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Case 22-1426, Document 117, 11/01/2024, 3636586, Page19 of 51

doctrinally flawed, expanding it into “new…context[s]” would be “a disfavored judicial activity”) (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1857, 1859 (2017)). At minimum, Annabi’s questionable doctrine should limited in four respects:

First, Annabi should not apply to pleas that originate outside the Second Circuit. Unlike the plea agreement in Annabi, the NPA originated in the Eleventh Circuit. Under textbook choice-of-law rules and principles of fairness, it would be unreasonable to graft a unique, pro-prosecution canon of construction, derived from the law of a foreign circuit—this circuit—onto a plea agreement negotiated with prosecutors in a circuit where the very opposite rule applies, i.e. that ambiguities in plea agreements are to be resolved against the government. Under Eleventh Circuit precedent, even if the reference to “the United States” were deemed ambiguous, the ambiguity “must be read against the government.”” U.S. v. Jefferies, 908 F.2d 1520, 1523 (11th Cir. 1990) (citing In re Arnett, 804 F.2d 1200, 1203 (11th Cir. 1986)); see also Rowe v. Griffin, 676 F.2d 524, 526 n.4 (11th Cir. 1982). And this result would bring the Eleventh Circuit in line with every circuit that has directly confronted this question (other than the Second Circuit). See Gebbie, 294 F.3d at 550; Van Thournout, 100 F.3d at 594; Harvey, 791 F.2d at 303.

Second, Annabi should only apply when “the new charges are sufficiently distinct” from the old ones. 771 F.2d at 672. And Annabi made clear that charges are “sufficiently distinct” when they cover a different or expanded period of time.

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