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DEFENDANTS’ JOINT MOTION REQUESTING STATUS CONFERENCE

Thomas H. Bienert, Jr. (admitted pro hac vice)

 tbienert@bklwlaw.com

Whitney Z. Bernstein (admitted pro hac vice)

 wbernstein@bklwlaw.com

BIENERT KATZMAN LITTRELL WILLIAMS LLP

903 Calle Amanecer, Suite 350

San Clemente, CA 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

Attorneys for James Larkin

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

 pcambria@lglaw.com

Erin McCampbell (admitted pro hac vice)

 emccampbell@lglaw.com

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

Attorneys for Michael Lacey

[Additional counsel listed on next page]

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-00422-004-PHX-DJH

DEFENDANTS’ JOINT MOTION 

REQUESTING STATUS 

CONFERENCE

Assigned to Hon. Diane J. Humetewa

Trial Date: February 9, 2022

Case 2:18-cr-00422-DJH Document 1378 Filed 11/04/21 Page 1 of 9
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DEFENDANTS’ JOINT MOTION REQUESTING STATUS CONFERENCE

Gary S. Lincenberg (admitted pro hac vice)

 glincenberg@birdmarella.com

Ariel A. Neuman (admitted pro hac vice)

 aneuman@birdmarella.com

Gopi K. Panchapakesan (admitted pro hac vice)

 gpanchapakesan@birdmarella.com

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW, P.C.

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: (310) 201-2100

Facsimile: (310) 201-2110

Attorneys for John Brunst

Bruce Feder (AZ Bar No. 004832)

 bf@federlawpa.com

FEDER LAW OFFICE, P.A.

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

Telephone: (602) 257-0135 

Attorney for Scott Spear

David Eisenberg (AZ Bar No. 017218)

 david@deisenbergplc.com

DAVID EISENBERG PLC

3550 N. Central Ave., Suite 1155

Phoenix, Arizona 85012

Telephone: (602) 237-5076

Facsimile: (602) 314-6273

Attorney for Andrew Padilla

Joy Malby Bertrand (AZ Bar No. 024181)

 joy.bertrand@gmail.com

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

Telephone: (602)374-5321

Facsimile: (480)361-4694

Attorney for Joye Vaught

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DEFENDANTS’ JOINT MOTION REQUESTING STATUS CONFERENCE

Defendants Lacey, Larkin, Spear, Brunst, Padilla, and Vaught (collectively, 

“Defendants”) hereby request that the Court set a status conference at the Court’s earliest 

convenience, prior to any hearing on pending substantive motions, and preferably whereby out 

of town counsel have the option of participating by Zoom. The government does not oppose 

Defendants’ request for a status conference.

Defendants request a status conference so that the Court can address the following 

matters:

1) Inquiry regarding potential appearance of lack of impartiality

As this Court is aware, three judges have recused themselves from this case (for 

undisclosed reasons, with two recusing after presiding for a significant amount of time). With 

respect to the immediate past judge, Defendants moved for recusal over a year ago based upon 

Attorney General Brnovich’s adversity to Backpage.com (Dkt. 1059). In denying Defendants’ 

motion for recusal at that time, Judge Brnovich criticized Defendants for not raising the issue 

earlier. Because Defendants are aware of some facts that could cause a reasonable person with 

knowledge of the facts to conclude that Your Honor’s impartiality might reasonably be 

questioned, Defendants request a status conference to alert the Court in a timely manner.1

Defendants are aware that Your Honor held at least one press conference with various 

organizations to raise awareness of human trafficking, some of which organization may be 

affiliated with witnesses on the government’s witness list. Defendants are also aware of Your 

Honor’s close personal and professional connection with the late Senator John McCain and his 

wife, Cindy McCain, as well as Your Honor’s significant support for organizations associated 

with the McCains, including financial contributions to the McCain Institute. The McCains and 

1 See In re Bernard, 31 F.3d 842, 847 (9th Cir. 1994) (“Counsel for a party who believes a 

judge’s impartiality is reasonably subject to question has not only a professional duty to his client 

to raise the matter, but an independent responsibility as an officer of the court. Judges are not 

omniscient and, despite all safeguards, may overlook a conflict of interest. A lawyer who 

reasonably believes that the judge before whom he is appearing should not sit must raise the 

issue so it may be confronted and put to rest. Any other course would risk undermining public 

confidence in our judicial system.”).

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DEFENDANTS’ JOINT MOTION REQUESTING STATUS CONFERENCE

the McCain Institute have been outspoken critics of Backpage.com2 and a driving force behind 

political efforts to shut down the site. For example:

• On January 10, 2017, the McCain Institute posted the following message to its 

website: “The McCain Institute is pleased to share the report of the Senate 

Permanent Subcommittee on Investigations3 entitled: Backpage.com’s Knowing 

Facilitation of Online Sex Trafficking. It is the culmination of almost two years 

of investigation and highlights the reprehensible practice of advertising and 

selling children online for sex by backpage.com. Hiding behind the 

Communications Decency Act, backpage.com has caused immeasurable harm, 

ruined lives, and destroyed families, while profiting handsomely. By using “strip 

terms from ad” filters, they knowingly advertised underage victims for sale for 

sex. Mrs. McCain and the McCain Institute have diligently focused attention on 

the need to shut down backpage.com’s facilitation of sex trafficking and are 

pleased that the attached report and January 10, 2017, Senate hearing have 

succeeded.”

• Following the issuance of the indictment in this case, in connection with an 

azcentral.com article entitled, “Cindy and John McCain laud Backpage seizure,” 

Cindy McCain was quoted as saying that the seizure of Backpage means “the 

federal government means business now.” Former Senator John McCain 

released a statement that read: “The seizure of the malicious sex marketplace 

Backpage.com marks an important step forward in the fight against human 

trafficking.”

• On January 9, 2020, the McCain Institute posted on Twitter the following 

statement from Cindy McCain: “We shut down the biggest perpetrator of all, 

2 The McCain Institute is also associated with at least one of the government’s trial 

witnesses.

3 Senator McCain was a prominent member of the committee.

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DEFENDANTS’ JOINT MOTION REQUESTING STATUS CONFERENCE

that was an organization called backpage.” On the McCain Institute’s Twitter 

page, there are nearly 40 tweets regarding Backpage dating back to May 20, 2013.

• On August 11, 2017, Cindy McCain authored an op-ed for azcentral.com entitled, 

“My Turn: Why is it OK to sell Kids on websites like Backpage?”

• On September 27, 2017, in a hearing on “Human Trafficking of American Indian 

and Alaska Natives” before the Senate Committee on Indian Affairs, Cindy 

McCain provided a statement that read, in part, “[b]ecause of their exotic beauty, 

Native girls are also sold for a very high price on websites like backpage.com. 

Backpage has been found to be complicit in writing ads that vaguely attempt to 

disguise the selling of these precious children for sex. In other words, Backpage 

knowingly promotes the abuse of our beautiful Native American children along 

with other ethnicities.” (emphasis in original).

• During the same hearing, Senator John McCain stated that human trafficking on 

reservations is “rampant” and that “websites like Backpage.com” are “knowingly 

exploiting Native Americans and Alaska natives.”

Further, Defendants Lacey and Larkin, through their work at the Phoenix New Times, have 

been highly critical of the McCains. For example, in 1989, they published an article entitled, 

“McCain: the Most Reprehensible of the Keating Five,” criticizing Senator McCain’s 

involvement in the Keating Five scandal. Then, in 1994, they published an article entitled, 

“Opiate for the Mrs.,” regarding Cindy McCain’s alleged addiction to prescription painkillers.

Finally, there is an acrimonious history between Defendants and Sheriff Arpaio that 

relates to the Phoenix New Times and resulted in Defendants Lacey and Larkin’s false arrest, and 

consequent lawsuit against Sheriff Arpaio and sizeable settlement with Maricopa County. As 

Your Honor served in leadership positions in the law enforcement community during Sheriff 

Arpaio’s tenure, Defendants inquire as to whether the Court had any communications relating 

to investigations or arrests of any Defendants that could influence the appearance of partiality.

In light of the foregoing, Defendants must raise and address the issue of whether the 

Court’s partiality may reasonably be questioned. See 18 U.S.C. § 455. These issues should be 

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DEFENDANTS’ JOINT MOTION REQUESTING STATUS CONFERENCE

addressed before the Court rules on any substantive motions. 

2) Adjudication of outstanding motions and other issues

Defendants request that the court set hearing dates for the following pending motions:

• Defendants’ Renewed Motion to Dismiss for Invasion of the Lawyer-Client 

Privilege (Dkt. 1238).

• Defendants’ Motion to Compel Government to Comply with its Brady and Giglio 

Obligations (Dkt. 1281).

• Defendants’ Motion to Partially Vacate Seizure Warrants and Release Funds to 

Defendants (Dkt. 1366).

• Consideration of prior rulings (i.e. on motions in limine) in light of developments 

at the first trial. 

• Jury instruction conference and consideration of a First Amendment preliminary 

jury instruction (particularly in light of the evidence the government presented 

during the prior trial).

3) Jury Questionnaire Schedule

Defendants request that the Court address the scheduling of mailing out the jury 

questionnaires, distribution of completed questionnaires to counsel with sufficient time to 

review, and a hearing to review hardships. Defendants further request that the Court address 

proposed changes to the questionnaire submitted by the parties. Dkts. 1348, 1349, 1352, 1360, 

1365.

4) Trial Schedule

Should this case proceed to trial as currently scheduled, Defendants seek to clarify 

whether (i) the Court sits for trial Tuesday through Friday of each week, and (ii) defense counsel 

Gary Lincenberg’s pre-paid travel on March 25-30, 2022, which was accommodated in the trial 

schedule Judge Brnovich’s courtroom deputy clerk previously circulated, will be accommodated 

in this Court’s schedule as well.

To discuss all of the foregoing issues, Defendants respectfully request a status 

conference before the Court.

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DEFENDANTS’ JOINT MOTION REQUESTING STATUS CONFERENCE

DATED: November 4, 2021 Respectfully submitted,

Thomas H. Bienert Jr.

Whitney Z. Bernstein

Bienert Katzman Littrell Williams LLP

By: /s/ Thomas H. Bienert, Jr.

Thomas H. Bienert Jr.

Attorneys for James Larkin

Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual 

(October 2020) § II (C) (3), Thomas H. Bienert, Jr. hereby attests that all other signatories listed, and on 

whose behalf this filing is submitted, concur in the filing’s content and have authorized its filing.

DATED: November 4, 2021 Paul J. Cambria

Erin McCampbell

Lipsitz Green Scime Cambria LLP

By: /s/ Paul J. Cambria

Paul J. Cambria

Attorneys for Michael Lacey

DATED: November 4, 2021 Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

Bird, Marella, Boxer, Wolpert, Nessim,

Drooks, Lincenberg & Rhow, P.C.

By: /s/ Gary S. Lincenberg

Gary S. Lincenberg

Attorneys for John Brunst

DATED: November 4, 2021 Feder Law Office, P.A.

By: /s/ Bruce S. Feder

Bruce S. Feder

Attorney for Scott Spear

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DEFENDANTS’ JOINT MOTION REQUESTING STATUS CONFERENCE

DATED: November 4, 2021 The Law Office of David Eisenberg, PLC

By: /s/ David Eisenberg

David Eisenberg

Attorney for Andrew Padilla

DATED: November 4, 2021 Joy Bertrand Esq. LLC

By: /s/ Joy Malby Bertrand

Joy Malby Bertrand 

Attorney for Joye Vaught

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DEFENDANTS’ JOINT MOTION REQUESTING STATUS CONFERENCE

CERTIFICATE OF SERVICE 

I hereby certify that on November 4, 2021, 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 1378 Filed 11/04/21 Page 9 of 9