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DEFENDANTS’ RESPONSE TO POSITION OF THE UNITED STATES REGARDING POTENTIAL 

CONTINUING JURY DELIBERATIONS AS TO DETERMINATION OF FORFEITURE OF SPECIFIC ASSETS

Gary S. Lincenberg (admitted pro hac vice)

 glincenberg@birdmarella.com

Ariel A. Neuman (admitted pro hac vice)

 aneuman@birdmarella.com

Gopi K. Panchapakesan (admitted pro hac vice)

 gpanchapakesan@birdmarella.com

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW, P.C.

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: (310) 201-2100

Facsimile: (310) 201-2110

Attorneys for Defendant John Brunst

Paul J. Cambria, Jr. (admitted pro hac vice)

 pcambria@lglaw.com

Erin McCampbell Paris (admitted pro hac vice)

 eparis@lglaw.com

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

Attorneys for Defendant Michael Lacey

[Additional counsel listed on next page]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Michael Lacey, et al.,

Defendants.

CASE NO. 2:18-cr-00422-004-PHX-DJH

DEFENDANTS’ RESPONSE TO 

POSITION OF THE UNITED STATES 

REGARDING POTENTIAL 

CONTINUING JURY 

DELIBERATIONS AS TO 

DETERMINATION OF FORFEITURE 

OF SPECIFIC ASSETS

Case 2:18-cr-00422-DJH Document 1950 Filed 11/08/23 Page 1 of 5
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DEFENDANTS’ RESPONSE TO POSITION OF THE UNITED STATES REGARDING POTENTIAL 

CONTINUING JURY DELIBERATIONS AS TO DETERMINATION OF FORFEITURE OF SPECIFIC ASSETS

Eric W. Kessler, 009158

 eric.kesslerlaw@gmail.com

Kessler Law Group

6720 N. Scottsdale Rd., Suite 210

Scottsdale, AZ 85253

Telephone: (480) 644-0093

Facsimile: (480) 644-0095

Bruce S. Feder, 004832

 bf@federlawpa.com

FEDER LAW OFFICE, P.A.

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

Telephone: (602) 257-0135 

Attorney for Defendant Scott Spear

Defendants respond to the Government’s position1regarding the retention of the 

jury for a potential forfeiture phase as follows:

1) Under Rule 32.2(b)(5)(A), either party has the right to “retain” the jury to 

“determine the forfeitability of specific property.” See Advisory Committee Notes (“The 

provision gives the defendant, in all cases where a jury has returned a guilty verdict, the 

option of asking that the jury be retained to hear additional evidence regarding the 

forfeitability of the property.”). The Government does not dispute that the defense timely 

made a jury election. Dkt. 1918. In other words, the rule contemplates having the jury 

that sat through the trial—here, a 10-week trial with 20+ witnesses and hundreds of 

exhibits—decide the forfeiture issue. 

2) Regarding the empaneling of a new jury, the defense is not aware of any case 

law that would support this remedy in the first instance. As noted in the cases cited by the 

Government, the only instance in which this might be appropriate is where the retained 

jury hangs on the forfeiture determination.

3) To the extent less than 12 jurors are available to proceed with the forfeiture 

1 The Government provided Defendants its position on these issues in writing at 

3:38 P.M. on November 7, 2023. Defendants informed the Government that they would 

need until today to review the Government’s position and respond.

Case 2:18-cr-00422-DJH Document 1950 Filed 11/08/23 Page 2 of 5
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DEFENDANTS’ RESPONSE TO POSITION OF THE UNITED STATES REGARDING POTENTIAL 

CONTINUING JURY DELIBERATIONS AS TO DETERMINATION OF FORFEITURE OF SPECIFIC ASSETS

phase, Defendants remain open to stipulating to a smaller jury sitting for the forfeiture 

phase and will make such a determination if and when the issue arises.

4) The Government—after jury deliberations have already commenced—now 

takes the position that it is “exploring the option of withdrawing its request for forfeiture of 

specific property” and instead seeking a money judgment. Dkt. 1945 at 4.2 The 

Government indicted this case over five years ago and in that indictment sought the 

forfeiture of specific property, which has been seized and frozen since that time. It also

chose to pursue a two-month trial—putting on witnesses and evidence that are, at best, 

tangential to the indictment’s charges—knowing that this process would be a strain on any 

jury. The Government has had ample time to come to a decision on its approach to 

forfeiture. The Government should not be permitted to hedge its bets at this point and wait 

to see how long deliberations take in order to come to a decision on forfeiture. 

Rule 32.2(b)(5)(A) requires the court to determine “before the jury begins deliberating 

whether either party requests that the jury be retained” (emphasis added.). Defendants’ 

election has already been made. By the letter of the rule, the Government should not be 

permitted to shift course at this point. In effect, the Government would be depriving the 

defense of a statutory right to a jury merely because they perceive the jury to be taking too 

long to deliberate. That obviously is not what Rule 32.2 contemplates. 

The Government made forfeiture allegations regarding specific property in its 

indictment, filed a brief prior to trial regarding a potential follow-on trial regarding the 

forfeiture issue (Dkt. 1713), and has acknowledged that Defendants timely elected a jury 

(Dkt. 1918). The parties and the Court have been working diligently to prepare for 

a forfeiture trial regarding the forfeiture of specific property, including by preparing jury 

2 On the evening of Sunday, November 5th, the Government informed Defendants that it 

was likely they would seek a money judgment instead of pursuing forfeiture of specific 

property. But then the Government filed a response to Defendants’ Proposed Jury 

Instructions later that night, and during court proceedings on November 7

th, the 

Government appeared to continue to take the position that they would seek forfeiture of 

specific property.

Case 2:18-cr-00422-DJH Document 1950 Filed 11/08/23 Page 3 of 5
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DEFENDANTS’ RESPONSE TO POSITION OF THE UNITED STATES REGARDING POTENTIAL 

CONTINUING JURY DELIBERATIONS AS TO DETERMINATION OF FORFEITURE OF SPECIFIC ASSETS

instructions, a verdict form, and related briefing. Defendants have been preparing crossexaminations of the Government’s two anticipated witnesses, one of whom intends to 

testify to a lengthy new “flow chart” exhibit that the Government recently disclosed. 

Defendants (and presumably the Court) have precious and dwindling resources dedicated 

to this case—Defendants would be seriously prejudiced by what amounts to late notice 

concerning the possibility that the Government may instead seek a money judgment.

Pursuant to the District’s Electronic Case Filing Administrative Policies and

Procedures Manual (May 2023) § II(C)(3), Gary S. Lincenberg hereby attests that all

other signatories listed, and on whose behalf this filing is submitted, concur in the filing’s

content and have authorized its filing.

DATED: November 8, 2023 Respectfully submitted,

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

Bird, Marella, Boxer, Wolpert, Nessim,

Drooks, Lincenberg & Rhow, P.C.

By: /s/ Gary S. Lincenberg

Gary S. Lincenberg

Attorneys for Defendant John Brunst

DATED: November 8, 2023 Kessler Law Group

By: /s/ Eric W. Kessler

Eric W. Kessler

Attorney for Defendant Scott Spear

Case 2:18-cr-00422-DJH Document 1950 Filed 11/08/23 Page 4 of 5
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DEFENDANTS’ RESPONSE TO POSITION OF THE UNITED STATES REGARDING POTENTIAL 

CONTINUING JURY DELIBERATIONS AS TO DETERMINATION OF FORFEITURE OF SPECIFIC ASSETS

DATED: November 8, 2023 Feder Law Office, P.A.

By: /s/ Bruce S. Feder

Bruce S. Feder

Attorney for Defendant Scott Spear

DATED: November 8, 2023 Paul J. Cambria

Erin McCampbell Paris

Lipsitz Green Scime Cambria LLP

By: /s/ Paul J. Cambria

Paul J. Cambria

Attorneys for Defendant Michael Lacey

Case 2:18-cr-00422-DJH Document 1950 Filed 11/08/23 Page 5 of 5