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

) February 12, 2021

Michael Lacey, ) 11:34 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

TELEPHONIC STATUS CONFERENCE

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

Ms. Margaret Wu Perlmeter

Mr. Andrew C. Stone

40 North Central Avenue, Suite 1200

Phoenix, Arizona 85004

U.S. ATTORNEY'S OFFICE

By: Mr. Daniel G. Boyle

312 North Spring Street

Los Angeles, California 90012

U.S. ATTORNEY'S OFFICE

By: Mr. Reginald E. Jones

1400 New York Avenue NW, Suite 600

Washington, D.C. 20530

For the Defendant Lacey:

LIPSITZ GREEN SCIME CAMBRIA

By: Mr. Paul J. Cambria, Jr.

42 Delaware Avenue, Suite 120

Buffalo, NY 14202

For the Defendant Larkin:

BIENERT KATZMAN

By: Mr. Thomas H. Bienert, Jr.

903 Calle Amanecer, Suite 350

San Clemente, CA 92673

For the Defendant Spear:

FEDER LAW OFFICE

By: Mr. Bruce S. Feder

2930 East Camelback Road, Suite 160

Phoenix, AZ 85016

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UNITED STATES DISTRICT COURT

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

COURTROOM DEPUTY: We are on the record in CR 18-422,

United States of America versus Michael Lacey; United States of

America versus James Larkin; United States of America versus

Scott Spear; United States of America versus John Brunst;

United States of America versus Andrew Padilla; and United

States of America versus Joye Vaught, before the Court for a

motion hearing.

Counsel, please announce for the record.

MR. JONES: Good morning, Your Honor. Reggie Jones,

Margaret Perlmeter, Peter Kozinets, Andrew Stone, and Daniel

Boyle on behalf of the United States.

MR. CAMBRIA: Good morning, Your Honor. Paul Cambria

on behalf of Michael Lacey. And we respectfully waive his

appearance.

MR. BIENERT: Good morning, Your Honor. Thomas

Bienert for defendant James Larkin, who is listening on the

call. And I'm also joined, from her phone, by Antoinette

Thomas, paralegal from our firm.

MR. FEDER: Good morning, Your Honor. Bruce Feder on

behalf of Scott Spear, who is also on the line.

MR. LINCENBERG: Your Honor, Gary Lincenberg and Gopi

Panchapakesan on behalf of Mr. Brunst, who is on the line.

MR. EISENBERG: Good morning, Your Honor. David

Eisenberg on behalf of Andrew Padilla. And we would waive his

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appearance for this hearing.

MS. BERTRAND: Good morning, Your Honor. Joy Bertrand

appearing for Ms. Vaught. We waive her appearance for today's

hearing. Thank you.

THE COURT: Okay. So we're set to discuss the motion

to continue, which the government has no objection to, but

there is a dispute between the date it should be continued to.

I looked at the calendar and considered the two

vacations that are currently scheduled, and my preference is to

get started in August, otherwise we're looking at going pretty

late into December, which I don't really want to do. Although,

now that I'm looking at it -- hold on.

Well, either way we're going to have this break in

November that involves the wedding and Thanksgiving, so either

way that occurs. So I'm inclined to start it on August 23rd,

and we can get two full weeks in, break for September 6th

through the 17th, and then return for six weeks before the next

break, and then finish up after that. Those were the only two

breaks that I was told there was a request to work around.

Is there anything else from the government?

MR. JONES: August 23rd does work for the government,

Your Honor.

THE COURT: I'm sorry. I couldn't hear you.

MR. JONES: The August 23rd date works for the

government.

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THE COURT: Okay. Mr. Cambria, any issue with those

dates?

MR. CAMBRIA: No. As to me, Your Honor, no. I guess

the only thing that we have been attempting to stress, anyway,

is the deeper into the year, the better chance of vaccinations

and other things, and so that's why we were urging the

September date. I understand, you know, December might sound

like an issue, but it may be a better choice, respectfully.

I know in my own situation I qualify for every, you

know, in every department for the vaccines and can't get

scheduled. I know we have a number of people under 65. I just

think that the chances of us being in a better place later in

the year are greater.

What I'm thinking about, we've had some other cases

I'm familiar with where they started and some out of town

witness had come in and test positive, and the next thing you

know everybody was quarantined. It just seems to me later in

the year is better in the year.

But the direct answer to your question, the 23rd, I,

obviously, can be available.

THE COURT: Well, quite honestly, that's why I want to

start earlier, is if we have to have some break in the trial

because someone is showing symptoms, we have some leeway. If

we keep pushing it out, it's just not going to work.

And those dates aren't particularly convenient for my

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calendar either, but I'm having to move around a lot of things,

so this, yeah, this works the best.

Mr. Bienert.

MR. CAMBRIA: I'm sorry, one other thing. I know the

government suggested a status also, and, you know, that might

help. We might be in a better position if we have a status

prior to the trial date to reassess, if necessary.

THE COURT: You mean set a status conference?

MR. CAMBRIA: Yes.

THE COURT: Well, I may still do that, you're right,

but I'm not willing to set a status conference without having a

trial date.

MR. CAMBRIA: I understand. Thank you.

THE COURT: Unless, you know, something happens and

I'm no longer your trial judge.

Mr. Bienert.

MR. BIENERT: Yes, Your Honor. Those dates are fine.

The reality is myself and Ms. Bernstein and Ms. Thomas will be

available from August through the end of the year, the

defendants.

I agree with everything Mr. Cambria said. The only

twist I would add to this is I think another thing about

potentially going back as far as we can, reasonably, is

independent of all the lawyers and the direct participants in

the trial hopefully being vaccinated by then, I would think we

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UNITED STATES DISTRICT COURT

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would want to give ourselves the best chance of as many

categories of people being vaccinated as possible.

And what I specifically have in mind is since most

places seem to be doing it based on age, among other things, I

could see a scenario where, because none of us are spring

chickens, maybe all of us on the team can get vaccinated, but

we might not have a big group of the jury pool, namely, younger

people, because they haven't gotten to the 20-something and

30-something-year-olds yet. And so I think that extra month,

as I understand, at least the news about vaccinations coming

out and the timings, I think the difference between an August

trial date and September trial date could mean a lot -- all age

groups have had the chance to get vaccinated or not.

I'll be honest, Your Honor, I haven't really thought

through the issues of what are the defense issues if a big

chunk of your voir dire pool is unavailable for something weird

like this, they couldn't get vaccines, I think it could be an

issue. Obviously, from our standpoint, when we show up for

voir dire, we want the panel to be the broad range of people

from 18 years old and up who otherwise meet jury requirements.

And I think if we can make it less likely that we're missing,

say, the 18-year-olds, we should do that.

THE COURT: Okay. Mr. Feder.

MR. FEDER: Yes, Judge. I join in the comments made

by both Mr. Cambria and Mr. Bienert. Mr. Spear and I are

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UNITED STATES DISTRICT COURT

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available.

But to follow up a little bit on what Mr. Bienert just

said, the newspapers this morning indicate that President Biden

believes there will be sufficient vaccines available in July,

when in July is unclear. If the majority of the vaccines,

which I understand they are -- the government is purchasing are

the two-shot vaccines, as the Court probably knows, and

everyone else knows, you have to take those roughly three to

four weeks apart.

THE COURT: Okay. Hold on. Hold on. Somebody is

hitting a microphone or a phone.

COURTROOM DEPUTY: Number ending in 2782.

THE COURT: Number ending in 2782. I don't know who

that is, but if you could mute it until you're speaking, that

would be helpful.

Mr. Feder, go ahead.

MR. FEDER: So just doing the mathematics, for the

people that are willing to take the vaccine, if they became

available only by July, I mean, we're talking about probably --

and the vaccine's effectiveness occurs, I think, 30 days after

the second shot, then, you know, you're looking at September as

the time when most people's vaccines will be effective. Which,

again, I mean, that was one of the -- one of the points of

suggesting the September 20 date, in addition to avoiding one

of the breaks that we've anticipated.

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THE COURT: Okay. Thank you. Mr. Lincenberg.

MR. LINCENBERG: Yes, Your Honor. Those dates work

fine with Mr. Brunst and counsel, with the caveat that I will

mention, that as we've been going through the pandemic and all

of our trials keep getting continued, I advise each court that

I have other trials that are being set that overlap.

So, for example, I have a trial set for November 30th

in San Diego before Judge Curiel. In looking at dates in the

fall, I advised Judge Curiel that my case in Arizona was likely

to be continued to the fall. And he said, well, right now I

don't have a trial date set, so I'm going to set this for

November, and so I advised the Court that I have conflicting

trial dates. I think this is going to be similar with others

and we're going to have to try to work through it, and I'm

prepared to accept this trial date with the understanding that

there could be a battle between judges on this.

THE COURT: Okay. Mr. Eisenberg.

MR. EISENBERG: Thank you, Your Honor. I'm the one

that has the extended vacation, and I appreciate the Court's

consideration in allowing that break. This was rolled over

from last year when I had the same issue thinking that it

wouldn't be a problem. So I want to say thank you to the Court

for your consideration.

My client and I will be ready to participate in the

trial as scheduled, so we're okay there. Thank you.

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THE COURT: Okay. Ms. Bertrand.

MS. BERTRAND: Good morning, Your Honor. I have

nothing to add that my colleagues haven't already mentioned. I

concur with their comments, and think the September 20th date

is probably going to give us a better jury panel -- or a

broader jury panel. Other than that, I have nothing to add.

If the Court has any questions, I'll be happy to

answer them.

THE COURT: Okay. I don't.

Okay. I'm going to set it for those weeks. I know

that there was some questions about whether we would be going

for five days a week or four days a week. So let me just tell

you my plan is I have to have some time to do criminal

sentencing cases. What I'm thinking about right now is doing

an every other Monday, reserving an every other Monday for

sentencings. I can usually do it on a half a day, and if I

don't do it every week, I can squeeze it in as a full day.

And then I will set a status conference, let's --

Elaine, can you get me a date like the end of May or

the first week of June.

-- and then we can get back on the phone, and if

circumstances change, we can push it back a couple weeks.

So everybody should anticipate that if it gets pushed

back, you need those extra weeks at the end of the trial when

you're calendaring stuff.

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June 8th at nine for a telephonic status conference.

Also, there is currently a status conference set for

April 22nd -- no, March 22nd, right?

COURTROOM DEPUTY: February 22nd, Your Honor.

THE COURT: February 22nd. Okay.

-- on February 22nd to discuss the questionnaire,

which I'm going to vacate and I'll reset at a later time.

Is there anything else from the government?

MR. JONES: Nothing from the government, Your Honor.

THE COURT: Okay. Anything else from any of the

defense?

MR. CAMBRIA: No, Your Honor.

MS. BERTRAND: No. Thank you.

THE COURT: All right. I don't hear anything, so

we're at recess. Thank you.

MR. CAMBRIA: Thank you.

(Proceedings concluded at 11:51 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 21st day of June,

2021.

/s/ Christine M. Coaly_______

Christine M. Coaly, RMR, CRR

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