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GARY M. RESTAINO

United States Attorney

District of Arizona

KEVIN M. RAPP (Ariz. Bar No. 014249, kevin.rapp@usdoj.gov)

MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov)

PETER S. KOZINETS (Ariz. Bar No. 019856, peter.kozinets@usdoj.gov) 

ANDREW C. STONE (Ariz. Bar No. 026543, andrew.stone@usdoj.gov)

Assistant U.S. Attorneys

40 N. Central Avenue, Suite 1800

Phoenix, Arizona 85004-4408

Telephone (602) 514-7500

DAN G. BOYLE (N.Y. Bar No. 5216825, daniel.boyle2@usdoj.gov) 

Special Assistant U.S. Attorney

312 N. Spring Street, Suite 1400

Los Angeles, CA 90012

Telephone (213) 894-2426

NICOLE M. ARGENTIERI

Acting Assistant Attorney General 

Criminal Division, U.S. Department of Justice

AUSTIN M. BERRY (Texas Bar No. 24062615, austin.berry2@usdoj.gov)

U.S. Department of Justice

Child Exploitation and Obscenity Section

1301 New York Avenue, NW, 11th Floor

Washington, D.C. 20005

Telephone (202) 412-4136

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff, 

v. 

Michael Lacey, et al.,

Defendants.

No. CR-18-422-PHX-SMB

POSITION OF THE UNITED STATES 

REGARDING POTENTIAL

CONTINUING JURY 

DELIBERATIONS AS TO 

DETERMINATION OF 

FORFEITURE OF SPECIFIC ASSETS 

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INTRODUCTION

The jury in this action began deliberating on November 7, 2023, and deliberations

remain ongoing. In the event that the jury returns a verdict of guilty on some or all counts, 

Defendants have requested that, pursuant to Rule 32.2(b)(5)(A), the jury be retained to 

determine the nexus between any counts of conviction and the specific property alleged to 

be subject to forfeiture here, as identified in the United States’ proposed Special Verdict 

Form. (Doc. 1936.)

The Court has directed the parties to confer as to the procedures the Court could

follow in the event that the jury convicts some or all defendants, but subsequently loses a 

quorum or is otherwise unable to serve through any forfeiture phase. 

As described herein, the parties have conferred in good faith, and United States

submits that, in the event that jurors become unavailable such that the jury no longer 

complies with Federal Rule of Criminal Procedure 23(b), the Court may empanel a new 

jury. Alternately, and as detailed herein, the United States is exploring the option of 

withdrawing its request for forfeiture of specific property, and instead, seeking a money 

judgment of forfeiture, which would be a question solely for the Court, and thus release 

the jury from any further service following a verdict on guilt. 

The United States has notified defense counsel of these options, and defense counsel

has indicated that they are currently conferring with their clients and will provide an update

to the Court as needed.

BACKGROUND

The Superseding Indictment (the “SI”) in this action includes two forfeiture 

allegations and provides notice of a range of assets which the United States may seek 

forfeiture of in the event of one or more defendant’s conviction on a relevant count. In 

addition, the United States filed two bills of particular (Docs. 281, 820), identifying further 

assets for which the government might seek forfeiture. 

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Defendants have indicated that, in the event they are convicted on a relevant count, 

they seek to retain the jury to determine forfeiture of any specific assets pursuant to Federal 

Rule of Criminal Procedure 32.2(b)(5)(A). As previously noted, the United States expects 

that a forfeiture phase before the jury would take approximately one-half to one trial day, 

as the United States would call two witnesses, and Defendants have indicated that they 

expect to call two defense witnesses.

POSITION OF THE UNITED STATES

The United States has previously taken the position that, where a defendant makes 

a timely request to retain the jury in the event of a conviction, such a defendant has a 

statutory right to a jury determination on the limited nexus question as set forth in Rule 

32.2(b)(5)(A). As such, the defendant may “retain” the jury to address this limited question. 

Other Courts of Appeals have held that this language suggests that the same jury which 

heard the guilt-innocence phase should hear any subsequent phases of trial, as all 

proceedings are simply portions of one unified criminal trial. See United States v. Cantu, 

167 F.3d 198, 207 (5th Cir. 1999) (where defendant agreed to 11-member jury during guilt 

phase of trial, defendant could not object to same jury hearing forfeiture, because the Rule 

applies to “a single trial of which there are two parts—guilt-innocence and forfeiture”).1

However, in the event that jurors are unavailable such that the jury has less than 11 

members, or less than 12 members if the parties refused to stipulate pursuant to Rule 23(b), 

courts have previously found that a new jury may be empaneled to hear the forfeiture phase. 

For example, in cases where a jury during the forfeiture phase was unable to reach a verdict, 

other Courts of Appeals have held that it was not error to empanel a new jury, read 

transcripts from the prior guilty-innocence phase, and then permit new evidence to be a 

offered as to forfeiture. See, e.g., United States v. Messino, 382 F.3d 704, 714 (7th Cir. 

1 The United States understands the Court’s admonition to rely on in-circuit 

precedent where available, but due to the infrequency of contested criminal forfeitures 

before a jury, precedent on these questions is unfortunately limited. 

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2004) (where jury that convicted defendant cannot reach a verdict on the forfeiture, court 

may dismiss jury and empanel a new one and prosecutor may read portions of the trial

transcript to the new jury).

Alternatively, the United States is exploring the option of withdrawing its request 

for forfeiture of specific property, and instead, only seeking a money judgment of 

forfeiture. As noted in prior briefing, Rule 32.2 draws a distinction between determinations 

on forfeiture of specific property and the imposition of a money judgment of forfeiture. 

With respect to money judgments, Rule 32.2(b)(1)(A) states that “[i]f the government seeks 

a personal money judgment, the court must determine the amount of money that the 

defendant will be ordered to pay.” (emphasis added.) The Ninth Circuit has held that this 

language of Rule 32.2 means that there is no statutory jury right when the government only 

seeks a money judgment. See United States v. Phillips, 704 F.3d 754, 771 (9th Cir. 2012)

(“[W]here the Government ‘disclaimed any intent to seek forfeiture of specific property,’ 

and sought only a money judgment, ‘there was no issue for the jury.’” (quoting United 

States v. Gregoire, 638 F.3d 962, 972 (8th Cir. 2011))); see also United States v. Lo, 839 

F.3d 777, 795 (9th Cir. 2016) (“Federal Rule of Criminal Procedure 32.2 does not require 

a jury determination for forfeiture in the form of a personal money judgment”). 

The United States is exploring whether the United States could withdraw its request 

for forfeiture of specific property, and instead, seek a money judgment pursuant to Rule 

32.2(b)(1)(A). As Ninth Circuit law is clear that calculation of a money judgment is solely 

a question for the Court, the jury’s service would be completed with its verdict as to guilt. 

If a money judgment were granted, the United States could then seek to enforce any such 

money judgment, or alternatively, pursue civil forfeiture in the pending civil action in the 

Central District of California as needed. The feasibility of this alternative is still being 

reviewed, and the government will continue to prepare for a jury determination of forfeiture 

as requested by the Defendants.

//

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Respectfully submitted this 7th day of November, 2023.

GARY M. RESTAINO

United States Attorney

District of Arizona

NICOLE M. ARGENTIERI

Acting Assistant Attorney General 

Criminal Division, U.S. Department of Justice

/s/

KEVIN M. RAPP

MARGARET PERLMETER

PETER KOZINETS

ANDREW STONE

DAN G. BOYLE

Assistant U.S. Attorneys

AUSTIN M. BERRY

Trial Attorney

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CERTIFICATE OF SERVICE

I hereby certify that on November 7, 2023, 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/ Dan G. Boyle

Dan G. Boyle

U.S. Attorney’s Office

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