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feder law office, p.a.

2930 e. camelback road, suite 160

phoenix, arizona 85016

(602) 257-0135

bf@federlawpa.com

fl@federlawpa.com

Bruce Feder - State Bar No. 004832

Attorney for Defendant, Scott Spear

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America, )

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Plaintiff, )

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vs. )

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Scott Spear. )

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Defendant. )

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NO. CR18-00422 PHX SPL

JOINT MOTION FOR

RECONSIDERATION OF THE

COURT’S ORDER [396-1] GRANTING

GOVERNMENT’S (SEALED) MOTION

TO COMPEL DESTRUCTION OF

INADVERTENTLY DISCLOSED

DOCUMENTS [343] AND ORDER [398]

DENYING (IN PART) UNOPPOSED

MOTION FOR EXTENSION OF TIME

The Defendant, Scott Spear, by and through his attorney undersigned, with the consent and

joinder of the other Defendants and their respective counsel, moves this Court to reconsider its:

1. Order [DE 396-1] granting the Government’s (Sealed) Motion to Compel

Destruction of Inadvertently Disclosed Documents [DE 343]; and

2. Order [DE 398] denying Defendant Spear’s Joint Motion (Unopposed) to Extend

the Time for Responses and Replies Re: the Government’s (Sealed) Motion to Compel Destruction

of Inadvertently Disclosed Documents (the “Motion”) [DE 397].

Case 2:18-cr-00422-DJH Document 399 Filed 11/21/18 Page 1 of 4
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Defendant Spear moves for reconsideration because the Court granted the Government’s

Motion before Defendants’ responses to the Motion were due.

Defendants move for an order vacating the Order [DE 396-1] granting the Government’s

Motion, vacating that portion of the Order [DE 398] denying the motion to extend responses and

replies on the same Motion, and setting new response and reply dates for the Motion (which

Defendants would propose to be December 10, 2018, and January 4, 2019, commensurate with the

extensions the Court granted for the other motions addressed in the Order [DE 398]).

MEMORANDUM OF POINTS AND AUTHORITIES

The Government filed its Motion to Compel Destruction of Inadvertently Disclosed

Documents on October 17, 2018 [DE 343]. On November 2, 2018, Defendants moved to extend

the time to respond to Monday, November 19, 2018 [DE 358]. The Court granted that motion

and gave Defendants “until November 19, 2018 to file responses to Government’s Motion to

Compel Destruction of Inadvertently Disclosed Documents.” [DE 359].

On Friday, November 16, 2018, the Court granted the Government’s Motion [DE 396-1],

stating that the Motion was unopposed, when Defendants’ responses were not yet due. On

November 19, 2018, before learning that the Court had already granted the Government’s Motion,

Defendants filed an Unopposed Motion to further extend the response and reply dates into

December and January [DE 397]. The Court denied this extension motion on November 20th,

2018 [DE 398].

As the Court granted the Government’s Motion without the benefit of considering

Defendants’ response, which was not yet due at the time of the Court’s order [DE 396-1], and

seemingly denied the requested extension with the belief that Defendants had missed a filing

deadline, the Defendants request reconsideration of the two Orders and that they be provided an

opportunity to respond to the Motion.

The underlying facts are not nearly as simple or favorable to the Government as the

Government suggested in its Motion. If given the opportunity, the Defendants will raise

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substantive issues of a constitutional nature in response, including the Government’s obligations

to disclose the documents it now seeks to claw back under Brady v. Maryland, 373 U.S. 83 (1963),

and Giglio v. United States, 405 U.S. 150 (1972) — as the documents are exculpatory and provide

a basis to impeach government witnesses and for other pretrial and trial purposes. In the weeks

between the government’s disclosure of the allegedly inadvertently disclosed documents and the

government’s request for their return/destruction, defense counsel reading and discussing the

documents observed that both the documents and the information from law enforcement agents

contained in them were Brady/Giglio materials, as they undermined assertions made by

government agents/attorneys to Federal Magistrates issuing civil seizure warrants and,

inferentially, to a grand jury returning indictments. Defendants request the ability to raise this

issue, and others, in a response to the Government’s Motion. Ordering destruction of the

relevant, exculpatory/impeachment materials would impact Defendants’ rights under the Fourth,

Fifth and Sixth amendments to the United States Constitution.

It is expected that excludable delay pursuant to 18 U.S.C. §3161(h) may occur as a result

of this Motion or from an order based thereon.

RESPECTFULLY SUBMITTED this 21st day of November, 2018.

FEDER LAW OFFICE, PA

/s/ Bruce Feder

Attorney for Scott Spear

LIPSITZ GREEN SCIME CAMBRIA, LLP

/s/ Paul Cambria

Attorney for Michael Lacey

BIENERT MILLER & KATZMAN, PLC

/s/ Tom Bienert

Attorney for James Larkin

PICCARRETA DAVIS KEENAN FIDEL, PC

/s/ Michael Piccarreta

Attorney for Andrew Padilla

. . .

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KIMERER & DERRICK, PC

/s/ Michael Kimerer

Attorney for Jed Brunst

BIRD MARELLA BOXER WOLPERT NESSIM

DROOKS LINCENBERG & RHOW, PC

/s/ Gary Lincenberg

Attorney for Jed Brunst

KARP & WEISS, PC

/s/ Stephen Weiss

Attorney for Joye Vaught

CERTIFICATE OF SERVICE

I hereby certify that on the 21st day of November, 2018, 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:

Kevin Rapp: Kevin.Rapp@usdoj.gov

Andrew Stone: Andrew.Stone@usdoj.gov

Margaret Perlmeter: Margaret.Perlmeter@usdoj.gov

John Kucera: John.Kucera@usdoj.gov

Reginald Jones: Reginald.Jones@usdoj.gov

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

Attorneys for the United States

Paul Cambria: pcambira@lglaw.com

James Grant: jimgrant@dwt.com

Erin McCampbell: emccampbell@lglaw.com

Robert Corn-Revere: bobcornrevere@dwt.com

Ronald London: ronnielondon@dwt.com

Janey Henze Cook: janey@henzecookemurphy.com

John Littrell: jlittrell@bmkattorneys.com

Kenneth Miller: kmiller@bmkattorneys.com

Michael Piccarreta: mlp@pd-law.com

Stephen M. Weiss: sweiss@karpweiss.com

Michael Kimerer: mdk@kimerer.com

Tom Bienert: tbienert@bmkattorneys.com

Gary Lincenberg: gsl@birdmarella.com

Ariel Neuman: aneuman@birdmarella.com

Attorneys for the Defense

By: /s/ A. Jones

Case 2:18-cr-00422-DJH Document 399 Filed 11/21/18 Page 4 of 4