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3738470.2

DEFENDANTS’ JOINT MOTION FOR ADDITIONAL PEREMPTORY CHALLENGES

Thomas H. Bienert, Jr. (admitted pro hac vice) tbienert@bmkattorneys.com 

Whitney Z. Bernstein (admitted pro hac vice) wbernstein@bmkattorneys.com 

BIENERT KATZMAN, PLC

903 Calle Amanecer, Suite 350 

San Clemente, CA 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

Attorneys for Defendant James Larkin 

Paul J. Cambria, Jr. (admitted pro hac vice) pcambria@lglaw.com 

Erin McCampbell (admitted pro hac vice) emccampbell@lglaw.com 

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120 

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

Attorneys for Defendant Michael Lacey 

[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. 

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

DEFENDANTS’ JOINT MOTION 

FOR ADDITIONAL PEREMPTORY 

CHALLENGES

Assigned to Hon. Susan M. Brnovich, Courtroom 506

[Oral Argument requested]

Case 2:18-cr-00422-DJH Document 1191 Filed 08/03/21 Page 1 of 10
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3738470.2

DEFENDANTS’ JOINT MOTION FOR ADDITIONAL PEREMPTORY CHALLENGES

Gary S. Lincenberg (admitted pro hac vice) glincenberg@birdmarella.com 

Ariel A. Neuman (admitted pro hac vice) aneuman@birdmarella.com 

Gopi K. Panchapakesan (admitted pro hac vice) gpanchapakesan@birdmarella.com

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW, P.C.

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: (310) 201-2100

Facsimile: (310) 201-2110

Attorneys for Defendant John Brunst

Bruce Feder (AZ Bar No. 004832) 

 bf@federlawpa.com 

FEDER LAW OFFICE, P.A.

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

Telephone: (602) 257-0135 

Attorney for Defendant Scott Spear

David Eisenberg (AZ Bar No. 017218)

 david@deisenbergplc.com 

DAVID EISENBERG PLC

3550 N. Central Ave., Suite 1155

Phoenix, Arizona 85012

Telephone: (602) 237-5076

Facsimile: (602) 314-6273

Attorney for Defendant Andrew Padilla 

Joy Malby Bertrand (AZ Bar No. 024181) 

 joy.bertrand@gmail.com 

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

Telephone: (602)374-5321

Facsimile: (480)361-4694

Attorney for Defendant Joye Vaught 

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3738470.2

DEFENDANTS’ JOINT MOTION FOR ADDITIONAL PEREMPTORY CHALLENGES

I. INTRODUCTION

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

and Joye Vaught (“Defendants”) previously raised the issue of additional preemptory 

challenges at the June 7, 2021 Status Conference. See Ex. A, 6/7/21 Hr’g Tr. at 31-32. The 

Court requested briefing. Id. at 32. Defendants therefore move, pursuant to Federal Rule of 

Criminal Procedure 24(b), for an order providing the defense with an additional six 

peremptory challenges (one additional challenge per defendant). Defendants respectfully 

request that the Court take up this Motion at the August 9, 2021 Final Pre-trial Conference. 

II. ARGUMENT

Under Federal Rule of Criminal Procedure 24(b), “[t]he court may allow additional 

peremptory challenges to multiple defendants, and may allow the defendants to exercise those 

challenges separately or jointly.” During the June 7, 2021 Status Conference, the Court stated 

that it intended to empanel five or six alternate jurors, thereby affording the defense 13 

peremptory challenges and the government nine such challenges. See Fed. R. Crim. Proc. 

24(c)(4)(C) (“Three additional peremptory challenges are permitted when five or six alternates 

are impaneled.”). Defendants seek an order providing them with one additional peremptory 

challenge per Defendant, or 19 peremptory challenges in total.

There is ample justification for Defendants’ request. First, given that each of the six 

Defendants will have varying interests throughout trial, an additional peremptory challenge 

per Defendant will serve to reduce the prejudice resulting from a multi-defendant trial. The 

Defendants’ roles within the New Times media conglomerate ranged from employee to 

executive. As a result, the government’s proffered evidence as to each varies substantially; 

indeed, there are numerous government witnesses who likely will have no testimony to offer 

as to certain Defendants. Under these circumstances, an additional peremptory challenge per 

Defendant is warranted. Recently, in United States v. Rodriguez-Landa, 

No. 213CR00484CAS135610, 2019 WL 653853, (C.D. Cal. Feb. 13, 2019), the court ordered 

the precise remedy Defendants seek here. Acknowledging that the defendants sought 

additional peremptory challenges to “ameliorate, to some degree, the risk of prejudice arising 

Case 2:18-cr-00422-DJH Document 1191 Filed 08/03/21 Page 3 of 10
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3738470.2 2

DEFENDANTS’ JOINT MOTION FOR ADDITIONAL PEREMPTORY CHALLENGES

from the multi-defendant trial,” the Court granted the defendants “five additional challenges, 

one per defendant in this trial,” and rejected the government’s reciprocal request for 

additional peremptory challenges. Id. at *19.

Second, as the Court acknowledged during the July 16, 2021 Final Trial Management 

Conference, certain types of individuals from the community are unable to serve on the jury 

here given the length of the trial and concerns amongst prospective jurors regarding the 

COVID-19 virus. Those who would suffer financial hardship if forced to take three months 

off from work or the elderly and other individuals who might be immunocompromised and at 

risk of contracting the virus are among those individuals whom the Court has already excused 

from the venire. Id. The additional peremptory challenges Defendants seek would therefore 

also serve to protect their Sixth Amendment right to the “selection of a petit jury from a 

representative cross section of the community.” Taylor v. Louisiana, 419 U.S. 522, 528 (1975). 

III. CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court grant their 

Motion and issue an order providing each Defendant with one additional peremptory 

challenge (19 in total for the defense). 

Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual 

(October 2020) § II (C) (3), Gary S. Lincenberg 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: August 3, 2021 Respectfully submitted,

Thomas H. Bienert Jr.

Whitney Z. Bernstein

Bienert | Katzman PC

By: /s/ Thomas H. Bienert, Jr.

Thomas H. Bienert Jr.

Attorneys for Defendant James Larkin

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3738470.2 3

DEFENDANTS’ JOINT MOTION FOR ADDITIONAL PEREMPTORY CHALLENGES

DATED: August 3, 2021 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 Defendant John Brunst

DATED: August 3, 2021 Paul J. Cambria

Erin McCampbell

Lipsitz Green Scime Cambria LLP

By: /s/ Paul J. Cambria

Paul J. Cambria

Attorneys for Defendant Michael Lacey

DATED: August 3, 2021 Feder Law Office, P.A.

By: /s/ Bruce S. Feder

Bruce S. Feder

Attorney for Defendant Scott Spear

DATED: August 3, 2021 The Law Office of David Eisenberg, PLC

By: /s/ David Eisenberg

David Eisenberg

Attorney for Defendant Andrew Padilla

DATED: August 3, 2021 Joy Bertrand Esq. LLC

By: /s/ Joy Malby Bertrand

Joy Malby Bertrand 

Attorney for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 1191 Filed 08/03/21 Page 5 of 10
EXHIBIT A

6

Case 2:18-cr-00422-DJH Document 1191 Filed 08/03/21 Page 6 of 10
UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

_________________

United States of America, )

) No. CR-18-0422-PHX-SMB

Plaintiff, )

)

vs. ) Phoenix, Arizona

) June 7, 2021 

Michael Lacey, ) 4:04 p.m.

James Larkin, ) 

Scott Spear, )

John Brunst, )

Andrew Padilla, )

Joye Vaught, )

)

Defendants. )

_____________________________ )

BEFORE: THE HONORABLE SUSAN M. BRNOVICH, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS

STATUS CONFERENCE

Official Court Reporter:

Christine M. Coaly, RMR, CRR

Sandra Day O'Connor U.S. Courthouse, Suite 312

401 West Washington Street, Spc 37 

Phoenix, Arizona 85003-2151

(602) 322-7248

Proceedings Reported by Stenographic Court Reporter

Transcript Prepared by Computer-Aided Transcription

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UNITED STATES DISTRICT COURT

31

something in response to such a question that takes it outside 

of the four corners, I assume that we would still be able to 

follow-up on our questions? 

THE COURT: You mean follow-up with that juror on 

their answer? 

MR. EISENBERG: Correct. 

THE COURT: Yes. And then if -- okay. So I generally 

trust the lawyers will not abuse my order, so that's my limit. 

However, I also have been doing this long enough that I 

understand there are situations that might come up where -- and 

I didn't pounce on an attorney for following up by saying, does 

anyone else feel that way, for instance, which is a general 

question of the panel, but it's related to some specific 

answer. So I don't know if that helps. 

MR. EISENBERG: Yeah, it does, Your Honor. 

And how many strikes for -- not for cause, but 

strikes, peremptory, are -- are you going to allocate among the 

defense and the government? 

THE COURT: Didn't bring in that piece of paper, but I 

did do the math the other day. But I assume we're having 16 

jurors, just because of the length of the trial I want to have 

enough alternates, and I believe that meant each side got an 

extra three peremptory strikes, so I had it at 9 and 13. Off 

the top of my head, that's what I'm thinking. 

MR. EISENBERG: 13 to be divided among all six 

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UNITED STATES DISTRICT COURT

32

defendants? 

THE COURT: Yes. But if you have another proposal and 

you have some authority for that, I'm happy to consider it. 

MR. EISENBERG: Right now I don't, Your Honor, but I 

think that is an issue that comes to my mind, given the fact 

that we have six different defendants who may have different 

views, or their counsel may have different views, and their 

clients, too, may have different views on who should be struck 

and who shouldn't. 

THE COURT: Uh-huh. 

MR. EISENBERG: And this is difficult to calibrate 

because we haven't seen the questionnaires or the answers to 

the questionnaires. 

THE COURT: Okay. So with respect to the timing, yes, 

it is difficult to get them the day before and have to go 

through all of them, but I've done it by myself. I will see, 

once we get Thursday to see what additional questions, assuming 

I can get it edited and to the jury office Friday, I'll ask if 

we can get it two days in advance, but I think we're getting 

pretty close to the four-week limit, but I'll talk with them 

about getting it two days before. 

MR. EISENBERG: I think that would be good, Your 

Honor, if the Court can do that. I think all defense counsel 

would appreciate an extra day. 

THE COURT: And we'll be doing this at the final trial 

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UNITED STATES DISTRICT COURT

40

C E R T I F I C A T E

I, CHRISTINE M. COALY, do hereby certify that I am 

duly appointed and qualified to act as Official Court Reporter 

for the United States District Court for the District of 

Arizona.

I FURTHER CERTIFY that the foregoing pages constitute 

a full, true, and accurate transcript of all of that portion of 

the proceedings contained herein, had in the above-entitled 

cause on the date specified therein, and that said transcript 

was prepared under my direction and control.

DATED at Phoenix, Arizona, this 8th day of June, 

2021.

/s/ Christine M. Coaly_______

Christine M. Coaly, RMR, CRR

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