DOJ-OGR-00022087.jpg

Case 1:19-cr-00830-AT Document35 Filed 04/24/20 Page 25 of 34 Government; the BOP was not involved in the strategic decisions; and no BOP personnel accompanied the prosecution to court proceedings. Moreover, even if the BOP had conducted a joint investigation with the Government into the events of August 9 and 10, 2019 (which they did not), Thomas has offered no reason to believe that most if not all of the records that he seeks—such as records of other instances of BOP employees failing to conduct rounds and counts—would be part of the BOP’s investigation. There is simply no basis to seek an order compelling the Government to search for records in the possession of the BOP, without any temporal limitation or factual nexus to the charged case, regarding staffing shortages at the MCC, other instances where BOP employees failed to conduct required rounds and counts, and disciplinary records for other BOP employees who have at other times also allegedly falsified records. The cases Thomas cites do not support a contrary result. In United States v. Bryan, the Ninth Circuit concluded that the government could not limit its discovery obligations to documents located in the district of prosecution since the case came out of a single, nationwide IRS investigation. 868 F.2d 1032, 1035-37 (9th Cir. 1989). In reaching that holding, the Circuit explained that “a federal prosecutor need not comb the files of every federal agency which might have documents regarding the defendant” and that Rule 16’s disclosure requirements are cabined to anything in the possession “of any federal agency participating in the same investigation of the defendant.” /d. at 1036 (emphasis added). Similarly, in United States v. Volpe, 42 F. Supp. 2d 204, 221 (E.D.N.Y. 1999), the court explained, in denying the defendant’s discovery motion, that “TeJourts have construed the term ‘government’ . . . narrowly to mean the prosecutors in the particular case or the governmental agencies jointly involved in the prosecution of the defendant, and not the ‘government’ in general.” And while the court in United States v. Libby, 429 F. Supp. 20 DOJ-OGR-00022087