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MICHAEL BAILEY

United States Attorney

District of Arizona

KEVIN M. RAPP (Ariz. Bar No. 014249, kevin.rapp@usdoj.gov)

MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov)

PETER S. KOZINETS (Ariz. Bar No. 019856, peter.kozinets@usdoj.gov) 

ANDREW C. STONE (Ariz. Bar No. 026543, andrew.stone@usdoj.gov)

Assistant U.S. Attorneys

40 N. Central Avenue, Suite 1800

Phoenix, Arizona 85004-4408

Telephone (602) 514-7500

DAN G. BOYLE (N.Y. Bar No. 5216825, daniel.boyle2@usdoj.gov) 

Special Assistant U.S. Attorney

312 N. Spring Street, Suite 1400 Los Angeles, CA 90012

Telephone (213) 894-2426

BRIAN C. RABBITT 

Assistant Attorney General 

Criminal Division, U.S. Department of Justice

REGINALD E. JONES (Miss. Bar No. 102806, reginald.jones4@usdoj.gov) 

Senior Trial Attorney, U.S. Department of Justice

Child Exploitation and Obscenity Section 

950 Pennsylvania Ave N.W., Room 2116

Washington, D.C. 20530

Telephone (202) 616-2807 

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff, 

v. 

Michael Lacey, et al.,

Defendants.

No. CR-18-422-PHX-SMB

UNITED STATES’ RESPONSE TO 

DEFENDANTS’ MOTION FOR STAY 

OF CASE PENDING RESOLUTION 

OF THE MANDAMUS PETITION

(Doc. 1092)

Telephonic Oral Argument: Dec. 4, 2020, at 10:00 a.m.

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Preliminary Statement

In a meritless attempt to derail the administration of justice, Defendants moved for 

recusal 17 months after the case was assigned to this Court and after receiving several 

adverse rulings. The motion was based on widely-available publications dating to 2015, an 

absurd legal theory that the Court’s spouse (who has no involvement in this case) has an 

undefined “interest” that could be substantially and directly affected by the outcome, and 

the obsolete notion that a husband’s views must be imputed to his spouse. On October 23, 

2020, the Court issued a 14-page order that detailed why these claims are factually and 

legally unavailing, and denied the motion. (Doc. 1075, Order).

Undeterred, Defendants filed a petition for writ of mandamus in the Ninth Circuit 

raising the same flawed claims, and a motion in this Court seeking a stay pending the 

petition’s resolution. (Doc. 1092.) If granted, the stay would amount to a sixth trial 

continuance that could run well past the April 2021 trial date. As the Supreme Court has 

recognized, such a stay “is an intrusion into the ordinary processes of administration and 

judicial review.” Nken v. Holder, 556 U.S. 418, 427 (2009). It is “not a matter of right,

even if irreparable injury might otherwise result”; rather, it is “an exercise of judicial

discretion,” and Defendants have the burden of establishing that the circumstances justify 

grinding this case to a halt for an indefinite period four months before trial. See id. at 433-

34. Defendants have failed to carry that heavy burden.

First, Defendants have failed to establish a likelihood—or any reasonable 

possibility—of success on the merits on their petition. A writ of mandamus is a “drastic 

and extraordinary” remedy “reserved for really extraordinary causes,” Ex parte Fahey, 332 

U.S. 258, 259-60 (1947), and Defendants must demonstrate that their “right to issuance of 

the writ is clear and indisputable.” Kerr v United States Dist. Ct. for N. Dist. of Calif., 426 

U.S. 394, 402 (1976) (citations omitted). Defendants cannot establish any likelihood of 

success on the merits because none of the five Bauman factors that courts consider in 

evaluating mandamus petitions supports their request for relief. Bauman v. U.S. Dist. 

Court, 557 F.2d 650, 654-55 (9th Cir. 1977). Among other things, Defendants cannot meet 

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the third Bauman factor, which requires showing that the Court’s Order was clearly 

erroneous as a matter of law. Hernandez v. Tanninen, 604 F.3d 1095, 1099 (9th Cir. 2010)

(absence of the third Bauman factor is dispositive). 

Defendants cannot demonstrate any clear error. The record and the law amply 

support the Court’s conclusion that the recusal motion was untimely given that it was based 

on published articles, press releases and other materials that have long been known to the 

internet-viewing public, and that even some of Defendants’ counsel were aware of—but

admittedly did not “focus on”—until after Defendants suffered a series of adverse rulings.

(See Doc. 1075, Order at 7.) Further, Defendants cannot show that the outcome of this case 

could have a substantial and direct affect on any “interest” held by the Court’s spouse—

who has no involvement in this federal criminal prosecution. Moreover, Defendants come 

nowhere close to showing that the Court clearly erred in holding that an objectively 

reasonable, thoughtful person with knowledge of the facts would not reasonably doubt her 

impartiality, particularly where courts have long-rejected the outmoded notion that a judge 

is unable to preside impartially because of her spouse’s views.

Second, Defendants have failed to demonstrate that they will suffer irreparable harm 

absent a stay. The Ninth Circuit routinely considers disqualification orders on direct appeal, 

and Defendants have not established that they face any unique prejudice that differentiates 

them from other litigants who proceed on direct review. And while Defendants point to 

hypothetical costs and delay associated with having the case proceed before their petition 

is resolved, the Ninth Circuit has “repeatedly held that financial harm is insufficient to 

justify collateral review” of recusal and other pretrial decisions. In re Sussex, 781 F.3d 

1065, 1075 (9th Cir. 2015). 

Third, the interests of the United States, the victims and the public weigh heavily

against a stay. The policy against piecemeal appellate review embodied in 28 U.S.C. 1291 

“reduces the ability of litigants to harass opponents and to clog the courts through a 

succession of costly and time-consuming appeals,” and “is crucial to the efficient 

administration of justice.” Flanagan v. United States, 465 U.S. 259, 264 (1984). This 

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policy “is at its strongest in the field of criminal law,” where delay prejudices the 

prosecution’s ability to prove its case beyond a reasonable doubt. Flanagan, 465 U.S. at

264-65. Moreover, the victims and the public have a right to “proceedings free from 

unreasonable delay” under the Crime Victims’ Rights Act. (Doc. 893 at 5.) The balance of 

equities tips sharply against Defendants, and the stay motion should be denied.

Factual Background

A. Defendants Have Continually Sought to Delay Trial.

Defendants made their first request to continue the trial in the parties’ Notice of 

Filing of Parties’ Proposed Scheduling Order. (Doc. 121 at 3.) The government asked for 

trial to begin in October 2019, while Defendants sought a trial date in January 2020. (Id.)

Judge Logan, then presiding, adopted a January 2020 trial date. (Doc. 131 at 3.) 

On June 3, 2019, Defendant Padilla filed Defendants’ first motion to continue trial 

(Doc. 628), based on a substitution of counsel for him and Defendant Vaught in May 

2019. (Docs. 559, 565-566.) The Court granted the motion and continued the trial from 

January 15, 2020 to May 5, 2020. (Doc. 664.) On January 28, 2020, Defendants filed their 

second motion to continue trial, arguing the government had not satisfied its discovery 

deadlines and seeking a continuance until at least October 2020. (Doc. 862 at 3, 7.) While 

the Court found some of Defendants’ discovery claims “directly contradicted” by the 

record, it continued the trial from May to August 2020. (Doc. 893 at 4, 6.)

On May 29, 2020, Defendants filed their third motion to continue trial. (Doc. 

990.) This request focused on the inability for Defendants to prepare for, and for the Court 

to safely conduct, a trial during the pandemic. Defendants asked for a continuance until 

“unmasked testimony will be perfectly safe”—that is, until “after the pandemic.” (Doc. 

990 at 12.) The Court continued the trial until January 2021. (Doc. 1031.)

On September 21, 2020, Defendant Lacey filed a fourth motion to continue trial, 

this time based on his counsel’s pregnancy and upcoming disability leave and continued 

pandemic concerns. (Doc. 1058.) The Court granted the motion and continued the trial until 

April 2021. (Doc. 1068.)

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In addition, to the five requests to continue trial, Defendants have filed six motions 

to dismiss premised on various legal theories. (Docs. 456, 561, 746, 782, 783, 940.) To 

date, none have been successful.

B. In September 2020, Defendants Unsuccessfully Moved for Recusal—and 

Now Seek Indefinite Trial Delay Pending Appeal.

On September 23, 2020, two days after filing the latest motion to continue trial, and 

more than 17 months after the Court inherited this case, Defendants moved for recusal 

based on the Court’s marriage to Arizona Attorney General Mark Brnovich (AG Brnovich). 

(Doc. 1059; see also Doc. 1075, Order at 1-2.) Relying on published news articles dating 

to 2015 and other widely-available published information (see Doc. 1059-1), Defendants 

asserted that AG Brnovich had made various statements “about human trafficking and 

Backpage.com” that warranted the Court’s recusal under 28 U.S.C. §§ 455(a), (b)(4) and 

(b)(5)(iii). (Doc. 1059, Mot. at 1, 8.) 

On October 23, 2020, after the motion was fully briefed, the Court issued a thorough 

14-page order denying Defendants’ motion for recusal. First, the Court found the motion 

untimely because Defendants filed it “nearly a year and a half after the Court inherited the 

case and after several adverse rulings,” indicating that it was “filed for suspect tactical and 

strategic reasons.” (Doc. 1075, Order at 6-7.) The Court rejected as “unbelievable” 

Defendants’ contrary “bare assertion” that they had just discovered the basis for their

motion in September 2020, particularly given longstanding press coverage of the Court’s 

marriage to AG Brnovich and Defendants’ knowledge that all or nearly all state attorneys 

general had been scrutinizing Backpage for years. (Doc. 1075, Order at 7.) The Court also 

noted Defendants’ counsel admitted that some of them knew in April 2018 that a coalition 

of attorneys general had written the letter to Congress about Backpage in August 2017 that 

formed one of the motion’s exhibits, but claimed they did not previously “focus on” the 

letter or the fact that AG Brnovich had signed it. (Doc. 1075, Order at 7.) 

Second, the Court rejected Defendants’ assertion that the Court’s recusal was 

required by 28 U.S.C. §§ 455(b)(4) and (5)(iii). (Doc. 1075, Order at 7-10.) These 

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provisions require a judge to recuse where the judge knows that her spouse “has a financial 

interest in the subject matter in controversy or in a party to the proceeding, or any other 

interest that could be substantially affected by the outcome of the proceeding,” or where 

the judge’s spouse “[i]s known by the judge to have an interest that could be substantially 

affected by the outcome of the proceeding.” 28 U.S.C. §§ 455(b)(4) and (5)(iii). Citing 

cases from other Circuits and the District of Arizona, the Court found that both §§ 455(b)(4) 

and (5)(iii) “require an interest that is financial or proprietary in nature” and noted that AG 

Brnovich has no such interest in this case. (Doc. 1075, Order at 8-9.)1 But even assuming 

that AG Brnovich had an “interest” cognizable under 28 U.S.C. §§ 455(b)(4) and (b)(5)(iii), 

the Court found Defendants’ arguments still failed for the fundamental reason that 

Defendants had failed to show how that interest “could be substantially affected by the 

outcome” of this case. (Doc. 1075, Order at 9-10.) 

Third, the Court rejected Defendants’ assertion that recusal is required under 28 

U.S.C. § 455(a), which involves determining whether “a reasonable person with 

knowledge of all the facts would conclude that the judge’s impartiality might reasonably 

be questioned.” (Doc. 1075, Order at 10 (citation omitted).) The Court recognized that “a

judge’s impartiality cannot reasonably be questioned simply because of the opinions and

views expressed by an organization headed by a judge’s spouse.” (Doc. 1075, Order at 11.)

The Court then found that Judge Murguia’s analysis in Melendres I set up an instructive 

contrast with this case. (Doc. 1075, Order at 12-13.) 

On November 18, 2020, almost a full month after the Court issued the Order, 

 

1 The Court further rejected the suggestion that AG Brnovich had some type of financial 

or pecuniary interest by virtue of his campaigns for attorney general: 

[C]ontrary to Defendants assertions, the outcome of this case is extremely unlikely to “impact his ability to raise campaign funds and to keep his office and salary.” (Doc. 1071 at 8, n.9.) In fact, because AG Brnovich has been 

elected as Arizona Attorney General in two consecutive terms, he is not 

eligible to run for his office again. Ariz. Const. art. V, § 1(A). Therefore, 

Defendants’ argument on this point is without merit.

(Doc. 1075, Order at 9.)

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Defendants filed a petition for writ of mandamus in the Ninth Circuit seeking to overturn 

it. Lacey, et al. v. United States Dist. Ct., No. 20-73408, DktEntry 1-3. Under Fed. R. App. 

P. 21(b) and 9th Cir. R. 21-4, no answer to the petition may be filed unless ordered by the 

Ninth Circuit. To date, the Ninth Circuit has not ordered the United States to answer, and 

the timeframe for resolving the petition—potentially many months—is unknown.

2

Argument

To justify a stay pending appeal, Defendants must: (1) make “a strong showing” 

that they are “likely to succeed on the merits”; (2) demonstrate that they “will be irreparably 

injured absent a stay”; (3) show that issuance of the stay will not “substantially injure the 

other parties interested in the proceeding”; and (4) demonstrate “where the public interest 

lies.” Nken, 556 U.S. at 434. Where, as here, they cannot make a “strong showing” on the 

first factor (likelihood of success), Defendants may make a lesser showing that the appeal 

“raises serious legal questions or has a reasonable probability of success.” Leiva-Perez v. 

Holder, 640 F.3d 962, 970-71 (9th Cir. 2011). However, “[a] party meeting this lesser 

threshold . . . must then demonstrate that the balance of hardships under the second and 

third [Nken] factors tilts sharply in its favor.” Morse v. Servicemaster Glob. Holdings, Inc., 

2013 WL 123610, at *2 (N.D. Cal. Jan. 8, 2013) (emphasis in original) (citing Leiva-Perez, 

640 F.3d at 970). Defendants cannot meet their burden of establishing any of these factors.

I. Defendants Have Not Demonstrated Any Likelihood of Success.

A. Defendants Have Failed to Show that the Court’s Order Is Clearly Erroneous.

A writ of mandamus is a “drastic and extraordinary” remedy “reserved for really 

extraordinary causes.” Ex parte Fahey, 332 U.S. at 259-60; In re Van Dusen, 654 F.3d 838, 

840 (9th Cir. 2011). “[O]nly exceptional circumstances amounting to a judicial usurpation 

of power, or a clear abuse of discretion, will justify the invocation of this extraordinary 

 

2 In the mandamus appeal from the denial of recusal in Nat’l Abortion Fed’n. v. Ctr. for 

Med. Progress, the Ninth Circuit docketed the petition on December 13, 2017, ordered an 

answer two-and-a-half months later, and denied the petition on April 30, 2018. See 9th Cir. 

No. 17-73313 Docket. In another recusal-related mandamus matter, In re Sussex, the court 

ordered an answer about two-and-a-half months after docketing the petition, and fully resolved the matter about a year later. See 9th Cir. No. 14-70158 Docket.

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remedy.” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004) (internal 

quotations and citations omitted). Defendants must therefore demonstrate that their “right 

to issuance of the writ is clear and indisputable.” Kerr, 426 U.S. at 402.

In evaluating a mandamus petition, the Ninth Circuit considers five factors:

(1) whether the petitioner has other adequate means, such as a direct appeal, to attain the relief he or she desires; (2) whether the petitioner will be damaged or prejudiced in a way not correctable on appeal; (3) whether the district court’s order is clearly erroneous as a matter of law; (4) whether the 

district court's order makes an “oft-repeated error,” or “manifests a persistent disregard of the federal rules”; and (5) whether the district court’s order raises 

new and important problems, or legal issues of first impression.

Bauman, 557 F.2d at 654-55. 

Defendants cannot establish any likelihood of success on the merits because none 

of the Bauman factors supports relief. Only the third Bauman factor is relevant here: 

whether the Court’s Order was clearly erroneous as a matter of law. Clear error is a 

necessary condition for mandamus relief; its absence “is dispositive.” Hernandez, 604 F.3d 

at 1099. Yet clear error is a highly deferential standard—mandamus “will not issue merely 

because Defendants have identified legal error.” In re Van Dusen, 654 F.3d at 841. Rather, 

the Ninth Circuit must have “a definite and firm conviction” that the Order was incorrect. 

DeGeorge v. U.S. Dist. Court for Cent. Dist. of Cal., 219 F.3d 930, 936 (9th Cir. 2000).3

Defendants bore a heavy burden in moving to disqualify this Court nearly two years 

after it was assigned to this case. A federal judge has a “strong . . . duty to sit when there 

is no legitimate reason to recuse.” Clemens v. U.S. Dist. Court for Cent. Dist. of California, 

428 F.3d 1175, 1179 (9th Cir. 2005). Accordingly, “a judge is presumed to be impartial 

and the party seeking disqualification bears the substantial burden of proving otherwise.” 

In re Steward, 828 F.3d 672, 682 (8th Cir. 2016) (emphases added); see also In re 

 

3 The Petition does not raise any issue of first impression that could change the third 

Bauman showing from one of “clear error” to “ordinary error.” (See Pet. at 14.) Defendants 

identify only one issue of arguable first impression—whether the Court’s spouse has a non- economic interest cognizable under 28 U.S.C. §§ 455(b)(4) and 455(b)(5)(iii). (Mot. at 3; 

Pet. at 30.) As explained below, that issue is not dispositive because Defendants would still 

be required to establish that any such interest could be significantly affected by the outcome of this case—a burden they cannot meet. (See Part I.A.2, infra.)

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McCarthey, 368 F.3d 1266, 1269 (10th Cir. 2004) (Disqualification “places a substantial 

burden on the moving party to demonstrate that the judge is not impartial, not a burden on 

the judge to prove that he is impartial.”). For several reasons, Defendants did not meet their 

“substantial burden” in seeking this Court’s disqualification, and therefore they do not 

come close to showing entitlement to the “drastic and extraordinary” remedy of mandamus 

relief. Van Dusen, 654 F.3d at 840-41.

1. Defendants’ Motion for Recusal Was Filed for Purely Tactical 

Reasons and Could Have Been Denied on that Basis Alone.

“[A] party having information that raises a possible ground for disqualification 

cannot wait until after an unfavorable judgment before bringing the information to the 

court’s attention.” United States v. Rogers, 119 F.3d 1377, 1380 (9th Cir. 1997); see also

Preston v. United States, 923 F.2d 731, 733 (9th Cir. 1991) (motions to recuse must be 

brought with “reasonable promptness after the ground for such a motion is ascertained” 

because otherwise, “the absence of such a requirement would result in increased instances 

of wasted judicial time and resources and a heightened risk that litigants would use recusal 

motions for strategic purposes”). While they might not have an obligation to scour the 

public record or “pore through the judge’s private affairs and financial matters” for any 

potentially disqualifying information, Listecki v. Off. Comm. of Unsecured Creditors, 780 

F.3d 731, 750 (7th Cir. 2015) (Pet. at 28), Defendants cannot simply put their head in the 

sand when the information that ostensibly supports a recusal argument is a matter of 

widespread and longstanding public knowledge and includes information that they have

known for years. Rather, federal courts reject recusal motions as untimely where parties or 

their counsel turn a “blind eye” to well known facts of which they had actual or constructive 

knowledge, and that would have alerted them to the alleged basis for recusal. See, e.g., 

United States. v. Kohring, 334 F. App’x 836, 838 (9th Cir. 2009) (defendant’s recusal 

motion properly denied as untimely where, “with the exercise of slightest amount of 

diligence, he could have ascertained the significance [of the facts forming the basis of the 

motion] long before trial”) (emphasis added); In re Medtronic, Inc., Sprint Fidelis Leads 

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Prod. Liab. Litig., 623 F.3d 1200, 1209 (8th Cir. 2010) (recusal motion untimely where 

“Plaintiffs knew, or with due diligence could have known,” the facts supporting their 

motion when the case was transferred to the district court judge); Guardian Pipeline, L.L.C. 

v. 950.80 Acres of Land, 525 F.3d 554, 558 (7th Cir. 2008) (motion untimely when filed 

after adverse decision and based on publicly-available information; “a litigant who lets this 

opportunity [to investigate possible bases for recusal] pass, then looks up the 

commissioners in Martindale-Hubbell after the proceedings have concluded, has no one to 

blame but himself”); Gibo v. U.S. Bank National Association, 2013 WL 12142570, at *3 

n.2 (D. Haw. June 21, 2013) (information that formed the basis of recusal motion “should 

have been evident to Plaintiff’s counsel when this lawsuit was filed and not first 

investigated seven months later,” when district court “strongly hinted that she was going 

to rule in favor of [defendants]”); Lyman v. City of Albany, 597 F. Supp. 2d 301, 307-09 

(N.D.N.Y. 2009) (motion untimely where basis for recusal was, in part, judge’s prior

employment by defendant, and judge’s biography was publicly available); Drake v. 

Birmingham Bd. of Educ., 476 F. Supp. 2d 1341, 1347 (N.D. Ala. 2007) (motion untimely 

where counsel could have easily discovered through his own client that the judge was a 

deacon in same church as plaintiff and her husband).

As the Court correctly held, Defendants’ motion was untimely because Defendants 

filed it “nearly a year and a half after the Court inherited the case and after several adverse 

rulings,” indicating that it was “filed for suspect tactical and strategic reasons.” (Doc. 1075, 

Order at 6-7); see Melendres v. Arpaio, 2015 WL 13173306, at *13 (D. Ariz. July 10, 2015) 

(Melendres II) (“There is a presumption that a recusal petition submitted after the moving 

party suffers adverse rulings has been filed for suspect tactical and strategic reasons.”) 

(citing E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir. 1992)); cf.

Krakauer v. IndyMac Mortg. Services, 2013 WL 1751463, at *2 (D. Haw. Apr. 23, 2013) 

(“[T]he timing of the Motion to Recuse—brought over three years after Plaintiffs filed this 

action and just after the Order Confirming Sale—suggests that Plaintiffs are simply raising 

any argument, regardless of merit, in an attempt to stall this action.”).

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Particularly given longstanding press coverage of the Court’s marriage to AG 

Brnovich and Defendants’ knowledge that all or nearly all state attorneys general had been 

scrutinizing Backpage for years, as laid out with supporting references in the United States’ 

Response, the Court did not clearly err in finding Defendants’ “bare assertion” that they 

had just discovered the basis for their motion in September 2020 was “unbelievable.” (Doc. 

1075, Order at 7; see also Doc. 1067, Resp. at 3-6.) Nor did the Court clearly err in 

analyzing the reply declaration filed by six of Defendants’ attorneys, in which some of 

them admitted that they knew in April 2018 that a coalition of state attorneys general had 

written the letter about Backpage in August 2017 that formed one of the exhibits to the 

recusal motion, but asserted they did not previously “focus on” the letter or the fact that 

AG Brnovich had signed it. (Doc. 1075, Order at 7.) The record and the law amply 

supported the Court’s finding that the motion was untimely. (Doc. 1075, Order at 7; see 

also Doc. 1067, Resp. at 5 and Doc. 1072, Mot. to Strike at 5-7.) 

2. The Court Did Not Clearly Err in Rejecting Defendants’ Claims 

Under 28 U.S.C. §§ 455(b)(4) and (b)(5)(iii).

Second, the Court properly rejected Defendants’ assertion that recusal was required 

under 28 U.S.C. §§ 455(b)(4) and (5)(iii). (Doc. 1075, Order at 7-10.) These provisions 

require a judge to recuse where the judge knows that her spouse “has a financial interest in 

the subject matter in controversy or in a party to the proceeding, or any other interest that 

could be substantially affected by the outcome of the proceeding,” or where the judge’s 

spouse “[i]s known by the judge to have an interest that could be substantially affected by 

the outcome of the proceeding.” 28 U.S.C. §§ 455(b)(4) and (5)(iii). Citing cases from 

other Circuits and Melendres v. Arpaio, 2009 WL 2132693, at *9 (D. Ariz. July 15, 2009) 

(Melendres I)—a case on which Defendants also rely (see Pet. at 24)—the Court found that 

both §§ 455(b)(4) and (5)(iii) “require an interest that is financial or proprietary in nature.” 

(Doc. 1075, Order at 8.) While Defendants cited other decisions that recognized a law firm 

partner’s “reputation and goodwill interests” in attracting future business, the Court 

reasonably distinguished those cases as being moored in interests that are “commercial in 

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nature.” (Doc. 1075, Order at 9.) Because AG Brnovich has no financial or proprietary 

interest in this case, the Court did not clearly err in finding that recusal is not required under 

these statutory provisions. (Doc. 1075, Order at 9; see also Doc. 1067, Resp. at 9-11.) 

But even assuming AG Brnovich had a cognizable “interest” under 28 U.S.C. 

§§ 455(b)(4) and (b)(5)(iii), Defendants’ arguments still failed for the fundamental reason 

Defendants cannot show how that interest “could be substantially affected by the outcome” 

of this case. (Doc. 1075, Order at 9-10.) Defendants claimed in their motion that AG 

Brnovich “has staked his own ‘reputation and goodwill’ on this prosecution, the veracity 

of the government’s claims, and the truthfulness of the government’s trial witnesses.” (Doc. 

1059, Mot. at 12.) Yet, the Court found, the impact of the outcome of this case on any 

reputational or goodwill interest that AG Brnovich might have “is highly speculative”; 

“[a]s AG Brnovich is not associated with any party in this case, did not aid in the 

investigation and is not prosecuting the case[,] the outcome of the case is exceptionally 

unlikely to affect his reputation.” (Doc. 1075, Order at 10.) Under settled Ninth Circuit law 

cited by the Court, “where an interest is not direct, but is remote, contingent or speculative, 

it is not the kind of interest which reasonably brings into question a judge’s partiality.” 

Nachsin v. AOL, LLC, 663 F.3d 1034, 1042 (9th Cir. 2011). The Court’s rejection of 

Defendant’s argument is well-situated within existing case law—and there was no clear 

error of law. (See also Doc. 1067, Resp. at 12-13.)

3. Nor Did the Court Clearly Err in Rejecting Defendants’ 28 U.S.C. 

§ § 455(a) Assertions.

As the Court correctly recognized, Defendants’ 28 U.S.C. § 455(a) claim requires

determining whether “a reasonable person with knowledge of all the facts would conclude 

that the judge’s impartiality might reasonably be questioned.” (Doc. 1075, Order at 10, 

quoting Blixseth v. Yellowstone Mountain Club, LLC, 742 F.3d 1215, 1219 (9th Cir. 2014).) 

The Court correctly acknowledged that the “reasonable person is not someone who is 

hypersensitive or unduly suspicious, but rather is a well-informed, thoughtful observer.” 

United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008); Doc. 1075, Order at 11. The 

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Court similarly recognized that judges are obligated to hear all cases coming before them, 

and must not recuse themselves lightly. (Doc. 1075, Order at 11.) Accordingly, the 

“reasonable person” test “must not be so broadly construed that it becomes, in effect, 

presumptive, so that recusal is mandated upon the merest unsubstantiated suggestion of 

personal bias or prejudice.” Holland, 519 F.3d at 913.

The Court then found that § 455(a) recusal was not warranted in light of critical 

difference between this case and Melendres I. For example, unlike the judge’s sister in 

Melendres I, “AG Brnovich has not made any derogatory or insulting comments regarding 

the Defendants”; nor has he “addressed the viability of charges in this matter or the guilt 

or innocence of the Defendants.” (Doc. 1075, Order at 12.) To the extent Defendants 

suggest otherwise, they are simply mistaken: Defendants’ recusal motion identifies no 

statements by AG Brnovich or his office that identify any of the Defendants in this federal 

criminal prosecution, let alone that opine on their individual guilt or innocence.

Moreover, although AG Brnovich “publicly stands against human trafficking” and 

“has referred to Facebook, Backpage, and Craigslist as places where human trafficking 

occurs,” the Court properly found that his views on these issues would not lead a reasonable 

person to conclude the Court’s impartiality might reasonably be questioned. (Doc. 1075, 

Order at 12.) Indeed, “[n]o thoughtful, or well-informed person would simply assume that 

one spouse’s views should always be ascribed or attributed to the other in the absence of 

an express disclaimer.” (Doc. 1075, Order at 12, quoting National Abortion Fed. v. Ctr. for 

Med. Progress, 257 F. Supp. 3d 1084, 1089 (N.D. Cal. 2017).) The Court’s recognition of 

this principle was not clearly erroneous as a matter of law. See Perry v. Schwarzenegger, 

630 F.3d 909, 912 (9th Cir. 2011) (Reinhardt, J.) (a judge’s spouse’s views “cannot be 

imputed to [the judge], no matter how prominently she expresses them”); National 

Abortion Fed., 257 F. Supp. 3d at 1089-90 (denying recusal motion based on the judge’s 

spouse’s Facebook communications; “the premise of defendants’ argument is the faulty 

and anachronistic assumption that a wife’s communicative activity necessarily represents 

the views of, or should be attributed to, her husband”); Akins v. Knight, 2016 WL 127594, 

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*7 (W.D. Mo. Jan. 11, 2016) (denying recusal motion; judge’s spouse “is an independent 

person” and “his views are his own”).4

Further, AG Brnovich’s statements, and the AG Office’s publication of a handbook 

in June 2018 that identified Backpage as “an online classified advertising site used 

frequently to purchase sex,” were not novel or even particularly prejudicial. (Doc. 1059-2, 

Mot., Ex. 1 at 22.) Long before the handbook’s publication, Backpage representatives had 

testified at numerous criminal trials involving pimps who used its website. (See, e.g., Doc. 

230 ¶¶ 71, 76, 92.) Published judicial opinions referenced similar facts. E.g., United States 

v. Young, 955 F.3d 608, 614 (7th Cir. 2020); Jane Doe No. 1 v. Backpage.com, LLC, 817 

F.3d 12, 17, 29 (1st Cir. 2016); J.S. v. Village Voice Media Holdings, Inc., 359 P.3d 714, 

715-16 (Wash. 2015). In January 2017, after the U.S. Senate enforced a subpoena 

compelling production of thousands of Backpage documents, the Senate Permanent 

Subcommittee on Investigations concluded that virtually all Backpage “adult” ads were for 

prostitution.5 And in April 2018, Backpage.com, LLC and its CEO Carl Ferrer pleaded 

guilty and admitted the “great majority” of Backpage’s revenue-generating ads were “for 

prostitution services.” (18-CR-464, Doc. 7-2 at 12-13; 18-CR-465, Doc. 8-2 at 11.) The 

record before the Court set forth all of these facts. (Doc. 1067, Resp. at 3-6 and n.1.)

Finally, although AG Brnovich and the Arizona Attorney General’s Office have 

“partnered” with third-party organizations that have made statements about Defendants and 

 

4 On page 24 of their Petition, Defendants assert that Judge Reinhardt’s recusal decision in 

Perry v. Schwarzenegger, 630 F.3d 909 (9th Cir. 2011), “appears to be of no force or effect.” However, a Westlaw cite check shows that the decision has no reported “negative treatment”; rather, it has been cited favorably in 30 subsequent cases, including Barnett v. 

Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., 956 F.3d 1228, 1241 (10th Cir. 2020) (citing Perry for proposition that “[i]n present-day society we do not treat a married couple as single-minded on public issues”). See

https://1.next.westlaw.com/RelatedInformation/Ib1d9615f190111e0852cd4369a8093f1/k

cCitingReferences.html?docSource=03adc3e071db474c8ef65f49555f8558&pageNumber

=1&facetGuid=h562dbc1f9a5f4b0c9e54031a19076b9c&transitionType=ListViewType&

contextData=(sc.History*oc.UserEnteredCitation). 

5 See BACKPAGE.COM’S KNOWING FACILITATION OF ONLINE SEX TRAFFICKING, https://www.hsgac.senate.gov/imo/media/doc/Backpage%20Report%202017.01.10%20F

INAL.pdf (Jan. 2017).

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who employ or formerly employed other persons who may testify at trial, the Court 

correctly recognized that these connections “are far too attenuated for a reasonable person 

to question the Court’s impartiality.” (Doc. 1075, Order at 13.) Defendants have failed to 

meet their substantial burden of demonstrating this analysis was clearly erroneous.6

B. Defendants Cannot Establish the Remaining Bauman Factors.

Nor can Defendants meet their burden of establishing any of the other Bauman

factors. Regarding the first two factors—the availability of a direct appeal and prejudice 

not correctable on a direct appeal—the Ninth Circuit routinely considers recusal orders on 

direct appeal. See, e.g., Konarski v. City of Tucson, 716 F. App’x 609, 611 (9th Cir. 2017); 

O’Connor v. State of Nev., 27 F.3d 357, 363-64 (9th Cir. 1994); United States v. Monaco, 

852 F.2d 1143, 1147 (9th Cir. 1988); People of Territory of Guam v. Garrido, 752 F.2d 

1378, 1380 (9th Cir. 1985); United States v. Conforte, 624 F.2d 869, 878 (9th Cir. 1980). 

Except in cases that involve truly extraordinary circumstances, the Ninth Circuit has “held 

that a judge’s decision not to disqualify his or her self ‘cannot be appealed until a direct 

appeal is taken from a final decision adverse to the moving party.’” Thompson v. Commr. 

of Internal Revenue, 742 F. App’x 316, 317 (9th Cir. 2018) (quoting In re Horton, 621 

F.2d 968, 970 (9th Cir. 1980).

7

Regarding the fourth factor—“oft-repeated error”—Defendants identify no such 

 

6 The Court also correctly struck Exhibit A to Defendants’ reply, which essentially consisted of a second reply brief signed by a retired judge retained by the Defendants. (Doc. 

1075, Order at 13.) The exhibit contained inadmissible expert opinion on pure matters of 

law and was improper. (Doc. 1075, Order at 13.) Melendres II, 2015 WL 13173306, at *9 

n.13; In re Initial Pub. Offering Sec. Litig., 174 F. Supp. 2d 61, 64-66 (S.D.N.Y. 2001).

7 Defendants cite a single out-of-Circuit case for the proposition that mandamus is “liberal[ly]” allowed to review disqualification motions (Pet. at 15); yet even that 

decision—which upheld the denial of a recusal motion—recognized that “in frivolous and 

even routine cases in which a party challenges the judge’s refusal to recuse himself, 

mandamus will be denied.” Union Carbide Corp. v. U.S. Cutting Serv., Inc., 782 F.2d 710, 

712, 717 (7th Cir. 1986). 

Defendants also assert that they are prejudiced by “the government’s concerted efforts to deprive them of resources to defend the case through pre-trial seizures” (Pet. at 15). 

Despite suggesting that seizures have hindered their defense, Defendants have never filed 

a Monsanto motion or otherwise demonstrated a genuine need to use any seized funds to 

pay for counsel. United States v. Unimex, 991 F.2d 546, 551 (9th Cir.1993).

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error in the Court’s Order. (Pet. at 30.) Nor do Defendants identify any “new or important 

problems, or issues of law of first impression” sufficient to satisfy the fifth Bauman factor. 

Defendants note only one issue that arguably raises a claim of first impression in this 

Circuit—whether the “non-economic interest” that Defendants assert the Court’s spouse 

has in this case is cognizable under 28 U.S.C. §§ 455(b)(4) and (b)(5)(iii). (Pet. at 30.) Yet 

the Ninth Circuit need not resolve that discrete issue to affirm the Order, because 

Defendants must still show that any such interest “could be significantly affected by the 

outcome” of this prosecution—which they cannot do. (See Part I.A.2, supra.)

Defendants have failed to demonstrate any reasonable likelihood that they can

establish a “right to issuance of the writ [that] is clear and indisputable,” Kerr, 426 U.S. at

402, and their stay motion should be denied for this threshold reason.

II. Defendants Have Failed to Establish Irreparable Harm.

The second Nken factor requires Defendants to show that they “will be irreparably 

injured absent a stay.” Nken, 556 U.S. at 434. The Supreme Court has cautioned that

“simply showing some possibility of irreparable injury fails to satisfy” this requirement.

Id. at 434-35. And even if Defendants could show irreparable harm, that showing, standing 

alone, would be insufficient to justify a stay. Id. at 427.

For the same reasons that Defendants cannot meet the first and second Bauman

factors (see Part I.B, supra), Defendants cannot establish that they will be irreparably 

harmed. The Ninth Circuit routinely considers disqualification orders on direct appeal. See, 

e.g., Konarski, 716 F. App’x at 611; O’Connor, 27 F.3d at 363-64; Monaco, 852 F.2d at

1147; Garrido, 752 F.2d at 1380; Conforte, 624 F.2d at 878. Defendants have not 

established that they face any unique prejudice that differentiates them from other litigants 

who raise claims of judicial partiality on direct review.

Defendants point to hypothetical costs and delay associated with having the case 

proceed before their petition is resolved. (See Doc. 1092, Mot. at 4-5.) Yet “[w]e have 

repeatedly held that financial harm is insufficient to justify collateral review” of recusal

and other pretrial decisions. In re Sussex, 781 F.3d at 1075. A mandamus petitioner “must 

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demonstrate some burden ... other than the mere cost and delay that are the regrettable, yet 

normal, features of our imperfect legal system.” DeGeorge, 219 F.3d at 935. 

“[U]nnecessary cost and delay resulting from an erroneous ruling of the district court are 

not prejudice correctable through use of the writ of mandamus.” Id. at 936. 

III. The Balance of Equities Tips Sharply Against a Stay.

The third and fourth Nken factors—assessing how a stay would affect the opposing 

party and the public—merge where, as here, the government is the opposing party. LeivaPerez, 640 F.3d at 970 (citing Nken, 129 S.Ct. at 1762). As explained above, the harm 

articulated by Defendants can be remedied or substantially mitigated by direct appeal. Yet

the prejudice to the United States and the public from indefinite trial delay—and from 

forestalling the Court’s work on numerous pending motions—is considerable. 

First, criminal cases generally are not subject to appellate review until after 

conviction and sentence. Flanagan, 465 U.S.at 263. While courts have carved out a small 

exception under the “collateral order doctrine,” that doctrine is interpreted with “utmost 

strictness” in criminal cases. Id. at 265. As the Supreme Court has explained,

The final judgment rule serves several important interests. It helps preserve 

the respect due trial judges by minimizing appellate-court interference with 

the numerous decisions they must make in the pre-judgment stages of litigation. It reduces the ability of litigants to harass opponents and to clog 

the courts through a succession of costly and time-consuming appeals. It is crucial to the efficient administration of justice. For these reasons, “[t]his 

Court has long held that the policy of Congress embodied in [section 1291] 

is inimical to piecemeal appellate review of trial court decisions which do 

not terminate the litigation.”

Id. at 263-64 (citations omitted). See also United States v. MacDonald, 435 U.S. 850, 854 

(1978) (delay “is fatal to the vindication of the criminal law”).

Second, delay will prejudice the prosecution’s ability to prove its case. See 

MacDonald, 435 U.S. at 862. “As time passes, the prosecution’s ability to meet its burden 

of proof may greatly diminish: evidence and witnesses may disappear, and testimony 

becomes more easily impeachable as the events recounted become more remote.” 

Flanagan, 465 U.S. at 264. This prosecution involves events occurring throughout the last 

decade. (See generally Doc. 230.) As trial recedes into the future, delay undoubtedly 

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redounds to the benefit of the defense—which does not have the burden of proof beyond a 

reasonable doubt. These harms will only grow with the magnitude of delay occasioned by 

Defendants’ legal maneuvering. 

Third, both the victims and the public have a right to “proceedings free from 

unreasonable delay” under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(7). (Doc.

893 at 5.) The victims have waited two and a half years for their day in court, and their

desire for certainty and closure deserves strong consideration in weighing the equities of a 

potentially lengthy stay. (See Doc. 1062 at 2.) Fourth, society has an “‘interest in providing 

a speedy trial which exists separate from, and at times in opposition to, the interests of the 

accused.’” MacDonald, 435 U.S. at 862 (citation omitted). Indeed,

[T]he community has a strong collective psychological and moral interest in swiftly bringing the person responsible to justice. Prompt acquittal of a person wrongly accused, which forces prosecutorial investigation to 

continue, is as important as prompt conviction and sentence of a person 

rightly accused. Crime inflicts a wound on the community, and that wound may not begin to heal until criminal proceedings have come to an end.

Flanagan, 465 U.S. at 265.

The interests of the United States, the victims and the public all weigh heavily 

against a stay at this late stage. The balance of equities tips sharply against Defendants.

Conclusion

For the foregoing reasons, Defendants’ Motion for Stay of Case Pending Resolution 

of the Mandamus Petition (Doc. 1092) should be denied.

Respectfully submitted this 2nd day of December, 2020.

MICHAEL BAILEY

United States Attorney

District of Arizona

s/ Peter S. Kozinets

KEVIN M. RAPP

MARGARET PERLMETER

PETER S. KOZINETS

ANDREW C. STONE

Assistant U.S. Attorneys

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DAN G. BOYLE

Special Assistant U.S. Attorney

BRIAN C. RABBITT 

Assistant Attorney General 

U.S. Department of Justice, Criminal Division

REGINALD E. JONES

Senior Trial Attorney

U.S. Department of Justice, Criminal Division

Child Exploitation and Obscenity Section

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CERTIFICATE OF SERVICE

I hereby certify that on December 2, 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 who have entered their appearance 

as counsel of record.

s/ Joy Faraj Joy Faraj

U.S. Attorney’s Office

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