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SUPPLEMENTAL CITATION OF AUTHORITY IN SUPPORT OF

MOTION TO DISMISS WITH PREJUDICE

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 

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 LITTRELL WILLIAMS LLP 

903 Calle Amanecer, Suite 350 

San Clemente, California 92673 

Telephone: (949) 369-3700 

Facsimile: (949) 369-3701 

tbienert@bklwlaw.com 

wbernstein@bklwlaw.com 

Attorneys for James Larkin 

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’ SUPPLEMENTAL 

CITATION OF AUTHORITY IN 

SUPPORT OF MOTION TO DISMISS 

WITH PREJUDICE 

Case 2:18-cr-00422-DJH Document 1437 Filed 12/10/21 Page 1 of 6
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SUPPLEMENTAL CITATION OF AUTHORITY IN SUPPORT OF

MOTION TO DISMISS WITH PREJUDICE

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 

Case 2:18-cr-00422-DJH Document 1437 Filed 12/10/21 Page 2 of 6
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SUPPLEMENTAL CITATION OF AUTHORITY IN SUPPORT OF

MOTION TO DISMISS WITH PREJUDICE

 Defendants Michael Lacey, James Larkin, Scott Spear, and Andrew Padilla, by and through 

their counsel, submit the instant supplement to Defendants’ Motion to Dismiss With Prejudice 

(“Motion”) (Doc. 1355) to provide this Court with a Decision and Order issued on December 9, 

2021 by the Honorable Lawrence J. Vilardo, U.S.D.J., W.D.N.Y. granting a mistrial with prejudice 

under Oregon v. Kennedy, 456 U.S. 667, 676 (1982). (“Decision”). (See Dec. & Or., United States v. 

Padua, W.D.N.Y. Docket No. 20-CR-191-LJV-MJR-1, Doc. No. 187, attached hereto as Ex. A.) 

The Decision was issued after briefing and argument concluded in this case, but is pertinent to this 

Court’s resolution of the Motion for several reasons. 

First, Judge Vilardo’s Decision demonstrates that courts can and should dismiss with 

prejudice under Oregon v. Kennedy when – like here – the objective facts and circumstances 

demonstrate that the prosecutor intended to goad a mistrial. Kennedy is not, as the government 

suggests, simply an academic exercise to be discussed but never invoked. 

Second, when the objective facts and circumstances demonstrate that the prosecutor 

intended to goad a mistrial, a court can grant a mistrial with prejudice without need for an 

evidentiary hearing. 

Third, there are strong factual parallels between the facts here and in Padua, but here the 

prosecution team also repeatedly violated the Court’s orders, throughout the trial, providing even 

stronger objective evidence of the prosecution’s intent to goad a mistrial. The government’s trial 

misconduct in Padua was limited to its rebuttal summation, during which government counsel 

misstated evidence and asserted that the defendant was guilty. (See id. at 4.) Defense counsel 

objected to the comment about the defendant’s guilt, which the court sustained. (Id.) “Then, 

immediately after defense counsel’s objection was sustained and the offending statement stricken, 

the prosecutor said, ‘I know he’s guilty. I know beyond a reasonable doubt he’s guilty.’” (Id.) 

When questioned, the government showed no remorse for its misconduct. (See id. at 4-5.) 

In finding that the prosecutor had the intent to goad a mistrial, Judge Vilardo concluded 

that “[w]ithout a doubt, a seasoned prosecutor like the Assistant United States Attorney here knew 

very well that remarks like those would provoke a motion for a mistrial.” (Id. at 10.) The court 

noted that “[t]he defendant’s motion for a mistrial after the rebuttal summation was not his first.” 

Case 2:18-cr-00422-DJH Document 1437 Filed 12/10/21 Page 3 of 6
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SUPPLEMENTAL CITATION OF AUTHORITY IN SUPPORT OF

MOTION TO DISMISS WITH PREJUDICE

(Id. at 8 (discussing defense counsel’s prior motions for mistrial).) Critically, “defense counsel was 

not shy about asking for a mistrial, and the prosecutor knew that.” (Id. at 8.) Indeed, Judge Vilardo 

found “[t]here can be little doubt” that the prosecutor knew “his rebuttal remarks would trigger 

another mistrial motion.” (Id.) Judge Vilardo found that single violation of a trial ruling 

demonstrated an intent to goad mistrial, because the defense counsel’s prior mistrial motions put 

the government on notice that defense counsel would not ignore misconduct and there was no 

way to interpret the government’s “brazen” misconduct other than as reflecting the intent to goad 

defense counsel into moving for mistrial. (Id. at 8-13.) 

Here, the government repeatedly violated court orders and rulings during a trial in which 

defense counsel moved for mistrial at least three times, and lodged no fewer than 100 objections. 

Like in Padua, “the prosecutor had to know that defense counsel would move for a mistrial as a 

result of” its violations of court orders and rulings on objections, and “that constitutes the sort of 

intentional misconduct that warrants a mistrial with prejudice.” (Id. at 11.). Defendants respectfully 

request that this Court grant the Motion because, like in Padua, “the prosecutor[s] did not merely 

cross the line, [they] erased it. If ever prosecutorial misconduct warrants a mistrial with prejudice, 

this is the case.” (Ex. A at 12.) “[S]easoned prosecutor[s] deliberately” engaged in misconduct 

that they had to know “would result in a defense motion for mistrial. That is nothing less than 

intentional” goading of “the defense into making that motion.” (Id.) 

RESPECTFULLY SUBMITTED this 10th day of December, 2021, 

LIPSITZ GREEN SCIME CAMBRIA LLP 

s/ Paul J. Cambria, Jr. 

Paul J. Cambria, Jr. 

Erin McCampbell Paris 

Attorneys for Michael Lacey 

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

II(C)(3), Erin McCampbell Paris 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.

Case 2:18-cr-00422-DJH Document 1437 Filed 12/10/21 Page 4 of 6
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SUPPLEMENTAL CITATION OF AUTHORITY IN SUPPORT OF

MOTION TO DISMISS WITH PREJUDICE

BIENERT KATZMAN LITTRELL 

WILLIAMS LLP 

s/ Whitney Z. Bernstein 

Thomas H. Bienert, Jr. 

Whitney Z. Bernstein 

Attorneys for James Larkin 

FEDER LAW OFFICE PA 

s/ Bruce Feder 

Bruce Feder 

Attorneys for Scott Spear 

DAVID EISENBERG PLC 

s/ David Eisenberg 

David Eisenberg 

Attorneys for Andrew Padilla 

Case 2:18-cr-00422-DJH Document 1437 Filed 12/10/21 Page 5 of 6
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3754503.1 CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE 

I hereby certify that on December 10, 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/ Kristina Drewery 

Kristina Drewery 

Case 2:18-cr-00422-DJH Document 1437 Filed 12/10/21 Page 6 of 6