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GARY M. RESTAINO

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

DAN G. BOYLE (N.Y. Bar No. 5216825, daniel.boyle2@usdoj.gov) Special Assistant U.S. Attorney

312 N. Spring Street, Suite 1400

Los Angeles, CA 90012

Telephone (213) 894-2426

AUSTIN M. BERRY (Texas Bar No. 24062615, austin.berry2@usdoj.gov)

U.S. Department of Justice

Child Exploitation and Obscenity Section

1301 New York Avenue, NW, 11th Floor

Washington, D.C. 20005

Telephone (202) 412-4136

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.

CR-18-422-PHX-DJH

UNITED STATES’ RESPONSE TO 

DEFENDANTS’ OBJECTION TO 

FRYE-COOPER HEARING AND 

MOTION TO VACATE HEARING

(Docs. 1681, 1684, 1687, 1689)

Case 2:18-cr-00422-DJH Document 1693 Filed 08/11/23 Page 1 of 7
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Preliminary Statement

This Court properly scheduled a Frye/Cooper hearing to take place on Friday, 

August 18, 2023. To prevent claims of ineffective assistance of counsel, courts in this 

District routinely hold Frye/Cooper hearings to ensure that criminal defendants were

informed before trial of any plea offers, and obtain on-the-record confirmation of the

defendants’ response. Despite this long-standing practice, and after requesting the Court 

reschedule the Frye/Cooper hearing in this case, Defendants now object that any such 

hearing is not necessary and could intrude on the attorney-client relationship or contravene 

Fed. R. Crim. P. 11(c)(1). Defendants are wrong, and their Motion to Vacate the hearing 

should be denied.

Argument

I. Frye/Cooper Hearings Forestall Ineffective Assistance of Counsel Claims.

In Missouri v. Frye, 566 U.S. 134 (2012), defense counsel neglected to inform a 

defendant of a favorable plea offer before the offer’s expiration. When the defendant later

pleaded guilty and received a harsher sentence than that contemplated in the plea offer, 

counsel’s performance was ruled constitutionally deficient. To prevent such errors, the 

Supreme Court recommended several safeguards, including making plea offers part of the 

record before trial:

The prosecution and the trial courts may adopt some measures to help ensure 

against the late, frivolous, or fabricated claims after a later, less advantageous 

plea offer has been accepted or after a trial leading to conviction with 

resulting harsh consequences ... [F]ormal offers can be made part of the 

record ... before a trial on the merits, all to ensure that a defendant has been 

fully advised before those further proceedings commence.

Frye, 566 U.S. at 146. The Supreme Court’s recommendations included extending a formal 

plea offer, reducing the plea offer to writing, and making a plea offer “part of the record at 

any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant 

has been fully advised before those further proceedings commence.” Id. at 146. Regarding 

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the third measure, the Supreme Court referenced a procedure by which the parties 

“memorialize in some fashion prior to trial (1) the fact that a plea bargain offer was made,

and (2) that the defendant was advised of the offer and its precise terms, . . . and (3) the 

defendant’s response to the plea bargain offer.” Id. at 147.

In a companion case, Lafler v. Cooper, the Supreme Court recognized that when the 

government extends a plea offer to a defendant, the defendant “has the right to effective 

assistance of counsel in considering whether to accept it.” 566 U.S. 156, 168 (2012). If a 

defendant does not receive such assistance, and “loss of the plea opportunity [leads] to a 

trial resulting in a conviction on more serious charges or the imposition of a more severe 

sentence,” the defendant has suffered prejudice as a result of the ineffective assistance. Id. 

The Lafler opinion cited with approval the preventive measures outlined in Frye to guard

against later claims of ineffectiveness. Id. at 172.

Both caution and the Supreme Court instruct that the proper route to preclude future 

litigation over the information Defendants received about any plea bargain offers is to make 

a formal record of the plea offer and the Defendant’s response. Thus, the United States has 

proposed a hearing at which the parties can put on the record the following facts regarding 

each Defendant: (1) the United States extended a plea offer; (2) the substance of the offer; 

(3) the Defendant understood the offer, its terms, and its deadline; and (4) Defendant 

knowingly rejected it. Doc. 1642 at 24. This reflects longstanding practice in this District. 

See, e.g., Ontiveros-Ponce v. Ryan, CR-17-00081-PHX-JJT, 2019 WL 3557602, at *1-3

(D. Ariz. June 10, 2019) (describing Frye hearing). The Court scheduled the requested 

hearing, see Doc. 1677, and then rescheduled it at Defendants’ request. It is presently set 

for Friday, August 18, 2023.

II. Defendants’ Objections Are Unavailing.

A. An Ex Parte Affidavit of Counsel Is Insufficient.

Defendants’ attempt to circumvent the hearing through submission of an ex parte

affidavit of counsel does little to ensure that future litigation will be avoided. Without 

access to the ex parte affidavit, the United States cannot assess whether the precise offer 

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made was conveyed to the Defendant. Similarly, this Court does not have the information 

necessary to assess the ex parte affidavit to determine whether the offers made by the 

United States are the same as described in counsel’s affidavit. Further, the ex parte 

representations of counsel cannot supplant the Defendant’s on-the-record confirmation of 

the essential facts underlying the Frye/Cooper inquiry. Cf. Ontiveros-Ponce, 2019 WL 

3557602, at *3 (“[defendant’s] statements in open court are given substantial weight”) 

(citing United States v. Kaczynski, 239 F.3d 1108, 1115 (9th Cir. 2001).

B. The Hearing Will Not Intrude on the Attorney-Client Relationship.

Defendant asserts that the proposed hearing “presents the issue” of “intimidation 

and interference in the attorney-client relationship.” Mot. at 2. While Defendant includes 

boilerplate statements about privilege, Defendant never explains how the proposed hearing 

would actually violate the privilege, let alone how privilege law applies to the facts here.

The United States in no way intends to invade the attorney-client relationship. On 

the contrary, the United States intends to ensure each Defendant’s right to effective 

assistance of counsel. The United States has a substantial interest in making a record of 

plea offers that have been formally conveyed to a defendant and then rejected. If the 

Defendant is convicted at trial and subsequently receives a sentence higher than that 

contemplated by the plea offer, the United States will have an interest in forestalling later 

appellate or 28 U.S.C. § 2255 ineffective assistance of counsel claims involving the 

Defendant’s receipt and knowledge of the United States’ plea offers. Thus, the United 

States seeks merely to create a record in the Defendant’s own words acknowledging that 

he/she knows a plea offer was made, the precise terms of the offer, and the rejection of that 

offer. The United States does not seek or advocate for anything beyond those basic facts, 

and certainly does not seek information about any questions that the Defendant asked of 

his/her counsel, much less any advice that counsel gave on the matter. 

In a prior case in this District, Mr. Feder, one of the attorneys in this case, similarly 

objected, on privilege grounds, to an on-the-record inquiry at a final pretrial conference 

regarding whether defendants had been made aware of the plea offer and the deadline for 

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acceptance. See United States v. Anderson, 19-CV-2142-SRB (DMF), Doc. 19, Report & 

Recommendation (D. Ariz. June 25, 2020). In response, the Court noted that it was “not 

going to ask [the defendant] about any conversations with [Mr. Feder]. I’m asking if he 

was aware that the government had extended the plea offer.” Id. at 13. That is precisely 

what the United States intends here: An inquiry into each Defendant’s knowledge of the 

plea offers extended and confirmation from the Defendant that the offer was not accepted. 

C. Defendants’ Rule 11 Assertions Are Misplaced.

Rule 11(c)(1) provides that “[a]n attorney for the government and the defendant's 

attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. 

The court must not participate in these discussions.” The United States is not inviting nor 

advocating for the Court to “participate in these discussions.” Instead, the purpose of the 

requested hearing is to establish that any discussions have long since been completed. The 

Court’s role in this hearing is no more participatory in the discussions than when it conducts 

a colloquy at the time of a guilty plea. 

Defendant Vaught relies on Phillips v. United States, 519 F.2d 483, 485 (6th Cir. 

1975)1, yet Phillips does not support her Rule 11 argument. Instead, it affirmatively 

supports the United States’ argument. In Phillips, the Sixth Circuit reversed a guilty plea 

because the District Court did not engage in a direct questioning of the defendant, but relied 

exclusively on the representations of defendant’s counsel regarding what was conveyed by 

defense counsel prior to the defendant pleading guilty. In other words, Phillips holds that

a guilty plea cannot be accepted as knowing and voluntary if the defendant is not directly

asked questions to build a record about knowledge and voluntariness. 

Phillips in no way addresses the issue of a colloquy regarding a rejected plea offer, 

but it certainly is informative about the need to engage directly with the defendant. Indeed, 

Phillips quotes the Supreme Court in McCarthy v. United States, 394 U.S. 459, 462 (1969): 

1 Defendant cited this case as being in the F.3d Reporter, but undersigned counsel reasonably believes that the one in F.2d is what was intended by Defendant. See Mot. at 4- 5.

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“By personally interrogating the defendant, not only will the judge be better able to 

ascertain the plea’s voluntariness, but he also will develop a more complete record to 

support his determination in a subsequent post-conviction attack.” McCarthy, 394 U.S. at 

466. That is precisely the argument the United States makes here: By asking Defendants 

about the plea offers that were not accepted, this Court will develop a record that will assist 

this Court (and others) in any subsequent post-conviction attack. Such questioning does 

not involve the Court in plea discussions, but merely establishes a record about each 

Defendant’s receipt of a plea offer and choice not to accept it.

Defendant’s reliance on Braxton is also misplaced. Mot. at 5-6. There, the district 

judge repeatedly, and improperly, gave his opinion on the government’s plea offer.2 United 

States v. Braxton, 784 F.3d 240, 242 (4th Cir. 2015). The United States is not suggesting 

anything even remotely similar to what the court did in Braxton. But the Fourth Circuit 

observed that it was proper under Frye for the court to have conducted a brief colloquy:

At the very opening of proceedings, the government, citing Frye, asked to 

“memorialize ... for the record” communication of its plea offer to Braxton. 

After [defense counsel] agreed, the government described the offer, and the 

court ensured that Braxton understood the terms of the plea agreement he had 

rejected. At this point, the court brought the Frye portion of the proceedings 

to a definitive close: “Well, that’s fine. The record will reflect you’ve been 

so advised of the plea offer in this case. The defendant is ready to proceed to 

trial.”

Braxton, 784 F.3d at 246. 

The United States suggests that this Court do what the Fourth Circuit found 

appropriate in Braxton. Indeed, even the quote Defendant Vaught cites makes clear that 

2 For example, the District Court in Braxton told the defendant: “I am not favorably inclined towards having you go to trial and trigger a mandatory minimum of 20 years, as 

opposed to a plea offer that's down in the 10 to 15 year range in terms of years of your 

life.” Additionally, the District Court told the defendant he was “hurting [his] own interest” by choosing to go to trial. The District Court further compared the decision to go to trial to 

“put [ting] [your] head in a buzz saw that makes absolutely no sense.” After a recess, the 

district court again advocated for the rejected plea agreement, declaring, “[A] defendant shouldn't put his head in a vice [sic] and face a catastrophic result just over a dispute over 

drug quantity. That's the point.”

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“the district court, as described above, fulfilled its role under Frye by memorializing the 

offer on the record at the government’s request, prior to making the remarks at issue in this 

case.” Braxton, 784 F.3d 240, 247 (4th Cir. 2015); Mot. at 5. The United States is asking 

to memorialize the offer on the record, but the offer cannot be properly memorialized if the 

United States does not have an opportunity to articulate the precise terms of the offer, and 

have the defendant state, under oath, that he or she received that offer and rejected it.

Conclusion

Defendants’ Motion to Vacate Hearing (Doc. 1681) should be denied. 

Respectfully submitted this 11th day of August, 2023.

GARY M. RESTAINO

United States Attorney

District of Arizona

s/Austin M. Berry KEVIN M. RAPP

MARGARET PERLMETER

PETER KOZINETS

ANDREW STONE

DANIEL BOYLE

Assistant U.S. Attorneys

AUSTIN M. BERRY

Trial Attorney

Criminal Division, U.S. Department of Justice

CERTIFICATE OF SERVICE

I hereby certify that on August 11, 2023, 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/ Austin M. Berry Austin M. Berry

Trial Attorney

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