1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MOTION TO STAY THE CASE PENDING RESOLUTION OF THE WRIT OF MANDAMUS PETITION

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

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

Erin 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

[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-PHX-SMB

DEFENDANTS’ MOTION FOR STAY 

OF CASE PENDING RESOLUTION 

OF THE MANDAMUS PETITION 

Case 2:18-cr-00422-DJH Document 1092 Filed 11/20/20 Page 1 of 10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MOTION TO STAY THE CASE PENDING RESOLUTION OF THE WRIT OF MANDAMUS PETITION

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 1092 Filed 11/20/20 Page 2 of 10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

MOTION TO STAY THE CASE PENDING RESOLUTION OF THE WRIT OF MANDAMUS PETITION

I. INTRODUCTION

Defendants Michael Lacey, James Larkin, Scott Spear, John Brunst, Andrew Padilla, and Joye 

Vaught (collectively, “Defendants”) seek a stay of this case pending the Ninth Circuit’s resolution of 

Defendants’ Petition for a Writ of Mandamus. See Michael Lacey, et al v. USDC-AZP (9th Cir.), case 

number 20-73408, at Doc. No. 1-3 (“Petition”). In their Petition, Defendants moved for an order 

vacating this Court’s denial of recusal and ordering this Court to recuse from this case. Because 

Defendants will suffer irreparable harm if this Court continues to preside over matters in this action 

while the Petition is pending, Defendants respectfully request that this Court enter a stay of this action 

pending the Ninth Circuit’s resolution of the Petition. 

II. BACKGROUND

On September 23, 2020, Defendants filed a motion for recusal (“Recusal Motion”). See Doc. 

No. 1059. In the Recusal Motion, Defendants explained that this Court must recuse itself under 28 

U.S.C. §§455(b)(4) and 455(b)(5)(iii), because the Court’s spouse has interests that could be 

significantly affected by the outcome of the Case, and under 28 U.S.C. §455(a), because the spouse’s 

statements and actions could cause reasonable people to question the court’s impartiality. Id. On 

October 23, 2020, without any hearing, this Court denied the Recusal Motion. See Doc. No. 1075. 

Defendants then filed their Petition in the Ninth Circuit, which is incorporated herein by reference. 

In essence, the Petition is an interlocutory appeal seeking an order precluding this Court from 

presiding over this case. Defendants seek a stay of this case pending resolution of Petition because 

the determination of the Ninth Circuit on the Petition would be rendered moot if this case continues 

its progression to trial before the Ninth Circuit has resolved the Petition. Moreover, Defendants will 

be prejudiced each time a new ruling is issued while the Petition is pending because, as Defendants 

explained in the Recusal Motion, this Court should no longer preside over this case. Finally, the 

government’s interest in trying Defendants for the alleged criminal offenses is not prejudiced by 

issuance of a stay and adjudication of the Petition because the government will get its trial regardless 

of how the Ninth Circuit resolves the Petition. 

Case 2:18-cr-00422-DJH Document 1092 Filed 11/20/20 Page 3 of 10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

MOTION TO STAY THE CASE PENDING RESOLUTION OF THE WRIT OF MANDAMUS PETITION

III. THE COURT SHOULD STAY THE CASE PENDING RESOLUTION OF THE 

PETITION

Defendants filed the Petition seeking an order prohibiting this Court from presiding over this 

case in violation of 28 U.S.C. § 455. See Petition. Defendants will suffer irreparable injury if they are

forced to proceed before this Court while their Petition to seek relief from proceeding before this 

Court in violation of 28 U.S.C. § 455 is resolved. This Court should therefore stay the case pending 

resolution of the Petition.

When deciding whether to issue a stay pending appeal to preserve the status quo, the Ninth 

Circuit considers the following factors: “(1) whether the stay applicant has made a strong showing 

that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent 

a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the 

proceeding; and (4) where the public interest lies.” California Pharmacists Ass’n v. Maxwell-Jolly, 563 

F.3d 847, 850 (9th Cir. 2009). In this Circuit, a sliding scale approach is applied to the first and third

elements. That is, in lieu of showing a “likelihood of success on the merits” and lack of substantial 

injury to other interested parties, the party is entitled to a stay if the writ raises “serious questions” 

and “the balance of hardships tips sharply in the [moving party’s] favor.” Alliance for the Wild Rockies 

v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011); see also Leiva-Perez v. Holder, 640 F.3d 962, 967-68 

(9th Cir. 2011) (defining likelihood of success as a showing of a “fair prospect” of success or “a 

substantial case for relief on the merits”).

This Court should grant a stay pending resolution of the Petition by the Ninth Circuit because 

Defendants can satisfy both formulations of the standard. Defendants are likely to succeed on the 

merits of their arguments in the Petition and meet the requirements for a stay to issue applying the 

alternative “serious questions” standard. The arguments they raise are substantial and warrant 

deliberate consideration, and the balance of hardships tips sharply in their favor. Further, Defendants 

will suffer irreparable harm without a stay, and the public interest lies in their favor. The government, 

by contrast, will not be prejudiced, because it will remain free to proceed to trial on the pending 

criminal violations once the Petition is adjudicated. 

Case 2:18-cr-00422-DJH Document 1092 Filed 11/20/20 Page 4 of 10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

MOTION TO STAY THE CASE PENDING RESOLUTION OF THE WRIT OF MANDAMUS PETITION

A. There are serious questions going to the merits of Defendants’ case.

To receive a stay, Defendants are not required to show “that it is more likely than not that 

[they] will win on the merits.” Leiva-Perez, 640 F.3d at 967. Instead, Defendants need only show that 

the Petition raises “serious questions.” Id. (quoting Wild Rockies, 632 F.3d at 1135). The Ninth Circuit 

has explained that this minimal standard makes sense in the context of a request for a stay because

“[a] more stringent requirement would either . . . put every case in which a stay is requested on an 

expedited schedule, with the parties required to brief the merits of the case in depth for stay purposes, 

or would have the court attempting to predict with accuracy the resolution of often-thorny legal issues 

without adequate briefing and argument.” Leiva-Perez, 640 F.3d at 967. “Such pre-adjudication 

adjudication would defeat the purpose of a stay, which is to give the reviewing court the time to ‘act 

responsibly,’ rather than doling out ‘justice on the fly.’” Id. (quoting Nken v. Holder, 556 U.S. 418, 427 

(2009)). 

Here, there are serious questions pending before the Ninth Circuit, including: (1) whether the 

Court’s spouse’s non-economic interest are an “interest” requiring recusal under case law and 28 

U.S.C. §§ 455(b)(4) and 455(b)(5)(iii); (2) whether the Court’s spouse’s interests are significantly

affected by the outcome of this case; (3) whether public statements about the people, entities, and 

issues in this case by the Court’s spouse, his partners, and the other advocacy organizations with 

whom the Court’s spouse aligned himself would cause reasonable people to question the Court’s

impartiality; (4) whether the Recusal Motion can be properly declared untimely, despite the 

uncontroverted declaration of Defendants’ six independent counsel, all saying they learned the facts 

supporting the Recusal Motion less than two weeks before filing the motion, and in light of the 

Court’s apparent knowledge of the relevant facts warranting recusal upon assignment of the case but 

never advising the parties of them; and (5) whether this Court’s striking the Declaration of 

Defendants’ expert witness (the former chief judge of the Northern District of California) on the 

grounds that the Recusal Motion presented only a pure question of law and the Declaration was 

untimely was appropriate. Defendants’ Petition has demonstrated that there are serious questions 

going to whether this Court should preside over this case and satisfies the Ninth Circuit’s minimal 

standard for a stay. 

Case 2:18-cr-00422-DJH Document 1092 Filed 11/20/20 Page 5 of 10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

MOTION TO STAY THE CASE PENDING RESOLUTION OF THE WRIT OF MANDAMUS PETITION

B. The balance of hardships tips sharply in Defendants’ favor and the 

government would not be prejudiced by issuance of the stay.

Defendants are prejudiced by this Court continuing to issue substantive rulings while the 

legitimacy of it presiding over this case remain in question. The appearance of partiality is 

foundational to the functioning and credibility of our judicial system. Williams v. Pennsylvania, 579 U.S. 

____, 136 S. Ct. 1899, 1909 (2016) (“An insistence on the appearance of neutrality is not some 

artificial attempt to mask imperfection in the judicial process, but rather an essential means of 

ensuring the reality of a fair adjudication. Both the appearance and reality of impartial justice are 

necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself.”); 

Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 167 (3d Cir. 1993) (“impartiality and the appearance 

of impartiality in a judicial officer are the sine quo non of the American legal system” (quotation marks 

and citation omitted)). Since denying the Recusal Motion, this Court has issued multiple substantive 

rulings, including granting the government’s motion in limine related to Defendants’ counsel over 

Defendants objection (Doc. No. 1078), denying Defendants’ motion in limine to preclude irrelevant 

and non-percipient witnesses (Doc. No. 1079), granting in part and denying in part Defendants’ 

motion in limine to preclude certain reference to witnesses, Defendants, and defense counsel (Doc. 

No. 1080), granting the government’s motion in limine to preclude and limit some of Defendants’ 

expert witnesses (Doc. No. 1081), and denying Defendants’ motion for necessary trial subpoenas 

under Rule 17 (Doc. No. 1084). The Court issued this flurry of substantive orders days after denying 

the Recusal Motion and on motions that had been pending before this Court for many months. With 

Defendants’ Petition pending, Defendants continue to contest the propriety and legality of this Court 

presiding over this matter. This Court must stay the case pending the resolution of the Petition to 

avoid furthering orders tainted by the appearance of bias.

The balance of hardships tips sharply in Defendants’ favor. Defendants have no avenue to 

seek relief other than the mandamus relief they are currently seeking on appeal. A direct appeal 

following the conclusion of a criminal trial will not allow Defendants to get the relief they seek – the 

case will have already been tried before a Judge whose recusal was required under 28 U.S.C. § 455. 

Only a stay of this case pending the Circuit’s determination of the Petition can cure the continuing 

Case 2:18-cr-00422-DJH Document 1092 Filed 11/20/20 Page 6 of 10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

MOTION TO STAY THE CASE PENDING RESOLUTION OF THE WRIT OF MANDAMUS PETITION

harm that is resulting from this Court presiding over a case when the legitimacy of that act is in 

question. Proceeding with this case without awaiting the Circuit’s determination on the pending 

Petition would taint any and all substantive rulings and could force re-litigation of issues and motions.

Issuing a stay will not result in any hardship to the government. This is especially so since 

the trial in this case is not scheduled to commence for many months. The government will be free 

to proceed to trial in the criminal case after the Circuit resolves Defendants’ mandamus petition on 

appeal. A stay until the appeal is adjudicated would not preclude the government in any way with 

proceeding to trial or continuing to prosecute its case before the appropriate court. 

C. There is a likelihood of irreparable injury in the absence of a stay.

If the proceedings in this court continue while the legality of this Court presiding over this 

case remains in dispute, the Defendants will be irreparably harmed in that they will be forced to 

proceed with motion practice and trial preparation relying on rulings from a court whose ability to 

preside is in question. Since Defendants filed the underlying motion for recusal, this Court has issued 

numerous substantive orders and denied Defendants’ motion for subpoenas and various motions in 

limine. See, e.g., Doc. Nos. 1078, 1079, 1080, 1081, 1084. Further, Defendants argued in the Petition

that this Court’s inappropriate presiding over this case is inadequately addressed on direct appeal, 

meaning that their right to have a judge who appears impartial can only be vindicated through this 

process, and a stay is necessary to ensure no further harm to Defendants before the Circuit resolves 

the pending Petition. 

D. The stay is in the public interest.

There is a compelling and valid public interest that Defendants be given a full and fair 

opportunity to obtain meaningful judicial review of the Petition. The core question at issue in the 

Petition is whether Defendants, and the public, are entitled to a Court whose partiality cannot be 

questioned. Proceeding while the validity of this Court’s presiding over this case is in dispute further 

erodes public confidence in our judicial system, making a stay in the public’s best interest while the 

recusal issue is resolved by the appellate court. 

IV. CONCLUSION

The Court should issue a stay of Defendants’ criminal case pending the Circuit’s resolution of 

Case 2:18-cr-00422-DJH Document 1092 Filed 11/20/20 Page 7 of 10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

MOTION TO STAY THE CASE PENDING RESOLUTION OF THE WRIT OF MANDAMUS PETITION

the Petition. Defendants are entitled to a stay because serious questions going to the merits were 

raised. Further, the balance of hardships tips strongly in favor of granting the stay because 

Defendants will suffer irreparable injury if this Court continues to issue substantive orders while the 

legality of this Court presiding over the case remains contested and, as Defendants contend, improper. 

The government is not prejudiced by issuance of a stay, and a stay is in the public interest. Moreover, 

the Court need not order a lengthy stay. The Court need only stay proceedings long enough for the 

Circuit to resolve the Petition so that Defendants’ and public’s confidence in an impartial judiciary 

need not suffer irreparable injury in the meantime.

 Respectfully submitted,

DATED: November 20, 2020 Thomas H. Bienert, Jr.

Whitney Z. Bernstein 

BIENERT | KATZMAN PC 

By: s/ Whitney Z. Bernstein

Whitney Z. Bernstein

Attorneys for James Larkin 

Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual (August 2020) § 

II(C)(3), Whitney Z. Bernstein 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 20, 2020 Paul J. Cambria, Jr.

Erin McCampbell 

LIPSITZ GREEN SCIME CAMBRIA LLP

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

Paul J. Cambria, Jr.

Attorneys for Michael Lacey

Case 2:18-cr-00422-DJH Document 1092 Filed 11/20/20 Page 8 of 10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

MOTION TO STAY THE CASE PENDING RESOLUTION OF THE WRIT OF MANDAMUS PETITION

DATED: November 20, 2020 Gary S. Lincenberg 

Ariel A. Neuman 

Gopi K. Panchapakesan 

BIRD, MARELLA, BOXER, WOLPERT, NESSIM, 

DROOKS, LINCENBERG & RHOW, P.C.

By: s/ Gary S. Lincenberg (with permission)

Gary S. Lincenberg 

Attorneys for John Brunst

DATED: November 20, 2020 Bruce Feder

FEDER LAW OFFICE, P.A. 

By: s/ Bruce Feder (with permission)

Bruce Feder

Attorneys for Scott Spear

DATED: November 20, 2020 David Eisenberg

DAVID EISENBERG, P.L.C.

By: s/ David Eisenberg (with permission)

 David Eisenberg

Attorneys for Andrew Padilla

DATED: November 20, 2020 Joy Bertrand

 JOY BERTRAND, ESQ.

By: s/Joy Bertrand (with permission)

 Joy Bertrand

 Attorneys for Joye Vaught

Case 2:18-cr-00422-DJH Document 1092 Filed 11/20/20 Page 9 of 10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 1

CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE

I hereby certify that on November 20, 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 listed below. 

/s/ Toni Thomas

Toni Thomas

Case 2:18-cr-00422-DJH Document 1092 Filed 11/20/20 Page 10 of 10