`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Case 2:18-cr-00422-DJH Document 1397 Filed 11/18/21 Page 1 of 6
`
`
`
`GLENN B. McCORMICK
`Acting United States Attorney
`District of Arizona
`
`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
`
`
`
`
`
`United States of America,
`
`
`
`Plaintiff,
`
`
`v.
`
`
`Michael Lacey, et al.,
`
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF ARIZONA
`
`
`
`
`No. CR-18-422-PHX-DJH
`
`UNITED STATES’ MOTION FOR
`LEAVE TO FILE A SURREPLY TO
`DEFENDANTS’ MOTION TO
`PARTIALLY VACATE SEIZURE
`WARRANTS AND RELEASE FUNDS
`(Doc. 1366)
`
`

`

`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Case 2:18-cr-00422-DJH Document 1397 Filed 11/18/21 Page 2 of 6
`
`
`
`INTRODUCTION
` In their initial motion, Doc. 1366 (the “Motion”), defendants made no effort to
`make the showings of need required under either United States v. Monsanto, 491 U.S. 600
`(1989) or Luis v. United States, 136 S. Ct. 1088 (2016), and in fact, they denied that they
`even had to make such a showing. Yet after the government dedicated much of its response
`to detailing why these procedural defects were fatal to the Motion, for the first time on
`reply, defendants now purport to make the very same showings they chose not to make in
`the first instance – but under seal and in camera. Not only has the government been denied
`an opportunity to respond to this new purported evidence, but the government has no way
`to assess the accuracy, sufficiency, or even truthfulness of these supposed showings at oral
`argument. The government respectfully requests leave to file a surreply in the form
`accompanying this request to address this new argument and purported evidence.
`ARGUMENT
`“It is hornbook law that a litigant can’t raise new arguments for the first time in a
`reply.” Macy's Inc. v. H&M Constr. Co. Inc., No. CV-17-00990-PHX-DWL, 2018 WL
`6040054, at *2 (D. Ariz. Nov. 19, 2018); see also AIRFX.com v. AirFX LLC, No. CV 11-
`01064-PHX-FJM, 2012 WL 129804, at *1 (D. Ariz. Jan. 17, 2012) (“[W]e do not consider
`new arguments raised in a reply.” (citing Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th
`Cir.1990))); Sunburst Mins., LLC v. Emerald Copper Corp., 300 F. Supp. 3d 1056, 1060
`(D. Ariz. 2018) (“[T]he rule against introducing new facts on reply is not a new one in this
`district or in the Ninth Circuit. The rule exists to guard against unfairness and surprise.”
`(internal citations omitted)).
`Despite this general rule, in certain instances a Court may exercise its discretion to
`consider new arguments raised for the first time on reply, but “[i]n order for the court to
`consider an argument raised for the first time in a reply brief, the opposing party must be
`given an opportunity to respond to the new argument.” Eaton Veterinary Pharm. Inc. v.
`Diamondback Drugs of Delaware LLC, No. 2:14-CV-1208-HRH, 2014 WL 6471427, at
`*3 (D. Ariz. Nov. 18, 2014). “Each time a moving party is permitted to raise new arguments
`
`- 1 -
`
`

`

`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Case 2:18-cr-00422-DJH Document 1397 Filed 11/18/21 Page 3 of 6
`
`
`
`or present new evidence in reply, absent the Court granting leave for the non-moving party
`to file a sur-reply brief, the non-moving party is essentially deprived of the opportunity to
`address these new contentions.” Save the Peaks Coal. v. U.S. Forest Serv., No. CV09-
`8163-PCT-MHM, 2010 WL 3800896, at *2 (D. Ariz. Sept. 22, 2010)
`There is no question that defendants are raising new arguments and purported
`evidence for the first time on reply, as in their opening brief they asserted (incorrectly) that
`they did not need to make a showing under Monsanto, see Doc. 1366, at 8 (“[A] showing
`under Monsanto or Unimex is not required”), yet in their reply they purport to make the
`very same showing they originally claimed they did not need to make – while seeking to
`try and make this showing in camera. See Doc. 1390, at 4 (“Defendants show through
`sworn declarations, submitted in camera and under seal, that they have a dire need for these
`funds”). The government has plainly been “deprived of the opportunity to address these
`new contentions.” Save the Peaks, 2010 WL 3800896, at *2. Defendants strategically
`chose not to make a threshold showing in their moving brief, and instead, purported to
`make this showing through in camera declarations attached to a reply, when the United
`States would not ordinarily be entitled to respond. The prejudice of permitting this filing is
`magnified because defendants are not simply offering new arguments and evidence, but as
`addressed in more detail in the United States’ proposed surreply, are claiming to make – in
`camera – a threshold showing they refused to make in their original motion.
`The Court can – and should – refuse to consider this new argument and purported
`evidence. See MJG Enterprises, Inc. v. Cloyd, No. CV-10-0086-PHX-MHM, 2010 WL
`3842222, at *6 (D. Ariz. Sept. 27, 2010) (“The Ninth Circuit has consistently held that
`where new arguments and new evidence is submitted for the first time in a reply brief, the
`arguments and evidence may be stricken.” (citing Cedano–Viera v. Ashcroft, 324 F.3d
`1062, 1066 n.5 (9th Cir. 2003))). If the Court does not disregard this new argument and
`evidence outright, however, the United States requests leave to file the accompanying
`proposed surreply, which details why defendants’ attempt to make their required Monsanto
`showing in camera is procedurally improper, unsupported by controlling law,
`
`- 2 -
`
`

`

`Case 2:18-cr-00422-DJH Document 1397 Filed 11/18/21 Page 4 of 6
`
`
`
`fundamentally unfair, and would violate basic principles regarding the public’s right of
`access to judicial documents.
`
`CONCLUSION
`The United States respectfully requests that the Court permit the United States to
`file a Surreply in Further Opposition to Defendants’ Motion to Partially Vacate Seizure
`Warrants and Release Funds (Doc. 1366).
`Respectfully submitted this 18th day of November, 2021.
`
`GLENN B. McCORMICK
`Acting United States Attorney
`District of Arizona
` s/Dan G. Boyle
`
`
`DAN G. BOYLE
`Special Assistant U.S. Attorney
`
`KEVIN M. RAPP
`MARGARET PERLMETER
`PETER S. KOZINETS
`ANDREW C. STONE
`Assistant U.S. Attorneys
`
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`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
`
`
`- 3 -
`
`

`

`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Case 2:18-cr-00422-DJH Document 1397 Filed 11/18/21 Page 5 of 6
`
`
`
`CERTIFICATE OF SERVICE
`I hereby certify that on November 18, 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.
`
`s/Marjorie Dieckman
`U.S. Attorney’s Office
`
`
`
`- 4 -
`
`

`

`0ANDBOBRWNYO
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`DNNOWNNOHNHNNHNKNKNHBBBHBFFFFFFeeeCoNWNONBPWwWNHNKFTDOOWBNDBHnBPWwNYKFOS
`
`Case 2:18-cr-00422-DJH Document 1397 Filed 11/18/21 Page 6 of 6
`Case 2:18-cr-00422-DJH Document 1397 Filed 11/18/21 Page 6 of 6
`
`
`
`
`
`- 1 -
`
`