DOJ-OGR-00002603.jpg

Case 1:20-cr-00330-AJN Document 142 Filed 02/04/21 Page 31 of 38 es The NPA’s Prohibition on the Prosecution of Potential Co-Conspirators Is Not Limited to Prosecution for Conduct Between 2001 and 2007 or for Particular Statutory Offenses. Finally, the government has characterized the NPA’s co-conspirator immunity provision as “limited by its terms to conduct spanning from 2001 to 2007 . . . and to violations of statutes not charged in this Indictment.” Reply Mem. at 5-6. This characterization is grossly inaccurate. The co-conspirator immunity provision contains no limitation as to either the time period or the statutes on which such criminal charges might be based." Just as the NPA deviates from the standard agreement in failing to include language limiting its scope to the SDFL, it also deviates from the standard agreement by failing to specify the conduct, including the time period, for which the putative defendant—or, in this case, potential co-conspirators—cannot be prosecuted. As with its failure to limit the co-conspirator immunity provision to the SDFL, the government may not now rewrite the NPA to limit the scope of covered conduct in a manner that it failed to do in drafting the NPA. At minimum, the absence of any such limitation renders the scope of the provision ambiguous, and any ambiguity must be construed against the government. See Feldman, 939 F.3d at 189. While the NPA’s factual recitals reference the 2001-07 time period and list five potential statutory offenses, the NPA’s substantive provisions establish no such limit on the immunity for potential co-conspirators—or, for that matter, for Epstein himself—to either that time period or those offenses. As to Epstein, the NPA provides immunity for (i) “any offenses that arose” from the undefined “Federal Grand Jury investigation” and (ii) “any other offenses that have been the subject of the joint investigation by the Federal Bureau of Investigation and the United States * The government's assertion that the co-conspirator immunity provision is limited to “violations of statutes not charged in this Indictment” (Reply Mem. at 6) is incorrect for the additional reason that both the NPA and the current indictment (“Indictment”) reference violations of the Mann Act. Compare NPA at | (citing 18 U.S.C. §§ 2422(b), 2423(b), 2423(e)) with Indictment {J 10 (alleging conspiracy to violate § 2422(a)) and 15 (alleging conspiracy to violate § 2423(a)). 26 DOJ-OGR-00002603