Case 2:18-cr-00422-DJH Document 1939 Filed 11/05/23 Page 1 of 4
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`Gary S. Lincenberg (admitted pro hac vice)
` glincenberg@birdmarella.com
`Ariel A. Neuman (admitted pro hac vice)
` aneuman@birdmarella.com
`Gopi K. Panchapakesan (admitted pro hac vice)
` gpanchapakesan@birdmarella.com
`BIRD, MARELLA, BOXER, WOLPERT, NESSIM,
`DROOKS, LINCENBERG & RHOW, P.C.
`1875 Century Park East, 23rd Floor
`Los Angeles, California 90067-2561
`Telephone: (310) 201-2100
`Facsimile: (310) 201-2110
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`Attorneys for Defendant John Brunst
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`Paul J. Cambria, Jr. (admitted pro hac vice)
` pcambria@lglaw.com
`Erin McCampbell Paris (admitted pro hac vice)
` eparis@lglaw.com
`LIPSITZ GREEN SCIME CAMBRIA LLP
`42 Delaware Avenue, Suite 120
`Buffalo, New York 14202
`Telephone: (716) 849-1333
`Facsimile: (716) 855-1580
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`Attorneys for Defendant Michael Lacey
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`[Additional counsel listed on next page]
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`UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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` CASE NO. 2:18-cr-00422-004-PHX-DJH
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`DEFENDANTS’ OBJECTIONS TO
`GOVERNMENT-PROPOSED
`FORFEITURE VERDICT FORM
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`United States of America,
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`Plaintiff,
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`vs.
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`Michael Lacey, et al.,
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`Defendants.
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`3899180.1
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`DEFENDANTS’ OBJECTIONS TO GOVERNMENT-PROPOSED FORFEITURE VERDICT FORM
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`Case 2:18-cr-00422-DJH Document 1939 Filed 11/05/23 Page 2 of 4
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`Eric W. Kessler, 009158
` eric.kesslerlaw@gmail.com
`Kessler Law Group
`6720 N. Scottsdale Rd., Suite 210
`Scottsdale, AZ 85253
`Telephone: (480) 644-0093
`Facsimile: (480) 644-0095
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`Bruce S. Feder, 004832
` bf@federlawpa.com
`FEDER LAW OFFICE, P.A.
`2930 E. Camelback Road, Suite 160
`Phoenix, Arizona 85016
`Telephone: (602) 257-0135
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`Attorney for Defendant Scott Spear
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`Defendants object to the Government’s Proposed Verdict Form on the basis that, to
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`the extent the jury finds a connection between property (real or financial) and a given
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`Count on which there is a conviction (if any), the jury should also determine the amount of
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`that property to be forfeited. Defendants have revised the Verdict Form accordingly (see
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`Exhibit A attached).
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`First, under 18 U.S.C. § 981(a)(1)(C) (cited in Forfeiture Allegation One), “[a]ny
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`property, real or personal, which constitutes or is derived from proceeds traceable to a
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`violation of” the Travel Act or any conspiracy to violate the Travel Act is subject to
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`forfeiture. Therefore, for example, as to a bank account, the jury could find that some, but
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`not all, of the funds contained in the account are “traceable” to a charged Travel Act
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`offense. Indeed, this Court has limited the Travel Act conspiracy charge (Count 1) to the
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`fifty charged advertisements. See Dkt. 946 at 13; Final Jury Instructions at 24:5-10 (“First,
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`beginning in or around 2004, and ending on or about April 2018, there was an agreement
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`between two or more persons to commit at least one Travel Act offense as charged in
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`Counts 2-51 . . . .”).
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`Second, under 18 U.S.C. § 982(a)(l) (cited in Forfeiture Allegation Two), property
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`“involved in” a money laundering offense (or “traceable” to such property) is subject to
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`forfeiture. Again, as to a given bank account, the jurors may find that the account itself
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`3899180.1
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`DEFENDANTS’ OBJECTIONS TO GOVERNMENT-PROPOSED FORFEITURE VERDICT FORM
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`Case 2:18-cr-00422-DJH Document 1939 Filed 11/05/23 Page 3 of 4
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`was not “involved in” a money laundering offense. For example, in United States v.
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`Huber, 404 F.3d 1047, 1058 (8th Cir. 2005), cited by the Government in its proposed jury
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`instructions, the court found that a commingled account that then made payments in
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`furtherance of a money laundering scheme rendered the entire account forfeitable under an
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`“involved in” theory of forfeiture. Here, however, for example, as to Brunst’s Alliance
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`Bernstein and BBVA Compass accounts (personal investment and bank accounts), none of
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`the indictment’s money laundering counts concern payments made out of these accounts.
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`In other words, these accounts were not “involved in” any alleged money laundering
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`conspiracy. Therefore, a jury could find that some, but not all, of the funds in these
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`accounts are “traceable” to property involved in a money laundering offense.
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`Third, courts have held that the question of the amount of a given asset to be
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`forfeited is subject to a jury determination (where a jury has been elected, as is the case
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`here). See, e.g., U.S. v. Esformes, Case No. 1:16-cr-20549-RNS, Dkt. 1263 (Verdict
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`Form); United States v. Armstrong, No. CRIM 05-130, 2007 WL 809508, at *4 (E.D. La.
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`Mar. 14, 2007) (“A determination of whether all, some or none of the money sought to be
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`forfeited is linked to the offense for which the defendant was convicted necessarily entails
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`establishing a nexus between the property and the offense. Thus, Rule 32.2(b)(4) is
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`applicable to the third sentence in Rule 32.2(b)(1) and a jury may determine the amount
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`of money subject to forfeiture, if requested by a party in the case.”) (emphasis added);
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`United States v. Tyson Foods, Inc., No. 4:01-CR-061, 2013 WL 8118660, at *6 (E.D.
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`Tenn. Feb. 4, 2013) (“When Rule 32.2(b)(1) and (4) are read together, the Court concludes
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`that the jury must determine two intertwined and inseparable issues regarding forfeiture:
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`(1) whether the government has proved the requisite nexus between the proceeds (i.e., cost
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`savings) and the offense charged in Count One; and (2) the property, i.e., amount of
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`proceeds subject to forfeiture. Assuming arguendo that the jury makes a finding in favor
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`of the government on the nexus issue and connects the offense (Count One) to specific
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`proceeds (Tyson’s cost savings), then the jury necessarily would have to determine the
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`amount of proceeds subject to forfeiture. The amount of the proceeds subject to forfeiture
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`3899180.1
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`DEFENDANTS’ OBJECTIONS TO GOVERNMENT-PROPOSED FORFEITURE VERDICT FORM
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`Case 2:18-cr-00422-DJH Document 1939 Filed 11/05/23 Page 4 of 4
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`would have to be determined in order for the jury to find a nexus between the property and
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`the offense.”) (emphasis added).
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`Pursuant to the District’s Electronic Case Filing Administrative Policies and
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`Procedures Manual (May 2023) § II(C)(3), Gary S. Lincenberg hereby attests that all
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`other signatories listed, and on whose behalf this filing is submitted, concur in the filing’s
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`content and have authorized its filing.
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`DATED: November 5, 2023
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`DATED: November 5, 2023
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`DATED: November 5, 2023
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`DATED: November 5, 2023
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`Respectfully submitted,
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`Gary S. Lincenberg
`Ariel A. Neuman
`Gopi K. Panchapakesan
`Bird, Marella, Boxer, Wolpert, Nessim,
`Drooks, Lincenberg & Rhow, P.C.
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`By:
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`/s/ Gary S. Lincenberg
`Gary S. Lincenberg
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`Attorneys for Defendant John Brunst
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`Kessler Law Group
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`By:
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`/s/ Eric W. Kessler
`Eric W. Kessler
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`Attorney for Defendant Scott Spear
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`Paul J. Cambria
`Erin McCampbell Paris
`Lipsitz Green Scime Cambria LLP
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`By:
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`/s/ Paul J. Cambria
`Paul J. Cambria
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`Attorneys for Defendant Michael Lacey
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`Feder Law Office, P.A.
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`By:
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`/s/ Bruce S. Feder
`Bruce S. Feder
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`Attorney for Defendant Scott Spear
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`3899180.1
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`DEFENDANTS’ OBJECTIONS TO GOVERNMENT-PROPOSED FORFEITURE VERDICT FORM
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