UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

_________________

United States of America,

Plaintiff,

vs.

Michael Lacey, et al.,

Defendants.

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No. 2:18-cr-00422-DJH

Phoenix, Arizona

August 4, 2023

1:49 p.m.

BEFORE: THE HONORABLE DIANE J. HUMETEWA, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS

(DOES NOT CONTAIN SEALED PROCEEDINGS)

IN-COURT STATUS HEARING

Official Court Reporter:

Cathy J. Taylor, RMR, CRR, CRC

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

401 West Washington Street, Spc 31

Phoenix, Arizona 85003-2151

(602) 322-7249

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 Plaintiff:

UNITED STATES ATTORNEY'S OFFICE

By: Mr. Kevin M. Rapp, Esq.

Mr. Andrew C. Stone, Esq.

Mr. Peter Shawn Kozinets, Esq.

Ms. Margaret Wu Perlmeter, Esq.

40 North Central Avenue, Suite 1800

Phoenix, Arizona 85004-4408

For the Defendant James Larkin:

OSBORN MALEDON

By: Mr. Timothy J. Eckstein, Esq.

Mr. Joseph Nathaniel Roth, Esq.

2999 North Central Avenue, 21st Floor

Phoenix, Arizona 85012

For the Defendant Andrew Padilla:

DAVID EISENBERG, PLC

By: Mr. David S. Eisenberg, Esq.

3550 North Central Avenue, Suite 1155

Phoenix, Arizona 85012

For the Defendant Scott Spear:

KESSLER LAW OFFICE

By: Mr. Eric Walter Kessler, Esq.

6720 North Scottsdale Road, Suite 210

Scottsdale, Arizona 85253

- and -

FEDER LAW OFFICE, PA

By: Mr. Bruce S. Feder, Esq.

2930 East Camelback Road, Suite 160

Phoenix, Arizona 85016

For the Defendants:

BIRD MARELLA BOXER WOLPERT NESSIM DROOKS

By: Mr. Gopi K. Panchapakesan, Esq.

1875 Century Park E, Suite 2300

Los Angeles, California 90067

For the Defendant Joye Vaught:

JOY BERTRAND, ESQ, LLC

By: Ms. Joy Malby Bertrand, Esq

P.O. Box 2734, [!ADDRESS-B6]

Scottsdale, Arizona 85252-2734

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P R O C E E D I N G S

(Proceedings commence at 1:49 p.m.)

(Sealed proceedings previously held on the record

contained in a separate sealed transcript.)

THE COURT: All right. Let me just provide just some

direction for those who are in the public proceeding and also

to counsel.

I want to remind counsel that we have no Wi-Fi or

Internet access in this courtroom. I think that was the case

previously, but we've actually had to reestablish some of those

connections for court staff. So counsel are permitted to bring

in a hotspot or use their own Wi-Fi during the proceedings.

And, of course, we have indicated to the public that there is

no recording under local rule of the proceedings. And so with

that, let me move forward.

First, let me inquire of Mr. Eckstein or the

government. Is there a -- is there a motion?

MR. RAPP: If the Court would take an oral motion to

dismiss, I'm happy to make that, or to provide the Court a

written motion.

THE COURT: You may make the oral motion, and you may

supplement it with a filing.

MR. RAPP: All right. The Court would move to dismiss

the superseding indictment against James Larkin as to James

Larkin only.

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THE COURT: And the Court will so order.

Now, we have determined the necessity to delay the

start of trial. But having submitted a voluminous jury

questionnaire to a venire of a few hundred, we have worked

diligently to ensure that those questionnaires were returned,

and they were reviewed in a previous hearing.

And so let me clarify what I think I understood the

government to say, that, Mr. Rapp, you believe that there is no

necessity to extend any trial days beyond November 3rd.

Is that what I heard you say?

MR. RAPP: That's what you heard me say, yes.

THE COURT: So there is no modification in the jury

schedule, which then would have us begin the trial on Tuesday,

August 22nd, through November the 3rd, as previously

determined, keeping in mind the half day Fridays, the vacant

trial week the first week in August, and the modified schedule

over the Labor Day holiday period.

Is that correct, Mr. Rapp?

MR. RAPP: That's correct.

THE COURT: All right. So to that end, and having

reset the trial, is there any counsel who wishes to place a

statement or objection on the record?

MS. BERTRAND: Yes, Your Honor. May I approach?

THE COURT: Yes, please.

MS. BERTRAND: Good afternoon, Your Honor.

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The defense -- I think I speak for my colleagues as

well -- is very grateful to the Court for being willing to talk

about this and find a solution that serves the Court's

interests, the interests of our jurors, the government's

interests, and the defense.

It is the consensus of the defense that the -- that

the two-week continuance does not allow sufficient time for us

to effectively defend this matter. That takes into

consideration the -- I'll call them the logistical and

administrative issues that Mr. Larkin's death presents that we

talked about under seal. It -- the defense believes, and I

think this can still allow the Court to hold onto the venire

panel it has, that if we were allowed to begin the -- I think

it's the Wednesday after Labor Day. That's the 4th or the 5th

of September. That's an additional two weeks. It would allow

us to get up to speed with these large transitions that need to

occur, redistribute the witness assignments, prepare the new

witness assignments, and still allow us to hold on to this jury

venire panel.

It might mean asking the venire panel if they can go

until November 17th, but that seems -- and this all presumes

that the government's case ends up taking as long as the

government anticipates. I don't know that it will be the case.

But I speak for the defense when I say in evaluating the -- the

investment these potential jurors have made in this

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participation, the Court's investment in planning such a

complex trial, and all the logistics here, the -- the best we

can do, given this transition, is a four-week continuance. And

even then, the defense has concerns, but we've agreed we can

make that work.

And I don't believe that that would create an undue

inconvenience in an already inconvenient situation,

particularly when evaluated in the light of the requirements

each of these lawyers have under the Sixth Amendment to provide

a thorough, fulsome defense for the clients.

I don't know if my colleagues have further comment,

but I drew the short straw, so I went first.

THE COURT: Anything other from any other counsel?

MR. CAMBRIA: May I, Your Honor?

THE COURT: Yes.

MR. CAMBRIA: First let me say, Your Honor, that we

appreciate that you are recognizing the need for some

alteration in the schedule. What concerns me is we worked with

the so-called hot seat person in the past, and each one of us

had to meet with that individual, coordinate.

This is a case with a lot of exhibits. We're sitting

here now where, through no fault of our own, obviously, we have

20 witnesses and all of their exhibits who have to be doled out

among us, and that has not been able to be accomplished yet.

When it is, we have to prepare for all those individuals.

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In fact, I do recall the other day Mr. Eckstein

indicating that all the time that he had from the beginning of

the case until the other day, he still felt he was not prepared

on all the witnesses. Now we have to take all those witnesses

and, once we're prepared, then meet with the hot seat person so

we can coordinate things.

It -- it -- I appreciate, obviously, the service of

jurors, and at the same time appreciate the fact that the Court

clearly has -- is going to accommodate the fairness to the

defendants here and the effective assistance of their

attorneys. We've worked very hard on this case. I know the

government's worked very hard on the case. But there's so many

exhibits here. I mean, we were -- the Court knows the volume

that we have. Those of us who have not taken on these new

witnesses really don't know what we're facing at this point and

how -- how -- how difficult that job will be to be able to

prepare.

I think asking for an additional two weeks is

conservative. We'll do everything possible to be ready. As I

say, maybe the jurors can be accommodated. They might be

questioned about their own situations and schedules. I don't

know. But I'm concerned because I do remember the process of

meeting with the hot seat person. I might say I'm -- that

that's a -- a whole new thing for me. In fact, back in the

East and so on where I practice, we don't have a hot seat

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individual. We have -- you know, I might hand an exhibit to

somebody, or we have computer exhibits, obviously. But I do

know that it -- I spent more than a day with the hot seat

person that we did have before coordinating all the exhibits

that were necessary to do that job.

So all I'm saying is I appreciate everything the Court

has done in considering this. I do think that in fairness we

should have an additional couple of weeks to try to make this

happen.

Thank you.

THE COURT: Thank you, Mr. Cambria.

Mr. Feder.

MR. FEDER: I appreciate that the Court has contacted

the administrative staff in regard to the so-called hot seat

and the transfer of the database; however, as we sit here, we

don't know when that will happen, when that happens, and the

transition will begin.

But I want to talk specifically about Mr. Spear. As

the Court knows, I am at this point an unpaid Knapp counsel.

Mr. Kessler joined in the motion that was made by -- by

Mr. Eckstein last week, or earlier this week. And the

transition, I think I want to tell the Court, is that falls

especially heavy on both. The Court has mentioned on several

occasions, as has the government, that I've been on this case

for five years, but I'm no longer in a primary role. And --

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and I think the expectation that I am -- I, as opposed to

Mr. Kessler, am going to take on this responsibility without

remuneration is unfair, and it -- it is also unfair to

Mr. Spear in regard to the effective assistance of counsel.

So I join in what the other folks have said.

Certainly the Court could inquire of the venire now about

whether or not an additional two weeks would cause a hardship

on them, and maybe if -- I guess depending on the results, we

could revisit this at worst.

THE COURT: Thank you.

Mr. Eisenberg.

MR. EISENBERG: Thank you, Your Honor.

The Court earlier had mentioned the possibility of

extending the venire of the trial by two weeks to around

mid-November. I think that would still work, assuming that

this case can be extended four weeks instead of two weeks. It

appears as though, based upon the government's schedule, they

will be done within the same amount of time as -- as had been

initially projected. And it still allows us to do what we need

to do in order to prepare for an extra -- you divide all those

witnesses up among us, those cross-examination and lead counsel

in terms of direct examination, that's a whole new ball game,

Your Honor.

So I echo my counsel's -- my co-counsels' request in

terms of having this extended by just another two weeks. I

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think it's workable.

THE COURT: Thank you.

Anyone else wish to be placed on the record?

MR. PANCHAPAKESAN: No, Your Honor.

THE COURT: Mr. Rapp.

MR. RAPP: Well, we would object to that for a number

of reasons. One, we're still a little bit unclear about

this -- this service that they're talking about, the -- the

transfer from Osborn Maledon to the current. That -- that

would be something that would seem like it would come up at the

beginning of the case or in the middle of the case, but we're

at the point where the defense has identified 1,000 exhibits

and given it to us on a disc, and we have given them 2,000

exhibits and provided them on a disc. This case was in trial,

so I -- it's a little bit unclear what they're talking about in

terms of this --

THE COURT: Let me just interject there.

There's a little bit more of a fine point to that, and

it is that there has to be a licensing agreement that's entered

into. The budget -- our Ninth Circuit budget office has to

review the parameters of those agreements and determine whether

or not we have the -- the ability to pay an hourly rate,

whether it comes in a reduced or a higher amount. We've got

some negotiation to go through.

So there's a -- there's a few more logistics that we

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have to work out in order to make this transition as smooth as

possible. So I just wanted to make that point.

MR. RAPP: I fully appreciate that. I just don't know

what the material they're talking about, because we're -- we're

at the point where we've exchanged exhibits. They have

exhibits that they've given us that they intend to use at

trial; we've given them exhibits digitally that we intend to

use at trial.

What -- what is this information that needs -- I

understand there's a budget issue here. I just don't

understand what the material is since we've -- we already

started this trial a couple years ago, and now we're at the

point where we've exchanged exhibits. That's my -- that's my

first point on that -- that issue.

The second thing is they keep referring to this hot

seat. I've never heard that term, but if this is a person who

sits there and simply uses the -- a Trial Director platform and

puts an exhibit on, that's -- that's not a very difficult role.

You just give them the list of the exhibits. They just, you

know, call them up. I understand that there might be some

budget considerations. So we don't view those as, you know,

too -- I still am unclear as to what they're talking about, the

material that Osborn Maledon is hosting.

With respect to the division of the witnesses, clearly

we don't want to get into the defense strategy, but what I do

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know is from the previous trial that multiple attorneys

cross-examined the -- the few witnesses that took the stand.

So they didn't -- there didn't seem like it was just one

attorney handling one witness. I'm just going on that

particular trial.

But on -- on balance, four weeks, I think, would not

be fair to this venire. We'd have to -- we would have to ask

for an extension, and then we would then start losing jurors.

THE COURT: Let me pose something, and then I'm going

to have to take a couple minutes and confer with our jury

administrator.

I'm willing to entertain a trial date of August 29th.

And the only reason that I -- and I think that's as far as I

can go with the hopes of using this venire. And the reason I

say that is because we would have to -- I know this to be sure.

We would have to use the jury panel that comes in on the 14th

to supplement those that we will most assuredly lose either

because they've heard about the recent events from media,

social media, the news, and whatnot, and have changed opinions

because of that, and because of any extension of the trial

time. And that said, however, I need to confer with my jury

administrator.

But before I do, let me say this: If we were to start

on the 29th of August, would then, Mr. Rapp, that require us to

use the first week in November, November 6th and ending on the

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9th, or going through the 17th?

MR. RAPP: Yeah. I mean, I think the consensus is

that we would need an additional -- we'd need till the 17th if

we're going to lose another week. We would be in a very

aggressive pace with some of the breaks that we're taking.

We -- and the -- the Court has already told us those are the

breaks. And my experience is Courts are loathed to give up

those breaks because they've already made other commitments.

So if -- if you're going to add another week, we would

like to go to the 17th. We just don't know what the extent of

the defense case is.

THE COURT: All right.

MR. RAPP: I know what they're saying, but I don't

know.

THE COURT: All right. Let me -- give me about

five minutes to confer with the jury administrator.

(Recess from 2:10 p.m. to 2:20 p.m.)

THE COURT: All right. We are back on the record.

I conferred with our jury administrator. Let me --

let me just say that -- one thing. It dawned on me I had not

received clarification about when this trial calendar was set.

And, as the parties know, I set the trial calendar based on the

weeks that you had previously agreed to prior to the first

trial.

In your calculation of weeks of trial, 12 weeks, did

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that incorporate room for jury deliberation? Is that built

into this 12-week calendar?

MR. RAPP: It was as far as the United States is

concerned, yes.

THE COURT: Does anyone not have that same

understanding from defense counsel? Okay. So it was built in.

So in conferring with the jury administrator, it is

feasible to use the same screened panel if we move the trial

date to August the 29th. Now, because Mr. Rapp indicated that

a one-week addition would not create an issue with regard to

the prior November 3rd end date, I'm going to hold to that, so

our end date now is going to be November 9th. That cuts a day

off because of the November 10th holiday. However, I do intend

during the course of the trial to inquire of the -- of the

seated jurors whether or not they have any opposition to going

later on certain Fridays, and that will build in additional

safeguards in time.

Now, I will say there is a reality that even though

we're trying to salvage and use these good citizens who have

diligently filled out these questionnaires, there's a great

likelihood that we will lose a tremendous number of them. And

in order to use those individuals who will be reporting for

service in other trials on the 14th, I'm going to modify and

streamline the questionnaire that they will be receiving. I am

going to cut out primarily all of those questions that I

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normally would probe into in any voir dire process. I will

send to you my revised questions. I know that there are going

to be objections, but there's just no way that these jurors are

going to sit there and fill out a 75-page questionnaire and do

it within the time allotted that they are reporting and to

permit us to then screen out those who have calendar conflicts.

I'm reminded by a jury administrator that of the over

500 questionnaires that we sent out, we've got about a

25 percent rate of return of what are sitting here in the court

as usable citizens. So I ask you to be understanding of that

in the revised questionnaire. I know you want to get to every

nook and cranny, but I think the -- the primary issues are

going to be related to their awareness of recent events. And I

think possibly moving this out a little bit further will

address those concerns as well. I think. And I'm -- I hope

that is the case.

And so what I will do is I will take the first cut on

that juror -- jury questionnaire that will be provided to the

panel that will appear on Monday the 14th. I will set forth in

a minute entry the calendar that will follow in terms of

providing that to counsel, you reviewing that, and getting

those possible stipulated hardship removals out. And we will

move forward with a proposed trial date of the 29th.

Is there any point of clarification that is needed by

government's counsel?

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MR. RAPP: Yes. And I confess. I apologize. Do

you -- we don't need to be here on -- next Tuesday?

THE COURT: No.

MR. RAPP: Just the jury's showing up?

THE COURT: Just the jury.

MR. RAPP: And we don't need to be here on the 14th?

THE COURT: You do not need to be here on the 14th.

MR. RAPP: Thank you.

THE COURT: You will receive by the end of the day on

Tuesday the 8th the supplemental, and I'll submit to you today

a copy of the supplemental questions that I ask of the -- those

jurors that will appear on the 8th. Now -- and so I will issue

a minute entry in terms of any other required responses that

are needed on a changed jury questionnaire.

Now, let me just say that I have received and I have

reviewed the government's revised statement of the case. I've

looked at it. I have my own review. I believe that their

revisions are acceptable. I have received the renewed

objection on the Court's First Amendment jury instruction. And

while I want to have a few more minutes to consider it, at this

point I'm not inclined to change my earlier decision, but I

will give it careful consideration and inform the parties at a

later date.

We, of course, will have to undertake rewriting those

instructions and any other materials that may be publicly

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placed on the docket in the trial, and we will do that and have

begun doing that. And I suggest that if you identify parts of

your case that -- your opening statements and so on, that you

do so as well and be very diligent about that.

Now, what I will intend to do is in the minute entry I

will set a final pretrial conference to go over any other

housekeeping matters that need to be addressed. And I will

also have that time so that we undertake the process of

reviewing those new jury questionnaires. I'll set that for the

morning, because I don't want to put it beyond the 5:00 o'clock

hour as we did previously. And I will -- I'll calendar that

when I get back to chambers after hearing.

Now, what I do intend to do, Mr. Rapp, is order that

the government produce its revised witness list no later than

next Wednesday --

MR. RAPP: Okay.

THE COURT: -- and provide it to defense counsel so

that they can at least review that and prepare accordingly.

Is there anything further from the government?

MR. STONE: Your Honor, one point, if I may, on the

jury instructions?

THE COURT: Yes.

MR. STONE: We raised this, but I just wanted to make

sure it was clear. And it deals with the second element for

conspiracy. The instructions that the Court filed that's

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Docket 1656, the draft joint statement, has some

inconsistencies. I just want to make sure that we point that

out.

THE COURT: I think you pointed it out in your final.

Is that --

MR. STONE: It is, but I wasn't -- I wasn't as clear

as I wish I'd been. And that's the -- the term illegal before

the -- the word objects in the conspiracy instruction.

For example, on page 9, the Court -- this is, again,

at Document 1656. The Court does not have the term illegal

before -- in the second element of conspiracy, and we think

that's correct. That's how the model instruction reads. And

that's based on case law, which states that a conspiracy is

defined as a combination of two or more persons to accomplish

some unlawful purpose or some lawful purpose by unlawful means.

So the object doesn't need to be illegal. But in --

on page 29, which is the actual instruction for conspiracy,

that word illegal does appear before objects in the second

element.

So I just wanted to make that clear, Your Honor.

THE COURT: Anything further from the government?

MR. PANCHAPAKESAN: Your Honor, I can respond to that.

Sorry. This is Gopi Panchapakesan, and I can respond

to Mr. Stone on that issue, if the Court would like to --

THE COURT: Yes. Do you have a response?

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MR. PANCHAPAKESAN: Sure.

On -- it was a general matter on the jury

instructions. We're prepared to discuss them but understand

that, you know, that'll take place of the course of the trial.

On the conspiracy issue that Mr. Stone flags, the

reason we included that language is because the object in the

superseding indictment is defined as to obtain money, which in

and of itself is not illegal. In the Ninth Circuit, our

understanding is that the object of the conspiracy itself has

to constitute a federal offense. The case I'm looking at is --

is U.S. vs. Manarite, 44 F.3d 1407 at page 14, 14, note 7. The

Court says, quote: A single charge of conspiracy can have

multiple objects but each object alleged must constitute a

federal offense.

So the concern is that the jury thinks that making

money or obtaining money is -- is a sufficient object, which

it's not.

THE COURT: All right. Anyone else want to be heard?

MR. CAMBRIA: Your Honor, I would ask that -- you

indicated that you were going to send us a revised schedule

with a final pretrial date. I would ask that on September 8th

that you maintain the half day. As you know, I had made an

application to be able to attend my daughter's wedding. With

the half day, I can still accomplish that and be back here --

THE COURT: I'm -- Mr. Cambria, just to be clear, the

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only modification to the trial schedule is that which we

discussed, the start date of the 29th and the extension through

November 9th. And so on -- everything else is the same.

MR. CAMBRIA: Oh, fantastic.

THE COURT: So, yes.

MR. CAMBRIA: Thank you.

THE COURT: Anyone else?

All right. As I mentioned, I will follow up with the

minute entry and with additional dates, and we will send to you

the Court's revised supplement or -- supplemental voir dire

that will go to the venire that will be showing up on the 8th.

And I've looked at the two submissions and I've modified that,

and I -- I think the course is probably the best way to go with

regard to the supplement to ensure that those who don't have

knowledge of these recent events are tainted. And that was my

goal, and so I think the revised supplemental takes care of

that.

(The Court and the courtroom deputy confer.)

THE COURT: All right. And so, as I mentioned, the

other matters are under advisement, and I will consider them

and rule on them as soon as I can.

Is there anything further from the government?

MR. RAPP: No, Your Honor. Thank you.

THE COURT: Before I leave, let me just say that if

there could be a designated counsel who if you become aware of

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a service that might occur that will interfere with any of the

proposed days that you let me know right away, because I think

that -- of course I would vacate any hearing if it conflicts

with -- if that may occur within that time period.

Anything further from defense counsel?

MR. PANCHAPAKESAN: Your Honor, the only thing I

wanted to flag -- this is Mr. Panchapakensan -- is the defense

did file an objection to the statement of the case on

Wednesday.

THE COURT: And I looked at that as well.

MR. PANCHAPAKESAN: Thank you.

THE COURT: Thank you.

There being nothing further, then we are adjourned.

Thank you.

(Proceedings conclude at 2:36 p.m.)

---oOo---

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C E R T I F I C A T E

I, CATHY J. TAYLOR, 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 9th day of August,

2023.

/s/Cathy J. Taylor

Cathy J. Taylor, RMR, CRR, CRC

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