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3899180.1

DEFENDANTS’ OBJECTIONS TO GOVERNMENT-PROPOSED FORFEITURE VERDICT FORM

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

Paul J. Cambria, Jr. (admitted pro hac vice)

 pcambria@lglaw.com

Erin McCampbell Paris (admitted pro hac vice)

 eparis@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

[Additional counsel listed on next page]

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-00422-004-PHX-DJH

DEFENDANTS’ OBJECTIONS TO 

GOVERNMENT-PROPOSED 

FORFEITURE VERDICT FORM

Case 2:18-cr-00422-DJH Document 1939 Filed 11/05/23 Page 1 of 4
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3899180.1 2

DEFENDANTS’ OBJECTIONS TO GOVERNMENT-PROPOSED FORFEITURE VERDICT FORM

Eric W. Kessler, 009158

 eric.kesslerlaw@gmail.com

Kessler Law Group

6720 N. Scottsdale Rd., Suite 210

Scottsdale, AZ 85253

Telephone: (480) 644-0093

Facsimile: (480) 644-0095

Bruce S. Feder, 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

Defendants object to the Government’s Proposed Verdict Form on the basis that, to 

the extent the jury finds a connection between property (real or financial) and a given 

Count on which there is a conviction (if any), the jury should also determine the amount of 

that property to be forfeited. Defendants have revised the Verdict Form accordingly (see 

Exhibit A attached).

First, under 18 U.S.C. § 981(a)(1)(C) (cited in Forfeiture Allegation One), “[a]ny 

property, real or personal, which constitutes or is derived from proceeds traceable to a 

violation of” the Travel Act or any conspiracy to violate the Travel Act is subject to 

forfeiture. Therefore, for example, as to a bank account, the jury could find that some, but 

not all, of the funds contained in the account are “traceable” to a charged Travel Act 

offense. Indeed, this Court has limited the Travel Act conspiracy charge (Count 1) to the 

fifty charged advertisements. See Dkt. 946 at 13; Final Jury Instructions at 24:5-10 (“First, 

beginning in or around 2004, and ending on or about April 2018, there was an agreement 

between two or more persons to commit at least one Travel Act offense as charged in 

Counts 2-51 . . . .”).

Second, under 18 U.S.C. § 982(a)(l) (cited in Forfeiture Allegation Two), property 

“involved in” a money laundering offense (or “traceable” to such property) is subject to 

forfeiture. Again, as to a given bank account, the jurors may find that the account itself 

Case 2:18-cr-00422-DJH Document 1939 Filed 11/05/23 Page 2 of 4
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3899180.1 3

DEFENDANTS’ OBJECTIONS TO GOVERNMENT-PROPOSED FORFEITURE VERDICT FORM

was not “involved in” a money laundering offense. For example, in United States v.

Huber, 404 F.3d 1047, 1058 (8th Cir. 2005), cited by the Government in its proposed jury

instructions, the court found that a commingled account that then made payments in 

furtherance of a money laundering scheme rendered the entire account forfeitable under an 

“involved in” theory of forfeiture. Here, however, for example, as to Brunst’s Alliance 

Bernstein and BBVA Compass accounts (personal investment and bank accounts), none of 

the indictment’s money laundering counts concern payments made out of these accounts. 

In other words, these accounts were not “involved in” any alleged money laundering 

conspiracy. Therefore, a jury could find that some, but not all, of the funds in these 

accounts are “traceable” to property involved in a money laundering offense.

Third, courts have held that the question of the amount of a given asset to be 

forfeited is subject to a jury determination (where a jury has been elected, as is the case 

here). See, e.g., U.S. v. Esformes, Case No. 1:16-cr-20549-RNS, Dkt. 1263 (Verdict 

Form); United States v. Armstrong, No. CRIM 05-130, 2007 WL 809508, at *4 (E.D. La. 

Mar. 14, 2007) (“A determination of whether all, some or none of the money sought to be 

forfeited is linked to the offense for which the defendant was convicted necessarily entails 

establishing a nexus between the property and the offense. Thus, Rule 32.2(b)(4) is 

applicable to the third sentence in Rule 32.2(b)(1) and a jury may determine the amount 

of money subject to forfeiture, if requested by a party in the case.”) (emphasis added); 

United States v. Tyson Foods, Inc., No. 4:01-CR-061, 2013 WL 8118660, at *6 (E.D. 

Tenn. Feb. 4, 2013) (“When Rule 32.2(b)(1) and (4) are read together, the Court concludes 

that the jury must determine two intertwined and inseparable issues regarding forfeiture: 

(1) whether the government has proved the requisite nexus between the proceeds (i.e., cost 

savings) and the offense charged in Count One; and (2) the property, i.e., amount of 

proceeds subject to forfeiture. Assuming arguendo that the jury makes a finding in favor 

of the government on the nexus issue and connects the offense (Count One) to specific 

proceeds (Tyson’s cost savings), then the jury necessarily would have to determine the 

amount of proceeds subject to forfeiture. The amount of the proceeds subject to forfeiture 

Case 2:18-cr-00422-DJH Document 1939 Filed 11/05/23 Page 3 of 4
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3899180.1 4

DEFENDANTS’ OBJECTIONS TO GOVERNMENT-PROPOSED FORFEITURE VERDICT FORM

would have to be determined in order for the jury to find a nexus between the property and 

the offense.”) (emphasis added).

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

Procedures Manual (May 2023) § 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: November 5, 2023 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

DATED: November 5, 2023 Kessler Law Group

By: /s/ Eric W. Kessler

Eric W. Kessler

Attorney for Defendant Scott Spear

DATED: November 5, 2023 Paul J. Cambria

Erin McCampbell Paris

Lipsitz Green Scime Cambria LLP

By: /s/ Paul J. Cambria

Paul J. Cambria

Attorneys for Defendant Michael Lacey

DATED: November 5, 2023 Feder Law Office, P.A.

By: /s/ Bruce S. Feder

Bruce S. Feder

Attorney for Defendant Scott Spear

Case 2:18-cr-00422-DJH Document 1939 Filed 11/05/23 Page 4 of 4