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GLENN B. McCORMICK

Acting United States Attorney District of Arizona

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

40 N. Central Avenue, Suite 1800

Phoenix, Arizona 85004-4408

Telephone (602) 514-7500

DAN G. BOYLE (N.Y. Bar No. 5216825, daniel.boyle2@usdoj.gov) Special Assistant U.S. Attorney 312 N. Spring Street, Suite 1400

Los Angeles, CA 90012

Telephone (213) 894-2426

KENNETH POLITE

Assistant Attorney General 

Criminal Division, U.S. Department of Justice

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

Child Exploitation and Obscenity Section

950 Pennsylvania Ave N.W., Room 2116

Washington, D.C. 20530

Telephone (202) 616-2807 

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff, 

v. 

Michael Lacey, et al.,

Defendants.

No. CR-18-422-PHX-SMB

UNITED STATES’ RESPONSE TO 

DEFENDANTS’ MOTION FOR 

ACQUITAL OR MISTRIAL

(Doc. 1272)

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Preliminary Statement

Defendants seek an acquittal or mistrial based on an opening statement that largely 

previewed the trial evidence that supports the allegations in the Superseding Indictment 

(Doc. 230, SI). Allegations that Defendants have known for over three years. Allegations 

that this Court has already found “show Defendants had a specific intent to promote 

prostitution.” (Doc. 793 at 19.) The question before the jury will be whether the evidence 

supports the United States’ allegations and proves guilt beyond a reasonable doubt. 

In response to the United States’ preview of the evidence, Defendants argue they 

can’t “un-ring this bell.” (Sept. 3, 2021 Trial Transcript (Tr.) at 59:19.) But that “bell” 

will be continually rung throughout the United States’ case-in-chief. Indeed, that “bell” 

summarizes several significant pieces of evidence against Defendants—including 

Defendants’ deliberate execution of several prostitution-marketing strategies purposefully 

designed to increase their website’s revenues and facilitate their customers’ prostitution 

businesses. These strategies, all detailed in the opening statement, included content 

aggregation (publishing free prostitution ads in attempt to capture new business), reciprocal 

link agreements (including a longstanding relationship with the explicit prostitution review 

website The Erotic Review, which for years served as the number one source of outside 

referrals for Backpage), paying commissions or offering discounts to high-volume 

prostitution advertisers (super-posters or super-affiliates like Dollar Bill, New York 

Platinum, and Sean Kim), “moderation” (which sanitized overly-blatant prostitution ads 

without changing the true meaning of what they offered for sale), and money laundering 

schemes designed to conceal the true source of Backpage’s revenues and fool financial 

institutions. (See generally Tr. at 13-55.) 

Throughout the last three years of intense pretrial litigation, Defendants never 

seriously addressed any evidence concerning their prostitution-marketing strategies. In the 

instant motion, Defendants studiously avoid discussing this evidence. Rather, Defendants 

continue to take the exceedingly narrow view that they can only be liable if they had 

specific knowledge of each individual ad. (See, e.g., Mot. at 1.) Defendants are wrong. 

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The trial evidence will show that Defendants worked together (and conspired with others) 

to facilitate prostitution by publishing the ads in Counts 2-51 and similar ads. And if a 

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

been personally involved in the ad’s publication process (Backpage employed dozens of 

low-level moderators to individually review ads before publication), it was reasonably 

foreseeable—in light of the policies and strategies Defendants deliberately implemented as 

part of the conspiracy charged in Count 1—that such violations would be committed in 

furtherance of the conspiracy. The Court’s prior Orders—and its Preliminary Jury 

Instructions—recognize that Defendants can be found guilty under precisely this theory. 

(See Doc. 793 at 14-20; Doc. 946 at 11-16; Preliminary Jury Instructions at 3-4.)

Defendants may not like the evidence, but that doesn’t change the testimony and 

exhibits that will be presented over the next two months. Defendants know this. That’s 

one of the reasons why the docket includes over 1200 pretrial filings. The Court has made 

rulings on the admissible evidence. Both sides had motions granted and denied on a variety 

of evidentiary issues. Neither side is permitted to introduce all the evidence it, he, or she, 

believes to be helpful to their respective cases. All parties now must try this case under 

these rulings. Relitigating every previous issue is neither permitted nor practical. 

As explained below, Defendants’ various grounds for seeking an acquittal or

mistrial lack merit, and Defendants’ motion should be denied.

Argument

I. An Opening Statement Does Not Require a Comprehensive Count-by-Count 

Summary of Anticipated Evidence.

Defendants assert that if the opening statement does not relate the evidence to each 

and every charge in the SI, the United States has waived its right to proceed and an acquittal 

or mistrial should result. (Tr. 82 at 4-10, 17-20; Tr. 84 at 3-4; Mot. at 13-14.) Particularly 

in a case like this—which involves a 92-page SI charging 100 counts concerning a multidefendant conspiracy that spanned 14 years—Defendants are wrong. In a case of this 

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magnitude, summarizing the evidence on all charged counts in a two-hour opening 

statement is neither practical nor required. 

The Federal Rules of Criminal Procedure do not require or even mention opening 

statements. Compare Fed. R. Crim. P. 29.1 (addressing closing arguments); see LRCiv. 

39.1(b) (any party may decline to make an opening statement). The purpose of the opening 

statement “is to state what evidence will be presented and to make it easier for jurors to 

understand what is to follow, and to relate parts of the evidence and testimony to the 

whole.” Testa v. Village of Mundelein, III., 89 F.3d 443, 446 (7th Cir. 1996) (citing United 

States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J., concurring)); see United States v. 

Stanfield, 521 F.2d 1221, 1225 (9th Cir. 1975) (opening statement “has the practical 

purpose of directing the attention of the jurors to the nuances of the proposed evidence in 

such a way as to make the usual piecemeal presentation of the testimony more 

understandable as it is received”).

The prosecutor is not required in an opening statement to recite the evidence he 

intends to offer to establish every element of each offense that a defendant is charged with 

in the indictment. United States v. Graham, 146 F.3d 6, 10 (1st Cir. 1998); see also United 

States v. Ingraldi, 793 F.2d 408, 414 (1st Cir. 1986) (“[A] defendant has no right to have 

the government outline in detail in its opening all the evidence it intends to introduce. An 

opening statement is not evidence and it is usually left to the prosecutor to decide how 

elaborate it will be. Indeed, there is no obligation on the part of the government to make 

an opening statement at all . . . .”). Cf. Rose v. United States, 149 F.2d 755, 758 (9th Cir. 

1945) (affirming the denial of motion to dismiss based on allegedly insufficient evidence 

summarized in an opening statement; such a motion may be granted only when the opening 

statement affirmatively shows the government has no cause of action, and only after the 

prosecutor is given an opportunity to correct or supplement). The Court should reject 

Defendants’ broad claim that an acquittal or mistrial should be declared simply because the 

opening statement did not provide an outline sufficiently acceptable to Defendants.

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II. Defendants’ Argument on Specific Intent Is Unavailing.

Defendants claim “the single biggest issue” with the United States’ opening 

statement relates to mens rea. (Tr. 78 at 1-7; see also Mot. at 1, 8-9, 11-12.) Defendant 

Larkin’s counsel stated:

But [the United States] never said, and I’m going to show you that they had 

specific knowledge and intent of this ad right here, it’s count 22 in the 

indictment, and they purposefully let it be published so they could help this 

prostitute’s business venture. That’s what you have said the case should be.

(Tr. 78 at 12-16.)

This misstates the law. This is an issue the parties have litigated, and the Court has 

decided. In one of Defendants’ motions to dismiss, they made the same claim, arguing that 

“[e]ven if the defendants knew of any particular business enterprise engaged in prostitution 

offenses in violation of state law, they could not have specifically intended to promote such 

a business enterprise . . . without knowing about a particular ad and having some role in 

the publication of the ad—and the Superseding Indictment contains no such allegation with 

respect to Mr. Brunst or any of the other defendants.” (Doc. 746 at 15.) 

The Court denied Defendants’ motion and specifically found that—based on the 

SI’s allegations—“each Defendant had the requisite specific intent to promote an unlawful 

activity in violation of the Travel Act on fifty occasions.” (Doc. 946 at 15, citing Doc. 793 

at 15.) In a previous Order, the Court held: “The alleged facts in the SI, taken as true, 

establish defendants had the specific intent to promote prostitution in violation of the 

Travel Act.” (Doc. 793 at 20.) In that Order, the Court walked Defendants through all the 

allegations in the SI, finding Defendants’ “conspiracy was successful and resulted in the 

fifty ads for prostitution that now make up fifty counts of violating the Travel Act.” (Doc. 

793 at 19-20; see also Doc. 946 at 16 (“The SI plainly alleges Defendants specifically 

intended to facilitate prostitution businesses by publishing the ads.”).)

The Court has now, on several occasions, informed Defendants that—if proven 

true—the allegations in the SI are sufficient to prove Defendants’ guilt of the crimes 

charged. (Doc. 793 at 19-20; Doc. 946 at 15-16.) These allegations relate to prostitutionCase 2:18-cr-00422-DJH Document 1275 Filed 09/07/21 Page 5 of 19
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marketing “strategies Backpage used to attract more prostitution ads.” (Doc. 793 at 4.) 

The United States focused on these “strategies” in its opening statement. First, the 

prosecution discussed “content aggregation.” (Tr. at 13:16-15:20; see Tr. at 14:23-25 

(“[C]reating prostitution ads on Backpage with the content aggregation process was 

successful in generating revenue for the company.”).) Next, the United States outlined 

Defendants’ reciprocal link agreement with The Erotic Review. (Tr. at 16:15-19:6.) 

“Evidence will show that The Erotic Review is the prostitution review site where buyers 

of sex could rate their experiences with prostitutes, including their sexual encounters with 

them.” (Tr. at 16:20-23.) “[F]or the month of January 2009, evidence will show that The 

Erotic Review was responsible for more than 500,000 visits to Backpage.” (Tr. at 18:15-

17.) The United States then discussed Defendants’ relationships with super affiliates. (Tr. 

at 19:7-20:10.) “Evidence will show that a super poster or a super affiliate were individuals 

who owned local prostitution businesses, and in some cases, evidence will show, paid 

hundreds of thousands of dollars in order to promote their prostitution businesses in the 

adult services section Backpage.com.” (Tr. at 19:14-19.) Finally, the United States 

discussed Defendants’ moderation practices. (Tr. at 20:11-27:19.) “[L]et’s look at a few 

e-mails and documents, internal documents that show that instead of preventing these ads 

from being posted on Backpage.com, they were instructed by these defendants to conceal 

the fact that prostitution ads were rampant on Backpage.” (Tr. at 20:23-21:2.) 

These are all “strategies Backpage used to attract more prostitution ads.” (Doc. 793 

at 4.) This Court has found that if the government can produce evidence proving these 

prostitution-marketing strategies beyond a reasonable doubt, then it will have proven 

“Defendants specifically intended to facilitate prostitution business by publishing the ads.” 

(Doc. 946 at 16.) The United States recognizes that it must demonstrate each of the six 

Defendants had specific intent to facilitate the promotion of the prostitution business 

enterprises1 listed in Counts 2-51, but, as the Court has ruled, it may do so through evidence 

1 Defendants, yet again, focus too narrowly on the phrase “business enterprises.” The Court has already ruled that “business enterprises” simply means “showing ‘a 

continuous course of criminal conduct.’” (Doc. 946 at 10) (citations omitted.) And proving 

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related to Defendants’ participation in planning and/or carrying out these internal 

strategies. (Doc. 793 at 19-20; Doc. 946 at 15-16.) 

Moreover, specific intent can be inferred from numerous additional facts the 

prosecution highlighted for the jury in the opening statement.2

 These include, inter alia:

a “continuous course of conduct” isn’t a high bar. (Doc. 946 at 11, n.1) (citing United 

States v. Monu, 782 F.2d 1209, 1211 (4th Cir. 1986) (reasoning that a “triple beam balance scale” was sufficient to “indicate[] that [the defendant’s] receipt of the heroin as part of an 

ongoing enterprise, rather than an isolated instance of criminal conduct”); United States v. 

Tavelman, 650 F.2d 1133, 1140 (9th Cir. 1981) (“Considering the quantity of cocaine involved in the prior transaction proved at trial, the jury could reasonably find a continuous 

course of criminal activity.”).) “Neither evidence of large-scale operations nor long-term 

duration is required to support a Travel Act conviction. Instead, what must be shown is 

evidence of a continuous enterprise and one act in interstate commerce in furtherance of 

that enterprise.” Tavelman, 650 F.2d at 1140.

2 As the United States has explained elsewhere:

[T]here are many independent ways of proving that a seller of goods or services (including a website operator) intended to facilitate unlawful

activity. See, e.g., People v. Lauria, 59 Cal. Rptr. 628, 632-33 (Cal. Ct. App. 1967) (a seller’s intent to facilitate prostitution may be inferred from, inter 

alia: (1) “proof . . . of inflated charges” for goods or services used for prostitution; (2) “evidence of any unusual volume of business with 

prostitutes,” such as where “sales for illegal use amount to a high proportion of the seller’s total business”; or (3) sales that “serve no other purpose than 

to advertise the professional services of the prostitutes”); Wayne R. LaFave, 2 Substantive Criminal Law (SUBCRL) § 12.2(c)(3), Providing goods or services, (3d ed., Oct. 2020 update) (intent may also be inferred from “the fact that the seller has made inflated charges, that he has supplied goods or services which have no legitimate use, [] that the sales to the illegal operation 

have become the dominant proportion of the seller’s business,” or the seller’s 

use of deceptive or “secretive” tactics). . . . Moreover, no inference of intent 

is needed in cases involving “[d]irect evidence of participation, such as advice from the supplier of legal goods or services to the user of those goods or services on their use for illegal purposes.” Lauria, 59 Cal. Rptr. at 632.

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

when the defendant’s website was designed or tailored to further illegal activity. See, e.g., United States v. Ulbricht, 31 F. Supp. 3d 540, 556 (S.D.N.Y. 2014) (“The Indictment does not allege that Ulbricht is criminally liable simply because he is alleged to have launched a website that was— unknown to and unplanned by him—used for illicit transactions. . . . Rather, 

Ulbricht is alleged to have knowingly and intentionally constructed and 

operated an expansive black market for selling and purchasing narcotics and malicious software and for laundering money. This separates Ulbricht’s alleged conduct from the mass of others whose websites may—without their 

planning or expectation—be used for unlawful purposes.”)[.]

(Doc. 1216-3 at 200-201.)

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• Defendants’ website generated the overwhelming majority of its revenue—

approximately 94%—from the sale of prostitution ads, including fees charged for 

upgrades that increased the ads’ visibility (e.g., Tr. at 9:8-10:1; Tr. at 12:11-23; 

24:5-10; Tr. at 30:9-20).

• Defendants devised a number of deceptive business strategies, including moderation 

(Tr. at 20:18-18 (moderation was designed “to conceal the fact that prostitution ads 

were rampant all over the website” without changing the true nature of what was 

being offered)), hiding facts about their prostitution-facilitation business practices 

from third parties like NCMEC and the media (e.g., Tr. at 33:22-24, 35:22-36:2), 

and money laundering and other strategies that concealed the source of their 

revenues or were calculated to fool financial institutions (e.g., Tr. at 47:16-48:4).

• Defendants allowed a known prostitute, Licks Alot, to continue to advertise on 

Backpage, and gave her free upgrades after she complained that certain images and 

text had been deleted from her ads. (Tr. at 34:15-35:5.) 

• Defendants published numerous “GFE” (Girlfriend Experience) ads, which they

knew advertised sex-for-money. (Tr. at 10:9-18, 27:20-28:11.)3

In addition, there is another available path for this jury to find each individual 

Defendant guilty—Pinkerton liability. This Court has already instructed the jury that it 

may find a given defendant guilty of the Travel Act as charged in Counts 2-51 if the United 

States has proved each of the following elements beyond a reasonable doubt:

First, a member of the conspiracy committed the Travel Act offense 

as alleged in that count;

Second, the person was a member of the conspiracy charged in Count 

1 of the indictment; 

Third, the person committed the Travel Act offense alleged in 

furtherance of the conspiracy; 

3 Counts 27-51 of the SI all involve GFE ads. (Doc. 230 at 53-55.)

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Fourth, the defendant was a member of the same conspiracy at the 

time the offense charged in Counts 2-51 was committed; and 

Fifth, the offense fell within the scope of the unlawful agreement and 

could reasonably have been foreseen to be a necessary or natural 

consequence of the unlawful agreement.

(Preliminary Jury Instructions at 4.) 

As this Court has recognized, the SI “alleges Defendants conspired with third 

parties, such as P.R. and Dollar Bill, to promote prostitution and edited other prostitution 

ads to ‘conceal their true nature.’” (Doc. 793 at 18.) The government anticipates the 

evidence will show, and it will argue during its closing, that each Defendant is guilty of all 

fifty Travel Act counts because they were conspiring with the pimps and prostitutes who 

posted the ads referenced in Counts 2-51. Moreover, the evidence will show that 

Defendants conspired with other Backpage officers and employees, including Carl Ferrer 

and Dan Hyer, and with Backpage (a co-conspirator in its own right), in publishing the 

subject ads. (Cf. Doc. 1212 at 3 (“[T]he Court finds that there is sufficient evidence to 

conclude that the government will be able to prove the existence of a conspiracy between 

Backpage, Carl Ferrer, Dan Hyer and each of the individual Defendants in this case at 

trial.”).) The jury will have an opportunity to determine if the United States carried its 

burden on these charges. Defendants’ attempted re-argument of these issues, which have 

already been extensively litigated in this case, is without merit.

III. Defendants’ Rule 404(b) Assertions Miss the Mark.

Defendants assert that evidence presented during the United States’ opening 

statement involved ads and other images of “uncharged conduct” subject to Fed. R. Evid. 

404(b)(3). (See Mot. at 10-11.) This assertion is unavailing for several reasons. 

First, the United States disclosed all of the exhibits featured in its opening statement 

PowerPoint to the Defendants 24 hours in advance, as the Court directed. The PowerPoint 

included screen shots and images from the video of the Sacramento portion of the 

Backpage website created by California Department of Justice Special Agent Supervisor 

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Brian Fichtner on March 6, 2015 (Exhibit 489-a). Defendants and the Court have seen this 

recording, and the Court has already deemed the video relevant and admissible. (Doc. 

1212 at 18 (“The Court finds that the video may be admitted at trial if Agent Fichtner is

able to lay the proper foundation at trial. The video is highly relevant to the charged

crimes.”).) In addition to screen shots from that video, the opening statement included, 

inter alia, the following previously-disclosed exhibits:

• Ads associated with the following charged counts in the SI, or ads otherwise 

discussed in the SI, including:

o Exhibit 1632 (Count 2 ad)

o Exhibit 214-a (Count 5 ad)

o Exhibit 1735 (Count 31 ad)

o Exhibit 1724 (Count 34 ad) 

o Exhibit 1725 (Count 35 ad)

o Exhibit 93-a (Licks Alot ad referenced in SI ¶ 91).

• Other images (Exhibits 58-a and 103-a) consisting of attachments to emails that

Defendants sent and received during the conspiracy.

These exhibits may be admitted at trial as proof related to the charged Travel Act 

conspiracy and/or to the individual Travel Act counts referenced above, and the United 

States had a good faith basis for using these exhibits during its opening statement. The 

Ninth Circuit has recognized that two categories of evidence can be “inextricably 

intertwined” with charges such that a Rule 404(b) analysis is not necessary: “First, 

evidence of prior acts may be admitted if the evidence ‘constitutes a part of the transaction 

that serves as the basis for the criminal charge.’ Second, prior act evidence may be 

admitted ‘when it was necessary to do so in order to permit the prosecutor to offer a 

coherent and comprehensible story regarding the commission of the crime.’” United States

v. DeGeorge, 380 F.3d 1203, 1220 (9th Cir. 2004) (citations omitted). 

Regarding the first category, “‘[t]he policies underlying rule 404(b) are inapplicable 

when offenses committed as part of a single criminal episode become other acts simply 

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because the defendant ‘is indicted for less than all of his actions.’” United States v.

Vizcarra–Martinez, 66 F.3d 1006, 1012 (9th Cir. 1995) (citation omitted); see also United

States v. Williams, 989 F.2d 1061, 1070 (9th Cir. 1993) (“Evidence should not be 

considered ‘other crimes’ evidence when the evidence concerning the other act and the 

evidence concerning the crime charged are inextricably intertwined.”); United States v. 

Gilmore, 811 F. App’x 997, 999 (9th Cir. 2020) (“the district court did not abuse its 

discretion in refusing to suppress as trial evidence the methamphetamine found in 

appellant’s pocket, finding that it was inextricably intertwined with the methamphetamine 

in the spare tire”). Regarding the second category, the Ninth Circuit has long recognized 

“it is obviously necessary in certain cases for the government to explain either the 

circumstances under which particular evidence was obtained or the events surrounding the 

commission of the crime.” Vizcarra–Martinez, 66 F.3d at 1012.

Here, the ads and other images at issue all constitute intrinsic evidence of the crimes 

charged, and thus Rule 404(b) doesn’t apply. The ads referenced above correlate to specific 

charged counts, are discussed in the SI in connection with Defendants’ efforts to facilitate 

their customers’ prostitution enterprises, or appear in the Fichtner video showing how the 

Sacramento section of the Backpage website appeared in March 2015. These ads were 

published on Defendants’ website during the course of the charged conspiracy from 2004 

to 2018. The images are part of the scheme to facilitate prostitution charged under the 

Travel Act and are decidedly relevant to the charged conspiracy. The ads that correspond 

to specific counts are likewise relevant, probative evidence of the charged conduct. The 

emails and attachments that detail aspects of Defendants’ “moderation” practices likewise 

show that Defendants’ publicly-touted efforts to filter out illegal content was a fiction. (See 

Doc. 516-1.) They do not relate to “other acts.”

And even if these images, emails and attachments do not qualify for admission as 

intrinsic evidence, their admission is necessary to permit the prosecution to offer a coherent 

and comprehensible story regarding Defendants’ commission of the charged offenses. 

These materials are part and parcel of the narrative showing that Defendants deliberately 

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pursued numerous business strategies in an attempt to corner the market for online 

prostitution ads in the United States. That narrative that counters Defendants’ assertion 

(made to courts, public safety organizations, governmental bodies, media entities and 

others over the last decade) that Backpage merely served as a passive host of third-party 

content, and that the use of Backpage for criminal purposes occurred by pure happenstance.

In short, these materials are relevant, referenced in the SI, and included on the 

United States’ exhibit list, and they were disclosed to Defendants in discovery. The United 

States intends to seek their admission at trial. For all these reasons, Defendants’ Rule 

404(b) objections are misplaced.

IV. Defendants’ Arguments re Defendant Lacey’s Statement Are Unavailing.

On Friday afternoon, Defendants complained that the United States failed to 

disclose witness Nacole Svendgard’s statement about Defendant Michael Lacey as 

“something they planned to use.” (Tr. 72:23-25.) The United States produced the 

statement. (Doc. 1267 at Exs. C, D, G.) Nothing more is required. This issue, like many 

of Defendants’ other complaints, has already been litigated. Judge Logan denied 

Defendants’ Motion for Itemization of Brady/Giglio Material. (Motion at Doc. 273; Order 

at Doc. 339.) In that motion, Defendants made the exact argument they repeat here—

specifically, that the United States was obligated to provide an itemized list of Brady

material, because without it “Defendants will not have equal access to discovery.” (Doc. 

339 at 2.) The Court denied the motion, finding that “the Government is under no general 

obligation to identify Brady or Giglio material within voluminous discovery.” (Id. at 5.) 

Here, Ms. Svendgard’s statement is neither Brady nor Giglio, but was disclosed in 

accordance with Rule 16.4

4 After losing their request for the United States to itemize Brady and Giglio materials, Defendants now want to expand this (non-existent) duty for the United States to itemize Rule 16 discovery. Rule 16(a)(1)(B) obligates the United States to “disclose . . . any relevant statement by the defendant.” That’s what the United States did. (Doc. 1267 

at Exs. C, D, G.) Any argument that the prosecution needed to itemize this statement or 

somehow call it to Defendants’ attention beyond disclosure isn’t supported by the Rule or the law of the case. 

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After reviewing the United States’ recent filing, Defendants now change their 

argument to complain that the government distorted the evidence. Defendants rely on the 

302 to suggest that Lacey’s statement was actually directed to reporters, rather than Ms. 

Svendgard. (Mot. at 16.) The United States believes in good faith that Ms. Svendgard will 

testify consistently with how it characterized Lacey’s statement in the opening. Of course, 

Defendants are free to cross examine Ms. Svendgard on this issue.5

V. The Prosecution Did Not Comment on Defendants’ Right to Remain Silent.

Defendants’ assertion that the prosecution’s reference to the June 2011 meeting 

between Backpage representatives and the Washington Attorney General’s Office 

improperly commented on their right to remain silent lacks merit. (See Mot. at 5-6, 16-

17.) “It is well established that the privilege against self-incrimination prohibits a 

prosecutor from commenting on a defendant’s failure to 

testify.” United States v. Castillo, 866 F.2d 1071, 1083 (9th Cir. 1988) (citing Griffin v. 

California, 380 U.S. 609, 615 (1965)). While a prosecutor’s direct comment about the 

defendant’s failure to testify always violates Griffin, a prosecutor’s indirect comment 

violates Griffin only “if it is manifestly intended to call attention to the defendant’s failure 

to testify, or is of such a character that the jury would naturally and necessarily take it to 

be a comment on the failure to testify.” Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987). 

And, even where a Griffin error is established, the error is harmless unless the offending 

comments are “extensive, [ ] an inference of guilt from silence is stressed to the jury as a 

basis for the conviction, and [ ] there is evidence that could have supported 

acquittal.” Hovey v. Ayers, 458 F.3d 892, 912 (9th Cir. 2006).

5 Defendants also complain about a late disclosure. (Mot. at 16.) First, Defendants 

received this disclosure on June 25, 2021—over two months before trial commenced. 

(Doc. 1267-7.) Second, as Defendants noted, the United States discovery in this case involved millions of pages (Tr. 83:20-24), and only a tiny percentage of that discovery was

produced in the months leading up to trial. Third, since July 1, 2021, Defendants have disclosed nearly 18,000 pages of discovery to the government—a number that far exceeds

the United States’ discovery during the same time period. Fourth, on August 28, 2021, Defendants disclosed about 50 new witnesses. As previously noted, Defendants have not 

confirmed compliance with their obligations under Rule 26.2 for any of these newly disclosed witnesses. (Doc. 1258 at 3, nn 1-2.)

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Here, no Griffin error occurred. The prosecution never commented on Defendants’ 

right to remain silent. Rather, the complained-of portion of the opening statement was a 

reference to evidence that the United States plans to introduce regarding a meeting between 

Backpage representatives and the Washington Attorney General’s Office in June 2011. 

(See 9/3/21 RT at 70:22-71:3.) Then-Assistant Washington Attorney General (now 

Professor) Paula Selis is expected to testify consistently with her account of the meeting as 

reflected in Paragraph 105 of the Superseding Indictment, her declaration in 

Backpage.com, LLC. v. McKenna, 2:12-cv-954 (W.D. Wash.), and her FBI 302 interview 

memorandum. (Doc. 230 ¶105; Doc. 1267, Exs. A-B.) As Prof. Selis averred in her 

declaration, the meeting was held at Backpage’s request, and Backpage’s representatives 

at the meeting included Don Bennett Moon, an attorney and member of the board of 

directors for Village Voice Media, Backpage.com’s parent company, and Carl Ferrer, 

Backpage’s then-Vice President of Sales and Marketing. (Doc. 1267, Ex. B, ¶ 2.) The 

purpose of the meeting—which Backpage had requested—was to discuss Backpage’s 

escort advertising. (Doc. 1267, Ex. B, ¶ 2.)6

The prosecutor’s opening statement fairly and accurately related the substance of 

Prof. Selis’s account of the meeting—namely, that when confronted about whether escort 

ads on Backpage offered the sale of sex for money, Moon turned to Ferrer and said “Don’t 

deny the undeniable.” (Doc. 1267, Ex. B, ¶ 3.) Moon thereafter didn’t deny that 

Backpage’s escort ads were for prostitution, but instead attempted to turn the discussion to 

whether the First Amendment and the Communications Decency Act protected Backpage 

from liability. (Doc. 1267, Ex. B, ¶¶ 3-4.)

The jury would not naturally and necessarily perceive the prosecutor’s follow-up 

statement—that “these defendants can’t deny that they knew that the vast majority of the 

6 The United States anticipates, in good faith and consistent with the Court’s Order 

requiring additional foundation (Doc. 1162 at 2-3), that the trial evidence will show that Moon participated in the meeting as an authorized agent for Backpage. That evidence is 

supported by Prof. Selis’ declaration, which states that Backpage requested the meeting, the representatives that Backpage sent to the meeting included Moon and Ferrer, and the 

purpose of the Backpage-requested meeting was to discuss Backpage’s escort advertising. (Doc. 1267, Ex. B, ¶ 2.) 

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ads on Backpage.com were nothing less than prostitution ads”—as a comment on 

Defendants’ right to remain silent. Rather, as shown by the above context, the prosecutor’s 

statement commented on Backpage’s admission, made through Moon’s statements 

described above, regarding the well-known fact that Defendants’ website advertised 

prostitution. The statement reflected the prosecutor’s description of the anticipated trial 

evidence, including that Defendants had notice and knowledge of that fact. 

Even assuming that the prosecution indirectly commented on Defendants’ right to 

remain silent, the comment was not extensive and no reasonable juror would have 

understood the prosecutor’s opening statement to mean that the jury should infer guilt 

based on whether Defendants ultimately choose to testify. The complained of comments 

consist of an isolated portion of the prosecution’s nearly two-hour opening statement, 

compromising half-a-page of 57 transcript pages. (See Tr. at 40:12-24.) Moreover, the 

opening statement nowhere states, let alone “stress[es] to the jury,” that an inference of 

guilt from silence should be drawn. Hovey, 458 F.3d at 912.

This is particularly true where, as here, the Court has clearly instructed that the 

opening statements are not evidence. (Preliminary Jury Instructions at 16); see also United 

States v. Charlnoes, 617 F. App’x 839, 840 (9th Cir. 2015) (even if the prosecutor’s 

comment during opening statement that defendant “decided that he would take the risk” of 

smuggling was improper, it was harmless in light of the strength of the evidence and jury 

instructions not to consider opening statements as evidence); United States v. Tam, 240 

F.3d 797, 802 (9th Cir. 2001) (“The district court cured any potential error by telling the 

jury that the burden of proof was on the government and that the defendant need not call 

any witnesses or produce any evidence. Thus, even if the prosecution’s comments were 

improper, the defendants suffered no prejudice as a result.”). 

If, despite the foregoing, the Court believes the opening statement involved any 

conceivable risk of error on this point, the Court could issue a further instruction reminding 

the jury that what counsel says is not evidence, Defendants have a constitutional right to 

remain silent, Defendants need not call any witnesses or produce any evidence, and the 

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burden of proof always remains with the Government. See, e.g., United States v. 

Cardenas–Mendoza, 579 F.3d 1024, 1030 (9th Cir. 2009) (stating that “[a] curative 

instruction may obviate the impact of the government’s [opening] statements, as juries are 

assumed to follow the court’s instructions”); Rodriguez v. Morris, CV-19-04957-PHXGMS, 2021 WL 1986472, at *14-16 (D. Ariz. May 18, 2021) (approving curative 

instruction regarding government’s burden). 

VI. Defendants’ Remaining Assertions Are Unavailing.

References to underage victims or “sex trafficking” (Mot. at 3-5): The Court issued 

a pretrial ruling addressing this issue, finding that “[s]ex trafficking and child sex 

trafficking are, by definition, both forms of prostitution,” and “[e]vidence that tends to 

prove that Defendants were aware that Backpage.com was being used to facilitate sex 

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

that the website was being used for illegal purposes”—including facilitation of prostitution. 

(Doc. 1156 at 3.) The Court policed this issue during the opening statement, and sustained

and overruled Defendants’ objections as they were made. (See, e.g., Tr. at 5:13, 29:16, 

33:11, 45:1, 57:5.) When Defendants raised this issue at the end of Friday’s proceedings, 

the Court responded: “I’ve already ruled on that. And the government didn’t cross the line 

on that issue, in my mind, because they didn’t go into any of the details. It was merely the 

fact that this happened.” (Tr. at 70:2-6.) 

The Court’s analysis was correct, and Defendants should not be allowed to 

continually relitigate this issue. The SI references numerous victims who were advertised 

on Backpage while underaged. (SI ¶¶ 120, 123-25, 163, 164, 167, 169, 172.) Moreover, 

the SI describes numerous instances of criticism Backpage received regarding publication 

of ads featuring underage victims, safety measures it was advised to adopt but refused to 

implement, and numerous child prostitution terms that moderators were directed to strip 

from ads before publication. (See, e.g., SI ¶¶ 13-14, 85, 89, 95, 100-01, 104, 116, 127, 

131, 134, 136, 140, 144, 151.) Numerous previously-disclosed trial exhibits discuss the 

victim mentioned at the beginning of the opening statement—a victim who previously sued 

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Backpage. (Exs. 617, 619, 620, 906, 906-a, 906-b, 929, 930, 931, 1019, 1051, 1058, 

1058a.) And the end of the opening statement referenced Nacole Svendgard (Tr. at 56:18-

22), whose daughter, J.S., was one of three minor victims who sued Backpage and its parent 

company before Defendants were indicted in this case. After the Washington Supreme 

Court held that the plaintiffs had “alleged sufficient facts that, if proved, would show that 

the defendants helped to produce the illegal content and therefore are subject to liability 

under state law,” J.S. v. Village Voice Media Holdings, L.L.C., 359 P.3d 714, 715 (Wash. 

2015), the lawsuit was resolved by settlement.

The publication of these victims’ ads occurred as part of the conspiracy charged in 

Count 1 (and therefore are intrinsic evidence falling outside of Rule 404(b)), and references 

to these ads and victims are necessary to provide a complete and comprehensible narrative 

regarding the charged conduct.

“Conflating of escorts and prostitutes” (Mot. at 6): This complaint is a nonstarter. 

The evidence at trial will demonstrate that the 50 ads associated with the substantive Travel 

Act counts, along with the other Backpage ads discussed in the superseding indictment, 

were not advertisements for sale of an “escort,” rather they were prostitution solicitations. 

If, at the close of the evidence, Defendants believe the evidence demonstrates that the 

identified ads were actually legal “escort” ads, they will be free to argue that point to the 

jury. This is yet another issue that has already been litigated. (Docs. 1171, 1176, 1211.) 

At trial, the government anticipates introducing testimony from numerous witnesses 

regarding Backpage’s “adult” and “escort” sections, including that Backpage’s “escort” 

webpages included page after page of prostitution solicitations. Moreover, Backpage.com, 

LLC pleaded guilty in 2018 and admitted it “derived the great majority of its revenue from 

fees charged in return for publishing advertisements for ‘adult’ and ‘escort’ services,” and 

“[t]he great majority of these advertisements are, in fact, advertisements for prostitution 

services.” (United States v. Backpage.com, LLC, CR-18-465-PHX-SMB, Doc. 8-2 at 11.) 

Backpage’s then-CEO, Carl Ferrer, also pleaded guilty and admitted the great majority of 

Backpage’s “adult” and “escort” ads were for prostitution. (United States v. Ferrer, CRCase 2:18-cr-00422-DJH Document 1275 Filed 09/07/21 Page 17 of 19
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18-464-PHX-SMB, Doc. 7-2 at 13.) The government anticipates the trial evidence will 

conform to these statements and demonstrate legitimate escort services are rare.

Claim that “Adult” revenue was from prostitution advertising (Mot. at 10): 

Defendants admit that “[t]he overwhelming majority of the millions upon millions of ads 

posted on Backpage.com during its 14-year existence are legal escort ads . . . .” (Mot. at 

7.) The United States agrees with this statement, except that it contends—and believes in 

good faith that the trial evidence will prove—that Backpage’s “escort” ads were 

prostitution ads. Moreover, the evidence will show that Backpage derived the lion’s share 

of its revenues from the sale of these ads and associated upgrades. 

Definition of “Prostitution” (Mot. at 6-7): Defendants’ argument that the United 

States provided an erroneous prostitution definition is also unavailing. The United States 

referred to prostitution as “sexual services for money, a crime in all 50 states.” (Doc. 1272-

1 at 5.) First, the Court will instruct the jury on the appropriate state prostitution crimes 

associated with the 50 Travel Act counts. If the United States had attempted to instruct the 

jury on these crimes during the opening it would have added 30-45 additional minutes. 

(See Doc. 1216-3 at 91-99.) Second, 37 of the 50 state prostitution crimes implicated by 

the Travel Act counts use the term “sexual conduct” to define prostitution. (Id.) 

(Massachusetts, Washington, Arizona, New York, Texas, Ohio, and Nevada.) That term

is defined slightly differently by each of the various states, but describes the proscribed 

prostitution acts. The other state statutes all provide similar definitions. The United States 

suspects Defendants would have made the same objection if the opening statement replaced 

“services” with “conduct,” but in any event, it wasn’t misleading. And, if the jurors have 

lingering questions, those will be answered by the detailed jury instructions the Court will 

provide to the jury before they are permitted to deliberate about Defendants’ guilt.

Conclusion

For the foregoing reasons, Defendants’ Motion for Acquittal or Mistrial (Doc. 1272) 

should be denied.

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Respectfully submitted this 7th day of September, 2021.

GLENN B. McCORMICK

Acting United States Attorney District of Arizona

s/ Andrew C. Stone

KEVIN M. RAPP

MARGARET PERLMETER

PETER S. KOZINETS

ANDREW C. STONE

Assistant U.S. Attorneys

DAN G. BOYLE

Special Assistant U.S. Attorney

KENNETH POLITE

Assistant Attorney General 

U.S. Department of Justice 

Criminal Division, U.S. Department of Justice

REGINALD E. JONES

Senior Trial Attorney

U.S. Department of Justice, Criminal Division

Child Exploitation and Obscenity Section

CERTIFICATE OF SERVICE

I hereby certify that on September 7, 2021, I electronically transmitted the attached 

document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a 

Notice of Electronic Filing to the CM/ECF registrants who have entered their appearance 

as counsel of record.

s/Andrew C. Stone

U.S. Attorney’s Office

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