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Paul J. Cambria, Jr. (NY Bar No.1430909, admitted pro hac vice)

Erin E. McCampbell Paris (NY Bar No. 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

pcambria@lglaw.com

emccampbell@lglaw.com

Attorneys for 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-SMB

DEFENDANT MICHAEL LACEY’S 

RENEWED MOTION TO SET A 

STATUS CONFERENCE

(Oral argument requested)

Defendant Michael Lacey, by and through his undersigned counsel, files the instant Renewed 

Motion to Set a Status Conference (“Renewed Motion”). On March 22, 2024, Mr. Lacey filed a 

Motion to Continue / Set a Status Conference (“Motion”) (Doc. 2046), which is incorporated herein 

by reference. The government filed its response, indicating that, although a brief continuance would 

be acceptable, this Court should, nonetheless, sentence Mr. Lacey on Count 100 without any 

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resolution as to whether the remaining counts would be retried, and without a status conference. 

(See Doc. 2049.) 

Since then, the Court has scheduled Mr. Lacey’s sentencing for Count 100 for June 17, 2024, 

with the August 6, 2024 retrial date remaining on the calendar. 

Mr. Lacey submits the Renewed Motion for two reasons. First, the government’s position 

on Mr. Lacey’s retrial has been unclear, and this lack of clarity has led to a lack of clarity on other 

pressing matters, such as whether a Monsanto motion should be filed, whether counsel should 

prepare for sentencing or trial, and whether Mr. Lacey has the ability to exercise his appellate rights. 

Second, it does not appear that the government can pursue its newly disclosed position on Mr. 

Lacey’s sentencing/retrial because a judgment sentencing Mr. Lacey on Count 100 would not be a 

final judgment subject to appeal unless the government dismisses all the remaining charges, which 

means that the government does not have the “option” to decide whether to retry Mr. Lacey after 

an appeal of Count 100. In light of these complicated issues, Mr. Lacey renews his request for a 

status conference. 

I. There are many balls in the air.

Since the jury issued the verdict, there have been many balls in the air, resulting from, among 

other things, the government’s varying positions on Mr. Lacey’s retrial. On January 18, 2024, 

counsel for Mr. Lacey and counsel for the government spoke about the then 84 outstanding counts. 

At that time, counsel for the government indicated that the government intended to retry Mr. Lacey, 

that his retrial had been discussed with and approved by the Department of Justice, and that the 

government could be ready by early 2024 to retry Mr. Lacey. On January 23, 2024, the government 

filed its Notice of Retrial, indicating its intent to retry Mr. Lacey. (Doc. 2025.) In response, among 

other things, Mr. Lacey indicated that he had not yet retained counsel for a third trial, and he would 

need to file a Monsanto motion to retain the undersigned, his long-term counsel. (Doc. 2038.)

On January 29, 2024, the parties appeared for a status conference concerning the retrial. 

At that time, the government stated that it had not “fully explored” the “couple options” for 

retrial and “would want a little more time to understand all of the implications.” (Jan. 29, 2024 

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Tr. at 5.) The government suggested that, one “scenario . . . would be that Mr. Lacey is 

sentenced on the count of conviction, it goes up on appeal, the Ninth Circuit does whatever 

the Ninth Circuit does, and then there’s a decision on whether or not the trial will commence 

on the 84 hung counts.” (Id.) Counsel indicated that he was “not stating that that’s the United 

States’ position as we sit here today.” (Id. at 6.) “Option two, we have a trial date set . . . .” 

(Id. at 6.) With respect to the trial date, the government asked for a date “as soon as possible.” 

(Id. at 12.)

Mr. Lacey’s counsel asserted that, if the Court denied the pending Rule 29 and 33

motions, it would be most efficient for the Court to schedule Mr. Lacey’s third trial and

sentencing on any convictions (Count 100, included) after the Ninth Circuit ruled on the

appeals to be taken by Mr. Lacey’s co-defendants because any rulings by the Ninth Circuit 

would be applicable to, and controlling of, the issues to be tried in Mr. Lacey’s retrial, as well

as his sentencing. Otherwise, Mr. Lacey faces the potential of a retrial on the outstanding

counts (his third trial in this case), and then the need for a fourth trial, if the Ninth Circuit

finds legal error in the second trial. Mr. Lacey indicated that he had not yet retained his longterm trial counsel for the third trial, and would need to file a Monsanto motion to do so.

After hearing from the parties, this Court set a “placeholder” trial date of August 6, 

2024 for the retrial, which was anticipated to last six weeks. (Id. at 13.) This Court further 

stated that, “at some point we probably will meet again in terms of a status hearing or 

something of that sort before that time depending on how all these moving parts play out.” 

(Id.) Shortly thereafter, this Court set a sentencing date for Mr. Lacey for May 1, 2024, 

approximately three months prior to the date set for the retrial.

As these dates approached, and there was no further indication as to what “option” 

the government intended to pursue, Mr. Lacey’s counsel contacted the government to discuss 

a forthcoming motion to continue sentencing until after the retrial. The basis for the motion 

was that, with the August 6, 2024 trial date set, and without knowing whether the government 

intended to retry Mr. Lacey in August 2024 or after an appeal, and additionally with the Rule 

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29 and 33 motions pending, it did not make sense to sentence Mr. Lacey on Count 100 on 

May 1, 2024. In response, counsel for the government indicated that, if Mr. Lacey wanted to 

go to trial in August, the parties needed to inform the Court that week. The government 

indicated that it was “open” to the idea of not trying Mr. Lacey until the Ninth Circuit ruled, 

but only if Mr. Lacey was sentenced on Count 100 at the same time as his co-defendants.

On March 22, 2024, Mr. Lacey filed his Motion, indicating that, without clarity from 

the government as to which “option” it was pursuing, and with a trial date on the calendar, a 

status conference and continuance of sentencing were needed. (Doc. 2046.) If the 

government really intended to try Mr. Lacey on August 6, 2024, it made no sense to sentence 

him three months prior to the start of the third trial and would be an inefficient use of the 

Court’s, Probation’s, and counsel’s time because it could result in the need for two sentencings, 

just months apart (on top of the numerous constitutional problems if the government sought 

to have Mr Lacey incarcerated when his counsel was attempting to prepare for trial). (See id.) 

On March 29, 2024, the government filed its response – indicating for the first time –

that the “option” it intends to pursue is that Mr. Lacey would be sentenced on Count 100 at 

the same time of the sentencings of his co-Defendants, then Mr. Lacey would proceed to 

appeal, and then, depending on the Ninth Circuit’s opinion, the government would determine 

whether or not to retry Mr. Lacey on the 84 outstanding counts. (Doc. 2049 at 2.)

Shortly thereafter, this Court reset Mr. Lacey’s sentencing for June 17, 2024.

Because the government only recently made clear that it does not intend to try Mr. 

Lacey on August 6, 2024, and because the “option” the government seeks to pursue is contrary 

to settled law (as discussed below), a status conference is needed. Moreover, Mr. Lacey has 

not yet retained the undersigned for the third trial, and cannot do so without filing a Monsanto

motion, but counsel would only have the need for filing such a motion if the government 

intended to pursue the third trial, which is still unclear. 

Although the Court’s ruling on the Rule 29 motions has streamlined the case against 

Mr. Lacey, 34 counts remain outstanding at this time.

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II. A “Judgment” Imposing Sentence on Count 100 Would Not Be a “Final 

Judgment” Subject to Appeal.

Given the jury’s partial verdict as to Mr. Lacey, sentencing Mr. Lacey on Count 100 would 

not result in a final judgment as to that count, given the counts in the indictment remaining open 

and outstanding against Mr. Lacey. Long ago, the Supreme Court explained that “a ‘judgment’ or 

‘decision’ is final for the purpose of appeal only ‘when it terminates the litigation between the parties on the 

merits of the case, and leaves nothing to be done but to enforce by execution what has been 

determined.’” Parr v. United States, 351 U.S. 513, 518 (1956) (rejecting defendant’s appeal of a 

decision that did not terminate a prosecution on the merits) (emphasis added). “This rule applies in 

criminal as well as civil cases.” Id. In a criminal case, a judgment is not final until “the conclusion 

of the ‘whole matter litigated’ between the Government and the petitioner” and the imposition of 

sentence. Id. (“Final judgment in a criminal case means sentence. The sentence is the judgment.”); 

Berman v. United States, 302 U.S. 211, 212 (1937). 

Because the Ninth Circuit generally can review only final judgments, and a judgment on one 

of 35 counts would not be a final judgment, a judgment on Count 100 would not be subject to 

appeal. United States v. Witten, 965 F.2d 774, 775 (9th Cir. 1992) (“Federal courts of appeal have 

jurisdiction to review ‘all final decisions of the district courts.’”) (quoting 28 U.S.C. § 1291)); United 

States v. Luciano-Mosquera, 63 F.3d 1142, 1148 n.2 (1st Cir. 1995) (rejecting the government’s claim 

that the district court’s judgment imposing sentence on five of six counts was a final judgment, 

because “a criminal judgment involving multiple counts is not final and appealable unless the record 

discloses the precise disposition (e.g., the sentence) for each count.”); see also United States v. Russell, 

804 F.2d 571, 573 (9th Cir. 1986) (recognizing that “the district court order is not a final judgment . 

. . because it does not dispose of the remaining 16 counts”).

The Ninth Circuit has never directly addressed a situation like that which the United States 

proposes that this Court create, but the Supreme Court’s holdings about the finality of judgments 

are unambiguous. Moreover, the Ninth Circuit has directly addressed the importance of the policy 

against piecemeal appellate review of criminal cases that underlies the rule that only final judgments 

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generally are appealable—and, here, the United States’ proposed course of action flies directly in the 

face of that policy. In United States v. Vela, 624 F.3d 1148 (9th Cir. 2010), the defendant appealed 

from a judgment of not guilty by reason of insanity, which resulted in his commitment to a mental 

health institution, but with no criminal conviction and no sentence. Id. at 1150. The defendant 

appealed and the government argued that the Ninth Circuit had no jurisdiction to hear the appeal 

because there was no final judgment absent a criminal conviction and imposition of sentence. The 

Ninth Circuit rejected the government’s argument, despite recognizing the well-settled rule that its 

jurisdiction was limited to “final judgments” as codified in 28 U.S.C. § 1291 and that, in a criminal

case, a “final judgment” ordinarily means the imposition of a sentence, with nothing left to do but 

execution of the sentence. Id. at 1150-52. In determining that the judgment presented a “final 

judgment” for jurisdictional purposes, the Court held that the primary rationale underlying the final 

judgment rule was that courts of appeal should avoid “piecemeal appellate review of trial court 

decisions which do not terminate the litigation.” Id. at 1152 (emphasis added). The Court held that this 

policy consideration, which is “at its strongest” in criminal cases, was not implicated by the appeal

because:

Permitting [the defendant] to appeal from a verdict of not guilty 

by reason of insanity raises none of these concerns. His case is 

over; an appeal cannot interfere with or delay the progress of his 

criminal trial. It will not lead to multiple appeals. Thus, the 

rationales underlying the final judgment rule render appellate 

jurisdiction appropriate here. 

Id. Unlike Vela, Mr. Lacey’s case is not over, a judgment on one count will not terminate the litigation,

and the government’s proposal certainly could lead to piecemeal appellate review after mutliple trials. 

 The government has not said whether it would seek to have Mr. Lacey incarcerated if the 

Court were to sentence him on Count 100, but just as a non-final judgment as to Count 100 would 

not be subject to appeal, a non-final judgment obviously could not be executed unless and until it

became final (whether because the government dismisses the other pending counts or because those 

counts are tried to final judgment).

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Critically, if the Ninth Circuit declines jurisdiction over an appeal of a sentence on Count 

100 because it does not qualify as a “final judgment” due to the outstanding counts, and the sentence 

has been executed, Mr. Lacey would be incarcerated but unable to challenge his sentence and that 

scenario “would raise fundamental notions of due process.” United States v. King, 257 F.3d 1013, 

1020 (9th Cir. 2001). Under this scenario, the Ninth Circuit has suggested that a stay of the execution 

of sentence until the outstanding counts are resolved is one option that would satisfy due process 

concerns as well as maintain adherence to the rules on finality of judgments. See id. Another option 

is that, if the sentenced counts and outstanding counts are not “closely-related counts,” the district 

court could sever the outstanding counts, which would allow the defendant to proceed on appeal 

on the sentenced counts, and then proceed on appeal of conviction of any of the severed counts 

after trial on the severed counts. See id. Of these two options, it does not appear that severance is 

an option here because Count 100 is “closely-related” to Mr. Lacey’s outstanding counts. The plain 

text of Count 100 incorporates by reference all allegations found in the superseding indictment 

which means that the “specified unlawful activity” that forms the basis of Count 100 is the same as 

that for all other money laundering counts. (See Doc. 230 at ¶¶ 210-11.) The government’s proof 

at trial confirms the same. (SeeEx. 1479.) Further, Mr. Lacey’s outstanding counts are closely related 

to the counts of his co-Defendants because those counts are the exact same charges his coDefendants faced. 

CONCLUSION

In light of this controlling law from the Ninth Circuit, and in an effort to economize the

time of the court, counsel, the parties, and jurors, Mr. Lacey maintains that the best option for 

resolution of the charges against him is to allow his co-Defendants to take their appeals, and then, 

to retry him with guidance from the Ninth Circuit, sentencing him on any convictions, including 

Count 100, at the conclusion of the third trial. Mr. Lacey respectfully requests that this Court set a 

status conference to address these complicated issues in person. 

 

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RESPECTFULLY SUBMITTED this 26th day of April, 2024, 

Paul J. Cambria, Jr. 

Erin McCampbell Paris 

LIPSITZ GREEN SCIME CAMBRIA LLP

 By: /s/ Paul J. Cambria, Jr. 

Paul J. Cambria, Jr. 

Attorneys for Michael Lacey 

On April 26, 2024, 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 

Peter Kozinets, peter.kozinets@usdoj.gov 

Daniel Boyle, daniel.boyle2@usdoj.gov

Margaret Perlmeter, margaret.perlmeter@usdoj.gov 

Andrew Stone, andrew.stone@usdoj.gov

Austin Maxwell Berry, austin.berry2@usdoj.gov

Case 2:18-cr-00422-DJH Document 2080 Filed 04/26/24 Page 8 of 8