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GLENN B. McCORMICK

Acting 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

KENNETH POLITE

Assistant Attorney General 

Criminal Division, U.S. Department of Justice

REGINALD E. JONES (D.C. Bar No. 1620183, reginald.jones4@usdoj.gov) 

Senior Trial Attorney Criminal Division, U.S. Department of Justice

1400 New York Ave N.W., Suite 1200

Washington, D.C. 20005

Telephone (202) 616-2807 

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.

No. CR-18-422-PHX-DJH

UNITED STATES’ MOTION FOR 

LEAVE TO FILE A SURREPLY TO 

DEFENDANTS’ MOTION TO 

PARTIALLY VACATE SEIZURE 

WARRANTS AND RELEASE FUNDS

(Doc. 1366)

Case 2:18-cr-00422-DJH Document 1397 Filed 11/18/21 Page 1 of 6
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INTRODUCTION

In their initial motion, Doc. 1366 (the “Motion”), defendants made no effort to 

make the showings of need required under either United States v. Monsanto, 491 U.S. 600

(1989) or Luis v. United States, 136 S. Ct. 1088 (2016), and in fact, they denied that they 

even had to make such a showing. Yet after the government dedicated much of its response 

to detailing why these procedural defects were fatal to the Motion, for the first time on 

reply, defendants now purport to make the very same showings they chose not to make in 

the first instance – but under seal and in camera. Not only has the government been denied 

an opportunity to respond to this new purported evidence, but the government has no way 

to assess the accuracy, sufficiency, or even truthfulness of these supposed showings at oral 

argument. The government respectfully requests leave to file a surreply in the form 

accompanying this request to address this new argument and purported evidence.

ARGUMENT

“It is hornbook law that a litigant can’t raise new arguments for the first time in a 

reply.” Macy's Inc. v. H&M Constr. Co. Inc., No. CV-17-00990-PHX-DWL, 2018 WL 

6040054, at *2 (D. Ariz. Nov. 19, 2018); see also AIRFX.com v. AirFX LLC, No. CV 11-

01064-PHX-FJM, 2012 WL 129804, at *1 (D. Ariz. Jan. 17, 2012) (“[W]e do not consider 

new arguments raised in a reply.” (citing Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th 

Cir.1990))); Sunburst Mins., LLC v. Emerald Copper Corp., 300 F. Supp. 3d 1056, 1060 

(D. Ariz. 2018) (“[T]he rule against introducing new facts on reply is not a new one in this 

district or in the Ninth Circuit. The rule exists to guard against unfairness and surprise.” 

(internal citations omitted)).

Despite this general rule, in certain instances a Court may exercise its discretion to 

consider new arguments raised for the first time on reply, but “[i]n order for the court to 

consider an argument raised for the first time in a reply brief, the opposing party must be 

given an opportunity to respond to the new argument.” Eaton Veterinary Pharm. Inc. v. 

Diamondback Drugs of Delaware LLC, No. 2:14-CV-1208-HRH, 2014 WL 6471427, at 

*3 (D. Ariz. Nov. 18, 2014). “Each time a moving party is permitted to raise new arguments 

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or present new evidence in reply, absent the Court granting leave for the non-moving party 

to file a sur-reply brief, the non-moving party is essentially deprived of the opportunity to 

address these new contentions.” Save the Peaks Coal. v. U.S. Forest Serv., No. CV09-

8163-PCT-MHM, 2010 WL 3800896, at *2 (D. Ariz. Sept. 22, 2010)

There is no question that defendants are raising new arguments and purported 

evidence for the first time on reply, as in their opening brief they asserted (incorrectly) that 

they did not need to make a showing under Monsanto, see Doc. 1366, at 8 (“[A] showing 

under Monsanto or Unimex is not required”), yet in their reply they purport to make the 

very same showing they originally claimed they did not need to make – while seeking to 

try and make this showing in camera. See Doc. 1390, at 4 (“Defendants show through 

sworn declarations, submitted in camera and under seal, that they have a dire need for these 

funds”). The government has plainly been “deprived of the opportunity to address these 

new contentions.” Save the Peaks, 2010 WL 3800896, at *2. Defendants strategically 

chose not to make a threshold showing in their moving brief, and instead, purported to

make this showing through in camera declarations attached to a reply, when the United 

States would not ordinarily be entitled to respond. The prejudice of permitting this filing is 

magnified because defendants are not simply offering new arguments and evidence, but as 

addressed in more detail in the United States’ proposed surreply, are claiming to make – in 

camera – a threshold showing they refused to make in their original motion. 

The Court can – and should – refuse to consider this new argument and purported

evidence. See MJG Enterprises, Inc. v. Cloyd, No. CV-10-0086-PHX-MHM, 2010 WL 

3842222, at *6 (D. Ariz. Sept. 27, 2010) (“The Ninth Circuit has consistently held that 

where new arguments and new evidence is submitted for the first time in a reply brief, the 

arguments and evidence may be stricken.” (citing Cedano–Viera v. Ashcroft, 324 F.3d 

1062, 1066 n.5 (9th Cir. 2003))). If the Court does not disregard this new argument and 

evidence outright, however, the United States requests leave to file the accompanying 

proposed surreply, which details why defendants’ attempt to make their required Monsanto

showing in camera is procedurally improper, unsupported by controlling law,

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fundamentally unfair, and would violate basic principles regarding the public’s right of 

access to judicial documents. 

CONCLUSION

The United States respectfully requests that the Court permit the United States to 

file a Surreply in Further Opposition to Defendants’ Motion to Partially Vacate Seizure 

Warrants and Release Funds (Doc. 1366).

Respectfully submitted this 18th day of November, 2021.

GLENN B. McCORMICK

Acting United States Attorney

District of Arizona

s/Dan G. Boyle DAN G. BOYLE

Special Assistant U.S. Attorney

KEVIN M. RAPP

MARGARET PERLMETER

PETER S. KOZINETS

ANDREW C. STONE

Assistant U.S. Attorneys

KENNETH POLITE

Assistant Attorney General 

U.S. Department of Justice 

Criminal Division, U.S. Department of Justice

REGINALD E. JONES

Senior Trial Attorney

U.S. Department of Justice, Criminal Division

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CERTIFICATE OF SERVICE

I hereby certify that on November 18, 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/Marjorie Dieckman

U.S. Attorney’s Office

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Case 2:18-cr-00422-DJH Document 1397 Filed 11/18/21 Page 6 of 6