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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

JOHN J. KUCERA (Cal. Bar No. 274184, john.kucera@usdoj.gov) 

Special Assistant U.S. Attorney

312 N. Spring Street, Suite 1200

Los Angeles, CA 90012

Telephone (213) 894-3391

BRIAN BENCZKOWSKI 

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’ OPPOSITION TO 

DEFENDANTS’ MOTION TO 

INDEFINITELY DELAY TRIAL

(CR 990) 

INTRODUCTION

Defendants’ motion to indefinitely delay this trial—already set to commence more

than 28 months after their arraignments—should be denied. Defendants suggest that no 

trial should occur until “unmasked testimony will be perfectly safe”—that is, until “after 

the pandemic.” (Mot. at 12). Defendants’ concerns will not be completely eliminated until 

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there is a vaccine or cure for COVID-19, which could be months or even several years 

from now. Yet, it simply is not possible or practical to put trials on hold indefinitely. 

Rather, the government supports the Court’s efforts in exploring measures that would allow 

jury trials to proceed safely during this time, while protecting the constitutional rights of 

Defendants and the health and safety interests of all trial participants.

1

 

The United States is mindful of the health concerns raised in Defendants’ motion, 

and does not mean to minimize them in any way. Rather, as explained below, Defendants’ 

concerns are not insurmountable obstacles, and this trial (already continued on three prior 

occasions) should proceed as scheduled on August 17, 2020 or within a reasonable time 

this fall, when protocols are in place to ensure, to the greatest extent possible, the safety of 

all participants.

RELEVANT FACTS

Three Trial Continuances Have Already Been Granted In This Case

The parties agreed at the outset that this is a complex case and negotiated a 

scheduling order that included deadlines linked to an October 7, 2019 trial date. (CR 121). 

In exchange for the certainty of a trial date, the government agreed to certain disclosures 

in advance of the government’s statutory obligations and precedent in the District of 

Arizona. At the scheduling conference in May 2018, Defendants argued that they needed 

additional time to prepare for trial, and the Court granted their request to set the trial for

January 15, 2020. (CR 131). However, the Court did not alter any other deadlines. Thus, 

the trial was extended three months but all disclosure deadlines (e.g., Rule 16, Jencks Act 

material, expert notices, etc.) remained the same. As a result, Defendants received 

disclosures earlier than they would have under the parties’ originally-negotiated schedule.

 1 Many of the suggestions discussed below are also described in the U.S. Courts’ COVID- 19 Judicial Task Force’s recently-released jury subgroup report, “Conducting Jury Trials and Convening Grand Juries During the Pandemic,” available at 

https://www.uscourts.gov/sites/default/files/combined_jury_trial_post_covid_doc_6.10.2

0.pdf. 

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On June 3, 2019, Defendants filed a motion to continue the January 2020 trial date. 

On July 1, 2019, the Court granted the motion, continuing the January trial date for an 

additional four months until May 5, 2020. (CR 664.) On January 29, 2020, Defendants 

filed a second motion to continue trial. On February 21, 2020, the Court granted this 

motion, continuing the trial date for an additional three and a half months until August 17, 

2020. (CR 893.) On May 29, 2020, Defendants filed their third motion to continue trial. 

(CR 990.) As explained below, the Court should deny Defendants’ present request for an 

indefinite and open-ended trial continuance.

ARGUMENT

Trial courts are accorded wide latitude in scheduling trials. Morris v. Slappy, 461

U.S. 1, 11 (1983). In exercising its “broad discretion,” United States v. Flynt, 756 F.2d 

1352, 1358-59 (9th Cir.), amended, 764 F.2d 675 (9th Cir. 1985), to grant or deny a 

continuance, courts conduct a “case-by-case inquiry . . . bound by no particular mechanical 

test.” Armant v. Marquez, 772 F.2d 552, 556 (9th Cir. 1985). That said, four factors help 

guide this Court’s consideration of whether to grant Defendants’ motion: (1) the 

defendants’ diligence in their efforts to ready a defense prior to the trial date; (2) the 

usefulness of the continuance; (3) the extent to which granting the continuance

inconveniences the court, the government, and its witnesses; and (4) prejudice to the 

defendants as a result of the failure to grant a continuance. Flynt, 756 F.2d at 1358-62. 

The weight attributed to any one fact may vary. Id. (citation omitted). “[T]he focus of 

[the] prejudice inquiry is the ‘extent to which the aggrieved party’s right to present his 

defense [may be] affected.’” United States v. Kloehn, 620 F.3d 1122, 1128 (9th Cir. 2010) 

(internal quotation marks and citation omitted).

Defendants’ motion is largely based on the fourth Flynt factor, prejudice that would 

result as a failure to grant a continuance because of COVID-19. As discussed below, and 

to address Defendants’ concerns, several measures can be implemented that will ensure, to 

the greatest extent possible, the safety of all jury trial participants. Other Flynt factors not 

argued by Defendants (e.g., diligence; usefulness of a continuance; inconvenience to the 

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court, the government and its witnesses, including victims of sex trafficking facilitated by 

Backpage who have already waited nearly two and a half years for their day in court) 

militate against an open-ended continuance and undoubtedly favor getting this case to trial.

I. DEFENDANTS’ ASSERTIONS OF PREJUDICE ARE UNAVAILAING OR 

CAN BE ADDRESSED BY SAFEGUARDS BEING ADOPTED BY COURTS 

ACROSS THE COUNTRY.

A. Defendants’ Trial Preparation Concerns Are Unavailing.

Defendants’ argument that they are unable to properly conduct trial preparation

because counsel cannot meet in person with their clients and other witnesses cannot 

withstand scrutiny. (Mot at 8.) To start, Defendants have been in possession of the vast 

majority of discovery in this case for more than two years, and they had two years to 

prepare for trial before counsel for the defense (and the government) largely shifted to 

telecommuting in approximately mid-March 2020. (See CR 893 at 4.) Since that time, 

and in addition to utilizing traditional means of electronic communications (audio-only and 

FaceTime or Skype video calls, email, shared document review databases like Relativity, 

and other forms of widely-used collaboration software like GoogleDocs), legal 

professionals are now widely using video-conferencing platforms such as Zoom or WebEx 

that allow multiple participants to meet and share documents over in the internet. Defense 

counsel in this case uses these platforms; indeed, they recently requested to appear for the 

June 19, 2020 hearing via Zoom video conferencing. (See Ex. B, June 3, 2020 email from 

B. Feder to E. Garcia.) In short, the argument that defense counsel are unable to prepare 

for trial because they cannot meet with Defendants or potential witnesses in-person to 

assess their demeanor and credibility until COVID-19 subsides should be rejected. 

The defense also suggests that they have been impeded in trial preparation by not 

having in-person access to their law offices. (Mot. at 6.) However, they fail to articulate 

how they have been prevented from engaging in any specific forms of trial preparation 

(other than in-person meetings that can be conducted via Zoom) by working remotely. 

Moreover, they do not explain why they cannot access their offices on a limited basis if 

necessary to, for example, retrieve hardcopy files or review demonstrative exhibits, 

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provided they adhere to now-commonplace precautions such as mask-wearing and social 

distancing. 

B. Defendants’ Claim that COVID-19 Will Deprive Them of Trial Before a

Cross-Section of the Community Is Unfounded, Speculative, and Premature.

Before the Court has even adopted and disseminated a jury questionnaire and 

assembled the venire, Defendants assert that “jury summonses issued for an August trial 

cannot produce a lawful cross-section of the community.” (Mot. at 10.) This claim fails 

because: (1) it is premature; (2) Defendants have not demonstrated any failure to comply 

with the Jury Selection and Service Act, 28 U.S.C. §§ 1861-71 (JSSA); (3) Defendants

cannot meet the second or third prongs of the applicable fair cross-section test; and (4) the 

JSSA addresses the need for calling additional jurors when there is an unanticipated 

shortage. 

1. Defendants’ Claim Is Premature.

Defendants’ fair cross-section claim cannot arise before the venire is even called—

at minimum, the second and third prongs of the fair cross-section test require showing a 

pattern of venires that lack fair and reasonable representation based on a systematic

exclusion of same. See Duren v. Missouri, 439 U.S. 357, 360 (1979). Furthermore, 

Defendants cannot establish a prima facie violation of the fair cross-section requirement 

by relying solely on the composition of the venire at their own trial. United States v. 

Olaniyi-Oke, 199 F.3d 767, 773 (5th Cir. 1999); McGinnis v. Johnson, 181 F.3d 686, 690 

(5th Cir. 1999) (“[A] one-time example of underrepresentation of a distinctive group 

wholly fails to meet the systemic exclusion element of Duren.”). Defendants’ assertion is 

entirely premature and should be rejected.

2. Defendants Haven’t Demonstrated a Substantial Failure to Comply 

with the JSSA.

To obtain relief under the JSSA, “a defendant must prove a ‘substantial failure’ to 

comply with the Act’s provisions, a substantial failure being one that destroys the random 

nature or objectivity of the selection process.” Olaniyi-Oke, 199 F.3d at 772. The 

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“happenstance” of a disproportionate jury venire is simply not enough to prevail under the 

JSSA—for example, not every venire will match the proportions of minorities in the 

community, given the nature of random selection and the size of the sample. Id. 

Here, Defendants fail to challenge the selection process—“which is what Section

1867 is designed for”—and instead allege that the venire might fail to represent a fair crosssection of the community. See id. The defendant in Olaniyi-Oke similarly alleged that his 

venire had “too few” minorities. After noting that every venire would not match the 

proportions of minorities in the community based on the nature of randomness, the court 

held defendant’s claim not cognizable under the JSSA because he failed to demonstrate 

any failure to comply with the statute. This Court should reach the same result. Defendants 

allege that the mere act of sending a jury summons during COVID-19 “destroys the random 

nature” of jury selection.” (Mot. at 11.) But they fail to identify any JSSA provision that 

would be violated. As such, Defendants present no cognizable claim under the JSSA.

3. Defendants Cannot Meet The Second or Third Prongs of the Fair 

Cross-Section Test.

The Sixth Amendment and the Due Process Clause of the Fifth Amendment both 

require that juries be drawn from a “fair cross-section” of the community. See Berghuis v. 

Smith, 559 U.S. 314, 319 (2010); Duren, 439 U.S. at 360; Taylor v. Louisiana, 419 U.S. 

522 (1975); United States v. Williams, 264 F.3d 561, 567-68 (5th Cir. 2001). “However, 

this does not mean that the Constitution guarantees a ‘jury of any particular composition.”’ 

Paresdes v. Quarterman, 574 F.3d 281, 289 (5th Cir. 2009). To establish a prima facie 

violation of the fair cross-section requirement, a defendant must demonstrate the following 

three prongs, commonly referred to as the Duren test:

(1) that the group alleged to be excluded is a “distinctive” group in the 

community;

(2) that the representation of this group in venires from which juries are 

selected is not fair and reasonable in relation to the number of such 

persons in the community; and

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(3) that this underrepresentation is due to systematic exclusion of the group 

in the jury-selection process.

Berghuis, 559 U.S. at 319 (quoting Duren, 439 U.S. at 364); United States v. Miller, 771 

F.2d 1219 (9th Cir. 1985); United States v. Nelson, 718 F.2d 315, 319-320 (9th Cir. 1983). 

District courts in the Eastern District of Louisiana repeatedly rejected claims 

following Hurricane Katrina that minority displacement from the hurricane caused a 

systemic underrepresentation in its Jury Selection Plan—relying on the third Duren prong. 

See, e.g., United States v. Haynes, 2006 WL 1236059, *1 at n.1 (E.D. La. May 3, 2006) 

(listing cases). In Haynes, the court first noted that “even assuming for purposes of this 

motion that African-Americans were displaced disproportionately by the storm, the

defendant cannot establish the second requirement, that the representation of AfricanAmericans in venires from which juries are selected is not fair in relation to the number of 

such persons in the community.” Id. at *2. But even if the defendant had demonstrated 

underrepresentation, he failed to demonstrate that it was the result of “systematic 

exclusion”—that is, “when the under representation is due to the system of jury selection 

itself, rather than external forces.” Id. (quoting United States v. Rioux, 97 F.3d 648 (2d 

Cir. 1996)) (citing cases in which demographic changes, bad weather, and natural disasters 

resulted in underrepresentation in the jury venire but did not amount to constitutional 

violations). Ultimately, the court held that “[i]n this case, any under representation, if it 

exists, was caused by natural disaster, and not by any systematic flaw or subjectivity in the 

Jury Selection Plan.” Id. at *3. As a result, the court denied the defendant’s motion to 

quash the venire and stay the trial proceedings. Similarly, COVID-19, a natural disaster in 

its own right, would fail to give rise to a fair cross-section claim under the third prong of 

the Duren test, even if Defendants could statistically demonstrate significant

underrepresentation of minority groups in the venires (which they have not).

4. The JSSA Addresses Potential Juror Shortage.

The JSSA addresses a scenario in which there is an unanticipated shortage of 

available petit jurors. It provides that “[w]hen there is an unanticipated shortage of 

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available petit jurors drawn from the qualified jury wheel, the court may require the 

marshal to summon a sufficient number of petit jurors selected at random from the voter 

registration lists, lists of actual voters, or other lists specified in the plan, in a manner 

ordered by the court consistent with sections 1861 and 1862 of this title.” See 28 U.S.C. § 

1866(f). Thus, if the Court determines that an insufficient number of jurors has responded 

for the venire due to COVID-19, additional jurors could be summoned. 

Additionally, the government has proposed questions to Defendants to include in 

the jury questionnaire to reduce the time in court needed to assess jurors for health concerns 

or risk factors in order to excuse or defer jurors that have current health issues or pose a 

risk of infection to others. These questions include or cover the following:

1. Have you been tested for COVID-19? If so, what was the result of the

test?

2. Have you been diagnosed or assessed presumptively positive for 

COVID- 19?

3. At any time over the past two weeks, have you developed flu-like 

symptoms such as a cough, fever, shortness of breath, or a loss of the 

sense of taste or smell?

4. Have you been in close contact with anyone who has been diagnosed with a COVID-19 infection within the last two weeks?

5. Are you a healthcare worker directly involved with the treatment of

COVID-19?

6. Are you or someone in your household considered to be at high risk for complications from contracting COVID-19 because of a 

preexisting condition, age, or other characteristic? If so, please 

explain in detail.

7. Do you have significant childcare or eldercare issues as a result of 

COVID-19-related closures that would make it difficult for you to serve as a juror? If so, please explain in detail.

8. Are you dependent on mass transportation to travel to and from the courthouse?

Moreover, the Court could issue a supplemental questionnaire on the day jury 

service begins to obtain up-to-date information regarding the prospective jurors’ health and 

potential exposure to individuals with COVID-19. The Court could also consider more 

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permissive policies for excusing, deferring, or otherwise exempting potential jurors from 

service of a summons based on responses to the questionnaire. 

C. This Court Has Adopted Procedures to Facilitate Jury Selection, Voir Dire, Instructing the Jury and Jury Deliberations in a Manner that Reasonably Addresses Health and Safety Concerns.

Several other federal district courts have issued orders detailing the protocol for the 

commencement of trials. (See, e.g., Ex. A). In addition, Chief Judge G. Murray Snow of 

the District of Arizona has issued an order partially lifting the moratorium on jury and other 

trials in the Tucson and Phoenix Courthouses and setting forth measures to minimize 

COVID-19 exposure during jury trials. (General Order 20-26 at 2-5.)

The parties have already agreed to use a jury questionnaire to gather biographical 

and other basic information about potential jurors that will expedite jury selection and limit 

the time jurors spend in the courtroom. The current proposed questionnaire is mandatory

and signed under penalty of perjury. The completed questionnaires will be filed under seal 

to protect the sensitive health information of the potential jurors who have concerns about 

COVID-19 exposure.

In addition, arrival times could be staggered for potential jurors, especially when 

selecting juries for multiple trials, and using several staging areas to facilitate social

distancing. The Court could use video teleconferencing for preliminary and general 

instructions and as a supplement to juror questionnaires on basic questions. The Court 

could further consider conducting voir dire with small groups of jurors until a full jury is

selected. It could also consider seating potential and selected jurors in the courtroom 

gallery, with sufficient space to encourage social distancing. The Court may direct the use 

of transparent plastic or plexiglass screens where possible to minimize interactions between 

court staff and attorneys. (See Ex. A at 2.) The jury could take breaks and deliberate in a 

spacious, unused courtroom that will allow jurors to remain much more than six feet apart 

at all times. (See Ex. A at 2.)

The government recommends that that the Court make available to potential jurors 

personal protective equipment, including face masks and/or transparent face shields, or 

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require jurors to bring and wear their own face coverings. 

There are options for the Court to reimburse jurors for parking to avoid issues related 

to public transportation, and safely provide lunch or ask jurors to bring their own food as 

well as determine where jurors can eat lunch and maintain social distancing.

The Court may instruct jurors via closed circuit video or in pre-recorded instructions 

to shorten the length of time in court. The parties can evaluate which rooms will allow for 

safe social distancing during deliberations, including clearing the courtroom for 

deliberations and using microphones or other means of amplifying voices to ensure 

effective communication among jurors.

D. Use of the Special Proceedings Courtroom or Other Measures Can 

Ameliorate Many of Defendants’ Health and Safety Concerns.

The United States respectfully requests that the Special Proceedings Courtroom

(SPC) in the Phoenix Courthouse be considered as a possible venue for the trial given the 

larger number of trial participants involved in this case. The government understands that 

the SPC is currently utilized for VTC proceedings, along with another VTC-equipped 

courtroom, and the government is cognizant of the Court’s need to balance a large number 

of competing considerations in determining how to allocate and utilize the Phoenix 

Courthouse’s resources. Nevertheless, and for several reasons, the United States 

respectfully suggests that the SPC may be ideally suited for the trial in this case.

As the Court knows, the Special Proceeding Courtroom is being utilized for jury 

trials in the Tucson Courthouse. (General Order 20-26 at 5.) The Phoenix SPC has a much 

larger seating capacity than the standard courtrooms in the Phoenix Courthouse, allowing 

for greater social distancing among numerous trial participants. The SPC can be accessed 

via a single flight of stairs, reducing the need for trial participants to access limited elevator 

space. The SPC has an open ceiling that reaches several stories high, facilitating air flow 

and circulation. The large juror assembly room is in close proximity, immediately 

downstairs from and underneath the SPC, and it could be utilized by the jurors during 

breaks and lunch. The SPC’s upstairs viewing platform allows for social distancing among 

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members of the public and press choosing to observe trial proceedings, and it could be used 

by itself or in conjunction with overflow space in another room where members of the

public and press could view courtroom proceedings via closed-circuit video.

Perhaps most importantly, use of the SPC would prevent the expected 12-week trial 

in this case from monopolizing one of the two courtrooms that have been retrofitted for 

holding jury trials consistent with General Order 20-26.

2

 

If use of the SPC is not feasible, the United States respectfully requests that trial 

take place in one of the other courtrooms that the Court has designated for jury trial use.

Regardless of the courtroom used, the government recommends that the Court 

conduct a walkthrough or mock trial with the parties and court personnel to identify issues 

with social distancing and protecting the safety of participants. To maximize social 

distance during the course of trial, the parties should plan ahead regarding seat 

arrangements for counsel, Defendants and support staff to maintain social distancing. 

The parties, at the direction of the Court and the General Services Administration, 

can evaluate plans for sanitizing court facilities throughout the phases of the trial and the 

Court can communicate safety measures to prospective jurors in advance.

E. Defendants’ Concerns Regarding Witnesses, Masks, Evidence Presentation 

and Other Courtroom Issues Can Be Addressed by Measures Adopted by Other Courts and Contemplated by General Order 20-26.

The parties may coordinate with potential witnesses as early as possible regarding 

service of subpoenas and transportation issues, and discuss any health concerns, risk

factors, travel restrictions, or state or local quarantine requirements. Here, the government 

intends to call approximately 100 witnesses. At the moment there are no governmentimposed travel restrictions that would prevent the witnesses to be present for the currently 

 

2 The United States notes that General Order 20-26 contains differing statements regarding multi-defendant cases. A sentence on page three provides that “Multi-defendant 

proceedings such as operation streamline and the Court’s flip-flop calendar remain canceled until further notice.” (General Order 20-26 at 3.) However, the next page contemplates the seating of more than one attorney and client at counsel table in multi- defendant cases. (Id. at 4.) Moreover, the Order only specifically addresses trials in June and July. (See id. at 2.) 

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scheduled August trial or a trial later this fall. In any event, this is an issue for the 

government to resolve. Defendants’ witnesses will not being testifying until a later point 

in the trial, allowing for additional time to assess any COVID-19 concerns.

The government recommends that witnesses not wear face coverings while 

testifying to avoid constitutional issues. General Order 20-26 expressly allows for witness 

testimony without masks at the Court’s direction, provided that appropriate social 

distancing or other protective measures are allowed. (General Order 20-2 at 4.) Moreover, 

the Court and the parties can consider alternative ways of protecting witnesses and other 

trial participants, including by providing additional space and using plexiglass screens or 

transparent face coverings. (See Ex. A at 1-2 (discussing rolling plexiglass screens)); see 

also Maryland v. Craig, 497 U.S. 836, 850 (1990) (“[A] defendant’s right to confront 

accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial 

only where denial of such confrontation is necessary to further an important public policy 

and only where the reliability of the testimony is otherwise assured.”); id. at 857 

(concluding that “where necessary to protect a child witness from trauma that would be 

caused by testifying in the physical presence of the defendant, at least where such trauma 

would impair the child’s ability to communicate, the Confrontation Clause does not 

prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures 

the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby 

preserves the essence of effective confrontation”). But see Coy v. Iowa, 487 U.S. 1012, 

1021 (1988) (holding that the placement of screen between defendant and child sexual 

assault victims during their testimony at trial violated defendant’s right to face-to-face 

confrontation under confrontation clause). Courts have approved of additional 

circumstances in which witnesses may testify with face coverings or disguises, including 

protecting the identity of agents or witnesses who fear reprisal from gangs. See, e.g. United 

States v. de Jesus-Castaneda, 705 F.3d 1117, 1120–21 (9th Cir. 2013); Moralez v. Artuz, 

281 F.3d 55, 60 (2d Cir. 2002).

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In addition, the government is open to witnesses appearing by video, or other than 

in-person, if there is a clear and unequivocal waiver to avoid running afoul of the 

Confrontation Clause. See United States v. Gigante, 166 F.3d 75, 79–80 (2d Cir. 1999) 

(admission of witness’s testimony via two-way, closed-circuit television from a remote 

location did not violate defendant’s right of confrontation, where witness was fatally ill 

and was part of witness protection program, and defendant was too ill to participate in 

distant deposition); United States v. Yates, 438 F.3d 1307, 1312–13 (11th Cir. 2006) (en 

banc) (“[a] defendant’s right under the Confrontation Clause to confront accusatory 

witnesses may be satisfied, in the absence of physical, face-to-face confrontation at trial, 

only where denial of such confrontation is necessary to further an important public policy, 

and only where reliability of testimony is otherwise assured.”; allowing the government to 

present testimony by video teleconference was not necessary to further any important 

public policy and violated defendants’ rights); see also United States v. Carter, 907 F.3d 

1199, 1208 (9th Cir. 2018) (holding in prosecution for sex trafficking with minors that the 

fact that one alleged, now-adult victim was seven months pregnant and unable to travel 

due to complications associated with her pregnancy did not support finding of necessity, 

such as would permit court to impinge on defendant’s right to physically confront witnesses 

against him by allowing this witness to testify remotely by two-way video conference).3

Here, the parties have exchanged witness and exhibit lists many months before trial 

and the government will continue to send updated lists to Defendants. The government has 

filed a motion to admit certain categories of evidence in an effort to narrow evidentiary 

issues and facilitate the introduction of uncontested exhibits outside the presence of the

jury. (CR 916). This will minimize the use of sidebars by handling evidentiary issues 

during breaks outside the presence of the jury. The government also recommends using 

microphones at counsel table to conduct conferences or sidebars. Further, the government 

 3 Although the government does not anticipate any serious issues with in-court 

identification (identification is not a defense raised in this case), it is open to considering alternative procedures or stipulations for in-court identifications if the participants are 

wearing face coverings.

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intends to utilize technology to minimize the need to approach witnesses or handle physical 

exhibits. This will essentially be a paperless trial as each exhibit will be presented by a 

trial presentation software (Trial Director) or the document camera (Elmo). The parties 

could evaluate technological options to ensure jurors can effectively review evidence (preloaded iPads for deliberation, the use of Jury Evidence Recording System (JERS), 

computer and thumb drives, etc.), including digital evidence, in courtrooms reorganized 

for social distancing. (See also Ex. A at 1-2.)

The government is mindful of the need for Defendants and counsel to have 

adequate opportunity to consult with one another throughout the trial. Cases have approved 

seating arrangements that separate defendants from counsel as long as they can consult 

freely during trial. See, e.g., United States v. Levenite, 277 F.3d 454, 465–66 (4th Cir. 

2002) (the placement of defendants six feet behind their counsel did not deny them the 

assistance of counsel, in violation of the Sixth Amendment, where counsel and client were 

free to consult throughout the trial, and there was no evidence that either defendant’s ability 

to communicate with his attorney and assist in his defense was impaired); United States v. 

Balsam, 203 F.3d 72, 81–82 (1st Cir. 2000) (defendants seated four to five feet from 

defense table and permitted to “consult freely” with counsel were not denied assistance of 

counsel); United States v. Jones, 766 F.2d 994, 1004 (6th Cir. 1985) (in a trial of 18 

defendants where the defendants were seated in two rows behind counsel’s table, there was 

no Sixth Amendment violation because defendants were able to communicate with their 

attorneys during trial). The Court could explore other solutions, such as allowing defense 

counsel to use the interpreter headsets in the courtroom to communicate with their clients

while maintaining adequate distance between one another. (See Ex. A at 2). 

F. Public and Press Access Can and Should Be Safeguarded.

To safeguard the public’s and Defendants’ rights to an open and public trial, and 

also allow safe access for victims and trial participants, the government recommends that 

the Court and parties evaluate options for social distancing within the courtroom. See, e.g.,

Presley v. Georgia, 558 U.S. 209, 215 (2010) (“Trial courts are obligated to take every 

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reasonable measure to accommodate public attendance at criminal trials.”). In addition to 

a defendant’s right to a public trial under the Sixth Amendment, the Supreme Court has 

“further held that the public trial right extends beyond the accused and can be invoked 

under the First Amendment.” Id. at 212 (citations omitted); see also Richmond 

Newspapers, Inc. v. Virginia, 448 U.S. 555, 569 (1980) (plurality) (summarizing the 

evolution of the criminal trial and concluding that trials have “long been presumptively 

open”). Again, the SPC is a larger space that can accommodate more spectators and allow

for greater social distancing. Another option to facilitate public access would be to set up 

a closed-circuit broadcast of proceedings available in a separate room if there is insufficient 

space to allow adequate social distancing for the public in the courtroom. 

II. AN INDEFINITE OR PROLONGED CONTINUANCE WOULD BE 

HIGHLY PREJUDICIAL TO THE GOVERNMENT.

The other Flynt factors—none of which Defendants argue—all militate against a 

continuance. Flynt, 756 F.2d at 1358-62. Defendants have not shown how their diligence 

justifies further delay; the sole rationale for their motion is a circumstance outside of the 

control of any party—COVID-19. Nor have Defendants demonstrated the usefulness of a 

continuance. Their motion is devoid of constructive (or any) suggestions for ameliorating 

the concerns outlined in their brief. 

Finally, Defendants’ suggestion that the United States and its witnesses will not face 

any prejudice from indefinite delay is disingenuous. (See Mot. at 17.) To be sure, the 

United States acknowledges that the Court may need to accommodate other cases involving 

in-custody defendants that take precedence over this out-of-custody defendant case. The 

government also understands a short continuance of the August trial date might be needed 

to implement procedures that will ensure, to the greatest extent possible, the safety of 

everyone involved in this trial. Nevertheless, a prolonged delay (or the indefinite 

continuance Defendants request) would be highly prejudicial to the United States and its 

witnesses. 

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This case has been pending for over 26 months. The defense has already sought 

and received three continuances. The government has the burden of proof at trial and has 

expended significant resources with the expectation that trial will begin in August. Over 

time, memories can fade, and other circumstances can arise that make it more difficult for 

victims and other witnesses to testify at trial. As the Court recognized in its Order granting 

Defendant’s third request for continuance, four months ago, both victims and the public 

have a right to proceedings free from unreasonable delay under the Crime Victims’ Right 

Act. (CR 893 at 5.) The Court further recognized “[a] continuance clearly inconveniences 

the government’s witnesses.” (CR 893 at 5.) The Court also stated, and the government 

agrees, “[a] continuance may represent far more than mere inconvenience” to victims—

particularly the victims who have already waited more than two years for their day in court. 

(CR 893 at 5.) The Court, the victims, witnesses, the government, and the public all have 

an abiding interest in certainty, finality and closure in this long-pending case.

CONCLUSION

Defendants’ motion to indefinitely continue the August 17, 2020 trial date should 

be denied. The government is confident that the Court and the parties can implement 

procedures that will ensure, to the greatest extent possible, the safety of everyone involved 

and will, at the same time, enable the justice system to continue to operate. Accordingly, 

the government respectfully requests that the Court proceed with trial as scheduled, or 

provide a brief continuance and reset trial for a date certain in the fall of 2020. If necessary, 

the Court could hold periodic status conferences until the trial date to discuss further 

safeguards and facilitate trial.

Respectfully submitted this 12th day of June, 2020.

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

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JOHN J. KUCERA

Special Assistant U.S. Attorney

BRIAN BENCZKOWSKI 

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

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/ Marjorie Dieckman

Marjorie Dieckman

U.S. Attorney’s Office

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