Case 2:18-cr-00422-DJH Document 1437 Filed 12/10/21 Page 1 of 6
`
`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
`
`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
`
`Additional counsel listed on next page
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`
`United States of America,
`
`Case No. 2:18-cr-00422-PHX-SMB
`
`
`vs.
`
`Plaintiff,
`
`Michael Lacey, et al.,
`
`
`
`Defendants.
`
`DEFENDANTS’ SUPPLEMENTAL
`CITATION OF AUTHORITY IN
`SUPPORT OF MOTION TO DISMISS
`WITH PREJUDICE
`
`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
`
`SUPPLEMENTAL CITATION OF AUTHORITY IN SUPPORT OF
`MOTION TO DISMISS WITH PREJUDICE
`
`

`

`Case 2:18-cr-00422-DJH Document 1437 Filed 12/10/21 Page 2 of 6
`
`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
`
`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
`
`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
`
`SUPPLEMENTAL CITATION OF AUTHORITY IN SUPPORT OF
`MOTION TO DISMISS WITH PREJUDICE
`
`

`

`Case 2:18-cr-00422-DJH Document 1437 Filed 12/10/21 Page 3 of 6
`
`Defendants Michael Lacey, James Larkin, Scott Spear, and Andrew Padilla, by and through
`
`their counsel, submit the instant supplement to Defendants’ Motion to Dismiss With Prejudice
`(“Motion”) (Doc. 1355) to provide this Court with a Decision and Order issued on December 9,
`2021 by the Honorable Lawrence J. Vilardo, U.S.D.J., W.D.N.Y. granting a mistrial with prejudice
`under Oregon v. Kennedy, 456 U.S. 667, 676 (1982). (“Decision”). (See Dec. & Or., United States v.
`Padua, W.D.N.Y. Docket No. 20-CR-191-LJV-MJR-1, Doc. No. 187, attached hereto as Ex. A.)
`The Decision was issued after briefing and argument concluded in this case, but is pertinent to this
`Court’s resolution of the Motion for several reasons.
`First, Judge Vilardo’s Decision demonstrates that courts can and should dismiss with
`prejudice under Oregon v. Kennedy when – like here – the objective facts and circumstances
`demonstrate that the prosecutor intended to goad a mistrial. Kennedy is not, as the government
`suggests, simply an academic exercise to be discussed but never invoked.
`Second, when the objective facts and circumstances demonstrate that the prosecutor
`intended to goad a mistrial, a court can grant a mistrial with prejudice without need for an
`evidentiary hearing.
`Third, there are strong factual parallels between the facts here and in Padua, but here the
`prosecution team also repeatedly violated the Court’s orders, throughout the trial, providing even
`stronger objective evidence of the prosecution’s intent to goad a mistrial. The government’s trial
`misconduct in Padua was limited to its rebuttal summation, during which government counsel
`misstated evidence and asserted that the defendant was guilty. (See id. at 4.) Defense counsel
`objected to the comment about the defendant’s guilt, which the court sustained. (Id.) “Then,
`immediately after defense counsel’s objection was sustained and the offending statement stricken,
`the prosecutor said, ‘I know he’s guilty. I know beyond a reasonable doubt he’s guilty.’” (Id.)
`When questioned, the government showed no remorse for its misconduct. (See id. at 4-5.)
`In finding that the prosecutor had the intent to goad a mistrial, Judge Vilardo concluded
`that “[w]ithout a doubt, a seasoned prosecutor like the Assistant United States Attorney here knew
`very well that remarks like those would provoke a motion for a mistrial.” (Id. at 10.) The court
`noted that “[t]he defendant’s motion for a mistrial after the rebuttal summation was not his first.”
`1
`SUPPLEMENTAL CITATION OF AUTHORITY IN SUPPORT OF
`MOTION TO DISMISS WITH PREJUDICE
`
`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 1437 Filed 12/10/21 Page 4 of 6
`
`(Id. at 8 (discussing defense counsel’s prior motions for mistrial).) Critically, “defense counsel was
`not shy about asking for a mistrial, and the prosecutor knew that.” (Id. at 8.) Indeed, Judge Vilardo
`found “[t]here can be little doubt” that the prosecutor knew “his rebuttal remarks would trigger
`another mistrial motion.” (Id.) Judge Vilardo found that single violation of a trial ruling
`demonstrated an intent to goad mistrial, because the defense counsel’s prior mistrial motions put
`the government on notice that defense counsel would not ignore misconduct and there was no
`way to interpret the government’s “brazen” misconduct other than as reflecting the intent to goad
`defense counsel into moving for mistrial. (Id. at 8-13.)
`Here, the government repeatedly violated court orders and rulings during a trial in which
`defense counsel moved for mistrial at least three times, and lodged no fewer than 100 objections.
`Like in Padua, “the prosecutor had to know that defense counsel would move for a mistrial as a
`result of” its violations of court orders and rulings on objections, and “that constitutes the sort of
`intentional misconduct that warrants a mistrial with prejudice.” (Id. at 11.). Defendants respectfully
`request that this Court grant the Motion because, like in Padua, “the prosecutor[s] did not merely
`cross the line, [they] erased it. If ever prosecutorial misconduct warrants a mistrial with prejudice,
`this is the case.” (Ex. A at 12.) “[S]easoned prosecutor[s] deliberately” engaged in misconduct
`that they had to know “would result in a defense motion for mistrial. That is nothing less than
`intentional” goading of “the defense into making that motion.” (Id.)
`
`RESPECTFULLY SUBMITTED this 10th day of December, 2021,
`
`LIPSITZ GREEN SCIME CAMBRIA LLP
`s/ Paul J. Cambria, Jr.
`
`Paul J. Cambria, Jr.
`Erin McCampbell Paris
`Attorneys for Michael Lacey
`
`Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual (Oct. 2020) §
`II(C)(3), Erin McCampbell Paris 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.
`
`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
`
`2
`SUPPLEMENTAL CITATION OF AUTHORITY IN SUPPORT OF
`MOTION TO DISMISS WITH PREJUDICE
`
`

`

`Case 2:18-cr-00422-DJH Document 1437 Filed 12/10/21 Page 5 of 6
`
`BIENERT KATZMAN LITTRELL
`WILLIAMS LLP
`s/ Whitney Z. Bernstein
`Thomas H. Bienert, Jr.
`Whitney Z. Bernstein
`Attorneys for James Larkin
`
`
`
`FEDER LAW OFFICE PA
`s/ Bruce Feder
`
`
`Bruce Feder
`Attorneys for Scott Spear
`
`DAVID EISENBERG PLC
`s/ David Eisenberg
`
`
`David Eisenberg
`Attorneys for Andrew Padilla
`
`3
`SUPPLEMENTAL CITATION OF AUTHORITY IN SUPPORT OF
`MOTION TO DISMISS WITH PREJUDICE
`
`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 1437 Filed 12/10/21 Page 6 of 6
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on December 10, 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/ Kristina Drewery
`Kristina Drewery
`
`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
`
`3754503.1
`
`1
`CERTIFICATE OF SERVICE
`
`