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Paul J. Cambria, Jr. (NY Bar No.1430909, admitted pro hac vice)

Erin E. McCampbell (NY Bar No. 4480166, admitted pro hac vice)

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

pcambria@lglaw.com

emccampbell@lglaw.com

Attorneys for Michael Lacey

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

Additional counsel listed on next page

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

 Plaintiff,

vs.

Michael Lacey, et al., 

 

 Defendants.

NO. CR-18-00422-PHX-SMB

DEFENDANTS’ REPLY IN FURTHER 

SUPPORT OF THEIR MOTION TO 

CONTINUE TRIAL

(Oral argument requested)

Case 2:18-cr-00422-DJH Document 1025 Filed 06/19/20 Page 1 of 15
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Gary S. Lincenberg (CA Bar No. 123058, admitted pro hac vice)

Ariel A. Neuman (CA Bar No. 241594, admitted pro hac vice)

Gopi K. Panchapakesan (CA Bar No. 279856, admitted pro hac vice)

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW PC

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: (310) 201-2100

Facsimile: (310) 201-2110

glincenberg@birdmarella.com

aneuman@birdmarella.com

gpanchapakesan@birdmarella.com

Attorneys for John Brunst

Bruce Feder (AZ Bar No. 004832)

FEDER LAW OFFICE PA

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

Telephone: (602) 257-0135

bf@federlawpa.com

Attorney for Scott Spear

David Eisenberg (AZ Bar No. 017218)

DAVID EISENBERG PLC

3550 N. Central Ave., Suite 1155

Phoenix, Arizona 85012

Telephone: (602) 237-5076

Facsimile: (602) 314-6273

david@deisenbergplc.com

Attorney for Andrew Padilla

Joy Malby Bertrand (AZ Bar No. 024181)

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

Telephone: (602)374-5321

Facsimile: (480)361-4694

joy.bertrand@gmail.com

Attorney for Joye Vaught

Case 2:18-cr-00422-DJH Document 1025 Filed 06/19/20 Page 2 of 15
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Defendants Michael Lacey, James Larkin, John Brunst, Scott Spear, Andrew Padilla, and Joye 

Vaught (“Defendants”), by and through their undersigned attorneys, file the instant reply in further 

support of their Motion to Continue (“Motion”) (Doc. 990.) Defendants moved for a continuance 

of the August 17, 2020 start date of this trial due to the health and safety concerns presented by the 

highly contagious novel coronavirus and the severe illness that it causes, Covid-19, as well the 

constitutional violations that would occur if the case is tried as scheduled. Defendants do not seek 

an indefinite continuance, but one that will enable the case to be tried safely, efficiently, and fairly. 

Even though we are in the midst of an unprecedented, once-in-a-century public health crisis, 

the government opposes the Motion (“Opposition”). (See Opp’n, Doc. 1018.) The government 

acknowledges the risks posed by the virus, but asks this Court to maintain the August trial date with 

the implementation of extensive protocols the government claims could decrease the risk of the 

spread of the coronavirus among trial participants, their families, and the Arizona community at large. 

(See Summ. of Gov’t’s Suggested Protocols, attached hereto as Ex. A.) The suggested protocols create 

onerous logistics considerations, without any assurance of success. Alternatively, the government 

asks this Court to deny Defendant’s request “to delay indefinitely,” a request Defendants did not

make, and to set a new date certain for trial.

Notwithstanding the government’s objections and suggested protocol, this Court should grant 

the Motion because this Court has an obligation to ensure the health and safety of all trial participants, 

their families, and the Arizona community at large, as well as a trial that respects the Defendants’

constitutional rights. Neither duty will be met with a trial in August. 

ARGUMENT

I. This Court’s obligation to ensure the health and safety of trial participants cannot be 

met during the newly accelerated spread of the coronavirus in Arizona.

As a matter of Due Process, governmental actors must “protect or care for citizens when the 

[government] affirmatively places a particular individual in a position of danger the individual would 

not otherwise have faced.” Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992) (en banc); see 

also Wells v. Walker, 852 F.2d 368, 370 (8th Cir. 1988); see also DeShaney v. Winnebago Cnty. Dep’t of Soc. 

Servs., 489 U.S. 189, 198-200 (1989). A government actor violates an individual’s right to due process 

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when it “affirmatively place[s] [the] individual in danger,” or acts “with deliberate indifference to [a] 

known or obvious danger.” Kennedy v. City of Ridgefield, 439 F.3d 1055, 1062 (9th Cir. 2006).

Proceeding to trial in August, under the current circumstances, will risk danger to all trial 

participants that they would have otherwise avoided. At the time the Defendants filed the Motion, 

nearly 1.7 million Americans had contracted the virus, more than 100,000 Americans had lost their 

lives, and Arizona had more than 17,000 people who were infected. (Mot. at 1.) Since then, the 

numbers have increased, exponentially so for Arizona. At this time, more than 2.1 million Americans 

have contracted the virus and more than 117,000 Americans have died.1 More importantly, Arizona 

has experienced a sharp uptick in new cases and hospitalizations in the past three weeks. Arizona 

has had several record setting days since the Motion was filed, reporting the highest number of new 

cases per day – 3,246 – on June 19, 2020. The total number of cases is now at more than 46,000, 

with deaths at more than 1,300.2 Arizona is on a steep upward trajectory, as documented in the 

Arizona Department of Health Service’s chart on the Confirmed Covid-19 Cases By Day, attached 

hereto as Exhibit B. In light of Arizona’s upward trajectory, hospitals have expressed alarm about 

whether they will have sufficient staff, supplies, and capacity in the coming weeks.3 

Maintaining the start date of August 17, 2020 in the face of Arizona’s upward trajectory of 

coronavirus infections presents hardships on the defense (and all trial participants). We are now less 

than two months from the scheduled start of the trial. With respect to the defense, substantial 

logistical concerns have come into play: out-of-state counsel must make short-term housing 

arrangements, witnesses must be served with subpoenas and have travel arranged, and all other 

matters, personal and professional, must be put on the back burner to accommodate the preparation 

of the defense to this complex and novel prosecution. Yet, the parties have no certainty that this trial 

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

visited June 19, 2020). 2 See Arizona Department of Health Services Data Dashboard, available at: https://

www.azdhs.gov/preparedness/epidemiology-disease-control/infectious-disease-epidemiology/

covid-19/dashboards/index.php (last June 19, 2020).

3 See Stephanie Innes, Arizona Republic, ‘I am taken aback’: Here’s why Arizona’s COVID-19

trajectory is concerning (June 16, 2020), available at: https://www.azcentral.com/story/news/local

/arizona-health/2020/06/16/doctors-data-raise-concerns-arizonas-covid-19-situation/193042001/ 

(last visited on June 17, 2020).

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will be able to proceed in August. It is possible that new stay-home orders or travel restrictions could 

be imposed, particularly as Arizona has become a new hot bed for transmission of this deadly 

pathogen. Just this week, Governor Ducey announced new policies aimed at curbing what he called 

a “trend [] heading in the wrong direction.”4 Also this week, Chief Judge G. Murray Snow continued 

all grand jury proceedings indefinitely, noting that “after notice to grand jury members [] no quorum 

could reasonably convene [] due to concerns related to the pandemic.” (Gen. Order 20-27.) The 

inability to convene a grand jury does not bode well for starting this trial in August. 

The government’s wait-and-see approach fails to account for the fact that even if the trial is 

able to begin in August, there is a high likelihood it will not be able to reach a verdict. Under this 

District’s operative order, “no person who has a fever, cough, sore throat, shortness of breath, 

unusual muscle pain, recent loss of taste or smell, nasal congestion or a runny nose (unless due to 

known allergies) is authorized to enter the courthouse.” (Gen. Order 20-26 at 4.) In addition to the 

coronavirus, these symptoms are also consistent with the common cold, influenza, and numerous 

other seasonal illnesses that will be circulating among the general population during this trial. It only 

takes one of the fifty-plus daily trial participants or one hundred plus witnesses in this case to 

experience an unexplained runny nose to stop this trial from progressing. Then, each time such a 

pause occurs, all trial participants would be required to quarantine until the participant tests negative 

for the coronavirus. Indeed, a simpler, single-defendant case was derailed by concerns about the 

transmission of the virus when the defendant appeared at trial with a fever. (See Mot. at 4.) Ultimately, 

that defendant tested negative for coronavirus, but his presence in the courtroom with a fever derailed 

the first attempt at his trial. Moreover, to the extent that an ill trial participant tests positive for the 

virus, the trial could be put on hold indefinitely for the duration of the participant’s recovery, with all 

other trial participants on quarantine for at least fourteen days to prevent further spread of the virus. 

 4 See Joshua Bowling, et al., Arizona Republic, Scottsdale confirms it will require face masks in public. 

Here’s what other leaders say (June 17, 2020), available at: https://www.azcentral.com/story/news

/local/arizona-health/2020/06/17/gov-doug-ducey-gives-cities-authority-mandate-face-maskspublic/3210588001/ (last visited June 19, 2020).

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If this case were a short, single-defendant trial, it would be less concerning if the Court decided 

to roll the dice to see if a safe trial could actually reach a verdict (although such a trial would still 

violate the defendant’s constitutional rights as discussed below). But the safety and logistical analysis 

is very different when it comes to this complex and novel six-Defendant trial, which the government 

contends will be twelve weeks long and involve no less than one hundred witnesses from across the 

country. Even if the Court were to implement the numerous and complicated protocols that the 

government claims might reduce the risk of spread of the virus among trial participants, the frequent 

pauses in the case, required each time a trial participant experiences “a fever, cough, sore throat, 

shortness of breath, unusual muscle pain, recent loss of taste or smell, nasal congestion or a runny 

nose,” will prevent the trial from reaching a verdict. Thus, while some judges might determine that 

shorter, single-defendant trials should proceed, this Court should continue this case. 

Moreover, at this time, Governor’s Ducey’s Executive Order indicates that “the elderly, and 

individuals with underlying health conditions” are advised to continue limiting their time away from 

their homes.5 Indeed, the CDC advises that individuals who are sixty-five or older, pregnant people, 

and anyone with pre-existing conditions such as diabetes, obesity, heart disease, lung disease, chronic 

and severe kidney problems, autoimmune conditions, and cancer should “[s]tay home.”6 Thus, it is 

recommended that numerous defense counsel, Defendants, potential jurors, and witnesses should 

not leave their homes, travel to the Courthouse for trial, or appear in public for any period of time, 

let alone at trial in a confined, indoor environment, for no less than eight hours per day over the 

course of an estimated twelve weeks. In their decades of practice, defense counsel have never been 

put in the position of risking their health and safety for the expediency of a trial, and are deeply 

concerned about doing so now.

 5 See Executive Order 2020-36 (May 12, 2020) available at: https://azgovernor.gov/

executive-orders (last visited on June 17, 2020).

6 See CDC, People Who Need Extra Precautions – What You Can Do, available at 

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/what-you-can-do.html (last 

visited June 16, 2020) (emphasis in original).

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Tellingly, the government does not state that it would be safe to try the case in August amid 

the pandemic, and does not address the effect that Arizona’s surge in new cases could have on the 

health and safety of the trial participants, their families, or the Arizona community. Further, its 

suggested protocols do not ensure a decreased risk of transmission and certainly do not guarantee the 

safety of the trial participants. For example, the suggestion that this Court order witnesses to testify 

without masks disregards the health and safety of the witnesses. Testifying without a mask will place 

the lives of high risk witnesses, or any high risk individuals who live with witnesses, in peril. Defense 

counsel has already identified witnesses for whom such a court appearance could be lethal, and at 

least one witness has indicated that he will refuse to appear in the courtroom if anyone in the 

Courthouse, including himself, is unmasked. Further, proceeding to trial in the Special Proceedings 

Courtroom (“SPC”), although it may allow for better social distancing and would minimize use of 

elevators, presents its own dangers: in August, the air will flow and be circulated by the SPC’s air 

conditioning system, and epidemiologists have concluded that “droplet transmission” occurs “by airconditioned ventilation.”7 The risk of indoor transmission from an air conditioner also undermines 

the use of plexiglass screens or transparent face shields, because, unless those barriers create an airtight seal (and they do not), a trial participant is still at risk for infection from airflow and circulation 

from an air conditioner. Thus, even a trial with strict compliance to these protocols nonetheless 

presents numerous avenues for widespread transmission of a deadly pathogen.

8

But, it is fantasy to assume that strict compliance with the government’s suggested protocols 

would actually occur. The wearing of masks is highly controversial, with many people refusing to 

wear them under any circumstance. For example, masks are mandated on all flights by federal law, 

but because some passengers remove them once in the air and no longer at risk for being removed 

 

7 See CDC, COVID-19 Outbreak Associated with Air Conditioning in Restaurant, 

Guangzhou, China, 2020, available at https://wwwnc.cdc.gov/eid/article/26/7/20-0764_article 

(last visited June 17, 2020).

8 Further, additional logistical issues caution against trying this case in the SPC. There are not

enough tables for defense counsel in the SPC at this time, and there will need to be a table not just 

for each defense team, but for each member of each defense team to accommodate social 

distancing concerns. Similarly, with more distance, and more tables, there will need to be more 

microphones, electrical connections for laptops, etc.

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from their flight for non-compliance, airlines are considering the extraordinary measure of banning 

such individuals from future flights.

9 Further, it can be anticipated that some trial participants may 

flout the Courthouse’s social distancing protocols. Indeed, scenes of packed Phoenix bars

demonstrate that some potential jurors may refuse or struggle to comply with social distancing, 

particularly when outside the Courtroom and beyond the watch of this Court. Thus, whether noncompliance is purposeful or accidental, we cannot assume that compliance will be a sufficient measure 

to protect trial participants from infection. 

II. This Court should continue the trial because this Court has an obligation to ensure 

that Defendants’ constitutional rights are protected.

This Court has the obligation to exercise its supervisory power in a manner that ensures “the 

fair and effective administration of the criminal justice system.” United States v. W.R. Grace, 526 F.3d 

499, 512 (9th Cir. 2008). Further, this Court “has the responsibility to supervise the administration 

of criminal justice in order to ensure fundamental fairness” including the protection of the 

Defendants’ constitutional rights. See United States v. Ritcher, 488 F.2d 170, 173 (9th Cir. 1973) (quoting 

United States v. Baird, 414 F.2d 700, 710 (2d Cir. 1969)). 

Commencing this trial in August, with or without the government’s suggested protocols, will 

deprive the Defendants of their rights to effective assistance of counsel, to trial before a fair crosssection of the community, to meaningful confrontation, to compulsory process, to present evidence, 

to testify, to be judged without the effect of a prejudicial face covering, to be tried by an impartial 

jury and to be free of a coercive verdict, and to be free of coercive pressure to plead guilty. A 

continuance is needed to ensure not only safety but also fundamental fairness.

A. The Defendants’ right to counsel will be violated.

Proceeding to trial in August will deprive the Defendants of the right to effective assistance 

of counsel based on both government interference with the duties of counsel and the constructive 

denial of counsel. (See Mot. at 8-9.) The government failed to attempt to address most of the 

 9 See Lauren Zumbach, Chicago Tribune, Major Airlines, including United, say face mask scofflaws 

can’t fly. But enforcement might be tricky (June 16, 2020), available at: https://www.chicagotribune.com/

coronavirus/ct-coronavirus-airlines-enforce-mask-policies-20200616-pax6gygjkzdshnlshy2dzgwktistory.html (last visited June 18, 2020).

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Defendants’ concerns. For example, Defendants asserted that a trial setting that places an attorney’s 

own physical wellbeing in peril amounts to the constructive denial of counsel. (See id. at 8.) 

Defendants established that certain defense counsel are high risk for severe Covid-19 complications, 

including death, based on age and health considerations. (See id. at 3; Sealed Ex. B.) All defense 

counsel, but particularly the counsel at high risk, including lead counsel for four of the Defendants, 

will understandably be distracted by imminent health concerns each time a participant coughs or 

sneezes, gets closer than six feet, or removes a mask, rather than being focused on the tasks of trial 

counsel. The government has not acknowledged this Sixth Amendment violation. 

Further, Defendants asserted that their counsel will be unable to perform basic functions such 

as gauging the reactions and demeanor of jurors, witnesses, and the court, if masked, as well as the 

inability to hear trial participants when they speak. (See id. at 8-9.) The government did not address 

this Sixth Amendment violation either.

Other concerns of the Defendants were met with or insufficient or unpractical solutions. For 

example, Defendants asserted that they would be deprived of their unqualified right to consult with 

counsel at trial if they were spaced six feet apart. (See id. at 9.) The government’s citations in answer

to this point are inapposite. (See Opp’n at 14 (citing United States v. Levenite, 277 F.3d 454 (4th Cir. 

2002); United States v. Balsam, 203 F.3d 72 (1st Cir. 2000); and United States v. Jones, 766 F.2d 994 (6th 

Cir. 1985)).) In each of those cases, the courts’ holdings were premised on the fact that the defendants 

were able to freely approach counsel’s table, freely caucus with counsel elsewhere in the courtroom, 

or freely pass notes to counsel. See Levenite, 277 F.3d at 465-66; Balsam, 203 F.3d at 81-82; Jones, 766 

F.2d at 1004. None of those methods of communication are possible at this trial because all trial 

participants (indeed, all individuals who enter the Courthouse) must maintain a distance of six feet at 

all times. (See Gen. Order 20-26 at 4.)

However, even if such spacing were constitutionally permissible, it is impracticable. 

Consultations with counsel will be critical at this trial because cross-examination of witnesses 

testifying about complex technologies and financial transactions may be informed by regular, 

contemporaneous consultation with the Defendants. It will be impossible for Defendants and 

counsel to communicate in real time in a manner that is not overheard by other trial participants and 

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not distracting to the jurors, if spaced six feet apart. Further, certain counsel suffer from hearing 

impairments, and may be unable to consult with their clients at that distance. 

The government’s response regarding Defendants’ impaired trial preparation (Opp’n at 4)

misses the mark. The government’s lead point – the availability of online review platforms – has 

nothing to do with the points raised in the Motion. And while the government suggests that videoconferencing platforms can be used in place of in-person meetings with witnesses and clients, the 

defense should not be forced to prepare its witnesses and its case in a manner that deprives defense 

counsel of the meaningful ability to assess the witnesses. (Opp’n at 4.) This is true especially with 

respect to the preparation of any Defendants who may elect to testify. The decision to testify is not 

made after one or even a series of phone calls. In their decades of practice, defense counsel have 

never prepared a client to testify in any manner other than face-to-face meetings spanning several 

days, depending upon the complexity of the case. Further, even if defense counsel wanted to 

undertake initial witness preparation via video-conferencing, defense counsel are prohibited from 

displaying the extensive Jencks Act materials via a video-conferencing web application under the 

terms of the Protective Order, an impediment that the government created and failed to address. 

Finally, the government’s filing does not account for the implications that working from home 

has for the lawyers in this case. The government’s dismissal of this concern fails to account that 

working from home, during a lockdown with all members of defense counsel’s families also on lockdown, is not nearly as productive a work environment as an office. Indeed, during the lock-down, 

several counsel took on new obligations, such as watching and schooling young children, which 

impacted the amount of time available to prepare for this trial.

 B. The Defendants’ confrontation right will be violated.

Defendants noted that proceeding to trial in August will deprive them of their confrontation 

right because the wearing of masks by witnesses – a precaution recommended by the CDC and 

required under General Order 20-26 – would impair the jury’s capacity to judge the witnesses’ facial 

expressions, demeanor, and credibility while “standing face to face” and “looking at” the witnesses. 

(Mot. at 11-12.) The government concedes as much, requesting that this Court exercise its discretion 

to order the witnesses to appear without masks “to avoid constitutional issues.” (Opp’n at 12.) A 

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witness should not be forced to risk his or her safety during this global pandemic, especially in Arizona 

which is now a hotbed for transmission, when a continuance could allow for safe, unmasked 

witnesses. Further, appearance by video is unacceptable to the defense. 

C. The Defendants’ right to trial by a fair cross-section will be violated.

Defendants explained that their right to trial before a fair cross-section of the community will 

be violated if this case proceeds to trial in August. (Mot. at 10-11.) To say that the claim has not yet 

ripened is no answer at all. Defendants seek a continuance because the constitutional violations that 

will occur if the trial proceeds in August are foreseeable and preventable by virtue of a continuance. 

The Motion was filed with the goal of ensuring that, when the trial commences, all parties can be 

confident that it will not be derailed due to the coronavirus and the Motion identified several 

constitutional rights that will be violated if the parties proceed to trial in August (in addition to health 

and safety concerns). 

The government’s reliance on cases from other Circuits to argue that Defendants cannot 

establish a fair cross-section claim (see Opp’n at 5-6) is misplaced. It is clear that, if the summonses 

are issued for the August start date, they will not produce a lawful cross-section of the community 

because the coronavirus is disproportionately affecting minorities in terms of health and economics. 

(Mot. at 10-11.) Instead, the jury selection process will result in a skewed pool with 

underrepresentation of minorities. (Id.) In contrast, the devastation caused by Hurricane Katrina 

equally impacted all who were in her path. As a result, cases rejecting fair cross-section claims related 

to that natural disaster have no bearing here. 

D. Other trial rights will be compromised.

Defendants further explained that proceeding to trial in August will undermine their rights to 

compulsory process, to present evidence, and to testify. (Mot. at 13.) Defendants explained that, it 

is uncertain if defense investigators will be able to serve subpoenas on witnesses, and even if they do, 

it is ever more uncertain whether witnesses will comply. (See id.) Indeed, the government has taken 

the position that personal service is too dangerous at this time. (See Mot. Ex. E.) The government 

failed to address these issues other than to state that the government’s case comes first, which 

“allow[s] [the defense] for additional time to assess any COVID-19 concerns.” (Opp’n at 12.) 

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Defendants are entitled to serve subpoenas, and to present a defense, including witness testimony 

free from the worries of contracting a deadly pathogen, assuming the witnesses actually appear. 

Defendants are entitled to testify without prejudicial face coverings, yet wearing a covering is the only 

way to safely appear in public, and is recommended by the CDC and required under General Order 

20-26. (Mot. at 14.)

III. No other trial considerations outweigh this Court’s obligation to ensure a safe trial for 

all participants and fair trial the Defendants.

The government both concedes that a brief continuance to the fall of 2020 may be necessary, 

and maintains that the trial should proceed in August. (Opp’n at 16.) The government’s suggestion 

that this is an “indefinite” delay (Opp’n at 1) is wrong, as it its response that Defendants are seeking 

delay for further review of the discovery (Opp’n at 2-3). Defendants were preparing for this trial as 

scheduled, until the pandemic hit at which time trial preparations were interrupted as described in the 

Motion. But the sole purpose of this Motion is to ensure a safe and fair trial that reaches a verdict 

the first and only time the case is tried, without incessant starts and stops for serious medical reasons. 

That cannot occur now or in August. Defendants do not seek an indefinite continuance, but one that 

will enable the case to be tried safely, efficiently, and fairly. We may be in a very different position in 

the fall. As the government concedes, it is possible that there will be a vaccine or cure in a few 

“months.” (Opp’n at 2.) A continuance will keep all trial participants safe, particularly at this time, 

when the spread of the coronavirus is at dangerous levels in Arizona. Moreover, absent a crystal ball, 

none of the parties could have anticipated this once-in-a-century global pandemic when negotiating 

the original scheduling order or seeking previous continuances. It is disingenuous to seek the denial 

of this Motion on the basis that Defendants sought and obtained prior continuances when this 

Motion is based on a catastrophic and ongoing event that is outside the control of the Defendants, 

the Court, and the government. Indeed, the coronavirus took the entire world by surprise. 

Moreover, the government’s claim of prejudice is overstated. Defendants appreciate that the 

government and its witnesses are eager for the trial to commence. However, the risk of faded 

memories is not due to the continuance the Defendants seek. Any faded memories are due to the 

fact that the government is charging and trying the Defendants based on events that occurred as early 

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as 2004. Indeed, the government indicted the Defendants in 2018 based on information that had 

been in its possession since 2012. Any fading of memories occurred long before the government 

indicted this case. And claims of faded memories will seem insignificant if a witness becomes infected 

with the coronavirus due to traveling to or appearing at the trial.

Finally, the record in this case belies the government’s suggestion that defense counsel have 

not diligently prepared the defense. There has been extensive substantive motion practice. 

Defendants’ Motion to Dismiss Based on Outrageous Government Misconduct Invading AttorneyClient Privilege (Doc. 940) and Defendants’ Motion to Compel Production of Brady Material (Doc. 

777) are pending, and additional motion practice is forthcoming (see Doc. 1020 at 11). Defendants 

filed and opposed numerous motions in limine. The parties are prepared to submit their proposed 

jury questionnaires no later than June 26, 2020. Defense counsel have reviewed discovery, 

interviewed witnesses (when possible), identified and researched trial issues, conferred about trial 

strategy, and more. But none of that effort will matter if a single trial participant contracts the 

coronavirus (or even the common cold) during trial because the trial will be paused until the trial can 

safely resume. Without a continuance, it is all but guaranteed that health and safety concerns are 

likely to pause or derail the trial, and impinge the Defendants’ constitutional rights. 

CONCLUSION

For all these reasons, this Court should grant the Motion. While Defendants, too, “support[] 

the Court’s efforts in exploring measures that would allow jury trials to proceed safely during this 

time,” and also appreciate the government’s efforts to brainstorm some of the safety issues that would 

need to be addressed to conduct a trial during this pandemic, Defendants believe that a twelve-week, 

multi-defendant, hundred-plus witness trial is not the right vehicle for the Court to begin 

experimenting with conducting trials during a pandemic.

/

/

/

/

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RESPECTFULLY SUBMITTED this 19th day of June, 2020, 

Paul J. Cambria, Jr.

Erin E. McCampbell

LIPSITZ GREEN SCIME CAMBRIA LLP

By: /s/ Paul J. Cambria, Jr. 

Paul J. Cambria, Jr.

Attorneys for Michael Lacey

Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual (Jan. 2020) § II (C) 

(3), Erin E. McCampbell 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.

Thomas H. Bienert, Jr.

Whitney Z. Bernstein

BIENERT KATZMAN, PLC

By: /s/ Whitney Z. Bernstein

Whitney Z. Bernstein

Attorneys for James Larkin

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW, P.C.

By: /s/ Ariel A. Neuman

Ariel A. Neuman

Attorneys for John Brunst

Bruce Feder

FEDER LAW OFFICE, P.A.

By: /s/ Bruce Feder

Bruce Feder

Attorneys for Scott Spear

Case 2:18-cr-00422-DJH Document 1025 Filed 06/19/20 Page 14 of 15
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David Eisenberg

DAVID EISENBERG, P.L.C.

By: /s/ David Eisenberg

David Eisenberg

Attorneys for Andrew Padilla

Joy Bertrand

JOY BERTRAND, ESQ.

By: /s/ Joy Bertrand

Joy Bertrand

Attorneys for Joye Vaught

On June 19, 2020, a PDF version

of this document was filed with

Clerk of the Court using the CM/ECF

System for filing and for Transmittal

Of a Notice of Electronic Filing to the

Following CM/ECF registrants:

Kevin Rapp, kevin.rapp@usdoj.gov

Reginald Jones, reginald.jones4@usdoj.gov 

Peter Kozinets, peter.kozinets@usdoj.gov

John Kucera, john.kucera@usdoj.gov 

Margaret Perlmeter, margaret.perlmeter@usdoj.gov 

Andrew Stone, andrew.stone@usdoj.gov

Case 2:18-cr-00422-DJH Document 1025 Filed 06/19/20 Page 15 of 15