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DEFENDANTS’ RESPONSE TO GOVERNMENT’S PROPOSED CHANGES TO JURY QUESTIONNAIRE (DOC. NO. 1349)

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 LITTRELL WILLIAMS LLP

903 Calle Amanecer, Suite 350

San Clemente, California 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

tbienert@bklwlaw.com

wbernstein@bklwlaw.com

Attorneys for James Larkin

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

Erin 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

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’ RESPONSE TO 

GOVERNMENT’S PROPOSED 

CHANGES TO JURY 

QUESTIONNAIRE (DOC. NO. 1349)

(Oral argument requested)

Case 2:18-cr-00422-DJH Document 1352 Filed 10/19/21 Page 1 of 8
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DEFENDANTS’ RESPONSE TO GOVERNMENT’S PROPOSED CHANGES TO JURY QUESTIONNAIRE (DOC. NO. 1349)

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 1352 Filed 10/19/21 Page 2 of 8
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1

DEFENDANTS’ RESPONSE TO GOVERNMENT’S PROPOSED CHANGES TO JURY 

QUESTIONNAIRE (DOC. NO. 1349)

The government filed its proposed changes to the jury questionnaire at Doc. No. 1349. 

Defendants submitted their suggested changes at Doc. No. 1348, and hereby respond to the 

government’s proposed changes:

• Question 15 (Doc. No. 1349-1 at 5-6):

o Defendants do not believe it is necessary to modify this question from how it 

appeared in the original jury questionnaires and object to the proposed change.

• Question 19 (Doc. No. 1349-1 at 6-7):

o Defendants do not believe it is necessary to modify this question from how it 

appeared in the original jury questionnaires and object to the proposed change.

• Question 20 (Doc. No. 1349-1 at 7):

o Defendants do not believe it is necessary to modify this question from how it 

appeared in the original jury questionnaires and object to the proposed change.

• Question 38 (Doc. No. 1349-1 at 12): 

o Defendants have no objection to the government’s proposed edit.

• Question 39 (Doc. No. 1349-1 at 13):

o Defendants have no objection to the government’s proposed edit.

• Question 42 (Doc. No. 1349-1 at 14):

o Defendants do not object to the government’s proposed paragraph, as long as the 

response options after the question include the following:

 “c. Regardless of the law, do you expect the defendants to produce some 

evidence or prove their innocence?”

 “d. Regardless of the law, do you expect a defendant to testify during the 

trial?”

/ / / 

/ / /

/ / /

/ / / 

/ / / 

Case 2:18-cr-00422-DJH Document 1352 Filed 10/19/21 Page 3 of 8
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DEFENDANTS’ RESPONSE TO GOVERNMENT’S PROPOSED CHANGES TO JURY 

QUESTIONNAIRE (DOC. NO. 1349)

• Government Proposed Question 42(c) (Doc. No. 1349-1 at 14):

o Defendants oppose the government’s phrasing and instead suggest:

 “Will you follow the law as it is instructed by the Court even if you disagree 

with it, or will you follow your own beliefs and conscience if you disagree 

with any part of the law?”

o Further, Defendants think this question should not be a subpart of Question 42 as 

the government proposes, but instead should be a standalone question where it 

appears in the current jury questionnaire at Question 86. To move the question as 

the government suggests runs the risk that potential jurors think they only have to 

follow the law as it relates to a defendant’s right to not testify or produce evidence. 

• Question 43 (Doc. No. 1349-1 at 14-15):

o Defendants do not believe it is necessary to modify this question from how it 

appeared in the original jury questionnaires and object to the proposed change.

• Question 47 (Doc. No. 1349-1 at 16):

o Defendants do not believe it is necessary to modify this question from how it 

appeared in the original jury questionnaires and object to the proposed change.

• Question 64 (Doc. No. 1349-1 at 20):

o Defendants object to the government’s inaccurate and self-serving modification, 

which, once again, ignores the legal distinction between the lawful adult 

entertainment industry, including escort services, and unlawful prostitution. 

o The government cites not a single case or statute to support its inaccurate position

and ignores law to the contrary (e.g., A.R.S. § 13-1422 relating to adult oriented 

businesses). The government cites a fringe online dictionary to suggest that escorts

are associated with prostitution, but ignores Arizona’s statutory definition of the 

term escort1 and mainstream dictionary definitions,2 neither of which suggest that 

escorts are prostitutes. 

o Further, the government suggests that all who work in the adult entertainment 

industry engage in unlawful prostitution. Doc. No. 1349-1 at 20. This contention 

is not only baseless, inaccurate, and absurd, but also underscores the government’s 

present prosecution of individuals based on speech it disfavors, in an illegal and 

1 “Escort” means a person who for consideration agrees or offers to act as a companion, 

guide or date for another person or who agrees or offers to privately model lingerie or to privately 

perform a striptease for another person. A.R.S. § 13-1422(G)(7).

2 E.g., “a woman or a man who is hired to go with someone to a social event —often used 

before another noun -- an escort service/agency.” https://www.merriam-webster.com/dictionary/escort.

Case 2:18-cr-00422-DJH Document 1352 Filed 10/19/21 Page 4 of 8
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3

DEFENDANTS’ RESPONSE TO GOVERNMENT’S PROPOSED CHANGES TO JURY 

QUESTIONNAIRE (DOC. NO. 1349)

perverse attempt to manipulate the law to its own moral preferences. 

o The question should remain as it appeared in the original jury questionnaires.

• Question 65 (Doc. No. 1349-1 at 20-21):

o The government’s objections to Question 65 are inaccurate, self-serving, and 

misstate the law. Defendants incorporate their response to the government’s 

proposed revisions to Question 64. 

o The government claims escort services are “not recognized as lawful, legal services 

throughout the United States,” yet cites not a single statute providing, or legal 

decision holding, that escort services are unlawful. The fact that some jurisdictions 

regulate the provision of escorts services hardly means that escort services are 

unlawful where they are unregulated or that escorts who fail to comply with escort 

laws/regulations are prostitutes. 

o Moreover, whether some jurisdictions which license escorts also require escorts to 

include their license numbers in their advertisements is irrelevant. The Arizona 

statute the government cites is a civil statute and it imposes the obligation on the 

advertiser—not on the publisher of advertisements. And an escort’s failure to 

comply with the laws and regulations relating to that business makes him or her a 

violator of those laws and regulations—not a prostitute. 

o This case centers on the distinction between legal adult services, such as escorts, and 

the unlawful activity of prostitution. As the Court recognized in creating the initial 

jury questionnaire, to ensure a fair jury it is important to ascertain potential jurors’ 

beliefs and feelings about lawful adult entertainment services, including escort 

services. 

o The Defendants object to the deletion of this question, which should remain as it 

appeared in the original jury questionnaires.

• Question 79 (Doc. No. 1349-1 at 23-24)

o Defendants object to the government’s inaccurate and self-serving modification to 

this question, which attempts to adjudicate Defendants guilty before the trial even 

starts by interjecting conclusory statements such as “[t]his case involves 

prostitution” and telling the jury it will hearing about “prostitution and sex 

trafficking.” Doc. No. 1349-1 at 23. The government astoundingly continues to 

fail to embrace its constitutional burden to prove that which it assumes to be true. 

Moreover, the government’s proposed question inaccurately says that “victims and 

witnesses” will testify about “being posted on backpage.com,” when it was ads that 

were posted to Backpage.com. The question should remain as it appeared in the 

original jury questionnaires.

/ / /

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4

DEFENDANTS’ RESPONSE TO GOVERNMENT’S PROPOSED CHANGES TO JURY 

QUESTIONNAIRE (DOC. NO. 1349)

• Question 82 (Doc. No. 1349-1 at 24)

o Defendants do not oppose the government’s proposed question combining 

Questions 82-84, but for clarity, the question should read: “Would you find a 

witness’s testimony to be more credible or less credible simply based on their...”

Defendants also request oral argument to the extent the Court disagrees with Defendants’ 

proposed revisions contained in Doc. No. 1348 and this response or is inclined to accept any 

changes proposed by the government but objected to by Defendants.

RESPECTFULLY SUBMITTED this 19th day of October 2021,

BIENERT KATZMAN LITTRELL 

WILLIAMS LLP

s/ Whitney Z. Bernstein

Thomas H. Bienert, Jr.

Whitney Z. Bernstein

Attorneys for James Larkin

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

LIPSITZ GREEN SCIME CAMBRIA LLP

s/ Paul J. Cambria, Jr.

Paul J. Cambria, Jr.

Erin McCampbell Paris

Attorneys for Michael Lacey

BIRD MARELLA BOXER WOLPERT 

NESSIM DROOKS LINCENBERG AND 

RHOW PC

s/ Gary S. Lincenberg

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

Attorneys for John Brunst

FEDER LAW OFFICE PA

s/ Bruce Feder

Bruce Feder

Attorneys for Scott Spear

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DEFENDANTS’ RESPONSE TO GOVERNMENT’S PROPOSED CHANGES TO JURY 

QUESTIONNAIRE (DOC. NO. 1349)

DAVID EISENBERG PLC

s/ David Eisenberg

David Eisenberg

Attorneys for Andrew Padilla

JOY BERTRAND ESQ LLC

s/ Joy Bertrand

Joy Bertrand

Attorneys for Joye Vaught

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1

3754503.1 CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE 

I hereby certify that on October 19, 2021, 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

Case 2:18-cr-00422-DJH Document 1352 Filed 10/19/21 Page 8 of 8