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Case 1:19-cr-00830-AT Document35 Filed 04/24/20 Page 15 of 34 B. The Requested Records Are Not “Material” to Preparing a Defense and Are Sought for the Impermissible Purpose of Jury Nullification All of the records Thomas seeks in his motion are not “material to preparing a defense” under Rule 16, and are not exculpatory under Brady, because they are irrelevant to countering the Government’s false statements case or advancing a legitimate defense. Instead, Thomas seeks evidence of staffing shortages, working conditions, the implementation of BOP policies, supervisory lapses, and instances in which other BOP employees were not prosecuted so that he can engage in attempted jury nullification by arguing that those conditions “led” to the criminal conduct that he is charged with and are a reason to acquit him. (Mot. 5, 7, 9, 14). Thomas is not entitled to records—and certainly would not be entitled to introduce any such evidence at trial— that would aid in that nullification effort because Rule 16 only entitles a defendant to discovery for purposes of bolstering a defense to the Government’s case in chief, not the merits of the decision to prosecute. 1. Applicable Law An item or record that the Government does not intend to use in its case-in-chief at trial is discoverable under Rule 16(a)(1)(E) only if it “is material to preparing the defense.” Fed. R. Crim. P. 16(a)(1)(E). “It is [a defendant’s] burden to make a prima facie showing that documents sought under Rule 16(a)(1)(E)(i) are material to preparing the defense.” United States v. Rigas, 258 F. Supp. 2d 299, 307 (S.D.N.Y. 2003) (citing United States v. McGuinness, 764 F. Supp. 888, 894 (S.D.N.Y. 1991)). As noted above, an item is “material to preparing the defense” under Rule 16 “if it could be used to counter the Government’s case or bolster a defense.” Stevens, 985 F.2d at 1180-81. The defendant must “offer more than the conclusory allegation that the requested evidence is material.” Rigas, 258 F. Supp. 2d at 307 (internal citation omitted). As the Supreme Court held in United States v. Armstrong, while Rule 16 authorizes 10 DOJ-OGR-00022077