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Case 1:20-cr-00330-AJN Document 142 Filed 02/04/21 Page 30 of 38 articulated in Annabi “really has no analytically sound foundation [in Second Circuit case law]. It just keeps replicating itself each time it is cited.” Gebbie, 294 F.3d at 547. It appears that the Second Circuit is the only court of appeals to take the position articulated in Annabi. Given that three circuits have held otherwise—and that one of them has addressed the Second Circuit’s reasoning in Annabi in detail—it is likely that the Eleventh Circuit would follow the weight of authority and hold that absent an express provision to the contrary, a plea agreement or non-prosecution agreement executed in the name of “the United States” binds USAOs in other districts. As previously demonstrated, there is no conflict between this position and Annabi as applied to these facts, because Annabi supports dismissal here. But to the extent that Annabi could be construed as limiting the NPA’s effect to the SDFL, it would be inconsistent with the Eleventh Circuit’s likely disposition of the issue and should not be followed here. We understand that Epstein and his counsel sought to ensure, to the fullest extent possible, that third parties would not face criminal liability in connection with his actions, in part to minimize the likelihood that he would be subpoenaed as a witness. Thus, Epstein and his counsel reasonably understood that, unlike Epstein’s own immunity, the immunity for his alleged co-conspirators from federal prosecution would not be limited to the SDFL. To the extent that the government intended to impose such a limitation, it was the obligation of the government, in drafting the agreement, to ensure that such limitations were included. Having failed to do so, the government may not now ask this Court to read limitations into the co-conspirator immunity provision that it did not include at the time the NPA was negotiated. 25 DOJ-OGR- 00002602