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3748817.2

DEFENDANTS’ JOINT REPLY IN SUPPORT OF RENEWED MOTION TO DISMISS

Thomas H. Bienert, Jr. (admitted pro hac vice) tbienert@bklwlaw.com

Whitney Z. Bernstein (admitted pro hac vice) wbernstein@bklwlaw.com

BIENERT KATZMAN LITTRELL WILLIAMS LLP

903 Calle Amanecer, Suite 350

San Clemente, CA 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

Attorneys for Defendant James Larkin

Gary S. Lincenberg (admitted pro hac vice)

 glincenberg@birdmarella.com

Ariel A. Neuman (admitted pro hac vice) aneuman@birdmarella.com

Gopi K. Panchapakesan (admitted pro hac vice) gpanchapakesan@birdmarella.com

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW, P.C.

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: (310) 201-2100

Facsimile: (310) 201-2110

Attorneys for Defendant John Brunst

[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.

CASE NO. 2:18-cr-00422-PHX-SMB

DEFENDANTS’ JOINT REPLY IN 

SUPPORT OF RENEWED MOTION 

TO DISMISS FOR OUTRAGEOUS 

GOVERNMENT CONDUCT

[Request for Evidentiary Hearing]

[Oral Argument Requested]

Assigned to Hon. Susan M. Brnovich, Courtroom 506

Case 2:18-cr-00422-DJH Document 1321 Filed 09/20/21 Page 1 of 5
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3748817.2 2

DEFENDANTS’ JOINT REPLY IN SUPPORT OF RENEWED MOTION TO DISMISS

Paul J. Cambria, Jr. (admitted pro hac vice) pcambria@lglaw.com

Erin McCampbell (admitted pro hac vice) emccampbell@lglaw.com

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

Attorneys for Defendant Michael Lacey

Bruce Feder (AZ Bar No. 004832)

 bf@federlawpa.com

FEDER LAW OFFICE, P.A.

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

Telephone: (602) 257-0135 

Attorney for Defendant Scott Spear

David Eisenberg (AZ Bar No. 017218)

 david@deisenbergplc.com

DAVID EISENBERG PLC

3550 N. Central Ave., Suite 1155

Phoenix, Arizona 85012

Telephone: (602) 237-5076

Facsimile: (602) 314-6273

Attorney for Defendant Andrew Padilla

Joy Malby Bertrand (AZ Bar No. 024181)

 joy.bertrand@gmail.com

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

Telephone: (602)374-5321

Facsimile: (480)361-4694

Attorney for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 1321 Filed 09/20/21 Page 2 of 5
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3748817.2 3

DEFENDANTS’ JOINT REPLY IN SUPPORT OF RENEWED MOTION TO DISMISS

In its motion to preclude an advice of counsel defense, the Government wrote that 

the legal memoranda produced by Defendants—the same memoranda discussed in Carl 

Ferrer’s interviews with the Government—appear “on their face” to be protected by the 

attorney-client privilege. Dkt. 1234 at 2. After Defendants pointed this out and renewed 

their motion to dismiss for invasion of the privilege, the Government ran for cover in its 

Reply when it argued that: “Simply because a document – on its face – appears to be 

privileged doesn’t make it so.” Dkt. at 1258. For at the end of the day, the Government is 

conceding that it knowingly interrogated Ferrer about legal memoranda which it knew, “on 

their face,” appeared to be privileged. These naked privilege invasions, now implicitly 

conceded, are emblematic of the Government’s “win-at-any-cost” strategy that has 

permeated this prosecution. The case should be dismissed. In the alternative, in 

connection with Defendants’ renewed motion, the Court should now order that the 

Government produce Ferrer to testify at an evidentiary hearing so that the defense can 

examine Ferrer about the nature and extent of his disclosures to the Government. See 

United States v. Schwimmer, 892 F.2d 237, 245 (2d Cir. 1989) (despite district court 

finding that testimonial references to privileged material were “negligible” and accounting 

documents at issue largely were not privileged, appellate court reversed and remanded, 

holding that “the district court should have conducted an evidentiary hearing to determine 

whether the government’s case was in any respect derived from a violation of the 

attorney-client privilege in regard to confidential communications passing from” defendant 

to accountant).

In its order denying Defendants’ original motion to dismiss (Dkt. 980), the Court 

determined (in Defendants’ view, erroneously) that Defendants had not done enough to 

establish the existence of a privilege regarding Ferrer’s statements to the Government. 

One of Defendants’ arguments was that Ferrer’s statements about legal advice were on 

their face privileged. Dkt. 1168. In Defendants’ Reply in Support of Motion to Dismiss 

Based on Outrageous Government Misconduct Invading Attorney-Client Privilege, 

Defendants argued in part that “the nineteen examples of privilege invasions set forth in 

Case 2:18-cr-00422-DJH Document 1321 Filed 09/20/21 Page 3 of 5
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3748817.2 4

DEFENDANTS’ JOINT REPLY IN SUPPORT OF RENEWED MOTION TO DISMISS

Defendants’ motion answer . . . on their face [the key questions establishing privilege].”

Dkt. 1022 at 3. The Court rejected this argument as insufficient to carry Defendants’

burden of establishing privilege. Dkt. at 1168, passim. The logical extension of the 

Court’s analysis is that the only person who could provide the “further detail” (see, e.g., 

Dkt. 1168 at 10) to the Ruehle questions is Ferrer himself. Defendants argued, and the 

Government no longer really disagrees, that the documents on their face provide enough 

detail; but if the Government now seeks to backtrack from its concession, then the Court 

should conduct an evidentiary hearing with testimony from the person most 

knowledgeable about the disclosures he made—Ferrer.1

If the Court feels that that the Ferrer interviews disclosing advice from counsel are 

insufficient to make the findings as to privilege then, at a minimum, the Court should hold 

an evidentiary hearing with testimony from Ferrer to make a fully-informed determination.

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

Procedures Manual (October 2020) § II (C) (3), Gary S. Lincenberg hereby attests that all 

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

content and have authorized its filing.

DATED: September 20, 2021 Respectfully submitted,

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

Bird, Marella, Boxer, Wolpert, Nessim,

Drooks, Lincenberg & Rhow, P.C.

By: /s/ Gary S. Lincenberg

Gary S. Lincenberg

Attorneys for Defendant John Brunst

 1 Indeed, if it is now the Government’s concession that communications with counsel 

regarding the legal protections provided by the First Amendment and the Communications 

Decency Act appear on their face to be privileged, then why did the Government interview 

Ferrer about these same subjects without limitation and without any concern for breaching 

the privilege? 

Case 2:18-cr-00422-DJH Document 1321 Filed 09/20/21 Page 4 of 5
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3748817.2 5

DEFENDANTS’ JOINT REPLY IN SUPPORT OF RENEWED MOTION TO DISMISS

DATED: September 20, 2021 Thomas H. Bienert Jr.

Whitney Z. Bernstein

Bienert Katzman Littrell Williams LLP

By: /s/ Thomas H. Bienert, Jr.

Thomas H. Bienert Jr.

Attorneys for Defendant James Larkin

DATED: September 20, 2021 Paul J. Cambria

Erin McCampbell

Lipsitz Green Scime Cambria LLP

By: /s/ Paul J. Cambria

Paul J. Cambria

Attorneys for Defendant Michael Lacey

DATED: September 20, 2021 Feder Law Office, P.A.

By: /s/ Bruce S. Feder

Bruce S. Feder

Attorney for Defendant Scott Spear

DATED: September 20, 2021 The Law Office of David Eisenberg, PLC

By: /s/ David Eisenberg

David Eisenberg

Attorney for Defendant Andrew Padilla

DATED: September 20, 2021 Joy Bertrand Esq. LLC

By: /s/ Joy Malby Bertrand

Joy Malby Bertrand 

Attorney for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 1321 Filed 09/20/21 Page 5 of 5