- 1 -

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

GLENN B. McCORMICK

Acting 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

KENNETH POLITE

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

RESPONSE TO DEFENDANT JOYE 

VAUGHT’S OBJECTION TO THE

COURT’S PROPOSED USE OF

SIMULTANEOUS PEREMPTORY

JUROR STRIKES

Case 2:18-cr-00422-DJH Document 1246 Filed 08/30/21 Page 1 of 5
- 2 -

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

On August 26, 2021, Defendant Joye Vaught, joined by all other Defendants, moved 

this court to reconsider the Court’s August 20, 2021 ruling that, pursuant to Federal Rule 

of Criminal Procedure 24 and Local Rule of Criminal Procedure 24.1, the Court would 

implement the simultaneous, or “blind” strikes, method for the use of peremptory 

challenges by the parties. (Doc. 1243.) Defendant’s motion should be denied, as the Court 

properly applied Local Rule 24.1, and Defendant has presented no reason to deviate from 

the Local Rules. Indeed, the COVID-19 pandemic strongly supports conducting jury 

selection as quickly and efficiently as possible to limit the time potential jurors spend in 

the selection process, and the blind strike method presents the most efficient method of 

conducting jury selection here. 

LEGAL BACKGROUND

Federal Rule of Criminal Procedure 24(b)(2) states that in a non-capital felony 

prosecution, “[t]he government has 6 peremptory challenges and the defendant or 

defendants jointly have 10 peremptory challenges when the defendant is charged with a 

crime punishable by imprisonment of more than one year.” Local Rule of Criminal 

Procedure 24.1 clarifies how Rule 24(b) is executed in this district, stating that “[i]n 

criminal cases, peremptory challenges by the government and the defense shall be 

exercised simultaneously unless otherwise directed by the Court.” The use of simultaneous 

peremptory challenges – often referred to as “blind strikes” – has consistently been upheld 

by the Ninth Circuit. See United States v. Warren, 25 F.3d 890, 894 (9th Cir. 1994) (“Even 

when the government and a defendant challenge the same juror, the blind strike method 

does not impair a defendant’s full use of his or her peremptory challenges.”). Accordingly, 

a Defendant seeking to deviate from the Local Rules typically must present some 

justification for doing so. 

ARGUMENT

While Defendant’s motion goes into detail as to the burden on the parties and 

counsel in this trial, it notably says nothing about the burden on venirepersons appearing 

for possible jury service during a pandemic. While Defendant notes the prevalence and 

Case 2:18-cr-00422-DJH Document 1246 Filed 08/30/21 Page 2 of 5
- 3 -

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

seriousness of the Delta Covid-19 variant, Defendant fails to recognize the importance of 

conducting prompt jury selection to minimize the exposure for potential jurors not selected 

to serve. Even if the blind strikes method were not prescribed by Local Rule 24.1, there is 

no question that it presents the most expeditious method of selecting a jury and releasing 

all other non-selected jurors promptly. In contrast, permitting back-and-forth strikes is 

certain to lengthen the jury selection process, which make little sense during a pandemic, 

and any such delay is particularly unacceptable for members of the venire who appear but 

are ultimately not selected for jury service. Selecting a jury and releasing non-selected 

venirepersons as promptly as possible should be of paramount concern for the parties and 

the Court, and the government submits that the simultaneous strikes method, as set forth 

in Local Rule 24.1, is the safest means of accomplishing this goal here. 

Not only is the blind strike method the safest and most efficient use of the 

venirepersons’ time, it does not seriously prejudice Defendants. Pursuant to Rule 24, 

Defendants were collectively entitled to 10 peremptory challenges, and the Ninth Circuit 

has held that a multi-defendant case such as this does not require additional peremptory 

challenges. See United States v. McClendon, 782 F.2d 785, 787 (9th Cir. 1986) (noting 

that there is no “right” to “additional peremptory challenges in multiple defendant cases.”). 

Nonetheless, the Court has granted Defendants three peremptory challenges each, for a 

total of 18, nearly doubling the number of strikes available to Defendants collectively. In 

addition, at the August 20, 2021 hearing, the Court explicitly stated that Defendants could 

coordinate their challenges so as to avoid multiple Defendants striking the same potential 

juror. In sum, assuming Defendants coordinate as the Court has permitted them to, 

Defendants are entitled to challenge 18 potential jurors. 

If Defendants happen to use a strike simultaneously with the government on a 

particular prospective juror, the defense has lost nothing: the juror Defendants object to 

will still be removed. What Defendants have ‘lost’ is effectively a free strike, where the 

government’s strike removes a juror the defense found objectionable, but without costing 

the defense a peremptory challenge. While it is easy to see why Defendants may want such 

Case 2:18-cr-00422-DJH Document 1246 Filed 08/30/21 Page 3 of 5
- 4 -

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

free strikes, Defendants have no such right. The Court has already gone well beyond the 

standard of challenges required, giving Defendants nearly double the number required by 

the Federal Rules. Permitting extended back-and-forth strikes, particularly when

Defendants will likely need to coordinate amongst themselves, risks extending jury 

selection into a second (or even third) day, increasing the risk of COVID-19 exposure for 

all venirepersons, whether or not selected to serve.1

In conclusion, the Court should not reconsider its order, and should follow Local 

Rule 24.1, and direct the parties to use peremptory challenged simultaneously. 

Respectfully submitted this 30th day of August, 2021.

GLENN B. McCORMICK

Acting United States Attorney District of Arizona

s/ Kevin M. Rapp KEVIN M. RAPP

MARGARET PERLMETER

PETER S. KOZINETS

ANDREW C. STONE

Assistant U.S. Attorneys

DAN G. BOYLE

Special Assistant U.S. Attorney

KENNETH POLITE

Assistant Attorney General 

Criminal Division, U.S. Department of Justice

REGINALD E. JONES

Senior Trial Attorney

U.S. Department of Justice, Criminal Division

Child Exploitation and Obscenity Section

1 Defendant’s only substantive justification for alternating strikes is an argument that the blind strikes method could make challenges pursuant to Batson v. Kentucky, 476 

U.S. 79 (1986), more difficult. This argument makes little sense, however, as the Defendants are explicitly permitted to coordinate amongst themselves and would know 

which potential jurors they challenged, and thus, which they did not. Accordingly, the Defendants would certainly see and be able to challenge any potentially-problematic 

pattern of strikes (unless they themselves were engaging in problematic strikes at the same 

time). Ultimately, Defendant’s hypothetical Batson challenge problem offers no reason to deviate from the Local Rules, particularly when blind strikes present the most efficient 

method of releasing jurors not needed during a pandemic. 

Case 2:18-cr-00422-DJH Document 1246 Filed 08/30/21 Page 4 of 5
- 5 -

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

CERTIFICATE OF SERVICE

I hereby certify that on August 30, 2021, 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/Marjorie Dieckman

U.S. Attorney’s Office

Case 2:18-cr-00422-DJH Document 1246 Filed 08/30/21 Page 5 of 5