GRAWBE

U.S. Department of Justice

United States Attorney
Southern District of New York

The Silvio!. Mollo Building
One Saint Andrew's Plaza
NewYork,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<br />Protective Order   |
|-|-|-|
| MCC surveillance footage<br />from 7/5/2019 to 8/12/20192 | SDNY_00000001   | Protected Materials                                |

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

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<table><tr><th>Commissary records for
inmates at MCC</th><th>SDNY 00000002-
SDNY 00000020</th><th>Protected Materials</th></tr><tr><td>Computer analysis for
computers used by Noel and
Thomas from 8/9/2019 to
8/10/2019</td><td>SDNY 00000021-
SDNY_00000075</td><td>Protected Materials</td></tr><tr><td>Count slips for 7/23/2019 to
8/14/2019</td><td>SDNY_00000076-
SDNY 00000795</td><td>Protected Materials</td></tr><tr><td>Death reports and photos</td><td>SDNY 00000796-
SDNY 00000857</td><td>Protected Materials</td></tr><tr><td>Photographs of Jeffrey's
Epstein's cell</td><td>SDNY_00000858-
SDNY 00000898</td><td>Protected Materials</td></tr><tr><td>Epstein general BOP records</td><td>SDNY 00000899-
SDNY 00000922</td><td>Protected Materials</td></tr><tr><td>Evidence custody documents</td><td>SDNY 00000923-
SDNY 00000937</td><td>Protected Materials</td></tr><tr><td>Health records for Jeffrey
Epstein</td><td>SDNY_00000938-
SDNY 00001041</td><td>Protected Materials</td></tr><tr><td>Internal MCC phone records</td><td>SDNY_00001042-
SDNY_00002124</td><td>Protected Materials</td></tr><tr><td>MCC logs for 7/23/2019 to
8/19/2019</td><td>SDNY_00002125-
SDNY_00005010</td><td>Protected Materials</td></tr><tr><td>MCC regulations and training</td><td>SDNY_00005011-
SDNY 00005796</td><td>Protected Materials</td></tr><tr><td>MCC staff roster</td><td>SDNY 00005797-
SDNY 00005979</td><td>Protected Materials</td></tr><tr><td>Office of Chief Medical
Examiner report</td><td>SDNY_00005980-
SDNY 00006091</td><td>Protected Materials</td></tr><tr><td>Personnel records for Noel
and Thomas</td><td>SDNY_00006092-
SDNY 00006273</td><td>Protected Materials</td></tr><tr><td>Prior work schedule for Noel
and Thomas</td><td>SDNY 00006274-
SDNY 00006277</td><td>Protected Materials</td></tr><tr><td>Psych records for Jeffrey
Epstein</td><td>SDNY_00006278-
SDNY 00006471</td><td>Protected Materials</td></tr></table>

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.

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<table><tr><th>Reports regarding the July 23
incident </th><th>SDNY_00006472- 
SDNY_00006594 </th><th>Protected Materials</th></tr><tr><td>Special Housing Unit maps</td><td>SDNY_00006595-
SDNY 00006596</td><td>Protected Materials</td></tr><tr><td>Special Housing Unit roster</td><td>SDNY_00006597-
SDNY_00006977 </td><td>Protected Materials</td></tr><tr><td>Materials returned from
4Chan </td><td>SDNY 00006978-
SDNY 00006979</td><td>Protected Materials</td></tr><tr><td>Apple, Inc. subscriber
records;</td><td>SDNY_00006980- 
SDNY_00006984 </td><td>Protected Materials</td></tr><tr><td>AT&amp;T telephone records</td><td>SDNY 00006985-
SDNY_00007079 </td><td>Protected Materials</td></tr><tr><td>Comcast telephone records</td><td>SDNY_00007080-
SDNY_00007084 </td><td>Protected Materials</td></tr><tr><td>Sprint telephone records</td><td>SDNY_00007085-
SDNY_00007103 </td><td>Protected Materials</td></tr><tr><td>Verizon telephone records</td><td>SDNY_00007104-
SDNY_00007108 </td><td>Protected Materials</td></tr><tr><td>Thirty Minute Round reports
for 7/1/2019 to 8/10/2019</td><td>SDNY_00007109- 
SDNY_00007548 </td><td>Protected Materials</td></tr><tr><td>Email regarding cellmate</td><td>SDNY_00008119-
SDNY_00008122 </td><td>Protected Materials</td></tr></table>

Additionally, the Government is producing the following materials only to your client:

| Description                                            | Bates Numbers                               | Classification Pursuant to<br />Protective Order   |
|-|-|-|
| Materials produced by<br />Equifax                     | SDNY MT 00000001-<br />SDNY MT 00000015     |                                                    |
| Materials produced by<br />Experian                    | SDNY_MT _ 00000016-<br />SDNY_MT _ 00000034 |                                                    |
| BOP Emails for Michael<br />Thomas                     | SDNY_ MT_00000035                           |                                                    |
| Pre-trial services information<br />for Michael Thomas | SDNY MT 00000036-<br />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."

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| 8x10<br />photo                      | SDNY_ MT_00000038                         |    |
|-|-|-|
| Paystubs                             | SDNY MT 00000039-<br />SDNY MT 00000064   |    |
| Arrest photo for Michael<br />Thomas | SDNY MT 00000065                          |    |
| CLEAR record                         | SDNY MT 00000066-<br />SDNY MT 00000171   |    |
| Phone report for Michael<br />Thomas | SDNY_MT_ 00000172-<br />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<br />Protective Order   |
|-|-|-|
| 302s and notes for witnesses4                         | SDNY 00007549-<br />SDNY 00007660 &<br />SDNY 00007666-<br />SDNY 00008118 | Protected Materials                                |
| Anonymized Index (Produced<br />Under Separate Cover) | SDNY_00008123                                                              | Attorney's Eyes' Only                              |

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 10ish 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.

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• 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 ofand

• 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

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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.

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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: /s/
Assistant United States Attorneys

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