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Paul J. Cambria, Jr. (NY 15873, 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

Erin E. McCampbell (NY 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

emccampbell@lglaw.com

Attorneys for Defendant 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-SPL (BSB)

DEFENDANT LACEY’S

REPLY IN FURTHER SUPPORT OF 

MOTION TO STRIKE 

(Oral argument requested)

Defendant Michael Lacey, by and through his undersigned attorney, hereby submits the 

instant reply in further support of his Motion to Strike the Government’s Untimely Opposition 

to his Motion for Release of Funds Unrelated to Backpage and Request for Expedited Relief 

(“Motion to Strike”) (Doc. 415). The government has opposed the Motion to Strike 

(“Opposition to Motion to Strike”) (Doc. 423), but has not presented any compelling reasons for 

denying the Motion to Strike. 

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ARGUMENT

This Court should grant the Motion to Strike the government’s 

Opposition to the Motion for Release as untimely.

The Court should grant Mr. Lacey’s Motion to Strike the government’s Opposition to 

the Motion for Release. The government contends that: (1) it was not required to submit an 

opposition to the Motion for Release because the government assumed that the Motion for 

Release was resolved by this Court’s November 16, 2018 Order (“Order”) (even though the 

Order was silent on the Motion for Release); (2) but if the Motion for Release was not covered 

by the Order, the Opposition was not untimely because the government had 60 days from the 

date the Motion for Release was filed because the Motion for Release should be treated like a 

civil complaint under Rule 41(g) of the Federal Rules of Criminal Procedure (“Rule 41(g)”) and 

answers to such complaints are not due until 60 days after service; (3) but if the Motion for 

Release is not a civil complaint under Rule 41(g), it is a motion filed under Rule 41(g) which 

means that the government had 30 days to submit its opposition because such motions fall under 

the filing rules for motions for summary judgment; and (4) if the Motion for Release is none of 

those things, the government’s untimely Opposition should be accepted and considered by this 

Court on the basis of excusable neglect. Aside from the mental gymnastics required to follow 

the government’s arguments, the government’s submissions do not justify post-hoc relief from 

their November 30, 2018 deadline.

First, although the government appears to have retreated from justifying its untimely 

filing on the basis that it assumed that this Court would deny the Motion for Release sua sponte

and therefore, did not submit a timely opposition (see Gov’t’s Opp’n to Mot. for Release (Doc. 

412 at 2, 5)), the government nonetheless persists that the Motion for Release should be denied 

under the doctrine of the law of the case. As set forth in greater detail in Mr. Lacey’s reply in 

support of his Motion for Release (Doc. 424) and incorporated by reference herein, the doctrine 

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is not applicable to the Motion for Release because the Motion raises substantially different facts 

and seeks different relief from the motions decided in this Court’s Order (see id. at 4-9). 

Second, as set forth in greater detail in Mr. Lacey’s reply on the Motion for Release (Doc. 

424), and incorporated by reference herein, the Motion for Release is not a Rule 41(g)-related 

filing (motion, civil complaint or otherwise) (see id. at 9-11). Consequently, the 60 or 30 day 

deadlines that the government claims should be applied to its Opposition are not applicable and 

do not save the Opposition from being deemed untimely. 

Finally, the government has waived the right to assert its excusable-neglect defense to its 

untimely Opposition. On December 3, 2018, Mr. Lacey put the government on notice of its 

failure to timely file a responsive pleading to the Motion for Release by filing a Notice of NonOpposition explaining that, under the Local Rules, a responsive pleading or request for an 

extension should have been filed by November 30, 2018. (Doc. 403.) In its first submission to 

address its failure to timely file a responsive pleading—the Opposition (Doc. 412)—the 

government stated that the Opposition was not untimely because the government had 60 days to 

file a responsive pleading to the Motion for Release because it should be treated as a civil 

complaint arising under Rule 41(g) (id. at 5 n.2). That was the government’s sole ground for 

asserting that its Opposition was timely. (Id.) The Opposition was silent on the issue of 

excusable neglect and that silence constitutes a waiver of the ability to assert that ground for 

relief from deadlines in all subsequent filings addressing timeliness, including the Opposition to 

the Motion to Strike (Doc. 423). See United States v. Hoffman, 2015 WL 5604419, at *2-4 (E.D. 

Cal. Sept. 23, 2015) (granting motion to dismiss because the government waived its arguments 

against dismissal by failing to submit a timely brief in opposition to the defendants’ motion); see 

also United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000) (“As a general matter, the 

government may waive certain defenses by not raising them in a timely manner.”); United 

States v. Doe, 53 F.3d 1081, 1082-83 (9th Cir. 1995) (ruling that the government’s failure to 

raise the issue of defendant’s waiver as a barrier to reversal of his conviction, when the 

government instead argued for affirmance of the conviction on the merits in its briefs and during 

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oral argument, constituted waiver of the government’s argument). Additionally, in the eight 

days between the filing of the Notice of Non-Opposition, and the government’s filing of its 

Opposition to the Motion for Release of Funds, the government did not undertake any efforts to 

resolve the timeliness issue with defense counsel.

CONCLUSION

For all these reasons, Mr. Lacey respectfully requests that this Court issue an order 

striking the government’s Opposition as untimely and granting the Motion for Release as 

unopposed. 

 RESPECTFULLY SUBMITTED this 21st day of December, 2018, 

/s/ Paul J. Cambria, Jr. 

LIPSITZ GREEN SCIME CAMBRIA LLP

Attorneys for Defendant Michael Lacey

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On December 21, 2018, 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

Following CM/ECF registrants:

Kevin Rapp, kevin.rapp@usdoj.gov

Reginald Jones, reginald.jones4@usdoj.gov 

Peter Kozinets, peter.kozinets@usdoj.gov

John Kucera, john.kucera@usdoj.gov 

Margaret Perlmeter, margaret.perlmeter@usdoj.gov 

Patrick Reid, Patrick.Reid@usdoj.gov 

Andrew Stone, andrew.stone@usdoj.gov

Amanda Wick, Amanda.Wick@usdoj.gov

Case 2:18-cr-00422-DJH Document 426 Filed 12/21/18 Page 5 of 5