Last week, the Second Circuit upheld Jeffrey Epstein associate Ghislaine Maxwell’s sex trafficking conviction and 20-year sentence. On appeal, one of the questions presented was whether Mr. Epstein’s non-prosecution agreement (NPA) with the United States Attorney’s Office for the Southern District of Florida (USAO-SDFL) barred Maxwell’s prosecution by the United States Attorney’s Office for the Southern District of New York (USAO-SDNY). In arguing that Epstein’s NPA barred Maxwell’s prosecution by USAO-SDNY, Maxwell cited the portion of the NPA in which “the United States [ ] agree[d] that it w[ould] not institute any criminal charges against any potential co-conspirators of Epstein.” Op. at 9. The Second Circuit rejected Maxwell’s argument, holding 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.” Op. at 9-10 (citing United States v. Annabi, 771 F.2d 670, 672 (2d Cir. 1985)).
As noted by the Maxwell court, Op. at 10 note 11, circuits have been split for decades on whether one USAO can bind another USAO through a plea agreement when the language of the plea agreement is ambiguous. The Second and Seventh Circuits have adopted the most prosecutor-friendly view and construe any ambiguity in favor of the government and the second USAO’s right to prosecute, while the Third, Fourth, Eighth, and Ninth Circuits construe any ambiguity against the government, making it more difficult for the second USAO to prosecute the defendant.
The scope of the underlying NPA to purportedly bar any later criminal prosecution of unidentified “co-conspirators” was extremely unusual. Plus, it’s impossible to separate legal issues from the inevitable controversy that arises over anything connected to Mr. Epstein. In the end, however, this decision is unfavorable for defendants in the Second Circuit. It also erodes some of the trust by defense counsel in promises made by prosecutors in this very narrow context.
Background of the case
In September 2007, after lengthy investigations by both federal and state authorities for the alleged sex trafficking of underage girls, the late billionaire financier Jeffrey Epstein entered into an NPA with the USAO-SDFL. Epstein agreed in the NPA to plead guilty in Florida state court to soliciting minors for prostitution and to serve thirteen months in a county jail with work release during the day. In exchange, the USAO-SDFL agreed not to charge him with federal crimes in the Southern District of Florida stemming from its investigation. It also agreed not to bring criminal charges against any of his “potential co-conspirators.” The NPA was filed under seal.
The NPA was considered by many to be an overly lenient sweetheart deal, and DOJ’s Office of Professional Responsibility (OPR) opened an investigation in 2019 into whether the USAO-SDFL improperly resolved its investigation into the criminal conduct of Jeffrey Epstein by negotiating and executing the NPA without even consulting with the victims of Mr. Epstein’s conduct. OPR released a report in November 2020 in which it concluded that while the U.S. Attorney’s negotiation and approval of the NPA did not amount to professional misconduct, it nonetheless reflected “poor judgment.” Report at p. x. OPR also observed that “the NPA was unusual in many respects, including its breadth, leniency, and secrecy.” United States v. Maxwell, 534 F. Supp. 3d 299, 308 (S.D.N.Y. 2021) (citations to Report removed).
As the district court noted in the Maxwell decision, “[t]he U.S. Attorney’s promise not to prosecute unidentified co-conspirators marks a stark departure from normal practice for federal plea agreements. This provision appears to have been added with little discussion or consideration by the prosecutors.” Id. (citations to Report removed).
Circuit split
Circuits are split as to whether authority exists for one USAO to bind another USAO through a plea agreement when the language of the agreement is ambiguous. Under existing case law, both the language (in the plea agreement) and location (of the second U.S. Attorney’s Office) matter.
On one end of the spectrum, the Second and Seventh Circuits have espoused the most prosecutor-friendly interpretation, holding that when a plea agreement uses language such as “the Government,” it binds only that U.S. Attorney’s specific district “unless it affirmatively appears that the agreement contemplates a broader restriction.” Annabi, 771 F.2d at 672. See also United States v. Rourke, 74 F.3d 802, 807 n. 5 (7th Cir.1996) (noting that the Seventh Circuit’s holding was “consistent with the Second Circuit” in Annabi). The Second Circuit has clarified that “an affirmative appearance need not be an express statement.” United States v. Russo, 801 F.2d 624, 626 (2d Cir.1986). Thus, “a promise to bind other districts can be inferred from the negotiations between defendant and prosecutor, as well as from statements at the plea colloquy.” Id. (citations omitted). In the Maxwell decision, the Court explained that there was nothing in the text of the NPA or its negotiation history that affirmatively showed that the NPA was intended to bind multiple districts. Op at 10. “Instead, where the NPA is not silent, the agreement’s scope is expressly limited to the Southern District of Florida.” Id. (emphasis in original).
In contrast to the Second and Seventh Circuits, the Fourth Circuit has adopted the most defendant-friendly view. Under Fourth Circuit precedent a USAO’s use of terms such as “the Government” or “the United States” will bind the entire government (including all USAOs) unless there is an express limitation to the contrary. See United States v. Harvey, 791 F.2d 294, 302-03 (4th Cir.1986) (“though the Government negotiates its plea agreements through the agency of specific United States Attorneys—as necessarily it must—the agreements reached are those of the Government. It is the Government at large—not just specific United States Attorneys or United States “Districts”—that is bound by plea agreements negotiated by agents of Government…).
In a slightly less defense-friendly view that “does not go as far as the Fourth Circuit,” the Third Circuit has held that when a USAO negotiates and contracts on behalf of “the United States” or “the Government” in a plea agreement for specific crimes, that U.S. Attorney binds all U.S. Attorneys with respect to the specific crimes and same defendants. United States. v. Gebbie, 294 F.3d 540, 550 (3d Cir. 2002). The Third Circuit explained that U.S. Attorneys “should not be viewed as sovereigns of autonomous fiefdoms. They represent the United States, and their promises on behalf of the Government must bind each other absent express contractual limitations or disavowals to the contrary.” Id. Similarly, the Eighth Circuit has held that “[a]bsent an express limitation, any promises made by an Assistant United States Attorney in one district will bind an Assistant United States Attorney in another district.” United States v. Van Thournout, 100 F.3d 590, 594 (8th Cir. 1996). In the Ninth Circuit, while ambiguities in plea agreement must be construed against the government, where the language is clear in binding only a particular district, other districts are not bound by the agreement. United States v. Johnston, 199 F.3d 1015, 1021 (9th Cir.1999).
Implications for NPAs
Of note, although the agreement at issue in Maxwell was an NPA, the Court applied Second Circuit precedent regarding plea agreements. The Court made no mention of its analytical leap and simply assumed that the Annabi analysis of a plea agreement applies equally to an NPA. In fact, a quick Westlaw search did not uncover any cases—besides Maxwell— in which a court has analyzed whether authority exists for one USAO to bind another USAO of another district through an NPA. Although courts interpret these agreements similarly, there are several critical distinctions, including the fact that plea agreements must be approved by the court, not just the USAO.
This case is also unusual in that the party complaining about a subsequent prosecution was not a party to the original agreement. Ms. Maxwell (presumably) had no direct role in negotiating the NPA for Mr. Epstein and the Second Circuit may have been less willing to allow her to take advantage of the sweetheart deal in her case when the government had never made any promises to her. In the parlance of typical contracts, she was at best an implied, or incidental, third-party beneficiary of Mr. Epstein’s deal. She did not give up any rights in return for the deal, which may have influenced the outcome of the case. It is one thing to conclude that a defendant who accepted a serious punishment for offenses should not be prosecuted again for the same conduct. It is quite another to reach the same conclusion when the defendant has never been prosecuted or punished for her conduct.