Case 2:18-cr-00422-DJH Document 1382 Filed 11/08/21 Page 1 of 8
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`GLENN B. McCORMICK
`Acting United States Attorney
`District of Arizona
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`KEVIN M. RAPP (Ariz. Bar No. 014249, kevin.rapp@usdoj.gov)
`MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov)
`PETER S. KOZINETS (Ariz. Bar No. 019856, peter.kozinets@usdoj.gov)
`ANDREW C. STONE (Ariz. Bar No. 026543, andrew.stone@usdoj.gov)
`Assistant U.S. Attorneys
`40 N. Central Avenue, Suite 1800
`Phoenix, Arizona 85004-4408
`Telephone (602) 514-7500
`
`DAN G. BOYLE (N.Y. Bar No. 5216825, daniel.boyle2@usdoj.gov)
`Special Assistant U.S. Attorney
`312 N. Spring Street, Suite 1400
`Los Angeles, CA 90012
`Telephone (213) 894-2426
`
`KENNETH POLITE
`Assistant Attorney General
`Criminal Division, U.S. Department of Justice
`
`REGINALD E. JONES (D.C. Bar No. 1620183, reginald.jones4@usdoj.gov)
`Senior Trial Attorney
`Criminal Division, U.S. Department of Justice
`1400 New York Ave N.W., Suite 1200
`Washington, D.C. 20005
`Telephone (202) 616-2807
`Attorneys for Plaintiff
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
`
`
`No. CR-18-422-PHX-DJH
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`UNITED STATES’ RESPONSE TO
`DEFENDANTS’ MOTION FOR
`RECUSAL (Doc. 1378)
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`United States of America,
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`Plaintiff,
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`
`v.
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`
`Michael Lacey, et al.,
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`
`
`Defendants.
`Defendants’ motion for recusal should be denied. The “facts” raised by Defendants,
`even assuming they are accurate, would not cause a reasonable person to question Your
`Honor’s impartiality in this matter. No recusal is warranted.
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`Case 2:18-cr-00422-DJH Document 1382 Filed 11/08/21 Page 2 of 8
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`Pertinent Factual Background
`This is the second time in this case Defendants have moved for recusal of the
`presiding district court judge. (See Docs. 1059, 1067, 1075.) After the Court denied their
`first motion for recusal, Defendants sought a writ of mandamus, which the Ninth Circuit
`denied. (Doc. 1089; April 5, 2021 Memorandum from the U.S. Court of Appeals for the
`Ninth Circuit, attached as Exhibit A.)
`Defendants now seek recusal because they claim to be “aware of some facts that
`could cause a reasonable person with knowledge of the facts to conclude that Your Honor’s
`impartiality might reasonably be questioned.” (Doc. 1378 (“Mot.”) at 3.) Defendants raise
`three reasons why they believe the Court cannot be fair and impartial in this matter.
`- First, because Your Honor “held at least one press conference with various
`organizations to raise awareness of human trafficking, some of which
`organization [sic] may be affiliated with witnesses on the government’s witness
`list.” (Mot. at 3.)
`- Second, based on Your Honor’s “close personal and professional connection
`with the late Senator John McCain and his wife, Cindy McCain, as well as Your
`Honor’s significant support for organizations associated with the McCains,
`including financial contributions to the McCain Institute.” (Id.) Defendants then
`claim that the “McCains and the McCain Institute have been outspoken critics
`of Backpage.com and a driving force behind political efforts to shut down the
`site.” (Id. at 3-4.)
`- Third and finally, Defendants believe recusal is appropriate because Your Honor
`may have had “communications relating to investigations or arrests of any
`Defendants that could influence the appearance of partiality.” (Id. at 5.)
`Based on these three reasons, Defendants question this Court’s impartiality and seek
`recusal.
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`Case 2:18-cr-00422-DJH Document 1382 Filed 11/08/21 Page 3 of 8
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`I.
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`Law and Argument
`No Specific Grounds for Recusal Apply Under 28 U.S.C. § 455(b)
`The criteria for disqualification of judges are defined by 28 U.S.C. § 455.1 That
`statute contains both specific grounds for when judges “shall” disqualify themselves under
`§ 455(b), and a catch-all provision, § 455(a). Here, Defendants do not argue that any of
`the specific grounds for recusal apply. Appropriately so. None do. For example, the three
`reasons provided for recusal do not raise the specter of Your Honor holding any “financial
`interest in the subject matter in controversy,” or “any other interest that could be
`substantially affected by the outcome of the proceeding.” § 455(b)(4). Accordingly,
`Defendants appear to focus their recusal argument on the catch-all language of § 455(a).
`Recusal Isn’t Appropriate Under 28 U.S.C. § 455(a)
`II.
`
`Under § 455(a), a district court judge must recuse “in any proceeding in which [her]
`impartiality might reasonably be questioned.” Courts apply an “objective” standard to
`§ 455(a) motions. United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008). A judge
`has “as strong a duty to sit when there is no legitimate reason to recuse as [s]he does to
`recuse when the law and facts require.” Clemens v. U.S. District Court for the Central
`District of California, 428 F.3d 1175, 1179 (9th Cir. 2005). The judge must consider
`“whether a reasonable person with knowledge of all the facts would conclude that the
`judge’s impartiality might reasonably be questioned.” Id. at 1178; United States v.
`Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997). The reasonable observer is not a
`“hypersensitive or unduly suspicious person,” Clemens, 428 F.3d at 1178-79, nor “a ‘partly
`informed man-in-the-street,’ but rather someone who ‘understand[s] all the relevant facts’
`and has examined the record and law.” Holland, 519 F.3d at 914.
`One who seeks recusal must show that the judge’s bias or prejudice reflects an
`obvious inability to fairly preside over the proceeding. See Liteky v. United States, 510
`U.S. 540, 551-552 (1994). “‘Bias’ and ‘prejudice’ as used in recusal statutes connote a
`
`1 Defendants cite “18 U.S.C. § 455,” but the United States infers that Defendants
`meant to cite 28 U.S.C. § 455.
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`Case 2:18-cr-00422-DJH Document 1382 Filed 11/08/21 Page 4 of 8
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`favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate,
`either because it is undeserved, or because it rests upon knowledge that the subject ought
`not to possess or because it is excessive in degree.” Twist v. U.S. Dep’t of Justice, 344 F.
`Supp. 2d 137, 141 (D.D.C. 2004) (citing Liteky, 510 U.S. at 550). The standard “must not
`be so broadly construed that it becomes, in effect, presumptive, so that recusal is mandated
`upon the merest unsubstantiated suggestion of personal bias or prejudice.” Holland, 519
`F.3d at 913. Moreover, because recusal is an extreme measure, Twist, 344 F. Supp. 2d at
`142, it may not be based on speculation, innuendo, suspicion, or opinion. Clemens, 428
`F.3d at 1178-79.
`Recusal claims under § 455(a) are “fact driven” and guided “by an independent
`examination” of the facts and circumstances at issue. Clemens, 428 F.3d at 1178.
`Accordingly, the United States will separately examine the three facts that Defendants
`claim support recusal.
`Participation In A Press Conference To Raise Awareness Of Human
`A.
`Trafficking Is Insufficient To Support Recusal
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`
`Defendants’ first argument in support of recusal is without merit. Defendants are
`concerned that Your Honor held a press conference with various organizations to raise
`awareness of human trafficking. As an initial matter, there are no details provided about
`when the press conference occurred, who presented, who attended, what press it generated,
`or anything beyond a conclusory assertion that such a conference happened. But even
`assuming that Your Honor did participate in a press conference to discuss human
`trafficking, a recusal isn’t necessary. Human trafficking is a crime. See, e.g., 18 U.S.C.
`§ 1591. A “reasonable person” would clearly expect a federal district court judge to take
`a dim view of any federal crimes. Holding an unfavorable opinion of “human trafficking”
`is not inappropriate. See Twist, 344 F. Supp. 2d at 141 (“bias” under § 455(a) involves a
`judge’s unfavorable opinion about a topic that is inappropriate because it is undeserved).
`Defendants also make a conclusory allegation that one of the organizations involved
`in the press conference “may be affiliated” with witnesses on the United States’ witness
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`Case 2:18-cr-00422-DJH Document 1382 Filed 11/08/21 Page 5 of 8
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`list. (Mot. at 3.) The Motion does not identify any such organizations or witnesses. The
`United States cannot specifically respond to this argument without further details, but even
`if Your Honor participated in a press conference that also involved a representative of an
`organization that, in turn, might have some unspecified connection to a potential (but
`unidentified) prosecution witness, clearly more would be needed to support recusal. A
`reasonable person would not conclude that Your Honor would be biased against
`Defendants based on the vague and attenuated assertion that you participated in the same
`press conference as an organization that has some unknown or unspecified association with
`an unidentified potential witness.
`A Close Connection With The McCains Fails To Establish Any Basis For
`B.
`Recusal
`
`Defendants are wrong when they suggest Your Honor’s “close personal and
`professional connection with the late Senator John McCain and his wife, Cindy McCain”
`is sufficient to support recusal. Neither Senator McCain nor Cindy McCain are parties or
`witnesses in this matter, nor have they played any role whatsoever in this prosecution.
`Defendants’ argument that a reasonable person would impute the views of the late-Senator
`and Mrs. McCain to Your Honor, simply because you may be friends, is far-fetched. Other
`district court decisions are instructive. For example, in denying a litigant’s motion for
`recusal, a district court judge found that “[t]o my knowledge every federal court faced with
`arguments for recusal based on friendship have found recusal unnecessary.” M.K. Metals,
`Inc. v. Nat’l Steel Corp., 539 F. Supp. 991, 995 (N.D. Ill. 1984). “In short, friendship
`between judges and trial actors other than parties, untainted by any financial interests,
`should not generally justify recusal.”2 Id. at 996.
`
`2 The United States found one decision since 1984 that may contradict the M.K.
`Metals, Inc. opinion that no court has recused itself based on friendship with a non-trial
`actor. In United States v. Jordan, 49 F.3d 152 (5th Cir. 1995), the court of appeals found
`the district court judge should have recused herself because there was a publicized history
`of “bad blood” between the defendant and a close personal friend of the judge. While
`noting that friendship between the judge and a person with interest in the case need not be
`disqualifying, here the judge’s friend and the defendant “were embroiled in a series of
`vindictive legal actions resulting in a great deal of publicity,” some of which involved the
`judge’s spouse. Id. at 157. The court of appeals remanded for resentencing only, after the
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`Case 2:18-cr-00422-DJH Document 1382 Filed 11/08/21 Page 6 of 8
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`Here, the facts are even more attenuated as the McCains aren’t trial actors or
`connected to this case in any manner, beyond making a handful of public comments in
`support of Backpage’s shutdown. (See, e.g., Mot. at 4-5.) Senator McCain was familiar
`with Backpage through, among other things, his work as a member of the United States
`Senate Permanent Subcommittee on Investigations that issued a report on Backpage in
`January 2017.3 The mere fact that Your Honor has connections to the McCains, or may
`have made charitable contributions to an Arizona State University institute that bears the
`late Senator’s name (the McCain Institute for International Leadership), does not support
`recusal. Indeed, the United States can find no case where a district court recused under
`such a factual scenario.4
`As the Supreme Court has noted, “friendship is a ground for recusal of a Justice
`where the personal fortune or the personal freedom of the friend is at issue,” but not
`typically in other situations. Cheney v. U.S. Dist. Ct. for D.C., 541 U.S. 913, 916 (2004).
`Neither Cindy McCain’s “personal fortune” nor her “personal freedom,” nor those of the
`late Senator’s, are at issue. Recusal isn’t warranted.
`Defendants Lacey And Larkin’s 2007 Arrest Does Not Appear To
`C.
`Implicate Your Honor
`
`In October 2007, Defendants Michael Lacey and James Larkin were arrested by
`former Maricopa County Sheriff Joe Arpaio. That arrest led to a lawsuit against Sheriff
`Arpaio and a settlement with Maricopa County. (Mot at 5.) Two months after the arrest,
`on December 17, 2007, Your Honor was sworn in as the United States Attorney for the
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`original judge sentenced defendant to over 40 years in prison for wire fraud and money
`laundering convictions where the loss amount was less than $1 million. Id. at 154-155,
`158.
` 3 BACKPAGE.COM’S KNOWING FACILITATION OF ONLINE SEX TRAFFICKING, U.S.
`Senate Permanent Subcommittee on
`Investigations, Jan. 2017, available at:
`https://www.hsgac.senate.gov/imo/media/doc/Backpage%20Report%202017.01.10%20F
`INAL.pdf
`4 Cf. United States ex rel Hamilton v. Yavapai Community College Dist., CV-12-
`08193-PCT-PGR, 2014 WL 12656540, at *4 (D. Ariz. Dec. 9, 2014) (discussing several
`cases where courts denied recusal motions based on a judge’s charitable contributions to
`academic institutions).
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`Case 2:18-cr-00422-DJH Document 1382 Filed 11/08/21 Page 7 of 8
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`District of Arizona. Based on these facts alone, it would appear that Your Honor had no
`connection to the arrest. Certainly, the settlement with Maricopa County would lead a
`reasonable person to believe that the United States did not have any role in the ordeal.5
`This argument for recusal, like the two others, is without merit. All three arguments
`provide zero support for Your Honor’s recusal.
`In determining the necessity for disqualification, all circumstances bearing
`upon it should be considered. But that does not mean that various
`circumstances, each insufficient standing alone, mandate sufficiency in
`totality. Under the factual situation here presented, holding that these various
`circumstances in combination require disqualification would be tantamount
`to holding that adding several zeroes together would produce something
`more than zero.
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`M.K. Metals, Inc., 539 F. Supp. at 996-997 (quoting Miller Indus. v. Caterpillar Tractor
`Co., 516 F. Supp. 84, 87 (S.D. Ala. 1980)).
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`5 This point is buttressed by the fact that the United States Department of Justice
`subsequently prosecuted Sheriff Arpaio for criminal contempt and obtained a conviction
`before President Trump pardoned Arpaio. See United States v. Arpaio, 887 F.3d 979, 980
`(9th Cir. 2018).
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`Case 2:18-cr-00422-DJH Document 1382 Filed 11/08/21 Page 8 of 8
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`Conclusion
`For the foregoing reasons, Defendants’ Motion for Recusal (Doc. 1378) should be
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`denied.
`Respectfully submitted this 8th day of November, 2021.
`
`
`
`GLENN B. McCORMICK
`Acting United States Attorney
`
`
`District of Arizona
`
`
`
`s/ Andrew C. Stone
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`KEVIN M. RAPP
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`MARGARET PERLMETER
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`PETER S. KOZINETS
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`ANDREW C. STONE
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`Assistant U.S. Attorneys
`
`DAN G. BOYLE
`Special Assistant U.S. Attorney
`KENNETH POLITE
`Assistant Attorney General
`U.S. Department of Justice
`Criminal Division, U.S. Department of Justice
`REGINALD E. JONES
`Senior Trial Attorney
`U.S. Department of Justice, Criminal Division
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`CERTIFICATE OF SERVICE
`I hereby certify that on this same date, I electronically transmitted the attached
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`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.
`
`s/ Gaynell Smith
`U.S. Attorney’s Office
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