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3709425.1 DEFENDANTS’ OPPOSITION TO MOTION IN LIMINE TO ADMIT EVIDENCE

Thomas H. Bienert, Jr. (CA Bar No.135311, admitted pro hac vice)

Whitney Z. Bernstein (CA Bar No. 304917, admitted pro hac vice)

BIENERT | KATZMAN PC

903 Calle Amanecer, Suite 350

San Clemente, California 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

tbienert@bienertkatzman.com

wbernstein@bienartkatzman.com

Attorneys for James Larkin

Paul J. Cambria, Jr. (NY Bar No. 1430909, admitted pro hac vice)

Erin McCampbell (NY Bar. No 4480166, admitted pro hac vice)

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

pcambria@lglaw.com

emccampbell@lglaw.com

Attorneys for Michael Lacey

Additional counsel listed on next page

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA 

United States of America,

Plaintiff,

vs.

Michael Lacey, et al., 

 

Defendants.

Case No. 2:18-cr-00422-PHX-SMB

DEFENDANTS’ OPPOSITION 

TO GOVERNMENT’S MOTION IN 

LIMINE TO ADMIT EVIDENCE 

(DKT. 931)

(Oral argument requested)

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3709425.1 DEFENDANTS’ OPPOSITION TO MOTION IN LIMINE TO ADMIT EVIDENCE

Gary S. Lincenberg (CA Bar No. 123058, admitted pro hac vice)

Ariel A. Neuman (CA Bar No. 241594, admitted pro hac vice)

Gopi K. 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

Facsimile: (310) 201-2110

glincenberg@birdmarella.com

aneuman@birdmarella.com

gpanchapakesan@birdmarella.com

Attorneys for John Brunst

Bruce Feder (AZ Bar No. 004832)

FEDER LAW OFFICE PA

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

Telephone: (602) 257-0135

bf@federlawpa.com

Attorney for Scott Spear

David Eisenberg (AZ Bar No. 017218)

DAVID EISENBERG PLC

3550 N. Central Ave., Suite 1155

Phoenix, Arizona 85012

Telephone: (602) 237-5076

Facsimile: (602) 314-6273

david@deisenbergplc.com

Attorney for Andrew Padilla

Joy Malby Bertrand (AZ Bar No. 024181)

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

Telephone: (602)374-5321

Facsimile: (480)361-4694

joy.bertrand@gmail.com

Attorney for Joye Vaught

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3709425.1 TABLE OF CONTENTS AND TABLE OF AUTHORITIES

Table of Contents

I. INTRODUCTION..........................................................................................................1

II. BACKGROUND. ...........................................................................................................2

III. THE US HAS FAILED TO ESTABLISH ITS PROPOSED EXHIBITS ARE NONHEARSAY OR SATISFY HEARSAY EXCEPTIONS...................................................3

IV. THE MOTION IGNORES MYRIAD CONFRONTATION CLAUSE ISSUES. .......12

V. THE FERRER/BACKPAGE EXHIBITS ARE NOT SELF-AUTHENTICATING. .13

VI. OBJECTIONS TO PARTICULAR CATEGORIES OF DOCUMENTS.....................14

VII. LACEY’S COUNSEL’S DOCUMENTS SHOULD NOT BE ADMITTED................24

VII. THE “SUMMARY” EXHIBITS CANNOT BE ADMITTED PRETRIAL..................24

VIII. CONCLUSION.............................................................................................................26

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3709425.1 TABLE OF CONTENTS AND TABLE OF AUTHORITIES

Table of Authorities

Cases Page(s)

Amarel v. Connell,

102 F.3d 1494 (9th Cir. 1996)............................................................................................................. 25

Ashcroft v. Free Speech Coalition,

535 U.S. 234 (2002).............................................................................................................................. 16

AT Engine Controls Ltd. v. Goodrich Pump & Engine Control Sys., Inc.,

637 Fed. App’x 645 (2d Cir. 2016)..................................................................................................... 13

Automated Merch. Sys., Inc. v. Crane Co.,

2012 WL 12892417 (N.D.W.V. Feb. 28, 2012).................................................................................. 3

Backpage.com v. Cooper,

939 F.Supp.2d 805 & (M.D. Tenn. 2013)...................................................................................16, 18

Bd. of Trs. v. State Univ. of N.Y. v. Fox,

492 U.S. 469 (1989).............................................................................................................................. 15

Bemis v. Edwards,

45 F.3d 1369 (9th Cir. 1995)................................................................................................................. 3

Bogutz v. Arizona,

2008 WL 11440636 (D. Ariz. Oct. 27, 2008) ..................................................................................... 6

Crawford v. Washington,

541 U.S. 36 (2004)............................................................................................................... 5, 12, 13, 14

Doe v. Torrington Board of Education,

2019 WL 625696 (D. Conn. Feb. 14, 2019) .................................................................................9, 10

Haddad v. Lockheed Calif. Corp,

720 F.2d 1454 (9th Cir. 1983)............................................................................................................... 9

In re Oil Spill by the Oil Rig “Deepwater Horizon,”,

2012 WL 85447 (E.D. La. Jan. 11, 2012)....................................................................................10, 11

John Paul Mitchell Systems v. Quality King Distributors,

106 F. Supp. 2d 462 (S.D.N.Y. 2000)..........................................................................................13, 14

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Khoja v. Orexigen Therapeutics,

899 F.3d 988 (9th Cir. 2018)............................................................................................................... 22

Lion Oil Trading & Transp., Inc. v. Statoil Marketing & Trading (US) Inc.,

2011 WL 855876 (S.D.N.Y. Feb. 28, 2011)...................................................................................... 10

Litton Systems, Inc. v. American Telephone & Telegraph Co.,

700 F.2d 785 (2d Cir. 1983) ................................................................................................................ 12

Martins v. 3PD, Inc.,

2013 WL 1320454 (D. Mass. Mar. 28, 2013).................................................................................... 22

Matter of Extradition of Santos,

228 F. Supp. 3d 1034 (C.D. Cal. 2017)................................................................................................ 3

Merrick v. Farmers Ins. Group,

892 F.2d 1434 (9th Cir.1990)................................................................................................................ 6

Nassar v. Nassar,

2017 WL 26859 (M.D. Fla. Jan. 3, 2017) .......................................................................................... 22

Packingham v. North Carolina,

137 S. Ct. 1730 (2017).......................................................................................................................... 16

Park W. Radiology v. CareCore Nat. LLC,

675 F. Supp. 2d 314 (S.D.N.Y. 2009)................................................................................................ 11

People v. Ferrer,

2016 WL 7237305 (Sup. Ct. Sacramento Cty. Dec. 9, 2016).......................................................... 24

Rules

801 or 803.............................................................................................................................................. 12

Sabel v. Mead Johnson & Co.,

737 F. Supp. 135 (D. Mass. 1990)........................................................................................................ 6

Sea-Land Serv., Inc. v. Lozen Int’l, LLC,

285 F.3d 808 (9th Cir. 2002)................................................................................................................. 5

Thomas v. Stone Container Corp.,

922 F. Supp. 950 (S.D.N.Y. 1996) ..................................................................................................... 12

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Transcap Assocs., Inc. v. Euler Hermes Am. Credit Indem. Co.,

2009 WL 3260014 (N.D. Ill. Oct. 9, 2009)....................................................................................... 21

U.S. ex rel. Poong Lim/Pert v. Dick Pac./Ghemm,

2006 WL 568321 (D. Ak. Mar. 7, 2006)............................................................................................ 26

U.S. v. Aiyaswamy,

2017 WL 1365228 (N.D. Cal. Apr. 14, 2017).............................................................................19, 21

U.S. v. Bibbero,

749 F.2d 581 (9th Cir. 1984)................................................................................................................. 4

U.S. v. Bonds,

2009 WL 416445 (N.D. Cal. Feb. 19, 2009)....................................................................................... 6

U.S. v. Bustamante,

687 F.3d 1190 (9th Cir. 2012)............................................................................................................. 13

U.S. v. Castaneda,

16 F.3d 1504 (9th Cir. 1994)................................................................................................................. 4

U.S. v. Chang,

207 F.3d 1169 (9th Cir. 2000)...........................................................................................................3, 6

U.S. v. Curtin,

489 F.3d 935 (9th Cir. 2007).................................................................................................. 10, 12, 15

U.S. v. Daneshvar,

925 F.3d 766 (6th Cir. 2019)............................................................................................................... 11

U.S. v. Eubanks,

591 F.2d 513 (9th Cir. 1979)................................................................................................................. 4

U.S. v. Liera,

585 F.3d 1237 (9th Cir. 2009)............................................................................................................... 4

U.S. v. Marguet-Pillado,

560 F.3d 1078 (9th Cir. 2009)............................................................................................................. 10

U.S. v. Miller,

771 F.2d 1219 (9th Cir. 1985)............................................................................................................. 25

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U.S. v. Moore,

522 F.2d 1068 (9th Cir. 1975)............................................................................................................... 7

U.S. v. Playboy Entm’t Grp., Inc.,

529 U.S. 803 (2000).............................................................................................................................. 15

U.S. v. Rosen,

94 F. App’x 567 (9th Cir. 2004)............................................................................................................ 5

U.S. v. Silverman,

861 F.2d 571 (9th Cir. 1988)................................................................................................................. 4

U.S. v. Soulard,

730 F.2d 1292 (9th Cir. 1984).......................................................................................................19, 25

U.S. v. Tellier,

83 F.3d 578 (2d Cir. 1996) .................................................................................................................... 4

U.S. v. Villa,

19 Fed. Appx. 696 (9th Cir. 2001) .................................................................................................7, 11

U.S. v. Waters,

627 F.3d 345 (9th Cir. 2010).........................................................................................................18, 19

U.S. v. Wood,

943 F.2d 1048 (9th Cir. 1991)............................................................................................................. 24

United States v. Cone,

714 F.3d 197 (4th Cir. 2013)............................................................................................................... 11

Other Authorities

Federal Evidence, § 602.02 (2d ed. 2004).................................................................................................. 12

Instruction 4.9, Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit 

Dec. 2019.................................................................................................................................................. 5

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DEFENDANTS’ OPPOSITION TO MOTION IN LIMINE TO ADMIT EVIDENCE

I. INTRODUCTION.

In its Motion In Limine to Admit Evidence (“Motion”), the US seeks to admit 452 exhibits 

(roughly 85% of its 532 proposed exhibits), plus an additional 423 secondary documents,1 “through 

a government agent or other summary witness,” without foundational testimony from any witnesses 

with actual knowledge. Dkt. 931 at 17. The US essentially asks to be excused from calling witnesses 

in its case-in-chief. Allowing the US to short-cut basic rules of evidence would violate Defendants’ 

due process rights. Despite its sweeping request, the Motion discusses just 22 of the 875 documents

the US seeks to admit2 (and, even as to the 22, does not provide the required foundational 

information and evidence for non-hearsay or hearsay exceptions).3 The US primarily relies on 

unsupported allegations (and, for an unspecified handful of proposed exhibits, proposes to present 

foundational testimony at trial), offering evidence only for a few proposed exhibits.

The Court should reject the Motion, first, because the US fails to set out, with specificity, the 

reasons why each proposed exhibit is admissible. Second, the US fails to demonstrate, by a 

preponderance of the evidence, the factual predicates for each document under each rule. The US’

allegations and opinions are not evidence. Third, during the meet and confer process, the US refused

to provide the specifics of its theories for admitting its proposed exhibits and to provide the facts 

purportedly supporting them. Finally, the US seeks relief that is fundamentally at odds with the 

Confrontation Clause of the Constitution, as it seeks to present the core of its case through case 

agents and documents, without competent foundational witnesses. 

Defendants have not lodged objections to each individual document the US seeks to move into 

evidence, as the US has failed to present a factual and legal basis to justify the admission of each 

document, so the defense would be shooting in the dark if it tried to address each document. 

Moreover, the 26 page limit on this response would allow less than one line of text for each of the 

1 The US identified 452 potential exhibits, see Exhibit A (attached), but nearly all of them (423) 

include secondary documents (e.g., attachments to an email chain) that must be separately assessed. 

Therefore, the number of documents actually at issue in the Motion is 875, not 452. 

2 The 22 were Exhs. 176, 177, 58, 7, 798, 52, 140, 116, 119, 8, 9, 14, 21, 23, 30, 101, 311, 312, 313, 

314, 260, 1. See Dkt. 931 at 11, 12, 16, 17, 18, 20, 24.

3 The US also sought a blanket pretrial ruling that five “categories” of unidentified documents will 

be admissible: (1) emails, (2) “intra-Backpage documents,” (3) business records, (4) documents 

produced by counsel for Michael Lacey, and (5) summary exhibits. Dkt. 931 at 1-2. 

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875 documents. Accordingly, Defendants focus this response on overarching issues and contend

the Court should address the proposed exhibits during trial, after the US establishes a factual and 

legal basis for the admission of each exhibit (and before the US actually references the exhibit before

the jury). If the Court prefers a document-by-document analysis before trial, Defendants will lodge 

a document-by-document response at the Court’s direction but would request that the Court require 

the US to first: a) set out, document-by-document, all the information Defendants and the Court 

would need to assess the admissibility of each document and b) establish, with admissible evidence, 

the factual predicates required for each document under the applicable rule(s). Defendants could 

then address the actual factual and legal bases the US asserts to support admission of the 875 

documents, rather than guessing at arguments not yet made based on facts not yet established. 

II. BACKGROUND.

In an effort to obtain information to analyze the Motion, address its deficiencies, and narrow the 

issues, Defendants asked to meet and confer, but the US refused. After the Court ordered the parties 

to meet and confer (Dkt. 937), Defendants and the US exchanged emails and spoke by phone, see

Dkt. 977, but the US largely refused to provide even basic information in support of its Motion. For 

example, Defendants asked the US to identify the witness through whom it intended to admit each 

exhibit, but the US refused. See Exhibit B (attached), Thomas Declaration (“Thomas Decl.”) at ¶ 8. 

For each exhibit the US proposed to admit as non-hearsay premised on the action or inaction of a 

Defendant, such as the admission of an agent or an adoptive admission, Defendants asked the US

to identify each Defendant who was a principal for each agent and who adopted each purported 

admission, but the US again refused. Id. at ¶ 8. Defendants asked the US to identify each Defendant 

against whom it believes each exhibit can be admitted and the purpose for which the exhibit can be 

admitted. See, e.g., id.; see also Dkt. 977-1 at 3. The US said it seeks to introduce each exhibit against 

all Defendants and all the exhibits were “relevant.” Thomas Decl. at ¶ 8. Defendants also asked the 

US to identify all members of each purported conspiracy, so they could assess the US’ claim that 

150 exhibits are admissible as co-conspirator statements. Id. at ¶ 9. The US said the conspirators

included all Defendants, cooperators Ferrer and Hyer, David Elms, William Mersey, and “every 

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DEFENDANTS’ OPPOSITION TO MOTION IN LIMINE TO ADMIT EVIDENCE

prostitute or pimp who ever emailed Backpage” from 2004 to 2018.4 Id. Finally, Defendants asked 

the US to provide the documents its summary exhibits purport to summarize, but the US refused 

and told Defendants to take it up with the Court. Thomas Decl. at ¶ 10.

III. THE US HAS FAILED TO ESTABLISH ITS PROPOSED EXHIBITS ARE NON- HEARSAY OR SATISFY HEARSAY EXCEPTIONS. 

The US, as the proponent of its exhibits, bears the burden of establishing their admissibility, by

both explaining why they are admissible and providing the factual foundation required under the 

rules. Automated Merch. Sys., Inc. v. Crane Co., 2012 WL 12892417, at *2 (N.D.W.V. Feb. 28, 2012) 

(denying motion in limine to admit secondary evidence because the “proponent of the secondary 

evidence has the burden of proving loss or destruction, which are preliminary facts for the court to 

determine under Rule 104(a)” and failed to “show by a preponderance of the evidence that all 

originals have been lost or destroyed”).

5 The Motion discusses only 22 specific exhibits and does

not provide the information required to establish admissibility even as to those 22 exhibits. 

Moreover, except for certifications of purported records custodians (addressing records of financial 

institutions and certain Backpage ads) and an affidavit addressing a video, the US fails to present 

any evidence to establish each proposed exhibit meets the requirements of the cited evidentiary rule. 

A. Co-Conspirator Statements. The US seeks to admit 150 exhibits and attachments as nonhearsay co-conspirator statements under Rule 801(d)(2)(E), but presents no evidence to establish 

the factual predicates for doing so. “[A]n accused’s knowledge of and participation in an alleged 

conspiracy with the putative co-conspirator are preliminary facts that must be established, by a 

4 The US effectively admitted it is asserting a “boundless conspiracy,” as Defendants alleged in their 

motion to dismiss the indictment for failing to allege the necessary elements of the Travel Act (Dkt. 

746) and the Court rejected in its order. Order, Dkt. 946 at 13 (“Defendants’ suggestion that the SI 

improperly indicts a ‘boundless conspiracy to facilitate prostitution in general,’ however, 

mischaracterizes the charges against them. Such a claim is simply untrue. They were not indicted for 

facilitating the amorphous notion of ‘prostitution.’ They were indicted for facilitating (via publishing 

ads) on fifty distinct occasions where prostitutes, prostitution-related businesses, or other groups 

were involved in the business of prostitution.”) (cleaned up).

5 Accord U.S. v. Chang, 207 F.3d 1169, 1176 (9th Cir. 2000) (“Rule 801(d)(2)(D) requires the 

proffering party to lay a foundation to show that an otherwise excludable statement relates to a 

matter within the scope of the agent’s [agency or] employment.”); Bemis v. Edwards, 45 F.3d 1369, 

1373 (9th Cir. 1995) (“As the proponent of the evidence [under Rules 803(1) and (2)], Bemis had 

the burden of establishing personal perception by a preponderance of the evidence.”); Matter of 

Extradition of Santos, 228 F. Supp. 3d 1034, 1037 (C.D. Cal. 2017) (“The proponent of evidence 

generally bears the burden of establishing its admissibility.”). 

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preponderance of the evidence, before the co-conspirator’s out-of-court statements can be introduced 

into evidence.” U.S. v. Castaneda, 16 F.3d 1504, 1507 (9th Cir. 1994) (emphasis added). To establish 

a declarant knowingly participated in a conspiracy, “the US cannot rely solely on the alleged coconspirator statements themselves.” Id. (citing U.S. v. Silverman, 861 F.2d 571, 578 (9th Cir. 1988)); 

see also U.S. v. Tellier, 83 F.3d 578 (2d Cir. 1996) (finding hearsay statements are “presumptively 

unreliable” and “for such statements to be admissible, there must be some independent 

corroborating evidence of defendant’s participation in the conspiracy”). To prove the connection 

between each accused and the alleged conspiracy, the US must produce “some independent evidence 

which, viewed in light of the coconspirator statements, establishes the requisite connection between 

the accused and the conspiracy.” Castaneda, 16 F.3d at 1507. The US must prove not only that each 

Defendant was a member of the conspiracy, but also that each declarant was. U.S. v. Liera, 585 F.3d 

1237, 1245 (9th Cir. 2009) (conviction vacated because the US failed to prove declarant was a 

member of the conspiracy before the admission of hearsay statements). The US also must prove 

that any hearsay statements it seeks to introduce were made “in furtherance” of the conspiracy. Fed. 

R. Evid. 801(d)(2)(E); U.S. v. Bibbero, 749 F.2d 581, 583–84 (9th Cir. 1984) (“statement [must] 

further[] the common objectives of the conspiracy; ‘mere conversation between conspirators’ is not 

admissible”); U.S. v. Eubanks, 591 F.2d 513, 520 (9th Cir. 1979) (“Not all statements made by coconspirators can be considered to have been made in furtherance of the conspiracy.”).6

The US claims every email sent by each Defendant and purported co-conspirator is non-hearsay 

because the US alleges: a) they are co-conspirators and b) every email was made during the course of 

and in furtherance of the alleged conspiracy—but the US offers no evidence to support its implausible 

and sweeping claims. The US points only to Backpage’s plea to a charge of money laundering conspiracy

and the indictment’s allegations. Whatever Backpage’s plea may establish about Backpage, the plea is 

not evidence that each Defendant knowingly conspired with Backpage (or others) or that specific 

communications furthered a conspiracy, whether with respect to money laundering or any other 

crime. Throughout the Motion, the US focuses on Backpage, Ferrer, and others, but, as the Court 

6 Defendants incorporate by reference their more fulsome discussion of the law relating to Rule 

801(d)(2)(E) from their response to another US motion in limine. See, e.g., Dkt. 964 at 11-16. 

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recently noted, “this case is not about Backpage...[but] these individual defendants and whether they 

had specific knowledge of these ads as facilitating illegal activity.” Transcript, Dkt. 1099, p. 39.

Moreover, although the US presumably will seek at trial to present a factual basis to support its 

conspiracy allegations through the testimony of Ferrer or Hyer, their statements as cooperating 

witnesses will deserve careful scrutiny and Defendants are entitled to cross-examine them to test the 

reliability of their testimony. Crawford v. Washington, 541 U.S. 36, 61 (2004) (Confrontation Clause 

“commands” that the “reliability [of testimonial statements] be assessed in a particular manner: by 

testing in the crucible of cross-examination”); U.S. v. Rosen, 94 F. App’x 567, 571 (9th Cir. 2004) 

(where a cooperating witness has been rewarded by the government for his testimony, the 

“cooperating witness is by definition cut from untrustworthy cloth, and must be managed and 

carefully watched by the government and the courts to prevent them from falsely accusing the 

innocent, from manufacturing evidence against those under suspicion of crime, and from lying under 

oath in the courtroom”) (cleaned up), vacated, 543 U.S. 1106, reinstated, 137 Fed. Appx. 67; see also

Instruction 4.9, Manual of Model Criminal Jury Instructions for the District Courts of the Ninth 

Circuit, Dec. 2019 (testimony of witness who receives “favored treatment” from the US should be 

examined “with greater caution than that of other witnesses”).

B. Statements of a Party’s Agent. The US seeks to admit 646 exhibits and attachments as nonhearsay statements of a party’s agent under Rule 801(d)(2)(D), but presents no evidence to establish 

the required factual predicates. Before the Court may admit statements under Rule 801(d)(2)(D), the 

US first must establish: (1) the out-of-court declarant was an agent of a Defendant; (2) the out-ofcourt statements were made by that Defendant’s agent during the existence of the agency; and (3) 

the out-of-court statements were within the scope of the agency. See Sea-Land Serv., Inc. v. Lozen Int’l, 

LLC, 285 F.3d 808, 821 (9th Cir. 2002) (a party seeking to admit a statement under Rule 801(d)(2)(D) 

must lay an adequate foundation to show the statement “relates to a matter within the scope of the 

agent’s employment”). The contents of the out-of-court statement alone cannot establish the 

existence or scope of the relationship necessary to apply Rule 801(d)(2)(D). Rule 801(d)(2). As the 

proffering party, the US bears the burden to demonstrate the foundational requirement that “an 

otherwise excludable statement relates to a matter within the scope of the agent’s agency or 

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employment.” Chang, 207 F.3d at 1176 (cleaned up). Moreover, even if the US establishes a statement 

is admissible under an agency theory against one Defendant, the statement will remain inadmissible 

hearsay as to all other Defendants.

7 See Bogutz v. Arizona, 2008 WL 11440636, at *1 (D. Ariz. Oct. 

27, 2008) (“It is well established that under Rule 801(d)(2), ‘a party’s statement is admissible as nonhearsay only if it is offered against that party.’”).8

The US presents no evidence to meet the foundational requirements of Rule 801(d)(2)(D), but 

merely claims various persons or entities were agents of Backpage. Moreover, even as to Backpage, 

the US presents no evidence those parties were agents of Backpage within the meaning of Rule 

801(d)(2)(D) nor that their statements were within the scope of any agency. Merely engaging an 

independent contractor does not make the contractor an agent for purposes of Rule 801(d)(2)(D). 

U.S. v. Bonds, 2009 WL 416445, at *5 (N.D. Cal. Feb. 19, 2009) (“independent contractors do not 

qualify as agents for the purposes of Rule 801(d)(2)(D)”) (citing Merrick v. Farmers Ins. Group, 892 

F.2d 1434, 1440 (9th Cir.1990)). Rule 801(d)(2)(D) is premised on the theory that an agent 

authorized to act on a principal’s behalf is impliedly authorized to speak on the same matters. Sabel 

v. Mead Johnson & Co., 737 F. Supp. 135, 139 (D. Mass. 1990). Thus, unless a defendant controls the 

consultant, the consultant has “the power to legally bind defendant through their statements and 

actions,” and the consultant has “enter[ed] into a fiduciary relationship with defendant, the factors 

which support attribution of an agent’s statements to her principal are completely missing.” Id.

(emphasis added). The US presents no evidence Backpage had an agency relationship with Monita 

Mohan, DesertNet, any public relations firms representatives, or any employees to support 

attribution of any of their statements even to Backpage, let alone to Defendants. The US does not even 

argue, much less present evidence, that any Defendant had an agency relationship within the scope of

Rule 801(d)(2) with the authors of any exhibits it seeks to admit as admissions of agents or that any 

pertinent statements were made during the existence of such an agency and within the scope of the 

agency. The US completely fails to meet its burden of demonstrating that any statements of third

parties can be attributed to Defendants as non-hearsay under Rule 801(d)(2). 

7 The same will be true under other hearsay exceptions as well. 

8 Defendants incorporate by reference their more fulsome discussion of the law relating to Rule 

801(d)(2)(C) and (D) from their response to another US motion in limine. See, e.g., Dkt. 964 at 4-11. 

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C. Adoptive Admissions. The US seeks to admit 644 exhibits and attachments as non-hearsay 

adoptive admissions under Rule 801(d)(2)(B), but fails to establish the required factual predicate for 

doing so. The Court cannot admit a statement as an adoptive admission unless the US first

establishes: a) an accusatory statement was made in a defendant’s presence and hearing, b) that

defendant understood the accusatory statement and had an opportunity to respond to it, c) the 

circumstances were such that “an innocent defendant would normally be induced to respond,” and 

d) that defendant did not respond, but instead acceded to the statement. U.S. v. Moore, 522 F.2d 

1068, 1076 (9th Cir. 1975) (“The general rule concerning admissions by silence or acquiescence is 

well established. When an accusatory statement is made in the defendant’s presence and hearing, 

and he understands and has an opportunity to deny it, the statement and his failure to deny are 

admissible against him.”). In Moore, the US established accusatory statements were made to a group, 

Moore “was in the group that was ‘around’” when the statements were made, and Moore did not 

deny the accusatory statements, but the Ninth Circuit found the foundational testimony “wholly 

insufficient” to admit the statements as adoptive admissions, because there was “no testimony 

whatsoever concerning such matters as how close Floyd Moore was to Rezabek, whether there was 

noise at the time, and whether Moore appeared to be listening.” 522 F.2d at 1076.

9

Here, the US presents no foundational evidence whatsoever to support the admission of any 

statements in the 644 documents as adoptive admissions. The US identifies no accusatory 

statements. The US presents no evidence any Defendant(s) heard (or read) and understood any 

accusatory statements. The US presents no evidence any Defendant(s) failed to respond to any

accusatory statements. The US cites no authority for the proposition that failing to respond to an 

email generally is treated as an admission by silence or acquiescence (and Defendants are aware of 

none). Moreover, the US presents no evidence the circumstances presented compelled a response

and the lack of a response was an accession. 

The US discusses just three exhibits it claims were adoptive admissions, but abjectly fails to even 

9 Accord U.S. v. Villa, 19 Fed. Appx. 696, 697 (9th Cir. 2001) (reversing conviction where 

evidence was sufficient to support a finding that defendant was aware of his father’s accusatory 

statement, but did not establish “whether under the circumstances an innocent defendant would 

normally be induced to respond”).

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make a plausible claim those documents qualify as adoptive admissions, much less support a plausible 

claim with evidence. The US discusses Exh. 176, a blank email from Ferrer to Defendants Larkin, 

Brunst, and Spear transmitting a PowerPoint presentation, but does not establish any Defendant 

saw the email or reviewed the PowerPoint. Dkt. 931 at 11. The US quotes some phrases from the 

PowerPoint, but none was accusatory. Even crediting the US’ inaccurate characterization of the 

phrases, the US does not explain why the phrases would have compelled a response nor prove there 

was no response. The US says Larkin, Brunst, and Spear never emailed back to disagree with Ferrer’s 

ideas, but presents no evidence that a) the PowerPoint represented Ferrer’s ideas or b) Larkin, 

Brunst, or Spear never responded, whether by email or in some other manner at some other time. 

In short, the US fails to establish any elements of an adoptive admission. 

The US claims Exh. 177 was a “textbook example” of an adoptive admission, but that hardly is 

so. Exh. 177 appears to be an email among unknown recipients and a seeming forward of the email 

to five email addresses, prompting a response from one. The US does not establish the other four 

addressees received or read the email. The email contained no accusatory statements, nor does the 

US explain why it compelled a response. Moreover, the proposed exhibit shows one addressee, 

Brunst, did respond, questioning what the underlying email proposed and saying “we will discuss 

when I get back next week”—hardly an accession to any statements in the underlying email. 

Moreover, given that response, the US cannot plausibly claim the other recipients were compelled 

to respond. The US says Spear was obligated to respond, but presents no evidence in support or to 

show the discussions Brunst requested never took place, nor does it show how the email is relevant. 

Finally, the US characterizes its proposed Exh. 58, an email from Andrew Padilla to his 

subordinates including Joye Vaught (but no other Defendants), as providing guidance on ad 

moderation, transmitting a 38-page PDF showing images that would require deleting an ad versus 

deleting an image. The email said the PDF was “a guideline” and moderators would “not get into 

trouble for being too clean right now.” The email also attached a list of terms violating guidelines

and instructed moderators to look for “misspellings that the filters and bans are missing” (i.e.

intentional misspelling of words violating guidelines). The US does not establish Vaught (or any 

other Defendant) received or read the email, the PDF, or the list of terms. Nothing in them was 

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accusatory, nor does the US explain why the email compelled Vaught to respond. Moreover, the US

does not allege, or present any evidence, Vaught did not question the email in some other manner 

at some other time. Once again, the US fails to establish any elements of an adoptive admission. 

The US apparently contends every time someone receives an email, and does not respond in 

disagreement, the email is an adoptive admission by the recipient of all statements in the email—but 

that simply is not the law. Because the US fails to establish any of the foundational requirements for 

the admission of any out-of-court statements as adoptive admissions, the Court should reject as 

inadmissible hearsay all the exhibits the US proposes to admit as adoptive admissions. 

D. Statements Not Offered for their Truth. The US argues 70 exhibits and attachments are not 

hearsay because it will not offer them for the truth of the matters asserted. The Motion does not 

discuss any specific exhibits, but generally identifies the exhibits as: documents in which third parties 

opined about the volume of ads on Backpage relating to prostitution and sex trafficking; emails 

relating to customer credit card charges being declined due to banks’ purported concerns about 

some ads on Backpage relating to criminal activities; and emails relating to customer complaints 

about Backpage blocking their ads, in whole or in part. The US asserts these documents can be 

admitted to show notice, knowledge, state of mind, intent, etc. under Rule 803(3), but makes no 

attempt to explain how the documents could be relevant if the statements in them are not true.

10

Unless the statements in the proposed exhibits are true, the exhibits are irrelevant (and, as discussed 

below, even if the statements are true, they still must be excluded). 

Even if the US presents a basis for the Court to conclude some of the proposed exhibits were 

non-hearsay, the Court should exclude them because their probative value is low and the risk of 

unfair prejudice is extreme. Doe v. Torrington Board of Education, 2019 WL 625696 (D. Conn. Feb. 14, 

2019). Doe brought claims against a school district alleging he was bullied and sexually assaulted 

while a student. He sought to introduce investigative reports of a state agency that had investigated 

allegations of abuse at the school arguing, among other things, the reports were not hearsay because 

10 This is not a case where the existence of complaints is relevant, even if they are untrue. Contra 

Haddad v. Lockheed Calif. Corp, 720 F.2d 1454, 1456 (9th Cir. 1983) (“[T]his testimony was 

not...offered to prove the truth of the complaints. Instead, this testimony was offered to show 

that Lockheed management had received complaints regarding Haddad. Such testimony was 

relevant in demonstrating Lockheed’s non-discriminatory intent in its employment practices.”). 

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he would not offer them for their truth, but to show the defendants were on notice of bullying, 

hazing, and assaults. The court granted a defense motion to exclude the exhibits under Rule 403, 

finding they created an unfair risk of prejudice, noting the reports: a) contained multiple levels of 

hearsay and were unreliable; b) suggested the conduct described in the reports was criminal; c)

contained conclusions of law reserved for the court; and d) contained inadmissible opinion 

testimony by a lay witness. Id. at *2. The proposed exhibits the US seeks to admit as non-hearsay 

here suffer from all of these flaws and should be excluded even if they are not hearsay and are

relevant. The analysis under Rule 403 must be conducted on a document by document basis. See, 

e.g., U.S. v. Curtin, 489 F.3d 935, 958 (9th Cir. 2007) (“we hold as a matter of law that a court does 

not properly exercise its balancing discretion under Rule 403 when it fails to place on the scales and 

personally examine and evaluate all that it must weigh”) (emphasis in original). 

E. Business Records. The US seeks to admit 21 exhibits and attachments under Rule 803(6) as 

records of a regularly conducted activity (business records). To establish an exhibit is admissible 

under this exception, the US must demonstrate, through the testimony or certification of a qualified 

witness, each “record of an act, event, condition, opinion, or diagnosis” 1) “was made at or near the 

time by—or from information transmitted by—someone with knowledge;” 2) “was kept in the 

course of a regularly conducted activity of a business,” and 3) “making the record was a regular 

practice of that activity.” Rule 803(6). Not every record kept by a business qualifies as a business 

record for purposes of the hearsay exception; rather only those records “considered trustworthy 

because they are the product of ‘systematic checking, by regularity and continuity which produce 

habits of precision, by actual experience of business in relying upon them, or by a duty to make an 

accurate record as part of a continuing job or occupation.’” Lion Oil Trading & Transp., Inc. v. Statoil 

Marketing & Trading (US) Inc., 2011 WL 855876, *6 (S.D.N.Y. Feb. 28, 2011) (the PowerPoint slides, 

letters, and memoranda at issue were “unique responses to unusual or isolated events” and the 

proponent failed to show they were business records within the scope of Rule 803(6)).11

11 Admitting a document under the business records hearsay exception does not allow the admission 

of any “double hearsay” or “hearsay within hearsay” in the document, unless it too satisfies an

exception. In re Oil Spill by the Oil Rig “Deepwater Horizon,” 2012 WL 85447, *3 (E.D. La. Jan. 11, 

2012). The same also is true for other hearsay exceptions. U.S. v. Marguet-Pillado, 560 F.3d 1078, 1086 

(9th Cir. 2009) (reversing conviction where the US had evidence admitted under a hearsay exception, 

but failed to demonstrate an exception for each level of hearsay within the document). The US’s 

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Because the exception applies only to records considered trustworthy on account of systematic 

checking or the like, the Sixth Circuit recently rejected the claim that all emails are business records:

An email is not a business record for purposes of the relevant hearsay exception simply 

because it was sent between two employees in a company or because employees regularly 

conduct business through emails; such evidence alone is insufficient to show that the email 

is a record, made as ‘a regular practice’ of the company, Fed. R. Evid. 803(6)(C), and that 

‘the record was kept in the course of a regularly conducted activity of a business,’ id. at 

803(6)(B). ‘[I]t would be insufficient to survive a hearsay challenge simply to say that since 

a business keeps and receives e-mails, then ergo all those e-mails are business records falling 

with the ambit of Rule 803(6)(B).’ United States v. Cone, 714 F.3d 197, 220 (4th Cir. 2013). If 

that were the case, then every single email sent within any company would fall within the 

exception. This result would obviate the entire purpose of the business records exception, 

which is designed for a limited category of records—namely those that are regularly 

produced as a part of a company’s business activities.

U.S. v. Daneshvar, 925 F.3d 766, 777 (6th Cir. 2019).

12 Except for certifications from records 

custodians for certain financial institutions, three certifications from purported records custodians 

relating to purported Backpage ads, and an affidavit in support of a video, the US makes no effort, 

and presents no evidence, to establish that any exhibits it seeks to admit under the business records 

exception satisfy the requirements of the exception. As discussed below, even as to the three

certifications relating to ads, they are deficient, the proposed exhibits relating to them are 

objectionable, and the Court should not admit them notwithstanding the certifications. 

F. Admissions of Party-Opponents. The US seeks to admit 73 exhibits and attachments as nonhearsay admissions of party opponents under Rule 801(d)(2)(A), which says statements “offered 

against an opposing party and” “made by the party in an individual or representative capacity” are 

not hearsay. Although the US identifies dozens of exhibits as purported admissions, it fails to 

identify any statements in those documents that are admissions or which Defendant made each 

purported admission. The US also fails to state how any of the purported admissions relate to any 

charged offense. Moreover, the US presents no evidence to establish the out-of-court declarants 

whose purported admissions the US seeks to admit were competent to make the purported 

proposed exhibits are replete with multiple levels of hearsay—an issue the US ignores. 

12 Accord In re Oil Spill, 2012 WL 85447 at *3 (“[c]learly, there is no across-the-board rule that all

emails are admissible as business records;” rather “a custodian or qualified witness must attest 

that these conditions [under Rule 803(6)] have been fulfilled—which certainly requires an email- by-email inquiry”). See also Park W. Radiology v. CareCore Nat. LLC, 675 F. Supp. 2d 314, 331 

(S.D.N.Y. 2009) (“The Court holds that the ERMI Business Plan Document is hearsay and not 

admissible under the business records exception to the hearsay rule because it is a unique 

document not kept in the regular course of business.”).

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admissions. Thomas v. Stone Container Corp., 922 F. Supp. 950, 957 (S.D.N.Y. 1996) (“the proponent 

of an admission by a party opponent must establish the declarant’s competence; office or plant 

gossip does not become admissible simply because it is put into the mouth of someone whose 

statements are not subject to hearsay objection”) (citing Litton Systems, Inc. v. American Telephone &

Telegraph Co., 700 F.2d 785, 816-17 (2d Cir. 1983)), cert. denied, 464 U.S. 1073 (1984).

13

G. Compliance with Other Rules of Evidence. The Court should reject the US’ invitation to 

make sweeping determinations of admissibility using the US’ broad categorizations of evidence, 

without specifically evaluating each individual exhibit under the Rules of Evidence. Curtin, 489 F.3d 

at 958. Even if the US establishes that certain of its proposed exhibits could be admitted under Rules 

801 or 803, admissible exhibits must also comport with the other Rules of Evidence. For example, 

an admissible exhibit must be relevant (R. 401) and substantially more probative than prejudicial, 

confusing, misleading, wasteful, or cumulative (R. 403). An admissible exhibit must be authentic (R. 

901), complete (R. 106), and cannot contain hearsay (R. 802) (unless subject to an exception). The 

witness through whom an exhibit is admitted must lay the proper foundation and be competent to 

testify to the exhibit (Rs. 601 & 602). The US makes no effort to demonstrate its proposed exhibits 

satisfy these other rules—and a great deal of certainly them do not. Indeed, even if the US could lay 

an appropriate foundation for its proposed exhibits under Rules 801 or 803, the Court nonetheless 

will be required to exclude many of them due to problems such as hearsay on hearsay, undue 

prejudice with little or no probative value, improper lay opinions, and improper invasions on the 

Court’s right to instruct the jury on the law. 

IV. THE MOTION IGNORES MYRIAD CONFRONTATION CLAUSE ISSUES. 

Even if an out-of-court statement survives a hearsay challenge, a defendant still has a Sixth 

Amendment right to confront his or her accusers. The Confrontation Clause provides an absolute 

bar to the admission of testimonial out-of-court statements unless certain conditions are met. 

Crawford, 541 U.S. at 68. Crawford holds a declarant’s “testimonial” out-of-court statement is not 

admissible under the Confrontation Clause unless (1) the declarant testifies, id. at 53-54, (2) the 

13 See also Weinstein & Berger, Weinstein’s Federal Evidence, § 602.02 (2d ed. 2004) (“A witness may 

testify only about matters on which he or she has first-hand knowledge. The witness’s testimony 

must be based on events perceived by the witness through one of the five senses.”).

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defendant had a prior opportunity for cross-examination and the declarant is unavailable, id. at 54, 

or (3) the evidence is admitted for purposes other than establishing the truth of the matter asserted, 

id. at 59 n. 9. The Confrontation Clause cannot be satisfied by the US’ mere assurances of reliability. 

Rather, the Confrontation Clause “commands, not that evidence be reliable, but that reliability be 

assessed in a particular manner: by testing in the crucible of cross-examination.” Id. at 61. The Ninth 

Circuit reviews de novo a trial court’s findings about whether proffered evidence violates the 

Confrontation Clause. U.S. v. Bustamante, 687 F.3d 1190, 1193 (9th Cir. 2012).

Here, the US seeks to admit hundreds of documents and attachments without foundational 

testimony from knowledgeable witnesses, to preclude the defense from confronting its witnesses. 

Defendants not only have the right to confront the witnesses about the authenticity of the 

documents, but also to confront them about the content of any testimonial statements in the 

proposed exhibits. Crawford, 541 U.S. at 61. The US’ attempt to present much of its case through 

testimonial documents, without giving the defense any opportunity to confront those who 

participated in the communications, plainly violates the Sixth Amendment. 

V. THE FERRER/BACKPAGE EXHIBITS ARE NOT SELF-AUTHENTICATING. 

In its Motion, the US argues many of its proposed exhibits are self-authenticating because they 

were produced either by its lead cooperator, Ferrer, or by Backpage.com, LLC. Dkt. 931 at 6-7. 

Once again, the US conflates Backpage and Ferrer with Defendants. Backpage and Ferrer are not 

parties to this proceeding, so AT Engine Controls Ltd. v. Goodrich Pump & Engine Control Sys., Inc., 637 

Fed. App’x 645, 649 n.7 (2d Cir. 2016), which dealt with the authentication of documents produced 

by parties to a lawsuit, is inapposite. While John Paul Mitchell Systems v. Quality King Distributors, 106 F. 

Supp. 2d 462, 473 (S.D.N.Y. 2000), dealt with documents produced by third parties (in civil 

litigation), the US fails to cite the more pertinent part of the decision, which held documents 

produced by one party’s paid informant would not be assumed to be authentic:

The second set of CDM documents—produced by JPMS’s paid informant—are excluded 

due to lack of authentication. At least for the purposes of this preliminary injunction 

hearing, JPMS has offered inadequate evidence of how these documents were obtained. 

Several of the documents appear to bear the letterhead of CDM and Robert Seibel’s law 

firm. Several also bear the signatures of certain of the defendants invoking the Fifth 

Amendment privilege. Still, the Court has been given no letterhead to compare with these 

documents. Most importantly, the paid informant never testified to their authenticity. Adequate proof of the authenticity of this set of documents [] has not been offered as of 

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this date and those documents are therefore not admitted into evidence.

Id. Moreover, the US cites no authority holding documents produced in other litigation can be 

treated as self-authenticating in a separate criminal prosecution against different parties. 

The Court should hold the US to the standards imposed by Rule 901 and require the

authentication of each individual document it seeks to admit. Rule 901(b) allows authentication 

through “[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics 

of the item, taken together with all the circumstances,” but does not allow that to happen absent a 

witness. At a minimum, someone must testify about the indicia of authenticity in the documents. At 

trial, Ferrer might be able to authenticate some of the US’ proposed exhibits, but, for example, he 

likely cannot authenticate emails purportedly received by Defendants from others. 

Finally, there is good cause to be dubious about the authenticity of the US’ exhibits, regardless of 

whether they “appear” authentic. Counsel have examined the metadata from a small number of the 

US’ proposed exhibits and the metadata shows: a) one of the documents was modified by the US

after the documents originally were produced by Ferrer/Backpage in 2017 and b) two of the 

documents were modified by Ferrer’s counsel five months after the commencement of this case.14

The metadata for the US’ proposed Exh. 5 shows the document was last modified on January 9, 

2018, and was last saved by a member of the prosecution team. The metadata for the US’ proposed 

Exhs. 23 and 101 shows both documents were last modified on September 20, 2018, and were last 

saved by Jonathan Baum (Ferrer’s criminal counsel). Given this evidence of modifications to the 

exhibits (whether inadvertent or intentional), the Court should not excuse the US from providing 

evidence of authenticity and holding it to its burden under Rule 901. Defendants cannot be denied 

the opportunity to cross-examine the US’ witnesses about issues of the sort raised by the metadata 

in the US’ proposed exhibits. See Crawford, 541 U.S. at 61.

VI. OBJECTIONS TO PARTICULAR CATEGORIES OF DOCUMENTS. 

A. “Letter Correspondence.” The US seeks to admit letters to Backpage, Larkin, and Lacey 

asserting numerous Backpage ads related to prostitution or sex trafficking and urging them to 

discontinue accepting all adult-oriented advertising. Those letters plainly are improper and 

14 The Court can examine the metadata by opening the documents in Word and PowerPoint and 

using the File|Info command in PowerPoint or the File|Properties command in Word. 

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inadmissible. First, the US says it seeks to admit the letters to show “notice, knowledge, state of 

mind, intent, and pattern of communication,” Dkt. 931 at 16, not for the truth of their statements, 

but the US plainly seeks to do what it denies. Unless the statements in the letters are true, the letters 

are utterly irrelevant. If the claims in the letters about prostitution are untrue, Defendants’ state of 

mind about those letters is irrelevant. Second, hearsay aside, even testimony from the letters’ authors 

about their statements in the letters would be improper because none of the statements relate to the 

50 charged ads, and the authors do not have personal knowledge of the charged ads, the persons 

who posted them, the persons advertised in them, or the activities in which they were engaged, see

Dkt. 946 at 13; supra Section II, n. 5, much less personal knowledge about Defendants’ knowledge or 

intent with respect to those ads, those persons, or their activities. Third, the letters are replete with 

hearsay, hearsay on hearsay, statements without foundation, improper lay opinions, and statements 

that would improperly invade the Court’s right to instruct the jury on the law. The letters plainly 

would be immensely prejudicial and of little or no probative value and should be excluded under 

Rules 401 and 403. See Curtin, 489 F.3d at 958.

Moreover, in seeking to admit the letters, the US ignores the Constitutional principle that speech 

must be presumed to be protected unless and until the US proves otherwise. The burden of proving 

speech is unlawful always falls to the US. See U.S. v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 816 (2000) 

(“When the US restricts speech, the US bears the burden of proving the constitutionality of its 

actions.”); id. at 818 (“When First Amendment compliance is the point to be proved, the risk of 

nonpersuasion...must rest with the US, not with the citizen.”); Bd. of Trs. v. State Univ. of N.Y. v. Fox, 

492 U.S. 469, 480 (1989) (“the State bears the burden of justifying its restrictions”). The US cannot 

meet its burden to prove that each Defendant knew, at the time of publication, that the 50 charged 

ads related to unlawful activity conducted by a business enterprise, but nonetheless chose to publish 

the ads to facilitate the enterprises’ unlawful activities, by offering the opinions of third parties 

(whether in-court or out-of-court) that many or most of the millions of adult-oriented Backpage ads 

looked like they related to unlawful activity—regardless of how fervently the third-parties held such 

beliefs or even if they had actual knowledge some other ad or ads did relate to unlawful activity. 

Moreover, the letters’ authors called on Backpage to discontinue all adult advertising because some 

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adult advertising related to unlawful conduct—but adult-oriented advertising is unquestionably 

protected by the First Amendment and Backpage had no obligation to censor First Amendment 

protected ads in an effort to suppress ads relating to unlawful activity. Ashcroft v. Free Speech Coalition, 

535 U.S. 234, 255 (2002); accord Packingham v. North Carolina, 137 S. Ct. 1730, 1738 (2017) (“The 

government may not suppress lawful speech as the means to suppress unlawful speech. Protected 

speech does not become unprotected merely because it resembles the latter.”). The US clearly seeks 

to use these letters, and the testimony of various witnesses, to contend Backpage was obligated to 

suppress lawful speech as the means to suppress unlawful speech—something the Constitution 

clearly forbids. The US’ effort to present evidence, under whatever guise, that “anyone could tell,” 

just by looking, that dating ads, massage ads, or escort ads containing no offers of sex for money 

actually related to illegal prostitution is just a transparent effort to indirectly get to the same 

unconstitutional endpoint—the suppression of all adult advertising. The Travel Act would fail 

Constitutional muster, as applied, if, to avoid liability for facilitating unlawful activity, a publisher 

must suppress facially lawful ads that might relate to unlawful activity to avoid the threat of 

prosecution. E.g., Backpage.com v. Cooper, 939 F.Supp.2d 805, 829 & (M.D. Tenn. 2013) (enjoining on 

First Amendment grounds the enforcement of a statute criminalizing selling or offering to sell an ad 

that “would appear to promote a commercial sex act with a minor” because otherwise “print and 

online media across the country could face the choice Backpage.com has described between 

foregoing the right to publish third-party content and risking felony charges”) (emphasis in original).

B. “Intra-Backpage” PowerPoint Slides. The US seeks to admit at least five sets of

PowerPoint slides as co-conspirator statements made by Backpage or by offering them not for their 

truth but to show “Backpage’s state of mind”—but Backpage is not on trial. Dkt. 931 at 14.

Moreover, the Motion says nothing about the slides, except to claim they “bear Backpage’s name 

and/or logo.” Id. The US does not prove the slides were prepared by Backpage or contain statements 

made by Backpage. The US presents no evidence of a conspiracy (beyond saying Backpage plead 

guilty to conspiracy to commit money laundering), nor any evidence Defendants participated in that

purported conspiracy, that the slides contain statements made in the course of the purported 

conspiracy, or that the slides contain statements in furtherance of the purported conspiracy. 

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The US not only fails at a general level to provide any foundation for the slides, but the slides

themselves disclose further flaws with the US’ theory. For example, two of the slide sets expressly 

say they were not prepared by Backpage, which made no representations regarding their accuracy. 

See Exhs. 3 and 120, at slide 2 (“[t]his confidential management presentation...has been prepared by 

Duff & Phelps Securities, LLC with input from the management of Backpage.com, LLC” and 

“neither Backpage nor any of its officers, directors, employees, controlling persons, agents, or 

advisers...makes any express or implied representation or warranty as to the accuracy or 

completeness of the information contained herein”). Likewise, the metadata for two other slide sets 

say they were prepared by Duff & Phelps. See Exhs. 2 and 4 (“Author: David Prekop”; Company: 

Duff & Phelps”).15 One slide set does not bear Backpage’s name or logo and appears to have been 

prepared for New Times, Inc. (Backpage’s former ultimate parent company) for the financing of a 

proposed merger with the Village Voice newspaper chain. See Ex. 5.16 The document cannot 

conceivably be construed as a statement of Backpage, much less a statement relating to or in 

furtherance of its purported money laundering conspiracy, and cannot be admitted against 

Defendants. Further, the US claims it may seek to admit these slides not for the truth of their

statements, but fails to explain how the slides would be relevant if not offered for the truth.

C. “Performance Appraisals.” The US seeks to admit nine Word files it claims are 

“performance appraisals” of employees “supervised by [Defendants] Padilla and Vaught.” Dkt. 931 

at p. 15 (referring to Exhs. 141 (two files) & 458-470). The documents do not appear to have been 

prepared by Defendants Padilla or Vaught, nor do they either purport to be or appear to be 

“performance appraisals” in the usual sense of the term. Rather, they appear to be quick notes of an 

unidentified person’s or persons’ perceptions of the moderation skills of several Backpage 

employees, as observed on a given day. The US obviously has no idea who prepared these 

documents, as it says “Padilla and Vaught were employees at the time they completed the 

performance evaluations,” but two sentences later says “to the extent the performance appraisals 

15 If the US shifts and claims these documents are admissible as statements of Backpage’s “agent,” 

that position nonetheless would fail for the reasons discussed in Section III(B). 

16 As discussed above, the metadata for this proposed exhibit shows the document, which is dated 

2006, was last modified in January 2018 by a former member of the prosecution team. 

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were prepared by other Backpage employees,” they would be admissions of Backpage’s agent. Id. 

The US claims the documents can be admitted as admissions by a party opponent or as coconspirator statements (apparently under the theory that Padilla and Vaught prepared the 

documents), as admissions of Backpage’s “agent” (whomever that might have been, if not prepared 

by Padilla or Vaught), or as business records. Despite advancing four theories for the admission of 

the documents, the US fails to establish they are admissible under any of the four, for all the reasons 

discussed above in the sections pertaining to each theory. 

D. “Consulting Firm Documents.” The US claims documents prepared for “Backpage and 

related entities” by consulting firms (e.g., BDO and Duff and Phelps) constitute statements of 

Backpage’s “agent” “because the firms were hired by Backpage to perform work related to its 

business operations.” Dkt. 931 at 15. The US’ argument widely misses the mark because, as discussed 

above, independent contractors do not qualify as agents under Rule 801(d)(2)(D), the US failed to 

show the firms could legally bind Backpage, and the US identifies no statements on subjects where 

the consultants could bind Backpage—much less bind each Defendant. 

E. Bank Records. The US seeks to pre-admit “(a) records from Backpage-related bank 

accounts; and (b) records from Defendants’ personal bank accounts,” under Rule 803(6). Dkt. 931

at 17-18. The US does not offer these records as an exhibit to the Motion, but they apparently are 

listed at Dkt. 889-1, which consists of 9 pages of a table, with somewhere between 20 and 25 exhibit 

entries per page, with each entry apparently between one and one hundred pages (or more). During 

the parties’ meet and confer, the US would not explain the relevance of these exhibits, to which 

Defendants they relate, or how they will be used at trial. See Thomas Decl. at ¶ 8. At this point, the 

relevance of the avalanche of bank records is entirely unclear, and this category of exhibits cannot 

be admitted pretrial, as the Court cannot analyze whether such exhibits comport with Rules 401 and 

403. See U.S. v. Waters, 627 F.3d 345, 357 (9th Cir. 2010) (“The district court had the responsibility 

to read every page of the articles in order properly to understand their contents before ruling on 

their admissibility. Its failure to do so means that it could not have properly weighed the impact of 

the articles under Rule 403.”). The money laundering counts identify specific transactions among 

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exactly twenty financial institutions. See Counts 53-100.17 The listed bank documents in Dkt. 889-1 

go well beyond the twenty, and the records from those twenty institutions do not appear limited to 

the specific money laundering transactions. Accordingly, the relevance of the offered documents is 

not clear.18 Bank records cannot be admitted until “foundational showings of authenticity and

relevancy have been made.” U.S. v. Soulard, 730 F.2d 1292, 1298 (9th Cir. 1984) (emphasis added). The 

US failed to meet that burden in its Motion or during the meet and confer. Accordingly, the bank 

records should not be admitted at this time. 

F. Purported “Meeting Agendas.” The US says “it is anticipated that Ferrer will” testify and 

lay a business record foundation for “Backpage-related Meeting Agendas” and, based on that 

“foundational testimony,” the US “will seek to admit” the agendas pursuant to Rule 803(6). Dkt. 

931 at 18 (referring to Exhs. 14, 21, 23, 30, & 101). The US thus is not asking for a pre-trial ruling 

on these documents and the Court should not provide one, particularly as the US has not established 

the purported agendas satisfy the business records exception. See Rule 803(6)(D) (conditions for 

business record exception to hearsay rule must be “shown by the testimony of the custodian or 

another qualified witness, or by a certification” prior to admission); U.S. v. Aiyaswamy, 2017 WL 

1365228, at *2 (N.D. Cal. Apr. 14, 2017). After the US presents its foundational testimony and offers 

the documents for admission, Defendants will raise any evidentiary objections they may have.

Moreover, although some of the purported meeting agendas are labelled as such, and include 

dates and participants (see Exhs. 14 and 21), some of the documents plainly are not “meeting agendas”

and others may well not be. For example, the US’ exhibit list (Dkt. 931-1) described Exh. 23 as 

“Agenda, 12/20/2007,” but the Bates pages (DOJ-BP0004602308-DOJ-BP-0004602331) are a 24-

page “2008 Budget and Business Plan for Backpage.com”—plainly not a “meeting agenda.”19

17 The entities identified in these counts are: Ad Tech, B.V., Ally Bank, Arizona Bank and Trust, 

Bank of America, BMO Harris, Branch Banking and Trust, Charles Schwab, Fidelity Title, Industrial 

Property Trust, Johnson Bank, Lincoln National Life, National Bank of Arizona, Primus 

Trust/K&H Bank, SB, Stewart Title, Strategic Storage Trust, TD Ameritrade, UBS Financial, US 

Bank, and Wells Fargo. See id. 18 Moreover, the records in Dkt. 889-1 are not limited to “Backpage-related” accounts or 

Defendants’ personal accounts, as the US claims. Dkt. 931 at 17. They also include, e.g., statements 

from the personal money market accounts of Margaret Larkin, who is not a defendant.

19 As discussed above, this document’s metadata shows the prosecution modified it in January 2018. 

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Likewise, Exhs. 30 and 10120 are not labelled as “meeting agendas,” neither included a list of 

participants, and both were undated.21 On their face, either could just be someone’s notes to 

themselves. These documents underscore the problems posed by the US seeking to pre-admit 

hundreds of exhibits without presenting appropriate foundational information and evidence on an 

exhibit-by-exhibit basis—issues that are only compounded by inaccurate exhibit descriptors. 

G. Purported “Google Analytics” Reports.” The US says “it is anticipated that Carl Ferrer 

and/or Dan Hyer” will provide testimony about documents the US calls “Google Analytics” reports 

and, “based on this foundational testimony, the [government] will seek to introduce” some of the 

reports. Dkt. 931 at 18-19 (referring to Exhs. 311, 312, 313 & 314). Again, the US does not ask for 

a pre-trial ruling on these documents and the Court should not provide one. Rule 803(6)(D). 

Defendants will evaluate the exhibits and make any evidentiary objections after the US presents any 

foundational testimony and offers the documents for admission.

22

H. Spreadsheet of News Articles Discussing Backpage. The US says “it is anticipated that 

Carl Ferrer and/or Dan Hyer” will provide testimony about a document it calls “Backpage Stories” 

and, “[b]ased on this foundational testimony, [it] will seek to introduce” Exh. 260 as a business 

record under Rule 803(6). Dkt. 931 at 20. The US does not ask for a pre-trial ruling on Exh. 260 and 

the Court should not provide one, particularly as the US has not established the spreadsheet satisfies 

the business records exception. Defendants will evaluate the exhibit and make any evidentiary 

objections after the US presents any foundational testimony and offers it for admission. Defendants 

note, however, that much of the information in Exh. 260 is embedded hearsay and, even if the US

provides a foundation for the spreadsheet itself as a business record, none of the embedded hearsay 

could be admitted on that ground. The headlines, links to publications/sites with embedded 

headlines, URLs with embedded headlines, and capsule summaries, among others, all are hearsay 

(often including embedded hearsay) for which there is no exception. Moreover, the document is 

highly prejudicial, and of little or no probative value, so also should be excluded under Rule 403. 

20 As discussed above, the document’s metadata says Ferrer’s lawyer modified it on Sept. 20, 2018. 

21 The US’s Exhibit List shows no date for Exh. 30 but somehow shows a date for Exh. 101.

22 Defendants also question the relevance of one of the proposed exhibits, Exh. 314, which 

relates not to www.backpage.com, but to an unrelated website (www.adultsearch.com).

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I. Ads from Wayback Machine, Unchartered Inc., and Exh. F (Dkt. 916-6). The US seeks

to admit pretrial 47 pages of documents from the Internet Archive and its “Wayback Machine”—

mainly purported historical Backpage ads. Dkt. 931 at 20-22; Exh. D (Dkt. 916-4, under seal). The 

Court should exclude this exhibit as inaccurate, potentially misleading, and offered out of context. 

See, e.g., Rules 106, 401, & 403. First, the exhibit plainly is not an accurate or fair representation of 

the purported ads on the date the Internet Archive says they were captured. The stated capture dates 

all were in 2016 and 2017, but every ad is emblazoned with the April 6, 2018, notice of the Backpage 

website seizure. The Internet Archive’s affiant says images displayed with the captured ads may or 

may not have been displayed on the date the ads were captured—and that clearly is the case here:

“The date assigned by the Internet Archive applies to the HTML file but not to image files linked 

therein. Thus images that appear on a page may not have been archived on the same date as the 

HTML file....Attached hereto as Exhibit A are true and accurate copies of printouts of the Internet 

Archive’s records of the HTML files.” Id. at p. 1 (emphasis added). Even ignoring the seizure notices, 

we cannot know whether the captured ads existed in the form depicted in Exh. D, whether on the 

date the HTML files (i.e. the text) were captured or at any other time. The records custodian only 

certified that the accuracy of the HTML files (i.e. the text), not the images. 

More generally, the Wayback Machine, an Internet “library” that browses the web and attempts 

to capture and store webpages (or pieces of webpages) as of certain times, is not reliable. As the 

Internet Archive acknowledges, pages can be removed or excluded from its archive, “[n]ot every

date for every site archived is 100% complete,” and the pages captured often include “broken pages 

[and] missing graphics.” See Using the Wayback Machine, https://help.archive.org/hc/enus/articles/360004651732-Using-The-Wayback-Machine (last accessed June 5, 2020). “The 

Wayback Machine tool was not designed for legal use.” Id. (emphasis added). See Transcap Assocs., Inc. v.

Euler Hermes Am. Credit Indem. Co., 2009 WL 3260014, at *7 (N.D. Ill. Oct. 9, 2009) (court “troubled” 

by “reliance on the way back machine” as “the Internet Archive warns of missing links and images 

in webpages that may be accessed through the way back machine”). At best, the Internet Archive

accurately depicts the text of a web page, as captured at a given moment. A frozen moment can be

misleading, however, particularly as any given Backpage ad could have changed over time and the

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evolution of an ad (or its subsequent deletion by Backpage) could be important to its assessment. 

The authorities the US cites raise this very concern. For example, in Martins v. 3PD, Inc., 2013 WL 

1320454, *16 (D. Mass. Mar. 28, 2013), the court admitted captures from the Wayback Machine 

only after finding they were historically accurate and identical to what actually appeared on the 

website, which was static. Id. (“More fundamentally, the 3PD website appears to have remained 

substantially identical since it was created sometime in 2006–2007. Certainly, all of the substantive 

content quoted above from the page itself has remained identical, save for slight changes in the 

number of deliveries and delivery teams.”). The Court should not permit the US to use Exh. D, 

which unquestionably does not accurately depict ads as they ran on the Backpage website. 

Alternately, if the Court permits the use of Exh. D, it should: a) require the US to redact the 

prejudicial seizure notices from the ads and b) instruct the jury the exhibit may not accurately depict 

the ads as they ran on the website. 

The US tries to circumvent the evidence rules through judicial notice of its proposed exhibit, 

Dkt. 931 at 2, but judicial notice would only anoint these inaccurate, unreliable, and potentially 

misleading historical ad captures as accurate portrayals of the ads. See Khoja v. Orexigen Therapeutics, 

899 F.3d 988, 999 (9th Cir. 2018) (“Just because the document itself is susceptible to judicial notice 

does not mean that every assertion of fact within that document is judicially noticeable for its 

truth.”); see also Nassar v. Nassar, 2017 WL 26859, *5 (M.D. Fla. Jan. 3, 2017) (Internet Archive 

website “makes no warranty or representation regarding the accuracy, currency, completeness, 

reliability, or usefulness of [Wayback Machine] content”). At most, the Court could take judicial 

notice that the US’ proposed exhibit is an inaccurate, unreliable, and potentially misleading version

of certain ads, as captured by the Wayback Machine. Judicial notice cannot be taken regarding the 

accuracy of the content of a given document, yet that is exactly what the US proposes.

Likewise, the US offers no authority or analysis that ads from Uncharted Software, Inc. are 

admissible or have ever been accepted by a court. Dkt. 931 at 22. The US offers no argument that 

the ads in Exh. E (Dkt. 916-5, under seal) are relevant, more probative than prejudicial, authentic, 

reliable, or complete. See, e.g., Rules 106, 401, 403, & 901. Moreover, the purported business record 

certification for the Uncharted Software records, Exh. E, does not provide the required foundation 

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for business records under Rule 803(6). The certification says Uncharted had possession of the 

records, but the certification’s passive voice sentences provide no information about how these 

records came to be created, how Uncharted came to possess them, or why they should be deemed 

trustworthy. The certification uses as circular and unintelligible language like “these records were 

created by the regularly conducted activity as a regular practice.” The certification does not: say the 

records were created by someone with knowledge of the facts reflected in the records; identify the 

business that created the records; say the records were kept in the course of a regularly conducted 

activity of the business; or say making the records was a part of a regular practice of the activity of 

the business. Without such information, the Court has no basis to assess whether the declarant was 

competent or the records are admissible under Rule 803(6). 

Finally, as to Exh. F (Dkt. 916-6, under seal), Ferrer may be qualified to certify certain business 

records for Backapge.com, LLC, but Defendants dispute his ability to certify the particular records 

he purported to certify here. Ferrer executed his certification on January 15, 2020. The records he 

purported to certify appear to be printouts of documents the US produced to Defendants in 

November 2018, which themselves appear to be printouts from the Backpage website from January 

and February 2018. Unless Ferrer provided these documents to the US in early 2018, a time the US 

claims he was not cooperating, the US apparently obtained documents from a source other than 

Ferrer, produced them to Defendants, and then later asked Ferrer to certify them as business 

records—but, if that is so, the documents are not business records of Backpage, but litigation 

materials of the US. The Court should not admit Exh. F unless the US establishes, with admissible 

evidence, that Ferrer is competent to certify these particular records—rather than “certifying”

records given to him by the US that he has no basis to certify. 

J. SA Fitchner’s Irrelevant 2015 Video Recording. The US seeks to admit a video 

“demonstrat[ing] how the Sacramento Backpage adult-escort and buy-sell-trade sections looked and 

operated at the time of the recording,” March 6, 2015. Dkt. 931 at 23. SA Fitchner’s declaration, 

Exh. G (Dkt. 916-7, under seal), acknowledges his video has no relation to this prosecution, but was 

created in the California Attorney General’s 2013 investigation of Backpage. Dkt. 916-7. The video 

depicts a “sting” Fitchner conducted, which showed little more than a) his adult ad attracted more 

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responses than his sofa ad and b) Backpage promptly deleted both ads after he called Backpage 

claiming the adult ad related to prostitution (without mentioning the sofa ad). The video has no 

relation to the allegations in the indictment, the charged ads, or any purported victim. Rather, the 

video is irrelevant to the charges, is extremely prejudicial since it relates to a different criminal 

investigation, and should be excluded under Rules 401 and 403. If the Court admits the video, it 

should require the US to inform the jury of the ultimate outcome of the California investigation—

two different judges in two separate cases ruled Backpage lawfully published adult ads and all the 

content displayed in the video. See People v. Ferrer, 2016 WL 7237305 (Sup. Ct. Sacramento Cty. Dec. 

9, 2016); People v. Ferrer, No. 16FE024013 (Sup. Ct. Sacramento Cty. Aug. 23, 2017).

VII. LACEY’S COUNSEL’S DOCUMENTS SHOULD NOT BE ADMITTED.

Mr. Lacey maintains these exhibits are privileged and were wrongly found unprivileged. 

Consequently, they should not have been released to the US and should not be admitted at trial.

VII. THE “SUMMARY” EXHIBITS CANNOT BE ADMITTED PRETRIAL.

The US seeks to pre-admit three purported “summary” exhibits: (1) a set of 34 flowcharts 

purporting to depict the transactions at issue in the indictment’s money laundering counts; (2) charts 

reflecting annual revenues for certain Backpage-related entities and the annual earnings of certain 

Defendants; and (3) a chart reflecting Backpage’s gross revenues by ad category over a two-year time 

period. See Dkt. 931 at 24-25, Dkt. 977-1 at 2. None of these exhibits are attached to the Motion

and none appear on the US’ Exhibit List. See Ex. A. As a preliminary matter, given the US’ stated 

intention of offering the underlying records into evidence at trial, Dkt. 931 at 25, none of the 

purported “summaries” are admissible as evidence and the Motion should be denied on this basis 

alone. U.S. v. Wood, 943 F.2d 1048, 1053–54 (9th Cir. 1991) (“charts or summaries of testimony or 

documents already admitted into evidence are merely pedagogical devices, and are not evidence 

themselves”). In fact, the Ninth Circuit has “long held that such pedagogical devices should be used 

only as a testimonial aid, and should not be admitted into evidence or otherwise be used by the jury 

during deliberations.” Id. at 1053. Simply put, the US’ proposed summaries are nothing more than 

demonstratives, and there is no “evidence” for the Court to pre-admit here.23

23 The US says it “will produce any remaining summary exhibits to Defendants within a reasonable 

time prior to trial,” Dkt. 931 at 24-25, so there is nothing to be done as to those exhibits now.

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Nor should the Court now authorize the blanket use of summary exhibits. “A proponent of a 

summary exhibit must establish a foundation that (1) the underlying materials on which the summary 

exhibit is based are admissible in evidence, and (2) those underlying materials were made available 

to the opposing party for inspection.” Amarel v. Connell, 102 F.3d 1494, 1516 (9th Cir. 1996) (as 

amended Jan. 15, 1997). The US has not met this standard. First, the US refuses to produce the 

underlying materials purportedly summarized in the revenue and income charts. Thomas Decl. at ¶ 

10; Dkt. 977-1 at 2. When Defendants requested disclosure of this information during the meet and

confer, the US refused, saying only that it was tax return information and refusing to further clarify. 

Thomas Decl. at ¶ 10. Neither Defendants nor the Court can meaningfully evaluate the admissibility 

of the US’ proposed charts without the underlying records. Nonetheless, without explanation, the 

US demanded that Defendants file a motion to obtain access to the records underlying the US’

purported summary chart. Id. The Court should reject the US’ misguided attempt to shift its burden 

under Rule 1006 to Defendants. See Amarel, 102 F.3d at 1516 (“The purpose of the availability 

requirement is to give the opposing party an opportunity to verify the reliability and accuracy of the 

summary prior to trial.”) (cleaned up); U.S. v. Miller, 771 F.2d 1219, 1238 (9th Cir. 1985) (summary 

was not admissible under Rule 1006 because the US “failed to provide appellants with a copy of the 

underlying documents prior to the introduction of the summary”).

Second, as to all of the purported summary exhibits, the US fails to establish the underlying 

materials are admissible. Instead, the US merely asserts in conclusory fashion “the documents on 

which the [three] exhibits are based—intra-Backpage records, the records from Backpage’s many 

bank accounts, and the records from Defendants’ bank accounts—are themselves admissible,” 

without any further explanation or argument. Dkt. 931 at 25.24 The US does not even mention the 

tax return information it cited during the meet and confer. Id. Such conclusory statements do not 

support admission or use of summary charts. See Soulard, 730 F.2d at 1300 (“The trial court, out of 

the presence of the jury, should carefully examine the summary charts to determine that everything 

contained in them is supported by the proof.”). In any event, the US indicates it “intends to offer 

24 None of these records is on the US’s exhibit list. See Ex. A. To the extent these records are of the 

same nature as the exhibits that the US seeks to pre-admit, the US has not established their 

admissibility for the same reasons discussed elsewhere in this opposition.

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[the underlying documents] into evidence at trial.” Dkt. 931 at 25. Thus, the Court will have an 

opportunity to determine admissibility then and there is nothing for the Court to do now.25

Third, the 34 proposed “summary” flowcharts do not comply with Rule 1006. The US describes 

the charts as summaries of “how Backpage-generated proceeds flowed through various entities” 

named in the indictment. Mot. at 24. In fact, each chart is labeled as “Flowchart COUNT XX,” with 

a reference to a specific money laundering count(s). The inclusion of the words “Count X” on the 

charts make them akin to closing argument slides, not Rule 1006 summary exhibits. They should be 

precluded as improper argument and under Rule 403. Indeed, the charts do not summarize

voluminous records, but are demonstratives that apparently will summarize some analysis of the US’

witness Quoc Thai.26 While they might be appropriately used as demonstratives (if the references to 

specific counts are removed and depending on the testimony), there is no basis to pre-admit them 

or pre-authorize their use absent foundational testimony from a witness. See U.S. ex rel. Poong 

Lim/Pert v. Dick Pac./Ghemm, 2006 WL 568321, at *5 (D. Ak. Mar. 7, 2006) (“a flow chart that goes 

far beyond merely summarizing the contents of documents...is inadmissible under Rule 1006.”).

VIII. CONCLUSION.

For the foregoing reasons, the Court should deny the Motion in its entirety.

25 The US’s stated intent to offer the documents into evidence at trial only makes more bizarre its 

refusal to provide the unidentified “tax information” to Defendants. Of course, the US should not 

be permitted to introduce into evidence documents it refuses to give to Defendants in discovery.

26 The charts do not even purport to summarize “voluminous” records. Some relate to a single 

monetary transaction (e.g., for Counts 63-68). Others are visual representations of only a few wire 

transactions, money transfers, or checks (e.g., for Counts 78, 82, & 86-93, where each contain a 

visual depiction of seven transactions). Even the more complex charts contain relatively few 

transactions, not “thousands of thousands of pages” worth, as the US claims. 

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DEFENDANTS’ OPPOSITION TO MOTION IN LIMINE TO ADMIT EVIDENCE

RESPECTFULLY SUBMITTED this 31st day of March 2021,

BIENERT | KATZMAN PC

s/ Thomas H. Bienert, Jr.

Thomas H. Bienert, Jr.

Whitney Z. Bernstein

Attorneys for James Larkin

Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual (Jan. 2020) § 

II(C)(3), Thomas H. Bienert, Jr. hereby attests that all other signatories listed, and on whose behalf this filing is 

submitted, concur in the filing’s content and have authorized its filing.

LIPSITZ GREEN SCIME CAMBRIA LLP

s/ Paul J. Cambria, Jr.

Paul J. Cambria, Jr.

Erin McCampbell Paris

Attorneys for Michael Lacey

BIRD MARELLA BOXER WOLPERT 

NESSIM DROOKS LINCENBERG AND 

RHOW PC

s/ Ariel A. Neuman

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

Attorneys for John Brunst

FEDER LAW OFFICE PA

s/ Bruce Feder

Bruce Feder

Attorneys for Scott Spear

DAVID EISENBERG PLC

s/ David Eisenberg

David Eisenberg

Attorneys for Andrew Padilla

JOY BERTRAND ESQ LLC

s/ Joy Bertrand

Joy Bertrand

Attorneys for Joye Vaught

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3709425.1 CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE 

I hereby certify that on March 31, 2021, I electronically transmitted the attached document 

to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic 

Filing to the CM/ECF registrants who have entered their appearance as counsel of record. 

/s/ Toni Thomas 

Toni Thomas

Case 2:18-cr-00422-DJH Document 1139 Filed 03/31/21 Page 35 of 35