DOJ-OGR-00003887.jpg

Case 1:20-cr-00330-PAE Document 223 Filed 04/20/21 Page14 of 23 alternative explanation for this difference in terminology, reasonable or otherwise—presumably because it cannot. Thus, a drafting prosecutor who intended to limit the co-conspirator immunity provision to the SDFL clearly knew how to do so, using either of two methods employed elsewhere in the document. The government could have used the same language in the co-conspirator immunity provision that it used in the Epstein immunity provision, providing that “the United States . . . will not institute any criminal charges in this District against any potential co-conspirators of Epstein.” It did not. Alternatively, it could have referred expressly to the USAO-SDEL, as it did elsewhere in the NPA, and provided that “the United States Attorney’s Office . .. will not institute any criminal charges against any potential co-conspirators of Epstein.” Again, it did not. It would be absurd to conclude that a reasonable prosecutor who had used both drafting tools to limit other provisions of the NPA, yet failed to use either of them in the co-conspirator immunity provision, intended to impose the same limitations on the co-conspirator immunity provision—let alone that Epstein would reasonably have understood this intent. The government’s inability to provide a reasonable alternative explanation for its use of different language in the different provisions of the NPA removes any potential ambiguity from the co-conspirator immunity provision. But to the extent there remains any doubt, plea agreements must be construed “strictly against the government,” Feldman, 939 F.3d at 189 (internal citations omitted), and the government is held “responsible for imprecisions or ambiguities in the agreement.” United States v. Padilla, 186 F.3d 136, 142 (2d Cir. 1999). While the government argues that Annabi relieves it of this responsibility where the “imprecisions or ambiguities” relate to the geographic applicability of a plea agreement (Opp. 6 n.2), it cites no authority for this proposition. While Annabi requires an affirmative appearance 10 DOJ-OGR-00003887