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Paul J. Cambria, Jr. (NY Bar No.1430909, admitted pro hac vice) 

Erin McCampbell Paris (NY Bar No. 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 Michael Lacey 

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 

DEFENDANT LACEY’S 

SUPPLEMENTAL CITATION OF 

AUTHORITIES IN SUPPORT OF 

DEFNDANTS’ MOTION FOR 

RECONSIDERATION OF ORDER 

DENYING DEFENDANTS’ MOTION 

TO DISMISS THE SUPERSEDING 

INDICTMENT 

 Defendant Michael Lacey submits this supplemental citation of authorities in support 

of Defendants’ pending Motion for Reconsideration of Order Denying Defendants’ Motion 

to Dismiss the Superseding Indictment to inform the Court of two pertinent and controlling 

decisions of the Ninth Circuit Court of Appeals. In the first, the Ninth Circuit ordered the 

dismissal of an indictment that failed to allege an implied, but necessary, mens rea element 

(acting knowingly or willingly), rendering the indictment fatally deficient—a deficiency that 

could not be cured through the findings of a petit jury at trial, United States v. Du Bo, 186 F.3d 

1177, 1179-81 (9th Cir. 1999): 

“Du Bo was charged by indictment with a violation of 18 U.S.C. 

§ 1851 (‘the Hobbs Act’). More than two months before trial, 

he unsuccessfully challenged the indictment as defective for 

failing to specify the necessary mens rea. On appeal, he argues 

Case 2:18-cr-00422-DJH Document 1639 Filed 07/17/23 Page 1 of 3
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that the indictment is fatally flawed and that he need not show 

prejudice from the flaw to obtain reversal. We agree. 

Although not stated in the Hobbs Act itself, criminal intent—

acting ‘knowingly or willingly’—is an implied and necessary 

element that the government must prove for a Hobbs Act 

conviction. ‘[I]mplied, necessary elements, not present in the 

statutory language, must be included in an indictment.’ The 

indictment charges Du Bo only with ‘unlawfully’ affecting 

commerce by the ‘wrongful’ use of force. Under our Hobbs 

Act jurisprudence, such terms do not connote the proper mens 

rea for a Hobbs Act conviction. The indictment on its face is 

deficient.... 

Du Bo’s conviction requires reversal because his indictment 

fails to ensure that he was prosecuted only ‘on the basis of the 

facts presented to the grand jury....’ At common law, ‘the most 

valuable function of the grand jury was ... to stand between the 

prosecutor and the accused, and to determine whether the 

charge was founded upon credible testimony....’ ... The Fifth 

Amendment thus requires that a defendant be convicted only 

on charges considered and found by a grand jury. 

Failing to enforce this requirement would allow a court to 

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

they returned the indictment....’ Such guessing would ‘deprive 

the defendant of a basic protection that the grand jury was 

designed to secure,’ by allowing a defendant to be convicted ‘on 

the basis of facts not found by, and perhaps not even presented 

to, the grand jury that indicted him.’ We may only guess 

whether the grand jury received evidence of, and actually passed 

on, Du Bo’s intent. We may never know if the grand jury would 

have been willing to ascribe criminal intent to Du Bo. Refusing 

to reverse in such a situation would impermissibly allow 

conviction on a charge never considered by the grand jury. 

Du Bo’s conviction also must be overturned because his 

indictment lacks a necessary allegation of criminal intent, and as 

such does not ‘properly allege an offense against the United 

States.’ Such a failure ‘generally constitutes a fatal defect’ that 

can not be cured through jury instructions, because a 

‘completely missing essential element’ leaves ‘nothing for a petit 

jury to ratify.’ Specifically, the ‘failure to include the element of 

willfulness ... renders [an] indictment constitutionally defective.’ 

It is not amenable to harmless error review.... 

The error was no mere clerical error; the indictment listed 

specific legal terms that do not, for purposes of the Hobbs Act, 

state the requisite intent.” 

(internal citations omitted). 

 In the second, the Ninth Circuit ordered the dismissal of an indictment that the 

government and district court said tracked the statutory language because the indictment 

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failed to allege an essential mens rea element (knowledge of status as a felon), construing Du 

Bo as requiring that an indictment missing an essential element “must” be dismissed and that 

“automatic dismissal” on appeal is required even if the missing element was proven beyond a 

reasonable doubt at trial, United States v. Qazi, 975 F.3d 989, 991-92 (9th Cir. 2020): 

“In this circuit an indictment missing an essential element that is 

properly challenged before trial must be dismissed....If a 

defendant properly challenges an indictment before trial and, on 

de novo appellate review, we determine the indictment omitted 

an essential element, Du Bo requires automatic dismissal 

regardless of whether the omission prejudiced the defendant.... 

Indeed, following this rule, we have dismissed an indictment 

and reversed the district court even when the missing element 

was proven beyond a reasonable doubt at trial.” 

(emphasis in original). 

 RESPECTFULLY SUBMITTED this 17th day of July, 2023, 

Paul J. Cambria, Jr. 

Erin McCampbell Paris 

LIPSITZ GREEN SCIME CAMBRIA LLP 

 By: /s/ Paul J. Cambria, Jr. 

Paul J. Cambria, Jr. 

Attorneys for Michael Lacey 

On July 17, 2023, a PDF version of this document was 

filed with Clerk of the Court using the CM/ECF System 

for filing and for Transmittal of a Notice of Electronic 

Filing to the to the CM/ECF registrants who have 

entered their appearance as counsel of record 

Case 2:18-cr-00422-DJH Document 1639 Filed 07/17/23 Page 3 of 3