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

DISQUALIFY COUNSEL

Thomas H. Bienert, Jr., State Bar No. 135311

tbienert@bmkattorneys.com

Kenneth M. Miller, State Bar No. 151874

kmiller@bmkattorneys.com

John L. Littrell, State Bar No. 221601

jlittrell@bmkattorneys.com

BIENERT, MILLER & KATZMAN, PLC

903 Calle Amanecer, Suite 350

San Clemente, California 92673

Telephone (949) 369-3700

Facsimile (949) 369-3701

Attorneys for Defendant

James Larkin

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA

Plaintiff

v.

MICHAEL LACEY, ET AL.

Defendants

Case No. CR-18-00422-PHX-SPL (BSB)

MOTION FOR EXTENSION OF TIME TO 

FILE OPPOSITION TO GOVERNMENT 

MOTION TO DISQUALIFY COUNSEL

Defendants James Larkin and Michael Lacey, through their undersigned counsel of 

record, hereby move for an extension of their deadline to respond to the United States’ 

pending Motion to Disqualify Counsel filed on April 25, 2015 (Doc. 118). Defendants 

request that the Court extend the response deadline to June 6, 2018 (from the current 

deadline of May 23, 2018).

The government’s motion goes to the heart of Defendants’ Sixth Amendment rights

to counsel of their choice—here, the firm of Davis Wright Tremaine LLP (“DWT”), 

which has been lead counsel in cases concerning the First Amendment and Internet issues 

related to Backpage.com for over six years. Defendants request an extension for several 

reasons:

Case 2:18-cr-00422-DJH Document 149 Filed 05/18/18 Page 1 of 9
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MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION TO GOVERNMENT MOTION 

TO DISQUALIFY COUNSEL

First, the government agreed to an extension of the motion response deadline to

June 6, 2018 for the Henze Cook Murphey, PLC (“HCM”) firm, which is the other target 

of the government’s motion to disqualify. There is no good reason why the portion of its 

motion attacking DWT should be heard on a different and more accelerated schedule. 

The defense unsuccessfully attempted to resolve this issue through personal consultation 

with the government.

Second, Defendants need additional time to consult with counsel on the ethics 

issues the government has raised and because of other commitments and scheduling 

conflicts of the lead counsel for DWT in connection with this matter. 

Third, based on recent disclosures and positions of the government, an extension 

may be conducive for the parties to further discuss and perhaps resolve the issues raised 

by the government’s motion. 

Given the importance of the issue, Defendants submit that an additional two weeks 

is reasonable. That is particularly so given that the government agreed to the same 

extension for Henze Cook Murphy, PLC (HCM), and granting this motion would put all 

responses in the same time frame. 

The defense does not expect that this motion will result in an excludable delay 

under 18 U.S.C. § 3161(h).

Dated: May 18, 2018 /s/ Kenneth M. Miller 

BIENERT, MILLER & KATZMAN, PLC

Attorneys for Defendant James Larkin 

 /s/ Paul J. Cambria, Jr. 

 LIPSITZ GREENE SCIME CAMBRIA LLP

 Attorneys for Defendant Michael Lacy

Case 2:18-cr-00422-DJH Document 149 Filed 05/18/18 Page 2 of 9
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3

MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION TO GOVERNMENT MOTION 

TO DISQUALIFY COUNSEL

432032-1

MEMORANDUM OF POINTS AND AUTHORITIES

Defendants request their deadline to respond to the United States’ pending Motion 

to Disqualify Counsel, filed on April 25, 2015 (Doc. 118), be extended by two weeks to 

June 6, 2018. The current deadline is May 23, 2018. 

The government’s motion goes to the heart of Defendants’ Sixth Amendment rights

to counsel of their choice. 

Sixth Amendment right to counsel of choice...commands, not that a trial be fair, but that 

a particular guarantee of fairness be provided -- to wit, that the accused be defended by 

the counsel he believes to be best. . . . The right to select counsel of one’s choice...has 

been regarded as the root meaning of the constitutional guarantee. . . . Where the right 

to be assisted by counsel of one’s choice is wrongly denied, therefore, it is unnecessary 

to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment 

violation. . . . Deprivation of the right is ‘complete’ when the defendant is erroneously 

prevented from being represented by the lawyer he wants, regardless of the quality of 

the representation he received. 

United States v. Gonzalez-Lopez, 548 U.S. 140, 146-48 (2006).

The counsel at issue is Davis Wright Tremaine (DWT). As the government is well 

aware, DWT has obtained successful results all across the country for Defendants in

proceedings involving Backpage.com.

1

 So this is a huge issue to Defendants, who need 

more time to prepare an adequate response. And there is good cause to give these 

 1 A partial list includes successfully enjoining state criminal laws directed at Backpage’s operations on 

the grounds that these activities are protected by the First Amendment. See Backpage.com LLC v. 

Cooper, 939 F.Supp.2d 805 (M. D. Tenn. 2013); Backpage.com LLC v. Hoffman, 2013 WL 4502097 

(D. N. J. 2013); Backpage.com LLC v. McKenna, 881 F.Supp.2d 1262 (W. D. Wash. 2012). Other 

successes include Jane Doe No. 1 v. Backpage.com LLC, 817 F.3d 12, 21 (1st Cir. 2016) [“Features 

such as [Backpage’s decisions about how to treat postings], which reflect choices about what content 

can appear on the website and in what form, are editorial choices that fall within the purview of 

traditional publisher functions”]; and Backpage.com LLC v. Dart, 807 F.3d 229 (7th Cir. 2015)

[recognizing First Amendment protections for Backpage’s activities and finding that county sheriff’s 

demand that credit card companies prohibit use of their cards to purchase any ads on Backpage 

violated Backpage’s First Amendment rights].

Case 2:18-cr-00422-DJH Document 149 Filed 05/18/18 Page 3 of 9
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4

MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION TO GOVERNMENT MOTION 

TO DISQUALIFY COUNSEL

Defendants an extension. 

First, the government agreed to an extension of the motion response deadline to 

June 6, 2018 for the Henze Cook Murphey, PLC (“HCM”) firm, which is the other target 

of the government’s motion to disqualify. There is no good reason why the portion of its 

motion attacking DWT should be heard on a different and more accelerated schedule. 

The defense unsuccessfully attempted to resolve this issue through personal consultation 

with the government.

Second, Defendants need additional time to consult with counsel on the ethics 

issues the government has raised and because of other commitments and scheduling 

conflicts of the lead counsel for DWT in connection with this matter. 

Third, based on recent disclosures and positions of the government, an extension 

may be conducive for the parties to further discuss and perhaps resolve the issues raised 

by the government’s motion.

Accordingly, Defendants submit that a 2-week extension for them to file a response 

to the government’s motion to disqualify counsel is both reasonable and appropriate. 

Defendants have concurrently submitted a motion for an accelerated hearing on this 

matter to take place on May 23, 2018 at 9:00 a.m. There is a previously scheduled 

hearing in this case to take place on that date and time. See Doc. 143. 

Dated: May 18, 2018 /s/ Kenneth M. Miller 

BIENERT, MILLER & KATZMAN, PLC

Attorneys for Defendant James Larkin 

 /s/ Paul J. Cambria, Jr. 

 LIPSITZ GREENE SCIME CAMBRIA LLP

 Attorneys for Defendant Michael Lacy

Case 2:18-cr-00422-DJH Document 149 Filed 05/18/18 Page 4 of 9
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1

PROOF OF SERVICE

CERTIFICATE OF SERVICE

I, Toni Lindemann, declare, 

That I am a citizen of the United States and am a resident or employed in Orange 

County, California; that my business address is 903 Calle Amanecer, Suite 350, San 

Clemente, California 92673; that I am over the age of 18 and not a party to the aboveentitled action. 

That I am employed by a member of the United States District Court for the 

Central District of California and at whose direction I caused service of: MOTION 

FOR EXTENSION OF TIME TO FILE OPPOSITION TO GOVERNMENT 

MOTION TO DISQUALIFY COUNSEL on the interested parties as follows: 

X BY ELECTRONIC TRANSMISSION: by electronically filing the foregoing 

with the Clerk of the District Court using its ECF System pursuant to the Electronic Case 

Filing provision of the United States District Court General Order and the EGovernment Act of 2002, which electronically notifies said parties in this case: 

SEE ATTACHED SERVICE LIST 

 BY MAIL - I deposited such envelope in the mail at San Clemente, California. The 

envelope was mailed with postage thereon fully prepaid. I am “readily familiar” with 

the firm's practice of collection and processing correspondence for mailing. Under that 

practice it would be deposited with the U.S. Postal Service on that same day with 

postage thereon fully prepaid at San Clemente, California in the ordinary course of 

business. I am aware that on motion of the party served, service is presumed invalid if 

postal cancellation date or postage meter date is more than one (1) day after date of 

deposit for mailing in affidavit. 

This certificate was executed on May 18, 2018, at San Clemente, California. I 

certify under penalty of perjury that the foregoing is true and correct. 

/s/ Toni Lindemann

Toni Lindemann

Case 2:18-cr-00422-DJH Document 149 Filed 05/18/18 Page 5 of 9
COUNSEL REPRESENTING

Anne M. Chapman

Mitchell Stein & Carey PC

1 Renaissance Sq. 

2 N Central Ave., Ste. 1900 

Phoenix, AZ 85004 

Email: anne@mscclaw.com

Michael Lacey, Scott Spear, John Brunst, Dan 

Hyer, Andrew Padilla, Joye Vaught 

Lee Stein

Mitchell Stein & Carey PC

1 Renaissance Sq. 

2 N Central Ave., Ste. 1900 

Phoenix, AZ 85004 

lee@mscclaw.com

Michael Lacey, Scott Spear, John Brunst, Dan 

Hyer, Andrew Padilla, Joye Vaught 

Larry Debus

Debus Kazan & Westerhausen Limited

335 E Palm Ln. 

Phoenix, AZ 85004-1532 

lld@dkwlawyers.com

Michael Lacey

Larry Kazan

Debus Kazan & Westerhausen Limited

335 E Palm Ln. 

Phoenix, AZ 85004-1532 

lik@dkwlawyers.com

Michael Lacey

Gregory M. Zamora

Debus Kazan & Westerhausen Limited

335 E Palm Ln. 

Phoenix, AZ 85004-1532 

gmz@dkwlawyers.com

Michael Lacey

James C. Grant

Davis Wright Tremaine LLP

1201 3rd Ave., Ste. 2200 

Seattle, WA 98101-3045 

jimgrant@dwt.com

Michael Lacey

Robert Corn-Revere

Davis Wright Tremaine LLP

1919 Pennsylvania Ave. NW, Ste. 800 

Washington, DC 20006 

bobcornrevere@dwt.com

Michael Lacey

Ronald G. London

Davis Wright Tremaine LLP

1919 Pennsylvania Ave. NW, Ste. 800 

Washington, DC 20006 

ronnielondon@dwt.com

Michael Lacey

USA v. Lacey, et al.

USDC - Arizona Case No. CR-18-00422-PHX-SPL (BSB) 

Case 2:18-cr-00422-DJH Document 149 Filed 05/18/18 Page 6 of 9
Paul J. Cambria, Jr.

Liptsitz Green Scime Cambria LLP

42 Delaware Ave., Ste. 120 

Buffalo, NY 14202 

pcambria@lglaw.com

Michael Lacey

Janey Henze Cook

Henze Cook Murphy PLLC 

4645 N 32nd St., Ste. 150 

Phoenix, AZ 85018 

janey@henzecookmurphy.com

Michael Lacey

Bruce Feder

Feder Law Office PA

2930 E Camelback Rd., Ste. 160 

Phoenix, AZ 85016 

bf@federlawpa.com

Scott Spear

Michael D. Kimerer

Kimerer & Derrick PC

1313 E Osborn Rd., Ste. 100 

Phoenix, AZ 85014 

mdk@kimerer.com

John Brunst

Rhonda E. Neff

Kimerer & Derrick PC

1313 E Osborn Rd., Ste. 100 

Phoenix, AZ 85014 

rneff@kimerer.com

John Brunst

Gary S. Lincenberg

Bird Marella

1875 Century Park E # 23, Los Angeles, CA 

90067 

glincenberg@birdmarella.com

John Brunst

Ariel A. Neuman

Bird Marella

1875 Century Park E # 23, Los Angeles, CA 

90067 

aneuman@birdmarella.com

John Brunst

Gopi Panchapakesan

Bird Marella

1875 Century Park E # 23, Los Angeles, CA 

90067 

gpanchapakesan@birdmarella.com

John Brunst

KC Maxwell

Browne George Ross LLP

101 California St., Ste. 1225 

San Francisco, CA 94111 

kmaxwell@bgrfirm.com

Dan Hyer

USA v. Lacey, et al.

USDC - Arizona Case No. CR-18-00422-PHX-SPL (BSB) 

Case 2:18-cr-00422-DJH Document 149 Filed 05/18/18 Page 7 of 9
David Wakukawa

Browne George Ross LLP

101 California St., Ste. 1225 

San Francisco, CA 94111 

dwakukawa@bgrfirm.com

Dan Hyer

Michael L. Piccarreta

Piccarreta Davis Keenan Fidel PC

2 E Congress St., Ste. 1000 

Tucson, AZ 85701 

mlp@pd-law.com

Andrew Padilla

Jefferson Keenan

Piccarreta Davis Keenan Fidel PC

2 E Congress St., Ste. 1000 

Tucson, AZ 85701 

jlk@pd-law.com

Andrew Padilla

Stephen M. Weiss

Karp & Weiss PC

3060 N Swan Rd. 

Tucson, AZ 85712 

sweiss@karpweiss.com

Joye Vaught

Dominic Lanza

US Attorneys Office

40 N Central Ave, Ste 1800 

Phoenix, AZ 85004 

dominic.lanza@usdoj.gov

USA

John Jacob Kucera

US Attorneys Office - Los Angeles, CA 

312 N Spring St., Ste. 1200 

Los Angeles, CA 90012 

john.kucera@usdoj.gov

USA

Kevin M. Rapp

US Attorneys Office - Phoenix, AZ 

2 Renaissance Square 

40 N Central Ave., Ste. 1800 

Phoenix, AZ 85004-4408 

kevin.rapp@usdoj.gov

USA

Margaret Wu Perlmeter

US Attorneys Office - Phoenix, AZ 

2 Renaissance Square 

40 N Central Ave., Ste. 1800 

Phoenix, AZ 85004-4408 

margaret.perlmeter@usdoj.gov

USA

Reginald E. Jones

US Dept of Justice - Child Exploitation & 

Obscenity Section

USA

USA v. Lacey, et al. 

USDC - Arizona Case No. CR-18-00422-PHX-SPL (BSB) 

Case 2:18-cr-00422-DJH Document 149 Filed 05/18/18 Page 8 of 9
1400 New York Ave. NW, Ste. 600 

Washington, DC 20530 

reginald.jones4@usdoj.gov

USA v. Lacey, et al.

USDC - Arizona Case No. CR-18-00422-PHX-SPL (BSB) 

Case 2:18-cr-00422-DJH Document 149 Filed 05/18/18 Page 9 of 9