1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

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., 

 Defendant. 

CR-18-422-PHX-DJH 

UNITED STATES’ NOTICE OF 

RETRIAL PURSUANT TO COURT 

ORDER (Doc. 2025) 

Case 2:18-cr-00422-DJH Document 2035 Filed 01/23/24 Page 1 of 5
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

I. United States’ Intent to Retry Defendant Michael Lacey 

The United States files this notice of intent to retry Defendant Michael Lacey on the 

84 counts for which the jury was unable to reach a verdict and requests that the Court set 

the case for retrial. On November 16, 2023, the jury found Defendant Lacey guilty of 

Count 100 and not guilty of Count 63. For the remaining 84 charges (Counts 1-62, 64-70, 

81, 83-84, 86, 88-92, and 94-99), the jury reached no verdict, and the Court declared a 

mistrial. (Docs. 1977, 1978, 1992.) 

II. Speedy Trial Act 

a. Standard

Under the Speedy Trial Act, “[i]f the defendant is to be tried again following a 

declaration by the trial judge of a mistrial . . . the trial shall commence within seventy days 

from the date the action occasioning the retrial becomes final.” 18 U.S.C. § 3161(e). 

Seventy days from the date the Court declared the mistrial (November 16, 2023) is January 

25, 2024. The Speedy Trial Act, however, has delineated a number of circumstances where 

“periods of delay shall be excluded in computing the time . . . within which the trial of any 

such offense must commence.” 18 U.S.C. § 3161(h). 

In other circuits, filing motions under Rules 29 and 33 serve to exclude time. See, 

e.g., In re U.S., 565 F.2d 173, 179 (1st Cir. 1977) (“Defendant waived claims that his 

constitutional right to a speedy trial and protection against double jeopardy would be 

violated by a retrial when he moved for Rule 33 relief.”); United States v. Gaffney, 689 F. 

Supp. 1578, 1580 (M.D. Fla. 1988) (“[I]n the interest of justice and judicial economy, the 

Court waited to reset the trial on the mistried counts until it had resolved the issues raised 

by defendant regarding the three counts upon which he had been convicted. Any other 

action by the Court would have defied logic. . . . The Court, moreover, finds that the entire 

time the motions with respect to jury misconduct were pending is excludable under 18 

U.S.C. § 3161(h)(1)(F). While this section applies to pretrial motions, motions filed after 

the mistrial was declared can be viewed as pretrial in nature.”) 

The Ninth Circuit, however, appears to take a stricter view on the question of the 

Case 2:18-cr-00422-DJH Document 2035 Filed 01/23/24 Page 2 of 5
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

time that is excluded after a defendant files motions under Rules 29 or 33. In United States 

v. Tertrou, 742 F.2d 538 (9th Cir. 1984), the district court excluded time after the defendant 

filed a Rule 29 motion. The Ninth Circuit, however, held that the “trial court erred in 

considering a motion for acquittal under Fed.R.Crim.P. 29 as a pre-trial motion. Rule 29, 

by its very terms, indicates that a motion for acquittal must be a post-trial motion. Thus, 

only the period that the motion is under advisement is excluded.” Id. at 539; see also 

United States v. Symington, 195 F.3d 1080, 1091-92 (9th Cir. 1999). In Symington, a 

mistrial occurred on September 3, 1997, and on that same day defendant moved for an 

extension to file his post-trial motion. Id. at 1091. On October 10, 1997, defendant filed 

a post-trial motion under Rules 29 and 33. The district court heard oral argument on the 

motion on December 1, 1997, and took the matter under advisement until issuing an order 

resolving it on January 20, 1998. Id. The government argued on appeal that the entire 

period from September 3, 1997 (when defendant filed his extension motion) to January 20, 

1998 (when the court ruled on defendant’s post-trial motion) should be excluded because 

it was a “period of delay resulting from other proceedings concerning the defendant.” Id.

(citing 18 U.S.C. § 3161(h)(1)). The Symington court ruled that the government’s 

argument was foreclosed by the Tertrou decision. 

b. Speedy Trial Act Has Been Tolled 

Despite the Tertrou and Symington decisions, the Speedy Trial Act has been tolled 

for Defendant Lacey for two independent reasons. First, Defendants’ motion to dismiss 

(Doc. 1972) has been fully briefed and pending before the Court since Defendants filed 

their reply on December 4, 2023. (Doc. 2005.) That excluded, at a minimum, 30 days 

from the Speedy Trial Act. 18 U.S.C. § 3161(h)(1)(H) (“delay reasonably attributable to 

any period, not to exceed thirty days, during which any proceeding concerning the 

defendant is actually under advisement by the court”). 

Second, the ends of justice will be served by excluding time under the Speedy Trial 

Act. 18 U.S.C. § 3161(h)(7)(A). In similarly situated cases, trial courts have found that 

the ends of justice support a continuance until either (a) sentencing or (b) after the appeal. 

Case 2:18-cr-00422-DJH Document 2035 Filed 01/23/24 Page 3 of 5
- 4 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States v. Sandford, 293 F. Supp. 3d 370 (W.D.N.Y. 2018); United States v. 

Dusenbery, 246 F. Supp. 2d 802 (N.D. Ohio 2002); United States v. Mapp, 945 F. Supp. 

43 (E.D.N.Y. 1996); United States v. Levasseur, 635 F. Supp. 251 (E.D.N.Y. 1986). All 

these cases involved trials where a defendant was convicted on certain counts and a mistrial 

was declared as to other counts. For each of these cases, the trial court ruled that “the ends 

of justice” would be served by stopping the Speedy Trial clock until after the defendant 

was sentenced or the appellate court issued a mandate. 

Levasseur is the “seminal” case in this area. Sandford, 293 F. Supp. 3d at 374. In 

that case, seven defendants were charged with a variety of counts. The jury reached a 

verdict as to some counts but was unable to reach a verdict as to others. After the trial 

court imposed sentence as to the counts of conviction and denied the defendants’ motions 

to dismiss the mistried counts, the defendants then requested a new trial date. Levasseur, 

635 F. Supp. at 252. The United States opposed the motion and sought a Speedy Trial Act 

exclusion until after the conclusion of the defendants’ appeals on the counts of conviction. 

Id. The trial court found “the ends of justice [are] served by stopping the Speedy Trial 

clock until the mandate of the Court of Appeals is issued.” Id. at 255. The Levasseur court 

noted that “in processing criminal cases mechanical adherence to time limits would not 

serve the interests of defendant, the government, the court, or society.” Id. at 254. The 

benefits to the parties were clear: “If the convictions are reversed, there will have been no 

needless complex and protracted second trial which might also result in a reversal based 

on the Second Circuit’s decision.” Id.

In Mapp, after the defendant was convicted of three of 11 counts (with the remaining 

eight resulting in a mistrial) the United States moved for an “ends of justice” exclusion of 

time from the Speedy Trial clock until the sentencing hearing. 945 F. Supp. at 44. The 

United States represented that “it would not dismiss the open counts until the Court 

sentenced Mapp and the government had an opportunity to review such sentence.” Id. The 

Mapp court cited Levasseur and granted the United States’ motion, finding “it may be a 

significant waste of judicial resources to retry the open counts prior to Mapp’s sentencing.” 

Case 2:18-cr-00422-DJH Document 2035 Filed 01/23/24 Page 4 of 5
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Id. at 46. 

The United States intends to retry Defendant Lacey and the Speedy Trial clock has 

been tolled under 18 U.S.C. § 3161(h)(1)(H) and 3161(h)(7)(A). 

 Respectfully submitted this 23rd day of January 2024.

 GARY M. RESTAINO 

 United States Attorney 

 District of Arizona 

 s/ _Andrew C. Stone__________________ 

KEVIN M. RAPP 

MARGARET PERLMETER 

PETER S. KOZINETS 

ANDREW C. STONE 

DAN G. BOYLE 

Assistant U.S. Attorneys NICOLE M. ARGENTIERI 

Acting Assistant Attorney General 

Criminal Division, U.S. Department of Justice 

AUSTIN M. BERRY 

Trial Attorney 

 

CERTIFICATE OF SERVICE 

I hereby certify that on January 23, 2024, 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/ Andrew C. Stone 

U.S. Attorney’s Office 

Case 2:18-cr-00422-DJH Document 2035 Filed 01/23/24 Page 5 of 5