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Additional counsel on following page

IN THE 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-PHX-DJH

DEFENDANTS’ RESPONSE TO 

GOVERNMENT’S MOTION IN 

LIMINE TO PRECLUDE 

DEFENSE FROM CRITICIZING 

THE “LEGITIMACY OF THE 

PROSECUTION”

(Oral Argument Requested)

Joy Bertrand, Esq.

PO Box 2734

Scottsdale, Arizona 85252-2734

Telephone: 602-374-5321

Fax: 480-361-4694

joyous@mailbag.com

www.joybertrandlaw.com

Arizona State Bar No. 024181

ATTORNEY FOR: DEFENDANT JOYE VAUGHT

Case 2:18-cr-00422-DJH Document 1614 Filed 06/15/23 Page 1 of 8
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Timothy J. Eckstein, 018321

Joseph N. Roth, 025725

Sarah P. Lawson, 036436

OSBORN MALEDON, P.A.

2929 North Central Avenue, 20th Floor

Phoenix, Arizona 85012-2793

(602) 640-9000

teckstein@omlaw.com

jroth@omlaw.com

slawson@omlaw.com

Attorneys for James Larkin

Paul J. Cambria, Jr. (NY 15873, admitted pro hac vice)

Erin E. McCampbell (NY 4480166, admitted pro hac vice)

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

(716) 849-1333

pcambria@lglaw.com

emccampbell@lglaw.com

Attorneys for Michael Lacey

Bruce S. Feder (AZ 004832)

FEDER LAW OFFICE PA

2930 E. Camelback Rd., Suite 160

Phoenix, Arizona 85016

(602) 257-0135

bf@federlawpa.com

Eric Walter Kessler

KESSLER LAW OFFICE

6720 N. Scottsdale Rd., Suite 210

Scottsdale, Arizona 85253

(480) 644-0093

Eric.kesslerlaw@gmail.com

Attorneys for Scott Spear

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW P.C.

1875 Century Park E., Suite 2300

Los Angeles, California 90067

(310) 201-2100

glincenberg@birdmarella.com

gpanchapakesan.@birdmarella.com

aneuman@birdmarella.com

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Attorneys for John Brunst

David S. Eisenberg

DAVID EISENBERG PLC

3550 N. Central Ave., Ste. 1155

Phoenix, Arizona 85012

(602) 237-5076

david@eisenbergplc.com

Attorneys for Andrew Padilla

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The common thread behind the Government’s argument in each of its new 

Motions in Limine is, in essence, that the Government has an unfettered right to its 

convictions in this case, notwithstanding its lack of any evidence showing any Defendant 

had any actual knowledge of any of the charged ads in the Superseding Indictment, as 

this Court has repeatedly stated it must prove. 

The prosecution’s ongoing attack on the First Amendment now includes its 

attempts to chill the First Amendment rights of the Defendants and Defense Counsel 

during the trial. The Government’s Motion appears to ask the Court for a sweeping 

order barring the Defense from even questioning the legitimacy of the Government’s 

conduct in this investigation and prosecution. (ECF Doc. 1598 at 2) Such a broad 

prohibition would be patent reversible error. Even if the Government limited its request 

to the two, specific quotes it cites from Defense opening statements at the first trial, an 

order precluding mention of the pending forfeiture action or the fact that the 

Government could have pursued a civil remedy, such a prohibition would be improper 

and violate the First, Fifth, and Sixth Amendments.

I. In Seeking to Prohibit Criticism of its Prosecution, the Government Seeks 

to Impermissibly Curtail the First Amendment Rights of the Defense.

A prior restraint on speech is “the most serious and the least tolerable 

infringement on First Amendment rights.” Nebraska Press Ass’n. v. Stuart, 427 U.S. 539, 

559 (1976). Any such restraint “bear[s] a heavy presumption against its constitutional 

validity.” New York Times. Co. v. United States, 403 U.S. 713, 714 (1971). 

Defendants have a First Amendment right to criticize their prosecutions. United 

States v. Rosenthal, 2007 WL 801647 at *6 (N.D. Cal. 2007). Defense Counsel also have

First Amendment protections in the context of their representation of criminal

defendants. Arizona Attorneys for Criminal Justice v. Ducey, __ F.Supp.3d __, 2022 WL

16631088 at *15 (Dist. AZ. 2022). 

Attorneys, as officers of the Court, may have additional limits placed on their 

speech. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1068 (1991). A gag order on 

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attorneys involved in a particular case should be ordered only if (1) the attorneys’ speech 

presents a substantial likelihood of material prejudice to the proceedings; (2) the 

proposed protective order is narrowly tailored; (3) alternatives to the protective order 

would not be effective; and (4) the order would be effective in achieving the 

government’s goal. United States v. McGregor, et al., 838 F.Supp.2d 1256, 1262 (M.D. Ala. 

March 11, 2013). Ordinarily, the speech at issue is outside of the courtroom, such as 

through statements to the press, because the Court has a duty to prevent potential jurors 

from the taint of improper pretrial publicity. In this case, the Government even seeks to 

restrict criticism of its prosecution before the jury, in court. If the Defense cannot criticize 

this prosecution in court, before jury, then where can it?

II. The Government Seeks to Preclude the Defense from Presenting a 

Defense, Which, if Granted, Would Violate the Fifth and Sixth Amendments.

“[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to 

present a complete defense,’” Crane v. Kentucky, 476 U.S. 683, 690 (1986). This right 

includes, “at a minimum, ... the right to put before a jury evidence that might influence 

the determination of guilt.” Id. Whether grounded in the Sixth Amendment’s guarantee 

of compulsory process or the Fifth Amendment’s guarantee of due process, “the 

Constitution guarantees criminal defendants a ‘meaningful opportunity to present a 

complete defense.’” 

This right to a meaningful opportunity to present a complete defense is secured 

by the Confrontation Clause of the Sixth Amendment, Davis v. Alaska, 415 U.S. 308, 315 

(1974), the Compulsory Process Clause of the Sixth Amendment, Holmes v. South 

Carolina, 547 U.S. 319, 324 (2006), and the Due Process Clause of the Fourteenth 

Amendment, Chambers v. Mississippi, 410 U.S. 284, 290 n.3 (1973). 

The Defense has a right to show to the jury not only the weaknesses of the 

Government’s case, but also the motives underlying the prosecution and its witnesses. 

The Government, however, appears to seek a sweeping prohibition of any criticism of its 

prosecution. The Government’s greatest fear, as reiterated throughout its motion 

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practice, is that the jurors will agree with the Defense that this prosecution is a grievous 

overreach of Government power and a waste of the resources of the Court, the 

Government, the Defense, and the jurors. 

The Ninth Circuit instructs trial courts to “generally avoid[ ] such interference as 

would divest juries of their power to acquit an accused, even though the evidence of his 

guilt may be clear.” United States v. Kleinman, 800 F.3d 1020, 1033 (9th Cir. 2017) (en banc). 

The Ninth Circuit has reversed convictions after trial courts refused to allow a defendant 

to present his defense in closing argument based on the specific nature of the evidence. 

In United States v. Brown, for example, the Ninth Circuit found the trial court “violated 

[Brown’s] fundamental right to assistance of counsel and right to present a defense, and 

it relieved the prosecution of its burden to prove its case beyond a reasonable doubt.” 

859 F3d 730, 737 (9th Cir. 2017) (citing Conde v. Henry, 198 F3d 734, 739 (9th Cir. 1999)).

“Preventing a defendant from arguing a legitimate defense theory constitutes structural 

error.” Brown, 859 F3d. at 737. 

To the extent that the Defense expects to show that this prosecution is not firmly 

founded in fact or law, in opening statements, the Defense can note to the jury to watch 

for the Government’s overreach, misplaced inferences, and factual inaccuracies. At the 

end of the trial, the Defense absolutely can criticize the Government’s decision to bring 

this prosecution in the first place, not to mention its expected inability to prove the 

charges in the Superseding Indictment.

The Government’s effort to gag Defense Counsel from daring to impugn its 

shaky prosecution at any stage of the case invites this Court to commit reversible error. 

The Defendants ask this Court, therefore, to deny the Government’s Motion in Limine to 

Prohibit the Defense from Commenting on the Legitimacy of the Prosecution.

DATED this 15th day of June, 2023.

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JOY BERTRAND LAW 

By s/ Joy M. Bertrand

Joy M. Bertrand

P.O. Box 2734

Scottsdale, Arizona 85252

Attorneys for Joye Vaught

s/Timothy J. Eckstein (with permission)

Timothy J. Eckstein, 018321

Joseph N. Roth, 025725

Sarah P. Lawson, 036436

OSBORN MALEDON, P.A.

2929 North Central Avenue, 20th Floor

Phoenix, Arizona 85012-2793

(602) 640-9000

teckstein@omlaw.com

jroth@omlaw.com

slawson@omlaw.com

Attorneys for James Larkin

LIPSITZ GREEN SCIME CAMBRIA LLP

By s/ Paul J. Cambria, Jr. (w/permission)

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

Erin E. McCampbell (pro hac vice)

42 Delaware Avenue, Suite 120

 Buffalo, New York 14202

Attorneys for Michael Lacey

FEDER LAW OFFICE PA

By s/ Bruce S. Feder (w/permission)

Bruce S. Feder

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

KESSLER LAW OFFICE

By s/ Eric W. Kessler (w/permission)

Eric W. Kessler

6720 N. Scottsdale Rd., Suite 210

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Scottsdale, Arizona 85253

Attorneys for Scott Spear

BIRD, MARELLA, BOXER, WOLPERT,

NESSIM, DROOKS, LINCENBERG & 

RHOW P.C.

By s/ Gary S. Lincenberg (w/permission)

Gary S. Lincenberg

Gopi K. Panchapakesan

Ariel A. Neuman

1875 Century Park E., Suite 2300

Los Angeles, California 90067

Attorneys for John Brunst

DAVID EISENBERG PLC

By s/ David S. Eisenberg (w/permission)

David S. Eisenberg

3550 N. Central Ave., Ste. 1155

Phoenix, Arizona 85012

Attorneys for Andrew Padilla

Case 2:18-cr-00422-DJH Document 1614 Filed 06/15/23 Page 8 of 8