JAMES LARKIN’S SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANTS’ EMERGENCY 

MOTION TO STAY SEIZURE OF ATTORNEYS’ FEES AND REQUEST FOR IMMEDIATE HEARING

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Thomas H. Bienert, Jr. (Cal. Bar No. 135311, admitted pro hac vice) 

Whitney Z. Bernstein (Cal. Bar No. 304971, admitted pro hac vice) 

BIENERT, MILLER & KATZMAN, PLC

903 Calle Amanecer, Suite 350

San Clemente, California 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

Email: tbienert@bmkattorneys.com 

wbernstein@bmkattorneys.com 

Counsel for Defendant James Larkin

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff, 

v. 

Michael Lacey, et al., 

Defendants. 

No. CR-18-00422-PHX-SPL-02

JAMES LARKIN’S SUPPLEMENTAL 

BRIEF IN SUPPORT OF 

DEFENDANTS’ EMERGENCY 

MOTION TO STAY SEIZURE OF 

ATTORNEYS’ FEES AND REQUEST 

FOR IMMEDIATE HEARING (DOC. 

376) 

It is expected that excludable delay under 18 U.S.C. § 3161(h)(1)(D) will occur as a 

result of this motion or an order based thereon.

Mr. Larkin’s ability to defend himself in this case is under fire. As a threshold matter, 

the government cannot lawfully restrain publishing proceeds pre-trial without satisfying a 

constitutionally mandated elevated probable cause showing. See Fort Wayne Books, Inc. v. 

Indiana, 489 U.S. 46, 63, 66 (1989); Simon & Schuster, Inc. v. Members of the New York State Crime 

Victims Bd., 502 U.S. 105, 115 (1991); Adult Video Ass’n. v. Reno, 41 F.3d 503 (9th Cir. 1994). 

This is the primary focus of Mr. Larkin’s Emergency Motion to Stay Seizure of Attorneys’ 

Fees and Request for Immediate Hearing. See Doc. 376.

But the government has now gone even further by aggressively seeking to deprive 

Mr. Larkin of non-Backpage-related funds required for counsel of his choice and for basic 

Case 2:18-cr-00422-DJH Document 377 Filed 11/15/18 Page 1 of 4
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JAMES LARKIN’S SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANTS’ EMERGENCY 

MOTION TO STAY SEIZURE OF ATTORNEYS’ FEES AND REQUEST FOR IMMEDIATE HEARING

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living expenses. On October 29, 2018, counsel for Mr. Larkin contacted the government 

seeking its position regarding modifying Mr. Larkin’s bail to remove the condition of GPS 

ankle monitoring given Mr. Larkin’s compliance on pretrial release and lack of flight risk. See 

Exhibit A, Email Correspondence Between Mr. Bienert and AUSA Rapp, at 2. The 

government responded by informing counsel that not only would it oppose such a motion 

but also asserted that it would be criminal conduct for Mr. Larkin to directly or indirectly 

access money and accounts that are not proceeds from Backpage.com. Ex. A at 1. The only 

basis provided was that the government claimed to have sourced two accounts to criminally 

derived funds. Because the government has not shared its supposed sourcing nor its logic, 

Mr. Larkin is unable to specifically reply to these allegations. But the defense proffers to the 

Court that these accounts contain proceeds from the sale of newspapers, rent payments, and 

contractually obligated legal indemnification payments.1 Undersigned counsel believes that 

at an evidentiary hearing the government would not be able to demonstrate that this money 

is tainted. 

Pre-trial, the government staked out its position that any and all funds from 

Backpage.com, without any regard to time or scope, are illicit. Notwithstanding the 

constitutional violations in this position, the government has also zealously attacked funds 

and accounts that are not even connected to Backpage.com but were instead unrelated and 

segregated by Mr. Larkin. And the government has doubled down on its attacks by 

threatening Mr. Larkin for spending, or even accessing, money that is disconnected from

Backpage.com. Additionally, Mr. Larkin recently learned that the government also seized his 

1 Mr. Larkin is the former co-owner of Village Voice Media Holdings (“VVM”), a newspaper 

conglomerate that, at one time, distributed 17 weekly newspapers across the country, including 

the Phoenix New Times, SF Weekly, and New York’s Village Voice. During his tenure at VVM, 

and long before inception of Backpage, Mr. Larkin had accumulated significant wealth. In 2012, 

VVM was sold to Voice Media Group and that sale generated and continues to generate 

significant wealth for Mr. Larkin that is unrelated to Backpage. Further, Mr. Larkin receives 

rental income from rental of the Phoenix New Times Building, located on Washington Street 

in Phoenix, which is unrelated to Backpage.com. 

Case 2:18-cr-00422-DJH Document 377 Filed 11/15/18 Page 2 of 4
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JAMES LARKIN’S SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANTS’ EMERGENCY 

MOTION TO STAY SEIZURE OF ATTORNEYS’ FEES AND REQUEST FOR IMMEDIATE HEARING

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children’s trust accounts in its latest round of ex parte seizure warrants and applications. See 

Doc. 374, Warrant Application, at 15 (Subject Accounts 43A-D). It is anticipated that the 

appropriate party will file claims against these seizures at a later date. 

The government’s seizures, threats, and actions leave Mr. Larkin not only unable to 

pay counsel of his choice, but also unable to afford basic living expenses for him and his 

family on a daily basis without fear of incurring additional criminal charges. It is improper 

for the government to threaten Mr. Larkin that withdrawing money that is clearly legal, when 

other funds he is entitled to use have been seized, is now also somehow criminal. The 

government is both suffocating Mr. Larkin’s constitutional right to counsel of his choice by 

depriving him of virtually all money necessary for such counsel and strangling Mr. Larkin, his 

wife, and his children’s ability to afford basic living expenses. 

Accordingly, Mr. Larkin respectfully requests that this Court address the government’s 

seizures and threats by setting a fulsome and expedited briefing schedule and evidentiary 

hearing as to the propriety of the government’s stranglehold on Mr. Larkin’s unrelated, 

segregated money. 

Respectfully submitted,

Dated: November 15, 2018 BIENERT, MILLER & KATZMAN, PLC

/s/ Thomas H. Bienert, Jr.

Attorneys for James Larkin

Case 2:18-cr-00422-DJH Document 377 Filed 11/15/18 Page 3 of 4
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 CERTIFICATE OF SERVICE

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CERTIFICATE OF SERVICE

I certify that on this 15th day of November 2018, I electronically transmitted a PDF 

version of this document to the 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 

listed below. 

/s/ Toni Thomas

Toni Thomas

David Lawrence Botsford, Botsford & Roark, dbotsford@aol.com 

Erin E. McCampbell, Lipsitz Green Scime Cambria LLP, emccampbell@lglaw.com 

Daniel James Quigley, Daniel J Quigley PLC, quigley@djqplc.com 

Michael L. Piccarreta, Piccarreta Davis Keenan Fidel PC, mlp@pd-law.com 

Anthony R. Bisconti, Bienert Miller & Katzman PLC, tbisconti@bmkattorneys.com

Kenneth M. Miller, Bienert Miller & Katzman PLC, kmiller@bmkattorneys.com 

Thomas H. Bienert, Jr., Bienert Miller & Katzman PLC, tbienert@bmkattorneys.com 

Whitney Z. Bernstein, Bienert Miller & Katzman PLC, wbernstein@bmkattorneys.com 

K. C. Maxwell, Maxwell Law PC, kcm@kcmaxlaw.com 

Adam Christian Page, Karp & Weiss PC, apage@karpweiss.com 

Stephen M. Weiss, Karp & Weiss PC, sweiss@karpweiss.com 

Ariel A. Neuman, Bird Marella, aan@birdmarella.com 

Gary S. Lincenberg, Bird Marella, gsl@birdmarella.com 

Gopi K. Panchapakesan, Bird Marella, gkp@birdmarella.com 

Michael D. Kimerer, Kimerer & Derrick PC, MDK@kimerer.com 

Rhonda Elaine Neff, Kimerer & Derrick PC, rneff@kimerer.com 

Bruce S. Feder, Feder Law Office PA, bf@federlawpa.com 

Andrew C. Stone, Assistant U.S. Attorney, andrew.stone@usdoj.gov 

John Jacob Kucera, Assistant U.S. Attorney, john.kucera@usdoj.gov

Kevin M. Rapp, Assistant U.S. Attorney, kevin.rapp@usdoj.gov

Margaret Wu Perlmeter, Assistant U.S. Attorney, Margaret.perlmeter@usdoj.gov 

Reginald E. Jones, Assistant U.S. Attorney, reginald.jones@usdoj.gov

Peter Shawn Kozinets, Assistant U.S. Attorney, peter.kozinets@usdoj.gov

Case 2:18-cr-00422-DJH Document 377 Filed 11/15/18 Page 4 of 4