UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

_________________

United States of America, )

) No. CR-18-0422-PHX-SMB

Plaintiff, )

)

vs. ) Phoenix, Arizona

) January 4, 2021

Michael Lacey, ) 11:21 a.m.

James Larkin, )

Scott Spear, )

John Brunst, )

Andrew Padilla, )

Joye Vaught, )

)

Defendants. )

_____________________________ )

BEFORE: THE HONORABLE SUSAN M. BRNOVICH, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS

TELEPHONIC STATUS CONFERENCE

Official Court Reporter:

Christine M. Coaly, RMR, CRR

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

401 West Washington Street, Spc 37

Phoenix, Arizona 85003-2151

(602) 322-7248

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:

U.S. ATTORNEY'S OFFICE

By: Mr. Peter S. Kozinets

Mr. Kevin M. Rapp

Ms. Margaret Wu Perlmeter

Mr. Andrew C. Stone

40 North Central Avenue, Suite 1200

Phoenix, Arizona 85004

U.S. ATTORNEY'S OFFICE

By: Mr. Daniel G. Boyle

312 North Spring Street

Los Angeles, California 90012

U.S. ATTORNEY'S OFFICE

By: Mr. Reginald E. Jones

1400 New York Avenue NW, Suite 600

Washington, D.C. 20530

For the Defendant Lacey:

LIPSITZ GREEN SCIME CAMBRIA

By: Mr. Paul J. Cambria, Jr.

Ms. Erin E. McCampbell

42 Delaware Avenue, Suite 120

Buffalo, NY 14202

For the Defendant Larkin:

BIENERT KATZMAN

By: Mr. Thomas H. Bienert, Jr.

903 Calle Amanecer, Suite 350

San Clemente, CA 92673

For the Defendant Spear:

FEDER LAW OFFICE

By: Mr. Bruce S. Feder

2930 East Camelback Road, Suite 160

Phoenix, AZ 85016

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For the Defendant Brunst:

BIRD MARELLA BOXER WOLPERT NESSIM DROOKS

LINCENBERG & RHOW

By: Mr. Gopi K. Panchapakesan

Mr. Gary S. Lincenberg

1875 Century Park E, Suite 2300

Los Angeles, CA 90067

For the Defendant Padilla:

DAVID EISENBERG, PLC

By: Mr. David S. Eisenberg

3550 North Central Avenue, Suite 1155

Phoenix, AZ 85012

For the Defendant Vaught:

JOY BERTRAND, LLC

By: Ms. Joy M. Bertrand

P.O. Box 2734

Scottsdale, AZ 85252

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P R O C E E D I N G S

COURTROOM DEPUTY: On the record in CR 18-422, United

States of America versus Michael Lacey and others, before the

Court for a status conference.

Counsel, please announce.

MR. KOZINETS: Good morning, Your Honor. This is

Peter Kozinets for the United States. With me on the phone is

Kevin Rapp, Reginald Jones, Margaret Perlmeter, Andrew Stone,

and Daniel Boyle.

MR. BIENERT: I guess I'll go first, Your Honor.

Good morning, Your Honor. This is Thomas Bienert on

behalf of defendant James Larkin, who I believe is on the phone

as well.

THE COURT: Okay. And for Mr. Lacey.

MR. CAMBRIA: Yes. Paul Cambria and Erin McCampbell

on behalf of Mike Lacey, who is also on the phone, Your Honor.

MR. FEDER: Bruce Feder for Scott Spear, who is also

on the line. Thank you.

Good morning, Your Honor.

THE COURT: Good morning.

MR. LINCENBERG: Your Honor, Gary Lincenberg and Gopi

Panchapakesan for Mr. Brunst.

MR. EISENBERG: And good morning, Your Honor. This is

David Eisenberg on behalf of Andrew Padilla. We waive his

appearance. He is not on the line.

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THE COURT: Okay.

MS. BERTRAND: Good morning, Your Honor. Joy Bertrand

appears for Joye Vaught. We waive her appearance. She is not

on the line. Thank you.

THE COURT: Okay. And I think that should be

everybody.

We're set for a status conference. I just said that

last time we talked I said I'd set a status conference so we

could see if the Ninth Circuit was moving forward. I have seen

that they have moved forward and a response and a reply have

been filed to the petition for writ.

Mr. Bienert, do you have any indication of if they're

going to have oral argument, do they normally on this; and, if

not, what do you expect?

MR. BIENERT: First of all, I've had no indication

whether, in this case, they plan on having oral argument. In

the very few mandate -- writ of mandate kind of entering type

of appellant matters I've had in my 30 years, there's probably

been three or four, I think I've had oral argument in all of

them, so I think they probably would, but it's just nothing

more than that, Your Honor. I don't know one way or the other.

THE COURT: Okay. Mr. Kozinets.

MR. KOZINETS: Yes, Your Honor. We have also seen no

indication yet regarding oral argument. My understanding is

that the motions panel will review the briefs and they could

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either decide this on the papers or set it for oral argument.

Under either scenario, we don't really have any way of knowing

the time line for when they ultimately would make a decision.

THE COURT: Okay. Well, we have a trial coming up in

April. I have sort of held off on issuing any rulings because

this is pending, even though I didn't grant the stay, which

I'll probably do for another couple of weeks to see if there is

any movement. And then at some point I'll just resume, because

I know you guys need the rest of the rulings before we proceed.

So I don't see the need to set another status

conference. We have some idea of what's going on, it just

depends on how fast they're going to move.

Do the -- do you have anything to add for the defense,

Mr. Bienert?

MR. BIENERT: Yes, Your Honor. I would say, just

trying to be practical, I think the elephant in the room, in

addition to what happens on the merits, if they address the

merits of the motion, is the whole COVID scenario, coupled

against the fact that we have an unusually, at least,

potentially, long and complex trial. With the government, I

think they're at 98 declared witnesses. Now, Your Honor has a

lot of motions. I think it's going to be hotly contested how

long the trial should actually be, but this is a long lead item

trial.

I go back to Your Honor's order, which I think was in

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June, you know, basically, a significant factor in that need to

continue was just the issues of can we guarantee safety of

everyone with COVID flaring, given that we'll probably have 40-

plus people in the courtroom every day. And while I am out of

state, I certainly know that nationally COVID is a lot worse

now than it was in June. And I believe, based on what I'm

seeing online, the same is true in the Phoenix and Arizona

areas.

I think, number one, I think we should have the stay.

I think, though, what makes the most sense would be to do one

of two things. And that is either to just issue a stay and

vacate a trial date with an order that says something like,

we'll have a status conference, you know, 14 days after the

Ninth Circuit issues a ruling, or if Your Honor wants a set

date, we at least move things back several months to another

date. That at least gives us all a better ability to target

for preparation, et cetera.

Because, again, it's just a -- it's a big undertaking

to have everyone lined up to actually go to trial. So I think

that would make more sense than sort of delaying things a few

weeks at a time, but I just think that the more we can focus on

a date or a range of dates, the better it is for all parties in

terms of preparation.

THE COURT: Okay. Well, I am not granting a stay. We

already went through that analysis. I don't think anything has

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changed.

With respect to the trial date, a lot can happen in a

couple of months. If you would like me to entertain a motion

to continue, I'd ask that you file it in writing so the

government can respond, and I can reconsider the COVID issues,

which I have been all along, and will continue to, but, as you

know, we've opened up; we've closed; we've opened up.

I had no issues with jury trials while we were -- in

the three that I handled while we were open. I understand that

this one is a little more difficult because there is more

participants, but -- so if you want me to reconsider that, feel

free to file a motion. Okay?

Mr. --

MR. BIENERT: Yes, Your Honor. Understood.

THE COURT: Thank you.

MR. BIENERT: And the only thing I would say -- and,

again, it's probably self-evident because we all are closely

monitoring the news. I would say the one thing that has

changed is at least I think we're all optimistic that because

of the vaccine, and at least what we're assuming, if we believe

the various press accounts, the game changer here I think is

the vaccines. And it sure looks like everybody is assuming

vaccines will be widely available by the summer.

And so the only reason, to me, things are a little

different -- because I agree with Your Honor, it's kind of hard

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to live life, much less run a court, with the start/stop,

start/stop cycles we have. But it just strikes me, as a

practical matter, that the vaccine situation means that by

summer, some point in the summer, there is going to be enough

people vaccinated that we should all think with a pretty high

degree of confidence we're going to be able to go about our

business in court. But that, until then, we're going to always

be in limbo, and it just makes more practical sense to set

something for after the summer, presuming vaccine rate.

But other than pointing out that practical point, Your

Honor, I understand your view, and that we will certainly make

something in writing if we collectively want to do that.

THE COURT: Okay. Let me just go through.

Mr. Cambria, is there anything you want to say?

MR. CAMBRIA: No, Your Honor. I, being in New York,

New York, and the west coast, we're up to our ears in COVID.

And I see the numbers are worse in Phoenix than they were when

you visited this issue the first time, so I think that it makes

sense for us to file a motion with the support, including the

statistics and some of the other unique aspects of this, and

then move forward that way makes sense to me.

THE COURT: Mr. Feder.

MR. FEDER: I join in the comments, Judge. The Court

already knows of the somewhat unique medical concerns that my

client, myself, and others -- and others, other clients and

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lawyers involved have with the coronavirus, and that will be

reiterated in any motion filed.

THE COURT: Mr. Eisenberg.

MR. EISENBERG: Thank you, Your Honor. I would just

point out that based upon the Maricopa County civic website,

civic alert website, as of right now, phase two of the

vaccines, which is going to cover the general population, is

scheduled between spring 2021 and summer 2021, phase three,

which is -- also covers the general population, summer 2021 and

beyond. So I'm sure if we do file a motion to continue, it's

going to be based in great part on what the county is

projecting, and most of our jury pool -- well, much of it would

be coming from Maricopa County.

Thank you, Your Honor.

THE COURT: Ms. Beltrand -- Bertrand. Sorry.

MS. BERTRAND: Your Honor -- that's okay. I -- I join

with my colleagues about the concern, not just for a smooth

trial, but really for the safety of all involved. And until

everyone, or at least the bulk of the community has been

vaccinated, I can't imagine a way we could safely run a trial

with this many people involved. And it's not just that there

is a number of witnesses, it's that there is so many that have

to travel from out of state to appear. So that would be my

only additional comment. I join with my colleagues.

THE COURT: Okay.

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MR. LINCENBERG: Your Honor, Gary Lincenberg on behalf

of Mr. Brunst. I think you accidentally skipped over us.

I would join in the comments and only point out that,

although there is a lot of uncertainty here, the sooner some

date is -- if this is going to be pushed, for example, to

whenever it is, the better, because I have two trials that keep

getting pushed that are supposed to be happening before this

trial. And as I go into court and December dates get pushed to

January, get pushed to February, and there is this rolling

along, and I don't really know what to do if they then say

they're going to move it to March, which rolls into April.

And this one in particular being a very lengthy trial,

it probably makes sense to set a date, perhaps in September

when we are quite confident, because of the vaccination

situation and the like, that -- with so many different counsel

in the court, we could schedule it.

THE COURT: Okay. And from the government.

MR. KOZINETS: Yes, Your Honor. This is Peter

Kozinets.

I think it's really too early to tell, you know,

whether -- and -- and, you know, a continuance would be

warranted -- how long of a continuance. The news changes from

week to week. The vaccines are starting to roll out now. And

I think that, you know, if there is briefing on this, we can,

you know, think about it more and address it further down the

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line.

With that said, I would also invite Kevin Rapp from

the government to chime in, as he may have further insight on

this issue.

MR. RAPP: I really don't have anything to add. We

have been tracking similar cases across the country. Many of

those cases are set for the March and April time period, and

they happen to be in districts that have the same numbers of

COVID cases as the District of Arizona, and in some cases even

more. And so I think it's fair to say that the trend is, is

that the courts are wanting to see even these complex trials

start sooner rather than later.

We -- we're happy to take a look at any motion the

defense files and we will respond in kind.

Nothing -- nothing further.

THE COURT: Okay. Thank you, everybody. We're at

recess.

(Proceedings concluded at 11:35 a.m.)

* * *

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C E R T I F I C A T E

I, CHRISTINE M. COALY, 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 19th day of January,

2021.

/s/ Christine M. Coaly_______

Christine M. Coaly, RMR, CRR

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