EPSTEIN
page 4 / 51 . OCR, unverified
by asking for any other material gathered by OPR as
part of its investigation.
The District Court found that Maxwell was a
beneficiary of the NPA and had standing to enforce its
terms, but concluded that the NPA did not grant
immunity to Maxwell in the Southern District of
New York. The case proceeded to trial and the jury
found Maxwell guilty on, inter alia, Count Six.
(App.39). She was sentenced to a 240 month (20 year)
term of incarceration. (App.41).
In 2019, the Department of Justice Office of Profes-
sional Responsibility (“OPR”) issued a lengthy report
on its extensive investigation into whether the federal
government’s 2007-08 resolution of the federal inves-
tigation of Epstein through the NPA was improper.
See Appendix F, Excerpts of the Department of Justice
Office of Professional Responsibility Report (App.93).
OPR’s investigation overlapped the prosecutions
of Epstein and Maxwell in the Southern District of
New York. The OPR report did not contain a finding
as to whether the co-conspirator clause of the NPA
bound districts other than the Southern District of
Florida, but it reported that “witnesses” (none of whom
were on the defense side) stated that the clause
provided transactional immunity and that it “found
no policy prohibiting a U.S. Attorney from declining
to prosecute third parties or providing transactional
immunity.” (App.128-129).
C. The Second Circuit’s Decision.
On appeal, Maxwell argued that the NPA barred her
prosecution in the Southern District of New York by
its express language. The Second Circuit disagreed,
affirming the district court’s opinion that under United
States v. Annabi, 771 F.2d. 670, 672 (2d Cir. 1985), the
co-conspirator clause in the NPA did not preclude
Maxwell’s prosecution in the Southern District of
New York notwithstanding that the clause expressly
stated that the “United States” is barred from such a
prosecution. United States v. Maxwell, 118 F.4th 256
(2d. Cir. 2024). The court applied Annabi even though
the NPA had been negotiated in the Eleventh Circuit
where no similar precedent exists or applies. The
parties certainly expected that the law of the Eleventh
Circuit, where the NPA was entered into, would apply.
Nevertheless, quoting Annabi, the Second Circuit
held that “[a] plea agreement binds only the office of
the United States Attorney for the district in which the
plea is entered unless it affirmatively appears that
the agreement contemplates a broader restriction.” Id.
at 263. The court found that neither the text of the
NPA nor the “negotiation history” showed that the
co-conspirator clause was “meant to” bind other dis-
tricts, even though the clause contains no limiting
language and even though government witnesses told
OPR that the clause was, in fact, meant to provide
transactional immunity. (App.128).
Maxwell moved for rehearing en banc, which was
denied. (App.92).
REASONS FOR GRANTING THE PETITION
This case is the perfect vehicle for resolving an
acknowledged circuit split over the proper application
of this Court’s precedent regarding an important issue
of federal criminal law. Despite the fact that the term
“United States” has a widely accepted meaning in
perhaps every other context, when this term is used in
a plea agreement, it means something different in
New Jersey than it does across the river in New York
City. A criminal defendant who, after receiving a
promise that he will not be prosecuted again by the
United States, pleads guilty to resolve all criminal
liability, is not in fact resolving all criminal liability
because the United States remains free to prosecute
him anew so long as it does so in the Second or Seventh
Circuits.
This Court should resolve this conflict, ensuring that
plea agreements are enforced consistently throughout
the United States so that when the United States
makes a promise in a plea agreement, it is held to that
promise.
I. The circuits are split as to whether a promise
on behalf of the “United States” or the
“Government” by a United States Attorney’s
office in one district is binding upon United
States Attorney’s offices in other districts.
In Santobello v. New York, 404 U.S. 257 (1971), this
Court held that a prosecutor’s promise in a plea
agreement binds other prosecutors, even those who
might have been unaware of the promise. 404 U.S.
at 262. “Th[e] circumstances will vary, but a constant
factor is that, when a plea rests in any significant
degree on a promise or agreement of the prosecutor, so
that it can be said to be part of the inducement or
consideration, such promise must be fulfilled.” Id. And
in Giglio v. United States, this Court found that “the
prosecutor’s office is an entity and as such it is the
spokesman for the Government. A promise made by
one attorney must be attributed, for these purposes, to
the Government.” Giglio v. United States, 405 U.S.