MOTION TO DISCLOSE GRAND JURY INSTRUCTIONS ON PROSTITUTION 

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Paul J. Cambria, Jr. (NY Bar No.1430909, admitted pro hac vice) 

Erin E. 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 PC 

903 Calle Amanecer, Suite 350 

San Clemente, California 92673 

Telephone: (949) 369-3700 

Facsimile: (949)369-3701 

tbienert@bienertkatzman.com 

wbernstein@bienartkatzman.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. 

NO. CR-18-00422-PHX-SMB 

DEFENDANTS’ MOTION TO 

DISCLOSE GRAND JURY 

INSTRUCTIONS ON PROSTITUTION

(Oral argument requested) 

Case 2:18-cr-00422-DJH Document 1171 Filed 06/09/21 Page 1 of 8
ii 

MOTION TO DISCLOSE GRAND JURY INSTRUCTIONS ON PROSTITUTION 

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Gary S. Lincenberg (CA Bar No. 123058, admitted pro hac vice) 

Ariel A. Neuman (CA Bar No. 241594, admitted pro hac vice) 

Gopi K. Panchapakesan (CA Bar No. 279856, admitted pro hac vice) 

BIRD, MARELLA, BOXER, WOLPERT, NESSIM, 

DROOKS, LINCENBERG & RHOW PC 

1875 Century Park East, 23rd Floor 

Los Angeles, California 90067-2561 

Telephone: (310) 201-2100 

Facsimile: (310) 201-2110 

glincenberg@birdmarella.com 

aneuman@birdmarella.com 

gpanchapakesan@birdmarella.com 

Attorneys for John Brunst 

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 

Joy Malby Bertrand (AZ Bar No. 024181) 

JOY BERTRAND ESQ LLC 

P.O. Box 2734 

Scottsdale, Arizona 85252 

Telephone: (602)374-5321 

Facsimile: (480)361-4694 

joy.bertrand@gmail.com 

Attorney for Joye Vaught 

Case 2:18-cr-00422-DJH Document 1171 Filed 06/09/21 Page 2 of 8
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MOTION 

Defendants Michael Lacey, James Larkin, John Brunst, Scott Spear, Andrew Padilla, and 

Joye Vaught (“Defendants”), by and through their undersigned attorneys, move for an order 

requiring the government to disclose the instructions given to the grand jury concerning the state 

offenses of prostitution as incorporated in the Travel Act charges. Alternatively, Defendants move 

for an order requiring the government to disclose those instructions to the Court for in camera review. 

This Motion is based on the following Memorandum of Points and Authorities, the Court’s file, and 

any evidence or argument presented at the hearing on this matter. Excludable delay under 18 U.S.C. 

§ 3161(h)(1) may occur as a result of this Motion or of an order based on this Motion. 

MEMORANDUM OF POINTS AND AUTHORITIES

The Defendants are charged with conspiracy to commit and commission of Travel Act 

violations for their alleged promotion/facilitation of a particular business enterprise or enterprises 

involving prostitution in violation of state laws that have yet to be specified by the government. In 

preparation for trial, the parties have begun to prepare draft jury instructions for this Court’s 

consideration. As part of that process, defense counsel have reviewed the government’s proposed 

instructions. Notably, the government’s proposed Travel Act instructions do not include the 

elements of a prostitution offense or offenses under state law. Because the government did not 

include the elements of a prostitution offense or offenses in its draft jury instructions, defense 

counsel believe that the government gave no such instruction to the grand jury when the grand jury 

made its decision to indict the Defendants. If the government gave no such instruction, or gave an 

incorrect instruction, the government did not properly advise the grand jury on the law prior to its 

issuance of the indictment. 

Defense counsel’s concern about the omission of such an instruction was reinforced by the 

government’s statements to the Court at the June 7, 2021 teleconference. At that conference, the 

government advocated for retention of a question on the jury questionnaire that asked generally 

about prostitution, with no definition of that term. (See Jun. 7, 2021 Tr. at 16-17, a true and correct 

Case 2:18-cr-00422-DJH Document 1171 Filed 06/09/21 Page 3 of 8
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copy of which is attached hereto as Exhibit A.) Further, the government’s comments indicate that 

its still undefined unlawful prostitution offense or offenses includes legal escort services.1 (Id. at 15.) 

Under the Travel Act, the government must establish that the Defendants “use[d] the mail 

or any facility in interstate or foreign commerce, with intent to . . . facilitate . . . unlawful activity . . . 

and thereafter perform[ed] or attempt[ed] to perform” an act in furtherance. 18 U.S.C. § 1952(a). 

In this case, the “unlawful activity” at issue is the purported facilitation of a “business enterprise 

involving . . . prostitution offenses in violation of the laws of the State in which they [were] committed.” 

18 U.S.C. § 1952(b)(1) (emphasis added). As relevant here, the Ninth Circuit has explained that, 

under the Travel Act, “[w]hen the unlawful activity charged in the indictment is the violation of state 

law, the commission of or the intent to commit such a violation is an element of the federal offense.” 

United States v. Bertman, 686 F.2d 772, 774 (9th Cir. 1982). “The government . . . must prove as part 

of the Travel Act charge that the defendant has or could have violated the underlying state law, and 

the defendant may assert any relevant substantive state law defense.” Id. Based on the plain text of 

the Travel Act and the well-settled holding in Bertman, the government was required to provide the 

grand jury with an instruction on the elements of the State statutes alleged to have been violated by 

the purported business enterprise(s) facilitated by the Defendants. 

Moreover, in United States v. Jones, 909 F.2d 533 (D.C. Cir. 1990), cited favorably by the Ninth 

Circuit, the D.C. Circuit vacated a Travel Act conviction pertaining to the facilitation of prostitution 

because the Travel Act jury instructions failed to inform the jurors as to “what, precisely, constitutes 

unlawful prostitution in each relevant jurisdiction.” Id. at 538. In that case, the government 

prosecuted seven women who worked for an escort service as well as their dispatcher under the 

1 See Doe ex rel. Roe v. Backpage.com, LLC, 104 F.Supp.3d 149, 156-57 (D. Mass 2015) 

(“The existence of an escorts section in a classified ad service, whatever its social merits, is not 

illegal.”); Backpage.com, LLC v. McKenna, 881 F.Supp.2d 1262, 1282 (W.D. Wash. 2012) 

(“[N]umerous states license, tax and otherwise regulate escort services as legitimate 

businesses.”); Dart v. Craigslist, Inc., 665 F.Supp.2d 961, 968 (N.D. Ill.2009) (Sheriff Dart “is 

simply wrong when he insists that [craigslist’s adult services category and related subcategories] 

are all synonyms for illegal sexual services;” craiglist’s “adult services” section “is not unlawful 

in itself nor does it necessarily call for unlawful content.”). 

Case 2:18-cr-00422-DJH Document 1171 Filed 06/09/21 Page 4 of 8
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theory that they facilitated prostitution in violation of the Travel Act as prostitution was illegal in 

Virginia, Maryland, and D.C., where the escort service operated. Rather than provide the jurors with 

the specific elements of prostitution in each of those jurisdictions, the instruction at issue “implied 

that the jury could convict if the activities of the escort service violated only some vaguely conceived 

lay notion of prostitution.” Id. “As a result, the jury may have convicted the appellants even though, 

were its attention so directed, it would not have found that the appellants had the requisite intent 

specified by the state laws with respect to each element of the escort service’s allegedly unlawful 

activity.” Id. The D.C. Circuit explained that vacating the convictions was necessary because “the 

Government [had] in effect [been incorrectly] relieved of the duty to prove beyond a reasonable 

doubt one or more of the facts necessary to constitute an offense under the Travel Act” in violation 

of the Due Process Clause. Id. 

Further, the Court elaborated that: 

A proper instruction would make it clear to the jury that in order 

to convict, they must find that the defendant specifically intended 

to promote (et cetera) an activity that involves all of the elements 

of the relevant state offense. Such an instruction would inform 

the jury that the defendant must have performed or attempted to 

perform an act in furtherance of the business, with the intent that 

each element of the underlying state crime be completed, but that 

they need not conclude that each was in fact completed. 

Id. at 539. 

In light of the government’s omission of a proposed jury instruction of any kind concerning 

prostitution here, notwithstanding the fact that such an instruction is required, as well as the 

government’s comments at the June 7, 2021 status conference, there is no basis to believe that the 

government provided such instructions to the grand jury. Under these circumstances, Defendants 

are entitled to the legal instructions provided to the grand jury and any colloquy between the grand 

jurors and the prosecutors regarding the applicable law. Although the secrecy of the grand jury is 

protected as outlined in Rule 6(e) of the Federal Rules of Criminal Procedure, courts in this Circuit 

have recognized that instructions on the law that were given to grand jurors “do not fall within the 

bar of Rule 6(e) because their disclosure would not reveal the substance or essence of the grand jury 

Case 2:18-cr-00422-DJH Document 1171 Filed 06/09/21 Page 5 of 8
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proceedings.” E.g., United States v. Diaz, 236 F.R.D. 470, 477-78 (N.D. Cal. 2006) (granting 

defendant’s request for disclosure of grand jury instructions on the law). Indeed, courts have 

repeatedly ruled that defendants are “entitled to disclosure of . . . [t]he legal instructions given to the 

grand jury regarding the charges on which they are deliberating . . . even without a showing of 

particularized need.” United States v. Belton, 2015 WL 1815273, at *3 (N.D. Cal. Apr. 21, 2015) 

(ordering the government to disclose instructions to the defense); see also United States v. Fuentes, 2008 

WL 2557949, at *4 (E.D. Cal. June 24, 2008) (“The government opposes this request on the grounds 

that the defendants have not made a showing of particularized need. The argument is unpersuasive. 

The defendants are entitled to the transcript of the instructions and charges to the grand jury.”). 

Further, under Rule 6(e), courts separately have the independent authority to order the 

disclosure of “a grand-jury matter” when the material would be used “in connection with a judicial 

proceeding” or “at the request of a defendant who shows that a ground may exist to dismiss 

the indictment because of a matter that occurred before the grand jury.” Fed. R. Crim. P. 

6(e)(3)(E)(i-ii). Here, Defendants have demonstrated that there is as good faith basis to believe that 

the government has misled or failed to advise the grand jury on a key matter of law. The failure to 

include an instruction on prostitution with respect to a Travel Act charge concerning the facilitation 

of prostitution in violation of State law is reversible error. See Bertman, 686 F.2d at 774; see also Jones, 

909 F.2d at 538-39. Similarly, dismissal of the indictment is appropriate if such an instruction was 

omitted from the instructions on the law provided to the grand jury. See, e.g., United States v. Peralta, 

763 F. Supp. 14, 21 (S.D.N.Y. 1991) (dismissing indictment and concluding that “defendants 

were seriously prejudiced by,” among other things, “the government’s misleading statements 

of law”). Thus, although Defendants are entitled to disclosure of the instructions on the law 

and any colloquy between the grand jurors and the prosecution concerning the elements of 

the Travel Act charges without a showing of need, Defendants have amply demonstrated that 

the disclosure of this material is necessary to prevent a grave injustice and reversible error – 

proceeding to trial on what may be a faulty indictment. 

Case 2:18-cr-00422-DJH Document 1171 Filed 06/09/21 Page 6 of 8
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CONCLUSION 

 For all these reasons, this Court should order the government to disclose the instructions 

on the law provided to the grand jury and colloquy between the prosecution and the grand jurors 

concerning the applicable law. Alternatively, Defendants request this Court to review those 

materials to determine whether the grand jury was instructed in a manner that respected the 

Defendants’ Due Process rights. 

 RESPECTFULLY SUBMITTED this 9th day of June, 2021, 

Paul J. Cambria, Jr. 

Erin E. McCampbell 

LIPSITZ GREEN SCIME CAMBRIA LLP 

 By: /s/ Paul J. Cambria, Jr. 

Paul J. Cambria, Jr. 

Attorneys for Michael Lacey 

Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual (May 2018) 

§ II (C) (3), Erin E. McCampbell 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.

 Thomas H. Bienert, Jr. 

Whitney Z. Bernstein 

BIENERT KATZMAN, PLC 

 By: /s/ Whitney Z. Bernstein 

Whitney Z. Bernstein 

Attorneys for James Larkin 

Gary S. Lincenberg 

Ariel A. Neuman 

Gopi K. Panchapakesan 

BIRD, MARELLA, BOXER, WOLPERT, NESSIM, 

DROOKS, LINCENBERG & RHOW, P.C. 

By: /s/ Ariel A. Neuman 

Ariel A. Neuman 

Attorneys for John Brunst 

Case 2:18-cr-00422-DJH Document 1171 Filed 06/09/21 Page 7 of 8
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Bruce Feder 

FEDER LAW OFFICE, P.A. 

By: /s/ Bruce Feder 

Bruce Feder 

Attorneys for Scott Spear 

David Eisenberg 

DAVID EISENBERG, P.L.C. 

By: /s/ David Eisenberg 

David Eisenberg 

Attorneys for Andrew Padilla 

 Joy Bertrand 

JOY BERTRAND, ESQ. 

By: /s/ Joy Bertrand 

Joy Bertrand 

Attorneys for Joye Vaught 

On June 9, 2021, a PDF version 

of this document was filed with 

Clerk of the Court using the CM/ECF 

System for filing and for Transmittal 

Of a Notice of Electronic Filing to the 

Following CM/ECF registrants: 

Kevin Rapp, kevin.rapp@usdoj.gov 

Reginald Jones, reginald.jones4@usdoj.gov 

Peter Kozinets, peter.kozinets@usdoj.gov 

Margaret Perlmeter, margaret.perlmeter@usdoj.gov 

Andrew Stone, andrew.stone@usdoj.gov 

Daniel Boyle, daniel.boyle2@usdoj.gov 

Case 2:18-cr-00422-DJH Document 1171 Filed 06/09/21 Page 8 of 8