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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, )

)

)

Plaintiff, )

)

vs. )

)

)

Scott Spear. )

)

Defendant. )

)

NO. CR18-00422 PHX SMB-003

REPLY TO THE GOVERNMENT’S

RESPONSE TO MOTION FOR

IMMEDIATE DISCOVERY

REGARDING THE GOVERNMENT’S

ABUSE OF GRAND JURY AND

TRIAL SUBPOENAS TO OBTAIN

DEFENSE LAWYER BANK

ACCOUNTS AND FOR POTENTIAL

SANCTIONS

The defendant, Scott Spear, by and through his attorneys undersigned, files his Reply

re: his Motion For Immediate Discovery Regarding The Government’s Abuse Of Grand

Jury And Trial Subpoenas To Obtain Defense Lawyer Bank Accounts And For Potential

Sanctions [DE 531] and asserts:

1. The government fails to explain its underlying purpose to obtain trust and

business bank accounts from the seemingly random lawyers whose accounts were

subpoenaed, and the purpose of using grand jury and trial subpoenas for these accounts

from 2015 to the present, from not only undersigned counsel, but other defense lawyers

(former) representing defendants in the present case, and other lawyers representing

defendants in civil and other capacities;

. . .

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2. The government fails to explain why a Grand Jury subpoena from the Central

District of California was issued for undersigned counsel’s trust account in August of 2018

after the indictment was initiated in Arizona in 2018;

3. The government fails to explain the reason the records obtained from these

subpoenas were not reviewed from approximately August, 2018 to March, 2019;

4. The government fails to explain the reason such records were generally

disclosed to the other defense counsel, especially if they had not allegedly been reviewed

by the government agents or attorneys;

This Reply is based on the attached Memorandum of Points and Authorities, the file

in this matter, and such other arguments and evidence as may be presented.

RESPECTFULLY SUBMITTED this 27th day of May, 2019

FEDER LAW OFFICE, PA

/s/ Bruce Feder

Attorney for Scott Spear

MEMORANDUM OF POINTS AND AUTHORITIES

In its response to the present motion, the government fails to explain in any fashion

why numerous lawyers from around the United States who have represented defendants in

the present criminal case and in other capacities had their business and trust accounts

subpoenaed. It asserts that different lawyers had their accounts seized, but does not

explain why the lawyers identified in the present Motion had their records subpoenaed. The

government asserts in its Response that it's time of interest was 2017 – 2018, but fails to

explain why the trial subpoena issued by government counsel for the undersigned attorney’s

IOLTA account sought records from 2015 to the present (2018). There is also no

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explanation as to why a Grand Jury subpoena was issued in the Central District of California

in August of 2018 when the present defendants had been indicted in Arizona in April 2018.

The government also fails to explain why, if it was inquiring into fees paid, the

records subpoenaed from the relevant lawyers were not reviewed, discussed with

government counsel, or in any other way considered from August 2018 to March 2019.

Interrelated, the government further fails to explain why such records, having not been

apparently reviewed or considered previously, were then dumped in a March 2019

disclosure to all defense counsel in the present case. In short, the government’s explanations

do not pass a common sense and logical standard, even if such actions were isolated from

all of the other improper actions taken by the government to date.

These other improper actions are the subjects of other motions, but several seem

relevant to the present case:

1. Wholesale seizure of defendants’ assets using the Central District of

California instead of the location of the indicting Grand Jury in Arizona, with the

unsupportable assertion that all Backpage income is criminal proceeds;

2. The use of a probable cause standard in sworn affidavits filed in the Central

District of California to seize assets, and, inferentially, the same probable cause standard

used before the Grand Jury in Arizona, where there is clear, long-standing Supreme Court

and other appellate case law requiring a higher standard of proof in First Amendment cases;

3. Seizure and threatened seizure of attorneys’ fees in the Central District of

California reasserting the same improper probable cause standard and theory of liability in

additional sworn affidavits;

4. Massive seizures and then the disassembly of Backpage

computers/networks/servers that are then disclosed in piecemeal masses of disclosures

without discernible indexes, and other interferences with the defendants’ ability to review

discovery and prepare a defense.

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These actions do not denote inadvertent, unsupervised seizure and indictment

activity by the government, but a purposeful intention to deprive the defendants of their

ability to fund and retain their counsel of choice, and preserve their right to a fair trial. This

Court should determine the need for further disclosures and set an evidentiary hearing with

testimony from the government agents and attorneys responsible for the issuance of these

subpoenas against this factual backdrop.

A Grand Jury subpoena may not be issued for the sole or dominant purpose of

collecting additional evidence for a pending federal criminal case. United States v. Leung,

40 F.3d 577, 581 (2nd Cir. 1994); United States v. Badger, 983 F.2d 1443, 1459(7th Cir.

1993). Although Grand Jury investigations may be conducted using both search warrants

and subpoenas, the "presence of substantial government misconduct and unlawful seizure

of evidence ... Is quite properly taken into account when determining whether a subpoena

is unreasonable." See, United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989,

1003 (9th Cir. 2009). In a comparable factual circumstance involving a case where

substantial electronic evidence was seized by the government and not reviewed, but

involving a search warrant as opposed to improperly issued Grand Jury and trial subpoenas,

the Eastern District of New York District Court judge suppressed the evidence strictly

because of the delay in reviewing the documents. United States v. Metter, 860 F.Supp.

205 (E.D.N.Y. 2012).

In the present case, it is unclear what, if any, Grand Jury was impaneled in the Central

District of California in order to issue Grand Jury subpoenas for the trust account of the

undersigned’s defense lawyer representing a defendant in an Arizona indictment. Other

Grand Jury subpoenas were also issued in California for, on information and belief, bank

accounts of a former defense lawyer for defendant James Larkin, a now former criminal

defense lawyer for defendant Andrew Padilla, a longtime consulting Arizona lawyer for the

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defendants, and several other lawyers who have in the past represented the defendants or

their former business in civil issues in other parts of the United States.

Undersigned counsel needs to know, and his client is entitled to know, whether his

lawyer’s trust account, subpoenaed with both a Central District of California Grand Jury

subpoena and an Arizona trial subpoena for records from 2015 to 2018 occurred for some

proper or improper purpose and whether or not said counsel needs to take additional ethical

or legal actions to protect his client’s concerns.

All of the defendants in the present case are entitled to know what justification exists

for using Grand Jury subpoenas issued in later 2018 in the Central District of California to

obtain various lawyers trust accounts, notwithstanding a criminal indictment initiated in

Arizona in April, 2018. The defendants are also entitled to know what the purpose was in

disclosing these documents to all of the defendants, notwithstanding their private nature and

presumed irrelevance as discovery in the present criminal case

DATED this 27th day of May, 2019.

FEDER LAW OFFICE, PA

/s/ Bruce Feder

Attorney for Scott Spear

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CERTIFICATE OF SERVICE

I hereby certify that on the 27th day of May, 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:

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 616 Filed 05/27/19 Page 6 of 6