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

) September 9, 2020

Michael Lacey, ) 10:34 a.m.

James Larkin, )

Scott Spear, )

John Brunst, )

Andrew Padilla, )

Joye Vaught, )

)

Defendants. )

_____________________________ )

BEFORE: THE HONORABLE SUSAN M. BRNOVICH, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS

TELEPHONIC HEARING

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

For the Defendant Lacey:

LIPSITZ GREEN SCIME CAMBRIA

By: Ms. Erin E. McCampbell-Paris

42 Delaware Avenue, Suite 120

Buffalo, NY 14202

For the Defendant Larkin:

BIENERT KATZMAN

By: Ms. Whitney Z. Bernstein

903 Calle Amanecer, Suite 350

San Clemente, CA 92673

For the Defendants Larkin and Lacey:

DAVIS WRIGHT TREMAINE LLP - Seattle, WA

By: Mr. James C. Grant

920 5th Ave., Ste. 3300

Seattle, WA 98104-1610

For the Defendant Spear:

FEDER LAW OFFICE

By: Mr. Bruce S. Feder

2930 East Camelback Road, Suite 160

Phoenix, AZ 85016

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For the Defendant Brunst:

BIRD MARELLA BOXER WOLPERT NESSIM DROOKS

LINCENBERG & RHOW

By: Mr. Gopi K. Panchapakesan

Mr. Ariel Neuman

1875 Century Park E, Suite 2300

Los Angeles, CA 90067

KIMERER & DERRICK PC

By: Mr. Michael D. Kimerer

1313 E Osborn Rd., Ste. 100

Phoenix, AZ 85014

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: We are on the record in CR 18-422,

United States of America versus Michael Lacey, and United

States versus James Larkin, United States versus Scott Spear,

United States versus John Brunst, United States versus Andrew

Padilla, and United States of America versus Joy Vaught, before

the Court for a telephonic hearing.

THE COURT: Mr. Rapp, or whoever is here from the

government, could you announce.

MR. RAPP: Kevin Rapp on behalf of the United States.

MR. KOZINETS: Peter Kozinets with the United States.

MR. STONE: Andrew Stone with the United States.

MS. PERLMETER: Peggy Perlmeter with the United

States.

THE COURT: All right. And I'm going to go through

defense counsel in some sort of order, only because we're on

the phone and it makes it difficult to have people talk over

one another.

So for defendant Lacey, who is appearing?

MS. MCCAMPBELL-PARIS: Erin McCampbell-Paris.

THE COURT: For defendant Larkin.

MS. BERNSTEIN: Whitney Bernstein. Good morning, Your

Honor. And Mr. Larkin is on the line as well.

THE COURT: Was there a second counsel for defendant

Lacey?

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MS. MCCAMPBELL-PARIS: No. Paul Cambria will not be

on the phone today. And Michael Lacey is exercising his right

to waive his appearance.

MR. GRANT: Your Honor, this is Jim Grant on behalf of

Mr. Larkin and Mr. Lacey.

THE COURT: All right. Okay. Let's see, for

defendant Spear.

MR. FEDER: Bruce Feder for Mr. Spear, who is also on

the line.

THE COURT: For defendant Brunst.

MR. NEUMAN: Good morning, Your Honor. It's Ariel

Neuman and Mr. Panchapakesan for Mr. Brunst, who is also on the

line. And I believe I heard Michael Kimerer as well.

MR. KIMERER: That is correct. This is Michael

Kimerer on behalf of Brunst.

THE COURT: All right. And, let's see, for defendant

Padilla.

MR. EISENBERG: Good morning, Your Honor. This is

David Eisenberg representing him. And we will waive his

appearance.

THE COURT: All right. Thank you. And for defendant

Vaught.

MS. BERTRAND: Good morning. Joy Bertrand appears for

Ms. Vaught. We waive her appearance.

THE COURT: All right. And we're set for a discovery

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dispute. I have read the e-mailed letter and the attachments

that included correspondence back and forth between the

government and defense counsel.

For this hearing, I'm going to ask that Mr. Feder

speak on behalf of the defense, because he contacted the Court

and prepared the documents, and then I'll hear from the

government.

So, Mr. Feder, anything you want to add? I understand

that you're asking for Document 731, that order to be modified

to something more akin to Document 1047, which is the

protective order regarding the physical tax returns.

Go ahead.

MR. FEDER: Correct. So, as the Court knows from

reading the competing correspondence, the government, having

read this Court's order, which was different than how defense

counsel read the order, to allow a read-only sharing of --

digital read-only sharing of the Jencks with the clients.

At the very least, of course, we want that. And I

think our position is that there has been a year that's gone by

where none of the alleged risks that the government asserted

that this Court, essentially, denied their motion for

sanctions, has occurred. There was a suggestion in the

government's -- one of the government's correspondence that

said we could -- we, meaning that defense counsel, could read

some of the Jencks material to our clients if there wasn't very

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much.

And I will tell the Court that on August 4th and

August 7th of this year, last month, we received about 310

pages of new memorandum of interviews, which, of course, would

be ridiculous to be in a position of having to read them to our

clients and have them absorb them, be able to use them, be able

to fashion questions out of them, et cetera. And that the

original protective order was issued prior to the time of the

present pandemic. And the Court is well versed as far as the

risk of the defendants, and some of their defense counsel, and,

for that matter, all of their defense counsel have in being

forced to be in the same room to have the clients come in and

read Jencks.

So, for those reasons, and the reason that we believe

the original protective order may not have been required, we

would ask the Court to modify the protective order to make it

the same as that order that, actually, all parties agree to, in

regard to the disclosure of the tax returns of Mr. Ferrer,

Mr. Hyer, and then the defendants and some of the corporate

defendants.

THE COURT: And, Mr. Feder, you had some objection to

the proposal that it be disclosed in a read-only manner?

MR. FEDER: I do, Judge. And here's some of the

reasons.

Number one, when the -- when the documents are only

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accessible by read only, one, that presupposes that all of the

defendants, and I can, I believe, speak for all of the

defendants, they are not all computer literate. Meaning they

can't take the Jencks and write notes about them, at least on

the document itself, which they would be able to do if they

received a print.

In order to send read-only documents, the defense

counsel have to have a read-only program to do that.

And, third, is there is just -- it doesn't appear to

be any reason to do that. If one of these defendants or

counsel or auxiliary people wanted to actually print these

documents, they could take a screen shot with their phone and

have it in that fashion. So it just seems redundant, it seems

ridiculous to impose that kind of condition on defendants who

are approaching a trial date such that their counsel and them

can effectively and easily communicate and read and reread

these Jencks materials that involve their freedom.

So one is the present protective order is not

necessary; two, is it still could require the defendants to

actually have to go to a lawyer's office to read, and we just

don't believe that that's appropriate.

So, for all the reasons that are set out in the

letters, and for all of the reasons that the case law that was

cited states, which is there has never really been a valid

specific, page-by-page, document-by-document explanation as to

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why a protective order is really necessary. And proof of that

is we're now a year down the road when these documents were

first disclosed, and the government, I don't think, can say

anything that indicates that there has been any kind of risk

from having them been disclosed.

THE COURT: Okay. Thank you.

Mr. Rapp.

MR. RAPP: Well, if we just look at what the Jencks --

the Jencks Act never was implemented for preparation for trial.

The case law is pretty clear on that. We cited a number of

cases in our previous pleadings, United States versus

Percevault, P-E-R-C-E-V-A-U-L-T, 490 F.2d 126, Second Circuit,

you know, the prosecution cannot be compelled to disclose

statements to the witness before he's testified on direct

examination. This case stands for the proposition that the

Jencks Act is not meant for trial preparation.

But, in this case, the defense has had the Jencks Act

statements for over a year, the ones that are important to

them, which I presume is Carl Ferrer and Dan Hyer. Sure, there

is Jencks Acts statements of trafficking victims that are, as

you go out and prepare for trial, they're being adopted and

they're being disclosed to the defense, but they've had it for

a year. And the August trial date, I believe, was not even

continued until June of this year, so they were within two

months of trial. And I suspect they were preparing for trial

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vigorously and had reviewed those portions of the Jencks Act

statements that they felt implicated their client.

We realize this is a conspiracy, but the reality is

not every page, for example, of Carl Ferrer's statements will

you find statements implicating Mr. Spear, for example. So

really the total amount of Jencks Act, given the volume of

discovery in this case, is pretty sparse.

They have the ability to review these documents. I

mean, I find it ironic that it's Mr. Feder who has written a

correspondence. He's the only defendant that I know of whose

client actually resides in Phoenix in the same place his office

is. And his client, if he had not already reviewed the

statements that implicate him as of June of 2020, he had the

ability to go to his office and, as we said in our

correspondence, implement social distancing, wear a mask, read

those portions that implicate him.

With regard to the other defense attorneys, I believe,

and I'm -- you know, I'm not certain of this, but I know, for

example, Lacey and Larkin's attorneys reside either in

California or New York. I presume they had been reviewing

those statements as of June of 2020 with their clients, knowing

that they would be in a trial in August of 2020.

And these are firms that I'm pretty sure have webbased platforms available to them where they can share the

document, in other words, they could get on Zoom and, you know,

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you share documents on Zoom. They could look at those portions

of the statements. I presume they've been doing that, but of

course they've been to a number of court appearances where

they've had the ability to do that.

So, for that reason, they've had the statements

available to them, they have the ability to review them. Zoom

is a free web-based platform. You can get it for an hour for

free, I believe, but -- so they've had the ability to do it.

With respect to the concerns of the witnesses, do the

witnesses still have concerns about their safety, absolutely.

Every single witness that we've interviewed, former employees,

and not just limited to Hyer and Ferrer, the other moderators

or employees all express concerns about testifying in this case

and how their identities will be disclosed and how their

statements will be disclosed.

If we go back to the rationale for the protective

order in the first instance, this was because of an article in

a publication called Wire where they disclosed the internal

memorandums that were subject to a court order to be disclosed.

But, in that same article, they impugn the integrity of Carl

Ferrer, they write about the fact that he has given the actual

quote from the Wire article. It's unclear how effective Ferrer

will be. Over the past decade, he has given numerous sworn

statements in Backpage litigation that contradict --

THE COURT: Mr. Rapp. Mr. Rapp.

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MR. RAPP: Yes.

THE COURT: Sorry. We lost you for one second.

So the last thing the court reporter got was: It's

unclear how effective he will be. Over the past decade, he's

given numerous sworn statements in Backpage litigation that

contradict, and that's --

MR. RAPP: Yeah, contradict assertions in his plea.

This is a quote from the Wire article. This is -- if the Court

recalls, this is sometime ago, but the author of that article

was an attorney who appears at court appearances with the

defendants in this case. I mean, if I understand what

Mr. Feder was requesting, he was asking that these statements

should be made available to attorneys who are not of record in

this case, and investigators, and all that, and, obviously, we

oppose that for this very reason.

Look, Carl Ferrer, Dan Hyer, and the former employee

moderators that are testifying against these defendants, all of

these individuals are going to testify that there was a

criminal enterprise. We have the same concerns about these

witnesses that you would have in prosecuting any criminal

enterprise.

Mr. Ferrer, in particular, is a devastating witness

for these defendants. He is going to put into context nearly

thousands of e-mails that are incriminating that have

conversations that he's had with the defendants. And so we

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believe that they -- given an article like this, and some other

pleadings they filed where they trumpet these declarations,

that we believe that trial will show that they were written by

the attorneys for Mr. Ferrer.

And so we think that, given their track record, they

will do whatever they can to impugn the character of not only

Mr. Ferrer, but these other witnesses, and they use their

statements, and to disseminate those statements to these sort

of vague, unknown third parties, attorneys who are not of

record, investigators who we don't know.

So, for that reason, as we get closer to trial, we

think that those issues are even heightened. There is a lot at

stake here. I mean, the guidelines are life imprisonment. The

money that has been seized is not inconsequential. And so,

yeah, we think anybody who ran a criminal enterprise and has

been charged with that would not want these witnesses to

testify and will do what they can to impugn their character.

And, again, Jencks, by statute, is given after the witness

testifies for impeachment purposes.

And, by the way, that's the way some of these trials

have ran in this district. It's mostly these statements are

given much closer to trial, not years before trial, not, as we

are now, 15 months prior to trial.

THE COURT: Okay.

MR. RAPP: So we don't think the pandemic has changed

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the posture of these statements one bit, because many of these

defense attorneys and their clients were not even in the same

city to begin with and had to employ technology to review with

them in the first instance.

So, for that reason, we would oppose the request by

the defendants.

THE COURT: Okay. But, Mr. Rapp, I understand that

Jencks materials are not normally disclosed, however, the

government, along with the defense, submitted a proposed

scheduling order to Judge Logan that included a date for

disclosure of these materials, correct?

MR. RAPP: Right. No. And no question. I'm not --

I'm not saying that we didn't engage in a scheduling order in a

complex case. But we could have, under the statute, said, hey,

we'll give you these Jencks a month before trial. But, the

reality is, this is going to be a lengthy trial. And despite

the fact that Jencks is not designed for trial preparation, you

know, it's going to be a lengthy trial, and we didn't want the

delays that are sometimes occasioned by the timely disclosure

of the Jencks under the statute, so that's why it's given in

advance.

But we did not give them these statements that are

produced and prepared for this federal criminal prosecution,

and they do not exist independent of this federal criminal

prosecution, for the defense to disseminate them to third

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parties. If the question is do we trust that these would be

maintained and not disseminated, no, we don't. The track

record suggests that that cannot be trusted.

And so that's why we would, even as we get even closer

to trial, we are even more concerned about compliance with the

protective order.

THE COURT: And, originally, when you submitted that

schedule order, there was no protective order. So the normal

concerns with disclosure of Jencks material wasn't really an

issue until that Wire article came out, correct?

MR. RAPP: Right. And then we begin to see -- right.

And then we begin to see pleadings where they were, you know,

trying to impugn the character of Carl Ferrer. The defense,

Lacey and Larkin in particular, have their own sort of digital

monthly magazine that sort of highlights the, you know, the

posture of this case, and, you know, they mention Carl Ferrer

in there, and so that's what gives us the concern, right. I

mean, the reality is you had a court order out there ordering

them to destroy certain internal -- inadvertently disclose

internal memorandum, in our view, they didn't comply with that,

so that gives us concern about the Jencks statements of these

witnesses, particularly, as we get closer to trial.

THE COURT: Okay. Mr. Feder, so --

MR. FEDER: I'll follow up on the Court's --

THE COURT: Well, my -- what I'm asking -- what I want

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to hear from you is why -- you've already been granted access

to Jencks material that you would not normally be entitled to

in a criminal case, and why should that be expanded further?

MR. FEDER: Because, number one, the parties did agree

to the early disclosure of Jencks, as has been done, at least

in every, certainly, white collar case I've ever been involved

with in 40 years in front of this court.

And I am guessing Mr. Eisenberg and Ms. Bertrand will

say the same thing in regard to their experience here. And I'm

guessing that counsel from New York for Mr. Lacey, and counsel

for Mr. Brunst and Mr. Larkin in California will tell you the

same thing. There is probably not a court in the country that

would ever allow the government to serve a Jencks Act on the --

and they can't do that because the court has supervisory powers

under the United States versus Grace case, which is 526 F.3d

499, Ninth Circuit, 2008, for the orderly conduct of their

trials.

Think about a two-month trial, Judge, where the

government gives the Jencks materials out after each witness's

direct testimony and what -- how that trial would go. It would

elongate it from a two-month trial to a 12, you know, a

12-month trial. So what Mr. Rapp is saying is, candidly,

borders on the absurd, it just never happens by practice, and

the Court has supervisory powers to make it not happen in order

for the orderly supervision of trials. That's number one.

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Number two, the parties agreed to this. And the

alleged reason for the government's claim now that there should

be restrictions on it is regarding a motion that this Court one

year ago, and actually more than one year ago, said was based

on speculation, at page 46 of the transcript. So there was no

basis for it then, certainly with the changed conditions, those

changed conditions being, number one, the passage of time.

There is no specific allegations that the government can make

that there has been any kind of --

And, number two, because of the common problems, the

Court knows, based on sealed submissions, at least from

Mr. Spear, and I know from others, that there is real good

reason why I don't want Mr. Spear to have to come to my office,

and he doesn't want to have to come to my office in order to be

in a closed atmosphere, mask or no mask, touching documents one

by one to read them. And, as we get close to trial, the need

for those inspections and reviews and discussions is going to

accelerate and expand.

So I'm not -- I resent very much the government's

assertion that somehow counsel was involved in making an unfair

allegation, but, you know, we went through that a year ago at

the hearing, Judge, and, again, this Court's order was to deny

the motion for sanctions, because the government's assertions

are speculation, and that's all they are.

So, realistically, in order to prepare for trial, the

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defendants need to have access to these documents every day so

they can look at them, prepare, and help their client -- help

their counsel prepare, tell them what they -- you know, what

Mr. Ferrer, for instance, is seeing, and why they think that it

is, to look for impeachment, et cetera, et cetera.

Finally, one other thing. I don't know where Mr. Rapp

is coming from on this, but the present protective order allows

the sharing of the Jencks Act with people who are authorized,

and that includes people who are retained to assist the

defense. Those are the lawyers that we're referring to that we

want to be able to share the Jencks Act documents with. That

is lawyers that are helping, or paralegals that are helping, et

cetera, to be able to look at that and give their two cents as

to what, you know, what they see and what ought to be done with

them.

There is nothing that's ever been asserted, and no

proof whatsoever, that anybody in the defense has shared any

document to anybody other than authorized persons, in light of

the protective order from last year. And if Mr. Rapp has any

evidence to the contrary, let him put it on the record right

now: Person, date, time, document, et cetera.

THE COURT: I don't think he made the accusation that

anybody violated this protective order. I think he, at least

what I heard, is he was referring to his concerns about what

happened before. And, of course, my concern is, well, the

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protective order did its job, in that nothing else has been out

in the public arena.

MR. NEUMAN: Your Honor, this is Ariel Neuman for

Mr. Brunst.

I just want to point out, the Court's current

protective order, Document 730, at paragraph 4, does not allow

defense counsel to copy or reproduce the material. So I'm not

sure how Mr. Rapp even makes the suggestion that somehow we are

reproducing it online. It literally does not allow us to copy

the document that we get from them, so the restrictions here

are totally unwarranted.

From the beginning, and I remember I was looking back

at the transcript from last year, Mr. Rapp and the government

team conceded that there was no -- nothing to implicate

Mr. Brunst in their unsupported allegations. They conceded

Mr. Brunst never did anything wrong and they had no evidence

that he did. This has been collective punishment from day one,

which has been totally inappropriate.

Even today, what we've, essentially, heard Mr. Rapp

say is that they're not concerned for anybody's safety, there

is no basis for that, which would be a real reason to enter a

protective order. They're concerned that people have said not

nice things about their witnesses. That's not a basis to enter

a protective order.

In this case, all we're asking for is that the same

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UNITED STATES DISTRICT COURT

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restrictions be imposed that were imposed in Document 1047,

which are that everyone abide by the restrictions the Court

ordered that the documents not be disseminated further. There

is no basis for anything more restrictive than that at this

point, especially for Mr. Brunst, but, I would submit, for any

of the defendants.

THE COURT: All right. And didn't I say at the

beginning of this that Mr. Feder was going to speak for the

defense?

MR. NEUMAN: You did, Your Honor, but I feel like I

have to make a record for my client, and any appearance where I

am here on behalf of my client.

THE COURT: All right. I'll take it under advisement

and issue an order by the end of the day.

Thank you. We're at recess.

(Proceedings concluded at 11:03 a.m.)

* * *

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UNITED STATES DISTRICT COURT

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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 February,

2022.

/s/ Christine M. Coaly_______

Christine M. Coaly, RMR, CRR

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