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3739131.1 DEFENDANTS’ STATUS REPORT AND REQUEST FOR CONFERENCE

Thomas H. Bienert, Jr. (CA Bar No.135311, admitted pro hac vice)

Whitney Z. Bernstein (CA Bar No. 304917, admitted pro hac vice)

BIENERT KATZMAN LITTRELL WILLIAMS LLP

903 Calle Amanecer, Suite 350

San Clemente, California 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

tbienert@bklwlaw.com

wbernstein@bklwlaw.com

Attorneys for James Larkin

Paul J. Cambria, Jr. (NY Bar No. 1430909, admitted pro hac vice)

Erin McCampbell (NY Bar. No 4480166, admitted pro hac vice)

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

pcambria@lglaw.com

emccampbell@lglaw.com

Attorneys for Michael Lacey

Additional counsel listed on next page

IN THE 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’ STATUS REPORT 

AND REQUEST FOR 

CONFERENCE ADDRESSING 

EXHIBITS, WITNESSES, AND JURY 

INSTRUCTIONS

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3739131.1 DEFENDANTS’ STATUS REPORT AND REQUEST FOR CONFERENCE

Gary S. Lincenberg (CA Bar No. 123058, admitted pro hac vice)

Ariel A. Neuman (CA Bar No. 241594, admitted pro hac vice)

Gopi K. Panchapakesan (CA Bar No. 279856, admitted pro hac vice)

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW PC

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: (310) 201-2100

Facsimile: (310) 201-2110

glincenberg@birdmarella.com

aneuman@birdmarella.com

gpanchapakesan@birdmarella.com

Attorneys for John Brunst

Bruce Feder (AZ Bar No. 004832)

FEDER LAW OFFICE PA

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

Telephone: (602) 257-0135

bf@federlawpa.com

Attorney for Scott Spear

David Eisenberg (AZ Bar No. 017218)

DAVID EISENBERG PLC

3550 N. Central Ave., Suite 1155

Phoenix, Arizona 85012

Telephone: (602) 237-5076

Facsimile: (602) 314-6273

david@deisenbergplc.com

Attorney for Andrew Padilla

Joy Malby Bertrand (AZ Bar No. 024181)

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

Telephone: (602)374-5321

Facsimile: (480)361-4694

joy.bertrand@gmail.com

Attorney for Joye Vaught

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DEFENDANTS’ STATUS REPORT AND REQUEST FOR JURY CHARGE CONFERENCE

Defendant James Larkin, Michael Lacey, Scott Spear, John Brunst, Andrew Padilla, and 

Joye Vaught (collectively, “Defendants”) submit this status report and request for a conference 

to address the government’s proposed witness and exhibit lists and jury instructions in advance 

of the commencement of trial. While Defendants believe a three-week continuance is necessary

due to the ongoing COVID-19 infection of one defense counsel and his staff,1 Defendants 

believe the Court and parties can use the time in the interim to address witnesses, exhibits, and 

jury instructions in a way that will reduce the overall length of trial and allow trial to conclude 

within the previously scheduled timeframe.

A. Defendants are concerned for the safety of all trial participants given the 

rise of the COVID-19 Delta variant. 

As this Court is aware from the previously filed under seal Notice (Dkt. 1184) and Motion 

to Continue Trial (Dkt. 1198), one of the defense attorneys and his staff contracted COVID-19 

despite being vaccinated. The attorney and his staff have been symptomatic and quarantined for 

nearly two weeks and remain symptomatic and quarantined as of this filing. Consequently, 

Defendants’ ability to jointly prepare for trial has been severely limited. Afflicted counsel has 

requested a three-week continuance at this time, though may require a longer continuance 

depending on his symptoms and recovery. Other Defendants join in the request for the threeweek continuance to protect all Defendants’ due process rights. 

Defendants fear that counsel’s breakthrough infection, fortunately detected prior to 

exposing 40-50 daily trial participants, is the tip of the iceberg should trial begin in two weeks. 

Amidst the rise of a new dominant COVID variant (Delta), Defendants remain concerned for the 

safety of the jury and all trial participants. For example, as of July 19, 2021, 82% of COVID-19 

cases sampled in the United States were the Delta variant as opposed to 2% in April 2021.2 

Additionally, the rate of COVID-19 cases is increasing. Maricopa County had over 5,000 reported 

cases of COVID-19 between July 27, 2021, and August 2, 2021, placing it in the CDC’s highest 

1 See Motion to Continue Trial, filed under seal today at Dkt. 1198.

2 See “Demystifying the Delta Variant with Data,” Johns Hopkins University of Medicine

(July 19, 2021), available at https://coronavirus.jhu.edu/pandemic-datainitiative/news/demystifying-the-delta-variant-with-data (last accessed August 3, 2021).

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DEFENDANTS’ STATUS REPORT AND REQUEST FOR JURY CHARGE CONFERENCE

level, and community transmission in Maricopa County is also currently at the CDC’s highest 

level.3 On August 3, 2021, Maricopa County reported 1,974 new cases and 30 new deaths that day 

alone.4 Today, Maricopa County reported another 2,289 new cases and 11 new deaths since 

yesterday.5 Further, the CDC reports that COVID-19 Delta variant infections are associated with 

a higher viral load that makes the infected individual contagious for a longer period of time (a 

median of 18 days for Delta infection vs. 13 days for non-Delta infection) and that the risk of 

reinfection with Delta may be higher.6 On July 29, 2021, the CDC also reported that breakthrough 

cases of Delta amongst vaccinated individuals may be as transmissible as non-variant COVID-19 

amongst unvaccinated individuals, may cause a more severe disease course.7 The situation is 

expected to get worse: the Institute for Health Metrics and Evaluation (IHME), an independent 

global health research center at the University of Washington, forecasts that Arizona will have over 

6,700 cases per day by August 23, 2021, and over 10,000 cases per day by September 14, 2021.

8

 

Given the current pandemic and public health crisis, it is almost inevitable that commencing 

trial at this time may very likely endanger the jury (16 jurors), all trial participants (nearly 30

attorneys and support staff on both sides), court staff, and their families, particularly with 88 

witnesses (and counting) from across the country for the government’s case-in-chief. It is also 

predictable that trial will be disrupted by frequent breaks when any of the 40-50 daily participants 

and non-sequestered jurors have any symptoms or exposure to anyone with symptoms. Separate 

3 See COVID Data Tracker, Centers for Disease Control and Prevention, available at

https://covid.cdc.gov/covid-data-tracker/#county-view (last accessed August 3, 2021).

4 See COVID-19 Data, Arizona Department of Health Services, available at

https://www.azdhs.gov/covid19/data/index.php (last accessed August 3, 2021).

5 See COVID-19 Data, Arizona Department of Health Services, available at

https://www.azdhs.gov/covid19/data/index.php (last accessed August 5, 2021).

6 See “Improving communications around vaccine breakthrough and vaccine effectiveness,” 

Centers for Disease Control and Prevention (July 29, 2021), available at

https://www.azdhs.gov/covid19/data/index.php (last accessed August 3, 2021). 

7 Id.

8 See Arizona: Daily infections and testing, Institute for Health Metrics and Evaluation, 

University of Washington, available at https://covid19.healthdata.org/united-states-ofamerica/arizona?view=infections-testing&tab=trend&test=infections (last accessed August 5, 

2021).

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DEFENDANTS’ STATUS REPORT AND REQUEST FOR JURY CHARGE CONFERENCE

from the three-week continuance, to protect Defendants’ due process rights from repeated 

interruptions and jurors focusing on safety concerns rather than the trial, the Court and counsel 

should address how this trial can proceed reasonably unabated in the current environment. 

B. The government’s final exhibit and witness lists ignore the Court’s motion 

in limine rulings and contain irrelevant, cumulative, confusing, and timewasting exhibits and witnesses. 

The government’s final exhibit list is 159 pages and contains more than 2,500 separate 

exhibits (including numerous exhibits with subparts), totaling tens of thousands of pages. See 

Exhibit A, Government’s Final Exhibit List, August 2, 2021, filed under seal. Many of these 

proposed exhibits are irrelevant, cumulative, confusing, time-wasting, and at odds with the Court’s 

rulings on the motions in limine. Similarly, the government’s final witness list includes 88 

witnesses, many of whom are also at odds with the Court’s rulings on the motions in limine. Many 

of the government’s exhibits and witnesses are clearly inadmissible in this trial. Moreover, if the 

government is permitted to introduce all its exhibits and call all its witnesses, it would obviously 

take more than the 51 trial days that the Court has set aside for jury selection, opening arguments, 

the government’s case, six different Defendants’ cases, closing arguments, and jury deliberations. 

Defendants request that the Court address the government’s limitless exhibit and witness lists 

pretrial at the August 9 conference to both shorten the length of trial and limit the jurors’ time that 

will be wasted during sidebars and objections in the course of trial. 

For example, one of the government’s 2,500+ listed exhibits is a 6,000+- line excel 

spreadsheet chronicling over 5,500 press articles related to Backpage.com. (Gov’t. Exh. 260). 

Another exhibit is an over 200-page transcript of a city council meeting discussing Backpage (Gov’t 

Exh. 152). Defense counsel does not believe there are any valid bases on which to admit such 

“evidence.” As Defendants argued in their response to the government’s outstanding motion in 

limine to determine admissibility of certain evidence (Dkt. 1139), much of the evidence the 

government intends to introduce is irrelevant, confusing, cumulative, or time-wasting, violates Fed. 

R. Evid. 401 or the rule against hearsay, and also should be excluded under Fed. R. Evid. 403. 

Further, the government’s final exhibits list indicates that it is not taking the Court’s rulings 

seriously. For example, the Court ruled that the government was precluded from presenting a 

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DEFENDANTS’ STATUS REPORT AND REQUEST FOR JURY CHARGE CONFERENCE

letter from the Auburn Theological Society without redacting statements on morality and was 

precluded from presenting a Chase Bank email without redacting its statements on ethics (Dkt. 

1159 at 3-4), yet the government finalized its exhibit list without producing redacted versions of 

these exhibits.

Similarly, the government’s final witness list also ignores the Court’s ruling on the motions 

in limine. The Court ruled that the government may only present one expert as to various topics

(Dkt. 1081), but the government’s final witness list contains the exact same experts, including all 

of the experts who were on its witness list prior to the Court’s ruling. The Court also ruled that 

the government was precluded from introducing details of murders (Dkt. 1155), but the 

government’s final witness list contains the exact same witnesses, number of witnesses, and 

numerous exhibits related to murders that were on its lists prior to the Court’s ruling. 

Equally troubling, the government’s final list remains incomplete as the first witness is still 

identified as “NAAG members.” Defense counsel cannot competently prepare cross examination 

for this currently unknown witness. And despite numerous requests, the government has still not 

provided any Jencks materials, interview notes, or FBI 302s for at least six of its current witnesses.

Additionally, defense counsel cannot and should not be required to prepare to cross 

examine witnesses and evidence that is not admissible. The government’s lists of 2500+ exhibits

and 88 witnesses prohibit the defense from preparing for trial in an efficient way. Defendants 

should only have to prepare for a realistic and reasonable list of witnesses and exhibits. 

The Court has repeatedly reminded the parties that this trial is about 50 ads and six 

Defendants, and not about every single allegation ever levied against Backpage.com, a company 

that certain of the Defendants sold in April 2015. See Court’s order at Dkt. 946 at 13 

(“[Defendants] were not indicted for facilitating the amorphous notion of ‘prostitution.’ They were 

indicted for facilitating (via publishing ads) on fifty distinct occasions where prostitutes, 

prostitution-related businesses, or other groups were involved in the business of prostitution.”); 

see also Transcript of December 4, 2020, Hearing (“And I think one of the key things in my reason 

for denying the recusal is that this case is not about Backpage. Backpage was prosecuted in a 

separate case, entered a plea in a separate case. This case is about these individual defendants and 

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DEFENDANTS’ STATUS REPORT AND REQUEST FOR JURY CHARGE CONFERENCE

whether they had specific knowledge of these ads as facilitating illegal activity.”). The Court has 

set aside and asked the potential jurors to set aside 51 days for this trial, which includes jury 

selection, opening statements, the government’s case-in-chief, six different Defendants’ cases 

(which the defense estimates will take approximately 15 trial days), closing arguments, and jury 

deliberations. Out of respect for the jurors, and to protect Defendant’s due process rights, it is 

imperative for the Court to limit the government’s case to the charges against Defendants and 

preclude irrelevant, cumulative, confusing, and time-wasting witnesses and exhibits. Defendants 

submit that setting a pre-trial hearing to address many of the government’s proposed witnesses 

and exhibits will appropriately result in significant shortening of the trial length. 

C. Defendants request that the Court hold the jury charge conference prior to 

opening arguments.

This prosecution of first impression charges Defendants with a novel, unprecedented 

theory of culpability that has never been put to any jury. Defendants must know the legal

instructions that will guide the jurors to competently present their defense, deliver opening 

arguments, and cross examine the government’s witnesses. Unsurprisingly, Defendants and the 

government have dramatically different views of the jury instructions the Court should give. 

Because of this, and because of the importance of a jury charge conference prior to opening 

arguments and the government’s case-in-chief, Defendants request that the Court schedule a 

pretrial conference to address the jury instructions. See Defendants’ Joint Submission of Proposed 

Statement of the Case, Verdict Form, and Jury Instructions.

D. To maximize efficiency, Defendants request that the Court address trial 

logistics. 

To streamline this trial for the Court and the jury, Defendants request that the Court require 

the parties to advise every Thursday of the following week’s witnesses and exhibits and thereafter 

confirm those witnesses and exhibits 48 hours in advance. Given the number of witnesses and 

length of trial, the timeframe for parties to provide their good-faith sealed impeachment materials 

to the Court should be Monday of each week following the opposing party’s Thursday advisal (as 

opposed to having to supply all impeachment materials ahead of a three-month trial). 

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DEFENDANTS’ STATUS REPORT AND REQUEST FOR JURY CHARGE CONFERENCE

RESPECTFULLY SUBMITTED this 5th day of August 2021,

BIENERT KATZMAN LITTRELL 

WILLIAMS LLP

s/ Whitney Z. Bernstein

Thomas H. Bienert, Jr.

Whitney Z. Bernstein

Attorneys for James Larkin

Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual (Oct. 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.

LIPSITZ GREEN SCIME CAMBRIA LLP

s/ Paul J. Cambria, Jr.

Paul J. Cambria, Jr.

Erin McCampbell Paris

Attorneys for Michael Lacey

BIRD MARELLA BOXER WOLPERT 

NESSIM DROOKS LINCENBERG AND 

RHOW PC

s/ Gary S. Lincenberg

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

Attorneys for John Brunst

FEDER LAW OFFICE PA

s/ Bruce Feder

Bruce Feder

Attorneys for Scott Spear

DAVID EISENBERG PLC

s/ David Eisenberg

David Eisenberg

Attorneys for Andrew Padilla

JOY BERTRAND ESQ LLC

s/ Joy Bertrand

Joy Bertrand

Attorneys for Joye Vaught

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3739131.1 CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE 

I hereby certify that on August 5, 2021, 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

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