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GARY M. RESTAINO 

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 

NICOLE M. ARGENTIERI 

Acting Assistant Attorney General 

Criminal Division, U.S. Department of Justice 

AUSTIN M. BERRY (Texas Bar No. 24062615, austin.berry2@usdoj.gov) U.S. Department of Justice 

Child Exploitation and Obscenity Section 1301 New York Avenue, NW, 11th Floor 

Washington, D.C. 20005 

Telephone (202) 412-4136 

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. 

CR-18-422-PHX-DJH 

UNITED STATES’ RESPONSE TO 

DEFENDANTS’ MOTION TO BAR 

THE GOVERNMENT FROM 

ASSERTING PRIVILEGE ON 

BEHALF OF ITS WITNESSES 

(Doc. 1822) 

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1. Defendants’ Standing Argument Fails Because Mr. Ferrer Has Both Asserted 

the Privilege and Authorized the Government to Assert It for Him. 

After Defendants filed their motion to bar the United States from asserting privilege 

for its witnesses (Doc. 1822), Carl Ferrer filed a motion for protective order in which he 

asserted the attorney-client privilege on his own behalf and authorized the United States to 

assert the privilege for him. (Doc. 1829-1 at 1 and n.2.) Mr. Ferrer expressly stated that he 

“file[d] [his] motion to assert the attorney-client privilege on his own behalf,” and made 

clear that he “hereby objects to any question or exhibit that intrudes upon privileged 

communications of any kind.” (Doc. 1829-1 at 1.) Moreover, “[t]o the extent necessary,” 

Mr. Ferrer also expressly “authorize[d] the Government to assert the attorney-client 

privilege on his behalf.” (Doc. 1829-1 at 1 n.2.) 

Mr. Ferrer’s filing has mooted Defendants’ central claim—that the United States 

lacks standing to assert his attorney-client privilege. (See Doc. 1822 at 3 (“The Government 

lacks standing to assert privilege for its cooperating witnesses.”).) As Defendants’ lead 

case indicates, the United States has standing to assert a witness’s attorney-client privilege 

where—as here—the witness has authorized the Government to assert the privilege. (See 

Doc. 1822 at 3); United States v. Martoma, 962 F. Supp. 2d 602, 604 (S.D.N.Y. 2013) (the 

privilege may be asserted by “one authorized to do so”); id. at 605 (collecting cases). Mr. 

Ferrer has done just that. Other witnesses could provide similar authorization. 

Defendants’ remaining cases are not to the contrary. (See Doc. 1822 at 3-4). For 

example, in United States v. Smith, 454 F.3d 707, 713 (7th Cir. 2006), the cooperating 

witness “did not assert the privilege himself” and “appeared ready to answer the defense 

questions without limitation” “indicat[ing] a willingness to waive the privilege.” Smith, 

454 F.3d at 713. The trial testimony contains no similar evidence of waiver here; and if 

there were any doubt, Mr. Ferrer has made his position clear in Doc. 1829-1. 

In United States v. Rainone, 32 F.3d 1203, 1206-07 (7th Cir. 1994), the government 

and the witness objected based on the witness’s attorney-client privilege, and the court 

affirmed the district court’s ruling curtailing cross-examination into the witness’s 

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privileged communications. In United States v. Fox, 396 F.3d 1018, 1023 (8th Cir. 2005), 

overruled on other grounds, United States v. Pirani, 406 F.3d 543, 550 (8th Cir.2005) (en 

banc), the district court sua sponte raised the witness’s privilege—and the appellate court 

affirmed. Particularly in view of Mr. Ferrer’s filing, these and Defendants’ other out-ofCircuit cases do not support the relief they seek. 

2. Defendants’ Sixth Amendment Cases Support Curtailing Cross-Examination on Attorney-Client Privileged Communications. 

 Defendants have cited no case in which a court has overridden a witness’s attorneyclient privilege in favor of a defendant’s Sixth Amendment right of confrontation. 

Defendants’ lead case on this topic—United States v. Rainone, 32 F.3d 1203, 1207 (7th 

Cir. 1994)—reached precisely the opposite conclusion. (Cf. Doc. 1822 at 4.) In an analysis 

that refutes Defendants’ assertions here, the Seventh Circuit held that the privilege may 

properly be invoked to curtail cross-examination of a witness: 

The right of cross-examination, whether as a matter of constitutional law or 

the law of evidence, is not absolute. Olden v. Kentucky, 488 U.S. 227, 231-

32 (1988); Chambers v. Mississippi, 410 U.S. 284, 295 (1973); United States 

ex rel. Blackwell v. Franzen, [688 F.2d 496, 500-01 (7th Cir.1982)]. It is limited, at the discretion of the trial judge, in time and scope, and in the nature and amount of evidence that may be used to nail the witness. A trial judge does not violate the Constitution when he limits the scope of cross- examination for a good reason, and here as in the usual case desire to protect the attorney-client privilege was a good reason. 

Rainone, 32 F.3d at 1207. The court explained that this reasoning fully applies to 

sophisticated conspiracy prosecutions—like the present case: 

If a defendant knows that his communications with his lawyers can be subpoenaed by his codefendants should he have a falling out with them, and then waved in front of a jury, and then used, having thus lost their privileged status, to convict him of additional crimes, he will be inhibited in 

communicating with his lawyer, and it will be more difficult for him to 

prepare an effective defense; the practical value of his Sixth Amendment 

right to the effective assistance of counsel will therefore be less. At the same 

time, the government’s ability to pry one defendant loose from the others and 

induce him to turn state’s evidence will be impaired as well, to the detriment 

of the successful prosecution of complex and sophisticated conspiracies, as in the present case. 

Id. at 1206. 

 

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 Defendants’ other cases similarly do not support their argument. (See Doc. 1822 at 

4-5.) See, e.g., United States ex rel. Blackwell v. Franzen, 688 F.2d 496, 501-02 (7th Cir. 

1982) (trial court did not contravene the Sixth Amendment by prohibiting crossexamination of prosecution witness about a privileged conversation in which he allegedly 

recanted a confession); Jenkins v. Wainwright, 763 F.2d 1390, 1392-93 (11th Cir. 1985) 

(no Sixth Amendment violation where defense counsel was permitted to extensively crossexamine two cooperating witnesses on their motives to testify for the government, but not 

allowed to probe legal advice they received). And neither Olden v. Kentucky, 488 U.S. 227, 

231 (1988), nor Davis v. Alaska, 415 U.S. 308, 316-17 (1974), involved attorney-client 

privilege. 

Conclusion 

For these reasons and those set forth in Doc. 1829-1, Defendants’ motion (Doc. 

1822) should be denied. 

Respectfully submitted this 6th day of October, 2023.

 GARY M. RESTAINO 

 United States Attorney 

 District of Arizona 

 

 NICOLE M. ARGENTIERI 

Acting Assistant Attorney General Criminal Division, U.S. Department of Justice 

 s/Peter S. Kozinets 

 KEVIN M. RAPP 

 MARGARET PERLMETER 

 PETER KOZINETS 

 ANDREW STONE 

 DANIEL BOYLE 

 Assistant U.S. Attorneys 

 AUSTIN M. BERRY 

 Trial Attorney 

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CERTIFICATE OF SERVICE 

 I hereby certify that on October 6, 2023, 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/ Brian Wolfe 

Brian Wolfe 

Legal Assistant 

Case 2:18-cr-00422-DJH Document 1842 Filed 10/06/23 Page 5 of 5