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Case 22-1426, Document 117, 11/01/2024, 3636586, Page6 of 51 INTRODUCTION AND RULE 35(B)(1) STATEMENT En Banc may be ordered when, as here, the panel decision was based on a decision of this Court that it was not permitted to overrule.! That decision, United States v. Annabi, 771 F.2d 670 (2d Cir. 1985) (per curiam), created a canon of construction for interpreting plea agreements that conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue and stands in tension with what the Supreme Court and this Circuit have written about plea and immunity agreements. Annabi holds that “a plea agreement binds only the office of the United States Attorney for the district in which the plea is entered unless it affirmatively appears that the agreement contemplates a broader restriction.” Annabi at 672. This default rule necessarily conflicts with the long-standing rule in this circuit (and others) that plea agreements are to be construed “strictly against the Government.” United States v. Padilla, 186 F.3d 136, 140 (2d Cir. 1999) (quoting United States v. Ready, 82 F.3d 551, 558-59 (2d Cir. 1996). United States v. Johnson, 93 F.4th 605, 616-617 (2024). See also United States v. Difeaux, 163 F.3d 725, 728 (2d Cir. 1998) (“The reviewing court must ... construe ambiguous ' A panel is bound by the decisions of prior panels until such time as they are overruled either by an en bance panel of our Court or by the Supreme Court See United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004). DOJ-OGR-00021830