPR: 36-37. There was a lengthy back-and-forth
negotiating process to the inclusion of this clause, some of it
recorded by the OPR report, some not. See OPR:36. None of this
is relevant; the document says what it says in plain language,
so the after-the-fact and self-serving statements of various
participants to the process should be ignored.
5 The OPR is riddled with statements reflecting that the
government was very concerned about the strength of its case,
that it had doubts it would result in a guilty verdict, and that
many of the alleged victims did not want any aspect of the case to
go to trial. See, e.g., OPR:28, 29, 36, 37, 14, 147.

9
attempting to import unwritten limits that the deal
makers did not include.
The government’s argument, across the board, is
essentially an appeal to what it wishes the agreement
had said, rather than what it actually says. Of course,
if wishful thinking were the standard, the whole NPA
would have been thrown out long ago. The government
has spent years lamenting that agreement, and
initiated a massive OPR investigation into its execution
which resulted in OPR’s conclusion that the attorneys
who negotiated it on behalf of the government did
many things contrary to internal government policy
and typical practice. (App.55) (district court order
noting OPR’s findings that the NPA was “unusual in
many respects, including its breadth, leniency, and
secrecy.”); see also, e.g., App. 99.
The entire co-conspirator provision itself (putting
aside the issue of the jurisdiction(s) in which it is
enforceable) was, according to OPR, unusual for such
an agreement (App. 125). But, as the amicus notes, the
fact that the deal was unconventional does not license
the government (or the courts) to rewrite it to conform
to ordinary or preferred governmental practice. Amicus
Br. 5. To the contrary, it underscores that Epstein’s
negotiators sought, and obtained, an expansive guarantee.
The government also suggests that Petitioner is not
entitled to enforce the NPA because she was not a
party to it and was not named in it. Opp.15. But as the
court below recognized and as hornbook contract law
dictates, Maxwell has standing to enforce the agreement
as a third party beneficiary. App.10. Petitioner falls
squarely within the class of persons – “any potential
co-conspirators of Epstein” – that the NPA expressly
protected. She is therefore an intended beneficiary
of the agreement, and she has standing to enforce it.

10
See, e.g., United States v. Andreas, 216 F.3d 645, 663
(7th Cir. 2000) (providing that individuals who are not
parties to a plea agreement may enforce it, like other
third-party beneficiaries, when the original parties
intended the contract to directly benefit them as third
parties).
Petitioner’s alleged status as Epstein’s co-conspirator
was the entire basis of her prosecution. The NPA’s
language demonstrates that the parties anticipated
that there were additional co-conspirators beyond
those already known. By using “including but not
limited to” before naming some individuals, the
government knowingly extended the benefit of the
bargain to other unnamed individuals who partici
pated in Epstein’s offenses. Whether the government
attorneys personally knew the identities of every such
person is beside the point; they certainly knew there
could be others (hence the language). Ghislaine Maxwell’s
name was well known to Epstein’s circle and was
referenced in public reporting at the time of the NPA.
But even if she had been entirely unknown, the broad
language of the NPA evidences an intent to cover
whoever might later be deemed a co-conspirator.
Accordingly, Petitioner can rely on the immunity
clause in the NPA. See, e.g., United States v. Florida
West Int’l Airways, 853 F.Supp.2d 1209, 1228 (S.D. Fla.
2012) (dismissing indictment against employee who
fell within the class of employees described in plea
agreement).
The government’s suggestion that it would have
drafted the agreement differently had it specifically
had Petitioner in mind is both unprovable and
irrelevant. If anything, the inclusion of specific names
alongside a general category shows the parties knew
some of the players and also wanted to cover any

11
others to prevent any federal prosecution of Epstein’s
circle. Whether or not this was wise, it was the deal,
and Petitioner is entitled to enforce it.
III. This case is an ideal vehicle for resolving
the split over this important and
recurring question.
It is hard to imagine a more compelling scenario for
this Court’s review: for decades now, the same federal
promise has yielded opposite results in different
jurisdictions, undermining the uniformity of federal
law and the integrity of plea bargains nationwide. This
Court’s review is warranted.
CONCLUSION
For the foregoing reasons, this Court should grant
the petition for certiorari.
Respectfully submitted,
DAVID OSCAR MARKUS
Counsel of Record
MONA MARKUS
MARKUS/MOSS PLLC
40 N.W. Third Street
Penthouse One
Miami, FL 33128
(305) 379-6667
dmarkus@markuslaw.com
Counsel for Petitioner
July 28, 2025