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GLENN B. McCORMICK

Acting 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

KENNETH POLITE

Assistant Attorney General 

Criminal Division, U.S. Department of Justice

REGINALD E. JONES (D.C. Bar No. 1620183, reginald.jones4@usdoj.gov) Senior Trial Attorney

Criminal Division, U.S. Department of Justice 1400 New York Ave N.W., Suite 1200

Washington, D.C. 20005

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-DJH 

UNITED STATES’ RESPONSE TO 

DEFENDANTS’ MOTION FOR 

RECUSAL (Doc. 1378)

Defendants’ motion for recusal should be denied. The “facts” raised by Defendants, 

even assuming they are accurate, would not cause a reasonable person to question Your 

Honor’s impartiality in this matter. No recusal is warranted. 

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Pertinent Factual Background

This is the second time in this case Defendants have moved for recusal of the 

presiding district court judge. (See Docs. 1059, 1067, 1075.) After the Court denied their 

first motion for recusal, Defendants sought a writ of mandamus, which the Ninth Circuit 

denied. (Doc. 1089; April 5, 2021 Memorandum from the U.S. Court of Appeals for the 

Ninth Circuit, attached as Exhibit A.) 

Defendants now seek recusal because they claim to be “aware of some facts that 

could cause a reasonable person with knowledge of the facts to conclude that Your Honor’s 

impartiality might reasonably be questioned.” (Doc. 1378 (“Mot.”) at 3.) Defendants raise 

three reasons why they believe the Court cannot be fair and impartial in this matter.

- First, because Your Honor “held at least one press conference with various 

organizations to raise awareness of human trafficking, some of which 

organization [sic] may be affiliated with witnesses on the government’s witness 

list.” (Mot. at 3.)

- Second, based on Your Honor’s “close personal and professional connection 

with the late Senator John McCain and his wife, Cindy McCain, as well as Your 

Honor’s significant support for organizations associated with the McCains, 

including financial contributions to the McCain Institute.” (Id.) Defendants then 

claim that the “McCains and the McCain Institute have been outspoken critics 

of Backpage.com and a driving force behind political efforts to shut down the 

site.” (Id. at 3-4.)

- Third and finally, Defendants believe recusal is appropriate because Your Honor

may have had “communications relating to investigations or arrests of any 

Defendants that could influence the appearance of partiality.” (Id. at 5.) 

Based on these three reasons, Defendants question this Court’s impartiality and seek 

recusal.

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Law and Argument

I. No Specific Grounds for Recusal Apply Under 28 U.S.C. § 455(b)

The criteria for disqualification of judges are defined by 28 U.S.C. § 455.1

 That 

statute contains both specific grounds for when judges “shall” disqualify themselves under 

§ 455(b), and a catch-all provision, § 455(a). Here, Defendants do not argue that any of 

the specific grounds for recusal apply. Appropriately so. None do. For example, the three 

reasons provided for recusal do not raise the specter of Your Honor holding any “financial 

interest in the subject matter in controversy,” or “any other interest that could be 

substantially affected by the outcome of the proceeding.” § 455(b)(4). Accordingly, 

Defendants appear to focus their recusal argument on the catch-all language of § 455(a).

II. Recusal Isn’t Appropriate Under 28 U.S.C. § 455(a)

Under § 455(a), a district court judge must recuse “in any proceeding in which [her]

impartiality might reasonably be questioned.” Courts apply an “objective” standard to 

§ 455(a) motions. United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008). A judge 

has “as strong a duty to sit when there is no legitimate reason to recuse as [s]he does to 

recuse when the law and facts require.” Clemens v. U.S. District Court for the Central 

District of California, 428 F.3d 1175, 1179 (9th Cir. 2005). The judge must consider 

“whether a reasonable person with knowledge of all the facts would conclude that the 

judge’s impartiality might reasonably be questioned.” Id. at 1178; United States v. 

Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997). The reasonable observer is not a 

“hypersensitive or unduly suspicious person,” Clemens, 428 F.3d at 1178-79, nor “a ‘partly 

informed man-in-the-street,’ but rather someone who ‘understand[s] all the relevant facts’ 

and has examined the record and law.” Holland, 519 F.3d at 914. 

One who seeks recusal must show that the judge’s bias or prejudice reflects an 

obvious inability to fairly preside over the proceeding. See Liteky v. United States, 510 

U.S. 540, 551-552 (1994). “‘Bias’ and ‘prejudice’ as used in recusal statutes connote a 

1 Defendants cite “18 U.S.C. § 455,” but the United States infers that Defendants 

meant to cite 28 U.S.C. § 455. 

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favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, 

either because it is undeserved, or because it rests upon knowledge that the subject ought 

not to possess or because it is excessive in degree.” Twist v. U.S. Dep’t of Justice, 344 F. 

Supp. 2d 137, 141 (D.D.C. 2004) (citing Liteky, 510 U.S. at 550). The standard “must not 

be so broadly construed that it becomes, in effect, presumptive, so that recusal is mandated 

upon the merest unsubstantiated suggestion of personal bias or prejudice.” Holland, 519 

F.3d at 913. Moreover, because recusal is an extreme measure, Twist, 344 F. Supp. 2d at 

142, it may not be based on speculation, innuendo, suspicion, or opinion. Clemens, 428 

F.3d at 1178-79. 

Recusal claims under § 455(a) are “fact driven” and guided “by an independent 

examination” of the facts and circumstances at issue. Clemens, 428 F.3d at 1178. 

Accordingly, the United States will separately examine the three facts that Defendants 

claim support recusal.

A. Participation In A Press Conference To Raise Awareness Of Human 

Trafficking Is Insufficient To Support Recusal

Defendants’ first argument in support of recusal is without merit. Defendants are 

concerned that Your Honor held a press conference with various organizations to raise 

awareness of human trafficking. As an initial matter, there are no details provided about 

when the press conference occurred, who presented, who attended, what press it generated, 

or anything beyond a conclusory assertion that such a conference happened. But even 

assuming that Your Honor did participate in a press conference to discuss human 

trafficking, a recusal isn’t necessary. Human trafficking is a crime. See, e.g., 18 U.S.C. 

§ 1591. A “reasonable person” would clearly expect a federal district court judge to take 

a dim view of any federal crimes. Holding an unfavorable opinion of “human trafficking” 

is not inappropriate. See Twist, 344 F. Supp. 2d at 141 (“bias” under § 455(a) involves a 

judge’s unfavorable opinion about a topic that is inappropriate because it is undeserved). 

Defendants also make a conclusory allegation that one of the organizations involved 

in the press conference “may be affiliated” with witnesses on the United States’ witness 

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list. (Mot. at 3.) The Motion does not identify any such organizations or witnesses. The 

United States cannot specifically respond to this argument without further details, but even

if Your Honor participated in a press conference that also involved a representative of an 

organization that, in turn, might have some unspecified connection to a potential (but 

unidentified) prosecution witness, clearly more would be needed to support recusal. A 

reasonable person would not conclude that Your Honor would be biased against 

Defendants based on the vague and attenuated assertion that you participated in the same 

press conference as an organization that has some unknown or unspecified association with 

an unidentified potential witness. 

B. A Close Connection With The McCains Fails To Establish Any Basis For 

Recusal

Defendants are wrong when they suggest Your Honor’s “close personal and 

professional connection with the late Senator John McCain and his wife, Cindy McCain” 

is sufficient to support recusal. Neither Senator McCain nor Cindy McCain are parties or 

witnesses in this matter, nor have they played any role whatsoever in this prosecution. 

Defendants’ argument that a reasonable person would impute the views of the late-Senator 

and Mrs. McCain to Your Honor, simply because you may be friends, is far-fetched. Other 

district court decisions are instructive. For example, in denying a litigant’s motion for 

recusal, a district court judge found that “[t]o my knowledge every federal court faced with 

arguments for recusal based on friendship have found recusal unnecessary.” M.K. Metals, 

Inc. v. Nat’l Steel Corp., 539 F. Supp. 991, 995 (N.D. Ill. 1984). “In short, friendship 

between judges and trial actors other than parties, untainted by any financial interests, 

should not generally justify recusal.”2

 Id. at 996. 

2 The United States found one decision since 1984 that may contradict the M.K. 

Metals, Inc. opinion that no court has recused itself based on friendship with a non-trial 

actor. In United States v. Jordan, 49 F.3d 152 (5th Cir. 1995), the court of appeals found the district court judge should have recused herself because there was a publicized history 

of “bad blood” between the defendant and a close personal friend of the judge. While noting that friendship between the judge and a person with interest in the case need not be 

disqualifying, here the judge’s friend and the defendant “were embroiled in a series of 

vindictive legal actions resulting in a great deal of publicity,” some of which involved the judge’s spouse. Id. at 157. The court of appeals remanded for resentencing only, after the 

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Here, the facts are even more attenuated as the McCains aren’t trial actors or 

connected to this case in any manner, beyond making a handful of public comments in 

support of Backpage’s shutdown. (See, e.g., Mot. at 4-5.) Senator McCain was familiar 

with Backpage through, among other things, his work as a member of the United States 

Senate Permanent Subcommittee on Investigations that issued a report on Backpage in 

January 2017.

3 The mere fact that Your Honor has connections to the McCains, or may 

have made charitable contributions to an Arizona State University institute that bears the 

late Senator’s name (the McCain Institute for International Leadership), does not support 

recusal. Indeed, the United States can find no case where a district court recused under 

such a factual scenario.4

 

As the Supreme Court has noted, “friendship is a ground for recusal of a Justice 

where the personal fortune or the personal freedom of the friend is at issue,” but not 

typically in other situations. Cheney v. U.S. Dist. Ct. for D.C., 541 U.S. 913, 916 (2004). 

Neither Cindy McCain’s “personal fortune” nor her “personal freedom,” nor those of the 

late Senator’s, are at issue. Recusal isn’t warranted. 

C. Defendants Lacey And Larkin’s 2007 Arrest Does Not Appear To 

Implicate Your Honor

In October 2007, Defendants Michael Lacey and James Larkin were arrested by 

former Maricopa County Sheriff Joe Arpaio. That arrest led to a lawsuit against Sheriff 

Arpaio and a settlement with Maricopa County. (Mot at 5.) Two months after the arrest, 

on December 17, 2007, Your Honor was sworn in as the United States Attorney for the 

original judge sentenced defendant to over 40 years in prison for wire fraud and money 

laundering convictions where the loss amount was less than $1 million. Id. at 154-155, 

158. 

3 BACKPAGE.COM’S KNOWING FACILITATION OF ONLINE SEX TRAFFICKING, U.S. 

Senate Permanent Subcommittee on Investigations, Jan. 2017, available at: 

https://www.hsgac.senate.gov/imo/media/doc/Backpage%20Report%202017.01.10%20F

INAL.pdf

4 Cf. United States ex rel Hamilton v. Yavapai Community College Dist., CV-12- 08193-PCT-PGR, 2014 WL 12656540, at *4 (D. Ariz. Dec. 9, 2014) (discussing several

cases where courts denied recusal motions based on a judge’s charitable contributions to 

academic institutions).

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District of Arizona. Based on these facts alone, it would appear that Your Honor had no 

connection to the arrest. Certainly, the settlement with Maricopa County would lead a 

reasonable person to believe that the United States did not have any role in the ordeal.5

 

This argument for recusal, like the two others, is without merit. All three arguments 

provide zero support for Your Honor’s recusal. 

In determining the necessity for disqualification, all circumstances bearing 

upon it should be considered. But that does not mean that various 

circumstances, each insufficient standing alone, mandate sufficiency in 

totality. Under the factual situation here presented, holding that these various 

circumstances in combination require disqualification would be tantamount 

to holding that adding several zeroes together would produce something 

more than zero.

M.K. Metals, Inc., 539 F. Supp. at 996-997 (quoting Miller Indus. v. Caterpillar Tractor 

Co., 516 F. Supp. 84, 87 (S.D. Ala. 1980)). 

//

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//

5 This point is buttressed by the fact that the United States Department of Justice subsequently prosecuted Sheriff Arpaio for criminal contempt and obtained a conviction 

before President Trump pardoned Arpaio. See United States v. Arpaio, 887 F.3d 979, 980 

(9th Cir. 2018).

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Conclusion

For the foregoing reasons, Defendants’ Motion for Recusal (Doc. 1378) should be 

denied. 

Respectfully submitted this 8th day of November, 2021.

GLENN B. McCORMICK

Acting United States Attorney

District of Arizona

s/ Andrew C. Stone

KEVIN M. RAPP

MARGARET PERLMETER

PETER S. KOZINETS

ANDREW C. STONE

Assistant U.S. Attorneys

DAN G. BOYLE

Special Assistant U.S. Attorney

KENNETH POLITE

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

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/ Gaynell Smith

U.S. Attorney’s Office

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