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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 LITTRELL WILLIAMS LLP

903 Calle Amanecer, Suite 350

San Clemente, California 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

tbienert@bklwlaw.com

wbernstein@bklwlaw.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’ MOTION TO DISMISS 

WITH PREJUDICE

(Oral argument and evidentiary hearing 

requested)

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MOTION TO DISMISS WITH PREJUDICE

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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TABLE OF CONTENTS

Table of Contents

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

II. THE GOVERNMENT’S ACTIONS CAUSED A MISTRIAL AND HAVE 

LEFT DEFENDANTS IN AN UNTENABLE POSITION. .................................. 1

A. The government knew that impermissibly introducing evidence of child sex 

trafficking would trigger a motion for mistrial. ................................................. 1

B. Jury selection made clear that jurors who could fairly deliberate about 

prostitution could not be fair and impartial in deliberating about sex and child 

trafficking................................................................................................................ 3

C. The government used its opening to provoke a mistrial motion.................... 3

D. The government’s case offered proof of none of the elements of the crimes 

charged and was faltering. .................................................................................... 4

E. The government goaded Defendants into moving for a mistrial with 

repeated, obvious, and calculated violations of this Court’s clear rulings 

with each witness................................................................................................... 5

1. Brian Fichtner............................................................................................ 5

2. Jessika Svendgard...................................................................................... 6

3. Nacole Svendgard ..................................................................................... 7

4. Expert witnesses ....................................................................................... 7

F. The Court granted a mistrial. .............................................................................10

G. The government’s conduct, coupled with the government’s overbroad asset 

freezes, puts Defendants in an untenable position.........................................11

III. THE DOUBLE JEOPARDY CLAUSE REQUIRES DISMISSAL OF THE 

SUPERSEDING INDICTMENT WITH PREJUDICE. ........................................12

IV. THE COURT’S SUPERVISORY AUTHORITY ALLOWS DISMISSAL WITH 

PREJUDICE. ...................................................................................................................17

1. The government’s misconduct at trial warrants dismissal with 

prejudice. ..................................................................................................18

2. The government’s Brady violations warrant dismissal with prejudice.

...................................................................................................................19

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TABLE OF CONTENTS

3. The government’s now-admitted privilege invasions warrant 

dismissal. ..................................................................................................22

4. The government’s privilege invasions were on top of a pattern and 

practice of violating the Court’s orders and Defendants’ privileges.

...................................................................................................................24

B. The government’s misconduct was flagrant. ...................................................25

C. The Defendants suffered substantial prejudice...............................................26

V. THE DUE PROCESS CLAUSE PROVIDES ANOTHER BASIS FOR 

DISMISSAL WITH PREJUDICE. ..............................................................................27

VI. CONCLUSION...............................................................................................................29

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TABLE OF AUTHORITIES

Table of Authorities

Cases Page(s)

Arizona v. Washington,

434 U.S. 497 (1978)................................................................................................................. 12, 13, 26

Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay,

868 F.3d 104 (2d Cir. 2017) ................................................................................................................ 16

Green v. United States,

355 U.S. 184 (1957)........................................................................................................................12, 13

Oregon v. Kennedy,

456 U.S. 667 (1982)................................................................................................................. 13, 14, 15

Tibbs v. Florida,

457 U.S. 31 (1982)..........................................................................................................................12, 16

United Stated v. Kessler,

530 F.2d 1246 (5th Cir. 1976)............................................................................................................. 15

United States v. Aguilar,

831 F. Supp. 2d 1180 (C.D. Cal. 2011)................................................................................. 18, 26, 27

United States v. Bundy,

968 F.3d 1019 (9th Cir. 2020).......................................................................................... 17, 22, 25, 26

United States v. Chapman,

524 F.3d 1073 (9th Cir. 2008).......................................................................................... 19, 20, 22, 26

United States v. De Rosa,

783 F.2d 1401 (9th Cir. 1986)............................................................................................................. 25

United States v. Dinitz,

424 U.S. 600 (1976).............................................................................................................................. 13

United States v. Gaytan,

115 F.3d 737 (9th Cir. 1997).........................................................................................................12, 13

United States v. Jorn,

400 U.S. 470 (1971)........................................................................................................................12, 13

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TABLE OF AUTHORITIES

United Stated v. Kessler,

530 F.2d 1246 (5th Cir. 1976)............................................................................................................. 15

United States v. Kojayan,

8 F.3d 1315 (9th Cir. 1993).............................................................................................. 18, 27, 28, 29

United States v. Lopez-Avila,

678 F.3d 955 (9th Cir. 2012).........................................................................................................17, 18

United States v. Martin,

561 F.2d 135 (8th Cir. 1977).........................................................................................................14, 15

United States v. Owen,

580 F.2d 365 (9th Cir. 1978)............................................................................................................... 17

United States v Pederson,

2014 WL 3871197 (D. Or. Aug. 6, 2014).......................................................................................... 25

United States v. Sterba,

22 F. Supp. 2d 1333 (M.D. Fl. 1998)................................................................................................. 14

United States v. Weems,

49 F.3d 528 (9th Cir. 1995)................................................................................................................. 12

Valle Del Sol Inc. v. Whiting,

709 F.3d 808 (9th Cir. 2013)............................................................................................................... 16

Statutes

U.S. Const. Amend. V ............................................................................................................................. 12

Rules

Fed. R. Crim. Proc. 16 .......................................................................................................................20, 23

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MOTION TO DISMISS WITH PREJUDICE

I. INTRODUCTION.

This case involves a pattern of repeated and brazen government misconduct, culminating 

in a mistrial. It is time for the Court to address the government’s serial misconduct and dismiss 

the indictment with prejudice. There are three bases for dismissal: First, the Double Jeopardy 

Clause, triggered by the government’s actions which caused the mistrial; Second, the Court’s 

inherent supervisory powers, which give the Court discretion to fashion an appropriate remedy, 

including dismissal; Third, the Due Process Clause, triggered by the misconduct underlying the 

government’s trial actions, pre-trial privilege invasions, and discovery abuses. These are not the 

inadvertent acts of inexperienced prosecutors – this misconduct was committed by seasoned 

prosecutors, collectively with decades of experience.1 Each basis alone supports dismissal; in 

combination, the case for dismissal is even stronger.

II. THE GOVERNMENT’S ACTIONS CAUSED A MISTRIAL AND HAVE LEFT 

DEFENDANTS IN AN UNTENABLE POSITION.

A. The government knew that impermissibly introducing evidence of child sex 

trafficking would trigger a motion for mistrial.

This Court’s pre-trial rulings on Defendants’ motions in limine (e.g., Docs. 908, 927, 928) 

set forth the following clear limits:

• Third-party crimes: The government could present evidence of “the crimes of third 

parties” “only” “to the extent that they gave Defendants’ notice that prostitutes were 

advertising on Backpage.com.” “[T]he specific details of crimes committed by third parties 

are irrelevant to whether Defendants violated the Travel Act” . . . . and the Government will 

not be allowed to introduce evidence showing the details of the crimes.” (Doc. 1156 at 4-5 

(emphasis added).)

• Sex trafficking: The government could present evidence of sex trafficking to “prove 

Defendants were aware Backpage.com was being used to facilitate sex trafficking” by 

showing “notice to Defendants that the website was being used for illegal purposes,” but, 

“[o]f course,” the government was not permitted to “linger on the details of the abuse 

sex trafficking victims suffered.” (Id. at 3-4) (emphasis added).)

1 Kevin M. Rapp was admitted to practice in 1992. Reginald E. Jones is a Senior Trial 

Attorney the Department of Justice, where he has been for 11 years. Before that he was in private 

practice with a national law firm. 

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• Backpage’s reputation: The government could present evidence about Backpage’s 

reputation only to show “Defendants’ notice and prove Defendants’ intent to facilitate an 

unlawful activity,” but, “[o]f course, witnesses will not be allowed to offer reputation 

testimony untethered to communications with Backpage or Defendants as the reputation 

evidence, standing alone, would not be relevant to the crimes charged and would be 

hearsay.” (Doc. 1165 at 6 (emphasis added).)

• Prostitution lifestyle: The government could present testimony from prostitutes about 

“how ads were created, drafted, edited, and paid for,” but not “testimony of their time 

as prostitutes.” “Testimony from people involved in prostitution is only relevant as it 

relates to their use of Backpage.com and notice to Defendants that prostitutes were using 

their website. Testimony concerning the lifestyle and impact that prostitution had on 

witnesses’ lives is irrelevant to the crimes charged and may unduly prejudice 

Defendants.” (Doc. 1156 at 5-6, 18 (emphasis added).)

• “Expert” testimony on sex trafficking: As modified by the Court at trial, the 

government could present one witness to testify about how law enforcement conducts 

trafficking investigations, with a focus on how investigations shifted from craigslist.com to 

backpage.com, and an explanation of terminology often used in trafficking and prostitution 

industry. (Doc. 1081 at 17; infra at 8:8-11.) This Court barred both sides from, inter alia,

presenting expert testimony: (a) “about general sex trafficking patterns;” (b) “the role 

Backpage played in causing trauma to victims trafficked through its website;” and 

(c) “the benefits of shutting Backpage down or opinion testimony that the adult 

section of Backpage.com serves no legal purpose.” (Id. at 18 (emphasis added).)

o Sharon W. Cooper, M.D.: The government was permitted to present an 

explanation of “certain terms unique to the vernacular of the prostitution and sex 

trafficking subculture.” (Doc. 1081 at 16; infra at 8:8-16.)

Moreover, this Court ruled that this case is not about promoting prostitution in general, 

nor is it about what Backpage did or did not do; rather, the case had to focus on what each 

Defendant purportedly did to intentionally further specific business enterprises’ prostitution 

offenses in the charged counts. This Court ruled that:

• “[Defendants] 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.” (Doc. 946 at 13.)

• “[T]his case is not about Backpage. Backpage was prosecuted in a separate case, entered a 

plea in a separate case. This case is about these individual defendants and whether they had 

specific knowledge of these ads as facilitating illegal activity.” (Exhibit N at 38.) 

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B. Jury selection made clear that jurors who could fairly deliberate about 

prostitution could not be fair and impartial in deliberating about sex and 

child trafficking.

To pick a jury in this case, the Court and the parties reviewed over 340 completed jury 

questionnaires. The questionnaires revealed that potential jurors were much less likely to be fair 

and objective if the trial involved sex trafficking and child sex trafficking than if it involved the 

consensual crime of prostitution. Responses during the three days of courtroom voir dire 

confirmed this. (Exhibit A at 33, 52-54, 67, 88, 142, 163, 214, 234; Exhibit B at 5; Exhibit C at 17-

18, 122.) As neither sex trafficking nor child sex trafficking were charged in this case, the 

questionnaires and voir dire demonstrated the critical importance of keeping such irrelevant, 

unfairly prejudicial testimony away from the jury. 

C. The government used its opening to provoke a mistrial motion.

In addition to the court’s specific and clear pre-trial rulings on the scope of admissible 

evidence, when defense counsel received a copy of the visual presentation to accompany the 

government’s opening, defense counsel became concerned that the government would not adhere 

to those rulings, as the presentation made clear that the government intended to focus its opening 

on trafficking. Thus, on the day the parties were scheduled to open, Defendants raised their

concerns with the Court. The Court issued a warning, clarifying yet again, that the government 

counsel “aren’t prohibited from using the word trafficking,” but “do need to be careful that [the 

government’s] whole opening is not focused on this idea that that’s all that Backpage was about.” 

(Exhibit D at 31.) The government said it “understood” (id.), but then ignored those rulings and,

from the outset of trial, poisoned the jury during its opening by focusing on child sex trafficking, 

knowing the effect explosive, inadmissible, and prejudicial evidence involving child sex trafficking 

would have on the jury. (See Exhibit E.)

Predictably, and with no other option, Defendants were forced to move for an acquittal or, 

in the alternative, a mistrial, as the government’s opening beat the drum of child sex trafficking 

and made repeated conclusory assertions about the alleged extent of child and sex trafficking 

purportedly found on the site (with no ability or intention to prove such contentions). (See Doc. 

1272 at 1-2.) While denying Defendants’ motion, the Court issued a prescient warning to the 

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government, noting that the motion “may have more merit if the government fails to support [its 

opening arguments] in their case in chief.” (Exhibit F at 10.) Moreover, the litigation of this 

motion made it unmistakably clear to the government that Defendants would move for a mistrial

if it continued to engage in such misconduct.

D. The government’s case offered proof of none of the elements of the crimes 

charged and was faltering.

The government’s trial presentation was noticeably weak. Presumably starting with its 

strongest witness, the government opened with California law enforcement officer, Brian Fichtner. 

Fichtner took the jury through the website itself, with the goal of establishing that the ads on the 

site were all for prostitution. (Exhibit G at 56.) He failed woefully at that task, conceding that he 

knows of no officers making any arrests based solely on an ad posted to Backpage. (Exhibit J at

116-18.) Further, he conceded he could not tell if any of the ads he recorded in his video involved 

prostitution, because none of the ads included language of an offer of a sex act for money – a 

critical fact showing the ads were facially legal, thereby establishing Defendants’ defense under the 

First Amendment. (Exhibit K at 56-86.) He also conceded, with respect to the fake ad he posted, 

that the ad did not offer sex for money. The ad was taken down as soon as it was reported to 

Backpage as an ad purportedly associated with prostitution. Backpage prohibited him from 

reposting the ad in any city after it was removed. (Ex. J at 107-109, 112-13.) In other words, 

Backpage’s protocols for removing prostitution ads from the site worked. Fichtner also testified 

that, in his conversation with Carl Ferrer, Ferrer offered to remove the ad personally and appeared 

eager to learn how the officer detected the ad as being one for illegal services. Ferrer then provided 

Agent Fichtner with tools and resources on how to use the website for law enforcement 

investigations and prosecutions. (Id. at 107-13.). 

As its second witness, the government called a woman who had been featured in 

advertisements on the website. But her ads are not among the 50 charged ads, and she had never 

spoken to any Defendant at all, let alone about her ads or the operation of the website. (Exhibit I 

at 19-21.) Moreover, she had no foundational knowledge as to the ads that purportedly featured 

her. She testified that, when the ads were created, they purposely included multiple lies to comply 

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with the website’s terms of use. (Id. at 21-38.) The government then called her mother, who 

likewise provided no information about the 50 charged ads or any count in the Superseding 

Indictment. (Id. at 54-76.) Like many of the other witnesses on the government’s lengthy witness 

list, their testimony was offered only to inflame the jury.

Finally, over the Defendants’ objection, the government called a purported child sex 

trafficking expert, Dr. Sharon Cooper, even though there are no child sex trafficking charges. The 

government elicited from Dr. Cooper long narratives that went well beyond the topics on which 

the Court permitted expert testimony. Moreover, the government repeatedly elicited testimony 

from Dr. Cooper that was squarely prohibited by the Court’s orders (Docs. 1081 and 1156), 

including: 

• testimony that could only be construed as commentary about Backpage’s reputation as the 

preferred site for child sex trafficking, “untethered to communications with Backpage or 

Defendants” (Doc. 1165 at 7) and thus not showing notice to any Defendant; and

• testimony that could only be interpreted as commentary on the benefits of shutting down 

Backpage (as well as also being reputational testimony untethered to communications with 

Backpage or Defendants), as Dr. Cooper testified that when she was with the National 

Center for Missing and Exploited Children (“NCMEC”), Backpage “became the most 

common, for at least ten years, site that we saw victims sold for sex by sex traffickers”. 

(Exhibit L at 23-24.) 

As the Court narrowed the scope of the testimony the government was permitted to elicit 

from its witness and as it became clear those witnesses could not help prove the elements of the 

Travel Act offenses—or, like Fichtner, actually undermined the government’s case—the 

government elicited more and more testimony about child sex trafficking to intentionally goad 

Defendants into moving for a mistrial, to get a do-over to better present its case.

E. The government goaded Defendants into moving for a mistrial with 

repeated, obvious, and calculated violations of this Court’s clear rulings 

with each witness.

1. Brian Fichtner

On direct examination, the government’s first witness presented the jury with a video of 

the website at issue and testified that the ads on the website were for illegal prostitution services. 

(Ex. G at 56, 60-77.) However, on cross examination days later, Agent Fichtner fell apart and 

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essentially conceded the lack of a crime by these Defendants. He admitted that: (i) he did not even 

know his state’s definition of the crime of prostitution (Ex. K at 67-68, 73-77); (ii) he could not 

determine whether an ad was for prostitution on the face of an ad without more (Id. at 68-

69, 72, 79-85); and (iii) he had never arrested anyone for promoting or soliciting prostitution 

based on an ad alone (Id. at 94-95; Ex. J at 116-18). Fichtner’s devastating admissions on cross 

examination undermined the government’s entire case. Well aware that testimony about child sex 

trafficking would force a mistrial, the government played its ‘do-over card’ on its subsequent 

witness, eliciting inadmissible and inflammatory testimony regarding child sex trafficking. 

2. Jessika Svendgard

This Court significantly limited the scope of Jessika Svendgard’s testimony prior to her 

taking the stand. It reaffirmed that it had already ruled that “you [AUSA Rapp] can’t go into the 

life of her while she was being trafficked.” (Ex. G at 105.) Government counsel assured the court 

that he would comply with this ruling and would not “tend to dwell on . . . the day-to-day life as 

being pimped out and trafficked.” (Id.) This Court ruled that Ms. Svendgard could testify about 

being “trafficked by her pimp through Backpage and that she filed suit,” but not about anything 

for which she had no foundational knowledge. (Ex. I at 65, 67.) 

Ms. Svendgard’s testimony did not stay within the confines of what this Court said was 

permissible. She testified repeatedly that she was trafficked at the hands of a pimp for “105 days”

(id. at 80-82), and that she was raped (id. at 77).2 The government solicited testimony concerning 

her so-called “prostitution lifestyle,” including details about an altercation, attempted escape, and 

hiding under a mattress at a hotel. (Id.) At a sidebar on defense counsel’s objection, the 

government brazenly defended this questioning. (Id.) This Court reminded the government that 

it had already been “told . . . not to go into the life of a victim,” and that the line of questioning at 

issue was “beyond” the limited topic of the details of how her ads were posted on Backpage. (Ex.

2 The government not only elicited testimony that emphasized her 105 days of being 

trafficked and raped—on at least nine occasions, it did so by posing questions that repeated and 

emphasized her objectionable testimony. (Ex. I at 80, 81, 82, 90; Ex. Ex. J at 14, 18, 19, 51). For 

example, immediately after Ms. Svendgard testified that she was raped, Mr. Rapp asked: “In the 

105 days that you were with Mr. Hopson, how many times would that [being raped] happen, 

Jessika?” (Ex. I at 82.)

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I at 77.) This Court warned government counsel to “be very careful” (id. at 78), reminding the 

government that “these details are violating my order that you not go into the sort of details of her 

life as a prostitute” (id. at 79). 

But the government persisted. Defense counsel objected more than 27 times. After the 

irrelevant, inflammatory, and prejudicial testimony was heard by the jury, this Court repeatedly 

sustained objections to (a) questions and answers that violated this Court’s clear orders on the 

limits of her testimony or (b) testimony for which there was no foundation. (Id. at 74, 77, 80-81, 

82, 83, 84, 84-85, 85, 86, 87, 88); Ex. J at 16, 52.)

3. Nacole Svendgard

This Court recognized that much of Nacole Svendgard’s testimony would be “irrelevant 

and hearsay” (Ex. I at 14) and that she could testify only: that her daughter was trafficked on 

Backpage, but could not discuss the prosecution of her daughter’s pimp; about her meetings with 

elected officials and why she had them, but not the substance of the meetings; that she appeared 

before Congress, and about her purported encounter with Lacey, but not about the substance of 

her Congressional testimony. (Id. at 14-15.) But, in contravention to the boundaries this Court 

placed on Mrs. Svendgard’s testimony, the government repeatedly asked about the prosecution of 

Baruti Hopson (Ex. J at 56-58), an amicus brief filed in the civil litigation (Id. at 61), and a course 

she taught for parents on trafficking (Id. at 77). Defendants repeatedly objected to the solicitation 

of evidence that fell outside the scope of the limitations this Court set earlier that day. (Id. at 55-

58, 60-61, 65-67.) 

4. Expert witnesses

Agent Fichtner resumed testifying after Mrs. Svendgard. His admissions on cross 

examination completely undermined the government’s position that the jury could conclude that 

racy adult ads that did not expressly solicit sex for money were ads for illegal prostitution on their 

face. With its central argument crumbling, the government knew exactly how to get a do-over of 

its case: focus on child sex trafficking, and Defendants will move for a mistrial. So, as its fourth 

witness, the government called Dr. Sharon Cooper, a self-proclaimed “developmental and forensic 

pediatrician.” (Ex. L at 5, 8-25 (emphasis added).) 

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Previously, the government discussed its intention to present purported sex trafficking 

expert Christina DeCoufle. At that time, the government reassured this Court several times that 

the government did not “intend to focus on child sex trafficking at all,” and that, although this 

particular expert had experience with victims of such conduct, the government could “phrase her 

testimony in a way that does not highlight children and she can talk about sex trafficking, human 

trafficking and prostitution as a whole.” (Ex. G at 111-12 (emphasis added).) This Court ruled 

that the witness could “talk about [her] investigation[s] without talking about child sex 

trafficking” (id. at 112 (emphasis added)) and ordered the government to “direct her to do so”

(id.). Further, this Court modified its prior order (Doc. 1081) and precluded the government from 

soliciting testimony about “the relationship between traffickers and pimps and their victims 

including the common methods a sex trafficker uses to maintain control over a victim” as not 

relevant. (Ex. L at 114.)

Although Ms. DeCoufle never testified before this Court declared a mistrial, Dr. Cooper 

did. Defendants moved to preclude her testimony (Doc. 1300), and this Court denied the motion, 

ruling that the government could solicit testimony from her on the vernacular affiliated with 

prostitution. (Ex. K at 10-11.) 

But as soon as Dr. Cooper took the stand, the clear focus of her testimony was the online 

sexual exploitation of children. Defense counsel objected. (Ex. L at 8-10.) At a sidebar, this Court 

clarified that the government could not go into the “relationship between traffickers and pimps 

and that whole psychology,” but could solicit testimony about how “sex trafficking occurs on the 

internet.” (Id. at 10.) After this ruling, Dr. Cooper continued to testify about child sex trafficking, 

with the government eliciting this narrative testimony through what often were open-ended 

questions that did not preview the objectionable testimony to come—preventing the defense from 

objecting before the jury heard the objectionable testimony. For example, in discussing her 

credentials, Dr. Cooper repeatedly detailed her experience with victims of child sex trafficking as 

the basis for her expert opinions. (Id. at 5, 8-25.) Over the course of her inflammatory testimony, 

Defendants objected more than 50 times. The Court, too, attempted to keep the witness on topic. 

(Id. at 19; 20 (asking the government whether the question at issue had anything to do with “ads”).)

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At one of many sidebars, defense counsel objected to her testimony under Rules 702, 401, 

and 403. (Ex. L at 26.) Further, defense counsel moved for a mistrial, asserting that:

[T]he entire direct was geared toward saying children, children, children, 

children, children. That’s all we heard about. I did this with children. I did 

that, I this, they can’t consent, they can’t this, that. I move for a mistrial. I 

think that we are absolutely prejudiced at this point. These people think that 

this is a children case, and in—at the very minimum, this Court should instruct 

the jury that . . . . There is no charge of trafficking children. There is no 

charge of children prostitution. There are none of those crimes if you will. 

And these jurors are being led to believe that this is all about children. And 

that’s all she is talking about. And you can tell she’s a professional witness. 

She’s got all the, you know, the long narratives. Any kind of question she just 

goes on, and on, and on, and on, and I just think you have to stop it, Your 

Honor, and I think we are prejudiced irretrievably.

(Id. at 26-27.) 

The Court did not rule on the mistrial motion and instead told the government to “move 

on” from the topics at issue, cautioning the government that it was getting “close to a 403 

violation.” (Id. at 28.) Further, the Court explained that using the phrase “sex trafficking” was 

acceptable but that the government and its witnesses must “stay away from the child sex 

trafficking.” (Id. at 29.) The Court warned government counsel to “be careful” and “direct your 

witness a little bit, because she could very well go off on a tangent into something.” (Id.) 

The government ignored the Court’s warnings and marched ahead, soliciting testimony that 

fell outside the scope of the topics permitted by this Court. (Ex. L at 32, 33, 35, 36, 37, 40, 52, 

53.) Astoundingly, the government repeatedly asked questions about the relationships between 

traffickers and those they traffic – a topic this Court clearly precluded. (See, e.g., id. at 46 (striking 

answer), 48 (sustaining objection to testimony about prostitutes viewing themselves as married to 

their pimps).) In further violation of the Court’s rulings, the government intentionally pressed 

forward, eliciting testimony about the so-called “prostitution lifestyle.” (Id. at 48 (discussing 

STDs).) Equally as troubling, Dr. Cooper was asked about and opined on the ultimate issues the 

jury must determine. (Id. at 41 (“[W]hen we see it in writing, for example, on an online classified 

ad, we know right away that this is going to be the selling of a person for sex.”); 44 (When 

the term “100 percent independent is cited on a classified ad, it is for the purpose of promoting

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the buyer to believe that this is prostitution.” (emphasis added)).)

Predictably, and without any other option, the defense renewed the motion for a mistrial 

based on Dr. Cooper’s outrageous testimony. (Ex. L at 66-67.) Defense counsel explained that 

the prejudicial testimony was “snowballing,” in that “[e]very single time the government continues 

to beat the drum of child sex trafficking, the prejudicial effect and the difficulty that – the jurors 

would have to objectively evaluate the evidence gets tougher and tougher.” Id. at 67-68. Moreover, 

of all the testimony presented, there was “no connection of anything to any defendant or any ad 

in the indictment.” Id. at 68.

This Court indicated that it had “concerns that the government has crossed that line several 

times even after at sidebar I warned you not to do it.” (Id. at 74.) Further, this Court had “concerns 

that the testimony elicited from the victim [Svendgard] went beyond what it should have,” a 

problem that was compounded by the fact that “the testimony of Dr. Cooper” also “went well 

beyond what we had talked about prior to her testifying.” (Id.)

F. The Court granted a mistrial.

The following day, this Court granted the motion for mistrial. This Court recognized that,

while it had given the government some “leeway,” from the “opening and with every witness 

thereafter,” the government “abused that leeway.” (Exhibit M at 4.) Observing that “[t]he 

government, as prosecutors are held to a higher standard, and their goal is not to win at any cost, 

but to win by the rules,” (id. at 4) the Court identified several instances of the government’s blatant 

disregard for its rulings: 

• “[J]ust after we had a discussion about the expert Christina DeCoufle” the government 

“agreed to minimize the focus on child sex trafficking and refer to the more general sex 

trafficking. Mr. Jones then proceeded to question Dr. Cooper solely on child sex 

trafficking.”

• “In addition to Dr. Cooper just emphasizing child sex trafficking above everything 

else, she talked about the overwhelming majority of victims being trafficked . . . on 

Backpage, which although may be true, is similar to the reputation evidence that we talked 

about prior to trial, which I said would be allowed as long as it was tethered to some 

communication with the defendants, and that was not tethered to any communication 

with the defendants.”

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• “There was an order that the government stay away from the day in the life of a prostitute 

or victim. With Jessika Svendgard, the government solicited answers that went into 

the abuse by her trafficker.”

• “Also, with Jessika Svendgard, the government emphasized the 105 days over, and 

over, and over again. She also talked about being raped more than once, which raises a 

whole new emotional response from people.”

• “[T]here were other witnesses that also talked about the reputation of Backpage untethered 

from communications with the defendants.” 

(Ex. M at 4-5 (emphasis added).) These examples of the government’s failures to comply with the 

Court’s orders cannot be viewed in isolation, because they came after the government’s opening 

statement which, by itself, came “close to causing a mistrial” due to the government’s disregard of 

the Court’s orders. (Id. at 5.) 

This Court then brought in the jury – the product of substantial resources, careful analysis, 

and a months-long effort deployed by the Court and the parties both before and during trial – and 

released the members of the jury from their service.

G. The government’s conduct, coupled with the government’s overbroad asset 

freezes, puts Defendants in an untenable position.

Defendants cannot withstand the expense and insecurity of retrial, as the government well 

knows. At the outset of this case, the government seized virtually all of Defendants’ assets. When 

that did not choke the life out of the defense, the government then seized about $16 million from 

attorney retainer accounts, including from prominent national firms like Davis Wright Tremaine 

and Perkins Coie, causing Defendants Andrew Padilla and Joye Vaught to lose their counsel of 

choice and depriving the remaining Defendants of most of the funds that had been set aside for 

their defense. See, e.g., Exhibit P. Another particularly egregious restraint includes the seizure of 

about $400,000 held in an account that received only loan payments, rent, and the like tied to

Lacey, Larkin, Brunst, and Spear’s seller-financed sale of numerous newspaper businesses (notably, 

The Village Voice). (Id.) The government inexplicably has referred to the account in question as a 

“pass-through” account, without any evidence. Id. Defendants have been forced to try to defend 

themselves with their remaining assets, in a novel and unprecedented prosecution that now has 

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spanned three-and-a-half years. Defendants now have incurred enormous trial costs, which cannot 

be recouped and most of which will be duplicated in a retrial. These wasted expenditures have 

further diminished Defendants’ already depleted assets. 

Moreover, Defendants, several of whom are elderly and have health issues, have lived under 

the cloud of an indictment since April 2018, causing strain on them and their relationships and 

impacting their ability to provide for themselves, their health, and their stability. The Superseding 

Indictment subjects Defendants – who came to the trial expecting the government would fail to 

establish a single violation of law – to continuing embarrassment, expense, and ordeal.

III. THE DOUBLE JEOPARDY CLAUSE REQUIRES DISMISSAL OF THE 

SUPERSEDING INDICTMENT WITH PREJUDICE.

The Double Jeopardy Clause protects against multiple criminal prosecutions for the same 

offense. See U.S. Const. Amend. V. The protections of the Clause attach once a jury is empaneled 

and sworn. See United States v. Jorn, 400 U.S. 470, 479 (1971) (plurality opinion).3 At that point, the 

defendant has the right to have his or her case presented to and decided by that jury. See United 

States v. Gaytan, 115 F.3d 737, 742 (9th Cir. 1997) (citing Arizona v. Washington, 434 U.S. 497, 503 

(1978)). “[A]s a general rule, the prosecutor is entitled to one, and only one, opportunity to require 

an accused to stand trial.” Arizona, 434 U.S. at 505 (emphasis added). The core of the double 

jeopardy’s prohibition on multiple prosecutions “is denying the prosecution a second opportunity 

to supply evidence which it failed to muster in the first proceeding.” United States v. Weems, 49 F.3d 

528, 531 (9th Cir. 1995) (citing Tibbs v. Florida, 457 U.S. 31 (1982)). Moreover, multiple trials 

“enhanc[e] the possibility that even though innocent [a defendant] may be found guilty.” Gaytan, 

115 F.3d at 742 (quoting Green v. United States, 355 U.S. 184, 187 (1957)) (alterations in original).

The Double Jeopardy Clause prevents prosecutors from depriving a criminal defendant of 

the right to have his or her guilt or innocence determined in a single trial. The underlying and 

“deeply ingrained” policy served by this Clause is that the Federal Government, with “all its 

resources and power, should not be allowed to make repeated attempts to convict an individual for 

an alleged offense.” See Green, 355 U.S. at 187. As the Supreme Court observed, “[a] power in

3 Unless otherwise noted, internal citations and quotation marks have been omitted in all 

citations. 

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government to subject the individual to repeated prosecutions for the same offense would cut deeply 

into the framework of procedural protections which the Constitution establishes for the conduct of 

a criminal trial.” Jorn, 400 U.S. at 479. When prosecutors force a trial to reset once it has begun, 

a criminal defendant is unconstitutionally subjected to “embarrassment, expense and ordeal,” 

compelled to “live in a continuing state of anxiety and insecurity,” and exposed to an enhanced 

possibility that “even though innocent he may be found guilty.” Green, 355 U.S. at 187-188.

When a trial terminates prior to verdict, the circumstances of the termination determine 

whether retrial is barred by the Double Jeopardy Clause. Ordinarily, the Clause does not prevent 

retrial when the defendant moves for a mistrial. See Oregon v. Kennedy, 456 U.S. 667, 673 (1982) 

(plurality opinion). There is a well-established exception from this rule, however, if a mistrial 

results from government misconduct. See id. The Supreme Court has made clear that, if the 

prosecution engages in bad-faith tactics to bait the defendant into moving for a mistrial, the Double 

Jeopardy Clause bars the government from retrial. See id. (recognizing that retrial is barred when 

the “government conduct in question is intended to goad the defendant into moving for a 

mistrial”); United States v. Dinitz, 424 U.S. 600, 611 (1976) (indicating that retrial is barred when the 

underlying error at issue was “motivated by bad faith or undertaken to harass or prejudice” the 

defendant); Jorn, 400 U.S. at 485 (indicating that “prosecutorial . . . overreach” provides a basis for 

barring retrial under the Double Jeopardy Clause).

This protection for defendants from bad-faith prosecutorial tactics is important because, 

when a trial is terminated before verdict, “a second prosecution may be grossly unfair.” Arizona, 

434 U.S. at 504. A retrial “increases the financial and emotional burden on the accused, prolongs 

the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even 

enhance the risk that an innocent defendant may be convicted.” Id. This “danger of unfairness to 

the defendant exists whenever a trial is aborted before it is completed.” Id.; see also Green, 355 U.S. 

at 187 (Multiple trials “enhance the possibility that even an innocent [defendant] may be found 

guilty.”). Defendants should not “be required to live in a continuing state of anxiety and insecurity, 

without a definite resolution of the criminal charges against them.” Gaytan, 115 F.3d at 742 (citing 

Dinitz, 424 U.S. at 606)); see also Kennedy, 456 U.S. at 676-77 (recognizing that the Clause secures a 

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defendant the “freedom from extended anxiety, and the necessity to confront the government’s 

case only once”). 

To determine whether the prosecutor goaded the defendant into moving for a mistrial, 

courts must review the objective facts and circumstances of the case. See Kennedy, 456 U.S. at 675 

(plurality opinion) (explaining that courts can “infer[] the existence or nonexistence of intent from 

objective facts and circumstances”); id. at 679-80 (Powell, J., concurring) (“Because subjective 

intent often may be unknowable, I emphasize that a court – in considering a double jeopardy 

motion – should rely primarily upon the objective facts and circumstances of a particular case.”). 

For example, courts have even found goading where the government engaged in a course of 

secretive conduct, as the government’s intent could objectively be inferred from the circumstances. 

See United States v. Sterba, 22 F. Supp. 2d 1333, 1343 (M.D. Fl. 1998). Notably, Justice Powell 

recognized that a “sequence of overreaching” by the prosecution is objective proof of the 

prosecution’s intent to goad the defense into a mistrial. See Kennedy, 456 U.S. at 680 (Powell., J., 

concurring) (emphasis added). Further, the government engages in “prosecutorial overreaching” 

when the government puts “irrelevant and highly prejudicial material” before the jury. United States 

v. Martin, 561 F.2d 135, 139-40 (8th Cir. 1977). Under those circumstances, the intent to provoke 

a mistrial is inferred from the conduct of the government’s attorneys. See id.

The objective facts and circumstances of this prosecution show the government 

intentionally goaded Defendants into moving for a mistrial. This is not a case of isolated or 

occasional misconduct by the government. Instead, a seasoned prosecutorial team (see supra at 1 

n.1) repeatedly and plainly violated this Court’s pretrial orders and trial rulings. The government 

repeatedly ignored the Court’s orders and warnings, and presented evidence of child sex trafficking, 

the repeated rape of teenagers, and the trauma that victims purportedly suffered—all untethered 

to Defendants or a single charge against them. Mistrial was the natural and foreseeable 

consequence of the government’s course of conduct. That conduct has Constitutional 

implications. To hold otherwise, would allow “a prosecutor [to] have the option of first trying his 

case with inadmissible, prejudicial, and irrelevant evidence—that is, committing known error—in 

hopes of ‘getting away’ with it, with the ability to retry the case properly if the first trial is aborted 

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by a mistrial.” United Stated v. Kessler, 530 F.2d 1246, 1253 (5th Cir. 1976). Indeed, the repeated 

and contemptuous violations of this Court’s rulings constitutes the very “sequence of 

overreaching” by the prosecution that Justice Powell recognized as objective proof of the 

prosecution’s intent to goad the defense into moving for a mistrial. See Kennedy, 456 U.S. at 680 

(Powell., J., concurring). 

First, the prosecution did not need to speculate as to whether Defendants would move for 

a mistrial (and whether the Court would grant such a motion). There could not be a stronger 

record of Defendants putting the government on notice of what would provoke a mistrial motion 

than in this case—or of a court warning the prosecution about the risk of a mistrial motion being 

granted. That notice came from the Defendants’ pre-trial motions, the Court’s pre-trial rulings, 

the defense’s objections during trial, and the Court’s rulings and warnings directed toward the 

government during trial. Defendants’ position, and the Court’s rulings, were unmistakable. 

Second, mistrial was the natural and foreseeable consequence of the government’s pattern 

of misconduct. No attorney disobeys a court dozens of times at trial by “mistake”—much less a 

seasoned prosecutorial team (see supra at 1 n.1). Critically, courts have found the intent to goad the 

defense into a mistrial based on the government putting “irrelevant and highly prejudicial material” 

before the jury, even with misconduct much less egregious than the government’s misconduct 

here. See Martin, 561 F.2d at 139-40 (reversing conviction under the Double Jeopardy Clause). 

Here, rather than attempt to prove its charges, the government instead sought to infect the trial 

with nothing but “irrelevant and highly prejudicial material” during its opening and with the 

testimony of each witness. The government, undeterred by the more than 100 objections in five 

days and the Court’s repeated direction to the government to stop, would return from a sidebar 

and simply press forward, as if the sidebar never happened. An isolated act of misconduct may 

tend to show the government simply made a mistake. Repeated, bald violations of Court rulings 

can support only a finding that the government intended to provoke a mistrial. 

Third, the government’s case was failing on the merits. Based on their questionnaire 

responses and voir dire, the seated jurors were troubled about child sex trafficking—for which 

there are no charges—but much less so about prostitution. (Ex. A at 33, 52-54, 67, 88, 142, 163, 

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214, 234; Ex. C at 17-18, 122.) That is why the government infected the case with the former, 

ignoring the latter. The government never wanted to make this case about the actual charges in 

the indictment – it even objected to the defense’s statement in opening argument that the 

government had to meet its burden of proving specific intent as to each charged ad by showing 

beyond a reasonable doubt that each Defendant had actual knowledge of the charged ads.4 (Ex. 

G at 25.) Not a single government witness connected any Defendant to any of the charged ads. 

In fact, Agent Fichtner testified that the ads posted on Backpage did not, on their face, call for 

unlawful transactions but could indeed relate to legal escort, stripper, and other adult services. As 

such, the publication of those ads was presumptively protected by the First Amendment.5 His 

testimony demonstrated why the government could not obtain a conviction of the charged 

offenses based on admissible evidence. 

Indeed, each day, the government presented zero evidence to establish the charged 

offenses. Seeing the writing on the wall, the government deliberately injected the trial with 

evidence of sex trafficking and child trafficking, including irrelevant, heart-rending stories of rape 

and abuse of teenage girls – evidence it knew would force Defendants to move for a mistrial and 

thereby enable the government to regroup and try again. Not only would a new trial allow the 

government a retooling of its faltering case, but, like any second prosecution, the government also 

would have an opportunity to reshape its case in the wake of this Court’s various trial rulings and 

Defendants’ opening statements, and to rehearse its revised presentation of proof, thereby 

increasing the government’s chances of obtaining a conviction. See, e.g., Tibbs, 457 U.S. at 41 

(noting that the Double Jeopardy Clause “prevents the State from honing its trial strategies and 

4 The government objected that counsel’s statements on the grounds: “argumentative and 

misstates the law.” The Court sustained the objection, without stating which objection was 

sustained. (Ex. G at 25.)

5 Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 114 (2d 

Cir. 2017) (“[T]he First Amendment offers no protection to speech that proposes a commercial 

transaction if consummation of that transaction would necessarily constitute an illegal act. 

However, if, as here, there are plausible ways to complete a proposed transaction lawfully, speech 

proposing that transaction ‘concerns lawful activity’ and is therefore protected commercial 

speech.”) (emphasis in original) (citing Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 822 (9th Cir. 

2013)); accord Doc. 1222-2.

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perfecting its evidence through successive attempts at conviction”). Mistrial was the natural and 

foreseeable result of the government’s conduct. The government’s repeated violations of this 

Court’s orders were too frequent and too brazen to be swept aside, as if they were inadvertent 

mistakes. Five seasoned prosecutors obviously knew that their violations of this Court’s orders 

would leave Defendants no choice but to move for a mistrial. Having provoked a mistrial by 

willfully and repeatedly ignoring this Court’s rulings, the government should not be afforded a 

second bite at the apple.

IV. THE COURT’S SUPERVISORY AUTHORITY ALLOWS DISMISSAL WITH 

PREJUDICE.

A Court may dismiss an indictment under its supervisory powers “(1) to implement a 

remedy for the violation of a recognized statutory or constitutional right; (2) to preserve judicial 

integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; and 

(3) to deter future illegal conduct.” United States v. Bundy, 968 F.3d 1019, 1030 (9th Cir. 2020) 

(affirming dismissal with prejudice where government violated its Brady obligations); see United 

States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978) (“Under its inherent supervisory powers, a federal

court is empowered to dismiss an indictment on the basis of governmental misconduct. As such, 

dismissal is used as a prophylactic tool for discouraging future deliberate governmental impropriety 

of a similar nature.”). “The remedy of dismissal with prejudice, which is strong medicine for the 

entire prosecutorial group, is available pursuant to a district court’s supervisory powers over the 

attorneys who practice before it.” United States v. Lopez-Avila, 678 F.3d 955, 965-66 (9th Cir. 2012).

A court can exercise this remedy “even if the conduct does not rise to the level of a due 

process violation.” Bundy, 968 F.3d at 1030. Under a court’s supervisory powers, an indictment 

can be dismissed with prejudice “for prosecutorial misconduct only if there is (1) flagrant 

misbehavior and (2) substantial prejudice.” Id. at 1031. Here, the Court should exercise its 

supervisory powers to dismiss the case based on the government’s (1) misconduct, as detailed 

above and below, (2) concealment of discovery materials from the Western District of Washington 

investigation, and (3) privilege invasions in blatant violation of Judge Logan’s court orders, coupled 

with its contemporaneous concealment from Judge Logan and the defense of these on-going 

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invasions.

United States v. Aguilar, 831 F. Supp. 2d 1180, 1182 (C.D. Cal. 2011) is instructive. There,

although the court denied several motions to dismiss and readily admitted that “most district judges 

are reluctant” to grant motions that “allege governmental misconduct,” the cumulative effect of 

the government’s conduct over the course of the entire case was too severe for the court to 

overlook. There, as is the case here, the government obtained privileged communications between 

a defendant and counsel and also made an incomplete disclosure of certain Brady material. Id. at 

1191-94. Under its supervisory powers, the court found that “overall the Government’s conduct 

was improper” and, therefore, vacated defendants’ convictions and dismissed the indictment. Id. 

at 1206. The Court’s supervisory powers are likewise implicated here.

1. The government’s misconduct at trial warrants dismissal with 

prejudice.

A court’s use of its supervisory powers to dismiss charges is a critical tool to ensure that 

prosecutors play by the rules. United States v. Kojayan, 8 F.3d 1315, 1323-24 (9th Cir. 1993) (“The 

prosecutor’s job isn’t just to win, but to win fairly, staying well within the rules”; the government’s 

actions did not “inspire our confidence that this kind of thing won’t happen again.”). In LopezAvila, 678 F.3d at 958-961, the prosecutor misquoted impeachment material, resulting in a mistrial. 

The Ninth Circuit remanded, inviting the district court to consider the remedies of dismissal with 

prejudice and/or disciplining the prosecutor. Id. at 965. On remand, District Judge Jorgenson 

dismissed the indictment with prejudice, finding that dismissal was necessary to deter such conduct 

from occurring again in the future: 

The question now is not whether AUSA Albert will ever engage in the same 

conduct again, but rather what is the U.S. Attorney’s office doing to ensure 

that none of their attorneys will do so . . . . At this juncture, in light of the 

Ninth Circuit Court of Appeal’s clear directive, this case is not simply about 

the mistake of one AUSA, but rather the prosecuting office as a whole.

See Exhibit O at 7 (U.S. v. Lopez Avila, Case No. 4:10-cr-00035-CKJ-HCE, D. Ariz., Dismissal 

Order) (emphasis in original).

Here, the government repeatedly elicited testimony about sex trafficking, child trafficking, 

and rape despite the Court’s pre-trial rulings and the many times during trial where the Court made 

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clear that the government was crossing the line. In response to Defendants’ initial motion for 

mistrial, which this Court nearly granted, the government did not back off or show remorse, but 

instead doubled down, crossing the line again and again, despite the Court’s repeated warnings. 

Responding to the mistrial motion the Court ultimately granted, the government argued that “[t]his 

is a specific intent crime” and Dr. Cooper “never commented on the six defendants’ mental state.” 

(Ex. L at 72-73). Its response only served to demonstrate that the evidence was irrelevant to 

proving specific intent of the Defendants and was merely being offered to inflame the jury. Id. 

None of the government’s witnesses ever testified about the 50 charged ads, any knowledge by 

any of the six Defendants about any of those 50 ads or any business enterprises related to them, 

or any actions by any of the six Defendants related to those 50 ads or any business enterprises 

related to them. Id. Under these circumstances, as the Ninth Circuit has made clear, this Court is 

compelled to consider what remedy is necessary to punish and deter such misconduct. Ordering 

a mistrial, without more, unfairly prejudices the Defendants more than the government.

2. The government’s Brady violations warrant dismissal with prejudice.

A court may dismiss an indictment with prejudice to the extent the government 

impermissibly withholds discoverable materials. See United States v. Chapman, 524 F.3d 1073, 1085 

(9th Cir. 2008). In Chapman, the government had produced hundreds of thousands of pages of 

discovery, repeatedly representing it was complying with its obligations. But as the case progressed, 

“hints of discovery violations” surfaced. Id. at 1078. When pressed by the Court for proof of 

compliance, the government said it would produce additional copies of discovery in an “abundance 

of caution.” Id. at 1078-79. That additional production demonstrated that, despite the 

government’s representations, there had not been complete discovery. The district court deemed 

the government’s conduct “unconscionable” and dismissed the indictment with prejudice. Id. at 

1080. The Ninth Circuit affirmed, holding that the district court had properly exercised its 

supervisory powers. Id. at 1084-85 (noting that “[t]he AUSA repeatedly represented to the court 

that he had fully complied with Brady and Giglio, when he knew full well that he could not verify 

these claims.”). 

Here, the government’s discovery violations are akin to those in Chapman. The government 

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inexplicably claims that the underlying, non-privileged factual materials from an investigation in 

which another U.S. Attorney’s Office declined to prosecute Backpage are irrelevant and do not 

constitute Brady or Rule 16 material because it has unilaterally decided that this non-prosecution 

was misguided. Doc. 1328 at 3. But the government does not dispute that (a) the prior 

investigation covered the same time period that much of the government’s anticipated trial 

presentation in this case (as previewed in its opening statement and the indictment) and (b) based 

on a review of that evidence, the government declined to prosecute Backpage and the Defendants. 

Clearly the defense is entitled to review all of that same factual material, including obviously any 

material, relevant, impeaching, or exculpatory evidence. See Fed. R. Crim. Proc. 16(a)(1)(E)(i) 

(upon a demand by the defense, the government must produce information that “is material to 

preparing the defense”); United States v. Bagley ̧473 U.S. 667, 676 (1985) (defense is entitled to all 

evidence that “is favorable to the accused” or may be “material either to guilt or punishment,” 

including “impeachment evidence.”). Defendants have specifically demanded this evidence ad 

nauseum throughout the case, and the government has continuously refused to produce the 

materials. (Doc. 1281 at Ex. G; 1283 at Ex. A-F; 1284 at Ex. H-J.) The government may not 

assume the conclusion it must prove—that Defendants were acting criminally—to justify 

withholding discovery that undermines this unproven conclusion—that DOJ investigated and 

found the opposite—by claiming that later-gathered evidence would have changed DOJ’s prior 

conclusion. (Doc. 1326 at 10.)

Further, as was the case in Chapman, conspicuously absent from the government’s filings 

on this issue is any kind of verification that it has turned over all non-privileged materials from the 

DOJ’s earlier investigation. For example, one news outlet reported:

The seizure of Backpage also made it more difficult for law enforcement to find 

and help actual victims of trafficking. In memos published by Reason, two 

assistant U.S. attorneys for the Western District of Washington wrote that 

Backpage was “remarkably responsive to law enforcement requests and often 

takes proactive steps to assist in investigations,” and FBI Agent Steve Vienneau 

called the company “very cooperative at removing these advertisements at law 

enforcement’s request.”6

6 See https://www.vice.com/en/article/5dbvdb/mistrial-backpage-case-lacey-larkin; see also 

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Another news outlet reported that, in connection with the W.D.W.A. investigation, the 

government “reviewed more than 100,000 documents and interviewed more than a dozen 

witnesses . . . but failed to find a smoking gun,” noting that the memos stated “‘[i]t was also 

anticipated that we would find numerous instances where Backpage learned that a site user was a 

juvenile prostitute and Backpage callously continued to post advertisements for her. To date, the 

investigation has revealed neither.’”7 

Yet the government has never confirmed that it has produced all non-privileged materials 

from the W.D.W.A. investigation regarding Backpage’s cooperation with law enforcement, let 

alone the more than 100,000 documents it apparently reviewed and the summaries/notes of the 

more than dozen witness interviews it conducted. And in the nine pages of material the 

government produced for Vienneau (the lead agent on the W.D.W.A. investigation and also a 

government witness in this case), there is not a hint of any of his factual conclusions, only the 

euphemism that “[w]riter requests this case be closed due to investigative priorities and lack of 

available resources to address this matter.” (Exhibit R (filed under seal).) 

Significantly, the government also has admitted to withholding a non-privileged legal 

opinion from Arnold & Porter, an international law firm, concluding that a prospective purchaser 

of Backpage would have no criminal exposure based on adult advertising on Backpage. Why did 

the government withhold this? Prosecutors unilaterally concluded that the opinion was based on 

a “flawed legal analysis.” Doc. 1328 at 13 n.7. As the prospective purchaser explained before the 

W.D.W.A. grand jury (that did not return any indictment), Arnold & Porter reportedly opined that 

“there would not be . . . criminal liability” from adult advertising if the buyer were to purchase and 

operate Backpage. (Exhibit Qat 110:19-113:22 (filed under seal).) Defendants are only aware of 

this specific material, exculpatory, and impeaching document because the Arnold & Porter e-mail 

was used as an exhibit during the prospective buyer’s grand jury testimony. Id. The government 

produced the transcript but refuses to produce the email with the legal opinion. This is precisely 

https://gizmodo.com/as-trial-for-backpages-founders-begins-their-free-spee-1847645022. 

7 See https://www.thedailybeast.com/backpagecom-founders-michael-lacey-and-james-larkin-go-on-trialover-sex-worker-ads. 

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the type of relevant, exculpatory information to which the defense is entitled and that would have 

informed its defense of the case. See Chapman, 524 F.3d at 1083 (“One attorney noted that she 

would have opened the case differently had she known about the impeaching information.”); 

Bundy, 968 F.3d at 1041 (“Someone in the government made a conscious choice to withhold these 

documents. It may not have been a malicious choice, but it also was not a matter of simple 

oversight. At best, the government failed to appreciate the relevance of the evidence. At worst, it 

sought to handicap the defendants by withholding evidence directly relevant to mens rea. In either 

circumstance, the government fell well short of its obligations to work toward fairly and faithfully 

dispensing justice rather than simply notching another win.”). These clear discovery violations 

necessitate dismissal. See Bundy, 968 F.3d at 1019 (“The district court concluded that dismissal 

with prejudice was appropriate because the government withheld key evidence favorable to the 

defense until after trial was underway—in clear violation of its duties under Brady—and dismissing 

without prejudice would allow the government to cure its mistakes, to the detriment of the 

defendants.”).

At a minimum, the Court should (a) review in camera the underlying memos from the 

W.D.W.A. investigation to determine the accuracy of the government’s claims that it has “searched 

its files for any additional factual material” related to that investigation (Doc. 1328 at 3) and to 

determine whether all relevant materials were produced to Defendants; (b) require the government 

to “verify [its] claims” about whether it made all disclosures required from its prior investigation 

(as opposed to merely accepting the government’s facially dubious claims about the completeness 

of its production);8 and (c) afford Defendants an opportunity to rebut those claims at an 

evidentiary hearing. Chapman, 524 F.3d at 1085.

3. The government’s now-admitted privilege invasions warrant 

dismissal.

The government’s admission that it questioned Ferrer regarding subjects that “on their 

face” appear to be privileged leaves no doubt that the government was playing fast and loose with 

8 Indeed, the limited materials from the W.D.W.A. investigation that have been produced by 

the government were largely produced after repeated demands by the defense; some of those 

materials were produced on the eve of trial. (Doc. 1328 at 3 n.2.)

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Defendants’ attorney-client privilege protections. (See Doc. 1234 at 1; Doc. 942 at 6-7; Doc. 1022 

at 3-4 (identifying 19 separate privilege invasions).) The government tried to keep the Ferrer 

memos from Defendants for as long as possible, likely to keep their privilege invasion from 

Defendants for as long as possible.9 The government vigorously denied the existence of any 

privilege over communications with counsel regarding First Amendment and CDA protections:

[T]hese statements cannot be privileged because they have not remained 

confidential. Even if Defendants hadn’t publicly asserted the same legal theories

in scores of cases throughout the country over the last decade, Defendants

revealed these theories in this case in their earliest filings. (See, e.g., Docs. 23 and

26.) Simply put, it was no secret that Defendants would rely on First 

Amendment, mens rea, and CDA arguments to defend their operation of a 

website whose revenue-generating business model was overwhelmingly based on

advertising the sale of adults and children for sex.

(Doc. 998 at 1 (emphasis added).) Then, on the eve of trial, the government argued that Defendants 

cannot reference such communications because they have not waived the privilege covering them, 

claiming that a handful of legal memoranda that Defendants disclosed, which dealt with the same 

topics the government openly discussed with Ferrer, “on their face . . . appear to be protected by 

the attorney-client privilege.”(Doc. 1234 at 2) The hypocrisy of the government’s position is 

shocking. As both sides agree, these privileged communications go to the core of the government’s 

case. The government does not dispute that it is for this reason that the government so aggressively 

questioned Ferrer about them (concealing from Judge Logan that it had already invaded the 

privilege while its motion for permission to do just that was pending). (Doc. 942 at 1-2; see also 

Docs. 195, 338, 345.) Dismissal is necessary to preserve Defendants’ right to have their privileged 

communications with counsel remain confidential and to deter the government from engaging in 

such conduct in the future. Defendants also renew their request for an evidentiary hearing.

/ / /

/ / /

9 The government was to produce its initial Rule 16 disclosures by December 3, 2018, and 

all Jencks material by February 25, 2019. (Doc. 131.) The government refused, forcing Defendants 

to move to compel. (Doc. 662.) This Court then ordered the government to produce the Ferrer 

memos by August 20, 2019 (Doc. 730, 731.) Yet the government continued to trickle out the 

Ferrer memos well after that second deadline. 

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4. The government’s privilege invasions were on top of a pattern and 

practice of violating the Court’s orders and Defendants’ privileges.

In February 2019, Defendants Larkin and Lacey moved for an order clarifying the courtapproved protocol for the review of potentially privileged documents by the government filter 

team. (Doc. 452.) The motion sought an order clarifying that any documents identified as 

potentially privileged based on “hits” during the filtering process would have to be turned over to 

the defense for review and, unless the defense agreed a document was not privileged, the document 

could not be turned over to the prosecution team without an order of this Court. The defense 

expressed concern that the government’s filter team would unilaterally determine that documents 

identified as potentially privileged based on “hits” during the filtering process were not privileged 

and turn them over to the prosecution team without defense review. (Doc. 577 at 9-10.)

At the hearing on the motion, the government argued clarification was not needed because 

the government’s filter protocol required any “documents that are potentially protected [to] go, 

under this protocol, to the defense attorneys for the appropriate defendant, and then there would 

need to be an order from the Court before they’re ever disseminated to the investigative team.” 

(Id. at 8.) Based on the government’s representations about its filter protocol, the Court denied 

the defense motion for clarification, finding “no need for further clarification” because the 

government’s protocol required exactly what the defense asked for. (Id. at 11-12.)

Just seven months later, in December 2019, however, the government’s filter team did 

exactly what the defense feared and exactly what the government told the Court it would not do—

it turned over to the prosecution team, with no notice to the defense and no order from the 

Court, 966 documents that had been flagged as potentially privileged because they involved 

emails to or from attorneys whose names were on the filter list. 

Despite the obvious breach of the filtering protocol, the prosecution said nothing to 

Defendants or to the Court about the government’s egregious breach of the filtering protocol—

despite just months earlier assuring this Court that the prosecution would have no access to 

potentially privileged materials unless the defense agreed or the Court so ordered. The prosecution 

knew perfectly well it had no right to have the 966 documents it received from the filter team—as 

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they were emails to or from lawyers with whom the prosecution was well acquainted, including 

long-time counsel to Messrs. Larkin and Lacey, former general counsels to Village Voice Media 

and to Backpage.com, and a prominent attorney who represented Village Voice Media for several 

years. At a minimum, the prosecution’s obligation of candor required it to disclose to the Court 

and to the defense that it failed to follow the filtering protocol—but the prosecution said nothing. 

The prosecution also said nothing to the Court or to Defendants about yet another invasion 

of Defendants’ attorney-client privileges—a clear duty the prosecution owed to this Court and 

Defendants. United States v Pederson, 2014 WL 3871197 (D. Or. Aug. 6, 2014) (“In addition to a 

responsibility to avoid undue interference with a defendant’s attorney-client relationship and an 

obligation to respect a defendant’s Sixth Amendment rights, the government has a duty to 

disclose the receipt of a defendant’s attorney-client communications.”) (emphasis added). 

Whether the transmission of 966 potentially privileged documents was inadvertent or intentional, 

the prosecution’s failure to immediately disclose its failure to follow the filtering protocol approved 

by the Court plainly was intentional. The potentially privileged nature of these documents cannot 

be overlooked, as each of the 966 documents plainly involves a communication with counsel 

known to the prosecution. 

B. The government’s misconduct was flagrant.

“Flagrant” misconduct need not be “intentional or malicious.” Bundy, 968 F.3d at 1038. 

“[R]eckless disregard for the prosecution’s constitutional obligations” is sufficient to give rise to 

flagrant misconduct.” Id. Under this standard, “even unintentional misconduct may be sufficient,” 

as “[t]he facts of each case determine when Government conduct has placed in jeopardy the 

integrity of the criminal justice system.” United States v. De Rosa, 783 F.2d 1401, 1406 (9th Cir. 

1986). Here, the government (1) repeatedly failed to heed the Court’s rulings at trial; (2) refused 

to produce all relevant, non-privileged information from a federal investigation that resulted in a 

decision not to prosecute Backpage; (3) invaded the privilege on numerous occasions during 

interviews of its key cooperating witness; and (4) violated the Court’s order, failed to be forthright, 

and invaded Defendants’ sacrosanct attorney-client privilege. Standing alone, each of these acts 

would qualify as flagrant. But together, they reveal a pattern of conduct on that part of a 

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prosecutorial team that seems willing to ignore Court orders, ethical boundaries, and Defendants’ 

rights in a misguided attempt to win at any costs. The government’s actions speak for themselves 

and “demonstrate, at best, that the Government was reckless in disregarding and failing to comply 

with its duties.” Aguilar, 831 F. Supp. 2d at 1209.

C. The Defendants suffered substantial prejudice.

As the Ninth Circuit has observed, “[w]hen an initial prosecution ends in mistrial, a 

subsequent retrial will increase the emotional and financial burden imposed on the defendant, and 

may give the [government] an unfair opportunity to tailor its case based on what it learned the first 

time around.” Chapman, 524 F.3d at 1081 (the district court concluded that “the government 

should not be permitted ‘to try out its case identifying any problem area[s] 

and then correct those problems in a retrial.’”); see Arizona, 434 U.S. at 503–05 (“Even if the first 

trial is not completed, a second prosecution may be grossly unfair. It increases the financial and 

emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved 

accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be 

convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before 

it is completed.”). Here, these burdens on the defense are severe. This case was indicted over 

three years ago, Defendants were forced to move for multiple trial continuances (some because of 

the pandemic), and retained counsel in this case for Lacey, Larkin, Spear, and Brunst currently are 

not being paid for their time. (Ex. L at 74; see also Ex. P)

Further, there is no lesser available adequate remedy here. The government should not be 

afforded the opportunity to re-tailor its case strategy and witness examinations in response to 

Defendants’ opening statements and damaging cross-examinations. See Chapman, 524 F.3d at 1080; 

Aguilar, 831 F. Supp. 2d. at 1210 (“[T]he Government team committed many wrongful acts. It 

should not be permitted to escape the consequences of that conduct. By not allowing it to benefit 

from a ‘do over,’ the Court hopes that this ruling will have a valuable prophylactic effect.”).

Further, the Brady and Rule 16 violations here are so severe that the most appropriate 

remedy is dismissal. Production of the materials now, in advance of a second trial, is not enough. 

See Bundy, 968 F.3d at 1044 (“Lesser sanctions—such as a continuance to allow the defendants to 

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review discovery or declaring a mistrial and starting over—would have given the government an 

opportunity to strengthen its case at the defendants’ expense.”). The government also gained an 

unfair advantage and insight into Defendants’ trial strategy by eliciting privileged information from 

Carl Ferrer. And, based on Ferrer’s interview memos, the government intends to introduce this 

privileged information through him at trial. Despite the Court’s prior ruling that the defense 

suffered no prejudice from the government’s privilege invasion because of a lack of “specificity” 

of the invasions (Doc. 1168 at 16-17), the government’s recent filings prove otherwise. If, as the 

government now asserts, the mere reference to the “CDA” and “First Amendment,” for example, 

implicates the privilege (Doc. 1234 at 2), then there is no escaping the fact that the nineteen specific

examples of such information being disclosed by Ferrer identified by Defendants obviously 

implicate the privilege.

V. THE DUE PROCESS CLAUSE PROVIDES ANOTHER BASIS FOR 

DISMISSAL WITH PREJUDICE.

This Court should dismiss with prejudice under the Due Process Clause. Prosecutorial 

misconduct during trial deprives a defendant of due process of law and is a ground for dismissal. 

See Kojayan, 8. F.3d at 1324; cf. Aguilar, 831 F. Supp. 2d at 1206 (dismissing indictment under court’s 

supervisory powers for, inter alia, improperly reviewing attorney-client privileged communications 

and recklessly failing to comply with discovery obligations). As the Ninth Circuit explained in 

Kojayan, though the “normal rule, of course, is that where prejudicial error is committed at trial, the 

case will be sent back for a retrial[;] where, as here, the error is one of prosecutorial misconduct, 

we must” not only “assur[e] a fair trial to the defendants [in this case]” but also “assur[e] that the 

circumstances that gave rise to the misconduct won’t be repeated in other cases.” 8 F.3d at 1324. 

Because of the government’s prejudicial misconduct there, the Ninth Circuit vacated the 

conviction and remanded to district court to determine whether to retry the case or dismiss with 

prejudice as a sanction for the government’s misbehavior.10 Id. at 1325. The Ninth Circuit 

reasoned that “[m]uch of what the United States Attorney’s office does isn’t open to public scrutiny 

or judicial review. It is therefore particularly important that the government discharge its 

10 On remand, the district court dismissed the indictment. See Doc. 109, District Court docket 

from United States v. Kalfayan, et al., Case No. 2:91-cr-00622-2 (C.D. Cal.).

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responsibilities fairly, consistent with due process.” Kojayan, 8 F.3d at 1324. That court, like this 

Court, emphasized that “[t]he prosecutor’s job isn’t just to win, but to win fairly, staying well within 

the rules.” Id. at 1323. 

But here, the government’s approach throughout the case and trial has been to overreach, 

abuse this Court’s leeway, and win at all costs. (Ex. M at 4 (“The government, as prosecutors are 

held to a higher standard, and their goal is not to win at any cost, but to win by the rules.”); see also

Kojayan, 8 F.3d at 1324 (“One of the most important responsibilities of the United States Attorney 

and his senior deputies is ensuring that line attorneys are aware of the special ethical responsibilities 

of prosecutors, and that they resist the temptation to overreach.”). The cumulative effect of the 

government’s continued, flagrant misconduct throughout this case should not be overlooked. For 

example, as discussed supra, throughout three plus years of discovery and in the face of repeated, 

specific requests from Defendants, the government also intentionally withheld Brady and Giglio

materials related to DOJ’s W.D.W.A. investigation into Backpage.com that found no evidence of 

criminality. (Docs. 1281, 1332.) The requested material – including impeaching and exculpatory 

material – should have been produced to Defendants nearly three years ago, and the 

government’s repeated refusal to do so compromised Defendants’ trial presentation, which the 

Ninth Circuit has repeatedly made clear is alone a basis for dismissal under the Due Process Clause.

Additionally, the government brazenly and unapologetically invaded Defendants’ attorneyclient privilege. As discussed supra and as set forth in Defendants’ Motion to Dismiss for Invasion 

of the Attorney-Client Privilege (Doc. 942, 979), and renewed Motion (Doc. 1238, 1239, 1248), 

the government elicited statements from Carl Ferrer, which on their face were clearly privileged. 

Then, even after Judge Logan rejected the government’s claim that Ferrer had waived the privilege, 

the government nevertheless continued to interview Ferrer about the very subject matter that 

Judge Logan ruled to be privileged. (Supra at Section IV(3).) The government’s invasion of 

Defendants’ privilege was also rampant through its violations of and lack of candor to the Court 

about its taint team. (Supra at Section IV(4).)

/ / /

/ / /

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Further, the government’s overbroad seizures impeded and restricted Defendants’ right to 

present a defense. As discussed supra in Section II(G), the government’s unreasonable seizures of 

Defendants’ assets, attorney retainers, and funds that even the government concedes could not 

possibly be tainted have violated Defendants’ right to counsel of choice (forcing Mr. Padilla and 

Ms. Vaught to obtain court appointed counsel), frustrated their ability to present a defense, and 

made continued litigation and a re-trial untenable.11 

Even after causing a mistrial, the government still refuses to acknowledge wrongdoing and 

has not amended it witness or exhibit list in the slightest as a result of the Court’s rulings at trial 

limiting the government’s presentation. There is no reason to believe the government has learned

its lesson. See Kojayan, 8 F.3d at 1318 (“In determining the proper remedy, we must consider the 

government’s willfulness in committing the misconduct and its willingness to own up to it.”). The 

prosecutors’ misconduct in this case “deprived the defendants of due process of law. It 

contaminated their trial . . . and was [not] harmless.” Id. at 1342-25. This Court should dismiss 

the indictment with prejudice. 

VI. CONCLUSION

Under the Double Jeopardy Clause, the court’s supervisory authority, or the Due Process 

Clause, the Court should dismiss the indictment with prejudice. At a minimum, the Court should 

hold an evidentiary hearing regarding the scope of the government’s Brady violations and privilege 

invasions.

RESPECTFULLY SUBMITTED this 20th day of October 2021,

BIENERT KATZMAN LITTRELL 

WILLIAMS LLP

s/ Whitney Z. Bernstein

Thomas H. Bienert, Jr.

Whitney Z. Bernstein

Attorneys for James Larkin

11 These issues will be laid out in further detail in Defendants’ forthcoming motion for the 

release of funds.

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Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual (Oct. 2020) § 

II(C)(3), Whitney Z. Bernstein 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/ Gary S. Lincenberg

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

Case 2:18-cr-00422-DJH Document 1355 Filed 11/01/21 Page 36 of 37
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.1 CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE 

I hereby certify that on October 20, 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 1355 Filed 11/01/21 Page 37 of 37