EPSTEIN
page 7 / 51 . OCR, unverified
some other jurisdiction that chooses to interpret that
plain language promise in some other way. Only in
this way can the pronouncement of Giglio be upheld,
for “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, 405 U.S. at 154. See also
Commonwealth v. Cosby, 666 Pa. 416, 481-82, 252
A.3d 1092, 1131 (Pa. 2021) (finding by the Pennsylva-
nia Supreme Court that a promise made by a prior
prosecutor was binding on a subsequent one because
“[a]s prosecutors are vested with such ‘tremendous’
discretion and authority, our law has long recognized
the special weight that must be accorded to their
assurances.”).
B. Ordinary principles of contract interpre-
tation compel Annabi and Maxwell to be
reversed.
A plea agreement is a contract and is to be inter-
preted according to ordinary contract principles. See,
e.g., United States v. Williams, 102 F.3d 923, 927
(7th Cir. 1996); United States v. Warner, 820 F.3d 678,
683 (4th Cir. 2016); Van Thournout, 100 F.3d at 594.
In fact, in interpreting plea agreements, these ordi-
nary contract principles are to be employed even more
strongly in favor of the defendant because they “are
supplemented with a concern that the bargaining
process not violate the defendant’s right to fundamen-
tal fairness under the Due Process Clause.” Williams,
102 F.3d at 927 (internal quotation omitted). See also
United States v. Jordan, 509 F.3d 191, 195-96 (4th Cir.
2007); Van Thournout, 100 F.3d at 594. Pursuant
to these standards of interpretation, words within a
contract are to be afforded their ordinary meaning.
And to the extent that there is an ambiguity, such an
ambiguity is to be construed against the government.1
In addition, as discussed below as to the particular plea
agreement at issue in this case, the contract interpretation
principle known as expressio unius est exclusio alterius compels a
As to the first and most basic of these principles,
terms within a plea agreement are to be given their
ordinary meaning. See, e.g., Williams, 102 F.3d at 927;
Margalli-Olvera, 43 F.3d at 352; United States v.
Rubbo, 396 F.3d 1330, 1334 (11th Cir. 2005). See
Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts at 69 (2012) (“The
ordinary meaning rule is the most fundamental
semantic rule of interpretation.”) It should be beyond
reasonable dispute that the ordinary meaning of the
term “the United States” is the country as a whole.
This leads to the presumption that if a plea agreement
states that the “United States” cannot further prose-
cute an individual, this means that the United States
cannot do so anywhere in the United States. If that is
not what is intended, and the intent is to bind only a
particular district, this can easily be achieved by using
the ordinary descriptors for that district.
Second, the placement of language informs the in-
tent of the parties. During the course of the NPA
negotiations, the co-conspirator immunity clause was
severed from Epstein’s immunity clause and moved
geographically to the end of the NPA after the 2255
section. This is significant because the 2255 sections
“were not limited to any district.” The 2255 section
and the co-conspirator clause were negotiated in
tandem and the 2255 language was accepted in return
for the global immunity provided to the co-conspira-
tors. The co-conspirator clause was subsequently
severed from Epstein’s restrictive language and moved
geographically below the 2255 as a consequence. The
NPA was identified as a hybrid agreement where one
section referred to the district-specific language and
finding that the NPA precludes Maxwell’s prosecution in this
case.
the other was the more expansive global federal part
of the NPA.
Third, as every circuit recognizes (including the
Second and Seventh), it is a well- settled proposition
that ambiguities in a plea agreement are to be resolved
against the government. See, e.g., In re Altro, 180 F.3d
372, 375 (2d Cir. 1999); United States v. Carmichael,
216 F.3d 224 (2d Cir. 2000) (“[W]e ‘construe plea
agreements strictly against the Government.’”) (inter-
nal citation omitted); United States v. O’Doherty, 64
F.3d 209, 217 (7th Cir. 2011); United States v.
Transfiguracion, 442 F.3d 1222, 1229 (9th Cir. 2006).
Annabi, Thompson, and the opinion below flip this
guidepost on its head, holding that a promise of
immunity from prosecution by “the United States” is
to be construed against the defendant. 771 F.2d at 672;
431 Fed. Appx. 492 (App.8).
If it is not in fact clear on its face that the United
States means the United States as a whole, at most
the intent in using this term is ambiguous. Because
such ambiguity is to be resolved in favor of the
defendant and against the government, 180 F.3d at