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Case No. 2:18-cr-00422-PHX-SMB

DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR RECUSAL 

Thomas H. Bienert, Jr. (CA Bar No.135311, admitted pro hac vice)

Whitney Z. Bernstein (CA Bar No. 304917, admitted pro hac vice)

BIENERT | KATZMAN PC

903 Calle Amanecer, Suite 350

San Clemente, California 92673

Telephone: (949) 369-3700

Facsimile: (949)369-3701

tbienert@bienertkatzman.com

wbernstein@bienartkatzman.com

Attorneys for James Larkin

Paul J. Cambria, Jr. (NY Bar No.1430909, admitted pro hac vice)

Erin E. McCampbell (NY Bar No. 4480166, admitted pro hac vice)

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

pcambria@lglaw.com

emccampbell@lglaw.com

Attorneys for Michael Lacey

Additional counsel listed on next page

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Michael Lacey, et al.,

Defendants.

CASE NO. 2:18-cr-00422-PHX-SMB

DEFENDANTS’ REPLY IN SUPPORT 

OF MOTION FOR RECUSAL 

(Oral Argument Requested)

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Case No. 2:18-cr-00422-PHX-SMB

DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR RECUSAL

Gary S. Lincenberg (CA Bar No. 123058, admitted pro hac vice)

Ariel A. Neuman (CA Bar No. 241594, admitted pro hac vice)

Gopi K. Panchapakesan (CA Bar No. 279856, admitted pro hac vice)

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW PC

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: (310) 201-2100

Facsimile: (310) 201-2110

glincenberg@birdmarella.com

aneuman@birdmarella.com

gpanchapakesan@birdmarella.com

Attorneys for John Brunst

Bruce Feder (AZ Bar No. 004832)

FEDER LAW OFFICE PA

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

Telephone: (602) 257-0135

bf@federlawpa.com

Attorney for Scott Spear

David Eisenberg (AZ Bar No. 017218)

DAVID EISENBERG PLC

3550 N. Central Ave., Suite 1155

Phoenix, Arizona 85012

Telephone: (602) 237-5076

Facsimile: (602) 314-6273

david@deisenbergplc.com

Attorney for Andrew Padilla

Joy Malby Bertrand (AZ Bar No. 024181)

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

Telephone: (602)374-5321

Facsimile: (480)361-4694

joy.bertrand@gmail.com

Attorney for Joye Vaught

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i Case No. 2:18-cr-00422-PHX-SMB

TABLE OF CONTENTS

Table of Contents

I. INTRODUCTION............................................................................................................................ 1

II. ARGUMENT ..................................................................................................................................... 2

A. The Government Does Not Dispute That AG Brnovich Has Made Statements and Taken 

Actions Targeting Backpage.com and Defendants. ............................................................................... 2

B. The Recusal Motion Was Timely...................................................................................................... 4

C. AG Brnovich Has Interests Under §§ 455(b)(4) & (5) That May Be Affected By This 

Litigation. ..................................................................................................................................................... 7

D. A Reasonable Person With Knowledge of the Facts Would Question the Court’s 

Impartiality................................................................................................................................................. 10

III. CONCLUSION................................................................................................................................ 11

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i Case No. 2:18-cr-00422-PHX-SMB

TABLE OF AUTHORITIES

Table of Authorities

Page(s)

Cases

Akins v. Knight,

2016 WL 127594 (W.D. Mo. Jan. 11, 2016).......................................................................................... 10

Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.,

956 F.3d 1228 (10th Cir. 2020) ............................................................................................................... 10

Bivens Gardens Office Building, Inc. v. Barnett Banks of Fla., Inc.,

140 F.3d 898 (11th Cir. 1998) ...............................................................................................................6, 7

Blixseth v. Yellowstone Mountain Club, LLC,

742 F.3d 1215 (9th Cir. 2014) ................................................................................................................... 1

Clemens v. U.S. Dist. Court for Cent. Dist. of Cal.,

428 F.3d 1175 (9th Cir. 2005) .............................................................................................................1, 10

Drake v. Birmingham Bd. of Educ.,

476 F. Supp. 2d 1341 (N.D. Ala. 2007).................................................................................................... 5

E. & J. Gallo Winery v. Gallo Cattle Co.,

967 F.2d 1280 (9th Cir. 1992) ................................................................................................................... 6

E. & J. Gallo Winery v. Encana Energy Serv., Inc.,

2004 U.S. Dist. LEXIS 29380, *13-15 (E.D. Cal. Feb. 20, 2004) ........................................................ 9

Guardian Pipeline, L.L.C. v. 950.80 Acres of Land,

525 F.3d 554 (7th Cir. 2008)..................................................................................................................5, 8

Hollingsworth v. Perry,

570 U.S. 693 (2013)................................................................................................................................... 11

In re New Mexico Nat. Gas Antitrust Litig.,

620 F.2d 794 (10th Cir. 1980) ................................................................................................................... 9

In re Virginia Elec. & Power Co.,

539 F.2d 357 (4th Cir. 1976)..................................................................................................................8, 9

Listecki v. Official Committee of Unsecured Creditors,

780 F.3d 731 (7th Cir. 2015)...................................................................................................................... 5

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ii Case No. 2:18-cr-00422-PHX-SMB

TABLE OF AUTHORITIES

Lyman v. City of Albany,

597 F. Supp. 2d 301 (N.D.N.Y. 2009) ..................................................................................................... 7

Melendres v. Arpaio,

2009 WL 2132693 (D. Ariz. July 15, 2009) .......................................................................................9, 11

Melendres v. Arpaio,

2015 WL 13173306 (D. Ariz. July 10, 2015)...................................................................................6, 8, 9

Nachshin v. AOL, LLC,

663 F.3d 1034 (9th Cir. 2011) ................................................................................................................. 10

National Abortion Fed. v. Ctr. for Med. Progress,

257 F. Supp. 3d 1084 (N.D. Cal. 2017).................................................................................................. 10

Perry v. Schwarzenegger,

630 F.3d 909 (9th Cir. 2011).................................................................................................................... 11

Potashnick v. Port City Const. Co.,

609 F.2d 1101 (5th Cir. 1980) .......................................................................................................1, 4, 7, 8

Preston v. United States,

923 F.2d 731 (9th Cir. 1991)..............................................................................................................4, 5, 6

SCA Services, Inc. v. Morgan,

557 F.2d 110 (7th Cir. 1977)..............................................................................................................7, 8, 9

Summers v. Singletary,

119 F.3d 917 (11th Cir. 1997) ................................................................................................................... 7

Twist v. U.S. Dep’t of Justice,

344 F. Supp. 2d 137 (D.D.C. 2004).......................................................................................................... 2

United States v. Balistrieri,

779 F.2d 1191 (7th Cir. 1985) ................................................................................................................... 5

United States v. Holland,

519 F.3d 909 (9th Cir. 2008)..................................................................................................................1, 3

United States v. Owens,

902 F.2d 1154 (4th Cir. 1990) ................................................................................................................... 7

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iii Case No. 2:18-cr-00422-PHX-SMB

TABLE OF AUTHORITIES

United States v. Rogers,

119 F.3d 1377 (9th Cir. 1997) ................................................................................................................... 7

Wells Fargo Bank NA v. Wyo Tech Investment Group LLC,

2019 WL 4736775 (D. Ariz. Sept. 27, 2019) ........................................................................................... 7

Statutes

28 U.S.C. § 455(a)........................................................................................................................................2, 7

28 U.S.C. § 455(b)............................................................................................................................................ 2

28 U.S.C. § 455(b)(1)....................................................................................................................................... 5

28 U.S.C. §§ 455(b)(4) and 455(b)(5)(iii) ..................................................................................................2, 7

Rules

Fed. R. Civ. P. 71.1.......................................................................................................................................... 8

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1 Case No. 2:18-cr-00422-PHX-SMB

DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR RECUSAL

I. INTRODUCTION

Responding to Defendants’ recusal motion, the government posits the recusal motion is 

premised on the Court’s inability to “preside impartially because of her husband’s views” and that the 

recusal motion would require the Court “to recuse in every case involving subjects that the AG’s 

Office or Attorney General Mark Brnovich [] have addressed.” Resp. at 1. Neither is correct.

Defendants have not moved for recusal on the grounds the Court has been or will be biased. 

Nor have Defendants moved for recusal because Judge Brnovich is married to the Arizona 

Attorney General or because AG Brnovich and the Arizona Attorney General’s Office have taken

public stances on matters of public policy (white collar crime, prostitution, sex trafficking, etc.) or 

prosecuted other cases involving those areas of the law. Those facts alone would not require recusal. 

Instead, Defendants have moved for recusal because AG Brnovich has interests that may be 

substantially affected by the outcome of this case and based on the appearance of a lack of impartiality 

arising from AG Brnovich’s statements and actions that bear directly on this case and these Defendants—

statements and actions the government does not contest in its response. On either ground, it is 

irrelevant whether Judge Brnovich subjectively believes she is capable of impartially presiding over 

the case. If AG Brnovich has an interest and it could be substantially affected, Judge Brnovich must 

recuse, even if she believes she can be impartial. As to appearances, the standard is objective: whether 

“a reasonable person with knowledge of the facts would conclude that the judge’s impartiality might 

reasonably be questioned.” Blixseth v. Yellowstone Mountain Club, LLC, 742 F.3d 1215, 1219 (9th Cir. 

2014). Section 455 “clearly mandates that it would be preferable for a judge to err on the side of 

caution and disqualify [herself] in a questionable case” and “any inconvenience which does arise [from 

recusal] is more than outweighed by the need to protect the dignity and integrity of the judicial 

process.”1 Potashnick v. Port City Const. Co., 609 F.2d 1101, 1112 (5th Cir. 1980); accord United States v. 

1 The government claims the Court has a “strong duty to sit,” but cited a Ninth Circuit decision out 

of context, when the Court actually held that a judge has “as strong a duty to sit when there is no legitimate 

reason to recuse as [s]he does to recuse when the law and facts require.” Clemens v. U.S. Dist. Court for 

Cent. Dist. of Cal., 428 F.3d 1175, 1179 (9th Cir. 2005) (emphasis added). The government also claims 

prejudice from a recusal, but identifies none. Even if the government would be prejudiced, the 

prejudice would be outweighed by the need to protect the judicial process. The government suggests 

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2 Case No. 2:18-cr-00422-PHX-SMB

DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR RECUSAL

Holland, 519 F.3d 909, 912 (9th Cir. 2008) (“If it is a close case, the balance tips in favor of recusal.”). 

The undisputed facts show AG Brnovich (and others acting on his behalf): have railed against 

the particular business at the core of this case (Backpage.com, LLC); have made public statements 

that reasonable people would conclude mean AG Brnovich believes Defendants are guilty of the 

crimes charged in this case; have directed the public to websites making similar claims and containing 

inflammatory and highly prejudicial statements about Backpage.com and Defendants; and have 

directly or indirectly vouched for the credibility of many of the government’s witnesses in this case. 

These statements and actions targeting Backpage.com and Defendants make this case unlike any the 

government cites in its response and provide ample basis for a reasonable person to question Judge 

Brnovich’s impartiality—particularly given the political implications of AG Brnovich’s positions 

relating to Backpage.com and Judge Brnovich’s involvement in AG Brnovich’s political campaigns.2 

AG Brnovich’s statements and actions require the Court to recuse a) under 28 U.S.C. §§ 455(b)(4) 

and 455(b)(5)(iii) because AG Brnovich has interests that could be substantially affected by the 

outcome of this proceeding and b) under 28 U.S.C. § 455(a) because AG Brnovich’s interests, and 

public statements and actions, create an appearance of partiality. See Declaration of Vaughn R. 

Walker, Exh. A. 

II. ARGUMENT

A. The Government Does Not Dispute That AG Brnovich Has Made Statements 

and Taken Actions Targeting Backpage.com and Defendants.

In its response, the government does not dispute the core facts underlying the recusal motion: 

that recusal is an “extreme measure,” but, again, quotes those words out of context. Twist v. U.S. 

Dep’t of Justice, 344 F. Supp. 2d 137, 142 (D.D.C. 2004) (“Recusal is an extreme measure that is required 

only in circumstances specified in 28 U.S.C. § 455(b).”) (emphasis added). 

2 To this day, AG Brnovich has campaign photos and videos online that prominently feature Judge 

Brnovich. See, e.g., https://www.mark4az.com/photos-videos/; 

https://www.youtube.com/watch?v=UhIP3GCB6GI; 

https://www.youtube.com/watch?v=ALrAoygmcnY. AG Brnovich also has publicly touted Judge 

Brnovich’s elevation to the Federal bench at his campaign events. See, e.g., 

https://m.youtube.com/watch?v=OJSRn4F6zV8. Defendants do not suggest there is anything

untoward with Judge Brnovich having an interest in her spouse’s success, political or otherwise, or 

vice versa with respect to AG Brnovich—only that AG Brnovich’s statements and actions mean that 

Judge Brnovich should not preside over this particular case. 

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3 Case No. 2:18-cr-00422-PHX-SMB

DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR RECUSAL

• On August 16, 2017, AG Brnovich wrote a letter to Congress “highlighting the potential 

complicity of online classified-ad company Backpage.com in soliciting sex traffickers’ ads” 

and claiming Backpage.com “constructed [its] business model[] around advertising income 

gained from participants in the sex trade,” “facilitate[ed]—and profit[ed] from—these illegal 

activities,” “profit[ed] from prostitution and crimes against children,” and used “the CDA 

as a shield” to keep it beyond “the reach of law enforcement.” Motion for Recusal (“Mot.”) 

(Dkt. 1059), Exh. 9. AG Brnovich issued a press release making similar claims (Mot., Exh. 

8) and promoted both via Twitter. Mot., Exh. 10. 

• AG Brnovich has published several booklets on human trafficking saying that human 

trafficking is one of “the most dangerous and growing threats to children in Arizona,” one 

of which decried Backpage.com as “an online classified advertising site used frequently to 

purchase sex,” claiming “over 300 ads are placed each day in Phoenix on Backpage.com for 

adult services—with an estimated 20% for girls under 18.” Mot., Exh. 1. The booklets’ 

claims are supported with citations to the United States Department of Justice and to 

organizations whose current or former leadership are listed as government witnesses in this 

case. The booklets also direct readers to the websites of numerous advocacy groups, many 

of which are associated with the government’s trial witnesses in this case, on which readers 

will find inflammatory and highly prejudicial comments about Backpage.com and some 

Defendants.3 Id. 

• AG Brnovich, via his Twitter account and his website, promoted a webinar, presented under 

his name, that: claimed there were “so many websites that are dedicated to posting 

advertisements for sex with underage children;” said “Backpage.com . . . [was] where the vast 

majority of all advertisements were posted for sex trafficking and sexual exploitation;” 

identified organizations associated with two of the government’s witnesses as “the two very 

trustworthy sources that we always want to use;” and told viewers they could obtain more 

information from four organizations whose websites include inflammatory and highly 

prejudicial material about Backpage.com and Defendants—organizations associated with at 

least seven of the government’s witnesses. Mot. at 3.

• AG Brnovich, via his Twitter account and his website, directed the public to the website of 

a “partner” organization containing inflammatory and highly prejudicial material relating to 

Backpage.com and Defendants. That website trumpets the purportedly “infamous story of 

Backpage.com’s exploitation and trafficking of women and children” and claims four 

Defendants sought to “abscond[] with millions of dollars in illegal profits from their nowshuttered sex business,” but were “caught red-handed attempting to steal away their ill-gotten 

3 The government did not dispute that it intends to put at issue during the trial of this case many of 

the claims in AG Brnovich’s booklets and on the websites to which AG Brnovich directs the public, 

nor did it dispute those claims “will be hotly contested at trial.” Mot. at fn. 5. The government 

suggests these references in the booklets and on the websites are of no consequence, because few 

identify Defendants individually, but the government plainly intends to vilify Backpage.com at trial 

and, whether through its conspiracy claims or otherwise, claim that Defendants individually are 

responsible for whatever Backpage.com may have done. The government does not bother to contend

otherwise. As such, it is of no consequence whether AG Brnovich, his booklets, or the websites to 

which he refers the public vilify Backpage.com or Defendants individually. 

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4 Case No. 2:18-cr-00422-PHX-SMB

DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR RECUSAL

profits to prevent victims from ever recovering a penny’s worth of compensation.” The 

website expressly references this criminal case. Mot., Exh. 15.

• AG Brnovich, via his Twitter account and his website, directed the public to the website of 

an organization claiming “Backpage.com [is] widely viewed as responsible for the explosion 

of sex trafficking in the United States” and promoting its conferences that regularly featured 

as presenters one of the lead prosecutors on this case (DOJ Trial Attorney Reginald Jones) 

(as well as other representatives of the Department of Justice) and law enforcement officers 

and fact witnesses the government says it will call as witnesses in this case. Mot., Exhs. 17 

& 18.

The government dismisses these statements and actions, and AG Brnovich’s resulting interests, as 

“remote,” “indirect” and “speculative” (Resp. at 2 and 12-13), but AG Brnovich’s statements and 

actions directly target Backpage.com and Defendants and are part of AG Brnovich’s high-profile 

public stance on trafficking—a high-profile stance that the government acknowledges (Resp. at 8). 

B. The Recusal Motion Was Timely.

In the Ninth Circuit, “no per se rule exists regarding the time frame in which recusal motions 

should be filed,” but “recusal motions should be filed with reasonable promptness after the ground for 

such a motion is ascertained.” Preston v. United States, 923 F.2d 731, 733 (9th Cir. 1991) (emphasis supplied). 

In Preston, the district court denied as untimely a recusal motion filed shortly after the court denied a 

request to extend the cutoff date for discovery and “approximately eighteen months” after the 

transfer of the cases to the court. Id. The Ninth Circuit reversed, holding that the recusal motion 

was timely, notwithstanding the government’s claim that the movants sat on their knowledge of the 

grounds for recusal until after the district court denied the discovery motion. Id. at 733 and n.3. The 

Ninth Circuit said “counsel asserts that he did not learn of [the basis for recusal] until ten days before 

the first recusal motion was filed;” “[t]his allegation is uncontroverted;” and “the government offers 

us nothing but speculation that the heirs were ‘utiliz[ing] a disqualification issue as part of [their] trial 

strategy.’” Id. at 733 and n.3 (citing Potashnick, 609 F.2d at 1115).

The timeliness of Defendants’ recusal motion cannot be judged by when they knew that AG 

Brnovich was Arizona’s Attorney General or when they knew his political platform included a strong 

anti-trafficking agenda—as those are not the grounds for their recusal motion. Rather, the recusal 

motion is based on AG Brnovich’s statements and actions that bear on this case and these Defendants. 

The government does not controvert Defendants’ assertion that they first learned of AG Brnovich’s 

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DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR RECUSAL

booklets on September 10, 2020, less than two weeks before filing their recusal motion, or that 

Defendants’ discovery of the booklets caused them to investigate further and learn the remaining 

facts on which their recusal motion is based.4 As in Preston, the government offers only speculation 

that Defendants must have known these facts—because they were available on the Internet—but 

that assumes, of course, that Defendants had scavenged the Internet to learn those facts. They did 

not do that until after stumbling across AG Brnovich’s booklet on September 10, 2020.5 See

Declaration of Counsel, Exh. B.

4 The government suggests the Court can “make credibility determinations” and “contradict the 

evidence with facts drawn from [her] own personal knowledge,” citing United States v. Balistrieri, 779 

F.2d 1191, 1202 (7th Cir. 1985), but a) the case is an out-of-circuit decision, b) the case is contrary to 

Preston, 923 F.2d at 733, and c) the holding was limited to 28 U.S.C. § 455(b)(1) (actual bias), which 

Defendants have not moved under here.

5 The government claims Defendants turned a “blind eye” to facts alerting them to grounds for 

recusal, but cites no facts beyond AG Brnovich being Arizona’s Attorney General and having an antitrafficking agenda—and those facts are not the grounds upon which the Defendants have moved for 

recusal and those facts neither justify recusal nor put Defendants on notice of AG Brnovich’s 

statements and actions related to Backpage.com and this case. The government cites no authority 

holding parties have an affirmative obligation to ferret out recusal grounds, as the law imposes no 

such obligation. Listecki v. Official Committee of Unsecured Creditors, 780 F.3d 731, 750 (7th Cir. 2015) 

(“[A] party does not have an obligation to discover any potentially disqualifying information that is in 

the public record. The onus is on the judge to ensure any potentially disqualifying information is 

brought to the attention of the litigants. . . . It would be unreasonable, unrealistic and detrimental to 

our judicial system to expect litigants to investigate every potentially disqualifying piece of information 

about every judge before whom they appear. ‘[L]itigants (and, of course, their attorneys) should 

assume the impartiality of the presiding judge, rather than pore through the judge’s private affairs and 

financial matters. . . .’”); Preston, 923 F.2d at 732 & 733 n. 3 (recusal motion timely even though the 

underlying information had been published in the newspaper the prior year, as counsel averred he 

had not seen it). 

The government’s cases are readily distinguished by their facts. E.g. Drake v. Birmingham Bd. of 

Educ., 476 F. Supp. 2d 1341, 1347 (N.D. Ala. 2007) (defendant school board’s disqualification motion 

based on judge becoming a deacon at a mega-church where the plaintiff also was a deaconess was 

untimely because a school board member also was a deaconess and knew the plaintiff was a deaconess 

and also knew the judge was a prospective deacon, providing constructive notice to the school board 

and presenting the “classic case” of counsel seeking “to use the disqualification issue as part of a trial 

strategy” by “turning a blind eye to these facts”); Guardian Pipeline, L.L.C. v. 950.80 Acres of Land, 525 

F.3d 554, 558 (7th Cir. 2008) (Fed. Civ. P. “Rule 71.1(h)(2)(C) provides that litigants may examine a 

proposed commissioner at the outset; a litigant who lets this opportunity pass, then looks up the 

commissioners in Martindale–Hubbell after the proceedings have concluded, has no one to blame 

but himself.”).

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6 Case No. 2:18-cr-00422-PHX-SMB

DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR RECUSAL

The government argues that a party who “moves for recusal after adverse ruling [sic] is 

presumed to be filing for manipulative purposes,” Resp. at 1-2, but that is not the law and the case 

the government cited said nothing of the sort. E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 

1295-96 (9th Cir. 1992). To the contrary, the court in Gallo held “there is no per se rule that recusal 

motions must be made at a fixed point in order to be timely,” but such motions “should be filed with 

reasonable promptness after the ground for such a motion is ascertained.’” Gallo, 967 F.2d at 1295

(citing Preston, 923 F.2d at 733). The Ninth Circuit ultimately concluded that “the recusal statute [was] 

being misused for strategic purposes” in that case, because, after losing at trial, defense counsel 

repeatedly told the district court he would file a recusal motion but never did so.6 Id. at 1296. And, 

in any event, the government’s suggestion that Defendants “strategically” sat on facts justifying 

recusal for a year and a half, while the Court denied no fewer than eight substantive motions, is 

absurd—and wrong.7 See Declaration of Counsel, Exh. B.

The government claims some courts “impose an automatic waiver” if “a party moves for 

recusal after suffering adverse rulings” (Resp. at 7), but, yet again, the case to which the government 

cites held nothing of the sort. Bivens Gardens Office Building, Inc. v. Barnett Banks of Fla., Inc., 140 F.3d 

898, 913 (11th Cir. 1998). Instead, the case held, rather unremarkably, that a party cannot sit on 

knowledge of grounds for removal in a gambit to use recusal for a second bite at the apple: “Plaintiffs’ 

attorneys were aware a full three months before this case went to trial [of the basis for recusal], [y]et 

they made a strategic decision not to raise the issue until they saw how the trial came out. They . . . 

6 The government also cites Melendres v. Arpaio, 2015 WL 13173306, at *13 (D. Ariz. July 10, 2015) 

(Melendres II), but the court in Melendres II cited only Gallo to support the proposition—and Gallo not 

only provides no support, but is contrary. Moreover, later in Melendres II the court cited the actual 

holding of Gallo: “The Ninth Circuit has cautioned that a party that unduly delays the filing of a 

recusal motion is presumed to be filing it for manipulative purposes.” Id. at *15. 

7 Dkt. 793 (Order Denying Motion to Dismiss on First Amendment Grounds) (Oct. 24, 2019); Dkt. 

839 (Order Denying Motion to Compel Discovery Regarding Servers) (Jan. 7, 2020); Dkt. 840 (Order 

Denying Motion to Dismiss Based on Section 230) (Jan. 8, 2020); Dkt. 844 (Order Denying Motion 

to Dismiss for Grand Jury Abuse) (Jan. 9, 2020); Dkt. 870 (Order Denying Motion for Bill of 

Particulars) (Feb. 6, 2020); Dkt. 878 (Order Denying Motion to Sever) (Feb. 10, 2020); Dkt. 946 

(Order Denying Motion to Dismiss for Failing to Allege Necessary Elements of Travel Act) (May 4, 

2020); Dkt. 1028 (Order Denying Motion to Compel Production of Brady Material) (Jun. 26, 2020).

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made a carefully thought out, coldly calculated, eyes open decision not to raise the issue and instead 

to gamble on winning anyway.” Id. The facts in Bivens are not remotely like the facts here, where 

Defendants filed their motion within two weeks of discovering facts supporting the motion.8

C. AG Brnovich Has Interests Under §§ 455(b)(4) & (5) That May Be Affected By 

This Litigation.

The government claims that Section 455(b)(4) applies only to “financial or pecuniary interests 

of some variety” (Resp. at 9), but that is wrong. First, nothing in the statutory language suggests the 

term is so limited. Second, although financial interests are, far and away, the most common interests 

causing recusals, both the Fifth Circuit and the Seventh Circuit have held that an “interest” under 

Section 455 does not have to be a financial interest. Potashnick, 609 F.2d at 1113 (“The language of 

section 455(b)(5)(iii) referring to ‘an interest’ does not require that the interest of the judge’s lawyerrelative be financial . . . . [T]he congressional drafters recognized that noneconomic interests may 

affect a judge’s bias or prejudice.”); SCA Services, Inc. v. Morgan, 557 F.2d 110, 115-16 (7th Cir. 1977) 

(“The language of the amended statute [Section 455], in contrast to its predecessor, does not require 

that the interest be financial . . . . [T]he Congressional drafters recognized that non-economic interests 

8 The government cites other cases holding recusal motions were untimely, but those cases also are 

inapposite, as their facts differ markedly. United States v. Rogers, 119 F.3d 1377, 1380 (9th Cir. 1997) 

(“[I]t is clear that Rogers was aware of the asserted grounds for Judge Tevrizian’s disqualification as 

early as March 11, 1994. His failure to make any formal motion until more than one and one-half 

years after he was aware of the grounds for disqualification—and almost nine months after his 

resentencing—renders his motion untimely.”); Summers v. Singletary, 119 F.3d 917, 921 (11th Cir. 1997) 

(denying motion to disqualify as untimely where “[b]oth Summers and his counsel were present when 

the circumstances underlying [Summers’] motion arose,” but they “did not raise the issue until after 

an adverse decision”); United States v. Owens, 902 F.2d 1154, 1156 (4th Cir. 1990) (“Even prior to the 

time of his plea, Owens already knew all the essential facts on which he based his recusal motion. 

Yet, he chose to wait to seek Judge Haden’s recusal until after he learned what sentence the judge 

imposed. This is manifestly too late.”); Lyman v. City of Albany, 597 F. Supp. 2d 301, 307-09 (N.D.N.Y. 

2009) (“the Motion for recusal was made, not only more than 20 months after all relevant information 

was available to the Plaintiff, but shortly after the Court issued an order dismissing parts of Plaintiff’s 

Amended Complaint”); Wells Fargo Bank NA v. Wyo Tech Investment Group LLC, 2019 WL 4736775, at 

*9 (D. Ariz. Sept. 27, 2019) (“This is a textbook case of a litigant being aware of information at the 

start of a case, saying nothing, and then belatedly seeking recusal after becoming dissatisfied with the 

judge’s rulings . . .”).

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may affect a judge’s bias or prejudice.”).9 Third, with the exception of the Melendres cases, none of 

the cases the government cites even considered whether noneconomic interests might require recusal

or actually held that only financial interests can require recusal under Section 455. 

In In re Virginia Elec. & Power Co., 539 F.2d 357 (4th Cir. 1976), the district court recused in a 

suit brought by Virginia Electric to recover damages from a fabricator of equipment for a nuclear 

power plant. If Virginia Electric prevailed in the suit, the judge, as a customer of Virginia Electric, 

stood to benefit, whether directly or indirectly, by an amount estimated to be $70-$100. The Fourth 

Circuit held that the judge did not have a “financial interest” as defined in the statute (as that required

ownership of a legal or equitable interest), but held that the potential financial benefit the judge might 

receive was an “other interest” under the statute. Id. at 367-68. The Fourth Circuit did not say (much 

less hold) that an “other interest” had to be pecuniary. Id. 

The Seventh Circuit’s decision in Guardian Pipeline, 525 F.3d at 557, was similar. The movant 

sought to disqualify a commissioner appointed under Fed. R. Civ. P. 71.1 in a condemnation action 

brought by a pipeline company. The movant argued that the commissioner had an interest requiring 

recusal—“his hope that pipelines will hire him or his law firm in the future if this proceeding ends 

favorably” (an economic interest). Id. The Seventh Circuit held that no court had read the word 

“interest” that broadly and that “‘interest’ means an investment or other asset whose value depends 

on the outcome, or some other concrete financial effect (such as how much property tax a judge 

pays).” Id. The Seventh Circuit’s discussion of the type of economic interests that qualify as 

“interests” under Section 455 cannot be twisted into a holding that noneconomic interests can never 

be an “interest” under the statute—particularly in the face of Seventh Circuit law expressly holding

9 The government tries to distinguish AG Brnovich’s interests, by claiming they have no economic 

component, while characterizing reputation and goodwill as economic or commercial interests, but 

the Fifth and Seventh Circuits both held reputation and goodwill are noneconomic interests. Potashnick, 

609 F.2d at 1113 (“The outcome of any proceeding handled by a law firm may affect the partners’

financial interests as well as certain noneconomic interests, including the reputation and goodwill of 

the firm.”); SCA Services, 557 F.2d at 115 (“It is also arguable that Donald A. Morgan has other nonpecuniary interests in this litigation, for example, his interest in his and his firm’s reputation and 

goodwill.”). Regardless, AG Brnovich has economic interests in his reputation and goodwill, as those 

greatly impact his ability to raise campaign funds and to keep his office and salary. 

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otherwise. SCA Services, 557 F.2d at 115-16. The government’s citation of In re New Mexico Nat. Gas 

Antitrust Litig., 620 F.2d 794, 796 (10th Cir. 1980), is equally off-base, as the Tenth Circuit there held 

nothing more than “an interest not entailing direct ownership falls under ‘other interest,’ and requires 

disqualification only if the litigation could substantially affect it.” Id. (the judge, as a potential class 

member in an antitrust suit seeking refunds for residential customers, had an “other interest” under 

Section 455). The Tenth Circuit said nothing about whether noneconomic interests also might require 

recusal under Sections 455(b)(4) & 5. Id. 

The government also cites Melendres II, but that decision did not hold that noneconomic 

interests cannot require recusal under Section 455(b). Rather, the court said: “Courts have generally

limited the kinds of ‘interests’ for which recusal is mandatory to those that are somehow pecuniary 

or proprietary in nature.” Melendres II, 2015 WL 13173306, at *13 (emphasis added). Moreover, when 

making that statement, the court cited only the three decisions above, none of which held, or even 

supports, the proposition that noneconomic interests cannot require recusal. Finally, the government 

cites Melendres I, but the respondents there mischaracterized In re Virginia Elec., 539 F.2d at 367-68, 

just as the government does here:

“Plaintiffs respond by arguing that courts have narrowly defined “other interests” to 

include only financial or pecuniary interests of some variety, see e.g., In re Virginia Elec. 

& Power Co., 539 F.2d 357, 367–68 (4th Cir.1976) . . . The Court [] agrees with 

Plaintiffs that the term ‘any other interests’ should be interpreted as being limited to 

financial or pecuniary interests, whether by ownership or some other means.”

Melendres v. Arpaio, 2009 WL 2132693, at *9 (D. Ariz. July 15, 2009) (Melendres I). For support, the 

court in Melendres I cited the same three decisions cited by Melendres II (which do not support the 

ruling) and one district court decision, E. & J. Gallo Winery v. Encana Energy Serv., Inc., 2004 U.S. Dist. 

LEXIS 29380, *13-15 (E.D. Cal. Feb. 20, 2004), which likewise mischaracterized In re Virginia Elec.

Here, AG Brnovich has staked his own “reputation and goodwill” on this prosecution—

particularly when viewed in the context of his high-profile anti-trafficking agenda—through his ongoing

public castigation of Backpage.com and Defendants (whether directly or by directing his constituents 

to the websites of his “partners” and others), by his ongoing vouching (directly and indirectly) for the 

credibility of the prosecution and many of its witnesses, and by his public declarations that, in essence, 

say Defendants are guilty. AG Brnovich’s public excoriations of Backpage.com are particularly 

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troublesome when contrasted with his campaign videos touting the Brnovichs’ “Family Values” and 

saying the Brnovichs “Live [Their] Values, Do the Right Thing”—videos prominently featuring Judge 

Brnovich and the young children of Judge and AG Brnovich. See supra at fn. 2. Rulings by the Court 

favorable to Defendants not only would be inconsistent with AG Brnovich’s public pronouncements 

about Backpage.com, but also with the “family values” image both AG Brnovich and Judge Brnovich 

have presented in AG Brnovich’s political campaign videos. An outcome adverse to the government 

in this case, whether from a jury or from the Court’s rulings, may substantially affect AG Brnovich’s 

interests and image—and to a much greater degree than a de minimis financial interest of the sort that 

would mandate recusal. 

D. A Reasonable Person With Knowledge of the Facts Would Question the 

Court’s Impartiality. 

The government argues the “central premise” of the recusal motion is “obsolete” because 

“[c]ourts now resoundingly reject the notion” that a judge’s spouse’s views on a subject require 

recusal. Resp. at 14. Not so. First, “section 455(a) claims are fact driven, and as a result, the analysis 

of a particular section 455(a) claim must be guided, not by comparison to similar situations addressed 

by prior jurisprudence, but rather by an independent examination of the unique facts and 

circumstances of the particular claim at issue.” Clemens, 428 F.3d at 1178. As such, that a few courts 

refused to recuse based on their spouses’ actions or opinions is of little relevance. Moreover, the 

facts in most cases the government cites are not remotely similar and are readily distinguished.10 The 

10 Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., 956 F.3d 1228, 1241 (10th Cir. 2020) 

(judge not required to recuse where his spouse made a charitable contribution to her alma mater that 

was “not specifically tied to activity related to the litigation”); Nachshin v. AOL, LLC, 663 F.3d 1034, 

1042 (9th Cir. 2011) (judge not required to recuse because her husband was one of 50 volunteer 

attorneys on the Los Angeles Legal Aid Foundation board after a mediator recommended that a 

portion of unclaimed class action settlement proceeds be distributed to the foundation, where her 

husband had no role in the mediator’s decision); National Abortion Fed. v. Ctr. for Med. Progress, 257 F. 

Supp. 3d 1084, 1089 (N.D. Cal. 2017) (judge not required to recuse in a case involving the National 

Abortion Federation because his wife “liked” Facebook posts by two different pro-abortion 

organizations and her Facebook profile picture said “I stand with Planned Parenthood”); Akins v. 

Knight, 2016 WL 127594, at *3 (W.D. Mo. Jan. 11, 2016) (judge not required to recuse based on 

allegations that her lobbyist husband criticized someone who was promoting a petition calling for the 

U.S. Supreme Court to review another case decided by the court).

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exception is Melendres I, where the court recused. Melendres I, 2009 WL 2132693, at *9. 

On the surface, Judge Reinhardt’s order in Perry v. Schwarzenegger, 630 F.3d 909 (9th Cir. 2011), 

appears similar, but the issues there were matters of constitutional law before an appellate court and 

his spouse had expressed views on broad matters of social concern and law. Id. at 916 (“a reasonable 

person with full knowledge of all the facts would not reasonably believe that I would approach a case 

in a partial manner due to her independent views regarding social policy”) (emphasis added).11 The order 

makes clear that Judge Reinhardt’s order is circumscribed and limited to situations such as a “public 

interest or advocacy organization that takes positions or supports legislation or litigation or other 

actions of local, state, or national importance.” Id. at 911-12; accord Declaration of Vaughn R. Walker, 

Exh. A. There is a dramatic difference between an appellate judge’s spouse expressing views on social

issues of broad public concern and a trial judge’s spouse publicly proclaiming that individual 

defendants being tried by his spouse on serious criminal charges are guilty and publicly vouching for 

the prosecution and its witnesses who will testify at the trial, particularly where the spouse is a state’s 

top, elected law enforcement officer. Reading the order in Perry in a sweeping manner, as the 

government suggests, would gut the recusal statute. 

III. CONCLUSION

Judge Brnovich should recuse herself from this case, with directions that the case be randomly 

assigned.

11 The government repeatedly cites Perry, 630 F.2d at 909, as if it was a decision of the Ninth Circuit, 

but it merely was the order of one judge explaining his decision not to recuse—not binding Ninth 

Circuit precedent. Moreover, the U.S. Supreme Court subsequently held that the Ninth Circuit “was 

without jurisdiction to consider the appeal” and remanded with instructions to dismiss the appeal for 

lack of jurisdiction. Hollingsworth v. Perry, 570 U.S. 693, 715 (2013). As such, Judge Reinhardt’s order 

would appear to be of no further force or effect. 

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12 Case No. 2:18-cr-00422-PHX-SMB

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 Respectfully submitted,

DATED: October 14, 2020 Thomas H. Bienert, Jr.

Whitney Z. Bernstein 

BIENERT | KATZMAN PC 

By: s/Thomas H. Bienert, Jr.

Thomas H. Bienert, Jr.

Attorneys for James Larkin 

Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual (August 2020) § 

II (C) (3), Whitney Z. Bernstein hereby attests that all other signatories listed, and on whose behalf this filing is 

submitted, concur in the filing’s content and have authorized its filing.

DATED: October 14, 2020 Paul J. Cambria, Jr.

Erin McCampbell 

LIPSITZ GREEN SCIME CAMBRIA LLP

By: s/ Paul J. Cambria, Jr.

Paul J. Cambria, Jr.

Attorneys for Michael Lacey

DATED: October 14, 2020 Gary S. Lincenberg 

Ariel A. Neuman 

Gopi K. Panchapakesan 

BIRD, MARELLA, BOXER, WOLPERT, NESSIM, 

DROOKS, LINCENBERG & RHOW, P.C.

By: s/ Gary S. Lincenberg

Gary S. Lincenberg 

Attorneys for John Brunst

DATED: October 14, 2020 Bruce Feder

FEDER LAW OFFICE, P.A. 

By: s/ Bruce Feder

Bruce Feder

Attorneys for Scott Spear

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13 Case No. 2:18-cr-00422-PHX-SMB

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DATED: October 14, 2020 David Eisenberg

DAVID EISENBERG, P.L.C.

By: s/ David Eisenberg

 David Eisenberg

 Attorneys for Andrew Padilla

DATED: October 14, 2020 Joy Bertrand

 JOY BERTRAND, ESQ.

By: s/Joy Bertrand

 Joy Bertrand

 Attorneys for Joye Vaught

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1 Case No. 2:18-cr-00422-PHX-SMB

CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE

I hereby certify that on October 14, 2020, I electronically transmitted the attached document 

to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic 

Filing to the CM/ECF registrants who have entered their appearance as counsel of record.

/s/ Toni Thomas 

Toni Thomas

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