Case 2:18-cr-00422-DJH Document 1950 Filed 11/08/23 Page 1 of 5
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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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`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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` CASE NO. 2:18-cr-00422-004-PHX-DJH
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`DEFENDANTS’ RESPONSE TO
`POSITION OF THE UNITED STATES
`REGARDING POTENTIAL
`CONTINUING JURY
`DELIBERATIONS AS TO
`DETERMINATION OF FORFEITURE
`OF SPECIFIC ASSETS
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`DEFENDANTS’ RESPONSE TO POSITION OF THE UNITED STATES REGARDING POTENTIAL
`CONTINUING JURY DELIBERATIONS AS TO DETERMINATION OF FORFEITURE OF SPECIFIC ASSETS
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`Case 2:18-cr-00422-DJH Document 1950 Filed 11/08/23 Page 2 of 5
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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 respond to the Government’s position1 regarding the retention of the
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`jury for a potential forfeiture phase as follows:
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`1)
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`Under Rule 32.2(b)(5)(A), either party has the right to “retain” the jury to
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`“determine the forfeitability of specific property.” See Advisory Committee Notes (“The
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`provision gives the defendant, in all cases where a jury has returned a guilty verdict, the
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`option of asking that the jury be retained to hear additional evidence regarding the
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`forfeitability of the property.”). The Government does not dispute that the defense timely
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`made a jury election. Dkt. 1918. In other words, the rule contemplates having the jury
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`that sat through the trial—here, a 10-week trial with 20+ witnesses and hundreds of
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`exhibits—decide the forfeiture issue.
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`2)
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`Regarding the empaneling of a new jury, the defense is not aware of any case
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`law that would support this remedy in the first instance. As noted in the cases cited by the
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`Government, the only instance in which this might be appropriate is where the retained
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`jury hangs on the forfeiture determination.
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`3)
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`To the extent less than 12 jurors are available to proceed with the forfeiture
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`1 The Government provided Defendants its position on these issues in writing at
`3:38 P.M. on November 7, 2023. Defendants informed the Government that they would
`need until today to review the Government’s position and respond.
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`DEFENDANTS’ RESPONSE TO POSITION OF THE UNITED STATES REGARDING POTENTIAL
`CONTINUING JURY DELIBERATIONS AS TO DETERMINATION OF FORFEITURE OF SPECIFIC ASSETS
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`Case 2:18-cr-00422-DJH Document 1950 Filed 11/08/23 Page 3 of 5
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`phase, Defendants remain open to stipulating to a smaller jury sitting for the forfeiture
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`phase and will make such a determination if and when the issue arises.
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`4)
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`The Government—after jury deliberations have already commenced—now
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`takes the position that it is “exploring the option of withdrawing its request for forfeiture of
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`specific property” and instead seeking a money judgment. Dkt. 1945 at 4.2 The
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`Government indicted this case over five years ago and in that indictment sought the
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`forfeiture of specific property, which has been seized and frozen since that time. It also
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`chose to pursue a two-month trial—putting on witnesses and evidence that are, at best,
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`tangential to the indictment’s charges—knowing that this process would be a strain on any
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`jury. The Government has had ample time to come to a decision on its approach to
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`forfeiture. The Government should not be permitted to hedge its bets at this point and wait
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`to see how long deliberations take in order to come to a decision on forfeiture.
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`Rule 32.2(b)(5)(A) requires the court to determine “before the jury begins deliberating
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`whether either party requests that the jury be retained” (emphasis added.). Defendants’
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`election has already been made. By the letter of the rule, the Government should not be
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`permitted to shift course at this point. In effect, the Government would be depriving the
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`defense of a statutory right to a jury merely because they perceive the jury to be taking too
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`long to deliberate. That obviously is not what Rule 32.2 contemplates.
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`The Government made forfeiture allegations regarding specific property in its
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`indictment, filed a brief prior to trial regarding a potential follow-on trial regarding the
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`forfeiture issue (Dkt. 1713), and has acknowledged that Defendants timely elected a jury
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`(Dkt. 1918). The parties and the Court have been working diligently to prepare for
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`a forfeiture trial regarding the forfeiture of specific property, including by preparing jury
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`2 On the evening of Sunday, November 5th, the Government informed Defendants that it
`was likely they would seek a money judgment instead of pursuing forfeiture of specific
`property. But then the Government filed a response to Defendants’ Proposed Jury
`Instructions later that night, and during court proceedings on November 7th, the
`Government appeared to continue to take the position that they would seek forfeiture of
`specific property.
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`DEFENDANTS’ RESPONSE TO POSITION OF THE UNITED STATES REGARDING POTENTIAL
`CONTINUING JURY DELIBERATIONS AS TO DETERMINATION OF FORFEITURE OF SPECIFIC ASSETS
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`Case 2:18-cr-00422-DJH Document 1950 Filed 11/08/23 Page 4 of 5
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`instructions, a verdict form, and related briefing. Defendants have been preparing cross-
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`examinations of the Government’s two anticipated witnesses, one of whom intends to
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`testify to a lengthy new “flow chart” exhibit that the Government recently disclosed.
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`Defendants (and presumably the Court) have precious and dwindling resources dedicated
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`to this case—Defendants would be seriously prejudiced by what amounts to late notice
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`concerning the possibility that the Government may instead seek a money judgment.
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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 8, 2023
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`DATED: November 8, 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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`DEFENDANTS’ RESPONSE TO POSITION OF THE UNITED STATES REGARDING POTENTIAL
`CONTINUING JURY DELIBERATIONS AS TO DETERMINATION OF FORFEITURE OF SPECIFIC ASSETS
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`Case 2:18-cr-00422-DJH Document 1950 Filed 11/08/23 Page 5 of 5
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`DATED: November 8, 2023
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`DATED: November 8, 2023
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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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`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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`DEFENDANTS’ RESPONSE TO POSITION OF THE UNITED STATES REGARDING POTENTIAL
`CONTINUING JURY DELIBERATIONS AS TO DETERMINATION OF FORFEITURE OF SPECIFIC ASSETS
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