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10a
The only language in the NPA that speaks to the
agreement's scope is limiting language.
The negotiation history of the NPA, just as the text,
fails to show that the agreement was intended to bind
other districts. Under our Court's precedent, the
negotiation history of an NPA can support an inference
that an NPA "affirmatively" binds other districts. 14 Yet,
the actions of USAO-SDFL do not indicate that the
NPA was intended to bind other districts.
The United States Attorney's Manual that was
operable during the negotiations of the NPA required
that:
No district or division shall make any
agreement, including any agreement not to
prosecute, which purports to bind any other
district(s) or division without the express written
approval of the United States Attorney(s) in
each affected district and/or the Assistant
Attorney General of the Criminal Division. 15
Nothing before us indicates that USAO-SDNY had
been notified or had approved of Epstein's NPA with
USAO-SDFL and intended to be bound by it. And the
Assistant Attorney General for the Criminal Division
stated in an interview with the Office of Professional
Responsibility that she "played no role" in the NPA,
either by reviewing or approving the agreement.
Florida, prosecution in this District for these offenses
shall be deferred in favor of prosecution by the State of
Florida, provided that Epstein abides by the following
conditions and the requirements of this Agreement set
forth below.
Id. (emphasis added).
14 See United States v. Russo, 801 F.2d 624, 626 (2d Cir. 1986).
15 United States Attorney's Manual § 9-27.641 (2007).
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