Case 2:18-cr-00422-SMB Document 1352 Filed 10/19/21 Page 1 of 8
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`Thomas H. Bienert, Jr. (CA Bar No.135311, admitted pro hac vice)
`Whitney Z. Bernstein (CA Bar No. 304917, admitted pro hac vice)
`BIENERT KATZMAN LITTRELL WILLIAMS LLP
`903 Calle Amanecer, Suite 350
`San Clemente, California 92673
`Telephone: (949) 369-3700
`Facsimile: (949) 369-3701
`tbienert@bklwlaw.com
`wbernstein@bklwlaw.com
`Attorneys for James Larkin
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`Paul J. Cambria, Jr. (NY Bar No. 1430909, admitted pro hac vice)
`Erin McCampbell (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
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`Additional counsel listed on next page
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`Plaintiff,
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`United States of America,
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`vs.
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`Michael Lacey, et al.,
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`Defendants.
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`Case No. 2:18-cr-00422-PHX-SMB
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`DEFENDANTS’ RESPONSE TO
`GOVERNMENT’S PROPOSED
`CHANGES TO JURY
`QUESTIONNAIRE (DOC. NO. 1349)
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`(Oral argument requested)
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`DEFENDANTS’ RESPONSE TO GOVERNMENT’S PROPOSED CHANGES TO JURY
`QUESTIONNAIRE (DOC. NO. 1349)
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`Case 2:18-cr-00422-SMB Document 1352 Filed 10/19/21 Page 2 of 8
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`Gary S. Lincenberg (CA Bar No. 123058, admitted pro hac vice)
`Ariel A. Neuman (CA Bar No. 241594, admitted pro hac vice)
`Gopi K. Panchapakesan (CA Bar No. 279856, admitted pro hac vice)
`BIRD, MARELLA, BOXER, WOLPERT, NESSIM,
`DROOKS, LINCENBERG & RHOW PC
`1875 Century Park East, 23rd Floor
`Los Angeles, California 90067-2561
`Telephone: (310) 201-2100
`Facsimile: (310) 201-2110
`glincenberg@birdmarella.com
`aneuman@birdmarella.com
`gpanchapakesan@birdmarella.com
`Attorneys for John Brunst
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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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`David Eisenberg (AZ Bar No. 017218)
`DAVID EISENBERG PLC
`3550 N. Central Ave., Suite 1155
`Phoenix, Arizona 85012
`Telephone: (602) 237-5076
`Facsimile: (602) 314-6273
`david@deisenbergplc.com
`Attorney for Andrew Padilla
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`Joy Malby Bertrand (AZ Bar No. 024181)
`JOY BERTRAND ESQ LLC
`P.O. Box 2734
`Scottsdale, Arizona 85252
`Telephone: (602)374-5321
`Facsimile: (480)361-4694
`joy.bertrand@gmail.com
`Attorney for Joye Vaught
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`DEFENDANTS’ RESPONSE TO GOVERNMENT’S PROPOSED CHANGES TO JURY
`QUESTIONNAIRE (DOC. NO. 1349)
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`Case 2:18-cr-00422-SMB Document 1352 Filed 10/19/21 Page 3 of 8
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`The government filed its proposed changes to the jury questionnaire at Doc. No. 1349.
`Defendants submitted their suggested changes at Doc. No. 1348, and hereby respond to the
`government’s proposed changes:
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`• Question 15 (Doc. No. 1349-1 at 5-6):
`o Defendants do not believe it is necessary to modify this question from how it
`appeared in the original jury questionnaires and object to the proposed change.
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`• Question 19 (Doc. No. 1349-1 at 6-7):
`o Defendants do not believe it is necessary to modify this question from how it
`appeared in the original jury questionnaires and object to the proposed change.
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`• Question 20 (Doc. No. 1349-1 at 7):
`o Defendants do not believe it is necessary to modify this question from how it
`appeared in the original jury questionnaires and object to the proposed change.
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`• Question 38 (Doc. No. 1349-1 at 12):
`o Defendants have no objection to the government’s proposed edit.
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`• Question 39 (Doc. No. 1349-1 at 13):
`o Defendants have no objection to the government’s proposed edit.
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`• Question 42 (Doc. No. 1349-1 at 14):
`o Defendants do not object to the government’s proposed paragraph, as long as the
`response options after the question include the following:
` “c. Regardless of the law, do you expect the defendants to produce some
`evidence or prove their innocence?”
` “d. Regardless of the law, do you expect a defendant to testify during the
`trial?”
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`DEFENDANTS’ RESPONSE TO GOVERNMENT’S PROPOSED CHANGES TO JURY
`QUESTIONNAIRE (DOC. NO. 1349)
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`Case 2:18-cr-00422-SMB Document 1352 Filed 10/19/21 Page 4 of 8
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`• Government Proposed Question 42(c) (Doc. No. 1349-1 at 14):
`o Defendants oppose the government’s phrasing and instead suggest:
` “Will you follow the law as it is instructed by the Court even if you disagree
`with it, or will you follow your own beliefs and conscience if you disagree
`with any part of the law?”
`o Further, Defendants think this question should not be a subpart of Question 42 as
`the government proposes, but instead should be a standalone question where it
`appears in the current jury questionnaire at Question 86. To move the question as
`the government suggests runs the risk that potential jurors think they only have to
`follow the law as it relates to a defendant’s right to not testify or produce evidence.
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`• Question 43 (Doc. No. 1349-1 at 14-15):
`o Defendants do not believe it is necessary to modify this question from how it
`appeared in the original jury questionnaires and object to the proposed change.
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`• Question 47 (Doc. No. 1349-1 at 16):
`o Defendants do not believe it is necessary to modify this question from how it
`appeared in the original jury questionnaires and object to the proposed change.
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`• Question 64 (Doc. No. 1349-1 at 20):
`o Defendants object to the government’s inaccurate and self-serving modification,
`which, once again, ignores the legal distinction between the lawful adult
`entertainment industry, including escort services, and unlawful prostitution.
`o The government cites not a single case or statute to support its inaccurate position
`and ignores law to the contrary (e.g., A.R.S. § 13-1422 relating to adult oriented
`businesses). The government cites a fringe online dictionary to suggest that escorts
`are associated with prostitution, but ignores Arizona’s statutory definition of the
`term escort1 and mainstream dictionary definitions,2 neither of which suggest that
`escorts are prostitutes.
`o Further, the government suggests that all who work in the adult entertainment
`industry engage in unlawful prostitution. Doc. No. 1349-1 at 20. This contention
`is not only baseless, inaccurate, and absurd, but also underscores the government’s
`present prosecution of individuals based on speech it disfavors, in an illegal and
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`1
`“Escort” means a person who for consideration agrees or offers to act as a companion,
`guide or date for another person or who agrees or offers to privately model lingerie or to privately
`perform a striptease for another person. A.R.S. § 13-1422(G)(7).
`E.g., “a woman or a man who is hired to go with someone to a social event —often used
`2
`before another noun -- an escort service/agency.” https://www.merriam-webster.com/dictionary/escort.
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`DEFENDANTS’ RESPONSE TO GOVERNMENT’S PROPOSED CHANGES TO JURY
`QUESTIONNAIRE (DOC. NO. 1349)
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`Case 2:18-cr-00422-SMB Document 1352 Filed 10/19/21 Page 5 of 8
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`perverse attempt to manipulate the law to its own moral preferences.
`o The question should remain as it appeared in the original jury questionnaires.
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`• Question 65 (Doc. No. 1349-1 at 20-21):
`o The government’s objections to Question 65 are inaccurate, self-serving, and
`misstate the law. Defendants incorporate their response to the government’s
`proposed revisions to Question 64.
`o The government claims escort services are “not recognized as lawful, legal services
`throughout the United States,” yet cites not a single statute providing, or legal
`decision holding, that escort services are unlawful. The fact that some jurisdictions
`regulate the provision of escorts services hardly means that escort services are
`unlawful where they are unregulated or that escorts who fail to comply with escort
`laws/regulations are prostitutes.
`o Moreover, whether some jurisdictions which license escorts also require escorts to
`include their license numbers in their advertisements is irrelevant. The Arizona
`statute the government cites is a civil statute and it imposes the obligation on the
`advertiser—not on the publisher of advertisements. And an escort’s failure to
`comply with the laws and regulations relating to that business makes him or her a
`violator of those laws and regulations—not a prostitute.
`o This case centers on the distinction between legal adult services, such as escorts, and
`the unlawful activity of prostitution. As the Court recognized in creating the initial
`jury questionnaire, to ensure a fair jury it is important to ascertain potential jurors’
`beliefs and feelings about lawful adult entertainment services, including escort
`services.
`o The Defendants object to the deletion of this question, which should remain as it
`appeared in the original jury questionnaires.
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`• Question 79 (Doc. No. 1349-1 at 23-24)
`o Defendants object to the government’s inaccurate and self-serving modification to
`this question, which attempts to adjudicate Defendants guilty before the trial even
`starts by interjecting conclusory statements such as “[t]his case involves
`prostitution” and telling the jury it will hearing about “prostitution and sex
`trafficking.” Doc. No. 1349-1 at 23. The government astoundingly continues to
`fail to embrace its constitutional burden to prove that which it assumes to be true.
`Moreover, the government’s proposed question inaccurately says that “victims and
`witnesses” will testify about “being posted on backpage.com,” when it was ads that
`were posted to Backpage.com. The question should remain as it appeared in the
`original jury questionnaires.
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`DEFENDANTS’ RESPONSE TO GOVERNMENT’S PROPOSED CHANGES TO JURY
`QUESTIONNAIRE (DOC. NO. 1349)
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`Case 2:18-cr-00422-SMB Document 1352 Filed 10/19/21 Page 6 of 8
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`• Question 82 (Doc. No. 1349-1 at 24)
`o Defendants do not oppose the government’s proposed question combining
`Questions 82-84, but for clarity, the question should read: “Would you find a
`witness’s testimony to be more credible or less credible simply based on their…”
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`Defendants also request oral argument to the extent the Court disagrees with Defendants’
`proposed revisions contained in Doc. No. 1348 and this response or is inclined to accept any
`changes proposed by the government but objected to by Defendants.
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`RESPECTFULLY SUBMITTED this 19th day of October 2021,
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`BIENERT KATZMAN LITTRELL
`WILLIAMS LLP
`s/ Whitney Z. Bernstein
`Thomas H. Bienert, Jr.
`Whitney Z. Bernstein
`Attorneys for James Larkin
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`Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual (Oct. 2020) §
`II(C)(3), Whitney Z. Bernstein hereby attests that all other signatories listed, and on whose behalf this filing is
`submitted, concur in the filing’s content and have authorized its filing.
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`LIPSITZ GREEN SCIME CAMBRIA LLP
`s/ Paul J. Cambria, Jr.
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`Paul J. Cambria, Jr.
`Erin McCampbell Paris
`Attorneys for Michael Lacey
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`BIRD MARELLA BOXER WOLPERT
`NESSIM DROOKS LINCENBERG AND
`RHOW PC
`s/ Gary S. Lincenberg
`Gary S. Lincenberg
`Ariel A. Neuman
`Gopi K. Panchapakesan
`Attorneys for John Brunst
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`FEDER LAW OFFICE PA
`s/ Bruce Feder
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`Bruce Feder
`Attorneys for Scott Spear
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`DEFENDANTS’ RESPONSE TO GOVERNMENT’S PROPOSED CHANGES TO JURY
`QUESTIONNAIRE (DOC. NO. 1349)
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`Case 2:18-cr-00422-SMB Document 1352 Filed 10/19/21 Page 7 of 8
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`DAVID EISENBERG PLC
`s/ David Eisenberg
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`David Eisenberg
`Attorneys for Andrew Padilla
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`JOY BERTRAND ESQ LLC
`s/ Joy Bertrand
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`Joy Bertrand
`Attorneys for Joye Vaught
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`DEFENDANTS’ RESPONSE TO GOVERNMENT’S PROPOSED CHANGES TO JURY
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`Case 2:18-cr-00422-SMB Document 1352 Filed 10/19/21 Page 8 of 8
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`CERTIFICATE OF SERVICE
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`I hereby certify that on October 19, 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/ Toni Thomas
`Toni Thomas
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`3754503.1
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`CERTIFICATE OF SERVICE
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