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Case 22-1426, Document 117, 11/01/2024, 3636586, Page18 of 51

immunity by “the United States” is to be construed against the defendant—binding
just one USAO rather than the Government as a whole, “unless it affirmatively
appears that the agreement contemplates a broader restriction.” 771 F.2d at 672.
Annabi did not explain or acknowledge its departure from this longstanding doctrine.

This Court has been exceedingly reluctant, until now, to affirm a conviction
on the force of Annabi’s reasoning. Previous decisions from this Court that cited
Annabi have done so essentially in dictum (as in cases involving unambiguous plea
agreements, which do not require resort to Annabi’s canon of construction),5 or for
points unrelated to whether an agreement with one USAO will bind another,6 or—
in one case—in an unpublished decision that provided too little information to clarify
whether the plea agreement as a whole was ambiguous.7

Annabi’s analytical faults support limiting application of the rule. Cf. Egbert
v. Boule, 142 S.Ct. 1793, 1803 (2022) (where underlying precedent may have been

5 See U.S. v. Prisco, 391 F. App’x 920, 921 (2d Cir. Sept. 2, 2010) (agreement stated it was “limited to the United States Attorney’s Office for the District of New Jersey and cannot bind other federal, state, or local authorities”); U.S. v. Ashraf, 320 F. App’x 26, 28 (2d Cir. Apr. 6, 2009) (agreement, “by its express terms, bound only the U.S. Attorney’s Office for the Eastern District of Virginia”); U.S. v. Gonzales, 93 F. App’x 268, 271 (2d Cir. Mar. 24, 2004) (agreement “explicitly states that the agreement binds only the United States Attorney’s Office for the District of New Mexico”); U.S. v. Salameh, 152 F.3d 88, 119, 120 (2d Cir. 1998) (“[T]his agreement is limited to the United States Attorney’s Office for the Eastern District of New York and cannot bind other federal, state or local prosecuting authorities.”); U.S. v. Russo, 801 F.2d 624, 626 (2d Cir. 1986) (“[W]e need not resolve the question whether the Southern District is bound by this particular plea agreement....”); U.S. v. Persico, 774 F.2d 30 (2d Cir. 1985), aff’g 620 F.Supp. 836, 846 (S.D.N.Y. 1985) (“Persico’s plea agreement explicitly states that it ‘is binding on the United States only in [the Eastern] district’”) (brackets in original).

6 See U.S. v. Reiter, 848 F.2d 336, 340 (2d Cir. 1988) (discussing double jeopardy issue); U.S. v. Rivera, 844 F.2d 916, 923 (2d Cir. 1988) (plea agreement and later charges arose in the same district, unlike Annabi); U.S. v. Nersesian, 824 F.2d 1294, 1321–22 (2d Cir. 1987) (case related to Annabi itself).

7 See U.S. v. Brown, Nos. 99-1230(L), 99-1762, 2002 WL 34244994, at *2 (2d Cir. Apr. 26, 2002).

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