Case 2:18-cr-00422-DJH Document 1546 Filed 03/23/23 Page 1 of 7
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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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`v.
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`Michael Lacey, et al.,
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`Defendants.
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`No. CR-18-00422-001-PHX-DJH
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`ORDER
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`On March 9, 2023, Defendants Larkin and Spears (collectively, “Movants”) filed a
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`Motion to Continue the firm trial date of June 20, 2023. (Doc. 1526). The Government
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`filed a Response in opposition. (Doc. 1530). Upon receipt of the Motion, the Court sought
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`the parties’ positions on severing Defendants Lacey and Larkin for trial.1 On March 20,
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`2023, the Court heard arguments on the issues of continuance and severance. (Doc. 1545).
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`For the following reasons, the Court will grant, in part, the Motion to Continue.2
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`I.
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`Background
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`On July 25, 2018, a federal grand jury returned a 100-count superseding indictment
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`(“SI”) against Defendants Michael Lacey, James Larkin, Scott Spear, John “Jed” Brunst,
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`Dan Hyer, Andrew Padilla, Joye Vaught (collectively, “Defendants”). (Doc. 230). The
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`SI alleges that Defendants are former owners and operators of Backpage.com, LLC
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`1 The remaining Defendants filed their Responses accordingly. (Docs. 1535, 1536, 1537, 1538
`and 1539).
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` 2
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` After hearing the positions on severance, the Court finds that severing Defendants Larkin and
`Spears would not serve judicial economy and would potentially prejudice some co-Defendants.
`Thus, the Court determines that severing any Defendant for trial is unnecessary.
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`Case 2:18-cr-00422-DJH Document 1546 Filed 03/23/23 Page 2 of 7
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`(“Backpage”), which was created in 2004 and shut down by federal law enforcement
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`authorities in 2018. (Id.) The SI further alleges that the Defendants engaged in criminal
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`acts while operating Backpage, including conspiracy, facilitating prostitution, and money
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`laundering. (Id.) These acts are alleged to have occurred beginning on or about September
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`10, 2013 and continuing through April 2018. (Id.) None of the Defendants are presently
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`in custody.
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`A Jury Trial commenced in September 2021, but after several weeks of witness
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`testimony, resulted in a mistrial. (Doc. 1308). Following the mistrial, Defendants sought
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`to dismiss the charges in the SI under the Double Jeopardy Clause, which the Court denied.
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`(Doc. 1444). Defendants appealed that ruling (Doc. 1445), but the Ninth Circuit Court of
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`Appeals affirmed the Court’s denial and remanded. (Doc. 1469-1). Following the Ninth
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`Circuit’s Mandate (Doc. 1469), this Court set a status hearing on November 2, 2022, to,
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`among other matters, determine a firm trial date. (Doc. 1470). The Court ordered the
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`parties to meet and confer as to a spring 2023 trial date. Pending at the time of the Status
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`Conference was a Motion to Withdraw as Counsel for Defendant Larkin. (Doc. 1488). At
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`the Status Conference, Defendant Larkin appeared and indicated that he was in the process
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`of retaining new counsel. (See Docs. 1494, 1505-1). After the parties were unable to reach
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`agreement as to a spring 2023 trial date, the Court set the trial to commence on June 20,
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`2023, and indicated that it would not entertain any further motions to continue the trial
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`absent extraordinary circumstances. (Doc. 1494).
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`On December 13, 2022, three new attorneys entered their appearance as counsel for
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`Defendant Larkin. (Doc. 1509). On January 24, 2023, newly appointed counsel, Eric
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`Kessler, entered his appearance for Defendant Spears (Doc. 1522) and Defendant Spear’s
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`prior counsel, Bruce Feder, was allowed to appear as Knapp counsel to further aid in his
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`defense. (Doc. 1523). On February 17, 2023, the Court issued an Order setting a Final
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`Pretrial Conference for June 14, 2023, and specified associated pretrial filing deadlines.
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`(Doc. 1524).
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`Movants filed their Motion to Continue on March 9, 2023, seeking a six-month
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`Case 2:18-cr-00422-DJH Document 1546 Filed 03/23/23 Page 3 of 7
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`continuance of the trial date. (Doc. 1526 at 5). No other Defendant joined in the Motion
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`but all have otherwise indicated they have no objection to a continuance. (Id. at 2).
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`II.
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`Legal Standard
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`In assessing a request to continue trial, a court looks at four factors: (1) the
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`defendant’s diligence in readying his defense prior to trial; (2) the usefulness of the
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`continuance; (3) the extent to which granting the continuance inconveniences the court, the
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`government, and witnesses; and (4) the potential prejudice if a continuance is denied.
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`United States v. Flynt, 756 F.2d 1352, 1358–59 (9th Cir.), amended on other grounds, 764
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`F.2d 675 (9th Cir. 1985). See also United States v. Thompson, 587 F.3d 1165, 1174 (9th
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`Cir. 2009) (identifying similar factors to consider in assessing whether a requested
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`continuance is reasonable). “[T]he focus of [the] prejudice inquiry is the extent to which
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`the aggrieved party’s right to present” its case may be affected. United States v. Kloehn,
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`620 F.3d 1122, 1127–28 (9th Cir. 2010) (internal quotation marks and citation omitted).
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`III. Analysis
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`Movants assert that the Court should continue the trial to permit their counsel
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`sufficient time to prepare for trial and meet their “ethical and professional obligations to
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`provide competent representation.” (Doc. 1526 at 3). They assert that the case “involves
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`complex, novel legal issues and voluminous facts regarding the 14-year operations of a
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`multinational internet company.” (Id. at 2). They point out that the Government identified
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`nearly 2,000 trial exhibits and 76 witnesses in the first trial. (Id. at 2–3). They claim they
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`have been diligent in their preparation duties since their initial appearances but that in light
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`of the time it will take to thoroughly analyze the evidence and legal issues, “a continuance
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`is necessary to avoid prejudice to Mr. Larkin’s and Mr. Spears’s sixth amendment right to
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`counsel.” (Id. at 2–3). They claim that should the Court maintain its current trial date of
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`June 20, 2023, they will be inadequately prepared and possibly render ineffective
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`assistance of counsel, resulting in potential malpractice and prejudice to their clients. (Id.)3
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`3 In the Motion, counsel for Defendant Spears also represented that he had a state court criminal
`trial set to start at the beginning of May that would necessarily pull him away from preparing for
`a June 20 trial (Doc. 1526 at 5), but at the hearing, he reported that that matter would likely settle
`short of trial.
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`Case 2:18-cr-00422-DJH Document 1546 Filed 03/23/23 Page 4 of 7
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`In Defendant Lacey’s filing, he states that because Defendant Larkins’s counsel has
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`agreed to share in case and witness preparation, he would also suffer prejudice if the trial
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`was not continued. (Doc. 1535 and 1536). However, at the hearing, the Defendants’
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`counsel clarified that the division of labor was not solely between Defendants Lacey and
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`Larkin, but all Defense counsel.4
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`In its opposition, the Government asserts that “[u]pending the trial schedule and
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`postponing trial to the cusp of the 2023-2024 winter holidays will inconvenience and
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`prejudice the United States, victims, witnesses, the Court and the public.” (Doc. 1530 at
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`2). The Government also says Movants’ preparation can be greatly streamlined because
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`this matter has already proceeded to trial and Movants’ new attorneys have “long had
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`access to the public court filings,” including seven motions to dismiss and all the transcripts
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`form the first trial, which included the Government’s opening statement and the testimony
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`of four of its witnesses. (Id. at 3). The Government points out that it has produced its
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`evidence in electronically-searchable indices, and since August 2021, it has reduced the
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`number of testifying witnesses. (Id. at 3, 6). The Government also draws attention to the
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`fact that Movants’ attorneys “are not starting from a blank slate.” (Id. at 7). Defendant
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`Larkin’s new attorneys have the benefit of all the work done by Larkin’s prior firm, who
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`took the case to trial, and Defendant Spear remains represented by Mr. Feder, who has been
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`working on the case since April 2018. (Id. at 8). Moreover, certain counsel have been
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`involved in the representation of Defendants for years, there is an agreement to divide the
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`trial duties among them, and Movants concede there is no lack of cooperation among them.
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`(Id.) Finally, the Government notes that before accepting appointment as counsel, the
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`Court specifically required Movants’ newly-retained counsel to acknowledge that they
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`knew how massive of an undertaking this case was, and the June 20, 2023, trial was firm.
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` 4
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` By the Court’s review of the docket, fourteen attorneys currently represent the six remaining
`Defendants. Defendant Lacey has three attorneys: Erin McCampbell, Paul Cambria, and Janey
`Cook; Defendant Larkin has three attorneys: Timothy Eckstein, Joseph Roth, Sarah Lawson;
`Defendant Brunst has four attorneys: Gary Lincenberg, Ariel Neuman, Gopi Panchapakesan, and
`Michael Kimerer; Defendant Spear has two attorneys: appointed counsel Eric Kessler and Knapp
`counsel Bruce Feder; Defendant Padilla has one attorney: appointed counsel David Eisenberg; and
`Defendant Vaught has one attorney: Joy Bertrand.
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`Case 2:18-cr-00422-DJH Document 1546 Filed 03/23/23 Page 5 of 7
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`(Id.)
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`The parties focus their arguments on the prejudice factor and thus the Court will
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`also. See United States v. Gross, 424 F.Supp.3d 800, 803, 807 (C.D. Cal. Dec. 20, 2019)
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`(“The weight attributed to any one factor may vary” but whether a defendant “will be
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`prejudiced by the denial of a continuance is the most important factor to consider”). See
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`also Flynt, 756 F.2d at 1359 (“[I]n order to obtain a reversal, appellant must show at a
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`minimum that he has suffered prejudice as a result of the denial of his request.”). After
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`considering the parties’ arguments, the Court finds that granting some extension of time to
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`allow Defendant Larkin and Spears counsel to prepare for trial is a reasonable request.
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`However, the Court finds that the length of time requested—six months—is not reasonable,
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`and Movants will not be prejudiced by a shorter continuance. This is particularly so
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`because Defendants Larkin and Spear have long had access to the Government’s theory of
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`the case, and in doing so, have had a roadmap of what the Government intends to present
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`at trial and how to adequately defend. Moreover, the three attorneys of record for
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`Defendant Larkin, and the two attorneys representing Defendant Spears (one of whom
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`represented him in the first trial), will also be aided by the nine attorneys representing the
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`remaining co-Defendants, and all have acknowledged to the Court that an agreement to
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`divide trial preparation exists. Several of these attorneys have represented their clients
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`since the SI was issued. Notably, counsel has ready access to their clients, as none are in
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`custody, and all are able to assist in their own defense. Finally, Movants’ attorneys are
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`also significantly aided by the prior Court’s rulings, which have narrowed and clarified the
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`remaining issues to be tried. Among other things, these ruling identify the established law
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`of the case, and warn the parties that any new or renewed motions must be supported by
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`new law and/or newly discovered evidence. Thus, the Court finds that these circumstances
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`significantly diminish any potential prejudice to Defendants as well as the potential that
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`newly-retained counsel will be unprepared.
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` Notably, over five years will have passed between the indictments and the pending
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`trial. Though documentation evidence remains stagnant, memories of victims and
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`Case 2:18-cr-00422-DJH Document 1546 Filed 03/23/23 Page 6 of 7
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`witnesses threaten to diminish as more and more time passes. See e.g., United States v.
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`Bert, 814 F.3d 70, 83 (2d Cir. 2016) (“[T]here is a risk [of] loss of important evidence” if
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`a trial is unduly delayed. ‘Certainly, the public is the loser when a criminal trial is not
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`prosecuted expeditiously, as suggested by the aphorism, ‘justice delayed is justice
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`denied.’”). This consideration also weighs against such a lengthy continuance.
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`Accordingly,
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`IT IS ORDERED granting in part, Movants’ Motion to Continue (Doc. 1526)
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`and the Jury Trial set for June 20, 2023, is vacated and reset, to commence on August 8,
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`2023, at 9:00 a.m. Trial will be held Tuesdays through Fridays beginning on August 8,
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`2023, and through November 3, 2023, or until the conclusion of trial. The Court will
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`adjourn each Friday at noon. Trial will be in recess July 28—August 4, 2023, September
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`1 and 5, 2023, and October 2—6, 2023. Should any counsel have a bona fide conflict with
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`this schedule, he/she shall file a Notice, within seven (7) days of this Order, stating the
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`date(s) and nature of the conflict for the Court’s consideration.5 Following issuance of this
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`Order, the Court will provide an electronic courtesy trial calendar to all counsel.
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`IT IS FURTHER ORDERED that the Final Pretrial Conference set for June 14,
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`2023, is vacated and reset to July 27, 2023, at 1:00 p.m. The following deadlines are
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`continued and reset:
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`(1)
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`The parties shall file their Joint Pretrial Memorandum and all case-related
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`documents by June 29, 2023.
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`(2) Motions in limine shall be filed by June 8, 2023, and responses filed by June
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`15, 2023.
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`(3) Counsel for the Government shall meet with AV Support on the day of the
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`Final Pretrial Conference, on July 27, 2023, at 10:30 a.m. in Courtroom
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`605. Defendants’ counsel shall meet with AV Support immediately
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`5 The Court understands that no counsel have any pending firm trial dates in the District of Arizona
`through October 2023. The Court also recognizes that Defendant Brunst’s counsel had previously
`noted a conflict stating that counsel Lincenberg is set to take a pre-planned international vacation
`from September 7–15, 2023 (an annual trip). (Doc. 1497). The Court notes that Defendant Brunst
`is represented by three other attorneys, including Mr. Kimerer, Mr. Panchapkensan, and Ms.
`Neuman, and therefore the Court will not recess for this period.
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`Case 2:18-cr-00422-DJH Document 1546 Filed 03/23/23 Page 7 of 7
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`following the Final Pretrial Conference at 3:00 p.m. in Courtroom 605.
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`IT IS FURTHER ORDERED the remainder of the Court’s Order setting the Final
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`Pretrial Conference (Doc. 1524) is affirmed.
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`The Court finds excludable delay under 18 U.S.C. §3161(h) from June 21, 2023 to
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`August 8, 2023.
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`Dated this 23rd day of March, 2023.
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`Honorable Diane J. Humetewa
`United States District Judge
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