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Case 1:20-cr-00330-PAE Document 293 _ Filed 05/25/21 Page17 of 32 Southern District of New York indictment because they arose out of “the same conspiratorial agreement that underlay the charges dismissed in the Eastern District.” Jd. at 672. The Second Circuit rejected this argument finding that, as a general rule, a plea agreement only binds the prosecutor’s office that entered into the agreement, unless it “affirmatively appears that the agreement contemplates a broader restriction.” /d. However, the Court highlighted the apparent anomaly of this rule, noting that an agreement with “the Government” to dismiss counts of an indictment “might be thought to bar the United States from reprosecuting the dismissed charges in any judicial district unless the agreement expressly limits the scope of the agreement to the district in which the dismissed charges are initially brought.” Id. The Court further explained that application of the “affirmative appearance” rule was nevertheless appropriate because it had not been presented with a situation where the counts in the second prosecution were identical to the dismissed counts. /d. Although the defendants had argued that the charges in Counts One and Three of the SDNY indictment “result[ed] from the same conspiratorial agreement” as the dismissed counts in the EDNY indictment, the Court found that the SDNY charges covered conduct “extending more than two years beyond the date of the period covered by the dismissed charges,” are were therefore “not the same as the charges that were dismissed.” /d. As a result, the Court found that the default rule could be applied in that case. /d. (“[T]he new charges are sufficiently distinct at least to warrant application of the ... rule concerning construction of plea agreements.”). Annabi, therefore, did not hold that the “affirmative appearance” rule of construction applies in cases, like this one, where one federal district has agreed that “the United States” will abandon certain offenses as part of a negotiated agreement, and then a second federal district later seeks to charge those very same offenses based on the exact same conduct. By its own 13 DOJ-OGR- 00004282