MCC Death Investigation — Supplemental Report

3. 2 3 4 5 6 7 8 9 10 11 12. 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES GRAND JURY SOUTHERN DISTRICT OF NEW YORK -x UNITED STATES OF AMERICA -V- : November 8, 2018 Additional TOVA NEAL and MICHAEL THOMAS : (2019R01059) APPEARANCE S: -x United States Courthouse Foley Square New York, New York November 19, 2019 10:07 a.m. Assistant United States Attorney Assistant United States Attorney c lnq ran ury Reporter FREE STATE REPORTING, INC. Court Reporting Transcription D.C. Area 301-261-1902 Balt. & Annap. 410-974-0947 EFTA02731852 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 US v Tova Neal and Michael Thomas 11/19/19 2 PROCEEDING Good morning, everyone. Thank you • for being on time. My name is . I'm here to continue our presentation that we began last Thursday, November 14, 2019. I'm here with my colleague, AUSA who is sitting behind me. Again, do any of you believe you know either myself or AUSA in anything other than our -- capacities. No? Okay. As those who were here on Thursday know we are here to present a proposed six-count indictment this morning, which I've marked as Grand Jury Exhibit 2. It charges Tova Noel and Michael Thomas in six counts. Noel and Thomas are charged together in Count One, which is the conspiracy count. Noel is charged by herself in Counts Two and Three, which are the substantive counts related to the 4 p.m. count and the 10 p.m. count. And then Noel and Thomas are charged together in Counts Three -- excuse me in Counts Four, Five and Six which relate to the 12 a.m. count, the 3 a.m. count and the 5 a.m. count. So just because a few days have elapsed I'm going to just briefly go over the law again and then summarize with the evidence and the testimony showed. But before I do that, does anyone who was not here on Thursday believe that they know Tova Noel or Michael Thomas? No? Okay. One other question. This case has received a FREE STATE REPORTING, INC. Court Reporting Transcription D.C. Area 301-261-1902 Balt. & Annap. 410-974-0947 EFTA02731853 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 US v Tova Neal and Michael Thomas 11/19/19 3 considerable amount of press attention. I don't know if any of you have read any press articles about it, but I will instruct you, as you know, that your duty is to consider only the evidence before you. The press reporting, a news article, that's not evidence. That's not something that you can consider or it's nothing you should consider. You're only allowed to consider the testimony of the witness that you heard last week and the evidence that she described. Does anyone believe that they would not be able to put aside any press or media that they've read about this case? No? Okay. Before I proceed with summarizing the indictment, I mentioned it's marked as Grand Jury Exhibit 2. And then I know there are a couple of you who were not here on Thursday. To save the rest of the grand jury the pain of rereading the hour of testimony I'm just going to mark Grand Jury Exhibit 3, which is the transcript. And to the extent that you'd like to vote I would suggest that you reread the transcript if you'd like to do that. Otherwise, you're free to abstain from voting if you don't feel that you could. But I will note that we did have a quorum on Thursday and there are at least 16 people who were present on Thursday here today. So let me just briefly summarize what I told you last week relating to the law and the facts. So the FREE STATE REPORTING, INC. Court Reporting Transcription D.C. Area 301-261-1902 Balt. 8 Annap. 410-974-0947 EFTA02731854 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 US v Tova Neal and Michael Thomas 11/19/19 4 defendants are charged in Count One with a conspiracy, so under 18 USC 371 and there are two objects. First object is defrauding the government, so I'll speak about that first. First, the defendants entered into an agreement; second, to obstruct a lawful function of the government; third, by deceitful or dishonest means; and fourth, at least one overt act occurred in furtherance of the conspiracy. So here you heard that the defendants jointly agreed not to perform the counts. And how do you know that they agreed not to perform the counts? Well number one, they admitted that they didn't perform the counts. Number two, you heard the agent testified about what the video showed. The video showed they didn't perform any of the counts. They were sitting at the desk, they were on their computers. Third, you heard that two officers are required to perform the counts, so thereby they agreed by neither of them doing it both of them agreed we're not going to do the count, which both of us are required to do. You also heard that both officers signed into the false count slips. So they both printed their names and they both signed it. All of that evidence, their admission, the video, the fact that both of them had to agree not to do the count, all of that shows that they entered into an agreement. Second element is to obstruct a lawful function of FREE STATE REPORTING, INC. Court Reporting Transcription D.C. Area 301-261-1902 Balt. & Annap. 410-974-0947 EFTA02731855 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 US v Tova Neal and Michael Thomas 11/19/19 5 the government. You heard the agent explain that the count is one of the most basic and essential functions of the MCC. So that they know that of the inmates in their care are alive, that no one has escaped and that everyone is accounted for. You know that they have five institutional counts a day and it's one of the most important functions of the prison staff is to ensure that everyone there is alive and accounted for. You heard that the institutional count can't be cleared, can't be completed, unless each housing unit submits a true and accurate count slip reflecting how many inmates are there and that's signed by the officers. So you heard that by submitting false count slips the officers were obstructing the MCC's ability to ensure that each of the inmates in their care was alive and accounted for. Third element is by deceit or dishonest means. Here you heard that Noel and Thomas didn't do the counts; the video confirmed that. And they admitted that they didn't do the counts, yet they signed numerous false count slips saying that they had in fact completed the counts. That deceit and dishonest means. And fourth is at least one overt act in furtherance of the conspiracy. So in the indictment we charged a number of overt acts, one for each of the false counts and then one overt act was the 30-minute round forms. FREE STATE REPORTING, INC. Court Reporting Transcription D.C. Area 301-261-1902 Balt. & Annap. 410-974-0947 EFTA02731856 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 US v Tova Neal and Michael Thomas 11/19/19 6 So as you heard the officers were not only required to do the count, they were required to do the 30-minute rounds and none of those were done. You heard that Noel falsified over 75 different 30-minute round entries saying that each 30- minute round had been done when she had not in fact done any of them. So that's Count One, that's the first object of the conspiracy. The second object of the conspiracy in Count One is the false documents charge, which is 18 USC 1001. That's also, if you'll remember, the charge that's charged in Ccunts Two through Six. So I'm going to describe the elements for that and you should keep in mind that these elements apply to each of Counts Two through Six and then the second object of the conspiracy charged in Count One. So there 'are three elements that we must prove. First, that the defendant made or used a false writing or document that contained a statement or entry that was false. Second, the defendant acted knowingly or willfully. And third, the statement or entry was material to a matter within the jurisdiction of the governmental agency. So the first element, the defendant made or used a false writing or document that contained a statement or entry that was false. So here this is the count slips. You know, based on the evidence that I just summarized, the FREE STATE REPORTING, INC. Court Reporting Transcription D.C. Area 301-261-1902 Balt. & Annap. 410-974-0947 EFTA02731857 US v Tova Neal and Michael Thomas 11/19/19 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 video shows that the counts weren't done. The defendants admitted that they didn't do the counts, yet they created and signed count slips saying that the counts were done. That is the first element; that the defendant made or used a false writing. Second, the defendant acted knowingly or willfully. Here you heard the defendants knowingly failed to do the count and then they actually created and signed the count slips were false. That qualifies as knowingly and willfully creating a false document. Third element is the statement or entry was material to a matter within the jurisdiction of the governmental agency. Here you heard that the MCC is a federal prison that's run by the BOP which is a federal agency. And you heard that the count slips were material to the BOP's functioning. It's one of the most essential aspects of the BOP's function is to ensure that their inmates are alive and accounted for. And so by creating a false count slip they were making a material statement to the governmental agency and they were frustrating their ability to ensure that all of their inmates were alive and accounted for. So that's it. Those are the elements that are applicable to Counts Two through Six and then the second object of the conspiracy in Count One. Would anyone like FREE STATE REPORTING, INC. Court Reporting Transcription D.C. Area 301-261-1902 Balt. & Annap. 410-974-0947 EFTA02731858 1 2 3 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 US v Tova Neal and Michael Thomas 11/19/19 8 the indictment read aloud? No? As I mentioned, I've marked it as Grand Jury Exhibit 2. Does anyone have any questions about the law as I just explained it or any of the facts that we discussed on Thursday? No? Okay. So I will ask you -- I'm sitting right outside. If you have any questions or any doubts or if there's anything more we can do, please let me know before you vote. Thank you. (Time noted: 10:16 a.m.) FREE STATE REPORTING, INC. Court Reporting Transcription D.C. Arca 301-261-1902 Balt. & Annap. 410-974-0947 EFTA02731859 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CSATIFICAT I hereby certify that the foregoing is a true and accurate transcription, to the best of my skill and ability, from my electronic notes of this proceeding. November 20, 2019_ Date Acting Grand Jury Reporter Free State Reporting, Inc. FREE STATE REPORTING, INC. Court Reporting Transcription D.C. Area 301-261-1902 Galt. & Annap. 410-974-0947 EFTA02731860