EPSTEIN
page 6 / 51 . OCR, unverified
(defined in that agreement to include its “depart-
ments, officers, agents, and agencies”) binds not
just the office of the U.S. Attorney but also the
Immigration and Naturalization Service. 35 F.3d at
1337-38. Although the plea agreement in that case
defined broadly that all governmental agencies would
be bound, the Ninth Circuit cited approvingly to the
broader proposition that “the United States govern-
ment as a whole uses United States Attorneys as
its authorized agents to negotiate plea bargains in
criminal cases, so their authorized agreements bind
the government as a whole.” Id. at 1340. See also
United States v. Johnston, 199 F.3d 1015, 1020-21
(9th Cir. 1999) (recognizing that although a plea
agreement which specifically and expressly limits a
non-prosecution promise to a particular U.S. attor-
ney’s office is enforceable only against that office, this
is an exception to the general principle that a plea
agreement is binding upon all districts).
B. The Second and the Seventh Circuits apply
the opposite presumption. They refuse
to enforce a promise made on behalf of
the “United States” or “the Government”
except against the particular United States
Attorney’s office which entered into the
agreement, unless the agreement expressly
reiterates that the term “United States”
does in fact mean the entire country as a
whole.
Second Circuit. In the decision below, in reliance
on Annabi, 771 F.2d 670, the Second Circuit held
that the government’s promise that the “United
States” would not prosecute any of the defendant’s
co-conspirators was only enforceable in the Southern
District of Florida, and not in the Southern District of
New York. United States v. Maxwell, 118 F.4th 256,
261 (2d Cir. 2024). The Maxwell court found that
it must “affirmatively appear[] that the agreement
contemplates a broader restriction” in order for the
“United States” to mean the country as a whole, even
if entered into in a district in which the term “United
States” does, in fact, mean the country as a whole.
Id. at 263.
Seventh Circuit. Although the Seventh Circuit
has not considered the question presented in the
specific context of the enforceability of a promise
made in a plea agreement against a different U.S.
Attorney’s office, it has held in a related context that
“[a] prosecutor’s agreement will not bind more than
the office of the United States Attorney unless the
promise explicitly contemplates ‘a broader restriction.’”
Thompson v. United States, 431 F. App’x 491, 493
(7th Cir. 2011) (finding that a promise on behalf of the
government by a prosecutor would not bind the INS).
See also United States v. McDowell, No. 94-CR-787-1,
2006 WL 1896074 (N.D. Ill. 2006) (finding in the
context of Rule 35(b) motions that “a United States
Attorney has sole authority to bind his own office” only
and lacks authority to compel a U.S. Attorney in
another district to file a Rule 35(b) motion).
II. The Second Circuit’s decision below is wrong
and violates the principles set forth in this
Court’s prior opinions.
The opinion below, which is based on the Second
Circuit’s prior holding in Annabi, is wrongly decided
and should not stand. Rather than the Second
Circuit’s default rule that a promise made on behalf of
the United States does not bind the United States as
a whole, the default rule should be that a promise
made on behalf of the United States binds the entire
United States unless it says so affirmatively (as, in
fact, the agreement at issue here did for Epstein
himself, but not for his co-conspirators). As set forth
above, this is consistent with Santobello and Giglio,
and with ordinary principles of contract interpreta-
tion. And it is the only principled way to interpret the
plain language of this agreement, as well as the
available information on the parties’ intent.
A. Both Annabi and the opinion below were
wrongly decided under Santobello and
Giglio.
It is impossible to square the Second and Seventh
Circuit’s policies on plea agreement interpretation
with this Court’s holdings in Santobello. As this Court
correctly determined in that case, “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.” 404 U.S. at 262.
There is perhaps no promise the government makes
within a plea agreement that is more fundamental
than the promise that by pleading guilty, the defend-
ant is resolving his or her legal culpability for the
conduct at issue, and that after accepting and serving
the penalty contemplated in the agreement, he or she
can move forward without fear of additional prosecu-
tion for that conduct. A defendant should be able to
rely on a promise that the United States will not
prosecute again, without being subject to a gotcha in