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

Erin McCampbell Paris (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

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

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.

NO. CR-18-00422-PHX-DJH

DEFENDANTS’ MEMORANDUM IN 

SUPPORT OF THEIR ELECTION TO 

HAVE THE JURY DETERMINE THE 

FORFEITABILITY OF SPECIFIC 

PROPERTY UNDER FED. R. CRIM. 

PRO. 32.2(b)(5)

Case 2:18-cr-00422-DJH Document 1919 Filed 10/31/23 Page 1 of 7
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Eric Kessler

KESSLER LAW GROUP

6720 N. Scottsdale Rd., Suite 210

Scottsdale, AZ 85253

Telephone: (480) 644-0093

eric@kesslerlawgroup.com

Attorney for Scott Spear

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

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Defendants Michael Lacey, John Brunst, and Scott Spear, by and through their 

undersigned counsel, submit this memorandum in support of their election to have the jury

determine the forfeitability of specific property, under Fed. R. Crim. Pro. 32.2(b)(5). 

“Criminal forfeiture proceedings are governed by Federal Rule of Criminal Procedure 

32.2.” United States v. Mancuso, 718 F.3d 780, 799 (9th Cir. 2013). “Rule 32.2 specifies the 

procedure governing criminal forfeiture proceedings under [21 U.S.C.] § 853.” United States v. 

Liquidators of Eur. Fed. Credit Bank, 630 F.3d 1139, 1144 (9th Cir. 2011). “The Federal Rules 

of Criminal Procedure have the force and effect of law. Just as a statute, the requirements 

promulgated in these Rules must be obeyed.” United States v. Marion, 562 F.3d 1330, 1338-39 

(11th Cir. 2009) (discussing Rule 32.2) (quotation marks and citations omitted)). Under Rule 

32.2, the criminal forfeiture phase of a criminal proceeding takes place after a determination 

of guilt. Fed. R. Crim. P. 32.2(b)(1) (criminal forfeiture determination takes place “[a]s soon 

as practical after a verdict or finding of guilty...on any count in an indictment or information 

regarding which criminal forfeiture is sought”).

During the criminal forfeiture phase of a criminal proceeding, the government has the 

burden of proving, by a preponderance of the evidence, that each account or property sought 

to be forfeited has the requisite “nexus” to the criminal activity for which the defendant has 

been convicted. Fed. R. Crim. P. 32.2(b)(1); Liquidators of Eur. Fed. Credit Bank, 630 F.3d at 

1149 (“[T]o achieve criminal forfeiture, the government first must prove, beyond a reasonable 

doubt, that the defendant is guilty of the crime. The government then must prove, by a 

preponderance of the evidence, a nexus between the property and the crime”).

Rule 32.2 requires that the jury determine the forfeitability of specific property, if timely 

requested by either party:

In any case tried before a jury, if the indictment or information states that the 

government is seeking forfeiture, the court must determine before the jury 

begins deliberating whether either party requests that the jury be retained to 

determine the forfeitability of specific property if it returns a guilty verdict.

Fed. R. Crim. P. 32.2(b)(5)(A) (emphasis added). “The Advisory Committee Notes make clear 

that the...rule places an affirmative duty on the court to determine whether ‘either party 

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requests a jury determination of forfeiture in cases where the government has given notice 

that it is seeking forfeiture and a jury has been empaneled to determine guilty or innocence,’ 

and ‘[t]he rule requires the court to make this determination before the jury retires.’” United 

States v. Mancuso, 718 F.3d at 799 (quoting Fed. R. Crim. P. 32.2 2009 Advisory Committee 

Notes). Here, Defendants timely elected, under Fed. R. Crim. Pro. 32.2(b)(5), that the jury 

determine forfeiture.

Rule 32.2 describes the process for the forfeiture phase of trials in criminal cases 

involving a forfeiture component. First, the guilt or innocence of the defendant is determined. 

The forfeiture phase of the trial then commences, and the government has the burden of 

proof. If the defendant’s guilt was determined by a jury and the defendant makes a timely 

request, the jury must determine the forfeitability of specific property. Fed. R. Crim. P. 

32.2(b)(5). Evidence already in the record or any new reliable evidence may be considered by 

the jury or the Court. Fed. R. Crim. P. 32.2(b)(1)(B). When the government seeks to forfeit 

accounts or property (rather than seeking a money judgment or to forfeit substitute assets), 

the jury must decide both whether the government has proved the requisite statutory nexus 

for forfeiture and the amount subject to forfeiture. United States v. Tyson Foods, Inc., No. 4:01-

cr-061 Edgar, 2003 U.S. Dist. LEXIS 26385, at *18 (E.D. Tenn. Feb. 4, 2003) (“When Rule 

32.2(b)(1) and (4) are read together, the Court concludes that the jury must determine two 

intertwined and inseparable issues regarding forfeiture: (1) whether the government has 

proved the requisite nexus between the proceeds (i.e. cost savings) and the offense charged in 

Count One; and (2) the property, i.e. amount of proceeds subject to forfeiture. Assuming 

arguendo that the jury makes a finding in favor of the government on the nexus issue and 

connects the offense (Count One) to specific proceeds (Tyson’s cost savings), then the jury 

necessarily would have to determine the amount of proceeds subject to forfeiture. The 

amount of the proceeds subject to forfeiture would have to be determined in order for the 

jury to find a nexus between the property and the offense.”). 

If a jury determination of forfeiture has been requested, Rule 32.2(b)(5)(B) requires the 

government to “submit a proposed Special Verdict Form listing each property subject to 

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forfeiture and asking the jury to determine whether the government has established the 

requisite nexus between the property and the offense committed by the defendant.” Further, 

both the defendant and the government submit proposed jury instructions regarding forfeiture 

before the jury retires to deliberate on forfeiture. The propriety of these instructions is decided 

by the Court, if necessary. E.g., United States v. Brekke, 522 F. App’x 394, 396 (9th Cir. Jun. 11, 

2013) (discussing the sufficiency of the forfeiture instructions given to the jury during the trial). 

Then, if the jury determines that the government has established a sufficient nexus 

between the accounts or properties for which forfeiture is sought and the defendant’s criminal 

activity, those assets then are included in a preliminary order of forfeiture. When a jury 

determines the forfeiture, the Court’s role during the forfeiture phase is to (1) provide the jury 

instructions regarding forfeiture and (2) issue a preliminary order of forfeiture with respect to 

any assets found to be subject to forfeiture by the jury’s special verdict. 

The preliminary order of forfeiture forfeits the defendant’s right, title, and interest in 

the property, whatever that interest turns out to be as determined during the ancillary 

proceedings. Fed. R. Crim. P. 32.2(b)(2)(B). Despite its name, a preliminary order of forfeiture 

is final as to the defendant, but preliminary as to potential third parties who might assert an 

interest in the same property. Rule 32.2(b)(4)(A). During the ‘ancillary proceeding’ phase, all 

interests in the forfeited property, including those of the defendant, are determined by the 

Court. Rule 32.2(c)(1). The Court then issues a final order of forfeiture, which disposes of 

the forfeited property in accordance with the determinations of ownership made during the 

ancillary proceeding phase. Rule 32.2(c)(2).

In its brief (Dkt. 1918), the government states that it will call two witnesses during the

forfeiture phase if the jury returns guilty verdicts. The Court should order the government to 

timely disclose to the defense these witnesses and any exhibits the government intends to 

introduce through them.

...

...

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CONCLUSION

For all these reasons, if there is need for a forfeiture phase of the trial, the jury should 

determine the forfeitability of specific property, as required under Rule 32.2 and the cases 

interpreting Rule 32.2.

RESPECTFULLY SUBMITTED this 31st day of October, 2023, 

Paul J. Cambria, Jr.

Erin McCampbell Paris

LIPSITZ GREEN SCIME CAMBRIA LLP

By: /s/ Paul J. Cambria, Jr. 

Paul J. Cambria, Jr.

Attorneys for Michael Lacey

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

2020) § II (C) (3), Paul J. Cambria 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.

Gary S. Lincenberg

Gopi K. Panchapakesan

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW, P.C.

By: /s/ Gary Lincenberg

Gary Lincenberg

Attorneys for John Brunst

Eric W. Kessler

KESSLER LAW OFFICE

By: /s/ Eric W. Kessler

Eric W. Kessler

Attorneys for Scott Spear

Case 2:18-cr-00422-DJH Document 1919 Filed 10/31/23 Page 6 of 7
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Bruce Feder

FEDER LAW OFFICE, P.A.

By: /s/ Bruce Feder

Bruce Feder

Attorneys for Scott Spear

On October 31, 2023, a PDF version of this document was 

filed with Clerk of the Court using the CM/ECF System 

for filing and for Transmittal of a Notice of Electronic 

Filing to the to the CM/ECF registrants who have 

entered their appearance as counsel of record

Case 2:18-cr-00422-DJH Document 1919 Filed 10/31/23 Page 7 of 7