1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

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 

NICOLE M. ARGENTIERI 

Acting Assistant Attorney General 

Criminal Division, U.S. Department of Justice 

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’ MOTION TO 

PRECLUDE TESTIMONY OF AUSAs 

STONE AND BOYLE 

(Expedited Consideration Requested) 

[Hearing: 2:30 p.m., Nov. 14, 2023] 

Case 2:18-cr-00422-DJH Document 1970 Filed 11/14/23 Page 1 of 6
- 2 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

INTRODUCTION

The United States respectfully moves to preclude Defendants from calling as 

witnesses Assistant United States Attorneys (AUSAs) Andrew C. Stone and Dan G. Boyle 

at the evidentiary hearing set for 2:30 p.m. today, November 14, 2023. (See Doc. 1969, 

Order Setting Evidentiary Hearing.) At 8:20 p.m. yesterday evening, November 13, 2023, 

Defendants emailed a “Joint Witness List for Evidentiary Hearing on 11.14.23” that listed 

five witnesses whom Defendants indicated that they intend to call at today’s hearing. (See

Exhibit A (11/13/23 email from Mali Evans and attached Joint Witness List.) The list 

includes AUSAs Stone and Boyle. Both attorneys have long been a part of the prosecution 

team and have actively litigated numerous aspects of this case and related proceedings.

Calling these prosecutors as witnesses is unreasonable, oppressive, and unnecessary—and 

the Court should preclude Defendants from calling them here. The United States also 

respectfully requests an expedited ruling at the outset of the hearing, as the AUSAs cannot 

both be witnesses and counsel in the same hearing.

ARGUMENT

I. Defendants Have Failed to Comply with the Applicable Touhy Regulations 

Defendants should be precluded from calling AUSAs Stone and Boyle for numerous 

reasons, including that the AUSAs have never before appeared on a witness list in this 

matter, Defendants have never subpoenaed the AUSAs to testify, and Defendants have 

never satisfied—or even attempted to satisfy—the U.S. Department of Justice regulations 

that govern, among other things, when an employee of the Department may be compelled 

to provide information or testimony. These regulations can be found at 28 C.F.R. §§ 16.21-

16.29 and are commonly referred to as Touhy regulations. See United States ex. rel. Touhy 

v. Ragen, 340 U.S. 462 (1951). 

The Touhy regulations are a mandatory prerequisite to obtaining testimony or other 

information from a Department employee, and the regulations must be complied with 

before the Department can respond to any such demand. See United States v. Bizzard, 674 

F.2d 1382 (11th Cir.), cert. denied, 459 U.S. 973 (1982); United States v. Allen, 554 F.2d 

Case 2:18-cr-00422-DJH Document 1970 Filed 11/14/23 Page 2 of 6
- 3 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

398 (10th Cir.), cert. denied, 434 U.S. 836 (1977); United States v. Wallace, 32 F.3d 921 

(5th Cir. 1994); Smith v. Cromer, 159 F.3d 875, 879-80 (4th Cir. 1998). See also 28 C.F.R. 

§ 16.23(c) (discussing required procedures) and United States v. Carey, No. 11CR671 

WQH, 2018 WL 3303287, at *3 (S.D. Cal. July 5, 2018) (quashing subpoena for AUSA’s 

testimony).

Defendants have made no attempt to comply with the Touhy requirements here—

and they should be precluded from calling AUSAs Stone and Boyle at today’s hearing for 

this reason alone.

II. Defendants’ Have Failed to Demonstrate Any Compelling and Legitimate Need 

for the AUSAs’ Testimony.

Even if Defendants could otherwise satisfy the foregoing requirements, it is well 

established that a defendant may not call the opposing party’s lawyer as a witness without 

first “demonstrat[ing] a compelling and legitimate need to do so.” United States v. Wallach, 

788 F. Supp. 739, 743 (S.D.N.Y.). This “compelling need” standard is exacting. “[T]o 

determine whether there is such a compelling need, courts look to two factors: (1) whether 

the prosecutor possesses information vital to the defense, and (2) whether all other sources 

of possible testimony have been exhausted.” United States v. Wells, No. CRIM. 94-0191-

R, 1994 WL 421471, at *7 (S.D. Cal. July 5, 1994) (collecting cases).

On this latter point, the Ninth Circuit has been clear that “a United States Attorney

who participates in prosecuting a case should not be called as a witness unless all other 

sources of possible testimony have been exhausted” or the AUSA “play[s] no other role” 

in the case, besides being a witness. United States v. West, 680 F.2d 652, 654 (9th Cir. 

1982) (quotations omitted). See also United States v. Tubbs, No. CR05-5828FDB, 2007 

WL 2712977, at *1 (W.D. Wash. Sept. 14, 2007) (“A defendant has an obligation to 

exhaust other available sources of evidence before a court should sustain a defendant's 

efforts to call a participating prosecutor as a witness.”) (internal quotation omitted).

“Where witnesses other than the prosecutor can testify to the same matters in 

question, no compelling need exists.” United States v. Regan, 897 F. Supp. 748, 758 

Case 2:18-cr-00422-DJH Document 1970 Filed 11/14/23 Page 3 of 6
- 4 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(S.D.N.Y. 1995). “A court may only permit a prosecutor to testify if the offering party has 

exhausted all other available sources for that testimony.” United States v. Bin Laden, 91 F. 

Supp. 2d 600, 622–23 (S.D.N.Y. 2000). See also, e.g., United States v. Dupuy, 760 F.2d 

1492, 1498 (9th Cir. 1985) (no compelling need to call prosecutor to impeach witness 

where other witnesses and other avenues of impeachment were available); Wallach, 788 F. 

Supp. at 744 (no compelling need to call prosecutor because agents could testify to 

statements made in prosecutor’s presence). Here, no compelling need, or any need, exists 

that would allow Defendants to effectively disqualify any AUSAs on the prosecution team 

and render them unable to present the government’s arguments and examine witnesses at 

the upcoming hearing. The AUSAs can only know matters about the discovery materials 

by virtue of having been provided that information by agents or other witnesses. There is 

no need, much less a compelling need, to render the opposing party’s lawyer a witness.

Moreover, allowing Defendants to compel the other side’s lawyer would 

substantially prejudice the United States. As may be Defendants’ intention, it is not at all 

clear that an AUSA could continue in his role as counsel at the hearing in any capacity if 

he was also a witness. Certainly the AUSA would be unable to act as counsel during his 

own examination and to make arguments about his own testimony. For this very reason, 

allowing one side to make the other side’s lawyer a witness is inconsistent with the Rules 

of Professional Conduct, which generally prohibit a lawyer from acting as both an advocate 

and a witness. Ariz. R. Prof’l Resp. 3.7. This “Advocate-Witness Rule” is longstanding 

and serves to avoid prejudice to both the tribunal and the parties. See id. cmt 1. See McLain 

v. Calderon, No. CV 89-3061 JGD, 1995 WL 769176, at *34 (C.D. Cal. Aug. 22, 1995) 

(“Recognizing the possibility for abuse, the Ninth Circuit has erected a high threshold 

before criminal defendants will be permitted to force the disqualification of a participating 

prosecutor by designating them as witnesses.”) (internal quotation omitted).

There is a particularly acute possibility for abuse in allowing one side’s lawyer to 

be examined in the middle of active litigation—as is the case here. The United States has 

strong interests in maintaining work product and other privileges in the mental impressions 

Case 2:18-cr-00422-DJH Document 1970 Filed 11/14/23 Page 4 of 6
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

of its counsel. See generally Merritt v. Arizona, No. CV-17-04540-PHX-DGC, 2018 WL 

3729757, at *4 (D. Ariz. Aug. 6, 2018) (“As the Ninth Circuit explained in Holmgren v. 

State Farm Mutual Automobile Insurance Co., 976 F.2d 573 (9th Cir. 1992), opinion work 

product, including the mental impressions, conclusions, opinions, or legal theories of an 

attorney, is entitled to nearly absolute protection.”). Those interests would almost certainly 

be invaded if a lawyer was made a testifying witness in his own case. 

To be clear, if the Court has questions for either prosecutor, the AUSAs will 

certainly answer them. As an officer of the Court, “honest response of the government to 

direct judicial inquiry is a prosecutor’s professional obligation,” United States v. Allen, 434 

F.3d 1166, 1175 (9th Cir. 2006), and that more than suffices to ensure that any questions 

the Court has for the AUSAs are answered. But permitting the defense to render the 

prosecutor a witness and thereby to interfere with the prosecutor’s ability to represent the 

United States as counsel is far outside the norm and should not be allowed, particularly 

where law enforcement agents are available to be examined on the discovery here. 

CONCLUSION 

For the foregoing reasons, Defendants should be precluded from calling AUSAs 

Stone and Boyle as witnesses at the November 14, 2023 evidentiary hearing.

Respectfully submitted this 14th day of November, 2023.

 GARY M. RESTAINO 

 United States Attorney 

 District of Arizona 

 NICOLE M. ARGENTIERI 

Acting Assistant Attorney General 

Criminal Division, U.S. Department of Justice 

 s/Peter S. Kozinets 

 KEVIN M. RAPP 

 MARGARET PERLMETER 

 PETER KOZINETS 

 ANDREW STONE 

DANIEL BOYLE

 Assistant U.S. Attorneys 

 

 AUSTIN M. BERRY 

Trial Attorney 

Case 2:18-cr-00422-DJH Document 1970 Filed 11/14/23 Page 5 of 6
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

CERTIFICATE OF SERVICE 

I hereby certify that on November 14, 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/ Brian Wolfe 

Case 2:18-cr-00422-DJH Document 1970 Filed 11/14/23 Page 6 of 6