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Case No. 2:18-cr-00422-PHX-SMB

REPLY IN SUPPORT OF MOTION TO DISMISS BASED ON OUTRAGEOUS GOVERNMENT MISCONDUCT 

Thomas H. Bienert, Jr. (admitted pro hac vice) tbienert@bmkattorneys.com 

Whitney Z. Bernstein (admitted pro hac vice) wbernstein@bmkattorneys.com 

BIENERT | KATZMAN, PC 

903 Calle Amanecer, Suite 350

San Clemente, CA 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

Attorneys for James Larkin

Paul J. Cambria, Jr. (admitted pro hac vice) pcambria@lglaw.com 

Erin McCampbell (admitted pro hac vice) emccampbell@lglaw.com 

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120 

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

Attorneys for Michael Lacey

Additional counsel listed on next page

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Michael Lacey, et al.,

Defendants. 

CASE NO. 2:18-cr-00422-PHX-SMB

DEFENDANTS LACEY, LARKIN, 

BRUNST, AND SPEAR’S REPLY IN 

SUPPORT OF MOTION TO DISMISS 

BASED ON OUTRAGEOUS 

GOVERNMENT MISCONDUCT 

INVADING ATTORNEY-CLIENT 

PRIVILEGE

[ORAL ARGUMENT REQUESTED]

Assigned to Hon. Susan M. Brnovich

Courtroom 506

Trial Date: August 17, 2020

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Case No. 2:18-cr-00422-PHX-SMB

REPLY IN SUPPORT OF MOTION TO DISMISS BASED ON OUTRAGEOUS GOVERNMENT MISCONDUCT

Gary S. Lincenberg (admitted pro hac vice) 

 glincenberg@birdmarella.com 

Ariel A. Neuman (admitted pro hac vice) aneuman@birdmarella.com 

Gopi K. Panchapakesan (admitted pro hac vice) gpanchapakesan@birdmarella.com

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW, P.C.

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: (310) 201-2100

Facsimile: (310) 201-2110

Attorneys for John Brunst

Bruce Feder (AZ Bar No. 004832) 

 bf@federlawpa.com 

FEDER LAW OFFICE, P.A.

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

Telephone: (602) 257-0135 

Attorney for Scott Spear 

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1 Case No. 2:18-cr-00422-PHX-SMB

REPLY IN SUPPORT OF MOTION TO DISMISS BASED ON OUTRAGEOUS GOVERNMENT MISCONDUCT 

I. INTRODUCTION1

The government does not dispute: (1) the lawyers whose communications and advice are at 

issue represented Defendants and/or their companies (and, in some cases, also Backpage); (2) the 

government repeatedly interrogated Ferrer about communications with those lawyers despite being 

informed repeatedly, by letters and court filings, that neither Backpage nor Ferrer could waive the 

privilege as to those lawyers; (3) at the same time it was interrogating Ferrer, the government sought 

Court approval to access Defendants’ privileged communications with those same lawyers (among 

others) based on Ferrer’s purported written waiver of privilege and on various other waiver theories

(Dkt. 195); (4) during the hearing on the government’s motions, when Defendants expressed concern 

that the government might already be invading the very same privileges through its questioning of 

Ferrer, the government withheld from the Court that it was already doing so; (5) Judge Logan rejected 

the government’s waiver theories, holding that Defendants’ joint representation and joint defense 

agreements with Backpage are “valid and enforceable” (Dkt. 338 (“Logan Order I”) at 6) and that 

“the Government cannot use Ferrer’s written waiver of attorney-client privilege to circumvent the 

terms of the JDA” (Dkt. 345 (“Logan Order II”) at 4-7); and (6) despite that ruling, the government 

nonetheless intentionally continued to question Ferrer about communications with Defendants’ 

lawyers for another six months. 

The Response instead is just a thinly-veiled request for reconsideration of Judge Logan’s 

orders, combined with baseless theories of waiver, such as that taking a position in litigation or 

correspondence waives the attorney-client privilege (without explaining why the government failed 

to assert those theories two years ago in its failed waiver motion). These theories are combined with 

the equally baseless claim that the government interrogated Ferrer only about non-privileged 

communications with counsel. Incredibly, the government even argues that Ferrer’s statements do 

not reveal privileged communications because he merely shared his “memories” of privileged 

1 On June 10, 2020, the Court vacated the oral argument that had been set on June 19, 2020, for this 

motion. Dkt. 1017. The Court did so shortly after Defendants’ request to hold the argument via 

video conference in light of the ongoing COVID-19 pandemic. Defendants object to the cancellation 

of the oral argument and request that it be rescheduled for a video conference hearing consistent with 

General Order 20-26 (May 28, 2020).

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communications, rather than sharing emails or memoranda. Resp. at 1, 9.

Defendants made a prima facie showing that the government intentionally invaded their 

privileged communications, as required under United States v. Danielson, 325 F.3d 1054, 1071 (9th Cir.

2003), as amended (May 19, 2003). Having done so, “the burden shifts to the government to show 

that there has been . . . no prejudice to the defendant[] as a result of these communications.” Id. at 

1071. The government bears a “heavy burden.” Id. at 1072. The government’s attempt to parse 

what it calls “typical privileged material, i.e. emails, memoranda, recordings or other items revealing 

the substance of confidential communications between and attorney and client,” versus Ferrer’s 

unrecorded oral statements about such communications, has no basis in law. Resp. at 1. The same 

is true of the government’s attempt to argue Judge Logan’s order was “limited” and prevented the 

government from accessing only privileged written communications, but not privileged oral

communications. Resp. at 2. Indeed, the government’s choice to invade Defendants’ privileges orally, 

so the only records of its invasions would be its own self-serving MOIs, just underscores the need 

for heightened judicial scrutiny and putting the government to the “heavy burden” of proving

Defendants were not prejudiced. The Court should exercise both its role as guardian of a defendant’s 

constitutional rights as well as its inherent supervisory powers to send a strong message that such 

misconduct will not be tolerated. 

II. ARGUMENT

A. The Government Intentionally Obtained Defendants’ Privileged 

Communications.

The government argues that Ferrer’s statements cannot be deemed to reveal privileged 

communications because Defendants did not sufficiently identify the basis for the privilege, citing 

United States v. Ruehle, 583 F.3d 600 (9th Cir. 2009). Resp. at 9. Ruehle was an options backdating case 

in which Broadcom’s CFO claimed that his communications with company counsel were privileged. 

The court held that the CFO’s communications were not privileged because they were for the purpose 

of disclosure to the company’s outside auditors and therefore were not “made in confidence.” Id. at 

609. There is no parallel to the present case. The Ferrer MOIs reveal that the government elicited 

privileged communications clearly made in confidence, some to assess the propriety of business 

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3 Case No. 2:18-cr-00422-PHX-SMB

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conduct and others in anticipation of negotiations with adversaries or in anticipation of (extensive) 

litigation. See Under Seal and In Camera Declaration of James C. Grant, Dkt. 180-1 at ¶¶ 3-21 (“Grant 

Decl.”); Under Seal and In Camera Declaration of James Larkin (“Larkin Decl.”). 

Citing to Ruehle, the government argues that Defendants fail to answer four key questions to 

establish privilege: (1) “Which attorney was representing which party when the communications were 

made?”’ (2) “Was it a privileged communication because of the JDA or some other reason?”; (3) 

“Was the attorney a party to the JDA, if not, how is the statement privileged?”; and (4) “Did the 

statement reflect legal or business advice?” Resp. at 9. In fact, these questions have been answered 

repeatedly. First, the MOIs set forth the attorneys involved, the topics raised and advice given, and 

the questions posed and practices analyzed. The Motion noted that all of these attorneys “were 

Defendant’s lawyers who were in a joint defense arrangement with Ferrer/Backpage or were both 

Defendants’ counsel and Backpage’s counsel” subject to a joint representation agreement. Mot. at 9; 

see also Dkt. 226; Grant Decl. at ¶¶ 3-21. It also explained, at length (as did Dkt. 226), that Ferrer 

could not waive the privilege as to any of these communications because of the joint representation 

and common interest agreements, as previously determined by Judge Logan. Id.; see also Larkin Decl. 

Second, the government has previously recognized that communications with these lawyers 

were at least potentially privileged such that the prosecution team could not access them at their 

whim, and, when it suited the government’s purpose, it has acknowledged that these lawyers 

represented Defendants or their companies. See, e.g., Dkt. 524 at 4 (Filter Team would filter potentially 

privileged documents to look for each of these lawyers’ names); Dkt. 195 at 4 (“Steve Suskin, an 

attorney who served . . . as counsel to Village Voice Media Holdings”); Dkt. 925 at 2 (“Moon also 

had a personal attorney-client relationship with Defendants Lacey and Larkin.”), at 4 (“Defendants 

hired McDougall as general counsel in February 2012”), at 6 (arguing statements by Attorneys Suskin, 

Fifer, and Nigam are Defendants’ authorized admissions). 

Third, the nineteen examples of privilege invasions set forth in Defendants’ motion answer 

these questions on their face. The examples identified the attorneys involved, the topics on which 

legal advice was provided, and the advice given. For instance, the Motion showed that the 

government interrogated Ferrer about 

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5 Case No. 2:18-cr-00422-PHX-SMB

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The government suggests it questioned Ferrer only about Backpage’s “known business 

practices and public legal strategy,” id. at 1, but that suggestion is belied by the MOIs, which show 

repeatedly questioning of Ferrer about legal advice. Legal advice is privileged, even if it relates to 

“known business practices and public legal strategy.” See Upjohn, 449. U.S. at 389-90; Chen, 99 F.3d 

at 1501. The Motion and MOIs make clear that the government invaded Defendants’ privileges, 

while targeting legal advice underpinning key issues the government claims created criminal liability 

for Defendants, making the government’s conduct particularly pernicious. 

B. The Government Violated and Cannot Re-litigate Judge Logan’s Order. 

The government claims it could question Ferrer about communications with Defendants’ 

lawyers because Ferrer waived Backpage’s privilege. The government made the very same argument 

before (Dkt. 195 at 10), and Judge Logan rejected it and held that the government could not rely on 

Ferrer’s purported waiver. Logan Order II. Judge Logan ruled that Ferrer could not waive privilege 

without the consent of all parties to the joint representations and joint defense agreements (i.e. 

Defendants and their companies)—and he did not have that consent. Therefore, Judge Logan ruled 

that the parties’ agreements “prevent Ferrer from waiving Backpage’s attorney-client privilege.” Id. 

The government acknowledges its prior attempt to argue the very same theory it advances 

here, and Judge Logan’s rejection of that attempt, but claims the Court issued only a “limited order.” 

Resp. at 2. The government’s claim is apparently meant to suggest the Logan Order II applied only 

to written communications (Resp. at 2), though the government makes no substantive argument on 

this point (see id. at 13). Perhaps obviously, Judge Logan’s ruling that the parties’ joint representation 

and defense agreements were valid and precluded Ferrer from waiving privileges applies with equal 

force to all attorney-client communications in whatever form, whether written or oral. Indeed, in the 

government’s motion that Judge Logan denied, it specifically sought access to emails with the very same

attorneys about whom they subsequently questioned Ferrer. (Dkt 195 at 4.) Thus, the government 

clearly knew it was not permitted to invade these privileged communications based on Ferrer’s 

purported waiver. 

Judge Logan’s rejection of that motion meant that the government could not go into 

communications with these lawyers, period. In fact, Judge Logan concluded that, under the joint 

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6 Case No. 2:18-cr-00422-PHX-SMB

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representation agreements Ferrer and Backpage entered into, Ferrer could not waive privileges as to 

any of the attorneys at issue without the consent of the other jointly represented parties (including 

Messrs. Larkin and Lacey).4 For this reason, Judge Logan found it unnecessary to reach Defendants’ 

additional arguments that Ferrer as the acquiring party had no right to waive privileges as to third 

parties, because such privileges were jointly held with the selling companies. Logan Order II at 4, 

n.4. This is the law of the case. See Dkt. 226 at 16-18. Ferrer’s purported waiver was insufficient to 

give the government access to the privileged communications, and there is no cause to re-litigate it.5 

The government began its interviews of Ferrer by inappropriately and unilaterally invading

Defendants’ privileges without a court order allowing the invasion. United States v. Pederson, 2014 WL 

3871197 (D. Or. Aug. 6, 2014) (“It should go without saying that, regardless of the content, private 

communications between a defendant and his or her defense team should be treated as privileged 

unless otherwise ordered by the court.”). It then showed that it did so intentionally, when it flouted 

Judge Logan’s order and continued to invade the privilege again and again. Indeed, the government 

does not deny that it made no changes to its interview practices vis-à-vis Ferrer even after Judge 

Logan’s order issued.6 The government’s continued invasion of Defendants’ privileged 

communications after the Court ruled it could not access them was contemptuous and inexcusable, 

4 Judge Logan already rejected the government’s argument that the joint representation agreement 

was only “forward looking” (Resp. at 14) when he ruled that it applied to all communications with 

these lawyers. Logan Order II. 

5 For the same reason, the government’s argument that attorney conversations with 

Ferrer during the sale of Backpage were not privileged is incorrect. Moreover, as Defendants 

previously explained (Dkt. 226 at 4-5, 16-18) and Judge Logan accepted, communications with 

attorneys – even during the sale – were subject to the same restrictions under the Common Interest 

Agreement; Ferrer could not unilaterally waive those privileges. Thus, while the government argues 

that “no privilege could” cover such communications (Resp. 12-13), in fact, Judge Logan held exactly 

the opposite (Logan Order II). 

6 The government asserts it “admonished Ferrer to avoid divulging joint defense privileged 

information” (Resp. at 15), as if that somehow overrides Defendants’ challenges about what actually 

happened in the interviews, i.e., the government’s queries and discussions with Ferrer about obvious 

attorney-client communications. A lip-service admonishment to a cooperator bent on pleasing the 

government cannot excuse subsequent, blatant privilege invasions, especially when the invasions were 

so clear and continued even after Judge Logan ruled that the government could not undertake such 

invasions. 

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made even worse by the fact that, during the hearing before Judge Logan on October 5, 2018 (Dkt. 

348 at 91-92), the government intentionally sat silent when the question arose of whether the 

government already was accessing through its interviews of Ferrer the very same privileged 

information it sought permission from the Court to invade. 

C. Defendants Did Not Waive Privilege By Litigation, Memos, or Policies. 

The government claims Defendants waived the attorney-client privilege by taking successful 

legal positions in court to defeat claims parallel to those the government has asserted here and by 

asserting legal positions in this case. Resp. at 1, 10, 11. The government also asserts that letters or 

memoranda to third parties, and company policies, effectuated a similar waiver. Resp. at 11 (citing 

Gov Ex. A; 2/15/19 MOI ¶¶ 80(a)-(b) (Ex. 15); and 4/17/18 MOI ¶ 7(c) (Ex. 10)).7 The government 

offers no authority for its positions, because there is none.8 The government improperly conflates 

private attorney-client communications with an attorney’s public arguments or the other publiclystated positions of a company; neither waives the privilege as to attorney-client communications and 

work product simply because they relate to those positions. If the government was correct, and the

assertion of a legal position in litigation (or in public statements) effected a waiver of all underlying 

privileged communications, then Defendants would be entitled to obtain all internal DOJ 

communications about the government’s positions and theories reflected in the indictment, in the 

scores of pleadings in this case and related cases, and in public statements about those cases. Indeed, 

if the government was correct, the attorney-client privilege would be decimated, as acting on most 

legal advice would result in a waiver of the privilege. That is not the law. Clients often consult with 

attorneys to decide on positions to take in litigation or in other public fora. The attorney-client 

7 Government Ex. A is a letter from attorney to NCMEC. Nowhere in attorney 

letter does he disclose what he discussed with his clients, what those clients told him, and the legal 

advice that resulted. Instead, he advocates legal positions in an attempt to persuade NCMEC. 

Likewise, in regard to the circulated policy, it is not the attorney memorandum that was circulated 

widely, but a policy document that contained one point that was also in the attorney memorandum. 

8 In support of the assertion that circulating a policy waives the privilege, the government cites two 

cases that hold that a company policy is not privileged. Resp. at 11. These cases are irrelevant; it is 

the government’s admitted discussion with Ferrer of the privileged attorney communications, not the 

company policy, that was improper. 

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privilege and the work product doctrine are intended “to encourage full and frank communications.” 

Upjohn Co. v. United States, 449. U.S. 383, 389-90. The government’s position that taking a public

position waives the privilege and lays bare all attorney communications on the subject is nonsense.9 

C. The Government Cannot Escape Its “Heavy” Burden to Prove Lack of 

Prejudice or Shift that Burden to Defendants. 

The government seeks to flip its burden to the defense, arguing Defendants have not “proven” 

prejudice. The great difficulty for any defendant to prove prejudice in a scenario such as this is exactly 

why the Ninth Circuit puts the “heavy” burden of proving a lack of prejudice on the government. 

Danielson, 345 F.3d at 1071-72.10

The claim that Ferrer was not familiar with Defendants’ trial strategy because he began 

cooperating shortly after the case was indicted (Resp. at 16) is disingenuous. Backpage was the target 

of legal claims and attacks for more than a decade. Village Voice Media Holdings, LLC (“VVMH”)

and Backpage engaged and worked with lawyers to defend the website and uphold speech and 

publisher’s rights, successfully defending numerous cases. Throughout this time, Backpage consulted 

lawyers about moderation, website practices, disclosures, and positions to prevent and preclude 

improper third-party content. VVMH, Backpage, Ferrer, Larkin, and Lacey also dealt with and 

defended criminal accusations. In 2012, the government commenced a grand jury investigation in 

9 See, e.g. Cardiac Pacemakers, Inc. v. St. Jude Med., Inc., 2001 WL 699889, at *1 (S.D. Ind. Apr. 26, 2001) 

(“Defendants seem to be arguing that when a lawyer talks with an adverse party about an issue, that 

conversation might have ‘divulged the content’ of the lawyer’s private, privileged documents on the 

same subject so as to waive applicable privileges. That theory is a non-starter. Acceptance of the 

theory would destroy both privileges. ... [I]t is not unusual for a client to hope its lawyers will 

communicate on its behalf with adverse parties concerning the subject of the representation. That’s 

usually the point of the representation.”) (citing Sylgab Steel & Wire Corp. v. Imoco-Gateway Corp., 62 

F.R.D. 454, 458 (N.D.Ill.1974) (rejecting a similar waiver argument)); see also Am. Optical Corp. v. 

Medtronic, Inc., 56 F.R.D. 426, 431-32 (D. Mass. 1972) (taking “positions on legal issues [] during 

negotiations,” “like litigation itself,” does not “waive the attorney client privilege”) (citing I.B.M. Corp. 

v. Sperry Rand Corp., 44 F.R.D. 10, 13, and 13,n. 2 (D. Del. 1968).)

10 The government argues that Danielson is limited to privileged trial strategy information. Resp. at 

15-17. While Danielson dealt with trial strategy information, the process it lays out for evaluating 

prejudice resulting from privilege invasions is by no means limited to it. Additionally, the government 

concedes the privileged communications identified by Defendants dealt with trial strategy by arguing

the privilege was waived by Defendants exposing their strategy through filings in this and other cases.

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the W.D. Washington, which ended in early 2013 when the federal court there quashed the grand 

jury’s subpoenas and expressed grave concerns about the government’s effort to pursue charges based 

on a novel and unprecedented theory of vicarious website liability. In that proceeding, VVMH and 

Backpage demonstrated that the government’s attack on Backpage and its owners had debilitating 

flaws, given the website’s extensive efforts to prevent improper content, the website’s unparalleled 

cooperation with law enforcement, and the burdens the government would face in prosecuting an 

online publisher of third-party speech. Having failed in Washington, the government instead 

proceeded with the same prosecution theory in Arizona, so Ferrer was privy to several years of legal 

work preparing for the potential of an indictment that issued in Arizona. Moreover, in 2017, Larkin, 

Lacey, and Ferrer obtained dismissal of two prosecutions by the California A.G. (brought in 

conjunction with the government), with each court rejecting all charges that Backpage/Larkin, Lacey, 

and Ferrer facilitated or promoted prostitution (or engaged in money laundering on that basis) by

publishing third-party ads. People v. Ferrer, 2016 WL 7237305 (Sup. Ct. Sacramento Cty. Dec. 9, 2016); 

People v. Ferrer, No. 16FE024013 (Sup. Ct. Sacramento Cty. Aug. 23, 2017).

Thus, by 2018, when the government started interviewing Ferrer about privileged 

communications, he had been involved in privileged discussions regarding strategies for the defense 

of Backpage, its executives, and its owners for a decade. Knowing those strategies had been 

successful in the past, and that its case had serious flaws, the government intentionally invaded these 

areas with Ferrer to learn specifically what advice was given by counsel and what practices were 

discussed with counsel. The government sought to elicit from Ferrer ways to override the actions 

taken by the website and Defendants that previously failed to establish to criminal liability. 

The prejudice to Defendants is manifest. Knowing the fundamental flaws of their prosecution 

in light of Backpage’s actual practices and the numerous court decisions involving Backpage, the 

government set out to probe attorney-client communications, and actions in response to attorney 

advice, to try to find ways to attack or undermine anticipated defenses. If allowed, this would be an 

incredibly powerful–and prejudicial–tactic for the government. Particularly where, as here, the central 

issues in the case involved extensive input from counsel, it would be extraordinarily prejudicial to a 

defendant if the government can invade privileges at will to fish out potential areas of attack. 

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In any event, Danielson instructs exactly how the Court should deal with a situation like this: 

hold an evidentiary hearing and put the government to its “heavy burden.” Danielson, 345 F.3d at 

1071-72. Such a hearing would flesh out the specific questions asked of Ferrer and the specific 

answers given. It would allow the Court to gather details relating to Ferrer’s answers – including 

when and why these attorney communications took place. It would allow the Court to explore how 

and why the government continued to invade the privilege even after Judge Logan’s ruling, and 

determine the appropriate remedy. 

III. THE GOVERNMENT’S BROADER PATTERN OF INVASIONS

While the government claims that Defendants delayed in filing this Motion, if anything, 

Defendants were forced to file it before Defendants were able to fully address the broader pattern of 

the government’s disdain for the attorney-client privilege. What is nonetheless clear is that the 

government appears to be violating Filter Team protocols and using the Filter Team to signal areas 

for the prosecution team to explore. Some of this requires further discovery that the government has 

been reticent to provide. While Defendants had hoped to gather a complete record of this pattern of 

misconduct prior to filing this Motion, the government’s delay in providing discovery, coupled with 

the pending trial date, left Defendants no choice but to present the issue to the Court at this time. 

As just one other example, the Court need look no further than the government’s 

misrepresentations to this Court on April 23, 2019. At that time, the Court considered, inter alia, 

Defendants’ concern that the Filter Team would unilaterally decide that potentially privileged 

documents (i.e. those with “hits” on terms indicating privilege) were not privileged. The prosecutors 

assured the Court that the Filter Team would not turn over potentially privileged documents to the 

Prosecution Team without getting either Defendants’ agreement or a Court order. Based on the 

government’s representation, the Court denied Defendants’ then-pending motion to modify the Filter 

Team protocol. See Doc. 577, pp. 5-13. Yet, as Defendants just recently learned, three weeks after the 

April 2019 hearing, the prosecutors issued a written protocol to the Filter Team allowing the Filter 

Team to do exactly what it told the Court would not happen, i.e., allowing the Filter Team to give the 

prosecution team documents that “hit” for privilege but which the Filter Team unilaterally determined 

were not privileged, without notice to Defendants or the Court. Exhibit A, May 15, 2019 Filter Team 

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Memo (filed under seal). As Defendants also just learned, apparently following that protocol, the 

Filter Team gave the prosecution team 955 emails sent to/from Defendants’ counsel – including 

emails marked “ATTORNEY-CLIENT PRIVILEGED” – without telling Defendants or the Court. 

This separate invasion of Defendants’ privileges shows the government’s invasion of 

Defendants’ privileges with Ferrer was no accident or oversight but part of a broader pattern of 

misconduct. The government has a serious problem with candor to the Court, with candor to 

Defendants, and with knowingly and intentionally invading Defendants’ privileges. The 

government’s conduct has been, by any definition, outrageous. Defendants will raise the additional 

points with the Court soon. 

III. CONCLUSION

The government repeatedly and intentionally invaded Defendants’ privileges, even after Judge 

Logan rejected the waivers on which the government purportedly relied to justify its conduct. The 

government never told Judge Logan that, at the very time he was considering the purported waivers, 

the prosecutors were already using them as a basis to elicit privileged communications from Ferrer. 

Now, confronted with its repeated and brazen violations of Defendants’ privileges and the Court’s

orders, the government tries to defend itself with positions that have no bases in law or fact. The 

Court should reject the government’s baseless excuses for its serious misconduct and, if it is not 

prepared to dismiss the case entirely, order an evidentiary hearing as contemplated by Danielson. 

DATED: June 15, 2020 Thomas H. Bienert, Jr.

Whitney Z. Bernstein 

BIENERT | KATZMAN PC 

By: s/Whitney Z. Bernstein

 Whitney Z. Bernstein

Attorneys for Defendant James Larkin 

Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual (May. 2020) § II (C) (3), 

Whitney Z. Bernstein, 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.

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DATED: June 15, 2020 Paul J. Cambria, Jr.

Erin McCampbell 

LIPSITZ GREEN SCIME CAMBRIA LLP

By: s/ Paul J. Cambria, Jr.

Paul J. Cambria, Jr.

Attorneys for Defendant Michael Lacey

DATED: June 15, 2020 Gary S. Lincenberg 

Ariel A. Neuman 

Gopi K. Panchapakesan 

BIRD, MARELLA, BOXER, WOLPERT, NESSIM, 

DROOKS, LINCENBERG & RHOW, P.C.

By: s/ Gary S. Lincenberg

Gary S. Lincenberg 

Attorneys for Defendant John Brunst

DATED: June 15, 2020 FEDER LAW OFFICE, P.A. 

By: s/ Bruce Feder

Bruce Feder

Attorneys for Defendant Scott Spear

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CERTIFICATE OF SERVICE

I hereby certify that on June 15, 2020, 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/ Toni Thomas 

Toni Thomas

Case 2:18-cr-00422-DJH Document 1020 Filed 06/15/20 Page 15 of 15