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feder law office, p.a.

2930 e. camelback road, suite 160

phoenix, arizona 85016

(602) 257-0135

bf@federlawpa.com

fl@federlawpa.com

Bruce Feder - State Bar No. 004832

Attorney for Defendant, Scott Spear

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America, )

)

)

Plaintiff, )

)

vs. )

)

Michael Lacey, et al., )

)

)

Defendant. )

)

)

)

)

)

NO. CR18-00422 PHX SMB-003

MOTION FOR IMMEDIATE

DISCOVERY REGARDING

THE GOVERNMENT’S

ABUSE OF GRAND JURY

AND TRIAL SUBPOENAS TO

OBTAIN DEFENSE LAWYER

BANK ACCOUNTS, AND FOR

POTENTIAL SANCTIONS

(Request for Expedited Oral

Argument and Evidentiary

Hearing)

The Defendant, Scott Spear, by and through his attorneys undersigned, and

pursuant to the Fourth, Fifth, and Sixth Amendments to the United States

Constitution, moves this Court for its order compelling the government to disclose:

1. The reason the government used Grand Jury subpoenas or trial

subpoenas to obtain all bank records for undersigned counsel’s client trust account,

including the names of and financial transactions with clients unrelated to this case,

and bank records for the operating and client trust accounts for other attorneys

representing Defendants, whether in this case or in other litigation related to

Backpage.com;

. . .

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2. How the government used or intended to use these records, and whether

the government anticipates using such records at trial or in regard to any pretrial

motions;

3. The name of any judicial officer and/or Department of Justice official,

if any, who authorized such subpoenas, and any written or electronic discussion of

the same; and

4. The reason the government disclosed the records obtained with these

subpoenas to all defense counsel in the present matter, exposing the names of clients

and financial transactions with those clients to all defense counsel in this case.

This Court is further requested to impose sanctions, including, but not limited

to, return of such records, preclusion of the use of such records, and such other

sanctions as may be appropriate after review of the above requested information.

This motion is based on the attached Memorandum of Points and Authorities,

the file in this matter, and such other arguments and evidence as may be presented.

It is expected that excludable delay pursuant to 18 U.S.C. §3161(h) may

occur as a result of this motion, or from in order based thereon.

RESPECTFULLY SUBMITTED this 17th day of April, 2019.

FEDER LAW OFFICE, P.A.

/s/ Bruce Feder

Attorney for Defendant, Scott Spear

MEMORANDUM OF POINTS AND AUTHORITIES

The initial Indictment was filed on March 28, 2018. The present Superseding

Indictment was returned on July 25, 2018, as required by the initial Scheduling Order

issued May 1, 2018.

. . .

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Since the Indictment, the government has made various discovery disclosures.

Defendants have discussed the problems they have had searching the government’s

voluminous disclosures in previous filings and arguments before this Court, and that

topic will be further discussed in the Status Report being filed today.

Notwithstanding those problems, undersigned counsel learned from the government’s

disclosure of March 14, 2019, that the government subpoenaed bank records for his

client trust account in August, 2018, apparently with a Grand Jury subpoena from an

unknown District for all records from 2017 to present, and again in November, 2018,

with a trial subpoena from this District for all records from 2015 to present (Exhibits

1A-1B). The subpoenas were not limited to client trust records related to this action,

but requested records for all transactions for all clients in excess of a specified

threshold.

The government’s March 14, 2019, disclosure also contained Grand Jury

subpoenas for the operating account of another lawyer representing a Defendant in

the present case and for the trust accounts of numerous other lawyers representing the

Defendants in other litigation related to Backpage.com. (Exhibits 2A-2C).

Additionally, the disclosure included subpoenas for bank records of the Defendants

themselves. Given the civil seizure warrants and civil forfeiture complaints issued

out of the District Court for the Central District of California starting in March, 2018,

the financial records of the Defendants obviously already have (or had) been

subpoenaed in 2017 – 2018 by the government.

Prior to learning of the government’s actions in March, 2019, the government

had not contacted the undersigned about any information relating to his client trust

account that the government might be entitled to obtain. On information and belief,

the government did not contact any of the other attorneys whose bank records were

subpoenaed and disclosed either.

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Upon learning of the government’s actions, and realizing the legal and ethical

concerns raised by these almost unprecedented actions, the undersigned attorney

asked the government to disclose the information the Court now is asked to compel

(email dated 4/1/2019). The government’s only response (email dated 4/4/2019) was

to tell the defense lawyers receiving the disclosure that the documents should be

“disregarded and deleted from your files.”

Undersigned counsel needs information regarding the government’s intentions

in subpoenaing this information, and then disclosing it to all defense counsel, to

determine whether further action is required. The government’s actions raise

questions concerning whether it has tried to create conflicts for defense counsel,

whether its actions are a continuation of its efforts to undermine Defendants’ right to

chosen counsel, and the like—issues which the Court should resolve promptly.

Further, the government’s possession of these documents has allowed it access

to confidential information, attorney work product and attorney-client privileged

information—and that information is for all clients for whom there have been

transactions involving the client trust account, not just defendants to this action.

Specifically, the government’s actions allow it to assess the Defendants’ ability to

fund a defense, as well allowing it to review all expenditures from undersigned

counsel’s trust account, giving it the improper opportunity to analyze contact with

consulting experts, investigators and other service providers. Regrettably, this is

consistent with a pattern of government actions seeking to invade and/or interfere

with attorney-client and work product privilege.

I. LAW.

Grand jury subpoenas may not be used to gather evidence if the primary

purpose is discovery for use at trial of a pending matter. See, United States v. (Under

Seal), 714 F.2d 347, 349 (4th Cir. 1983), cert. dismissed, 464 U.S. 978 (1983); United

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States v. Star, 470 F.2d 1214, 1217 (9th Cir. 1972). Since it is unclear what the

government’s purpose is in obtaining counsels’ bank records, the Court can only

determine the government’s intention on a case by case basis. In re: Grand Jury

Subpoenas, 906 F.2d 1485, 1494 (10th Cir. 1990); United States v. Perry, 857 F.2d

1346,1348 (9th Cir. 1988).

Without knowing the government’s purported reasons and intentions for

issuing these subpoenas, it is difficult to assess the propriety of the government’s

actions, but the issuance of Grand Jury subpoenas in California, when a criminal

proceeding exists in Arizona, seems highly questionable. The same is true for the

government requesting and obtaining all bank records for the client trust accounts or

operating accounts for Defendants’ counsel. Regardless of what explanation the

government may provide for the foregoing, the undersigned sees absolutely no

justification for the government’s disclosure of these sensitive documents to other

defense counsel or for the government subpoenaing all checks written from defense

counsel’s client trust accounts. Invasion of the attorney-client privilege requires an

evidentiary hearing. See, U.S. v. Danielson, 325 F.3d 1054 (9th Cir. 2003). The

government’s actions put squarely at issue whether it has invaded the undersigned

attorney’s representation strategy and actions (not only in this case, but in all cases

for which the government obtained confidential information).

The government’s obtaining of these sensitive records and subsequent

disclosure of the documents to all defense counsel also prejudicially implicates Rule

1.6 of the Arizona Rules of Professional Conduct, and may require defense counsel

to notify all of their clients whose records were involved of the disclosure. See State

Bar of Arizona and American Bar Association Ethics opinions. (Exhibit 3A-3B).

Given the government’s actions implicating the Defendants’ right to chosen

counsel, including the seizure of attorneys’ fees, the Court should compel the

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disclosure of the government’s rationale for its seemingly coordinated actions and

schedule oral argument and an evidentiary hearing as soon as possible.

DATED this 17th day of April, 2019.

FEDER LAW OFFICE, P.A.

/s/ Bruce Feder

Attorney for Defendant, Scott Spear

. . .

. . .

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CERTIFICATE OF SERVICE

I hereby certify that on the 17th day of April, 2019, I electronically transmitted

the foregoing to the Clerk of the Court via the CM/ECF system for filing and

transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

Kevin Rapp: Kevin.Rapp@usdoj.gov

Andrew Stone: Andrew.Stone@usdoj.gov

Margaret Perlmeter: Margaret.Perlmeter@usdoj.gov

John Kucera: John.Kucera@usdoj.gov

Reginald Jones: Reginald.Jones@usdoj.gov

Peter S. Kozinets: Peter.Kozinets@usdoj.gov

Attorneys for the United States

Anne Chapman: anne@mscclaw.com

Lee Stein: lee@mscclaw.com

Paul Cambria: pcambira@lglaw.com

James Grant: jimgrant@dwt.com

Erin McCampbell: emccampbell@lglaw.com

Robert Corn-Revere: bobcornrevere@dwt.com

Ronald London: ronnielondon@dwt.com

Janey Henze Cook: janey@henzecookemurphy.com

John Littrell: jlittrell@bmkattorneys.com

Kenneth Miller: kmiller@bmkattorneys.com

Whitney Bernstein: wbernstein@bmkattorneys.com

Michael Piccarreta: mlp@pd-law.com

Stephen M. Weiss: sweiss@karpweiss.com

Michael Kimerer: mdk@kimerer.com

Rhonda Neff: rneff@kimerer.com

Tom Bienert: tbienert@bmkattorneys.com

Gary Lincenberg: gsl@birdmarella.com

Ariel Neuman: aneuman@birdmarella.com

KC Maxwell: kcm@kcmaxlaw.com

David Wakukawa: dsw@kcmaxlaw.com

Seetha Ramachandran: Seetha.Ramachandran@srz.com

Attorneys for the Defense

By: /s/ A. Jones

Case 2:18-cr-00422-DJH Document 531 Filed 04/17/19 Page 7 of 7