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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)

DEFENDANTS’ JOINT

MOTION FOR DESIGNATION OF 39 

DOCUMENTS SUBJECT TO THIS 

COURT’S DESTRUCTION ORDER TO BE 

PRESERVED AS PART OF THE IN 

CAMERA RECORD IN THIS 

PROSECUTION

Defendants, by and through their undersigned attorneys, hereby move for an order 

designating the 39 documents subject to destruction under this Court’s January 28, 2019 Sealed 

Order to be preserved as part of the in camera record in this prosecution. To the extent that those 

documents are no longer in the Court’s possession, Defendants respectfully request that this 

Court order the government to provide them to the Court under seal for the Court’s in camera

Case 2:18-cr-00422-DJH Document 453 Filed 02/06/19 Page 1 of 5
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record in this case. The Court’s preservation of those 39 documents as part of the in the in 

camera record in this case will ensure that they are available as part of the record on appeal and 

for the parties in this case, to the extent that issues arise that require disclosure of them at a later 

date. 

It is expected that excludable delay under 18 U.S.C. § 3161(h)(1)(D) will occur as 

a result of this motion or an order based thereon.

MEMORANDUM OF POINTS AND AUTHORITIES

On October 17, 2018, the government filed its Motion to Compel Destruction of 

Inadvertently Disclosed Documents pertaining to 39 documents that the government claimed 

that it had inadvertently produced to Defendants on July 2, 2018. (Doc. 343 (filed under seal).) 

In connection with its motion, the government submitted 22 of those documents to this Court 

for in camera review. (See id. at 10 n.6.) Defendants vehemently opposed the motion on the 

ground that the documents at issue contained exculpatory material under Brady and Giglio, that 

the Defendants’ right to present a defense trumped the government’s work-product claim, that 

the government waived its work-product claim, and that the government had failed to prove that 

it did not waive any claimed privileges by disclosing the substance of the documents to third 

parties. (Doc. 405 (filed under seal).) 

On January 28, 2019, this Court issued an Order compelling Defendants to destroy 39 

documents that the government claimed that it inadvertently produced to them. (Doc. 449-1

(filed under seal).) 

Defendants are in the process of destroying the 39 documents. Nonetheless, Defendants 

respectfully request that this Court issue an order preserving all 39 documents as part of the in 

camera docket associated with this case. When a district court reviews documents that 

purportedly contain Brady or Giglio material during the course of an in camera review, those 

documents must be preserved for the appellate court to make a determination as to whether the 

district court’s ruling was appropriate. Because documents submitted by the government for in 

camera review are not in the possession of a defendant, the appellate court must have access to 

Case 2:18-cr-00422-DJH Document 453 Filed 02/06/19 Page 2 of 5
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the government’s in camera submissions in connection with its review of a district court’s ruling. 

See United States v. Strifler, 851 F.2d 1197, 1201-02 (9th Cir. 1988). The district court’s 

preservation of all in camera submissions preserves the record for the appellate court. In addition 

to preservation of the record, this Court should maintain a copy of the 39 documents to ensure 

that they are available, should their disclosure be ordered at a later time. 

CONCLUSION

In light of the foregoing, Defendants respectfully request an order from this Court 

directing the government to submit a complete set of the 39 documents subject to destruction 

to be preserved by this Court as part of the record in this case. 

RESPECTFULLY SUBMITTED this 6th day of February, 2019, 

/s/ Paul J. Cambria, Jr. 

LIPSITZ GREEN SCIME CAMBRIA LLP

Attorneys for Defendant Michael Lacey

/s/ Michael Piccarreta

PICCARRETA DAVIS KEENAN FIDEL PC

Attorneys for Defendant Andrew Padilla

/s/ Bruce Feder

FEDER LAW OFFICE, PA

Attorneys for Defendant Scott Spear

/s/ Thomas Bienert, Jr.

BIENERT MILLER & KATZMAN, PLC

Attorneys for Defendant James Larkin

/s/ Gary Lincenberg

BIRD MARELLA BOXER WOLPERT NESSIM 

DROOKS LINCENBERG & RHOW PC

Attorneys for Defendant Jed Brunst

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/s/ Stephen Weiss

KARP & WEISS, PC

Attorneys for Defendant Joye Vaught

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On February 6, 2019, 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 453 Filed 02/06/19 Page 5 of 5