Case 2:18-cr-00422-DJH Document 2005 Filed 12/04/23 Page 1 of 14
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`KESSLER LAW GROUP
`Eric W. Kessler, SBN 009158
`9237 E. Via de Ventura, Ste. 230
`Scottsdale, AZ 85258
`(480) 644-0093 phone
`(480) 644-0095 fax
`Eric.KesslerLaw@gmail.com
`
`FEDER LAW OFFICE PA
`Bruce S. Feder, 004832
`2930 E. Camelback Rod., Ste. 160
`Phoenix, Arizona 85016
`(602) 257-0135 phone
`bf@federlawpa.com
`Knapp Counsel
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`Attorneys for Defendant Scott Spear
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`(Co-Counsel listed on following page)
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF ARIZONA
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`No. 2:18-cr-00422-DJH
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`DEFENDANTS’ REPLY TO
`UNITED STATES’ RESPONSE
`TO FIRST SUPPLEMENT TO
`DEFENDANTS’ MOTION TO
`DISMISS OR TO STRIKE
`TESTIMONY AND REQUEST
`FOR A HEARING DUE TO THE
`GOVERNMENT’S JENCKS AND
`BRADY/GIGLIO VIOLATIONS
`
`(The Hon. Diane J. Humetewa)
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`United States of America,
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` Plaintiff,
`v.
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`Defendant.
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`Scott Spear,
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`Case 2:18-cr-00422-DJH Document 2005 Filed 12/04/23 Page 2 of 14
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`Gary Lincenberg (CA Bar No. 123058, admitted pro hac vice)
`Ariel Neuman (CA Bar No. 241594, admitted pro hac vice)
`Gopi Panchapakesan (CA Bar No. 279856, admitted pro hac vice)
`BIRD MARELLA BOXER WOLPERT,
`NESSIM DROOKS LINCENBERG RHOW, PC
`1875 Century Park East, 23rd Floor Los
`Angeles, California 90067-2561
`Telephone: (310) 201-2100
`Fax: (310) 201-2110
`glincenbrg@birdmarella.com
`aneuman@birdmarella.com
`gpanchapakesan@birdmarella.com
`Attorneys for John Brunst
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`Paul J. Cambria (NY Bar No. 1430909, admitted pro hac vice)
`Erin McCampbell Paris (NY Bar No. 4480166, admitted pro hac vice)
`LIPSITZ GREENE SCHIME CAMBRIA LLP
`42 Delaware Avenue, Suite 120 Buffalo,
`New York 14202 Telephone: (716) 849-
`1333
`Fax: (716) 855-1580
`pcambria@lglaw.com
`emccampbell@lglaw.com
`Attorneys for Michael Lacey
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`Case 2:18-cr-00422-DJH Document 2005 Filed 12/04/23 Page 3 of 14
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`Defendants, through counsel, reply in opposition to the Government’s above-
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`entitled Response (Doc. 1990). Defendants’ First Supplement is Doc. 1972 and filed
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`November 15, 2023.
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`In setting a due date for the Government’s Response, the court instructed the
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`Government to explain “…why the late disclosure, and do be very specific in terms of
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`your answer.” (R.T. 11/17/2023, 12:9-11)
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`The Government alleged and argued many things in its Response, but one thing the
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`Government did not do was explain why the disclosure was so late. The Government says
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`nothing about how it managed not to produce the 18 Ferrer emails earlier—just that Mr.
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`Versoza saved the emails to his disk to preserve them for later disclosure, and to avoid the
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`automatic delete function that the Government describes. Why did Mr. Versoza not
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`produce them to the prosecutors when Mr. Rapp sent his email regarding the Jencks
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`deadline on January 8, 2019? (Doc. 1990, p. 4 and Exhibit 3 to Response) The response
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`says nothing about this. The Government instead focuses on how quickly it produced them
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`after the close of evidence once the Government realized the emails were not produced—
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`which is just handwaving and a distraction.
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`The prosecutors explained Mr. Versoza saved these emails to his disk because the
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`USPIS email system automatically deletes old emails. This begs the question: what
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`additional emails of Mr. Ferrer were NOT saved and were automatically deleted?
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`Did Mr. Rapp, or any other member of the prosecution team, ask Mr. Versoza for
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`the Ferrer emails prior to trial? If not, why not? How could the Government determine
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`Case 2:18-cr-00422-DJH Document 2005 Filed 12/04/23 Page 4 of 14
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`whether the emails constituted Jencks/Brady/Giglio material without seeing the emails?
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`Conversely, if the prosecutors asked Mr. Versoza for the emails, did Mr. Versoza produce
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`them? If not, why not? If so, why were they not disclosed until after evidence was
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`closed?
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`Regarding Mr. Rapp’s January 8, 2019, email to “the prosecution team,” the
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`Government’s Response does not indicate whether Mr. Versoza replied to that email. Nor
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`does the Response confirm that Mr. Versoza received Mr. Rapp’s email.
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`Mr. Rapp’s January 8, 2019, email also alerted all recipients that “1/14”
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`(presumable 2019) was the date the prosecutors would review the witness list “to
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`determine if all statements have been forwarded to Relativity.” (Doc. 1990, p. 4) Mr.
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`Ferrer was on the witness list. The Response claims Mr. Versoza understood that emails
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`with trial witnesses should be disclosed to the prosecutors, “even when the subject of the
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`emails do (sic) not apply to the witness’s trial testimony.” (Doc. 1990. P.4) Finally, the
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`Government claims that Mr. Versoza reviewed a sub-folder containing the Ferrer emails
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`on November 9, 2023, and determined that “the emails were saved in a manner indicating
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`to Inspector Versoza they had been previously produced.” (Doc 1990, p. 2) The
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`Government does not explain how the “manner” in which the emails were saved led Mr.
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`Versoza to believe the emails had been produced, nor on what basis Mr. Versoza could
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`rely on the manner of saving the emails to be confident that the emails had been disclosed.
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`The Government’s explanation does not explain (1) whether Mr. Versoza received
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`the January 8, 2019, email; (2) whether Mr. Versoza responded to anyone regarding Mr.
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`Case 2:18-cr-00422-DJH Document 2005 Filed 12/04/23 Page 5 of 14
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`Rapp’s email; (3) what the prosecution team did on January 14, 2019 to determine if all
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`statements have been forwarded to Relativity; (4) and why Mr. Versoza thought, on
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`November 9, 2023, the sub-folder containing Mr. Ferrer’s emails had been disclosed.
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`(Doc. 1990, p. 3)
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`Absent from the Government’s Response is any Declaration from Mr. Versoza, or
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`anyone else, regarding his part in suppressing this evidence.
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`The Government’s claims (1) “The United States promptly disclosed the Ferrer
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`Forfeiture emails upon learning they had not been produced,” and (2) "While the Ferrer
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`Forfeiture Emails did not relate to Ferrer’s trial testimony; the lack of prior disclosure was
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`entirely inadvertent,” are not legally recognized excuses to a Jencks/Brady/Giglio
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`violation.
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`In Brady v. Maryland, 373 U.S., at 87, 83 S.Ct., at 1197, held that suppression of
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`material evidence justifies a new trial “irrespective of the good faith or bad faith of the
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`prosecution.” In Giglio v. U.S., 405 U.S. 150, 154 (1972), “whether the nondisclosure
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`was a result of negligence or design, it is the responsibility of the prosecutor. The
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`prosecutor's office is an entity and as such it is the spokesman for the Government.”
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`The Government cites United States v. Dupuy, 760 F.2d 1492 (9th Cir. 1985) to
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`suggest the Government’s inadvertence is a viable excuse for nondisclosure of
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`Jencks/Brady/Giglio material. Dupay is distinguished from the instant case, as it
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`concerned the Government’s failure to produce an edited version of the original witness
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`statement, yet the Government had produced the original, unedited version. As such, the
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`Case 2:18-cr-00422-DJH Document 2005 Filed 12/04/23 Page 6 of 14
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`defense already had the entirety of the witness’ statement. The Court did not excuse the
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`Government’s failure to produce the edited version because it found the Government acted
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`in good faith or was simply inadvertent. Instead, the Court found the edited, undisclosed
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`statement to lack materiality.
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`Blaming Mr. Versoza is of no benefit to the Government, as Mr. Versoza is part of
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`the investigation team for the Government. In U.S. v. Wood, 57 F.3d 733 (1995), the
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`Ninth Circuit explained that, for Brady purposes, the investigators and the prosecutor were
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`the same. “The government cannot with its right hand say it has nothing while its left
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`hand holds what is of value. United States v. Endicott, 869 F.2d 452, 455 (9th Cir.1989);
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`cf. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971).
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`The government in the form of the prosecutor cannot tell the court that there is nothing
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`more to disclose while the agency interested in the prosecution holds in its files
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`information favorable to the defendant.”
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`Having failed to address what the Court specifically asked it to address, the
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`Government focuses on a different argument; namely, the emails were not Jencks/Brady
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`Giglio material, so it does not matter when the emails were disclosed. This argument
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`lacks merit and is a red-herring designed to distract this Court from what interested the
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`Court the most – the “very specific” reasons the emails were not disclosed.
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`Mr. Ferrer’s plea agreement required his cooperation in all facets of the
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`investigation, including assisting Mr. Versoza and others with identifying assets subject to
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`foreclosure. According to the Response, Mr. Ferrer sought the information about
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`Case 2:18-cr-00422-DJH Document 2005 Filed 12/04/23 Page 7 of 14
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`Backpage.com’s funds in numerous attorneys’ IOLTA trust accounts from Stephanie
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`Parks. Upon receipt of that information, Mr. Ferrer attached the spreadsheet to his own
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`email and forwarded it on to Mr. Versoza. (Doc. 1990, p. 9-10)
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`Jencks material includes statements made or adopted by the witness. Consistent
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`with his obligations to the Government under the plea agreement, Mr. Ferrer located,
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`assembled and transmitted the IOLTA trust account information to the Government. If
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`Mr. Ferrer did not believe that the IOLTA spreadsheet accurately informed the
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`Government about those Backpage.com assets, Mr. Ferrer could hardly be fulfilling his
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`obligations to the Government. Mr. Ferrer believed the information in the attached
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`spreadsheets to be accurate and “adopted” that information for purposes of Jencks into his
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`own emails.
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`The Government claims that the emails are not Jencks material because they
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`referenced attachments to the emails. The Government cited cases where Courts
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`determined that attachments to witnesses’ emails were not Jencks material. For example,
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`in U.S. v. Reed, 575 F.3d 900 (9th Cir. 2009), the defense sought the production under
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`Jencks of notes taken by an investigator during an interview, which were later destroyed
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`when the report was typed up. The report was not the statement of a witness, nor was the
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`report adopted by that witness. In United States v. Bettencourt, 614 F.2d 214, 215-16 (9th
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`Cir. 1980), an investigator testified about what was in another officer’s report. The
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`statement was not that of the witness. In United States v. Blas, 947 F.2d 1320, 1327
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`and n.6 (7th Cir. 1991), an investigator testified to what he read in another state police
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`Case 2:18-cr-00422-DJH Document 2005 Filed 12/04/23 Page 8 of 14
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`officer’s report. Again, this other report was not the investigator’s statement. None of these
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`cases are factually similar to the instant case.
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`The Government next argues that Ferrer’s emails cover previously disclosed
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`subjects. This is irrelevant in the context of Defendant’s First Supplement. The purpose of
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`Jencks is to allow the defense to know what the witness has said previously. The defense
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`can determine whether there may be impeachment (Giglio), or exculpatory (Brady)
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`information contained therein. Such is the case at hand, regardless of whether the subject
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`matter of the withheld evidence was “covered” by other documents. “Other documents”
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`do not include Mr. Ferrer’s prior statements, which can be used for impeachment.
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`The Government repeatedly refers to the undisclosed Ferrer emails as “forfeiture
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`emails.” Saying so repeatedly does not change the impeachment value of the emails
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`during trial.
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`The Government tries to diminish the materiality of what was valuable
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`impeachment material by arguing that Mr. Ferrer was only cross examined on what was
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`left in his attorney’s IOLTA account, as opposed to just how much of Backpage.com’s
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`assets were made available to Mr. Ferrer to conduct his defense. (Doc. 1990, p. 6-8) The
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`Government quoted a portion of a cross examination from the September 26, 2023, a.m.
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`transcript at page 8, purportedly about how much Mr. Ferrer’s lawyers had been paid so
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`far. A review of that transcript and page does not show any such testimony.
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`Regardless of the apparent scrivener’s error by the prosecution, the Court should
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`focus on the October 10, 2023, a.m. transcript at page 100:
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`Case 2:18-cr-00422-DJH Document 2005 Filed 12/04/23 Page 9 of 14
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`Q. When you provided that accounting, what's your
`understanding of what the amount was that had been placed in
`the attorney trust account?
`A. I don't recall.
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`MR. RAPP: I'm going to object. This has been asked
`and answered.
`THE COURT: Well, no, it has not. But he answered he
`doesn't remember.
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`THE WITNESS: I don't recall.
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`BY MS. BERTRAND:
`Q. Do you have an estimate?
`A. I do not.
`Q. Is it more than a hundred thousand dollars?
`A. Yes.
`Q. More than $500,000?
`A. Now I just don't recall. I don't have that number in front
`of me.
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`(R.T. October 10, 2023, p. 100)(Emphasis Added.)
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`The Government devoted three pages of its Response trying to convince this Court
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`of a falsehood; namely, that the defense never asked Mr. Ferrer how much money was
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`placed in his attorney’s trust account. Not only did the prosecutors cite an irrelevant page
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`in the trial transcript, but the argument was disingenuous.
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`Had Ms. Bertrand, or any other defense attorney that crossed Mr. Ferrer, known
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`about the email with the attached spreadsheet showing it was Mr. Ferrer who told the
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`Government that the amount was $4,000,000, they could have impeached Mr. Ferrer with
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`his prior statement
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`From the standpoint of impeaching Mr. Ferrer, being able to establish that the
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`actual amount was $4,000,000, when he claimed he could not remember whether it even
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`was more than $500,000, would have been rather important—particularly given Mr.
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`Ferrer’s ability to remember minutiae from inconsequential emails in 2007 and 2008—
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`compared to his claimed inability to recall that he’d given his lawyer $4,000,000 in 2017
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`and 2018. Nobody on this jury would have believed that just slipped Mr. Ferrer’s mind.
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`In U.S. v. Bernal-Obese, 989 F.2d 331 (1993), the Government prosecuted an
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`individual based upon the testimony of a confidential informant. That Court stated: “By
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`definition, criminal informants are cut from untrustworthy cloth and must be managed and
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`carefully watched by the government and the courts to prevent them from falsely accusing
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`the innocent, from manufacturing evidence against those under suspicion of crime, and
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`from lying under oath in the courtroom. As Justice Jackson said forty years ago, ‘The use
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`of informers, accessories, accomplices, false friends, or any of the other betrayals
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`which are ‘dirty business’ may raise serious questions of credibility.’” Id. at 333.
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`The Bernal Court cited with approval Lee v. United States, 343 U.S. 747, 757
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`(1952), where our Supreme Court recognized that “A prosecutor who does not appreciate
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`the perils of using rewarded criminals as witnesses risks compromising the truth-seeking
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`mission of our criminal justice system.
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`In Bernal, supra, the Court said “Because the government decides whether and
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`when to use such witnesses, and what, if anything, to give them for their service, the
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`government stands uniquely positioned to guard against perfidy. Accordingly, we expect
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`prosecutors and investigators to take all reasonable measures to safeguard the system
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`against treachery. This responsibility includes the duty as required by Giglio to turn over
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`to the defense in discovery all material information casting a shadow on a government
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`witness's credibility.” Id at 333-334.
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`Finally, the Bernal Court stated that “Because we have made this choice, it is
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`essential that relevant evidence bearing on the credibility of an informant-witness be
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`timely revealed (1) to defense counsel as required by Giglio, and (2) to the ultimate trier of
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`fact…” Id. at 335.
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`The defense also raised the issue of nondisclosure of Mr. Ferrer’s emails that
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`showed Mr. Ferrer commonly used Proton Mail, even when communicating with the
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`government pursuant to his obligations under the plea agreement.
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`In his closing argument, Mr. Austin stated the following: “Maybe we should just
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`stop regular emails and start using proton mail because they know what they’re doing is
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`wrong, and they are trying to reduce the ability to see the evidence of that. I submit to you
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`that that is evidence of a lack of good faith.” (See, trial transcripts 9/21/23 P.M. Session,
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`pgs. 83-84; 9/22/23 A.M. Session, pgs. 50, 56-58 and 11/1/23 A.M. Session, pg. 58).
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`Yet Mr. Ferrer’s emails, which were not disclosed, show consistent use of Proton
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`Mail when emailing the government investigators. That information could have been used
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`to impeach Mr. Ferrer, as there were numerous questions on direct examination about Mr.
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`Ferrer’s use of Proton Mail. Mr. Austin’s argument that use of Proton Mail by Defendants
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`was evidence of a lack of good faith. Good faith was a substantial defense raised by all
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`Defendants, makes this nondisclosure material Jencks, Brady and Giglio evidence.
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`Lastly, the Government suggests that the Jencks Act text does not authorize
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`dismissal. (Doc. 1990, p.16) It then cites Reed, supra, as support for dismissal when
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`there is a due process violation. (Doc. 1990, p. 16)
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`Brady and Giglio violations are due process violations. In Brady, the Court stated:
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`“We now hold that the suppression by the prosecution of evidence favorable to an accused
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`upon request violates due process where the evidence is material either to guilt or to
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`punishment, irrespective of the good faith or bad faith of the prosecution.”
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`Further to this point, the Court in Bagely, supra, held that there is no distinction
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`between impeachment and exculpatory evidence. Id. at 677. That Court further held:
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`“The constitutional error, if any, in this case was the Government's failure to assist the
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`defense by disclosing information that might have been helpful in conducting the cross-
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`examination. As discussed above, such suppression of evidence amounts to a
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`constitutional violation only if it deprives the defendant of a fair trial. Consistent with ‘our
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`overriding concern with the justice of the finding of guilt,’ United States v. Agurs, 427
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`U.S., at 112, 96 S.Ct., at 2401, a constitutional error occurs, and the conviction must be
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`reversed, only if the evidence is material in the sense that its suppression undermines
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`confidence in the outcome of the trial.” Id. at 678.
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`Since the Government suppressed the Jencks/Brady/Giglio evidence until after the
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`case went to the jury, the requested relief of striking Mr. Ferrer’s testimony is unavailable.
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`Case 2:18-cr-00422-DJH Document 2005 Filed 12/04/23 Page 13 of 14
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`The Court may, however, if it deems the due process violation substantial, dismiss the
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`case. In the alternative, the Court may grant a new trial.
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`RESPECTFULLY SUBMITTED this December 4, 2023.
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` s/ Eric W. Kessler
`Eric W. Kessler, Esq.
`Bruce Feder, Esq.
`Attorneys for Defendant Spear
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`Case 2:18-cr-00422-DJH Document 2005 Filed 12/04/23 Page 14 of 14
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`CERTIFICATE OF SERVICE
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`I hereby certify that on December 4, 2023, I electronically transmitted the attached
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`document to the Clerk’s Office using the CM/ECF system for filing and transmittal of a
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`Notice of Electronic Filing to the CM/ECF registrants who have entered their appearance
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`as counsel of record.
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` s/ Eric W. Kessler
`Eric W. Kessler, Esq.
`Attorney for Defendant Spear
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