EFTA00015438.pdf

Case 1:20-cv-00833-PAE Document 22 Filed 08/05/20 Page 1 of 13
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE NEW YORK TIMES COMPANY,
Plaintiff,
No. 20-CV-833(PAE)
v.
FEDERAL BUREAU OF PRISONS,
Defendant.
DECLARATION OF RUSSELL CAPONE
I, Russell Capone, hereby declare as follows:
1. I am Counsel to the Acting United States Attorney in the United States Attorney's
Office for the Southern District of New York ("USAO-SDNY"). I have served in this capacity
since June 2020. Prior to my current role, I served as Deputy Chief and then Chief of the Public
Corruption Unit in the USAO-SDNY from July 2017 and as an Assistant United States Attorney
from January 2011. I supervised the Noel prosecution directly in my prior role as Chief of the
Public Corruption Unit, and I play a supervisory role over both the Noel and Tartaglione
prosecutions in my current role as Counsel to the Acting United States Attorney.
2. I am familiar with the Freedom of Information Act requests filed by the New
York Times Company (the "FOIA Requests") that are the subject of this case, which seek
records related to the incarceration of Jeffrey Epstein at the Metropolitan Correctional Center
("MCC"). I am also familiar with the responsive records that defendant the Federal Bureau of
Prisons ("BOP") has withheld pursuant to exemptions 5, 6, 7(A), 7(C), 7(E), and 7(F) of FOIA, 5
U.S.C. § 552(b)(5)-(7). In addition, I am familiar with the proceedings in United States of
1
EFTA00015438
Case 1:20-cv-00833-PAE Document 22 Filed 08/05/20 Page 2 of 13
America v. Noel, 19-CR-830 (Al), and United States of America v. Tartaglione, 16-CR-832
(KMK). True and correct copies of the Indictment filed in Noel on November 19, 2019 (the
"Noel Indictment"), and the Superseding Indictment filed in Tartaglione on April 16, 2019 (the
"Tartaglione Indictment"), are attached hereto as Exhibits A and B, respectively. The statements
contained in this declaration are based on my personal knowledge, documents maintained in the
files of the USAO-SDNY, conversations with members of the Noel and Tartaglione prosecution
teams at the USAO-SDNY, public court filings, and conclusions made in accordance therewith.
3. I submit this declaration in support of BOP's motion for summary judgment in
this case.
The Prosecution of Jeffrey Epstein
4. On July 2, 2019, Jeffrey Epstein was charged with one count of conspiracy to
commit sex trafficking, in violation of 18 U.S.C. § 371, and one count of sex trafficking, in
violation of 18 U.S.C. §§ 1591(a), (b)(2), and 2. On July 6, 2019, Epstein was arrested and
thereafter incarcerated at the MCC until his death.
5. On July 10, 2019, Epstein was assigned to the Special Housing Unit ("SHU") at
the MCC due to, among other things, a risk of suicidality and safety concerns relating to housing
him with the MCC's general population. On July 18, 2019, a bond hearing as to Epstein was
held before the Honorable Richard M. Berman, after which the Court granted the government's
motion for remand and denied Epstein's motion for pretrial release. See Noel Indictment 1 10.
6. On July 23, 2019, MCC officers responded to an emergency call and found
Epstein on the floor of his cell with a strip of bedsheet around his neck. See Noel Indictment
1 11. Michael Thomas, a correctional officer at the MCC and one of the defendants in the Noel
case, was one of the MCC officials who responded to this incident. See id. Epstein was
subsequently transferred out of the SHU, placed on suicide watch for 24 hours, and then
2
EFTA00015439
Case 1:20-cv-00833-PAE Document 22 Filed 08/05/20 Page 3 of 13
transferred to psychological observation, a different status in a different location within MCC's
hospital ward, until July 30, 2019. On July 30, 2019, Epstein was transferred back to the SHU.
See /dill 11-13.
7. On August 10, 2019, Epstein was found in his cell, not responsive and with a
noose around his neck. See id.1 26. He was transferred to a local hospital where he was
declared dead shortly thereafter. See id. 1 27. The Office of the Chief Medical Examiner of the
City of New York conducted an autopsy and determined that Epstein had committed suicide by
hanging himself. See id.
8. On August 29, 2019, following a public hearing on August 27, 2019, Judge
Berman entered an order of nolle prosequi against Epstein. See Nolle Prosequi, Dkt. No. 52,
United States v. Epstein, No. 19 Cr. 490 (RMB) (S.D.N.Y.).
The Prosecution of Tova Noel and Michael Thomas
9. As alleged in the Noel Indictment, Thomas and Tova Noel were correctional
officers on duty at the SHU on August 9-10, 2019, the night of Epstein's death. See Noel
Indictment 11 3-4. On that night, Noel and Thomas repeatedly failed to perform mandated
counts of prisoners under their watch, including Epstein. To conceal this failure, they repeatedly
signed false certifications attesting to having conducted multiple counts of inmates, when, in
truth, they had not conducted such counts. See id. 11 15-24. On November 19, 2019, Noel and
Thomas were charged in the Noel Indictment with one count of conspiring to defraud the United
States and to make or use a false writing or document, in violation of Title 18, United States
Code, Section 371; and five counts as to Noel and three counts as to Thomas of making or using
a false writing or document, in violation of Tide 18, United States Code, Sections 1001(a)(3) and
(2). Noel Indictment ¶9[ 28-40. The Noel case is pending before the Honorable Analisa Torres.
Trial has been scheduled to begin on January 4, 2021.
3
EFTA00015440
Case 1:20-cv-00833-PAE Document 22 Filed 08/05/20 Page 4 of 13
The Prosecution and Incarceration of Nicholas Tartaglione
10. In a superseding indictment filed on April 16, 2019, Nicholas Tartaglione was
charged with one count of conspiracy to distribute narcotics, in violation of Title 21, United
States Code, Section 846; four counts of intentional killing in furtherance of a drug trafficking
crime, in violation of Title 21, United States Code, Section 848(e)(1)(A) and Title 18, United
States Code, Section 2; three counts of murder through the use of a firearm in furtherance of a
drug trafficking crime, in violation of Title 18, United States Code, Sections 924(j) and 2; one
count of conspiracy to commit kidnapping, in violation of Title 18, United State Code, Section
1201; four counts of kidnapping resulting in death, in violation of Title 18, United States Code,
Sections 1201(a)(1) and 2; and four counts of using a facility of interstate commerce to commit a
crime of violence in violation of Title 18, United States Code, Sections 1952 and 2. These
charges arise from the April 2016 murders of Martin Luna, Miguel Luna, Urbano Santiago, and
Hector Gutierrez. On April 19, 2019, USAO-SDNY filed a Notice of Intent to Seek the Death
Penalty against Tartaglione. The Tartaglione case is pending before the Honorable Kenneth M.
Karns. No trial date has been set.
II. Tartaglione has been detained since he was arrested on December 19, 2016. For
certain periods of his detention, including in July 2019, Tartaglione was housed at the MCC. In
early July 2019, Tartaglione was transferred to the MCC's SHU. For a time, including on July
23, 2019, Tartaglione was housed in the same SHU cell as Jeffrey Epstein.
Records Withheld from Disclosure Pursuant to FOIA Exemption 7(A) on
Account of Likely Interference with Noel
12. 5 U.S.C. § 522 (b)(7)(A) ("Exemption 7(A)") exempts from disclosure "records
or information compiled for law enforcement purposes, but only to the extent that the production
4
EFTA00015441
Case 1:20-cv-00833-PAE Document 22 Filed 08/05/20 Page 5 of 13
of such law enforcement records or information ... could reasonably be expected to interfere
with enforcement proceedings ...."
13. I and the prosecutors responsible for the Noel prosecution have reviewed each of
the records responsive to the FOIA requests withheld in full or in part under Exemption 7(A),
including those reflected on the index prepared by BOP and attached to the declaration of Kara
Christenson (the "BOP index"). All of these records fall within the scope of Exemption 7(A).
14. Public disclosure of the records withheld under Exemption 7(A) could reasonably
be expected to interfere with the pending prosecutions of Noel and Thomas. These records
include information about which numerous witnesses are expected to testify at trial, include
details that are not publicly known or known to other witnesses, and include information and
documents authored by potential trial witnesses. These records also include potential trial
exhibits, which some or all potential trial witnesses have not seen, and premature disclosure of
those materials could influence witness testimony at trial, or enable witnesses to change or shape
their testimony. Premature disclosure of these records and/or the information contained therein
could reasonably be expected to influence witnesses' potential testimony at trial and/or allow
witnesses to alter their testimony to conform to other evidence.
15. Further, premature public disclosure of the records withheld under Exemption
7(A) could reasonably be expected to impair the government's (and the defendants') ability to
seat a fair and impartial jury in Noel. The government anticipates that some of the records
withheld under Exemption 7(A) will be entered into evidence as exhibits at trial, and other
records that may not be trial exhibits bear on the contents of potential trial exhibits. Premature
disclosure of these records, or the information contained therein, could influence potential jurors'
understanding of the evidence at trial and the case overall. Similarly, premature disclosure of the
records could prejudice potential jurors for or against the defendants in the Noel action, which
5
EFTA00015442
Case 1:20-cv-00833-PAE Document 22 Filed 08/05/20 Page 6 of 13
would also impair the government's (and the defendants') ability to seat a fair and impartial jury.
In addition, as noted above, these records include specific information about which witnesses are
expected to testify at trial, as well as information and documents authored by potential trial
witnesses, such that premature public disclosure could reasonably be expected to influence
potential jurors' perception of the witnesses and the evidence to be presented at trial.
16. The risks of interference with the Noel proceedings are heightened by the media
coverage of speculation and theories about Epstein's death. Many publicly-discussed theories of
Epstein's death are unfounded. Premature release of the withheld records, particularly if the
records are released in part or without full context, may influence the perception of jurors who
have been exposed to such media coverage of speculation and theories.
Non-Email Records Withheld Pursuant to Exemption 7(A) on
Account of Likely Interference with Noel
17. The considerations discussed above apply to each of the categories of responsive
non-email records withheld in full or in part by BOP under Exemption 7(A).
18. First, the government anticipates that MCC staffing records, including overtime
logs and daily assignment rosters for the MCC on July 22, July 23 August 9, and 10, 2019 and
some of the dates in between, will be the subject of witness testimony at the Noel trial. In
addition, the government anticipates that some of these documents will be trial exhibits.
Releasing these materials prematurely could reasonably be expected to influence witnesses'
potential testimony at trial, allow witnesses to alter their testimony to conform to other evidence,
or influence potential jurors' perceptions of witness testimony or evidence.
19. Second, the government anticipates that reports and memoranda prepared by
BOP, such as the reports, memoranda, photographs, and evidence of Epstein's July 23, 2019
apparent suicide attempt; reports, memoranda, and letters concerning Epstein's August 10, 2019
6
EFTA00015443
Case 1:20-cv-00833-PAE Document 22 Filed 08/05/20 Page 7 of 13
suicide and surrounding events; documents in BOP's possession from the New York City Office
of Chief Medical Examiner; and reports and letters concerning MCC's and BOP's response to
Epstein's death, may be trial exhibits, the subject of witness testimony, or were prepared by
witnesses who will testify at trial. Premature disclosure of these materials could reasonably be
expected to influence witnesses' potential testimony at trial, allow witnesses to alter their
testimony to conform to other evidence, or influence potential jurors' perceptions of witness
testimony or evidence. Alternatively, if evidence of Epstein's July 23, 2019 suicide attempt or
August 10, 2019 suicide and surrounding events is excluded from evidence at trial, pre-trial
publication of these materials would risk exposing potential jurors for or against the defendants
in the Noel action on the basis of material they would otherwise not be shown during trial, which
would impair the government's (and the defendants') ability to seat a fair and impartial jury.
20. Third, the government anticipates that certain medical and psychological records
of Epstein prepared by BOP may be trial exhibits, the subject of witness testimony, and/or were
prepared by witnesses who will testify at trial. Premature disclosure of these records could
influence the testimony of potential witnesses, including by potentially causing them to alter or
confirm their testimony. In addition, premature disclosure of these records could reasonably be
expected to prejudice potential jurors for or against the defendants in the Noel action, which
would impair the government's (and the defendants') ability to seat a fair and impartial jury.
21. Fourth, the government anticipates that documents related to counts of inmates,
including logs, count slips, and rosters, and other entries in BOP logs for August 9 and 10 may
be trial exhibits, the subject of witness testimony, and/or were prepared by witnesses who will
testify at trial. Premature disclosure of these materials could reasonably be expected to influence
witnesses' potential testimony at trial, allow witnesses to alter their testimony to conform to
other evidence, and/or influence potential jurors' perceptions of witness testimony or evidence.
7
EFTA00015444
Case 1:20-cv-00833-PAE Document 22 Filed 08/05/20 Page 8 of 13
22. Fifth, the government anticipates that an August 8, 2019, review of inmates in the
SHU prepared by BOP may be a trial exhibit, the subject of witness testimony, and/or was
prepared by witnesses who will testify at trial. Premature disclosure of this record could
reasonably be expected to influence witnesses' potential testimony at trial and/or allow witnesses
to alter their testimony to conform to other evidence.
Email Records Withheld Pursuant to Exemption 7(A) on
Account of Likely Interference with Noel
23. The considerations discussed above also apply to each of the categories of
responsive email documents withheld in full or in part by BOP under Exemption 7(A).
24. First, emails pertaining to Epstein's July 23, 2019 apparent suicide attempt, his
incarceration prior to his suicide, and his mental health, including emails written by BOP's
Psychology Services, discuss topics and information that the government anticipates may be the
subject of witness testimony at the Noel trial. Their disclosure could influence witness
testimony, including by allowing witnesses to alter their testimony to conform to other evidence,
or influence potential jurors' perceptions of witness testimony or evidence. Alternatively, as
described above, if evidence of Epstein's July 23, 2019 suicide attempt or is excluded from
evidence at trial, pre-trial publication of these materials would risk exposing potential jurors for
or against the defendants in the Noel action on the basis of material they would otherwise not be
shown during trial, which would impair the government's (and the defendants') ability to seat a
fair and impartial jury.
25. Second, emails relating to Epstein's death, investigations into Epstein's death, the
circumstances of his suicide, and the BOP's response to Epstein's death discuss topics and
information that the government anticipates will be relevant to and/or the subject of witness
testimony at the Noel trial. Their disclosure could influence witness testimony, including by
8
EFTA00015445
Case 1:20-cv-00833-PAE Document 22 Filed 08/05/20 Page 9 of 13
allowing witnesses to alter their testimony to conform to other evidence, or influence potential
jurors' perceptions of witness testimony or evidence. Alternatively, as described above, if
evidence of Epstein's suicide is excluded from evidence at trial, pre-trial publication of these
materials would risk exposing potential jurors for or against the defendants in the Noel action on
the basis of material they would otherwise not be shown during trial, which would impair the
government's (and the defendants') ability to seat a fair and impartial jury.
26. Providing more detailed public descriptions of the withheld documents and how
their release would interfere with the Noel prosecution would itself risk interfering with the Noel
prosecution. For example, public disclosure of more detailed descriptions of the documents
anticipated to be proffered as exhibits at trial, or that bear on other trial exhibits, would disclose
elements of the Government's trial strategy in Noel, including its selection of trial exhibits and
the anticipated content of witness testimony. More detailed public descriptions could also
prematurely disclose how the prosecution team expects the trial to proceed.
Records Withheld Pursuant to Exemption 7(A) on
Account of Likely Interference With Tartaglione
27. In the course of reviewing the responsive records that BOP has withheld pursuant
to Exemption 7(A), prosecutors in the Criminal Division of the USAO-SDNY determined that
certain of the records refer to or discuss Tartaglione (the "Tartaglione Records"). Upon
determining that some of the records withheld by BOP refer to or discuss Tartaglione, USAO SDNY reviewed these records to determine whether their release would interfere with the
pending criminal action against Tartaglione. USAO-SDNY has concluded that release of certain
of the withheld records could reasonably be expected to interfere with the prosecution of
Tartaglione. This constitutes a basis to withhold these records under Exemption 7(A),
independent from the likely interference with the Noel prosecution discussed above.
9
EFTA00015446
Case 1:20-cv-00833-PAE Document 22 Filed 08/05/20 Page 10 of 13
28. The Tartaglione Records fall within several categories of responsive documents
withheld by BOP and include reports and evidence of Epstein's July 23, 2019 apparent suicide
attempt; reports and evidence of Epstein's death on August 10, 2019; email correspondence
between Tartaglione's attorneys and legal counsel at the MCC; and medical and psychological
records of Epstein prepared by BOP. The Tartaglione Records also include emails pertaining to
Epstein's July 23, 2019 apparent suicide attempt, Epstein's mental and physical health, and
Epstein's incarceration prior to his suicide.
29. The Tartaglione Records fall within the scope of 7(A) because their disclosure
could reasonably be expected to interfere with the prosecution of Tartaglione. The Tartaglione
Records contain, among other things, information about Tartaglione's incarceration, including
the period of time during which Tartaglione was Epstein's cellmate at the MCC, which includes
the date of Epstein's apparent suicide attempt on July 23, 2019. The conditions of Tartaglione's
confinement at the MCC, as well as his interactions with Epstein in July 2019, have been put
directly at issue by Tartaglione's defense counsel, specifically in connection with the potential
penalty phase of the case against Tartaglione. See Letter dated January 13, 2010, Dkt. No. 186,
United States v. Tartaglione, No. 16 Cr. 832 (ICMK); Letter dated January 21, 2020, Dkt. No.
193, United States v. Tartaglione, No. 16 Cr. 832 (KMK). In light of defense counsel's position,
information contained in the Tartaglione Records may be relevant evidence in any possible
penalty phase of the case against Tartaglione, and as a result, premature public disclosure of the
Tartaglione Records could reasonably be expected to influence witness testimony and/or
potential jurors' perceptions of witness testimony or evidence.
30. Moreover, the nature of the charges against Epstein and the circumstances of his
apparent suicide attempt and death create a risk that premature public disclosure of the
Tartaglione Records could reasonably be expected to impair the government's (and the
10
EFTA00015447
Case 1:20-cv-00833-PAE Document 22 Filed 08/05/20 Page 11 of 13
defendants') ability to seat a fair and impartial jury in Tartaglione, particularly for purposes of a
potential penalty-phase hearing required by 18 U.S.C. § 3593, by influencing potential juror
perceptions of any interactions between Epstein and Tartaglione.
31. The risks of interference with the Tartaglione proceedings are heightened by the
media coverage of speculation and theories about Epstein's death. As noted previously, many
publicly-discussed theories of Epstein's death are unfounded. The public dissemination of these
theories increases the risk that premature release of the Tartaglione Records could influence
witness testimony or jurors' perceptions, if records are released in part or without full context.
32. The Tartaglione Records include several categories of records withheld by BOP.
Specifically, the government anticipates that premature disclosure of the reports and evidence of
Epstein's July 23, 2019 apparent suicide attempt; an inmate investigative report prepared prior to
Epstein's death; reports and evidence of Epstein's death on August 10, 2019; email
correspondence between Tartaglione's attorneys and legal counsel at the MCC; the August 8,
2019 review of inmates in the SHU at MCC; and the medical and psychological records of
Epstein prepared by BOP, including documents pertaining to his mental health, could reasonably
be expected to adversely affect the Tartaglione proceedings and influence potential jurors'
perceptions of Tartaglione, thereby impairing the district court's ability to seat a fair and
impartial jury. In addition, emails pertaining to Epstein's July 23, 2019 apparent suicide attempt,
Epstein's mental health, and Epstein's incarceration prior to his suicide, including emails that
involve members of the defense or prosecution teams in Tartaglione, discuss topics and
information that could adversely affect the Tartaglione proceedings and influence potential
juror's perceptions of Tartaglione. These records likewise could reasonably be expected to
impair the district court's ability to seat a fair and impartial jury.
II
EFTA00015448
Case 1:20-cv-00833-PAE Document 22 Filed 08/05/20 Page 12 of 13
33. Providing more detailed public descriptions of the withheld documents and how
their release would affect the Tartaglione prosecution would itself risk interfering with the
Tartaglione prosecution. For example, public disclosure of more detailed descriptions would
potentially implicate and publicize associations, interactions, or perceptions of associations or
interactions between Tartaglione and Epstein, thereby risking influencing potential jurors in
proceedings against Tartaglione, including for any sentencing hearing required by 18 U.S.C.
§ 3593.
Segregability
34. The records withheld in full under Exemption 7(A) are exempt from disclosure in
their entirety under Exemption 7(A). To the extent the records contain any non-exempt
information, such information is inextricably intertwined with information that could reasonably
be expected to interfere with the Noel and/or Tartaglione prosecutions for the reasons discussed
above. The media coverage of speculation and theories about Epstein's death makes the
segregation of any possibly non-exempt information particularly difficult because providing
information pertaining to Epstein (or Tartaglione and Epstein) without complete context can
reasonably be expected to contribute to the dissemination of speculation and theories about his
death. This, in turn, could reasonably be expected to interfere with the district court's ability to
seat a fair and impartial jury in proceedings against Noel, Thomas, and/or Tartaglione, including
for any sentencing hearing required by 18 U.S.C. § 3593, for the reasons discussed above.
12
EFTA00015449
Case 1:20-cv-00833-PAE Document 22 Filed 08/05/20 Page 13 of 13
Pursuant to 28 U.S.C. § 1746. I declare under penalty of perjury that the foregoing is true
and correct to the best of my knowledge and belief.
Executed this 5 day of August 2020.
Russell Capone
Counsel to the Acting United States Attorney
United States Attorney's Office for the
Southern District of New York
13
EFTA00015450
Case 1:20-cv-00833-PAE Document 22-1 Filed 08105/20 Page 1 of 21
Exhibit A
EFTA00015451
Cagage2D1S-61:03830 Moocaurrent712-FilkilataK15720Dagagedi 3021
ACME isfoits
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
TOVA NOEL and
MICHAEL THOMAS,
Defendants.
X
INDICTMENT
16-(IUM 830
INTRODUCTION
1. On or about August 10, 2019, TOVA NOEL and MICHAEL
THOMAS, the defendants, in dereliction of their duties as
correctional officers at the Metropolitan Correctional Center
("MCC"), repeatedly failed to perform mandated counts of prisoners
under their watch in the MCC's Special Housing Unit ("SHU").
Instead, for substantial portions of their shifts, NOEL and THOMAS
sat at their desk, browsed the Internet, and moved around the
common area of the SHU. To conceal their failure to perform their
duties, NOEL and THOMAS repeatedly signed false certifications
attesting to having conducted multiple counts of inmates when, in
truth and in fact, they never conducted such counts. As a result
of those false statements, the MCC believed prisoners in the SHU
were being regularly monitored and accounted for when, in fact, as
a result of the defendants' conduct, no correctional officer
conducted any count or round of the SHU from approximately 10:30
EFTA00015452
Cagage2D19-698C3830A1E1 ODmcaunmwnt2f2-Fil€dEklagIfl20'a@ageB b021
p.m. on August 9 until approximately 6:30 a.m. on August 10, at
which time, as alleged herein, NOEL and THOMAS discovered the body
of an MCC inmate, Jeffrey Epstein, who had committed suicide
overnight while unobserved.
RELEVANT INDIVIDUALS AND ENTITIES
2. The MCC is a federal administrative detention
facility located in Manhattan that is run by the Federal Bureau of
Prisons ("BOP"). The MCC is one of several facilities used to
house inmates who have been charged with federal crimes in the
Southern District of New York and are awaiting trial. The MCC
employs correctional officers, whose primary duty is to ensure the
care, custody, and control of the inmate population of the MCC.
3. TOVA NOEL, the defendant, has been employed as a
correctional officer at the MCC since approximately 2016. As of
August 2019, NOEL's primary assignment was the SHU. On August 9,
2019, NOEL worked a regular shift from 4 p.m. to 12 a.m. in the
SHU, and then worked an overtime shift from 12 a.m. to 8 a.m. on
August 10, 2019, also in the SHU. NOEL had also worked a regular
shift in the SHU the day before, August 8, 2019, from 12 p.m. to
8 p.m.
4. MICHAEL THOMAS, the defendant, has been employed as
a correctional officer at the MCC since approximately 2007.
Beginning in approximately 2013, THOMAS was assigned to work as a
2
EFTA00015453
CageSe2DI94OO3:383B413 0accaurreent22-FilaldilaMS2CPagE*of 2,021
materials handler supervisor, although THOMAS regularly worked
overtime shifts as a correctional officer, including in the SHU.
THOMAS worked an overtime shift in the SHU on August 10, 2019,
from 12 a.m. to 8 a.m. THOMAS did not work his regular shift on
August 8 or August 9, 2019, but did work an overtime shift in the
SHU on August 9, 2019 from 12 a.m. to 8 a.m.
5. As detailed herein, Jeffrey Epstein was
incarcerated at the MCC between his arrest on July 6, 2019, and
his suicide on August 10, 2019. Epstein was detained pending
trial in the Southern District of New York on sex trafficking
charges.
THE MCC AND INSTITUTIONAL COUNTS
6. The MCC, which houses approximately 750 inmates at
any given time, assigns inmates to various housing units within
the MCC. The SHU is a housing unit within the MCC where inmates
are securely separated from the general inmate population to ensure
their own safety as well as the safety of staff and other inmates.
The SHU is located on the ninth floor of the MCC, and access to
that floor is controlled by a locked door that can be opened
remotely only by an officer in the MCC's centralized control center
(the "Control Center"), which is located on the first floor of the
MCC. Access into the SHU is also controlled by a second locked
door to which only correctional officers assigned to the SHU have
EFTA00015454
Caeage2DIS-O1:69930933- famaurremtZe-FilaldclagLIS2CPagarii 2,021
keys while on duty. Within the SHU, inmates are assigned to six
separate tiers, each of which can be accessed only via a single
locked door to which the correctional officers assigned to the SHU
have keys while on duty. Each tier has eight cells, each of which
can house either one or two prisoners, and each individual cell -
which is made of cement and metal - is accessed only through a
single locked door, to which only correctional officers assigned
to the SHU have keys while on duty.
7. The BOP requires correctional officers assigned to
guard inmates at the MCC to conduct institution-wide counts of
inmates at regular, scheduled intervals to ensure that each inmate
is alive and accounted for within the MCC (the "institutional
count"). On weekdays, the MCC conducts five institutional counts
at 4 p.m., 10 p.m., 12 a.m., 3 a.m., and 5 a.m. Performing an
institutional count is one of the most basic and essential aspects
of a correctional officer's job, and the count is one of the most
basic and essential functions of daily operation of the MCC. Two
officers are required to perform the institutional count for each
housing unit, including the SHU, and are further required to
document their performance of the count on an official MCC form
called a count slip. To perform the institutional count in the
SHU, two officers must walk from tier to tier to observe and count
each individual inmate.
4
EFTA00015455
Cae.age2DI9-698C38304(E IlDoonurreentZe-FilklalagO5120)a@aeci3 b021
8. On the count slip, both correctional officers are
required to fill in the date and time the count was performed,
write the total number of inmates physically present in the unit
counted, and then sign the count slip. Once the correctional
officers have completed and signed the count slips, the count slips
are then collected and delivered to the Control Center, where
officers within the Control Center are responsible for comparing
the count slips from each housing unit to the institution's inmate
roster to ensure that each inmate is accounted for. Only after
all the count slips are collected from each housing unit, and the
numbers on the slips are matched to the institution's inmate
roster, can the institutional count be deemed "cleared" or
completed. If a housing unit's count slip is incorrect or
incomplete, then the institution cannot "clear" the count.
Instead, the count must be completely redone in that housing unit
via a more-intensive version of the institutional count called a
"bed book count," in which officers must compare every individual
inmate to the institution's inmate roster. Records of each
institutional count, including the count slips, are provided to a
supervising official and retained by the MCC.
9. In addition to the institutional count, the BOP
requires correctional officers assigned to the SHU to walk each of
the tiers of the SHU - which is called a "round" - every thirty
EFTA00015456
Cagage21:1419-6933830,413- IIDmoturremt2I2-FilalEklIMS2Pagefeol 2,021
minutes ("30-minute rounds"). Like the institutional counts,
correctional officers conduct 30-minute rounds to ensure that each
inmate is alive and accounted for within his cell. Correctional
officers working in the SHU are required to complete a form, which
is reviewed and signed by their supervisor, documenting the date
and time of each 30-minute round in each tier of the SHU.
EPSTEIN'S PRIOR APPARENT SUICIDE ATTEMPT
10. On July 6, 2019, inmate Jeffrey Epstein was
arrested and detained at the MCC on sex trafficking charges. On
July 10, 2019, Epstein was assigned to the SHU due to, among other
things, risk factors for suicidality and safety concerns relating
to housing him with the MCC's general population.
11. On July 23, 2019, while Epstein was housed in the
SHU, MCC officers responded to an emergency call, and found Epstein
on the floor of his cell with a strip of bedsheet around his neck.
MICHAEL THOMAS, the defendant, was one of the MCC officers who
responded to the incident. Epstein was subsequently transferred
out of the SHU and was placed on suicide watch. Inmates placed
on suicide watch are housed in a cell on the hospital wing floor
of the MCC, and are watched twenty-four hours a day by a staff
member or a specially trained inmate companion.
12. Epstein remained on suicide watch for approximately
twenty-four hours, and then was transferred to psychological
6
EFTA00015457
Cagage2D-3:9-6O3O8213Ala 0Dmaiurremt2I2-FilalarlaalS2Page cEl 2,021
observation, until July 30, 2019. Psychological observation is
less restrictive than suicide watch, but inmates are still housed
in the hospital wing of the MCC and watched twenty-four hours a
day.
13. On July 30, 2019, Epstein was transferred back to
the SHU, and, at the direction of the MCC's psychological staff,
was required to have an assigned cellmate. Epstein was also
assigned to the cell closest to the correctional officers' desk in
the common area of the SHU, which was approximately fifteen feet
from the cell. Conducting the required institutional counts and
thirty-minute rounds in the SHU were also part of the MCC's
procedures for ensuring the safety of inmates, including Epstein.
EVENTS OF AUGUST 9-10, 2019
14. On August 9, 2019, Epstein's cellmate was
transferred out of the MCC in a routine, pre-arranged transfer at
approximately 8 a.m. Despite the MCC's psychological staff's
direction that Epstein have a cellmate, no new cellmat6 was
assigned to Epstein's cell.
15. TOVA NOEL, the defendant, was one of the assigned
officers on duty in the SHU from 4 p.m. on August 9, 2019 to 8
a.m. on August 10. From 4 p.m. to 12 a.m., two other officers
were on duty with NOEL in the SHU: one officer was assigned to
work from 2 p.m. to 10 p.m. ("Officer-1"), and one officer was
7
EFTA00015458
Caeage2D1S-(093C3830 IlDoonurrentZ12-FilEalalagi151200agagc9 3021
assigned to work from 4 p.m. to 12 a.m. ("Officer-2"). MICHAEL
THOMAS, the defendant, started his shift in the SHU at 12 a.m. on
August 10. From 12 a.m. until 8 a.m. on August 10, NOEL and THOMAS
were the only two officers on duty in the SHU.
16. During the time period from 4 p.m. on August 9 to
8 a.m. on August 10, the officers on duty in the SHU, including
TOVA NOEL and MICHAEL THOMAS, the defendants, were responsible for
conducting five institutional counts: 4 p.m. and 10 p.m. on August
9; and 12 a.m., 3 a.m., and 5 a.m. on August 10. NOEL, THOMAS and
the other officers on duty were also responsible for completing
paperwork attesting to each of those counts. While, as detailed
herein, count slips were completed for each institutional count,
in fact, not a single one of those institutional counts was done.
17. TOVA NOEL, the defendant, and Officer-1 were
responsible for conducting the 4 p.m. institutional count in the
SHU. As video from the MCC's internal video surveillance system
makes clear, NOEL and Officer-1 did not perform the 4 p.m. count.
Nonetheless, NOEL and Officer-1 completed and signed a count slip
that falsely stated that the 4 p.m. institutional count had been
performed. In reliance on that falsified count slip, at
approximately 5:03 p.m., the Control Center cleared the 4 p.m.
count.
8
EFTA00015459
CaQataClia9410&agB3-30kET COoinneen22-1FikitbdilOSE01420Pafige AO2fl 21
18. That evening, Epstein returned to the SHU from his
attorney visit and was escorted into his cell by TOVA NOEL, the
defendant, and another officer at approximately 7:49 p.m. NOEL
and the other officer left the tier in which Epstein was housed
immediately thereafter.
19. By or before 10 p.m., all inmates in the MCC were
locked in their cells for the night. At or around that time, TOVA
NOEL, the defendant, and Officer-2 were responsible for conducting
the 10 p.m. institutional count in the SHU. However, video from
the MCC's internal video surveillance system shows that NOEL and
Officer-2 did not perform the 10 p.m. count. Nonetheless, NOEL
and Officer-2 completed and signed a count slip falsely stating
that the 10 p.m. institutional count had been performed. In
reliance on that falsified count slip, at approximately 10:36 p.m.,
the Control Center cleared the 10 p.m. count.
20. As reflected on video obtained from the MCC's
internal video surveillance system, at approximately 10:30 p.m. on
August 9, 2019 - after TOVA NOEL, the defendant, had signed and
submitted the 10 p.m. count slip and the institutional count had
been completed - NOEL briefly walked up to, and then walked back
from, the door to the tier in which Epstein was housed. As
confirmed by the video obtained from the MCC's internal video
surveillance system, this was the last time anyone, including any
9
EFTA00015460
Caetaae201-00303319443 flayawnenit22-E ilaleicill8KB720Pagale 318021
correctional officer, walked up to, let alone entered, the only
entrance to the tier in which Epstein was housed until
approximately 6:30 a.m. on August 10.
21. Officer-l's shift ended at approximately 10 p.m.,
and at approximately 12 a.m., MICHAEL THOMAS, the defendant,
replaced Officer-2, joining TOVA NOEL, the defendant, as the only
two correctional officers on duty in the SHU. NOEL and THOMAS
were responsible for conducting the 12 a.m. institutional count in
the SHU. As confirmed by video from the MCC's internal video
surveillance system, NOEL and THOMAS did not perform the 12 a.m.
count. Nonetheless, NOEL and THOMAS completed and signed a count
slip for the 12 a.m. count that falsely stated that the
institutional count had been performed. In reliance on that
falsified count slip, at approximately 12:49 a.m., the Control
Center cleared the 12 a.m. count.
22. TOVA NOEL and MICHAEL THOMAS, the defendants, were
additionally responsible for conducting the 3 a.m. and 5 a.m.
institutional counts in the SHU. As confirmed by video from the
MCC's internal video surveillance system, NOEL and THOMAS did not
perform either the 3 a.m. or the 5 a.m. counts. NOEL and THOMAS
nonetheless completed and signed count slips for both counts that
falsely stated that they had performed the 3 a.m. and 5 a.m.
institutional counts. In reliance on those falsified count slips,
10
EFTA00015461
Caetale2DISLOGGCB319443 Macturreerit22-FilcaleidiE0312Pagla iff 2,021
at approximately 3:24 a.m. and 5:30 a.m., the Control Center
cleared the 3 a.m. and 5 a.m. counts, respectively.
23. Moreover, despite the requirement that officers on
duty in the SHU conduct and document regular, 30-minute rounds,
TOVA NOEL and MICHAEL THOMAS, the defendants, did not perform any
of the required 30-minute rounds during their shift between
approximately 12 a.m. and 6:30 a.m. Nonetheless, NOEL completed
and signed more than 75 separate 30-minute round entries falsely
affirming that they had, in fact, conducted such rounds.
24. During the night, instead of completing the
required counts and rounds, TOVA NOEL and MICHAEL THOMAS, the
defendants, were seated at the correctional officers' desk in the
SHU common area (as noted above, approximately 15 feet from
Epstein's cell), used the computers, and moved around the SHU
common area. For a period of approximately two hours, NOEL and
THOMAS sat at their desk without moving, and appeared to have been
asleep. NOEL used the computer periodically throughout the night,
including to search the Internet for furniture sales and benefit
websites. THOMAS used the computer briefly around 1 a.m., 4 a.m.,
and 6 a.m. to search for motorcycle sales and sports news.
25. At approximately 4 a.m., the overnight supervisor
briefly visited NOEL and THOMAS in the SHU, and conferred with
NOEL and THOMAS, who were seated at and around the officers' desk,
11
EFTA00015462
CaCage21112, 003033113AEr IlDactuntertt22-filcd8ida3305i2Pagag2 13 3021
before leaving. At approximately 5:30 a.m., another correctional
officer briefly walked through the SHU common area. Aside from
those two officers, as confirmed by video surveillance, no one
else entered the SHU, no one conducted any counts or rounds
throughout the night, and no one entered the tier in which Epstein
was housed.
26. Shortly after 6 a.m. on August 10, 2019, MICHAEL
THOMAS and TOVA NOEL, the defendants, received a delivery of
breakfast carts into the SHU, after which time they were again the
only officers in the SHU. Shortly after 6:30 a.m., NOEL and THOMAS
walked up to and entered the tier in which Epstein was housed to
serve breakfast. At approximately 6:33 a.m., an alarm was
activated in the SHU. Epstein was alone in his cell and not
responsive, with a noose around his neck. A supervisor who had
just started his shift ("Supervisor-1") responded to the alarm
almost immediately thereafter, and as NOEL approached the door to
the SHU to open the door for Supervisor-1, NOEL told Supervisor-1
that "Epstein hung himself." After arriving in the SHU,
Supervisor-1 spoke with THOMAS and NOEL. NOEL told Supervisor-1
"we did not complete the 3 a.m. nor 5 a.m. rounds." THOMAS stated,
" we messed up," and "I messed up, she's not to blame, we didn't do
any rounds."
12
EFTA00015463
Caetage2042,003083113AfEr 011ummterrita2-E i Cid.1133(1812 OPagaglie 30 21
27. Epstein was transferred to a local hospital where
he was declared dead shortly thereafter. The Office of the Chief
Medical Examiner of the City of New York conducted an autopsy and
determined that Epstein had committed suicide by hanging himself.
STATUTORY ALLEGATIONS
COUNT ONE
(Conspiracy)
The Grand Jury charges:
28. The Grand Jury incorporates the allegations
contained in paragraphs 1 through 27 of this Indictment as though
fully set forth herein.
29. In or about August 2019, in the Southern District
of New York, TOVA NOEL and MICHAEL THOMAS, the defendants,
knowingly conspired with each other to:
a. Knowingly defraud the United States by
impairing, obstructing, and defeating the lawful functions of a
department or agency of the United States, to wit, the MCC's
function to ensure the care, custody, and control of its inmate
population.
b. Knowingly make and use a false writing or
document knowing the same to contain a materially false,
fictitious, and fraudulent statement and entry with the intent to
impede, obstruct, or influence the investigation or proper
administration of any matter within the jurisdiction of any
13
EFTA00015464
Caetage2D3a-0030836413 ODanunterit22-Pilaleid.08:0572(Pagagel kg 24021
department or agency of the United States, in violation of Title
18, United States Code, Section 1001 (a)(3).
30. In furtherance of the conspiracy and to effect the
illegal objects thereof, TOVA NOEL and MICHAEL THOMAS, the
defendants, committed the following overt acts, among others, in
the Southern District of New York:
a. On August 10, 2019, NOEL and THOMAS falsely
certified, on an MCC count slip, that they had performed the 12
a.m. institutional count of the SHU, when they had not in fact
done so.
b. On August 10, 2019, NOEL and THOMAS falsely
certified, on an MCC count slip, that they had performed the 3
a.m. institutional count of the SHU, when they had not in fact
done so.
c. On August 10, 2019, NOEL and THOMAS falsely
certified, on an MCC count slip, that they had performed the 5
a.m. institutional count of the SHU at MCC, when they had not in
fact done so.
d. On August 10, 2019, NOEL falsely certified that
she and THOMAS had performed a series of 30-minute rounds of the
SHU between 12 a.m. and 6:30 a.m., when they had not in fact done
so.
(Title 18, United States Code, Section 371)
14
EFTA00015465
C aetalea112,0033a30AfEr OBonunterit 22-F ilEdIddll3M1572 CP ag a giE5 163021
COUNT TWO
(False Records - 4 p.m. Count)
The Grand Jury further charges:
31. The Grand Jury incorporates the allegations
contained in paragraphs 1 through 27 of this Indictment as though
fully set forth herein.
32. On or about August 9, 2019, in the Southern District
of New York, TOVA NOEL, the defendant, willfully and knowingly did
make and use a false writing or document knowing the same to
contain a materially false, fictitious, and fraudulent statement
and entry with the intent to impede, obstruct, or influence the
investigation or proper administration of any matter within the
jurisdiction of any department or agency of the United States, and
did attempt to do the same, to wit, NOEL created, signed, and
submitted to the MCC a materially false count slip indicating that
she had performed the 4 p.m. institutional count of the SHU, when
she had not in fact done so.
(Title 18, United States Code, Sections 1001(a)(3) and 2)
COUNT THREE
(False Records - 10 p.m. Count)
The Grand Jury further charges:
33. The Grand Jury incorporates the allegations
contained in paragraphs 1 through 27 of this Indictment as though
fully set forth herein.
15
EFTA00015466
C aetale2036, 0030831BRT ODanunterit 22-P i REA eidMIC1572 CP agagE6N 30 21
34. On or about August 9, 2019, in the Southern District
of New York, TOVA NOEL, the defendant, willfully and knowingly did
make and use a false writing or document knowing the same to
contain a materially false, fictitious, and fraudulent statement
and entry with the intent to impede, obstruct, or influence the
investigation or proper administration of any matter within the
jurisdiction of any department or agency of the United States, and
did attempt to do the same, to wit, NOEL created, signed, and
submitted to the MCC a materially false count slip indicating that
she had performed the 10 p.m. institutional count of the SHU, when
she had not in fact done so.
(Title 18, United States Code, Sections 1001(a)(3) and 2)
COUNT FOUR
(False RecOrds - 12 a.m. Count)
The Grand Jury further charges:
35. The Grand Jury incorporates the allegations
contained in paragraphs 1 through 27 of this Indictment as though
fully set forth herein.
36. On or about August 10, 2019, in the Southern
District of New York, TOVA NOEL and MICHAEL THOMAS, the defendants,
willfully and knowingly did make and use a false writing or
document knowing the same to contain a materially false,
fictitious, and fraudulent statement and entry with the intent to
impede, obstruct, or influence the investigation or proper
16
EFTA00015467
Caeale2Tl3c8,09O(i8'3K3AEr 0lnunterrlt22-F i eictli8MB7203age ge 18 3021
administration of any matter within the jurisdiction of any
department or agency of the United States, and did attempt to do
the same, to wit, NOEL and THOMAS created, signed, and submitted
to the MCC a materially false count slip indicating that they had
performed the 12 a.m. institutional count of the SHU, when they
had not in fact done so.
(Title 18, United States Code, Sections 1001(a)(3) and 2)
COUNT FIVE
(False Records - 3 a.m. Count)
The Grand Jury further charges:
37. The Grand Jury incorporates the allegations
contained in paragraphs 1 through 27 of this Indictment as though
fully set forth herein.
38. On or about August 10, 2019, in the Southern
District of New York, TOVA NOEL and MICHAEL THOMAS, the defendants,
willfully and knowingly did make and use a false writing or
document knowing the same to contain a materially false,
fictitious, and fraudulent statement and entry with the intent to
impede, obstruct, or influence the investigation or proper
administration of any matter within the jurisdiction of any
department or agency of the United States, and did attempt to do
the same, to wit, NOEL and THOMAS created, signed, and submitted
to the MCC a materially false count slip indicating that they had
17
EFTA00015468
Caetaleal.k8, 003GEt3IBRO- OBoolumeirtt22-F lakid.118MB7203age *8 19 3021
performed the 3 a.m. institutional count of the SHU, when they had
not in fact done so.
(Title 18, United States Code, Sections 1001(a)(3) and 2)
COUNT SIX
(False Records - 5 a.m. Count)
The Grand Jury further charges:
39. The Grand Jury incorporates the allegations
contained in paragraphs 1 through 27 of this Indictment as though
fully set forth herein.
40. On or about August 10, 2019, in the Southern
District of New York, TOVA NOEL and MICHAEL THOMAS, the defendants,
willfully and knowingly did make and use a false writing or
document knowing the same to contain a materially false,
fictitious, and fraudulent statement and entry with the intent to
impede, obstruct, or influence the investigation or proper
administration of any matter within the jurisdiction of any
department or agency of the United States, and did attempt to do
the same, to wit, NOEL and THOMAS created, signed, and submitted
to the MCC a materially false count slip indicating that they had
18
EFTA00015469
C aetaae2D3a-O0308319413 0lonunterit 22 -P i REA dd. 1:1870572 CP a q a ge9 A e021
performed the 5 a.m. institutional count of the SHU, when they had
not in fact done so.
(Title 18, United States Code, Sections 1001(a)(3) and 2)
Solgterna...-
GE0FFR BERMAN
United States Attorney
19
EFTA00015470
Caetaae2DIS,003C3a39413- Okonunterit aLCIEUE72 CP 4034021 M21
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
TOVA NOEL and
MICHAEL THOMAS,
Defendants.
INDICTMENT
19 Cr.
Title 18, United States Code,
Sections 371, 1001(a) (3), and 2.
GEOFFREY S. BERMAN
United States Attorney
A TRUE BILL
Foreperson.
L
4‘112,1.1 vi4r/V6., 4,5
A SS;p64 I~j,./9? 742ger
friq. _.(aged. iVe Usit,fj
s(119(11
EFTA00015471
Case 1:20-cv-00833-PAE Document 22-2 Filed 08/05/20 Page 1 of 21
Exhibit B
EFTA00015472
Cause J7:2ffror-00832-RME Illilinun7emtt 37118 RigaSigeria 4 ;Lk; fout iRc '.;ivv nS
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA SUPERSEDING INDICTMENT
S4 16 Cr. 832 (KMK)
NICHOLAS TARTAGLIONE,
Defendant.
X
COUNT ONE
The Grand Jury charges:
1. From at least in or about 2015, up to and
including in or about April 2016, in the Southern District of
New York and elsewhere, NICHOLAS TARTAGLIONE, the defendant, and
others known and unknown, intentionally and knowingly did
combine, conspire, confederate, and agree together and with each
other to violate the narcotics laws of the United States,
2. It was a part and an object of the conspiracy
that NICHOLAS TARTAGLIONE, the defendant, and others known and
unknown, would and did distribute and possess with intent to
distribute a controlled substance, in violation of Title 21,
United States Code, Section 841(a)(1).
3. The controlled substance that NICHOLAS
TARTAGLIONE, the defendant, conspired to distribute and possess
with intent to distribute was 5 kilograms and more of mixtures
EFTA00015473
Case Mao-00832-RM Danumant FRIEd otfredaza PaBe 2Z ad 21
and substances containing a detectable amount of cocaine, in
violation of Title 21, United States Code, Section 841(b)(1)(A).
(Title 21, United States Code, Section 846.)
COUNT TWO
The Grand Jury further charges:
4. In or about April 2016, in the Southern District
of New York, while engaged in an offense punishable under
Section 841(b)(1)(A) of Title 21, United States Code, to wit, a
conspiracy to distribute, and to possess with the intent to
distribute, 5 kilograms and more of mixtures and substances
containing a detectable amount of cocaine, NICHOLAS TARTAGLIONE,
the defendant, intentionally and knowingly killed, and
counseled, commanded, induced, procured, and caused the
intentional killing of Martin Luna, in and around a bar known as
the Likquid Lounge at 69 Brookside Avenue, Chester, New York
(the "Likquid Lounge"), and did aid and abet the same.
(Title 21, United States Code, Section 848(e)(1)(A);
Title 18, United States Code, Section 2.)
COUNT THREE
The Grand Jury further charges:
5. In or about April 2016, in the Southern District
of New York, while engaged in an offense punishable under
Section 841(b)(1)(A) of Title 21, United States Code, to wit, a
conspiracy to distribute, and to possess with the intent to
2
EFTA00015474
Case 1722-er-00832-RhE Illeramont 12Q Filed 00/1:022 Pape 3 d21
distribute, 5 kilograms and more of mixtures and substances
containing a detectable amount of cocaine, NICHOLAS TARTAGLIONE,
the defendant, intentionally and knowingly killpd, and
counseled, commanded, induced, procured, and caused the
intentional killing of Urbano.Santiago, in and around the
vicinity of 419 Old Mountain Road in Otisville, New York, and
did aid and abet the same.
(Title 21, United States Code, Section 848(e)(1)(A);
Title 18, United States Code, Section 2.)
COUNT POUR
The Grand Jury further charges:
6. In or about April 2016, in the Southern District
of New York, while engaged in an offense punishable under
Section 841(b)(1)(A) of Title 21, United States Code, to wit, a
conspiracy to distribute, and to possess with the intent to
distribute, 5 kilograms and more of mixtures and substances
containing a detectable amount of cocaine, NICHOLAS TARTAGLIONE,
the defendant, intentionally and knowingly killed, and
counseled, commanded, induced, -procured, and caused the
intentional killing of Miguel Luna, in and around the vicinity
of 419 Old Mountain Road in Otisville, New York, and did aid and
abet the same.
(Title 21, United States Code, Section 848(e)(1)(A);
Title 18, United States Code, Section 2.)
3
EFTA00015475
Csase 17:24Fror -00832-R RE Mazument 22O Pike!' WISES Paaje45 ad 211
COUNT FIVE
The Grand Jury further charges:
7. In.or about April 2016, in the Southern District
of New York, -while engaged in an offense punishable under
Section 841(b)(1)(A) of Title 21, United States Code, to wit, a
conspiracy to distribute, and to possess with the intent to
distribute, 5 kilograms and more of mixtures and substances
containing a detectable amount of cocaine, NICHOLAS TARTAGLIONE,
the defendant, intentionally and knowingly killed, and
counseled, commanded, induced, procured, and caused the
intentional killing of Hector Gutierrez, in and around the
vicinity of 419 Old Mountain Road in Otisville, New York, and
did aid and abet the same.
(Title 21, United States Code, Section 848(e)(1)(A);
Title 18, United States Code, Section 2.)
COUNT SIX
The Grand Jury further charges:
B. On or about April 11, 2016, in the Southern
District of New York, NICHOLAS TARTAGLIONE, the defendant,
willfully and knowingly, during and in relation to a drug
trafficking crime for which he may be prosecuted in a court of
the United States, namely, the narcotics conspiracy charged in
Count One of this Indictment, did use and carry a firearm, and,
in furtherance of such drug trafficking crime, did possess a
4
EFTA00015476
Case 1726-cf-00832-RJOE Drunant 322 Flied OWDMIND Pape 5 adf ICL
firearm, and in the course of that drug trafficking crime did,
through the use of a firearm, cause the death of Urbano
Santiago, which killing was murder as defined in Title 18,
United States Code, Section 1111(a), and did aid and abet the
same.
(Title 18, United States Code, Sections 924(j) and 2.)
COUNT SEVEN
The Grand Jury further charges:
9. On or about April 11, 2016, in the Southern
District of.New York, NICHOLAS TARTAGLIONE, the defendant,
willfully and knowingly, during and in relation to a drug
trafficking crime for which he may be prosecuted in a court of
the United States, namely, the narcotics conspiracy charged in
Count One of this Indictment, did use and carry a firearm, and,
in furtherance of such drug trafficking crime, did possess a
firearm, and in the course of that drug trafficking Crime.did,
through the use of a firearm, cause the death of Miguel Luna,
which killing was murder as defined in Title 18, United States
Code, Section 1111(a), and did aid and abet the same.
(Title 18, United States Code, Sections 924(j) and 2.)
COUNT RIGHT
The Grand Jury further charges:
10. On or about April 11, 2016, in the Southern
District of New York, NICHOLAS TARTAGLIONE, the defendant,
5
EFTA00015477
Case 11200-00832-RAS DIICIIIIMMIE2Z0 Plaid OWES Paie 0'at 21
willfully and knowingly, during and in relation to a drug
trafficking crime for which he may be prosecuted in a court of
the United States, namely, the narcotics conspiracy charged in
Count One of this Indictment, did use and carry a firearm, and,
in furtherance of such drug trafficking crime, did possess a
firearm, and in the course of that drug trafficking crime did,
through the use of a firearm, cause the death of Hector
Gutierrez, which killing was murder as defined in Title 18,
United States Code, Section 1111(a), and did aid and abet the
same.
(Title 18, United States Code, Sections 924(j) and 2.)
COUNT NINE
The Grand Jury further charges:
11. On or about April 11, 2016, in the Southern
District of New York and elsewhere, NICHOLAS TARTAGLIONE, the
defendant, and others known and unknown, unlawfully and
knowingly did conspire to violate Title 18, United States Code,
Section 1201.
12. It was a part and an object of the conspiracy
that NICHOLAS TARTAGLIONE, the defendant, and others known and
unknown, would and did unlawfully seize, confine, inveigle,
decoy, kidnap, abduct, and carry away and hold for ransom and
reward and otherwise a person, and used a means, facility, and
instrumentality of interstate and foreign commerce in committing
6
EFTA00015478
Case 1726-cr-00832-RMK Danunant 32Cif IFii IO0/161/24D Page 13 ad ail
and in furtherance of the commission of the offense, to wit,
TARTAGLIONE and others known and unknown agreed to inveigle,
seize, and confine Martin Luna, Urbano Santiago, Miguel Luna,
and Hector Gutierrez in and around the Likquid Lounge.
Overt Act
13. In furtherance of the conspiracy and to effect
the illegal object thereof, the following overt act, among
others, was committed in the Southern District of New York and
elsewhere:
a. On or about April.11, 2016, NICHOLAS
TARTAGLIONE and others lured Martin Luna to the Likquid Lounge,
where TARTAGLIONE and others confined Martin Luna, Urbano
Santiago, Miguel Luna, and Hector Gutierrez and would not permit
them to leave the premises.
(Title 18, United States Code, Section 1201(c).)
COUNT TEN
The Grand Jury further charges:
14. On or about April 11, 2016, in the Southern
District of New York and elsewhere, NICHOLAS TARTAGLIONE, the
defendant, and others known and unknown, unlawfully, willfully,
and knowingly did seize, confine, inveigle, decoy, kidnap,
abduct, and carry away and hold for ransom and reward and
otherwise a person, and used a means, facility, and
instrumentality of interstate and foreign commerce in committing
7
EFTA00015479
Case 1722a-00832-RNE Danmeara 329 MS GOMM Paw S elf 21
and in furtherance of the commission of the offense, and did aid
and abet the same, to wit, TARTAGLIONE lured Martin Luna to the
Likquid Lounge and confined Martin Luna in and around the
Likquid Lounge, which resulted in the death of Martin Luna.
(Title 18, United States Code, Sections 1201(a)(1) and 2.)
COUNT ELEVEN
The Grand Jury further charges:
15. On or about April 11, 2016, in the Southern
District of New York and elsewhere, NICHOLAS TARTAGLIONE, the
defendant, and others known and unknown, unlawfully, willfully,
and knowingly did seize, confine, inveigle, decoy, kidnap,
abduct, and carry away and hold for ransom and reward and
otherwise a person, and used a means, facility, and
instrumentality of interstate and foreign commerce in committing
and in furtherance of the commission of the offense, and did aid
and abet the same, to wit, TARTAGLIONE and others seized and
confined Urbano Santiago in and around the Likquid Lounge and in
and around the vicinity of 419 Old Mountain Road in Otisville,
New York, which resulted in the death of Urbano Santiago.
(Title 18, United States Code, Sections 1201(a) (1) and 2.)
COUNT TWELVE
The Grand Jury further charges:
16. On or about April 11, 2016, in the Southern
District of New York and elsewhere, NICHOLAS TARTAGLIONE, the
8
EFTA00015480
Cancei72.06ecTODBIZFIKAEK Moe eninctertit2222, Filed OINCIfitra Page 2036031
defendant, and others known and unknown, unlawfully, willfully,
and knowingly did seize, confine, inveigle, decoy, kidnap,
abduct, and carry away and hold for ransom and reward and
otherwise a person, and used a means, facility, and
instrumentality of interstate and foreign commerce in committing
and in furtherance of the commission of the offense, and did aid
and abet the same, to wit, TARTAGLIONE and others seized and
confined Miguel Luna in and around the Likquid Lounge and in and
around the vicinity of 419 Old Mountain Road in Otisville, New
York, which resulted in the death of Miguel Luna.
(Title 18, United States Code, Sections 1201(a)(1) and 2.)
COUNT THIRTEEN
The Grand Jury further charges:
17. On or about April 11, 2016, in the Southern
District of New York and elsewhere, NICHOLAS TARTAGLIONE, the
defendant, and others known and unknown, unlawfully, willfully,
and knowingly did seize, confine, inveigle, decoy, kidnap,
abduct, and carry away and hold for ransom and reward and
otherwise a person, and used a means, facility, and
instrumentality of interstate and foreign commerce in committing
and in furtherance of the commission of the offense, and did aid
and abet the same, to wit, TARTAGLIONE and others seized and
confined Hector Gutierrez in and around the Likquid Lounge and
in and around the vicinity of.419 Old Mountain Road in
9
EFTA00015481
ramp J7:23-ot-00832- RAE Eratuarneintt 22-C2, FR kit c!/E6/519 111 wif
Otisville, New York, which resulted in the death of Hector
Gutierrez.
(Title 18, United States Code, Sections 1201(a)(1) and 2.)
COUNT FOURTEEN
The Grand Jury further charges:
18. On or about April 11, 2016, in the Southern
District of New York and elsewhere, NICHOLAS TARTAGLIONEv the
defendant, knowingly traveled in interstate and foreign commerce
and used the mails and any facility in interstate and foreign
commerce with intent to commit a crime of violence, namely,
assault and murder, to further an unlawful activity, namely,'a
business enterprise involving a controlled substance, and with
intent to promote, manage, establish, and carry on, and
facilitate the promotion, management, establishment, and
carrying on of the unlawful activity, and thereafter did perform
a crime of violence to further the unlawful activity, and did
aid and abet the same, and death resulted, to wit, TARTAGLIONE
arranged for Martin Luna to be lured to the Likquid Lounge,
where Luna was killed.
(Title 18, United States Code, Sections'1952
and 2.)
COUNT FIFTEEN
The Grand Jury further charges:
19. On or about April 11, 2016, in the Southern
District of New York and elsewhere, NICHOLAS TARTAGLIONE, the
10
EFTA00015482
Case J7 23c-00832-RAE Dnauurniantt 2242 Piked GIVDS/519 Page 12 aff 7aa
defendant, knowingly traveled in interstate and foreign commerce
and used the mails and any facility in interstate and foreign
commerce with intent to'commit a crime of violence, namely,
assault and murder, to further an unlawful activity, namely, a
business enterprise involving a controlled substance, and with
intent to promote, manage, establish, and carry on, and
facilitate the promotion, management, establishment, and
carrying on of the unlawful activity, and thereafter did perform
a crime of violence to further the unlawful activity, and did •
aid and abet the same, and death resulted, to wit, after Urbano
Santiago accompanied Martin Luna to the Likquid Lounge, where
Luna had been lured by TARTAGLIONE and others, Urbano Santiago
was held captive, transported to the vicinity of 419 Old
Mountain Road in Otisville, New York, and killed.
(Title 18, United States Code, Sections 1952
and 2.)
COUNT SIXTEEN •
The Grand Jury further charges:
20. On or about April 11, 2016, in the Southern
District of New York and elsewhere, NICHOLAS TARTAGLIONE, the
defendant, knowingly traveled in interstate and foreign commerce
and used the mails and any facility in interstate and foreign
commerce with intent to commit a crime of violence, namely,
assault and murder, to further an unlawful activity; namely, a
business enterprise involving a controlled substance, and with
11
EFTA00015483
Came F 216c-00832-RAE 0:1Grunnolt 2242, Riled WEE/519 123 coif ;'1
intent to promote, manage, establish, and carry on, and
facilitate the promotion, management, establishment, and
carrying on of the unlawful activity, and thereafter did perform
a crime of violence to further the unlawful activity, and did
aid and abet the same, and death resulted, to wit, after Miguel
Luna accompanied Martin Luna to the Likquid Lounge, where Martin
Luna had been lured by TARTAGLIONE and others, Miguel Luna was
held captive, transported to the vicinity of 419 Old Mountain
Road in Otisville, New York, and killed.
(Title 18, United States Code, Sections 1952
and 2.)
COUNT SEVENTEEN
The Grand Jury further charges:
21. On or about April 11, 2016, in the Southern
District of New York and elsewhere, NICHOLAS TARTAGLIONE, the
defendant, knowingly traveled in interstate and foreign commerce
and used the mails and any facility in interstate and foreign
commerce with intent to commit a crime of violence, namely,
assault and murder, to further an unlawful activity, namely, a
business enterprise involving a controlled substance, and with
intent to promote, manage, establish, and carry on, and
facilitate the promotion, management, establishment, and
carrying on of the unlawful activity, and thereafter did perform
a crime of violence to further the unlawful activity, and did
aid and abet the same, and death resulted, to wit, after Hector
12 '
EFTA00015484
Casi.J723-w-00832- RAE Datuarrentt 222. FRI laDg/E6'/ISD Page 13 di 21
Gutierrez accompanied Martin Luna to the Likquid Lounge, where
Luna had been lured by TARTAGLIONE and others, Hector Gutierrez
was held captive, transported to the vicinity of 41? Old
Mountain Road in Otisville, New York, and killed.
(Title 18, United States Code, Sections 1952
and 2.)
SPECIAL FINDINGS
22. Counts Two and Ten of this Indictment are
realleged and incorporated by reference as though fully set
forth herein. As to Counts Two and Ten, alleging the,
intentional killing of Martin Luna in furtherance of a drug
trafficking crime (Count Two) and the kidnapping resulting in
death of Martin Luna (Count Ten), the defendant NICHOLAS
TARTAGLIONE:
a. was 18 years of age or older at the time of
the offense (Title 18, United States Code, Section 3591(a)(2));
b. intentionally killed the victim (Title 18,
United States Code, Sectiom 3591(a)(2)(A));
c. intentionally inflicted serious bodily
injury that resulted in the death of the victim (Title 18,
United States Code, Section 3591(a)(2)(B));
d. intentionally participated in an act,
contemplating that the life of a person would be taken and
intending that lethal force would be used in connection with a
13
EFTA00015485
CameF 23c-00832-RAE Dzoaninantt 22-C2- HR GIC/D5//119 1155 at 21
person, other than one of the participants in the offense, and
the victim died as a direct result of the act (Title 18, United
States Code, Section 3591(a)(2)(C));
e. intentionally and specifically engaged in an
act of violence, knowing that the act created a grave risk of -
death to a person, other than one of the participants in the
offense, such that participation in the act constituted a
reckless disregard for human life and the victim died as a
direct result of the act (Title 18, United States Code, Section
3951(a)(2)(8);
f. caused the death, and injury resulting in
death, of the victim, during the commission of an offense under
Title 18, United States Code, Section 1201 (kidnapping) (Title
18, United States Code, Section 3592(c)(1));
g. committed the offense in an especially
.heinous, cruel, and depraved manner in that it involved torture
and serious physical abuse to the victim (Title 18, United
States Code, Section 3592(0)(6);
h. committed the offense after substantial
planning and premeditation to cause the death of a person (Title
18, United States Code, Section 3592(c)(9)); and
i. intentionally killed and attempted to kill
more than one person in a single criminal episode (Title 18,
United States Code, Section 3592(c)(16)).
14
EFTA00015486
Came 3723-ci-00832-RhE ELEaumnreirtt 22-(2. Riled Og/E61/19 ILS et 21
23. Counts Three, Six, and Eleven of this Indictment
are realleged and incorporated by reference as though fully set
forth herein. As to Counts Three, Six, and Eleven, alleging the
intentional killing of Urbano Santiago in furtherance of a drug
trafficking crime (Count Three), the murder of Urbano Santiago
through the use of a firearm in furtherance of a drug
trafficking crime (Count Six), and the kidnapping resulting in
death of Urbano Santiago (Count Eleven), the defendant NICHOLAS
TARTAGLIONE:
a. was 18 years of age or older at the time of
the offense (Title 18, United States Code, Section 3591(a)(2));
b. intentionally participated in an act,
contemplating that the life of a person would be taken and
intending that lethal force would be used in connection with a
person, other than one of the participants in the offense, and
the victim died as a direct result of the act (Title 18, United
States Code, Section 3591(a)(2)(C));
c. intentionally and specifically engaged in an
act of violence, knowing that the act created a grave risk of
death to a person, other than one of the participants in the
offense, such that participation in the act constituted a
reckless disregard for human life and the victim died as a
direct result of the act (Title 18, United States Code, Section
3951(a) (2) (D) ;
15
EFTA00015487
rwsip 7723c-00832- RRE DzoonnEnitt aza, HR OIDVE6/7.0 Page 1ff aft 21
d. caused the death, and injury resulting in
death, of the victim, during the commission of an offense under
Title 18, United States Code, Section 1201 (kidnapping) (Title
18, United States Code, Section 3592(c)(1));
e. committed the offense after substantial •
planning and premeditation to cause the death of a person (Title
18, United States Code, Section 3592(c)(9)); .and
f. intentionally killed more than one person in
a single criminal episode (Title 18, United States Code, Section
3592(c)(16)).
24. Counts Four, Seven, and Twelve of this Indictment
are realleged and incorporated by reference as though fully set
forth herein. As to Four, Seven, and Twelve, alleging the
intentional killing of Miguel Luna in furtherance of a drug
trafficking crime (Count Four), the murder of Miguel Luna
through the use of a firearm in furtherance of a drug
trafficking crime (Count Seven), and the kidnapping resulting in
death of Miguel Luna (Count Eleven), the defendant NICHOLAS
TARTAGLIONE:
a. was 18 years of age or older at the time of
the offense (Title 18, United States Code, Section 3591(a).(2));
b. intentionally participated in an act,
contemplating that the life of a person would be taken and
intending that lethal force would be used in connection with a
16
EFTA00015488
rag*,37:2.(C5c-00832-142 /41E DINOLITIFFEnt 12-2' Riled (DVEGITECD 1113 a11211
person, other than one of the participants in the offense, and
the victim died as a direct result of the act (Title 18, United
States Code, Section 3591(a) (2)(C));
c. intentionally and specifically engaged in an
act of violence, knowing that the act created a grave risk of
death to a person, other than one of the participants in the
offense, such that participation in the act constituted a
reckless disregard for human life and the victim died as a
direct result of the act (Title 16, United States Code, Section
3951(a) (2)(D);
d. caused the death, and injury resulting in
death, of the victim, during the commission of an offense under
Title 18, United States Code, Section 1201 (kidnapping) (Title
18, United States Code, Section 3592(c)(1));
e. committed the offense after substantial
planning and premeditation to cause the death of a person (Title
18, United States Code, Section 3592(c)(9)); and
f. intentionally killed more than one person in
a single criminal episode (Title 18, United States Code, Section
3592(c)(16)).
25. Counts Five, Eight, and Thirteen'of this
Indictment are realleged and incorporated by reference as though
fully set forth herein. As to Counts Five,' Eight, and Thirteen,
alleging the intentional killing of Hector Gutierrez in
17
EFTA00015489
Cleixe Flabc-00832-RPE 0:1Grunrentt aza e!/E6//2I0 Mot 21
furtherance of a drug trafficking crime (Count Five), the murder
of Hector Gutierrez through the use of a firearm in furtherance
of a drug trafficking crime (Count Eight), and the kidnapping
resulting in death of Hector Gutierrez (Count Thirteen), the
defendant NICHOLAS TARTAGLIONE:
a. was 18 years of age or older at the time of
the offense (Title 18, United States Code, Section 3591(a)(2));
b. intentionally participated in an act,
contemplating that the life of a person would be taken and
intending that lethal force would be used in connection with a
person, other than one of the participants in the offense, and
the victim died as a direct result of the act (Title 18, United
States Code, Section 3591(a) (2)(C));
c. intentionally and specifically engaged in an
act of violence, knowing that the act created a grave risk of
death to a person, other than one of the participants in the
offense, such that participation in the act constituted a
reckless disregard for human life and the victim died as a
direct result of the act (Title 18, United States Code, Section
3951(a)(2)(D);
d. caused the death, and injury resulting in
death, of the victim, during the commission of an offense under
Title 18, United States Code, Section 1201 (kidnapping) (Title
18, United States Code, Section 3592(c)(1));
18
EFTA00015490
Came7723c-00832-RAE DIDrunnantt an Riled ilDVMED 23D aff fl
e. committed the offense after substantial
planning and premeditation to cause the death of a person (Title
18, United States Codes Section 3592(c)(9)); and
f. intentionally killed more than one person in
a single criminal episode (Title 18, United States Code, Section
3592(c)(16)).
e new0401
GEOFF /3. BERMAN
United ates Attorney
19
EFTA00015491
Case 2:2ffrot-0 0832- RAE Mumma nr, 68/115//12 Page 20. aff 711
Form No. USA-333-274 (Ed. 9-25-58)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
NICHOLAS TARTAGLIONE,
Defendant.
SUPERSEDING INDICTMENT
S4 16 Cr. 832 (KMK)
(21 U.S.C. SS 846 and 848(e);
18 U.S.C. SS 924(j), 1201(c),
1201(a)(1), 1952, and 2.)
GEOFFREY S. BERMAN
Foreperson Unite• tates Attorney.
EFTA00015492