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Case 1:20-cr-00330-AJN Document 63 Filed 10/07/20 Page 3 of 8

Honorable Alison J. Nathan
October 7, 2020
Page 3

to persons who are a part of the ‘prosecution team’ . . . who perform investigative duties or make
strategic decisions about the prosecution of the case,” including “police officers and federal agents
who submit to the direction of the prosecutor and participate in the investigation.” United States
v. Barcelo, 628 F. App’x 36, 38 (2d Cir. 2015) (quoting United States v. Stewart, 433 F.3d 273,
298 (2d Cir. 2006)).

In considering whether Rule 16 and Brady apply to records in the possession of another
government agency, a prosecutor’s duty extends to reviewing such evidence only where the
Government conducts a “joint investigation” with that agency or branch of government. See
United States v. Middendorf, No. 18 Cr. 36 (JPO), 2018 WL 3956494, at *4-5 (S.D.N.Y. Aug. 17,
2018) (no joint investigation between Government, Public Company Accounting Oversight Board
(“PCAOB”) and Securities and Exchange Commission (“SEC”) where PCAOB was not involved
in witness interviews or developing prosecutorial strategy, and SEC was not involved in the grand
jury presentation, reviewing the fruits of the Government’s investigation, or developing
prosecutorial strategy); United States v. Collins, 409 F. Supp. 3d 228, 241-43 (S.D.N.Y. 2019) (no
joint investigation between U.S. Attorney’s Office and SEC where the two entities conducted a
small number of joint interviews and engaged in limited sharing of information with each other);
United States v. Finnerty, 411 F. Supp. 2d 428, 433 (S.D.N.Y. 2006) (no joint investigation
between Government and New York Stock Exchange (“NYSE”) where documents sought were
“the product of an investigation that was undertaken by the NYSE of its own practices, and there
[wa]s no suggestion that the Government participated in that investigation”).

Moreover, the involvement of agents from one component of an agency in an investigation
does not render the entirety of that agency part of the prosecution team. See, e.g., United States v.
Stein, 424 F. Supp. 2d 720, 723 (S.D.N.Y. 2006) (“While the prosecution’s disclosure obligation
in some circumstances may extend to materials beyond the knowledge of the individual
prosecutors assigned to a case, it does not extend to the collective knowledge of the entire United
States government or even to the entire government agency concerned.”); see also Locascio, 6
F.3d at 949 (refusing to impute to AUSAs knowledge of reports prepared by FBI agents who were
“uninvolved in the investigation or trial of the defendants”); cf. United States v. Ghailani, 687 F.
Supp. 2d 365, 372 (S.D.N.Y. 2010) (holding that, in the context of a speedy trial motion, other
members of the Department of Justice who were involved in making decisions about timing and
progress of the case were part of the “government” for Rule 16 purposes).

As the foregoing precedents recognize, the factors relevant in determining whether an
agency or a component of an agency are part of the prosecution team, and therefore their records
are in the “possession” of the Government include whether the agency or component: “(1)
participated in the prosecution’s witness interviews, (2) was involved in presenting the case to the
grand jury, (3) reviewed documents gathered by or shared documents with the prosecution, (4)
played a role in the development of prosecutorial strategy, or (5) accompanied the prosecution to
court proceedings.” Middendorf, 2018 WL 3956494, at *4.

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