UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

_________________

United States of America, )

) No. CR-18-0422-PHX-SMB

Plaintiff, )

)

vs. ) Phoenix, Arizona

) September 9, 2021

Michael Lacey, ) 8:43 a.m.

James Larkin, )

Scott Spear, )

John Brunst, )

Andrew Padilla, )

Joye Vaught, )

)

Defendants. )

_____________________________ )

BEFORE: THE HONORABLE SUSAN M. BRNOVICH, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS

TRIAL - DAY 5

Official Court Reporter:

Christine M. Coaly, RMR, CRR

Sandra Day O'Connor U.S. Courthouse, Suite 312

401 West Washington Street, Spc 37

Phoenix, Arizona 85003-2151

(602) 322-7248

Proceedings Reported by Stenographic Court Reporter

Transcript Prepared by Computer-Aided Transcription

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UNITED STATES DISTRICT COURT

A P P E A R A N C E S

For the Government:

U.S. ATTORNEY'S OFFICE

By: Mr. Peter S. Kozinets

Mr. Kevin M. Rapp

Ms. Margaret Wu Perlmeter

Mr. Andrew C. Stone

40 North Central Avenue, Suite 1200

Phoenix, Arizona 85004

U.S. DEPARTMENT OF JUSTICE

By: Mr. Reginald E. Jones

1400 New York Avenue, NW, Suite 600

Washington, DC 20530

For the Defendant Lacey:

LIPSITZ GREEN SCIME CAMBRIA

By: Mr. Paul J. Cambria, Jr.

Ms. Erin E. McCampbell-Paris

42 Delaware Avenue, Suite 120

Buffalo, NY 14202

For the Defendant Larkin:

BIENERT KATZMAN

By: Mr. Thomas H. Bienert, Jr.

Ms. Whitney Z. Bernstein

903 Calle Amanecer, Suite 350

San Clemente, CA 92673

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For the Defendant Spear:

FEDER LAW OFFICE

By: Mr. Bruce S. Feder

2930 East Camelback Road, Suite 160

Phoenix, AZ 85016

For the Defendant Brunst:

BIRD MARELLA BOXER WOLPERT NESSIM DROOKS

LINCENBERG & RHOW

By: Mr. Gopi K. Panchapakesan

Mr. Gary S. Lincenberg

1875 Century Park E, Suite 2300

Los Angeles, CA 90067

For the Defendant Padilla:

DAVID EISENBERG, PLC

By: Mr. David S. Eisenberg

3550 North Central Avenue, Suite 1155

Phoenix, AZ 85012

For the Defendant Vaught:

JOY BERTRAND, LLC

By: Ms. Joy M. Bertrand

P.O. Box 2734

Scottsdale, AZ 85252

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P R O C E E D I N G S

THE COURT: Okay. So we're on the record but outside

the presence of the jury.

Mr. Padilla, I've been told you're not feeling well;

is that correct?

MR. PADILLA: Correct.

THE COURT: Okay. So what's going on?

MR. PADILLA: I just feel like lightheaded and a

little queasy and I was sweating a lot, but I don't know if

it's because I was outside in the heat, so it's -- it's -- I'm

starting to feel a little bit better now that I came into the

air-conditioning.

THE COURT: Okay. Let me ask you -- I don't want any

personal information -- but, generally, do you have any health

conditions that cause you to feel like this on a regular basis

or is this unusual?

MR. PADILLA: Not on a regular basis, but it's

possible. I take a lot of medication for different stuff.

THE COURT: Okay. That was my next question --

MR. PADILLA: Yeah.

THE COURT: -- is there any medication? So sometimes

does your medication make you feel like this?

MR. PADILLA: Maybe. It's hard to say. Like, I don't

know if -- I can't think of a time where it was exactly like

this, but I do -- I do get lightheaded sometimes from blood

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pressure medicine so...

THE COURT: Okay. And we don't know -- have you taken

your temperature?

MR. PADILLA: No.

THE COURT: Okay. Mr. Eisenberg.

MR. EISENBERG: Yes, Your Honor. He does have a

comorbidity for COVID and I'm very concerned about that. He

has received vaccine lately. I don't know the exact date. He

did supply the Court, through me, with the recent test in which

he -- there was no indication that he had COVID.

I'm very concerned, not only for him, of course, I am

concerned for him, but for everybody in this courtroom. And

I'm concerned for myself because I have certain indicia that

would be conducive to comorbidity as well, not the least of

which is my age.

But the point is, Your Honor, I don't think he should

be here at this time. I am more than happy to get him

someplace where he can be tested, and because I know we all

want to be safe, and I'm sure that is a priority of the Court

too, so I'm willing to do that.

Your courtroom deputy told me that there is a testing

site somewhere in this vicinity, I'm not quite sure where it

is, but I'm willing to get him there, get him tested, and get

the results if we can do it on a --

THE COURT: I can't hear you.

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MR. EISENBERG: And get the results so that we can do

it on -- as quickly as possible. And I don't mean to impose on

the Court, but if the Court has a way of setting that up just

to make it easy for us, that's fine, otherwise I'll do it.

THE COURT: We don't have -- I mean, I would send you

to the same places that I'm sure you're going to arrange for.

MR. EISENBERG: CVS, Your Honor, at least in my case.

THE COURT: Walgreens has been mine, but lately I

can't get in there.

Okay. Well, I do think we need to have him tested

under this scenario.

Does the government want to be heard?

MR. RAPP: Well, I don't know if -- if it's possible

to put him in another room and watch the proceedings from

another room in the same fashion that the jurors were watching

it the other day, if they are willing to do that.

Obviously, we share the same concerns and -- but we

want to have the case go forward. We have witnesses cooling

their heels from out of state here, so I can --

THE COURT: Mr. Rapp, I can't hear you.

MR. RAPP: We have witnesses from out of state, so we

want to push forward, but we understand the concerns. And if

there is some way in the short term to allow him to watch the

proceedings, that would be sufficient for him to be part of the

case going forward.

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I just don't know how fast he could get a -- I know

the -- I know I had difficulty getting in for a rapid test on a

moment's notice. I can't imagine that he would be able to do

that this morning.

MR. EISENBERG: It seems to me, Your Honor, that

expediency is not the answer to this, nor do I want my client

in a room other than myself. I wouldn't be able to talk to

him. And I think everybody in this courtroom is concerned, and

everybody ought to be concerned, with making sure that none of

us have an issue that arises out of this. So, to me, it's --

safety is of the utmost concern.

THE COURT: All right. So, Mr. Eisenberg, why don't

we recess for you to figure out when and where you can get a

test for your client.

Let's -- so he's not sitting out in the heat, let's

have him sit in the room out back there so he's at least in the

air-conditioning, and then we'll just have to wipe it down with

-- and clean it when he leaves, but that way he's not sitting

in the heat --

MR. EISENBERG: I appreciate --

THE COURT: -- while we figure that out.

MR. EISENBERG: I appreciate Your Honor's concern.

THE COURT: So once you figure that out, let me know

and I'll come back in and we'll figure out how long we have to

recess.

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MR. EISENBERG: Thank you, Your Honor.

THE COURT: Okay.

(Court stands in recess 8:49 a.m. - 9:12 a.m.)

THE COURT: So I heard you found a walk-in place, but

what I forgot to ask is is it a rapid test?

MR. EISENBERG: Yes, Your Honor. I don't think it

makes any sense other than a rapid test.

THE COURT: Well, that's why I wanted to just make

sure.

MR. EISENBERG: Yeah, it is.

THE COURT: All right. So are all our jurors here,

Elaine?

COURTROOM DEPUTY: Yes, ma'am.

THE COURT: So I'm going to call them in and just let

them know that someone is not feeling well. Out of an

abundance of caution, we're going to recess for the day and

have him tested and then --

MR. EISENBERG: Are you going to recess for the day,

Your Honor?

THE COURT: Yes.

MR. EISENBERG: Okay. All right.

THE COURT: Yes. Well, I suppose, theoretically, he

could feel better and test negative.

MR. EISENBERG: I think it best, Your Honor, that it

just be for the day, because even if he isn't -- even if he

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tests negative, I don't think it -- I don't want him sitting

next to me if he's not feeling well.

THE COURT: Well, but he's taking medicine that he

said could make him feel like this.

MR. EISENBERG: I don't know. I don't know the

prognosis, Judge. Just out of an abundance of caution, I agree

with the one-day adjournment, but we are going to get the rapid

test and --

THE COURT: Okay. All right. And for future

planning, September 23rd and 24th are -- those were so that I

could go out of state for a wedding, which I am now cancelling,

so we should plan to use those days.

MS. BERNSTEIN: Your Honor, I have booked travel,

because I have a pediatrician appointment for my daughter, so

we can figure it out as it gets closer, but I do have to be in

San Diego for some vaccines for her on the 24th.

THE COURT: Okay. Then the 23rd -- when are you

supposed to leave?

MS. BERNSTEIN: I'm supposed to leave on the 23rd.

The appointment is early. I can probably leave later in the

day, but I did just want the Court to know I can't reschedule

that.

THE COURT: Well, see if you can move your flight to

later in the day.

MS. BERNSTEIN: I will. Thank you.

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THE COURT: And so we'll plan the 23rd.

Can you bring the jury in.

MR. RAPP: Your Honor, can we be heard on scheduling

briefly after the jury is excused?

THE COURT: Sure.

(9:19 a.m., the jury entered the courtroom.)

THE COURT: Thank you. Please be seated.

All right. We are back on the record with the jury

present.

Ladies and gentlemen, one -- Mr. Padilla, one of the

defendants, was not feeling well this morning. After

discussion, and out of an abundance of caution, I'm going to

send him for a COVID test, just to make sure.

We all tested negative before we started this, but

since he's not feeling well, we're going to have him tested

again and we're going to recess for the day. So you can all go

home for the day.

Elaine, do you have everybody's number?

COURTROOM DEPUTY: I have everyone except for -- there

was three on the list --

THE COURT: Okay. So I'm going to make sure that --

or I'm going to ask you to make sure that Elaine has your phone

number. Plan on being here at nine, but if for some reason he

tests positive, then we would call you and let you know and let

you know the plan.

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Also, because of today, I think on the trial calendar

you were given the 23rd and 24th and 27th were not trial days.

I'm now adding the 23rd back onto the calendar, so I wanted to

let you know that ahead of time.

And I think that's it, so you're free to go for the

day. Thank you.

(9:21 p.m., the jury left the courtroom.)

THE COURT: All right. We're outside the presence of

the jury.

Mr. Rapp.

MR. RAPP: Yes, Judge. So currently we have,

obviously, on the stand, Agent Fichtner. He's law enforcement.

If we reconvene tomorrow and proceed at nine, we would like to

go with him for about an hour, and then take him off the stand

and then put on two out-of-state, a victim and her mother.

They're from the southeast. Agent Fichtner is from California.

We talked to Agent Fichtner about his schedule, and

believe that he would be able to resume either on Friday if --

if we finish with the two witnesses, or perhaps next week, so

we'd like to do that.

The second thing is, I believe -- and Mr. Lincenberg

will correct me if I'm wrong, because I wasn't really part of

the discussion -- but I think that he, if you recall, he

requested half day on Wednesday, the 15th, but I believe that

he is willing to have the case go the full day and Mr. Pan --

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Gopi is going to fill in in his stead, so just two -- two areas

that I would like to have the Court consider for scheduling

purposes.

THE COURT: And that's the Svendgards?

MR. RAPP: Yes, so that's Jessika and Nacole

Svendgard.

THE COURT: Okay.

MR. LINCENBERG: On the second part, Mr. Rapp is

correct. I will say, I'm not sure I discussed it with all my

co-counsel, but I was talking with Mr. Rapp about next week.

The Court was kind enough to call a half day the day before Yom

Kippur. And I went over to Mr. Rapp and I said, if you can

give me a sense of who the witnesses are on that Friday, and on

the Friday the day afterwards, because I am certainly not going

to do any preparation on Yom Kippur, and even the afternoon of

the Wednesday, number one, I might not object to -- if you want

to, you know, take and use that half day, or part of that

Wednesday afternoon, Mr. Panchapakesan can cover it and so

forth. So as long as we have a sense of -- and I think

Mr. Rapp indicated what he thought was the general nature of

the witnesses that would be on that Wednesday and Friday, and

if we could work that out, I know the Court is trying to move

the case forward, and so we had that discussion. It wasn't all

resolved, but I wanted to alert the Court.

THE COURT: Okay. So we'll touch base on that again

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later after you have some more discussions.

MR. LINCENBERG: Right, when I get a little better

sense of who the witnesses will be.

THE COURT: Okay. And so I will allow the government

to call those two witnesses sort of out of order in the middle

of the agent's testimony.

Does anybody from the defense team want to put an

objection on the record?

MR. LINCENBERG: No.

MS. BERNSTEIN: I think I will object just for the

record. I understand that the scheduling and also the sickness

is going to disrupt things, and understand the Court will

proceed that way, but it does disrupt the testimony. And I

think it is clearer if a witness does direct and cross before

they hear from another witness just to not prejudice the

defense.

THE COURT: Okay. Over objection, I'll allow it.

Okay. So, Mr. Eisenberg, if you can call the Court as

soon as possible when you find out the test results and we'll

figure out how to proceed.

MR. EISENBERG: Right, Your Honor. I have

Ms. Garcia's number and I'll call that number.

THE COURT: Okay. Thank you.

MR. EISENBERG: Thank you.

(Proceedings concluded at 9:26 a.m.)

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C E R T I F I C A T E

I, CHRISTINE M. COALY, do hereby certify that I am

duly appointed and qualified to act as Official Court Reporter

for the United States District Court for the District of

Arizona.

I FURTHER CERTIFY that the foregoing pages constitute

a full, true, and accurate transcript of all of that portion of

the proceedings contained herein, had in the above-entitled

cause on the date specified therein, and that said transcript

was prepared under my direction and control.

DATED at Phoenix, Arizona, this 24th day of

September, 2021.

/s/ Christine M. Coaly_______

Christine M. Coaly, RMR, CRR

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