1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

GARY M. RESTAINO 

United States Attorney 

District of Arizona 

KEVIN M. RAPP (Ariz. Bar No. 014249, kevin.rapp@usdoj.gov) MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov) PETER S. KOZINETS (Ariz. Bar No. 019856, peter.kozinets@usdoj.gov) ANDREW C. STONE (Ariz. Bar No. 026543, andrew.stone@usdoj.gov) Assistant U.S. Attorneys 

40 N. Central Avenue, Suite 1800 

Phoenix, Arizona 85004-4408 

Telephone (602) 514-7500 

DAN G. BOYLE (N.Y. Bar No. 5216825, daniel.boyle2@usdoj.gov) Special Assistant U.S. Attorney 

312 N. Spring Street, Suite 1400 

Los Angeles, CA 90012 

Telephone (213) 894-2426 

NICOLE M. ARGENTIERI 

Acting Assistant Attorney General 

Criminal Division, U.S. Department of Justice 

AUSTIN M. BERRY (Texas Bar No. 24062615, austin.berry2@usdoj.gov) U.S. Department of Justice 

Child Exploitation and Obscenity Section 1301 New York Avenue, NW, 11th Floor 

Washington, D.C. 20005 

Telephone (202) 412-4136 

Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

 v. 

Michael Lacey, et al., 

 Defendants. 

CR-18-422-PHX-DJH 

UNITED STATES’ RESPONSE TO 

DEFENDANTS’ MOTION FOR A 

NEW TRIAL (Doc. 2009) 

Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 1 of 19
- 1 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

In “exceptional cases” where “the evidence preponderates heavily against the 

verdict,” courts may grant a new trial under Fed. R. Crim. P. 33(a). United States v. Rush, 

749 F.2d 1369, 1371 (9th Cir. 1984). The evidence comes nowhere close to meeting this 

standard—and Defendants’ Motion should be denied. 

I. The Rule 29 Grounds Do Not Support Defendants’ Rule 33 Motion 

In two conclusory sentences, Defendants “incorporate by reference” and assert that 

the bases of their Rule 29 motions support granting a new trial under Rule 33. Mot. at 1. 

This argument fails for the same reasons Defendants’ Rule 29 arguments fail. The jury 

heard 21 government witnesses and received over 400 government exhibits during the 34-

day trial. Docs. 1993, 1994. The witnesses included Backpage insiders Carl Ferrer, Dan 

Hyer, and Jess Adams; John Shehan from NCMEC; Brad Myles from the Polaris Project; 

Isaac Luria from the Auburn Theological Seminary; Mickey Hansen from American 

Express; Lin Howard from Arizona Bank and Trust; numerous police officers (Det. 

Murray, Lt. Griffin, Det. Fritze) and victims (B.L., A.B., J.S., N.F., A.C., A.B., A.S.W. 

(sister of a victim), J.T., M.L.); and former IRS-Criminal Investigation Special Agent 

Quoc Thai. Doc. 1994. The evidence showed that Defendants deliberately built Backpage 

into a massive prostitution advertising website, generated hundreds of millions of dollars 

from selling ads for illegal prostitution, and then laundered the proceeds through a complex 

web of domestic and foreign accounts. See generally United States’ Responses to the Rule 

29 Motions filed by Lacey, Spear, and Brunst. This evidence does not warrant the 

extraordinary remedy of a new trial under Rule 33. Rush, 749 F.2d at 1371. 

II. Defendants’ Discovery Arguments Do Not Support Dismissal or a New Trial 

 The United States incorporates by reference its response (Doc. 1990) to Defendants’ 

supplement regarding Ferrer’s emails with U.S. Postal Inspector Lyndon Versoza 

concerning the forfeiture phase of the trial. Doc. 1972. 

 Defendants next assert that the United States “refused . . . to produce nearly all the 

factual information developed during” a separate investigation of Backpage conducted by 

the U.S. Attorney’s Office for the Western District of Washington (WDWA) in 2012-13. 

Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 2 of 19
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Mot. at 2. Defendants speculate about what that investigation “determined” and assert, 

without support, that unspecified materials from the investigation are “plainly exculpatory 

and impeaching.” Mot. at 3. Defendants have already litigated this issue—and lost. 

 In 2019, in granting a motion to compel destruction of inadvertently disclosed 

documents, Judge Logan found that the WDWA investigation was “wholly separate” from 

this criminal case. Doc. 1454, 12/3/2021 Hr’g Tr. at 56:11-16 (quoting Doc. 449-1 at 4). 

And in 2021, this Court denied Defendants’ motion to compel regarding the WDWA 

investigation. Doc. 1444 at 14-15. In responding to Defendants’ motion (Doc. 1281), the 

United States explained that WDWA investigation materials are neither exculpatory nor 

material for many reasons. Doc. 1326 at 3, 9-13. These reasons include the avalanche of 

evidence that emerged after that investigation, including Backpage’s compelled disclosure 

of hundreds of thousands of internal documents in 2015-15, the U.S. Senate’s investigation 

and its resulting report BACKPAGE.COM’S KNOWING FACILITATION OF ONLINE SEX 

TRAFFICKING in 2017, and the guilty pleas of Backpage’s CEO, Carl Ferrer, Dan Hyer, and 

the Backpage operating entities in 2018. Doc. 1326 at 9-13. As shown by the plea 

agreements and a raft of additional evidence, Backpage promoted prostitution by, among 

other things, aggregating prostitution ads from competing websites, forming relationships 

with bulk prostitution advertisers or “super posters,” and developing a reciprocal link and 

cross-marketing business relationship with The Erotic Review—a prostitution review site 

that left no doubt about Defendants’ intent to promote prostitution. See Doc. 1326 at 9-13. 

The Court found no reason to reconsider previous orders that addressed the Brady and 

Giglio issues raised by Defendants (Docs. 339, 449, and 1028), refused to dismiss the case, 

and declined to find that the United States had intentionally concealed or refused to 

produced exculpatory materials. Doc. 1444 at 15. 

 Defendants offer nothing new, other than to assert that “the entirety of the 

government’s case” now requires a different result. Mot. at 5. But the United States put on 

the same case at trial that it had laid out in its Superseding Indictment and the briefing that 

the Court considered when issuing its prior Orders. See, e.g., Doc. 230 passim; Doc. 649, 

Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 3 of 19
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

passim; Doc. 1326 at 5-9. Defendants also ignore that the United States in fact searched its 

files and disclosed factual materials relating to the WDWA investigation to Defendants, 

including grand jury testimony, interview memoranda, hand written notes of interviews, 

and additional reports and documents. See, e.g., Doc. 1281 at 5-6; Doc. 1326 at 3, 13. The 

notion that the United States “steadfastly refused” (Mot. at 2) to produce these materials is 

incorrect. Nor does Defendants’ suggestion that the United States used the investigation 

“as a sword”— based on one vague sentence from Ferrer’s 11 days of testimony—support 

the “exceptional” relief Defendants seek. Rush, 749 F.2d at 1371; cf. Mot. at 2-3 and n.3. 

III. The United States Did Not Elicit “False or Misleading Testimony” from Ferrer 

A. Ferrer Truthfully Testified that He Corresponded with P.R. 

Defendants’ assertion that Ferrer’s testimony conveyed the “false impression” that 

he emailed directly with P.R. is a non-starter. Mot. at 4-7. As Defendants concede, Ferrer 

testified that he corresponded with P.R. via email. Mot. at 5, quoting 9/14/23 P.M. Tr. at 

79:7-9 (“Q. [D]id you have e-mail exchanges with somebody by the name of [P.R.]? A. 

Yes.”). He had an independent recollection of those exchanges, which occurred from 2010 

to 2018. Id.; see also id. at 79:10-12 (“Q. [O]ver what time period approximately did those 

e-mail exchanges take place? A. Approximately 2010 to 2018. There’s a lot of e-mails.”). 

From his interactions with her, Ferrer concluded that P.R. “was engaged in 

prostitution.” 9/14/23 p.m. Tr. at 80:6. Like other prostitutes who advertised on Backpage, 

P.R. kept violating the site’s posting rules, but “we would let her back in,” “much like we 

had done with all of the other advertisers in Female Escort sections. They would get a pass. 

They wouldn’t be banned if they posted ads violating the rules. They would get to try 

again.” 9/15 a.m. Tr. at 7:14-21. And to reward her for past business, P.R. received “promo 

codes” for free or discounted ads. See Exs. 162, 164. 

This approach illustrated the moderation strategy that Backpage developed in 

response to outside criticism. Larkin and Spear directed Ferrer to “not throw the baby out 

with the bathwater,” 9/14/23 p.m. Tr. at 25:20-26:7, leading to “cosmetic changes” that 

didn’t impact revenue. 9/15/23 a.m. Tr. at 9:1-10:23. While the company adopted various 

Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 4 of 19
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

moderation policies, users were continually given additional chances to post. They weren’t 

blocked; “[t]hey could just post again.” 9/12/23 p.m. Tr. at 60:7. 

Ferrer testified about several emails he exchanged with P.R. In Ex. 162, P.R. 

complained about the removal of an image from one of her ads, and Ferrer testified that 

she provided him that image as an email attachment. 9/14/23 p.m. Tr. at 84:24-85:11; Exs. 

162, 162a. Ferrer confirmed that Ex. 163 was an email exchange between himself and P.R. 

9/14/23 p.m. Tr. at 86:3-15. He testified that Ex. 164 was a marketing email that he “would 

write up and then have Scott Spear approve before I sent it out.” 9/14/23 p.m. Tr. at 89:19-

90:5. Ex. 165 was another marketing email that Ferrer drafted, sent to Spear for approval, 

and “remember[ed] sending.” 9/14/23 p.m. Tr. at 94:12- 96:23. Ferrer testified that Ex. 168 

was an email that he received from P.R. 9/14/23 p.m. Tr. at 99:23-100:4. 

Defendants note that Ferrer testified on cross-examination that the address 

appearing on these emails, Carl@backpage.com, was a marketing email address that others 

at Backpage could access and respond from. Mot. at 6; 10/10/23 a.m. Tr. at 104:3-23. But 

Ferrer never testified that the emails with P.R. that he discussed at trial (Exs. 162-165 and 

168) reflected communications with anyone other than himself. And even if his testimony 

indicates any conflict in the evidence (it does not), neither Rule 29 nor Rule 33 would 

justify the relief Defendants seek. United States v. Renzi, 2013 WL 12216505, at *4 (D. 

Ariz. Oct. 25, 2013) (“[T]hat witnesses gave inconsistent or conflicting testimony does not 

establish that such testimony was false.”) (citing United States v. Croft, 124 F.3d 1109, 

1119 (9th Cir. 1997)); United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en 

banc) (under Rule 29, conflicts in the evidence are resolved in favor of the verdicts). 

The notion that the government’s questioning suggested that the prosecutor knew 

Ferrer’s testimony was false is also incorrect. Mot. at 6. In several questions, the prosecutor 

queried Ferrer about what P.R. asked him, and what he wrote, said, or did. See, e.g., 9/14/23 

P.M. Tr. at 81:10 (“can you read what she’s asking you here?”); id. at 81:20 (“What does 

she say to you here...?”); id. at 82:9-11 (“So what are you doing in response to [P.R.’s] 

issues? What are you trying to do to assist her in any respect?”); id. at 85:5-6 (“Does she 

Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 5 of 19
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

provide you as an attachment the image that got removed? A. Yes, she does.”); id. at 86:13-

15 (“So 163, is this also an e-mail exchange between you and [P.R.]? A. Yes, it is.”); id. at 

88:5 (“what are you saying here to [P.R.] [referencing Ex. 164]?”); id. at 90:22 (what is 

she saying here to you?”). While the prosecutor sometimes referenced the email address 

used in the emails, this record doesn’t show the prosecutor elicited false testimony about 

Ferrer’s correspondence with P.R. Cf. Mot. at 5-7. 

Defendants’ claim that the prosecutor improperly referenced P.R.’s emails in 

closing argument lacks merit. The excerpt Defendants cite accurately paraphrases P.R. 

statements. Compare Mot. at 7, citing 10/27/31 a.m. Tr. at 10:5-14, with Exs. 162, 164. 

B. Defendants’ “Materiality” Assertions Miss the Mark 

Alternatively, Defendants can’t show that the allegedly false suggestion that Ferrer 

corresponded with P.R. “could have affected the judgment of the jury.” Mot. at 7. Ferrer 

ran the website’s daily operations, including marketing and moderation. See 9/12/23 p.m. 

Tr. at 16:10-12; id. at 12:21-11, 14:24-9. Even if an employee other than Ferrer responded 

to P.R.’s complaints by repeatedly restoring her posting privileges and giving her 

discounts, the employee would have simply been implementing the policies and procedures 

that Larkin, Spear, and Ferrer had developed to give Backpage’s adult ads a veneer of 

legality without harming the bottom line. See Resp. to Spear’s Rule 29 Mot. at 3-6. 

 More broadly, Defendants’ “materiality” argument reasserts their claim that if they 

didn’t know about or take any action regarding any particular charged ads, they can’t be 

found guilty. See Mot. at 5. That’s not the law of the case. Rather, Defendants’ policies and 

procedures, and their implementation of those policies and procedures, show they had the 

requisite mens rea and actus reus to be found guilty of conspiring to violate the Travel Act 

and of violating the Travel Act as charged in Counts 2-51. 

 In Doc. 793, for example, the Court reviewed the allegations in the Superseding 

Indictment, which laid out the same evidence that the United States presented to the jury—

including evidence showing the strategies that Defendants intentionally pursued to build 

and maintain their website as the internet’s leading source of prostitution ads. The Court 

Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 6 of 19
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

ruled that Defendants’ specific knowledge of each of the 50 ads charged in Counts 2-51 is 

unnecessary. Rather, the Court found that if the SI’s allegations are proven, then 

Defendants could be found guilty of promoting prostitution business enterprises—

notwithstanding their individualized knowledge of any particular ads. Doc. 793 at 15-20. 

 The Court analyzed several cases, including Smith v. California, 361 U.S. 147 

(1959), Mishkin v. New York, 383 U.S. 502, 511 (1966), and United States v. Gibson 

Specialty Co., 507 F.2d 446, 449 (9th Cir. 1974), “conclude[d] none of these cases mandate 

the mens rea requirement described by Defendants,” and instead “agree[d] with the 

Government that intent to promote or facilitate prostitution is sufficient.” Doc. 793 at 15. 

See id. at 15 (“Defendants argue the First Amendment requires the Government to prove 

that each Defendant was aware of each ad that make up the fifty Travel Act counts and 

knew that each ad proposed illegal transactions. The Court is not persuaded that the First 

Amendment demands such a standard.”). The Court also ruled: “The alleged facts in the 

SI, taken as true, establish Defendants had the specific intent to promote prostitution in 

violation of the Travel Act. They conspired together to do so. The conspiracy was 

successful and resulted in the 50 ads for prostitution that now make up 50 counts of 

violating the Travel Act.” Doc. 793 at 20. The Court reaffirmed these findings in June 

2023, in Doc. 1587 at 12-13. See also Doc. 649, Resp. at 30-44. 

In Doc. 946, the Court similarly recognized that the SI’s “allegations certainly 

describe a course of conduct where Defendants facilitated ‘unlawful activity,’ including 

numerous pimps, prostitutes and traffickers in violation of the Travel Act.” Doc. 946 at 13. 

See id. at 14 (the SI “alleges a continuous course of criminal conduct”). 

And in Doc. 1643, the Court determined that evidence of the prostitution marketing 

strategies that Defendants used to grow Backpage was highly relevant to showing 

Defendants’ knowledge and intent regarding the ads at issue. Defendants had moved in 

Doc. 1591 to preclude “evidence of alleged strategies to increase purported ‘prostitution’ 

ads on the site not specific to these fifty ads”—including evidence of (1) moderation, (2) 

Backpage’s reciprocal link partnership with the Erotic Review (TER), and (3) content 

Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 7 of 19
- 7 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

aggregation. Doc. 1591 at 3. Denying the motion, the Court found: 

Given the nature of the SI’s allegations, these categories of evidence are relevant to show Defendants knowledge of the ads, how and why they were created and their intended purposes. Further, it is relevant to show whether Defendants “intended to promote a business of prostitution” by posting the ads. (See Doc. 1272 at 3). Finally, the Court already found that facts that pre- date the 2013 allegations were relevant as evidence demonstrating “furtherance of the charged conspiracy.” Therefore, evidence of ad moderation, Backpage’s “reciprocal” advertising/link program with the Erotic Review, and content “aggregation’ to secure future advertising revenues will not be precluded to the extent that (1) the SI provides notice to Defendants of these acts, and (2) the acts demonstrate Defendants’ 

knowledge, intent and conduct in furtherance of the conspiracy’s objective[.] 

Doc. 1643 at 6. 

Defendants also ignore the Court’s Pinkerton instructions, which show that each 

Defendant need not have been personally aware of the specifics of each ad or personally 

involved in that ad’s publication, if it was reasonably foreseeable—under the policies 

Defendants implemented as part of the conspiracy charged in Count 1—that such violations 

would be committed in furtherance of the conspiracy. Doc. 1998 at 27; Doc. 649, Resp. at 

14. The Court has long approved of Pinkerton’s applicability here. Doc. 793 at 19. 

The evidence shows how the website’s owners, including Lacey, Brunst, and Spear, 

each played vital roles in developing Backpage into the internet’s leading source of 

prostitution ads, and then worked to maintain the website’s preeminence in that “niche” 

market. See Doc. 2019 at 1-7; Doc. 2020 at 14-17; Doc. 2021 at 1-9; Ex. 23 at 3. Consistent 

with the Court’s Orders, that evidence shows the actions they took to perpetuate 

Backpage’s publication of these and other prostitution ads. 

IV. The United States Did Not Make Improper Opening and Closing Arguments 

A. Defendants’ “Object of the Conspiracy” Argument Lacks Merit 

The United States incorporates by reference its discussion of this argument in its 

Response to Brunst’s Rule 29 Motion, Doc. 2019 at 9-10. 

B. This Case Does Not Involve an “Impermissible Boundless Conspiracy” 

Citing a single passage from Doc. 946 at 13, Defendants assert the conspiracy in 

Count 1 is cabined by the 50 ads charged in the substantive Travel Act counts, Counts 2-

Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 8 of 19
- 8 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

51. See Mot. at 8-9. Not so. The United States could have charged Count 1 without charging 

any substantive Travel Act counts; Counts 2-51 merely reflect examples of the scores of 

such violations the resulted for Defendants’ operation of Backpage. As the Court has 

repeatedly recognized, Count 1 alleges a 14-year conspiracy spanning 2004 to 2018, and 

conduct before 2013 is clearly relevant to the charge. Doc. 1643 at 4 (“[T]he Court has 

already clarified that the Government may introduce proof of the entirety of the scope of 

the conspiracy.”); Doc. 1643 at 6 (“[T]he Court already found that facts that pre-date the 

2013 allegations were relevant as evidence demonstrating ‘furtherance of the charged 

conspiracy.’”); 10/26/23 a.m. Tr. at 24:25-25:1. 

At trial, the United States argued, and presented evidence showing, that Defendants 

were engaged in a conspiracy with others to make Backpage successful as a prostitution 

advertising website. This evidence showed a “chain,” not a “hub-and-spoke,” conspiracy. 

Cf. Mot. at 9. “A chain conspiracy refers to a situation in which there are numerous 

conspiring individuals, each of whom has a role in a ‘chain’ that serves the conspiracy’s 

object. . . . The success of each ‘link’ in the chain depends on the success of the others, 

even though each individual conspirator may play a role that is separated by great distance 

and time from the other individuals involved.” United States v. Ulbricht, 31 F. Supp. 3d 

540, 553 (S.D.N.Y. 2014). In a wheel or hub-and-spoke conspiracy, in contrast, “one 

person typically acts as a central point while others act as ‘spokes’ by virtue of their 

agreement with the central actor. Id. at 554. Here, the Defendants, Ferrer, Hyer, and others 

performed different roles and relied on each to develop, and profit from, Backpage’s 

growth into the internet’s leading source of prostitution ads. This was a chain conspiracy, 

not a “rimless wheel conspiracy.” Mot. at 9. 

The pimps who paid and used Backpage’s services to promote and carry on their 

own criminal enterprises provided revenues that powered Backpage’s continued success, 

and can also be fairly considered part of the conspiracy. Cf. Ulbricht, 31 F. Supp. 3d at 556 

(“Silk Road was nothing more than code unless and until third parties agreed to use it. 

When third parties engaged in unlawful narcotics transactions on the site, however, 

Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 9 of 19
- 9 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Ulbricht’s design and operation gave rise to potential conspiratorial conduct.”). 

In all events, “the form of the conspiracy is not as important as a determination that 

at least one other person joined in the alleged conspiratorial agreement with [the 

defendant].” Ulbricht, 31 F. Supp. 3d at 557. And the proof at trial established that Spear 

and Brunst conspired with Ferrer and others to promote, or facilitate the promotion of, 

prostitution enterprises in violation of the Travel Act. See generally Responses to Spear’s 

and Brunst’s Rule 29 Motions. For all these reasons, Defendants’ untimely request for 

reconsideration of the Court’s denial of their prior motion to dismiss Count 1 and their 

other requests for relief regarding that count should be denied. 

C. Trial References to “Promoting Prostitution” Do Not Warrant Relief 

Contrary to the law of the case—and common sense—Defendants assert that the 

United States should have been prohibited from telling the jury that Defendants used many 

business strategies to market and promote prostitution. Mot. at 9-11. Defendants litigated 

this issue before, and lost. For years, the United States has alleged that Defendants’ pursued 

several strategies to establish Backpage as the internet’s leading source of prostitution ads. 

See, e.g., Doc. 230, SI¶¶ 9-11, 34. The Court has long recognized that these and other facts 

alleged in the SI, taken as true, “establish defendants had the specific intent to promote 

prostitution in violation of the Travel Act. They conspired together to do so. The conspiracy 

was successful and resulted in the fifty ads for prostitution that now make up fifty counts 

of violating the Travel Act.” Doc. 793 at 20. See also Doc. 1643 at 6. 

The statements about which Defendants complain (Mot. at 9-11) fit well within the 

contours of the Court’s Orders. For example, Defendants complain about references in the 

prosecution’s opening statement to Defendants’ use of “three different strategies to market 

and promote prostitution” (Mot. at 10)—evidence the Court found relevant in its pretrial 

rulings (Doc. 1643 at 6). Defendants also complain about references to the Travel Act 

charges, which concern promoting, or facilitating the promotion of, prostitution business 

enterprises. Mot. at 10-11. Defendants are not entitled to a new trial simply because 

prosecutors did not repeat the Act’s text verbatim each time they referenced the charges. 

Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 10 of 19
- 10 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Defendants’ related assertion that the evidence did not sufficiently tie Ferrer to 

Backpage’s prostitution advertising, including the charged 50 ads, also lacks merit. (Mot. 

at 11.) The jury heard extensive evidence about Ferrer’s involvement in Backpage’s 

prostitution advertising; he testified for nearly 11 days about his management of the site’s 

publication of millions of prostitution ads. Not only did he communicate directly with P.R., 

the prostitute who posted several of the charged ads, but he managed and ran the day-today operations of the website throughout its 14-year lifespan. 

D. The Government Didn’t Repeatedly Tell the Jury It Could Convict Without Specific Intent 

The Court instructed the jury that it would inform the jury about the law as it applies 

here. See, e.g., Doc. 1998 at 2 (“It is also your duty to apply the law as I give it to you[.]”). 

Accordingly, the jury—which is presumed to follow the Court’s instructions—knew to 

look to the Court, and not the lawyers, about what the law required. United States v. Reyes, 

660 F.3d 454, 468 (9th Cir. 2011).1

 The instructions required proof of specific intent and 

provided relevant definitions. Doc. 1998 at 30. The Court also directed the jury to consider 

“both direct and circumstantial evidence,” and left it to the jury “to decide how much 

weight to give any evidence.” Doc. 1998 at 8. 

Because direct evidence of wrongful intent is “rarely available,” “intent may be 

inferred from circumstantial evidence.” United States v. Kirst, 54 F.4th 610, 623 (9th Cir. 

2022) (cleaned up). A defendant’s specific intent to facilitate unlawful activity may be 

inferred from knowledge in any one of several circumstances, including “evidence of any 

unusual volume of business with prostitutes,” such as where “sales for illegal use amount 

to a high proportion of the seller’s total business.” People v. Lauria, 59 Cal. Rptr. 628, 632-

33 (Cal. Ct. App. 1967). 

1

 Moreover, the Court instructed the jury that “statements” and “arguments” by the lawyers “are not evidence”: “[W]hat the lawyers have said in their opening statements, will say in their closing arguments, and have said at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers state them, your memory of them controls.” Doc. 1998 at 7. 

Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 11 of 19
- 11 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Furthermore, a website operator may be found to have the requisite intent when the 

defendant’s website was designed or tailored to further illegal activity. See, e.g., United 

States v. Ulbricht, 31 F. Supp. 3d 540, 556 (S.D.N.Y. 2014) (“The Indictment does not 

allege that Ulbricht is criminally liable simply because he is alleged to have launched a 

website that was—unknown to and unplanned by him—used for illicit transactions. If that 

were ultimately the case, he would lack the mens rea for criminal liability. Rather, Ulbricht 

is alleged to have knowingly and intentionally constructed and operated an expansive black 

market for selling and purchasing narcotics and malicious software and for laundering 

money. This separates Ulbricht’s alleged conduct from the mass of others whose websites 

may—without their planning or expectation—be used for unlawful purposes.”); United 

States v. Omuro, N.D. Cal. No. 14-CR-336, Doc. 70 at 1-3 (court accepted guilty plea and 

convicted www.myRedBook.com founder Eric Omuro under the Travel Act, 18 U.S.C. 

§ 1952(a)(3)(A); his website hosted thousands of ads posted by prostitutes in the western 

United States); United States v. Hurant, E.D.N.Y. No. 16-CR-45, Doc. 117 at 1, 6 13-14 

(court accepted guilty plea and convicted www.Rentboy.com founder Jeffrey Hurant for 

violating the Travel Act; Hurant admitted he “was well aware...that the escort ads he 

posted...were thinly-veiled proposals of sexual services in exchange for money”; id. Doc. 

125 at 2 (like Backpage, Hurant’s employees often rejected ads with explicit offers of sex 

for money “but allow[ed] the ad to be resubmitted with different language. In many cases, 

Rentboy.com employees would just edit the advertisement’s language and approve it.”). 

The evidence here showed, among other things, that Backpage managers and 

employees helped customers craft their ads to reduce the risk of law enforcement detection 

without changing the underlying message (moderation); created ads for prostitutes and 

pimps and offered to publish them for a trial period for no or reduced fees (aggregation); 

entered into affiliation agreements with bulk prostitution advertisers like Dollar Bill (super 

posters); paid thousands of dollars to The Erotic Review, a Yelp-like website for buyers 

and sellers of commercial sex, in a cross-referral/cross-linkage business arrangement; 

purchased and published “feeds” of legitimate ads to falsely portray Backpage as a general 

Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 12 of 19
- 12 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

classified advertising website for the sake of “plausible deniability”; tried to suppress 

negative news coverage; and laundered Backpage proceeds through domestic and overseas 

accounts. See, e.g., Doc. 2021 at 1-9. Simply put, the proof at trial gave the jury abundant 

evidence from which to infer Defendants’ intent. 

Against this backdrop, Defendants’ complaints about the prosecutor’s references to 

Defendants’ sources of knowledge that their website was promoting prostitution businesses 

falls flat. Mot. at 11-13. Defendants’ cherry-pick the prosecutor’s reference to Backpage’s 

receipt of thousands subpoenas in closing argument, but the United States’ opening and 

rebuttal closing arguments focused on far more evidence of knowledge and intent than that 

single data point. Compare Mot. at 11-12 with 10/26/23 p.m. Tr. at 52:17-88:7, 10/27/23 

a.m. Tr. at 6:4-35:1, and 11/1/23 a.m. Tr. at 37:21-70:12. Prosecutors have “wide latitude 

in closing arguments,” and “considerable leeway to strike hard blows based on the evidence 

and all reasonable inferences from the evidence.” United States v. Wilkes, 662 F.3d 524, 

538 (9th Cir. 2011). Oratorical flourish and argumentative characterizations are allowed. 

United States v. Chavez, 895 F.2d 1418 (9th Cir. 1990); United States v. Sayetsitty, 107 

F.3d 1405, 1409 (9th Cir. 1997). Taken in context, the reference to the “thousands of 

subpoenas” Backpage received was well within the bounds of acceptable argument, and 

hardly rises to the level of entitling Defendants to a new trial under Rule 33. 

Nor did the prosecutor’s rebuttal closing argument mischaracterize the law or the 

jury instructions about whether any Defendant knew about any specific charged ad. See

Mot. at 12. As discussed supra at 5-7, the Court has repeatedly held that the United States 

may prove the charges against Defendants without necessarily showing a defendant’s 

personal, direct knowledge of individual ads. 

The prosecutor did not mischaracterize the 50 substantive Travel Acts as “just a 

sample.” Mot. at 12. The jury heard testimony from many witnesses showing prostitution 

advertising was rampant on Backpage, Backpage’s adult category—and in particular its 

“escorts” section—became synonymous with prostitution, and Backpage made the 

overwhelming majority of its money from prostitution advertising. See, e.g., Doc. 2021 at 

Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 13 of 19
- 13 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

6-7; Doc. 2019 at 4. Moreover, the prosecutor fairly referenced the conspiracy charge in 

Count 1, which charged Defendants with conspiring to commit Travel Act violations 

“covering the 14-year life of the conspiracy”—not just the 50 ads charged in Counts 2-51. 

Doc. 230 ¶¶ 195-199; 11/1/23 a.m. Tr. at 50:10-11. Viewing the prosecutors’ closing 

arguments—and the trial evidence—as a whole, there was no improper suggestion “that 

incriminating evidence had not been put before the jury.” Mot. at 12. 

Defendants’ suggestion that the United States urged the jury to convict Brunst based 

solely on the amount of money he made from Backpage (Mot. at 13) lacks merit. The trial 

evidence detailing his role in ensuring the success of the conspiracy is outlined in the 

United States’ response to Brunst’s Rule 29 motion, incorporated by reference. And the 

United States’ closing arguments about Brunst covered far more evidence than his 

income—indeed, the prosecutors discussed Brunst 44 times through the opening and 

rebuttal closings. See 10/26/23 p.m. Tr. at 52:17-88:7; 10/27/23 a.m. Tr. at 6:4-35:1; 

11/1/23 a.m. Tr. at 37:21-70:12. 

E. The United States Did Not “Improperly Exhort[ ] The Jury To Convict” Based on Ads “Protected by the First Amendment” 

The United States incorporates by reference its response to the First Amendment 

argument in Spear’s Rule 29 motion, and supplements with the following. 

The United States’ argument that communications from state Attorneys General and 

other third parties put Defendants on notice that “they are not on solid ground” didn’t 

improperly suggest that Backpage’s prostitution ads weren’t protected by the First 

Amendment. Mot. at 13-14. First, the “not on solid ground” statement fell well within the 

permissible bounds of closing argument, particularly given what even Defendants admit 

was a “prodigious amount” of notice evidence from law enforcement leaders, nongovernmental organizations, clergy, and journalists. Mot. at 12. “Not on solid ground” is a 

fair rhetorical comment—Defendants received a ton of notice that they were publishing 

prostitution ads, yet they engaged in further efforts to publish those ads. See Wilkes, 662 

F.3d 524 at 538. 

Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 14 of 19
- 14 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Second, Defendants’ argument seeks to relitigate several Orders that expressly 

permitted the use of such evidence at trial. See, e.g., Doc. 1165 at 3-4 (“If Defendants 

received notice of third parties’ perceptions of their reputation as the leading source of 

sexually illicit ads, then the lack of action on the part of Defendants to stop prostitution ads 

from being posted on Backpage.com tends to prove that they intended to facilitate unlawful 

activity”); id. at 5 (allowing such evidence to show notice and knowledge, but not for truth); 

id. at 7 (“The evidence is probative to show Defendants’ knowledge of Backpage’s 

reputation, which is relevant to Defendants’ intent to facilitate an unlawful activity under 

the Travel Act.”); Doc. 1212 at 10 (“The fact that numerous third parties informed the 

Defendants of the prostitution ads present on Defendants’ website may be validly used to 

prove that the Defendants had knowledge of the ads’ existence.”) 

Third, this argument ignores the considerable evidence showing that prostitution 

advertising was rampant on Backpage. See, e.g., Doc. 2021 at 1-7. On this record, the 

United States didn’t “exhort” the jury to convict for impermissible reasons. 

V. A New Trial Isn’t Warranted Based on Defendants’ Hearsay Evidence Claims 

 Defendants asserted the United States used notice evidence “for the truth” twice in 

closing argument. Mot. at 15. The first asserted use rehashes the “not on solid ground” 

argument addressed above. Defendants next complain the United States argued that a clip 

from the CNN documentary showed that Backpage had cornered the market on prostitution 

ads because all you had to do was post on Backpage and the “phone started ringing in 

minutes.” Mot. at 15. But that information tracked testimony from several victims and other 

witnesses, which was admitted for the truth, and which showed that posters on Backpage’s 

Escorts section received nearly immediate responses from Johns. See, e.g., 10/11/23 a.m. 

Tr. at 123:22-124:4 (B.L.—the victim in Counts 16-17—testifying that she would “just 

copy[ ] the lingo” from other Backpage Escort ads, and after she posted on the website 

“[w]ithin a minute my phone was ringing off the hook”); 10/17/23 a.m. Tr. at 85:14-86:3 

(N.F. testifying that after her ads posted on Backpage’s Escorts section “I started getting a 

lot of phone calls” and “text messages” “within minutes”); 10/12/23 p.m. Tr. at 32:13-23 

Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 15 of 19
- 15 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

(“escort” on Backpage meant “prostitution”); 10/12/23 a.m. Tr. at 75:5-9, 77:23-20 (A.B. 

would “copy and paste” from other Backpage ads, and then “start getting calls and text 

messages” from Johns). The clip was evidence that Defendants were on notice of this 

dynamic. Defendants’ motion does not support the extraordinary remedy of a new trial. 

VI. The Court’s Finalization of the Jury Instructions Before Closing Arguments Did Not “Highly Prejudic[e]” the Defense

 Defendants largely succeeded in their efforts to persuade the Court to modify the 

First Amendment instruction, mainly by replacing “relating to illegal activity” with 

“speech that proposes an illegal transaction.” Mot. at 16; Doc. 1998 at 48. The Court 

modified the Travel Act instruction, including the “specific intent” definition, in a manner 

Defendants “welcomed.” Mot. at 16. 

 While Defendants complain that they were prejudiced by not having the finalized 

instructions earlier, they provide no examples of how their trial presentations would have 

differed. Their opening statements and closing arguments were full of arguments that the 

ads on Backpage didn’t propose illegal transactions. See, e.g., 9/12/23 a.m. Tr. at 35:1-2 

(“Unless the ad says sex for money, a sex act for money, what is there?”); id. at 41:19-22 

(the charged ads “are suggestive,” but “[t]hat’s not illegal”); 10/31/23 a.m. Tr. at 21:19-22 

(“Unless [the ad] is explicitly on its face sex-for-money, you can’t tell and sometimes even 

then you can’t tell.”); id. at 23:23-25 (“[Y]ou cannot tell from the face of the ad that it is 

an ad for prostitution. Even Anya Beck whose ad had ‘$80 for head’ on it.”); 11/1/23 a.m. 

Tr. at 15:8-14 (“The only time the government can start to regulate it is when it is the 

speech on the page is explicitly, patently, obviously for criminal conduct.”). Defendants 

were undeterred from making these arguments. 

 Defendants’ unsupported assertion that the First Amendment instruction given 

“would have allowed for a viable advice of counsel defense” is conclusory, and wrong. 

Mot. at 17. Defendants make no proffer of how they could have satisfied the required 

showings for that defense based on the instruction. See Doc. 1643 at 12-13. 

 And the notion that defense counsel lacked sufficient time to adjust their closings 

Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 16 of 19
- 16 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

based on the final instructions is not supported by the record. Cf. Mot. at 17. Lacey’s 

counsel had nearly a day with the instructions before starting his closing argument on 

October 27, 2023. And because he was the counsel who chiefly advocated for the modified 

First Amendment instruction, it’s difficult to see how he might have been prejudiced by 

the Court’s adoption of changes he sought. The remaining counsel had 31⁄2 or more days to 

study the final instructions before their closings on October 31-November 1, 2023. 

 Defendants also fail to support their assertion that the Court admitted “large 

quantities of evidence” “that would not have been relevant under” the finalized First 

Amendment instruction. Mot. at 17. For its part, the United States has argued for the last 

six years that Defendants’ website was singularly focused on making money from selling 

advertisements for illegal prostitution. E.g., Doc. 230 ¶¶ 33-34. The government’s “notice” 

evidence remained as salient as ever under the finalized First Amendment instruction. 

VII. The Jury Instructions Did Not Lead to “Legally Invalid” Convictions

 Defendants’ three final arguments lack merit. First, Defendants agree the First 

Amendment instruction “included the correct legal standard,” but assert that more was 

required. Mot. at 17. The United States responds to this argument in its Response to Spear’s 

Rule 29 Motion, which it incorporates by reference here. See Doc. 2021 at 9-13. 

 Second, the specific intent definition in the Travel Act instruction follows Ninth 

Circuit law, which focuses on “specific intent to facilitate an activity which the accused 

knew to be unlawful under state law.” United States v. Polizzi, 500 F.2d 856, 876–77 (9th 

Cir. 1974) (quoted in Doc. 1587 at 6). See United States v. Gibson Specialty Co., 507 F.2d 

446, 449 (9th Cir. 1974) (the government must show defendants had “specific intent to 

promote, manage, establish, carry on or facilitate one of the prohibited activities”). In Doc. 

793, the Court found that “[t]he Government’s proposed mens rea standard, specific intent 

to promote or facilitate prostitution, is consistent with Gibson, Tavelman, and Polizzi—the 

Ninth Circuit cases discussing intent requirements of the Travel Act.” Doc. 793 at 18.2

 As 

2

 Ninth Circuit cases decided after Gibson confirm that the intent required by the Travel Act is “intent to promote an unlawful activity.” United States v. Tavelman, 650 F.2d 1133, 

Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 17 of 19
- 17 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

explained at pages 6-7 and 10-11, supra, specific intent can be inferred from an array of 

facts—including those that the jury received here. And as the verdict form made clear, the 

Travel Act counts were tied to the specific ads identified in those counts, identified for the 

jury by the ads’ corresponding publication dates, exhibit numbers, and geographic 

locations. Doc. 1978 at 1-26. 

 The Court’s instructions were consist with prior rulings, Ninth Circuit caselaw, and 

the trial evidence—which showed Defendants knew the vast majority of their “adult” ads 

were for prostitution and intentionally promoted or facilitated that unlawful activity via 

their website’s operations. See Doc. 2019 at 1-7; Doc. 2020 at 14-17; Doc. 2021 at 1-9. 

 Defendants’ passing reference to United States v. Hansen, 599 U.S. 762 (2023), 

doesn’t change the analysis. Mot. at 18. Hansen addresses a different statute, 8 U.S.C. 

§ 1324(a)(1)(A)(iv), and doesn’t examine the Travel Act’s unique text and structure, 18 

U.S.C. § 1952(a)(3). Doc. 1628, Resp. at 6-7, 13-15; Doc. 1626-3 at 98-99; Doc. 1641 at 

5-7). If Defendants claim that traditional aiding-and-abetting elements must be grafted onto 

the Travel Act under Hansen, Defendants are wrong for the reasons in Doc. 1628, Resp. at 

6-17, incorporated by this reference. 

 Third, having a single Travel Act instruction for the 50 Travel Acts did not 

improperly allow the jury to “mix and match” elements, find specific intent “unconnected 

to a count,” or find “specific intent through proof of general intent.” Mot. at 18-19. The 

jury rendered special verdicts that parsed out each of the 50 Travel Act counts, and 

carefully discriminated between the different counts and the different Defendants in 

rendering its verdicts. The jury considered each Defendant and each count separately, as it 

was instructed to do. Doc. 1978 at 1-44; Doc. 1998 at 16; see also Doc. 1999 at 2-3, 7. 

CONCLUSION 

Defendants’ Motion for a New Trial (Doc. 2009) should be denied. 

1138 (9th Cir. 1981); United States v. Gordon, 641 F.2d 1281, 1284 (9th Cir. 1981); United 

States v. Stafford, 831 F.2d 1479, 1482 (9th Cir. 1987); United States v. Winslow, 962 F.2d 

845, 852 (9th Cir. 1992). 

Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 18 of 19
- 18 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Respectfully submitted this 22nd day of December, 2023.

 GARY M. RESTAINO 

 United States Attorney 

 District of Arizona 

 

 NICOLE M. ARGENTIERI 

Acting Assistant Attorney General Criminal Division, U.S. Department of Justice 

 s/ Peter S. Kozinets 

 KEVIN M. RAPP 

 MARGARET PERLMETER 

 PETER KOZINETS 

 ANDREW STONE 

 DANIEL BOYLE 

 Assistant U.S. Attorneys 

 

 AUSTIN M. BERRY 

 Trial Attorney 

CERTIFICATE OF SERVICE 

 I hereby certify that on December 22, 2023, 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/ Daniel Parke

Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 19 of 19