Exhibit S

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 1 of 51
UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF ARIZONA 

 _________________ 

United States of America, ) 

 ) 

 Plaintiff, ) CR-18-0422-PHX-SMB 

 ) 

 vs. ) Phoenix, Arizona 

 ) December 4, 2020 

Michael Lacey, ) 10:02 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 MOTION HEARING

Official Court Reporter: 

Linda Schroeder, RDR, CRR 

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

401 West Washington Street, Spc. 32 

Phoenix, Arizona 85003-2151 

(602) 322-7249 

Proceedings Reported by Stenographic Court Reporter 

Transcript Prepared by Computer-Aided Transcription 

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 2 of 51
 2

UNITED STATES DISTRICT COURT

A P P E A R A N C E S 

For the Government: 

 U.S. Attorney's Office 

 By: PETER SHAWN KOZINETS, ESQ. 

 KEVIN M. RAPP, ESQ. 

 MARGARET WU PERLMETER, ESQ. 

 ANDREW C. STONE, ESQ. 

 40 North Central Avenue, Suite 1200 

 Phoenix, AZ 85004 

 U.S. Attorney's Office 

 By: DANIEL G. BOYLE, ESQ. 

 312 North Spring Street 

 Los Angeles, CA 90012 

 U.S. Department of Justice 

 By: REGINALD E. JONES 

 1400 New York Avenue NW, Suite 600 

 Washington, DC 20530 

For the Defendant Lacey: 

 Lipsitz Green Scime Cambria 

 By: PAUL JOHN CAMBRIA, JR., ESQ. 

 ERIN E. MCCAMPBELL, ESQ. 

 42 Delaware Avenue, Suite 120 

 Buffalo, NY 14202 

For the Defendant Larkin: 

 Bienert Katzman 

 By: THOMAS HENRY BIENERT, JR., ESQ. 

 903 Calle Amanecer, Suite 350 

 San Clemente, CA 92673 

For the Defendant Spear: 

 Feder Law Office 

 By: BRUCE S. FEDER, ESQ. 

 2930 East Camelback Road, Suite 160 

 Phoenix, AZ 85016 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 3 of 51
 3

UNITED STATES DISTRICT COURT

For the Defendant Brunst: 

 Bird Marella Boxer Wolpert Nessim Drooks 

 Lincenberg & Rhow 

 By: GOPI K. PANCHAPAKESAN, ESQ. 

 GARY S. LINCENBERG, ESQ. 

 1875 Century Park E, Suite 2300 

 Los Angeles, CA 90067 

For the Defendant Padilla: 

 DAVID EISENBERG, PLC 

 By: DAVID S. EISENBERG, ESQ. 

 3550 North Central Avenue, Suite 1155 

 Phoenix, AZ 85012 

For the Defendant Vaught: 

 JOY BERTRAND ESQ, LLC 

 By: JOY MALBY BERTRAND, ESQ. 

 P.O. Box 2734 

 Scottsdale, AZ 85252 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 4 of 51
 4

UNITED STATES DISTRICT COURT

THE CLERK: This is case number CR 18-422,

United States of America versus Michael Lacey, et al., on for a

telephonic motion hearing. Counsel, please announce for the

record starting with the government.

MR. KOZINETS: Good morning. This is Peter Kozinets

for the United States. With me on the phone is Kevin Rapp,

Reginald Jones, Margaret Perlmeter, Andrew Stone, and Daniel

Boyle.

THE COURT: Okay. And for the defense?

MR. CAMBRIA: Good morning, Your Honor. Paul Cambria

and Erin McCampbell on behalf of Michael Lacey.

MR. BIENERT: Good morning, Your Honor. Thomas

Bienert on behalf of defendant James Larkin.

MR. FEDER: Bruce Feder on behalf of Scott Spear.

MR. PANCHAPAKESAN: Good morning, Your Honor. Gopi

Panchapakesan and Gary Lincenberg on behalf of defendant

Brunst.

MR. LINCENBERG: Good morning, Your Honor.

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

David Eisenberg on behalf of Andrew Padilla.

MS. BERTRAND: Good morning, Your Honor. This is Joy

Bertrand appearing for Ms. Vaught.

THE COURT: Okay. Before we get started, who's going

to speak on behalf of the government?

MR. KOZINETS: Your Honor, that's me, Peter Kozinets.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 5 of 51
 5

UNITED STATES DISTRICT COURT

THE COURT: Okay. And for the defense?

MR. BIENERT: Your Honor, this is Thomas Bienert. It

will primarily be me, although I think other counsel may add

something at the end, but primarily me.

THE COURT: Okay. So I'll address those two counsel,

and then we'll go from there. So it's the defense motion for a

stay.

Mr. Bienert, when you address the motion, there's two

questions I had. One is in their response the government

asserts that when considering the first factor, the Court

should consider the factors used to assess whether mandamus

relief is appropriate from Bauman. And so my first question is

do you agree that that analysis plays a role in this? 

And then the second question is it does seem that the

normal course of things in cases is for this issue to be

decided by direct appeal. So what makes this case different

and extraordinary from other cases?

MR. BIENERT: Sure. And, Your Honor, with the

stilting of being on the phone and not being able to see one

another, I'll address your questions. And then I'll at least

tell you the topics I plan to hit. And I will try take a pause

after each kind of chunk, so if Your Honor wants to stop me or

say something, I'm not cutting you off.

THE COURT: Okay. 

MR. BIENERT: In terms of -- 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 6 of 51
 6

UNITED STATES DISTRICT COURT

THE COURT: I appreciate that.

MR. BIENERT: In terms of the mandamus -- Is that

acceptable, I assume? 

In terms of the mandamus standards, when you say do

they play a factor, I think they play a factor in your

determination of whether we meet the stay standards, which have

to do with whether or not we've established that we have a

likelihood of success on appeal or at least have met the

standard of a serious issue.

So I think it gets muddled, and you consider all of

those factors, and it becomes fact or circumstance dependent.

In terms of direct appeal, I agree with you that the

norm in most cases is things wait until direct appeal. And I

also agree that there are cases that one can find that go on

either side of these recusal issues. But, again, I would

submit it becomes a fact specific determination and whether or

not the party or the movant has met the standards.

In this case I think common sense and practicality

warrant that the issue should be decided now, but of course the

Ninth Circuit will decide whether they're going to do that or

not. But the simple reality is because it is our view that

there are other judges -- not Your Honor -- who should preside

over this, then of course the damage is already done if Your

Honor rules on everything and if we have a trial in front of

Your Honor.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 7 of 51
 7

UNITED STATES DISTRICT COURT

And because the case law on recusal, especially under

the sort of appearance of impartiality prong, whether a

reasonable man on the street might question impartiality,

independent of whether there truly is partiality, under that

prong and because sort of the system and the society is an

interested party in making sure that all things look

appropriate, this is a situation where it makes sense for it to

be decided before the rest of the motions are decided and of

course the time and effort of the trial. And as Your Honor

notes, this is a very extensive trial, at least -- 

UNIDENTIFIED MALE SPEAKER: Hello? Hello?

MR. BIENERT: Is Your Honor still hearing me? This is

Bienert.

THE COURT: I am. Mr. Kozinets -- 

MR. BIENERT: Okay. So, anyway -- 

THE COURT: -- are you still there?

MR. KOZINETS: Yes, I'm on the phone, Your Honor.

THE COURT: Okay. All right. Go ahead, Mr. Bienert.

MR. BIENERT: Sure. So the four areas I'm going to

try to address in order are sort of our concern, the standards

for the stay, why we believe we meet the standards for the

stay, and then a couple of particular issues that I think loom

large from Your Honor's standpoint and the government's -- and

mainly that's the timing of our filing -- and then just a

couple of the cases, the Perry case, the Melendres case, and

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 8 of 51
 8

UNITED STATES DISTRICT COURT

how they tie into, we believe, to the issue of whether we have

a serious issue that we've raised. 

So obviously Your Honor does a good job of narrating

and putting in your order the issues that we uncovered

recently. So I'll just hit what I think are the high points.

But the high points are the letter from Mark, namely, Attorney

Brnovich, from June of 2018 that we trial counsel and I will

just talk on my own behalf learned about on or about September

10th of this year, a couple months ago. And that of course is

something that not only targets human trafficking but

specifically attributes that Backpage, according to this letter

or booklet, is where a large percentage of people and children

are trafficked.

Secondly, there are videos that are out by Attorney

General Brnovich when running for office and once in office

that touch upon the issue that we're presented with. 

And more specifically we saw the videos -- I'm

sorry -- we saw the booklet. We then learned of the many other

specific statements made about Backpage and its purported

involvement in human trafficking, which of course is really

what the case is about at trial. 

And then there are two videos that really jumped out

at me that I saw since September 10th. One was AG Brnovich's

video entitled "Trust in the AG's Office" in which he talks

about --

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 9 of 51
 9

UNITED STATES DISTRICT COURT

(Sound of phone disconnecting.)

THE COURT: Mr. Bienert? Mr. Bienert?

THE CLERK: It sounds like he just disconnected, Your

Honor. He's got to call that number back.

UNIDENTIFIED MALE SPEAKER: I can't hear him either.

THE COURT: Okay. We're going to wait a minute to see

if he reconnects.

UNIDENTIFIED MALE SPEAKER: Maybe somebody can send

him a quick e-mail just in case he's still talking, not knowing

he's not on.

THE COURT: We are.

UNIDENTIFIED MALE SPEAKER: I will.

UNIDENTIFIED MALE SPEAKER: I'll text him.

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

I just conferenced Mr. Bienert back in through my line.

Tom, are you on?

MR. BIENERT: Yes, I'm here.

MR. LINCENBERG: All right. Go ahead.

THE COURT: All right, Mr. Bienert. So where I lost

you is you were talking about two videos that really jumped out

at you. One was "Trust in the AG's Office." And then we lost

you.

MR. BIENERT: Okay. Thank you, Your Honor. And the

Trust in the AG's Office really is sort of a personal

explanation from AG Brnovich about why human trafficking and

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 10 of 51
 10

UNITED STATES DISTRICT COURT

sex trafficking are a significant issue for him. It goes on to

talk about he believes that it should be aggressively

prosecuted. It's his office's goal to educate kids and other

kids about it, including his own. He notes that he is working

with federal officials to get the prosecutions done. And he

goes on to say, quote, we're at the tip of the sword when it

comes to these types of cases.

The other video is one entitled "Live your Values. Do

the Right Thing" in which Your Honor appears in what I'm

understanding is an ad along with AG Brnovich in his running

for Attorney General. 

And basically it's an interview of the two of you

talking about your shared values and you talking about the many

ways you admire him and rightly so.

But I would submit that the video shows that unlike

some couples, where they go to great pains to separate

themselves in whatever they do professionally, you two as a

couple are more aligned than many. At least I would submit

that's what most people would take away from these.

So I would highlight those. But obviously all of the

things that we noted I would submit are things that would cause

a reasonable person to have cause or concern about whether this

Court is the right court for this case because it would have

concerns about whether it could be impartial.

So then going on to the standards for granting a stay,

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 11 of 51
 11

UNITED STATES DISTRICT COURT

we need to show a strong showing that we're likely to succeed

on the merits, whether it's irreparable injury absent a stay,

whether the stay will substantially injure other parties, and

where the public interests lies.

And if we don't have numbers one and three, according

to the Leiva-Perez case, 2011, Ninth Circuit, then we can show

serious questions raised and that the balance of hardships tip

to the movant.

I'd submit we meet those standards.

I'll set aside the strong showing for last, but in

terms of irreparable injury, obviously if there is concern both

from the defendants and the public as to whether this Court is

the right court to be on the case because of the relationship

with your husband, then that concern is not addressed if

everyone goes through the hearings and the trial because it

will have already happened.

Second, in terms of substantially injuring another

party, namely the government, I'd submit in this case there is

little or no injury to the government because we have a trial

that's set several months from now. It is still far enough

away that witnesses and schedules are not locked in stone.

We frankly are all in limbo because unfortunately as

the COVID-19 information only gets worse and worse, it's quite

a dubious question as we sit here now as to whether or not we

can have a trial that by my count would probably involve 60

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 12 of 51
 12

UNITED STATES DISTRICT COURT

people per day in the courtroom in April.

But, regardless, I would submit that there's just not

a substantial injury to the party.

In terms of timing, I think we all realize this case

involves facts from long ago in a case that's been pending for

a while with a lot of motions and other issues. But another

several months is not going to relatively make much of a

difference.

And then finally where does the public interest lie?

Well, in these cases involving recusal, and especially when it

involves Section 5A, namely, the public's perception of whether

or not there could be a concern about impartiality, the

public's interest's in getting that resolved before the trial.

So then, finally, it's just a matter of whether we

have a strong showing that likely to succeed on the merits.

And, Your Honor, there are, I think, three or four

things that we think were erroneous in Your Honor's findings in

your order.

One is that your spouse's interests are not sufficient

interests to warrant recusal because not financial or

commercial.

Two, whether or not separate and apart from that or in

conjunction with that AG Brnovich's public positions against

Backpage and his publicly supporting and relying on witnesses

the government says it wants to call in the case, whether they

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 13 of 51
 13

UNITED STATES DISTRICT COURT

warrant recusal. 

And then the other one is just under Section 455(a),

whether facts and circumstances would cause a reasonable person

to question impartiality.

And for purposes of this motion for stay, Your Honor,

I'll focus on that third one.

And as Your Honor points out in your opinion, the

Court should ask how does this look to the average person on

the street?

And I would just submit that as a matter of just

practical reality, if an average person on the street is aware

of the relationship between you and AG Brnovich and his

specific positions about Backpage as he relates that it is a

site where 20 percent of the ads are underage girls being

trafficked and the relationship that at least is publicly seen

by you and Your Honor -- I'm sorry -- by Your Honor and the AG,

that that would cause someone to have concerns about

impartiality.

Second, in terms of your order, I think your order we

take issue with because it focuses on things that we don't

believe we were saying. And if we said them poorly to begin

with, I could be more clear.

Your Honor points out things that we did know. We

knew that you were married to the Attorney General. I guess we

knew generally that, probably like most people, he is against

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 14 of 51
 14

UNITED STATES DISTRICT COURT

human trafficking.

But that's not the basis of our motion. The basis of

our motion are the particular things that we learned about

recently that are specific and focused on Backpage.

And they are the very issues that are in our case. We

don't agree that Backpage was a site that was doing, quote,

most, according to the AG's submissions, human trafficking and

underage sex. We believe that's something that's an issue at

trial.

We don't agree that the government should even be able

to call many of these witnesses relied on by the Attorney

General's Office as accurate and giving the real facts. But

regardless of whether you rule they can be called, we take

issue with those, and the government has to prove those points.

So it's these specific things that are the basis of

our motion, and we simply did not know them until September.

Your Honor makes a finding that it's unbelievable that

we did not know these things. But, again, what Your Honor

points out is known is he's the Attorney General, and he

doesn't like human trafficking.

And the other thing that came out was that there was a

letter from 2017 that went to Congress with a whole bunch of

signatures on it, and your husband's was one. As I said in my

declaration and as I believe all five other defense counsel

said, I was not aware of any of those. We did not learn of

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 15 of 51
 15

UNITED STATES DISTRICT COURT

them until September of this year.

So then we get to the finding that you made, which

implies a couple of things. One, it implies that you found

that our declarations were false. I would submit there's just

no basis in the record to make that finding. You didn't have

an evidentiary hearing. There's nothing opposing what we said.

And the record doesn't say. It demonstrates the falsity of us

telling you under oath that we were not aware that AG Brnovich

is taking positions specifically against Backpage.

And I'll point out in the facts there are AG Brnovich

webinars where the person speaking is not AG Brnovich but under

his name is specifically talking about Backpage as where most

human trafficking occurs. And that webinar was in August of

this year, two, three months ago. We just weren't aware of

those facts.

Second, your opinion suggests that we should have done

an investigation of your husband. Well, I submit that we don't

have an obligation to investigate the family of the judge. And

I would tell you I've never investigated the family of the

judge. And I think the extension of such a finding that would

sort of put a burden on defendants to do that would, number

one, it's not the law, and, number two, I don't think it should

be the law. I don't think defense counsel should have to

investigate the family of a judge.

Finally, the finding that we somehow knew about this

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 16 of 51
 16

UNITED STATES DISTRICT COURT

or should have is against the background that is a little

unclear to me as to how much Your Honor knew. But Your Honor

does say in your opinion that when you were assigned the case,

you looked at the case for possible recusal and found no bases.

And you said in your opinion you were aware of your

husband's positions. It's unclear to me what positions they

were. But I would submit to Your Honor you didn't tell any of

us that. We didn't have a hearing about any of this. And had

Your Honor known or recognized back in I think it was 2000 --

late 2019 -- no, '18, when you were assigned, you should have

told us, and this would have been addressed then.

So I would submit under those circumstances, it's not

appropriate to say we were dilatory. I can tell Your Honor, as

you may know, you're the third judge on this case. We didn't

do a background investigation with Judge Logan and his family,

nor did we with Judge Rayes. They self-recused without us even

knowing why.

And I am confident that had they thought maybe they

should recuse or at least raise the issue but decided not to,

they would let us know.

I was in a hearing this past Monday where the sole

hearing was because the judge told us on the record things that

he thought the parties might want to know to address whether he

should stay on the case. And I've had that happen dozens of

times in my 34 years.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 17 of 51
 17

UNITED STATES DISTRICT COURT

So I would say that to the degree there's a finding

somehow we should have known, I would say that is nullified by

the fact that we were never told.

So on balance I would submit that we are timely, there

is nothing in the record to demonstrate that we knew about this

and sat on it, and we simply didn't. We filed within two weeks

of learning about the information. And as Your Honor notes in

your order, the standard is not how long the case has been

around. The standard is when did we file in relation to

learning about the issue.

Finally, just to touch on a couple of points, cases,

the Perry case is cited a lot by the government and Your Honor.

And I would submit the Perry case is the one with Judge

Reinhardt where he sat on an appellate bench reviewing a case

where at the appellate level counsel said he shouldn't have sat

because his wife had been the head of a southern California

ACLU, and the ACLU had taken positions on same-sex marriage,

which was one of the topics in that case.

I would submit that case does not render a decision in

this case. It's just a different situation.

First of all, in reading the facts, it doesn't appear

there were any comments made specifically about the case he was

on. It was more about and indeed the comments made were about

the ACLU, not his wife.

Number two, unlike Your Honor, one thing we share,

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 18 of 51
 18

UNITED STATES DISTRICT COURT

Your Honor, we have unusual last names. I would think that if

someone in the Phoenix community heard your name and they were

aware that the Attorney General's name was Brnovich, they would

associate you two.

Judge Reinhardt's spouse's name is Ripston, wasn't

even the same as his. No one without inside baseball knowledge

would even associate them.

Number three, appellate review is very different than

trial review. Appellate review is more of an intellectual

exercise, looking at the four corners of a record.

There are no, of course, his dealing with fact

witnesses, with jurors, and doing all of this in front of

everyone.

And there are some real practical issues in our case.

How do we conduct voir dire when one of the issues that we have

to contend with is the degree to which potential jurors may be

familiar with your husband's publications -- after all, his

goal was to educate the public -- and realizing he's got the

same last name as you?

I haven't even figured out how to do that, Your Honor,

but it's a huge practical issue.

How do we deal with certain things that come up

depending on which witnesses you allow to testify. If some of

these witnesses we believe have an angle that ties into a lot

of law enforcement, again, I haven't thought these things

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 19 of 51
 19

UNITED STATES DISTRICT COURT

through, but they are practical problems that don't exist at

the appellate level.

And, finally, in the Reinhardt situation, Judge

Reinhardt specifically found that there were not specific

comments by the ACLU about the case he was on. It was just

about the topic of same-sex marriage.

Your opinion says pretty well the same thing. The

topic of someone having an Attorney General, the topic of being

anti-human trafficking, that doesn't get you there. And I

agree with you. But that's not what our motion's based on.

It's based on the specific comments about Backpage,

specific comments that are at the heart of what this case is

about, which is going after the hierarchy of Backpage for

purportedly engaging in sex trafficking. 

Now, we disagree with all of that, and, as you know,

we have a lot of motions pending saying because the cases are

of prostitution, the government shouldn't be able to get into

sex trafficking or peddling children. Those are separate

statutes that aren't charged. But all of that is pending in

front of you.

And if the government has its way, the case it puts on

is going to be about the very same thing that your husband's

positions have taken about Backpage, and we shouldn't be in a

tough position of having to have you decide that, given the

players.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 20 of 51
 20

UNITED STATES DISTRICT COURT

And then, finally, you indicated that you found the

Melendres I case instructive. I agree with you. I think it is

instructive. But I would submit that given the language of

Melendres, it's something that objectively should be in the why

the recusal should be granted column, because, as you know, the

Court said if it's a close call, the balance should tip towards

recusal. And in that case Judge Melendres said it was a close

call and recused in an abundance of caution.

Where we disagree with your opinion is you say it's

not a close call. But I would just submit that if we really

think about the man on the street hearing all of these facts

and the degree to which your husband is the tip of the spear

against human trafficking, which he says Backpage is the

biggest purveyor of in the country, Your Honor's close and

supportive, as it should be, and admiring relationship with

him, anyone who knows those facts would at least reasonably

question the impartiality.

And I believe that for those reasons we raise an issue

that should be decided by, frankly, a separate court at the

district level but where we are now would be the appellate

court and would certainly meet the standards that are set forth

for seeking a writ on this issue.

So with that, Your Honor, I would submit subject to

other persons' comments or any questions.

THE COURT: Just on that last statement, you don't

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 21 of 51
 21

UNITED STATES DISTRICT COURT

believe that that motion should have been decided -- the motion

to recuse should have been decided by another judge, right?

MR. BIENERT: Well, Your Honor, when I say I don't

believe, I frankly believe it should have been. But I don't

believe that the law required that it had to be. When I look

at the cases, there is no rule -- In some courts, like here in

California, it has to go to a different judge. But I agree

with your implicit finding that you did not need to send it to

another judge. That seems to be the law in your district, and

that's at the Ninth Circuit. I had seen cases where it's gone

to other judges. And I think it would have been the smart

thing to do. But I don't believe you were required to do that.

THE COURT: Okay.

All right. Mr. Kozinets.

MR. KOZINETS: Yes, Your Honor.

THE COURT: My only area that I'd like you to, I

guess, go more into is this balance of equities, given -- Well,

actually before we do that, Mr. Bienert, let me ask you another

question, because had this been earlier in the case, had we not

been so close to trial and I had some idea of how long the

Ninth Circuit could potentially take, I think the balance of

equities would weigh more in your favor.

But as I understand it, we could be done with this

trial before the Ninth Circuit ever takes it up because we're

so close. Do you agree with that?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 22 of 51
 22

UNITED STATES DISTRICT COURT

MR. BIENERT: Does Your Honor want me to comment on

that?

THE COURT: Yes.

MR. BIENERT: Well, I think you are potentially right,

but I also think you're potentially wrong. I mean, my

experience, which may be not as vast as yours, is when we file

things like writs, they sometimes grant them and -- or I should

say agree to take them and, recognizing what they're about,

agree to take them on a shortened time. And in my limited

experience, I think that's the norm. But I also agree that if

they take the case, they could put it on a longer track.

But I will say my experience is that a writ of

mandamus track is a different, shorter track than a normal

appeal track. I just can't tell you what that is.

THE COURT: And as of today, because the government

mentions that the Ninth Circuit hasn't asked for a response; is

that correct?

MR. BIENERT: To my knowledge, correct. I've seen no

orders.

THE COURT: Okay. Thank you. Mr. Kozinets.

MR. KOZINETS: Thank you, Your Honor. Yes. Going to

the issue of irreparable injury and the balance of equities,

it's clear here that the defendants have not established a

likelihood of irreparable harm, and that's for two essential

reasons.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 23 of 51
 23

UNITED STATES DISTRICT COURT

First, the law is clear that they can get relief in

the direct appeal. And as we pointed out in our response, the

Ninth Circuit has recognized that accepting cases involving

truly extraordinary circumstances, the Ninth Circuit has held

that a judge's decision not to disqualify themself cannot be

appealed until a direct appeal is taken from a final adverse

decision.

That's discussed in the Thompson case, which provides

a very instructive discussion of the law in general in this

area. The Thompson case also recognizes that a writ of

mandamus is not used as a substitute for the regular appeals

process.

What is interesting about some of the cases that the

defense has cited in their petition for mandamus is that those

cases get into some of the incredibly unique and extraordinary

circumstances that can justify mandamus relief as an

alternative to direct appeal. But those circumstances don't

apply here.

So I'll just give you a couple of examples. The In re

United States case that they've cited is a case where the

government sought mandamus review of a denial of a motion to

recuse, and the Ninth Circuit recognized that the government

really has no other avenue of obtaining appellate review. If

there's an acquittal in the case, there is no right of appeal

that the government has. So mandamus was truly the only avenue

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 24 of 51
 24

UNITED STATES DISTRICT COURT

that they had available.

In the In re Sussex case that they cite, that is an

incredibly interesting and instructive case because it's sort

of a reversal of what might be characterized as a grant of

mandamus.

In that case there was a commercial arbitration, and

early on in the arbitration, one of the parties moved to recuse

the arbitrator claiming that there was a financial interest

that required disqualification. When the arbitrator declined

to recuse, they went to the district court and persuaded the

district court to remove the arbitrator mid-arbitration by

making some of the same arguments that we've heard from

Mr. Bienert today, that there's this need to intervene

mid-proceeding to effectuate a recusal if one party believes

that recusal is warranted.

The Ninth Circuit said, no, that actually was a

mistake. That was wrong to remove the arbitrator

mid-arbitration.

Why?

Because these types of recusal issues are routinely

reviewed on direct appeal, and it really upends the

administration of justice to intervene before then and do what

the district court did in that case.

And so here too the defendants have that path of the

direct appeal.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 25 of 51
 25

UNITED STATES DISTRICT COURT

The second reason why they haven't been able to show

irreparable harm is that in their motion papers and here today

as well, they talked about, you know, a bit about costs and

delays of proceeding if recusal might be determined to be

appropriate further down the line.

But the In re Sussex case and several cases that it in

turn cites say that that is never a ground for establishing

irreparable harm. And they recognize that the Ninth Circuit

has repeatedly held that financial harm is insufficient to

justify that kind of collateral review.

The -- Mr. Bienert also made reference to concerns

about, you know, the perception of partiality and how that

plays into the irreparable harm analysis. But that really is

part of the showing on the merits. They have to be able to

establish on the merits a -- either a strong likelihood of

success or at least a reasonable probability of success that

recusal is warranted under Section 455(a). And without going

into that point in detail now, it's clear that they don't come

anywhere close to meeting the standards, the very heavy burdens

that apply in this context to show that the Court erred,

plainly erred in its order on these issues.

So we would submit that their reference to that issue

in the irreparable harm analysis doesn't -- it's not addressed

there. It's addressed on the likelihood of success.

With respect to the, really, the overwhelming balance

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 26 of 51
 26

UNITED STATES DISTRICT COURT

of equities, that also tips against the defendants. And I just

want to mention here, Your Honor, that the test for getting a

stay as recognized in the Supreme Court's Nken decision and the

Leiva-Perez decision from the Ninth Circuit makes clear that if

the moving party cannot establish a strong likelihood of

success and they can only meet the reasonable probability of

success standard, which we don't think they can here, but even

assuming they could, if they're proceeding under that lesser

showing on the merits, they have to demonstrate that

irreparable harm and the balance of equities tips sharply in

their favor. And they haven't done that here.

We've talked about irreparable harm, but now

looking at the equities as they relate to the government, the

victims, and the public, those factors all weigh against

granting a stay.

As Your Honor has noted, we're fairly close to trial.

This case has been pending for two and a half years. The

defense has already obtained, I believe, five continuances.

This would be a sixth continuance of an indefinite duration

that would stop all judicial work on this case for some unknown

period of time. It would create a backlog.

We know that there are, I think by our count, nine

pending fully briefed motions before the Court. Those could

not be processed and resolved for some indefinite period. And

of course as we get closer to April, the risk of further trial

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 27 of 51
 27

UNITED STATES DISTRICT COURT

delay becomes more and more, you know, immediate.

And then as the Supreme Court has recognized in the

Flanagan case, this sort of delay is just inherently

detrimental to the administration of justice and to the

government's ability to prove its case beyond a reasonable

doubt, because, as time goes by, witnesses and evidence can be

lost, testimony can be subject to impeachment on other issues,

and it just becomes more difficult to administer justice.

And I think even Mr. Bienert acknowledged this is a

complex case. It involves events occurring over the course of

the last decade. There are many witnesses, many proposed trial

exhibits. And given that such a long period of time is

involved in this case, the risk of -- to the government and the

prejudice to the government of this sort of unknown delay cuts

against granting the stay now.

The victims also have a strong right to proceedings

free from unreasonable delay set forth in the Crime Victims'

Rights Act. And when the defense asked for their prior

continuance, we consulted the victims and reported back to the

Court that they had made clear that they are eager for their

day in court and that they are very much interested in

obtaining the certainty and closure that trial will bring.

So they have an undeniable interest that equitably

cuts against granting stay at this point.

And then with respect to the public interest, there is

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 28 of 51
 28

UNITED STATES DISTRICT COURT

a strong -- and this is from the Flanagan United States Supreme

Court case -- a strong moral and collective interest in

upholding the law and administering justice and also in the

healing and closure that comes from timely pursuing criminal

proceedings to their final conclusion.

Now, what's particularly interesting about the public

interest in this case is that there is also a strong interest

in not allowing an untimely and very thinly supported motion

for recusal to upend the progress of these proceedings for some

undefined period.

And this really gets into the timeliness issue that

Mr. Bienert touched upon. With respect to where this sits in

the kind of the procedural posture before the Court now, in

order to establish any sort of reasonable likelihood of success

on that issue, the defense would have to demonstrate that Your

Honor clearly erred as a matter of law in making your

determination that the motion was untimely. And they simply do

not get anywhere close to meeting that very high standard.

The standards for timeliness are very well established

in the Gallo case, the Preston case, the Rogers case, and have

been even more fully developed in additional case law that

makes clear that recusal movants cannot sit on information that

could support a motion for recusal and use it only when the

court has started issuing adverse rulings against them, which

is exactly what happened here.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 29 of 51
 29

UNITED STATES DISTRICT COURT

And as Your Honor lays out in your order on the

recusal motion, the defendants' motion is based on -- is

entirely based on very publicly available exhibits and

information that has been well known to the Internet-viewing

public, including, I think, Mr. Bienert highlighted a couple of

things including a handbook from -- published by the Arizona

Attorney General's Office in June, 2018. 

And just very briefly, Your Honor, that public safety

handbook is 47 pages long. One page in the middle, Page 22,

contains some discussion of Backpage, Facebook, chat rooms, and

other places where traffickers might recruit victims. There's

some additional discussion of Backpage there. But there is

nothing that talks about this federal case, that talks about

any of the defendants who are before the Court in this federal

case, or that talks about any of the charges that are pending

in this federal criminal prosecution.

And really the same goes for the videos that I believe

Mr. Bienert talked about. The campaign video says nothing

about this case. The other touches upon trafficking issues but

again doesn't identify any of the defendants before the Court,

any of the charges before the Court, or even this case, really,

at all.

And with respect to the -- Just one other factor with

respect to timeliness is another major piece of evidence that

the defense relies upon is this August 2017 letter from the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 30 of 51
 30

UNITED STATES DISTRICT COURT

National Association of Attorneys General to Congress, which is

essentially a petition for change in federal legislation.

That letter was part of a series of letters that that

coalition of virtually all State Attorney Generals had

circulated, had sent, over the course of the last decade. And

even defendants' counsel in their joint declaration

acknowledged that they were aware of these letters when this

case started but simply didn't focus on it. 

And as we've discussed in our response, there's a

large body of case law that talks about how, when there is such

widely available public information and just even the barest

exercise of diligence would uncover any further facts that

might support some sort of recusal argument, the movant does

have an obligation to bring that information to the court's

attention in a timely fashion and cannot wait until adverse

rulings have been issued against them.

And the Ernest & Julio Gallo case from 1992 -- this is

Page 1295 -- makes clear that irrespective of any obligation of

the court to discuss these issues, that obligation to bring

these matters up exists with respect to the movants. And the

Court says at Page 1295, quote, it does not necessarily follow

that a party having information that raises a possible ground

for disqualification can wait until after an unfavorable

judgment before bringing the information to the court's

attention.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 31 of 51
 31

UNITED STATES DISTRICT COURT

And the court goes on to say that to hold otherwise

would encourage parties to withhold recusal motions pending a

resolution of their dispute on the merits and then if necessary

invoke Section 455 in order to get a second bite at the apple.

So in this context the public has an interest in

ensuring that litigants do not engage in these sorts of

untimely tactics in order to upend the administration of

justice against them.

Mr. -- Well, does Your Honor have any other questions

about the balance of equities?

THE COURT: No. Thank you. All right.

Mr. Bienert, anything final?

MR. BIENERT: I would just add -- I mean, when I

listen to what government counsel says all of these things

about his -- basically his views on what would be important,

what wouldn't, what would people know, not know, on the merits

of substance, I guess I should say, of AG Brnovich's positions,

the simple reality is we don't know the answers to them except

as a matter of kind of common sense and just practical reality

it's an eyebrow raiser. I mean, if the day we walked into your

court any of us defense counsel -- and I'll certainly say on my

behalf -- I would have realized that your husband was making

these specific tip of the spear points about Backpage when this

case is about the hierarchy of Backpage and whether they were

or weren't involved in human trafficking -- we don't believe

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 32 of 51
 32

UNITED STATES DISTRICT COURT

that's what the case is about, but that's what the government

is telling you they're going to put on and you must decide -- I

would have been, like, holy moly, are you kidding me? What are

the odds of that? And it would have been addressed.

But even if somehow there is some issue where, gee,

maybe we can ferret this out, we need to question voir dire

members about this. How do I do voir dire in front of Your

Honor when I'm trying to figure out if any of our potential

jurors have followed your husband's public disseminations and

are aware of your relationship?

And I'll turn this around. Your commercial with your

husband was admirable. I wish all couples were that close.

But I'll tell you what. If I were in trial and somehow the

world turned in a way that the judge that we picked on a

commercial was saying what a laudable, admirable, respectable

guy I was and I wound up in trial with that judge, my adversary

wouldn't like it. And any juror who realized that the judge in

my case had that high of an opinion of me, I would have an

extra boost with that juror, not whether it's deserved. That's

just the reality.

THE COURT: Okay, but my husband's not -- Mr. Bienert,

my husband's -- 

MR. BIENERT: Yes, ma'am.

THE COURT: My husband's not involved in this case.

MR. BIENERT: But he's taken positions that are at the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 33 of 51
 33

UNITED STATES DISTRICT COURT

heart of the case.

THE COURT: Well, the thought that somehow comments

made about -- Okay. Well, I'll reserve my comments until

you're done.

MR. BIENERT: And I guess I'll just leave it as I

understand Your Honor, and you made that clear in your opinion.

It's just an area that we just disagree.

We think an objective person is likely to view that

with more suspicion, not that you are in fact biased but that

the appearance is one that makes people go, wow, we don't know.

So, anyway, I would submit on that, Your Honor.

THE COURT: Okay. There's a couple things I just want

to clarify for the record.

In your -- Well, before I do that, Mr. Cambria, is

there anything you wanted to add?

MR. CAMBRIA: No, Your Honor. I feel that Mr. Bienert

has well covered it. I was also interested in the practical

problem of voir dire. I think we specifically have to raise

Attorney General Brnovich's name and focus in on the articles,

because it may very well be by the time we try this case that

people, you know, will have their memory triggered. And I

wouldn't want it triggered when we're halfway through the

trial, and then one turns to the other and says: Well, the

judge obviously isn't in favor of these guys. I mean, look

what her husband said.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 34 of 51
 34

UNITED STATES DISTRICT COURT

That is a real consideration here.

THE COURT: Okay. Mr. Feder.

MR. FEDER: Judge, just one question. I'm a little

concerned about the Court's statement in its order that

essentially defense counsel are unbelievable. I mean, that to

me, without trying to be oversensitive, denotes that the Court

questions the -- not only the credibility but the honesty of

defense counsel, which in turn segues into whether or not there

is some kind of problem with ineffective assistance of counsel

that maybe needs to be addressed by the Court.

I don't know if that is based on facts that are in the

order or based on other facts, but it's something that counsel

ought to know and that our clients ought to know and under the

wrong circumstances the Ninth Circuit needs to know.

THE COURT: Okay. Thank you.

Let's see. Mr. Eisenberg, anything to add?

MR. LINCENBERG: Your Honor, you skipped defendant

Brunst. This is Gary Lincenberg. I would like to briefly add

something when the Court gets a chance.

THE COURT: Okay. I just had you further down the

list. Sorry. Go ahead.

MR. LINCENBERG: Thank you, Your Honor. Your Honor,

the one point that I would hope that the Court would consider

further on this issue is really focusing on this Court's

failure to disclose if this Court had any knowledge that your

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 35 of 51
 35

UNITED STATES DISTRICT COURT

husband had taken positions on Backpage. And the Court never

really addressed whether the Court had that knowledge, whether

the Court considered it, whether the Court should have

disclosed it at a minimum.

And I think that it relates to the question of

positions in hindsight, particularly because there is no

allegation of personal bias. It's dealing with the appearance

and the Court's opinion in which the Court criticized us for

not raising this earlier.

And I think that's a pretty critical point, and I

think the Court should take it into consideration with respect

to this motion.

THE COURT: All right. Mr. Eisenberg.

Are you there? Mr. Eisenberg? Who did we lose?

Mr. Bienert, are you still there?

MR. BIENERT: Yes, Your Honor, I'm still here.

THE COURT: Okay. I think we lost Mr. Eisenberg.

Let's see if we can get him back on the line.

MR. EISENBERG: Can you hear me now?

THE COURT: Yes.

MR. EISENBERG: Okay. I'm sorry. I was on mute.

THE COURT: Okay.

MR. EISENBERG: I would echo the comments that have

been made by all the defense counsel, including Mr. Bienert,

Mr. Feder, Mr. Cambria, and Mr. Lincenberg. And particularly

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 36 of 51
 36

UNITED STATES DISTRICT COURT

I'm concerned about the sense that counsel has -- defense

counsel have put something over on the Court by not timely

revealing comments made or publications made by the Attorney

General.

I particularly want to echo on my behalf -- and I

think it's true of all of us -- none of us knew about what we

came up with in September of this year. And I want to make

that abundantly clear to the Court, to the government.

So thank you, Your Honor. That's my comment.

THE COURT: Okay. Ms. Bertrand.

MS. BERTRAND: Thank you, Your Honor. I echo my

colleague's comments and, as several of my colleagues, also

want to make a clear record that we filed our motions shortly

after learning about the more recent statements, and I filed

that motion in good faith.

The other thing I would note is that the government

has noted the continuances in this matter. And the

continuances have happened, although I think it's somewhat

unfair to say that there's -- it's implied that it's as a

result of any gaming on the part of the defense.

One of the continuances was based on new counsel being

brought in very shortly before trial. And we've had two

largely in part because of COVID and the practical safety

issues with such a large trial being held in the midst of a

health crisis. So those would be the only other details I

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 37 of 51
 37

UNITED STATES DISTRICT COURT

would add unless the Court has any questions for me.

THE COURT: All right. As I started to say before I

circled back to other defense counsel, is there are a couple of

things I wanted to clarify on the record.

One is in my original order I didn't intend to imply

that any counsel was being -- was being untruthful in the

affidavit. What I was intending to say is that it was -- that

I guess that there was no due diligence on the part of the

parties, especially in light of the fact that they had -- and

it's clearly been a part of the discovery in this case -- this

information about State Attorney Generals being involved with

letters to Congress.

So to the extent that the parties took it as the Court

thinking they were being untruthful, I apologize. I did not

mean it to come across like that.

Next is if there's -- well, the parties seem to imply

that I withheld information from them regarding my husband's

activities, and that is just simply not true. At the beginning

of this case when it was assigned to me, I made sure to check

if the AG had any involvement in this investigation, which he

did not, or if he had made any statements about this case,

which he has not.

The other issues raised by the defense are sort of

tangential and aren't directly related to this case, which is

why I made no disclosures.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 38 of 51
 38

UNITED STATES DISTRICT COURT

And I think one of the key things in my reason for

denying the recusal is that this case is not about Backpage.

Backpage was prosecuted in a separate case, entered a plea in a

separate case.

This case is about these individual defendants and

whether they had specific knowledge of these ads as

facilitating illegal activity. And that is why any reference

to the fact that this type of activity occurs on Backpage and

other social media doesn't have the strength it would had my

husband said something particular about these defendants, which

he has not.

He has also not -- I think the defense motion says

that he's made public statements about the people, which he has

not. The entities, yes, he's commented that Backpage -- that

human trafficking has occurred on Backpage along with

Craigslist, Facebook, other social media. And you also

mentioned issues in this case. He has not commented on this

case or any of the issues in this case.

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

I do not want to interrupt, but I would like to correct one

thing that the Court may have mistakenly just stated.

THE COURT: What's that?

MR. LINCENBERG: I believe I heard the Court state

that we had this key Attorney General letter in discovery, and

that's not correct, I believe, to the best of my knowledge.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 39 of 51
 39

UNITED STATES DISTRICT COURT

The government did not produce that Attorney General letter to

us in discovery. We did a search through the discovery. There

may be others on the call who can specifically go into that.

But I believe the Court's statement in that regard is

incorrect.

THE COURT: Okay. I think -- I'd have to go back and

look, but I think I mentioned letters in general from Attorney

Generals to Congress. I'm not sure that I know one way or the

other whether or not this specific letter was disclosed.

Mr. Kozinets, do you want to be heard on that?

MR. KOZINETS: Thank you, Your Honor. It's my

understanding that it was part of the discovery in this case.

I have reached out to my colleagues to confirm. But I think,

you know, even separate and apart from that, what is abundantly

clear is that defense counsel admitted in their joint

declaration attached to their reply that they were aware of

this series of letters and -- after the start of this case, but

they just simply didn't focus on this particular letter.

So whether or not -- So even at the start of this

case, before any discovery had actually occurred, they already

knew about these letters. I think that's clear beyond a doubt.

MR. BIENERT: Your Honor, this is Tom Bienert. I just

want to be clear. I was not aware of the letters, did not know

about them at all, learned about them post-September 10th.

THE COURT: You didn't know about any of the AG

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 40 of 51
 40

UNITED STATES DISTRICT COURT

investigations and their work with Congress?

MR. BIENERT: When you say any AG investigations, yes,

I was aware there was some AG investigations. I was not aware

that there was one by Attorney General Brnovich. In fact, Your

Honor, you know, one thing I would say, as Your Honor knows --

and I understand there's a lot of fight over this among the

parties -- we just don't believe that what is charged in this

case, given that our clients were publishers and not the third

parties who posted the ads, et cetera, we don't believe that

that was illegal at the time of the matters charged.

So the fact that some AGs might make a case against

Backpage, all of which were dismissed, by the way, by courts as

not legal, but other AGs didn't, to me, could just as credibly

show, well, there is an Attorney General who gets, whether they

like the activity or not, it's not illegal activity.

So I was not aware that your husband, Attorney General

Brnovich, had taken any particular positions about Backpage. I

became aware of that from September 10th on of this year.

MR. KOZINETS: Your Honor, this is Peter Kozinets.

Again, I think, you know, the joint declaration -- it's doc

1071-2 in the record -- indicates some but not all of the

signing attorneys to that declaration were aware of this series

of letters to Backpage and Congress. Those of them who were

aware simply just didn't focus, they claim, upon the August

2017 letter and didn't focus on the fact that the Arizona

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 41 of 51
 41

UNITED STATES DISTRICT COURT

Attorney General had signed the letter.

Also of note with respect to this declaration is it

is -- it's signed by 6 of the 17 attorneys of record for the

defendants in this case. So it doesn't even cover everybody.

And of course it's not signed by the defendants themselves, who

were keenly attuned to criticism from this group of Attorneys

General that had been very publicly expressed over the course

of the last decade. And that's established in several

paragraphs in the superseding indictment where there are

multiple references to letters from this coalition of Attorneys

General and to the discussion of these letters and these

concerns that occurred internally among defendants.

So there was clearly a keen awareness. In all of the

case law that we cited on the timeliness issue, courts have

recognized that counsel need to check with their clients. And

if their clients are in possession of information that could

support a recusal argument, that needs to be brought to light

and needs to be raised sooner rather than later.

So in this case we have a very high degree of

awareness by the clients themselves, and we also have at least

some of the signatories of this declaration recognizing that,

you know, they were aware of this series of letters that 

were --

THE COURT: Okay.

MR. KOZINETS: Okay.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 42 of 51
 42

UNITED STATES DISTRICT COURT

THE COURT: I'm going to stop you because we're

getting sidetracked. Obviously that's an issue they've raised

in their mandamus petition to the Ninth Circuit, so I'm not

going to relitigate it here. I just wanted to focus in on

that.

Okay. So I have considered the motion and the

response obviously prior to coming in here and reviewed the

relevant case law.

With respect to the four factors which the parties

agree on -- and I think the parties also agree that the party

seeking the stay bears the burden to show that the

circumstances justify the granting of the stay -- as to factor

one, given the arguments that I've heard here -- and obviously

I ruled on the motion for recusal, which covered all of the

issues raised in the mandamus petition -- I do not think that

the defense has made a showing that they will likely succeed on

the merits.

Given that a review of a decision on a motion for

recusal is for an abuse of discretion, which is a high

standard, as well as the Bauman factors for taking a writ of

mandamus, which is a high bar as well, because that is, as

described by the case law, a drastic and extraordinary remedy

reserved for really extraordinary cases, I don't believe that

this is an extraordinary case, and that it's likely to be heard

on direct appeal if that even happens. The defendants could be

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 43 of 51
 43

UNITED STATES DISTRICT COURT

acquitted, and then it's all moot. So that factor weighs in

favor of denying the stay.

Specifically, just a brief comment on the Bauman

factors, the first one is that the party seeking the writ has

no other adequate means such as direct appeal to obtain the

relief. Obviously the defendants have the right to direct

appeal if they were convicted.

The petitioner will be damaged or prejudiced in a way

that is not correctable on appeal. If the courts on appeal

decide I was in error, they would remand it for a new trial.

Number three, that the district court's order is

clearly erroneous. I have, in the process of evaluating this

request for a stay, reconsidered or done an evaluation --

(Music playing over telephone connection.)

THE COURT: Whoa. Is everybody still there? Is the

government still there?

MR. KOZINETS: Yes, Your Honor.

MR. BIENERT: Yes we're here, Your Honor.

UNIDENTIFIED MALE SPEAKER: We're here.

THE COURT: All right. I've reevaluated the original

order. I still think legally it's correct and that there was

no clear error.

The fourth is the district court's order is an

oft-repeated error. I don't think that applies.

The district court order -- The fifth one is that the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 44 of 51
 44

UNITED STATES DISTRICT COURT

district court's order raises new and important problems or

issues of law of first impression.

Well, recusal orders are nothing new. The fact that

my husband's a public figure I don't believe is new. That's an

issue that's come up before, and defense acknowledged that that

wouldn't be a basis for recusal just in and of itself.

They do argue -- The defense argues that it would be

an issue of first impression if the Ninth Circuit found that

these non-financial interests, as they've alleged that my

husband may have in this case, which I found do not exist, I

guess if they found that it was a basis for recusal, these

non-financial interests, then that would be an issue of first

impression. But overall the five factors seem to me to say

that the defense does not have a likelihood of success.

As to factor two, calls for irreparable harm that is

likely to result, and that is hard to find in light of the fact

that the natural course of these recusal motions is that they

be dealt with through direct appeal.

Factors three and four, which sort of merge in this

situation, once the -- because the government is the opposing

party who represents the public, I agree that the defendants

have an interest in having this motion resolved by someone

other than me.

As for the public's interest, I looked a little bit to

the speedy trial case law, because this in essence would cause

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 45 of 51
 45

UNITED STATES DISTRICT COURT

another delay in the trial. And the case law directs that a

district court must also give significant weight to the

public's interest in a speedy trial and that the public's

interest is generally served by strict adherence to the

requirements of the Speedy Trial Act and that under the Speedy

Trial Act, the district court must satisfy two requirements

when it grants what would be an ends of justice continuance.

The first one, which I think is significant, is that

it says the continuance must be specifically limited in time.

And in this case this is a request for a stay for an

indeterminate amount of time. So this could be a four-month

stay, a year stay, an 18-month stay. There's really no way to

tell.

And the second factor is that it must be justified

with reference to the facts as of the time the delay is

ordered.

And I think it's the first one that's a problem, is

that there is no time limit to this stay.

I've also mentioned that a continuance gets more

difficult to grant once we're this close to trial.

And I also did consider the victims' position, which

has been opposed to any continuances all along.

So for those reasons, I believe the defendants have

not met their burden to justify a stay, so the motion for a

stay is denied.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 46 of 51
 46

UNITED STATES DISTRICT COURT

I would say that if I knew the Ninth Circuit was

having an interest in this, that may change the balance of the

factors. And so I'm going to set a status conference, another

telephonic status conference, to see if there's any movement on

it.

Would counsel for the government be available on

January 4th?

MR. KOZINETS: Yes, Your Honor.

THE COURT: And -- let's see -- Mr. Bienert, what

about you?

MR. BIENERT: Yes, Your Honor, I'm available then.

THE COURT: Mr. Cambria?

MR. CAMBRIA: Yes, Your Honor.

THE COURT: Mr. Feder?

MR. FEDER: Judge, could you go to some other

defendants? I'm going to get my calendar. I'm not in my

office right now.

THE COURT: Sure. Mr. Lincenberg?

MR. LINCENBERG: Yes, Your Honor.

THE COURT: Okay. Mr. Eisenberg?

MR. EISENBERG: I'm available. Thank you, Your Honor.

THE COURT: Ms. Bertrand?

MS. BERTRAND: Yes, ma'am, I'm available. Thank you.

THE COURT: Okay.

MR. BIENERT: Your Honor, this is Thomas Bienert. I'm

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 47 of 51
 47

UNITED STATES DISTRICT COURT

sorry to interrupt. I do notice I have a hearing, which I'm

assuming will be telephonic, in another case at 8:30 in the

morning January 4th. So I assume that's 9:30 your time. That

hopefully Your Honor could set this, you know, maybe anywhere

from 10:30 on that day, but I might have a conflict at 8:30.

(Music playing over telephone connection.)

THE COURT: Okay. We had a little music, but I heard

you.

MR. BIENERT: There's usually violence and trumpets

when I speak, Your Honor. I got a little -- 

THE COURT: Okay. Mr. Feder, were you able to check?

MR. FEDER: That's fine, Judge, yes.

(The Court and clerk confer off the record.)

THE COURT: Give me just a minute to check on the

time. I don't think I have any conflicts that day, but I want

to double check.

Okay. My normal courtroom deputy and judicial

assistant are out, and I can't pull up the calendar from the

courtroom. But from my memory, we're open, so I'm going to set

it at 11:00 a.m. That should be plenty of time for Mr. Bienert

to finish. And we'll e-mail the parties if we can't, if we

have to change that time. Okay?

MR. BIENERT: Thank you, Judge.

THE COURT: Anything else from the government?

MR. KOZINETS: Your Honor, I just want to note that --

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 48 of 51
 48

UNITED STATES DISTRICT COURT

I don't think it was clear at the beginning of this hearing

whether the defendants are present or there has been a waiver

of their appearance.

THE COURT: Oh, you're right. I have a note to do

that actually.

Mr. Bienert, is your client on the phone?

MR. BIENERT: He -- I believe he is, Your Honor, but

he was going to call in on the public line, so there was no

inadvertent, you know, sound. He is on the public line.

THE COURT: Okay. Mr. Cambria.

MR. CAMBRIA: I do not believe my client is, Your

Honor.

THE COURT: And do you waive his presence?

MR. CAMBRIA: I do.

THE COURT: Thank you. Mr. Lincenberg?

MR. LINCENBERG: Mr. Panchapakesan, can you answer

that question for the Court?

MR. PANCHAPAKESAN: Yes, Your Honor. Mr. Brunst's

appearance is waived.

THE COURT: Okay. Mr. Feder.

MR. FEDER: I believe Mr. Spear is on the public line,

but if not, he waives his presence or I waive his presence.

THE COURT: Okay. Mr. Eisenberg.

MR. EISENBERG: Mr. Padilla waives his presence, Your

Honor.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 49 of 51
 49

UNITED STATES DISTRICT COURT

THE COURT: Okay. Thank you. Ms. Bertrand.

MS. BERTRAND: Ms. Vaught waives her presence. Thank

you.

THE COURT: Okay. Anything else from the defense,

Mr. Bienert?

MR. BIENERT: No, Your Honor.

THE COURT: Okay. We're at recess. Thank you.

(Proceedings recessed at 11:25 a.m.)

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 50 of 51
 50

UNITED STATES DISTRICT COURT

C E R T I F I C A T E

I, LINDA SCHROEDER, 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 4th day of December, 

2020. 

 s/Linda Schroeder 

 Linda Schroeder, RDR, CRR 

 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cr-00422-DJH Document 1411 Filed 12/01/21 Page 51 of 51