DEFENDANTS’ REPLY IN FURTHER SUPPORT OF MOTION TO CONTINUE TRIAL

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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

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

Additional counsel listed on next page

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

 Plaintiff,

vs.

Michael Lacey, et al., 

 

 Defendants.

NO. CR-18-00422-PHX-SMB

DEFENDANTS’ REPLY IN FURTHER 

SUPPORT OF MOTION TO 

CONTINUE TRIAL

(Oral argument requested)

Case 2:18-cr-00422-DJH Document 1120 Filed 02/09/21 Page 1 of 7
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DEFENDANTS’ REPLY IN FURTHER SUPPORT OF MOTION TO CONTINUE TRIAL

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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

Case 2:18-cr-00422-DJH Document 1120 Filed 02/09/21 Page 2 of 7
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DEFENDANTS’ REPLY IN FURTHER SUPPORT OF MOTION TO CONTINUE TRIAL

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REPLY

Defendants Michael Lacey, James Larkin, John Brunst, Scott Spear, Andrew Padilla, and Joye 

Vaught (“Defendants”), by and through their undersigned attorneys, moved for an order continuing 

the trial date from April 12, 2021, to September 20, 2021, because of the ongoing coronavirus 

pandemic and the Defendants’ pending petition for a writ of mandamus regarding their Motion to 

Recuse, which is pending before the Ninth Circuit and will be submitted for decision as of March 3, 

2021 (“Motion”).1 (See Doc. 1113.) In its response, the government agreed that a continuance is 

needed to ensure the safety and health of the trial participants, but suggested that the trial should be 

continued to August 16, 2021, with a status conference in mid-June to re-assess the feasibility of the 

August trial start date, rather than to September 20, 2021. (See Doc. 1119 at 2.) Defendants submit 

the instant reply in further support of the Motion and maintain that the trial should be continued to 

September 20, 2021.

Defendants chose September 20, 2021 after careful consideration of counsels’ calendar and 

the predictions regarding Covid-19 vaccine rollout. Although there is no perfect time to try a criminal 

case of this size and complexity (even when there is no global pandemic), starting the trial on 

September 20, 2021, rather than a month earlier, will minimize breaks. Two defense counsel have 

scheduling conflicts in the fall, one of which would be avoided with the September 20 date but not 

with the August 16 date. Specifically, one counsel, who is the only lawyer representing his client, has 

a pre-paid vacation scheduled for September 6-17, 2021. At the time this vacation was scheduled and 

paid for, it would not have interfered with the trial. If counsel is forced to cancel the vacation, counsel 

will lose money. Separately, another counsel is scheduled to be married in early November out of 

state, and will require a short recess from November 2-10, 2021 (seven trial days if the Court sits each 

weekday2). That counsel, too, is also the only lawyer representing her client, and she scheduled the 

 1 The Ninth Circuit recently determined that the case will be submitted without oral argument 

on March 3, 2021. See In re Michael Lacey, et al., Ninth Circuit Dkt. No. 20-73408 (Doc. 16). 

2 The Court has not said how many trial days it anticipates sitting each week, which will 

significantly influence how many calendar weeks the trial will last. It would be helpful for the parties 

to know the Court’s thoughts regarding the number of days each week the Court anticipates devoting

to the trial (and which days). 

Case 2:18-cr-00422-DJH Document 1120 Filed 02/09/21 Page 3 of 7
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wedding seeking to avoid conflicts with both the trial date and the pandemic. It is unclear whether 

either proposed trial date would avoid this interruption.

Additionally, it appears that ensuring the safety of the trial participants will be better 

accomplished with a September 20, 2021 start date. Public health experts believe that life will return 

to something that resembles “normal” during the third and fourth quarters of 2021, after the public 

has had access to the vaccines.3 That return to normalcy assumes a timely rollout of the vaccines; 

however, at present, the rollout has been significantly slower than anticipated. For example, federal 

health officials initially anticipated that 50 million Americans would receive their first and second 

vaccine doses by the end of January.4 But, as of February 4, 2021, only 6 million Americans were 

fully vaccinated, with an additional 27 million Americans having received their first dose.5 Indeed, 

individuals who are eligible for the vaccine, including certain defense counsel, have been unable to 

obtain an appointment for their first dose.6 Moreover, it takes up to two weeks after the second dose 

for the vaccine to become fully effective.7 Based on this information, it is not likely that the younger 

trial participants, with no preexisting conditions, will be fully vaccinated with time for the vaccines to 

become effective before August 16, 2021. The additional four weeks requested by Defendants make 

 3 See Elisabeth Rosenthal, When Will We Throw Our Masks Away? I asked Dr. Fauci, New 

York Times (Nov. 19, 2020), available at: 

https://www.nytimes.com/2020/11/19/opinion/sunday/anthony-fauci-covid-interview.html (last 

visited Feb. 3, 2021).

4 See Ryan W. Miller, USA Today, How Will You Be Told When It’s Your Turn for a COVID-19 

Vaccine? It’s Complicated (Jan. 6, 2021), available at: 

https://www.usatoday.com/story/news/health/2020/12/24/covid-vaccine-eligibility-how-whenamericans-notified/4008128001/ (last visited Feb. 3, 2021).

5 See New York Times, Covid-19 Live Updates: As U.S. Vaccinations Speed Up, Cautious 

Optimism Grows (Feb. 4, 2021), available at: 

https://www.nytimes.com/live/2021/02/04/world/covid-19-coronavirus (last visited Feb. 4, 

2021).

6 See Erie County Department of Health, Covid-19 Vaccine Information (Feb. 1. 2021), available 

at: https://www2.erie.gov/health/index.php?q=covid-19-vaccine-information (last visited Feb. 3. 

2021).

7 See CDC, What to Expect After Getting a Covid-19 Vaccine (Jan. 11, 2021), available at: 

https://www.cdc.gov/coronavirus/2019-ncov/vaccines/expect/after.html (last visited Feb. 4, 

2021).

Case 2:18-cr-00422-DJH Document 1120 Filed 02/09/21 Page 4 of 7
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DEFENDANTS’ REPLY IN FURTHER SUPPORT OF MOTION TO CONTINUE TRIAL

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that goal far more realistic. For all these reasons, the more prudent cause of action, with respect to 

the health and safety of the trial participants (including many witnesses who will travel to this District 

to provide their testimony, stay in local lodging, and obtain food from local restaurants), is to set the 

date for September 20, 2021, with a status conference in mid-June, as the government suggested, to 

reassess the progress with vaccinations. 

Moreover, although Defendants appreciate the judiciary’s commitment to providing guidance 

to the courts on juror safety during trials that occur during the pandemic as cited by the government 

(see Docs. 1119-1, 1119-2), the guidance appended to the government’s Response provides no 

information about conducting a complex, multi-defendant trial like this one, with likely more than 50 

trial participants and most witnesses traveling to the District from around the country. To counsel’s 

knowledge, no such trial has been conducted or is scheduled to be conducted during the pandemic. 

Additionally, as discussed in the Motion, in another complex criminal case, the government, itself, 

recently took the position that such a trial cannot be conducted safely until September. (See Doc. 

1113-1 at 1). Although the government claims here that “everyone” now prepares witnesses remotely, 

in that same case the government took the position that it could not adequately prepare its witnesses if 

the trial was to proceed at any earlier time because in-person meetings are essential to witness 

preparation and cannot be done safely at this time. (See id. at 2.) Like the government, defense 

counsel will be ineffective if they are unable to meet in person with their clients and are unable to 

prepare their more significant witnesses in person. 

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Case 2:18-cr-00422-DJH Document 1120 Filed 02/09/21 Page 5 of 7
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DEFENDANTS’ REPLY IN FURTHER SUPPORT OF MOTION TO CONTINUE TRIAL

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CONCLUSION

For all these reasons, Defendants request that the Court continue the April 12, 2021, trial date

to September 20, 2021. Such a date is more likely to hold than one that is set at a time when public 

health officials have indicated that the general population will be undergoing vaccination. 

RESPECTFULLY SUBMITTED this 9th day of February, 2021. 

Paul J. Cambria, Jr.

Erin E. McCampbell

LIPSITZ GREEN SCIME CAMBRIA LLP

By: /s/ Paul J. Cambria, Jr. 

Paul J. Cambria, Jr.

Attorneys for Michael Lacey

Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual (Jan. 2020) § II (C) 

(3), Erin E. McCampbell 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.

Thomas H. Bienert, Jr.

Whitney Z. Bernstein

BIENERT KATZMAN, PLC

By: /s/ Whitney Z. Bernstein

Whitney Z. Bernstein

Attorneys for James Larkin

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW, P.C.

By: /s/ Ariel A. Neuman

Ariel A. Neuman

Attorneys for John Brunst

Case 2:18-cr-00422-DJH Document 1120 Filed 02/09/21 Page 6 of 7
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DEFENDANTS’ REPLY IN FURTHER SUPPORT OF MOTION TO CONTINUE TRIAL

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Bruce Feder

FEDER LAW OFFICE, P.A.

By: /s/ Bruce Feder

Bruce Feder

Attorneys for Scott Spear

David Eisenberg

DAVID EISENBERG, P.L.C.

By: /s/ David Eisenberg

David Eisenberg

Attorneys for Andrew Padilla

Joy Bertrand

JOY BERTRAND, ESQ.

By: /s/ Joy Bertrand

Joy Bertrand

Attorneys for Joye Vaught

On February 9, 2021, a PDF version

of this document was filed with

Clerk of the Court using the CM/ECF

System for filing and for Transmittal

Of a Notice of Electronic Filing to the

Following CM/ECF registrants:

Kevin Rapp, kevin.rapp@usdoj.gov

Reginald Jones, reginald.jones4@usdoj.gov 

Peter Kozinets, peter.kozinets@usdoj.gov

Margaret Perlmeter, margaret.perlmeter@usdoj.gov 

Andrew Stone, andrew.stone@usdoj.gov

Daniel Boyle, daniel.boyle2@usdoj.gov

Case 2:18-cr-00422-DJH Document 1120 Filed 02/09/21 Page 7 of 7