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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

v. 

Michael Lacey, et al.,

Defendants.

No. CR-18-00422-001-PHX-DJH

ORDER 

Pending before the Court is the Defendants’ Motion to Dismiss the Superseding 

Indictment (Doc. 1355). The Government has filed a Response in opposition (Doc. 1393) 

and the Defendants have filed their Reply (Doc. 1413). The Defendants also filed a 

Supplement (Doc. 1437), to which the Government has filed a Response (Doc. 1439). Also 

pending is the Defendants’ Motion to Compel Government to Comply with its Brady and 

Giglio Obligations (Doc. 1281). The Government has filed a Response (Doc. 1326) and 

the Defendants have filed a Reply (Doc. 1332). The Court now issues its rulings.

I. Background1

On July 25, 2018, a federal grand jury returned a 100-count superseding indictment 

(“SI”) against moving Defendants and others. (Doc. 230). The SI outlined the history of 

Backpage.com (“Backpage”) as being created in 2004 and shut down by federal law 

enforcement authorities in 2018. (Id.) The SI alleged that the Defendants engaged in 

criminal acts while operating Backpage including conspiracy, facilitating prostitution, and 

1 The record includes ample history of the case. The Court here provides only background 

that is relevant to the pending Motion. 

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money laundering. (Id.) The overt acts are alleged to have occurred beginning on or about 

September 10, 2013 and continuing through April 2018. (Id.) 

This case has been assigned to three district court judges since its initiation, the last 

of whom oversaw eight days of trial before declaring a mistrial. During the case’s 

pendency, the parties have filed numerous motions related to the Government’s production 

of Brady and Giglio material and its alleged attorney-client privilege violations. They have 

also sought evidentiary rulings governing the production of the Government’s evidence. 

Particularly pertinent to this Motion to Dismiss is a pre-trial evidentiary ruling made by the 

trial court on May 7, 2021 (Doc. 1156). 

In that Order, the trial court granted in part and denied in part the Defendants’ 

Motion to Preclude Presentation of Certain Evidence (Doc. 908). (Doc. 1156). In their 

Motion, the Defendants had sought to preclude evidence of 1) sex trafficking or child-sex 

trafficking, 2) third-party criminal conduct other than prostitution, 3) a third party’s Travel 

Act conviction from 1987 and 4) purported prostitution ads from printed publications as 

irrelevant and prejudicial. (Doc. 908). The court found that “[s]ex trafficking and child 

sex trafficking are, by definition, both forms of prostitution. Both are simply a subset of 

the crime. Sex trafficking and child sex trafficking require victims to engage in sex in 

exchange for payment and the Government must prove that Defendants intended to 

facilitate prostitution through Backpage.com.” (Doc. 1156 at 3). The court also ruled that 

third-party crimes “are only relevant to the extent that they gave Defendants’ notice that 

prostitutes were advertising on Backpage.com. However, the specific details of crimes 

committed by third parties are irrelevant to whether the Defendants violated the Travel 

Act[.]” (Id. at 5). The court ruled that the Government could introduce testimony from 

former prostitutes about how ads were created, drafted, edited and paid for. The Court 

warned the Government, however, that the testimony could not include lifestyles or details 

of their time working as prostitutes. (Id.)

Trial began in this case on September 1, 2021, with jury selection. The Government 

made its opening statement on September 3, 2021. During the next four days, the 

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Government produced four witnesses. The Government first called Brian Fichtner, who 

testified about how Backpage operated and appeared in 2015, and about how he crafted an 

ad for posting on Backpage. It then called “Victim 4”, who testified about how another 

prostitute posted her ad on Backpage and how through the ad, men would call to arrange 

for sex with her. During Victim 4’s testimony, and in responding to the Government’s 

direct examination, she told the jury that she was 15 years old and that she was raped. A 

third Government witness, Nacole Svendgard, testified about how her daughter was posted 

on Backpage, how she met with public officials about Backpage, and described a meeting 

she had with Defendant Lacey. Finally, the Government’s expert, Dr. Cooper, testified

about how sex trafficking occurs on-line, and about coded prostitution terms. 

The Defendants objected multiple times to Victim 4’s, Ms. Svendgard, and Dr. 

Cooper’s testimony as being prejudicial and beyond the trial court’s evidentiary rulings. 

After Dr. Cooper testified, the Defendants made an oral objection for a mistrial based on a 

wide array of conduct and the aforementioned testimony, which they asserted was highly 

prejudicial. The Government responded that it believed it was adhering to the prior court 

rulings. The trial court stated that it had “concerns that the government has crossed that 

[prejudice] line several times [].” The court then stated it need to evaluate the cumulative 

effect of the testimony and took the matter under advisement. 

After these four days of testimony, on September 14, 2021, the trial court declared 

a mistrial. (Doc. 1347). The court noted that although it gave the Government some 

leeway—“because child sex trafficking and sex trafficking are forms of prostitution”— “in 

the opening, and with every witness thereafter, it seems, the government has abused that 

leeway.” (Id. at 4). The court went on to discuss the cumulative effect on the jury of the 

Governments’ witnesses testifying about child sex trafficking, about Victim 4’s testimony 

of abuse and rape by her trafficker (“105 days”), and Dr. Cooper’s references to an

overwhelming number of victims being trafficked on Backpage without being “tethered to 

some communication with the Defendants.” (Id. at 4-5). The court also noted that 

testimony “about the reputation of Backpage [was] untethered from communications to the 

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defendants.” (Id. at 5). Though the court did not find misconduct, it did find that the 

cumulative effect of the testimony as prejudicial to the defendants was cause for a mistrial. 

(Id.)

On October 5, 2021, the trial court held a status conference with the parties and set

a new trial date of February 9, 2022. (Docs. 1336 and 1377). The trial judge then recused 

herself from the case, and the proceedings were assigned to this Court. (Doc. 1367). The 

Defendants filed this Motion on November 1, 2021. The Court held oral argument on the 

Motion on December 3, 2021, after which the Defendants filed a Supplement to their 

Motion. (Doc. 1437). 

II. Discussion

The Defendants argue three grounds 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 [and]; Third, the Due Process Clause, triggered by 

the misconduct underlying the government’s trial actions, pre-trial privilege invasions, and 

discovery abuses.” (Doc. 1355 at 7). The Government responds that the trial court’s 

statement upon declaring a mistrial that “I don’t see any of these [reasons for the Court’s 

mistrial ruling] as intentional misconduct” is fatal to Defendants’ Motion. (Doc. 1393 at 

7). It also asserts that Defendants cannot show that the government acted intentionally to 

bring about a mistrial as required by Oregon v. Kennedy, 456 U.S. 667, 676 (1982). (Id.) 

The Court will address these arguments in turn. 

A. The Double Jeopardy Clause

1. Legal Standards

Generally, where a defendant moves for a mistrial, there is a narrow exception to 

the rule that the Double Jeopardy Clause is no bar to retrial. Kennedy, 456 U.S at 673. A 

defendant may raise the bar of double jeopardy in a second attempt to try him only if the 

conduct that gave rise to a successful motion for mistrial was prosecutorial conduct 

intended to provoke the defendant into moving for the mistrial. Id. at 679. Put differently, 

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if the prosecutor’s action was intended to “goad the [defendant] into requesting a mistrial,” 

then the Double Jeopardy Clause would protect a defendant from a subsequent prosecution. 

Id. at 673. To determine whether the government engaged in such goading, a court must 

review the objective facts and circumstances of the case. Id. at 675. 

2. Analysis

Defendants assert that on this record, the Court should find that the government 

goaded them into moving for a mistrial. First, they state that the government was on notice 

that they would seek a mistrial “from the Defendants’ pre-trial motions, the Court’s pretrial rulings, the defense’s objections during trial and the Court’s ruling and warning 

directed toward the government during trial.” (Doc. 1355 at 21). They next assert that the 

government “sought to infect the trial with nothing but ‘irrelevant and highly prejudicial 

material’ during its opening and with the testimony of each witness.” (Id.) Lastly, the 

Defendants state “the government’s case was failing on the merits.” (Id.) Taken together, 

they urge this Court to find the Government’s combined conduct was intended to goad the 

Defendants into moving for a mistrial. A review of the record does not persuade this Court 

to so find. 

First, the record of this proceeding spans over four years, with approximately 1400 

docket entries. It bears out that the Defendants and the Government have routinely filed 

pre-trial motions alleging discovery abuses, and asserted and re-asserted pre- and in-course 

of trial objections to evidence and testimony. Indeed, currently pending before the Court 

is Defendants’ reassertion that the government is withholding Brady and Giglio material. 

(Doc. 1281). But for that pending Motion, a close examination of the record shows that 

the previously-assigned courts have issued rulings on many of the same assertions brought 

here. The Court does not presume that strong advocacy, including the aforementioned 

motion practice, by parties in a case such as this carries with it some nefarious intent. Thus, 

without substantial evidence of Government misconduct, the Defendants cannot find, as 

they invite the Court to do, that the Government deliberately presented its case in a way to 

bring about a mistrial. Critically missing here is evidence of Government counsels’ 

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“intent” to goad.

The Defendants’ contention that the Government sought to infect the trial with 

irrelevant and prejudicial material is also not borne out by the record. Regarding the 

Government’s opening argument, the Defendants state that the government “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 sex 

trafficking would have on the jury.” (Doc. 1355 at 9). In response, the Government argues 

that their understanding of the trial court’s rulings about what areas could be covered and 

the court’s rulings on Defendants’ objections during the opening statement in fact shows 

the contrary. The Court agrees.

The Court need only review the record in light of the trial court’s prior evidentiary 

ruling. Again, the trial court previously ruled that “[s]ex trafficking and child sex 

trafficking are, by definition, both forms of prostitution. Both are simply a subset of the 

crime. Sex trafficking and child sex trafficking require victims to engage in sex in 

exchange for payment and the Government must prove that the Defendant’s intended to 

facilitate prostitution through Backpage.com.” (Doc. 1156 at 3). The judge found that 

evidence that tends to prove the Defendants were aware Backpage.com was being used to 

facilitate sex trafficking and child sex trafficking are extremely probative to show notice 

to the Defendants that Backpage was being used for illegal purposes. (Id.) She cautioned 

the Government that they were not to linger on the details of the abuse sex trafficking 

victims suffered as a result of being trafficked but clarified that evidence of the fact that 

people were being trafficked on Backpage.com is admissible. (Id. at 5). 

Before the Government proceeded to its opening statement, the trial court stated that 

the government “[isn’t] prohibited from using the word trafficking” but she cautioned that 

“[you] do need to be careful that your whole opening is not focused on this idea that that 

is what Backpage was about.” (Doc. 1340 at 31). During the opening the Defendants 

objected seven times. All but three of those objections were overruled—but on grounds 

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not asserted here.2(See id.; Doc. 1341 at 24, 56–57). Rather, the record shows that the 

Government adhered to the trial court’s evidentiary ruling. The Court notes, as the 

Government asserted, that its opening statement tracked the events as alleged in the SI. 

Opening statements “should be limited to a statement of facts which the [party] intends or 

in good faith expects to prove.” Leonard v. United States, 277 F.2d 834, 841 (9th Cir. 

1960). The Government was entitled to provide the jury with a history of Backpage.com, 

which began in 2004, and an explanation of its case as outlined in the SI, which spanned 

through 2018. No error occurred here. 

 Regarding the claim that the prosecutors solicited prejudicial testimony from its 

witnesses such that it tainted the jury, the Court agrees. Indeed, the cumulative effect of 

this testimony is what prompted the trial court to declare a mistrial. The trial court found 

that the Government, despite agreeing not to focus its testimony on child sex trafficking, 

solicited testimony from Dr. Cooper solely on child sex trafficking. (Doc. 1347 at 4). The 

court further found that though it ordered the Government to stay away from the day in the 

life of a prostitute, they proceeded to solicit answers from a witness about abuse by her 

traffickers, and that she was raped more than once.

3

(Id. at 5). The trial court found that 

this testimony likely would raise “a whole new emotional response from people.” (Id.)

Despite the trial court’s ruling, this Court is nevertheless hard-pressed to find that the 

government solicited this testimony with the intent to goad the Defendants into moving for 

a mistrial. This Court’s ruling, in part, is supported by the trial court’s finding that “I don’t 

see any of these as intentional misconduct [but] the cumulative effect of all of that is 

something that I can’t overlook and won’t overlook.” (Id.) Indeed, “it will be a rare trial 

2 After opining on the improper witness testimony, the trial court stated “well, that was 

error committed on top of the opening statement, which was close to causing a mistrial.” 

This Court will not speculate on what was meant by “close to causing a mistrial.” This 

Court’s own review of the Government’s opening statement does not show Government 

error. 

3 The Defendants’ requested an evidentiary hearing, essentially seeking to place the 

Government’s witnesses under oath to testify about how they were prepared. The Court 

declines to do so, noting that Government counsel avowed to the Court its methods of 

witness preparation as to the witnesses at issue. Counsel’s avowal is sufficient. 

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of any complexity in which some proffered evidence by the prosecutor or by the 

defendant’s attorney will not be found objectionable by the trial court[.]” See Kennedy,

456 U.S at 674-75. 

The Defendants’ last contention, that the Government resorted to goading the 

Defendants into seeking a mistrial because its case was failing on the merits, is not 

supported by the record. Indeed, the Defendants raised this same argument at trial. 

(Doc. 1346 at 68–69). Addressing the Defendants’ oral motion for a mistrial because the 

Government had yet to produce evidence of their “specific intent on any of the counts or 

things charged in the indictment,” the trial judge stated “it’s way too early to make that 

argument because I can envision from the evidence that I’ve already seen where they’re 

going to get to that . . .[i]t’s way to early. We’re barely, I don’t know, ten percent in.” 

(Id.)4 

The Court adopts the trial court’s finding. As previously noted, the SI charged 100 

counts of alleged criminal acts including conspiracy, facilitating prostitution, and money 

laundering. The SI’s allegations span the time frame of 2013 through 2018. The trial was 

expected to last approximately three months. The Government listed 76 witnesses, only 

four of whom actually testified. These facts, alone, reflect that the Government’s case-inchief was in its infancy. The posture of the case makes the Defendants’ argument that the 

Government abandoned its case because it was failing on its merits highly improbable.

Finally, the Defendants fail to mention that the trial court actually proceeded in way 

which shows an intent to retry the case. Indeed, after declaring a mistrial, a status 

conference was held with all Parties to settle on the new trial procedures going forward. 

(Doc. 1336). Although the present Motion was not yet filed, the trial court had a fuller 

view of the entire case than this Court does, yet there was no apparent angst in the trial 

court’s determination to retry the case and to do so in very short order. The objective facts 

here do not support a Double Jeopardy bar to the Government retrying its case. 

The Court will now to Defendants’ argument that the case should be dismissed 

4 The trial court then stated, “the only real argument that I am considering is the . . . 

prejudicial value of the testimony that’s been given so far.” (Id.) 

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under the Court’s inherent supervisory powers. 

B. The Court’s Inherent Supervisory Powers

1. Legal Standards

“Judicial supervision of the administration of criminal justice in the federal courts 

implies the duty of establishing and maintaining civilized standards of procedure and 

evidence.” McNabb v. United States, 318 U.S. 332, 340 (1943). Thus, courts may dismiss 

an indictment under their inherent 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. Struckman, 611 F.3d 560, 574 (9th Cir.

2010) (quoting United States v. Hasting, 461 U.S. 499, 505 (1983) (internal citations and 

quotation marks omitted). A defendant must demonstrate prejudice before the court may 

exercise its supervisory powers to dismiss an indictment. See Bank of Nova Scotia v.

United States, 487 U.S. 250, 255 (1988). Nevertheless, a district court can dismiss an 

indictment under its supervisory powers even if “the conduct does not rise to the level of a 

due process violation.” United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir.

1991). 

A district court has various options in determining whether and how to use its 

supervisory authority. It may limit the witnesses or testimony offered by the government, 

or it may sanction the attorneys. See Hasting, 461 U.S. at 506 & n.5. The most drastic

remedy is dismissal with prejudice because this prevents the government from retrying the 

defendants at all. See United States v. Chapman, 524 F.3d 1073 at 1085 (9th Cir.

2008) (explaining that improper dismissal of “an indictment with prejudice encroaches on 

the prosecutor’s charging authority”) (internal quotation marks omitted)); United States v.

Isgro, 974 F.2d 1091, 1097 (9th Cir. 1992) (“Dismissal of an indictment with prejudice 

necessarily implicates separation-of-powers principles . . . Such dismissal exercised under 

the guise of ‘supervisory power’ is impermissible absent ‘a clear basis in fact and law for 

doing so.’”). Under its supervisory powers, a district court may dismiss an indictment with 

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prejudice for prosecutorial misconduct only if there is “(1) flagrant misbehavior and (2) 

substantial prejudice.” U.S. v. Kearns, 5 F.3d 1251, 1253 (9th Cir. 1993). Further, the 

district court must “approach [the remedy] with some caution and a with a view toward 

balancing the interests involved.” Hasting, 461 U.S. at 506–07 (citations and quotation 

marks omitted). A court must also have concluded that there is “no lesser remedial action” 

available to it. Chapman, 524 F.3d at 1087 (citations omitted).

2. Analysis

Defendants assert that the Court should exercise its supervisory powers to dismiss 

the case based on the government’s “(1) misconduct . . . (2) concealment of discovery 

materials from the Western District of Washington investigation, and (3) privilege 

invasions in blatant violations of Judge Logan’s court orders, coupled with its 

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

invasions.” (Doc. 1355 at 23–24). The Court’s ruling above resolves the Defendants’ first 

argument as to the Government’s alleged misconduct. Accordingly, the Court will turn to 

the Defendants’ assertion that the Government has concealed discovery materials from the 

Western District of Washington (“WDW”) investigation that is relevant to this case.

i. Wrongful Concealment

The claims of wrongful concealment Defendants make in their Motion to Dismiss 

are also incorporated in their Motion to Compel Government to Comply with its Brady and 

Giglio Obligations (Doc. 1281) (and in various forms, have been repeatedly raised 

throughout the case). In their Motion to Compel, the Defendants assert that they “bring 

this motion to compel the government to produce all materials from its WDWA 

investigation that were relied upon when its attorneys concluded that there was no 

evidence of criminality.” (Id. at 3–4) (emphasis in original). Defendants assert that they 

“have specifically requested all evidence from the WDWA investigation, noting that it is 

likely exculpatory.” (Id. at 4). The Government responds that this Motion has been raised 

and resolved by the two previously-assigned courts. (Doc. 1326). A brief history of the 

courts’ prior Orders is thus necessary. 

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Order Denying Motion for Itemization of Brady/Giglio Material.5 On August 

20, 2018, Defendant Padilla filed a Motion for Itemization of Brady/Giglio Material.6(Doc. 

273). Padilla asserted that the Government began its investigation of Backpage 

approximately five years ago and that the Government disclosed two external hard drives 

of information with approximately 10.4 million documents. (Id.) The district court held 

that “the Government has met its burden of disclosure and should not have to take the 

additional steps of itemizing Brady materials for the Defendants.” (Doc. 339 at 4). The 

Court found that the Government had provided Defendants with sufficient descriptions of 

categories of documents and provided them with access to Department of Justice discovery 

specialists to provide technical assistance. (Id.) The Motion was denied. (Id.)

Order on Governments’ Motion to Compel Destructions of Inadvertently 

Disclosed Documents. On January 28, 2019, in a Sealed Order, the district court addressed 

the Governments’ Motion to Compel Destruction of Inadvertently Disclosed Documents 

(Doc. 352). The Motion involved the inadvertent disclosure of documents, including 

attorney-generated memos, related to the Backpage.com investigation conducted by the 

U.S. Attorney’s Office for the WDW. The Government asserted that 39 of the disclosed 

materials were privileged or non-discoverable.7 (Doc. 352 at 4). The Defendants claimed 

that the disclosed memos contained Brady and Giglio material. (Doc. 407 at 11). They 

asserted that the disclosed material contained “witness statements favorable to the defense,

investigative leads, and evidence relevant to Defendants’ upcoming challenges to the grand 

jury proceedings, to the searches and seizures in this prosecution, to the filing of additional 

pretrial motions, to the cross-examination of government witnesses, and to other purposes 

relating to the present criminal proceedings.” (Id. at 12). The district court granted the 

Governments’ Motion, finding that the disclosed memos were “attorney work product 

5 This and the following Orders were issued by then-assigned District Court Judge Steven 

P. Logan.

6 The co-defendants each filed a Joinder to the Motion. (See Docs. 275, 276, 277, and 278).

7 The Defendants did not object to destroying 17 disclosed documents relating to a grand 

jury proceeding in the WDWA investigation, and the Government agreed that 79 of the 

disclosed documents were discoverable. 

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related to a separate investigation into Backpage.com that took place in the Western 

District of Washington.” (Doc. 449 at 3). Explaining the decision, the court stated “[i]t is 

clear to the Court that the investigation that took place in the Western District of 

Washington is wholly separate from the criminal case before the Court. [citation omitted] 

The Defendants have failed to demonstrate how the mental impressions and legal analyses 

from attorneys that are not involved in this case could potentially be considered exculpatory 

evidence.” (Id. at 4). The court further found that the attorney memos were irrelevant to 

the indictment and proceedings in this criminal case. (Id.)

Order on Defendants’ Motion to Compel Production of Brady Material. 

Following this Order, on October 18, 2019, Defendants filed a Motion to Compel 

Production of Brady Material (Doc. 777). The Motion asserted that there were large 

categories of Brady material being withheld by the Government, including information on 

employees of Backpage8 who took affirmative steps to keep ads related to sex trafficking 

or prostitution off the website and had information that users posted or attempted to post 

lawful adult activities in the adult categories. (Id. at 9). The Motion also asked the Court 

to compel, for example, the production of all witnesses and information related to 

statements made by high-ranking Department of Justice officials that opine on whether an 

internet provider is criminally liable for posting illegal ads without specific knowledge, 

and communications to and from any federal state, or local elected officials relating to the 

possible criminal prosecution of Backpage or its directors, officers, or employees, or 

legislators. (Id. at 10-11). 

In its Order denying the Motion, the previously-assigned court, referencing the 

aforementioned Orders, noted that “[t]he instant dispute is far from fresh.” (Doc. 1028 

at 2). Citing governing law, the court explained again that “[i]t is the government, not the 

defendant or the trial court, that decides prospectively what information, if any, is material 

and must be disclosed under Brady.” (Id. at 4) (citing United States v. Lucas, 841 F.3d 

8 The current Motion asserts that the Government interviewed Backpage personnel who 

moderated the content of ads during its WDW investigation but “yet has produced no 

summaries or notes or any other records of the evidence underlying the decision not to 

prosecute Backpage.com.” (Doc. 1281 at 6).

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796, 807 (9th Cir. 2016)). The court noted that the Government had already responded to 

the Defendants’ requests by producing thirty-one categories of Brady materials. (Id. at 19). 

The court then opined that the Government is not compelled to produce information not 

within its custody. (Id.) It nonetheless reminded the Government of its ongoing Brady

disclosure obligations. (Id.)

Now before the Court is Defendants’ Motion to Compel Government to Comply 

with its Brady and Giglio Obligations (Doc. 1281). In renewing their requests, Defendants 

assert “that the case has evolved significantly in the past 32 months since Judge Logan 

issued his ruling,” and thus, the issues are again ripe. (Doc. 1281 at 3). Specifically, 

Defendants assert that the “underlying facts . . . memorialized in the Memos are directly 

at odds with or otherwise undermine the governments’ arguments at trial.” (Doc. 1332 at 

3) (emphasis in original). They assert that because the Government discussed 

Backpage.com’s operation and the Defendants’ conduct from 2004 through 2012 in its 

opening statement, the materials underlying the WDWA investigation is relevant. 

(Doc. 1332 at 5–6). They thus again request that this Court “compel the government to 

produce all materials from its WDWA investigation that were relied upon when its 

attorneys concluded that there was no evidence of criminality.”9 (Doc. 1281 at 8). They 

also request that this Court review “the DOJ’s WDWA memos” in camera, to determine 

whether “any of the information in the memos themselves could undermine in any way the 

positions that the government has currently taken.” (Id. at 4, 8). 

The Government responds that its case is based on “exactly the same factual 

allegations and legal theories as its July 2018 Superseding Indictment.” (Doc. 1326 at 2). 

The Government further explains that “materials from the WDWA Investigation are not 

Brady or Giglio for purposes of this case.” (Id. at 10) (emphasis in original). They state 

that in the years after that investigation, “a tidal wave of evidence has emerged regarding 

Defendants’ knowledge and intent to facilitate business enterprises involved in 

9 Defendants’ reliance on United States v. Kohring, 637 F.3d 895 (9th Cir. 2011) is 

unpersuasive. There, the Government failed to disclose Brady and Giglio material from a 

testifying cooperating witness. The facts are thus not analogous. 

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prostitution.” (Id. at 10–12). They assert that it is the new information upon which the 

Superseding Indictment is based.10 (Id.) Put differently, the Government argues that the

WDWA did not consider this “tidal wave of evidence” in determining to close its 2012—

13 investigation, and thus the materials from the investigation “do not reveal exculpatory 

or impeaching information pertinent to this criminal case...” (Id. at 13). 

Finding that the prior district court Orders (Docs. 352 and 1028) sufficiently address 

Defendants’ request to compel the Government to produce the underlying WDWA 

materials, this Court declines to do so. The Court further notes that because the 

Government’s case was only in its infancy when the statements regarding the WDWA 

proceedings were made, the Court declines to make a ruling as to the relevancy or 

materiality of the WDWA documents at this juncture. Upon review of the trial transcript, 

the Government’s opening statement tracked the SI, and set forth the facts that the 

Government believed it could prove. Further, only four of the 76 listed witnesses testified. 

The materiality of these documents has not been established, and thus the Court disagrees 

that there has been such “significant evol[ution]” of the case to justify overruling the prior 

Orders on this issue. See also East Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 

1262 (9th Cir. 2020) (noting that if an issue in a case has already been decided, then 

reconsideration of the order is generally only permitted if “the prior decision is ‘clearly 

erroneous’ and enforcing it would create ‘manifest injustice’; [if] intervening, controlling 

authority encourages reconsideration; or [if] substantially different evidence is produced at 

a later merits trial”). 

Judge Logan’s January 2019 Order also resolves Defendants’ request that this Court 

undertake an in camera review of the WDWA memos to determine their materiality. 

Defendants acknowledge that they previously “have specifically requested all evidence 

from the WDWA investigation, noting that it is likely exculpatory.” (Doc. 1281 at 6). They 

now assert that they “believe that the requested information will in fact prove that the 

10 The Government refers to incidents such as the 2017 U.S. Senate investigation report 

finding that Backpage knowingly facilitated prostitution and sex trafficking and supporting 

material. (Doc. 1326 at 11).

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government did know much of what it now claims not to have known in 2012.” (Id. at 7).11

The Court disagrees. The Court finds that the previously issued Orders (Docs. 339, 

449 and 1028) sufficiently address the Defendants’ current requests and that their slightly 

revised argument does not compel a different result. In sum, the Court declines to exercise 

its inherent supervisory powers and dismiss the case on the grounds that the Government 

has intentionally concealed or failed to produce exculpatory materials. 

i. Privilege Invasions

The Defendants next ask the Court to exercise its supervisory authority to dismiss 

the case based on the Governments’ privilege invasions in blatant violations of Judge 

Logan’s court orders, coupled with its contemporaneous concealment from Judge Logan 

and the defense of these on-going invasions. (Doc. 1355 at 23–24). The Court declines to 

do so. A close examination of the court record reflects that the trial court previously issued 

a Sealed Order addressing these very same allegations. (See Doc. 1168 (noting 

“[Defendants’] claim the Government elicited from Ferrer privileged information about 

advice from lawyers . . . they claim that the Government invaded Defendant’s attorneyclient privileges”).

12

 The trial court analyzed the previously-assigned court’s Orders 

related to the joint defense agreement (Docs. 345 and 338) in finding that the Government 

has not invaded the Defendants’ attorney-client privilege, and no outrageous government 

conduct. (Id.) The Court finds no basis in the Defendants’ Motion to re-examine the same. 

East Bay Sanctuary Covenant, 950 F.3d at 1262 (noting that the law of the case doctrine 

“encourages the conservation of limited judicial resources and promotes consistency by 

11

 Among the specific material Defendants contend show the Government knew then what 

it claims not to have known is an attorney memo “advising a potential buyer that there was 

no criminal or civil exposure should he decide to purchase Backpage.com.” (Id. at 7). At 

oral argument, the Court questioned the memo’s relevancy given (1) the district court’s 

prior Order (Doc. 352), (2) that the potential buyer was not a named Defendant or on the 

Governments’ witness list, (3) that there was no indication of whether the potential buyer 

shared the memo with the Defendants, and (4) that there was no information from which 

to glean what facts the attorney memo was based upon. Notwithstanding the Court’s 

concerns, the Government agreed to seek the memo out to turn it over to the Defendants. 

The Defendants’ request for the Court to review this particular memo is therefore moot. 

12 The trial court held oral argument prior to ruling. in which the Defendants reiterate their 

same allegations as to Ferrers’ attorney-client privilege. (Doc.1395-1 at 9).

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allowing court decisions to govern the same issues in subsequent stages of the same case”).

C. The Due Process Clause

The Defendants’ last assertion is that the Court should dismiss the SI with prejudice 

under the Due Process Clause. (Doc. 1355 at 33). They argue that the Government’s 

misconduct during trial demonstrates an “overreach, [an] abuse [of] this Court’s leeway, 

and win at all costs” approach. (Id. at 34). They reassert that the Government “elicited 

statements from Carl Ferrer, which on their face were clearly privileged.” (Id.)

Dismissing an indictment for outrageous government conduct, however, is “limited 

to extreme cases” in which the defendant can demonstrate that the government’s conduct 

“violates fundamental fairness” and is “so grossly shocking and so outrageous as to violate 

the universal sense of justice.” United States v. Black, 733 F.3d 294, 302 (quoting United 

States v. Stinson, 647 F.3d 1196, 1209 (4th Cir. 1979). This is an “extremely high 

standard.” United States v. Garza–Juarez, 992 F.2d 896, 904 (9th Cir. 1993) (citation 

omitted). In Black, the Court noted that there are only two reported decisions in which 

reviewing courts have reversed convictions under this doctrine. 733 F.3d at 302. 

The trial court found no intentional misconduct by the Government. A review of 

the record likewise convinces this Court that the Government did not engage in 

misconduct, let alone conduct that is grossly shocking or outrageous. This Court could not 

find any instance where the Government intended to commit error during the trial 

proceeding. Thus, the Defendants’ Due Process Clause argument also fails. 

In accordance with the above, 

IT IS ORDERED denying the Defendants’ Motion to Dismiss with Prejudice 

(Doc. 1355).

/ / /

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/ / /

/ / /

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IT IS FURTHER ORDERED denying the Defendants’ Motion to Compel 

Government to Comply with its Brady and Giglio Obligations (Doc. 1281).

Dated this 28th day of December, 2021.

Honorable Diane J. Humetewa

United States District Judge

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