EFTA00025239

U.S. Department of Justice United States Attorney Southern District ofNew York The Silvio!. Mollo Building One Saint Andrew's Plaza New York, New York 10007 December 31, 2019 BY FEDEX Montell Figgins, Esq. Law Offices of Montell Figgins 17 Academy Street, Suite 305 Newark, NJ 07102 Re: United States v. Michael Thomas, No. 19 Cr. 830 Dear Counsel: This letter provides discovery pursuant to Rule 16(a) of the Federal Rules of Criminal Procedure, and seeks reciprocal discovery. This letter and the materials identified herein are subject to the protective order entered in this case on December 16, 2019, and have been designated as "Protected Materials" as defined in the order where noted below. Accordingly, the materials and information identified herein shall not be disclosed to any third party except as set forth in the protective order. I. Disclosure by the Government Based on your request for discovery in this case, and pursuant to the Government's obligations under Rule 16(a), enclosed are copies of the following materials, which are being produced to all defendants and are stamped with the following control numbers:' Description Bates Numbers Classification Pursuant to Protective Order MCC surveillance footage SDNY_00000001 Protected Materials from 7/5/2019 to 8/12/20192 In addition to information provided herein, please note that this Office periodically posts content on social media platforms including Twitter, Facebook and YouTube. Members of the public may post comments in response to the Office's postings. We do not control these user-generated comments, nor do we monitor or regularly review such comments. You may directly access these social media platforms in the event you believe someone may have posted information relevant to this case. 2 The Government is producing video surveillance footage of the common area of the Special Housing Unit for the above-referenced dates. On or about August 10, 2019, the Government seized 06.20.2018 EFTA00025239 Page 2 Commissary records for SDNY_00000002- Protected Materials inmates at MCC SDNY 00000020 Computer analysis for SDNY_00000021- Protected Materials computers used by Noel and SDNY_00000075 Thomas from 8/9/2019 to 8/10/2019 Count slips for 7/23/2019 to SDNY_00000076- Protected Materials 8/14/2019 SDNY 00000795 Death reports and photos SDNY_00000796- Protected Materials SDNY_00000857 Photographs of Jeffrey's SDNY_00000858- Protected Materials Epstein's cell SDNY_00000898 Epstein general BOP records SDNY_00000899- Protected Materials SDNY_00000922 Evidence custody documents SDNY_00000923- Protected Materials SDNY_00000937 Health records for Jeffrey SDNY_00000938- Protected Materials Epstein SDNY 00001041 Internal MCC phone records SDNY_00001042- Protected Materials SDNY_00002124 MCC logs for 7/23/2019 to SDNY_00002125- Protected Materials 8/19/2019 SDNY_00005010 MCC regulations and training SDNY_0000501 I- Protected Materials SDNY_00005796 MCC staff roster SDNY_00005797- Protected Materials SDNY_00005979 Office of Chief Medical SDNY_00005980- Protected Materials Examiner report SDNY_00006091 Personnel records for Noel SDNY_00006092- Protected Materials and Thomas SDNY 00006273 Prior work schedule for Noel SDNY 00006274- Protected Materials and Thomas SDNY 00006277 Psych records for Jeffrey SDNY_00006278- Protected Materials Epstein SDNY_00006471 the contents of the MCC's video surveillance system. Certain cameras were not functioning, have not been processed, or are not available. The Government is producing the available surveillance footage that falls within Rule 16(a). However, to the extent you believe that certain additional footage would be relevant, please contact us promptly to request that footage. 06.20.2018 EFTA00025240 Page 3 Reports regarding the July 23 SDNY_00006472- Protected Materials incident SDNY_00006594 Special Housing Unit maps SDNY_00006595- Protected Materials SDNY 00006596 Special Housing Unit roster SDNY_00006597- Protected Materials SDNY_00006977 Materials returned from SDNY 00006978- Protected Materials 4Chan SDNY 00006979 Apple, Inc. subscriber SDNY_00006980- Protected Materials records; SDNY_00006984 AT&T telephone records SDNY 00006985- Protected Materials SDNY_00007079 Comcast telephone records SDNY_00007080- Protected Materials SDNY_00007084 Sprint telephone records SDNY_00007085- Protected Materials SDNY_00007103 Verizon telephone records SDNY_00007104- Protected Materials SDNY_00007108 Thirty Minute Round reports SDNY_00007109- Protected Materials for 7/1/2019 to 8/10/2019 SDNY_00007548 Email regarding cellmate SDNY_00008119- Protected Materials SDNY_00008122 Additionally, the Government is producing the following materials only to your client: Description Bates Numbers Classification Pursuant to Protective Order Materials produced by SDNY MT 00000001- Equifax SDNY MT 00000015 Materials produced by SDNY_MT_00000016- Experian SDNY_MT_00000034 BOP Emails for Michael SDNY_MT_00000035 Thomas Pre-trial services information SDNY MT 00000036- for Michael Thomas SDNY MT 00000037 3 Apple produces subscriber records in a read-only format. To review the records, open the file and when prompted for a password, click on "read only." 06.20.2018 EFTA00025241 Page 4 8x10 SDNY_MT_00000038 photo Paystubs SDNY MT 00000039- SDNY MT 00000064 Arrest photo for Michael SDNY MT 00000065 Thomas CLEAR record SDNY MT 00000066- SDNY MT 00000171 Phone report for Michael SDNY_MT_00000172- Thomas SDNY_MT_00000176 Without conceding that these materials constitute discoverable materials pursuant to Rule 16(a) or Jencks Act materials, the Government is producing the following materials out of an abundance of caution in order to assist with your trial preparation. Description Bates Numbers Classification Pursuant to Protective Order 302s and notes for witnesses4 SDNY 00007549- Protected Materials SDNY 00007660 & SDNY 00007666- SDNY 00008118 Anonymized Index (Produced SDNY_00008123 Attorney's Eyes' Only Under Separate Cover) The Government recognizes its obligations under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. The Government wishes to bring your attention to the following statements, which could constitute Brady material: • Inmate-4 stated that on the night of August 9, 2019, the corrections officers performed "a few rounds that night" but Inmate-4 could not recall what time. • Inmate-5 stated that Noel came by "around 10 to do the count" on the evening of August 9, 2019. • Inmate-7 stated that on the evening of August 9, 2019, the corrections officers "did [a] count around 1 0ish but not after that." Inmate-7 further stated that Inmate-7 was not really awake for the 3:00 a.m. count on August 10, 2019, "but hear[d] [the] gate open." This range excludes SDNY_00007661-SDNY_00007665, which the court has directed the Government to wtihhold. 06.20.2018 EFTA00025242 Page 5 • Inmate-11 stated that on the evening of August 9, 2019 into the morning of August 10, 2019, the "last check was made sometime between 12:30Am — 1:00AM. The male black stayed by the door and the female black walked through the tier but did not walk all the way in." In addition, materials from Inmate-2 include a statement which could constitute Brady, however, the Court has directed the Government to withhold these materials from production due to pending ex parse litigation. The Government will produce these materials if and when the Court orders their production. Beyond the above materials, to date, the Government is unaware of any other Brady material regarding your client, but will provide timely disclosure if any such material comes to light. The Government will provide material under Giglio v. United States, 405 U.S. 150, 154 (1972), and its progeny, to the extent it has not already been produced, in a timely manner prior to trial. II. Materials Not Disclosed In addition to the materials identified above, the Government is in possession of additional records that are not discovery materials under Rule 16(a). Nonetheless, in an abundance of caution, the Government is providing the following inventory of those materials that have not been produced: • Financial records produced by Bank of America for accounts in the names of • Financial records produced by Citibank for accounts in the names of- and • Credit report records produced by Equifax in the names of • Financial records roduced b JPMor an Chase Bank for accounts in the names of • Financial records produced b Municip al Credit Union for accounts in the names of • Financial records produced by Navy Federal Credit Union for accounts in the names of • Financial records produced by TD Bank for accounts in the names of • Financial records produced by Wells Fargo Bank for an account in the name of 06.20.2018 EFTA00025243 Page 6 If at any time you believe that any of the foregoing materials should be produced as Rule 16(a) materials, please promptly notify the Government. III. Disclosure by the Defendant In light of your request for the foregoing discovery, the Government hereby requests reciprocal discovery under Fed. R. Crim. P. 16(b). Specifically, we request that you allow inspection and copying of: (1) any books, or copies or portions thereof, which are in the defendant's possession, custody or control, and which the defendant intends to introduce as evidence or otherwise rely on at trial; and (2) any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with this case, or copies thereof, which are in the defendant's possession or control, and which the defendant intends to introduce as evidence or otherwise rely on at trial or which were prepared by a witness whom the defendant intends to call at trial. The Government also requests that the defendant disclose prior statements of witnesses he will call to testify. See Fed. R. Crim. P. 26.2; United States v. Nobles, 422 U.S. 225 (1975). We request that such material be provided on the same basis upon which we agree to supply the defendant with 3500 material relating to Government witnesses. We also wish to remind you that Fed. R. Crim. P. 12.3(a) requires you to provide the Government with written notice if the defendant intends to claim a defense of actual or believed exercise of public authority on behalf of a law enforcement or Federal intelligence agency at the time of the alleged crime. The Government requests a response to our Rule 12.3 demand within the time period allowed by the Court for the filing of motions. IV. Sentence Reduction for Acceptance of Responsibility Please contact us at your earliest convenience concerning the possible disposition of this matter or any further discovery which you may request. This Office will oppose the additional one-point reduction under the Sentencing Guidelines available for defendants who plead prior to the Government's initiation of trial preparations pursuant to U.S.S.G. § 3E1.1(b), in the event your client has not entered a plea of guilty four weeks prior to trial. We will follow this policy whether or not suppression or other pretrial motions remain outstanding after this date and even if the trial date has not been announced by the Court four weeks in advance of the trial. 06.20.2018 EFTA00025244 Page 7 Please be advised, however, that pursuant to the policy of the Office concerning plea offers, no plea offer is effective unless and until made in writing and signed by authorized representatives of the Office. In particular, discussions regarding the pretrial disposition of a matter that are not reduced to writing and signed by authorized representatives of the Office cannot and do not constitute a "formal offer" or a "plea offer," as those terms are used in Lafier v. Cooper, 132 S.Ct. 1376 (2012); Missouri v. Frye, 132 S.Ct. 1399 (2012). Very truly yours, GEOFFREY S. BERMAN United States Attorney for the Southern District of New York By: Is/ Assistant United States Attorneys 06.20.2018 EFTA00025245