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Case 1:20-cr-00330-PAE Document 293 Filed 05/25/21 Page 18 of 32 reasoning, Annabi does not apply in these circumstances, nor do subsequent Second Circuit cases that applied the Annabi rule. See, e.g., United States v. Salameh, 152 F.3d 88, 118-20 (2d Cir. 1998) (defendant pled guilty in EDNY to using the passport of another person to enter the United States and later charged in SDNY with related, but distinct terrorism offenses); United States v. Gonzalez, 93 F. App’x 268, 269-70 (2d Cir. 2004) (defendant pled guilty in the District of New Mexico to drug conspiracy and later charged in the Western District of New York with related, but distinct weapons possession offense). The Court should not apply them here. Instead, the Court should follow the Third Circuit’s approach in United States v. Gebbie, 294 F.3d 540 (3™ Cir. 2002), which involved a situation like this one where the charges in the second prosecution were identical to the dismissed charges. In Gebbie, the defendants were charged in a multi-count indictment in the Southern District of Ohio charging them with various offenses related to a scheme to make false statements to the U.S. Postal Service. 294 F.3d at 542. As part of their plea agreement, the defendants pled guilty to misprision of a felony in exchange for dismissal of the counts in the indictment. /d. at 543. The plea agreement further provided that the agreement did not protect the defendants from prosecution for “other crimes or offenses” which “the United States” discovers by independent investigation. /d. at 545-46. A few months after entering their plea, the defendants were charged in the Western District of Pennsylvania with “the same crimes and offenses that were at issue” in the Ohio prosecution. /d. at 546 (emphasis in original). Because the plea agreement barred “the United States” from prosecuting the defendants for the same crimes covered by the agreement, the question for the Court was: “who is bound when a plea agreement refers to ‘the United States’ or ‘the Government’?” /d. In other words, did the use of the term “the United States” in the Ohio plea 14 DOJ-OGR-00004283