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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

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.,

Defendant.

CR-18-422-PHX-DJH

UNITED STATES’ RESPONSE TO 

DEFENDANT LACEY’S AND 

DEFENDANT SPEAR’S MOTIONS

TO CONTINUE SENTENCING

[Docs. 2046, 2048]

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Defendant Lacey has attempted to complicate a straightforward issue. Lacey has 

expressed a desire for the Ninth Circuit to rule on Defendants’ appeals before he is retried. 

At the January status hearing, the United States informed the Court it was open to this idea, 

but only if Lacey was first sentenced on his count of conviction (Count 100). Accordingly, 

the United States believes the Court should sentence all three convicted Defendants at the 

same time. Defendants will then be permitted to raise whatever issues they deem 

appropriate to the Ninth Circuit. After the Ninth Circuit issues its mandate, then the United 

States will determine whether it will proceed to re-try Defendant Lacey or, alternatively, 

dismiss the remaining charges.

I. Sentencing Lacey On His Count Of Conviction And Holding Remaining 

Charges In Abeyance Is Supported By Law.

The United States believes the best path forward involves the following simple 

process: Lacey is sentenced  Lacey appeals  Ninth Circuit issues a mandate  Lacey 

is either retried on the remaining counts or the United States dismisses the outstanding 

charges.1

 This process is both supported by case law and assuages Lacey’s concerns. (Doc. 

2035 (citing United States v. Sandford, 293 F. Supp. 3d 370 (W.D.N.Y. 2018); United 

States v. Dusenbery, 246 F. Supp. 2d 802 (N.D. Ohio 2002); United States Mapp, 945 F. 

Supp. 43 (1996); United States v. Levasseur, 635 F. Supp. 251 (1986)).) Lacey has 

expressed concern that if a retrial occurs before the appeal and then the “Ninth Circuit finds 

legal error,” the parties would be facing a fourth trial. The United States agrees with this 

concern. As the Levasseur court wrote, the benefits to the parties are clear in sentencing a 

defendant on his count(s) of conviction and permitting the appeal to proceed before a 

retrial: “If the convictions are reversed, there will have been no needless complex and 

protracted second trial which might also result in a reversal based on the Second Circuit’s 

decision.” Id. at 254.

Lacey, however, appears to want his cake and eat it too. He wants to delay his 

1 Should the Ninth Circuit reverse and remand Lacey’s conviction on Count 100, 

the United States will determine how to proceed regarding that count at that time.

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sentencing until after Brunst and Spear argue their appeals. The Court expressed 

skepticism about this plan at the last status conference. The United States agrees. If Lacey 

wants the appeal to occur before any retrial, then he needs to be sentenced with the other 

two convicted defendants. 

II. Lacey’s and Spear’s Arguments For Continuance Aren’t Persuasive; 

Sentencings For All Three Defendants Should Occur In Mid-June

Lacey raises several other issues that purport to support his argument for delaying 

sentencing. They don’t. First, any potential negotiations to resolve the civil forfeiture 

action in the Central District of California are separate from Defendants’ sentencings in 

this criminal case. Similarly, Lacey’s argument about the United States’ decision not to 

seek a money judgment is of no consequence. Indeed, because Lacey’s count of conviction 

involves a discrete transaction, the United States doesn’t intend to seek a money judgment 

with respect to Count 100 now or after any retrial. No delay is needed.

Spear’s arguments for a continuance also fall flat. (Doc. 2048.) For some reason, 

Spear cites to the Communications Decency Act as somehow having relevance in 

determining his applicable guidelines. This reference is thoroughly confusing to the United 

States. In any event, the schedule laid out by Brunst in the recently filed stipulation (Doc. 

2045) appears to be workable for Spear’s counsel, even with his planned trip abroad in 

May and June.

The United States will not respond to all the specific issues raised by Lacey and 

Spear. It’s unnecessary. The United States has already stipulated to a brief continuance to 

Brunst’s sentencing hearing—until mid-June. The United States believes Lacey’s and 

Spear’s sentencing hearings should also be moved to that date. If mid-June doesn’t work

//

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for counsel, then a mutually agreeable time should be found in or around that same time 

period. Sentencing all three Defendants should happen as soon as practicable. 

Respectfully submitted this 29th day of March 2024.

GARY M. RESTAINO

United States Attorney

District of Arizona

s/ Andrew C. Stone__________________ KEVIN M. RAPP

MARGARET PERLMETER

PETER S. KOZINETS

ANDREW C. STONE

DAN G. BOYLE

Assistant U.S. Attorneys

NICOLE M. ARGENTIERI

Acting Assistant Attorney General Criminal Division, U.S. Department of Justice

AUSTIN M. BERRY

Trial Attorney

CERTIFICATE OF SERVICE

I hereby certify that on March 29, 2024, 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/ Gaynell Bunn

Gaynell Bunn

U.S. Attorney’s Office

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