Case 3:18-cr-04683-GPC Document 243-1 Filed 06/23/21 PageID.2516 Page 1 of 125
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`EXHIBIT A
`Proposed Reply Brief
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`

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`BIENERT KATZMAN
`LITTRELL WILLIAMS LLP
`Thomas H. Bienert, Jr., SBN 135311
`James D. Riddet, SBN 39826
`Whitney Z. Bernstein, SBN 304917
`903 Calle Amanecer, Suite 350
`San Clemente, California 92673
`Telephone: (949) 369-3700
`Email: tbienert@bklwlaw.com
` jriddet@bklwlaw.com
` wbernstein@bklwlaw.com
`
`Attorneys for Mohammed Abdul Qayyum
`
`MINTZ, LEVIN, COHN, FERRIS,
`GLOVSKYAND POPEO, P.C.
`Randy K. Jones, SBN 141711
`3580 Carmel Mountain Road, Suite 300
`San Diego, CA 92130
`Telephone: (858) 314-1510
`Email: rkjones@mintz.com
`
`Attorney for Mark Manoogian
`
`BIRD MARELLA BOXER WOLPERT
`NESSIM DROOKS LINCENBERG
`RHOW P.C.
`Gary S. Lincenberg, SBN 123058
`Nicole Rodriguez Van Dyk, SBN 261646
`Darren L. Patrick, SBN 310727
`1875 Century Park East, Floor 23
`Los Angeles, CA 90067
`Telephone: (310) 201-2100
`Email: glincenberg@birdmarella.com
`nvandyk@birdmarella.com
` dpatrick@birdmarella.com
`
`Attorneys for Petr Pacas
`WIECHERT, MUNK &
`GOLDSTEIN, PC
`David W. Wiechert, SBN 94607
`Jessica C. Munk, SBN 238832
`27136 Paseo Espada, Suite B1123
`San Juan Capistrano, CA 92675
`Telephone: (949) 361-2822
`Email: dwiechert@wmgattorneys.com
` jessica@wmgattorneys.com
`Attorneys for Jacob Bychak
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`UNITED STATES OF AMERICA,
`
`Plaintiff,
`
`v.
`
`JACOB BYCHAK, MARK
`MANOOGIAN, MOHAMMED ABDUL
`QAYYUM, AND PETR PACAS,
`
`Defendants.
`
`Case No. 18-cr-04683-GPC
`Hon. Gonzalo P. Curiel
`
`DEFENDANTS’ REPLY TO
`GOVERNMENT’S OPPOSITION TO
`JOINT MOTION TO CONTINUE
`TRIAL
`[Filed concurrently with the Declaration of
`Gary S. Lincenberg and Defendants’ Joint
`Motion For Leave to File Reply]
`
`18-cr-04683-GPC
`DEFENDANTS’ REPLY IN SUPPORT OF FIRST JOINT MOTION TO CONTINUE TRIAL
`
`

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`Defendants Jacob Bychak, Mark Manoogian, Mohammed Abdul Qayyum, and Petr
`Pacas (jointly, the “Defendants”) hereby reply to the opposition to the Joint Motion to
`Continue Trial (Dkt. 241) (the “Opposition”) filed by the government on June 17, 2021.
`INTRODUCTION
`I.
`On June 11, 2021, at the Court’s request, Defendants filed the first joint motion to
`continue the trial date from November 30, 2021 to a date in September of 2022 (the
`“Motion”) (Dkt. 240). A continuance is necessary because Mr. Qayyum’s and Mr. Pacas’
`lead trial attorneys are unavailable on the current trial date due to a conflicting federal trial
`in Arizona commencing on August 23, 2021 that is expected to last no less than 16 weeks.
`The government’s Opposition provides a misleading and incomplete recitation of
`relevant facts, includes gratuitous and groundless ad hominem attacks, and mischaracterizes
`the statements of the Court and defense counsel. For instance, the Opposition avers that
`defense counsel did nothing to apprise the court in the Arizona Case1 of the instant trial
`date. This is simply untrue. Soon after the January 21, 2021 status conference before this
`Court when the November trial date was set over defense counsels’ objections, defense
`counsel in fact informed the Arizona court of the upcoming trial at a conference hearing on
`February 12, 2021. Declaration of Gary S. Lincenberg (“Lincenberg Decl.”), ¶ 12. Counsel
`again advised the Arizona court of this case’s trial date on June 7, 2021. Lincenberg Decl.,
`¶ 15.
`Further, the Opposition suggests that several prosecution witnesses have health
`problems and may not be able to attend trial in 2022 (but apparently would have had no
`issues with a trial date of November 30, 2021). This purported logistical concern is news
`to the defense. Just this morning, the government filed a motion for Rule 15 depositions
`(Dkt. 242), which the defense will respond to in turn. But notably, the very first time the
`government ever raised this issue was in the government’s Opposition though it appears
`that these health issues have been known to the government for some time. Id. Most
`
`1 Any capitalized terms not defined herein shall have the meaning ascribed in the Motion.
`18-cr-04683-GPC
`1
`DEFENDANTS’ JOINT MOTION TO CONTINUE TRIAL
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`critically for the Court’s consideration of Defendants’ Motion to continue trial, and in
`contrast to the government’s representations in its Opposition, the government’s witnesses’
`health issues purportedly prevent their trial availability regardless of when this trial
`commences. Id.
`The interests of justice are best served by continuance of the instant trial date. The
`current trial date of November 30, 2021 is not feasible. Half of the lead trial defense team
`will be unavailable, and even if the Court could shoehorn in this case immediately after the
`close of the Arizona Case, the burden of providing effective representation in back-to-back
`complex criminal trials is insurmountable even for experienced counsel. Unfortunately,
`due to the trial backlog occasioned by the pandemic, counsel have now had to book trials
`in other cases in May of 2022, a period which they had originally requested to reserve for
`trial in this case. Consequently, Defendants seek an order continuing the trial to a date in
`September of 2022, with all related deadlines to track the new trial date.
`ARGUMENT
`II.
`A.
`Defense counsel advised the Arizona court of the instant trial date.
`In its Opposition, the government baselessly and incorrectly asserts that defense
`counsel failed to apprise the Arizona court of this case’s trial date. See Opposition at 4 (the
`heading for section II.C. reads “Defense Counsel Did Not Disclose Bychak’s Trial Date to
`the Arizona Court”). The Opposition’s attempts to mislead this Court and mischaracterize
`facts are especially egregious given its sly concession (albeit tucked away in a footnote)
`that it really has no grounds on which to base its allegation. See id. at 5, n. 3 (“Government
`counsel in Arizona could not recall whether defense counsel verbally advised the court at
`[the continuance] hearing of the current conflict.”) (emphasis added). The fact is that
`defense counsel did advise the Arizona court of the pending trial conflict—twice. See
`Lincenberg Decl., ¶¶ 12, 15. First, on February 12, 2021, during the hearing on the motion
`to continue the trial in the Arizona Case, Mr. Lincenberg, counsel for Mr. Pacas, informed
`the Arizona court that this Court had set a November 30, 2021 trial date that would pose a
`conflict with an August or September trial in the Arizona Case. See id. at ¶ 12. On June 7,
`
`18-cr-04683-GPC
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`2021, Mr. Lincenberg again reminded the Arizona court that this Court had set a conflicting
`trial date in November of 2021. See id. at ¶ 15. However, despite Mr. Lincenberg’s
`repeated advisal, the Arizona court ordered its August trial date.
`B.
`Defense counsel orally moved to continue trial in the Arizona Case,
`weeks prior to the January 21, 2021 status conference.
`The Opposition also baselessly and falsely alleges that defense counsel requested a
`trial continuance in the Arizona Case only two days before the January 21, 2021 status
`conference. See Opposition at 4 (“The docket in Arizona indicates that the Arizona motion
`for continuance was filed just two days before the instant status hearing.”). The
`government’s characteristically misleading and self-serving allegation ignores the facts and
`background of the Arizona Case. At the January 21 status conference, defense counsel
`informed the Court that the Arizona defendants had moved for a trial continuance “within
`the last several weeks.” See Declaration of Whitney Z. Bernstein (the “Bernstein Decl.”)
`[Dkt. 240], Ex. A at 14:20-23. This is a true statement: on or about January 4, 2021, the
`Arizona defendants informed the Arizona court that the trial needed to be moved due to the
`COVID-19 pandemic and the defendants’ pending Petition for a Writ of Mandamus to the
`Ninth Circuit. See Lincenberg Decl., ¶ 7. The Arizona court instructed the defendants
`procedurally to make that request in writing, which the Arizona Case defendants formally
`filed on January 19, 2021. See id. at ¶ 8.
`
`C.
`
`The requested trial continuance will not prejudice the government nor
`its witnesses.
`Prejudice “cannot be merely speculative; it must be demonstrated by clear and
`convincing evidence.” United States v. Chase, 499 F.3d 1061, 1068 (9th Cir. 2007). But
`here, the Opposition tries to fabricate prejudice and create an unwarranted—and never
`previously mentioned—sense of urgency.
`First, the government argues that the Motion should be denied because it purportedly
`consumed vast resources in serving 25 trial subpoenas. Trial continuances regularly occur
`after witnesses have been subpoenaed, and the problem of notifying the witnesses of a new
`
`18-cr-04683-GPC
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`date and confirming their attendance is usually solved through a letter, phone call, or
`electronic communication. This claimed hardship constitutes a minor annoyance that can
`be delegated to administrative staff. Moreover, in the wake of the unprecedented
`disruptions of the COVID-19 pandemic, the government cannot plausibly feign surprise
`that it may need to accommodate trial continuances and the attendant logistics of notifying
`potential witnesses. See Ex. A at 15:17-19 (for one, the Court reminded counsel that “[w]e
`are all going to have to be somewhat flexible, even this Court, because of the number of
`attorneys that are involved in this litigation.”); see also Chief Judge Larry Burns’ Order No.
`52C, Extending Renewed Suspension of Jury Trials and Other In-Person Proceedings
`During Covid-19 Public Emergency (Jan. 13, 2020). In any case, the government failed to
`mention any such administrative issues at the January 21 status hearing.
`Second, the government claims that some of its witnesses will be unavailable for trial
`due to illness or death. Opposition at 7-8. But the government has never previously said
`anything of the sort, and certainly not at the January 21 hearing, instead claiming that the
`“witnesses’ memories are dimming.” See Ex. A at 10: 20-21. Nonetheless, it is not clear
`why a trial continuance will prejudice any witness who is already unavailable for the
`November 30 trial because of illness or other complications. On the contrary, a trial
`continuance will afford the government additional time to preserve the testimony of these
`witnesses or work out alternative travel arrangements with them. In the Opposition, the
`government represents that it will file a motion to conduct Rule 15 depositions. See
`Opposition at 7. The government filed a motion for Rule 15 depositions this morning,
`which the Defendants will respond to in turn. See Dkt. 242. The instant requested
`continuance does nothing to impair the government’s ability to seek to preserve such
`testimony.
`Third, the government argues that the current trial date was “strategically” set for the
`benefit of all trial participants to allow the trial to conclude ahead of the holiday season.
`But based on the scope and complexity of this case and the number of witnesses that are
`expected to testify at trial, it is unrealistic that the trial will conclude “in advance of the
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`18-cr-04683-GPC
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`December holiday season.” Moreover, Defendants estimate their defense presentation will
`push trial proceedings well into the Christian-based winter holidays, while the Opposition
`conveniently ignores that certain non-Christian winter holidays begin earlier in December,
`e.g., the Hannukah festival.
`Finally, the government makes much of the fact that Defendants took four months to
`file the Motion, but critically, does not assert any prejudice from the June 11 filing date of
`the Motion, presumably because there is none to report. The Motion is by no means tardy,
`nor made on the eve of trial. Indeed, the motion was filed over 5 months before the
`November 30 trial date, and around the same time that the government produced its 31st
`tranche of discovery. Defendants brought this motion when it was clear that the Arizona
`trial date was firm, after the Ninth Circuit’s denial of the Petition for a Writ of Mandamus
`and when the rapidly changing COVID-19 pandemic began to abate. See Lincenberg Decl.,
`¶¶ 7, 13.
`In short, any purported prejudice the government claims it will suffer amounts to a
`trivial inconvenience, can be abated through Rule 15, and is outweighed by the Defendants’
`Sixth Amendment rights to effective assistance of counsel.
`D.
`The Opposition is replete with misstatements and mischaracterizations.
`Moreover, as already demonstrated, the government has shown little regard for the
`accuracy and veracity of its assertions in the Opposition. But the government’s
`misrepresentations are not limited to its incorrect assertion that Defendants “concealed” the
`November 30 trial date in this matter from Judge Brnovich in the Arizona Case.
`For example, the government claims that Mr. Lincenberg vowed that: “when other
`judges say ‘I have to kick your case,’ we can tell the judge, ‘No. . . We have a trial before
`Judge Curiel.’” See Opposition at 3, 9. This is a gross misrepresentation taken out of
`context. Mr. Lincenberg’s verbatim statements are as follows:
`So our thinking was let's at least set a date, and if we have a date in the
`calendar in May of 2022, at least then, when other judges say, "I have to kick
`your case," we can tell the judge, "No, May of 2022 doesn't work. We have a
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`trial before Judge Curiel." And at least we will have that date in the books
`and can make other things have to work around that.
`
`Ex. A at 7:3-8 (emphasis added).
`Mr. Lincenberg’s comments were made in support of a trial date in May of 2022, not
`as the government misrepresents. And, as set forth above, he did advise the Arizona court
`of the instant trial date on two separate occasions. See Lincenberg Decl., ¶¶ 12, 15.
`Elsewhere, the government erroneously indicates that Ms. Bernstein is counsel for
`Mr. Bychak and omits that both she and Mr. Bienert will be unavailable for trial, leaving
`Mr. Qayyum without either of his trial attorneys. See Opposition at 10 (“Whitney Bernstein
`and David Wiechert represent defendant Bychak, and also represent defendant Larkin in
`the Arizona case.”) (Mr. Wiechert neither represents Mr. Larkin in the Arizona Case nor is
`his firm even participating in that criminal matter).
`The government plays fast and loose with the relevant procedural facts in the
`Opposition, lobbing one baseless allegation after another at defense counsel, as it
`irresponsibly attempts to preserve the current trial date, thereby irremediably prejudicing
`Mr. Pacas and Mr. Qayyum. The Defendants ask that the Court overlook the government’s
`misrepresentations and grant the requested trial continuance as set forth in the Motion.
`E.
`Trial continuances based on the ends of justice are excluded from the
`Speedy Trial clock and trump the public’s interest in a speedy trial.
`Finally, as discussed in the initial Motion, each of the factors that a court must
`consider under 18 U.S.C. § 3161(h)(7) in determining whether the ends of justice are served
`by a continuance militates for an “ends of justice” continuance. See 18 U.S.C. § 3161(h)(7).
`Denial of the instant continuance request will irreparably prejudice Mr. Qayyum and
`Mr. Pacas as they will be deprived of their trial counsel of choice, and any substitute counsel
`will lack the years’ experience and familiarity with this complex case that Mr. Bienert,
`Ms. Bernstein, and Mr. Lincenberg already have. And in any case, Mr. Pacas’ and Mr.
`Qayyum’s right to have able and prepared counsel at trial supersedes the public’s right to a
`speedy trial. See Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (“broad discretion must be
`
`18-cr-04683-GPC
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`granted [to] trial courts on matters of continuances; only an unreasoning and arbitrary
`insistence upon expeditiousness in the face of a justifiable request for delay violates the
`right to the assistance of counsel.”) (internal cites and quotations omitted); see also Luis v.
`United States, 136 S. Ct. 1083, 1085 (2016) (the constitution ensures and protects a criminal
`defendant’s right to retain the counsel of his own choosing); United States v. Beals, 755 F.
`Supp. 2d 757, 762 (S.D. Miss. 2010) (noting the court’s prior holding that “the defendant’s
`right to counsel outweighed his and the public’s interest in a speedy trial.”).
`III. CONCLUSION
`Based upon the foregoing, Defendants respectfully request that the Court continue
`the November 30, 2021 trial date to a date in September of 2022, as set forth in the Motion.
`
`Dated: June 23, 2021
`
`Dated: June 23, 2021
`
`Respectfully submitted,
`
`BIENERT KATZMAN
`LITTRELL WILLIAMS LLP
`By: Whitney Z. Bernstein
` Thomas H. Bienert, Jr.
` James D. Riddet
` Whitney Z. Bernstein
` Attorneys for Abdul Mohammed
`
`BIRD, MARELLA, BOXER, WOLPERT,
`NESSIM, DROOKS, LINCENBERG &
`RHOW, P.C.
`By: Gary S. Lincenberg
` Gary S. Lincenberg
`Nicole Rodriguez Van Dyk
` Darren L. Patrick
` Attorneys for Petr Pacas
`
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`Dated: June 23, 2021
`
`Dated: June 23, 2021
`
`MINTZ, LEVIN, COHN, FERRIS,
`GLOVSKY AND POPEO, P.C.
`By: Randy K. Jones
` Randy K. Jones
` Attorneys for Mark Manoogian
`
`WIECHERT, MUNK & GOLDSTEIN, PC
`By: Jessica C. Munk
` David W. Wiechert
` Jessica C. Munk
` Attorneys for Jacob Bychak
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`CERTIFICATE OF AUTHORIZATION TO SIGN ELECTRONIC SIGNATURE
`Pursuant to Section 2(f)(4) of the Electronic Case Filing Administrative Policies and
`Procedures of the United States District Court for the Southern District of California, I
`certify that the content of this document is acceptable to counsel for the Defendants and that
`I have obtained authorization from Randy K. Jones, Jessica C. Munk, and Gary S.
`Lincenberg to affix their electronic signatures to this document.
`
`Dated: June 23, 2021
`
`By: Whitney Z. Bernstein___________________
` Whitney Z. Bernstein
`
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`CERTIFICATE OF SERVICE
`Counsel for Defendant certifies that the foregoing pleading has been electronically
`served on the following parties by virtue of their registration with the CM/ECF system:
`
`Ashley E. Goff
`Assistant U.S. Attorney
`Email: ashley.goff@usdoj.gov
`Sabrina L. Feve
`Assistant U.S. Attorney
`sabrina.feve@usdoj.gov
`Melanie K. Pierson
`Assistant U.S. Attorney
`melanie.pierson@usdoj.gov
`Candina S. Heath
`U.S. Department of Justice
`Email: candina.heath2@usdoj.gov
`
`Dated: June_23, 2021
`
`BIENERT KATZMAN
`LITTRELL WILLIAMS LLP
`
`By: Whitney Z. Bernstein
` Whitney Z. Bernstein
`
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`BIENERT KATZMAN
`LITTRELL WILLIAMS LLP
`Thomas H. Bienert, Jr., SBN 135311
`James D. Riddet, SBN 39826
`Whitney Z. Bernstein, SBN 304917
`903 Calle Amanecer, Suite 350
`San Clemente, California 92673
`Telephone: (949) 369-3700
`Email: tbienert@bklwlaw.com
` jriddet@bklwlaw.com
` wbernstein@bklwlaw.com
`
`Attorneys for Mohammed Abdul Qayyum
`
`MINTZ, LEVIN, COHN, FERRIS,
`GLOVSKYAND POPEO, P.C.
`Randy K. Jones, SBN 141711
`3580 Carmel Mountain Road, Suite 300
`San Diego, CA 92130
`Telephone: (858) 314-1510
`Email: rkjones@mintz.com
`Attorney for Mark Manoogian
`
`BIRD MARELLA BOXER WOLPERT
`NESSIM DROOKS LINCENBERG
`RHOW P.C.
`Gary S. Lincenberg, SBN 123058
`Nicole Rodriguez Van Dyk, SBN 261646
`Darren L. Patrick, SBN 310727
`1875 Century Park East, Floor 23
`Los Angeles, CA 90067
`Telephone: (310) 201-2100
`Email: glincenberg@birdmarella.com
`nvandyk@birdmarella.com
` dpatrick@birdmarella.com
`Attorneys for Petr Pacas
`
`WIECHERT, MUNK &
`GOLDSTEIN, PC
`David W. Wiechert, SBN 94607
`Jessica C. Munk, SBN 238832
`27136 Paseo Espada, Suite B1123
`San Juan Capistrano, CA 92675
`Telephone: (949) 361-2822
`Email: dwiechert@wmgattorneys.com
` jessica@wmgattorneys.com
`Attorneys for Jacob Bychak
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
`UNITED STATES OF AMERICA,
`Plaintiff,
`
`vs.
`JACOB BYCHAK, MARK
`MANOOGIAN, MOHAMMED
`ABDUL QAYYUM, AND PETR
`PACAS,
`
`Defendant.
`
`CASE NO. 18-CR-4683-GPC-4
`DECLARATION OF GARY S.
`LINCENBERG IN SUPPORT OF
`REPLY BRIEF RE DEFENDANTS’
`JOINT MOTION TO CONTINUE
`TRIAL
`[Filed concurrently with Defendants’
`Joint Motion For Leave to File Reply
`and Reply In Support of Defendants’
`Joint Motion to Continue Trial]
`
` 3725652.6
`
`Case No. 18-CR-4683-GPC-4
`1
`DECLARATION OF GARY S. LINCENBERG
`
`

`

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`I, Gary S. Lincenberg, declare as follows:
`1.
`I am an active member of the Bar of the State of California and principal
`at Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, A
`Professional Corporation. I am lead counsel of record for Defendant Petr Pacas in
`this action.
`I am also lead counsel for John Brunst, a defendant in United States v.
`2.
`Lacey, et al., a criminal proceeding pending before the Honorable Susan M. Brnovich
`in the United States District Court for the District of Arizona, Case No. CR-18-0422-
`PHX-SMB (the “Arizona Case”). My colleagues Thomas H. Bienert, Jr. and Whitney
`Z. Bernstein of Bienert Katzman Littrell Williams LLP, counsel for Mohammed
`Abdul Qayyum, also represent a defendant in the Arizona Case.
`3.
`I make this declaration in support of Defendants’ Reply Brief Re
`Defendants’ Joint Motion to Continue Trial and Joint Motion for Leave to File Reply
`filed concurrently herewith. Except for those matters stated on information and belief,
`I make this declaration based upon personal knowledge and, if called upon to do so, I
`could and would so testify.
`4.
`In its opposition to Defendants’ June 11, 2021 motion to continue the
`trial date in this case (the “Opposition”), the government suggests that certain of my
`statements about the Arizona Case that I made to this Court at the January 21, 2021
`status conference were misleading. The government is incorrect.
`5.
`The Arizona Case involves six defendants and over twenty counsel of
`record. The case was indicted on March 28, 2018, approximately seven months
`before the indictment in this action. See Arizona Dkt. 3 (Indictment). For the Court’s
`reference, a true and correct copy of the docket from the Arizona Case as of June 21,
`2021 is attached to this Declaration as Exhibit 1-A.
`6.
`Trial in the Arizona Case was originally set for January 15, 2020.
`Largely due to the COVID-19 pandemic, the trial date in the Arizona Case has been
`continued several times. Prior to January 2021, the trial had already been continued
`3725652.6
`Case No. 18-CR-4683-GPC-4
`
`2
`DECLARATION OF GARY S. LINCENBERG
`
`

`

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`at least five times. See Exhibit 1-A, Arizona Dkt. 64 (Continuance Motion); Dkt. 127
`(4/20/18 Amended Minute Order); Dkt. 628 (Continuance Motion); 637 (Joinder);
`664 (7/1/19 Order); Dkt. 862 (Continuance Motion); Dkt. 893 (2/21/20 Order); Dkt.
`990 (Continuance Motion); Dkt. 1031 (6/29/20 Order); Dkt. 1058 (Continuance
`Motion); Dkt. 1068 (10/5/20 Order).
`7.
`On January 4, 2021, counsel in the Arizona Case advised Judge Brnovich
`that, as a result of a then-pending petition for writ of mandamus in the Ninth Circuit
`and the ongoing coronavirus pandemic, trial would need to be continued again. See
`id., Arizona Dkt. 1108 (Minute Entry). At that hearing, Judge Brnovich asked the
`defendants to make their request in writing by filing a formal continuance motion.
`On January 19, 2021, the Arizona defendants filed a motion seeking to
`8.
`continue the trial in the Arizona Case to September 2021. See id., Arizona Dkt. 1113
`(Motion).
`On January 21, 2021, this Court held a status conference to discuss
`9.
`setting a trial date (the “Status Conference”). See Bernstein Decl. ISO Joint Mot., Ex.
`A (1/21/21 Hr’g Tr.) at 4:1-4. At the Status Conference, I informed the Court that the
`Arizona Case (which was then set for trial in April 2021) would be continued again
`and that the parties had stipulated to set the Arizona Case for trial in September 2021.
`Bernstein Decl. ISO Joint Mot., Ex. A (1/21/21 Hr’g Tr.) at 5:14-22. By that
`statement, I was referring to the fact that, on January 19, 2021, the Arizona defendants
`had moved to continue the trial to September 20, 2021, and that the government did
`not oppose a continuance. See Arizona Dkt. 1113 (Motion). Moreover, while there
`had been some discussion as to whether the Arizona Case should be continued to
`August or September, part of the concern was that if the trial in Arizona started in
`August, it might have to break for two weeks. This would be effectively the same as
`starting in September. At the conclusion of the Status Conference, this Court set a
`trial date of November 30, 2021, with the understanding that it may need to be
`revisited if the Arizona Case went forward in August or September.
`3725652.6
`Case No. 18-CR-4683-GPC-4
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`3
`DECLARATION OF GARY S. LINCENBERG
`
`

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`10. On January 25, 2021, the Arizona defendants filed a “Supplement” to
`their January 19, 2021 continuance motion. See Arizona Dkt. 1116. The Supplement
`was a one-paragraph filing made for the sole purpose of alerting Judge Brnovich that
`the January 19 “Motion did not state the government’s position with respect to the
`continuance,” and that the government had indicated “that it would not oppose a
`continuance on the basis of the coronavirus pandemic, but was in the process of
`researching its position on the length of the continuance needed, and would convey
`that position in its forthcoming submission.” Id. at 1.
`11. On February 2, 2021, the government filed a response in the Arizona
`Case stating that it “does not oppose Defendants’ request for a continuance,” but that
`it “recommends an August 16, 2021 trial date.” See Arizona Dkt. 1119 (Response) at
`1.
`
`12. On February 12, 2021, Judge Brnovich conducted a hearing regarding
`the Arizona defendants’ motion for continuance. At that hearing, I notified Judge
`Brnovich that this Court had set a November 30, 2021 trial date. Judge Brnovich
`nonetheless set the trial in the Arizona Case for August 23, 2021. See Arizona Dkt.
`1122 (Order).
`13. On April 5, 2021, the Ninth Circuit denied the Arizona defendants’
`petition for writ of mandamus in the Arizona Case. With the denial of the petition,
`the August 23, 2021 trial date in the Arizona Case became more likely.
`14. Over the next two months, the conditions surrounding the COVID-19
`pandemic improved, and it became clear that the August 23, 2021 trial date in the
`Arizona Case would not be continued a seventh time.
`15. Accordingly, on June 7, 2021, defense counsel notified the court in this
`matter that the trial date in the Arizona Case posed a direct conflict with the November
`30, 2021 trial date in this matter, and requested that the trial date be reset. Despite
`being informed at the January 2021 Status Conference that the trial date in the earlier-
`filed Arizona Case would be set for a three-month trial beginning in or around
`3725652.6
`Case No. 18-CR-4683-GPC-4
`
`4
`DECLARATION OF GARY S. LINCENBERG
`
`

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`September 2021, the government objected to the continuance request. The Court
`ordered briefing from the parties, which has necessitated this reply.
`16.
`Each of the continuances of the Arizona trial described above were made
`in the context of the COVID-19 pandemic with no reliable sense of whether any of
`the continued trial dates would stick. The logistical difficulties in the Arizona Case
`are enormous. The government has disclosed more than ninety witnesses and more
`than 2000 trial exhibits; the trial is estimated to run into December. Counsel have had
`to book lodging for the entire time period. And counsel will then need to recover and
`prepare for this complex trial. There is no realistic possibility of counsel beginning
`this trial in 2021 and being able to provide effective assistance of counsel.
`17.
`In its Opposition, the government states that defense counsel “knowingly
`and intentionally” concealed this Court’s November 30, 2021 trial date, which was
`set during the Status Conference, from Judge Brnovich. See Opp. at 9. This is
`incorrect. In fact, as set forth above, I notified Judge Brnovich that this Court had set
`a November 30, 2021 trial date at the hearing on the Arizona defendants’ motion to
`continue the Arizona Case that took place on February 12, 2021. On June 7, 2021,
`during a status conference in the Arizona Case, I again informed Judge Brnovich that
`this Court had set a trial in this action in November 2021.
`
`I declare under penalty of perjury that the foregoing is true and correct.
`
`Date: June 23, 2021
`
`s/ Gary S. Lincenberg
`Gary S. Lincenberg
`
`3725652.6
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`5
`DECLARATION OF GARY S. LINCENBERG
`
`Case No. 18-CR-4683-GPC-4
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`

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`Case 3:18-cr-04683-GPC Document 243-1 Filed 06/23/21 PageID.2533 Page 18 of 125
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`CERTIFICATE OF SERVICE
`Counsel for Defendant certifies that the foregoing pleading