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Case 1:19-cr-00830-AT Document 36 Filed 06/09/20 Page3of9 custody, or control and: (i) the item is material to preparing the defense; (ii) the [G]overnment intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant.” Fed. R. Crim. P. 16(a)(1)(E). “Evidence is material if it could be used to counter the [G]overnment’s case or to bolster a defense.” United States v. Ulbricht, 858 F.3d 71, 109 (2d Cir. 2017) (internal quotation marks and citation omitted), abrogated on other grounds by Carpenter v. United States, 138 S. Ct. 2206 (2018). “In order to compel the Government to produce certain evidence, a defendant must make a prima facie showing of materiality, and must offer more than the conclusory allegation that the requested evidence is material.” United States v. Abdalla, 317 F. Supp. 3d 786, 790 (S.D.N.Y. 2018) (internal quotation marks and citation omitted). “There must be some indication that the pretrial disclosure of the disputed evidence would enable the defendant significantly to alter the quantum of proof in his favor.” United States v. Urena, 989 F. Supp. 2d 253, 261 (S.D.N.Y. 2013) (internal quotation marks, citation, and alterations omitted). Evidence is “within the [G]overnment’s possession, custody, or control” if “(1) it has actually reviewed [the evidence], or (2) [the evidence is] in the possession, custody, or control of a government agency so closely aligned with the prosecution so as to be considered part of the prosecution team.” United States v. Finnerty, 411 F. Supp. 2d 428, 432 (S.D.N.Y. 2006). “Legal ownership of the requested documents or things is not determinative, nor is actual possession necessary if the party has control of the items. Control has been defined to include the legal right to obtain the documents requested upon demand. The term ‘control’ is broadly construed.” United States v. Stein, 488 F. Supp. 2d 350, 361 (S.D.N.Y. 2007) (internal quotation marks and citation omitted) (collecting cases). DOJ-OGR-00022099