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PICCARRETA DAVIS KEENAN FIDEL PC

2 East Congress Street, Suite 1000

Tucson, Arizona 85701-1782

(520) 622-6900

Michael L. Piccarreta 

State Bar No. 003962 

Email: mlp@pd-law.com

Attorney for Defendant Andrew Padilla

 -andKARP & WEISS, P.C.

3060 N Swan Road

Tucson, AZ 85712 

(520) 325-4200 

Stephen M. Weiss

State Bar No. 002261

Email: sweiss@karpweiss.com

Attorney for Defendant Joye Vaught

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America,

 Plaintiff,

v.

6. Andrew Padilla,

 (Counts 1-51)

7. Joye Vaught,

 (Counts 1-51)

 Defendants.

NO. CR-18-00422-06-PHX-SPL

MOTION TO DISMISS DUE TO 

GOVERNMENT INTERFERENCE WITH 

RIGHT TO COUNSEL AND REQUEST 

FOR DISCLOSURE OR, IN THE 

ALTERNATIVE, MOTION TO 

WITHDRAW

[Oral Argument Requested]

Defendants Andrew Padilla and Joye Vaught respectfully request this Court to 

dismiss the indictment against them because the government’s improper interference with 

their right to counsel of choice has resulted in the denial of that right under the Fifth and Sixth 

Amendments to the United States Constitution.

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Excludable delay under 18 U.S.C. § 3161(h)(1)(D) may occur as a result of this 

motion or an order based thereon, as explained more fully below.

I. BACKGROUND

Defendants Andrew Padilla and Joye Vaught worked at the website Backpage.com 

(“Backpage”) until the government shut it down. By virtue of their employment with 

Backpage, Padilla and Vaught earned the right to indemnification and/or advancement of 

funds for civil or criminal matters that arose as a result of their employment.

1 From the time 

the defendants were indicted on March 28, 2018, the government has also engaged in 

massive ex parte seizures of assets belonging to some of the defendants and Backpage, while 

engaging in a course of conduct seeking to avoid judicial review of the illegality of the 

seizures. The history of the government’s unlawful seizures2 and the defendants’ attempts to 

obtain judicial review has been previously briefed for this Court.3 Defendants will not repeat 

that history here, but will set out a chronology of the events relevant to the present motion.

In January of 2017, undersigned counsel Michael L. Piccarreta, Esq. began his 

representation of Mr. Padilla. On March 28, 2018, the government obtained the initial 

 1 See United States v. Stein, 541 F.3d 130, 155 (2d Cir. 2008) (recognizing the Sixth 

Amendment right to counsel of choice for “an employee who reasonably expects to receive 

attorneys’ fees as a benefit or perquisite of employment, whether or not the expectation arises 

from a legal entitlement”).

2 The government’s seizures and seizure warrants violated the First, Fourth, Fifth and 

Sixth Amendments. The basis for this is set forth in the pleadings that have been filed 

but have yet to receive judicial review. Thus, the government has bootstrapped illegal 

and unconstitutional seizures by using the essentially identical unconstitutional 

warrants to render these defendants impecunious and unable to defend themselves.

3 Some of these details are set forth in Docs. 360, 382, and 443, incorporated herein by 

reference pursuant to LRCrim 12.1 and LRCiv 7.1(d)(2).

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indictment in this matter in this district, and also began its massive civil seizures of assets by 

filing in the Central District of California, choosing that district rather than Arizona. On 

March 30, 2018, undersigned counsel Stephen M. Weiss, Esq. began his representation of 

Ms. Vaught. On April 6, 2018, the government arrested the defendants, searched the 

residences of some defendants(not Padilla or Vaught), and seized large amounts of personal 

property from those defendants. At that time, the government attorneys indicated to Mr. 

Larkin’s previous attorneys and Mr. Hyer’s attorney that the government was not seizing 

funds in attorney trust accounts.4 That information was relayed to other co-counsel in the 

case. On April 25, 2018, the government filed its unsuccessful motion to disqualify First 

Amendment Davis Wright Tremaine LLP (“DWT”) and Henze Cook Murphy PLLC 

(“HCM”), law firms that had successfully represented Backpage and its officers and 

employees in civil and criminal matters across the country for many years. (Doc. 118).

5 On 

April 26, 2018, the parties submitted a proposed case management schedule in connection 

with the April 30, 2018, status conference. The government made no mention to this Court 

or any of the defense attorneys of any seizure of attorneys’ trust accounts. Defendants Padilla 

and Vaught agreed to the proposed case management schedule without knowledge that the 

 4 This is consistent with the general practice in this district for cases like this. One assumes, 

but does not know, that the differential treatment was a decision made at higher levels of the 

Department of Justice.

5 In a second prong of its attack against DWT, the government later seized DWT’s trust 

account in August 2018, again attempting to remove defendants’ counsel of choice for First 

Amendment issues. Eventually, the government permitted DWT to retain earned fees but 

not additional funds that were kept in the IOLTA trust account for future fees to be incurred 

in this case.

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government would later deprive them of funds required to defend the case, review the 

government disclosure, and meet the obligations set forth in the schedule. On May 2, 2018, 

the Court issued its Scheduling Order. (Doc. 131).

On May 4, 2018, in a meeting with counsel for Mr. Padilla, the government expressed 

concerns about the funds in counsel’s attorney trust account and inquired about the existence 

of any indemnification/advancement agreements. On May 7, 2018, counsel for Mr. Padilla 

responded via correspondence with attached paperwork relating to the indemnification and 

advancement provisions applicable to Mr. Padilla.6 On May 18, 2018, the government again 

raised its “concerns” about funds for Mr. Padilla’s representation.7 On June 13, 2018, counsel 

for Mr. Padilla then provided a detailed response setting forth the grounds for Mr. Padilla’s 

and counsel’s beliefs that the funds were not tainted and could not be subject to seizure or 

forfeiture.8 Counsel for Mr. Padilla did not hear anything further on the subject from the 

government for many months.

The parties then engaged in the litigation of multiple pretrial motions, and this Court 

heard oral arguments on the motions on October 5, 2018. On October 12, 2018, this Court 

issued its order denying the government’s motion to disqualify DWT and HCM. (Doc. 338). 

On October 15, 2018, the Court issued its order denying Mr. Padilla’s motion for itemization 

of Brady/Giglio materials, but “implor[-ed]” the government to abide by its avowal in open 

court that it would disclose any Brady/Giglio materials within 10 days of their discovery. 

 6 See attached Exhibit 1. 7 See attached Exhibit 2. 8 See attached Exhibit 3.

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(Doc. 339). On October 23, 2018, and October 26, 2018, counsel for Mr. Padilla made two 

separate discovery requests for specific types of Brady/Giglio materials.9 The government 

responded via letter, essentially setting forth its theory of the case and its justification for not 

producing any Brady materials.10

On October 31, 2018, approximately two weeks after this Court issued the orders 

referenced above, the government obtained its ex parte seizure warrants for the attorney trust 

accounts of counsel for Mr. Padilla, Ms. Vaught, and other law firms who were not attorneys 

of record in the criminal case. Undersigned counsel were advised of the seizure warrants on 

or about November 7, 2018. The government permitted undersigned counsel to keep any 

earned fees through November 30, 2018, but required counsel to provide edited billing 

statements to the government for its review. The government has since informed counsel for 

defendants Padilla and Vaught that the trust funds they hold cannot be used to pay any fees 

earned after November of 2018.

11 Thus, there have been no payments to counsel for Padilla 

and Vaught for all work performed or costs incurred since December 1, 2018.

The government has also represented, as the seizure warrants have expired, that it 

likely will seek to again seize the IOLTA trust accounts, and that defense counsel may expose 

themselves to criminal liability if they use those funds to pay fees earned after November 

 9 See attached Exhibits 4 and 5. 10 See attached Exhibits 6 and 7. 11 See attached Exhibit 8.

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2018.12 Undersigned counsel clearly and unmistakably understood this statement to mean 

there was the potential of criminal investigation and no guarantee that there would not be 

criminal prosecution if they withdrew any funds from their trust accounts, even though the 

seizure warrants had expired and new ones had not been issued. The government actions and 

words effectively re-froze the trust accounts as no attorney is willing to risk prosecution, 

even a bad-faith wrongful prosecution, in light of such a statement.13 Thus, the government 

has engaged in a pattern of conduct resulting in the inability to use funds in attorney trust 

accounts to continue funding Padilla’s and Vaught’s retained counsel of choice, retain 

experts, fund technical assistants to navigate the discovery maze of government disclosure

or defend this case.

In striking contrast, the government is not seeking any attorney trust account funds

from cooperating defendants Mr. Ferrer and Mr. Hyer until the case is completed. Ironically, 

Ferrer and Hyer, for whatever reason, admitted guilt while Vaught and Padilla, who have in 

part different cases, are presumed and profess innocence, yet they are the ones the 

 12 See attached Exhibit 9, p. 12 (transcript of hearing held in the Central District of California 

before the Honorable Rozella A. Oliver on December 12, 2018). Although the proceedings 

in the Central District of California have been opened, this transcript is currently under seal.

Thus, it is provided to this Court under seal, although it is anticipated that this transcript will 

in the future be removed from placement under seal as there does not appear the need for 

secrecy.

13 Whether the government meant their words to be a threat or whether defense counsel 

misinterpreted these words as a threat makes no difference. The result is the same. 

Defense counsel, each of whom has been practicing criminal law for decades, has not 

had government counsel intimate such action in a pending criminal case. Regardless of 

the government intent, the trust accounts are unavailable for use due to government 

action.

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government seeks to deprive of funds to defend themselves. However, these funds are 

derived from the same sources and would therefore be subject to seizure and forfeiture under 

the same theories the government espouses. The message is clear; if you plead and cooperate, 

the lawyer will get paid for professional services. If, on the other hand, the presumedinnocent defendant disputes the government’s case, their lawyers trust accounts will be 

seized, rendering the presumed-innocent defendant with an inability to defend against the 

charges with counsel of choice. The government actions create an inherent conflict between 

the financial interests of the lawyer and the interests of the client.

Defendants Padilla and Vaught now request this Court to dismiss the indictment 

against them due to this violation of their Fifth Amendment right to due process and Sixth 

Amendment right to counsel of choice, based on the principles set forth in United States v. 

Stein, 435 F.Supp.2d 330 (S. D. N.Y. 2006), aff’d 541 F.3d 130 (2nd Cir. 2008), and this 

Court’s supervisory powers.

II. ARGUMENT

A. The Government’s Interference With Assets Earmarked To Fund The 

Defense Of The Present Case Has Denied Defendants Their Right To 

Assistance Of Counsel Of Choice In Violation Of The Fifth and Sixth 

Amendments To The United States Constitution.

Among the rights guaranteed by the Sixth Amendment to the United States 

Constitution is the right of a defendant to be represented by the attorney of his or her 

choosing. United States v. Gonzalez-Lopez, 548 U.S. 140, 146 (2006) (“the Sixth 

Amendment right to counsel of choice...commands...that the accused be defended by the 

counsel he believes to be best”); Powell v. Alabama, 287 U.S. 45, 53 (1932) (due process 

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also requires that “a defendant should be afforded a fair opportunity to secure counsel of his 

own choice”). “The right to select counsel of one’s choice...has been regarded as the root 

meaning of the constitutional guarantee.” Gonzalez-Lopez, 548 U.S. at 147-48. Accordingly, 

erroneous deprivation of the right to counsel of choice constitutes fundamental error 

requiring automatic reversal. Id. at 148. 

The Sixth Amendment right to counsel of choice extends to any “employee who 

reasonably expects to receive attorneys’ fees as a benefit or perquisite of employment, 

whether or not the expectation arises from a legal entitlement.” Stein, 541 F.3d at 155. In 

Stein, the Second Circuit Court of Appeals upheld the district court’s dismissal of the 

indictment due to the government’s interference with corporate officers’ and employees’ 

right to counsel of choice. Specifically, the government interfered with funds earmarked to 

pay defendants’ legal fees. Id. at 136. Accordingly, the Second Circuit affirmed the district 

court’s dismissal of the indictment, accepting the defendants’ claim that “the government 

unjustifiably interfered with their relationship with counsel and their ability to mount the best 

defense they could muster.” Id. at 155.14

Stein did not involve the pretrial seizure of attorney trust funds, and the legality of 

such government conduct was not at issue. In the present case, the government’s seizure of 

 14 The Second Circuit affirmed the district court’s ruling dismissing the indictment on Sixth 

Amendment grounds and did not address the district court’s separate finding that the 

government’s interference with assets to fund attorneys’ fees for counsel of choice also 

violated the defendants’substantive due process rights. 541 F.3d at 136. See United States v. 

Stein, 435 F.Supp.2d 330, 365 (S. D. N.Y. 2006); United States v. Stein, 495 F.Supp.2d 390, 

412 (S. D. N.Y. 2007).

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publishing proceeds, defendants’ assets, and attorney trust accounts has yet to be judicially 

approved for these defendants nor subject to the adversary process for the host of reasons 

defendants’ have raised previously. The government will undoubtedly claim their actions are 

lawful. The defendants strongly believe the government’s actions were unlawful and 

unconstitutional. Those matters are now being litigated in proceedings in the District Court 

for the Central District of California and the Ninth Circuit Court of Appeals, and defendants 

Padilla and Vaught will not reiterate those arguments here.15 However, even if, contrary to 

law and fact, the government’s seizures of attorney trust accounts were lawful, the 

government’s conduct nevertheless constitutes improper interference with Padilla’s and 

Vaught’s right to counsel of choice.

Initially, the fact that the government is not seizing the same purportedly “tainted” 

funds from defendants who cooperate with the government shows the government’s 

willingness to undermine the full functioning of the adversary system. This further shows 

that the source of the funds is not an issue. It is defendants’ decision to exercise his and her 

constitutional rights that prompt these seizures. The government, by its actions, rewards 

 15 The Court has indicated that issues relating to the release of seized assets should be raised 

in the Central District of California. See Doc. 447, pp. 3-4 (“At a hearing held on November 

16, 2018, the Court declined to disrupt the seizure warrants issued by the Central District of 

California when similar challenges were brought by other Defendants (Docs. 360, 365, 376), 

and the Court found that the Defendants had a sufficient legal remedy for any challenges to 

the seizure warrants issued by the Central District of California in that district. (Doc. 401 at 

56, 57-58, 59)...Lacey has not provided the Court with any precedent or persuasive 

argument for why he cannot seek the requested equitable relief in the Central District of 

California.... Therefore, as discussed in the Court’s previous Order, the Court finds that any 

legal or equitable relief from the warrants issued by the Central District of California is 

properly sought in that district”).

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individuals who waive their constitutional rights and punishes those accused who exercise 

their constitutional rights. Secondly, the fact that the government did not attempt to seize 

attorney trust accounts until years after the representation began and many months after the 

indictment (and after vigorous assertion of their constitutional rights and litigation of 

contested motions in the case) reveals the appearance of government retaliation against these

defendants for exercising their protected constitutional and statutory rights. Thirdly, the 

government’s actions have completely disrupted the defense, creating uncertainty and 

limiting the ability for undersigned counsel to proceed in a complex and time-consuming 

criminal litigation. It is especially troubling here, as Mr. Padilla, through counsel, has rejected 

plea offers, asserted his innocence, and indicated his intent to exercise his constitutional right 

to a jury trial. Fourthly, this type of seizure of attorney trust accounts in the middle of hotlycontested criminal litigation, especially in a First Amendment case, have not occurred before 

in this district, at least to undersigned counsel’s memory. It is especially troubling when there 

has not been a contested adversary hearing demonstrating that even one penny of the 

publishing assets is tainted. This is not per se contraband but the legitimately earned proceeds 

of a business that had been operating for years collecting revenue and paying its bills of all 

types including attorneys’ fees.

Finally, this is part of a pattern to deprive defendants of their Sixth Amendment 

rights. The government seeks ex parte seizure warrants by choosing a different district from 

where the criminal matter is filed thus necessitating the expenditure of additional financial 

resources outside of this jurisdiction. The government adopts a course of conduct seeking to 

avoid judicial review of its seizures. The parties are required to litigate these matters, which 

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are mostly collateral, albeit time consuming and costly. The government then unsuccessfully 

attempts to conflict out First Amendment counsel of choice which took considerable time 

and resources to resolve. The government provides disclosure in such a manner that it cannot 

be effectively reviewed without expensive technical assistance. After discussions, the 

government chooses not to seize the trust accounts which contain the funds to defend the 

case. After defendants assert their constitutional rights, the government changes course and 

seizes the trust accounts of First Amendment counsel to try to, once again unsuccessfully, 

remove them from the case. Counsel for Padilla and Vaught vigorously assert their clients’ 

rights, including particular demands for Brady material, and part of the government’s 

response is a seizure of their attorneys’ trust accounts. This action ties up counsel on a 

collateral matter to this day. The government then, without the benefit of a seizure warrant,

indicates that if the trust accounts are used to defend the case, the attorneys will be 

investigated with no assurances they would not be prosecuted. All of these actions cannot be 

looked upon in a vacuum, but as a pattern which has significantly and adversely impacted

defendants’ due process and Sixth Amendment rights.

It is noteworthy that Chief Justice Roberts has recently been highly critical of 

precisely this kind of conduct and has strongly voiced his concerns about seizures of 

attorneys’ fees undermining the adversary system. “An individual facing serious 

criminal charges brought by the United States has little but the Constitution and his 

attorney standing between him and prison” and the right to counsel is, in many ways, 

“the most precious right a defendant has, because it is his attorney who will fight for 

the other rights the defendant enjoys.” Kaley v. United States, 571 U.S. 320, 341, 344 

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(2014) (Roberts, C. J., dissenting). “The possibility that a prosecutor could elect to 

hamstring his target by preventing him from paying his counsel of choice raises 

substantial concerns about the fairness of the entire proceeding.” Id. at 345. 

The issues presented here implicate some of the most fundamental

precepts underlying the American criminal justice system. A person 

accused by the United States of committing a crime is presumed innocent 

until proven guilty beyond a reasonable doubt. But he faces a foe of 

powerful might and vast resources, intent on seeing him behind bars. That 

individual has the right to choose the advocate he believes will most ably 

defend his liberty at trial.

...

Federal prosecutors, when they rise in court, represent the people of the 

United States. But so do defense lawyers -- one at a time. In my view, the 

Court’s opinion pays insufficient respect to the importance of an 

independent bar as a check on prosecutorial abuse and government 

overreaching. Granting the Government the power to take away a 

defendant’s chosen advocate strikes at the heart of that significant role.

Id. at 357-58. All of Chief Justice Roberts’ concerns are playing out in this case. 

Under these circumstances, the government’s actions constitute interference with 

Padilla’s and Vaught’s right to counsel of choice and their right to due process right in the 

middle of the litigation.

1. Permitting Cooperating Defendants To Keep Funds Earmarked 

For Attorneys’ Fees While Denying Those Funds To Defendants 

Who Are Contesting The Charges Is Unseemly And Undermines 

The Workings Of The Adversary System.

“The very premise of our adversary system of criminal justice is that partisan 

advocacy on both sides of a case will best promote the ultimate objective that the guilty be 

convicted and the innocent go free.” Herring v. New York, 422 U.S. 853, 862 (1975). In the 

present case, the government is seeking to weaken these non-cooperating defendants’ ability 

to defend the case, gain tactical advantage, and undermine the contemplated workings of the 

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adversary system. As in Stein, “the government conducted itself in a manner that evidenced 

a desire to minimize the involvement of defense attorneys.” 435 F.Supp.2d at 353.

The government is perfectly willing to allow defendants to continue to use 

purportedly “tainted” assets to defend themselves as long as those defendants curry favor 

with the government. The result is that Ferrer and Hyer continue to utilize assets in their 

attorneys’ trust fund accounts and continue to be represented by their counsel of choice, 

while non-cooperating, presumed-innocent defendants Padilla and Vaught are severely 

disadvantaged because they no longer have funds to defend the case. Indeed, the government 

continues to press its tactical advantage by holding Padilla and Vaught to deadlines they 

agreed to when they believed that they would continue to have the funds to meet those 

obligations.

The government is sending a very clear message here. If the government believes a 

defendant will make it easier for the government to win its case through cooperation with

the government and willing to waive their constitutional rights, the defendant can continue 

to keep his attorney trust funds and the services of his counsel of choice. If, on the other hand, 

the government believes that the presumed-innocent defendant will make it harder for the 

government to win its case through vigorous representation and assertion of the defendant’s 

rights, the defendant will be deprived of assets necessary to fund his counsel of choice and 

thereby deprived of counsel. This “ends justify the means” approach is unseemly and 

unworthy of the United States government. United States v. Helmandollar, 852 F.2d 498, 

501 (9th Cir. 1988) (“This ‘ends justify the means’ approach is wholly contrary to the duty 

of a United States prosecutor and analogously to agents of the United States Government to 

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act with the utmost probity and uprightness”).

2. The Timing Of The Government’s Seizure Of Attorney Trust 

Funds Shows The Government’s Improper Purpose In 

Retaliating Against Defendants For Exercising Their Protected 

Constitutional And Statutory Rights.

The government’s seizure of attorney trust accounts occurred some 18 months after 

counsel began representing Mr. Padilla and seven months after Mr. Weiss began 

representation of Ms. Vaught which coincided with the initial indictment. It was after months

of vigorous litigation in the case and approximately two weeks after receiving rulings on 

litigated pretrial motions (some of which went against the government), that the government 

obtained its attorney trust account ex parte seizure warrantsfor Mr. Padilla and Ms. Vaught. 

This timing, in and of itself, and the government’s actions demonstrate the government’s 

desire to be no longer troubled by attorneys vigorously and effectively representing 

defendants’ interests and defending their rights. The government’s timing and the undisputed 

facts reveal its tactical strategy. Finally, the unusualness and selective use of mid-case seizure 

of attorney trust accounts is clearly an intentional strategy which has immensely impaired 

the ability of Padilla and Vaught to defend this case.

In this regard, cases involving vindictive prosecution are instructive in evaluating the 

government’s conduct in seizing attorney trust accounts after defendants assert their rights. 

“[W]hen prosecutorial actions stem from an animus toward the exercise of a defendant's 

rights... vindictive prosecution exists.” United States v. Gallegos- Curiel, 681 F.2d 1164, 

1169 (9th Cir. 1982). The appearance of vindictiveness results “where, as a practical matter, 

there is a realistic or reasonable likelihood of prosecutorial conduct that would not have 

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occurred but for hostility or a punitive animus toward the defendant because he has exercised 

his specific legal rights.” Id. The doctrine of vindictive prosecution “seeks to reduce or 

eliminate apprehension on the part of the accused” and “is designed, in part, ‘to prevent 

chilling the exercise of rights by other defendants who must make their choices under similar 

circumstances in the future.’” United States v. Jenkins, 504 F.3d 694, 700 (9th Cir. 2007) 

(internal citations and alterations omitted). “When a defendant exercises constitutional or 

statutory rights in the course of criminal proceedings, the government may not punish him 

for such exercise without violating due process guaranteed by the federal Constitution.” 

United States v. Wall, 37 F.3d 1443, 1448 (10th Cir. 1994) (citation omitted).

When government conduct such as this results in the denial of the right to counsel of 

choice, the Court should exercise its authority, as in Stein, to dismiss the indictment due to 

the Fifth and Sixth Amendment violations. The courts are not required to stand idly by in the 

face of such conduct. Federal courts retain supervisory powers to dismiss indictments in 

order “to remedy a constitutional or statutory violation; to protect judicial integrity by 

ensuring that a conviction rests on appropriate considerations validly before a jury; or to deter 

future illegal conduct.” United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 

1991); see also United States v. W.R. Grace, 526 F.3d 499, 511 n. 9 (9th Cir. 2008) (en banc) 

(noting that the court’s supervisory powers are not necessarily limited to these three 

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scenarios).16

Accordingly, defendants respectfully request this Court to issue its order dismissing 

the indictment against them based on the principles set forth in Stein and this Court’s 

supervisory powers.

B. Defendants Are Entitled To Disclosure Of All Communications Relating 

To The Government’s Belated Decision To Seize Attorney Trust 

Accounts And Disclosure Of Any Other Cases In The District Of Arizona 

Where There Have Been Post-Indictment Pretrial Seizure Of 

Defendants’ Attorneys’ Fees.

Given the chronology of events set forth above, defendants request this Court to order 

the government to disclose all communications and memoranda, including legal memoranda 

discussing the constitutional and legal issues surrounding the seizures of publishing assets 

and attorneys’ fees post-indictment pretrial. These communications include communications 

between and among: prosecutors and law enforcement agents in the U.S. Attorney’s Office 

for the District of Arizona; prosecutors and law enforcement agents in the Department of 

Justice, including prosecutors and law enforcement agents within the Money Laundering and 

Asset Recovery Section and the Forfeiture Unit; and any government prosecutors and law 

enforcement agents and counsel for cooperating defendants Backpage, Ferrer, and Hyer.

Defendants also request the United States to disclose all cases where the government 

has seized post-indictment, but prior to trial, attorneys’ fees from defendants’ counsel of 

 16 In fact, a court in this district just recently exercised its supervisory powers to dismiss an 

indictment with prejudice due to a violation of the defendant’s Sixth Amendment right to 

counsel. United States v. Laurean-Lozoya, 2018 WL 5924181 (D. Ariz., November 13, 

2018).

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choice. Defendants suspect this will not be a hard task as there is likely none, but in case we 

are mistaken in this belief, that fact needs to be placed in the record in the event there is later 

review of this issue.

Under Rule 16 of the Federal Rules of Criminal Procedure, the defendants are entitled 

to discovery of information relating to the government’s purposes in seizing funds in attorney 

trust accounts. Minimally, these records should be produced and reviewed by the Court in 

camera and any records not disclosed kept under seal for potential appellate review.

III. If This Court Does Not Dismiss The Indictment Against These Defendants, 

Counsel For Defendants Request This Court To Issue Its Order Permitting 

Them To Withdraw.

The government’s conduct in seizing attorney IOLTA trust accounts has rendered 

defendants Padilla and Vaught indigent and unable to continue to fund their counsel. The 

government’s conduct constitutes changed circumstances in the case from the time of the 

indictment. The government’s conduct is the direct cause of defendants being without funds 

to continue to retain counsel, thus necessitating counsel’s withdrawal. This Court has 

previously indicated that issues relating to the release of seized assets to fund counsel should 

be raised in the Central District of California where the seizure warrants were issued.

17 As it 

is uncertain when those issues will be resolved, if the Court denies the present motion, 

undersigned counsel respectfully request this Court to issue its order allowing them to 

withdraw from the case and appointment of the Federal Public Defender or experienced 

 17 See n. 13, supra.

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counsel from the Criminal Justice Act panel for the District Court in Phoenix.

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IV. CONCLUSION

The government’s interference with the defendants’ counsel of choice has resulted in 

violations of the Fifth and Sixth Amendments to the United States Constitution and, 

accordingly, this matter must be dismissed. The defendants respectfully request that the 

Court order the government to provide the requested disclosure so the record relating to this 

motion is complete in the event there is appellate review.

Alternatively, if the Court denies this motion to dismiss, counsel respectfully request 

the Court to issue its order permitting them to withdraw from the case. 

RESPECTFULLY SUBMITTED this 11th day of February, 2019.

PICCARRETA DAVIS KEENAN FIDEL PC

By: /s/ Michael L. Piccarreta

Michael L. Piccarreta

Attorney for Defendant Andrew Padilla

KARP & WEISS, P.C.

By: /s/ Stephen M. Weiss

Stephen M. Weiss

Attorney for Defendant Joye Vaught

 18 Defendants Padilla and Vaught will submit evidence of their indigency to the Court under 

seal,signed consents to withdraw as attorney of record, and applications and proposed orders 

in compliance with LRCrim 57.14 and LRCiv 83.3.

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CERTIFICATE OF SERVICE

I hereby certify that on the 11th day of February, 2019, I electronically 

transmitted the foregoing to the Clerk of the Court via the CM/ECF system for filing 

and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

Reginald Jones: Reginald.Jones@usdoj.gov

Peter S. Kozinets: Peter.Kozinets@usdoj.gov

John Kucera: John.Kucera@usdoj.gov

Margaret Perlmeter: Margaret.Perlmeter@usdoj.gov

Kevin Rapp: Kevin.Rapp@usdoj.gov

Andrew Stone: Andrew.Stone@usdoj.gov

Thomas Bienert: tbienert@bmkattorneys.com

Paul Cambria: pcambira@lglaw.com

Robert Corn-Revere: bobcornrevere@dwt.com

Bruce Feder: bfeder@federlaw.com

James Grant: jimgrant@dwt.com

Michael D. Kimerer, mdk@kimerer.com

Gary Lincenberg: glincenberg@birdmarella.com

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