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KESSLER LAW GROUP

Eric W. Kessler, SBN 009158

9237 E. Via de Ventura, Ste. 230

Scottsdale, AZ 85258

(480) 644-0093 phone

(480) 644-0095 fax

Eric.KesslerLaw@gmail.com

FEDER LAW OFFICE PA

Bruce S. Feder, 004832

2930 E. Camelback Rod., Ste. 160

Phoenix, Arizona 85016

(602) 257-0135 phone

bf@federlawpa.com

Knapp Counsel

Attorneys for Defendant Scott Spear

(Co-Counsel listed on following page)

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America, ) No. 2:18-cr-00422-DJH

)

 Plaintiff, ) DEFENDANTS’ REPLY TO

v. ) UNITED STATES’ RESPONSE

) TO FIRST SUPPLEMENT TO 

) DEFENDANTS’ MOTION TO

) DISMISS OR TO STRIKE

) TESTIMONY AND REQUEST

) FOR A HEARING DUE TO THE

) GOVERNMENT’S JENCKS AND

) BRADY/GIGLIO VIOLATIONS

Scott Spear, )

) (The Hon. Diane J. Humetewa)

Defendant. )

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Gary Lincenberg (CA Bar No. 123058, admitted pro hac vice)

Ariel Neuman (CA Bar No. 241594, admitted pro hac vice)

Gopi 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

Fax: (310) 201-2110

glincenbrg@birdmarella.com

aneuman@birdmarella.com

gpanchapakesan@birdmarella.com

Attorneys for John Brunst

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

Erin McCampbell Paris (NY Bar No. 4480166, admitted pro hac vice) 

LIPSITZ GREENE SCHIME CAMBRIA LLP

42 Delaware Avenue, Suite 120 Buffalo, 

New York 14202 Telephone: (716) 849-

1333

Fax: (716) 855-1580

pcambria@lglaw.com

emccampbell@lglaw.com

Attorneys for Michael Lacey

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Defendants, through counsel, reply in opposition to the Government’s aboveentitled Response (Doc. 1990). Defendants’ First Supplement is Doc. 1972 and filed 

November 15, 2023.

In setting a due date for the Government’s Response, the court instructed the 

Government to explain “...why the late disclosure, and do be very specific in terms of 

your answer.” (R.T. 11/17/2023, 12:9-11)

The Government alleged and argued many things in its Response, but one thing the 

Government did not do was explain why the disclosure was so late. The Government says 

nothing about how it managed not to produce the 18 Ferrer emails earlier—just that Mr. 

Versoza saved the emails to his disk to preserve them for later disclosure, and to avoid the 

automatic delete function that the Government describes. Why did Mr. Versoza not 

produce them to the prosecutors when Mr. Rapp sent his email regarding the Jencks 

deadline on January 8, 2019? (Doc. 1990, p. 4 and Exhibit 3 to Response) The response 

says nothing about this. The Government instead focuses on how quickly it produced them 

after the close of evidence once the Government realized the emails were not produced—

which is just handwaving and a distraction.

The prosecutors explained Mr. Versoza saved these emails to his disk because the 

USPIS email system automatically deletes old emails. This begs the question: what 

additional emails of Mr. Ferrer were NOT saved and were automatically deleted?

Did Mr. Rapp, or any other member of the prosecution team, ask Mr. Versoza for 

the Ferrer emails prior to trial? If not, why not? How could the Government determine 

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whether the emails constituted Jencks/Brady/Giglio material without seeing the emails? 

Conversely, if the prosecutors asked Mr. Versoza for the emails, did Mr. Versoza produce 

them? If not, why not? If so, why were they not disclosed until after evidence was 

closed?

Regarding Mr. Rapp’s January 8, 2019, email to “the prosecution team,” the 

Government’s Response does not indicate whether Mr. Versoza replied to that email. Nor 

does the Response confirm that Mr. Versoza received Mr. Rapp’s email. 

Mr. Rapp’s January 8, 2019, email also alerted all recipients that “1/14” 

(presumable 2019) was the date the prosecutors would review the witness list “to 

determine if all statements have been forwarded to Relativity.” (Doc. 1990, p. 4) Mr. 

Ferrer was on the witness list. The Response claims Mr. Versoza understood that emails 

with trial witnesses should be disclosed to the prosecutors, “even when the subject of the 

emails do (sic) not apply to the witness’s trial testimony.” (Doc. 1990. P.4) Finally, the 

Government claims that Mr. Versoza reviewed a sub-folder containing the Ferrer emails 

on November 9, 2023, and determined that “the emails were saved in a manner indicating 

to Inspector Versoza they had been previously produced.” (Doc 1990, p. 2) The 

Government does not explain how the “manner” in which the emails were saved led Mr. 

Versoza to believe the emails had been produced, nor on what basis Mr. Versoza could 

rely on the manner of saving the emails to be confident that the emails had been disclosed.

The Government’s explanation does not explain (1) whether Mr. Versoza received 

the January 8, 2019, email; (2) whether Mr. Versoza responded to anyone regarding Mr. 

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Rapp’s email; (3) what the prosecution team did on January 14, 2019 to determine if all 

statements have been forwarded to Relativity; (4) and why Mr. Versoza thought, on 

November 9, 2023, the sub-folder containing Mr. Ferrer’s emails had been disclosed. 

(Doc. 1990, p. 3)

Absent from the Government’s Response is any Declaration from Mr. Versoza, or 

anyone else, regarding his part in suppressing this evidence. 

The Government’s claims (1) “The United States promptly disclosed the Ferrer 

Forfeiture emails upon learning they had not been produced,” and (2) "While the Ferrer 

Forfeiture Emails did not relate to Ferrer’s trial testimony; the lack of prior disclosure was 

entirely inadvertent,” are not legally recognized excuses to a Jencks/Brady/Giglio

violation. 

In Brady v. Maryland, 373 U.S., at 87, 83 S.Ct., at 1197, held that suppression of 

material evidence justifies a new trial “irrespective of the good faith or bad faith of the

prosecution.” In Giglio v. U.S., 405 U.S. 150, 154 (1972), “whether the nondisclosure 

was a result of negligence or design, it is the responsibility of the prosecutor. The 

prosecutor's office is an entity and as such it is the spokesman for the Government.”

The Government cites United States v. Dupuy, 760 F.2d 1492 (9th Cir. 1985) to 

suggest the Government’s inadvertence is a viable excuse for nondisclosure of 

Jencks/Brady/Giglio material. Dupay is distinguished from the instant case, as it 

concerned the Government’s failure to produce an edited version of the original witness 

statement, yet the Government had produced the original, unedited version. As such, the 

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defense already had the entirety of the witness’ statement. The Court did not excuse the 

Government’s failure to produce the edited version because it found the Government acted 

in good faith or was simply inadvertent. Instead, the Court found the edited, undisclosed 

statement to lack materiality. 

Blaming Mr. Versoza is of no benefit to the Government, as Mr. Versoza is part of 

the investigation team for the Government. In U.S. v. Wood, 57 F.3d 733 (1995), the 

Ninth Circuit explained that, for Brady purposes, the investigators and the prosecutor were 

the same. “The government cannot with its right hand say it has nothing while its left 

hand holds what is of value. United States v. Endicott, 869 F.2d 452, 455 (9th Cir.1989); 

cf. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971).

The government in the form of the prosecutor cannot tell the court that there is nothing 

more to disclose while the agency interested in the prosecution holds in its files 

information favorable to the defendant.”

Having failed to address what the Court specifically asked it to address, the 

Government focuses on a different argument; namely, the emails were not Jencks/Brady 

Giglio material, so it does not matter when the emails were disclosed. This argument 

lacks merit and is a red-herring designed to distract this Court from what interested the 

Court the most – the “very specific” reasons the emails were not disclosed.

Mr. Ferrer’s plea agreement required his cooperation in all facets of the 

investigation, including assisting Mr. Versoza and others with identifying assets subject to 

foreclosure. According to the Response, Mr. Ferrer sought the information about 

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Backpage.com’s funds in numerous attorneys’ IOLTA trust accounts from Stephanie 

Parks. Upon receipt of that information, Mr. Ferrer attached the spreadsheet to his own 

email and forwarded it on to Mr. Versoza. (Doc. 1990, p. 9-10)

Jencks material includes statements made or adopted by the witness. Consistent 

with his obligations to the Government under the plea agreement, Mr. Ferrer located, 

assembled and transmitted the IOLTA trust account information to the Government. If 

Mr. Ferrer did not believe that the IOLTA spreadsheet accurately informed the 

Government about those Backpage.com assets, Mr. Ferrer could hardly be fulfilling his 

obligations to the Government. Mr. Ferrer believed the information in the attached 

spreadsheets to be accurate and “adopted” that information for purposes of Jencks into his 

own emails. 

The Government claims that the emails are not Jencks material because they 

referenced attachments to the emails. The Government cited cases where Courts 

determined that attachments to witnesses’ emails were not Jencks material. For example, 

in U.S. v. Reed, 575 F.3d 900 (9th Cir. 2009), the defense sought the production under 

Jencks of notes taken by an investigator during an interview, which were later destroyed 

when the report was typed up. The report was not the statement of a witness, nor was the 

report adopted by that witness. In United States v. Bettencourt, 614 F.2d 214, 215-16 (9th

Cir. 1980), an investigator testified about what was in another officer’s report. The 

statement was not that of the witness. In United States v. Blas, 947 F.2d 1320, 1327

and n.6 (7th Cir. 1991), an investigator testified to what he read in another state police 

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officer’s report. Again, this other report was not the investigator’s statement. None of these 

cases are factually similar to the instant case.

 The Government next argues that Ferrer’s emails cover previously disclosed 

subjects. This is irrelevant in the context of Defendant’s First Supplement. The purpose of 

Jencks is to allow the defense to know what the witness has said previously. The defense

can determine whether there may be impeachment (Giglio), or exculpatory (Brady)

information contained therein. Such is the case at hand, regardless of whether the subject 

matter of the withheld evidence was “covered” by other documents. “Other documents” 

do not include Mr. Ferrer’s prior statements, which can be used for impeachment.

The Government repeatedly refers to the undisclosed Ferrer emails as “forfeiture 

emails.” Saying so repeatedly does not change the impeachment value of the emails 

during trial. 

The Government tries to diminish the materiality of what was valuable 

impeachment material by arguing that Mr. Ferrer was only cross examined on what was 

left in his attorney’s IOLTA account, as opposed to just how much of Backpage.com’s 

assets were made available to Mr. Ferrer to conduct his defense. (Doc. 1990, p. 6-8) The 

Government quoted a portion of a cross examination from the September 26, 2023, a.m. 

transcript at page 8, purportedly about how much Mr. Ferrer’s lawyers had been paid so 

far. A review of that transcript and page does not show any such testimony. 

Regardless of the apparent scrivener’s error by the prosecution, the Court should 

focus on the October 10, 2023, a.m. transcript at page 100:

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Q. When you provided that accounting, what's your

understanding of what the amount was that had been placed in

the attorney trust account?

A. I don't recall.

MR. RAPP: I'm going to object. This has been asked

and answered.

THE COURT: Well, no, it has not. But he answered he

doesn't remember.

THE WITNESS: I don't recall.

BY MS. BERTRAND:

Q. Do you have an estimate?

A. I do not.

Q. Is it more than a hundred thousand dollars?

A. Yes.

Q. More than $500,000?

A. Now I just don't recall. I don't have that number in front

of me.

(R.T. October 10, 2023, p. 100)(Emphasis Added.)

The Government devoted three pages of its Response trying to convince this Court 

of a falsehood; namely, that the defense never asked Mr. Ferrer how much money was 

placed in his attorney’s trust account. Not only did the prosecutors cite an irrelevant page 

in the trial transcript, but the argument was disingenuous.

Had Ms. Bertrand, or any other defense attorney that crossed Mr. Ferrer, known 

about the email with the attached spreadsheet showing it was Mr. Ferrer who told the 

Government that the amount was $4,000,000, they could have impeached Mr. Ferrer with 

his prior statement

From the standpoint of impeaching Mr. Ferrer, being able to establish that the 

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actual amount was $4,000,000, when he claimed he could not remember whether it even 

was more than $500,000, would have been rather important—particularly given Mr. 

Ferrer’s ability to remember minutiae from inconsequential emails in 2007 and 2008—

compared to his claimed inability to recall that he’d given his lawyer $4,000,000 in 2017 

and 2018. Nobody on this jury would have believed that just slipped Mr. Ferrer’s mind.

In U.S. v. Bernal-Obese, 989 F.2d 331 (1993), the Government prosecuted an 

individual based upon the testimony of a confidential informant. That Court stated: “By 

definition, criminal informants are cut from untrustworthy cloth and must be managed and

carefully watched by the government and the courts to prevent them from falsely accusing 

the innocent, from manufacturing evidence against those under suspicion of crime, and 

from lying under oath in the courtroom. As Justice Jackson said forty years ago, ‘The use 

of informers, accessories, accomplices, false friends, or any of the other betrayals

which are ‘dirty business’ may raise serious questions of credibility.’” Id. at 333.

The Bernal Court cited with approval Lee v. United States, 343 U.S. 747, 757 

(1952), where our Supreme Court recognized that “A prosecutor who does not appreciate 

the perils of using rewarded criminals as witnesses risks compromising the truth-seeking 

mission of our criminal justice system. 

In Bernal, supra, the Court said “Because the government decides whether and 

when to use such witnesses, and what, if anything, to give them for their service, the 

government stands uniquely positioned to guard against perfidy. Accordingly, we expect 

prosecutors and investigators to take all reasonable measures to safeguard the system 

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against treachery. This responsibility includes the duty as required by Giglio to turn over 

to the defense in discovery all material information casting a shadow on a government 

witness's credibility.” Id at 333-334.

Finally, the Bernal Court stated that “Because we have made this choice, it is 

essential that relevant evidence bearing on the credibility of an informant-witness be 

timely revealed (1) to defense counsel as required by Giglio, and (2) to the ultimate trier of 

fact...” Id. at 335.

The defense also raised the issue of nondisclosure of Mr. Ferrer’s emails that 

showed Mr. Ferrer commonly used Proton Mail, even when communicating with the 

government pursuant to his obligations under the plea agreement. 

In his closing argument, Mr. Austin stated the following: “Maybe we should just 

stop regular emails and start using proton mail because they know what they’re doing is 

wrong, and they are trying to reduce the ability to see the evidence of that. I submit to you 

that that is evidence of a lack of good faith.” (See, trial transcripts 9/21/23 P.M. Session, 

pgs. 83-84; 9/22/23 A.M. Session, pgs. 50, 56-58 and 11/1/23 A.M. Session, pg. 58). 

Yet Mr. Ferrer’s emails, which were not disclosed, show consistent use of Proton 

Mail when emailing the government investigators. That information could have been used 

to impeach Mr. Ferrer, as there were numerous questions on direct examination about Mr. 

Ferrer’s use of Proton Mail. Mr. Austin’s argument that use of Proton Mail by Defendants 

was evidence of a lack of good faith. Good faith was a substantial defense raised by all 

Defendants, makes this nondisclosure material Jencks, Brady and Giglio evidence.

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Lastly, the Government suggests that the Jencks Act text does not authorize 

dismissal. (Doc. 1990, p.16) It then cites Reed, supra, as support for dismissal when 

there is a due process violation. (Doc. 1990, p. 16)

Brady and Giglio violations are due process violations. In Brady, the Court stated: 

“We now hold that the suppression by the prosecution of evidence favorable to an accused 

upon request violates due process where the evidence is material either to guilt or to 

punishment, irrespective of the good faith or bad faith of the prosecution.”

Further to this point, the Court in Bagely, supra, held that there is no distinction 

between impeachment and exculpatory evidence. Id. at 677. That Court further held: 

“The constitutional error, if any, in this case was the Government's failure to assist the 

defense by disclosing information that might have been helpful in conducting the crossexamination. As discussed above, such suppression of evidence amounts to a

constitutional violation only if it deprives the defendant of a fair trial. Consistent with ‘our 

overriding concern with the justice of the finding of guilt,’ United States v. Agurs, 427

U.S., at 112, 96 S.Ct., at 2401, a constitutional error occurs, and the conviction must be 

reversed, only if the evidence is material in the sense that its suppression undermines

confidence in the outcome of the trial.” Id. at 678.

Since the Government suppressed the Jencks/Brady/Giglio evidence until after the 

case went to the jury, the requested relief of striking Mr. Ferrer’s testimony is unavailable. 

/ / /

/ / /

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The Court may, however, if it deems the due process violation substantial, dismiss the 

case. In the alternative, the Court may grant a new trial.

RESPECTFULLY SUBMITTED this December 4, 2023.

 s/ Eric W. Kessler 

Eric W. Kessler, Esq.

Bruce Feder, Esq.

Attorneys for Defendant Spear

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CERTIFICATE OF SERVICE

I hereby certify that on December 4, 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/ Eric W. Kessler 

Eric W. Kessler, Esq.

Attorney for Defendant Spear

Case 2:18-cr-00422-DJH Document 2005 Filed 12/04/23 Page 14 of 14