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PICCARRETA DAVIS KEENAN FIDEL PC

2 East Congress Street, Suite 1000

Tucson, AZ 85701

(520) 622-6900

Michael L. Piccarreta

State Bar No. 003962

Email: mlp@pd-law.com

Attorney for Defendant Andrew Padilla

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA

United States of America,

 Plaintiff,

vs.

6. Andrew Padilla,

 (Counts 1-51)

 Defendant.

NO. CR-18-00422-06-PHX-SPL

DEFENDANTS’ JOINT STATUS 

REPORT

Defendants, by and through their attorneys undersigned, hereby submit their Status 

Report for the hearing scheduled for January 25, 2019.

Case 2:18-cr-00422-DJH Document 443 Filed 01/18/19 Page 1 of 15
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2

RESPECTFULLY SUBMITTED this 18th day of January, 2019.

PICCARRETA DAVIS KEENAN FIDEL PC

/s/ Michael Piccarreta

Attorney for Andrew Padilla

FEDER LAW OFFICE, PA

/s/ Bruce Feder

Attorney for Scott Spear

LIPSITZ GREEN SCIME CAMBRIA, LLP

/s/ Paul Cambria

Attorney for Michael Lacey

BIENERT MILLER & KATZMAN, PLC

/s/ Thomas Bienert, Jr.

Attorney for James Larkin

BIRD MARELLA BOXER WOLPERT 

NESSIM DROOKS LINCENBERG & 

RHOW PC

/s/ Gary Lincenberg

Attorney for Jed Brunst

KIMERER & DERRICK, PC

/s/ Michael Kimerer

Attorney for Jed Brunst

KARP & WEISS, PC

/s/ Stephen Weiss

Attorney for Joye Vaught

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DEFENDANTS’ JOINT STATUS REPORT

I. INTRODUCTION

The Defendants have requested a status conference because the Government’s 

actions since the beginning of the case have created constant interference with the 

Defendants’ ability to defend this case. Virtually all of the Defendants’ assets have been 

seized, virtually all of the money in their attorneys’ trust accounts designated to fund the 

defense has been been seized or is effectively frozen, and the Defendants are currently 

litigating those issues in the Central District of California and the Ninth Circuit Court of 

Appeals so they can continue to fund their defense. The Defendants therefore respectfully 

request that the Court continue Defendants’ upcoming deadlines for a period of four (4) 

months to allow time for the Ninth Circuit and Central District of California to address 

Defendants’ pending challenges to the Government’s seizures and determine whether 

Defendants will be able to continue to exercise their right to counsel of choice. Defendants 

further request that the Court set another status hearing approximately four months from 

now. 

Virtually all of the Defendants are without funds to pay for their defense. The 

Government seized nearly all their funds in overbroad and constitutionally deficient civil 

seizures executed at the outset of this case and in the ensuing months. Defendants have 

challenged those seizures as improper in the Central District of California, but, due to the 

Government’stactics, Defendants’ objections to the seizures have not yet been heard. These 

issues currently are on appeal before the Ninth Circuit Court of Appeals.

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The Government began seizing Defendants’ assets and the assets of Backpage and 

other companies in April of 2018. The Government assured counsel for two defendants at 

that time that the Government was not seeking attorney trust funds. The Government first 

mentioned its “concerns” about funds for Mr. Padilla’s representation in May of 2018, and 

Mr. Padilla’s counsel provided a detailed response, setting forth reasons they and Mr. Padilla 

believed the funds were not tainted and could not be subject to seizure or forfeiture (see Doc. 

360). The Government did not raise the matter again with Mr. Padilla’s counsel until, after 

months of vigorous litigation, the Court issued numerous rulings in mid-October 2018, 

including denying the Government’s attempt to disqualify the Davis Wright Tremaine firm. 

The Government obtained seizure warrants for the retainersshortly thereafter on October 31, 

2018.

Defendants also challenged the propriety of the seizure warrants for the attorney trust 

funds, first in this Court and then in the District Court for the Central District of California. 

Although the warrants expired, the Government obtained the bulk of the funds in these trust 

accounts under the threat of execution of the warrants. Despite Defendants’ challenges to the 

seizures, the Government has refused to return the funds. The Government has informed 

counsel for Defendants Padilla and Vaught that the trust funds they hold cannot be used to 

pay any fees earned after November 2018.(See Exhibit 1, attached hereto). The Government 

also has represented that it likely will seek to seize any funds remaining in the trust accounts, 

and that Defense Counsel may expose themselves to criminal liability if they use those funds 

to pay fees earned after November 2018. Thus, the Government has engaged in a pattern of 

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escalation resulting in the inability to use funds in attorney trust accounts.Challenges to these 

seizure warrants are currently in front of Magistrate Judge Rozella A. Oliver in California.

Additionally, the Government has produced over two terabytes of data to Defendants 

-- which likely translates to 10,000,000 to 22,000,000 documents.1 For some perspective, 

two terabytes of data is the equivalent of 2,000 pickup truck loads of paper documents.2 Due 

to the Government’s seizures, Defendants cannot pay the costs of reviewing these documents

-- which would include paying a third-party vendor to process and host these documents and 

 1 To date, the Government has produced over 2.2 terabytes (2,200 gigabytes) of data to 

Defendants. Although it is not possible to directly translate terabytes or gigabytes to a 

number of documents, the range typically is 5,000 documents per gigabyte to 25,000 

documents per gigabyte -- with 10,000 documents per gigabyte being the accepted 

norm. David Degnan, Accounting for the Costs of Electronic Discovery, Minnesota 

Journal of Law, Science & Technology, 2011, Vol. 12:1, p. 163. Using the 10,000 

documents per gigabyte norm, and 2,200 gigabytes of data, the Government’s 

production can be presumed to include roughly 22,000,000 documents. Even using the 

lowest figure in the range, 5,000 documents per gigabyte, the production likely includes 

at least 11,000,000 documents.

2 Degnan, p. 160 and fn. 67 (“1 gigabyte of data is equivalent to about 75,000 pages of 

documents, which would fill a pickup truck.”).

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then paying lawyers to review them.3

As a result of the Government’s actions, Defendants have been deprived of resources 

necessary to defend the case and have had to expend time and resources litigating the 

Government’s actions, while continuing their best efforts to prepare for trial and comply with 

their upcoming obligations in this case. Therefore, Defendants respectfully request that the 

 3 For Defendants to review these documents, there are two main costs: 1) the costs for a 

litigation support vendor to load, process, and host the documents on an electronic 

review platform like Relativity; and 2) the costs for personnel to review the documents. 

The costs for a litigation support vendor to load and cull data, with related costs, is 

typically in the range of $750 to $1,800 per gigabyte, with an industry average of about 

$1,000 per gigabyte. Degnan, p. 165. For 2,200 gigabytes, that would translate to 

$2,200,000. (This data processing cost would be incurred in addition to the cost for 

attorneys to review the data.)

 For the review of documents, the standard assumption is that a reviewer can review 

400 documents per day (allowing just over one minute to review each document, with 

eight hours of review each day). Degnan, p. 165. Even if Defendants could cull 1⁄2 the 

documents before review, by eliminating duplicates and obvious irrelevant documents 

with electronic tools, they would need to review 5,250,000 to 11,000,000 documents. 

To review that volume of documents across one year would require Defendants to 

engage 55 outsourced review lawyers on a full-time basis (400 documents per day x 55 

lawyers x 5 days/week x 48 weeks/year = ~5,250,000 documents)) or 115 review 

lawyers (for 11,000,000 documents). Assuming an hourly rate for review lawyers at $40 

per hour (the low end of the range for domestic reviewers, Degnan, p. 164), the cost for 

that initial review would be in the range of $4,576,000 to $9,568,000. Due to the 

Government’s seizure of assets, even a reduced review cannot be undertaken. These 

figures do not include the cost of the defense team reviewing the documents identified 

by the review team as being pertinent to the Government’s case or to the Defense. (And, 

if the number of documents per gigabyte turns out to be at the high end of the range, or 

if culling the documents removes less than 1⁄2 the documents, these rough estimates 

might understate the cost by a factor of two to ten.)

 Moreover, Defendants believe the 2.2 terabyte figure, and hence the review costs, will 

grow significantly over time, as the Government has produced little or none of what it 

has seized from Backpage.com, LLC last year -- likely many tens of millions of 

electronic records. The 2.2 terabyte figure also does not include a similarly enormous 

number of documents that the Government’s “partners” in California seized and are in 

the process of producing to Defendants.

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Court continue Defendants’ upcoming deadlines for a period of four months, to allow time 

for the Ninth Circuit and the Central District of California to address Defendants’ pending 

challenges and determine whether Defendants will be able to keep their counsel of choice.

II. PROCEDURAL HISTORY

1. The Government’s Initial Seizures of Defendants’ Assets

Commencing in April 2018, the Government seized, or otherwise caused to be 

frozen, millions of dollars of Defendants’ money and other assets. (See Doc. 360.) In early 

August, Defendants challenged the constitutionality of those seizures in the District Court 

for the Central District of California, which is the district that authorized the civil seizure 

warrants used to seize those assets, under the First, Fourth, Fifth, and Sixth Amendments, as 

well as on Franks grounds. (See Mot. to Vacate (Doc. 6), 18-CV-06742.)

With respect to their First Amendment challenge, Defendants argued that the 

government’s pursuit of the seizure of assets that constitute the proceeds of publishing 

activity before trial and a conviction through ex parte seizure warrants violated the First

Amendment, pointing to Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989), and Adult 

Video Ass’n v. Barr, 960 F.2d 781(9th Cir. 1992) (readopted in Adult Video Ass’n v. Reno, 

41 F.3d 503 (9th Cir. 1994)). Based on well-settled Supreme Court and Ninth Circuit 

authority, the Defendants believe that their efforts in the matter that is now pending before 

the Ninth Circuit will be successful.

In Fort Wayne Books, the Supreme Court reaffirmed that “rigorous procedural 

safeguards must be employed before expressive materials can be seized.” 489 U.S. at 62. 

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The Court outlined the “special rules” that must be followed to render a pretrial seizure of 

expressive materials acceptable. First, the establishment of “mere probable cause to believe 

a legal violation has transpired is not adequate” to permit the pretrial seizure of expressive 

materials. Id. at 66. Second, the government cannot achieve the pretrial restraint of 

expressive materials through ex parte seizure warrants. Instead, the government must 

establish the “claimed justification for seizing” expressive materials “in an adversary 

hearing.” Id. at 67. As a result, even though the materials that were seized prior to trial and 

without an adversary hearing might, ultimately, be forfeitable upon conviction, the Court 

explained that “the seizure at issue . . . [was] unconstitutional.” Id. at 65.

Years later the Ninth Circuit recognized these same principles in Barr. In discussing 

the pretrial seizure of expressive materials that had occurred in Fort Wayne Books and the 

case pending before it, the Ninth explained that “[t]he First Amendment will not tolerate such 

seizures until the government’s reasons for seizure weather the crucible of an adversary 

hearing.” Barr, 960 F.2d at 788.

Further, even though Fort Wayne Books and Barr dealt directly with expressive 

materials, it is well-settled that the profits or proceeds of participation in protected expression 

are subject to the same “special rules” concerning pretrial forfeiture as are expressive 

materials. In Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd., 

502 U.S. 105 (1991), the Court invalidated a law that “impose[d] a financial burden on 

speakers because of the content of their speech” as “presumptively inconsistent with the First 

Amendment.” Id. at 115. The profits or proceeds that flow from participation in protected 

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expression are part and parcel of protected expression. See United States v. Nat’l Treasury 

Emps. Union, 513 U.S. 454, 468-69 (1995) (recognizing that a statute that banned federal 

employees from accepting compensation for making speeches or writing articles “chills 

potential speech before it happens” because the “prohibition on compensation 

unquestionably imposes a significant burden on expressive activity”); American Library 

Ass’n v. Thornburgh, 713 F. Supp. 469, 484 n. 19 (D.D.C. 1989) (recognizing that the “pretrial seizure of non-expressive material [including printing presses, bank accounts, etc.] ex 

parte from a business engaged in expressive material also is unconstitutional”), rev’d on 

standing grounds sub nom. American Library Ass’n v. Barr, 956 F.2d 1178, 1194-96 (D.C. 

Cir. 1992); see also Citizens United v. F.E.C., 558 U.S. 310, 336-37 (2010) (explaining that 

law suppressing speech “may operate at different points in the speech process,” including by 

“imposing a burden by impounding proceeds on receipts or royalties”); United States v. 

Playboy Entm’t Grp., Inc., 529 U.S. 803, 812 (2000) (recognizing that reducing the 

profitability of a business can infringe the First Amendment because “[t]he distinction 

between laws burdening and laws banning speech is but a matter of degree”).

Indeed, the Department of Justice, too, knows that the proceeds of participation in 

protected expression are entitled to full First Amendment protection. In the wake of Simon 

& Schuster, the Department of Justice amended its Criminal Resource Manual explaining 

that special forfeiture statutes that had allowed the government to seek forfeiture of “proceeds 

received or to be received by criminals convicted of violent crimes from sales of the literary 

rights to their stories about their crimes” should not be enforced “because there is little doubt, 

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if any, that they are inconsistent with the First Amendment.” U.S. D.O.J. Criminal Resource 

Manual § 1104 (quotations omitted).

Critically, numerous courts have recognized that the publication of classified 

advertisements, even advertisements for adult services, are protected expression. See 

Backpage.com, LLC v. Dart, 807 F.3d 229, 231 (7th Cir. 2015) (recognizing that Backpage’s 

publication of classified advertisements constituted protected expression); Backpage.com, 

LLC v. McKenna, 881 F. Supp. 2d 1262, 1280-82 (W.D. Wash. 2012) (invalidating state law 

targeting Backpage and holding that the advertisements posted on the website are 

constitutionally protected speech); Backpage.com, LLC v. Hoffman, 2013 WL 4502097, at 

*8 (D.N.J. Aug. 20, 2013) (same regarding a different state law).

In response to Defendants’ challenges to the seizures, the Government employed a 

variety of procedural tactics to avoid having any court hear Defendants’ challenges. First, by 

way of an ex parte submission, the Government asserted that these issues should be 

addressed before this Court, not in the Central District of California. Then, while motions 

related to the seized assets were pending both in this Court and in the Central District of 

California, the Government filed dozens of civil forfeiture complaints in the Central District 

of California and moved ex parte for a stay of all civil forfeiture proceedings (including the 

motion pending in California), pending resolution of the criminal case. The Honorable R. 

Gary Klausner (U.S.D.J., C.D.C.A.) granted that motion. The stay order and the 

constitutionally infirm civil seizures are currently on appeal before the Ninth Circuit. 

Defendants do not anticipate that the Ninth Circuit will issue a decision on the appeal any 

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earlier than April 2019. As set forth in greater detail below, Defendants’ inability to obtain a 

prompt adversary hearing on the Government’s seizures has impacted this case.

2. The Government’s Seizures of Funds Contained in Attorney Trust 

Accounts

The Government’s recent seizure of funds contained in attorney trust accounts has 

seriously and adversely impacted Defense Counsel’s ability to prepare for trial and comply 

with the upcoming deadlines in this case. Defendants initially raised the validity of these 

seizures with this Court. Although the Government previously took the position in front of 

Judge Klausner that any issues pertaining to its seizures should be heard by this Court, the 

Government asserted the contrary position before this Court -- that the attorney trust account 

seizures should be dealt with by the District Court for the Central District of California, the 

court that issued the warrants. This Court agreed with the Government and denied the 

Motion. (Doc. 393).

Defendants, and counsel for other interested parties whose fees were also the subject 

of seizure warrants, then filed an Application and Motion to (1) Stay Execution of Seizure 

Warrants; and (2) Provide Notice to the Court of First Amendment and Franks Violations 

on November 21, 2018, in the Central District of California. The Government’s primary 

response was that these seizure warrants had expired, and therefore Defendants’ arguments 

were moot. This was despite the fact that the Government had obtained the bulk of the funds 

in the trust accounts under the threat of the impending seizures. The Government also 

indicated the likelihood the seizure warrants for any remaining retainers would be reissued. 

Moreover, the Government has refused to agree that Defense Counsel may draw upon any 

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funds remaining in their attorney trust accounts to cover their clients’ fees for any services 

rendered after November 2018, despite Defendants’ pending motion to stay those seizures.

On December 12, 2018, a hearing was held before Judge Oliver.4 Following this hearing, 

Judge Oliver ordered the parties to submit further briefing. Defendants’ motion now is fully 

briefed and the parties are awaiting a ruling from Judge Oliver.

III. PROPOSED SUBJECTS OF DISCUSSION AT THE STATUS 

CONFERENCE

Without a current ability to access adequate funds to pay for their defenses, 

Defendants cannot meaningfully comply with their upcoming discovery obligations, 

including reciprocal Rule 16 discovery and expert disclosures, which are due on March 4 

and March 14, 2019, respectively. The Government’s actions have effectively precluded

Defendants from continuing to pay for their counsel of choice, who have represented them 

since (and sometimes before) the indictment was issued.

Under these circumstances, it is exceedingly difficult for the Defendants to continue 

to prepare for trial and comply with their upcoming discovery obligations. Defense Counsel 

 4 During the December 12 hearing, in response to a question from Judge Oliver regarding 

the Government’s “de facto” seizures of the remaining funds contained in the attorney trust 

accounts, counsel for the Government stated that the use of these funds to pay for the costs 

of the defense might be viewed by the Government “as being criminal activity 

prospectively.” This implied threat has precluded most of Defendants from funding their 

defense by using retainer money that the Government may seek to seize (again) at some point 

in the future. Notably, the Government’s efforts to deprive Defendants of access to trust 

funds deposited to fund their defenses stands in stark contrast to the position the Government 

has taken on the trust funds held by the defense counsel for cooperators Ferrer and Hyer, as 

it has permitted the cooperators’ counsel to freely expend similarly-sourced funds in their 

trust accounts.

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cannot retain experts, who will require retainers and some assurance that their fees will be 

paid. It is highly unlikely that any expert would agree to provide services under the 

circumstances. Defense Counsel also have been unable to make any meaningful review of 

the documents produced by the Government.

Defendants therefore request that the Court continue their upcoming obligations 

under the current Scheduling Order for four (4) months, to allow time for the Ninth Circuit 

Court of Appeals and the District Court for the Central District of California to address 

Defendants’ pending challenges to the Government’s seizures. Defendants further request 

that the Court set another status hearing approximately four months from now.5 Depending 

on the timing and substance of the decisions of the Ninth Circuit Court of Appeals and the 

District Court for the Central District of California, Defendants may need to seek other relief 

from this Court.

 5By seeking to extend certain upcoming deadlines, Defendants are not asking the Court 

to defer ruling on any pending motions, including, but not limited to, Defendant Lacey’s 

pending Motion for Release of Funds (Doc. 385). Lacey’s motion concerns funds that 

are unrelated to Backpage -- funds originating with Voice Media Group, Inc. and paid 

in connection with its purchase of The Village Voice and other print newspapers in 

2013. Release of these approximately $1.1 million in funds would enable Lacey’s 

counsel to continue to pursue his client’s interests in this matter.

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DATED this 18th day of January, 2019.

PICCARRETA DAVIS KEENAN FIDEL PC

/s/ Michael Piccarreta

Attorney for Andrew Padilla

FEDER LAW OFFICE, PA

/s/ Bruce Feder

Attorney for Scott Spear

LIPSITZ GREEN SCIME CAMBRIA, LLP

/s/ Paul Cambria

Attorney for Michael Lacey

BIENERT MILLER & KATZMAN, PLC

/s/ Thomas Bienert, Jr.

Attorney for James Larkin

BIRD MARELLA BOXER WOLPERT 

NESSIM DROOKS LINCENBERG & 

RHOW PC

/s/ Gary Lincenberg

Attorney for Jed Brunst

KIMERER & DERRICK, PC

/s/ Michael Kimerer

Attorney for Jed Brunst

KARP & WEISS, PC

/s/ Stephen Weiss

Attorney for Joye Vaught

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CERTIFICATE OF SERVICE

I hereby certify that on the 18th day of January, 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

Amanda Wick: Amanda.Wick@usdoj.gov

Attorneys for the United States

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

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

Tom Henze: Tom@henzecookmurphy.com

Attorneys for the Defense 

By: /s/ Melissa Hahn

Case 2:18-cr-00422-DJH Document 443 Filed 01/18/19 Page 15 of 15