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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A P P E A R A N C E S

For the Government:

U.S. ATTORNEY'S OFFICE

By: Mr. Peter S. Kozinets

Mr. Kevin M. Rapp

Ms. Margaret Wu Perlmeter

Mr. Andrew C. Stone

40 North Central Avenue, Suite 1200

Phoenix, Arizona 85004

U.S. DEPARTMENT OF JUSTICE

By: Mr. Reginald E. Jones

1400 New York Avenue, NW, Suite 600

Washington, DC 20530

U.S. ATTORNEY'S OFFICE

By: Mr. Daniel G. Boyle

312 North Spring Street

Los Angeles, California 90012

For the Defendant Lacey:

LIPSITZ GREEN SCIME CAMBRIA

By: Mr. Paul J. Cambria, Jr.

Ms. Erin E. McCampbell-Paris

42 Delaware Avenue, Suite 120

Buffalo, NY 14202

For the Defendant Larkin:

BIENERT KATZMAN

By: Mr. Thomas H. Bienert, Jr.

Ms. Whitney Z. Bernstein

903 Calle Amanecer, Suite 350

San Clemente, CA 92673

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For the Defendant Spear:

FEDER LAW OFFICE

By: Mr. Bruce S. Feder

2930 East Camelback Road, Suite 160

Phoenix, AZ 85016

For the Defendant Brunst:

BIRD MARELLA BOXER WOLPERT NESSIM DROOKS

LINCENBERG & RHOW

By: Mr. Gopi K. Panchapakesan

Mr. Gary S. Lincenberg

1875 Century Park E, Suite 2300

Los Angeles, CA 90067

For the Defendant Padilla:

DAVID EISENBERG, PLC

By: Mr. David S. Eisenberg

3550 North Central Avenue, Suite 1155

Phoenix, AZ 85012

For the Defendant Vaught:

JOY BERTRAND, LLC

By: Ms. Joy M. Bertrand

P.O. Box 2734

Scottsdale, AZ 85252

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P R O C E E D I N G S

COURTROOM DEPUTY: On the record in CR 18-422, United

States of America versus Michael Lacey and others, before the

Court for a status conference.

MR. RAPP: Good afternoon, Kevin Rapp on behalf of the

United States. Also appearing for the United States is

Reginald Jones, Margaret Perlmeter, Peter Kozinets, Andrew

Stone, and Daniel Boyle.

MR. CAMBRIA: Good afternoon, Your Honor. Paul

Cambria and Erin Paris appearing on behalf of Mr. Lacey. And

we waive his appearance.

MS. BERNSTEIN: Good afternoon, Your Honor. Whitney

Bernstein and Tom Bienert on behalf of James Larkin, who is

also present.

MR. FEDER: Bruce Feder for Scott Spear, who is

appearing digitally. Good afternoon.

MR. LINCENBERG: Good afternoon, Your Honor. Gary

Lincenberg and Gopi Panchapakesan on behalf of Mr. Brunst, who

is present for this hearing.

MR. EISENBERG: Good afternoon, Your Honor. David

Eisenberg on behalf of Andrew Padilla. We would waive his

appearance for the purpose of this hearing.

MS. BERNSTEIN: Good afternoon. Joy Bertrand appears

for Defendant Joye Vaught. She also waives her appearance for

today's hearing.

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THE COURT: And that should be everybody.

Okay. So we're set to discuss the jury questionnaire,

because we want to get those sent out so that we can have them

back by the final trial management conference to do some

screening.

I've looked at -- after I discovered that I missed it,

I looked at the juror questionnaire that was filed on June 26th

of '20. Is that the most recent jury questionnaire submitted

by the parties?

Mr. Rapp?

MR. RAPP: Yes.

THE COURT: Okay. So that's the one I'm working off

of. And I'll just go through it with you.

With respect to the, sort of, instructions to the

jurors, on the first page I'm adding a couple of lines just to

let the jurors know that this information will be kept

confidential. And it reads: Only the Court and the attorneys

will use the information that you are -- that you give in

response to this questionnaire. Your responses will be kept

confidential, and all the parties will be under orders to

maintain the confidentiality of any information they learn in

the course of reviewing this questionnaire.

Is there any objection to adding that from the

government?

MR. RAPP: Not -- no, Your Honor.

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THE COURT: Any objection to adding that from -- these

aren't in order -- from Ms. Bertrand?

MS. BERTRAND: Yes, Your Honor.

THE COURT: Do you have an objection to adding that?

MS. BERTRAND: No.

THE COURT: Okay. Mr. Eisenberg, do you have any

objection?

MR. EISENBERG: No, Your Honor.

THE COURT: Mr. Bienert, any objection -- or, I'm

sorry, Ms. Bernstein?

MS. BERNSTEIN: No, Your Honor.

THE COURT: Mr. Feder?

MR. FEDER: No. Thanks.

THE COURT: Mr. Lincenberg?

MR. LINCENBERG: No, Your Honor.

THE COURT: And, Mr. Cambria?

MR. CAMBRIA: No, Your Honor.

THE COURT: Okay. Then I will also, on page 2 -- the

jurors will be filling this out electronically, and you'll be

given the questionnaires electronically, usually on a zip

drive, so I'm taking out any language that talks about writing

on extra pages or using a black or blue pen, but other than

those types of things, I'm not making any other edits.

On page 3, with respect to the jury service and length

of trial, the first paragraph, I'm changing it -- obviously, I

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need to change the dates -- I'm changing it -- I'm crossing out

Tuesday through Friday, and what I plan to do is insert a

proposed calendar so that the jurors can actually see in the

months of August, September, October, November, what days we

anticipate them being in trial. I've found that's more helpful

than listing out the days. I guess I'm a visual person. But

if they were in person, I would put a calendar up on the Elmo

for them to look at while they were answering, so I wanted to

include that.

So let me ask you -- I did ask Elaine to send you an

updated trial calendar. I understand that there was some

concern about trying to use every potential day, and so I

reduced it to mostly four-day weeks except for a couple weeks

before and after that long break.

But, from the government's perspective, did you have

any objection to the updated trial calendar or were there any

additional days that you want to be blocked?

MR. RAPP: No. We don't have any objection to the

calendar, the most recent calendar, and we don't require any

days to be blocked.

THE COURT: Okay. Mr. Cambria, did you get that

calendar and do you have any additional days you want blocked?

MR. CAMBRIA: I did and I do not, Your Honor. We do

not object to it.

THE COURT: Okay. Mr. Feder?

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MR. FEDER: No objection. I appreciate the

modification.

THE COURT: Mr. Lincenberg?

MR. LINCENBERG: Your Honor, I have no objection. I

do want to advise the Court that both Mr. Bienert and

Ms. Bernstein and I have a trial set in San Diego, and the

Court set the trial date overlapping with our current trial.

At the time we advised the Court that we had -- I believe we

had a stipulation pending before Your Honor. We fully expected

it to be signed and have an August trial date. I don't expect

there will be a problem with Judge Curiel in moving that date,

but the government is now opposing our moving that date. I

will let you know if it doesn't get worked out. I think it

will get worked out, I just feel obligated to let the Court

know that.

THE COURT: And did you say that was supposed to be in

August?

MS. BERNSTEIN: November. It's November.

THE COURT: All right. Well, let me --

MR. LINCENBERG: We had alerted Judge Curiel at the

time that we had a stipulation the trial was likely to go

through December, and he was just trying to figure out a date

to set, I think. I believe he'll go our way and understand

that. We just needed to alert the Court.

THE COURT: Okay. I appreciate that.

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So, let's see, Ms. Bernstein, other than that, any

other objections to the trial calendar?

MS. BERNSTEIN: No, Your Honor. No, Your Honor.

THE COURT: Mr. Eisenberg?

MR. EISENBERG: I have reviewed it, Your Honor. I

don't have any objections to it, but I would say that as time

goes on, sometimes other judges will set a time, for example,

for a sentencing or a hearing on another matter, and I will

bring those to the attention of Your Honor.

Typically, the judges I know will work with the Court

in terms of trying to set those dates around our trial, but as

of right now I don't anticipate or have not heard of any

conflicts in my calendar.

THE COURT: Okay. All right. Thank you.

Ms. Bertrand?

MS. BERTRAND: No objection, Your Honor. I have

reviewed the calendar as well.

THE COURT: Okay. All right. Let's see. Okay. On

page 5 I have removed question 9 where you ask for the juror's

full name. Their name will not be anywhere on this

questionnaire.

Question 15 and 16 where we ask: Have you been tested

for COVID or have you been diagnosed, I'm just adding the --

I'm narrowing the time frame, because I don't want to know if

they've ever been tested. I want to know if they've been

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tested within the 14 days prior to them filling this out. And

the same with diagnosis or a positive test, I'm just adding

within the last 14 days.

On page 8, question 31, where you ask about a spouse,

partner, or close family member in the military, where it says

who, I'm just going to qualify that by saying, no names,

relationship only. So they can tell us if it's their spouse or

their brother, but we -- I'm not going to ask them for their

relatives' names.

On page 12 I don't understand the objections, to be

quite frank.

So, Mr. Rapp, it says the government objects to United

States Citizenship and Immigration Services and ICE.

MR. RAPP: Right. So, you know, that particular

federal agency is not involved in this case in any respect. In

other words, they're not one of the investigating agents on the

case, those three agencies, the United States Postal Service,

the FBI, and the IRS. They do not factor into any of the

investigations of the trafficking cases that will be presented

at trial.

There is one case that involves Homeland Security

investigations, and so all we asked was that the -- that

particular agency be substituted for Homeland Security, because

they're not going to hear any evidence about the U.S. Customs

Enforcement, ICE.

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THE COURT: Okay. And the defense -- it's written

defense objects to replacing USCIS and ICE with Homeland

Security. Does someone from the defense want to answer what

that objection means?

MS. BERNSTEIN: Your Honor, as best I recall, and,

forgive me, because this was about a year ago, but as best I

recall, we just wanted all of the federal law enforcement

agencies listed, felt that that was what we were targeting for

the jurors. I don't know that there aren't instances where ICE

was later involved, or UC -- USCIS was later involved, I don't

know, and perhaps Mr. Rapp can proffer if anyone ever sought or

obtained any type of visa or anything as a result of any of the

allegations, if so, that might be relevant.

THE COURT: Okay. Anyone else?

(No response.)

THE COURT: Okay. I'm inclined -- as I read the

question, the goal is to find out if anybody has any experience

in law enforcement. So I'm not sure that it -- just because

United States Citizenship and Immigration Services might not be

involved in this case, it still could be a relevant answer to

their experience with law enforcement, because the question

asks about state and local police officers, sheriffs, troopers,

military police, so I'm inclined to leave United States

Citizenship and Immigration Services in, as well as Homeland

Security.

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Does anybody have anything else they want to put on

the record about that question?

MR. RAPP: No, Your Honor.

THE COURT: Okay. Page 13, which is the end of

question 41, it says, defendants object to the use of the word

victim. The government objects to the used phrase other

interested parties as a substitution for victim.

I'm going to leave victim in there only because it

talks about test -- family or close friends testifying in court

proceedings. I would think it would be relevant to know

whether, if it was a criminal case, they were testifying as a

victim or just a witness, so I'm going to leave the word victim

in and strike other interested party.

Question 43, which has three parts, I'm striking the

entire question, only because I don't like the way it's

phrased. I think it's set up to -- to not be a fair question,

because there is nothing in here explaining to the jurors or

asking them if they understand the rights that govern a

criminal trial.

I would suggest including something like this -- and

I'm taking this from a different questionnaire -- that reads:

The law requires the government to prove defendant guilty

beyond a reasonable doubt. Each defendant is presumed by law

to be innocent until proven guilty beyond a reasonable doubt.

This means the defendant is not required to produce any

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evidence or prove innocence.

Then a follow-up question: Do you understand those

principles of law?

And a follow-up question: Do you agree with this

principle -- these principles? Yes or no? If no, please

explain.

What's the government's position?

MR. RAPP: No objection to that question as read.

THE COURT: And, let's see, for the defense, let's

start with Ms. Bernstein?

MS. BERNSTEIN: Your Honor, I think that preamble

makes sense. And after what the Court read, we would request

that we still include those three questions, A, B, and C, to

follow what the Court read in the initial questions that the

Court read.

THE COURT: Okay. Mr. Lincenberg?

MR. LINCENBERG: I agree with what Ms. Bernstein just

stated, Your Honor.

THE COURT: Okay. Mr. Feder?

MR. FEDER: Same, Judge. We would request what

Ms. Bernstein recommended and with the Court's preamble that

you stated.

THE COURT: Okay. Mr. Cambria?

MR. CAMBRIA: Yes, I agree with that as well, Your

Honor.

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THE COURT: Mr. Eisenberg?

MR. EISENBERG: I agree as well, Your Honor.

THE COURT: And, Ms. Bertrand?

MS. BERTRAND: Agreed. Thank you.

THE COURT: Okay. So I'll add A, B, and C, however,

I'm not going to do this: Agree strongly; agree somewhat;

disagree strongly; disagree somewhat. It's either just going

to be agree or disagree, but I'll include the questions. Okay.

MS. BERNSTEIN: Thank you, Your Honor.

MR. FEDER: You're going to keep the why question,

though, right, Judge?

THE COURT: Yes. Do you agree with these principles,

and, if no, please explain, yes.

MR. FEDER: Okay. Sure. Thank you.

THE COURT: Okay. Page 16, question 50, the

defendants object to the term victims. In this question I

agree with that objection, so I'm going to take out the term --

the word victims. And so it will read: Organizations that

advocate for human trafficking, sex trafficking awareness, or

the prevention of sexual exploitation of women.

51, the defendants object to the inclusion of the term

child exploitation. I agree in this context. I think the

context in which it's involved in this case is through either

prostitution, sex trafficking, or human trafficking, and child

exploitation really doesn't add anything, so I'm going to

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strike that one.

On page 18, question 63, the government objects to the

use of the term escort services.

Mr. Rapp, can you tell me why you object to that in

the context of this question.

MR. RAPP: Well, so, you know, it's really

prostitution services. I think escort is sort of a misnomer.

So we would -- we would ask that it's -- because it suggests

that escort services is somewhat legal. And, as we know, it's

only legal in a very a small county in Nevada, so it's really

prostitution services is really the right. And so it should

really just read: Do you have strong feelings about people

working in legal adult entertainment industry, or has someone

close to you ever been affected by this type of service?

THE COURT: Okay. Does anyone from the defense want

to respond?

MS. BERNSTEIN: Yes, Your Honor. Escort services are,

in fact, a legal and -- legal and regulated form of adult

entertainment. There are restrictions in your state of Arizona

that regulate adult escort services. For Mr. Rapp to insinuate

that it is synonymous is, unfortunately, not true, and we are

trying to establish whether any jurors do have strong feelings

about the fact that it is a lawful, legal, regulated industry.

THE COURT: So I guess I did think there was a

distinction between escort services and prostitution services,

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so I guess that's the main thing, or one of the issues involved

in the case, so I'll leave it as is.

The government's objection is overruled.

Page 19, it just says defendants object, under

question 67, so I'm assuming that's just a -- you don't want

the question asked.

Ms. Bernstein, do you know why?

MS. BERNSTEIN: I apologize, Your Honor, I'm not

entirely sure what the objection was related to. And if anyone

else does, they can jump in, but I think it was just to the

entirety of the question.

And, Your Honor, I'm sorry, as I look at this, I mean,

it's a question that seems to -- we object to the entirety of

the question.

THE COURT: Okay. And I'm guessing because the

defendants object, the prosecution wanted it, so Mr. Rapp.

MR. RAPP: We think it's fair to ask a potential jury

and -- juror in this particular case whether they think

prostitution should be legalized.

THE COURT: Okay. Anyone else from the defense on

that?

(No response.)

THE COURT: I'm going to allow question 67.

MR. LINCENBERG: Your Honor, if I may add argument

here. I think that the argument here was -- and I apologize, I

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don't think we knew that we were going to go through these at

today's hearing question by question.

But the objection here is that the jurors shouldn't be

allowed to speculate here as to what prostitution is.

Prostitution is defined differently in different states and the

like, and this question as worded, I think is vague and can be

misleading.

THE COURT: Okay. And just as a follow-up, I'm --

Elaine, can you get me the text order setting today's

hearing. Didn't it say we were going over the questionnaire?

Okay. While she's looking that up, we'll go on.

Question 68, defendants object to references to child

prostitution or trafficking of children. I think I know why

the defendants object, but I don't want to put words in

anyone's mouth, so does anyone want to expound on that

objection?

MS. BERNSTEIN: Sure, Your Honor. And I'd also like

to just reference by incorporation all of the motions and

motions in limine that we filed similarly objecting to these

phrases. They're prejudicial. They assume a conclusion that

has not yet been established, and we think that it's very

prejudicial and inflammatory to include in the questionnaire

these types of phrases.

THE COURT: Anyone else?

(No response.)

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THE COURT: Okay. I'm going to -- I'll sustain the

objection, remove question 68.

All right. The next objection is on question 79,

defendants object to the use of the term victim and child in

this context. So let me reread the question.

Okay. So I've already ruled on the fact that the term

victim can be used in the trial with respect to some of the

charged counts, so I'm overruling the objection to that. I do

think that the question is just as informative if the second --

I'm sorry, third sentence, if we take out the word child, so

that it reads: Victims and witnesses may testify about their

experiences with prostitution, sex trafficking, and may

describe their experiences using vulgar or sexually graphic

language. So I would propose taking out -- sustaining their

objection and taking out child.

Does the government want to be heard?

MR. RAPP: Well, I would just say that five of our

witnesses who will testify were under age at the time they were

trafficked on Backpage, and so I think it would be important to

know if -- if a potential juror would find that to be something

they couldn't sit through or make a fair and impartial

determination based on that.

MR. LINCENBERG: And, Your Honor --

THE COURT: Yes.

MR. LINCENBERG: Your Honor, Gary Lincenberg. Both

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with regard to the word child, as well as the word victim, and

I understand that the Court ruled on use of the term victim,

which we strongly believe is an erroneous ruling, and I think

it's very important for the Court to again consider this,

because this is the first opportunity at which this jury pool

and these jurors are going to be prejudiced. Because from this

questionnaire they will assume that the Court agrees with the

prosecution that customers of Backpage who voluntarily came to

Backpage and placed ads are now going to claim to be victims of

the fact that Backpage ran an ad.

It assumes a conclusion. It assumes that somebody

who -- there is no evidence that any of these people engaged in

prostitution because Backpage pushed somebody into it. There

is no evidence that Backpage told some prostitute or pimp to

lie or do whatever they did with their ads. And to come in

with questionnaires saying, you're going to be hearing from

victims, which basically is saying victims of the crimes of

which these defendants are charged, is highly prejudicial, and

it's going to set a tone for this entire trial which puts the

defendants in a position where they have to prove their

innocence. And it should not be permitted during the trial, it

should certainly not be permitted in a jury questionnaire where

jurors are -- are from the get-go, basically, told that these

people who are going to take the stand are, quote, victims, or

assuming -- and it's going to assume as well that Backpage knew

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that somebody was a child, that they weren't lied to, and that

they were somehow involved in child sex trafficking, of which

there is no evidence and it assumes a conclusion. And it

really assumes it with the child portion of it, something

that's not even relevant to the elements of the offense. So on

behalf of my client, we strongly object to these terms being

used in the questionnaire.

THE COURT: Okay.

MR. BIENERT: Your Honor this is Mr. Bienert. If I

could just add. I think it's implied in what my colleague

said, but I didn't hear anybody expressly say it.

The biggest issue I have with this is, even assuming

the government is right on any or all of their prostitution

charges, prostitution -- if someone who purposefully was a

prostitute and purposefully placed an ad on Backpage, they're

certainly not necessarily a victim. They're probably a

coconspirator, but there are -- you know, it's a bigger social

issue, of course, Your Honor, but everyone has different takes

on whether a person who is an adult, who knowingly and

voluntarily engages in prostitution is a victim or not. I

think under the law they're not. They're a person who engaged

in an illegal act of prostitution.

So I think to add to what Ms. Bernstein said and

Mr. Lincenberg said, this isn't a case about people who are

necessarily victims. It's a case that's charged about

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prostitution. And if these people were prostitutes, then

they're coconspirators. But labeling them victims, as

Mr. Lincenberg says, is already telling the jury that everybody

here is a victim when, at least facially, they're not at all.

So it's just unduly prejudicial. And it's very hard for us to

climb out of that hole if, right out of the box, everyone who

supposedly advertised on Backpage, according to the government,

is a victim.

THE COURT: Mr. Rapp, do you want to be heard?

MR. RAPP: Well, again, there will be five women that

will take the stand. Most of them were trafficked on Backpage

by a pimp, and they were either 14 or 15 years old. They are

victims, sorry, they're not a coconspirator. And the question

is if you are chosen as a juror, you must be able to discuss

the evidence and those sexually explicit topics with your

fellow jurors as you deliberate on the evidence.

I think my -- defense counsel is missing the point of

the question. This is going to be high -- you know, it's going

to be difficult testimony for them to hear, and so we should

know if they are going to be able to deliberate on these type

of topics. And so, for that reason, we should have -- we

should include the question.

So, you know, these cases, they're victims, they've

been -- most, if not all, of their cases were prosecuted at the

state or federal level. Somebody went to prison, in most

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cases, for trafficking them and posting their text and images

on Backpage so...

MR. LINCENBERG: A more neutral way of stating this,

and it would achieve the same purpose that Mr. Rapp wants to

achieve, would be to say: Prostitutes may testify about their

experiences with prostitution.

MR. FEDER: Or advertisers.

MR. RAPP: Judge, we don't view child sex trafficking

victims as prostitutes. They are child sex trafficking

victims. They're not prostitutes.

MS. BERNSTEIN: Your Honor, if I may be heard for a

quick second?

THE COURT: Yeah.

MS. BERNSTEIN: I do agree with Mr. Rapp that it is

important to get the potential jurors, we do need to know if

they are okay looking at sexually explicit images, which is

what Mr. Rapp said, and that's what this question is designed

to achieve. Whether we label someone a victim or not is really

part of what this trial is about and so it does seem overly

presumptive to do that at this stage.

I also just want to suggest that the third, or fourth

sentence, excuse me, the one that reads: Sexually provocative

images of victims and witnesses may be introduced into

evidence, I think if we just say sexually provacative images

may be introduced into evidence, that that's exactly what we're

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trying to establish with this question.

So I think that -- you know, I understand the Court's

ruling on that first phrase, I think the second part there can

be struck while we're all getting at what we want with this

question.

MR. CAMBRIA: Your Honor, if I might add something.

Paul Cambria.

I think that by saying that conclusion to the jury,

and the Court saying it, it sounds like the Court agrees that

the government has already proven that somebody is or was a

victim, and that's the part that bothers me. And I think that

the real goal on the part of the government is to have

everybody labelled as a victim, and that tells the jury that

something has already happened that's violated the law. And I

think that that's unfair to the defendants here.

If the government feels that's their truth, then they

should prove it, but we shouldn't start right off by telling

the jury they're already there. They've already accomplished

demonstrating that somebody has been victimized. That's a

matter of proof at the trial.

THE COURT: Okay. Anyone else?

MR. FEDER: I join.

THE COURT: Mr. Feder, did you want to say something?

MR. FEDER: I join in those comments. This is not the

typical case where you've got a pretty well understood victim

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and a pretty well understood defendant. And what the

government's trying to do is create a presumption here that

there are victims, when that's really what the case is about.

THE COURT: Okay. I'm not changing my earlier ruling,

however, I will take Ms. Bernstein's suggestion to change that

one line to read just: Sexually provacative images may be

introduced into evidence.

Okay. On page 22 there is objections to the word

victim again. I do agree in the context of these questions the

goal is to find out whether because someone is an ethnic

minority or of a low socioeconomic status or have experienced

homelessness, whether those issues would affect a juror's

evaluation of them, so the fact that they're a victim wouldn't

really be -- or shouldn't be relevant to that issue. So I'm

going to strike question 82. I'm going to keep 83, 84, and 85,

but take out the words victims and, so it will just read: Some

of the witnesses in this case in each of those.

Does the government want to be heard on that since it

was you who wanted the word victim in?

MR. RAPP: Well, again, victims are going to testify

in the trial. They were underage at the time they were

trafficked. Their cases were prosecuted. They were viewed in

a criminal prosecution as a victim. They will testify as being

victims of a pimp and who posted them on Backpage, and so,

obviously, we feel strongly the child sex trafficking victims

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are victims and should be referred to that in the

questionnaire.

THE COURT: Okay. Thank you. So those are the only

changes or rulings that I had to comment on.

Does the government have anything else about the

questionnaire that you want me to consider?

MR. RAPP: No, Your Honor.

THE COURT: Ms. Bernstein?

MS. BERNSTEIN: Your Honor, we would like to suggest

that in light of the fact that the world has changed

dramatically in the past year, and even the past month, there

were a couple of additional questions that we had hoped to

propose that we think are important to touch on since we are in

a different political and social climate than we were a year

ago. We'd like if we could have a couple of days, whatever

meets the Court's schedule -- I'm not sure when the Court is

sending this out -- a couple of days to put those together,

confer with the government, and resubmit that to the Court.

THE COURT: Let's see. Our final trial management

conference is July 16th. I need to have this to the jury

office four weeks before that. So we're at the 7th, so we have

a couple of days.

Let me just talk with Elaine for a second.

(Off-the-record discussion we held between the Court

and the courtroom deputy.)

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THE COURT: Okay. If you can get it to me by the end

of the day Thursday, I know that's not a lot of time, but then

I have to look at it and try to incorporate it and get it to

the jury office. So I can give you until then.

MS. BERNSTEIN: Thank you, Your Honor.

THE COURT: Okay. Mr. Lincenberg, anything --

MR. LINCENBERG: No. I was agreeing. I was saying

thank you as well. Thank you.

THE COURT: Okay. And was there anything else you

wanted to bring up?

MR. LINCENBERG: No, Your Honor. I think that

Ms. Bernstein covered that point. That's what we had been

discussing beforehand, and I appreciate the Court's indulgence

on it.

THE COURT: Okay. Mr. Feder, anything to add or

request?

MR. FEDER: No. Thanks, Judge.

THE COURT: Ms. Bertrand, anything to add?

MS. BERTRAND: Judge, may I ask the Court to clarify.

Is the Court saying it is not going to collect the names of the

potential jurors? Maybe I misunderstood the Court.

THE COURT: I am not collecting the names.

MS. BERTRAND: Okay. In that -- at that point, Your

Honor, I would object. I would be happy to submit briefing on

it. I don't know that either side has asked for an anonymous

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jury, and the bar for that is quite high. And I don't know

that we got any notice of that, otherwise I would have been

prepared to discuss it today, but I would --

THE COURT: Well, I'm not saying you're not getting

their names. Their names are not going to be on the

questionnaire.

MS. BERTRAND: Okay.

THE COURT: Sorry.

MS. BERTRAND: Sorry, Judge.

THE COURT: Once we screen the questionnaires and we

get our final random list, it will have the names.

MS. BERTRAND: Okay. Thank you. I apologize. I --

my --

THE COURT: No. That's okay.

MS. BERTRAND: -- I heard that. Thank you for that

clarification.

THE COURT: Mr. Eisenberg.

MR. EISENBERG: Yes, Your Honor. I assumed that we'd

be able to relate the juror -- jury -- juror questionnaire to a

number given to each juror, and that way we will be able to

tell which juror has filled out -- by name, which juror has

filled out that questionnaire.

THE COURT: Yes.

MR. EISENBERG: And, Your Honor, with respect to the

mechanics of how this will work, is it going to be the Court's

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procedure to assemble the responses, disseminate them to all

counsel, and then we -- on the final management conference, we

will be addressing Your Honor on the basis of strikes for

cause, or will the Court hold off on strikes for cause until

such time as the venire actually is assembled and is brought

into the courtroom?

THE COURT: No. At the final -- okay. Here's the

process.

So the day before the final trial management

conference, unless there is an issue, everybody will have

available to pick up a flash drive with the responses to the

jury questionnaires. I will get them as well that same day.

I will go through them that night, and in the morning

I'll have my list of people that I believe should be struck for

cause, for financial hardship, or some health reason or

whatever. I'll go through my list and get any objections

anyone might have or any agreements.

Then once I'm done telling you the people that I

thought should be struck right off, I'll ask if you have

anybody you want me to consider striking. I'll hear from both

the prosecution and the defense. And then we'll end up with a

number of jurors.

And depending on how many are left on the list, when

-- we'll let the jury office know who was struck. And then the

morning of in-person jury selection, we will get a random list

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from the remaining jurors. And I haven't -- I'm not sure if

I've decided how many we actually need to call in that final

day, but it's usually around 55 or something --

Did we say 60?

Elaine just reminded me I said 60. So maybe

potentially we'll have -- so, for instance, if at the final

trial management conference after we do our strikes, there is

80 people left on the list, only 60 are going to be called back

in, and you'll get the random list the morning of.

And then when people come in person, I'll have

everybody introduce themselves in person. I know we kind of

ask them if they know everybody, but now that they're in the

courtroom, I'd like them to actually see your faces and see if

they know who you are. And then I just allow counsel to ask

follow-up questions based on the questionnaire. Because this

questionnaire is pretty thorough, so you won't be allowed to

ask, like, a general question of the whole panel. This is for

follow-up on the questionnaires.

Does that help?

MR. EISENBERG: Yes, it does, Your Honor. I wonder

how many questionnaires will be mailed out to the original

venire?

THE COURT: I don't have an answer for that.

You do.

Hold on. I know we've talked about it, and Elaine may

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have gotten an answer from the jury office. Let me check.

Well, let me just tell you, the past two trials that

I've just done, the prescreens, we had 114 questionnaires

returned the last time. I think they asked more people, but

there is always a couple that just don't fill them out.

MR. EISENBERG: The reason I ask, Your Honor -- I

don't mean to cut Your Honor off -- but let's assume there are

going to be more than 100 questionnaires returned, if we are to

get them the day before, that's pretty tight in terms of each

one of us looking them over, and then -- at least with respect

to defense -- perhaps sharing our thoughts in order to

streamline what would happen the next day. And that's one

question I have -- or observation I have.

The other is there is a standard bulletin board type

questionnaire that is not sent out to the jurors, it's usually

asked during voir dire, and I think a lot of that has been

subsumed within this questionnaire, things like: Are you a

member, or a member of your family a member of law enforcement,

et cetera. So when Your Honor says we'll only be able to ask

questions based upon the responses to the questionnaire, will

that -- is that actually -- we're going to be limited solely to

the four corners of the answers of the questionnaire? Am I

hearing that correctly?

THE COURT: Yes.

MR. EISENBERG: And if a juror, for example, offers

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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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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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management conference, so at that time is when I really need to

sort of firm up the numbers. So if you have any information

about the peremptory strikes that you want me to consider, if

you just get it to me even, you know, a day or two before the

final trial management conference, then we can talk about it

then.

MR. EISENBERG: Thank you, Your Honor.

THE COURT: Okay.

MR. LINCENBERG: And, Your Honor -- this is Gary

Lincenberg. I -- we can put it -- talk about it then, but I

will raise it now as well. We would request that if the Court

is going to be giving the government, I guess, 9 instead of 6

or so, that the Court give the defense 15 instead of 10, both

in terms of the -- some type of traditional balance, and really

also because this is such a lengthy trial, there are six

defendants who are going to have some different views on the

jurors, so that would be our request.

THE COURT: Okay. All right. And we'll firm that up

at the final trial management conference.

MS. BERNSTEIN: And, Your Honor, is that conference

occurring in person or by Zoom, if you know, because many of us

are out of state, so if it's occurring by Zoom, we'll just need

to also factor in getting the thumb drive from the Court, or

from the jury office.

THE COURT: So I have a note to talk about that,

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because the special proceedings courtroom is not going to be

modified for our purposes on July 16th. They're not going to

start setting it up for our trial until sometime, like, two

weeks before. So I prefer to have it in person, but we would

have to be accommodating and not everybody could sit up at one

of the nice conference tables. So, because of that, I'm

willing to do it on Zoom -- yeah, I guess that's what I would

say.

MS. BERNSTEIN: And that works for us, Your Honor. I

just want to account for the fact that if the thumb drive -- we

have to get it somehow, so if it is possible to get it a little

sooner from the jury office.

Also, if I'm calculating right, I think June 18th,

next Friday, would be the four-week limit. So I think if we

get it -- if we get you proposed edits by Thursday, there might

be enough wiggle room to get, perhaps, it mailed or just a bit

earlier to defense counsel.

THE COURT: I forgot about that. Yeah, you're going

to have to figure out how to get that flash drive, and you're

going to have to talk to the jury office about how you're going

to get that. Yeah, you're going to have to make arrangements

to take care of that. I don't know if one person who is local

can work with the rest of you to try to get it but --

MS. BERNSTEIN: Okay. We'll figure that out, but

just, of course, the more lead time we have, the better,

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because there are just logistics with us being out of town, and

we are a large group and it is difficult to reach consensus

often.

THE COURT: Right.

And then I wanted to talk with you all about having an

in-person status conference on August 13th at 11:00 for the

purpose of going to the special proceedings courtroom, it

should be set up by then, so we can discuss the logistics of

bench conferences, the witnesses, the jurors, and you can

actually see how it's set up. And I wanted to do it far enough

in advance that if something needed to be modified, we had time

to do that.

Does anyone have any objection to that? And I'm in

trial the following week, so we couldn't really do it the

following week anyway. At least right now I'm in trial.

Is there anybody that can't come, or, I guess, if

somebody doesn't want to come and you want to leave the

responsibility with co-counsel, I don't know.

MR. LINCENBERG: Your Honor, this is Mr. Lincenberg.

We don't have an objection to that. I do want to alert the

Court that Mr. Neuman and I were supposed to start a trial last

week. The judge hurt his leg. He has an operation. We're now

starting the trial in mid July. We will still be in trial as

of August 13th, but I'll make sure somebody from my office is

there.

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THE COURT: Okay. All right. I appreciate that.

Ms. Bernstein.

MR. FEDER: Judge, do you have -- unless I missed this

-- do you have some kind of diagram or written description of

what the modifications are going to be to the ceremonial court?

THE COURT: I don't yet, because I went down there

to -- with some people from the Clerk's Office with their

drawing, we made some modifications, and then I just never got

the modified diagram, but I'll make a note to try to get that.

MR. FEDER: That might be helpful for everybody

before -- Mr. Eisenberg and I have been talking about trying to

come down to the court to go see. I haven't been there since

one of the swearing ins, I think, so -- and I don't recall it

being that much bigger for purposes of the lawyers and

auxiliary staff, which is concerning.

THE COURT: It is, they measured it all out, but

you're right, maybe with the diagram you don't need to actually

physically come in, I just kind of assumed you'd want to. Plus

we need to have you guys try out your electronics to make sure

that they function and exhibits can be shown and things like

that. And if we have a set date, then I can have the IT people

there.

MR. FEDER: If you could get us a diagram or tell us

who to contact to get us a diagram and a description of what

they're going to do as soon as possible, then we can start at

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least talking about that and maybe making suggestions, if

necessary, you know, well before we get that close to trial.

THE COURT: Okay. That's a good idea. Thank you.

MR. FEDER: I have them every so often.

THE COURT: All right. Anyone else?

MS. BERNSTEIN: Your Honor, as for August 13th, if we

are going to proceed, I would just -- if it's possible to

request that it be, sort of, in the middle of the day so that

out-of-town counsel could fly in and out that same day.

THE COURT: Well, I suggested 11:00 a.m. because I

have sentencings in the afternoon and it's later in the

morning.

MS. BERNSTEIN: That's perfect. Thank you. I'm just

selfishly trying to not be away from my daughter too long.

THE COURT: Yes, I can imagine.

All right. Anyone else? Mr. Cambria, I don't see

you, but you're on the line.

MR. CAMBRIA: No, that's fine, Your Honor. I'll make

arrangements to be there.

THE COURT: Okay. All right. That's all I had. So

we're at recess and I'll --

MR. LINCENBERG: Your Honor.

THE COURT: Yes. Who is that? Mr. Lincenberg.

MR. LINCENBERG: This is Mr. Lincenberg. I apologize.

I did want to ask about one item. We had a lengthy

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argument on an important motion to dismiss for outrageous

government conduct and the Court has yet to rule on that. I

saw that the Court had issued an order on an under seal matter,

that's not totally unrelated to it today, but the Court may

recall that if the Court finds in our favor on the invasion of

the privilege misconduct issues, that there is a variety of

remedies.

THE COURT: Hold on one second, because I -- that

ruling went out. I'm having Elaine double check the docket.

Has anybody seen it?

MS. BERNSTEIN: No, Your Honor.

MR. RAPP: We have, Your Honor.

MR. CAMBRIA: No.

MS. BERNSTEIN: No, Your Honor.

THE COURT: It was docked under seal, because the

motion and the response and the reply were all under seal.

It went out June 4th.

MR. RAPP: It's Docket 1168.

MR. LINCENBERG: We have not seen it.

MS. BERNSTEIN: None of defense counsel has received

that.

THE COURT: I don't know why you wouldn't be able to

see it.

MS. BERNSTEIN: Normally when the Court issues orders

or anything under seal, we receive it in the mail, and it does

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take a pretty significant lag time from when the Court signs or

issues something until we can see it. We're never able to see

it on the docket. I think that is different for the

government.

THE COURT: Okay. I apologize, I didn't know that,

but the ruling has gone out and the motion was denied.

So, with that, Mr. Lincenberg, does that resolve the

questions you were going to ask?

MR. LINCENBERG: Yes, Your Honor.

THE COURT: Okay. Then we're at recess and we'll talk

to everybody on July 16th. Thank you.

MS. BERNSTEIN: Thank you, Your Honor.

MR. LINCENBERG: Thank you, Your Honor.

MR. RAPP: Thank you, Your Honor.

(Proceedings concluded at 5:04 p.m.)

* * *

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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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