UNITED STATES OF AMERICA v. JAMAUL AZIZ JAMES BAZEMORE ALBERTO SANTIAGO (2026)

MEMORANDUM & ORDER

FILED UNDER SEAL

In the United States, the government's power to prosecute crimes and hold people to account goes hand in hand with a solemn responsibility to uphold the integrity of the criminal justice system. This principle requires prosecutors to disclose favorable evidence known to the government as well as those acting on the government's behalf. See Brady v. Maryland, 373 U.S. 83 (1963); Kyles v. Whitley, 514 U.S. 419 (1995). This principle also undergirds the rule that criminal defendants may access evidence within the government's control that is material to preparing a defense. Fed. R. Crim. P. 16. Mandatory disclosure serves twin aims. It protects a criminal defendant's right to a fair trial by ensuring that no person is prosecuted without access to material or favorable evidence known by the prosecution. Equally, it safeguards the public's trust and confidence in the criminal justice system by ensuring that convictions are secured on fair terms.

Though these disclosure obligations are often said to apply to “the government,” not every one of the 2.9 million people who work for the United States Federal Government are included. In a typical federal prosecution, for example, there is little doubt that disclosure obligations extend to information known to the Federal Bureau of Investigation (“FBI”) agents who investigate the crime and the Assistant United States Attorneys (“AUSAs”) who prosecute the case. There is likewise little doubt that the obligations do not extend to information known to individuals who in no conceivable way participated in the investigation or prosecution of the case, even if they are employed by the federal government. More complicated factual scenarios may present harder questions and closer calls. In those situations, courts must carefully examine the facts to determine whether a given individual is part of the prosecution team.

The Court is confronted with such a scenario here. The present case concerns a fatal stabbing at the Metropolitan Detention Center (“MDC”) in Brooklyn, New York, a federal detention facility operated by the Federal Bureau of Prisons (“BOP”), a component of the United States Department of Justice (“DOJ”). Defendants in this case are three MDC inmates charged with, among other things, murder in a federal detention facility. In the aftermath of the stabbing, MDC staff, including officers with the BOP's Special Investigative Services (“SIS”), secured the crime scene, collected the presumed murder weapon and virtually all of the physical evidence, helped prepare FBI agents to interview the defendants, and provided the FBI agents with supplies to collect evidence. The SIS did so consistent with an official written manual governing their conduct promulgated by the Acting Director of the BOP, which states that “[a] primary role of the SIS is to assist in investigations of criminal acts” and charges them with “[a]cting as ․ [an] assistant to, Federal, state, and local law enforcement officials in preparing cases for possible prosecution.” Special Investigative Supervisors Manual (“SIS Manual”) at 5, ECF No. 200-2.¹ Moreover, the BOP's official crime scene management instructions presume that many of the “activities will be performed on a joint or team basis” between the SIS and the FBI or other investigating agency with jurisdiction. Crime Scene Management and Evidence Control Program Statement (“Program Statement”) at 1, ECF No. 200-1.

Before the Court is defendants’ motion for a judicial finding that the BOP is “part of the prosecution team” and thus subject to disclosure obligations under Brady and Rule 16. See Mot. 1.² The motion also seeks an order directing the United States Attorney's Office for the Eastern District of New York (“USAO”) to review materials in the possession of the BOP and MDC in order to comply with the USAO's procedural and constitutional disclosure obligations. Id. Finally, in the alternative, the motion seeks an evidentiary hearing. For the reasons stated below, the Motion is GRANTED in part and DENIED in part.

BACKGROUND

A. Stabbing

The underlying events in this case took place on July 17, 2024, in Housing Unit G-43 of the MDC. Mot. 2; Opp'n 2. They involved six individuals who, at the time, were incarcerated at the MDC: defendants Aziz, Bazemore, and Santiago, as well as inmates Edwin Cordero (the decedent), Charles Carter, and Eric Nunez. Mot. 2–3.

According to a surveillance video, around 2:20 p.m., Cordero and Santiago were involved in a physical alteration. Mot. 3; Opp'n 2. According to defendants, “Cordero approached Santiago from behind and attempted to slash his throat.” Mot. 3. According to the government, “Cordero cut at the right side of Santiago's head.” Opp'n 2.

The next 27 minutes of the video shows Nunez yelling at Santiago and Cordero stalking Santiago. Mot. 3. During this same time frame, the video shows Cordero and Carter going in and out of another inmate's cell and huddling with Nunez. Mot. 3. Several times during the 27-minute period, the video shows Cordero and Nunez conversing. Mot. 3.

Around 2:47 p.m., Cordero and Santiago were involved in a second physical alteration. Mot. 3. According to defendants, “Cordero attack[ed] Santiago a second time, this time with Carter assisting him. Santiago then defend[ed] himself from the attack, with ․ Aziz and ․ Bazemore joining in Santiago's defense. It is during these defensive actions that Cordero [was] stabbed.” Mot. 3. According to the government, this is how the final moments of the altercation unfolded:

Santiago and [Cordero] got into another altercation, both holding makeshift weapons ․ [A]nother inmate joined seemingly to defend [Cordero]. Almost immediately, Aziz and Bazemore came to fight [Cordero] with Santiago; both Aziz and Bazemore also had makeshift weapons. The inmate who was with the victim then fled the fight, and Aziz, Bazemore and Santiago pursued [Cordero], attempting to corner him while swinging and stabbing at [Cordero]. At one point, [Cordero] was trapped against a staircase while Aziz and Bazemore attempt[ed] to stab him․ [Cordero] then escaped ․ Santiago approached [Cordero] from behind and stabbed [Cordero] in the center of his chest․ Bazemore [then] grab[ed] [Cordero] and stab[ed] him in the back. Aziz and Bazemore then cornered [Cordero] ․ [and] repeatedly stabbed, struck and kicked [him].

Opp'n 2.

At some point, a unit officer requested assistance due to an inmate fight, and staff observed inmates striking each other. Mot. 2. The officers ordered the inmates to stop, and the inmates complied. Mot. 2. Cordero was placed on a gurney and escorted to a medical area where life saving measures were performed. Mot. 2; Opp'n 2. Cordero died from his injuries. Mot. 2; Opp'n 2–3. Santiago was later observed to have a cut to the side of his face consistent with where Cordero originally tried to slash his throat. Mot. 3.

B. Investigation

1. Immediate Aftermath

In the immediate aftermath of the stabbing, the SIS contacted the FBI and NYPD, who responded to the scene within hours. Reply 3. After the altercation, MDC staff took Aziz, Bazemore, Santiago, Carter, and Nunez to MDC's Special Housing Unit (“SHU”), where they were questioned by the FBI and NYPD. Mot. 2–3; Reply 3. While the FBI and NYPD were questioning Aziz, Bazemore, and Santiago, SIS and other MDC staff conducted mass interviews of inmates in the unit where the incident occurred to identify possible witnesses. Reply 3; Mot. 4. SIS and other MDC staff “secured the crime scene, placed evidence flags wherever anything of evidentiary value was found, [and] logged and photographed everything [they] retrieved.” Reply 3. Defendants specifically report that “the FBI worked with the BOP Evidence Recovery Team to secure the scene of the crime.” Bazemore Supp. 7.³

SIS Technicians Livingston, Demorcy, and Konschnik collected physical evidence that was later provided to the FBI, including: (1) Santiago's clothing, (2) a sharpened piece of metal with a cloth handle, (3) a metal object sharpened to a point, and (4) a pair of grey sweatpants with a red stain. Mot. 4–5. SIS Technician Livingston also took crime scene photographs, and BOP officials created diagrams of the crime scene. Mot. 5.

BOP employees took several actions to enable the FBI and NYPD to ask better questions during the FBI's and NYPD's interviews of Aziz, Bazemore, and Santiago in the immediate aftermath of the stabbing. Prior to the interviews, the FBI/NYPD were either shown the BOP video of the incident or were briefed by BOP officials who had viewed the video. Bazemore Supp. 2–3. (Although it is not clear which of these two things occurred, the government does not dispute the assertion that one or both did.) BOP officials then provided to the FBI and NYPD a portion of the BOP video to use during the interviews. Bazemore Supp. 3.

BOP employees also took several actions to facilitate the FBI's and NYPD's interviews of Aziz, Bazemore, and Santiago. BOP employees provided the FBI and NYPD with a private room where the interviews could be conducted. Bazemore Supp. 2–3. For Bazemore's interview by the FBI and NYPD, BOP officials specifically directed him where in the room to sit. Bazemore Supp. 3. The FBI and NYPD showed Bazemore some of the video provided by the BOP officials and asked him questions about the video.⁴ Bazemore Supp. 3. BOP officials also provided Styrofoam cups during the interviews so that the DNA of defendants could be surreptitiously collected from those cups. Bazemore Supp. 3.

The government has also indicated that a “prosecutor”—presumably an Assistant United States Attorney—went with the FBI agents to MDC the night of the stabbing. Oral. Arg. Tr. 69:21–22. No information in the record indicates what specific actions the prosecutor took while at MDC.

At some point after the stabbing, as the investigation proceeded, BOP officials developed a confidential informant to provide them with information. Bazemore Supp. 4.

2. Provision of Evidence

In addition to the evidence the BOP provided to the FBI on the date of the stabbing, the BOP subsequently provided the FBI and USAO with extensive further evidence. All evidence retrieved and secured by the BOP and SIS, as well as chain of custody reports prepared by the SIS and other BOP personnel, were provided to the FBI and NYPD for prosecution within days of the incident. Reply 3.

Furthermore, “BOP and SIS evidence forms used in this case ․ indicate that the FBI was routinely copied on evidence chain of custody logs.” Mot. 5. Defendants have submitted an example of one such chain of custody log. Mot. App'x D (“Log”) 1, ECF No. 115-3. The Log is for a piece of evidence described as a “Gray t-shirt ․ with red stain.” Log 1. The form directs the user to “enclose with/attach to [the] evidence.” Log 1. The document states that the item was found on July 17, 2024, at 9:00 p.m. in a “trash can near door labeled 427, cell G05-422.” Log 1. The form also indicates that the name of the “person recovering evidence” was an individual named “D. Gonzalez.” Log 1. The form includes a table reflecting the chain of custody of the evidence with the following entries: (1) on July 17, 2024, at 9:00 p.m., D. Gonzales released the evidence to SIS Technician E. Konschnik with the destination being “FBI”; (2) on July 17, 2024, at 11:20 p.m., Konschnik released the evidence to “Evidence Cage” with the destination being “Secure Location”; (3) and on July 23, 2024, at 2:39 p.m. the evidence was released by SIS Technician W. Demorcy to a name not fully legible, but which appears to be “Det Parks” or something similar. Log 1. Finally, under the heading “DISPOSITION,” the form contains several checkboxes, such as “Hold as evidence,” “Return to owner,” “Lab Analysis,” and “FBI.” Log 1. The box labeled “FBI” is marked. Log 1.

The BOP also provided the USAO with statements from witnesses and the defendants themselves. BOP officials interviewed 87 witnesses who resided in Housing Unit G-43 at the time of the incident, and a form memorializing each interview was provided by the BOP to the USAO. Bazemore Supp. 3. BOP officials also noted various statements made by defendants on the date of the incident while BOP officials were transporting defendants, while defendants were in holding cells, and while defendants were in the SHU. Mot. 5; Bazemore Supp. 3–4. These statements were provided by the BOP to the USAO as well. Bazemore Supp. 4.

With respect to the confidential informant that the BOP developed, BOP officials interviewed the confidential informant and provided that interview to the prosecution. Bazemore Supp. 4.

The BOP also provided further evidence to the government, including the medical and psychological files of each of the three defendants, copies of all three defendants’ prior incident reports while in MDC custody, and MDC bed books and housing rosters. Mot. 5.

3. Official BOP Policy Documents

In September 2025, defendants asked the prosecution whether “the BOP, and specifically the [MDC], has a Memorandum of Understanding or any other written policy regarding agency cooperation with the USAO or the FBI on criminal investigations within the prison.” Ltr. Regarding Sealed Materials (“Sealed Ltr.”) ¶ 1, ECF No. 200. The prosecution provided two documents in response: (1) the Crime Scene Management and Evidence Control Program Statement and (2) the Special Investigative Supervisors Manual. See Program Statement; SIS Manual. Both are official BOP documents approved by the BOP's Acting Director. See Program Statement 1; SIS Manual 1.

i. Program Statement

The Program Statement lists “procedural requirements” that the BOP will use to: “[p]rocess and document [a] crime scene within a correctional environment; [p]roperly identify, collect, document, and store evidence; [r]elease evidence to other law enforcement or prosecutorial agencies; [and] [f]ulfill subpoenas.” Program Statement 1 (semicolons added for clarity). The objectives of the program are to “[s]tandardize identification, collection, documentation, and storage of evidence for use by institutional investigators and the U.S. Attorney's Office to hold inmates and others accountable for misconduct and criminal activities” and to “[d]emonstrate sound crime scene management techniques to ensure each crime scene is processed in a manner that assists institutional investigators and the U.S. Attorney's Office.” Program Statement 1.

According to the Program Statement, “[t]he investigating agency having jurisdiction is contacted immediately. During that contact, it is determined how far the Special Investigative Supervisor (SIS) may proceed before arrival of the agent or deputy involved.” Program Statement 1. Once the agent or deputy arrives, “[i]t is assumed that the agent or deputy will be present during a number of procedures discussed [and] that many activities will be performed on a joint or team basis.” Program Statement 1.

The Program Statement also provides direction for recording the crime scene and creating a crime scene diagram or sketch. The Program Statement explains that “[t]o ensure staff can re-create a crime scene at a future date for court proceedings, it must be thoroughly and completely documented.” Program Statement 2. In criminal cases, a member of one of the BOP's Evidence Recovery Teams (“ERTs”) will prepare a crime scene diagram or sketch. Program Statement 3; see also Aff. of Maureen P. Baird ¶ 20 (explaining that ERTs are typically comprised of individuals assigned to the Special Investigative Services department who are trained in evidence collection techniques, fingerprint collection, photography, and sketch documentation), ECF No. 118-2. “Ordinarily, the diagram/sketch, together with official, updated area blueprints are submitted to the Federal Bureau of Investigation (FBI) or other investigative agency for preparing final sketches for trial use.” Program Statement 3.

ii. SIS Manual

The “purpose” of the SIS Manual is to “direct Special Investigative Supervisors/Agents (SISs/SIAs) and other [BOP] staff investigating inmate criminal activities.” SIS Manual 2. Under a section titled “Investigative Authority,” the manual specifies that “SIS staff ․ are authorized to perform inmate misconduct investigations, whether administrative or criminal. For criminal investigations, the SIS contacts the appropriate agency having jurisdiction for guidance.” SIS Manual 3. In a section on liaising with law enforcement agencies, the Manual explains that “[t]he SIS is encouraged to meet with the Assistant United States Attorney (AUSA), who ordinarily handles criminal matters involving the institution, and discuss policy and procedures regarding cases accepted or declined for prosecution.” SIS Manual 5. For “investigations, the SIS must have a good understanding of the expectations of the agency with investigative jurisdiction, and the authority to begin processing the crime scene.” SIS Manual 5.

A subsequent section of the SIS Manual is entitled “Criminal Investigations.” SIS Manual 5. It explains that “[a] primary role of the SIS is to assist in investigations of criminal acts.” SIS Manual 5. The manual states that “[t]he SIS has a dual function: [a]cting as liaison with, and assistant to, Federal, state, and local law enforcement officials in preparing cases for possible prosecution” and “[s]atisfying investigative requirements for administrative hearings at the institution level.” SIS Manual 5.

Later on, the Manual discusses reporting criminal activity to law enforcement. SIS Manual 10. The Manual specifies that during an initial referral to the law enforcement agency having jurisdiction, “the SIS is authorized to disclose all evidence and information, including recorded telephone conversations, to the investigative agency.” SIS Manual 10. “Frequently, the initial referral is made to the investigative agency by phone.” SIS Manual 10. The SIS will “discuss[ ] authority to proceed in interviewing suspects and processing crime scenes.” SIS Manual 10. Once a referral is made, the BOP “maintains continuous liaison with these agencies to ensure referrals are considered appropriately and recorded in the SIS computer system.” SIS Manual 11.

At the conclusion of an SIS investigation, the SIS will prepare an investigative report. SIS Manual 13. The report “includes all actions taken, evidence recovered, witness statements, supporting documentation, and statements of the accused.” SIS Manual 13. The Manual admonishes that “[t]he report must be thorough so that the [Discipline Hearing Officer (“DHO”)], U.S. Attorney, or other [BOP] staff can take action on its contents without supporting explanations or evidence.” SIS Manual 13.⁵

The final portion of SIS Manual is labeled “Prosecution Procedures.” SIS Manual 15. It explains that “SIS investigations and investigative reports are prepared not only to satisfy administrative DHO hearing requirements, but to be appropriate for use in prosecution by an AUSA or District Attorney.” SIS Manual 15. The Manual also discusses the “Responsibilities of the SIS” in the context of prosecutions, stating that “[t]he SIS must ensure, without exception, that the AUSA has knowledge of all evidence, statements, memos, or interviews collected or conducted. The AUSA must be advised of any evidence or statement that would suggest the suspect(s) did not commit the offense, even if the information is clearly discounted by all other evidence.” SIS Manual 15 (emphasis in original). It also states that “[t]hroughout preparation for prosecution, the SIS will be asked to provide detailed support to the AUSA assigned to the case. These responsibilities are shared to various degrees with institution legal staff, and frequently include[,]” among other things: “[p]roviding policy research on institution rules and procedures,” “[c]oordinating pretrial conferences between the AUSA and staff witnesses,” “[p]roviding testimony before the Grand Jury,” “[c]oordinating research on backgrounds and credibility of inmates called as defense witnesses” (“[t]hese requests are often received shortly before trial,” the Manual warns), “[c]oordination of transportation and appearance of staff witnesses,” and “[p]roviding detailed advice and rebuttal information to the AUSA throughout the trial.” SIS Manual 15.

C. Indictment

On September 24, 2024, a grand jury returned an indictment charging Aziz, Santiago, and Bazemore with four crimes arising out of the events of July 17, 2024: premeditated murder within a federal detention facility, conspiracy to commit murder within a federal detention facility, assault resulting in serious bodily injury within a federal detention facility, and possession of one or more objects designed to be used as weapons within a prison. See Indictment, ECF No. 1; Opp'n 1. The indictment was presented to the grand jury by a special agent from the FBI and prosecutors from the USAO. Opp'n 2.

D. Discovery Dispute and Instant Motion

Discovery proceeded without issue until April 2025, when defendants filed two discovery motions. First, on April 16, 2025, Santiago filed a Motion for Determination that the Bureau of Prisons is Part of the Prosecution Team for Rule 16 and Brady Purposes. See Mot. The motion does not seek specific documents, but rather an overarching legal finding that the BOP is part of the prosecution team. See Mot. According to the Motion, defendants requested that the USAO review BOP and MDC materials and provide all properly discoverable information contained therein, but the government declined to do so, taking the position that the information is beyond the scope of the required disclosures under Rule 16 and Brady because the BOP is not part of the prosecution team. Mot. 1–2.

Second, on April 23, 2025, Aziz filed a motion seeking a list of specific documents and materials—much of which is ostensibly held by the BOP—under Rule 16 and Brady. See Def. Jamaul Aziz's Mot. to Produce (“Mot. to Produce”) ¶ 40, ECF No. 118. Bazemore joined Santiago's Motion for Determination, and Santiago and Bazemore joined Aziz's Motion to Produce. See Mot. to Adopt Mot. to Produce, ECF No. 120; Mot. to Adopt Mots. Filed by Co-Defs., ECF No. 121; Docket Entries dated April 28, 2025.⁶

Before the Court is the Motion for Determination. The Court opts to resolve the Motion for Determination prior to addressing the Motion to Produce.⁷

DISCUSSION

I. The Scope of Rule 16 and Brady

The obligations of the government to disclose information at this stage of the case are governed by Rule 16 of Federal Rules of Criminal Procedure and the Due Process Clause of the Fifth Amendment. Though these legal frameworks, together, regulate the government's mandatory disclosures, they encompass overlapping but distinct sets of material. See United States v. Meregildo, 920 F. Supp. 2d 434, 443 (S.D.N.Y. 2013) (“The Government's discovery obligations and Brady obligations are not coterminous.”), aff'd on other grounds sub nom. United States v. Pierce, 785 F.3d 832 (2d Cir. 2015). These frameworks also serve related but distinct purposes. The principal due process clause framework, Brady v. Maryland, “is not a discovery rule, but a rule of fairness and minimum prosecutorial obligation.” United States v. Maniktala, 934 F.2d 25, 28 (2d Cir. 1991). By contrast, Rule 16 is “intended to [e]nsure the efficient resolution of cases and, most importantly, minimize prejudicial surprise.” Lamborn v. Dittmer, 873 F.2d 522, 527 (2d Cir. 1989). The Court examines each framework in detail.

A. Rule 16

Rule 16 of the Federal Rules of Criminal Procedure provides:

Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and ․ the item is material to preparing the defense; ․ the government intends to use the item in its case-in-chief at trial; or ․ the item was obtained from or belongs to the defendant.

Fed. R. Crim. P. 16(a)(1)(E).

Under the plain text of the rule, whether the government must disclose particular evidence depends on, among other things, whether the items are “within the possession, custody, or control of ‘the government’ as that term is used in the rule.” United States v. Ghailani, 687 F. Supp. 2d 365, 368 (S.D.N.Y. 2010). The instant dispute thus centers on two key questions: (1) what is “the government” and (2) what does it mean for items to be within a person or entity's “possession, custody, or control.” Fed. R. Crim. P. 16(a)(1)(E).

These two questions matter independently from one another. Suppose, for the sake of argument, that a document material to preparing the defense were located in a filing cabinet in the office of a BOP employee. Defendants would likely be entitled to inspect and copy the document if that BOP employee were part of “the government” under Rule 16. Similarly, even if that BOP employee were not part of the government, defendants would be entitled to inspect and copy the document if it nevertheless were “within the possession, custody, or control” of someone else who is part of the government, such as the AUSA prosecuting the case.

Despite the long history of Rule 16, there appears to be no controlling case law to answer either question at the center of the parties’ dispute. Neither the U.S. Supreme Court nor the Second Circuit have established a specific standard for determining, for purposes of Rule 16, who is part of the government. See, e.g., United States v. Chalmers, 410 F. Supp. 2d 278, 288 (S.D.N.Y. 2006) (“[T]he Second Circuit has not defined ‘the government’ for Rule 16 purposes.”); Ghailani, 687 F. Supp. 2d at 370 (“[W]e all use the phrase ‘the government’ to refer broadly to the institutions by which we order our civic affairs. But the term has a more specialized and, regrettably, not fully articulated meaning in the context of Rule 16.”). Meanwhile, though the Second Circuit has interpreted the phrase “possession, custody, or control” under Rule 16 on occasion, see, e.g., United States v. Bradley, 105 F.4th 26, 34 (2d Cir. 2024) (holding that Rule 16 does not encompass constructive possession), the Second Circuit has not articulated an overarching standard or test for the phrase. Accordingly, to understand what each of these terms mean, the Court looks to traditional tools of statutory interpretation and the persuasive authority of other district court opinions.

1. The Term “The Government”

First, consider the meaning of the term “the government.” In ordinary language, “the government” can refer broadly to the collection of officials and entities that create, manage, and administer society's public affairs. See Ghailani, 687 F. Supp. 2d at 370. The term can also refer to a specific government, such as the federal government of the United States or the government of a state or city. For purposes of Rule 16 discovery, however, the term's meaning is more circumscribed. It would be unworkable and implausible for the term to encompass every individual who works for the federal government of the United States. See United States v. Upton, 856 F. Supp. 727, 749–50 (E.D.N.Y. 1994). On the other hand, there can be no real debate that “the government” includes, at a minimum, the prosecutors working on the case. Ghailani, 687 F. Supp. 2d at 370. Between these extremes—the entirety of the United States government versus a handful of prosecutors assigned to a case—where the line falls is not obvious. Id.

Several district courts within the circuit have offered their views as to what “the government” encompasses. See, e.g., United States v. Finnerty, 411 F. Supp. 2d 428, 432 (S.D.N.Y. 2006) (“Courts have typically required the prosecution to disclose under Rule 16 documents ․ [that] are 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. Volpe, 42 F. Supp. 2d 204, 221 (E.D.N.Y. 1999) (“Courts have construed the term ‘government’ in this rule 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.”); Upton, 856 F. Supp. at 749–50 (“The key to the analysis ․ is the level of involvement between the United States Attorney's Office and the other agencies․ [T]he inquiry is the extent to which there was a ‘joint investigation’ with another agency.”); United States v. Holihan, 236 F. Supp. 2d 255, 260 (W.D.N.Y. 2002) (“[T]he prosecution alone is responsible for ensuring that [d]efendant is provided with information discoverable under Rule 16, including information that is in possession of other government agencies participating in the investigation.”).

2. The Phrase “Possession, Custody, or Control”

Next, consider the phrase “possession, custody, or control.” Two basic points are worth noting.

First, the drafters of Rule 16 chose to use a disjunctive three-word phrase rather than only the word “possession.” Under the canon against surplusage, the court should give effect, if possible, to every clause and word of a provision, avoiding interpretations that would render one or more of the words superfluous. Nielsen v. Preap, 586 U.S. 392, 414 (2019); Garcia v. Garland, 64 F.4th 62, 74 (2d Cir. 2023). Accordingly, any plausible interpretation of Rule 16 should give at least a modicum of non-overlapping meaning to each of “possession,” “custody,” and “control”—the latter two words cannot, for example, be read as mere synonyms of “possession.” See United States v. Stein, 488 F. Supp. 2d 350, 363 (S.D.N.Y. 2007) (“The rule speaks of ‘possession, custody or control,’ not simply ‘possession.’ ”).

Second, the phrase “possession, custody, or control” is not unique to Rule 16. It also appears in Rules 26, 34, and 45 of the Federal Rules of Civil Procedure, which among other things, authorize discovery requests to inspect and copy documents “in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). The phrase “possession, custody, or control” was added to the Federal Rules of Criminal Procedure in 1966. See Fed. R. Crim. P. 16(a)(1) advisory committee's note to 1966 amendment. But it had existed in the Federal Rules of Civil Procedure since the civil rules were originally promulgated in the 1930s. See Fed. R. Civ. P. (1938); see also Stein, 488 F. Supp. 2d at 360. The Court is mindful that the rules of Criminal Procedure and Civil Procedure serve distinct purposes, and a phrase that appears in one could, theoretically, have a distinct meaning in the other. Nevertheless, it is very likely that the drafters of the 1966 amendment to the Federal Rules of Criminal Procedure did not derive the phrase from whole cloth, but rather intentionally used the same language that had already existed in the Federal Rules of Civil Procedure. Accordingly, it could be of some relevance that the Second Circuit has interpreted the phrase “possession, custody, or control” in the context of the civil rules and held that “documents are considered to be under a party's control when that party has the right, authority, or practical ability to obtain the documents.” Mirlis v. Greer, 80 F.4th 377, 382 (2d Cir. 2023).

The Second Circuit has provided limited guidance concerning the meaning of “possession, custody, or control” in the context of Rule 16 of the criminal rules. In United States v. Bradley, the Second Circuit held that Rule 16 does not include a “constructive possession concept or due diligence requirement” and thus does not require the government to turn over evidence it does not have simply because it “could have reason to suspect the [evidence] exist[s].” 105 F.4th at 34–35. Furthermore, in United States v. Lee, the Second Circuit held that wiretap application materials submitted by Jamaican law enforcement to Jamaican courts were not “within the ․ possession, custody, or control” of the United States. 723 F.3d 134, 141 (2d Cir. 2013). The Court reached this conclusion even though the two nations had signed an agreement under which the United States would provide Jamaica with wiretap equipment and training and Jamaica would provide the fruits of wiretaps to the United States. Id. at 137. Rather, Lee held that in the idiosyncratic context of information held by a foreign government, Rule 16 applies only if the United States and foreign law enforcement officials undertake a joint investigation, and even then, the United States need only make “good-faith efforts to obtain” the evidence, even if those efforts are ultimately unsuccessful. Id. at 141.

Several district courts have interpreted “possession, custody, or control” within Rule 16 as well. In United States v. Stein, a private corporation, KPMG, entered into a deferred prosecution agreement (“DPA”) with the United States Attorney's Office for the Southern District of New York. 488 F. Supp. 2d at 353. KPMG agreed, among other things, to cooperate extensively with the government, including by “[c]ompletely and truthfully disclosing all information in its possession to the [USAO] and the IRS about which the [USAO] and the IRS may inquire” and by “[a]ssembling, organizing, and providing, in responsive and prompt fashion, and, upon request, expedited fashion, all documents, records, information, and other evidence in KPMG's possession, custody, or control as may be requested by the [USAO] or the IRS.” Id. In a separate prosecution, the government indicted former KPMG executive Jeffrey Stein (and other individuals) for various crimes. Id. at 354. During pretrial proceedings in the individual prosecution, the defendants sought an order under Rule 16 compelling the government to produce documents that were held by KPMG. Id. at 356. Although KPMG was of course not part of “the government,” the court considered whether documents held by KPMG were within the government's “control” given the expansive and immediate access to KPMG's documents granted to the government by the DPA. Id. at 360. The court engaged in a thorough analysis of Rule 16, and concluded that because the DPA gave the USAO “the legal right to obtain the documents in question,” documents held by KPMG were indeed within the “possession, custody, or control” of the government. Id. at 363–64.

The Second Circuit has acknowledged Stein, but has not yet opined on whether its conclusion was correct. See Bradley, 105 F.4th at 35 n.5 (“District courts in this Circuit have held that the government has ‘control’ over a piece of evidence if it has agreed with a third party that it has a right to obtain that evidence. See, e.g., [Stein]. Because no such agreement existed here between the [individuals in question] and the government, we need not examine this line of cases.”); see also id. at 35 (“[W]here the government does not have physical custody, possession, or control over (or an agreement to receive evidence), Rule 16(a)(1)(E) does not require the government to obtain and turn over that piece of evidence.” (emphasis added)).

Meanwhile, other district courts have considered facts similar to Stein and taken the opposite view. See, e.g., United States v. Hwa, No. 18-cr-00538, 2021 WL 11723583, at *55–62 (E.D.N.Y. Sept. 3, 2021), aff'd on other grounds, 161 F.4th 127 (2d Cir. 2025). In Hwa, the court explained that it was “not persuaded by Stein[ ]’s reasoning” and did not agree that “that the Government's legal right to obtain materials in [a company]’s possession pursuant to [a] DPA gives it ‘control’ over those materials for the purposes of Rule 16.” Id. at 57, 60. Among other reasons, Hwa disagreed with Stein’s “premise that the words ‘possession, custody, or control’ should have the same meaning in both the civil and criminal rules of procedure.” Id. at 57.

3. Summary of the Scope of Rule 16

Overall, there are two ways that a material document held by a BOP employee could be encompassed by Rule 16. One is if the BOP employee is a member of “the government” for Rule 16 purposes. The other is if the BOP employee is not a member of “the government,” but the document is nevertheless “within ․ the possession, custody, or control” of an individual or entity who is a member of “the government,” such as the AUSA prosecuting the case.

Taken together, decisions within the Second Circuit that address these issues suggest that the relevant inquiry for determining “the government” for Rule 16 purposes is whether the BOP is part of the “prosecution team,” which could alternatively be phrased as whether the BOP is “jointly involved in the prosecution” or “participated in the investigation” or engaged in a “joint investigation.” Furthermore, the phrase “possession, custody, and control” encompasses: (1) more than merely evidence in the government's physical possession; (2) less than all evidence within the government's constructive possession; (3) generally not evidence held by foreign governments unless a joint investigation occurred (and even then, only a good-faith effort to obtain the materials is required); and (4) arguably information held by a non-government entity which has an agreement with the government to provide any information the USAO requests on demand.

B. Brady v. Maryland and its Progeny

1. Decisions of the United States Supreme Court

The Due Process Clause requires the government to disclose information favorable to the defendant that is material to either guilt or punishment. Brady, 373 U.S. at 87. The suppression of such evidence by the prosecution violates a defendant's due process rights “irrespective of the good faith or bad faith of the prosecution.” Id.

Following Brady, the Supreme Court extended and clarified the prosecution's disclosure obligations in several respects. In Giglio v. United States, the Supreme Court held that the disclosure obligation encompasses evidence that is useful to the defense in impeaching government witnesses, even if the evidence is not inherently exculpatory. See 405 U.S. 150, 154–55 (1972). In United States v. Bagley, the Supreme Court stated that evidence must be disclosed if there is a reasonable probability that it would change the result of the proceeding, regardless of whether the defendant requested the material or not. 473 U.S. 667, 682 (1985). Finally, in Kyles v. Whitley, the Supreme Court held that to comply with Brady, the “individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.” 514 U.S. at 437. Notably, the Supreme Court specifically extended Brady not just to information known to prosecutors and law enforcement officers, but more broadly, to information known to anyone “acting on the government's behalf in the case.” Id.

Though Brady was not decided until the 1960s, it is animated by values deeply rooted in the American criminal justice system. The “prosecution's affirmative duty to disclose evidence favorable to the defendant can trace its origins to early 20th-century strictures against misrepresentation.” Kyles, 514 U.S. at 432; see also Mooney v. Holohan, 294 U.S. 103, 112 (1935) (holding suppression of evidence that is favorable to the accused is inconsistent with the most “rudimentary demands of justice.”). The Brady obligation is meant in no respect to cast doubt on the integrity of prosecutors. The focus and purpose of Brady and its progeny is “avoid[ing] ․ an unfair trial to the accused” “irrespective of the good faith or bad faith of the prosecution.” United States v. Agurs, 427 U.S. 97, 110 & n.17 (1967) (“If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.”).

2. Decisions of the Second Circuit Court of Appeals

The Supreme Court has expanded on many aspects of the Brady obligation, but has never specified how to determine whether a given individual is “acting on the government's behalf in [a] case.” Kyles, 514 U.S. at 437. The Second Circuit, however, has issued several decisions interpreting the scope of this language. These decisions are the natural starting point for this Court's examination of the scope of Kyles.

The Second Circuit first interpreted the language “acting on the government's behalf” in United States v. Avellino, 136 F.3d 249 (2d Cir. 1998). In that case, the Second Circuit held that “knowledge on the part of persons employed by a different office of the government does not in all instances warrant the imputation of knowledge to the prosecutor.” Id. at 255. If Kyles were read to impose “an unlimited duty on a prosecutor to inquire of other offices not working with the prosecutor's office on the case in question,” the Second Circuit reasoned, “that would condemn the prosecution of criminal cases to a state of paralysis.” Id. Consistent with this limitation, the Second Circuit noted that it had previously refused to impute to the AUSAs prosecuting a case knowledge of reports prepared by FBI agents who were uninvolved in the investigation or trial of the defendants in question. Id. at 255–56 (citing United States v. Locascio, 6 F.3d 924 (2d Cir. 1993)). Avellino also noted that the Second Circuit had previously refused to impute the knowledge of an AUSA in Florida to an AUSA in New York when the Florida AUSA had nothing to do with the investigation or prosecution in question. Id. (citing United States v. Quinn, 445 F.2d 940 (2d Cir. 1971)).

The Second Circuit revisited the topic in United States v. Stewart, 433 F.3d 273 (2d Cir. 2006). Stewart squarely addressed the puzzle of determining who counts as “acting on the government's behalf” in a prosecution for Brady purposes. The Court explained that answering this question defies “a broad, categorial approach” and instead requires “examining the specific circumstances of the person alleged to be an ‘arm of the prosecutor,’ ” or, articulated differently, part of the “prosecution team.” Id. at 298; see also United States v. Hunter, 32 F.4th 22, 37 (2d Cir. 2022) (discussing the holding of Stewart). The Second Circuit further explained that whether someone is part of the prosecution team “does not turn on the status of the person ․, such as a law enforcement officer, prosecutor or other government official.” Stewart, 433 F.3d at 298. Rather, “the relevant inquiry is what the person did, not who the person is.” Id.

The facts of Stewart are instructive. At trial, during the government's case in chief, the government called a civilian employee of the United States Secret Service, who served as Laboratory Director and Chief Forensic Scientist, to give an expert opinion regarding notes written in ink on a document. Id. at 295. That individual lied on the stand and was indicted for perjury. Id. at 296. As the District Court considered whether to grant a new trial, a relevant factor was whether the individual who lied had been part of the prosecution team. Id. at 298. After analyzing what the individual “actually did and did not do in connection with the investigation and subsequent judicial proceedings,” the District Court held that the individual “acted as an ordinary expert witness and not as part of the ‘prosecution team.’ ” Id. The Second Circuit affirmed the District Court, noting that the individual had “analyzed a single document, explained the forensic ink tests that had been performed, discussed potential testimony by the defense ink expert, assisted prosecutors to develop cross-examination questions addressing certain technical aspects of ink testing, and participated in a mock examination on ink issues to prepare for trial.” Id. Moreover, his trial testimony was limited to “his credentials, the tests that were performed and the conclusions he drew from them.” Id. In the Second Circuit's view, “[n]one of this suggest[ed] that [he] was in any way involved with the investigation or presentation of the case to the grand jury.” Id. at 298–99. Notable to the Second Circuit was that “[h]e did not interview witnesses or gather facts.” Id. at 299. Also notable was that, with the exception of the document he gave expert opinion testimony about, he did not “review documents or develop prosecutorial strategy. Id.

Most recently, the Second Circuit in United States v. Hunter discussed its jurisprudence regarding the scope of the “prosecution team.” 32 F.4th 22 (2d Cir. 2022). Though the Second Circuit ultimately resolved the appeal on a different ground, the discussion is helpful guidance. In Hunter, after defendants were convicted at trial, a subdivision of the DOJ approached the district court ex parte regarding classified material it possessed that was favorable to the defendants. 32 F.4th at 28, 31; see also United States v. Hunter, No. 13-cr-00521, 2021 WL 8086904, at *1 (S.D.N.Y. 2021). The DOJ subdivision sought and received a protective order barring the USAO and defense counsel from seeing the material. Hunter, 32 F.4th at 28. Neither the USAO nor defense counsel knew about these events or the evidence in question Id. When defendants appealed their convictions on unrelated grounds, the DOJ subdivision informed the Second Circuit ex parte about the existence of the favorable material and the protective order the district court had entered. Id.; see also United States v. Stillwell, 986 F.3d 196, 197 (2d Cir. 2021). In response, the Second Circuit remanded the case for the district court to consider whether the government had violated Brady. Stillwell, 986 F.3d at 198.

On remand, the district court upheld the convictions, ruling that Brady did not apply to the federal employees in question. Hunter, 2021 WL 8086904, at *4–6. The district court noted that neither the law enforcement agents who investigated the defendants nor the AUSAs who prosecuted the case had knowledge or access to the favorable evidence. Id. at *5. The court contrasted the situation with an earlier district court case, United States v. Gupta, which found the Securities and Exchange Commission (“SEC”) to be part of the prosecution team after the SEC and the SDNY collaborated on fact gathering by jointly interviewing 44 witnesses. Id. (citing United States v. Gupta, 848 F. Supp. 2d 491, 493–95 (S.D.N.Y. 2012)). The Hunter district court explained that, unlike in Gupta, “there [was] no evidence of any joint investigation or working relationship between” the employees who had the favorable evidence, on the one hand, and the agents and prosecutors who investigated and prosecuted the defendants, on the other. Id. at *5–6 (“[T]he imputation analysis turns on whether someone was involved with the prosecution team and if so, how extensive and substantial that involvement was. Given that ․ the people who generated or knew about the [evidence] [never] interacted in any way with the prosecution team ․, there is no basis to impute knowledge of the [evidence].”).

On successive appeal, the Second Circuit affirmed the district court's Brady ruling on the ground that the withholding of the evidence did not prejudice the defendants. Hunter, 32 F.4th at 35. However, the Second Circuit expressed “skepticism that the withheld material was not suppressed” within the meaning of Brady. Id. at 37; see also id. at 26. In other words, the Second Circuit had doubts about the conclusion that Brady did not apply to the DOJ component, even though the DOJ component had never worked with the prosecutors and the prosecutors were unaware of the materials. The Second Circuit found it notable—and telling—that the favorable evidence came to light because the DOJ subdivision approached the Court ex parte regarding the existence of the evidence. Id. at 37–38. The point of limiting disclosure obligations to the “prosecution team,” the Second Circuit explained, is that it prevents prosecutors “from needing to search the whole-of-government for possibly material information,” which would be “an unworkable encumbrance on the system of justice.” Id. at 37. The Second Circuit found that concern not present, because someone at the DOJ had already determined that the evidence in question might be relevant. Id. Although whether the employees who held the favorable evidence were part of the prosecution team was ultimately moot in light of the absence of prejudice, the Second Circuit “strongly question[ed] whether—had the withheld information been material—our jurisprudence circumscribing the ‘prosecution team’ would have been adequate to protect [d]efendants’ rights in the circumstances presented here.” Id. at 38. The Second Circuit also noted that it had not yet articulated a clear test for determining membership of the prosecution team, and stated “[o]ne has only to imagine the information in [the DOJ subdivision]’s possession being actually exculpatory rather than cumulatively impeaching to bring this concern into sharp relief.” Id. at 38 n.70.

This Court reads Hunter as a tentative conclusion—in dicta—that the Second Circuit's prior jurisprudence regarding the “prosecution team” is in a limited respect too narrow. The Hunter Court strongly suggests that the DOJ employees who “possessed the undisclosed information[ ] should themselves be considered part of the prosecution team.” Id. at 37. That is true even though the DOJ employees, among other things, did not work with the prosecutors, did not participate in the prosecution's witness interviews or fact-gathering, did not review evidence for the prosecutors, and did not play a role in the development of prosecutorial strategy.

How narrowly or expansively to read Hunter’s dicta is an open question. Read narrowly, Hunter suggests that when federal employees possess unique evidence that is favorable to a criminal defendant and approach the trial court ex parte seeking a protective order to withhold the information, those employees may be part of the prosecution team. Read less narrowly, Hunter suggests that when federal employees possess unique evidence, know that the evidence is favorable to a specific defendant, and know about a specific court case where that defendant is being prosecuted, they may be members of the prosecution team for Brady purposes.

In addition to Second Circuit cases interpreting Kyles, a related set of cases are relevant too: cases decided by the Circuit prior to Kyles that attempted to determine the scope of Brady even before the Supreme Court formally held that Brady applies to those acting on behalf of the prosecutor. These cases remain highly relevant to questions concerning membership on the prosecution team. One such case is United States v. Morell, 524 F.2d 550 (2d Cir. 1975). In Morell, the Second Circuit found that an agent of the Bureau of Narcotics and Dangerous Drugs—the predecessor agency of the DEA—was “an arm of the prosecutor” and that a file the agent had regarding an informant he oversaw fell within Brady even though there was “no indication that anyone in the United States Attorney's Office was aware of the confidential file prior to trial.” Id. at 551–52, 555. The Second Circuit reached this conclusion because the agent “not only supervised [the confidential informant] and participated actively in [the] investigation, but also was present at counsel's table throughout all or most of the trial, indicating that he was intimately involved in the prosecution.” Id. at 555.

3. Decisions of District Courts

Beyond the opinions of the Second Circuit, a number of district courts have grappled with the question of what the “prosecution team” encompasses. See, e.g., Gupta, 848 F. Supp. 2d at 493–95; Gist v. United States, Nos. 19-cv-05095, 16-cr-00656, 2021 WL 3774289, at *17 (S.D.N.Y. Aug. 24, 2021); United States v. Middendorf, No. 18-cr-00036, 2018 WL 3956494, at *4–5 (S.D.N.Y. Aug. 17, 2018); Chandras v. McGinnis, No. 01-cv-02519, 2002 WL 31946711, at *7–10 (E.D.N.Y. Nov. 13, 2002). The Court may look to these opinions for persuasive guidance.

Many district court cases emphasize that the “prosecution team” inquiry should be highly case-specific and tailored to the specific facts of the case. “[C]ourts look to whether the agencies are engaged in joint fact-gathering, even if they are making separate investigatory or charging decisions. Assessing whether a joint investigation occurred is a fact-specific inquiry that is best approached on a case-by-case basis and involves consideration of the degree of cooperation between agencies, such as their coordination in conducting witness interviews and otherwise investigating the facts of the case.” United States v. Martoma, No. 12-cr-00973, 2014 WL 31704, at *5 (S.D.N.Y. Jan. 6, 2014).

The government in the instant case relies on United States v. Middendorf, which explained that “[a] number of factors are relevant” to the analysis, “including whether the other agency: (1) participated in the prosecution's witness interviews, (2) was involved in presenting the case to the grand jury, (3) reviewed documents gathered by or shared documents with the prosecution, (4) played a role in the development of prosecutorial strategy, or (5) accompanied the prosecution to court proceedings.” 2018 WL 3956494, at *4.

The origins of these factors are worth noting. The Middendorf Court derived these factors from United States v. Blaszczak, 308 F. Supp. 3d 736 (S.D.N.Y. 2018). Blaszczak discussed grand jury presentation, witness interviews, document review, and prosecutorial strategy because it understood Stewart—the expert witness case—to suggest in dicta that the case might have come out differently had the expert witness engaged in these activities. See Blaszczak, 308 F. Supp. 3d at 741–42 (“Even a government expert who assisted prosecutors in developing cross-examination questions and participated in mock cross examinations was held not to have acted as an arm of the prosecutor, [Stewart], although dicta suggested that the result might have been otherwise had the expert been involved with the investigation or presentation of the case to the grand jury, interviewed witnesses or gathered facts, or reviewed documents or developed prosecutorial strategy.”). The Middendorf Court likely derived its fifth factor, accompanying the prosecution to court, from Blaszczak’s quotation of Morell—specifically the language regarding a narcotics agent sitting at counsel's table during trial. See Blaszczak, 308 F. Supp. 3d at 741 (quoting Morell, 524 F.2d at 555). The Middendorf Court also noted that a different prior case, Martoma, relied on similar considerations as Blaszczak. See Middendorf, 2018 WL 3956494, at *4 (noting that Martoma relied on “the joint conduct of interviews, exchange of documents, coordination of deposition efforts, and communications regarding the status of fact-gathering to find a joint investigation”).

Though the factors identified by Middendorf can surely be relevant, they are neither dispositive nor exhaustive. Middendorf made clear that it was listing five examples of relevant factual questions, not enumerating the only plausible considerations. See id. (reasoning that “[a] number of factors are relevant” to the analysis “including” the five mentioned). Factual considerations not enumerated by Middendorf but used by other courts to evaluate whether a given government employee is a member of the prosecution team include, for example, whether the employee “supervised [an informant],” Morell, 524 F.2d at 555, or whether the employee engaged in joint fact-gathering besides joint witness interviews, see, e.g., Martoma, 2014 WL 31704, at *5 (urging examination of, among other factors, “coordination in conducting witness interviews and otherwise investigating the facts of the case” (emphasis added)).

The government in the instant case agrees that the Middendorf factors are not exhaustive. See Oral Arg. Tr. 57:04–07 (“I don't think ․ those are ․ the only factors that the Court, obviously, can consider. Even as the [c]ourt in Middendorf said, these are some factors that the Court can consider.” (emphasis added)). However, the government maintains that defendants have not alleged any facts that “go[ ] beyond the Middendorf factors,” and thus they should be the focus of the analysis for purposes of this case. Oral Arg. Tr. 57:08–10 (emphasis added).

The government also relies on Gist v. United States, arguing that the facts of Gist are virtually indistinguishable from the instant facts. Opp'n 9 (“The facts underlying Gist are nearly identical to those here”). However, the Court finds Gist to be of limited persuasive value and to contain important factual differences. In Gist, the defendant argued that “the [g]overnment violated its discovery obligations under [Brady] by failing to produce certain pieces of evidence that were in the possession of the Bureau of Prisons before [the defendant] entered his plea.” 2021 WL 3774289, at *1. The defendant's principal argument appears to have been that “the BOP should be considered an arm of the prosecution because the BOP and the United States Attorney's Office(s) both fall under the broad umbrella of the Department of Justice.” Id. at *17. However, the Second Circuit had rejected this argument long before Gist. See Stewart, 433 F.3d at 298 (“[T]he relevant inquiry is what the person did, not who the person is.”). After quickly disposing of this argument, Gist’s analysis principally consists of listing the Middendorf factors and explaining that “[n]one of those factors are present here.” Gist, 2021 WL 3774289, at *17. The Gist court did not examine any factual considerations beyond the factors mentioned in Middendorf. And the Gist court may not have had any reason to do so. Accordingly, however, Gist is not a “nearly identical” case given that the opinion never had to consider, among other things, the significance of the Program Statement and SIS Manual, whether BOP officials provided supplies for evidence collection to FBI agents, and whether BOP staff cultivated a confidential informant and supplied information gleaned from the informant to the prosecution, as the Court must here. See infra.

4. Summary of the Scope of Brady

Review of Supreme Court and Second Circuit decisions leads to the following overarching principles for determining whether Brady applies to a given federal employee. The touchstone inquiry is whether the employee is “acting on the government's behalf in the case.” Kyles, 514 U.S. at 437. This question cannot be answered with a “broad, categorial approach” and instead requires “examining the specific circumstances” of the person alleged to be part of the prosecution team. Stewart, 433 F.3d at 298. Whether someone is part of the prosecution team “does not turn on the status of the person,” such as the mere fact that they are a law enforcement officer. Id. Rather, “the relevant inquiry is what the person did, not who the person is.” Id. Moreover, the Brady obligation will not extend to remote agencies with no connection to the case. Avellino, 136 F.3d at 255–56.

Past district court decisions illustrate how courts go about examining the specific circumstances. Courts typically conduct a close factual inquiry, looking for evidence that the employee engaged in the specific type of behaviors that a criminal investigator or prosecutor working directly on a case would, including but not limited to: interviewing witnesses and otherwise collecting evidence for use in an anticipated prosecution, coordinating and fact-gathering with other criminal investigators on the case, attending grand jury presentations and court proceedings, and developing prosecutorial strategy. Other considerations that may be relevant, include, but are not limited to, whether the individual's involvement with the investigation was encompassing or limited to a single discrete topic, see Stewart, 433 F.3d at 298 (observing that “[the individual]’s role was limited to matters concerning his area of expertise”), and whether the individual had a working relationship with the prosecutor.

C. Joint Applicability of Rule 16 and Brady

Rule 16 and Brady are distinct authorities. Some of the differences between them are clear and settled, while other differences are grey or uncertain.

Start with the clear differences. For one, Rule 16 applies only to evidence that the defendant requests, see United States v. Monsanto Lopez, 798 F. App'x 688, 690 (2d Cir. 2020) (summary order), while Brady applies to evidence regardless of whether the defendant asks for it, Howard v. City of Rochester, 758 F. Supp. 3d 109, 114 (W.D.N.Y. 2024). Moreover, Brady applies only to “favorable” evidence, United States v. Laurent, 33 F.4th 63, 94 (2d Cir. 2022); United States v. Certified Env't Servs., Inc., 753 F.3d 72, 91 (2d Cir. 2014), whereas Rule 16 applies more broadly to evidence “material to preparing the defense,” Fed. R. Crim. P. 16(E)(i).

A less settled question is the scope of each authority based on who has the evidence and/or where the evidence is stored. Rule 16 applies to evidence “within the government's possession, custody, or control.” Fed. R. Crim. P. 16(E). Meanwhile, Brady applies to evidence known to the government and “others acting on the government's behalf in the case.” Kyles, 514 U.S. at 437. Each authority uses language that the other lacks. Specifically, Rule 16 explicitly applies to evidence within the “possession, custody, or control” of the government, while Kyles does not use that phrase. On the other hand, Rule 16 applies only to “the government” while Brady applies both to the government and “others acting on the government's behalf in the case.” Even more fundamentally, at least one court has questioned whether the term “the government”—which both authorities use—means the same thing in both instances. See Ghailani, 687 F. Supp. 2d at 371–72.

The Court need not resolve the precise differences in scope between Rule 16 and Brady to resolve the present motion. In the instant case, it suffices to note two basic principles. First, both Rule 16 and Brady apply to members of the “prosecution team” as that term has been explained by the Second Circuit in the Brady context, elaborated on by district courts likewise in the Brady context, and applied by district courts in the Rule 16 context as well. Second, even though the Court assumes that the individuals who constitute the “prosecution team” are the same for each authority, Rule 16 extends not just to information those individuals have possession of, but also information within their “custody” or “control.”

II. Need for Evidentiary Hearing

The Court briefly addresses whether an evidentiary hearing is necessary. Determining whether BOP and SIS employees in this case are members of the prosecution team requires looking at the facts and context of their actions. For this reason, defendants have requested, in the alternative to their motion being granted, that the Court hold an evidentiary hearing to determine precisely what actions were and were not taken by BOP staff.

The Court finds that an evidentiary hearing is unnecessary. The government maintains that even on the facts alleged by defendants, no BOP employee is a member of the prosecution team. See Opp'n 10 (“[D]efendants have not presented any evidence suggesting that prison authorities are part of the prosecution team in this case ․”). Moreover, the government takes the position that no “evidentiary hearing is needed here as there is actually no factual dispute.” Tr. of June 11, 2025 Status Conf. (“June 11 Tr.”) at 8:14–15, ECF No. 202; see also Opp'n 10 (“[N]o evidentiary hearing is needed for the Court to determine whether the BOP is a part of the prosecution team [because] no factual dispute exists ․”); June 11 Tr. 9:3–14 (“[I]t's not disputed[,] the SIS team's participation here, ․ which is that they took photos, collected the weapons and other evidence that was ultimately turned over to the FBI ․ [T]here would be no further fact-finding required since the Court has the facts before it in terms of what SIS did.”); Oral Arg. Tr. 62:25–63:02 (“[W]ith respect to [an] evidentiary hearing, I don't think we've actually raised any factual disputes for the Court to resolve.”). The government likewise does not dispute the factual contents of the Program Statement or SIS Manual, but instead maintains that “these documents do not show that the BOP is an arm of the prosecutor.” Resp. Re. Docs. 3. The Court thus understands the government to take the position that, except where specifically noted by the government, the factual representations made by defense counsel are not disputed. Absent a contested issue of material fact, an evidentiary hearing is not necessary. See United States v. Grant, No. 06-cr-00732, 2008 WL 111169, at *1 (E.D.N.Y. Jan. 8, 2008) (citing United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992)).

Accordingly, defendants’ request for an evidentiary hearing is denied.

III. Prosecution Team

A. Legal Framework

The Court now examines the instant facts to determine whether any BOP staff are members of the prosecution team for purposes of Rule 16 and Brady. As stated previously, answering this question, at least for Brady purposes, defies “a broad, categorial approach” and instead requires the Court to “examin[e] the specific circumstances of the person” who may or may not be a member of the prosecution team. Stewart, 433 F.3d at 298; Hunter, 32 F.4th at 35. The “relevant inquiry is what the person did, not who the person is.” Stewart, 433 F.3d at 298 (emphasis omitted).

Based on a review of the caselaw, including decisions such as Middendorf, the Court has identified the following non-exhaustive list of considerations relevant to this determination, which can aid in evaluating the totality of the circumstances: (1) whether the individual engaged in fact-gathering, such as interviewing witnesses, collecting physical evidence, or developing an informant; (2) whether the individual was acting in whole or in part for purposes of advancing the criminal prosecution, or was instead acting for distinct purposes, such as civil law enforcement; (3) whether the individual acted in collaboration with prosecutors and/or police, or merely in parallel with them; (4) whether the individual's work was confined to a single topic or related to broad portions or the investigation and/or prosecution generally; (5) whether the individual reviewed evidence with or for the prosecutors; (6) whether the individual played a role in the development of prosecutorial strategy; and (7) whether the individual participated in courthouse proceedings, such as presenting the case to the grand jury or accompanying the prosecution to hearings.

B. Context for Actions of BOP Officials

As a starting point, the Court finds it significant that BOP staff acted in accordance with two binding policy documents that, in no uncertain terms, explain why BOP employees took the actions that they did. These documents significantly differentiate the instant facts from most other factual scenarios examined by courts within the Second Circuit. Courts have been confronted with scenarios where an outside investigatory agency (such as the SEC or CFTC) collected facts and the parties subsequently disputed whether the agency was part of the prosecution team. See, e.g., Gupta, 848 F. Supp. 2d at 493 (SEC); United States v. Alexandre, No. 22-cr-00326, 2023 WL 416405, at *4 (S.D.N.Y. Jan. 26, 2023) (Commodity Futures Trading Commission). However, the Court has not identified any cases within the Second Circuit where documentary evidence came to light specifically giving the rationale for each action taken by the agency. This type of evidence gives uniquely helpful insight. Though the reason why an employee took the actions they did is of course not dispositive of whether they are a member of the prosecution team, the consideration is relevant.

In the instant case, the Program Statement and the SIS Manual make unambiguous that many actions taken by BOP-SIS staff at issue in the case were taken for the dual purposes of (1) facilitating a criminal prosecution brought by the U.S. Attorney's Office, and (2) advancing internal penological goals.

First, in the aftermath of a crime, BOP staff engage in extensive investigatory and crime scene management actions. Contrary to the government's argument, Opp'n 7, these actions are not taken solely for internal penological reasons (such as inmate discipline), but rather in substantial part for the purpose of assisting with criminal prosecutions brought by the U.S. Attorney. See SIS Manual 5 (explaining that “[a] primary role of the SIS is to assist in investigations of criminal acts” and charging the SIS with being an “assistant to, Federal, state, and local law enforcement officials in preparing cases for possible prosecution”); see also SIS Manual 15 (“SIS investigations and investigative reports are prepared not only to satisfy administrative DHO hearing requirements, but to be appropriate for use in prosecution by an AUSA or District Attorney”). These directives provide critical context for the specific actions taken by BOP staff. Specifically, they make clear that investigatory actions taken by BOP staff—such as interviewing witnesses and collecting evidence—were taken with the intent of facilitating a criminal prosecution. It is particularly notable that the government's most recent filings have all but abandoned its initial position and now concede that “SIS staff ․ serve a dual purpose” of assisting with federal prosecutions and conducting investigations for internal administrative hearings. See Resp. Re. Docs. 4.

Second, the Court finds it notable that the policy documents contemplate that many crime scene management and investigatory activities “will be performed on a joint or team basis” between BOP staff and the FBI (or other responding law enforcement agency). Program Statement 1. This undermines the government's argument that the FBI's investigatory actions and the BOP's investigatory actions were taken entirely in parallel. The government has characterized the crime scene on July 17, 2024, as a scene where BOP investigators walked around collecting evidence for one set of purposes (e.g. penological recordkeeping, updating security procedures, etc.) and FBI agents walked around collecting evidence for a distinct purpose (i.e. criminal prosecution). In fact, the Program Statement strongly suggests that BOP staff and FBI staff were performing investigatory activities “on a joint or team basis.”

C. Specific Actions Taken by BOP Officials

The Court now examines the specific actions of BOP employees. First, in the aftermath of the stabbing, one or more BOP employees contacted the FBI. See Reply 3. In isolation, this action in no way suggests that the BOP is part of the prosecution team. Calling the police is an action that virtually anyone would plausibly take in the aftermath of a stabbing. However, the contents of the specific conversation between BOP staff and the FBI indicate that BOP staff acted as part of the prosecution team. The Program Statement directs that the law enforcement agency with jurisdiction (here, the FBI) was to be “contacted immediately” and “[d]uring that contact, it is determined how far the Special Investigative Supervisor (SIS) may proceed before arrival of the agent or deputy involved.” Program Statement 1. Moreover, the Manual directs that the SIS was required to “have a good understanding of the expectations” of the FBI as well as “the authority to begin processing the crime scene.” SIS Manual 5; see also SIS Manual 3 (“For criminal investigations, the SIS contacts the appropriate agency having jurisdiction for guidance.”). The record reflects that the FBI did not arrive at MDC until several hours after the stabbing. If the BOP and SIS employees began preserving the crime scene and collecting evidence, they must have done so with express authority from the FBI and specific guidance on “how far the [SIS] may proceed” before the FBI's arrival. On the other hand, if the BOP employees waited and took no investigatory actions until the FBI arrived, the BOP's non-action was specifically at the direction of the FBI. Either way, this dynamic shows that BOP staff were working in coordination with the FBI, not as an entirely independent operation.⁸ The government, for its part, does not dispute or otherwise directly respond to the factual assertion that BOP staff contacted the FBI before taking any investigatory or other crime scene preservation actions.

In addition to contacting the FBI to get direction on how SIS may proceed, BOP staff took actions in order to manage the crime scene and collect physical evidence. According to defendants, the BOP Evidence Recovery Team and the FBI worked together to secure the scene of the crime. Bazemore Supp. 7. BOP staff collected the purported murder weapon and virtually all of the physical evidence present, including bloody clothing and two sharpened pieces of metal. BOP staff also marked the crime scene by placing evidence flags wherever anything of evidentiary value was found and recorded the crime scene by taking photographs. Either that day, or at some point after, BOP staff also created crime scene diagrams. BOP's fact-gathering actions weigh in favor of a finding that BOP staff acted as part of the prosecution team. See United States v. Martoma, 990 F. Supp. 2d 458, 460–61 (S.D.N.Y. 2013) (examining whether “the agencies are engaged in joint fact-gathering”); Stewart, 433 F.3d at 298 (noting that the fact that an individual “did not interview witnesses or gather facts” cut against him being a member of the prosecution team).

The government argues that the fact-gathering activities BOP officials engaged in squarely fit the BOP's non-prosecutorial aims. See, e.g. Opp'n 5 (arguing that the BOP uses collected evidence to “create reports that discuss weaknesses in institution protocols, policy and procedures, among other things”). As discussed, supra Section II.C, the policy documents strongly suggest that the BOP's actions generally served dual aims, both internal and prosecutorial. See Resp. Re. Docs. 4 (conceding that “SIS staff ․ serve a dual purpose”). Moreover, in the context of the BOP's crime scene management and evidence collection, the policy documents contain further support for the proposition that the BOP's activities were meant to further prosecutorial goals. See Program Statement 1 (explaining that the “purpose” of the Crime Scene Management and Evidence Control program is to “[s]tandardize identification, collection, documentation, and storage of evidence for use by institutional investigators and the U.S. Attorney's Office” (emphasis added)); see also Program Statement 3 (explaining that crime scenes must be “thoroughly and completely documented” to ensure that they can be “re-create[d] ․ at a future date for court proceedings”). Overall, the Court is not persuaded that the acts of BOP officials here all coincidentally happened to fall into the “non-prosecutorial” bucket of duties. Nor does the Court find it plausible that BOP officials took a variety of actions that typically have a dual purpose, but on the day in question, were done for only a non-prosecutorial purpose.

Next, as part of the investigation, BOP officials also facilitated the FBI's interviews of defendants Aziz, Santiago, and Bazemore. The BOP provided the location for the interviews, escorted the defendants to the interview rooms, and at least in the case of Bazemore, specifically directed the suspect where in the room he should sit during his interview. See United States v. Bin Laden, 397 F.Supp.2d 465, 484 (2005) (finding U.S. Marshals Witness Protection Service employees (“WitSec”) to be members of the prosecution team because they acted as “necessary intermediaries for the communication” between the government and witnesses and offered logistical support for interviews, such as installing and operating video-teleconference equipment), aff'd on other grounds sub nom. In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 93 (2d Cir. 2008).

The government argues that the Court's attention should focus on the fact that the BOP and the FBI did not engage in any “joint interviews.” For example, the record does not suggest that any SIS investigator sat through an interrogation of a defendant and traded off asking questions with an FBI investigator. See Gupta, 848 F. Supp. 2d at 492–93 (noting that a USAO attorney and SEC attorney held joint witness interviews where they each asked questions). However, in the Court's view, the actions that BOP officials did take still weigh in favor of concluding that BOP officials were aligned with the prosecution team.

Indeed, the BOP's assistance went beyond mere logistical support for the interviews. Rather, BOP officials helped prepare the FBI for the interrogations and assisted with the substance of the interrogations. Prior to the interrogations, BOP officials either showed the BOP video of the incident to the FBI, or BOP officials who had viewed the video briefed the FBI. BOP officials then provided the FBI with a portion of the video to use during the witness interviews.

Furthermore, the BOP provided the FBI with Styrofoam cups to use in order to surreptitiously collect each suspect's DNA. The government minimizes the importance of the BOP providing the FBI with evidence cups. Oral Arg. Tr. 53:14–16. However, while Styrofoam cups are of course inexpensive physical objects, it is not the object that raises the specter of joint investigation, but instead the act of providing the FBI with supplies to facilitate evidence collection for a future criminal prosecution.

These actions collectively demonstrate that BOP officials were actively working in support of the FBI's criminal investigation, not merely idly watching from the sidelines.

Moreover, it cannot be credibly argued that the BOP officials were not participating in the investigation when they developed a confidential informant. Specifically, at some point after the stabbing, as the investigation proceeded, BOP officials developed a confidential informant to provide them with information, interviewed the confidential informant, and supplied this interview to the prosecution. Bazemore Supp. 4. In Morell, the Second Circuit held that the fact that a narcotics agent “supervised [an informant]” and otherwise “participated actively in [the] investigation” were indicators of the agent's involvement in the prosecution. 524 F.2d at 555. More broadly, the BOP's actions developing an informant resemble core police investigatory work. When the Supreme Court held that the “individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police,” it is reasonable to imagine that the word “police” encompasses government officials who develop a confidential informant, derive information from that informant, and share the information with prosecutors. Kyles, 514 U.S. at 437–38.⁹

In addition to assisting the FBI with interrogation of the defendants, BOP officials also conducted mass witness interviews of the 87 inmates who potentially observed the July 17, 2024, stabbing and provided these forms to the prosecution. The fact that BOP officials performed these interviews and shared the forms memorializing them with the government made it so that the FBI did not need to engage in each of these interviews themselves. The forms may also have given the FBI insight into which witnesses potentially knew further relevant information. The government explains that these mass interviews were brief and cursory. And the government is likely correct that such interviews are routine, and occur in the aftermath of many types of prison incidents, not just serious crimes. However, to the extent these interviews did assist with the criminal investigation, though only minimally, it is still conduct that BOP officials took as part of the investigation.¹⁰

The government also argues that it is significant that no BOP official contributed to prosecutorial strategy. The Court does not agree. At oral argument, the government emphasized that no BOP official was involved in charging decisions, see Oral Arg. Tr. 58:22–59:14, and that the prosecutorial strategy element of Middendorf distinguishes individuals who were merely “collecting evidence” from those who are “participating in a criminal prosecution,” Oral Arg. Tr. 59:15–18. This argument, however, conflates “the prosecution team” with “the prosecutors.” While participation in prosecutorial strategy can weigh in favor of membership on the prosecution team, the absence of participation in prosecutorial strategy is a neutral fact. For example, Kyles states that Brady obligations extend to the police, and it cannot be credibly argued that exculpatory material held by the police ceases to be covered by Brady if the police play no role in charging decisions or other prosecutorial strategy in a given case. Brady applies to the police not because of the role that police officers may play, in certain cases, assisting government lawyers with prosecutorial strategy—rather, Brady applies to the police in light of their role investigating crimes for purposes of prosecution. See Meregildo, 920 F. Supp. 2d at 441 (noting that “[a] prosecution team may have many members with different responsibilities” including “individuals who are not strategic decision-makers” but who take actions “in order to further the [g]overnment's investigation”).

Finally, the Court gives no weight to BOP actions that may or may not occur in the future. Some judicial decisions reviewed by the Court occurred in a different procedural posture than the one faced here. Specifically, those decisions evaluated the scope of the prosecution team in a post-trial posture, where the court could retroactively examine the full criminal investigation and trial. See, e.g., Morell, 524 F.2d at 551; Stewart, 433 F.3d at 279; United States v. Bendelstein, No. 18-cr-00309, 2023 WL 2457842, at *1 (E.D.N.Y. Mar. 10, 2023); United States v. Avenatti, No. 19-cr-00374, 2022 WL 457315, at *1 (S.D.N.Y. Feb. 15, 2022). In those cases, the court considered actions taken by individuals up to and during trial. By contrast, the instant motion is a pre-trial discovery dispute, and thus the Court does not have the benefit of hindsight. The Court cannot know what actions the BOP will take between now and the conclusion of the prosecution, such as whether any BOP official will join the government at counsel table or assist in preparing witness examinations. The Court notes, however, that the BOP's policy documents suggest that, as trial approaches, BOP officials may take further actions to aid the prosecution. The SIS Manual explains that “[t]hroughout preparation for prosecution, the SIS will be asked to provide detailed support to the AUSA assigned to the case.” SIS Manual 15. The Manual states that such responsibilities “frequently” include: “[p]roviding policy research on institution rules and procedures,” “[c]oordinating pretrial conferences between the AUSA and staff witnesses,” “[c]oordinating research on backgrounds and credibility of inmates called as defense witnesses,” and “[p]roviding detailed advice and rebuttal information to the AUSA throughout the trial.” SIS Manual 15. To be sure, the Court has no evidence that any such actions have occurred in this case so far and cannot know with certainty whether they will occur in the future. The Court therefore considers this potential conduct irrelevant to whether BOP staff are part of the prosecution team.¹¹

D. Provision of Evidence

First, the Court finds it significant that the BOP views itself as potentially subject to Brady. The SIS Manual explains that, in general, “[t]he SIS must ensure, without exception, that the AUSA has knowledge of all evidence, statements, memos, or interviews collected or conducted.” SIS Manual 15. Even more telling, the SIS Manual states that “[t]he AUSA must be advised of any evidence or statement that would suggest the suspect(s) did not commit the offense, even if the information is clearly discounted by all other evidence.” SIS Manual 15 (emphasis in original). This language unambiguously reflects the strictures of Brady, particularly the admonition that SIS employees disclose every piece of potentially exculpatory evidence, even if the evidence is contradicted by all other evidence in the case.

The Supreme Court has recognized that prosecutors may face hurdles ensuring they have knowledge of Brady material held by others, but the Court has also noted that formal policies are an effective solution. See Kyles, 514 U.S. at 438 (“[N]o one doubts that police investigators sometimes fail to inform a prosecutor of all they know. But neither is there any serious doubt that procedures and regulations can be established to carry the prosecutor's burden and to insure communication of all relevant information on each case to every lawyer who deals with it.” (quoting Giglio, 405 U.S. at 154)). The BOP policy documents appear to contain exactly such “procedures and regulations” to “insure communication of all relevant information on each case” to the AUSA.

Overall, the categorical and compulsory language of the SIS Manual reflects that BOP policymakers are aware of Brady and believe that they need to comply with it. The Court finds that this fact weighs in favor of finding that the SIS is part of the prosecution team. Cf. Hunter, 32 F.4th at 28 (observing that limiting disclosure obligations to the prosecution team prudently prevents prosecutors from needing to search the “whole-of-government” for Brady material, but that this concern is tempered where an agency on its own recognizes that it has evidence potentially relevant to a specific criminal prosecution).

Second, in addition to potential Brady material, the BOP collected and provided extensive further evidence to the FBI and the USAO in this case. BOP officials provided evidence both critical in importance and large in volume, including physical evidence (such as weapons and bloody clothes), surveillance video, witness statements, and more. It is notable, for example, that of the 1,292 pages of PDF materials that the USAO turned over to defense counsel as part of discovery, 931 pages were generated by the BOP (72%) while only 71 pages are materials from NYPD (5%), 28 pages are materials from the FBI (2%).

Though the provision of evidence is undisputed, the government argues that it has no bearing on whether BOP officials are members of the prosecution team because the BOP did not voluntarily give this information to the prosecution, but rather did so pursuant to a grand jury subpoena. See Opp'n 8. The government disputes that BOP officials passed evidence to the prosecution as part of their work investigating a crime. Rather, the government argues that the BOP conducted its own investigation solely for penological purposes, and the government—seeing that these materials would be helpful for its own prosecutorial purposes—subpoenaed the BOP to get materials it wanted. See Opp'n 9. The evidence does not support the government's framing.

For one, the Program Statement and the SIS Manual make it unambiguous that SIS staff engage in their work for the dual purposes of facilitating criminal prosecutions and facilitating internal penological interests. The government's briefing since the documents came to light has conceded as much. See Resp. Re. Docs. 4 (conceding that “SIS staff ․ serve a dual purpose”). Moreover, the documents make clear that SIS investigators understand that each piece of evidence they collect must automatically be made available to the AUSA for use in a criminal prosecution. See SIS Manual 15 (“The SIS must ensure, without exception, that the AUSA has knowledge of all evidence, statements, memos, or interviews collected or conducted.” (emphasis in original)). Accordingly, it strains credulity to believe that SIS investigators were collecting evidence solely for non-prosecutorial reasons and with no awareness that they would subsequently forward the evidence to the government for use in a criminal prosecution. Rather, it would have been foreseeable from the first investigatory step that “all evidence” collected “without exception” would need to be made available to the USAO for prosecutorial purposes. That is especially true with respect to potentially exculpatory material, which the SIS Manual includes an extra sentence to emphasize, but it is ultimately true with respect to “all evidence ․ collected.” SIS Manual 15 (emphasis omitted).

Moreover, the Court is skeptical that the government's use of a grand jury subpoena, rather than a voluntary request, created any material difference in what evidence was turned over by the BOP. At oral argument, the Court asked the government why it used a grand jury subpoena rather than just asking the BOP to provide evidence voluntarily. The government's answer left much to be desired. First, the government said:

[T]he U.S. Attorney's Office has found that it is best practices, in part, because it documents clearly what we're asking for and to allow us to go back to the BOP and say, we have asked for Items 1, 2, 3, 4; we have received 1 but not 2; we received 3 but not 4. Do you guys have that? What's going on?

Oral Arg. Tr. 44:06–12. The Court finds this rationale unpersuasive. For purposes of tracking items on a numbered list, there is no material difference between a list of requested items and a list of requested items executed as a subpoena. The difference between the documents is a legal one, not a matter of superior itemization.

Next, the government suggested that a subpoena may have been necessary to procure the information:

I will say that I know, you know, the defense counsel has represented that the BOP will turn over whatever we want whenever we want it. I don't think that's actually the case. There is a process. The subpoenas are processed through BOP counsel, counsel says they're approved. Then they can go and obtain those materials and produce them to the U.S. Attorney's Office.

Oral Arg. Tr. 44:13–19.

This explanation is puzzling given that the SIS Manual and Program Statement strongly imply that the SIS is mandated to proactively share all relevant information with the USAO. See SIS Manual 15 (“The SIS must ensure, without exception, that the AUSA has knowledge of all evidence, statements, memos, or interviews collected or conducted.” (emphasis in original)). Moreover, the SIS Manual states that “[d]uring the initial referral, the SIS is authorized to disclose all evidence and information, including recorded telephone conversations, to the investigative agency.” SIS Manual 10 (emphasis added). Many other passages within the SIS Manual and Program Statement similarly suggest a free flow of information from the BOP to the USAO. See, e.g., Program Statement 3 (explaining that a BOP official will prepare a crime scene diagram or sketch, which “[o]rdinarily” will be “submitted to the [FBI] or other investigative agency for preparing final sketches for trial use”).

Taking stock of the BOP's policies and actions, the Court finds that the fact that information was turned over to the USAO “consistent with a grand jury subpoena request” is, in the factual circumstances presented here, not materially different from BOP officials turning over information in absence of a subpoena. The government has offered no compelling reason to doubt that, had it never secured a grand jury subpoena, the exact same evidence would have been turned over by the BOP upon a request by the USAO via written note, email, letter, telephone, or similar means. The government gives the Court no reason to doubt that SIS would have complied with its official policies and provided the AUSA “all evidence” in its possession. The government's assertion that a grand jury subpoena is “best practice” to keep track of evidence does not alter this analysis.

Nevertheless, the Court recognizes that it is impossible to know with complete certainty what actions the BOP would have taken in the counterfactual world where the USAO never employed a grand jury subpoena. Accordingly, the Court attributes reduced weight to the fact, in and of itself, that the BOP provided the USAO with the evidence that it requested.

E. Overall Assessment

In light of the range of actions performed by the BOP, the Court finds that certain BOP officials are part of the prosecution team in this case. BOP officials undertook a variety of affirmative acts meant to assist the criminal investigation and prosecution of the defendants. This included preserving the crime scene, collecting virtually all of the physical evidence, helping to prep FBI agents for interrogations, and even developing a confidential informant. Virtually every case to consider the issue has agreed that gathering facts to be used in a prosecution is an indicator of membership on the prosecution team. See Gupta, 848 F. Supp. 2d at 493; Stewart, 433 F.3d at 273 (finding it notable that the individual in question “did not interview witnesses or gather facts”). The BOP's actions also, notably, were governed by policy documents that emphasize that a fundamental purpose of SIS actions is to assist federal prosecutors. These actions by BOP staff, in importance, number, and scope, appropriately situate certain BOP officials on the prosecution team.

This finding does not apply to the entire Bureau of Prisons or even to the entirety of the staff at MDC. Rather, the Court holds that BOP and BOP-SIS employees shall be considered part of the prosecution team only if they actively participated in the investigation of the July 17, 2024, stabbing or otherwise assisted the FBI or USAO by taking investigatory actions related to the incident or ensuing prosecution.

The Court notes that it does not make this finding lightly. The law defining the “prosecution team” contains gray area, and the Court has endeavored to apply the weight of precedent to the facts of this case. The Court heeds the caution mandated by Avellino and has declined to take a monolithic view of the government. This is not a case where the Court identifies a far-flung government employee or agency and imputes their knowledge onto prosecutors. Nor is the Court making a general, untethered finding that BOP officials are always part of the prosecution team. Nor, moreover, is the Court engaging in a speculative exercise, deeming the BOP-SIS part of the prosecution team simply because it has a general relationship with USAO and may have some relevant information. Rather, the Court arrives at its conclusion because the evidence shows that specific BOP-SIS employees were a critical part of a specific criminal investigation. Considering the facts of this case, and the fundamental purposes of Rule 16 (no trial surprises) and Brady (fairness), the Court cannot ignore the BOP's real involvement in this case.

F. Difficulty of Compliance

The government has asserted that extending Rule 16 and Brady to the relevant BOP officials will be an enormous burden for the USAO and will cause this prosecution to grind to a halt. Opp'n 10. The Court does not agree. The Court has not imposed an unlimited duty on the prosecution, but rather one limited to specific individuals involved in the investigation of the case. Extending disclosure obligations in this circumscribed manner will not be unduly onerous for the USAO. This is especially true in light of SIS policy that it will already “ensure, without exception, that the AUSA has knowledge of all evidence, statements, memos, or interviews collected or conducted.” SIS Manual 15.

Moreover, prosecutors will not need to plumb the depths of every conceivable BOP file and database. Brady does not require the prosecution to divulge every possible shred of evidence that could conceivably benefit the defendant. Robinson v. Arnone, No. 12-cv-01323, 2016 WL 223693, at *5 (D. Conn. Jan. 19, 2016). The prosecution's Rule 16 obligation, meanwhile, will be limited only to material evidence that the defendants request with specificity. See United States v. Scully, 108 F. Supp. 3d 59, 123 (E.D.N.Y. 2015) (“Rule 16 does not entitle a criminal defendant to a broad and blind fishing expedition among items possessed by the Government on the chance that something impeaching might turn up.”).

The Court also notes that, throughout the entire Ninth Circuit, documents held by BOP officials are considered within the “possession, custody, or control” of prosecutors, regardless of whether any written agreement exists between the entities or whether BOP officials had any involvement in the investigation, yet there is no indication that this holding has eviscerated the ability of U.S. Attorney Offices within the Ninth Circuit to prosecute crimes that occur in federal prisons. See United States v. Santiago, 46 F.3d 885, 893–94 (9th Cir. 1995).

Last, the Court reiterates that the Supreme Court has recognized that compliance with disclosure obligations is not necessarily an easy matter for prosecutors. With regard to Brady evidence at least, the Court recognized that by placing a burden on the government to produce exculpatory materials without request, “naturally, ․ a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence.” Kyles, 514 U.S. at 439. This natural consequence was foreseen by the Court, and nevertheless, the Court saw it fit to impose a mandatory disclosure obligation.

IV. Possession, Custody, or Control

Had the Court determined that SIS employees were not part of the prosecution team, it would be necessary to address the further question of whether any materials held by the BOP were nevertheless within the “possession, custody, or control” of the government. However, because the relevant SIS employees are part of the prosecution team for purposes of Brady and Rule 16, it is not necessary to reach the further question regarding “possession, custody, and control” in this case.

CONCLUSION

For the foregoing reasons, defendants’ motion to designate is GRANTED in part and DENIED in part. Any employee of the Bureau of Prisons or BOP Special Investigation Service who actively participated in the investigation of the July 17, 2024, stabbing or otherwise assisted the FBI or USAO by taking actions related to the incident or the ensuing prosecution are held to be a member of the prosecution team for purposes of Rule 16 and Brady. Neither the Bureau of Prisons as an institution nor any other BOP employee is held to be a member of the prosecution team. These findings are subject to revision should evidence come to light that a BOP employee not already held to be part of the prosecution team took actions that would constitute a basis to find the employee part of the prosecution team.

Defendants’ request that the Court enter an order directing the USAO to review materials in the possession of the BOP and MDC, Mot. 1, is likewise denied. A Rule 5(f) Order has already been entered in this case, see Rule 5(f) Order, ECF No. 12, and the Court trusts that the AUSAs in this case will fully comply with their disclosure obligations, as construed by the Court.

Within 30 days of this order, the parties shall meet and confer and file a joint letter regarding next steps for discovery. The letter should address each party's position as to what extent, if any, the Motion to Produce, ECF No. 118, still requires adjudication by the Court.

The Court is issuing the instant Order under seal because it contains quotations from internal BOP documents, but the Court will subsequently issue a public version. If the government seeks to have any information redacted from the public version, within 14 days of this Order the government shall file a letter with the Court under seal specifying which passages they seek to have redacted and the legal basis for making such redactions. General assertions of sensitivity are unlikely to be a persuasive basis for redaction.

SO ORDERED.

FOOTNOTES

1.   Throughout this Order, page numbers for docket filings generally refer to the page numbers assigned in ECF filing headers. Furthermore, throughout this Order, the Court omits all internal quotation marks, footnotes, and citations, and adopts all alterations, unless otherwise indicated.

2.   Hereinafter, defendants’ Motion for Determination that BOP is Part of Prosecution Team for Rule 16 and Brady Purposes, ECF No. 115, is referred to as the “Motion”; the government's Response in Opposition, ECF No. 135, is referred to as the “Opposition”; defendants’ Reply to the Government's Response, ECF No. 141, is referred to as the “Reply”; Santiago's Supplement to the Motion for Determination, ECF No. 177, is referred to as the “Santiago Supplement”; Bazemore's Supplement to the Motion for Determination, ECF No. 182, is referred to as the “Bazemore Supplement”; the government's Opposition to the Santiago and Bazemore Supplements, ECF No. 191, is referred to as the “Supplemental Opposition”; Santiago's Supplemental Reply in Support of the Motion, ECF No. 196, is referred to as the “Supplemental Reply”; Santiago's Sealed Submission of Sealed Materials, ECF No. 200, is referred to as the “Letter Regarding Documents”; and the government's Response to the Letter Regarding Documents, ECF No. 204, is referred to as the “Response Regarding Documents.”

3.   The Court notes that other evidence in the record suggests that the FBI arrived at the MDC hours after the stabbing. Reply 3. Presumably, by the time the FBI arrived, BOP staff had already secured the crime scene from other inmates present in the housing unit. It is thus not clear what actions to “secure” the crime scene were performed by the BOP prior to the FBI's arrival and what actions were instead performed jointly “with” the FBI. Bazemore Supp. 7.

4.   Defendants speculate, but do not know, whether BOP staff also provided the FBI and NYPD with audiovisual equipment to show the video to the suspects during the interviews. Bazemore Supp. 3. At oral argument, the government stated that “the video was taken on a screenshot by the FBI [Task Force Officer]’s phone of ․ the surveillance footage and then shown to Mr. Bazemore.” Tr. of Jan. 14, 2026 Oral Arg. (“Oral Arg. Tr.”) at 52:23–53:02, ECF No. 214. The government has not elaborated on the logistics that resulted in the FBI Task Force Officer obtaining the “screenshot” of the BOP surveillance footage.

5.   DHOs are impartial quasi-judicial officers who conduct hearings and impose discipline for inmate rule violations. See 28 C.F.R. § 541.8.

6.   The Court notes that while Aziz never moved to join Santiago's Motion for Determination, Aziz's own Motion to Produce contains parallel arguments regarding Brady and Rule 16. See Mem. in Supp. of Mot. to Produce 4–9, ECF No. 119.

7.   Although the Motion for Determination largely does not address the materiality of any specific information held by the BOP, the motion does preview some potential bases for relevance. The Motion posits that the evidence in the case “supports a claim that Cordero and ․ Carter[ ] were commissioned by a third inmate, ․ Nunez, to kill Mr. Santiago, and that Santiago defended himself.” Mot. 2. Defendants allege that “information has come to light that Nunez paid Cordero a half sheet of paper containing synthetic marijuana to kill Santiago.” Mot. 2. Furthermore, defendants assert that Nunez was involved in another stabbing of a different inmate at MDC six months prior to the events in question, and that evidence of that stabbing may be exculpatory by supporting a claim of self-defense. Mot. 4. Evidence concerning the earlier stabbing was filed under seal in another court proceeding, including video of the incident and Nunez's confession to the stabbing. Mot. 4. Defendants state that, other than an incident report, the government has not provided these materials to the defense and has no plans to do so. Mot. 4.

8.   The record does not contain evidence of what precisely was said between BOP officials and FBI officials during this initial contact. It is of course possible that BOP officials in fact disregarded official policy and began investigatory steps without coordinating with the FBI. However, the government has raised no evidence that the BOP disregarded policy directives, and in absence of such evidence, the Court will assume that BOP staff followed official policy.

9.   The government does not dispute that the BOP developed an informant, however, the record does not indicate whether SIS developed the confidential informant on its own initiative or at the direction of the FBI or USAO. Either way, this would seem to cut in favor of SIS being part of the prosecution team. If SIS developed the informant at the direction of the FBI or USAO, they were surely acting on behalf of the prosecution team. On the other hand, if they did so of their own accord, their behavior would closely resemble that of a police officer who takes independent initiative to collect evidence and supplies it to the prosecutor. It is of course hypothetically possible that the SIS developed a confidential informant solely to collect information for internal penological purposes, and upon realizing that the information had prosecutorial value, shared it with the AUSA. However, the Court finds that hypothetical to be irreconcilable with the clear requirement in the SIS Manual that “[t]he SIS must ensure, without exception, that the AUSA has knowledge of all evidence, statements, memos, or interviews collected or conducted.” SIS Manual 15. Surely the SIS agents in question understood that any information they collected from a confidential informant would need to be passed on to the AUSA.

10.   BOP officials also memorialized statements made by defendants to BOP staff on the date of the incident. Defendants made these statements while BOP officials were transporting defendants, while defendants were in holding cells, and while defendants were in the SHU. Mot. 5; Bazemore Supp. 3–4. The record does not make clear whether defendants’ statements were unprompted or were in response to questions posed by BOP staff. Without more information concerning the context of the statements and whether they were the result of custodial interrogations, the Court considers this a neutral fact.

11.   Two other categories of actions by the BOP may have some modest relevance. First, the Court also notes that, assuming that SIS officials followed BOP procedure, they prepared a final investigative report regarding the stabbing. See SIS Manual 13. Although the preparation of a report regarding an incident that took place within a prison could certainly be done for a non-prosecutorial rationale, the SIS Manual requires this particular report to be thorough so that, among other reasons, the “U.S. Attorney ․ can take action on its contents.” SIS Manual 13. Preparing a report so that the U.S. Attorney can take action on its contents suggests that it was written, in part, to advance prosecutorial goals.Second, the Court notes that the BOP chose to issue an official policy document that repeatedly stresses that SIS employees assist with prosecutions. At least one court found it noteworthy that an agency “appears to represent itself as an integral part of the prosecution team.” Bin Laden, 397 F. Supp. 2d at 484 n.20 (observing that WitSec's proclamation that “it has obtained an overall conviction rate of 89” seemed “inconsistent with a claim that the program is wholly independent of the prosecution team”). Though it makes little difference to the Court's analysis in the instant case, it is likewise notable that SIS itself purports to be important to the prosecution team.

NATASHA C. MERLE United States District Judge