Document 33

Case 21-770, Document 33, 04/05/2021, 3070417, Page1 of 2 United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007 DEBRA ANN LIVINGSTON CHIEF JUDGE CATHERINE O'HAGAN WOLFE CLERK OF COURT Date: April 05, 2021 Docket #: 21-770 DC Docket #: 1:20-cr-330-1 Short Title: United States of America v. Maxwell DC Court: SDNY (NEW YORK CITY) DC Judge: Nathan NOTICE OF DEFECTIVE FILING On April 05, 2021 the Acknowledgment and Notice of Appearance, was submitted in the above referenced case. The document does not comply with the FRAP or the Court's Local Rules for the following reason: Failure to submit acknowledgment and notice of appearance (Local Rule 12.3) Failure to file the Record on Appeal (FRAP 10, FRAP 11) Missing motion information statement (T-1080 - Local Rule 27.1) Missing supporting papers for motion (e.g., affidavit/affirmation/declaration) (FRAP 27) Insufficient number of copies (Local Rules: 21.1, 27.1, 30.1, 31.1) Improper proof of service (FRAP 25) X Missing proof of service Served to an incorrect address Incomplete service (Anders v. California 386 U.S. 738 (1967)) Failure to submit document in digital format (Local Rule 25.1) Not Text-Searchable (Local Rule 25.1, Local Rules 25.2), click here for instructions on how to make PDFs text searchable Failure to file appendix on CD-ROM (Local Rule 25.1, Local Rules 25.2) Failure to file special appendix (Local Rule 32.1) Defective cover (FRAP 32) Incorrect caption (FRAP 32) Wrong color cover (FRAP 32) Docket number font too small (Local Rule 32.1) Incorrect pagination, click here for instructions on how to paginate PDFs (Local Rule 32.1) Incorrect font (FRAP 32) Oversized filing (FRAP 27 (motion), FRAP 32 (brief)) Missing Amicus Curiae filing or motion (Local Rule 29.1) Untimely filing DOJ-OGR-00001312 --- PAGE BREAK --- Case 1:20-cr-000330-AJN Document 33 Filed 07/28/20 Page 1 of 7 U.S. Department of Justice United States Attorney Southern District of New York The Silvio J. Mollo Building One Saint Andrew's Plaza New York, New York 10007 July 28, 2020 VIA ECF The Honorable Alison J. Nathan United States District Court Southern District of New York United States Courthouse 40 Foley Square New York, New York 10007 Re: United States v. Ghislaine Maxwell, 20 Cr. 330 (AJN) Dear Judge Nathan: The Government respectfully submits this letter with respect to the protective order to be entered in the above-captioned case, and to respond to the defendant's letter and submission of July 27, 2020 (the "Defendant Letter" or "Def. Ltr.") (Dkt. 29). The Government and defense counsel have conferred regarding a protective order several times via telephone and email between July 9, 2020, and today, including as recently as this morning. The Government and defense counsel have come to an agreement on much of the proposed protective order. However, the parties disagree as to two inclusions sought by the defendant which the Government objects to and for which, as detailed herein, the Government submits there is no legal basis. Accordingly, the Government respectfully requests that the Court enter its proposed protective order (the "Government Proposed Order"), which is attached hereto as Exhibit A, and which differs from the defendant's proposed order in those two respects, as further described below. A. The Defendant's Request to be Permitted to Publicly Name and Identify Victims As detailed herein, the Government seeks to protect the identities of victims, consistent with their significant privacy interests and the well-established law in this Circuit, and proposes a protective order consistent with those very significant interests. In contrast, the defendant insists that the protective order be modified such that she and her counsel would be permitted to "publicly reference[e]" individuals, by name, who have "spoken on the public record to the media or in public fora, or in litigation - criminal or otherwise - relating to Jeffrey Epstein or Ghislaine Maxwell."1 1 Specifically, the defendant's proposed protective order differs from the Government's in that it adds a sentence, in its paragraph 6 (which is paragraph 5 of the Government Proposed Order), stating the following: "Nor does this Order prohibit Defense Counsel from publicly referencing individuals who have spoken on the record to the media or in public fora, or in litigation - criminal or otherwise - relating to Jeffrey Epstein or Ghislaine Maxwell." The defendant also either adds or otherwise - relating to Jeffrey Epstein or Ghislaine Maxwell." DOJ-OGR-00001664 --- PAGE BREAK --- Case 21-58, Document 33, 04/01/2021, 3068185, Page1 of 1 NOTICE OF APPEARANCE FOR SUBSTITUTE, ADDITIONAL, OR AMICUS COUNSEL Short Title: United States of America v. Maxwell Docket No.: 21-770/21-58 Substitute, Additional, or Amicus Counsel's Contact Information is as follows: Name: David Oscar Markus Firm: Markus/Moss PLLC Address: 40 NW Third Street, PH 1, Miami, Florida 33128 Telephone: (305)379-6667 Fax: (305)379-6668 E-mail: dmarkus@markuslaw.com Appearance for: Ghislaine Maxwell Select One: Substitute counsel (replacing lead counsel: ____________________ (name/firm) Substitute counsel (replacing other counsel: ____________________ (name/firm) Additional counsel (co-counsel with: Christian R. Everdell/Cohen & Gresser LLP (name/firm) Amicus (in support of: ____________________ (party/designation) CERTIFICATION I certify that: I am admitted to practice in this Court and, if required by Interim Local Rule 46.1(a)(2), have renewed my admission on ____________________ OR I applied for admission on ____________________. Signature of Counsel: ____________________ David Oscar Markus Type or Print Name: David Oscar Markus DOJ-OGR-00019826 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 1 of 38 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, -against- Tova Noel and Michael Thomas Defendants. 19 Cr. 830-2(AT) Oral Argument Requested MOTION OF MICHAEL THOMAS TO COMPEL DISCOVERY Montell Figgins, Esquire Attorney for Defendant, Michael Thomas The Law Offices of Montell Figgins, LLC 17 Academy Street Suite 305 Newark, NJ 07102 973-242-4700 April 9, 2020 DOJ-OGR-00022024 --- PAGE BREAK --- Case 21-770, Document 33, 04/05/2021, 3070417, Page2 of 2 Incorrect Filing Event X Other: PLEASE RE-FILE UNDER BOTH DOCKET NUMBERS 21-58 - L AND 21-770 (con). THE ACKNOWLEDGMENT FOR MUST ALSO LIST THE LEAD DOCKET NUMBER. Please cure the defect and resubmit the document, with the required copies if necessary, no later than April 07, 2021 resubmitted documents, if compliant with FRAP and the Local Rules, will be deemed timely filed. Failure to cure the defect by the date set forth above will result in the document being stricken. An appellant's failure to cure a defective filing may result in the dismissal of the appeal. Inquiries regarding this case may be directed to 212-857-8577. DOJ-OGR-00001313 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 33 Filed 07/28/20 Page 2 of 7 The Honorable Alison J. Nathan July 28, 2020 Page 2 The defendant's demand that she and her counsel be permitted to name any individuals who have ever publicly identified themselves as a victim of either Epstein or the defendant in any "public fora," and at any time, without limitation, is extraordinarily broad, unnecessary, and inappropriate, and should be denied. As an initial matter, there can be no serious question that there are significant privacy and victim interests at issue here, which the Government Proposed Order seeks to protect. Particularly in the context of victim witnesses, there are compelling reasons to limit public disclosure of victim identities and other sensitive information. Indeed, the Crime Victims' Rights Act, 18 U.S.C. § 3771, requires district courts to implement procedures to ensure that crime victims are accorded, among other rights, "[t]he right to be reasonably protected from the accused," in addition to "[t]he right to be treated with fairness and with respect for the victim's dignity and privacy." Id. §§ (a)(1), (a)(8) (emphasis added). Moreover, "the public generally has a strong interest in protecting the identities of . . . victims so that other victims will not be deterred from reporting such crimes." United States v. Paris, 2007 WL 1484974, at *2 (D. Conn. May 18, 2007). Moreover, and consistent with those interests, courts in this Circuit have routinely acknowledged the need to protect victim-witness identities. See, e.g., United States v. Corley, 13 Cr. 48 (AJN), 2016 WL 9022508, at *4 (S.D.N.Y. Jan. 15, 2016) ("Because Corley's minor victims have significant privacy and safety interests at stake, while Corley's interests are minimal, the Court finds good cause to modify the protective order in this case to prevent Corley from learning the surnames of the minor victims."); United States v. Kelly, 07 Cr. 374 (SJ), 2008 WL 5068820, at *2 (E.D.N.Y. July 10, 2008) ("Given the potentially explicit nature of the government witnesses' expected testimony, the government argues that it is necessary to conceal their identity to protect them from public humiliation and embarrassment. This Court agrees. Thus, the parties [. . .] are hereby prohibited from releasing to anyone, including members of the press, the identity or any identifying information of the government's witnesses."). It is similarly routine in this District for parties in a criminal case to refer to witnesses by pseudonyms (such as "Victim-1" or "Witness-1") to protect the privacy interests of third parties unless and until they testify publicly. The Government's proposed order endeavors to protect those interests by generally requiring the parties to abstain from identifying any victim by name in any public statement or filing while also ensuring that the defendant and her counsel are fully able to prepare for trial. Indeed, to facilitate the defendant's investigation and preparation for trial, the Government's proposal makes clear that defense counsel and defense staff, including defense investigators, should not be prohibited from referencing identities of individuals in conversations with prospective witnesses, so long as those witnesses and their counsel abstain from further disclosing or disseminating any such identities. See Government Proposed Order ¶ 5. The terms of the Government's proposed order also would permit defense counsel to refer to any individual by name in any filing under seal, merely requiring redaction of identifying information or the use of a pseudonym in public filings. The Government further proposes that defense counsel not be prohibited from publicly referencing individuals who have spoken—or who at some future time or deletes language in furtherance of its desire to publicly reference victim identities in defense paragraphs 7, 9, and 17 (which are Government Proposed Order paragraphs 6, 7, and 16). DOJ-OGR-00001665 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 2 of 38 TABLE OF CONTENTS TABLE OF AUTHORITIES.......................................................ii-iii INTRODUCTION...............................................................1 BACKGROUND...............................................................2 A. The Indictment Alleges that Mr. Thomas Conspired with Co-Defendant, Noel, and Created False Records.......2 B. Mr. Thomas' Rule 16 and Brady-Giglio Requests for Production of Documents Have Been Denied.......................2-3 C. The Inspector General's Report and Any Other Reports, Documents, and/or Memoranda Made by Other Federal Agencies Investigating the Incident Surrounding the Death of Jeffrey Epstein Are Discoverable and Must Be Produced.......3-4 D. The Information Sought by This Motion...............................4-7 ARGUMENT..................................................................8 A. The Complete Inspector General's Report, as Well as the Other Reports Requested Are Necessary for Michael Thomas to Prepare His Defense...........................................8-11 B. Rule 16 and Brady-Giglio Include the Production of Documents And Reports Generated by Other Agencies................11-14 C. The Reports and Documents Requested Are Discoverable Under Brady....................................................14-16 CONCLUSION................................................................16 SIGNATURE AND SUBMISSION...................................................16 iDOJ-OGR-00022025 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 33 Filed 07/28/20 Page 3 of 7 The Honorable Alison J. Nathan July 28, 2020 Page 3 speak—by name on the public record in this case, as one victim has already chosen to do, because those victims, and only those victims, have affirmatively chosen to be publicly identified in connection with this case. These proposals are reasonable, narrowly tailored, and not broader than necessary to protect victims' privacy interests, safety, and well-being, to avoid potential harassment of witnesses by the press and others, and to prevent undue embarrassment and other adverse consequences. At this stage in the case, permitting defense counsel to refer to witnesses by name in sealed filings, to refer to witnesses by name in the course of private conversations during their investigation, and to refer by name to individuals who have made the affirmative choice to be identified by name in connection with this criminal case is more than enough to enable the defendant ability to vigorously pursue her defense. The defendant has rejected this proposal because, as noted above, she believes that she and her counsel should be permitted to “publicly reference[e]” individuals, by name, who have “spoken on the public record to the media or in public fora, or in litigation – criminal or otherwise – relating to Jeffrey Epstein or Ghislaine Maxwell.” In support of the defendant's application for such sweeping ability to publicly name any such individuals, defense counsel provides only the conclusory assertion that an inability to publicly reference the names of victims, in court proceedings and beyond, will hinder their ability to investigate, prepare witnesses for trial, and advocate on the defendant's behalf. The Government has repeatedly asked defense counsel to explain how or why it would need to publicly name victims of sexual abuse to prepare for trial, and the defense repeatedly has declined to do so, presumably because the argument borders on the absurd.2 The Government's proposed protective order would do no such thing. As described above, the Government's proposed order would permit defense counsel and defense staff to reference the identities of individuals they believe may be relevant to the defense to potential witnesses and their counsel (who then would be prohibited from further disclosing or disseminating such identifying information). Government Proposed Order ¶ 5. It would further permit the defendant to publicly identify individuals who have chosen to speak on the record on this case. Id. ¶ 6. And it would permit the defendant to reference identifying information in filings made under seal. See id. 2 Despite the Government's requests for clarity on the need for the defendant's requested modification, the sole additional reason provided by defense counsel for why it would be appropriate or necessary to publicly name victims is that certain of these victims have obtained what defense counsel described as the “benefit” of publicly identifying themselves as victims (and thus, as the defendant presumably would have it, deserve whatever public identification and scrutiny the defendant intends to invite upon them). Beyond the offensive notion that victims of sexual abuse experience a “benefit” by making the incredibly difficult decision to share their experience publicly, the suggestion that victims who receive this supposed “benefit” should receive fewer protections than the law ordinarily offers to victims in criminal cases is alarming. Permitting defense counsel to publicly identify witnesses who have not identified themselves on the record in this case risks subjecting witnesses to harassment and intimidation, with no conceivable benefit to the defense other than perhaps discouraging witnesses from cooperating with the Government. DOJ-OGR-00001666 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 3 of 38 TABLE OF AUTHORITIES CASES Brady v. Maryland, 373 U.S. 83 (1963) ...........................................................................................................14 Giglio v. United States, 405 U.S. 150, 154-55 (1972) .........................................................................................15 In re Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887, 892 (D.C. Cir. 1999).....................................15 United States v. Armstrong, 517 U.S. 456, 462 (1996) ............................................................................................8 United States v. Ashley, 905 F. Supp. 1146, 1168 (E.D.N.Y.1995) ........................................................................10 United States v. Bagley, 473 U.S. 667, 674-75 (1985) ...........................................................................................14 United States v. Bryan, 868 F.2d 1032 (9th Cir.1989), .......................................................................................11-12 cert. denied, 493 U.S. 858, 110 S.Ct. 167, 107 L.Ed.2d 124 (1989) United States v. Edwards, 191 F. Supp. 2d. 88, 90 (D.D.C. 2002) ........................................................................16 United States v. George, 786 F. Supp. 11, 13 (D.D.C. 1991) .................................................................................9 U.S. v. Giffen, 379 F. Supp. 2d 337 (S.D. N.Y. 2004) ..........................................................................................8, 11 United States v. Libby, 432 F. Supp. 81 (D.D.C. 2006) ........................................................................................12-13 United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993) ....................................................................................9, 13 United States v. Maniktala, 934 F.2d 25, 28 (2d Cir.1991) ....................................................................................10 United States v. Marshall, 132 F.3d 63, 68 (D.C. Cir. 1998) ...............................................................................9, 12-13 United States v. McGuinness, 764 F. Supp. 888, 895 (S.D.N.Y.1991) ......................................................................8, 10 United States v. Paxson, 861 F.2d 730, 737 (D.C. Cir. 1988) .................................................................................15 United States v. Poindexter, 727 F. Supp. 1470, 1473 (D.D.C. 1989) .......................................................................8 United States v. Safavian, 233 F.R.D. 12 (D.D.C. 2005).......................................................................................14-15 United States v. Stein, 488 F. Supp. 2d 350, 356 (S.D.N.Y.2007) ............................................................................9 United States v. Sudikoff, 36 F. Supp. 2d 1196, 1198-99 (C.D.Cal. 1999) ................................................................15 United States v. Trevino, 556 F.2d 1265, 1272 (5th Cir.1977) .................................................................................11 United States of America v. Volpe, 42 F. Supp. 2d 204 (E.D.N.Y. 1999) ..................................................................12 ii DOJ-OGR-00022026 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 33 Filed 07/28/20 Page 4 of 7 The Honorable Alison J. Nathan July 28, 2020 Page 4 Moreover, the defendant is able, at any time, to apply to the Court for a modification of the protective order should she be able to identify a particularized need to publicly name victims who have not yet identified themselves on the record in this case—as opposed to redacting their names from court filings, or referring to them in an anonymized fashion. As noted, to date, defense counsel has declined to identify to the Court or to the Government any example of why doing so would be necessary or helpful to the defense, or even under what circumstances the defense might want to do so. The defendant’s proposal is also extraordinarily broad, and without any temporal or subject matter limitation as to the phrase “public fora.” Adopting the defendant’s proposal would mean that any individual who has ever self-identified as a victim of Jeffrey Epstein or Ghislaine Maxwell publicly in any capacity would be subject to public identification by the defendant and her counsel in connection with this case. This would include, as hypothetical examples, someone who spoke to a journalist for a local story in 1997, or posted on a MySpace page followed by a handful of friends in 2005, or made a statement on a small podcast in 2009, or posted on Twitter to a handful of followers in 2013. But none of these examples of ventures into the “public fora” can possibly be construed as efforts by hypothetical victims to consent or choose “to self-identify,” Def. Ltr. at 3, in a future criminal case against Ghislaine Maxwell subject to extraordinary public attention and scrutiny. Additionally, while some individuals have identified themselves as victims without providing any details or additional information about their abuse, the defense contemplates no limitation of publicly associating those individuals with the details of their abuse in public defense statements or filings. In essence, the defendant’s proposal seeks authorization to drag into the public glare any victim who has ever made any type of public statement of victimization—no matter how long ago or how brief—without that victim’s knowing consent and without any substantive justification. That is particularly troubling given that the Government expects to make productions of discovery and 3500 materials well surpassing its obligations. Those productions will necessarily include the identities of individuals whom the Government does not expect to call as witnesses, and whose accounts—much less identities—will have no bearing on this case. But the defendant’s proposal would allow her and her counsel to publicly name them in any public statement or filing at their sole discretion. This is plainly unnecessary for any investigative steps or trial preparation, would be grossly inappropriate and unfair, and would be inconsistent with the Crime Victims’ Rights Act. Conversely, the Government’s submission proposes that the defendant and her counsel not be precluded from discussing publicly individuals who identify themselves on the record in this criminal prosecution, because any such individuals will have made a conscious and informed choice to be associated publicly with this case. See Government Proposed Order ¶¶ 5, 6, 8. The identity of any other individuals should be protected from public broadcast by the defendant and her counsel. The defendant argues that her proposed language is “nearly identical in all material respects” to the protective order entered in United States v. Epstein, 19 Cr. 490 (RMB) (Dkt. 38). Def. Ltr. at 3. In the first instance, that is false. The protective order in the Epstein case included --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 4 of 38 RULES Fed. R. Crim. P. 16.......................1-2, 4, 7-8, 11-15 Rule 16(a)(1)(C) ................................11, 13 Fed. R. Crim. P. 16(a)(1)(E).......................8 Fed. R. Crim. P. 16(a)(1)(E)(i) .......................8, 10 iii DOJ-OGR-00022027 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 33 Filed 07/28/20 Page 5 of 7 The Honorable Alison J. Nathan July 28, 2020 Page 5 a provision stating that it did not prohibit defense counsel from publicly referencing individuals who had spoken on the public record in litigation relating to Jeffrey Epstein. Id. ¶ 4. Here, defense counsel seeks permission to publicly identify any individuals who have self-identified as victims of either the defendant or Epstein “to the media or in public fora, or in litigation”—a vastly broader allowance. Indeed, as a comparison, none of the hypothetical examples described above would have been subject to public naming and identification under the Epstein protective order, but every single one would be under the defendant’s proposed order in this case. Additionally, beyond the differences in the language itself, there are two significant differences between the circumstances of the Epstein prosecution and this case. First, at the time the Epstein protective order was entered, there were exceptionally few victims who had identified themselves by name in litigation. Accordingly, the practical application of that provision was extremely limited. Second, and related, in the time between when the Epstein protective order was entered and the indictment in this case, many more victims have made public statements about their victimization at the hands of Epstein, and the defendant, on their own terms and in their own ways, including by exercising their rights under the Crime Victims’ Rights Act in the context of the dismissal of the indictment against Jeffrey Epstein following his suicide. Those victims could not possibly have predicted, much less chosen, that their names would be publicly broadcast by defense counsel in connection with a subsequent criminal case. Victims should be able to continue to come forward, in the ways and in the venues they themselves choose, without fear of reprisal, shaming, or other consequence arising from having their identities broadcast by defense counsel in this case. In sum, the requested modification to the Government’s proposed order sought by the defendant is contrary to precedent and the compelling privacy interests of victims. Moreover, it is without basis in fact or law, and, despite the Government’s repeated requests for clarity, the defendant and defense counsel have offered no legitimate reason for their desire to be able to publicly identify any number of victims, in the context of this criminal case and elsewhere, other than a minimal, conclusory statement, without factual examples or legal support.3 At bottom, the defendant and her counsel seek an unlimited ability to name victims and witnesses publicly, for no discernible reason, and without justification or legal basis. The victims of Ghislaine Maxwell and Jeffrey Epstein have suffered enough, and the Crime Victims’ Rights Act, applicable law, and common decency compel far more protection of their privacy interests here than the defense proposal would afford. B. The Defendant’s Demand that the Government Restrict Use of its Own Documents The defendant and her counsel also ask the Court to impose restrictions upon the Government in its use, through potential witnesses and their counsel, of documents it currently possesses, beyond the already-extensive restrictions and protections applicable to the arguments. 3 To the extent defense counsel attempts to provide such examples or arguments for the first time in a reply filing, the Government respectfully requests leave to reply to those examples or arguments. DOJ-OGR-00001668 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 5 of 38 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, -against- TOVA NOEL and MICHAEL THOMAS Defendants. 19 Cr. 830-2(AT) Oral Argument Requested MOTION OF MICHAEL THOMAS TO COMPEL DISCOVERY INTRODUCTION Defendant, Michael Thomas, through his counsel, hereby moves for an order compelling the government to produce information in its possession or accessible to it from other agencies allied with the prosecution, concerning investigations and other materials relating to the facts alleged in the indictment, including but not limited to such documents that relate to the investigation into the death of Jeffrey Epstein, that is (a) material to the preparation under Fed. R. Crim. P. 16, and/or (b) exculpatory, inculpatory, or impeachment information discoverable under the Brady-Giglio doctrine. The information requested in this motion has been previously requested by the defense in a letter dated January 29, 2020 from the Office of the United States Attorney, Southern District of New York. (See Exhibit A.) Through counsel from said office, the request has been denied, with government prosecutors referring defense counsel to their in-court statements made on November 25, 2019. (See Exhibit B.) 1 DOJ-OGR-00022028 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 33 Filed 07/28/20 Page 6 of 7 The Honorable Alison J. Nathan July 28, 2020 Page 6 Government.4 The defendant cites not a single example in any district court in the country where such a restriction has been imposed in a protective order. Indeed, it is nonsensical for a protective order to require limitations of the Government in its use of material already in its possession so that the Government may provide a defendant with discovery. The defendant's attempt to refuse to agree to receive discovery unless the Government agrees to additional restrictions upon the use of its own materials should be rejected. As an initial matter, the Government's use of materials it has gathered through its investigation, including through the grand jury process, search warrants, interviews, and voluntary disclosures, is already subject to a wide range of restrictions, including Rule 6(e) of the Federal Rules of Criminal Procedure, the Privacy Act of 1974, and other policies of the Department of Justice and the U.S. Attorney's Office for the Southern District of New York. In this case, consistent with the Government's customary practice, and as the Government has informed defense counsel, the Government has no intention of providing witnesses, victims or their counsel with the entirety of discovery produced to the defendant, nor anything even close to that. Indeed, consistent with its standard practice, the Government rarely provides any third party, including a witness, with any material they did not already possess. While the Government does more commonly show a witness materials in connection with proffers or trial preparation, the Government rarely if ever shows a witness material she has not already seen, does not have personal knowledge of, or would not have some specific reason to opine upon. Practically speaking, therefore, the concerns defense counsel raises about future use in civil litigation are not likely to occur. Nevertheless, a criminal protective order is not the appropriate forum for the defendant to demand restrictions on the Government's use of its own materials. To the contrary, as noted above, many of those restrictions are already established by rule and law—standards the defendant makes no suggestion the Government has failed to adhere to in this case. Moreover, the Government as a whole, including those beyond the prosecutors on this case, may have obligations that would conflict with such language in a protective order. For example, the Government has obligations under various statutory and regulatory regimes, including but not limited to the Freedom of Information Act and Touhy v. Ragen, 340 U.S. 462 (1951), that cannot be bargained away through a protective order. Indeed, the Government can represent that the Department of Justice has received both FOIA and Touhy requests in connection with this investigation, requests to which the Department has a legal obligation to respond appropriately. The Government respectfully submits it would be inappropriate for the defendant to seek—or the Court to order—language in a protective order that conflicts with or supersedes those obligations. Tellingly, the defendant cites no authority or precedent for her request regarding this issue. By contrast, to the extent the defendant intends to produce reciprocal discovery to the Government, it may in that case be appropriate to limit the Government's use, or third parties' use, 4 Specifically, the defendant's proposed protective order differs from the Government's in that it adds a paragraph, its paragraph 3, proposing restrictions upon the Government and its potential witnesses, and their counsel, as well as adding language to its paragraph 5, which is Government paragraph 4, further restricting potential government witnesses and their counsel. DOJ-OGR-00001669 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 6 of 38 BACKGROUND A. The Indictment Alleges that Mr. Thomas Conspired with Co-Defendant, Noel, and Created False Records The government's investigation in this case began upon the discovery of the alleged suicide of Jeffrey Epstein, on August 10, 2019, at the Metropolitan Correctional Center ("MCC"). At that time, Mr. Thomas, and Co-Defendant, Noel, were on duty as correctional officers in the section of the MCC, known as the Special Housing Unit ("SHU"). The indictment (Indictment, Introduction at ¶ 1), alleges, among other things, that certain prison counts, in other words, physically counting the prisoners in the cells, were not made by the defendants. In addition, the indictment alleges that the defendants, then, agreed and conspired to conceal the failure to conduct the prison counts, by creating and signing false records, attesting that such counts had occurred. (Id.) Thus, the indictment charges the defendants with conspiracy. (Indictment, Count One at ¶ 28.) In addition, the indictment charges the defendants with creating false records. (Indictment, Count Four at ¶ 15.) Defendant, Thomas, is not charged in Counts Two and Three of the indictment. B. Mr. Thomas' Rule 16 and Brady-Giglio Requests for Production of Documents Have Been Denied On December 16, 2019, the parties agreed to a protective order as to discovery, and on that day this Court entered same (Docket # 13). On January 29, 2020, defendant, Thomas, made certain requests to the government under Rule 16 of the Federal Rules of Criminal Procedure. (See Exhibit A.) Approximately, forty-five days later, on March 14, 2020, the government responded to the requests made by defendant, Thomas with a one sentence denial of said request. The substance of the response was that the defendant should refer to the government's responses made at the pretrial conference of November 25, 2019. (11/25/2019 - Docket Minute Entry). 2 DOJ-OGR-00022029 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 33 Filed 07/28/20 Page 7 of 7 The Honorable Alison J. Nathan July 28, 2020 Page 7 of such materials provided by the defendant to the Government. But there is no basis to add additional restrictions upon the Government's use of materials gathered by the Government itself. The defendant's only counter-argument, as noted—that this Court should put third parties "on equal footing with the defense"—is both unlikely to be relevant given the Government's standard practice, as described above, and, the Government submits, an irrelevant consideration in the context of a criminal protective order. Indeed, the Government respectfully submits that neither it nor this Court is well-positioned to, or should, become the arbiter of what is appropriate or permissible in civil cases. In sum, the defendant's attempt to restrict the Government and to restrict third parties in this way appears to be unprecedented, and is without legal basis, and should be denied. Accordingly, for the reasons set forth above, the Court should enter the Government's proposed protective order, which is enclosed, and deny the defendant's motion. Respectfully submitted, AUDREY STRAUSS Acting United States Attorney By: _______________________ Alex Rossmiller / Alison Moe / Maurene Comey Assistant United States Attorneys Southern District of New York Tel: (212) 637-2415 Cc: All counsel of record (via ECF) DOJ-OGR-00001670 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 7 of 38 This refusal is perplexing and nonsensical because these same government prosecutors presented the defendant with a consent to search document from the office of the Inspector General. (See Exhibit C.) This motion concerns the defense requests for production of documents regarding important and essential issues in this case. Moreover, the public sphere is replete with information that the Inspector General of the United States opened an investigation into the circumstances surrounding the death of Jeffrey Epstein. (See article attached as Exhibit D.) Additionally, it is undisputed that the Inspector General also conducted an extensive investigation into inner workings of the Bureau of Prisons ("BOP"). The United States Attorney General, William Barr and the Acting Bureau of Prisons commissioner, Kathleen Hawk Sawyer both made numerous public statements that the Inspector General was undertaking an in-depth investigation into the Bureau of Prisons' policies, procedures, staffing and criminal conduct as a direct result of the death of Jeffrey Epstein at MCC on August 10, 2019. (See Exhibit D.) This report is important because the defendant believes that this report will contain information that is material and relevant to his defense. Moreover, it is the defendant's assertion that staffing issues, staffing shortages, supervisory lapses and the enforcement/interpretation of BOP procedures go to the heart of his defense to the government's criminal allegations. The government's response to Mr. Thomas' discovery request was not detailed and simply made a blanket denial without giving Mr. Thomas the respect to state any legal justification for the denial. Defendant, Thomas, therefore, brings this Motion to Compel, as to the items originally requested by his counsel. C. The Inspector General's Report and Any Other Reports, Documents, and/or Memoranda Made by Other Federal Agencies Investigating the Incident Surrounding the Death of Jeffrey Epstein Are Discoverable and Must Be Produced 3 DOJ-OGR-00022030 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 8 of 38 As stated previously, there is no dispute that multiple investigations by numerous federal agencies were opened to investigate the events surrounding the death of Jeffrey Epstein on August 10, 2019. Michael Thomas is charged with certain crimes resulting from this same event. On August 10, 2019, the Washington Examiner, reported under the headline: "Barr announces DOJ inspector general investigation into Epstein death." (See Exhibit D.) On December 28, 2019, Reuters reported under the headline: "FBI investigating Jeffrey Epstein's inner circle."1 On September 11, 2019, CNN reported under the headline: "The Jeffrey Epstein investigation was more expansive than previously thought, documents show."2 This news clip refers to what appears to be a separate investigation by the U.S. Marshals Service. On the Wikipedia page entitled, "Death of Jeffrey Epstein," the following appears, among other information: "After initially expressing suspicion, Attorney General William Barr described Epstein's death as 'a perfect storm of screw-ups.' Both the FBI and U.S. Department of Justice's Inspector General are conducting investigations into the circumstances of his death.3" D. The Information Sought by This Motion. In the minute entry on the docket, of November 25, 2019, this Court noted, among other things, "The Government shall produce discovery to the defense by December 31, 2019." This discovery was not produced. Because the government has failed to meet the disclosure mandates of Rule 16 and Brady-Giglio, this motion seeks to compel the government to produce the following: 1) Inspector General's report investigating the death of Jeffrey Epstein and the Bureau of Prisons' policies and procedures; 2) any reports, witness statements, memorandum, and documents from any separate investigation conducted by the BOP; and 3) any reports, witness statements and/or documents created by any other federal agencies that investigated the circumstances surrounding the death of Jeffrey Epstein that have not already been disclosed. 1 See, YouTube clip: https://www.youtube.com/watch?v=SI_haGuVBC4 2 See, https://www.cnn.com/2019/09/11/us/jeffrey-epstein-investigation-us-marshals-documents/index.html 3 See, https://en.wikipedia.org/wiki/Death_of_Jeffrey_Epstein 4 DOJ-OGR-00022031 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 9 of 38 1. The report of the Inspector General, as to both defendants, including, any and all supporting memorandums, written statements, photos, videos, and incident reports The defendant is entitled to complete disclosure of the Inspector General's report. Moreover, Mr. Thomas has a right to any and all information obtained in this investigation. Not only is it possible that this report contains additional witness statements but this report also has information that has not been furnished by the government in any capacity previously. Moreover, while the government would like to limit its discovery obligation to reports, videos and documents related specifically to night and early morning hours of August 10, 2019, the defense submits that there is a much larger context that lead to those events and the charges against Michael Thomas. Indeed, the Attorney General of the United States and the "acting" commissioner of the BOP opened an investigation that was precipitated by the events of August 10, 2019 but said investigation was much more expansive and in-depth. In November 2019, the "acting" commissioner Kathleen Hawks Sawyer stated at a congressional hearing under oath that there were more than 3300 vacancies within the BOP and she was surprised that the BOP was able to function with such issues. She went on to state that: 'The vast majority of staff are good, hardworking employees, "but they are tired because they are stretched." (See article attached as Exhibit E.) The broad depth of the Inspector General's report presumably was that there were a myriad of systematic issues affecting the BOP that allowed the events of August 10, 2019 and the death of Jeffrey Epstein to occur. Accordingly, the defendant is entitled to disclosure of any and all of this information, especially if it relates to his defense of the charges that have been initiated. It is the defendant's contention that this report may also contain Brady-Giglio material. Indeed, the prosecutors in this case may be denying the defendant his right to this material without any knowledge of its contents. If so, this is a dereliction of their duty and denies Mr. Thomas important rights that are the foundation of our judicial system. 5 DOJ-OGR-00022032 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 10 of 38 2. Any and all internal investigative reports created by the BOP as to both defendants, including, any and all supporting memorandums, written statements, photos, videos, and incident reports To date, the government has disclosed a multitude of discovery documents but those documents only relate to witness statements, video and incident reports concerning the events of August 10, 2019. Michael Thomas would like this court to authorize the disclosure of any and all reports generated by investigators within the Bureau of Prisons regarding the August 10, 2019 incident, if those have not been disclosed. Additionally, the defendant seeks any all documents, reports, witness statements and disciplinary records of any and all MCC employees who have engaged in the same or similar conduct. Mr. Thomas requests the results of any disciplinary proceedings and documents maintained by the BOP regarding the discipline or administrative adjudication of any other employees who have failed to conduct rounds or inmate counts. More specifically, the defense is aware that there was an almost identical incident in 2005 or 2006 wherein officers failed to conduct institutional counts or rounds and an inmate committed suicide. The defense believes that only one of four officers in that case was given only a minor (14) day suspension. Moreover, although the government will argue that this incident is far removed from the current incident, the defendant disagrees. Mr. Thomas knew some of the individuals in that incident and he was well aware that their conduct did not lead to their indictment or incarceration. In fact, many of those officers did not receive as much as a reprimand for falsifying the same documents that Mr. Thomas is now charged with a federal crime for submitting. This goes to Mr. Thomas' defense in this case. The defendant's state of mind is always a material and relevant fact in any criminal case. Indeed, the mens rea for U.S. Code § 1001 is that the party knowingly and willfully made the false statement. Undoubtedly, given the assertions already made this information is of significant importance to Mr. Thomas' defense. 6 DOJ-OGR-00022033 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 11 of 38 3. As to both defendants, any and all reports, memorandums, written statements, photos, videos, and incident reports created, manufactured or possessed by any investigative or disciplinary agencies, participating in the investigation of the defendants, allied with the prosecution, and to which the prosecution has access Defendant, Thomas, believes that the information contained in all of the requested documents may contain information that tends to exculpate him. He believes, in addition, that there may be other witnesses, or witness statements that are relevant, and which are not in the possession of the FBI investigators, who submitted reports in this case. Such reports will contain detailed information and statistics that show the conduct in which the defendant is being charged with a crime were: 1) rampant throughout the BOP; 2) made with knowledge and acquiescence by the leadership of the BOP; 3) made as a result of BOP policies that forced the defendant to engage in conduct for which he is now being charged criminally, and; 4) made in a manner which contains a possible discriminatory application of BOP policies by government prosecutors. The information requested by this motion is not the only information that Mr. Thomas seeks under Rule 16 and Brady-Giglio. Further discovery motions will be necessary, once counsel has had the opportunity to review any response made by the government, in compliance with any order entered by this Court on this motion. The present motion is filed at this time because the government has refused the defendant's request to engage in a fair and impartial disclosure of relevant discovery. Early resolution of this dispute will enable defense counsel to determine the necessity and scope of pretrial subpoenas duces tecum. 7 DOJ-OGR-00022034 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 12 of 38 ARGUMENT A. The Complete Inspector General's Report, as Well as the Other Reports Requested Are Necessary for Michael Thomas to Prepare His Defense Mr. Thomas' requests for the aforementioned discovery is authorized and contemplated by the Federal Rules of Criminal Procedure. Fed. R. Crim. P. 16(a)(1)(E), provides: "(E) Documents and Objects. Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and: (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant." Rule 16(a)(1)(E)(i) entitles a defendant to documents or other items that are material to preparing arguments in response to the prosecution's case-in-chief. See United States v. Armstrong, 517 U.S. 456, 462 (1996). The key term for present purposes is "material." A document is material if: [I]t could be used to counter the government's case or to bolster a defense; information not meeting either of those criteria is not to be deemed material within the meaning of the Rule merely because the government may be able to use it to rebut a defense position.... Nor is it to be deemed material merely because it would have dissuaded the defendant from proffering easily impeached testimony. U.S. v. Rigas, 258 F.Supp.2d 299 (S.D. N.Y. 2003) The federal courts have consistently taken an expansive view of what the term "material" means when it comes to ruling in favor of disclosure under Rule 16. Evidence is material if its pretrial disclosure will enable a defendant to alter significantly the quantum of proof in his favor. See United States v. McGuinness, 764 F. Supp. 888, 895 (S.D.N.Y.1991) and U.S. v. Giffen, 379 F. Supp. 2d 337 (S.D. N.Y. 2004) Numerous federal districts have repeatedly ruled that "evidence is material under Rule 16 as long as there is a strong indication that it will play an important role 8 DOJ-OGR-00022035 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 13 of 38 in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal." United States v. Marshall, 132 F.3d 63, 68 (D.C. Cir. 1998) (quoting United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993)) (internal quotation marks omitted). Courts have interpreted the scope of Rule 16 (a)(1)(E)(i) broadly to ensure that defendants such as Mr. Thomas have a fair opportunity to prepare for trial. United States v. Poindexter, 727 F. Supp. 1470, 1473 (D.D.C. 1989) ("The language and the spirit of the Rule are designed to provide to a criminal defendant, in the interest of fairness, the widest possible opportunity to inspect and receive such materials in the possession of the government as may aid him in presenting his side of the case.") Accordingly, the "materiality standard normally is not a heavy burden." United States v. Stein, 488 F. Supp. 2d 350, 356 (S.D.N.Y.2007) (quoting United States v. Lloyd, 992 F.2d 348, 351 (D.C.Cir.1993)). Lloyd, 992 F.2d at 351 (internal citation and quotation marks omitted); United States v. George, 786 F. Supp. 11, 13 (D.D.C. 1991) (the materiality hurdle "is not a high one"). The requested documents in this motion are essential to Mr. Thomas' ability to prepare a defense. Mr. Thomas contends that the conduct with which he is being charged is: 1) rampant throughout the BOP; 2) made with knowledge and acquiescence by the leadership of the BOP; and 3) is the direct result of BOP policies and mismanagement that forced the defendant to engage in conduct for which he is now being charged criminally. Moreover, the information sought in this motion is crucial to the preparation of Mr. Thomas' defense. For instance, Mr. Thomas will assert that the rampant staffing shortages present at the MCC in August of 2019 led to the conduct for which Mr. Thomas is now criminally charged. If the Court accepts this representation, then the Court should find that the discovery requests contained in this motion are "material" and must be disclosed. As support for this position the defendant has attached an excerpt from a union committee meeting that was held merely 3 days before Jeffrey Epstein died at MCC on August 10, 2019. The attached memorandum memorializes a meeting attended by Jermaine Darden, the captain of the MCC, wherein he was DOJ-OGR-00022036 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 14 of 38 informed that there were severe staffing shortages in the SHU where the alleged crime took place and that these staffing shortages created a significant safety risk. (See excerpt attached as Exhibit F.) Additionally, Michael Thomas is charged with making false statements for signing certain count slips and round sheets. However, what the government has deliberately failed to clarify is that those documents have to be approved by supervisors and are signed and/or initialed by other BOP employees. If this is the case, why is Michael Thomas and Tova Noel the only two employees charged with making false statements. Indeed, according to the government, they have video showing Mr. Thomas sleeping and surfing the internet instead of doing the rounds as required. Importantly, on the night in question, there is at least one BOP employee tasked with watching the surveillance cameras. Presumably, this person would have watched Mr. Thomas sit in his chair and sleep and then observe him present a document stating that he conducted rounds. It is defendants' burden to make a prima facie showing that documents sought under Rule 16(a)(1)(E)(i) are material to preparing the defense. McGuinness, 764 F. Supp. at 894. "To establish a showing of materiality, a defendant must offer more than the conclusory allegation that the requested evidence is material." See United States v. Ashley, 905 F. Supp. 1146, 1168 (E.D.N.Y.1995) The defendant submits that he has carried this burden. Plainly, the documents upon which the government procured an indictment based on making a false statement have to be reviewed, verified and signed by other BOP employees and/or supervisory personnel. However, inexplicably none of those individuals are charged with violating the law. This issue standing alone establishes the import of how the requested disclosures will assist "the defendant significantly to alter the quantum of proof in his favor." United States v. Maniktala, 934 F.2d 25, 28 (2d Cir.1991) The requested reports go to the heart of Mr. Thomas' defense. He needs to know if these issues are addressed in the Inspector General's report or in any other reports by 10 DOJ-OGR-00022037 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 15 of 38 government agencies because it is highly relevant to Mr. Thomas' defense in this case. Furthermore, the government had Mr. Thomas sign a consent form specifically from the Inspector General's office. (See Exhibit C.) Thereafter, the government turned over the results of this search in the normal course of discovery production. This fact shows that the Inspector General was investigating this incident thus all information they receive is discoverable. This Court should order the production of the documents within forty-five (45) days from the entry of an order on this motion. B. Rule 16 and Brady-Giglio Include the Production of Documents and Reports Generated by Other Agencies The facts, shown above as reported in the media and secondary sources, clearly show that other agencies were involved in the investigation of Jeffrey Epstein's death and the defendant's arrest and indictment. Thus, clearly, this Court should not permit the government to self-limit discovery. A prosecutor is not "allowed to avoid disclosure of evidence by the simple expedient of leaving relevant evidence to repose in the hands of another agency while utilizing his access to it in preparing his case for trial." United States v. Trevino, 556 F.2d 1265, 1272 (5th Cir.1977); U.S. v. Giffen, 379 F. Supp. 2d 337 (S.D. N.Y. 2004) In United States v. Bryan, 868 F.2d 1032 (9th Cir.1989), cert. denied, 493 U.S. 858, 110 S.Ct. 167, 107 L.Ed.2d 124 (1989), after a nationwide investigation by the IRS, Bryan had been convicted of, among other things, conspiracy to defraud the United States. Bryan sought discovery, under Rule 16(a)(1)(C) of items that were in the possession of the FBI. The charges against Bryan stemmed from the IRS investigation, and this difference, together with the further objection that production should be limited only to documents found in the District in which the matter was pending, Oregon, formed the basis of the government's objection. 11 DOJ-OGR-00022038 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 16 of 38 Bryan argued, conversely, that the 'government' under the Rule, included not only the prosecutors, but also any closely connected investigative agencies. The Court dispensed with the 'out of District' argument by the government, ruling that Rule 16 was not so limiting. With respect to the issue of production of items from other closely connected agencies, the Court found in favor of Bryan as far as discovery of items by such agencies. In setting forth the rule, the Court said: "The prosecutor will be deemed to have knowledge of and access to anything in the possession, custody and control of any federal agency participating in the same investigation of the defendant." Id.at 1036. The District Courts of New York have followed Bryan, supra. In United States of America v. Volpe, 42 F Supp. 2d 204 (E.D.N.Y. 1999), also a corrections/police officer case, the Court found that the materials were discoverable from any other agencies "allied with the prosecution." Id. at 221. In addition, in citing to Bryan, supra, the Court stated that: "Another factor in the analysis is whether or not the prosecution has access to the materials." Id. In this matter, defendant, Thomas, has shown that other agencies 'allied with the prosecution,' have and/or are, participating with each other. The statement of Attorney General, William Barr, confirms that a separate investigation was initiated by the Inspector General. Additionally, it seems more than obvious that the internal affairs division within the BOP conducted a separate investigation into the events in questions. Importantly, Rule 16 focuses on the preparation of the defense. Therefore, documents are material under Rule 16 and subject to disclosure if they help the defense to ascertain the strengths and weaknesses of the government's case. Marshall, 132 F.3d at 67-68. Other Districts have also followed Bryan. In United States v. Libby, 432 F. Supp. 81 (D.D.C. 2006), the Court was faced with a motion to compel, by defendant, I. 'Scooter' Libby, in the Valerie Plame CIA leak case. The matter concerning Libby concerned whether he lied as to the disclosures as to Plame. Libby sought documents which, as the Court pointed out, were of a 12 DOJ-OGR-00022039 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 17 of 38 far-reaching nature, including documents related to a revenge issue as to Valerie Plame, and her late husband, Ambassador Wilson. The Court in Libby ruled in favor for the defense and granted the motion to compel discovery in several key areas of the case. This Court will find Libby, supra, important because the Court's decision in that case focused on "all agencies" that have information regarding the offenses charged. In the instant matter, therefore, it will not be enough for the government to state that other agencies may not be allied with the prosecution, or that the government lacks access to the documents. If the documents provide exculpatory evidence, and are related to the issues in the indictment, they must be produced. In Marshall, 132 F.3d at 63, the defendant was charged in a drug related transaction. There were records on visitation from the local jail where the defendant was incarcerated, pager records, the pager, and local records from the county public records about a traffic stop. These items were uncovered by the government agents investigating the matter, but only after discovery had been concluded. During the course of the trial, the Court took a four-day adjournment, in order to address the newly discovered evidence. The trial judge decided to exclude all of the newly discovered evidence, and, as a result, Marshall was found guilty. On appeal, the government argued that, in fact, the newly discovered evidence, under Rule 16, tended to incriminate, not exculpate Marshall. On appeal, the Court disagreed, citing Rule 16(a)(1)(C) as requiring the production of items that are material to the preparation of the defendant's case. The Court, in addition, rejected the government's argument, that the items must be 'materially exculpatory,' Id. at 68. In announcing the rule, that Court stated: "In United States v. Lloyd, we said that evidence is material under Rule 16 'as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal." See Lloyd at 351. 13 DOJ-OGR-00022040 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 18 of 38 Undoubtedly, the government is going to assert that the requested documents in this motion are not relevant or material and do not bear on the charges as they relate to the conduct that did or did not take place on August 10, 2019. The documents sought are material if they will help the defense with trial preparation tasks such as evaluating the strength of the government's case, investigating possible defenses, finding additional relevant evidence, and developing strategies to impeach government witnesses. See United States v. Safavian, 233 F.R.D. 12 (D.D.C. 2005) It is not up to the government to define Mr. Thomas' defenses to the indictment or to determine what is useful in preparing them. For these reasons, this Court should include the requirement of the production of both inculpatory and exculpatory evidence in any order granting this motion to compel. At this juncture, however, the government has made, at best, a token objection to the discovery by citing to a terse denial made at a previous court appearance. Mr. Thomas, therefore, cannot guess what may be other objections, but this Court should overrule any such attestations as going against fundamental fairness. C. The Reports and Documents Requested Are Discoverable Under Brady This motion has articulated several rationales upon which the defendant in this matter is entitled to much more information than the government is voluntarily willing to disclose. The government's disclosure obligations do not end with Rule 16. Much of the discovery sought by this motion is firmly rooted within the scriptures of documents that must be disclosed under the doctrine set forth in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Under Brady, the government has an affirmative duty to produce any evidence favorable to the defendant that is material to either guilt or punishment. See United States v. Bagley, 473 U.S. 667, 674-75 (1985) (the prosecution is required "to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial"). Both exculpatory information and evidence that can be used to impeach the prosecution's witnesses are considered 14 DOJ-OGR-00022041 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 19 of 38 "favorable" under Brady and must be disclosed by the government. Id. at 676-77; see also Giglio v. United States, 405 U.S. 150, 154-55 (1972); In re Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887, 892 (D.C. Cir. 1999). Moreover, the defense is already in possession of witness statements that one or both of the defendants in this indictment may have conducted rounds or inmate counts on August 10, 2019. Accordingly, there is a logical assumption that there might be additional exculpatory statements contained in the Inspector General's report or certain internal reports maintained by the BOP internal affairs division or other government agencies that were conducting a contemporaneous investigation with FBI. The prosecution must produce to the defense not only all favorable evidence that is admissible, but also all evidence "that is likely to lead to favorable evidence that would be admissible." Safavian, 233 at 17 (quoting United States v. Sudikoff, 36 F. Supp. 2d 1196, 1198-99 (C.D.Cal. 1999)). Just as with Rule 16 disclosure, the government must interpret its Brady obligations broadly. "Where doubt exists as to the usefulness of the evidence to the defendant, the government must resolve all such doubts in favor of full disclosure." Id. (citing United States v. Paxson, 861 F.2d 730, 737 (D.C. Cir. 1988). Without question, the Brady disclosure obligation is broader than Rule 16 because it requires production not just of documents, but also of information known to the government that has been documented in some fashion. In Safavian, the court explained the materiality standard under Brady that applies to pretrial discovery: [T]he government must always produce any potentially exculpatory or otherwise favorable evidence without regard to how the withholding of such evidence might be viewed--with the benefit of hindsight--as affecting the outcome of the trial. The question before trial is not whether the government thinks that disclosure of the information or evidence it is considering withholding might change the outcome of the trial going forward, but whether the evidence is favorable and therefore must be disclosed. 15 DOJ-OGR-00022042 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 20 of 38 Id. at 16 (citing cases); see also United States v. Edwards, 191 F. Supp. 2d. 88, 90 (D.D.C. 2002). The defendant avers that much of the requested reports fall well into the conscripts of Brady and thus should be disclosed in pretrial discovery. CONCLUSION The Motion to Compel of defendant, Thomas, should be granted, and this Court should order the production of documents within forty-five (45) days from the date of the Order. RESPECTFULLY SUBMITTED, /s/ Montell Figgins, Esquire Attorney for Defendant, Michael Thomas The Law Offices of Montell Figgins, LLC 17 Academy Street Suite 305 Newark, NJ 07102 973-242-4700 16 DOJ-OGR-00022043 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 21 of 38 CERTIFICATE OF SERVICE I HEREBY CERTIFY, that on the 1st day of April, 2020, I uploaded the original of this Motion to Compel onto ECF, and provided courtesy email copies by email to: Nicolas Tyler Landsman Roos Assistant U.S. Attorney United States Attorney's Office, SDNY One Saint Andrew's Plaza New York, NY 10007 (212)-637-2421 Email: nicolas.roos@usdoj.gov Rebekah Allen Donaleski Assistant U.S. Attorney United States Attorney's Office, SDNY One Saint Andrew's Plaza New York, NY 10007 212-637-2423 Fax: 212-637-2443 Email: Rebekah.Donaleski@usdoj.gov Jessica Rose Lonergan Assistant U.S. Attorney U.S. Attorney's Office, SDNY One St. Andrew's Plaza New York, NY 10007 (212)-637-1038 Fax: (212)-637-2937 Email: jessica.lonergan@usdoj.gov /s/ Montell Figgins 1 DOJ-OGR-00022044 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 22 of 38 EXHIBIT A DOJ-OGR-00022045 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 23 of 38 The Law Offices of MONTELL FIGGINS,LLC 17 Academy Street, Suite 305 Newark, New Jersey 07102 Phone: (973) 242-4700 Fax: (973) 242-4701 www.figginslaw.com BRANCH OFFICES: 140 East Ridgewood Avenue Paramus, NJ 07640 30 Wall Street, 8th Floor New York, NY 1005 Reply to Newark Office [X] ASSOCIATES Kenneth E. Brown, Esq. Linda Childs, Esq. January 29, 2020 SENT VIA EMAIL Rebekah Donaleski Assistant United States Attorneys Southern District of New York One Saint Andrew's Plaza New York, NY 10007 Re: State of NY v Michael Thomas, et al. Docket No.: 1:19-cr-00830 Discovery Request Dear Ms. Donaleski: As previously discussed, I am making a formal request pursuant to Rule 16(a)(1)(C) for any and all reports, memorandums, written statements, photos, videos, and incident reports created, manufactured or possessed by the United States Inspector General. Please see U.S. v. Bryan, 868 F.2d 1032 (1989) if you maintain that Mr. Thomas is not entitled to the requested documents. Respectfully yours, /s/ Montell Figgins Montell Figgins, Esq. Attorney for Defendant Michael Thomas cc: Jason Erroy Foy, Esq, Counsel for Defendant Noel via ECF DOJ-OGR-00022046 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 24 of 38 EXHIBIT B DOJ-OGR-00022047 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 25 of 38 "PROTECTED MATERIAL" DOJ-OGR-00022048 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 26 of 38 EXHIBIT C DOJ-OGR-00022049 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 27 of 38 United States Department of Justice Office of the Inspector General Consent to Search Computer/Electronic Equipment I, Michael Thomas have been asked to give my consent to the search of my computer/electronic equipment. I have been informed of my right to refuse to consent to such a search. I have been informed that I have a right not to have my computer/electronic equipment searched without a search warrant. I, hereby authorize FBI and any other person(s) designated by the Department of Justice Office of the Inspector General to conduct at any time a complete search of: All computer/electronic equipment located at _____________________________________________ These persons are authorized by me to take from the above location: any computer hardware and storage media, including internal hard disk drive(s), floppy diskettes, compact disks, scanners, printers, other computer/electronic hardware or software and related manuals; any other electronic storage devices, including but not limited to, personal digital assistants, cellular telephones, and electronic pagers; and any other media or materials necessary to assist in accessing the stored electronic data. The following electronic devices: Description of computer, data storage device, cellular telephone, or other device (make, model, and serial number, if available) Apple iPhone XS I certify that I own, possess, control, and/or have a right of access to use these devices and all information found in them. I understand that any contraband or evidence on these devices may be used against me in a criminal, civil, or administrative proceeding. I relinquish any constitutional right to privacy in these electronic devices and any information stored on them. I authorize the Department of Justice Office of the Inspector General to make and keep a copy of any information stored on these devices. I understand that any copy made by the Department of Justice Office of the Inspector General will become the property of the Department of Justice Office of the Inspector General and that I will have no privacy or possessory interest in the copy. This written permission is given by me voluntarily. I have not been threatened, placed under duress, or promised anything in exchange for my consent. I have read this form; it has been read by me; and I understand it. I understand the English language and have been able to communicate with agents/officers. I understand that I may withdraw my consent at any time. I may also ask for a receipt for all things turned over. Signed: Michael Thomas Date and Time: 2/20/19 10:20AM Signature of Witnesses: [Signature] 8/26/19 10:20 am OIG FORM 233/4 (03/23/2012) DOJ-OGR-00022050 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 28 of 38 EXHIBIT D DOJ-OGR-00022051 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 29 of 38 3/31/2020 Barr announces DOJ inspector general investigation into Epstein death Barr announces DOJ inspector general investigation into Epstein death by Jerry Dunleavy | August 10, 2019 01:16 PM Attorney General William Barr announced following Jeffrey Epstein's apparent suicide Saturday morning that Justice Department Inspector General Michael Horowitz launched an investigation into the circumstances of the accused child sex trafficker's death in his prison cell. This move is in addition to the FBI inquiry already underway. The FBI declined to comment about its investigation. "I was appalled to learn that Jeffrey Epstein was found dead early this morning from an apparent suicide while in federal custody," Barr said. "Mr. Epstein's death raises serious questions that must be answered." Neither the Justice Department not the inspector general's office immediately responded to the Washington Examiner's request for further details. The Bureau of Prisons released a statement on Saturday stating that the jet-setting financier and sex offender was found "unresponsive in his cell" located in the Special Housing Unit at around 6:30 a.m. this morning following "an apparent suicide." Officials said lifesaving efforts were immediately undertaken and that emergency medical services were quickly called. Epstein was brought to a local hospital where he was pronounced dead. Epstein reportedly hanged himself, and a gurney carrying Epstein's body was wheeled out of the Manhattan Correctional Center around 7:30 a.m. this morning, according to reports. According to a representative for NYC Office of Chief Medical Examiner who spoke with the Washington Examiner, "there is no official cause of death yet" as "the medical examiner has to do their job." "We are investigating the cause of death and we have an open case," the representative said. The 14-page indictment against Epstein alleged that he sexually exploited dozens of minor girls at his homes in Manhattan, New York, and Palm Beach, among other locations, between 2002 and 2005 and perhaps beyond. Some of the victims were ostensibly as young as 14 at the time the alleged crimes occurred. Epstein allegedly "created a vast network of underage victims for him to sexually exploit"and "maintained a steady supply of new victims." https://www.washingtonexaminer.com/news/barr-announces-doj-inspector-general-investigation-into-epstein-death 1/3 DOJ-OGR-00022052 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 30 of 38 3/31/2020 Barr announces DOJ inspector general investigation into Epstein death Epstein was reportedly found nearly unconscious on his cell floor with marks on his neck back in July, but it had never been officially confirmed by authorities whether he had attempted to take his own life, whether he'd been assaulted by another inmate, or whether it was a ploy to change prisons. Epstein was subsequently placed on suicide watch, but there are numerous reports that when he was found dead Saturday he "was in his cell but was not on suicide watch at the time of his death." The Manhattan Correctional Center did not immediately respond to questions from the Washington Examiner about the circumstances of Epstein's suicide and how it was allowed to happen. Horowitz has handled high-profile investigations before. Last summer, the watchdog released a 568-page report on Midyear Exam, the DOJ and FBI investigation into former Secretary of State Hillary Clinton's improper private email server. And the inspector general is expected to release the results of his investigation into allegations of abuse of the Foreign Intelligence Surveillance Act during the Trump-Russia probe sometime around Labor Day. Epstein's apparent suicide followed the unsealing on Friday of 2,000 pages of court records by the U.S. Court of Appeals for the 2nd Circuit connected to the defamation lawsuit brought by Epstein accuser Virginia Giuffre against British socialite Ghislaine Maxwell, Epstein's on-again-off-again girlfriend and longtime associate whom Giuffre has accused of helping Epstein abuse her and other women when Giuffre was underage. The records included allegations by Giuffre that Maxwell instructed her to have sex with the U.K.'s Prince Andrew, New Mexico Gov. Bill Richardson, and former Sen. George Mitchell as well as money manager Glenn Dubin and MIT professor Marvin Minsky, among other high-profile figures. Before Friday, Epstein's flight records spanning from 1999 through 2005 had been made public, but new flight manifests ranging from November 1995 through August 2013 were released Friday. The records show Epstein crisscrossed the globe accompanied by tycoons, celebrities, employees, friends, and politicos. Alex Acosta, the former U.S. attorney for Southern Florida, reached an agreement in 2008 with Epstein's attorneys in which Epstein was allowed to plead guilty to two state-level prostitution solicitation charges. Epstein served just 13 months of an 18-month stint at a Palm Beach County jail where he was allowed out on work release, paid restitution to certain victims, and registered as a sex offender. The agreement was reportedly struck before investigators had finished interviewing all the alleged victims and was kept secret from some of Epstein's victims. Acosta left his Cabinet position amid increased scrutiny of the sweetheart deal. https://www.washingtonexaminer.com/news/barr-announces-doj-inspector-general-investigation-into-epstein-death 2/3 DOJ-OGR-00022053 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 31 of 38 3/31/2020 Barr announces DOJ inspector general investigation into Epstein death Florida Governor Ron DeSantis announced earlier this week that the Florida Department of Law Enforcement was launching an investigation into the Palm Beach County Sheriff's Office to look at every aspect of Epstein's case in Florida. The Justice Department said in February that it had also launched an internal inquiry into the handling of the Epstein case at the federal level, but the status of that investigation is not known. Epstein was arrested at the airport in Teterboro, New Jersey after returning from an overseas trip to Paris in early July. Epstein's home in New York City was raided by law enforcement as well, and investigators found nude photographs of underage girls, thousands of dollars in cash, dozens of loose diamonds, and a foreign passport from the 1980s with Epstein's picture and a false name. Epstein's lawyers had argued that Epstein should be allowed out on house arrest, asking the court to let him await trial in his Manhattan mansion. That request was denied. Besides his New York City mansion, Epstein also had an estate in Palm Beach, maintained a ranch in New Mexico, had a luxury apartment in Paris, and owned a private island in the U.S. Virgin Islands. In denying him bail earlier this month, the judge said that Epstein posed a "significant" danger to the community and agreed with prosecutors that he was a serious flight risk. https://www.washingtonexaminer.com/news/barr-announces-doj-inspector-general-investigation-into-epstein-death 3/3 DOJ-OGR-00022054 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 32 of 38 EXHIBIT E DOJ-OGR-00022055 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 33 of 38 4/3/2020 Lack of Staff and Resources Continue to Strain the Federal Bureau of Prisons - Oversight - Government Executive Government Executive Lack of Staff and Resources Continue to Strain the Federal Bureau of Prisons By Courtney Bublé November 19, 2019 The Federal Bureau of Prisons is severely lacking in staff and resources, the director testified before a Senate panel on Tuesday. Kathleen Hawk Sawyer, who was bureau director from 1992-2003, came out of retirement to lead the agency again after acting director Hugh Hurwitz was reassigned in the aftermath of financier and alleged sex trafficker Jeffrey Epstein's death in August while in federal custody. As the bureau, which oversees 122 federal prisons and more than 170,000 inmates nationwide, is working to implement the First Step Act's prison reforms and deal with the circumstances that led to Epstein's death, it is facing severe resource issues, according to Hawk Sawyer. "We have put such huge strains on the Bureau of Prisons trying to accomplish its mission," Hawk Sawyer said before the Senate Judiciary Committee. "With the dramatic growth we've had, the budget cuts, staffing shortages, it's just been incredible to me that the bureau has been able to function during the last 16 years that I've been gone." The vast majority of staff are good, hardworking employees, "but they are tired because they are stretched," she added. Hawk Sawyer attributed the resource problem to the rapid increase in the prison population in the last 30 years, employees retiring at a faster rate than they are hired, uncertain budgets, the recent government shutdown and the hiring freezes early in the Trump administration. "We have never had adequate resources to provide all the programs for all the inmates," Hawk Sawyer said. "I'm hoping that will change now since you all support the First Step Act." According to the bureau's website it currently has 36,348 staff members. The New York Times reported: Between December 2016 and September 2018 - the date of the most recent data available from the federal Office of Personnel Management - the number of correctional officers fell more than 11%, from 19,082 to 16,898. That decline reversed a longtime trend. Before President Donald Trump took office, the number of federal correctional officers had continuously increased: there were 12.5% more officers at the end of 2016 compared to the beginning of 2012. Hawk Sawyer said the bureau has "made great progress" to fill the over 3,300 vacancies nationwide, but it is going to take a while. In order to hire more staff, the bureau is working with the Office of Personnel Management to get direct hiring authority, hiring retirees on a temporary basis because they are already trained and using the professional services company Accenture to recruit young people online. Sawyer said the only thing that impedes the bureau from providing adequate care and services for inmates is resources. She expects the agency will receive $75 million in this year's appropriations for the First Step Act, which the law requires for the first five years, although she hoped for more. Last year the https://www.govexec.com/oversight/2019/11/lack-staff-and-resources-continue-strain-federal-bureau-prisons/161338/print/ 1/2 DOJ-OGR-00022056 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 34 of 38 4/9/2020 Lack of Staff and Resources Continue to Strain the Federal Bureau of Prisons - Oversight - Government Executive money to fund the program had to come out of the agency's own budget since it didn't get any extra from Congress, according to Hawk Sawyer. In the meantime, the bureau has been relying on augmentation to temporarily fill correctional officer positions with other staff. Although Sawyer said this is a good process and all staff are trained for this role, she admitted the agency has to use augmentation more than is optimal and often employees are taken away from their designated work. In addition to hiring, Hawk Sawyer said the bureau is working to replace the surveillance cameras in all prisons, ensure that staff are thoroughly trained and have managers repeatedly tell staff what their responsibilities are. These are all issues that came to light in the wake of the Epstein scandal. As the hearing was going on the Justice Department indicted the two federal correctional officers on duty the night of Epstein's death with falsifying records to say they checked on him. Hawk Sawyer agreed with Sen. Ted Cruz, R-Texas, that the Epstein situation was a "black eye" on the entire agency. Since the FBI and the Justice Department Inspector General are looking into the Epstein case she said he could not speak about any specifics. "We have some bad staff," Hawk Sawyer said. "We want rid of those bad staff who don't do their job. We want them gone one way or another either by prosecution or by termination. But the good staff are doing extraordinary work out there every day managing the 177,000 inmates. You never hear anything about those people." By Courtney Bublé November 19, 2019 https://www.govexec.com/oversight/2019/11/lack-staff-and-resources-continue-strain-federal-bureau-prisons/161398/ https://www.govexec.com/oversight/2019/11/lack-staff-and-resources-continue-strain-federal-bureau-prisons/161338/print/ 2/2 DOJ-OGR-00022057 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 35 of 38 EXHIBIT F DOJ-OGR-00022058 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 36 of 38 U.S. DEPARTMENT OF JUSTICE Federal Bureau of Prisons Metropolitan Correctional Center 150 Park Row New York, New York 10007 August 7, 2019 , LMR CHAIRPERSON - EXECUTIVE ASSISTANT , PRESIDENT, LOCAL 3148 SUBJECT: LMR Committee Meeting Minutes August 7, 2019 The LMR Meeting was held on Wednesday, August 7, 2019, at 9:30 a.m. This meeting is a continuance of previous LMR meetings and the discussions of the old and current agenda items from those meetings. The following staff was present: (Management) , LMR Chairperson, Executive Assistant , AW Jermaine Darden, Captain , AHRM (Union) , President , Vice President , Chief Shop Steward , Shop Steward , Shop Steward , In-Training Old Business Items: August 7, 2019 Settled Arbitration Cases: (TABLED) UNION: The Union states Management has not complied with the local agreement. Union sent various e-mails and no response. Equipment was ordered to compensate for those who did not receive boots in accordance with the contract. (See previous LMR meeting minutes) The Union DOJ-OGR-00022059 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 37 of 38 Cross counting of housing units: (TABLED) UNION: Has requested the responses from the 6/28/18 LMR. MANAGEMENT: Management will provide responses to the union's inquiries communicated on June 28, 2018 by the next LMR meeting scheduled for September 26, 2019. Lunch Reliefs: (TABLED) Quarterly Roster: (CLOSED) Non-Uniform staff attire: (TABLED) New Agenda Items: Correctional Services Annual Leave Schedule: (TABLED) MANAGEMENT: Management states they will like to reduce the annual leave schedule from 7 weeks to 5 weeks. UNION: The union states they do not agree with the reduction of annual leave slots, it's a violation of the contract as it's not fair and equitable. Correctional services staff are being penalized due to local management failing to hire. Management has asked to sit down with the captain to discuss an alternative and union is open to discuss by August 15, 2019. Augmentation: (TABLED) UNION: The union states various e-mails were sent regarding augmentation. Since March 2019 no one has responded to e-mails. Management has come with a procedure on augmentation. We know what the contact states and we have not negotiated. What is the procedure for non-bargaining staff at MCC New York and what order? Today the union is invoking its right to negotiate the procedures and the impact and implementation of the augmentation of the bargaining unit at MCC New York. The local wants to know when managements is available and ready to move forward on negotiations. Additionally, the local is inquiring as to whether management will comply on the contract and cease the procedures they have in place for augmentation of the bargaining unit. Union is requested the procedures used as of August 7, 2019 and a copy of the list for augmentation, MANAGEMENT: Management exercise their rights within the master agreement to re-assign staff as needed. Management will not provide the augmentation list to the Union. Management will continue to negotiate ground rules with the local to use for local negotiations on all matters. Under Staffing in SHU: (TABLED) UNION: The union states we are violating the agency's policy by not having enough staff in SHU. It's a safety risk and raises the inherit risk when we are under staffed in SHU. We are DOJ-OGR-00022060 --- PAGE BREAK --- Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 38 of 38 requesting that SHU operations are halted or curtailed when it is understaffed meaning all of the post are not filled in SHU. Operations to include showers and recreational. The minute the union is notified that a staff member is instructed by a management official to conduct operations in SHU in violation of agency policy, the union will be reporting that management official to Office of Internal Affairs. MANAGEMENT: Management will assess duties and responsibilities as appropriate in SHU. Institutional Supplements: (TABLED) MANAGEMENT: Management states they have been pending for several years and the union is pending review that are not policy driven which needs warden signature and dates. UNION: The union states we needed official time for several union members to work on the supplements. Our requests for official time have gone unanswered. The union will provide a list of union members and number of hours needed for review of Institutional Supplements on September 26, 2019. **The following agenda items below were not discussed in this meeting** Communication with employees on extended leave: New Managers and Local Agreements, Past Practice(s): Staff Housing: Staff Facilities Honoring of Old LMR Agreements: Overtime Hiring at MCC New York: Lieutenant Medina: Opening Old Agenda Items: Responses to Union Inquiries: T&A agreement: Next LMR meeting is scheduled for September 26, 2019 at 9:00 a.m. UNION Local 3148 MCC New York Management