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MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION TO MOTION TO QUASH

Thomas H. Bienert, Jr. (CA Bar No.135311, admitted pro hac vice)

Whitney Z. Bernstein (CA Bar No. 304917, admitted pro hac vice)

BIENERT KATZMAN LITTRELL WILLIAMS LLP

903 Calle Amanecer, Suite 350

San Clemente, California 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

tbienert@bklwlaw.com

wbernstein@bklwlaw.com

Attorneys for James Larkin

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA 

United States of America,

Plaintiff,

vs.

Michael Lacey, et al., 

 

Defendants.

Case No. 2:18-cr-00422-PHX-DJH

MOTION FOR EXTENSION OF TIME

TO RESPOND TO VINCENT 

FERRER’S AMENDED MOTION TO 

QUASH (DKT. 1443)

Defendant James Larkin, by and through his undersigned counsel, hereby submits the 

instant motion for an extension of time to oppose the Amended Motion to Quash Subpoena 

Served on Vincent Ferrer at Dkt. 1443 (“Motion to Quash”). The Motion to Quash was filed by 

Ferrer’s attorney on December 28, 2021 in response to a trial subpoena that was served on Ferrer 

nearly four months earlier on August 30, 2021. See Dkt. 1443 at 3:5-7. While the September 1, 

2021 trial listed on Ferrer’s subpoena ended on September 14, 2021 when Hon. Bnrovich declared 

a mistrial (see Dkt. 1308), all trial subpoenas were reconfirmed to apply to a retrial in this matter 

(see Dkt. 1353). However, on January 3, 2022, Mr. Larkin and his co-defendants filed a notice of 

appeal to the Ninth Circuit of this Court’s denial of their Motion to Dismiss with Prejudice. See 

Dkt. 1445. This appeal is currently pending before the Ninth Circuit (see Lacey, et al. v. United States, 

Case 2:18-cr-00422-DJH Document 1450 Filed 01/11/22 Page 1 of 3
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MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION TO MOTION TO QUASH

No. 22-10000 (9th Cir.)) and the District Court is accordingly divested of jurisdiction over trial 

related matters pending the appeal (see, e.g., Stewart v. Donges, 915 F.2d 572, 575-76 (10th Cir. 

1990) (“an interlocutory appeal from an order refusing to dismiss on double jeopardy or 

qualified immunity grounds relates to the entire action and, therefore, it divests the 

district court of jurisdiction to proceed with any part of the action against an appealing 

defendant.”); United States v. Trabelsi, No. 06-CR-89 (RDM), 2021 WL 430911, at *12 

(D.D.C. Feb. 5, 2021) (the Double Jeopardy Clause protects against not only double 

convictions but also against even the ‘risk’ or ‘potential’ of a second conviction for the 

same crime. It is thus generally understood that ‘an interlocutory appeal from an order 

refusing to dismiss on double jeopardy ... grounds relates to the entire action and, 

therefore, it divests the district court of jurisdiction to proceed with any part of the action 

against an appealing defendant.’”) (internal citations omitted)). Accordingly, Mr. Larkin

respectfully requests an extension of time to file his opposition until no fewer than two weeks 

from the resolution of the Ninth Circuit appeal, should the Ninth Circuit deny relief. 

This motion will not result in any excludable delay under 18 U.S.C. § 3161(h). A proposed 

order is attached for the Court’s consideration.

RESPECTFULLY SUBMITTED this 11th day of January, 2022,

BIENERT KATZMAN LITTRELL 

WILLIAMS LLP

s/ Whitney Z. Bernstein

Thomas H. Bienert, Jr.

Whitney Z. Bernstein

Attorneys for James Larkin

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CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE 

I hereby certify that on January 11, 2022, 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/ Toni Thomas 

Toni Thomas

Case 2:18-cr-00422-DJH Document 1450 Filed 01/11/22 Page 3 of 3