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OPPOSITION TO GOVERNMENT’S APPLICATION FOR ORDER REGARDING CRIMINAL 

FORFEITURE OF PROPERTY IN GOVERNMENT CUSTODY

Thomas H. Bienert, Jr., CA State Bar No. 135311

(Admitted Pro Hac Vice)

tbienert@bmkattorneys.com

Kenneth M. Miller, CA State Bar No. 151874

(Admitted Pro Hac Vice)

kmiller@bmkattorneys.com

Anthony R. Bisconti, CA State Bar No. 269230

(Admitted Pro Hac Vice)

tbisconti@bmkattorneys.com

Whitney Z. Bernstein, CA State Bar No. 304917

(Admitted Pro Hac Vice)

BIENERT, MILLER & KATZMAN, PLC

903 Calle Amanecer, Suite 350

San Clemente, California 92673

Telephone (949) 369-3700 / Facsimile (949) 369-3701

Attorneys for Defendant James Larkin

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

 Plaintiff,

 vs.

Michael Lacey, et al., 

 Defendants.

Case No. CR-18-00422-PHX-SPL (BSB)

DEFENDANT JAMES LARKIN’S 

OPPOSITION TO GOVERNMENT’S 

APPLICATION FOR ORDER REGARDING 

CRIMINAL FORFEITURE OF PROPERTY 

IN GOVERNMENT CUSTODY

The government’s Application for Order Regarding Criminal Forfeiture of Property

in Government Custody (the “Application”) [Dkt. 282] should be denied as an improper 

attempt to: (i) forum shop, (ii) interfere with the authority and jurisdiction of another district 

court, and (iii) keep possession of assets to which it has no right.

On August 1, 2018, James Larkin, joined by Michael Lacey, John Brunst, and Scott 

Spear (collectively “Movants”), moved in the Central District of California to vacate the 

government’s civil seizure of publishing proceeds (the “Motion”) based on civil seizure 

Case 2:18-cr-00422-DJH Document 285 Filed 08/29/18 Page 1 of 6
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OPPOSITION TO GOVERNMENT’S APPLICATION FOR ORDER REGARDING CRIMINAL

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warrants issued in the Central District of California.

1

 Among other things, the Motion 

demonstrates: 

1. The seizures violated Movants’ rights under the First Amendment, which 

prohibits the pretrial seizure of publishing proceeds. See Ex. A at 13-18; see also Adult 

Video Ass’n v. Barr, 960 F.2d 781 (9th Cir. 1992) (pretrial forfeiture of publishing material).

2. Any seizure of publishing proceeds requires more than “probable cause.” See 

Ex. A at 13-20; see also Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 66 (1989) 

(probable insufficient to seize publishing material); Simon & Schuster, Inc. v. Members of 

the New York State Crime Victims Bd., 502 U.S. 105, 111, 115 (1991).

3. The seizure warrants were obtained through knowing, material 

misrepresentations and omissions, in violation of, inter alia, Movants’ First and Fourth 

Amendment rights. See Ex. A at 20-25.

4. Even assuming, arguendo, that some funds were subject to seizure, the 

government failed to trace the seized publishing proceeds to any alleged criminal 

wrongdoing, let alone the knowing and specific violation of prostitution statutes that are 

required to support forfeiture in the publishing context. Id. at 25-40.

5. Finally, Movants have a Fifth Amendment right to a “prompt hearing” on their 

claims. Id. at 21; see also United States v. Roth, 912 F.2d 1131, 1132-33 (9th Cir. 1990) 

(citing United States v. Crozier, 777 F.2d 1376, 1383-84 (9th Cir. 1985)).

The Honorable R. Gary Klausner, United States District Judge for the Central District 

of California, has set a hearing on September 24, 2018, to consider the government’s 

constitutional violations committed in the course of the very seizures the government now 

seeks to have this Court confirm. The government vaguely referenced the Motion in its 

Application (see Application at 5:2-5), but failed to advise the Court of the substance of the 

Motion or that Judge Klausner has set a hearing and briefing schedule. In fact, government 

 1 Attached hereto as Exhibits A-D are true and correct copies of the following documents, each of which 

has been filed before the Central District of California: (i) the Motion (Exhibit A); Declarations Filed in 

Support of the Motion (Exhibit B); Request for Judicial Notice (without exhibits) (Exhibit C); and (iv) 

Notice of Related Cases (Exhibit D).

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OPPOSITION TO GOVERNMENT’S APPLICATION FOR ORDER REGARDING CRIMINAL

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counsel agreed it would file any opposition on or before August 27, 2018. Instead of doing 

so, the government filed the Application in an obvious effort to pull the issues from Judge 

Klausner and move them here. The government’s effort is procedurally improper and 

should be rejected.

First, the government is engaged in blatant forum shopping. “The semblance of 

judge-shopping . . . is [ ] a concern when a litigant discontinues a fray, only to start over 

again on another day.” Nat’l Treasury Emp. Union v. IRS, 765 F.2d 1174, 1175 n. 5 

(D.C.Cir. 1985). It “doubtless disrupts the proper functioning of the judicial system and 

may be disciplined.” Standing Comm. on Discipline of the U.S. Dist. Ct. for the Cent. Dist. 

of Cal. v. Yagman, 55 F.3d 1430, 1443 (9th Cir. 1995). That is precisely what the 

government is attempting to do here. After the Indictments issued in Arizona, the U.S. 

Attorney’s Office from the Central District of California chose to pursue the civil seizure 

warrants in the Central District of California, rather than in Arizona. As recently as August 

3, 2018, the government’s attorney stated, on the record during a telephonic hearing before 

the Honorable Patrick J. Walsh, Chief United States Magistrate Judge for the Central 

District of California, that the government would be filing a civil forfeiture complaint in the 

Central District. It has yet to do so. Instead, in the face of a challenge to the manner in 

which it obtained seizure warrants in California, the government has tactically ignored

Judge Klausner’s briefing schedule, come to this Court seeking an order allowing it to 

maintain possession of the assets—without disclosing that the Motion directly challenges 

the lawfulness of the seizures, the nature of the constitutional issues involved, the 

government’s failure to respond to the Motion, or the impending hearing on the Motion. 

The Government is not hiding its intended purpose: it seeks an order from this Court 

confirming the seizures so it can argue to Judge Klausner that Movants’ Motion is moot, 

and thereby avoid an adverse ruling on the Motion. That is improper. See Vaqueria Tres 

Monjitas, Inc. v. Rivera Cubano, 341 F. Supp. 2d 69, 71 (D.P.R. 2004) (remanding case to 

initial judge and sanctioning counsel for judge shopping where after plaintiff’s request for 

a preliminary injunction, plaintiffs voluntarily dismissed the suit and filed a new action, 

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again requesting a preliminary injunction).

Second, the government’s Application should be denied out of comity to the Central 

District of California. Asset seizures are injunctions for procedural purposes. United States 

v. Roth, 912 F.2d 1131, 1133 (9th Cir. 1990)); see also United States v. E-Gold, 521 F.3d 

411 (D.C. Cir. 2008) (seizure warrant under Section 981 is appealable as an injunction), 

overruled on other grounds, Kaley v. United States, 571 U.S. 320 (2014). The 

government’s Application is tantamount to a request that the Central District’s injunction 

remain in place. The government’s efforts should be directed to the Central District of 

California—where the government sought, and the Court actually ordered, the seizures in 

the first place. See, e.g., Delson Grp., Inc. v. GSM Ass’n, 2012 WL 12887087, at *1 (N.D. 

Cal. Aug. 6, 2012), aff’d, 570 F. App’x 690 (9th Cir. 2014) (“When a party brings an 

independent action in a separate court seeking relief from a judgment entered in another 

court, considerations of comity and orderly administration of justice demand that the 

nonrendering court should decline jurisdiction of such an action and remand the parties for 

their relief to the rendering court, so long as it is apparent that a remedy is available there.” 

(citations and quotations omitted)). Moreover, as the Central District of California issued 

the seizure warrants challenged in the Motion, that court, rather than the District of Arizona, 

is the appropriate forum for the dispute. 

Finally, the government may only possess property before a preliminary order of 

forfeiture where “it has a valid basis for holding the property.” Department of Justice, 

Policy Manual: Asset Forfeiture Policy Manual (2016) (available at 

https://www.justice.gov/criminal-afmls/file/839521/download), Chap. 1, Sec. III.C (at page 

35); see also United States v. Scarmazzo, 2007 WL 587183 (E.D. Cal. 2007) (Section 

853(e)(1) only applies where “Government has already obtained lawful custody of the 

seized assets. . . .) (emphasis added). The government’s very right to possess the assets is 

the subject of pending litigation in the Central District of California. That litigation should 

be permitted to run its course (with a decision rendered on the propriety of the government’s 

continued possession of the seized assets) before this Court considers ordering that the 

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OPPOSITION TO GOVERNMENT’S APPLICATION FOR ORDER REGARDING CRIMINAL

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government is entitled to maintain possession of the very same assets. 

For all these reasons, Defendant Larkin respectfully requests that the government’s 

Application be denied.

Dated: August 29, 2018 BIENERT, MILLER & KATZMAN, PLC

By: /s/ Thomas H. Bienert

 Thomas H. Bienert

 Kenneth M. Miller

 Anthony R. Bisconti

 Whitney Z. Bernstein

 Attorneys for James Larkin

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OPPOSITION TO GOVERNMENT’S APPLICATION FOR ORDER REGARDING CRIMINAL

FORFEITURE OF PROPERTY IN GOVERNMENT CUSTODY

CERTIFICATE OF SERVICE

I certify that on this 29th day of August, 2018, I electronically transmitted a PDF 

version of this document to the Clerk of Court, using the CM/ECF System, for filing and 

for transmittal of a Notice of Electronic Filing to the following CM/ECF registrants 

listed below.

/s/ Toni Thomas 

Toni Thomas

CM/ECF Registrants: 

Reginald Jones, reginald.jones4@usdoj.gov 

Peter Kozinets, peter.kozinets@usdoj.gov 

Margaret Perlmeter, margaret.perlmeter@usdoj.gov 

Kevin Rapp, kevin.rapp@usdoj.gov 

Andrew Stone, andrew.stone@usdoj.gov 

Paul Cambria, pcambria@lglaw.com 

Tom Bienert, tbienert@bmkattorneys.com 

Bruce Feder, bf@federlawpa.com 

Michael Kimerer, mdk@kimerer.com 

Stephen Weiss, sweiss@karpweiss.com

476328-1

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