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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

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