DOJ-OGR-00021079.jpg

Case 22-1426, Document 59, 02/28/2023, 3475902, Page32 of 113 untenable reading without even granting Defendant’s request for discovery or a hearing to determine the scope of the agreement. To support its creative reading of the NPA, the court relied on U.S. v. Annabi, 771 F.2d 670 (2d Cir. 1985) (per curiam). That case warrants close attention. In Annabi, the defendants were charged under a three-count indictment in the Eastern District of New York with conspiring to import, importing, and possessing heroin with intent to distribute. See 771 F.2d at 671. After they pled guilty to the substantive importation charge, the prosecutor represented to the court that “the only agreement that exists between defendants and the Government is that at the time of the imposition of sentence ..., the Government would move to 3 dismiss the two open remaining counts...”. /d. Accordingly, the conspiracy and possession counts were dismissed. See id. Subsequently, the defendants were indicted in the Southern District of New York with conspiracy to distribute heroin. See id. Whereas the dismissed EDNY charges had only alleged a conspiracy on or about a date in 1982, the new SDNY charges alleged criminal conduct extending from 1982 to 1985. The defendants argued that these new charges were barred by their plea agreement with the USAO-EDNY. See id. The court conducted an evidentiary hearing—obtaining testimony from both the prosecutor and the defense attorney from the Eastern District proceedings—and concluded that the agreement was not meant to bind the USAO-SDNY. See id. The Second Circuit noted that DOJ-OGR-00021079