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GLENN B. McCORMICK

Acting 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

NICHOLAS L. MCQUAID

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

REGINALD E. JONES (Miss. Bar No. 102806, reginald.jones4@usdoj.gov) Senior Trial Attorney, U.S. Department of Justice

Child Exploitation and Obscenity Section

950 Pennsylvania Ave N.W., Room 2116

Washington, D.C. 20530

Telephone (202) 616-2807 

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.

No. CR-18-422-PHX-SMB

UNITED STATES’ RESPONSE IN 

OPPOSITION TO DEFENDANTS’ MOTION TO DISCLOSE GRAND 

JURY INSTRUCTIONS ON 

PROSTITUTION (Doc. 1171)

Preliminary Statement

In June 2020, the United States sent proposed jury instructions to Defendants so the 

parties could confer before presenting them to the Court. After sitting on the instructions 

for 12 months, and without first providing comments to the government, Defendants filed 

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the instant “Motion to Disclose Grand Jury Instructions on Prostitution” in which they

assert the United States’ draft instructions “do not include the elements of a prostitution 

offense or offenses under state law,” speculate “the government did not properly advise the 

grand jury on the law,” and seek disclosure of grand jury’s legal instructions regarding the 

Travel Act, 18 U.S.C. § 1952. (Doc. 1171, Mot. at 1.)1

 

This is déjà vu all over again. In their Motion, Defendants seek to relitigate their

repeated and unsuccessful efforts to obtain the grand jury’s legal instructions. In October 

2019, Defendants sought disclosure of the grand jury transcripts, including legal 

instructions, in their “Joint Motion to Dismiss Indictment for Grand Jury Abuse or, in the 

Alternative, for Disclosure of Grand Jury Transcripts” (Doc. 782). After detailed briefing, 

the Court denied the motion in an 11-page Order. (Doc. 844; see also Docs. 812, 826.) 

Later, in connection with Defendants’ “Motion to Dismiss Indictment Based on Failure to 

Allege Necessary Elements of the Travel Act” (Doc. 746), the Court ordered the United 

States to disclose the Travel Act grand jury legal instructions in camera in February 2020, 

and the United States complied. (Docs. 879, 892.) For a second time, Defendants 

unsuccessfully sought the same instructions (see Docs. 881, 887), and the Court denied the 

Travel Act motion to dismiss (Doc. 946).

Defendants now look to litigate this issue for a third time. To the extent the instant 

Motion seeks to relitigate issues previously decided by this Court in this case, including 

the sufficiency of the Travel Act-related counts in the Superseding Indictment (Doc. 230, 

SI), the Motion is barred by the law of the case doctrine. See Cross v. Commr. of Soc. Sec. 

Administration, CV-19-01801-PHX-SMB, 2021 WL 1711832, at *4 (D. Ariz. Apr. 30, 

2021) (“The law of the case doctrine precludes courts from reexamining issues previously 

decided by the same court in the same litigation.”). Defendants’ Motion fails to offer any 

genuinely new or meritorious grounds for relief, and it should be denied.

1 The proposed jury instructions have not been finalized; Defendants sought multiple 

extensions from the government to provide comments to the United States’ draft, and the 

parties anticipate submitting a joint set of proposed instructions before trial. 

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First, grand jury proceedings are secret, and Fed. R. Crim. P. 6(e)(3)(E) permits in 

camera review in certain limited circumstances “at a time, in a manner, and subject to any 

other conditions that [the Court] directs.” Here, the Court previously ordered a discrete, 

limited, and narrow in camera production of the grand jury Travel Act instructions. (Doc.

879 at 2.) The limited nature of that review was appropriate because—especially in the 

context of a defense demand to review legal instructions to the grand jury—there is no 

requirement to even instruct the grand jury on the law. Moreover, that limited review was 

appropriate because Defendants failed to meet their heavy burden of demonstrating the 

particularized, specific need for grand jury materials that the law requires. Douglas Oil 

Co. of Cal. v. Petrol Stops Northwest, 441 U.S. 211, 222 (1979); (Doc. 844, Order at 10). 

Second, in their instant Motion, Defendants once again fail to clear this high hurdle. 

“Mere ‘unsubstantiated, speculative assertions of improprieties in the proceedings’ do not 

supply the ‘particular need’ required to outweigh the policy of grand jury secrecy.” United 

States v. Ferrebouef, 632 F.2d 832, 835 (9th Cir. 1980) (quoted in Doc. 844, Order at 5). 

Defendants’ assertion that the grand jury instructions were required to include “the 

elements of the State statutes alleged to have been violated by the purported business 

enterprise(s) facilitated by Defendants” (Mot. at 4) is incorrect and contrary to this Court’s 

Orders regarding the sufficiency of the SI. Moreover, as before, Defendants suggest that 

if the grand jury instructions were inadequate then any affected counts and/or the entire 

indictment should be dismissed. (Mot. at 6; see also Doc. 798 at 4, 7 and Doc. 780 at 14-

15.) Established law does not support that claim, and any mistakes in the instructions (or 

failure to instruct for that matter) can be readily cured by the petit jury at trial. To that end, 

Defendants have only now begun to comment on the proposed jury instructions that the 

United States sent them a year ago. Defendants’ Motion should be denied.

Argument

I. The Grand Jury Operates with a Presumption of Regularity, and Defendants 

Bear a Heavy Burden in Overcoming the Presumption.

The scope of judicial review of grand jury matters has been narrowly circumscribed 

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by the Supreme Court. Grand jury proceedings are invested with a presumption of 

regularity. United States v. R. Enters., Inc., 498 U.S. 292, 301 (1991). (See also Doc. 844 

at 2-3.) Applying this deferential standard to grand jury matters, the Supreme Court has 

long been reluctant to permit challenges to indictments based on alleged errors in grand 

jury proceedings. Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988); Costello 

v. United States, 350 U.S. 359, 363 (1956) (“[a]n indictment returned by a legally 

constituted and unbiased grand jury . . . if valid on its face is enough to call for trial of the 

charge on the merits”). 

In United States v. Williams, 504 U.S. 36 (1992), the Supreme Court further 

restricted the ability of federal courts to invoke the supervisory power for creating 

prosecutorial standards before the grand jury. The Court stated that precedent regarding 

the supervisory authority of the judiciary applied “strictly with the court’s power to control 

their own procedures.” 504 U.S. at 45. The Court then stated: 

We did not hold in Bank of Nova Scotia, however, that the courts’ 

supervisory power could be used, not merely as a means of enforcing or 

vindicating legally compelled standards of prosecutorial conduct before the 

grand jury, but as a means of prescribing those standards of prosecutorial conduct in the first instance just as it may be used as a means of establishing standards of prosecutorial conduct before the courts themselves.... Because 

the grand jury is an institution separate from the courts, over whose 

functioning the courts do not preside, we think it clear that, as a general matter at least, no such “supervisory” judicial authority exists. 

Id. at 46-47.

The combined effect of these Supreme Court cases is to limit a defendant’s ability 

to attack the validity of an indictment to those instances where the alleged misconduct 

seriously undermined the grand jury’s independence and unfairly prejudiced the defendant. 

In exercising these supervisory powers, however, cases caution that the courts must not 

encroach on the legitimate prerogatives and independence of the grand jury and the 

prosecutor. United States v. Chanen, 549 F.2d 1306, 1313 (9th Cir. 1977). 

To that end, transcripts of witness testimony, statements made by government 

attorneys, and any other statements made by or before the grand jury, while in session, 

clearly constitute “matters occurring before the grand jury” or “grand-jury matters” and 

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may not be disclosed, except in conformity with one of the exceptions to Rule 6(e). See

Douglas Oil, 441 U.S. at 218 (proper functioning of grand jury system depends upon 

secrecy of grand jury proceedings); United States v. Proctor & Gamble, 356 U.S. 677, 682 

(1958); United States v. Diaz, 236 F.R.D. 470 (N.D. Ca. 2006) (exchanges between grand 

jurors and prosecutors are “matters occurring before the grand jury”). As this Court has 

recognized, Rule 6(e)’s considerations and the reasoning of Douglas Oil remain 

informative and relevant here. (Doc. 844 at 9.) In camera review is an appropriate means 

of implementing Rule 6(e)’s provision for discrete and limited review. 

II. An Even Higher Standard Applies to Motions to Dismiss Based on Alleged 

Failure to Properly Instruct the Grand Jury.

Defendants’ request is based on the flawed premise that the government is under a 

strict obligation to instruct the grand jury on the law as it relates to an indictment. In fact, 

the Ninth Circuit has long held that the government has no obligation to provide legal 

instructions to a grand jury. United States v. Larrazolo, 869 F.2d 1354, 1359 (9th Cir. 

1989) (the prosecutor has no duty to outline the elements of the crime as long as the 

elements are at least implied and the instructions are not flagrantly misleading), overruled 

on other grounds by Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989); United 

States v. Kenny, 645 F.2d 1323, 1347 (9th Cir. 1981) (rejecting argument that grand jury 

should receive jury instructions similar to those given at the end of trial; “[w]e are not 

persuaded that the Constitution imposes the additional requirement that grand jurors 

receive legal instructions”). 

As noted in previous pleadings, Defendants’ argument that an indictment may be 

dismissed due to speculative claims that the grand jury was not correctly instructed does 

not comport with long established law. Under the Bank of Nova Scotia standard, “dismissal 

of the indictment is appropriate only if it is established that the violation substantially 

influenced the grand jury’s decision to indict, or if there is grave doubt that the decision to 

indict was free from the substantial influence of such violations.” 487 U.S. at 256. As the 

Northern District of California recently noted in denying a motion to dismiss for erroneous 

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legal instructions, “[t]he Ninth Circuit has held in no uncertain terms that the Bank of Nova 

Scotia standard sets a high bar for dismissal”:

Only in a flagrant case, and perhaps only where knowing perjury, relating to 

a material matter, has been presented to the grand jury should the trial judge dismiss an otherwise valid indictment returned by an apparently unbiased 

grand jury. To hold otherwise would allow a minitrial as to each presented 

indictment contrary to the teaching [of the Supreme Court].

United States v. Pacific Gas and Electric Co., 2015 WL 9460313, at *2 (N.D. Cal. Dec. 

23, 2015) (PG&E) (quoting United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir. 

1977)). Even “extensive prosecutorial misconduct” before the grand jury may not justify 

dismissal of an indictment. United States v. Navarro, 608 F.3d 529, 539 (9th Cir. 2010) 

(citing Bank of Nova Scotia, 487 U.S. at 263). 

Given this high standard, the Ninth Circuit has held that “[e]rroneous grand jury 

instructions do not automatically invalidate an otherwise proper grand jury indictment.” 

United States v. Wright, 667 F.2d 793, 796 (9th Cir. 1982). Rather, dismissal for improper 

instructions is warranted only where “the conduct of the prosecutor was so ‘flagrant’ it 

deceived the grand jury in a significant way infringing on their ability to exercise 

independent judgment.” Larrazolo, 869 F.2d at 1359. The movant “must show that the 

grand jury’s independence was so undermined that it could not make an informed and 

unbiased determination of probable cause.” Id. And again, the Ninth Circuit has held that 

the government need not even instruct the grand jury on the law, recognizing that “the 

giving of such instructions portends protracted review of their adequacy and correctness 

by the trial court during motions to dismiss, not to mention later appellate review.” Kenny, 

645 F.2d at 1347.

In Larrazolo, for example, defendants contended that the definition of conspiracy 

offered to the grand jury “neglected to include the requirements of criminal intent and 

knowledge” and therefore “misled the grand jury in [the] explanations of conspiracy law.” 

Larrazolo, 869 F.2d at 1359. Specifically, the prosecutor “characterized the acts of 

[defendants] in loading bales of marijuana as [both] the overt act and evidence of the mens 

rea requirement of conspiracy [,] without finding specific knowledge of the agreement.” 

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Id. Defendants argued that “if complete and proper jury instruction had been given, the 

grand jurors would have found evidence of the mens rea element missing.” Id. But the 

Ninth Circuit held that the erroneous instructions did not require dismissal because 

defendants had not “shown the erroneous instructions influenced the decision to indict or 

created a ‘grave doubt’ that the decision to indict was free from the substantial influence 

of such a violation.” Id.

Similarly, in PG&E, the court found that the prosecutor’s alleged failure to instruct 

the grand jury on causation, gain or loss and other issues relating to the Alternative Fines 

Act did not meet the high standard for dismissal set forth in Bank of Nova Scotia. 2015 

WL 9460313, at *5-6. Even assuming the defendant was correct, the alleged errors were 

not “‘so flagrant [that they] deceived the grand jury in a significant way infringing their 

ability to exercise independent judgment.’” Id. at *6 (quoting Larrazolo, 869 F.2d at 1359). 

The court reiterated that “the prosecutor need not provide legal instructions to the grand 

jury at all,” and the proceedings did not give the court “grave doubt” that the grand jury’s 

probable cause determination was made with anything other than “independent judgment.” 

Id. See also, e.g., United States v. Dufau, 2017 WL 5349541, at *2 (D. Idaho Nov. 13, 

2017) (following Larrazolo, Wright and Kenny; denying motion to dismiss based on failure 

to instruct grand jury on two essential elements of harboring charge); United States v. 

Chavez, 2002 WL 35649603, at *3 (D.N.M. Nov. 14, 2002) (“a prosecutor is not required 

to provide elements instructions to a grand jury, particularly instructions like those given 

to a petit jury”). 

Larrazolo, PG&E and similar cases demonstrate that erroneous or incomplete legal 

instructions will rarely, if ever, rise to the level of flagrant misconduct sufficient to meet 

the Bank of Nova Scotia’s demanding standard. This has long been the law in other Circuits 

as well. In United States v. Buchanan, 787 F.2d 477, 487 (10th Cir. 1986), for example, 

the court wrote:

Attempt[s] to prevent trial by attacking alleged legal errors in the grand jury proceedings [are] generally rejected. An indictment returned by a legally constituted and unbiased grand jury, if valid on its face, is enough to call for 

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trial of the charge on the merits. . . . An indictment may be dismissed for prosecutorial misconduct so flagrant that there is some significant infringement on the grand jury’s ability to exercise independent 

judgment. [¶] Challenges going only to the instructions given to the grand jury as to the elements of the offenses are not grounds for dismissal of an 

indictment that is valid on its face.2

Furthermore, courts have repeatedly held that a conviction at trial, which reflects a 

petit jury’s determination of guilt beyond a reasonable doubt, renders harmless any alleged 

errors that occurred before the grand jury. See, e.g., United States v. Mechanik, 475 U.S. 

66, 67-73 (1986); Navarro, 608 F.3d at 538 (“The petit jury’s verdict establishes that 

probable cause existed.”); United States v. Morgan, 384 F.3d 439, 443 (7th Cir. 2004); 

United States v. Reyes-Echevarria, 345 F.3d 1, 4 (1st Cir. 2003).

Moreover, as previously argued, the instructions to the grand jury are secret. (Doc.

812). In United States v. Chambers, 2019 WL 1014850, at *3 (D. Conn. Mar. 4, 2019), 

the court responded to another district court decision allowing for the disclosure of 

instructions to the grand jury, finding:

The Court is not persuaded that such a relaxed approach adequately protects 

the long-recognized goals of grand jury secrecy. . . .[3

] Indeed, “[legal] instructions [given to the Grand Jury] ..., or the existence of such instructions goes to the substance of the charge being laid before the Grand Jury as well 

as how the Grand Jury is to proceed regarding the type and manner of 

produced evidence before the panel.” United States v. Larson, 2012 WL 

4112026, at *5 (W.D.N.Y. Sept. 18, 2012). Accordingly, affording these instructions the same level of secrecy as other grand jury materials is, in this 

Court’s view, appropriate. 

Other courts—including those within the Ninth Circuit—have taken a similar view. See, 

e.g., United States v. Stepanyan, 2016 WL 4398281, at *2 (N.D. Cal. Aug. 18, 2016) 

(“courts have uniformly rejected the argument that the government’s instructions or 

remarks to the grand jury are not entitled to secrecy”); United States v. Morales, 2007 WL 

628678, at *4 (E.D. Cal. Feb. 28, 2007) (denying request for release of the grand jury 

instructions). 

2 United States v. Peralta, 763 F. Supp. 14, 19-21 (S.D.N.Y. 1991), cited by Defendants 

(Mot. at 6), involved the government’s presentation of concededly inaccurate hearsay 

testimony to the grand jury, which was compounded by instructions and responses to grand 

jurors’ questions that “seriously misstated the applicable law” of constructive possession.

3 Citing In re Grand Jury Subpoena, 103 F.3d 234, 237 (2d Cir. 1996). 

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While Defendants cite three pre-Stepanyan district court cases from California that, 

with little analysis, take a contrary view (see Mot. at 6), numerous courts around the 

country have concluded that grand jury instructions are subject to traditional presumptions 

of grand jury secrecy. See, e.g., United States v. Barry, 71 F.3d 1269, 1274 (7th Cir. 1995)

(the “defendant must show particularized need” to obtain grand jury instructions); 

Chambers, 2019 WL 1014850, at *2 (“Although the Second Circuit Court of Appeals has 

not squarely addressed the issue, courts within the Second Circuit Court of Appeals have 

consistently held that obtaining grand jury instructions requires a showing of particularized 

need.”) (citation and quotation marks omitted); United States v. Welch, 201 F.R.D. 521, 

523 (D. Utah 2001) (“The instructions to the grand jury are intimately associated with the 

deliberation and judgement [sic] aspects of the grand jury function. Therefore, the 

instructions are matters occurring before the grand jury and require meeting standards for 

release of grand jury information.”). As this Court previously found, the particularized 

need standard applies to such requests (Doc. 844 at 10)—and Defendants offer nothing 

genuinely new or meritorious in the instant Motion capable of meeting that standard here.

III. Defendants’ Motion Fails to Overcome the Strong Presumption of Grand Jury 

Regularity.

Defendants have repeatedly, without success, challenged the SI’s conspiracy and 

Travel Act counts concerning Defendants’ facilitation of prostitution. In October 2019, 

after extensive briefing and oral argument, the Court issued a 23-page Order denying 

Defendants’ Motion to Dismiss the Indictment. (Doc. 793). The Court identified the 

required Travel Act elements and ruled that the SI adequately pleaded those elements: 

The [Travel Act] requires [1] use of an interstate facility, [2] with the intent 

to facilitate an unlawful activity, and [3] a subsequent act in furtherance of that unlawful activity. Here, the SI alleges Defendants used a website with 

the intent to facilitate prostitution (a criminal activity) and executed 

strategies to further and increase that activity....[¶] .... [The SI] contains the elements of the offense charged and fairly informs Defendants of the charges 

against which they must defend.

(Doc. 793 at 22.) More specifically, the Court found:

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To obtain a conviction under the Travel Act, the Government must show 

defendants had “specific intent to promote, manage, establish, carry on or 

facilitate one of the prohibited activities.” United States v. Gibson Specialty Co., 507 F.2d 446, 449 (9th Cir. 1974); accord United States v. Tavelman, 650 F.2d 1133, 1138 (9th Cir. 1981) (“An indictment under the Travel Act 

requires allegations of each of the three elements of the crime: (1) interstate 

commerce or use of an interstate facility (2) with intent to promote an 

unlawful activity and (3) a subsequent overt act in furtherance of that unlawful activity.”); United States v. Polizzi, 500 F.2d 856, 876–77 (9th Cir. 1974) (Required intent under the Travel Act is “specific intent to facilitate an 

activity which the accused knew to be unlawful under state law.”). 

(Doc. 793 at 15.) After canvassing the SI’s detailed allegations, which span 92 pages, the 

Court concluded that “[t]he 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 fifty ads for 

prostitution that now make up fifty counts of violating the Travel Act.” (Doc. 793 at 20; 

see id. at 21 (according to the SI, Defendants “intended to facilitate prostitution, which is 

a crime. See A.R.S. § 13-3214.”).)

In May 2020, the Court denied Defendants’ follow-on Motion to Dismiss 

Indictment Based on Failure to Allege Necessary Elements of the Travel Act. (Doc. 946.) 

In an 18-page Order, the Court found that “the SI alleges ‘unlawful activity’ for each Travel 

Act Count with adequate specificity to inform Defendants of their charges.” (Doc. 946 at 

11.) The Court wrote that “the SI alleges fifty instances where Defendants posted ads on 

Backpage.com to facilitate specific individual prostitutes or pimps involved in the business 

of prostitution. (SI ¶¶ 200-201.)” (Doc. 946 at 11.) The Court observed that the allegations 

in the SI “almost identically mirror[ ] the Travel Act’s text,” and quoted Paragraph 201 of 

the SI as follows: 

On or about the dates set forth below, each instance constituting a separate count of this Superseding Indictment, in the District of Arizona and 

elsewhere, [Defendants], and others known and unknown to the grand jury, 

use the mail and any facility in interstate and foreign commerce with intent 

to otherwise promote, manage, establish, carry on, and facilitate the promotion, management, establishment, and carrying on of an unlawful 

activity, to wit: prostitution offenses in violation of the laws of the State in 

which they are committed and of the United States, including but not limited 

to Title 13, Arizona Revised Statutes, Section 13-3214, and thereafter 

performed and attempted to perform an act that did promote, manage, 

establish, carry on, and facilitate the promotion, management, establishment, 

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and carrying on of the unlawful activity, as follows: [describing instances that Defendants published prostitution ads in support of specific individuals, 

businesses, and other groups involved in prostitution]. In violation of 18 

U.S.C. § 1952(a)(3)(A). 

(Doc. 946 at 11.)4

 

The Court then found that the SI contained “the requisite Travel Act elements

adequately alleged to provide Defendants with notice of the charges against them.” (Doc. 

946 at 12.) The Court readily found that “[t]he 92 detailed pages of allegations directly 

bearing on Defendants’ Travel Act violations surely place them on notice of their 

association with individuals and groups engaged in the business of prostitution.” (Doc. 

946 at 13.) Moreover, the Court again found the SI adequately alleged Defendants had the 

requisite intent to promote or facilitate unlawful activity. (Doc. 946 at 14-16.)

The Court’s analysis fit comfortably within settled Ninth Circuit caselaw. As the 

Court noted, SI ¶ 201 “almost identically mirrors the Travel Act’s text.” (Doc. 946 at 11.) 

Numerous decisions in the Ninth Circuit and elsewhere have approved of substantially 

similar Travel Act counts. Tavelman found sufficient a Travel Act indictment that alleged: 

“[O]n July 20, 1979: (1) the defendants traveled interstate...(2) with the intent to promote 

a violation of 21 U.S.C. § 841(a)...and (3) thereafter knowingly performed acts facilitating 

that unlawful activity.” 650 F.2d at 1138. The court held these allegations “are sufficient 

to state violations of 18 U.S.C. § 1952(a)(3).” Id. See also Turf Center, Inc. v. United 

States, 325 F.2d 793, 794 n.2 (9th Cir. 1963) (affirming conviction in case where Travel 

Act count contained language nearly identical to SI ¶ 201). 

At least five other Circuits share this view. See, e.g., United States v. Welch, 327 

F.3d 1081, 1090 (10th Cir. 2003) (“As set forth by the Act’s plain language, the elements 

necessary to sustain a Travel Act conviction are (1) travel in interstate or foreign commerce 

or use of the mail or any facility in interstate or foreign commerce, (2) with the intent to 

promote, manage, establish, carry on, or facilitate the promotion, management, 

4 The cited Arizona statute provides “[i]t is unlawful for a person to knowingly engage in 

prostitution.” A.R.S. § 13-3214(A). A.R.S. § 13-3211(5) defines “prostitution” as 

“engaging in or agreeing or offering to engage in sexual conduct under a fee arrangement 

with any person for money or any other valuable consideration.” The SI made clear that 

“[p]rostitution is illegal in 49 states and in most of Nevada.” (Doc. 230, SI ¶ 33.)

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establishment, or carrying on of the enumerated unlawful activity, and (3) performance of 

or an attempt to perform an act of promotion, management, establishment, or carrying on 

of the enumerated unlawful activity.”); United States v. Childress, 58 F.3d 693, 719 (D.C. 

Cir. 1995) (essential elements of a Travel Act charge are: “(1) interstate travel or use of a 

facility in commerce (2) with the intent to promote an unlawful activity and (3) that the 

defendant thereafter performed or facilitated the performance of an overt act in furtherance 

of the unlawful activity”); United States v. Muskovsky, 863 F.2d 1319, 1326 (7th Cir. 1988) 

(“A Travel Act violation occurs when a person uses any facility in interstate commerce 

with intent to promote or facilitate an unlawful activity and thereafter promotes or 

facilitates the illegal activity”); United States v. Palfrey, 499 F. Supp. 2d 34, 43 (D.D.C. 

2007) (the Fifth, Seventh, Eighth, Ninth and D.C. Circuits have upheld Travel Act 

convictions “based on virtually identical indictments”). 

In the instant Motion, Defendants attempt to take another run at this issue. They

now assert that the indictment must also allege that Defendants committed or intended to

commit the state law prostitution offenses referenced in the SI. (Mot. at 3-6.) This 

assertion is based on a misreading of the SI and the cases Defendants cite in support. 

First, the SI alleges that Defendants, with an intent to promote or facilitate state law 

prostitution offenses, performed one or more overt acts in furtherance of that unlawful 

activity. (See SI ¶ 201.) That is all that the indictment need allege. Tavelman, 650 F.2d 

at 1138; see also Welch, 327 F.3d at 1092 (“The Travel Act proscribes not the unlawful 

activity per se, but the use of interstate facilities with the requisite intent to promote such 

unlawful activity. An actual violation of [the Utah Commercial Bribery Statute] is not an 

element of the alleged Travel Act violations in this case and need not have occurred to 

support the Government’s § 1952 prosecution.”); United States v. Montague, 29 F.3d 317, 

322 (7th Cir. 1994) (“[T]he federal crime to be proved in Section 1952 is use of the 

interstate facilitates in furtherance of the unlawful activity . . . Section 1952 does not require 

that the state crime ever be completed.”); United States v. Campione, 942 F.2d 429, 433-

34 (7th Cir. 1991) (The Travel Act “does not incorporate state law as part of the federal 

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offense” and thus “violation of the Act does not require proof of a violation of state law.”);

Palfrey, 499 F. Supp. 2d at 43 (“To the extent Defendant is arguing that the Government 

must prove each element of the predicate state offenses, it is well-settled that the 

Government bears no such burden in Travel Act cases. . . . The statute requires only that

a defendant ‘inten[ded] to . . . promote . . .any unlawful activity,’ not that the defendant 

have completed such unlawful activity.”); id. (“The Indictment must allege the essential 

elements of the offense with which Defendant is charged, namely, violations of the Travel 

Act. . . . The elements of the predicate state offenses are not essential elements of the Travel 

Act violations.”).

Defendants’ cases are not to the contrary. First, Defendants recycle—from yet 

another motion to dismiss—their reliance on United States v. Bertman, 686 F.2d 772 (9th 

Cir. 1982). (See Doc. 783 (Defendants’ “Motion to Dismiss Based on Section 230 of the 

Communications Decency Act”) at 3-4, 7-8; Doc. 840, Order at 11-12.) Bertman involved 

a claim under 18 U.S.C. § 1952(b)(2) that the defendant violated the Travel Act by bribing 

a public official in Hawaii in direct violation of the Hawaii Penal Code. 686 F.2d at 773-

74. The Ninth Circuit held that “[w]hen the unlawful activity charged in the indictment is

the violation of state law, the commission of or the intent to commit such a violation is an 

element of the federal offense,” the government “must prove . . . that the defendant has or 

could have violated the underlying state law, and the defendant may assert any relevant 

substantive state law defense.” Id. at 774 (emphasis added). Here, the unlawful activity at 

issue is not Defendants’ direct violation of a state “extortion, bribery, or arson” statute 

under 18 U.S.C. § 1952(b)(2) (as in Bertman), but rather Defendants’ promotion or 

facilitation of unlawful activity under 18 U.S.C. § 1952(a)(3) and (b)(1). (See, e.g., SI¶¶9-

11, 34.) In these circumstances, it would make no sense to require that the government 

prove Defendants did or could have directly committed the underlying state law offenses. 

“Promotion” or “facilitation,” not commission, is all that is required. See 18 U.S.C. 

§ 1952(a)(3).

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Defendants’ contrary reading would render superfluous the terms “promote” and 

“facilitate” in 18 U.S.C. § 1952(a)(3)—“a result we typically try to avoid.” N.L.R.B. v. SW 

Gen., Inc., 137 S. Ct. 929, 941 (2017). See also Williams v. Taylor, 529 U.S. 362, 404 

(2000) (“[W]e must give effect, if possible, to every clause and word of a statute.”). For 

that very reason, the Ninth Circuit has recognized that the Travel Act does not require proof 

that defendants intended to violate state law themselves; proof that defendants intended to

promote or facilitate violation of state law suffices. Polizzi, 500 F.2d at 876-77 (“[T]o the 

extent that [a Sixth Circuit case] requires proof that an accused under § 1952 intended to 

violate state law himself, we find that it conflicts with the clear meaning of the language 

used in § 1952.”). These include cases decided post-Bertman. United States v. Winslow, 

962 F.2d 845, 852 (9th Cir. 1992) (“Section 1952(a)(3) requires the government to prove 

only that a defendant committed ‘a subsequent overt act in furtherance of the unlawful 

activity.’”); United States v. Stafford, 831 F.2d 1479, 1482 (9th Cir. 1987) (“The Travel 

Act does not require the commission of the predicate offense; rather, only an ‘attempt to 

promote’ the unlawful activity . . . with a ‘subsequent overt act in furtherance of that 

unlawful activity.’”); see also United States v. Jones, 642 F.2d 909, 913 (5th Cir. 1981) 

(subsequent facilitating act required by Travel Act need only make the unlawful activity 

easier and need not itself be unlawful). This Court’s prior Orders discussing the adequacy 

of the SI are to the same effect. (See Doc. 793, Order at 15 (quoting Polizzi and describing 

mens rea required by Travel Act); see also Doc. 840, Order at 10-12 (discussing elements 

of Travel Act); Doc. 946, Order at 7-8, 11, 14-16 (same).) 

Defendants’ second case, United States v. Jones, 527 F.2d 1048 (D.C. Cir. 1990), 

does not focus on what “essential” Travel Act elements must be set forth in a grand jury’s 

indictment. More recent D.C. Circuit caselaw (discussed above) addresses that issue. 

Childress, 58 F.3d at 719. Rather, Jones concerned that Circuit’s views involving the 

government’s burden at trial. Palfrey, 499 F. Supp. 2d at 44 (“In contrast to what must be 

proved at trial, which was the issue in Jones, . . . an indictment is required to allege only 

the essential elements of the Travel Act offense.”). Simply put, Jones says nothing at all 

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about the sufficiency of grand jury indictments or the adequacy of grand jury instructions.

5

Defendants also assert that the government’s comments about two proposed 

questions on the jury questionnaire at the June 7, 2021 status conference somehow suggests 

that the grand jury was misinformed about the unlawful activity Defendants are charged 

with facilitating or promoting. (Mot. at 3-4.) This is nonsense. The first question 

Defendants highlight asked whether potential jurors think prostitution should be legalized. 

(Mot. at 3 and Ex. A at 16.) If that’s not a fair question in case like this—which involves 

Defendants’ operation of the internet’s leading source of prostitution solicitations for most 

of the last decade (see Doc. 230, SI¶ ¶ 1-211)—it’s difficult to imagine what would be. 

And that question, standing alone, hardly suggests that the grand jury considering the SI 

three years ago was somehow misled or misinformed about the nature of Backpage and the 

charges in this case. 

The second item Defendants mention involved the government’s objection to a 

proposed question that lumped “escort services” together with legitimate adult 

entertainment. As explained in the SI, while Backpage for many years maintained an 

“adult-escorts” advertising category, Defendants were aware that the overwhelming 

majority of ads in that section were for prostitution—and Defendants deliberately pursued 

a number of business strategies specifically designed to attract more prostitution 

5 Defendants assert, without elaboration, that Jones has been “cited favorably by the Ninth 

Circuit.” (Doc. 1171, Mot. at 4.) In Myers v. Sessions, 904 F.3d 1101, 1110 (9th Cir. 

2018), an immigration appeal, the court cited Jones in considering a question far removed 

from this case—namely, whether a legal permanent resident’s Travel Act conviction in the 

Fifth Circuit involving a controlled substance offense supported a subsequent order of 

removal. Myers did not involve a claim of promotion or facilitation of a business enterprise 

involving prostitution. Myers was not concerned with the sufficiency of an indictment or 

grand jury proceedings. Myers did not cite or discuss, let alone purport to overrule, 

Tavelman, 650 F.2d at 1138, Polizzi, 500 F.2d at 876-77, Gibson Specialty Co., 507 F.2d 

at 449, Turf Center, Inc., 325 F.2d at 794, 797 nn. 2 and 5, or similar Ninth Circuit cases. Furthermore, Myers’s discussion of Jones occurred in a part of the court’s opinion that can 

be fairly described as dicta—as the court recognized, Jonesinvolved “a somewhat different 

question” than that presented in Myers. 904 F.3d. at 1110. At bottom, Myers determined 

that a Travel Act conviction requires identifying an underlying unlawful activity, and held 

that the petitioner’s Fifth Circuit conviction sufficiently met that standard. See id. (“Neither party identified a Fifth Circuit case that involves a Travel Act conviction in 

which the underlying unlawful activity is not specified [either generically or with reference 

to a specific state statute], and we did not find one either.”). 

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advertising customers and increase its prostitution-related revenues. (SI ¶34 (Defendants 

“took a variety of steps to intentionally facilitate that illegal activity”).) These steps 

“included, but were not limited to, creating free ads for prostitutes in an attempt to secure 

future advertising revenues from them (i.e., ‘content aggregation’), entering into formal 

business arrangements with known prostitution services and websites in an attempt to 

increase the volume of prostitution advertisements being posted on Backpage (i.e., 

reciprocal link and affiliate programs), and sanitizing ads by editing them—specifically, 

removing terms and pictures that were particularly indicative of prostitution and them 

publishing a revised version of that ad (i.e., moderation).” (SI ¶34.) 

The government’s objection to the unadorned—and potentially confusing and 

misleading—use of the term “escort services” in the jury questionnaire as suggesting 

entirely lawful activity wasn’t just grounded in the SI’s allegations. On April 5, 2018, 

Backpage.com, LLC and several related operating entities pleaded guilty to an information 

charging one count of money laundering. Backpage admitted it “derived the great majority 

of its revenue from fees charged in return for publishing advertisements for ‘adult’ and 

‘escort’ services,” and “[t]he great majority of these advertisements are, in fact, 

advertisements for prostitution services.” (United States v. Backpage.com, LLC, CR-18-

465-PHX-SMB, Doc. 8-2 at 11.) That same day, Backpage’s then-CEO and 100% owner, 

Carl Ferrer, pleaded guilty to an information charging one count of conspiracy. (United 

States v. Ferrer, CR-18-464-PHX-SMB, Doc. 7-2.) Ferrer likewise admitted that the great 

majority of Backpage’s “adult” and “escort” ads were for prostitution, and he further 

admitted that to “create a veneer of deniability for Backpage,” he worked with coconspirators “to create ‘moderation’ processes through which Backpage would remove 

terms and pictures that were particularly indicative of prostitution and then publish a 

revised version of the ad.” (Id., Doc. 7-2 at 13.) Subsequently, Backpage’s Sales and 

Marketing Director Dan Hyer pleaded guilty to Count 1 of the SI (conspiracy to violate the 

Travel Act/facilitate prostitution), and he admitted that the majority of the “escort” ads that 

he and others at Backpage had created as part of the “aggregation” process were actually 

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offering illegal prostitution services.6 (Doc. 271 at 9.) 

At trial, the government anticipates introducing testimony from numerous witnesses 

regarding the actual contents of Backpage’s “adult” and “escort” sections, including former 

Backpage employees and contractors, adults and children who were advertised for sexual 

services on Backpage, and law enforcement agents who investigated ads on Backpage. In 

addition, the government anticipates introducing evidence showing what Backpage’s 

“adult” and “escort” webpages actually looked like—evidence demonstrating that, rather 

than marketing legitimate “escort services,” these sections included page after page after

page of prostitution solicitations. 

Simply put, the term “escort” as used on Backpage was nothing more than a 

euphemism for prostitution. The United States’ objection to the use of that term as 

potentially misleading—in the context of reviewing a proposed question on the draft jury 

questionnaire—cannot satisfy Defendants’ heavy burden of demonstrating the kind of 

particularized, specific need for grand jury materials that the law requires. Douglas Oil, 

441 U.S. at 222; (Doc. 844, Order at 10). The grand jury had the 92-page SI, which 

explained in detail how Defendants intended to facilitate prostitution by, inter alia, 

publishing the prostitution ads discussed in the SI, including the 50 specific ads in Counts 

2-51. Defendants point to nothing to suggest that the grand jury was misinformed about 

the substance of the charges, and the instant Motion should be denied. 

Conclusion

For the foregoing reasons, Defendants’ Motion (Doc. 1171) should be denied.

Respectfully submitted this 23rd day of June, 2021.

GLENN B. McCORMICK

Acting United States Attorney District of Arizona

s/ Peter S. Kozinets

KEVIN M. RAPP

MARGARET PERLMETER

PETER S. KOZINETS

6 The government anticipates that the evidence at trial will conform to these statements, 

and, in addition, demonstrate that legitimate escort services are rare. 

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ANDREW C. STONE

Assistant U.S. Attorneys

DAN G. BOYLE

Special Assistant U.S. Attorney

NICHOLAS L. MCQUAID

Acting Assistant Attorney General 

U.S. Department of Justice 

Criminal Division, U.S. Department of Justice

REGINALD E. JONES

Senior Trial Attorney

U.S. Department of Justice, Criminal Division

Child Exploitation and Obscenity Section

CERTIFICATE OF SERVICE

I hereby certify that on this same date, 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/ Marjorie Dieckman U.S. Attorney’s Office

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