`United States of America,
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`vs.
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`Scott Spear,
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`Plaintiff,
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`Defendant.
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`Case 2:18-cr-00422-SMB Document 1218 Filed 08/16/21 Page 1 of 4
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`Bruce Feder (AZ Bar No. 004832)
`FEDER LAW OFFICE PA
`2930 E. Camelback Road, Suite 160
`Phoenix, Arizona 85016
`Telephone: (602) 257-0135
`bf@federlawpa.com
`Attorney for Scott Spear
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`Case No. 2:18-cr-00422-PHX-SMB
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`DEFENDANT SPEAR’S RESPONSE
`AND OPPOSITION TO COURT
`ORDER ACCELERATING TRIAL
`DATE (DKT. 1217)
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`Defendant Scott Spear files this response and opposition to the Court’s order from
`earlier today accelerating the trial date by six days due to Defendant John Brunst’s request
`for trial suspension for two days during the Jewish holidays of Rosh Hashanah and Yom
`Kippur (see DKT. 1217). Spear and undersigned counsel request that trial begin on
`September 8, 2021 due to undersigned counsel’s ongoing health issues. The prior continuance
`(setting trial for September 7, 2021) was granted to accommodate counsel’s health issues and
`ensure that counsel had sufficient time to prepare his client’s defense. The Court’s order
`from today effectively unwinds that necessary continuance. The two days that would need to
`be made up to accommodate the religious request (see DKT. 1214) can instead be made up
`on two other days during trial (such as September 13 and another day) or at the end of trial.
`Counsel for the other defendants do not object to this request. The government likewise did
`not object to the request to suspend trial during the Jewish holidays and to make up those two
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`Case 2:18-cr-00422-SMB Document 1218 Filed 08/16/21 Page 2 of 4
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`dates later in the trial calendar (see DKT. 1214). Both sides are already under the Court’s
`order to begin trial on September 7, 2021 (see DKT. 1211), and have scheduled the exchange
`of witness and exhibit lists based on that date.
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`The Court set trial to begin on September 7, 2021 because undersigned counsel’s
`medical situation both impacted counsel’s ability to work and prepare for trial and also
`created a public safety issue to have other trial participants or Defendant Spear around
`counsel. See Docket No. 1211. Counsel notified this Court as soon as counsel’s medical
`issues presented. See Docket No. 1184. When counsel’s condition did not improve and
`precluded his ability to prepare for trial, counsel requested a three-week continuance. See
`Docket No. 1198. The Court instead granted a two-week continuance of trial and a one-week
`continuance of the final pretrial conference (see DKT. 1211).
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`Unfortunately, undersigned counsel and his assistant are still symptomatic at this time.
`Counsel and his staff are hesitant to meet with Defendant Spear (see below), cannot come to
`Court under District Court General Order 21-11, and cannot effectively prepare for trial.
`Accelerating the trial start date is especially problematic, as a matter of due process, to Spear
`and public safety to all trial participants (see New York Times article, “Can the Vaccinated
`Develop Long Covid After a Breakthrough Infection?” dated August 16, 2021, attached
`hereto as Exhibit A).
`Defendant Spear’s medical conditions makes meeting with counsel medically risky
`(see Exhibit B, submitted under seal). Though counsel and staff can communicate with Spear
`by phone and through zoom, there are issues in the weeks before trial that need to be addressed
`in person. The inability to do this prejudices Spear’s defense and compromises his due
`process rights.
`Additionally, counsel and staff are presently prohibited from coming to Court (see
`District Court General Order 21-11, attached hereto as Exhibit C). This Order mandates that
`“[n]o person who has a fever, cough, sore throat, shortness of breath, unusual muscle pain,
`recent loss of taste or smell, nasal congestion or a runny nose (unless due to known allergies)
`is authorized to enter the courthouse.” Counsel continues to have a cough, loss of/reduced
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`Case 2:18-cr-00422-SMB Document 1218 Filed 08/16/21 Page 3 of 4
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`sense of taste and smell, and fatigue, while his assistant has continued to have a reduced sense
`of taste and smell, fatigue, Paresthesia or “Pins and Needles Syndrome”, and brain fogginess,
`or “COVID-Brain,” which adversely affects the cognitive and memory parts of the brain (see
`article from University of Michigan Medicine “Numbness and Tingling after COVID-19:
`Care Instructions” and article from Harvard Medical School, “What is COVID-19 Brain Fog
`and How Can You Clear It?” attached hereto as Exhibit D). Accordingly, under the General
`Order governing the courthouse, counsel cannot appear at the August 20, 2021, Final Pretrial
`Conference, unless the Court overrides General Order 21-11.
`Further, undersigned’s continued symptoms, inability to meet with the client, and
`potential inability to participate in Friday’s pretrial conference have continued to limit
`undersigned’s ability to effectively prepare for trial. Commencing trial earlier than planned
`will exacerbate these issues, which the Court recognized in continuing the trial by two weeks.
`Allowing trial to begin on September 8, 2021 is prudent to give counsel and staff as much
`time as possible to recover and become asymptomatic.
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`Finally, the two days of trial that will need to be made up elsewhere to accommodate
`the Jewish holidays can be easily accomplished without accelerating trial by six days. The
`trial day of September 7, which would be suspended for Rosh Hashanah, can instead occur
`on September 13, 2021, for example. The trial day of September 16, which would be
`suspended for Yom Kippur, can instead occur on September 23, 2021, as the Court already
`noted (see DKT. 1217). It is not necessary to accelerate trial by six days to accommodate
`two days of Jewish holidays. Moreover, as a matter of due process to Defendant Spear and
`public safety to all trial participants and those in the courthouse, it makes sense to start trial
`on September 8, 2021 and use September 13, 2021 and another day to accommodate the
`Jewish holidays.
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`Defendant Spear and undersigned counsel request that trial begin on September 8,
`2021, due to undersigned counsel and his assistant’s ongoing health issues. Counsel does not
`make this motion for reason of delay, but in the interest of justice.
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`Case 2:18-cr-00422-SMB Document 1218 Filed 08/16/21 Page 4 of 4
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`RESPECTFULLY SUBMITTED this 16th day of August 2021,
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`FEDER LAW OFFICE PA
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`s/ Bruce Feder
`Bruce Feder
`Attorneys for Scott Spear
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`CERTIFICATE OF SERVICE
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`I hereby certify that on August 16, 2021, 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.
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`/s/ Mali Evans
`Mali Evans
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