UNITED STATES DISTRICT COURT

1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

_________________

United States of America, )

) No. 2:18-cr-00422-DJH

Plaintiff, )

)

vs. ) Phoenix, Arizona

) November 8, 2023

Michael Lacey, et al. ) 1:33 p.m.

)

Defendants. )

_____________________________ )

BEFORE: THE HONORABLE DIANE J. HUMETEWA, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS

TRIAL - DAY 30 - JURY QUESTION

Official Court Reporter:

Hilda Elizabeth Lopez, RMR, FCRR

Sandra Day O'Connor U.S. Courthouse, Suite 312

401 West Washington Street, Spc 30

Phoenix, Arizona 85003-2151

(602) 322-7256

Proceedings Reported by Stenographic Court Reporter

Transcript Prepared by Computer-Aided Transcription

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A P P E A R A N C E S

For the Government:

UNITED STATES ATTORNEY'S OFFICE

By: Mr. Kevin M. Rapp, Esq.

Mr. Peter S. Kozinets, Esq.

Mr. Andrew C. Stone, Esq.

Ms. Margaret Wu Perlmeter, Esq.

40 North Central Avenue, Suite 1200

Phoenix, Arizona 85004

kevin.rapp@usdoj.gov

peter.kozinets@usdoj.gov

andrew.stone@usdoj.gov

margaret.perlmeter@usdoj.gov

For the Government:

UNITED STATES DEPARTMENT OF JUSTICE

By: Mr. Austin Berry, Esq.

1301 New York Avenue, NW, 11th Floor

Washington, DC 20005

austin.berry2@usdoj.gov

For the Defendant Michael Lacey:

LIPSITZ GREEN SCIME CAMBRIA, L.L.P.

By: Mr. Paul J. Cambria, Jr., Esq.

42 Delaware Avenue, Suite 120

Buffalo, NY 14202

pcambria@lglaw.com

For the Defendant Scott Spear:

FEDER LAW OFFICE, P.A.

By: Mr. Bruce S. Feder, Esq.

2930 East Camelback Road, Suite 160

Phoenix, AZ 85016

bf@federlawpa.com

- and -

KESSLER LAW OFFICE

By: Mr. Eric Walter Kessler, Esq. - Appeared by Zoom

6720 N. Scottsdale Road, Suite 210

Scottsdale, AZ 85253

eric.kesslerlaw@gmail.com

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For the Defendant John Brunst:

BIRD MARELLA BOXER WOLPERT NESSIM DROOKS

LINCENBERG & RHOW, P.C.

By: Mr. Gopi K. Panchapakesan, Esq. - Appears by Zoom

Mr. Gary S. Lincenberg, Esq.

1875 Century Park E, Suite 2300

Los Angeles, CA 90067

gpanchapakesan@birdmarella.com

glincenberg@birdmarella.com

For the Defendant Andrew Padilla:

DAVID EISENBERG, P.L.C.

By: Mr. David S. Eisenberg, Esq.

3550 North Central Avenue, Suite 1155

Phoenix, AZ 85012

david@deisenbergplc.com

For the Defendant Joye Vaught:

JOY BERTRAND, ESQ., L.L.C.

By: Ms. Joy M. Bertrand, Esq.

P.O. Box 2734

Scottsdale, AZ 85252

joy@joybertrandlaw.com

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13:33:09

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P R O C E E D I N G S

(Proceedings commence at 1:33 p.m.)

THE COURT: Please be seated. And I'm glad to see you

back, Ms. Bertrand.

MS. BERTRAND: Thank you, Your Honor.

THE COURT: All right. We do have a jury question

that was submitted to the Court today, and the question is,

"What happens if we are unable to reach an unanimous agreement

on a count," and it's signed by Juror No. 2.

You've been provided a copy of that question; is that

correct?

MS. BERTRAND: Yes.

THE COURT: Okay. After considering this a bit,

because there are numerous counts that the jury is going

through, it's sort of a posture where I don't think we

necessarily give a pre-Allen charge, but I also -- but I do

think that part of that charge might be helpful -- but I also

looked back at what I have as page 16 of the jury instructions

that perhaps we could refer them to.

I took a stab at modifying an answer to that, and my

law clerk is handing that out now, but for the benefit of those

who are appearing by video -- I think, is it only Mr. Kessler

or someone -- oh, Mr. Panchapakesan perhaps -- I will read what

my draft answer is.

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"I remind you" -- oh, let me wait until this gets

handed out. "I remind you that it is important that you

attempt to reach a unanimous verdict on each count, but, of

course, only if each of you can do so after having made your

own conscientious decision. Your verdict on any count as to

any defendant should not control your verdict on any other

count or as to any other defendant."

And so the first sentence is the Ninth Circuit's

proposed, at least one sentence out of the proposed pre-Allen

charge, and the second, as I mentioned, is a portion of that

jury instruction that they have been given as to their

consideration of each count separately.

MR. LINCENBERG: Your Honor, can the defense have a

few minutes to discuss this amongst ourselves?

THE COURT: Yes, certainly.

MS. BERTRAND: May we step outside?

THE COURT: Oh, certainly. Yes, whatever you feel

comfortable doing.

(A recess was taken at 1:36 p.m.)

(Proceedings reconvened at 1:40 p.m.)

THE COURT: All right. Who wishes to be heard from

the government?

MR. RAPP: I will, Judge. We find this instruction to

be acceptable and appropriate.

THE COURT: And who is speaking for the defendants?

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MR. EISENBERG: I will, Your Honor.

THE COURT: Thank you, Mr. Eisenberg.

MR. EISENBERG: I'll speak from over here where I can

see the Court.

Your Honor, the defendants prefer what is on page 18

of the jury instructions, and I am going to refer to

paragraphs, of that paragraphs three, four and five. But I'll

say preliminarily, I don't think it's necessary, we don't think

it's necessary to give anything like an Allen charge or even a

pre-Allen charge. At this point the jury has been deliberating

about 24, well, a little more than a day. So we think that's

premature.

The paragraphs that are important would remind them as

follows, quote, "Each of you must decide the case for yourself,

but you should do so only after you have considered all of the

evidence, discussed it fully with the other jurors, and

listened to the views of your fellow jurors.

Do not be afraid to change your opinion if the

discussion persuades you that you should. But do not come to a

decision simply because other jurors think it is right.

It is important that you attempt to reach a unanimous

verdict but, of course, only if each of you can do so after

having made your own conscientious decision. Do not change an

honest belief about the weight and effect of the evidence

simply to reach a verdict."

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And that is certainly a good way to answering this

question. The other part of the question is: What happens if

you don't reach a unanimous verdict? I'm not quite sure how

that should be answered, and at this point it may not -- it may

not be necessary to even give a direct answer to that part of

the question, Your Honor.

THE COURT: Well, I think, not trying to read into the

question, I think it's simply a way that if they are deadlocked

as to one of the numerous counts that are charged, that they

continue to work through the others essentially.

MR. EISENBERG: I would agree with that.

THE COURT: So that's the reason I added that last

sentence in.

So your proposal is essentially just reminding them of

the paragraphs on page 18 that begin with, "Each of you must

decide," "Do not be afraid to change your opinion," and "It is

important that you attempt to reach a unanimous verdict."

MR. EISENBERG: Your Honor, also, I just noticed way

down at the bottom, the Court reminds the jury of, "It is your

duty as jurors to consult with one another and to deliberate

with one another with a view towards reaching an agreement if

you can do so."

THE COURT: I need a -- excuse me, I need a break.

COURTROOM DEPUTY: All rise.

(Recess was taken at 1:44 p.m.)

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13:48:28

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MS. RICHTER: Judge probably needs another five

minutes just to make sure her voice comes back.

MR. EISENBERG: I hope it wasn't anything I said.

MS. RICHTER: She proposes, though, that if the

parties can talk together about Mr. Eisenberg's proposal and

what she has proposed, and if you guys can reach a consensus on

that, that might be helpful. She'll be back in five.

(A recess was taken at 1:48 p.m.)

(Proceedings reconvened at 1:53 p.m.)

THE COURT: All right. Thank you. I've been fighting

a little bit of a throat issue, but I assure you it's not

COVID.

At any event, what have you come to determine?

MR. RAPP: I think the parties have reached an

agreement that the jury should be just referred back to page 18

of the jury instructions.

MR. EISENBERG: And we agree with that, Your Honor,

can be referred back in its entirety.

THE COURT: Do you have any thought as to also

referring them back to page 16, which is the separate

consideration of each count?

MR. RAPP: We don't have an objection to that as well.

MR. EISENBERG: Excuse me, Your Honor, we do object to

that because we believe that it could put an emphasis on, an

overemphasis on trying to come to a decision with respect to,

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let's say, a conspiracy count. I'm not sure it's even

necessary at this point, and it's -- I think going to page 18

in its entirety is exactly what the jury should hear.

MR. LINCENBERG: And Your Honor, I think our view is

the Court doesn't need to reread it. Just send a note back or

something referring them to page 18.

THE COURT: Well, I guess, the only reason I think

referring them also to page 16 is because the question is as to

"on a count."

MR. EISENBERG: You know, Your Honor, that's the way

you could read it initially, but then, and I am not being

critical of syntax or anything like that, it could also be read

to read to reach "on any count" and not "a count," or "a lot of

counts" or "very few counts." That's partly where the

confusion comes in. And the juror, of course, doesn't

reference a particular count. It's just what do you do when

you can't reach a verdict on counts, and I think it's premature

to go beyond page 18.

MR. RAPP: Well --

THE COURT: But I guess I'm a little bit, I guess,

confused because the jury instructions are as they are, and 16

is part of that as to the individual counts.

Mr. Rapp, you wanted to say something?

MR. RAPP: We really do think that they should be

referred to 16. Now even in light of what defense says, 16

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actually answers their question under any interpretation of the

juror question, or not answers it, but gives them guidance on

it. So we think if you refer page 16 and 18 without overly

emphasizing any portion of the instructions on those pages,

that should answer their question holistically.

MR. EISENBERG: If that is the case then, Your Honor,

it shouldn't be read to the jury 'cause it stands out. If

that's what the Court is going to do, I don't think it's

necessary, then referring them simply to pages 16 and --

THE COURT: Oh, yes, that's what I intended to do

because I have to handwrite this. I'm not going to rewrite the

instruction. I would just refer to them back to the jury

instructions at page 16 and 18, and that's all I would say.

MR. EISENBERG: Is that -- we may have another view on

this, Your Honor, from a different counsel.

MR. LINCENBERG: Your Honor, just reporting from the

group, we still object to rereading 16. We don't think it's

appropriate. It's -- we just don't know what this note means,

and we think it could just unduly emphasize one thing over

another as to whether it's Count 1, go on to Count 2, or if

they reached a verdict on every count except one. So for that

reason we object to referring them to page 16 again.

THE COURT: All right. Well, I'm going to refer them

to page -- jury instructions at page 16 and 18 because I do

think it's important for them to be reminded that their verdict

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on any count as to any defendant should not control their

verdict on any other count, and so I'll refer them back to 16,

page 16 and 18 of the jury instructions.

So my answer will read: The Court refers you to pages

16 and 18 -- refers you back to pages 16 and 18 of the jury

instructions.

And that will be the entirety of the answer. All

right. Let me just inquire, I think, is Mr. Panchapakesan

still on the call?

MR. PANCHAPAKESAN: I am, Your Honor.

THE COURT: And I know we don't possibly have

Mr. Boyle, but have those filings been entered or have you

submitted anything to my chambers?

MR. PANCHAPAKESAN: My understanding, Your Honor, is

that the government yesterday submitted their position on the

retention of the jury. They shared a draft with us yesterday

evening and then we responded this morning with our position.

And then with respect to the verdict form, we intend

on -- and what that verdict form entails -- we intend to file

something on that by the close of business today.

THE COURT: All right. Why don't we, just because I

don't know how quickly or deliberately they will be working,

why don't we set a tentative time to meet, and we can do that

virtually by tomorrow at 10:00 so that I'll have some ability

to review whatever it is that you filed. I think I've come to

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some understanding of how we should proceed, but I want to make

sure that I get your views on that with regard to forfeiture,

should that occur.

I think we have the ability to do a 10:00? Okay. All

right. We'll set that up for you.

MR. PANCHAPAKESAN: Thank you.

THE COURT: Okay. There being nothing further, would

you please return the questions back to my law clerk? And I

will submit this to the jury.

(Recess was taken at 2:01 p.m.)

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C E R T I F I C A T E

I, HILDA E. LOPEZ, do hereby certify that I am duly

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

I FURTHER CERTIFY that the foregoing pages constitute

a full, true, and accurate transcript of all of that portion of

the proceedings contained herein, had in the above-entitled

cause on the date specified therein, and that said transcript

was prepared under my direction and control.

DATED at Phoenix, Arizona, this 9th day of November,

2023.

s/Hilda E. Lopez_______

HILDA E. LOPEZ, RMR, FCRR

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