UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF ARIZONA 

 _________________ 

United States of America, ) 

 ) 

 Plaintiff, ) CR-18-0422-PHX-SMB 

 ) 

 vs. ) Phoenix, Arizona 

 ) September 10, 2021 

Michael Lacey, ) 8:46 a.m. 

James Larkin, ) 

Scott Spear, ) 

John Brunst, ) 

Andrew Padilla, ) 

Joye Vaught, ) 

 ) 

 Defendants. ) 

______________________________) 

 

BEFORE: THE HONORABLE SUSAN M. BRNOVICH, JUDGE 

REPORTER'S TRANSCRIPT OF PROCEEDINGS

TRIAL - DAY 6 - A.M. SESSION

Official Court Reporter: 

Linda Schroeder, RDR, CRR 

Sandra Day O'Connor U.S. Courthouse, Suite 312 

401 West Washington Street, Spc. 32 

Phoenix, Arizona 85003-2151 

(602) 322-7249 

Proceedings Reported by Stenographic Court Reporter 

Transcript Prepared by Computer-Aided Transcription 

Case 2:18-cr-00422-DJH Document 1334 Filed 09/20/21 Page 1 of 95
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UNITED STATES DISTRICT COURT

A P P E A R A N C E S 

For the Government: 

 U.S. Attorney's Office 

 By: PETER SHAWN KOZINETS, ESQ. 

 KEVIN M. RAPP, ESQ. 

 MARGARET WU PERLMETER, ESQ. 

 ANDREW C. STONE, ESQ. 

 40 North Central Avenue, Suite 1200 

 Phoenix, AZ 85004 

 U.S. Department of Justice 

 By: REGINALD E. JONES 

 1400 New York Avenue NW, Suite 600 

 Washington, DC 20530 

For the Defendant Lacey: 

 Lipsitz Green Scime Cambria 

 By: PAUL JOHN CAMBRIA, JR., ESQ. 

 ERIN E. MCCAMPBELL PARIS, ESQ. 

 42 Delaware Avenue, Suite 120 

 Buffalo, NY 14202 

For the Defendant Larkin: 

 Bienert Katzman 

 By: THOMAS HENRY BIENERT, JR., ESQ. 

 WHITNEY Z. BERNSTEIN, ESQ. 

 903 Calle Amanecer, Suite 350 

 San Clemente, CA 92673 

For the Defendant Spear: 

 Feder Law Office 

 By: BRUCE S. FEDER, ESQ. 

 2930 East Camelback Road, Suite 160 

 Phoenix, AZ 85016 

For the Defendant Brunst: 

 Bird Marella Boxer Wolpert Nessim Drooks 

 Lincenberg & Rhow 

 By: GOPI K. PANCHAPAKESAN, ESQ. 

 GARY S. LINCENBERG, ESQ. 

 1875 Century Park E, Suite 2300 

 Los Angeles, CA 90067 

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For the Defendant Padilla: 

 DAVID EISENBERG, PLC 

 By: DAVID S. EISENBERG, ESQ. 

 3550 North Central Avenue, Suite 1155 

 Phoenix, AZ 85012 

For the Defendant Vaught: 

 JOY BERTRAND ESQ, LLC 

 By: JOY MALBY BERTRAND, ESQ. 

 P.O. Box 2734 

 Scottsdale, AZ 85252 

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UNITED STATES DISTRICT COURT

INDEX

SUMMARY OF COURT PROCEEDINGS PAGE: 

Proceedings Outside the Presence of the Jury 5 

Proceedings Outside the Presence of the Jury 60 

INDEX OF WITNESSES 

WITNESSES FOR THE Direct Cross Redirect 

GOVERNMENT: 

FICHTNER, Brian 18 

SVENDGARD, Jessika 67 

INDEX OF EXHIBITS

EXHIBIT NO.: DESCRIPTION: RECEIVED: 

 489B Screenshot Auto Repost Prices from 

 Fichtner Video 38 

 489C Screenshot Sponsor Ad Prices from Fichtner 

 Video 39 

 490A Email from Sacramento.backpage.com to 

 katiecatt19@gmail.com, x re Edit/Delete 

 line. Sweet dreams do come true! Call me! 

 3/6/15 40 

 490B Email from Sacramento.backpage.com to 

 katiecatt19@gmail.com, x re Edit/Delete 

 line. Sofa for Sale! 3/6/15 41 

 490D Screenshot of ad Sweet dreams do come true! 

 Call me! - 24 41 

 490E Screenshot of ad $150, sofa for sale! 42 

 1636A Clip from 1636, 00:00-01:20 

 (including Ny'La ad) 53 

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(Proceedings outside the presence of the jury:)

THE COURT: I understand we're still missing someone?

So we'll wait.

MR. LINCENBERG: One thing, if we can go off the

record?

THE COURT: Yes, we're off the record.

(Proceedings off the record.)

(Mr. Feder entered the courtroom at 8:48 a.m.)

THE COURT: We're going to go on the record outside

the presence of the jury.

Mr. Feder, where were you?

MR. FEDER: I looked at the minute entry. It said

9:00. So I apologize, Judge.

THE COURT: Well, I specifically told everybody to be

here at 8:30 every day specifically because we're going to go

through this every morning, and I don't want the jury waiting.

MR. FEDER: My apologies. I also told Mr. Spear 9:00,

so I apologize.

THE COURT: Okay. Well, even if the minute entry says

9:00, 8:30.

Also, one other thing.

Someone from the defense team called the clerk's

office, well, through facilities about some issues. I'm pretty

sure it was August 20th but maybe it was the day before I had

this discussion with you about not contacting the clerk's

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office about issues related to the trial.

It is not their job to manage this trial. They manage

the District of Arizona. They don't need to mini manage this

trial.

So don't call the clerk's office again. They just

call me. And if you do, we'll have a hearing about contempt.

You've got to stop calling the clerk's office. Just

bring the issue to me.

MS. BERNSTEIN: Your Honor, I think that might be -- I

don't know what the issue was. I think it might have been

referring to one of the support staff was trying to assist with

getting a refrigerator in the room, so just --

THE COURT: And tables and a separate area for you.

There was a list of things.

MS. BERNSTEIN: Okay. Can we -- Once we have that

list, can we bring that to Your Honor's attention?

THE COURT: Yes. And the clerk's office did attempt

to call back, but there was no answer. So I don't think you

ever got an answer.

MS. BERNSTEIN: Okay.

THE COURT: But I know at least Mr. Eisenberg -- I'm

sure he shared with you that they're working on an attorney

lounge. It's just not ready yet. But they hope to have it --

I hate to tell you when they hope to have it done, because then

if it's not done, but I was told a week or ten days, so --

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Mr. Lincenberg. 

MR. LINCENBERG: Is there anyplace in the meantime? I

mean, you know, at lunchtime we sort of go around the corner,

you know. I'm concerned about people getting dehydration, and

it's a hot area. The government goes to their air conditioned

places. And then we saw that chairs were not being used in the

jury area, and we took one. We were scolded for that. We

don't really have places to even sit in the heat.

If there's an area in the courthouse that is unused

that's air conditioned over the lunch hour, until this happens,

we would request that the Court see if the Court can help us

out there.

THE COURT: Okay.

MR. LINCENBERG: Okay. In terms of other issues, I

know if the Court has something on the Court's agenda, I'll

defer to the Court. We have this issue where the parties both

briefed for the Court some of the Svendgard testimony, which --

THE COURT: I saw the government's memo. Did the

defense file something?

MR. LINCENBERG: We filed an opposition, and the

government filed a reply. And we don't need to get to that

probably right now.

THE COURT: Well, except that that will cause a delay

when we switch, so we should discuss it now. But let me pull

up the file.

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MR. LINCENBERG: We filed something yesterday late in

the day, and the government filed something. We just got it

while we're in the courtroom, a short reply.

THE COURT: Okay. One second. Okay. I read the

response and the reply.

So the first issue is -- So we'll just go through all

five. It's summarized by the government as a topic of

recovering her daughter JS after running away from home, her

involvement in the prosecution of JS's pimp, and that her

daughter was posted on Backpage.

So, Mr. Rapp, are you responding?

MR. RAPP: Yes.

THE COURT: Okay. So the fact that her daughter was

posted on Backpage I see as relevant. I'm not sure how the

prosecution of the pimp is relevant.

MR. RAPP: Well that's how she learns that she was

posted on Backpage. So she doesn't learn that until after --

during the course of the prosecution of Baruti Hopson. She

then learns that there is this website Backpage. And once she

discovers that, she then begins to meet with a series of

elected officials. Meanwhile, the defense -- the defendants

are also interfacing with those same elected officials. And so

that's why it's relevant.

But, more importantly, all of that leads to the filing

of the 2012 lawsuit where she is on behalf of her daughter,

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who's 15, and two other plaintiffs that are 13 that were

trafficked on Backpage. That of course ends up in the

Washington State Supreme Court, which is now open, fair game,

given the opening of the door by the defense.

It then results in a confron -- Then she speaks -- All

of this leads to her speaking in front of the United States

Senate and telling her story. And it just happens to be on the

same day that the defendants are there.

And then of course that's where you get the

confrontation. So if you take that confrontation in a vacuum,

she is very well known to these defendants at this point

because of the lawsuit in 2012 and their concern about that

lawsuit going forward in discovery.

And so given their opening statement, they're the

defenders of the First Amendment, and they want to press their

claims. They settle like a cheap suit on that case and when

it's on the eve of trial. So all of this is relevant because

it leads to that lawsuit. And it just happens to be the case

that she meets with the mayor of Seattle. The defendants are

then meeting face to face. Carl Ferrer and an agent of the

defendants meet with the mayor of Seattle. There's internal

e-mails about the mayor of Seattle's decision to deny

advertising in the Seattle Weekly, which is an alternative

newspaper owned and operated by Lacey and Larkin. And so

that's a concern to them. There's a lot of e-mails between the

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publisher and the editor of the Seattle Weekly and Mr. Lacey

and Larkin. So that's relevant.

And then of course she meets with Robert McKenna, who

at the time was the Attorney General for the State of

Washington. She tells him her story about being trafficked and

her daughter's -- the prosecutions arising out of that

trafficking with the pimp Baruti Hopson and also a John, Julian

Tarver. That results in legislation that she also speaks

publicly about two bills. Robert McKenna's office defends

those two bills, and it's passed into law. And the Backpage --

the defendants file a, you know, an enjoinder of that. And so

that is Backpage versus McKenna. So that's relevant.

And so all of this under the rubric of notice is

relevant, particularly in light of the defense opening.

THE COURT: Okay. So, Mr. Lincenberg.

MR. LINCENBERG: Yes. Briefly, as to subpoint one

first, Mr. Rapp has just outlined an additional reason why the

testimony of these witnesses is not relevant, which is that

he's proffering that this witness will say, both the daughter

and the mother, that they didn't even have anything to do with

the posting of the ad or even know that the ad was out there.

So that's an additional reason why this -- much of that

testimony is irrelevant.

Second, Mr. Rapp ignores the objection with regard to

number one, which is evidence of a mother recovering her

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UNITED STATES DISTRICT COURT

underaged runaway daughter is not relevant in this trial.

Never responds to that. It's obviously all part of a sympathy

gathering story that they're trying to use to inflame the jury

that he doesn't even respond to. It's really simply designed

to garner sympathy.

With regard to the -- That's subpoint one. Mr. Rapp

merged it into a discussion of the JS lawsuit, which was what

was initially led to this dispute.

And as we lay out in our opposition, Your Honor, the

JS lawsuit was -- there was a motion to dismiss. And in

Washington law a complaint may be dismissed only if it appears

beyond a reasonable doubt that no facts exist that would

justify recovery.

So what the Court said is that they basically allege

that Backpage created these ads, and so therefore on this very

liberal pleading standard it moves forward. It has nothing to

do with notice of anything.

The decisions that the defense is proffering are

decisions which say based upon the First Amendment, based upon

the Communications Decency Act, which deals with state criminal

offenses like prostitution, which are at issue here, that

that's notice that courts find that Backpage's conduct was

lawful and permitted.

THE COURT: No. It says that they were protected.

MR. LINCENBERG: Protected, right, protected.

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So to suggest that an opinion on a procedural issue

like whether something is pled in a manner puts somebody on

notice that what your platform is doing is illegal is just --

it's wrong, and it's confusing, and it's misleading to the

jury.

THE COURT: Okay. Anything final, Mr. Rapp?

MR. RAPP: Well, just that he doesn't address the fact

that these were state court actions. He doesn't address the

fact of the carve-out for the federal criminal prosecution.

And so that's the distinction between the cases. The

one thing I will add is what will be now -- which was going to

be hotly contested before their opening statement -- was

Mr. Ferrer is expected to testify that for each one of these

courts, they never disclosed the internal prostitution

marketing strategies, which the defense, I might add, in three

years of litigation has never addressed. 

And so given the fact that they have highlighted this

advice of counsel defense, it is going to be the testimony that

they misled these courts on every single occasion.

MR. LINCENBERG: That argument's for another day.

That argument's for another day. This is simply, on the point

of the opinion, whether a decision on a procedural ground says

anything. And it doesn't, and it's misleading and confusing

and should not be in.

THE COURT: Well, all of those cases are misleading.

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So if this doesn't come in, all the other ones don't come in.

MR. LINCENBERG: The other cases are completely

leading -- they're completely relevant because they're dealing

with protection --

THE COURT: They're dealing with state cases, the

Section 230, which I've already found doesn't apply in this

case. So I've reread them yesterday. I'm probably going to

reread them again a couple of other times.

But those cases are not applicable to this situation.

MR. LINCENBERG: Well, those cases are completely

applicable because that is what the lawyers are looking to and

then advising the clients that this is lawful conduct. And

it's lawful conduct for a number of reasons.

THE COURT: Well, okay. I understand that. But then

this ruling is also applicable for the notice that if you're

creating content, it's not lawful.

MR. LINCENBERG: This court didn't say that. This

court --

THE COURT: I disagree. I read it.

MR. LINCENBERG: This court simply said that there was

a pleading, and you can't dismiss it on the face of the

pleading.

THE COURT: Because the pleading says that they're

creating content which would be illegal.

MR. LINCENBERG: Well, that's part of the advice. It

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has to do with the fact that you cannot create content.

THE COURT: Okay.

MR. LINCENBERG: Right. That you can moderate it.

And that's what Backpage's moderation policies were for. But a

decision on a procedural ground like this is irrelevant. Now,

there's a number of other points that we object to here. And I

know the Court wants to move forward, and the Court had to

review this in a rushed manner because counsel just filed them.

It's a lot on the Court's plate. But these objections are

important. The idea of, by way of context and background,

quote-unquote, getting into mothers saving their runaway

daughters --

THE COURT: Okay. Let me just save you some time. So

for the government, Ms. Svendgard's testimony, as I see it,

much of it would be irrelevant and hearsay. The fact that her

daughter was trafficked on Backpage is relevant, but that's it.

Not the prosecution of her pimp. The meetings, you can go into

the fact that she had meetings and why she had a meeting in

general but not what they talked about at the meeting other

than the purpose of the meeting was this, because that's just

background to what I understand follows from reviewing the

exhibits.

You can talk about the fact that she testified before

the senate at this hearing but not the substance of her

testimony. And of course you can talk about her confrontation

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with Mr. Lacey.

The documentaries, the government wrote "The

United States believes the evidence will show the defendants

were aware of and had notice of these two documentaries."

What's your good faith basis for saying that?

MR. RAPP: Carl Ferrer. We expect him to testify that

they were very much aware of that documentary because, I mean,

of course they were. The documentary chronicles the civil

litigation against Backpage. It has all -- It has the

defendants in it. It has arguments before the Washington and

State Supreme Court. Carl Ferrer will testify that, yeah, when

this documentary came out -- I just want to say that the

defendants were very concerned about articles and broadcasts.

As evidence, one of the exhibits in this case is an enormous

spreadsheet of every single article that was ever written about

Backpage, 99 percent of them negative.

So, yes, they were concerned about those documentaries

coming out. And, yes, we expect him to testify that they were

aware of it.

MR. LINCENBERG: Of course there's reputational

concern, but the documentaries and this whole story is really

being put in just to make this into a star-studded thing that

there's people who have devoted their lives -- And the

documentaries are about child trafficking. It just -- All of

this is really intended not on any notice. I mean, if we get

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back to the core, the people speaking in the documentaries say

nothing about whether any of these defendants had any knowledge

that any of their particular ads involved people who actually

were engaged in prostitution.

It's moving farther and farther afield and farther and

farther into this inflammatory child-trafficking world.

THE COURT: Okay. I'm going to preclude this

witness's testimony about the participation in the documentary.

I don't know how that's relevant. Carl Ferrer's testimony may

be relevant. Okay.

MR. LINCENBERG: Thank you, Your Honor.

THE COURT: All right. Let's bring the jury in.

Did you -- Mr. Eisenberg.

MR. EISENBERG: Yes, Your Honor. Thank you. Earlier

the Court spoke about information concerning the accommodations

that the defense team has. My information comes from Denise

Aguilera, who is our CJA representative -- our CJA

representative, and then I have passed that on to my

colleagues.

Secondly, I've informed chambers that my client tested

negative for the coronavirus and that of course, as Your Honor

can see, he's present here in court, and I think he's fine.

He's ready to go.

THE COURT: Okay. Thank you.

MR. EISENBERG: Thank you.

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MS. BERNSTEIN: Your Honor, I would also note that I'm

going to be doing the cross-examination of Ms. Svendgard, the

younger Svendgard, so I'll just need to accommodate timing when

I need to be out of the room to pump.

THE COURT: Okay. Is the mother or the daughter going

first?

MR. RAPP: This morning? No. We're continuing on

with Agent Fichtner, and after the break we will proceed with

the Svendgards, after the morning break.

THE COURT: I know, but is the mother or daughter

going first?

MR. RAPP: Oh, I'm sorry. The daughter is going

first.

THE COURT: Okay.

MS. BERNSTEIN: I'll just need at least a half hour

break. It takes me, like, seven minutes to get down to that

room. I have to clean my pump parts. I have to pump. I have

to put it in the fridge. I have to walk back up here. So

that's why it takes so long. So I apologize for that delay.

THE COURT: All right.

MR. STONE: Your Honor, should we grab the witness?

THE COURT: Yes.

(The Court and clerk confer off the record. The jury

returned to the courtroom at 9:14 a.m.)

THE COURT: We are back on the record with the jury

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FICHTNER - DIRECT 

present. So you all didn't get a call last night, so I'm

assuming you guessed, but Mr. Padilla tested negative for

COVID, so I didn't have any concerns about proceeding with

trial again. So we're back. And, Special Agent, you're still

under oath from Wednesday. Do you understand that?

THE WITNESS: Yes, I do.

THE COURT: All right.

BRIAN FICHTNER, GOVERNMENT'S WITNESS, PREVIOUSLY SWORN 

CONTINUED DIRECT EXAMINATION 

BY MR. KOZINETS: 

Q. Good morning, Special Agent Supervisor Fichtner.

A. Good morning.

Q. I'm Assistant United States Attorney Peter Kozinets. And I

neglected to ask you to spell your name for the record on

Wednesday. Can you do that please.

A. Yes. My first name is spelled B-r-i-a-n, last name

Fichtner spelled with an F, as in Frank, i-c-h-t-n-e-r.

Q. Thank you. I'd like to pick up where we left off, and I'd

like to ask if we could publish Exhibit 489A at the 50 -- I'm

sorry -- the 5-minute-29-second mark. Thank you.

Special Agent Supervisor Fichtner, I'd like to direct

your attention to the video screen.

Can you please explain what it is that we're looking

at in this portion of your video. Can you not see it?

A. I'm sorry. It's not up on my screen. Okay. Thank you.

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FICHTNER - DIRECT 

Q. So I'm showing you what had been marked and admitted as

Exhibit 489A. Do you see that on your screen?

A. Yes, I do.

Q. And I have fast forwarded it to the point where we left off

on Wednesday, the 5-minute-29-second mark Do you see that

there?

A. Yes, I do.

Q. Can you explain to us what it is that we are looking at

here.

A. This is the first step in the process of posting an

advertisement on the Backpage website in the adult escort

section.

Q. I'm starting to play the video from here. Can you describe

what it is that you're doing.

A. Here I've just typed in the title that I wanted for my

fictitious undercover advertisement, and now I'm typing in the

description for the advertisement.

Q. I'm highlighting part of the video screen that you're

typing on right now. Do you see the highlighted portion?

A. Yes, I do.

Q. What does it say?

A. It says postings in this category are $10.

Q. Was that some sort of minimum price?

A. Yes. Minimum fee of $10.

Q. Did that minimum fee apply to other categories on Backpage?

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A. I did not see minimum fees in the other categories.

Q. I'm highlighting the portion of the video screen showing

you actually typing the content of the ad. Do you see that

there?

A. Yes, I do.

Q. I'd like to focus on this first paragraph that you've typed

here. When you were coming up with language for this ad, were

you trying to make the ad similar to other ads you had seen in

the escort section?

A. Yes. I wanted this advertisement to fit in with all the

other advertisements in the escort section that I had been

viewing, so I used similar verbiage, wording, similar content.

Q. We talked about some of the common characteristics of these

ads that you had observed in your review of the escort section.

Did you incorporate some of those common characteristics here?

A. I did. They commonly had, like, a proposition here and say

would like to make your dreams come true. They had similar

terminology, you know, like I'm clean, safe. 100 percent

independent was very common and, you know, available 24/7.

Q. I'm going to pause the video here. Can you go ahead and

just read the title and the text of your ad.

A. The title says, "Sweet dreams do come true. Call me." The

description states "Hi. I'm Terra. I'm in town for a short

time and would like to make your dreams come true. I'm clean,

safe, and 100 percent independent. I'm available 24/7. Let's

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party together. You'll leave with a smile." Then it says,

"Real pic. No fakes. Please be clean and polite. No blocked

calls. No drama. Minimum 30 minutes, $100. $175 for an

hour."

Q. And so this additional language that you've typed since we

went over the first paragraph, does this also incorporate some

of those common characteristics that you had observed?

A. Yes. I put in additional verbiage, words, that I saw in a

lot of the other ads, along with pricing with time increments.

Q. And can you describe what information you're providing

here?

A. There, just below the timing cost, I'm typing in the

undercover cell phone number that will be used for this

advertisement and to say call or text me at that number.

Q. Focusing in on the next category of information here, do

you see that category there?

A. Yes, I do.

Q. What is it?

A. That's where you can list your age.

Q. Was there any requirement to verify your age?

A. There was not.

Q. Could you have put in any age you wanted to?

A. Yes.

Q. Do you see this portion of the webpage that I've just

highlighted?

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A. Yes.

Q. What is this part of the webpage?

A. This gives you the option to receive e-mails or not. I

chose I did not want to. I just wanted to receive the calls

and texts.

Q. Was this a feature that Backpage provided?

A. Yes.

Q. And if you had selected forward e-mail responses to me, was

that a -- what would that feature do?

A. That would allow you to reply to this advertisement through

e-mail.

Q. Do you see this next feature?

A. Yes.

Q. What is this?

A. It says -- It offers the option of displaying other

postings you may have and link them to this advertisement.

Q. How about this next feature? What is this?

A. This allows you to upload a video with the maximum length

of 30 seconds or 15 megabytes.

Q. So this would be a video that you could upload and add to

your advertisement?

A. Correct.

Q. And what is this next feature that we're looking at?

A. This allows you to upload pictures to your advertisement up

to it looks like 12.

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Q. So using this feature, one could add 12 photos -- up to 12

photos to their advertisement?

A. Yes.

Q. Can you describe what it is that you are doing here.

A. Here I am looking for a picture to upload in one of my

files, locating an undercover picture to add to the

advertisement.

Q. I want to focus your attention now to the next portion of

the webpage here which I've highlighted on the video screen.

Can you describe what this is?

A. Yes. This section allows you to upgrade your advertisement

for additional money. You can auto repost the ad, which will

bring it to the top of the list every so often for additional

cost.

Q. Now, is this dropdown menu here associated with that auto

repost feature?

A. Yes. It tells you the number of times and the cost

associated. The one that's highlighted, it would bring it up

four times for 40 additional dollars.

Q. And can you go through the additional pricing that is

featured here?

A. Yes. You can do eight times for $80, 12 times for $120, 26

times for $240, 52 times for $480, up to 104 times for $960.

Q. I'm just going to go back slightly here. I've just

highlighted a separate part of the upgrades section. Do you

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see that part here?

A. Yes. That's for a sponsored ad that -- for the

advertisements we saw on the right side of the list of

advertisements previously in this video.

Q. Were those those thumbnail, kind of those boxes that had

kind of larger displays of ads on the right-hand side of the

search screen when you were looking for ads?

A. Correct.

Q. Those are the sponsor ads?

A. Those are the sponsored ads or thumbnails.

Q. And what is this pricing sort of menu that we're looking at

here?

A. Here from that dropdown screen, if you wanted to run that

sponsored ad for a week, it would be $10.60 all the way down to

where it says 20 weeks for $212, but it looks like the dropdown

screen can even roll farther.

Q. Thank you. And did you select a sponsorship for this ad?

A. I did. I selected the two-week sponsorship for $21.20.

Q. And did you select an auto repost number as well?

A. Yes. I selected the auto repost for the ad for eight times

for $80.

Q. Can you describe what's happening now.

A. I clicked on the continue button, and it's going to the

next step to preview the ad.

Q. So we're looking at the ad preview screen at this point?

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A. Yes.

Q. And I'd like to direct your attention to the information

over here where it says section, category, location, ad price.

Do you see that there?

A. Yes, I do.

Q. What does that information say?

A. The section is for adult entertainment. The category is

for the escorts, location in Sacramento, with the ad price of

$111.20.

Q. And does the remainder of screen show you a preview of the

ad that you had crafted as we were discussing previously?

A. Yes. And in this preview you can also see the picture that

I uploaded.

Q. Can you describe where we are now?

A. Yes. I clicked on the place ad button, and it's taken us

to the payment screen.

Q. And does the payment screen offer various forms of payment?

A. Yes, it does. You can pay by either credit card with a

MasterCard or Visa or with bitcoin.

Q. And what is your understanding of bitcoin just very

generally?

A. It's a digital currency.

Q. Do you see any other credit card logos down here at the

bottom?

A. Just MasterCard and Visa.

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Q. I want to go back a little bit here. Do you see where it

says the charge will appear on your statement?

A. Yes.

Q. What entity does it identify there?

A. It says this charge will appear on my statement as BP

National.

Q. And what does it say on the next line?

A. Payment Solutions BV in the Netherlands.

Q. You're entering credit card information now?

A. Yes. This is an undercover credit card that I used.

Q. I'd like to direct your attention to the middle of the

screen here. Did the payment entity just change?

A. Yes, it did.

Q. What did it change to?

A. Now it states that the charge will appear on my statement

as BP Classified under Classified Solutions in the United

Kingdom.

Q. Thank you. And this reflects the price of your ad?

A. The price of my ad is $111.20.

Q. What screen are we looking at here?

A. This is the fourth step. It's just stating that we're all

done; thank you. It's stating thank you for posting the ads,

and don't hit the browser back button as it may result in

multiple charges.

Q. Now, at this point did you receive an e-mail in connection

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with this ad?

A. I did. I received an e-mail to the undercover e-mail

address that was input into the advertisement, and it stated

that thank you for the ad, and your advertisement is now

pending.

Q. Was the e-mail from --

A. The e-mail was from Backpage.com.

Q. Did it reflect the price of the ad?

A. Yes, it did. It was basically a receipt for the

advertisement.

Q. I'm going to fast forward just a little bit. Can you

describe now what it is you're doing on your video?

A. We're back to the home page. I clicked on the

buy/sell/trade section for furniture, and these are the list of

advertisements for furnitures for sale on Backpage in the

furniture for sale section. 

Q. And I just want to highlight the list of ads on the left

here. What does this list reflect?

A. A list of advertisements for furniture for sale.

Q. And how many advertisements for furniture for sale had been

posted in the last -- well, so far on March 6th? Let's start

with that.

A. There were no postings on March 6 according to this list.

Q. How about on March 5th?

A. Two.

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Q. And how about just within the last three weeks or so

reflected on this list?

A. Nine or ten.

Q. How many sponsor ads are in this section?

A. There is one.

Q. Can you describe generally what you're doing here.

A. Yes. I just clicked on the first advertisement to get an

idea what they look like.

Q. And was there a minimum price for these ads, for purchasing

these ads?

A. No.

Q. What are you doing here?

A. Here I'm looking to post my own advertisement, so I'm going

to the furniture for sale category to begin the first step of

posting my undercover advertisement.

Q. And I'm just going to fast forward through your typing of

the ad. So I've now fast forwarded to the 16-minute-55-seconds

mark approximately. Can you just generally describe what we're

seeing here.

A. Here again I'm typing in the title, the description of the

sofa that I wanted to sell, the price, trying to figure out

exactly how much I wanted to list it for, settled on $150.

It's located in Sacramento. And I used the same e-mail address

as the undercover escort ad. I also selected the same option

to not receive any e-mail responses. And now I'm uploading a

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picture.

Q. You used the same undercover e-mail address for this ad?

A. Yes, I did.

Q. The same one that you used for the escort ad?

A. Yes.

Q. And here again we're seeing you select the couch photo?

A. Correct.

Q. I want to direct your attention to the upgrade section

here.

A. Okay.

Q. What section are we looking at here?

A. Again, this is the upgrade section that you can purchase

additional options to upgrade your advertisement.

Q. And is this first feature we see on the number of times, is

that sort of kind of a baseline or minimum option you could

select here?

A. Yes. This is a similar option as in the adult escort

section, except for here the number of times, 26 times, it only

cost me $1.02.

Q. And looking now down at the sponsor part of this payment

section, do you see that here?

A. Yes.

Q. Is this the dropdown menu for the prices for sponsoring

this non-adult, couch-for-sale ad?

A. Correct. This is the additional fee to sponsor the ad or

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place a thumbnail ad starting at one week for ten cents

dropping down to where it says 20 weeks for $2, but then the

roll bar can go farther.

Q. Thank you. And what is it that we're looking at here?

A. So this is the second step to preview the ad for the sofa

for sale that I placed.

Q. Is this the price of your ad here?

A. Yes. The total price for the ad is $1.22.

Q. What is it that we're looking at here?

A. This is the payment screen for that advertisement.

Q. And I'd like to direct your attention again to the payment

entity information here. Do you see that there?

A. Yes.

Q. Was there the same change that we had observed previously?

A. Yes.

Q. And what screen are we looking at here?

A. This is the final step saying we're all done and stating

thank you for the ad.

Q. Did you receive a similar sort of e-mail from Backpage kind

of confirming your purchase of that ad?

A. Yes, I did. I received another e-mail for this ad from

Backpage.com basically stating the price and thanking me for

posting the ad. It was a receipt.

Q. Now, what is it that you're doing now?

A. Now I'm going back to get into the main page. And it's

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taking me to the disclaimer screen, which I click agree. And

now we're back at the main list of advertisements in the

Sacramento adult escort section.

Q. Now, focusing on the list here on the left, do you see this

list here?

A. Yes.

Q. Do you recall the last ad or -- I should say -- the ad that

was at the top of the list before you went and posted the two

undercover ads was this TyTee Time ad?

A. Correct.

Q. So what do these ads on -- that appear above TyTee Time

represent?

A. Those are the advertisements that have been posted since

the last time we were in this screen.

Q. And how many advertisements were posted in that time?

A. I count eight.

Q. And this was within about how many minutes?

A. 15 minutes, 10, 15 minutes.

Q. So within the 15 minutes or so that it took you to put up

these undercover ads, eight new adult escort ads posted in the

Sacramento section of Backpage.com's escort section?

A. Yes, yes.

Q. Can you tell us what it is that we're looking at now?

A. Yes. This is a different view option of the advertisements

we were just looking at. Instead of listing them in a list

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form, which would have been the brief view, I clicked on the

gallery view. And this now gives you the list of

advertisements along with a photo.

Q. Just highlighting the very top row here, do you see how

there are posting dates and times associated with each of these

ads?

A. Yes.

Q. Are these the eight new ads that posted while, you know,

within the last 15 minutes or so of your making this recording?

A. Yes.

Q. Can you just read the titles of the first three ads here

that we see.

A. Yes. The first one says smoking, hot, skilled, juicy,

available, best in the -- It's cut off.

The second one says 100 percent real, upscale blond

bombshell, elite.

Third one, magical lips, nice booty, cute face, spank.

The fourth one, the right choice, guaranteed, 100.

Q. Okay. You can --

A. Okay.

Q. -- stop there.

So there are eight ads in this first row?

A. Yes.

Q. And eight ads in the second row?

A. Yes.

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Q. Eight ads in the third row?

A. Yes.

Q. Looking at the bottom row, how many ads are there?

A. Six.

Q. So how many ads total do we see on this one page?

A. On this page, 30.

Q. And what is this bar here at the bottom of the screen with

all these numbers?

A. That allows you to go to the next page and line.

Q. How many pages does it give you the option of scrolling

through here?

A. They're up to ten, but it can go beyond that.

Q. And just directing your attention to the last ad here, what

is the posting date and time of this one?

A. The date and time on that is Friday, March 6, 6:46 a.m.

Q. 6:46 a.m. And you were recording this video at right now

approximately 9:00 that morning?

A. Yes.

Q. So this reflected 30 ads that had been posted since, you

know, between 6:46 a.m. and 9:00 a.m.?

A. Yes.

Q. 30 ads just in the Sacramento section of Backpage's adult

escort's category?

A. Just in the Sacramento area, yes.

Q. What are we looking at here?

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A. We're looking at the second page with an additional 30

advertisements.

Q. And just looking at this last line of advertisements here,

I want to direct your attention to the posting times. Is the

very last -- What is the very last posting time that we see

here?

A. That was March 6, 3:32 a.m.

Q. So we've now seen 60 ads that have been published here --

A. Correct.

Q. -- preceding the time you were creating the video?

A. Correct.

Q. And what page are we on now?

A. This is the third page with an additional 30

advertisements.

Q. What page are we on now?

A. This is the fourth page.

Q. So this fourth page has another 30 ads on it?

A. Correct.

Q. We're now on the next page?

A. Yes. This is the fifth page with an additional 30

advertisements.

Q. And just highlighting that last line of these ads here, can

you just read the titles of these ads.

A. The first ad says, "Thursday Outcall Special-24."

Second one, "Charlie Roxxx, Certified World Class

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Pleasure Girl." It looks cut off. 

The third one is "Beautiful bombshell ready to play.

Don't keep me." 

Fourth one is "Good Girl $100." 

And then "Italian Princess waiting to come see you,"

several emojis. 

Last one, "I'm back. Sweet college student looking

for a great", and then it's cut off.

Q. So this is Page 5?

A. Yes.

Q. 30 ads per page?

A. Yes.

Q. So we've now seen 150 of these ads?

A. Correct.

Q. And this last one here was put up March 5th, 8:03 p.m. Do

you see that?

A. Yes, Thursday March 5th, 8:03 p.m.

Q. So that would have been within the last 12 hours or so

of -- or 13 hours of when you created this recording?

A. Correct.

Q. 150 ads?

A. Yes.

Q. We're now on the sixth page?

A. Yes.

Q. When you hovered your mouse over one of these ads, can you

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see the various images associated with them?

A. Yes. This is a feature that was provided. If you place

your cursor over the gallery view, it would scroll through the

pictures that were attached to the advertisement.

Q. So we're now on Page 7 of the gallery view?

A. Yes.

Q. Another 30 ads?

A. Correct.

Q. Is this Page 8?

A. Yes.

Q. Another 30 ads?

A. Yes.

Q. Page 9?

A. Yes.

Q. Which also had 30 ads on it?

A. Yes.

Q. And now we're on Page 10?

A. Yes.

Q. Just focusing on the last ad on Page 10 here, what is the

date and posting time here?

A. It is Thursday, March 5th, 6:22 a.m.

Q. So from approximately 9:00 a.m. March 6 to 6:22 a.m. the

prior day, in between that period of time, 300 ads were sold

here?

A. Yes. 300 advertisements were posted in that 27-hour

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period.

Q. And, again, this is just for Sacramento?

A. Just for Sacramento.

Q. Just for the Sacramento portion of Backpage's adult escort

section?

A. Yes, which was -- excuse me -- one of, what, 30 areas in

the State of California.

Q. Right. When we started looking at your video recording,

recall that geographic sort of dropdown menu which reflected

different areas within California?

A. Correct. And Sacramento was just one of those roughly 30

areas. And this is a depiction of a 27-hour period of time

with 300 advertisements just in the Sacramento area.

Q. Before we move on, I just want to show you a few more

documents relating to your undercover operation.

A. Okay.

Q. And so this would just need to be submitted for now.

Special Agent Supervisor Fichtner, do you see what is

displayed on your screen?

A. Yes, I do.

Q. And do you recognize this document?

A. Yes, I do.

Q. I want to mention that it is marked Exhibit 489B. What is

this document?

A. This is a screenshot of the process and the posting the

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undercover advertisement that's depicting the auto repost ad

pricing.

Q. Is it a fair and accurate screenshot from the video you

created?

A. Yes, it is.

MR. KOZINETS: I'd like to move this into evidence.

THE COURT: Which exhibit is this?

MR. KOZINETS: It's Exhibit 489B.

THE COURT: Any objection?

MR. BIENERT: No, Your Honor.

THE COURT: 489B will be admitted and can be

published.

Q. (BY MR. KOZINETS) So what does this exhibit show?

A. This shows the pricing for the upgrade on the advertisement

that I post.

Q. This was for the escort advertisement?

A. Correct. This is for the escort advertisement.

Q. I have one more exhibit to offer. Special

Agent Supervisor Fichtner, I'm showing you what has been marked

as Exhibit 489C. Do you see that on your screen in front of

you?

A. Yes.

Q. Do you recognize this document?

A. Yes.

Q. What is the document?

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A. This is a screenshot of part of the video we just watched.

MR. KOZINETS: Move to admit Exhibit 489C.

THE COURT: Any objection?

MR. BIENERT: No, Your Honor.

THE COURT: 489C will be admitted and can be

published.

Q. (BY MR. KOZINETS) Special Agent Supervisor Fichtner, the

last exhibit we were looking at, did that have the price ranges

for the auto repost ad upgrade for your -- for the escort

section?

A. Yes.

Q. And what pricing list are we looking at here?

A. This is the pricing list for the sponsored ads.

Q. I have another exhibit to proffer.

Special Agent Supervisor Fichtner, I'm showing you

what has been marked as Exhibit 490A. Do you see that exhibit?

A. Yes.

Q. Do you recognize it?

A. Yes, I do.

Q. How do you recognize it?

A. This is an e-mail that I received from Backpage.com after I

posted the adult escort ad thanking me for posting the ad, and

it also shows the date, time, and price of the ad.

MR. KOZINETS: I'd like to move Exhibit 490A into

evidence.

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THE COURT: Any objection?

MR. BIENERT: No, Your Honor.

THE COURT: 490A will be admitted and can be

published.

MR. KOZINETS: Thank you.

Q. (BY MR. KOZINETS) Special Agent Supervisor Fichtner, I'm

just highlighting part of the e-mail. Does this information

confirm the information that you had selected regarding the

upgrades that you purchased for the escort ad?

A. Yes.

Q. And so that was to have a sponsorship?

A. Yes. For the location of Sacramento, it shows that I chose

a sponsor and auto repost for eight times.

Q. And what is the total price of the ad here?

A. The total price is $111.20.

Q. I have another exhibit I'd like to proffer.

Special Agent Supervisor Fichtner, I'm showing you

what has been marked as Exhibit 490D. Do you see that?

A. Yes.

Q. Do you recognize it?

A. Yes.

Q. What do you recognize it as?

A. This is a screenshot of the advertisement, the undercover

advertisement that I posted in the escort section of Backpage.

MR. KOZINETS: We move for the exhibit to be admitted.

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THE COURT: And this is 490D or B?

MR. KOZINETS: I'm sorry. It is 490D.

THE COURT: Okay. Any objection?

MR. BIENERT: No, Your Honor.

THE COURT: 490D will be admitted.

MR. KOZINETS: May it be published please?

THE COURT: Yes.

Q. (BY MR. KOZINETS) So, Special Agent Supervisor Fichtner,

is this how the escort ad that you purchased appeared when it

was live?

A. Yes.

Q. I have another exhibit to proffer.

Special Agent Supervisor Fichtner, I'm showing you

what's been marked as Exhibit 490B. Do you recognize that?

A. Yes. This is a copy of the e-mail I received from

Backpage.com related to the sofa advertisement that I posted.

MR. KOZINETS: This is a -- Pardon me.

Your Honor, I'd move to admit Exhibit 490B into

evidence.

THE COURT: Any objection?

MR. BIENERT: No, Your Honor.

THE COURT: 490B will be admitted and can be

published.

Q. (BY MR. KOZINETS) Special Agent Supervisor Fichtner, I'm

just directing your attention to the information regarding the

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upgrades that you selected for this ad. Do you see that there?

A. Yes, I do.

Q. Did you select a sponsorship for the ad?

A. Yes. I selected a sponsor, and I selected the auto repost

for 26 times.

Q. And what was the total price of your sofa for sale ad?

A. The total price for this ad was $1.22.

Q. Finally, I just have one more document here to proffer.

Special Agent Supervisor Fichtner, I'm showing you what's been

marked as Exhibit 490E. Do you recognize that?

A. Yes.

Q. How do you recognize it?

A. This is a screenshot of the advertisement I posted for the

sofa for sale.

MR. KOZINETS: Move to admit Exhibit 490E.

THE COURT: Any objection?.

MR. BIENERT: No, Your Honor.

THE COURT: 490E will be admitted and can be

published.

Q. (BY MR. KOZINETS) Special Agent Supervisor Fichtner, is

this a copy of a printout of the ad that you published?

A. Yes. Not a very good copy but a copy.

Q. So this is the couch for sale ad that you purchased during

your undercover investigation?

A. Correct.

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Q. So just before we move on, I just want to ask you: So did

you select similar upgrade features for the couch ad and for

the escort ad?

A. Yes. I tried to keep it as consistent and similar as

possible.

Q. The escort ad price, do you recall what it was?

A. Yes. $111.21, I think.

Q. Do you recall the price for the couch for sale ad?

A. $1.22.

Q. So the adult escort ad was about a hundred times more

expensive than the furniture ad?

A. Yes, it was.

Q. Thank you. What happened in your undercover investigation

after the escort ad and the couch ad went live on Backpage?

A. Immediately after the escort ad went live, within minutes,

we started receiving calls and text messages for the escort ad.

Q. What was the nature of the responses that came in or the

volume?

A. They were directed towards soliciting sex for money.

Q. How many responses were received?

A. I think there were close to 200 text messages from

different phone numbers and over 130 phone calls from different

phone numbers.

Q. Now, those were the responses to the escort ad?

A. Those were responses to the escort ad.

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Q. And that was over an approximately how many day period?

A. We actually let it run for about ten days.

Q. So about 300 or I think you said more than 300 total --

pardon me -- responses to that escort ad?

A. Correct.

Q. How many responses did you get to the sofa for sale ad?

A. We received one.

Q. One over that ten-day period?

A. That same ten-day period.

Q. Now, you talked about a ten-day period. What happened

after the ads were live for ten days?

A. We let them run for ten days, and then I decided to reach

out to Backpage. I wanted to find out what the response would

be to us reporting an advertisement that we believed to be an

ad for prostitution in the escort section and see what the

response would be. So I placed a --

Q. Before you -- Before you continue, I just want to ask you:

Before you reached out about these ads, were you aware of

whether there had been any effort to moderate or remove your

escort ad from Backpage?

A. I was unaware of any moderation of the ads.

Q. Were you aware of any effort to take down any of the other

ads, the 300 or so other ads, for instance, that we looked at

just previously that had been posted within 27 hours of the ad

that you purchased?

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A. I do not know. 

MS. BERTRAND: Objection. Calls for speculation.

Move to strike.

THE COURT: The objection's sustained. The answer

will be stricken.

Q. (BY MR. KOZINETS) Do you know if any of the other ads that

posted within that 24-hour period were taken down?

A. I do not.

Q. So you mentioned that you reached out. What was the first

thing that you did?

A. First I placed a phone call to Elizabeth McDougall. It's

my understanding she was legal counsel for Backpage at the

time.

Q. How did you reach that understanding?

A. Just through being briefed on the investigation before I

took it on but also through, you know, my own investigation of

looking into Backpage and finding information out there on the

Internet along with an interview that she gave with Anderson

Cooper on CNN that listed her as legal counsel for Backpage.

And she was speaking on behalf of them in that interview.

Q. And what happened when you -- What happened next?

A. I attempted to call her but received a voice mail. So I

just left a message identifying that I was a special agent with

the California Department of Justice, that I had identified an

advertisement in the adult escort section that was for

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prostitution, and to have her return my call.

Q. And what did you do next?

A. Then I placed a phone call to Carl Ferrer, who was the CEO

of Backpage at that time, and he actually answered the phone.

He answered it, said, hi, this is Carl. I identified myself as

a special agent with the California Department of Justice and

told him that I had identified an advertisement in the escort

section that was for prostitution.

Q. And what, you know, what happened after that?

A. He asked me how I knew that. I told him I couldn't get

into details of my investigation. But I basically was trying

to find out how do I go about reporting this ad. And he began

to tell me that I can send an e-mail to Backpage. But as he

was telling me how to do that through the e-mail, he just asked

for the name of the ad, description of the ad. So I provided

him with the actual post ID number of the ad to identify it

that way.

It sounded like he was looking it up on the computer,

because he eventually said that he would take care of it for

me. And he said he also identified another advertisement that

was linked to that escort ad, but it didn't appear to be

illegal because it was a sofa for sale.

I asked him if I should still report this through the

e-mail, and he said no, he would take care of it. I asked him

how, you know, when that would be taken down. He said it

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should be taken down by the end of the day.

He also stated that that was their claim to fame, was

to -- was their response to law enforcement, how efficient they

were. And he also offered to preserve any records that I may

want in the future if I were to choose to subpoena those

records.

Q. Now, until you called and spoke with the CEO of Backpage,

your ad remained live on the escort section?

A. Correct.

Q. Ten days later, though, when you called the CEO and asked

that it be taken down, it was taken down?

A. It was. After our phone call, I logged back onto the

website, and both advertisements had been removed.

Q. Did you try to repost the escort ad?

A. I did.

Q. Were you able to?

A. I was not.

Q. So what happened next?

A. The following day I received a call from Elizabeth

McDougall. She called me. I -- She said she was returning my

call from the day before. I identified myself as an agent with

the California Department of Justice. I told her that I had

identified an escort ad that was for prostitution in their

escort section. However, I had already reached out to

Mr. Ferrer, and he had removed the ad for me.

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Again, she asked how I knew it was a prostitution ad.

I explained I couldn't get into the details of the

investigation. But I did ask her that I saw a number of other

advertisements that were on there and why those weren't being

restricted. And she pointed to the First Amendment. She said

Backpage believes in the First Amendment and doesn't want to

restrict people from posting advertisements.

She said there was a filtering process in place to

prevent illegal ads being posted, and she described it as a

four-step screening process. The first step was a computer

program that would filter out certain words that she said was

associated with illegal activity, prostitution, sex

trafficking. And then she said the advertisement would be

screened twice by a human moderator. And then finally the

general public had the option to report the advertisement.

Q. What was your response to all of this?

A. I was surprised at some of the ads and the filtering

process. I asked her about a few of the ads that had full

nudity that showed bare breasts, genitalia, and if that was

allowed. And she said, you know, pictures like that should not

be allowed and that they would have to address it with the

moderator to correct the problem.

Q. Did you again raise the issue of prostitution ads with her

during your call?

A. I did. I pointed out that, you know, a number of, gosh,

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almost all these advertisements just looked like blatant

prostitution ads. And each time I raised that, you know, she

never dissuaded me from that. She basically said the Internet

and prostitution is not going away. And if Backpage were to

restrict people from posting in the adult services section,

that it would only drive the industry underground and make it

more difficult for law enforcement to investigate, which

surprised me because --

MR. BIENERT: Objection to the conclusions and his

personal opinions, Your Honor.

THE COURT: The objection's sustained.

Q. (BY MR. KOZINETS) Did Ms. McDougall ever call you to alert

you to any prostitution ads on Backpage?

A. She did not.

Q. Did Mr. Ferrer?

A. He did not.

Q. Did anybody from Backpage ever call you to alert you to any

prostitution ads on Backpage?

A. No.

Q. Did you continue to periodically review the Backpage

website in 2015?

A. Yes, I did.

Q. I'd like to direct your attention to a review you conducted

in September of 2015. Do you recall doing that?

A. Yes.

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Q. And what type of review -- or was there a particular date

in September when you conducted a review and created another

recording?

A. Yes. September 8, 2015.

Q. And what type of review were you conducting?

A. This one I just wanted to browse the website and just

record what was being posted at that date and time.

Q. Were you -- Was there any sort of, you know, randomness

associated with your review, or how did you kind of decide how

to review it?

A. It was just that. It was just a random view but also to

kind of test out and, you know, increase my user experience and

see how the website may have changed during that time, if

it's -- if it was the same or it is improved or just to see how

it was at that date and time.

Q. Did you notice any changes in the website that you saw in

September of 2015 compared to March, 2015?

A. Yes. They had added a couple additional features to make

it easier to browse.

Q. What features did they add?

A. In the previous video, we saw that you could see it in a

list. You could also see it in a gallery view with pictures.

They added a feature where you can, you know, browse it by date

but also by video. You had the option to, I guess, search

through videos for the advertisements.

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Q. Was there now any sort of difference in how you could pay

for the ads?

A. Yes. There was also the option of creating a customer

account and purchasing credits to pay for advertisements.

Q. Can you just describe that a little bit further? What, you

know, what did that entail?

A. Just that. You would log on, create an account, user name,

password. You can buy credits so you would actually have kind

of like a Backpage credit line. So when you would go to post

an advertisement, you wouldn't have to input your

Visa/MasterCard at that time. You can just pull from the

credits that you had already purchased prior.

Q. Okay. Did you create a video of your random browsing

through the escort section of Backpage on September 8th, 2015?

A. Yes, I did.

Q. Do you remember approximately how long that video was?

A. Maybe 15 minutes.

Q. And can you describe what you saw on the video.

A. Yes. A lot of explicit material. A lot of the videos

depicted full nudity, genitalia, masturbation.

Q. Before testifying today, did you review any clips or

excerpts from that approximately 15-minute video that you

recorded?

A. Yes, I did.

Q. And did you review any screenshots from that video?

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A. Yes, I did.

Q. I'd like to proffer Exhibit 1636A. I'm just going to put

that up here on the screen.

MR. BIENERT: I'm sorry. What's the number, sir?

MR. KOZINETS: 1636A.

MR. BIENERT: Thank you.

Q. (BY MR. KOZINETS) Special Agent Supervisor Fichtner, do

you recognize Exhibit 1636A?

A. Yes, I do.

Q. What do you recognize it as?

A. This is the beginning of the video that I created on

September 8, 2015.

Q. Do you recognize this as an excerpt of the video that you

created?

A. Yes.

Q. And you viewed this video before?

A. Yes, I have.

Q. You viewed this excerpt before?

A. Yes, I have.

Q. And you've confirmed that it is an excerpt of the video you

created on September 8th, 2015?

A. Yes, it is.

MR. KOZINETS: Move to have Exhibit 1636A admitted.

THE COURT: Any objection?

MR. BIENERT: No objection.

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THE COURT: 1636A will be admitted and can be

published.

Q. (BY MR. KOZINETS) Special Agent Supervisor Fichtner, I'm

showing you just the very beginning of this exhibit. Can you

describe what it is that we're seeing on the screen?

A. This is the front home page for Backpage.com at this date

and time. Here it lists the states and the cities underneath

them where previously we were just viewing the Sacramento

region. This showed you the states as well as international

countries that you can view.

Q. And do you have a general familiarity with California law

regarding prostitution?

A. Yes.

Q. And just in general terms, not giving a specific legal

definition, but in very general terms, what is your

understanding of California prostitution law?

A. That you can't solicit, engage in, or arrange to have sex

for money.

Q. And solicit means offering?

A. Correct.

Q. In the course of your work with law enforcement agents --

Well, let me put it this way. In the course of your work on

the Backpage investigation, did you come to work with law

enforcement agents from other parts of the country?

A. Yes.

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Q. From your work on the investigation, did you come to an

understanding as to the legality of prostitution in the rest of

the country?

MR. CAMBRIA: Object to this.

THE COURT: What's your objection?

MR. CAMBRIA: The objection at this point is, Your

Honor, no relevance.

MR. BIENERT: And no foundation as to this witness.

It's Mr. Bienert. It sounds like -- 

THE COURT: The objection as to foundation is

sustained.

Q. (BY MR. KOZINETS) From your work on the investigation and

your dealings with other law enforcement agents from around the

country, did you learn from your work and from other agents

about prostitution occurring elsewhere in the country?

MR. BIENERT: Objection. All hearsay.

MR. EISENBERG: Irrelevance, Your Honor.

THE COURT: The objection's overruled but just answer

yes or no.

THE WITNESS: Yes.

Q. (BY MR. KOZINETS) From that, did you learn whether

prostitution is illegal in other parts of the country?

MR. BIENERT: Same objection.

THE COURT: The objection is overruled.

MR. LINCENBERG: Objection. Calls for a legal

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conclusion and vague.

MR. BIENERT: No foundation that this witness is an

expert on other than California prostitution laws.

THE COURT: Okay. The question is "Did you learn

whether prostitution is illegal in other parts of the country?"

You can answer yes or no. The objection's overruled.

THE WITNESS: It's a tough yes or no.

Q. (BY MR. KOZINETS) Did you learn whether prostitution is

illegal in other parts of the country?

A. In just one part of the country, yes. I'm sorry. It's

only legal in one part of the country.

MR. BIENERT: Objection to the substantive answer for

lack of foundation, and it's all based on hearsay.

MR. KOZINETS: This is just --

THE COURT: The objection's overruled. The answer

will stand.

Q. (BY MR. KOZINETS) Okay. All right. So this sort of

geographic list of places that is just visible on this part of

the screen that we're looking at now, those are other places

where Backpage was available?

A. Yes.

Q. And I realize this is sort of cut off. It doesn't show the

full scope of, you know, the United States here. But this is

sort of just a rough reflection?

A. Yes.

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Q. Okay. Special Agent Supervisor Fichtner, directing your

attention to the upper left-hand part of the screen here, what

is it that we're looking at here?

A. These are the options that are now in place for you to sort

or view through the advertisements.

Q. And so what is the top section?

A. The top is where it shows the list of advertisements that

used to be called brief, and then you have the gallery, which

is -- has a picture along with the list of advertisements. And

then they've added video where you can sort through the

advertisements for those that have a video attached as well as

sort through by date.

Q. So by this point in September of 2015, Backpage had

increased the ability of the user to search through these

escort ads?

A. Correct. They had added additional features to make the

user experience better.

Q. And is this kind of a gallery view that we're looking at

here?

A. Yes. This is the gallery view.

Q. And, again, this is from September of 2015?

A. Correct.

MR. LINCENBERG: Your Honor, can we have a standing

objection -- this is Mr. Lincenberg -- that everything

post-sale is completely irrelevant?

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THE COURT: Yes. Yes.

Q. (BY MR. KOZINETS) Special Agent Fichtner, I'm directing

your attention to three ads from the second row of this gallery

view. It's the second, third, and fourth ad. Can you just

read the titles of these ads please.

A. Yes. The first one says, "Last day in town. 100 percent

real and independent," and then "Beautiful --" looks like it's

cut off.

Second one is "100 percent real mixed with caramel and

honey-20."

The third one is "Gorgeous mixed babe in town" with

an emoji. "Call for Camilla-2."

Q. Do you notice how the second or -- I'm sorry -- the first

and the third of these escort ads include references to the

word town or in town?

A. Yes.

Q. For instance, that first ad says last day in town?

A. Yes.

Q. Are these phrases that you commonly saw on the escort

section of Backpage?

MR. BIENERT: Objection as to time, Your Honor, or

just could he give a time frame?

Q. (BY MR. KOZINETS) Sure. When you were

conducting your investigation in the year 2015, were these

phrases that you commonly saw?

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FICHTNER - DIRECT 

A. Yes.

Q. This may have skipped ahead. I'm just going to go back a

little bit. I'm sorry. There was a skip. I'm showing you

three additional escort ads that are on the third row of the

gallery view that we were just looking at. Do you see these

here?

A. Yes.

Q. And I realize that the title of the first ad is somewhat

obscured, but can you read the titles of the second and third

ads?

A. Yes. The second one says, "Only in town for a few days.

Specials-25."

The last one says, "Hot and ready" with splash emojis,

"incalls, outcalls," has a vehicle emoji "play".

Q. Is that like a car?

A. A car.

Q. So hot and ready, splash, splash, splash, three splash

emojis?

A. Correct.

Q. And then incalls --

A. Incalls, outcalls.

Q. -- outcalls. 

A. Sorry.

Q. And then car play?

A. And car play.

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FICHTNER - DIRECT 

Q. And -- I'm sorry -- are we in the video search section now?

A. Yes. So now we are searching through the video view of the

advertisements.

Q. And I'm just showing you the ad appearing at the end of

this clip. Do you see this ad here?

A. Yes, I do.

Q. Can you just read the title of the ad please.

A. The title says, "Exotic, Passionate, Korean, Indian, and

Ebony Five Star. Available now. Highly reviewed. Outcall

specials now-21."

Q. And can you read the text of the ad please.

A. The text states "Hey, fellas, I'm Nyla. I am in town

hosting incalls and outcalls throughout Sacramento and

surrounding cities. I'm very open-minded, and I love to

please. You will love and never forget the time we spend

together. Every second will be passionate and real. So please

call so we can get started playing."

Q. Okay. You can stop there. Does this ad have, again, those

sort of similar common characteristics that you had observed

from your review of the escort section back in March of 2015?

A. Yes. It has similar statements like incalls, outcalls,

proposition. Yes, it has similar content.

Q. And we're not going to show this --

THE COURT: Counsel. I'm sorry. I'm going to

interrupt so we can take our morning recess. So we'll come get

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you in about 20, 25 minutes. Please remember the admonition.

We'll see you then.

(Proceedings recessed from 10:39 a.m. until 11:20 a.m.

Proceedings outside the presence of the jury:)

THE COURT: You can get the jury. 

MR. RAPP: And I presume you're going to give the jury

some explanation as well?

THE COURT: Yes.

MS. BERNSTEIN: And, Your Honor, we just filed a

motion at 1295, and I can orally tell you -- I'm sorry; I just

ran upstairs -- I can tell you orally what it says, but it's

about limiting Ms. Svendgard's testimony. I don't know if

Ms. Svendgard is in the room, but I would ask that she leave

the room.

I'm sorry? 

THE COURT: Finish.

MS. BERNSTEIN: And just would like if the Court can

address that before she testifies.

THE COURT: Have you seen it?

MR. RAPP: No. She's been on our witness list for

over a year.

MS. BERNSTEIN: We don't object to her testifying.

Just to limit her testimony.

MR. RAPP: Your Honor, what -- how would the Court

like to proceed on this?

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THE COURT: Give me just two more minutes.

MR. RAPP: Sure. I didn't know if you were waiting

for me.

THE COURT: You can have a seat since -- Okay.

First, I don't know why this wasn't filed earlier

instead of after a 40-minute break and not prior to trial when

you knew this witness was going to be called to testify. 

MS. BERNSTEIN: Because it wasn't until --

THE COURT: Because now our break is turning into over

an hour. 

MS. BERNSTEIN: Your Honor, it wasn't until the

expounding on Ms. Svendgard's testimony that we were concerned

that the government is going to attempt to do the same thing

with the younger Svendgard. And this was not worked on over

the break. It was just filed, and everyone agreed to consent

to it.

THE COURT: Mr. Rapp.

MR. RAPP: Judge, that's absurd. That's absurd.

They've had -- They deposed this witness in 2017. They've had

all her statements from the criminal case. The gov -- This is

a retread of motions that have been relitigated again and

again. This is a victim who was posted on Backpage in 2010.

They were given notice of it in 2012 when they were sued. They

have been engaging in a conspiracy that included internal

prostitution marketing strategies, which makes the 50

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substantive counts within the statute of limitations reasonably

foreseeable to these defendants. They got notice in 2012.

They deposed her in 2017. So how is it that they are filing

this right now?

THE COURT: Well, I understand that, but now they've

raised the objection, so I have to --

MR. RAPP: I understand.

THE COURT: -- deal with it.

Do you have anything you want to say about the

substance of -- I guess it looks like a general relevance

objection and 403.

MS. BERNSTEIN: It is, Your Honor, 401 and 403. And I

do want to correct, again, we are not Backpage. We are not the

Backpage attorneys. We had no part in 2012 litigation, 2017

litigation, and we have to stop conflating the two.

THE COURT: Okay. But you've had her statements,

correct?

MS. BERNSTEIN: Correct. But we were not a part of

the litigation as was alleged.

MR. RAPP: Again -- 

THE COURT: You don't have to retread that issue. So

as to her relevance, what's your response?

MR. RAPP: Well, it's very relevant. It's that she

was trafficked in 2010. They filed suit against them, her, a

15-year-old trafficking victim, and two 13-year-old trafficking

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victims, therefore putting these defendants on notice that

their website was facilitating prostitution, including child

sex trafficking, which would make all substantive 50 counts

reasonably foreseeable to them under an aid and abet theory and

Pinkerton theory of liability.

THE COURT: Okay.

MS. BERNSTEIN: Your Honor, I think that's the

problem, is that the conspiracy is not a general conspiracy

that Backpage was bad and Backpage created prostitution. The

government is limited by what they charged in this case. And

the government charged a conspiracy to violate the Travel Act

and listed some overt acts in furtherance of that conspiracy.

Obviously an agreement hasn't been established, and

that's for the jury and for later at the conclusion of trial.

But at this point for the government to say that Ms. Svendgard

can come talk about being trafficked when she was 15 because

she filed a suit in 2010, it doesn't track the elements.

Is she the business enterprise? Is any of her three

pimps the business enterprise?

MR. RAPP: Yes.

MS. BERNSTEIN: Because it's not Backpage. I'm not

sure how this witness then is able to establish that what her

pimps did or did not agree with Backpage. If Mr. Rapp just

said that her pimps are the business enterprise, okay, that's

clarity we haven't had before. How is this witness going to

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talk about pimps' agreements with these defendants?

If Mr. Rapp wants to bring in the pimp, we can

litigate that. But this is hearsay. It's irrelevant. It's

confusing. It's inflammatory. And it really muddles the

elements of conspiracy.

Ms. Svendgard is not a subject of any of the

substantive Travel Act counts. The government did not indict

a prosec -- a conspiracy that Backpage was bad and prostitution

occurred, because that's not an indictable offense under their

theory. 

The government indicted a conspiracy to violate the

Travel Act by these six defendants conspiring and agreeing with

business -- particular business enterprises to promote or

facilitate those business enterprises' promotion of

prostitution.

THE COURT: Okay. 

MS. BERNSTEIN: And Ms. Svendgard doesn't fit into

that.

THE COURT: Okay. Before I rule, does anybody else

want to say anything? Because I don't want any adding

additional arguments after I've ruled.

MR. LINCENBERG: No, Your Honor.

THE COURT: Mr. Feder?

MR. FEDER: No.

THE COURT: Mr. Eisenberg? 

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MR. EISENBERG: No, Your Honor.

THE COURT: Ms. Bertrand?

MS. BERTRAND: No, ma'am.

THE COURT: Mr. Cambria?

MR. CAMBRIA: No, Your Honor. No, Your Honor.

THE COURT: Okay. So I'm going to allow her

testimony, but it's going be really limited. I mean, she's

allowed to testify that she was trafficked by her pimp through

Backpage and that she filed suit, but I don't know what else

you anticipate getting into.

MR. RAPP: I anticipate -- I anticipate her to testify

that she was trafficked by being posted on Backpage, yes, and

that people paid money to post her ad, that --

THE CLERK: I think the two mics are too close

together.

MR. RAPP: Yeah. I mean, various people posted her on

Backpage. They used Visa cards to post her. They paid for the

ads. All of those things that are relevant to a business

enterprise. They paid for the hotels that she was at. They

paid for her clothes. Those are relevant to the business

enterprise. They reposted her ad, kind of like what we saw

this morning, again and again. And then of course she filed

suit against them and was deposed by Backpage attorneys,

including Liz McDougall was present there during the testimony,

who was an agent of theirs.

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MS. BERNSTEIN: Your Honor, this is extremely

problematic. The idea -- My understanding, from having read

the deposition and the -- Ms. Svendgard was deposed as a part

of her 2017 lawsuit, and she also testified in the criminal

trial of one of her pimps. So I've reviewed her deposition

transcript and her testimony at her pimp's trial. And my

understanding is that she does not know. She thinks her pimp

paid money. She never saw her pimp pay money.

MR. RAPP: That's not true. That's not true.

THE COURT: Mr. Rapp -- 

MS. BERNSTEIN: Your Honor, you have the documents.

So to try and connect Ms. Svendgard to a conspiracy to violate

the Travel Act through a specific business enterprise of her

pimp, it is hearsay. It is inflammatory for Ms. Svendgard to

say my pimp did X, Y, and Z.

THE COURT: You're right. It may be. It sounds like

she may not have the foundation for it. So you can make the

objection.

MS. BERNSTEIN: I'm just concerned with the way he's

going to go into her testimony, because if I don't get to

cross-examine her until the end to say, "In fact, you never

actually posted your ad or saw any of this. This is all what

someone told you," we can't unring that bell. And I think all

of this is real intellectual gymnastics to try to get this to

connect to a business enterprise through the Travel Act. I

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J. SVENDGARD - DIRECT 

understand the government -- 

THE COURT: Okay. Ms. Bernstein, I've ruled.

She's going to be allowed to testify. If she doesn't have the

foundation, she's not going to be allowed to answer those

questions.

MS. BERNSTEIN: Thank you.

THE COURT: Okay. Do you have your witness ready?

MR. RAPP: I do.

THE COURT: Can you bring in the jury.

(The jury returned to the courtroom at 11:33 a.m.)

THE COURT: We are back on the record with the jury

present.

For the jury's information, to accommodate witness

schedules, we're interrupting the special agent's testimony to

take this witness out of order.

And could you introduce your witness, who you're

calling.

MR. RAPP: Yes. The United States calls Jessika

Svendgard.

JESSIKA SVENDGARD, GOVERNMENT'S WITNESS, SWORN 

DIRECT EXAMINATION 

BY MR. RAPP: 

Q. Ma'am, can you spell your last name for the record.

A. Jessika Svendgard, and my last name is S-v-e-n-d-g-a-r-d.

Q. Ms. Svendgard, you know that your mother's also testifying

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J. SVENDGARD - DIRECT 

in this trial?

A. Yes, I do.

Q. So to keep the record clear, I'm going to refer to you as

Jessika.

A. Okay.

Q. Where are you from?

A. I am from the southeast.

Q. How long have you lived there?

A. About five years.

Q. What do you do there?

A. I am a mother, and I own a tree service.

Q. Do you do that by yourself?

A. With my partner.

Q. All right. Brothers, sisters?

A. Yes. I have two siblings, an older brother and an older

sister.

Q. Did you grow up in the southeast of the United States?

A. No. I grew up in a suburb of Seattle, Washington.

Q. And when did you leave Seattle, Washington?

A. When I was approximately 17.

Q. I want to take you back to March of 2010. How old were

you?

A. I was 15 at the time.

Q. And when did you turn 16?

A. December of that year, December 21st.

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J. SVENDGARD - DIRECT 

Q. What year in -- Were you in school?

A. Yes, I was.

Q. High school?

A. Correct.

Q. During 2010, did you run away from home?

A. Yes, I did.

Q. How many times did you run away from home?

A. Twice.

Q. Did you run away from home in March of 2010?

A. Yes, I did.

Q. What caused you to run away from home?

A. I was getting bullied at school.

Q. Why were you getting bullied at school?

A. Because I was a female wrestler.

Q. You were on the wrestling team?

A. Correct.

Q. All right.

A. I'm sorry.

THE CLERK: Your Honor, I'm sorry. Excuse me.

(Clerk provides tissue box to witness.)

THE WITNESS: Thank you. I'm okay.

Q. (BY MR. RAPP) Okay. So let's talk about the first time -- 

A. Okay.

Q. -- you ran away from home.

How long were you gone?

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J. SVENDGARD - DIRECT 

A. I was missing for ten days.

Q. While you ran away, did you meet somebody?

A. Yes, I did.

Q. Who did you meet?

A. Her name was Candace.

Q. And where did you meet her?

A. I met her at a youth homeless center in downtown Seattle.

Q. How long did you spend with her?

A. Approximately seven of the ten days that I was missing.

Q. All right. Now I'm going to jump ahead slightly. You ran

away a second time?

A. Yes, I did.

Q. Did you meet up with Candace the second time?

A. Yes, I did.

Q. And during that time that you met up with her, did she post

you on a website?

A. Yes. She posted me on Backpage.com.

Q. Now, let's go back to the first time you met her for the

ten days.

A. Okay.

Q. During that time period, did you observe what Candace did

for a living?

A. Yes, I did.

Q. What did she do for a living?

A. She was a prostitute.

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J. SVENDGARD - DIRECT 

Q. How old was Candace?

A. I was under the impression that she was 17. I later found

out she was 23.

Q. And during that ten days where you had an opportunity to

observe her and you say she was a prostitute, what did you

observe that led you to believe that she was engaged in

prostitution?

A. Besides her telling me that she was, I witnessed her engage

in sexual acts with people in exchange for money.

Q. And where did you see her do that?

A. In a vehicle, multiple vehicles.

Q. At some point were you rescued?

A. Yes.

Q. How did that come about?

A. I was able to get away from the -- where I was at, and I

found a police officer and asked him to call my mother.

Q. And did he?

A. Yes.

Q. Did your mother come and take you home?

A. She did.

Q. When you went home -- And is that in the latter part of

March of 2010?

A. I believe so, yes.

Q. Now, did Candace, during that time period, did Candace give

you something?

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J. SVENDGARD - DIRECT 

A. Yes. She gave me a cell phone.

Q. And did you keep that cell phone?

A. I did.

Q. And when you went home in the latter part of March of 2010,

did you still have that cell phone?

A. Yes, I did.

Q. Did you have contact with Candace over the next couple

months?

MS. BERNSTEIN: Objection. Leading.

THE COURT: The objection's overruled.

THE WITNESS: Yes. I talked to her for several months

after that.

Q. (BY MR. RAPP) What did you and Candace talk about doing?

A. We had talked about going to California together, and that

was pretty much it.

Q. All right. Did you want to go to California?

A. Yes.

Q. And did you talk about that during the seven of the ten

days that you were with her in March?

A. Yes, I did.

Q. And at some point in 2010, did you run away for the second

time?

A. Yes, I did.

Q. Can you explain to the jury, Jessika, how you went about

doing that.

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J. SVENDGARD - DIRECT 

A. I packed a small bag of clothes, and I snuck out the front

door when a train went by so my parents wouldn't hear me.

Q. And did you meet up with Candace?

A. Yes, I did.

Q. Was Candace with anybody else?

A. Yeah. She was with two females and another male.

Q. And did you go somewhere?

A. Yeah. We went to one hotel and then separated from some of

the people and ended up at the Knights Inn.

Q. Is that a hotel in the Seattle area?

A. Yeah. It's -- I can't remember where it was at though.

Q. Okay. So just to be clear, what month in 2010 are we in,

if you remember?

A. Late June.

Q. Late June. And when you met up with Candace, did she --

did she talk to you -- continue to talk to you about going to

California?

A. Yes, she did.

Q. Did she have money and perhaps a car to go to California?

A. No, she did not.

Q. During the time period before you ran away the second time,

did you and Candace talk about going to California?

A. Yeah. She had promised that she had Greyhound tickets to

get to California with me.

Q. And then when you ran away with her in 2010, you found that

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J. SVENDGARD - DIRECT 

she didn't have that?

A. That's correct.

Q. Did she discuss with you in June of 2010 how you could make

money so that you could afford tickets to go to California?

A. She said if I worked with her, that we could make money

faster in order to be able to pay for the Greyhound tickets.

Q. And when she said "work with her," what did you learn that

meant?

A. To prostitute.

Q. And where did she make that statement? Was it at the hotel

or where?

A. Yes. It was at the Knights Inn Motel.

Q. Did she talk to you about how you would go about

prostituting yourself?

A. She said she needed --

MS. BERNSTEIN: Objection. Hearsay.

THE COURT: The objection's sustained.

MR. RAPP: May I be heard? Effect on the listener.

THE COURT: Counsel, can I see you at side bar?

(Bench conference on the record as follows:)

THE COURT: How is this effect on not hearsay?

MR. RAPP: I don't even know if it's offered for the

truth. She's just telling her you can make money to go to

California. We don't even know if it's true. As a result,

it's effect on the listener. She allows herself to be posted

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J. SVENDGARD - DIRECT 

on Backpage, numerous times meets with men, has sex, and gets

money. So it obviously is effect on the listener. We don't

even know if -- I'm not even offering it for the truth. I'm

offering it for what it caused her to do.

MS. BERNSTEIN: It is being offered for the truth

because it's being offered to show that Candace said do X, Y,

Z, and JS did X, Y, Z. She cannot testify to what someone told

her. It's not effect on the listener. Effect on the listener

is this catchall that I think the government invokes at every

turn, but it is not effect on the listener. He's asking her

what did Candace say to you, not how did you feel after you

talked to Candace.

THE COURT: Okay. The objection is sustained. You

can say what happened after she talked to Candace but not what

Candace said.

(End of bench conference.)

Q. (BY MR. RAPP) Did you have some conversations with

Candace?

A. I did, yes.

Q. Did Candace do anything with you to post you on

Backpage.com?

A. Yes. She took pictures of me.

Q. And did you observe what she did with those pictures?

A. She proceeded to make a Backpage ad and posted it.

Q. All right. And did she do that on a phone or a computer,

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J. SVENDGARD - DIRECT 

or what did she do this on?

A. I don't recall.

Q. After she -- So can you describe the pictures that she

took?

A. Little clothing and provocative.

Q. And did you actually observe her posting you on this

website?

A. I was in the same vicinity as her. I don't remember if I

watched every click that she made.

Q. After she posted you on Backpage.com, what happened?

A. The phone started to ring that she had given me.

Q. And who was -- Did you answer the phone, or did she answer

the phone?

A. I did.

Q. And who was on the other end of the phone?

A. Somebody who wanted to pay for sex.

Q. All right. And was there any arrangements made with this

person for you to meet with them?

A. Yes. They were supposed to come pick me up, and I was to

have oral sex or intercourse with them in exchange for money.

Q. And did that happen while you were with Candace?

A. Yes, it did.

Q. And how many times, Jessika, did that happen?

A. Like three or four.

Q. And did you go -- I'm going to ask you some tough

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questions. Did you go with these men?

A. Yes, I did.

Q. And did you have sex with them?

A. I was 15, and I was not the age of consent. I was raped.

MS. BERNSTEIN: Objection, Your Honor. That's not the

question that was asked.

THE COURT: The objection's sustained.

Q. (BY MR. RAPP) Did they pay you?

A. Yes, they did.

Q. At some point -- Did you keep the money?

A. No, I did not.

Q. Did you give it to somebody?

A. Candace, we got in an altercation, and she took it from me.

Q. Did you leave Candace?

A. Yes, I did.

Q. All right. Did you -- Where did you go?

A. I hid in the back of the motel under a mattress.

MS. BERNSTEIN: Your Honor, objection, and I would

request a side bar.

THE COURT: The objection's sustained. Counsel.

(Bench conference on the record as follows:)

THE COURT: Counsel, I told you not to go into the

life of a victim, and this is getting into beyond being posted.

MR. RAPP: Well, I have to tell the story.

THE COURT: Well --

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MR. RAPP: No. Let me -- Let me just finish. She

calls a pimp, a pimp that she had met through Candace. The

pimp picks her up, takes her to his apartment. They're there

for a couple days. He then starts posting her on Backpage.com,

and she starts engaging in the same activity. I mean, I can't

just have her parachute into -- She's got to give some type of

a story here how she ends up with --

THE COURT: Actually she doesn't. You can jump to the

next one. I'm not going to allow this. So --

MR. RAPP: Okay.

THE COURT: -- you need to be very careful.

MR. EISENBERG: Your Honor, can you strike the

testimony that was given just now with respect to what happened

when she ran off and hid under a mattress or something like

that? That's highly prejudicial to us. So was her answer I

was only 15. But this part about how she got away is just

incredibly prejudicial.

MR. FEDER: On top of Candace took my money, she

assaulted me or something; we had an altercation. This is --

This is the end result of allowing --

THE COURT: You need to say your name.

MR. FEDER: I'm sorry. Bruce Feder.

MS. BERNSTEIN: I would just -- 

THE COURT: Are you done? 

MR. FEDER: Yeah.

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THE COURT: I can't have three of you talking at one

time without saying your name.

Mr. Rapp, do you want to respond to the request to

strike that from the record?

MR. RAPP: It's part of the story. She leaves the

hotel and meets another pimp.

THE COURT: Okay. But these details are violating my

order that you not go into the sort of details of her life as a

prostitute.

MR. RAPP: Well, there's actually a lot more to this

than what I'm going into. I'm just telling the story. She has

to be able to tell a story that makes sense where she ends up

with another pimp, and then she's going to end up with yet

another pimp, so -- and all through Backpage.com.

THE COURT: Well, it's the Backpage.com that matters,

not how she gets from one to the next. So the objection --

I'll strike that last answer.

MS. BERNSTEIN: Can we just note -- This is Whitney

Bernstein. And I would just note for the record -- because I

don't think it will come across -- that she has cried multiple

times during Mr. Rapp's testimony, and it is prejudicial and

inflammatory.

(End of bench conference.)

THE COURT: That last question and answer will be

stricken.

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Q. (BY MR. RAPP) Okay. Jessika, did you meet somebody else

that evening?

A. Yes, I did.

Q. Who was that?

A. Baruti Hopson.

Q. Did you go somewhere with Baruti Hopson?

A. Yes. I went to his apartment.

Q. How long were you with Baruti Hopson?

A. The next 105 days, give or take a few.

Q. While you were at -- with Baruti Hopson, did you have an

opportunity to observe what he did for a living?

A. Yes.

Q. Well, what did you observe that -- how he made his money?

A. He -- He was -- He made his money off of me.

Q. What, based on your experience over that 105 days, what

would you characterize his job as?

MS. BERNSTEIN: Objection, Your Honor.

MR. FEDER: Object as to relevance. And may it be a

continuing objection?

THE COURT: Okay. The objection is overruled but

noted.

Q. (BY MR. RAPP) All right. Did he -- Can you explain to

this jury how he made money off of you?

A. He would sell me on Backpage.com, and I would --

MS. BERNSTEIN: Objection. Lack of foundation.

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THE COURT: The objection is sustained.

Q. (BY MR. RAPP) All right. Did you observe -- Did he take

any pictures of you?

A. Yes, he did.

Q. How many times over the 105 days did he take pictures of

you?

A. There was only one specific time he took pictures that he

just reused every time.

Q. And did you see, Jessika, what he did with those pictures?

A. Yes. He would post them on Backpage and make ads.

Q. Were you present when he made these ads?

A. Yes, I was.

Q. And what did you see him actually doing to make these ads?

A. Giving, like, a description of me and sometimes, you know,

how long I could see somebody for and posting pictures to go

with them.

Q. And when he would do this, what would happen?

A. People would call.

Q. And would you answer the phone, or would Mr. Hopson answer

the phone?

A. I would.

Q. And who would you talk to?

A. Purchasers or Johns.

MS. BERNSTEIN: Objection, Your Honor.

THE COURT: What's the objection?

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MS. BERNSTEIN: Lack of foundation.

THE COURT: The objection's overruled.

Q. (BY MR. RAPP) When you say Johns, what are Johns?

A. People paying for sex.

Q. And were these the people who were calling you?

A. I'm sorry. What?

Q. Were these, when you said that you would receive these

calls after Mr. Hopson would post you on Backpage.com, were

these Johns that were calling you to arrange for sex?

A. Yes, they were.

Q. And did you actually meet with these individuals?

A. Yes. I would either be driven to where they are or they

would come to me to a hotel.

Q. And when you went with them, Jessika, what would happen?

A. I would be raped for money.

Q. In the 105 days that you were with Mr. Hopson, how many

times would that happen, Jessika?

A. Three to --

MS. BERNSTEIN: Objection, Your Honor, relevance.

THE COURT: The objection's sustained.

Q. (BY MR. RAPP) When you got -- Did you get paid?

A. I did not get to keep any of the money, no, so no.

Q. What did you do with the money?

A. I had to give it to Baruti.

Q. All right. So let's go back to Backpage.com. Did you

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observe how Mr. Hopson would pay for your ad on Backpage.com?

A. He would put money on a prepaid --

MS. BERNSTEIN: Objection, Your Honor. This was not

the question.

THE COURT: The objection's sustained. Can you repeat

the question for her.

Q. (BY MR. RAPP) Sure. Did you actually see how Mr. Hopson

was able to pay for your ad on Backpage.com?

A. Yes.

Q. How did he go about paying for the ad?

A. With a debit card.

Q. And what would he do with that debit card?

A. He would -- It would just ask for the payment information,

and he would type in the information and --

MR. FEDER: Objection. Calls for hearsay and

foundation. Move to strike.

THE COURT: The objection's overruled.

Q. (BY MR. RAPP) And did you ever use a credit card to post

an ad of yourself?

A. I did.

Q. And where did you get that credit card?

A. Baruti Hopson.

Q. And do you know where these credit cards came from?

A. No.

Q. Were these credit cards that were in Mr. Hopson's name

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based on what you could observe? 

MS. BERNSTEIN: Objection, Your Honor.

THE COURT: What's your objection?

MS. BERNSTEIN: I withdraw.

THE COURT: Okay.

THE WITNESS: I'm sorry. Can you repeat the question?

Q. (BY MR. RAPP) Of course I can. Were you in a position to

observe whether these credit cards had Mr. Hopson's name on

them?

A. From my observations, they did not. They were just

pre-loaded debit cards that you could load at pretty much any

cash, like, place.

Q. Did you ever see him purchase these credit cards?

A. Yes.

Q. How many times?

MS. BERNSTEIN: Objection, Your Honor. Relevance.

THE COURT: The objection's sustained.

Q. (BY MR. RAPP) Now, at some point did you have an

arrangement with a man for sex that wasn't a John?

A. Yes, I did.

Q. And did this person, did you learn, based on your

observations, that this person was a pimp?

A. Yes, I did.

MS. BERNSTEIN: Objection, Your Honor. Lack of

foundation.

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THE COURT: The objection's sustained.

MS. BERNSTEIN: Move to strike. Sorry, Mr. Rapp.

THE COURT: That is -- Well, it's denied right now

unless -- if you're going to lay some more foundation.

Q. (BY MR. RAPP) Can you tell the jury about this person I'm

referring to.

A. He -- This person posed to be a John. And when he showed

up, he was a pimp, and he showed me how much better my life

could be if I went with him. And I ended up leaving with him.

Q. When you say he was posing as a John but in fact was a

pimp, did he meet you through one of the postings on

Backpage.com?

A. Yes, he did.

MS. BERNSTEIN: Objection. Foundation.

THE COURT: The objection's sustained.

MS. BERNSTEIN: Move to strike.

THE COURT: That last answer will be stricken.

Q. (BY MR. RAPP) Did you -- Did you meet him through

Backpage.com? Did he answer one of your postings?

A. Yes, he did.

MS. BERNSTEIN: Objection. Lack of foundation. Move

to strike.

THE COURT: The objection's sustained.

Q. (BY MR. RAPP) How do you know that?

THE COURT: The answer will be stricken.

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Q. (BY MR. RAPP) How do you know that he met you through a

posting on Backpage.com?

MS. BERNSTEIN: Object to the question, Your Honor.

THE COURT: The objection's overruled.

Q. (BY MR. RAPP) How do you know?

A. He called the number that was on my Backpage listings.

Q. And then he showed up?

A. To the address that I gave him.

Q. And did you spend some time with him?

A. Yes.

Q. And was there anybody else with him?

A. There was a woman by the name of Thee (phonetic).

Q. And was she engaging in acts of prostitution as well?

MS. BERNSTEIN: Objection, Your Honor, relevance.

THE COURT: The objection's sustained.

THE WITNESS: Not that I witnessed.

THE COURT: You can't answer.

THE WITNESS: Oh, I'm sorry.

THE COURT: That's okay.

Q. (BY MR. RAPP) Did you -- Eventually did you end up back

with Baruti Hopson?

A. I did.

Q. And did you continue to engage in acts of prostitution at

his direction?

MS. BERNSTEIN: Objection, Your Honor, to the form of

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the question. Calls for an answer and lack of foundation.

THE COURT: The objection's overruled.

THE WITNESS: Can you repeat the question?

Q. (BY MR. RAPP) Yes. Well, let's take a step back. Did you

end up back with Mr. Hopson?

A. I did.

Q. Did you continue to be posted on Backpage.com?

A. Yes.

Q. And did you continue to meet with men for the purposes of

having sex for money?

A. Yes, I did.

Q. Eventually did you -- Eventually did you arrange to have

sex with somebody, and they turned out not to be a John?

A. When I was recovered, yes.

Q. Can you tell us about that.

A. I went to meet somebody who --

MS. BERNSTEIN: Objection, Your Honor, relevance.

THE COURT: The objection's sustained.

Q. (BY MR. RAPP) Well, did you -- did you -- did you respond

to -- Did somebody respond to a posting on Backpage.com?

A. Yes. I got a phone call from one of the postings, and I

went to meet with the John, and it was a police officer.

Q. And is this, when you say you were recovered, were you

arrested?

A. Yes.

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Q. Now, going back to the time you were with Baruti Hopson,

did you stay in the same city?

A. We -- He would -- We would travel.

Q. When you say you would travel, where would you go?

A. To other suburbs around Seattle.

Q. All right. And do you recall some of those suburbs, the

names of those suburbs?

A. Belleview and I believe Bothell, and I can't recall the

names, all of them.

Q. Jessika, do you know why you would go to other cities?

A. Because he -- 

MS. BERTRAND: Objection. Relevance.

THE COURT: The objection's sustained.

Q. (BY MR. RAPP) But, in any event, did you go to other

cities and have these same meetings with men, sex for money?

MS. BERTRAND: Objection. Relevance.

THE COURT: The objection's overruled.

You can answer that one.

THE WITNESS: Could you repeat the question.

Q. (BY MR. RAPP) Yes.

A. I'm sorry.

Q. Did you go -- When you went to these other cities, did you

also have arrangements with men through your Backpage postings

and have sex for money?

MS. BERNSTEIN: Objection. Lack of -- 

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MR. EISENBERG: Objection. Foundation.

THE COURT: I'm sorry. I didn't hear the objection.

MR. EISENBERG: Foundation, Your Honor.

MS. BERNSTEIN: And relevance, Your Honor.

THE COURT: The objection's overruled.

THE WITNESS: Yes. I would travel to and post

different listings on Backpage.com for different cities in

order to make money for Baruti Hopson.

Q. (BY MR. RAPP) All right. Now, after you were arrested,

did you return home?

A. Yes, I did.

Q. And did you participate in the prosecution of Baruti

Hopson?

A. Yes, I did.

Q. And did you testify at his trial?

A. Yes.

Q. And during that trial, did they show you, during your

preparation and in that trial, did they show you the postings

on Backpage.com?

A. Yes.

Q. And I want to jump ahead a little bit. At some point were

you deposed as part of a civil case?

A. I was.

Q. And during that process, were you showed your postings on

Backpage.com?

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A. I believe so, yes.

Q. All right. I'm showing you what has been marked as

Government's 211C. 

And this is for the witness's eyes only, madam clerk.

Now, Jessika, have you, in preparation for your --

You've already testified for your preparation for your

testimony in the criminal case of Baruti Hopson you looked at

your postings? 

A. Yes.

Q. And in preparation for your testimony here, you've looked

at your postings, correct?

A. Correct.

Q. And can you -- Do you have it on the screen there?

A. I do.

Q. And are these the postings during the time -- the 105-day

time period that were on Backpage.com?

A. Yes, they are.

Q. How do you know that?

A. The pictures are of me, and I recognize the text and the

e-mail, and the -- and it has Baruti Hopson's name it.

Q. Let me ask you about the e-mail. How do you recognize the

e-mail?

A. We would use that to make the postings.

Q. All right. And in terms of the dates, do the dates of

these postings, do they correspond to the time -- the 105-day

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time period you were with Mr. Hopson?

A. Yes.

Q. And indeed the first one, the first posting, do you see

what date it was in? Did you see the --

A. Do you want me to say the date?

Q. Yeah. What was the date?

A. June 27th, I believe.

Q. And then the last posting as part of 211C, let's see if we

can show you the date there.

A. August.

Q. Do you see that?

A. Do you want me to say the date?

Q. Yes. What was the date?

A. August 14, 2010.

Q. And that is within the time period that you were being

posted on Backpage.com by Baruti Hopson?

A. Yes, sir.

MR. RAPP: Move to admit 211C.

THE COURT: Any objection? 

MS. BERNSTEIN: Your Honor, I do have an objection.

I would like to do a brief voir dire of the witness.

THE COURT: Okay. Let's do it after our lunch break.

All right. We're going to recess for an hour for lunch.

Please remember the admonition. We'll see you after lunch.

(The jury exited the courtroom at 12:10 p.m.)

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MS. BERNSTEIN: Your Honor, I would just remind the 

government and witness there should be no communication during 

the break while she's on the stand. 

THE COURT: No communication with who? 

MS. BERNSTEIN: The government should not be speaking

to the witness about her testimony while she's in the middle of

it under oath.

MR. RAPP: It wasn't my intention to, but I've never

heard of that as a rule.

THE COURT: I haven't either but -- Okay. Oh, I

wanted to let defense know that you can use my jury room, which

is up on the fifth floor at the very end. So if you're up

there, the left side, you have to go all the way to the end

hall and press the button, and Yvonne or one of my law clerks

will let you in.

Socially distanced, it's only enough for eight people,

but it's something for right now.

MR. FEDER: Thank you, Your Honor.

THE COURT: But I told her that she only had to wait

around for 15 minutes after we recess each day for lunch, so

somebody needs to go up there.

MS. BERNSTEIN: We will, Your Honor. And what time

are we to be back?

THE COURT: 1:15.

MR. LINCENBERG: Your Honor, this is Mr. Lincenberg.

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Very quick point. With regard to the side bars, if the

background noise is preventing the jury from hearing, then I

would ask that everybody not whisper. We have a big group.

We're all sticking our heads in real close. I still can't hear

when people are whispering. And it seems to me that people can

speak in a normal voice, and the jurors won't be able to hear.

THE COURT: Well, we can try it. But generally I

don't want people talking in their full voice. I know the

noise is supposed to minimize the amount people can hear, but

some -- some people tend to talk louder than others, but --

MR. LINCENBERG: Well, I understand the quandary. My

sense is that with that background noise, if we talk in a

normal voice, there's no speakers for the jurors. They won't

hear us. And I can't hear half of what's being said.

THE COURT: Okay.

MS. BERNSTEIN: And I'm sorry --

MR. BIENERT: Your Honor, since we're doing one

attorney rule --

(Reporter interrupts for clarification.)

MR. BIENERT: -- if you do a side bar, if I ever hear

anything audibly, I will stand up and raise my hand, and maybe

you can appoint someone from the government to do the same. 

MS. BERNSTEIN: Your Honor, I apologize, but for

scheduling purposes, I'm going to need a break at about 2:00.

I can go until 2:00.

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THE COURT: All right.

(Proceedings recessed at 12:13 p.m.)

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UNITED STATES DISTRICT COURT

C E R T I F I C A T E

I, LINDA SCHROEDER, do hereby certify that I am duly

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

I FURTHER CERTIFY that the foregoing pages constitute

a full, true, and accurate transcript of all of that portion of

the proceedings contained herein, had in the above-entitled

cause on the date specified therein, and that said transcript

was prepared under my direction and control.

DATED at Phoenix, Arizona, this 14th day of September, 

2021. 

 s/Linda Schroeder 

 Linda Schroeder, RDR, CRR 

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Case 2:18-cr-00422-DJH Document 1334 Filed 09/20/21 Page 95 of 95