TED STATES CT COURT-8.7 OUTHERN OF YORK-8.7 TED STATES Defend-11.5 ant Cr MEMORANDU-8.8 LAINE MAXWELL IN ORT TION TO EDING7.7 NDICT-13.3 MENT BREACH ECUTION AGREEMENT Mark Cohen Christia4.9 Eve4.9 ll COHEN GRES-4 E1 Third Avenue-6.5 New York NY Phone e3 ffre-17 a3 g9 liuc-7 a A HADDON MORG-8.6 AN REMAN East 10th Avenue-6.3 Denver Color-7.4 do Phone obbi Sternheim fices of obbi Sternheim st 19th Street 4th New rk Phone Attorne4.5 for Ghislaine4.5 Max4.5 Case Document Filed Page of i TABLE CON3.6 TENT8.5 age-6 PRE-9 NARY STAT-9 ENT STATEMENT OF6 F6 A2 T1 A The Structure of NPA The otiation of the A ARGUM4.5 ENT I nt ld A Ms ell Has Standi7.7 to rce the The NPA Prohibition on Prosecution of Pote4.7 ntia4.7 Co-Conspira4.7 tors Not imited to the SDFL11.1 The NPA is binding9.4 on US AO in this District United States Annabi does not alter the a There an appear-9.6 onspi-4.6 immunit-11.8 provision was intended outside-5.8 the SDFL11.2 The Second Circuit equent application of nabi supports Ms ell position.10.1 To the4.8 nt tha4.8 Annabi onflic4.6 ts with Ele4.6 th Circ4.6 uit event-3.7 rcui-3.7 and woul-3.7 requi-3.7 re forcem-13.7 of the NPA The NPA Prohibition on the Prosecution of Potential Co-conspirators Not imited to Prosecuti-12 on for onduct Between and or for Particular Statutor-7.1 nses II10 the Alternative Court Should Pe rmit Discover-17.2 and onduct an entiar-17.3 Hearin-10.7 gardin-10.7 the Parties CONC-13 U2 Case Document Filed Page of ii TABLE THORITIES7.4 Cases Advani Enters Inc nderwriters at Lloyds F6 3d 2d Cir Bochese Ponce F6 3d 11th Cir Chen St Street Beat portswear Inc F6 Supp 2d D2 N.Y Crutsinger Hess Supp Florida Power Light Co Mid-Valley Inc F6 2d 11th Cir Giglio United States U.S In ild 3d 11th reh en granted,-10.7 opinion vacated F6 11th Cir Index Fund Ins Co of Am F6 2d 2d Cir Innes Dalsheim,-10.7 F6 2d 2d Cir LaSalle Bank Nat Ass Nomura Asset Capital8.5 Corp F6 3d 2d Cir Perez United States,-10.5 Nos Civ Cr S.D.N.Y Port Consol Inc Int Ins Co of Hannover App 11th Cir Santobello New ork,10 U.S Subaru Distribs Corp Subaru of Am Inc F6 3d 2d Cir Case Document Filed Page of United States Aleman,-10.4 F6 3d 2d Cir United States Annabi F6 2d 2d Cir pass im United States Ashraf App 2d Cir United States Brown No 2d Cir United States Const Co Supp D.S.C affd F6 2d 4th Cir United States Clement-12.4 F6 2d 2d Cir United States F6 Supp 2d S.D.N.Y United States El-Sadig F6 Supp 2d D2 Ohio United States Feldman-10.4 F6 3d 2d Cir United States Florida st Int Airways Inc F6 Supp 2d S.D F6 a United States Gebbie,-10.7 F6 3d 3d Cir United States Gonzale-6.2 App 2d Cir United States Harve-6.5 F6 2d 4th Cir United States Laskow Supp affd 2d 2d Cir United States Marquez 2d 2d Cir cert denied United States Mozer F6 Supp Y2 Case Document Filed Page of iv United States F6 2d 2d Cir United States Persico Supp aff 2d Cir United States Prisco,-10.3 App 2d Cir United States F6 3d 2d Cir United States Russo F6 2d 2d Cir United States Salameh-10.5 F6 3d 2d Cir United States Sattar No Cr GK Nov United States Van Thornout F6 3d 8th Cir United States F6 3d 2d Cir U.S.C U.S.C Othe4.7 Author4.7 itie4.7 ust7.9 ice Manual Comment to Case Document Filed Page of ELIM5.4 RY STATEM5.4 ENT Ghislaine ell respectful submits this Memorandum in Support of her Motion to Dismiss the4.7 Supe4.7 rse4.7 ndic4.7 tme4.7 nt for of the Non-Prosecution eement 215Motion One does not ne-7 ed to gage in complex-11 an is understand what ppened the rnment has ght to substitute our client for Epstein even if it means stretching9.7 nd ultimately19.7 ceeding9.7 bounds of the law e4 it is in r3 ecisel-22 this setting9.6 204involving9.6 a ndant who despite her ears of nials has be en publicl-12.3 attacked threatened and vilified like few others in re cent the overn-10.5 ment scrupulous dhe4.8 to the4.8 law in ose4.8 crimina4.8 nda4.8 nt is most itic4.8 As the4.8 motions filed toda-6.7 monstrate rnment has repe-6.7 llen short of its oblig9.9 ations The indictment must be dismi8.2 ssed The g9 e3 rnment sudd-11 eal to prosecu Ms ll for lle4.5 duc4.5 with Epstein in the 204conduct for which th rnment never even char-8.8 ged Epstein 204follows a histor-6.9 that is both unusual and deepl-21.9 tr ubling9.5 The overnment and state authorities investig10.1 ated Epstein thor-6.9 in for alle-6.2 conduct that is essentia-6.2 identical to the conduct alle-6.6 in the rrent indi ctment the rnment inve-6.2 stig9.8 ation was solved whe4.2 it nte4.2 into n-Prose4.2 ution ree4.2 NPA with Epste)4.2 whic4.2 otia4.2 under the supe-6.8 rvision of ander Acosta th United States Attorne-16.5 for the Southern District of orida SDFL10.8 and approved or leve ls of Main stice including9.4 the fice of the Deput-22.8 Attorne-16.8 Gener-7.8 that NP A g8 e2 rnm-4 e2 nt-4 re-8 ed fede-8 ral-4 prosecution of Epstein the SDFL10.9 would be rred for Case Document Filed Page of plead to a ount orida state indict-12.9 ment Epstein did so in and went to prison for months At tha4.2 time4.2 the4.2 overnment did not Ms attorne-16.3 enting9.7 plaintiffs in civil litig11.2 ation ainst Ms ell met with a sect-3.8 on ed es Of ce for the uthern District of York nd pitche4.5 the4.5 ide4.5 of imina4.5 nst ll for conduct similar if not identical to that alleg10.1 e4 in the curr-7.4 ent indictme nt The section chief appropriatel-23.2 eclined.-11.2 Then in more a de ter th NPA was ecuted an plosi6.4 front-pa-7.6 tic5.3 in the5.3 Miami rald reported iled alle gations including9.7 from esentin-10.3 plaintiffs in civil litig10.2 ation about Epstein ct Acosta ndling9.7 of he investig9.7 ation the process the NPA had been tiate-6.8 a nd its substantive terms the ke the article the overnment indicted Epstein in this District fo conduct alleg9.7 committed betwee4.7 and ain rnment did not Ms ell Thus at thre5 sepa-7.7 res over re an a decad-11.6 overnm-13.6 had on to consider whethe-6.9 to Ms ell fo now r-old condu-10.7 alleged in the current indictment time4.5 the4.5 rnme4.5 nt ppropria4.5 204did not so suc4.5 char-8.2 would have baseless.-11.2 ut in ust Epstein was found ad in his jail cell His death while in fede-6.2 ral custod-9.8 not urbing10.2 but publicl-21.8 a rrassin-11.2 the ment chara-7.2 teriz-7.2 the4.7 the4.7 Attorne-15.3 ral the4.7 sult of storm of scre-6.6 w-ups Worse5 still a5 lmost to the5 day21 a5 f4 ter Epste5 die5 h1 e5 of e5 dia5 a5 tte5 tion shifte5 from Epstein to Ms Maxwell including10.1 in ma instream publications She was portra-16.5 as draf11.6 a deral4.8 Eps7.4 Maxw15 Case Document Filed Page of Epste4.6 qua4.6 not supe4.6 rior nd ric4.6 villa4.6 in of hica4.6 proportions at this time did the overnm-12.2 nt accordin-10.2 to its own ount decide to launch an investi-12.3 ation Ms ell and prose-6.7 ute her on alle tions that it had previousl-11.9 repeat-13.9 and nce woul-3.9 have en baseless-12.1 de termine5 d1 did not me5 rit char-7.8 short the vernment sponse to the media not to adhere to its rlier obje4.8 tive4.8 sis nd nside4.8 tion of the4.8 to the4.8 fre4.8 nd substitute4.8 Ms ell for Epstein Thus the rnment nounced its st and dictment of Ms ell on the act anniversa-6.7 Epstein indictmen-10.7 At an traordinar-18.1 ess confe-7.1 the Unite4.3 Sta4.3 Attorne-15.7 for this Distric4.3 ri bed Ms ell prosecuti on as the quel to the4.8 Epste4.8 indic4.8 tme4.8 nt fte4.8 the4.8 Atto Gene-6.5 ral in re public-6.5 comments on bail proceedi-3.6 an case pressed re get Miss ll in ll the4.7 ove4.7 nt mpromise4.7 its sta4.7 nda4.7 rds corners and ed its authorit-13.3 unde-7.3 the law This is shown in the present motion and othe4.2 rs are4.2 filin-9.8 nd inc4.2 ude4.2 the4.2 followi-11.8 The rnment sed forw-9.1 ard with even A pressl-13.8 provide4.9 tha4.9 Unite4.9 Sta4.9 will not insti8.9 imina4.9 nst pote4.5 tia4.5 onspira4.5 rs of Epste4.5 the4.5 tha4.5 it time4.5 nd tha4.5 such ements should be construed as ted the rnment does opposite trea5.5 ting11.5 from the5.5 tha5.5 its ts tia5.5 to with the approval of or ls of in stic4.7 The rnment octed a fede-7.4 ra Mann case Ms alleg9.2 that on some specified cas ion durin-10.5 a riod betw-8.5 and and in an ecified er she some-6.9 how transported and a sing9.9 le individual to trave-6.1 across state lin es for rposes of in awful Epst-3.3 Those in rn require overnm-12.6 nt to alleg9.4 viola3.9 tion of rk to se al the rnment has relied upon an alleged ass misdemeano-10.4 that if the ate statute of limitations had Case Document Filed Page of not pired would be punishable up to ee onths in prison less than Ms Maxwell has already spe-6 nt in pretrial detention Yet here at misdemea-6.4 nor has been up as fede-7.5 for pose of imprisonment not the equivalent of rm Not is this troubling10.3 in approach but en the-7 pieced-to-11 g9 eth-11 Mann char-8.5 ges time-bar-8.5 under the5 a5 pplic5 a5 b1 le5 sta5 ute5 of imita5 tions.11 n1 e5 e5 k1 in-9 a5 nd obta5 nin-9 c5 onfide5 n1 tia5 ma5 te5 ria5 fro-9 pe5 nding11 c5 vil litig11.1 tion-9.1 g1 nst Ms ell including9.9 the deposition transc ripts that form the basis of the two perjur-17.4 counts in the indictment the rnment The rnment base-6.5 the two counts of perju-10.5 on worded tions that imma4.4 teria4.4 to the4.4 defa4.4 tion in whic4.4 positions nd improperl-12.5 joined those counts to the Mann Act as address-11.6 in toda-6.6 motions to dism8.1 iss and sever those ounts an fort-3.4 accus-12.4 rs Ms has added two conspirac-7 ounts and as alle-6.4 ged overt acts in rther-8.5 of a purported conspir-7.1 to use minors to tr avel tacked on alle-6.6 gations two other cusers of hom is not alleg9.1 to traveled at all and was above the gal of nsent in Eng9.2 and ere alle-7.2 conduct took place its rush to arre4.5 st Ms ll on the4.5 anniversar-17.4 of Epstein indictme-6.4 nt and imi7.5 the announce-6.5 ent appeal to th med-11 a the g9 e3 rnment indict-13 ed Ms Ma5 w3 e5 ll using11 a5 White5 Pla5 ns a5 nd jur-16 the5 e5 viola5.1 ting11 Ms Ma5 w3 e5 ll rig11 h1 to a5 and from a fair cross-11.7 section of the mmunit-12.7 F5 nall-13 g9 overnment has char-8 ged multiplicitou10.4 conspirac-15.6 counts based on identical conduct iled to disclose the na mes of cusing9.2 witness-11.8 or provide spe4.9 fic4.9 in the4.9 indictme4.9 nt tha4.9 would rmit Ms ll to d1 qua4.8 te5 pre4.9 for tria4.4 nd impe4.4 missib-9.6 brin-9.6 this prosecution for ars violation of Ms ell due ocess hts The hue and ainst Ms ell is unpreced-10.7 ented in both scale and verit-22.9 Unde-6.9 our stem of justice need for Court ful scrutin-10.9 the overn-10.9 ment conduct and for the4.4 protec4.4 tion of the4.4 constitutiona4.4 hts of nda4.4 nt the4.4 quiv-9.6 nt of life4.4 sentence is at its hig9.7 This case is not about ettin-9.9 Ms ell Case Document Filed Page of defendant-12.6 it is about whether th rnment in bring9.6 the rning9.6 standards has not so here a nd the indict-12.1 ment must be dismissed.9.9 This memorandum focus-11.4 on the NPA As this memorandum demonstra-6.1 es Ms ell indictment olates the clea-6.7 and unqu alified terms of the NP A and should therefo-11.2 be dismissed The NPA was heavil-22.5 otiated er approx-11.5 imatel-13.5 months and involved not Epstein and the SDFL11.1 but also senior le ls of Main ustice in shing9.8 on D.C which approved the NPA befor-7.9 its ecution Given the blistering10 public criticis of the NPA and of Acosta handlin-10.8 of the Epstei investig10.6 ation it is understandable that the current me wish the rnment not entered into the NP A or that it had otiate-6.2 different rms eed the partment of stice Office of essional Responsib ilit-12 OPR found that Acosta ercised 215poor ment and ed to several unusu-10.9 and lematic terms in the NPA which OPR char-7.8 teriz-6.8 as a 215unique lution the overnm-12.7 nt is bound the ement it neg9.3 and ecuted And the NPA is clear plicit and mbig9.6 uous The rnme3.9 nt cannot now ask this Court to rewrite the agreem-13.2 ent in a favorabl-13.2 to its curre nt osition nor overlook distinctions in the iming11.3 they21.3 drafting11.3 sta4.5 or omissions Nor the4.5 rnme4.5 nt ask this Court to construe ambig10.1 uities in its fa vor in contravention of black-10.4 letter law that non prosecution eements must be construed strictly19.6 against the overnm-12.8 nt The rnment in prior-7.2 submissions has ra ised three ments the NPA does not of which rit First vernm-13.6 Ms acks andi-3.6 rce A because a and The res part-3.3 Case Document Filed Page of the NPA clearl-23.1 intend-11.1 to confer a bene-7.1 fit on and all of Epstein ential co-conspir-7.5 tors in e5 plic5 itl-11 ving11 the5 immunit-11 Und-9 e5 we5 ll-es tablished principles of general contra-7.2 ct law and particula-7 r2 und-11 er law ting9.4 to ecution ements and all of Epstein potential co-conspirato-11.1 rs are third-p-11.1 fici ies of the NPA As courts have repeat-14.5 ed enforci-4.5 rt immunit-12.4 ovisions a third-part-22.4 ficia-6.4 need not be pressl-22.3 med in an immunit-12.3 ion as long9.6 as she falls within the class of persons on whom the ties intende to confer munit-12.5 the5.1 indic5.1 tme5.1 nt lle5.1 tha5.1 Ms ell was a onspirator of Epstein sh lls ll within the4.9 protection provided the A Second the4.6 overnme4.6 nt ims tha4.6 the4.6 ons rator immunit-12.1 provision-10.1 applies to prosecutions in the SDFL10.7 ut the NPA was a hig9.4 tiated andard ement is not the standard ent the rnment wi hes it to be The plain ge of the NPA squarel-22.3 refutes the overnme nt position The co-conspirator immunit-12 r3 ovision does not prohibit merel-12.5 osecuti-12.5 ons the USAO for th SDFL10.6 SDFL10.6 but 215the United States This broad ibition was intentional as demonstrat ed press re-8 fer-9 e2 nces sewher-9.1 A es or eed are the4.4 NPA immunit-11.6 vision for Epste4.4 himse4.4 whic4.4 is pre4.4 limite4.4 to prose4.4 utions in the SDFL10.6 and the nspirator immunit-12.4 ovi-12 sion which contains no such limitation Even if the lang10 e4 e4 e4 amb-10 uous as to its impact on prosecutions on the SDFL11 which it is not ambig9.7 must be onstrued ainst the rnment opposition the overn-10.6 ment relies on the Seco-8 Circuit statement that plea agreem-13.8 nds offi-3.8 ce of es Attorne-15.7 for distric4.2 in whic4.3 the4.3 ple4.3 is entered unless it ffirmat-12.9 ears at the eement contemplates a oader striction Case Document Filed Page of United States Annabi 2d 2d Cir Annabi support-12.2 dismissal here confirming9.1 at wher-7.9 here both the of A and and rcum-3.8 ances underl-12.4 otiations demonstrate an intent to bind the United States ther USAOs are so bound Alternativel-22.7 application of Annab-9.6 i tha4.9 limits the4.9 NPA to the4.9 SDFL11.9 would conflict with the likel-12.2 in retation of the NPA the eventh Circuit which should appl-13 in a3 se of such-11 conflict Third g8 overnm-3.8 nt-4 ar-9 es at-4 ons pira-5.7 tor immunit-11.7 provision ohibits prosecutions for cond)-11 uct between and and ii statutor)-17.3 nses specific-6.3 fere4.5 nce4.5 in the4.5 ls to the4.5 NP A the co-conspirato-10.3 immunit-12.3 ovision onta4.6 ns no suc4.6 limita4.6 ons nd thus fore4.6 this nt The4.6 is but if it were ambig9.8 uous it must be strictl-12.2 construed nst the rnment.-10.7 the altern-10.9 ative to the tent there is doubt at the NPA bars this ecution the facts and circumstanc-6.7 rrounding9.3 NPA at ast raise suffi-12.7 cient issues the rties intent to warrant discove-6.6 a nd tia4.9 hearing10.9 on the4.9 issue4.9 rding10.9 if the4.9 indictment is not dismi8.5 Ms ell request-12.7 leave to conduct di as to the intent of the parties to the NPA th respect to the consp-10.6 rator immunit-12.6 provision as well as an ide4.9 tia4.9 hea4.9 in of this Motion.10.9 STATEM6.4 ENT CTS8.3 On or about September Epstein and his counsel enter-7.3 into the NPA with osta4.9 the4.9 Unite4.9 Sta4.9 Attorney20.9 for the4.9 hile USAOs in a number of judicial districts including10.1 this District picall-22.7 use a ndard templa ea and non-prosecution greem-12.3 nts this NPA did not foll7.7 ow such a standa-7 rd form-13 at To the contra-7 of10 NP-8 attac-11.6 reto bit Case Document Filed Page of the4.4 NPA nd str3.5 ure4.4 ll the4.4 nne4.4 in whic4.4 it otia4.4 The was a one-of-8.8 devi-3.8 ed seve-7.8 respect-3.8 and bore5.1 little5.1 mbla5.1 nce5.1 sta5.1 nda5.1 rd ree5.1 The Depa-6.7 rtment of stice OPR after in stig9.8 osta handlin-10.2 of he Epstein case acteriz-7.4 ed the A as a 215unique solu tion Dep ice ce of Professional Responsibilit-11.8 Ex ecutive Summar-17.2 Report nvesti-12.2 ation into the U.S Attorne-7.2 fice the Sout hern District of a Resolution of its ral Criminal nvesti-12.3 ation Epstein and Interactions with Victims during9.7 the stigation November-7.2 at rtic the OPR concluded th at Acosta to several unusu-10.3 and le matic terms in the without th consideratio-11.1 required er the rcum-3.7 Id hile the co-conspir-7.3 tor munit-12.3 ovision appea-6.4 to be one of the rms to which the OPR was ferrin-10.5 the rnment bound A re The NPA is a seven-10.9 document cons isting11.1 of ita5.1 ls PA at a para-6.8 aph providin-10.8 for non-prose-6.8 ution of stein if he complies with the NPA id at a of enum-4.5 erat-4.5 ed id at and finall-12.6 ve separ-7.6 te aphs ontaining9.6 various provisions including9.7 the co-conspirato-14 immunit-12.4 provision at issue here at Althoug)10.2 it cont-3.8 ns no defi-3.8 ned her an ce and A separat-14 e2 he Uni-4 e2 es as a whol-14 from-4.1 US-6 AO-S-6 DF-6 L9 e2 pe-8 at-4 edl-24 y8 refe-8 rri-4 g8 c2 the4.6 USAO whe4.6 suc4.6 imita4.6 tion is nde4.6 e.g id at Epstein shall provide to the U.S Attorne-6.7 ce opies of all proposed eements id es Attorne-6.3 has no authorit-12.3 to bind state osecuto-10.3 rs id at 215Epstein requests that the Unite4.7 Sta4.7 Attorne-15.3 for the4.7 outhern District orida fe such ecution Thus the Case Document Filed Page of NP-6 A ref-9 e2 ren-12 ces e2 at-4 es dem-4 onst-4 at-4 a de-8 fi-4 ni-4 onal-3.9 e2 nt-4 not to limit suc5.4 provisions to the USAO-SDFL11.1 The NPA ns with veral actual ec ita4.4 ls noting10.4 in ils of the4.4 investig9.7 ation and indictm-12.3 nt the orida Stat ce othe4.1 thing10.1 tha4.1 i Sta4.1 Attorne-15.9 Offic4.1 nd the4.1 urea4.1 of stigation ve cted their ow investig9.8 ation into Epstein ound and ffe4.5 tha4.5 have4.5 mmitte4.5 ste4.5 nst the4.5 Unite4.5 Sta4.5 from in or around throu-10.2 in around September in cluding10.2 enumerat ed federal criminal offenses ii Epstein resolve globally his sta4.6 nd imina4.6 lia4.6 bilit-11.4 nd thus is to the4.6 rms of the4.6 NP A change for the ts provided this gre4.4 nt nd i inte4.4 sts of the4.4 Unite4.4 Sta4.4 the4.4 Sta4.4 of orid-9.6 nd the4.4 nt will rve4.1 the4.1 owing10.1 dure4.1 NPA mpha4.1 sis Nowhe4.1 in the4.1 ita5.4 ls is spe5.4 fic5.4 to th SDFL or to the USAO-SDFL10.4 nor is there sugg11.2 stion tha5.2 the5.2 parties in inte5.2 nde5.2 to limit the5.2 loba5.1 solution Epste5.1 lia5.8 bilit-10.2 The A en provi-3.5 des cu tion of Epste4.7 in this Dis9.7 ric4.7 for ese nses shall be defe-6.6 rred in of prosecution the St ate of F5 r2 ida provided Epst-3.7 es the4.5 rms of the4.5 NPA A The4.5 NPA so ovide4.5 tha4.5 ter its rms fulfille4.5 no prosecution for the nses set out on and of this Agre-6.4 ement the five enume-7 r2 ated e3 ral offens-12 es-8 nor6.7 nses that the subje4.8 of the4.8 joint inve4.8 stig10.8 tion the4.8 ral reau of nvesti-12.9 ation and the es Offi-3.9 ce fenses arose Grand investi-12.5 ation will be5 institute5 in this Distric5 a5 nd the5 c5 h1 arg11 e5 against Epstein if ll be dismissed.9.8 k8 v8 ariou7.9 eren7.9 to ed States5.4 its5.4 215Federal Gran8 ry20 g8 e2 Case Document Filed Page of Id Thus the4.7 NPA limits9.7 the4.7 fit to Epste4.7 to immunit-11.2 this District the NPA sets forth provisions labeled of These ude the details of Epstein guilt-12.5 ea and oposed ntence in the orida court as ll as Epstein reement to ive his ht to cont-6.6 est jurisdiction liabilit-11.7 and damag10.3 up to an agreed-10.4 upon amount in certain civil actions br ght identified victims NPA at a2 g8 r1 aph fol-4 wi-4 ng8 of g8 re-8 em-4 ent-4 NP-6 A provi-4 de-8 at-4 215Epstein understands the United States ttorne-6.6 no authorit-22.6 to ire the State Attorne-7.3 fice to the A A at This section further ovides that Epstein ins the4.5 obliga4.5 tion to obta4.5 the4.5 Sta4.5 Attorne-15.5 Offic4.4 mplia4.5 with the4.5 NPA proc5 e5 dure5 w3 hich c5 o1 lia5 c5 e5 will be5 nec5 e5 ssa5 to sa5 tisfy21 the5 Unite5 Sta5 e5 inte5 re5 st a5 nd to convince the orida court to cept the os ed sentenc-6.7 NPA at The section contains no simila4.4 provision garding10.4 omplia4.4 other USAOs outside4.7 the4.7 SDFL11.7 The NPA then out the provision at issue in this motion:7.9 consideration of Epst-13 agreem ent to plead guilt-12.2 and to provide mpe4.5 tion in the4.5 scribe4.5 if ste4.5 suc4.5 ssfull-21.5 fulfills ll of and condi-3.7 ons of agreem-3.7 es so agrees will not insti9.4 ute5.4 crimina5.4 nst any potential co-conspirators of Epstein including10.2 but no-9 limite5 to Sarah Kellen,-10.8 Adriana Ross off or Nadia inkova.-11.2 NPA mpha4.3 sis Unlike)4.3 the4.3 provision tha4.3 Epste4.3 will not prose4.3 ute4.3 this id sente4.5 rdin-9.5 pira4.5 tors onta4.5 ns no prov-9.5 ision limi8.5 ting10.5 onspira4.5 tors immunit-11.5 the4.5 SDFL11.5 Unlike4.5 the4.5 tha4.5 Epste4.5 ill not prose4.5 for enses ve een subj-3.8 nvest-3.8 on and enses from-3.7 the ral and vestig9.6 ation id at the)-7 sentence re-7 g9 rdin onspirators contains no limitation on the scop9.5 of conduct for which 215poten tial co-conspirato-10.6 rs of Epstein cannot Case Document Filed Page of prose4.3 ute4.3 doe4.3 the NPA onta4.3 limiting10.4 its binding10.4 on othe4.4 USAOs as standard ements The Negotiation the Unlike standard ecution ements the NPA here heavil-22.7 tiated tiations began in lasted a riod of months were tensive In re ild 3d 11th Cir en banc granted nion vacated 3d 11th Cir Discover)-17.6 ed that ee e.g addition ee Id is our erstandin-10.2 that the otiati ons involved the entire hie-7 r2 ar-8 of-8 the USAO for the SDFL10.5 all of sig9.5 ned on the Discover-17.5 indicat-12.5 es urthe-6.2 the investig9.8 ation ading9.8 up to the NPA was not limited to the SDFL21.2 A privileg10.2 oduced the rnment in civil litig10.1 tion indicates that the volved the AO for Dist rict in its investig9.9 ation of Epstein and that attorne-16.2 from the SDFL10.8 aveled to York and intervie-6.9 wed d/or subpoenaed York-ba4.3 witne4.3 sse4.3 Privile4.3 Doe United States Case No S.D a Dkt No Privile-6.1 at Moreover Case Document Filed Page of discover-17.7 demonstrat-12.7 es that As NP-6 A refl-14 ect-4 Eps-13 ei-4 obj-4 ect-4 otiating9.8 the NPA to obtain a obal resolution that would among10 other-7 thing10 pr ovide-6.4 imum protection for alle-6.4 co conspirators in nt part to minimi8.3 th likelihood that Epstein could be subpoenaed as a pote4.9 tia4.9 witne4.9 ss nd to er oath A at noting9.6 that ein 215seeks to solve oba4.9 his sta4.9 nd crimina4.9 lia4.9 bilit-11.1 The4.9 NPA its ide4.9 tific4.9 tion of four 215potential conspi-13.2 rators Ross Groff and nkova 204was not inte4.7 nde4.7 to limit the4.7 imm8.7 provision to those4.7 four individua4.7 ls but not limite4.7 to nd understand that those viduals ee ARGU9.2 The Supreme Court has ed the ceabilit-13.4 plea ts hen a ea cant-3.8 ee on a or of osecut-3.8 so can be said to be part of inducement or onsid-10.4 erati-12.4 on such promise must be fulfilled Santobello New ork U.S ile plea agreem-13.5 ents interpret-13.5 under si principles of cont act law-9 the Second rcui-3.7 has ed ea ar que contra-6.9 cts in which special due cess concerns for ness adequa-7.6 of al safe-7.2 ards obtain United States Ready 3d 2d ernal quotatio-10.3 marks omitted see so United States Mozer Supp S.D.N.Y prosecutor ente-6.5 ring9.5 to a plea gain Case Document Filed Page of agreem-14 ent-4 not-4 si-4 a part-24 a cont-14 ract-4 Government is quired-10.8 to observe standards of inte-6.2 honorable condu-10.7 ct and supervisor-17.7 pow er of court is desi-13 g9 ed to insure that such standa-6.9 rds are ea ns-3 ued agai-3.7 United States Feldma-10.5 3d 2d Cir quoting9.9 United States Vaval 3d 2d ause ch eements involve waivers of fundamental constitutional rig9.9 hts 215prosecutors ar held to meticulous standards of perform-5.1 Feldman,-10.6 F6 3d at quotin-10 Vaval 3d at he prosecutor-7.3 fice is an and as such it is the spokesman for the ment A promise made one attorn-10.6 mu st be attributed to the Government e4 ldman,-10 3d at quoting10.1 Giglio United-10 States U.S The g9 e3 rnment attem-13 to evade the NPA flies-12 in the face f2 these honored and honorable principles ther than stand hind the promises it made in the NPA the overnme5.2 nt trie5.2 to scape5.2 the5.2 tha5.2 Ms ell has no standing9.5 to rce em a position that is contradicted the unambi-12.3 te of the NPA as well as clea-7.2 cedent The4.5 rnme4.5 nt so tries to pre4.5 nd tha4.5 the contains raphi-14.3 oral-4.3 limita4.8 tions tha4.8 not ist doin-9.2 so rnme4.8 nt ntia4.8 turns the4.8 inc4.8 ple4.8 underl-12.9 the inte-6.9 rpret-12.9 tion and enfor-7.9 cement of ch ements on their head Confronted with an NPA that in hindsig9.9 ht the overnm-12.1 nt shes had been tiate-6.6 and draft-12.6 differentl-22.8 the rnme-6.8 nt cannot now manufa-6.8 re ambi-13 g9 er-8 none ists and cannot now demand that the construe such rporte-6.4 ambig9.6 in the over-7.4 nment favor en it is sta4.7 blishe4.7 prin-9.3 ple4.7 tha4.7 it must be construed in th ndant Here it is wholl-12.5 for the Court to ond four corne-6.6 of the NPA to determine that it bars Ms ell prosecution Howeve-6.7 the Court can be comfortable Case Document Filed Page of at-4 fact-4 and ci-4 rcum-4 ances of g8 a2 on of NP-6 A ar-9 consi-4 e2 wi-4 part-4 e2 intent to provide potential co-cons1.5 pirators with the broadest immuni possible Even if ther-7.7 were ambig9.6 which ere is not that uit must be construed ai the rnment and in favor of the Accordin-11.1 the indict nt must be dismissed the alternative Ms Max-10 w2 ell should be permitte to take discover-17.5 rding9.5 intent of the parties to the NPA with respect to the spirator immunit-12.7 sion and the Court should hold an evidentiar-17.2 hearin-10 in aid of this Motion I ts bee5.8 inte5.8 rpre5.8 in ordanc-6.7 with contr-7.7 act principles United States Gonzale-6.2 App 2d Cir interp-10.8 reting9.2 ether a plea agreem-12.4 ent has en hed this court looks to th reason-10.9 able unde-6.9 rstand-10.9 ing9.1 of the rties as to of Id at intern-9.9 quotations a nd citations omitte However the4.9 rnme4.9 nt ust bea4.9 the4.9 burd-9.1 for ck of in the4.9 nd itie4.9 should be resolved in fa of the ndant Dalsheim F6 2d 2d Cir the NPA nambig9.5 uousl-22.5 udes prosecution of Epstein potential co conspirators and the ctment in this case must be dismissed suppo-10 rt of its motion for Ms ell detention th ment raised three uments it ontends the NPA does bar Ms ell prosecution i that Ms ell supposedl-12.7 standing9.3 to rce th NPA ii that the spirator immunit-12.4 provision applies in the SD FL11 and i that he provisi on is limited conduct during9.6 the time period and to violations of statutes specifica renced in the NPA Government morandum in Support of Deten tion Dkt No iled ul at of these uments has merit Case Document Filed Page of A Ms Maxw-10 el-4 t1 an-6 di-4 to n4 rce th-6 P9 The Second Circuit has ong9.3 ed that plea agreem-12.9 ents include promises of nie4.1 for third rtie4.1 See e.g United States Clements 2d 2d Cir is now clearl-22.4 established in the Second Ci it that the overnm-12.1 nt impose conditions which relate to the condu-10.9 ct or treatment of rs United States Marqu-10.2 F6 2d 2d Cir nce a defendant-13.2 plea is not re ndered involuntar-17.8 se he ente-6.8 rs it to save himself ars in on it is difficult to se the3.7 should not permit the defend-10.4 ant to tia4.6 ple4.6 onfe4.6 simila4.6 fit on othe4.6 rs cert denied U.S Yet the overnment taken the position that su prom-4.3 es are eabl-4.3 third who is spe4.2 fic4.2 ide4.2 ntifie4.2 undamental ciples ontract law contr-7.5 dict the rnment position ss of whe4 he4 e4 Court a4 lie4 the4 la4 of New Yo or that of orida wher-8.1 the NPA was tia4.6 nd performed th sta4.6 ws mit nforc3.8 nt of third-p-10.2 fic5.1 where5.1 the5.1 rtie5.1 to the5.1 ontra5.1 inte ed to confe-6.8 a fit on the third Subaru Distribs Corp Subaru of Am Inc 3d 2d Cir New York law chese Town of Ponce Inlet 3d 11th Cir orida law Moreov)-11 er intention to benefit a third--8 part-13 be ned cont-4.1 ract-4.1 as a whole and the party not be named specifically as a beneficiary St Street Beat Sportswear Inc Supp 2d E.D.N.Y sis ded holdin-10.3 that ers had as forc-7.8 ge nce between partment and clothing9.2 er cont-4.4 ed Florida Power Light Co Mid-Valley Inc 2d 11th Cir ida courts have ed that a third ficiar-18.2 eed not be in the contra-7.2 ct Case Document Filed Page of Contrar-7.4 to the nt position here court-12.7 these aditional contract principles to non-prosecu-10.9 tion eements re ize4.9 that third pa rties who claim immunit-11.8 such have andi-3.9 rce as en ve not en named in the osecution ement e.g United States Const Co Supp D.S.C inte ed third ficia-7.1 of a contract enfor-7.5 ce its provisions as against the promisor if the rnment in neg7.7 afor-9.3 oned ea romised that there be no prosecution nst the4.7 third for titrust viola4.7 tions ising10.7 in any jurisdiction the promise must be enforc-7.8 ed phasi-3.8 affd 2d 4th Cir Two in rtic4.6 ula4.6 lustra4.6 the4.6 infirmit-11.4 in rnme4.6 nt ment Unite4.6 States Florida st Int Airways Inc upp 2d S.D a the a ea a fo air provide-6.5 that immuniz-6.5 certain classes of the ovider emplo-10.8 and lated rporations i ed a and an individual both of whom asserted that within the scope of em and rporations covered plea ent Id at llowing9.3 a eviden-10.7 tiar-7.7 earin-10.7 the court concluded at the indi vidual was cover-7.9 plea ed the proposition that either ed standin-10.7 to invoke the plea agreem-12.6 ent if covered it even thou-11 g9 the parties were not iden tifie5.8 in the ple5.8 Id at ida law court held that signa5.3 tory21.3 rtie5.3 unmista5.3 ka intended to er immunit-12.4 on a disc-6.4 rete class of corpo-10.4 ations and ndividuals that could include the Defend-11.4 ants Id at The court The plea ement estionabl-13.2 er red a direct fit on a class individua5.2 ls immun11.2 More5.2 ove5.2 the Ple5.2 ree5.2 inc5.2 inte5.2 nt to nd this fit to fi nable ass of third ties emplo-10.7 ees he Case Document Filed Page of provider-7.4 emplo-10.4 of subs8.6 idiaries and subsidiar-7.5 corpor-7.5 ations of he provid-11.6 and a ted forei-13.6 airline-8.6 Id An even more-6.8 loosel-12.8 fined immunit-12.8 eem was enfor-8 ced in a3 vor of a third part-23 in United States El-Sadig Supp 2d N.D Ohio Sadig the4.5 ourt ld that the defend-10.6 ant who was alle-6.6 to pur cha4.4 firea4.4 ms unla4.4 fully20.4 two mbe4.4 the4.6 udi ho tra4.6 with Sa udi prince to the United States had standing9.6 to enforc-8.1 an ween and ce osecut-4.1 individuals involved in he purchas-11.4 Sup 2d at The court oncluded that en if the non-prose-6.9 ution agre-6.9 ement was dire-6.9 communicated to he defendant-8 he can enforc-7.4 the osecuti-13.4 on agreem-13.4 ent as a third ficiar-18.5 Id at Moreover court reasoned because prince himself 215was ot involved in of the illeg9.9 activit-12.1 his efforts to obtain a commitment not to prosecute re obviousl-22.4 intended him to benefit third part-4.1 and ere-8 ore defend-12.1 was a rce agreem-14.6 Id at Bo-7 Florida st and Sadig illustra4.9 how the4.9 overnme4.9 nt nt tha4.9 Ms acks andi-3.7 enforc-7.7 A ra to bedro-10.6 principle-6.6 of contract as applied to immunit-12.4 ements Ms ell the defend-10.4 ants in Florida st and El Sadig were not rties to the ements at issue.-2.1 ke Ms ell the fendants re not speci-3.9 agreem-13.9 cases the courts held tha-7 the defendants e3 re third-part-22.7 bene-6.7 ficiari-12.7 with standing9.3 to enfo ce cause part-4.3 agreem-12.6 ents obviousl-12.6 intended to conf-7.6 er on th em the benefit of immunit-12.1 Ms e4 ll simila4.3 sta4.3 ndin-9.7 to nforce4.3 the4.3 onspi immunit-11.8 ovision of the4.2 NPA the4.2 Case Document Filed Page of rtie4.6 to the4.6 NPA inte4.6 nde4.6 to onfer immunit-12 on potential c4 spirators of Epstein such as Ms ell The5.8 ohibition on osec5.8 ution ial Co-Conspirators Is Not ted-7 to F8 The NPA stands in contr-7.3 st to the standa rd non-pr-7.2 osecution ement in this Distric4.8 nd othe4.8 jurisdic4.8 tions whic4.8 pica4.7 plic4.8 limite4.8 to prohibit tions the4.4 USAO for the4.4 ric4.4 in whic4.4 the4.4 ple4.4 is en red The rd contains the following9.9 ge is furth-10.1 derstood that this ent does not bind feder-7.6 state or ecuting9.4 hori-4.2 an Offi-4.2 See Perez States Nos Civ Cr at No such lang9.5 is included in he NPA Moreove-6.5 andard A refe-8.4 rs separat-13.7 he es aces hers tha5.4 to Unite5.4 Sta5.4 es inte5.4 nde5.4 to fer to the5.4 rnme5.4 nt whole not merel-22.5 the AO-SDFL10.5 A is AO is District.-10.9 The rnment conten-10.9 tion that the NPA does not bind th AO in this District cannot be squa-7 red with clea-7 lan-11 g9 ua-7 ge of th co-conspirato-10.6 immunit-12.6 provision On its face tha4.4 provision doe4.4 not mit the4.4 pre4.4 usive4.4 of the4.4 NPA to pote4.4 ntial onspira4.4 tors to prosecutions in the SDFL10.8 eed consistent with Epstein desire to obta-6.5 the broadest immunit-12.4 possible the A pressl-12.4 provides at change for Epst-3.7 nce the terms and conditions therein 215the United State-5.8 a5 so a5 g1 re5 e5 th-9 a5 it will not institute5 a5 imina4.7 nst tia4.7 onspirators of Epste4.8 with no pre4.7 ss phic4.7 limitation NPA at emphasis adde contras-12 the clauses regardin-10.4 he non-prosecution of Epstein pressl-12.9 rosecution in this Distri8.9 and provide at no prosecution for the Case Document Filed Page of offe4.4 nse4.4 issue4.4 will nstitute4.4 in this Distr9.8 NPA at ses dded addition use of he es onspirator immunit-12.1 vision contrasts with use ere agreem-14.1 of vari-4.2 ous refer SDFL10.4 en the overn-10.6 ment wanted a provisi on of the NPA to to the USAO-SDFL10.5 it knew how to do so where it chose not to do so a differ-7.4 nt intent is demonstrated.-10.4 the4.8 omission of pre4.8 ss uage4.8 limiting10.8 the4.8 onspira4.8 tor immunit-11.2 provision to the4.7 SDFL11.7 to stic4.7 rtme4.7 nt licy20.7 The4.7 stic4.7 formerl-11.3 U.S Attorney20.3 nua4.3 pre4.3 provid-9.7 nd provi-11.7 the4.3 time4.3 the4.3 NPA ute4.3 tha4.3 practicabl-13.2 the attorne-17.2 the vernment shoul-12.2 plicitl-12.2 limit the scope of his/her non prosecution-7.5 agreem-12.5 ent to non-prosecution within hi s/her district ustice Manual Comment to The ment deviation from a polic-6.7 of which it was viousl-12.7 are for offenses that their ure involve intersta7.8 te vel and susceptible prosecution in multiple districts 204cannot be re rded as an oversi-12.8 ht particul-12.8 where policy19.2 was followe4.5 in NPA with spec4.5 to the4.5 immunit-11.5 ovision to Epste4.6 United States Annab10.7 does not alter the analysis suppo-9.9 rt of its position,10.1 the rnment has cited United States Annabi F6 2d 2d Cir Repl)-12 e4 at B7 ut Annabi does not support the overn-9.7 ment position fact to the tent it is releva nt it supports dismissal Annabi the rnme-6.4 nt following9.6 a to one count of a count indictment in the Eastern-10.5 District of New rk reed to move to dismiss the two open counts Unlike4.6 there4.6 writte4.6 ree4.6 the4.4 prosec4.4 utor sta4.4 on the4.4 rd the4.4 time4.8 of the4.8 ple4.8 tha4.8 tha4.8 ist8.8 twe4.8 the4.8 ts the4.8 Governme4.8 nt is that at the time of the imposition of senten ce Count Two the Govern-10.6 ment would move to dismiss the two open remaining9.5 counts as to each defendant.-11 F.2d at The ndants Case Document Filed Page of moved to dismiss a subsequent indi tme4.4 nt in this Distric4.4 rr ed was an earlier 215plea ement in the Eastern Di strict the court denied the tion Id The Second Circuit in affirm-12.6 ing9.4 the al stated simpl-12.4 that plea ent binds the offic4.6 of Unite4.6 Sta4.6 es Attorney20.6 for the4.6 distric4.5 in whic4.6 the4.6 ple4.6 is tere4.6 unle4.6 ss it affi-4.4 ears agreem-14.4 cont-4.4 es a der rest-4.4 Id at Thus not is Annabi disting11.1 isha5.1 ble5.1 from this but it plic15.1 es ea can be other jurisdictions and that a plea ement tha4.4 the4.4 ffirma4.4 tive4.4 ppe4.4 nce4.4 of plic4.4 bilit-11.6 the4.4 NPA doe4.4 ill enforc-6.7 ed ccordin-10.7 to its terms The econd Circu-10.4 it subseque nt applicatio-10.2 of Annabi has been tire4.6 onsiste4.6 nt with this princ4.6 ple4.6 nd with Ms ell position here To the tent that Annabi would preclude Ms ell from enfor-7.4 ing9.6 th NPA outside4.9 the4.9 SDFL11.9 it is in onflic4.9 with the likel-12.8 resolution-10.8 of the issue under El nth Circuit law which should a There is an 215affirmative appearance that the onspirator immunity provision was ntende to apply outside the SDFL The ce cont-4.7 ed nabi 215need not be an press United State-6 Russo 2d 2d Cir the ffirmative appear-8.8 a rest-3.8 on was four corne-7.8 of NPA when the NPA is view ed as a whole As noted above the absence of limiting9.6 lang9.4 in the consp-10.6 rator immunit-12.6 provisi on stands in sharp contrast-12.4 to the NPA provision rdin-9.8 the4.2 on-prose4.2 ution of Epste4.2 i whic4.5 is pre4.5 limite4.5 to prose4.5 tion A envi-4.3 on a rer pearan-12.3 an press inclusion elsewhere in the agreement of a limitation that is conspic13.6 uousl-12.4 absent sic ciples of contr-7.6 act interpr-7.6 tation requi re an nce part-4.3 consi-4.3 ered the inclusion of the phras-12 this District necessar-16.8 to limit the scope of the non-prosecution Case Document Filed Page of provision as to Epstein See e.g LaSalle Bank at Ass Nomura Asset Capital Corp 3d 2d Cir inte-6.4 rpretin-10.4 a ntract under New rk 217words and phrases should be their plain meanin-10.5 a nd the contract 217should be construed so as to full mea5.1 nd effe5.1 to ll of-2 its provisions ita5.1 tions omitte5.1 Port Consol Inc Int Ins Co of Hannove-5.9 PLC App 11th Cir same under orida law The stice Manua-6.6 supports this view ad monishing10.2 prose-5.8 utors do not wish to bind USAOs in other districts to e6 x6 p2 lic6 itly limit the4.5 ope4.5 of the4.5 NPA to the4.5 distric4.5 tic4.6 Manual Comment to empha sis The absen-11.3 ce the ase this District from the onspirator mmunit-12.6 provision ther-7.6 ef ore compels the opposite inferen-11 ce that the parties did not inte4.7 nd to limit the4.7 onspira4.7 tor mmunit-11.3 provision to the SDFL11.7 Moreover promise to bind other districts can infe rre4.6 from the4.6 tions ween and osecut-3.8 Russo F.2d at One levant factor in this is is the tent to which the USAO otiating9.6 th ea eement acted on own as opposed to involving9.8 other USAOs or ot her ces within the Depa-6.9 rtment of stice Cf e.g United States 220Amico 2d S.D.N.Y findin-10.4 that ant ers no meaningful support for claim that he asonab-11.1 understood-11.1 the ent to bar subsequent prosecutions in this District He does not claim for ample-6.9 that the DNY USAO was in onsulted or i nvolved in the plea otiations United States Lask5 ow Supp E.D.N.Y ndants onced-10.8 that Central District had no knowledge of the investig10.1 ation th at was takin-10.9 pla3.3 in the Ea stern Distr-7.2 ct at the time the Central District plea being9.7 otiated Central District unawa-6.6 of ndants-11.6 pote4.7 tia4.7 imina4.7 lia4.7 bilit8.7 in the4.7 Distr3.8 ould not inte4.7 nde4.7 insula4.7 ts from prosecution which no ason to see affd 2d 2d Cir Case Document Filed Page of Here we unde-7 rstand that-13 senior levels of Main stice directl-22.6 involv-10.6 in the neg9.5 otiation and approva of the NPA and the itself refl ts the involvement of the NPA at Moreove-6 the-6 USAO-SDFL11 involve-6 me nt of the USAO for is District in its investig10 ation of Epstein as well its onta4.8 with itne4.8 sse4.8 in New York ect a coordin-11.5 ted effort-3.9 anscend-11.9 ivileg9.8 at From these cts it affi-3.9 ears had reason to rese-7.1 a ential prosecution of Epstein co-conspir-7.2 in this District a nd after-6.9 multiple4.2 e4 rs of review within the Department of stice intende to to de it The Second Circuit subs equent application of Annabi supports Ms Maxwell position all of the es in which the econd Circ-6.8 uit has reitera ted its state-5.7 ent in Annabi in the4.4 onte4.4 of writte4.4 ple4.4 agre4.4 nts those4.4 gree4.4 nts unlike4.4 the4.4 NPA onta5.1 uage5.1 pressl-10.9 limiting11.1 the5.1 fo-9 c5 eab of NPA to the4.7 stric4.7 in whic4.7 it was made e.g United States Prisco App 2d Cir ement is limited to the United ates Attorne-16.4 fice the District of Ne rsey20.4 and cannot bind othe4.4 sta4.4 loca4.4 uthoritie4.4 United ates Ashraf pp 2d Cir plea g9 re-7 ement its press terms boun-11 onl-13 the U.S Attorne-17 Office for the East-3.8 ern of a Gonzalez at aph plicitl-12.7 states that nds es Offic-7.1 for Distric-7.1 of New co United States Salameh-10.5 3d 2d Cir his eement is limi7.9 ted to the United States Attorne-16.7 Office for the a3 stern strict of New rk and nnot bind other sta5.1 or loca5.1 ting11.1 thoritie5.1 nited States Persico Supp S.D.N.Y inding9.5 ements ns are een fendant-4.3 and the Crime-6.8 Strike for the ern District of and noting9.2 at one Case Document Filed Page of defendant-12.8 plea plicitl-12.8 stated that it binding10 on the United-10 States onl-12 in he Eastern-7.7 district aff 2d 2d Cir cause ere is no uch in the NPA here Ms ell position is entirel-12.2 is tent with these cases nd counsel in favor of enfor-9 cem-4 ent-4 of NP-6 A case Other Second Circuit citing9.8 Annabi also port Ms ell posit8.2 ion Unite4.6 States Brown No 2d Cir Apr the ndants relied solel-22.6 on their jectiv beliefs and licit understandi ng that would not be prosecuted rther in her dist ric4.6 whic4.6 the4.6 urt ld irre4.6 nt they20.6 cite4.6 no ffirm-11.4 tive4.6 appear-7.4 ance in support their position as Ms ell has And in Russo the court found it unnecessa-7.4 ach abi but-4 acknowl-4 g8 at-4 an ffi-4 rm-4 at-4 appea-8 ance-8 of an nt-4 bind other USAOs can found even wher-8.2 a pl ement does not ain an press statement to that effe-6.6 ct interpret-12.6 tion that supports Ms ell posi7.9 tion that the NPA binds the rnment Russo 2d at Annabi conflicts with Eleventh Circuit law Eleventh Circuit law applies and would require enforcement of the NPA Under choice-7.3 aw rules which in non-diversit-12.6 cases facto-10.6 in rmining10.3 jurisdic4.3 tion ontra4.3 a ies include i choice-6.8 of-law ovision in the contract ii the wher-8.5 the contr-8.5 act a neg9.4 issued and ned i the ace performan-10.9 ce iv tion of the4.5 subje4.5 tter of the4.4 ontra4.5 nd the4.5 domic4.5 ile4.5 residenc-6.9 nationalit-12.9 ace corpor-7.9 ation place of business the parties Advani Enters Inc rwriters at Lloyds 3d 2d Cir New York conflict-of-8.2 rule4.7 simila4.7 quire4.7 tha4.7 the4.7 of the4.7 risdic4.8 tion with the4.7 most ific4.7 onta4.7 and inte5.6 st rns the5.6 construction of a contract Inde-6.7 Fund Ins Co of Am 2d 2d Cir der eith er e3 of rules cause the NPA was Case Document Filed Page of draft-3.6 and ecut-3.6 and ecaus-12.6 Epst-3.6 perform-3.6 ed under the contr-8.3 act ring8.7 a plea in a orid a ourt conflict of between the cond Circuit and the Eleventh Circuit should be resolv in favor of the applicati-12.8 on of Eleventh Circ4.4 uit to the4.4 NPA The Eleventh Circuit has not directl-12.6 a ddress-12.1 ether a reement or non prosecution eement ed USAO is bi nding9.8 on a USAO in another district ut it presumed as it equentl-12.6 is en predi-12.6 ting9.5 how a state hest court would rule in a case of first impression that the Eleventh Circ uit would follow the ht of authorit-12.3 ee e.g Crutsinger Hess Supp state is silent and there is a onflic4.3 of uthorit-21.7 in othe4.3 jurisdic4.3 tions the4.3 fe5 dera4.4 ourt onstruin-9.6 the4.4 of the4.4 sta4.4 will assum-3.6 woul-3.6 follow the ght of authorit-12.8 Here the ht of autho-10.6 holds that at east-4.4 en a ea rs he United States or 215the overnment it binds US AOs in all districts absent a provision to the contrar-18.1 ee e.g Unite-6.6 States Gebbie F.3d 3d Cir eriz-6.5 ing9.5 the Second Circuit statement in Annabi as an ical postur-7.8 unsuppo-10.8 rted prior Second Circuit cases on which it relied United ates Van Thornout F6 3d 8th Cir 215Absent an press limi7.8 tation mises made an Assistant United States Attorney20.8 in distric4.8 will bind Assista4.8 Unite4.8 Sta4.9 Attorney20.8 in othe4.8 distr3.9 United States Harve-6.4 2d 4th Cir is the nment at 204not just specific United State-6.1 Attorne-6.1 Unite es 217Districts 204that is bound agreem-12.9 ents tiated agents of Gove-6.9 rnment Gebbie rcui-4.1 ed Annabi and its predec-6.8 essor Second Circuit es in detail concludin-10.4 that the statement Case Document Filed Page of ed Annabi has no ticall-22.7 ound foundation Second Circuit case just plic4.8 itse4.8 time4.8 it is ite4.9 Gebbie 3d at ars tha4.9 the4.9 Circ4.9 uit is the4.9 cour-7.3 of appeals to take osition ed Annabi ven that three circuits ve held2.8 otherwise and at one of them has addressed the econd Ci uit reasonin-10.2 in Anna-9.8 bi in il is like5.1 the5.1 Ele5.1 th Circuit would follow the weig9.8 ht authorit-22.2 and ld that absent an provision to the contrar-18.1 a plea or non-prosecution eement ecuted in the a3 me of 215the United States binds USAOs in other districts As previousl-12.5 monstra-6.5 ed there is no conflict tween this position and Annabi as appl-3.6 ese cause Annabi supports smissal here ut to the tent that Annabi ould onstrue4.7 limiting10.7 the4.7 NPA effec4.7 to the4.7 SDFL11.7 it would onsiste4.7 nt with the4.7 Eleventh Circuit likel-11.9 disposition of th issue and should not be followed understand that Epstein and his counsel so ght to ensure to the fullest-12.5 tent possible that third parties would not face criminal liabilit-11.6 in conn-9.8 ection ith his actions in part to minimi8.1 the likelihoo10.1 that he would be enaed as a witness Epstein and his counsel reasonabl-22.6 under-7.6 tood that unlike Epstein own immunit-11.9 immunit-11.9 for his alleg10.1 onspira4.6 rs from prosec4.6 ution would not limite4.6 to the4.6 SDF6.6 To the4.6 nt tha4.6 the rnment intended to impose such a limitati1.4 on it was the oblig9.7 ation of the vernment in dra4.5 the4.5 sure4.5 tha4.5 suc4.5 limita4.5 tions inc4.5 ude4.5 ile4.5 to do so the4.5 overnme4.6 nt not sk this Court to limita4.6 tions into the4.5 spira4.6 or immunit-11.4 provision tha4.6 it did not ude4.6 the4.6 time4.6 the4.6 A tia4.6 Case Document Filed Page of The5.5 ohibition on the ecution Pote ntial Co-Conspirato-9.6 Is Not to tion or Cond5.7 uct Betw-8.3 een and or icular Stat3.1 utory nses overnm-4.7 char-9.7 ed the NPA onspirator immunit-12.2 provision as 215limited its terms to conduc4 spannin-10 from to and to violations of statutes not char-7.4 in this ndict-12.4 ment at char-8.7 curat-3.7 The4.6 onspira4.6 tor immunit-11.4 provision onta4.6 ns limita4.6 tion to ithe4.6 time4.6 riod or the4.6 sta4.7 ute4.7 on whic4.7 suc4.7 imina4.7 st the4.8 NPA via4.8 from the4.8 sta4.8 nda4.8 rd reeme4.8 in iling10.8 to inc4.8 ude limiting11 its sc5 ope5 to the5 SDFL12 it a5 so de5 via5 e5 fro-9 the5 sta5 nda5 rd ag11 re5 e5 e5 fa5 ilin-9.1 to spe4.9 c5 the conduct includin-10.7 the time period for the putative ndant in this case potential co-conspirato-10.5 rs 204cannot be ecuted As with its failu re to limi7.5 the co-conspirato-10.5 immunit-11.3 provision to the4.7 SDFL11.7 the4.7 rnme4.7 nt not now write4.7 NPA to limit the4.7 scope of red conduct-13.1 in a ma nner that it failed-10.3 to do in drafting9.7 the NPA At minimum the bse4.4 limit8.4 tion nde4.4 rs the4.4 ope4.4 the4.4 provision nd must be construed the rnment See ldman 3d at While4.9 the4.9 NPA r4 ita4.9 ls r4 nce4.9 the4.9 time4.9 riod nd list five4.9 pote4.9 tia4.9 sta4.6 utory20.6 offe4.6 nse4.6 the4.6 A substa4.6 ntive4.6 provi-3.6 sions sta4.6 blish no suc4.6 limit on the4.6 immunit-11.4 for pote4.1 ntia4.1 onspira4.1 rs for tha4.1 tte4.1 for Epste4.1 himse4.1 ithe4.1 tha4.1 time4.1 riod or those offenses As to Epstein the NPA provides immunit-12.9 i nses that arose-6.6 from the undefined al and investi-13.1 ation nd ii oth-11 e3 off-8 e3 es that have be-7 en the subje4.7 of the4.7 joint inve4.7 stig10.7 tion the4.7 dera reau of nvesti-12.5 ation and the United States at the is ited-7.2 utes ch7 g7 in7 h7 n7 at is co-5 ect ad-5 itio-5 n7 easo-5 n7 h7 at h7 rren8.7 dict-8.4 dict-8.5 ren8.7 ce olations6.1 Man8.7 par7.7 at itin5.7 U.S.C with-7.8 a Case Document Filed Page of Attorne-7 Of-8 fice.-11 NPA at The latter inv-11 e3 tig9.2 ation in turn compas-11.8 ses not ffens-11.8 es from the time period but also 215Epstein ound Id at hus for ample prosecution of Epstein a nse that arose out of the AO investigation into Epstein ound for an unlisted statut offense that arose from the grand investig9.6 ation would been prohibited er NPA The4.6 onspira4.6 tor immunit-11.4 provision doe4.6 not inc4.6 ude4.6 those4.6 mita4.6 tions provide5 simpl-11 tha5 the Unite5 Sta5 e5 will not nstitute5 any imina5.9 inst potential co-conspirato-10.5 rs of Epstein Id at phasis added provi-12.5 sion could not be clear-7.9 er eithe-6.9 on its or in the contex-10.9 of A as a whol-3.7 As absenc-7.7 of limiting10.8 the4.8 ision to prose4.8 tion in SDFL11.8 the4.8 nce4.8 of any limiting11.7 the offenses for which tential co-conspirato-11 rs nnot be prosecuted such is included as to Epstein must be presumed unde-6.5 co ntract interpr-7.6 tation princ-6.6 ples to have been inte4.9 ntiona4.9 See e.g Salle Bank F6 3d at Port Consol App at At minimum the silence as to time period and covere-14.3 conduct is an uity19.7 and erefore should be resolved ainst the government Gonzalez App at Even if the NPA re nstrued as placin-11.2 limita4.3 tion on onspira4.3 tor immunit-11.7 no rational limitation could clude the conduct leged The char-7.5 ges against Ms involve her alle-6.8 role a co-conspir-7.8 tor of Epst-12 ein involving10 alle-6 e4 nduct almost identical to the alle-6 e4 onduct that led up to th NPA eed the United-10.9 States Attorne-6.9 for this District in announcing9.7 the curr-7.3 ent indictment described it as uel to the earlier we ainst ffre-6.6 Epstein ee e.g nst Valiquette nter and Fitz-7.1 patrick effre-17.1 stein onfidante Ghislaine ell A rrested on Abuse arg8.6 NBC rk https://w.nbcne-6.1 k.co m/news/local/c-6.3 ime-and Case Document Filed Page of courts/g9.3 hislaine-6.7 well-arr-7.7 sted-je-6.6 epstein--7.6 And rnment has acknowled-10.6 ed omission that one of the thre alleg9.6 ctims refere in the current indic4.5 tme4.5 nt inte4.5 rvie4.5 USAO for SDFL11.5 See at 215two of the vic5 tims re5 fe5 re5 nc5 e5 d1 in the5 ndic5 tme5 nt e5 re5 ne5 ver a5 proa5 c5 h1 e5 d1 r4 inte5 rvie5 e5 the5 SD-7 FL12 As noted above Epstein and his counsel so ht to prevent prose-6 c4 ution nst his puta4.8 tive4.8 onspira4.8 tors to the4.8 imum nt ssible4.8 the4.8 ove4.8 nt inte4.8 nde4.8 to limit that protection to a specif-7.5 time period or to viola tions of specific statutes could have done so did not Thus Ms ell with conduct in which she alle-6.8 as part of a conspira-6.8 with Epstein 204conduct that at es the NPA 204the overn-11 me nt has violated the A sum none the thre-6.7 ments prof-7.7 the rnment the pplic4.2 bilit-11.8 of the4.2 NPA is ritorious Ms xwe4.2 ll is third-pa4.2 fic4.2 of the4.2 NPA with standing9.1 to enfor-7.9 ce co-conspir-7.9 tor immunit-12.3 provision The nspirator immunit-12.3 provision binds ll USAOs nd is not limite4.8 to SDFL11.8 impose4.8 no limita4.8 tion on the4.8 ope4.8 of cover-8 e3 condu-11 ct even if it did the conduc-6.4 alleged ould be overed At most the co-conspirato-10.1 immunit-12.1 provision is ambig9.9 uous and thus must be construed ainst the rnment use co-conspir-7.3 tor immunity provision rs the rnment prose-6.2 ution of Ms ell on char-7.8 ges arising out of her a ged conspira-6.1 with Epste-6.1 the indictment should be dismissed II In ive6.2 Should Disc6.2 ove6.2 and nduc6.2 an Evide6.2 iar6.2 Hearing Regarding th rties Intent.-10.7 The4.4 the4.4 nd the4.4 fac4.4 submitte4.4 with are4.4 more4.4 uffic4.4 nt for the Court to find that the NPA bars the prose-6.5 ution of Ms Max-10 w2 ell particularl-13.6 en Case Document Filed Page of itie5.2 onstru-8.8 they21.2 must st the5.2 overnme5.2 nt dra5.2 the5.2 lterna5.2 tive5.2 however A and rcum-3.8 ces of ecution merit discover-17.7 nd an evidentiar-17.7 rdin-8.5 the5.5 rtie5.5 inte5.5 nt To the4.7 nt tha4.7 trins9.7 ria4.7 do not ma the4.7 rtie4.7 inte4.8 nt Court is oblig9.7 ated to a findi-12.3 as to the rtie onable understandi with ambig10.4 uities resolved in Ms ell favor ee Gonzalez App at sis and citation omitte4.4 Courts in this uit routine4.4 ize5.8 the5.8 nee5.8 for identia5.8 where the istence or ope of a eem ent or non-prose-6.1 ution ent is in nuine dispute See e.g id a4 noting10 te4 stimon-10 fro-10 de4 fe4 nda4 nt a4 ttorne-16 United States Aleman 3d 2d Cir nding9.3 ere 215the district cour-7.6 failed to make a record at-4 al-4 ws us e2 rm-4 e2 nce c2 ope and eff-9 ect-4 of an g8 re-8 ent-4 Annabi F6 2d at noting9.8 that district court heard testimon-20.2 from prosecutors defendant and ndant-13.2 ounsel as of time the plea agreem-13 ent was ached United States Papa 2d 2d Cir desc-6.4 bing9.6 215two evidentiar-17.4 aring9.6 United States Sattar No Cr GK at S.D.N.Y noting9.6 concl-3.7 on eari-3.7 rra nted to determine ether an g9 re-7 ement iste4.6 wha4.6 its rms nd whe4.6 her the4.6 mplia4.6 with those rms Ms ell request an evidentia-6.6 ng and for discov-10.6 is at least as stron-10.6 as Feldman Ther-8.3 the district court denie-6.5 discover-17.5 to a fenda-6.6 nt who claimed that the g9 e3 rnment had e3 ed a writ of ecution in violation of oral re tations made in connection with the ndant plea ent holding9.7 that the eeme-6.3 nt merger ovision barred consider-8.2 ation of oral ements repres-12.1 entations The cond Circuit reve-6.2 rsed concluding9.3 at 215while district court is mig9.6 ht have een elling9.6 with ect to a Case Document Filed Page of ontra5.1 arising11.1 out of mme5.1 tia5.1 tions am priva4.6 rtie4.6 lie4.6 the4.6 did not corre-6.6 standards that rn th rpre4.9 tion of plea4.9 agree4.9 ts with the4.9 rnment ve ng recognized that plea reem ents are significant-12.1 ly different from commer-12.4 cont-3.4 ract-3.4 Feldman F6 3d at emphasis added-10.6 court plained Government condu-10.5 ct in ne otiatin-10.1 eemen-10 ts must comport with the hig9.4 est standa-6.6 rd of irne-6.6 ss use such ents involve waivers of fundamental constitutional rig9.9 ts ecutors are held to meticulous standards of performan-12.6 Id citations and intern-10.5 al quota tions omitted The court held that ven absence of discover-18 and an evident-13 ar-8 e3 r2 ing9 215the ecord does not furnish a basis a complete understandin-10.7 of at ppened in the cours-12.2 of plea tiati ons that the defend-11 ant evidence was ficient in these ci rcumstanc-6.9 require the distri ct cour-7.6 to take such action Id at Unlike5.7 the5.7 ree5.7 in Feldman the NPA ontains no integ9.4 ation se and the co-conspirato-10.4 immunit-12.4 provision on its face prosecution of Epstein potential co conspirators without limitation as to judicial di stri7.7 ct time period of th und-11 erl-13 g9 conduct or the statutor-7.4 violations leged Moreov-11 er unlike the defend-11 ant in Feldma-10.8 Ms ell had no role in the otiation of the NPA and thus all of the information va nt to its construction is in the possession of thi7.6 parties we understand that Epstein oug9.7 ht the imum protection from prose-6.4 ution possible for his poten tia4.5 onspira4.5 rs nd in stic4.5 participated in the ation of the NPA and there5.1 is ide5.1 tha5.1 the5.1 AO-SDFL12.1 onsulte5.1 with the USAO for this District in its inves ation SDFL11.4 Privilege This information could be irmed throu-10.4 discover-17.4 Media reports rding8.8 November OPR report furth-10.2 support ell position the tive summar-7.7 of OP report was rele-6.6 ased to the public and the Case Document Filed Page of ecut-3.3 es scuss co-conspi-13.3 ra tor immunit-12.2 provision-10.2 has een ported in the4.6 dia4.6 howe4.6 er tha4.6 the4.6 full OPR port st es Assi-3.4 es who neg11 o1 tia5 te5 the5 dea5 re5 c5 a5 lle5 Epste5 c5 ounse5 lling10.4 tha4.4 Epste4.4 inte4.4 nt sure4.1 tha4.1 the4.1 who the4.1 bla4.1 wha4.1 ppe4.1 Hill from the stice Departm-13.2 review ein sweethea-7.3 deal-3.4 ws Nov https://a5.1 m/US/key21.1 s-justic5.1 rtme5.1 view-je5.1 pste5.1 in sweethea-6.4 t/stor-7.4 port-3.8 accur-8.7 sugg8.2 rnment understood Epstein de sire to prote-6.1 his potential co-conspir-7.1 tors to the imum tent possible and that rnment ticulate-6.2 no objection i.e tha4.6 the4.6 no inte4.6 nt to limit the scope of the onspirator immunit-12.4 ision The accur-7.5 this account as ll as other information ut the plea otiations nd the parties intent a be confirmed throu-10.8 discover-17.7 Case Document Filed Page of CONCLUS-4.5 ION or the4.4 Ms ll spe4.4 ts tha4.4 the4.4 Court dismiss the4.4 indictment the altern-10.4 ativ-2.1 Ms ell respe-6.4 tfull-12.4 quests that the Court conduct an ide4.8 tia4.8 hea4.8 rega4.8 rding10.8 the4.8 of the4.8 A nd tha4.8 Ms ll rmitte4.8 to discover-17.9 in aid of such a hearin-10.9 Dated New York New spe5.1 submitte5.1 Mark Cohen Mark Cohen Christia4.9 Eve4.9 ll COHEN GRES-4 E1 Third Avenue-6.5 New York NY Phone e3 ffre-17 a3 g9 liuc-7 a A HADDON MORG-8.6 AN REMAN East 10th Avenue-6.3 Denver Color-7.4 do Phone obbi Sternheim fices of obbi Sternheim st 19th Street New York NY Phone Attorne4.7 for Ghislaine4.7 Max4.7 ll Case Document Filed Page of CERTIF11.4 ICATE RVICE certif-17.8 at on Januar-17.8 rved ail pursuant Rule the Court individual practices in criminal es the within memorandum and accompan-20.8 hibits upon the following9.9 Maurene Alison Moe4.4 ra Pomer-7.3 Andrew Rohrb-11.6 Attorne-7.3 ce One Andrew-10.4 a New York NY Maurene.-10.8 Alison.moe usdoj.g10.2 ra.Pomer-7.3 antz-6.3 usdoj.gov Andrew.Rohrb-10.9 ach Christ9.1 ian rde5.1 ll Case Document Filed Page of
