JAMES LARKIN’S MOTION TO CONTINUE TRIAL

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Thomas H. Bienert, Jr. (CA Bar No.135311, admitted pro hac vice)

Whitney Z. Bernstein (CA Bar No. 304917, admitted pro hac vice)

BIENERT | KATZMAN PC

903 Calle Amanecer, Suite 350

San Clemente, California 92673

Telephone: (949) 369-3700

Facsimile: (949)369-3701

tbienert@bienertkatzman.com

wbernstein@bienartkatzman.com

Attorneys for James Larkin

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

 Plaintiff,

vs.

James Larkin, 

 

 Defendant.

Case No. 2:18-cr-00422-SMB-2

JAMES LARKIN’S MOTION TO 

CONTINUE TRIAL

(Oral argument requested)

This trial in this case is scheduled to begin on January 12, 2021. Dkt. 1031. James Larkin, 

by and through his undersigned attorneys, pursuant to the Fifth and Sixth Amendments to the 

Constitution, moves this Court to continue the current trial date for a period of approximately four 

(4) months to April 12, 2021 (with a concomitant extension of related deadlines). This continuance 

is necessary to respect Mr. Larkin’s counsel of choice at trial and ensure effective assistance of 

counsel and to ensure safe and constitutional proceedings due to the coronavirus pandemic.

The government does not oppose this request but is seeking input from its witnesses before 

providing a position. Defendants Lacey, Spear, Brunst, Padilla, and Vaught have no objection. 

I. A continuance is necessary to respect Mr. Larkin’s counsel of choice in light of his 

trial counsel’s pregnancy and upcoming disability leave.

The constitution guarantees a criminal defendant the right to counsel of his own choosing. 

See Luis v. United States, 136 S. Ct. 1083, 1085; Powell v. Alabama, 287 U.S. 45, 53 (1932). This right 

is fundamental. Luis, 136 S. Ct. at 1085. Mr. Larkin’s counsel of choice at the trial of his life are 

Case 2:18-cr-00422-DJH Document 1058 Filed 09/21/20 Page 1 of 5
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JAMES LARKIN’S MOTION TO CONTINUE TRIAL 

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the two undersigned trial attorneys who have been representing him since 2018. However, it is 

now public that Whitney Z. Bernstein is pregnant and will be on disability leave for the currently 

scheduled trial date. Accordingly, Mr. Larkin requests a four-month continuance of the trial date 

to account for Ms. Bernstein’s pregnancy disability leave and abbreviated maternity leave. 

Ms. Bernstein has continuously represented Mr. Larkin in this case since August 2018 and 

has led much of his litigation over the past 1,000+ docket entries, discovery review, and trial 

preparation since that time. The government has produced over five million pages of discovery 

and countless gigabytes of computer data and videos in this case over 22 rolling productions 

since 2018. Its most recent witness list contains nearly 100 witnesses for its case-in-chief alone. 

The government’s most recent production indicates that it has identified over 1,200 trial exhibits. 

It is virtually impossible for someone who has not been immersed in this case for the past two+ 

years to become adequately familiar with this enormous volume of discovery and witnesses and 

provide effective representation at a January trial. 

Moreover, the government’s aggressive pre-trial asset seizures – the subject of various 

cases in the Central District of California and two Ninth Circuit appeals – ensures that Mr. Larkin 

lacks the funds necessary to bring a new attorney up to speed, especially by January. In short, 

Ms. Bernstein’s absence at trial would severely prejudice Mr. Larkin by depriving him of a critical 

and knowledgeable advocate who cannot be replaced. Maintaining the current trial date at which 

Ms. Bernstein cannot participate would accordingly violate Mr. Larkin’s fundamental 

constitutional right to counsel of his own choice. 

II. A continuance is necessary to ensure safe and constitutional proceedings due to

the coronavirus pandemic and public health crisis.

Further, the logistical concerns, restrictions, and limitations that caused this Court to 

previously continue the trial (see Dkt. 1031) remain in place and are unlikely to be relaxed in the 

next three months to allow for a safe and constitutional trial in January. Currently, nearly 6.8 

million people in the United States have contracted the virus and nearly 200,000 Americans have 

died.1 These numbers represent a 400 percent increase in infected individuals and a 200 percent 

1 See CDC, Cases in the U.S., available at: https://www.cdc.gov/covid-datatracker/ (last 

Case 2:18-cr-00422-DJH Document 1058 Filed 09/21/20 Page 2 of 5
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JAMES LARKIN’S MOTION TO CONTINUE TRIAL 

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increase in deaths since the last time these figures were put to this Court. See Dkt. 990 at 3. In 

Arizona, more than 214,000 people have been infected, with over 140,000 confirmed cases in 

Maricopa County alone2 – an increase of 1,255 percent in less than four months. See id. The 

threat the highly contagious virus poses to trial participants, court staff, their families, and the 

community—previously discussed at length and incorporated by reference herein—is likewise 

still a significant concern. See Dkts. 990, 1025. There is still no treatment and no vaccine. 

Recognizing these serious concerns and the logistical impossibility of safely conducting 

this trial, the Court previously continued the trial date. Dkt. 1031. Unfortunately, neither the 

spread nor the risks of the virus, nor the logistical limitations of conducting a trial of this size 

during a pandemic, have abated since the Court’s prior order. The CDC’s social distancing 

guidelines “to stay at least 6 feet away from others when possible, even if you—or they—do not 

have any symptoms” remain in place.3 The Phoenix courthouse still requires “[a]ll persons [to] 

maintain a distance of at least six feet between themselves and other persons.”4 Multi-defendant 

proceedings remain cancelled.5 Arizona currently recommends that “groups should be limited 

to 10 people or fewer.”6 

visited September 20, 2020).

2 See Arizona Department of Health Services Data Dashboard, available at: 

https://www.azdhs.gov/preparedness/epidemiology-disease-control/infectious-diseaseepidemiology/covid-19/dashboards/ (last visited September 21, 2020).

3 See Centers for Disease Control and Prevention, Social Distancing: Keep a Safe Distance to Slow 

the Spread, available at: https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/social-distancing.html (last visited September 20, 2020).

4 See District of Arizona General Order 20-26, Continuing Court Operations Under the Exigent 

Circumstances Created by Coronavirus Disease (COVID-19), at 4, available at: 

http://www.azd.uscourts.gov/sites/default/files/general-orders/20-26.pdf (last visited 

September 20, 2020). 

5 See District of Arizona General Order 20-26, Continuing Court Operations Under the Exigent 

Circumstances Created by Coronavirus Disease (COVID-19), at 3, available at: 

http://www.azd.uscourts.gov/sites/default/files/general-orders/20-26.pdf (last visited 

September 20, 2020). 

6 See Executive Order 2020-52, Continuation of Executive Order 2020-43 Slowing the Spread of 

COVID-19, available at: https://azgovernor.gov/executive-orders (last visited September 20, 

2020).

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JAMES LARKIN’S MOTION TO CONTINUE TRIAL 

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As previously discussed at length and incorporated herein, forcing this case to trial amidst 

the limitations and concerns caused by the virus and the associated restrictions would violate 

Mr. Larkin and his codefendants’ constitutional rights and unnecessarily jeopardize the health 

and safety of trial participants, court staff, their families, and the community. See Dkt. 990 at 9-

18; Dkt. 1025.

Accordingly, it is unclear how the currently scheduled January trial could safely proceed 

to verdict. To the best of undersigned counsel’s knowledge, a criminal trial of this size, length, 

and complexity has yet to occur in Arizona or elsewhere. All parties need to know whether trial 

will proceed as scheduled. Out-of-state defense counsel, including the undersigned, need to make 

travel and housing arrangements for the duration of the trial; witnesses need to be notified and 

plan accordingly; and defense counsel must schedule their other responsibilities around a realistic 

trial date in this long-standing case. 

III. Conclusion

For all of these reasons, in accordance with constitutional, public health, and safety 

concerns, the Court should continue the current trial date (and associated trial deadlines) by four 

months to April 12, 2021.

It is expected that excludable delay pursuant to 18 U.S.C. § 3161(h) will occur as a result 

of this motion or an order based thereon.

Dated: September 21, 2020 Respectfully submitted,

BIENERT | KATZMAN PC

s/ Whitney Z. Bernstein

Thomas H. Bienert, Jr.

Whitney Z. Bernstein

Attorneys for James Larkin

Case 2:18-cr-00422-DJH Document 1058 Filed 09/21/20 Page 4 of 5
CERTIFICATE OF SERVICE

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CERTIFICATE OF SERVICE

I hereby certify that on September 21, 2020, I electronically transmitted the attached 

document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice 

of Electronic Filing to the CM/ECF registrants who have entered their appearance as counsel of 

record.

/s/ Toni Thomas 

Toni Thomas

Case 2:18-cr-00422-DJH Document 1058 Filed 09/21/20 Page 5 of 5