Case 2:18-cr-00422-DJH Document 1526 Filed 03/09/23 Page 1 of 6
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`Timothy J. Eckstein, 018321
`Joseph Roth, 025725
`Sarah P. Lawson, 036436
`OSBORN MALEDON, P.A.
`2929 North Central Avenue, 20th Floor
`Phoenix, Arizona 85012-2793
`(602) 640-9000
`teckstein@omlaw.com
`jroth@omlaw.com
`slawson@omlaw.com
`
`Attorneys for James Larkin
`
`Eric W. Kessler, 009158
`KESSLER LAW GROUP
`6720 N. Scottsdale Rd., Ste. 210
`Scottsdale, Arizona 85253
`(480) 644-0093 phone
`(480) 644-0095 fax
`Eric.KesslerLaw@gmail.com
`
`Bruce S. Feder, 004832
`FEDER LAW OFFICE PA
`2930 E. Camelback Rd., Ste. 160
`Phoenix, Arizona 85016
`(602) 257-0135
`bf@federlawpa.com
`
`Attorneys 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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`United States of America,
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` Plaintiff,
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`vs.
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`James Larkin (2), Scott Spear (3),
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` Defendants.
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`Case No. 2:18-cr-00422-PHX-DJH-2, 3
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`DEFENDANT LARKIN’S AND
`DEFENDANT SPEAR’S MOTION TO
`CONTINUE TRIAL
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`Case 2:18-cr-00422-DJH Document 1526 Filed 03/09/23 Page 2 of 6
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` Defendants James Larkin and Scott Spear respectfully request that the Court
`continue for six months the trial in this matter, which is currently set to begin on June 20,
`2023. The ends of justice require a continuance. Despite extreme effort and diligence,
`new counsel for Mr. Larkin and Mr. Spear need additional time to prepare adequately for
`trial, a highly complex prosecution involving millions of documents, hundreds of
`witnesses, and novel questions of law.
`A continuance is necessary to avoid prejudice to Mr. Larkin’s and Mr. Spear’s
`sixth amendment right to counsel. As set forth below, (1) Defendants have been
`“diligen[t]” in their efforts to prepare for trial, (2) a continuance will serve a useful
`purpose; (3) any inconvenience to the Court and other parties is minimal when compared
`with the challenges Defendants face; and (4) Defendants will “suffer[] harm” and
`prejudice in the event this motion is denied. United States v. Flynt, 756 F.2d 1352, 1359
`(9th Cir. 1985) (finding the district court abused its discretion by denying continuance
`especially because the Defendant “suffered prejudice as a result of the district court’s
`decision”).
`Undersigned have consulted with Assistant United States Attorneys Kevin Rapp,
`Andrew Stone, Peter Kozinets, and Margaret Perlmeter, who oppose continuance.
`Defendants Lacey, Brunst, Padilla, and Vaught have no objection to this request.
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`I.
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`The Court Should Continue the Trial Date to Allow New Counsel Sufficient
`Time to Prepare for Trial.
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`Counsel for James Larkin. All of the factors favoring a continuance are met here.
`First, counsel for Mr. Larkin have demonstrated extraordinary diligence. As the Court is
`aware, this case involves complex, novel legal issues and voluminous facts regarding the
`14-year operations of a multinational internet company. The Government has produced
`in this matter 178,486 documents, consisting of 4,900,586 pages. The Government
`identified in advance of the first trial nearly 2,000 separate trial exhibits. (Doc. 1313.)
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`Case 2:18-cr-00422-DJH Document 1526 Filed 03/09/23 Page 3 of 6
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`Even that large number is deceptively small as many of the Government’s trial exhibits
`consist of groups of documents, some of which include hundreds of documents. Counsel
`estimate that the 2,000 trial exhibits contain more than 19,000 documents. If Counsel
`spent only five minutes reviewing each document, for eight hours a day, it would take
`approximately 197 days to get through these trial exhibits. See United States v. Gross ,
`424 F. Supp. 3d 800, 803, 807 (C.D. Cal. 2019) (granting nearly four-month continuance
`to account for, inter alia, “voluminous” discovery produced by the government).
`In addition to the mountain of documents, the Government also identified 76
`witnesses (Doc. 1314) it intended to call at trial. The six Defendants separately identified
`1,157 trial exhibits (Doc. 1312). There have been to date 1,525 docket entries, reflecting
`extensive and complex pre-trial litigation.
`Since appearing and receiving the case file, undersigned counsel have been
`working diligently to prepare for trial. Indeed, counsel have made every effort to avoid
`filing this motion. Counsel have devoted essentially full-time efforts to this case. Simply
`reviewing the proposed trial exhibits and witness statements is a monumental
`undertaking. It has become increasingly clear to counsel that we cannot be adequately
`prepared by June 20, given the sheer volume of documents, exhibits, witnesses, and
`complex legal issues requiring extensive time to analyze.
`Second, a continuance will serve the useful purpose of allowing counsel to prepare
`to meet our ethical and professional obligation to provide competent representation,
`Strickland v. Washington , 466 U.S. 668 (1984). Given the complexity of the issues in
`this case, counsel require additional time to identify relevant documents, locate potential
`witnesses, and retain expert witnesses. See United States v. Barrett, 703 F.2d 1076, 1081
`(9th Cir. 1983) (finding the trial court abused its discretion by failing to grant continuance
`because defendant “probably could have obtained an expert to assist him if he had been
`given more time”).
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`Case 2:18-cr-00422-DJH Document 1526 Filed 03/09/23 Page 4 of 6
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`Third, potential inconvenience to the Court and the government does not outweigh
`Defendants’ need for a continuance. Counsel is aware of the difficulties of scheduling a
`trial of this length for all parties and strives to minimize inconvenience. As a result,
`Defendants seek a continuance now, well before the scheduled trial date, to allow all
`parties to adjust their schedules. Cf. United States v. Brandenfels, 522 F.2d 1259, 1262–
`63 (9th Cir. 1975) (trial court properly denied motion to continue made “fairly late in the
`proceedings,” less than one month before the start of trial and renewed on morning of
`trial).
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`Finally, Mr. Larkin faces severe prejudice if the Court does not grant a
`continuance. “[W]hether Defendant will be prejudiced by the denial of a continuance is
`the most important factor to consider.” Gross, 424 F. Supp. 3d at 807. “[T]he focus of
`[the] prejudice inquiry is the extent to which the aggrieved party’s right to present his
`defense [may be] affected.” United States v. Kloehn, 620 F.3d 1122, 1128 (9th Cir. 2010)
`(internal quotation marks and citation omitted). If not granted a continuance, counsel will
`be unable to review all the evidence produced, consult with or hire expert witnesses, and
`adequately prepare for trial of this length and complexity. Mr. Larkin’s prior counsel
`appeared in this case in May 2018 (Doc. 138) and were counsel of record until December
`15, 2022 (Doc. 1511). They, along with counsel for the Government and for the other
`five defendants, worked on this case for at least 40 months prior to the September 2021
`trial. Undersigned counsel appeared in this matter on December 13, 2022 (Doc.
`1509). On January 17, 2023, counsel filed a status report indicating that they had received
`from Mr. Larkin’s prior counsel all disclosures made by the Government (Doc. 1521).
`Mr. Larkin will face substantial prejudice if undersigned counsel are unable to satisfy the
`ethical and professional obligations and to provide adequate representation so as to
`comply with Strickland, 466 U.S. 668.
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`Case 2:18-cr-00422-DJH Document 1526 Filed 03/09/23 Page 5 of 6
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`Counsel for Scott Spear . CJA Panelist Eric W. Kessler was appointed for Mr.
`Spear on January 13, 2023. Mr. Kessler immediately contacted AUSA Kevin Rapp to
`request full disclosure from the government. Although the Government has been working
`to disclose the voluminous material to Mr. Kessler, the disclosure only started to come to
`Mr. Kessler in pieces as of March 1, 2023, and will not be complete until later this week.
`This delay, especially in the context of this case, makes it unreasonable for Mr. Kessler
`to be fully prepared for a June 2023 trial.
`When counsel agreed to take this case, he was aware of the June 20, 2023, trial
`date and was informed that the case was “labor intensive.” Mr. Kessler was not aware
`that nearly 5,000,000 documents/pages have been disclosed, much less the number of trial
`exhibits, recordings, witnesses and experts that are involved.
`In addition, Mr. Kessler has set for a firm trial date at the beginning of May a
`double homicide in Maricopa County Superior Court. That trial may last two weeks.
`Even if Mr. Kessler worked full time every day to the exclusion of all other
`matters, he could not be adequately prepared for a June 2023 trial date. Mr. Kessler
`believes that he would be ineffective under these circumstances.
`II.
`The Court Should Continue the Trial Date for Six Months.
`Under these circumstances, it is evident that this case is “so unusual or so complex,
`due to the number of defendants, the nature of the prosecution, [and] the existence of
`novel questions of fact or law, that it is unreasonable to expect adequate preparation”
`within existing time limits. 18 U.S.C. § 3161(h)(7)(B)(ii).
`Undersigned counsel believe a six-month continuance of the trial date is
`appropriate. Counsel have at this point become sufficiently familiar with the legal issues,
`discovery, likely exhibits, and witnesses to say with confidence that they will be prepared
`to try the case on or after December 18, 2023.
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`Case 2:18-cr-00422-DJH Document 1526 Filed 03/09/23 Page 6 of 6
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`Defendants Larkin and Spear therefore move the Court to continue for six months
`the June 20, 2023, trial date, as well as concomitant extensions of the related deadlines
`for the Joint Pretrial Memorandum, Notice of Intent, Motions in Limine, Case Related
`Documents, Exhibits, Witnesses Lists, Subpoenas, Courtroom Technology and Final
`Pretrial Conference previously ordered by the Court (Doc. 1524).
`It is expected that excludable delay under 18 U.S.C. § 3161(h)(7)(A) will occur as
`a result of this motion or of an order based thereon.
` DATED this 9th day of March, 2023.
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`OSBORN MALEDON, P.A.
`
` By /s/ Timothy J. Eckstein
` Timothy J. Eckstein
` Joseph Roth
`Sarah P. Lawson
` 2929 North Central, 20th Floor
` Phoenix, Arizona 85012-2794
`
`
`
`KESSLER LAW GROUP
`
` By /s/ Eric W. Kessler (with permission)
`Eric W. Kessler
`6720 N. Scottsdale Rd., Ste. 210
`Scottsdale, Arizona 85253
`
`Attorneys for James Larkin
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`FEDER LAW OFFICE, PA
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` By /s/ Bruce S. Feder (with permission)
` Bruce S. Feder
` 2930 E. Camelback Rd., Ste. 160
` Phoenix, Arizona 85016
`
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` Attorneys for Scott Spear
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