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Joy Malby Bertrand (AZ Bar No. 024181) 

JOY BERTRAND ESQ LLC 

P.O. Box 2734 

Scottsdale, Arizona 85252 

Telephone: (602)374-5321 

Facsimile:(480)361-4694 

joy.bertrand@gmail.com 

Attorney for Joye Vaught 

Paul J. Cambria, Jr. (NY 15873, admitted pro hac vice) 

Erin E. McCampbell (NY 4480166, admitted pro hac vice) 

LIPSITZ GREEN SCIME CAMBRIA LLP 

42 Delaware Avenue, Suite 120 

Buffalo, New York 14202 

Telephone: (716) 849-1333 

Facsimile: (716) 855-1580 

pcambria@lglaw.com 

emccampbell@lglaw.com 

Attorneys for Defendant Michael Lacey

Additional counsel listed on next page 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

vs. 

Michael Lacey, et al., 

 

 Defendants. 

NO. CR-18-00422-PHX-DJH 

WRITTEN SUPPLEMENT TO ORAL 

MOTION TO DISMISS COUNT 1 OF THE 

SUPERSEDING INDICTMENT

Case 2:18-cr-00422-DJH Document 1744 Filed 08/31/23 Page 1 of 6
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Gary S. Lincenberg (CA Bar No. 123058, admitted pro hac vice) 

Gopi K. 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 

Facsimile: (310) 201-2110 

glincenberg@birdmarella.com 

aneuman@birdmarella.com 

gpanchapakesan@birdmarella.com 

Attorneys for John Brunst 

Bruce Feder (AZ Bar No. 004832) 

FEDER LAW OFFICE PA 

2930 E. Camelback Road, Suite 160 

Phoenix, Arizona 85016 

Telephone: (602) 257-0135 bf@federlawpa.com 

Attorney for Scott Spear

Eric Kessler 

KESSLER LAW GROUP 

6720 N. Scottsdale Rd., Suite 210 

Scottsdale, AZ 85253 

Telephone: (480) 644-0093 

 eric@kesslerlawgroup.com 

Attorney for Scott Spear 

David Eisenberg (AZ Bar No. 017218) 

DAVID EISENBERG PLC 3550 N. Central Ave., Suite 1155 

Phoenix, Arizona 85012 

Telephone: (602) 237-5076 

Facsimile: (602) 314-6273 

david@deisenbergplc.com

Attorney for Andrew Padilla 

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In response to the Government’s objections to the Court’s proposed preliminary jury 

instructions, Defendants orally moved to dismiss Count 1 of the Superseding Indictment, 

which charges a conspiracy to violate the Travel Act, because the Superseding Indictment 

alleges that the “object of the conspiracy was to obtain money” (Doc. 230, ¶ 197), which is 

not a federal offense. Defendants file this supplement to more fully set forth the grounds 

advanced orally in open court. 

 “An indictment charging a conspiracy under 18 U.S.C. § 371 should allege an 

agreement, the unlawful object toward which the agreement is directed, and an overt act in 

furtherance of the conspiracy.” United States v. Lane, 765 F.2d 1376, 1380 (9th Cir. 1985) 

(emphasis added). “Under 18 U.S.C. § 371, a single charge of conspiracy can have multiple 

objects, but each object alleged must constitute a federal offense.” United States v. Johnson, 44 

F. App’x 752, 754 (9th Cir. 2002); United States v. Manarite, 44 F.3d 1407, 1414 (1995) (same).

 “The failure of an indictment to detail each element of the charged offense generally 

constitutes a fatal defect.” United States v. Keith, 605 F.2d 462, 464 (9th Cir. 1979). “The very 

purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to 

offenses charged by a group of his fellow citizens acting independently of either prosecuting 

attorney or judge.” Russell v. United States, 369 U.S. 749, 771 (1962). “To allow the 

prosecutor, or the court, to make a subsequent guess as to what was in the minds of the 

grand jury at the time they returned the indictment would deprive the defendant of a basic 

protection which the guaranty of the intervention of a grand jury was designed to secure. 

For a defendant could then be convicted on the basis of facts not found by, and perhaps not 

even presented to, the grand jury which indicted him.” Id. at 770. 

 Here, the Superseding Indictment alleges that the “object of the conspiracy was to 

obtain money” (Doc. 230, ¶ 197), which plainly is not a federal offense. Even if the 

Superseding Indictment can be read as alleging multiple objects, with one of those objects 

(Travel Act violations) being a federal offense, the Superseding Indictment still would be 

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fatally defective because “each object alleged must constitute a federal offense.” See Johnson, 

44 F. App’x at 754. 

 In Johnson, the Ninth Circuit reversed a conspiracy conviction where the indictment 

alleged three objects that were federal offenses, and one that was not, saying “a conspiracy 

conviction is ‘doom[ed]’ if the indictment alleges both legally sufficient and legally 

insufficient objects and there is ‘no way to know which objects the jury relied on in its 

decision to convict [the defendants] of conspiracy.’” Id. (alterations in original). 

Importantly, in Johnson, the indictment alleged that three objects of the conspiracy were the 

violation of federal laws relating to prostitution and one object of the conspiracy was to 

“obtain the proceeds of prostitution from females the defendants had recruited to work as 

prostitutes,” which is not a federal offense. Johnson, 44 F. App’x at 754. The government’s 

suggestion that the object of “to obtain money” would be “permissible as long as 

Defendants used unlawful means when obtaining the money” is inconsistent with the Ninth 

Circuit’s holding in Johnson, where that court held that the object of obtaining the proceeds 

of prostitution was “legally insufficient.”1 Id. 

 Although the narrow issue presented in Johnson was the sufficiency of the conviction, 

the deficiencies that caused the Ninth Circuit to reverse the conviction in that case apply 

equally to a challenge to the sufficiency of an indictment. See United States v. Outler, 659 F.2d 

1306, 1310-11 (5th Cir. 1981). In Outler, the Fifth Circuit held that the district court erred in 

failing to dismiss the conspiracy allegations in the indictment for being insufficient to charge 

an offense, notwithstanding the defendant’s conviction at trial, holding: 

 

1 Even if the Superseding Indictment could be construed in its totality, as the government 

suggests, to allege that the object of the conspiracy was to obtain money through violations 

of the Travel Act, it is impossible to know whether that is how the grand jury construed the 

Superseding Indictment, particular in light of the direct and clear language of the 

Superseding Indictment that the object simply was to “obtain money.” United States v. 

Caplan, 633 F.2d 534 (9th Cir. 1980) does not overcome Johnson. Caplan not only did not 

address the requirements for a conspiracy indictment, but the case was 22 years prior to 

Johnson. 

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“There is no question that a grand jury indictment must set forth each essential 

element of an offense in order for a resulting conviction to stand... [T]he Fifth 

Amendment guarantees the right of a grand jury indictment to each defendant 

prosecuted for an ‘infamous’, or serious, crime. A grand jury can perform its 

function of determining probable cause and returning a true bill only if all 

elements of the offense are contained in the indictment... Unless every element 

of an offense appears in the indictment, it is impossible to assure the defendant 

that a grand jury properly determined probable cause of the offense... We have 

little doubt that the grand jury in this case still would have returned a true bill 

against the appellant if the indictment had been constructed properly. 

Moreover, each member of the grand jury most likely considered the very 

element which is fatally omitted... However, we cannot speculate. ‘To allow ... 

a subsequent guess as to what was in the minds of the grand jury at the time 

they returned the indictment would deprive the defendant of a basic protection 

which the guarantee of the intervention of a grand jury was designed to secure.’ 

Russell v. United States, 369 U.S. at 770, 82 S.Ct. at 1050.” 

Id. 

 Because the Superseding Indictment explicitly alleges an object of the conspiracy in 

Count 1 that is not a federal offense, and at most alleges objects that are and are not a 

federal offense, Count 1 of the Superseding Indictment is fatally defective and should be 

dismissed. 

 Dated: August 31, 2023 

 

 /s/ Paul J. Cambria, Jr.

 Paul J. Cambria, Jr., Esq. 

 Erin McCampbell Paris, Esq. 

 Attorneys for Defendant Michael Lacey 

/s/ Joy Bertrand

 Joy Bertrand, Esq., 

 Attorneys for Defendant Joye Vaught

 /s/ Gary S. Lincenberg 

Gary S. Lincenberg, Esq. 

Gopi K. Panchapakesan, Esq. 

Attorneys for John Brunst 

 /s/ Bruce Feder 

 Bruce Feder, Esq. 

 Attorneys for Defendant Scott Spear 

 /s/ Eric Kessler

 Eric Kessler, Esq. , 

 Attorneys for Defendant Scott Spear

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 /s/ David Eisenberg

 David Eisenberg, Esq. 

 Attorneys for Defendant Andrew Padilla

Clerk of the Court using the CM/ECF 

System for filing and for Transmittal 

Of a Notice of Electronic Filing to the 

Following CM/ECF registrants: 

Kevin Rapp, kevin.rapp@usdoj.gov 

Peter Kozinets, peter.kozinets@usdoj.gov 

Margaret Perlmeter, margaret.perlmeter@usdoj.gov 

Andrew Stone, andrew.stone@usdoj.gov 

Austin Berry, austin.berry2@usdoj.gov 

Case 2:18-cr-00422-DJH Document 1744 Filed 08/31/23 Page 6 of 6