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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

v. 

Michael Lacey, et, al.,

Defendants.

No. CR-18-00422-PHX-DJH

ORDER 

Before the Court is Defendant Vaught’s Objection and Motion to Vacate the FryeCooper hearing set for August 18, 2023, before U.S. Magistrate Judge Deborah Fine. (Doc. 

1681; see also Doc. 1648 at 17). Defendants Brunst, Lacey, and Padilla have joined in the 

Motion. (Docs. 1684, 1687, and 1690). The Government filed its Response (Doc. 1693).

1

For the following reasons, the Court overrules the Defendants’ objections and denies the

Motion to Vacate. The August 18, 2023, Frye-Cooper hearing set before U.S. Magistrate 

Judge Deborah Fine is confirmed.

I. Discussion

In Missouri v. Frye, the Supreme Court recognized that the plea-bargaining process 

is a critical stage implicating a defendant’s Sixth Amendment rights. 566 U.S. 134, 137

(2012). See also Lafler v. Cooper, 566 U.S. 156, 163 (2012) (same). So, defense counsel 

must provide adequate assistance to their clients in the plea-bargaining process. Id. 

1 No Reply was permitted. (Doc. 1688).

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Generally, “defense counsel has the duty to communicate formal prosecution offers to 

accept a plea on terms and conditions that may be favorable to the accused.” Frye, 566 

U.S. at 145. The Frye Court explained that “[t]he prosecution and trial courts may adopt 

some measures to help ensure against late, frivolous or fabricated claims” that defense 

counsel was ineffective in the plea-bargaining process. Id. at 146. Moreover, the Court 

recognized that “formal offers can be made part of the record at any subsequent plea 

proceeding or before trial to ensure that a defendant has been fully advised before the later 

proceedings commence.” Id. 

To protect these important Sixth Amendment rights, this district, including this 

Court, has a routine process of scheduling Frye-Cooper hearings. The hearing consists of

the Government placing on the record the terms of the plea agreement offered, including 

the deadline for acceptance. The court asks whether the defendant received the offer, 

understood its terms and whether the defendant knowingly rejected it. See OntiverosPonce v. Ryan, 2019 WL 3557602 at *2 (D. Ariz. June 10, 2019). This Court routinely 

refers Frye-Cooper hearings to U.S. Magistrate Judges. Requests for these hearings come 

from Government and defense counsel alike.

Defendants argue that requiring them to participate in a Frye-Cooper hearing would:

1) present issues regarding what constitutes an adequate record under Frye; 2) present 

issues of intimidation and interference in the attorney-client relationship, and 3) present 

issues regarding the limits Fed. R. Crim. P. 11 places on the Court’s involvement in plea 

negotiations. (Doc. 1681 at 2). The Government, in its Response, states that it “has a 

substantial interest in making a record of plea offers that have been formally conveyed to 

a defendant and rejected” to guard against future claims of ineffective assistance of 

counsel. (Doc. 1693 at 4). The Court agrees. 

The concise inquiry of the court — whether the plea offer was made and conveyed, 

whether the defendant understood its terms, and rejected them — meet the contours of 

acceptable procedure under Frye. 132 S. Ct. at 1402. Thus, Defendants concerns about 

whether an adequate record is made is a non-issue. To safeguard against the issues of 

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“intimidation and interference in the attorney-client relationship,” the Frye-Cooper hearing 

does not include an inquiry about the details of conversation between the attorney and 

client, whether or not defense counsel advised him or her to accept or reject the plea terms, 

nor whether a counteroffer was made. Finally, concerns about involving this Court in plea 

negotiations is alleviated by having a disinterested U.S. Magistrate Judge conduct the FryCooper proceeding. 

II. Conclusion

For the above-mentioned reasons, IT IS ORDERED denying the Defendants’ 

Motion (Doc. 1681).

Dated this 11th day of August, 2023.

Honorable Diane J. Humetewa

United States District Judge

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