No ILSON PES INTING I NC INGTO-9.3 D.C I HE Supreme Court of the United States HISLAINE AXWE-6.9 LL AKA LED EFEN-8.4 DANT Petitioner NITED TAT6.2 A CA Respondent On Petition for Writ of Certiorari to the United States Court of Appeals-5.1 for the Second Circuit REPLY SUPPORT OF i TABLE OF CONTENTS Page-6.8 TABLE OF AUTHO RITIES ii ii TABLE OF AUTHORITIES-5.6 CASES Page Prisco United State-6.3 U.S No Santobello ew rk U.S Thomas INS F.3d 9th Cir United States Andreas F.3d 7th Cir United States Annabi F.2d 2d Ci United States Carmichael F.3d 2d Ci United States Florida West Int Airways-17 F.Supp.2d S.D Fla United States John6 ston F.3d 9th Cir United States Max5.4 well F.4th 2d OTHER AUTHORITIES-5.6 Antonin Scalia Bryan A Garner Reading Law The Interpre4.8 tation of Legal Text-6.6 This circuit split presents exceptionally6.2 important question.42.4 lea and non-prosecu tion agreements resolv6 nearly every federa6 case20 They routinely inc9 lude-10 promi4.4 that extend hers 204co-conspi4.4 rators22.4 mily members23.5 potential witnesse If those promises mean different things in di5 fferent parts the untry127.1 then trust in our system collapses23.2 The Court should grant certiorari and restore consistency127.1 and credibility127.1 to the government word I The government concedes that circuits-4.8 are spli-4.9 as to ether a promise on behalf-5.9 of the 215United States by a United States-5.3 Attorney of strict binding upon other districts.18.2 The gover-6.3 ment like the Second Circuit in the opinion below agrees that th ere is lear circuit split on the precise questio5.1 posed by this etitio5.1 United States Maxwell 4th 215recognizing that circuits ve been split on thi5.4 issue decades23.4 As the Second Circuit noted,43.1 thi5.1 confli5.1 ct well documented and longstanding.11.7 Indeed,38.1 the government points out that litigants ve sought the Court c9 lari 002cation of this issue at least as far bac8.8 as when this Court denied certiorari in Prisco5.3 United ates States argu7.2 es that split is tition6.3 not c7 ming that at the inth Circuit not expressly dressed the matter at issue here21.3 While press26.6 Ninth Circ7.6 uit is pret6.5 ar tha5.8 agr7.6 ees wit6.5 tition6.5 er posit6.1 hold5.4 ing that a Att6.1 ey bind other distric7 ts and5.2 agencies26 9th and when in dou6.3 215the government must bear resp5.2 on sibi4.8 lit7 of arit7 in ose term4 ited States hns6.4 ton 3d 9th The government see5.1 ks to minimize the split as of 215limited importance becaus 215the scope of a plea or similar agreement is under the control of the parties to the agreement.38.1 This turns a blind eye to the problem.38 The very premise of etitioner argument is that the4.8 partie4.8 the4.8 A did see6 t5 control the scope of the relevant lauses narrowing the scope of immunity for Epstein through the of narrow language ecifying enforceability only in Southern District of Florid and then expanding the scope of it as to his co-con spirators by using the broad term 215the United States23.2 While doing Epstein wyers re doub6.4 infor4.4 by how that language interpreted in the jurisdiction in which they were practicing27.1 et by the issue5.1 presented this case10.1 and every other like it onl7.5 arises when language-10.3 in questi5 on is bei5 n1 interpreted in6 a differen6.5 jurisdiction than the one where the agreement negotiated.38 Accordingly127 uniformity in interpretatio5 of suc8.9 a provision is unusually and particularly compelling27.1 The nature of a lause of this nature unlike most other lauses in an agreement,38.1 whic9.1 are not cross-jurisdictional in nature cries out for nationwide symmetry127.1 The government also5.1 contends23.1 rather bizarrely127.1 that 215this is not itself a case that turn5.8 on any fault rule19.8 the contrary126.9 it precisel7.7 the Secon6.1 Circuit default rule20 adopted in United States Annabi 2d 2d that doomed etitioner to stand trial on a case that would ve been dismissed outright at least half the5.1 country127.1 The primary ason this Court sh ould grant certiorari is to create one5.2 single defa6.2 ult rule5.2 across the4.8 untry as to what parties mean when they use the5.1 term United Sta6.2 es without further quali 002cation II The Second Circuit decision below is wrong6.1 and violates the principles set forth in this Court prior opinions.18.4 In attempting to defend the S5 econd Circuit out come20.2 the government advances a series of contentions about the Epstein6 NP57 scope20 the Attorney authority127.1 contract ctrine5.1 and canons of con6.1 struction.38.1 Eac9.1 lac9.1 merit As the government knowledges22.8 the start ing point in any contract is the the text could not be more lear98.6 In exc8.6 hange for Epstein guilty plea and other penalties and concession5.7 215the United States also ag rees that it will not criminal harges against any6.4 potentia7.2 co-conspira5.4 ors ing but not limited to four phasis add4.8 This promise is unquali It not geographically limited to the Southern District of Florida,38.1 it is ot conditioned on the co-conspirators being known by the government at the time20.3 it does not depe5.3 nd on what any particular government attorney ve had his or her head about who might be a co-conspirato5 and it contains no other veat or exception.38.2 This should be the end of the discussion.38.1 See Santobello New en a plea rests in any signi 002cant degree on a promise or ag7 reement of the prosecutor99 so that it can be said to be part of the inducement or consi5.1 eration,38.1 suc9.1 promise must fulfilled.42.2 ignored by the go vern5.1 ment in its opposition The government see5.4 ks to evade5.4 this straig7.4 htforw18.4 ard language by focusing on other lauses in the A and on extrinsic context,38.1 but its efforts only7.1 underscore that the plain meaning vors etitioner98.7 the government notes as did the Second Circuit that A explicitly limit ed stein own immunity to the Southern District of Florida,37.7 pointing to a lause stating that after Epstein ful 002lled the agreement,38.1 prosecutio5.6 for the fenses set out on pages and of this Agreement will be instituted in is District The gover-6.2 ment then urges the Court to follow it through the lookin glass22.7 offering inexplicable suggestion that absence of a simila6.3 this District qua6.1 li in co-con6.1 spirator lause should be nored as mmaterial.38.3 Of course19.9 basic interpretive nons point in exactly the oppo5.4 site recti5.4 When partie5.4 inc9.4 lude an express territorial limitation in one c9 lause of a contract omit it in anoth the omission must be presumed intention5.6 Antonin Scalia Bryan Garner98.9 Reading The Interpretatio4.9 of Legal exts As stice Scalia and Bryan Garner ve explained,38.1 material variation in terms suggests a variation in meaning21.6 at Here20 the drafters knew how to con the promise to a single district they did so for Epstein personal non-prosecutio4.6 assurance20.5 when6.5 it me to Epstein 215potenti5.5 co-conspirators23 the drafters c9 h6 ose broad,43 unquali language20 In fact,38 n6 ot only di5 the parties use5 a6 unrestricted jurisdictional aus cons-5.6 they amended the cument fro5.3 a previous draft whic9.2 the co-conspirator immu6.2 nity mited to the5.2 Southern District of Florida,37.6 hanging it to refer more broadly to the 215United States22.2 The gover-6.2 ment terpretation cannot be correct because it would render super 003uous the phrase this strict in the Epstein5.9 lause19.9 If the 215United States means just the Southern District of Florida5.9 why specify the district for Epstein The only logical inference is that the co-con6.2 spirator promise meant reac9.2 more broadly127.2 in line with6.2 diffe5.2 ren6.2 phrasing27 At the very least there is a tex6.8 ual ambi guity126.3 and under ntobello the5.2 ntract inter pretation principle contra proferentum suc9.3 ambigu ity must be construed against the4.8 government as the drafter and promisor98.7 United States Carmic19 h1 ael 3d 2d 217construe4.8 plea agreements strictl4.8 against the Govern ment.38 internal citation o5 itted OPR repo5 rt 215OPR at con 002rming that wrote the speci nguage in question Under normal reading of this contract,37.9 fede4.9 ral harges can be brought-6.3 against any co-conspirator in any district-6.3 in the United States27.7 Reading the A a whole means giving effect to the deliberate difference in phrasing between th6 Epstein-fo5.4 cused lause and the5.4 co-conspir4.4 ator lause20.4 It is as t6 he governm9 nt co ntends25.5 215extrem8.4 ly strange for Epst6.4 ein to ve secur7.5 oader immun6 ty for his co-conspirators than he as get6.4 tin6.8 for mself40.2 Defend5.7 ants ys try to get as man6.2 bene in a plea agr6.9 eement as they can here26.9 Epst6.4 ein able to obt6.4 ain an add5.7 itional for his co conspirat5.8 rs that he unable to secure for h6 mself39.4 no dou6 because the vernment torneys 215wouldn ve en interested6.3 in pros8.9 ecuti4.6 any5.1 else22 see also Epst7 ein ted t7 m4 sure at he one who t7 the for wha5.7 ppened.39.1 ter7.5 nal ation ted In ditio-6.8 stei-6.2 concerned-4.7 that-4.1 r3 or as arg5.1 els8.9 ere22 he ght ed to sti4.6 open7.2 ing up to poten6.3 tial c7 arges in a differ7 ent rt of cou6.3 This antit6.9 ica6.2 the oba6.2 r8 lut6.9 on stein s9 ugh7.3 ver8.3 nt is out thin7.6 scop6.5 a partic7.6 lar agreem9.5 ent is der rol of the rties27.2 As Natio-8.1 al Associati-7.5 of Cr inal Defense wyers observes in its amicu6.1 brief39.9 feder7.2 pros8.2 ecut6.1 ors know well how to draft-5.9 It means recognizing that whe5 n1 the parti5 es intende5 to mean 215only in the Southern Distri4.9 ct of Florida,37.9 they said so explicitly126.6 and that their use of all-encompassing term 215the United States in the co-conspir4.5 ator ause purpo5.5 seful.38.5 The government vocation of 215context and the purported purpose o5 f3 the NP57 A i5 no5 more5 persuasive20 The gover-6.2 ment suggests that a broad grant of immunity cannot ve been made because there-5.3 no nsultation with the5.1 Southern District of New The record does not rmit suc9.5 a conc8.9 lusion,32.9 as the strict court denied a hearing and the etitio5.1 er granted any discovery127.1 so there5.1 is no to con who nsulted.38.2 But the reco5.2 rd is lear in any event that the A signed on behalf of the United States Attorney for the Southern District of Florida,42.6 who ily involved in the negotiation and appro4.8 val process22.8 In addition,37.8 representatives of the Department of u6 stice were also actively involved-6.1 in the dra6.1 fting and approval process23.1 inc9.1 luding the Chief of Child ploitat ion and Obscenity Section and the Principal Deputy Assistant Attorney General for the4.5 Departmen5.5 Criminal4.5 Division.42.5 If these of 002cials failed to do what their internal5.1 policy sug6.9 ested appropriate19.9 it irrelevant.37.9 The provision in the Attorneys Manual vising Attorneys not to bin6 other districts a1 relevant in6 OPR review of the4.9 government attorneys actions in this It doe5.2 not rm the tcome here20.2 however98.9 despite the government vy reliance on it agr8.1 eem10 ents to lim10 it eir8.1 scope en that is what7 they ten7.4 and bur8.1 en is on em10 to eci Whe4.2 ey lin7.4 t7 simple narrowin5.8 terms25.5 this Co urt shou6.2 ld make ear that broa6.2 lan7.3 ge ey us9 wil4.7 its ord6.2 nar8 throughout its brief38.2 What a osecutor should ha10 ve done is ot relevant;38.2 whether or not Southern District of Florida should ve prohibited the Southern District New rk from prosecutin6.4 Ghislaine Maxwell,38.1 it learly did Nor can the government appe5.2 al to context exc9.2 lude etitioner from the ear luding but limited to language whic8.6 unmistakably signaled-6.4 an intent-6.4 to cover all 215potential coconspirators22.5 not just those who were speci 002cally named.37.5 Indeed,37.5 the broad luding but not limited to lause shows the parties contemplated both known and unknown accomplices22.8 and it the government drafted the 002nal broad language20.2 intentionally dec9.2 lining to further enumerate individuals22.7 The purpose to assure Epstein that pleading guilty would protect all his associ5 ates from federal prosecution effectively losing the federal5.3 case mpl5.3 etely127.3 That-7.3 purpose perfectly consistent with the ain it is the overn5.9 men5.9 ct spin tha5.9 con5.9 ten5.9 h1 ver7.7 n7 nt h7 erry4.9 pic7.7 k1 sn7 ipp5.9 ts sti4.4 ony from15.6 the re4 of inc7.9 nsist6.8 e4 nt with oth7.2 statem9.9 ents r2 sam9.9 vernm9.9 att6.9 eys27 or ic8 the rspe4 cti4.6 o4 ose who adm9.8 itt6.8 e4 to unc7.9 o4 who r8 vacat6.9 or oth7.3 ise seng5.2 ed at the r8 ant6.9 time21.6 Ther7.5 a len6.8 thy and5.7 fort6.4 neg5 ing proc7.8 ess to usi4.5 of this som3.7 of it recor6.9 ed by the report,38.5 some See Non6.4 of is so the fact sel4.7 f-s9 erv5.2 statem9.9 ent6.9 s3 of var8 partic7.7 ants to th7 proc7.7 should nor7.7 The is ridd5.2 led with stat5.9 emen6.3 ts re ctin6.3 that gover7.2 ment ver7.2 concern6.5 ab out the stren6 th of its that it had dou6.8 bts it would result a guilty ver7.5 and tha5.7 many of alleged vic7.2 tims did not nt asp5.4 ct of cas8.2 go tria6 attemptin6.4 to import unwritte5.4 limits at the deal makers not inc9.4 lude20.4 The government gument,37.9 across the4.9 board,37.9 is essentially an appeal to what it wishes the agreement had rather than what it actually Of course24.5 if wishful thinking were the sta6.3 the whole A would been thrown out lon5.5 The government-6.5 has spent years lamenting that agreement,37.3 and init-5.3 a massive invest igat-4.6 ion into its execution whic9.1 resu6.1 lted in OPR conc9.1 lusion that attorneys who negotiated it o5 n1 behalf o5 the gove5 rnment di5 many things contrary to internal government policy and typical practice20 App19 di5 trict court order noting OPR 002ndings that the A 215unusual in many respects23.1 inc9.1 luding its eadth,38.1 leniency127.1 and secrecy128.1 see also50.5 The entire co-con6 spirator prov7 ision itself putting aside the issue of the juris diction in whic)8.7 it is enforceable according to unus-7.2 ual for suc8.8 an agreement as the amicus notes22.4 the fact that the deal unconventional does not license the government the courts to write5.3 confo5.3 to ordinary or preferred gove3.6 rnmental practice16.3 Amicus-5.7 the contrary126.6 it underscores tha5.6 Epstein negoti-5.2 ators sought-6.2 obtained,37.8 an expansi-5.2 guarant-6.2 The gover-6 n1 ment also suggests that etitioner is not entitled to enforce the A because not a party it and ot named But as the court belo5 recogniz6 ed and as hornbook contract la16 Maxw-5.5 ell has ng enforc-4.7 the ent as a third party ben6 App19 eti5 tioner fall5 squarely within the lass of persons 215any potential-5.1 co-conspirators of stein that the A expressly protected.38.1 She is therefore an intended bene 002ciary of the agreement,38 and she has standing to enforce United States Andreas 3d 7th providing that individuals who are not parties to a plea agr-6 eement ma11 enforce like other third-party bene 002ciaries22.9 whe4.9 the original parties intended the contract to directl5.5 bene them as thi5.5 rd parties ioner alleged atus as stein onspir-5.3 ator-5.3 as the entire basis of her prosecution.37.2 The language demonstrates that the parties anticipated-6.2 that there were additional co-conspira6.2 ors beyond those already known.37.4 By using ng but not limited to before naming some individuals22.9 government knowin5.7 gly extended the bene of bargain to other un6 named individuals who parti5 ci pated in Epstein s3 offenses23 Whether the government attorneys personally knew th identities of every person is beside the point;38.2 they certainly knew the5.2 could be hers hence the language Ghislaine Maxwell name as well known to Epstein circ8.2 le and as referenced in public reporting at the time of the But even if she had been entirely unknown,37.9 the broad language of the A evidences an intent to cover whoever might later be deemed a co-conspirator98.9 Accordingly127 etition6 er can6 re5 ly on the5 immunity ause in the United States Florida est Int Airway5.5 Supp18.7 2d dismissing indictment against employee who fell within6.1 the lass of employ7.1 ees described in plea agreement The gover-6.5 ment suggestion that it would drafted agreement differen5.8 tly had it speci 002cally had etitioner in mind is both unprovable and irrelevant.37.7 If anything26.7 the inc8.7 lusion of speci names alongside a general category shows the parties some of the ers and also anted to cover any others prevent any federa prosecution of Epstein circ9.5 Whether or this wise20.5 it the and etitioner is entitled to enforce it I This case is an ideal vehicle resolving-8.7 the split over this-4.8 important recurring question It is hard to imagine a more compelling scenario for this Court review:38.1 for decades the same federal promise yielded opposite results in differen6.4 jurisdictio5.2 undermining the uniformi5.2 ty of deral la11 and th6 integrity of plea6 bargains nationwide20 This Court rev7 iew is a1 rranted CONCLUSION or the foregoing reasons22.7 this Court should grant-6.3 the petitio5.4 for rtio5.4 ari Respectfully submitted AR ARKUS Counsel of Record-6.2 ONA KUS ARKUS OSS PLLC Third Street nthouse One Miami,38.8 FL dmarkus markusla10.7 com Counsel e1 tioner-4.5 July
