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Case 1:20-cr-00330-PAE Document 293 _ Filed 05/25/21 Page 20 of 32 progeny do not control.* The Court should instead follow Gebbie and find that NPA precludes the USAO-SDNY from charging Counts Five and Six. This result is consistent with the terms and the drafting history of the NPA. As noted in our previous motion, the use of the phrase “the United States” in the co-conspirator immunity provision of the NPA stands in stark contrast to Epstein’s immunity provision, which is expressly limited to the SDFL. (Dkt. 223 at 9-10). The broad language of the co-conspirator provision reflects Epstein’s desire, which his attorneys communicated to the USAO-SDFL, that he would be “the only one who takes the blame for what happened” (Ex. A, OPR Report at 167 (internal quotations omitted)). Furthermore, it is consistent with Epstein’s goal “to resolve globally his state and federal criminal liability,” which is set forth in the factual recitals of the NPA. (Ex. B at 2 of 7; see also Ex. D § 5 (declaration of AUSA A. Marie Villafafia noting that Epstein “sought a global resolution of the matter”). Epstein and his counsel were clearly aware that the investigation had extended beyond the SDFL and involved New York-based witnesses. Indeed, we now know from discovery recently produced by the government that the government interviewed at least three New York-based witnesses in connection with the Florida Investigation, two of whom implicated other potential co-conspirators of Epstein. (Exs. E-G). Hence, these provisions of the NPA reflect Epstein’s desire to ensure that he would not become embroiled in subsequent prosecutions of his “potential co-conspirators” in any other districts. (Dkt. 223 at 11). Moreover, this result is consistent with fundamental fairness. Allowing a federal district to prosecute a defendant for an offense that is identical to one that was already resolved as part of * For the same reasons, the Court is not bound by subsequent Second Circuit decisions interpreting Annabi, which have found that the use of phrases like “the United States” or “the government” in a plea agreement does not create an “affirmative appearance” to bind other districts. See Salameh, 152 F.3d at 120; Gonzalez, 93 F. App’x at 270; United States v. Brown, No. 99-1230(L), 2002 WL 34244994, at *2 (2d Cir. Apr. 26, 2002). 16 DOJ-OGR-00004285