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Case 1:19-cr-00830-AT Document35 Filed 04/24/20 Page 32 of 34 those officers “in 2005 or 2006” did falsify count slips, Thomas has still not put forth any evidence that those officers were “outside of the protected class,” meaning of a different race, gender, nationality, or other protected class than Thomas. In any event, even were the conduct similar, that Thomas can point to but a single other instance in which officers were not criminally prosecuted for that type of conduct hardly rings of selectiveness. Similarly, Thomas points to the fact that “Officer-1” and “Officer-2” in the Indictment, who falsified count slips along with Tova Noel for the 4 p.m. and 10 p.m. institutional counts on August 9, 2019, respectively, were not prosecuted. (Mot. 10; Ind. 4] 15, 17, 19). Even assuming arguendo that Officer-1 and Officer-2 were similarly situated to Thomas in that they each falsified one count slip—while Thomas falsified three—Thomas has failed to put forth any evidence that either Officer-1 or Officer-2 were outside of a “protected class” to which Thomas belongs.’ Nor could he: Officer-1 and Officer-2 are the same race, gender, and nationality as Thomas. Thomas also questions why his supervisors or other MCC personnel who received and reviewed Thomas’s false count slips were not also prosecuted with making false statements, but those supervisors or personnel are not similarly situated to Thomas because they did not actually make the false statements—Thomas did. In addition, Courts have repeatedly held that the “suspicion [and] surmise” contained in Thomas’s motion simply do not constitute “objective evidence” warranting discovery. See United States v. White, 972 F.2d 16, 19 (2d Cir. 1992) (conclusory allegations as to timing of indictment, Government’s failure to follow internal guidelines, and improprieties of T In so noting, the Government does not intend to comment on its deliberative process or the exercise of its prosecutorial discretion. It notes these facts simply in response to Thomas’s claim that the lack of charges against Officer-1, Officer-2, or Thomas’s supervisors is in and of itself sufficient to meet the defendant’s burden of establishing evidence of a similarly situated defendant who was not charged. 27 DOJ-OGR- 00022094