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MICHAEL BAILEY

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

NICHOLAS L. MCQUAID

Acting 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 

UNITED STATES’ RESPONSE TO

DEFENDANTS’ SIXTH MOTION TO 

CONTINUE TRIAL

(DOC. 1113) 

INTRODUCTION

Defendants’ sixth Motion to Continue seeks a five-month postponement of the 

current trial date, from April 12, 2021, to September 20, 2021. Defendants cite two reasons

for this request: (1) the COVID-19 health pandemic; and (2) their pending mandamus

petition in the Ninth Circuit. The United States agrees that a continuance is warranted

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based on the increased severity of the pandemic and the uncertainty it brings to whether 

the trial may be conducted this April in a manner that ensures the health and safety of all 

trial participants.

Accordingly, the United States does not oppose Defendants’ request for a 

continuance, but it instead recommends an August 16, 2021 trial date. The United States 

notes that considerable progress has been made since the Defendants’ last motion to 

continue in protecting trial participants from COVID-19. First, in December 2020, the 

FDA approved and rolled out two highly effective vaccines that will substantially limit the 

COVID exposure of trial participants. Second, the federal courts, including the District of 

Arizona, have recommended and implemented numerous protocols to mitigate the risk of 

exposure. The United States respectfully submits that a trial continuance to August 16, 

2021, is warranted in these circumstances. To allow the Court to assess the impact that

vaccinations have had on the number of COVID-19 cases in Arizona and the safety of 

proceeding to trial in August 2021, the United States also respectfully requests that the 

Court set a status conference for mid-June 2021.

DISCUSSION 

This Court is aware of the challenges facing courts across the country when 

scheduling jury trials in the middle of a protracted pandemic. Here, an additional trial

continuance is warranted to protect public health. Federal, state, and local authorities, 

along with this Court’s orders continuing the January 2021 trial date, have recognized that 

we are enduring a grave public health emergency requiring people to take extreme 

measures tolimit contact. Indeed, recently the Chief Judge for the District of Arizona—

acknowledging that Arizona has the highest per capital infection rate in the world—issued 

a general order suspending until further notice all criminal and civil jury trials not presently 

begun but scheduled for the month of January and February 2021. See General Order 21-

02 at 2. Depending upon the public health situation, such trials may be further postponed.

Id. Based on the number of COVID-19 cases in Arizona, it is highly improbable that the 

parties will be able to proceed to trial this April.

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a. Conducting Jury Trials During COVID-19

Last year, the United States Courts issued a comprehensive report that contains 

preliminary suggestions and ideas for courts to consider when restarting jury trials. (See

Ex. A) This fifteen-page report provides an exhaustive study of protocols the Court may 

implement to mitigate the risk of COVID-19 exposure among trial participants. In 

addition, the District of Arizona has established its own protocols for conducting jury trials

during the pandemic. (See Ex. B) The development of these and other protocols and 

practices have shown that the courts can adapt to our current challenging circumstances.

For example, Defendants have raised concerns about masks impacting their right to

confront their accusers, complaining that they will be denied “meaningful confrontation” 

and “judged without the effect of prejudicial face coverings.” (Mot. at 5.) In similar cases, 

courts have addressed confrontation concerns by requiring testifying witnesses to wear 

clear face masks or face shields. See, e.g., United States v. Robertson, 2020 WL 6701874, 

at *2 (D.N.M. Nov. 13, 2020) (clear face shields); cf. United States v. James, 2020 WL 

6081501, at *2-3 (D. Ariz. Oct. 15, 2020) (Rayes, J.) (holding that Confrontation Clause 

did not require witnesses to testify without masks; noting defense counsel and client may 

wear transparent face shields); United States v. Clemons, 2020 WL 6485087, at *2 (D. Md. 

Nov. 4, 2020) (following James).

In addition, numerous preventative measures can be imposed within the courthouse.

For example, reliance on trial presentation software to limit the circulation of exhibits, 

mandatory face masks inside the courtroom, segregating jurors from the public and other 

trial participants, plexiglass within the courtrooms, live streaming of courtroom 

proceedings in a separate courtroom for the press and public, temperature checks upon 

entry, among other things, will ensure a safe environment for trial participants. (See also

Exs. A-B.)

Defendants further argue that they cannot effectively prepare their more significant 

witnesses for their testimony remotely. (Mot. at 7-8.) Here, Defendants have noticed 39 

witnesses but only have identified 27 witnesses by name. Every witness is some form of 

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an expert witness, and such witnesses are generally easier to prepare for trial testimony 

than percipient or lay witnesses. Moreover, the Court has precluded unnamed witnesses, 

precluded one expert (Bates Butler), and limited the testimony of four of their other expert 

witnesses. (See Doc. 1081.) Yet, Defendants fail to articulate any legitimate reason why 

trial preparation tasks such as witness and exhibit preparation require in-person interaction. 

Nearly the entire legal profession has been engaged in full-time telework since March 

2020. In this nearly year-long period of adjustment and change, the profession has adapted 

to a “new normal” in conducting its work remotely, including trial preparation, court 

hearings, and even civil trials. It defies reason for Defendants to argue that although the 

entire legal profession has adapted to remote proceedings and preparation using web 

platforms, they are unable to do so.

b. The Vaccine

Circumstances in the United States have changed since the previous trial 

continuance was granted based on the COVID-19 pandemic and the maternity leave of one 

of the defense attorneys. Two vaccines are currently being distributed in the United States.

1

Additional vaccines may soon receive approval for distribution.2

 Individuals 65 years and 

older, those with preexisting health issues, and other groups have received priority for 

vaccination.

3 Based on information cited in Defendants’ previous motions to continue 

trial, many of the defendants (and their attorneys) have priority for the vaccine due to age 

and/or pre-existing medical conditions. Despite this, the government recognizes it will 

take some time before the vaccine is widely available to the general population, including

witnesses and prospective jurors. In addition, while Judges (and their staff), law

enforcement and lawyers regularly at courts have been prioritized for immunization in 

1 https://www.cdc.gov/; see also https://www.wsj.com/articles/how-to-get-a-covid- 19-vaccine-a-state-by-state-guide-11611703769 (last visited February 2, 2021). 

2 https://www.cnn.com/2021/01/29/health/johnson-covid-19-vaccine-how-it- works/index.html (last visited February 1, 2021).

3 https://www.wsj.com/articles/how-to-get-a-covid-19-vaccine-a-state-by-state- guide-11611703769 (last visited February 2, 2021). 

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Arizona, the government recognizes that each state is developing its own protocol on the 

order in which vaccines should be administered.

4 Here, the prosecution team has 

endeavored to become vaccinated and is also working with victims and other lay witnesses 

to ensure that they have received vaccinations in the coming months.

The defense suggests a September 20, 2021 trial date and then notes that if the case 

extends into November (which is likely) one of the attorneys needs to take a week break 

for a personal commitment. (Mot. at 12.) Given the number of attorneys, witnesses, and 

jurors involved in this case, and the length of the case, this court cannot accommodate 

every attorney’s personal conflicts with the trial schedule. Additionally, several 

Defendants are represented by multiple trial counsel. The United States recommends an 

August start date to avoid any conflict and a break in what is anticipated to already be a

lengthy trial. 

c. Pending Deadlines

If the Court adopts the August 16, 2021 trial date recommended by the United 

States, the government proposes the following revisions to the current deadlines:

Document Current Deadline New Deadline

Government’s Disclosure of Final Exhibit and 

Witness List

March 12, 2021 July 12, 2021

Disclosure of Final Exhibit and Witness List March 19, 2021 July 19, 2021

Parties Joint Submission of Proposed Jury 

Instructions, Verdict Form, Voir Dire, and 

Statement of the Case 

March 12, 2021 July 12, 2021

4 See https://www.maricopa.gov/5651/Phase-1B#lawenforcement (last visited 

Feb.2, 2021); Ex. C, Jan. 22, 2021 email from Arizona State Bar President Denis M. 

Fitzgibbons, re: ADDITIONAL INFORMATION: Legal Services May Qualify for Phase 1B of Arizona’s Vaccine (“[T]hose who are regularly at the courts (such as prosecutors, defense attorneys and dependency attorneys), fall into the critical governmental services category and should work with their employers on opportunities for getting vaccinated.”).

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CONCLUSION

The United States does not oppose Defendants’ request to continue the April trial date

given the circumstances, but notes that if granted, this case will proceed to trial more than

three years after the indictment was filed. This will be the sixth trial continuance. Absent 

the public health emergency, the parties were preparing for trial in January 2021. The 

government has expended significant time and resources preparing for trial, and

Defendants have represented they have been diligently preparing as well. The public 

interest and the victims’ rights weighs heavily in favor of ensuring that this trial proceeds 

efficiently, safely and without unreasonable delay.

Respectfully submitted this 2nd day of February, 2021.

MICHAEL BAILEY

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

DANIEL G. BOYLE

Special Assistant U.S. Attorney

NICHOLAS L. MCQUAID

Acting Assistant Attorney General 

U.S. Department of Justice 

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

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CERTIFICATE OF SERVICE

I hereby certify that on this same date, 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/ Joy Faraj .

Joy Faraj

U.S. Attorney’s Office

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