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MOTION TO COMPEL THE GOVERNMENT 

TO COMPLY WITH ITS BRADY AND GIGLIO OBLIGATIONS

Thomas H. Bienert, Jr. (CA Bar No.135311, admitted pro hac vice)

Whitney Z. Bernstein (CA Bar No. 304917, admitted pro hac vice)

BIENERT KATZMAN LITTRELL WILLIAMS LLP

903 Calle Amanecer, Suite 350

San Clemente, California 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

tbienert@bklwlaw.com

wbernstein@bklwlaw.com

Attorneys for James Larkin

Paul J. Cambria, Jr. (NY Bar No. 1430909, admitted pro hac vice)

Erin McCampbell (NY Bar. No 4480166, admitted pro hac vice)

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

pcambria@lglaw.com

emccampbell@lglaw.com

Attorneys for Michael Lacey

Additional counsel listed on next page

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA 

United States of America,

Plaintiff,

vs.

Michael Lacey, et al., 

 

Defendants.

Case No. 2:18-cr-00422-PHX-SMB

MOTION TO COMPEL 

GOVERNMENT TO COMPLY 

WITH ITS BRADY AND GIGLIO 

OBLIGATIONS

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MOTION TO COMPEL THE GOVERNMENT 

TO COMPLY WITH ITS BRADY AND GIGLIO OBLIGATIONS

Gary S. Lincenberg (CA Bar No. 123058, admitted pro hac vice)

Ariel A. Neuman (CA Bar No. 241594, admitted pro hac vice)

Gopi K. Panchapakesan (CA Bar No. 279856, admitted pro hac vice)

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW PC

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: (310) 201-2100

Facsimile: (310) 201-2110

glincenberg@birdmarella.com

aneuman@birdmarella.com

gpanchapakesan@birdmarella.com

Attorneys for John Brunst

Bruce Feder (AZ Bar No. 004832)

FEDER LAW OFFICE PA

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

Telephone: (602) 257-0135

bf@federlawpa.com

Attorney for Scott Spear

David Eisenberg (AZ Bar No. 017218)

DAVID EISENBERG PLC

3550 N. Central Ave., Suite 1155

Phoenix, Arizona 85012

Telephone: (602) 237-5076

Facsimile: (602) 314-6273

david@deisenbergplc.com

Attorney for Andrew Padilla

Joy Malby Bertrand (AZ Bar No. 024181)

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

Telephone: (602)374-5321

Facsimile: (480)361-4694

joy.bertrand@gmail.com

Attorney for Joye Vaught

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1

MOTION TO COMPEL THE GOVERNMENT 

TO COMPLY WITH ITS BRADY AND GIGLIO OBLIGATIONS

The Department of Justice (“DOJ”) previously conducted a grand jury investigation in or 

around 2012 into Backpage in the Western District of Washington (“WDWA”). It is undersigned 

counsel’s understanding that DOJ concluded that there was no evidence of criminality. 

These facts supporting these findings are contained in two memos drafted by DOJ attorneys1

after subpoenaing documents, interviewing and deposing witnesses, and convening a grand jury.

Defendants have long sought the information from this investigation. In the summer of 

2018, the government initially disclosed its memos finding no evidence of criminality, but clawed 

these documents back about three weeks later. Litigation followed, and Judge Logan concluded 

that various documents including two memos were protected work product. Dkt. 449-1 at 4 

(“Accordingly, the Court finds that the information contained in the Disclosed Memos does not 

rise to the level of Brady or Giglio material that would supersede any claim of attorney work 

product privilege in this case.”). 

The case has evolved significantly in the past 32 months since Judge Logan issued his 

ruling. Critically, as the government’s opening (Dkt. 1272-1) and opposition to the motion for 

acquittal, or, in the alternative, mistrial (Dkt. 1275) make clear, the government’s case centers 

around its beliefs that (1) one can conclude that an adult ad is for prostitution just by looking at 

it, (2) the majority of the ads on Backpage.com were for prostitution, on their face, and (3) 

Backpage (and apparently its former executives and employees through a vicarious liability 

theory, despite these crimes requiring specific intent) engaged in criminality and had the specific 

intent to promote the prostitution activities of a business enterprise through the website’s (i) 

“content aggregation,” (ii) “reciprocal link agreement with The Erotic Review,” (iii) “relationship 

with super affiliates,” and (iv) “moderation practices.” Dkt. 1275 at 5. As is also clear at this 

point, significant defenses in this case center around the fact that (1) the ads are facially legal and 

presumptively protected by Section 230 and the First Amendment and (2) the government cannot 

prove any Defendants’ specific intent to aid a business enterprise’s prostitution activities. 

Defendants bring this motion to compel the government to produce all materials from 

1 Earlier today, undersigned counsel suggested that she understood that the author of the memos 

was a special agent. This is not correct. Undersigned counsel apologizes for this misstatement. 

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MOTION TO COMPEL THE GOVERNMENT 

TO COMPLY WITH ITS BRADY AND GIGLIO OBLIGATIONS

its WDWA investigation that were relied upon when its attorneys concluded that there 

was no evidence of criminality. Defendants also ask this Court to review the memos in camera

to determine whether any of the information in the memos themselves could undermine in any 

way the positions that the government has currently taken. 

I. THE GOVERNMENT IS CONSTITUTIONALLY REQUIRED TO 

PRODUCE BRADY/GIGLIO INFORMATION.

Under Brady, Giglio, and their progeny, as a matter of constitutional due process defense 

counsel are entitled to all evidence that “is favorable to the accused” or may be “material either 

to guilt or punishment,” including “impeachment evidence.” United States v. Bagley ̧473 U.S. 667, 

676 (1985). The government’s suppression of evidence by failing to comply with its Brady 

obligations violates the constitution “whether willful or inadvertent” and “irrespective of the 

good faith or bad faith of the prosecution.” United States v. Price, 566 F.3d 900, 907 (9th Cir. 2009) 

(quoting, respectively, Edwards v. Ayers, 542 F.3d 759, 768 (9th Cir. 2008), and Brady, 373 U.S. at 

87). Brady and Giglio prevent the government from leaving the defense “empty handed at trial 

precisely because the government did not disclose ... relevant information.” United States v. 

Sedaghaty, 728 F.3d 885, 900 (9th Cir. 2013). 

Information concerning factual or legal matters that contradict the prosecution’s theory 

of the case are, by definition, Brady materials that must be disclosed. See, e.g., Bies v. Sheldon, 775 

F.3d 386, 398-403 (6th Cir. 2014) (upholding finding of a Brady violation because of suppression 

of “Evidence Undermining the State’s Theory of the Case”); Wolfe v. Clarke, 819 F. Supp. 2d 538, 

558 (E.D. Va. 2011) (vacating conviction after finding the prosecution violated Brady by 

withholding investigative reports and interviews “undermining its theory of the case”). 

Disclosure is required for all information likely to lead to evidence favorable to the defense. 

Ellsworth v. Warden, 333 F.3d 1 (1st Cir. 2003) (en banc). Witness statements that contradict the 

government’s d allegations are plainly Brady materials, and so too are prosecutors’ writings 

recounting exculpatory evidence (or the lack of incriminating evidence) uncovered in an 

investigation. See United States v. Kohring, 637 F.3d 895, 906-912 (9th Cir. 2011) (finding Brady 

violation for government’s failure to disclose witness interviews and attorney memoranda and 

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MOTION TO COMPEL THE GOVERNMENT 

TO COMPLY WITH ITS BRADY AND GIGLIO OBLIGATIONS

notes about a bribery investigation, noting that although the prosecutor’s opinions may have 

been protected work product, Brady compelled disclosure of exculpatory facts reflected in 

attorney writings); see also United States v. Bundy, 986 F.3d 1019, 1033 (“[T]he government must 

always produce any potentially exculpatory or otherwise favorable evidence without regard to 

how the withholding of such evidence might be viewed ... as affecting the outcome of the trial. 

The question before trial is not whether the government thinks that disclosure of the information 

or evidence ... might change the outcome of the trial going forward, but whether the evidence is 

favorable and therefore must be disclosed.” (citation omitted)); id. at 1040 (“Even assuming that 

the government could have understood the district court’s motion-in-limine order to preclude 

the usefulness of evidence supporting an affirmative claim of self defense, the evidence was still 

quite obviously Brady material . . . Espousing the belief that evidence undercutting the 

government’s central theory of mens rea was somehow irrelevant and not Brady material was 

preposterous and reckless.”).

The government’s disclosure obligation encompasses not only the information in the 

prosecutor’s files, but all information held by investigators, other agents of the government, or 

other authorities with which the government has coordinated. See Price, 566 F.3d at 909. Indeed, 

“the prosecution has a duty to learn of any exculpatory evidence known to others acting on the 

government’s behalf,” as Brady would be undermined if the government could avoid its 

obligations by claiming that relevant information was in other agents’ files. See Carriger v. Stewart, 

132 F.3d 463, 479-80 (9th Cir. 1997) (en banc); accord Price, 566 F.3d at 909. 

II. DEFENSE COUNSEL HAS REPEATEDLY DEMANDED THE WDWA 

BRADY/GIGLIO MATERIALS.

A. The government has produced only part of what Defendants believe exists.

In the past nearly four years of this prosecution, the government has disclosed precious 

little of the information obtained in the WDWA investigation. It has provided the testimony of 

six witnesses who appeared before the WDWA grand jury, five of whom were Backpage employees 

(Hammer, Kaiping, Wingfield, Ronan, Vaught). But the government conducted numerous 

interviews of Backpage personnel (including of at least moderators La Tamara Barlow, Justin Dew, 

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MOTION TO COMPEL THE GOVERNMENT 

TO COMPLY WITH ITS BRADY AND GIGLIO OBLIGATIONS

Brian Patenge, and Brian Alstadt) and others (including Charles Craig), yet has produced no 

summaries or notes or any other records of the evidence underlying the government’s decision not 

to prosecute Backpage.com. After repeated demands, the government did disclose a page of an 

IRS agent’s typed notes from 2013 related to Alstadt (USAO-BP-0015557), though it is unclear if 

this is the entirety of the DOJ’s WDWA materials of his interview. 

The few WDWA materials the government has disclosed are largely if not entirely 

exculpatory. For example, a central theme of the government’s case here is that Backpage edited 

ads to remove terms “indicative of prostitution” and then ran the ads with an intent to promote 

or facilitate prostitution. The employees who testified in the WDWA explained that Backpage 

used a multi-tiered moderation system to prevent user ads that violated the website’s terms of 

use, including any that offered sex for money. And contrary to the government’s repeated 

accusations that Backpage routinely edited terms in ads, the employees testified that by mid-2012 

Backpage forbade editing from then on and ads that contained disallowed terms were blocked or 

deleted entirely. Evidence that the government knew in 2012 that the allegations it now advances 

are wrong is plainly material and exculpatory. Evidence that the government pursued a 

prosecution after acknowledging that Backpage’s actual conduct would not establish criminal 

knowledge or intent likewise is material and exculpatory. Defendants believe that other evidence 

the government obtained in the WDWA proceeding will further support the defense and 

contradict the government’s charges.

B. Defendants have previously requested the rest of these materials.

Defendants have repeatedly raised with the government its obligations to disclose 

materials under Brady v. Maryland, 373 U.S. 83, 87 (1963), and Giglio v. United States, 405 U.S. 150, 

154 (1972). See Doc. 273-2, at 4 (July 13, 2018 email from M. Piccarreta to DOJ). Defendants 

repeated this request in further entreaties to DOJ and in a motion asking the Court to compel 

the government to produce and identify Brady/Giglio materials. Doc. 273 (Motion for Itemization 

of Brady/Giglio Material). More to the point, Defendants have specifically requested all evidence 

from the WDWA investigation, noting that it is likely exculpatory. See, e.g., Exhibit A (Oct. 26, 

2018 letter from M. Piccarreta to K. Rapp); Exhibit B (May 9, 2019 letter from A. Neuman to K. 

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MOTION TO COMPEL THE GOVERNMENT 

TO COMPLY WITH ITS BRADY AND GIGLIO OBLIGATIONS

Rapp); Exhibit C (March 18, 2020 letter from B. Feder to government); Exhibit D (April 3, 2020 

letter from B. Feder to government; Exhibit E (April 27, 2020 letter from B. Feder to 

government) (all filed under seal in an abundance of caution).

The trouble is that Defendants do not know and cannot know what the government has 

but is not disclosing. Defendants are aware of at least four Backpage moderators (La Tamara 

Barlow, Justin Dew, Brian Patenge, and Brian Alstadt) who were interviewed by the IRS (the 

same agency where Richard Robinson, the government’s case agent who has been sitting at 

counsel table the entire week, works) as part of the DOJ’s WDWA investigation. See Exhibit F, 

FBI SA Amy L. Fryberger’s Affidavit in Support of Probable Cause at DOJ-BP0004895325-

0004895369, produced to the defense on September 23, 2019, filed under seal in an abundance 

of caution. These four moderators have appeared on the government’s witness lists at various 

points in time, and defense counsel accordingly demanded their Jencks materials. In response, 

the government has taken these moderators off its witness list. This may obviate the 

government’s Jencks obligations as to these witnesses, but it does not change their Brady or Giglio

obligations. 

As the government’s trial position seemed to be in direct contrast to its position in 

WDWA, defense counsel again demanded the exculpatory information from DOJ’s WDWA 

investigation (see Exhibit G, July 22, 2021 letter from W. Bernstein to government), including an 

attorney opinion advising a potential buyer that there was no criminal or civil exposure should 

he decide to purchase Backpage.com (see Exhibit H, Aug. 18, 2021 email from W. Bernstein to 

government, filed under seal in an abundance of caution). 

The government has refused to produce these materials under Brady or Giglio on 

the basis that the WDWA’s “investigation lacked significant evidence that [the government] has 

since obtained clearly demonstrating Defendants’ knowledge and intent to facilitate prostitution.” 

See Exhibit I (Aug. 2, 2021 letter from R. Jones to W. Bernstein, filed under seal in an abundance 

of caution); Exhibit J (Aug. 23, 2021 email from K. Rapp to W. Bernstein, filed under seal in an 

abundance of caution). But Defendants believe that the requested information will in fact prove 

that the government did know much of what it now claims not to have known in 2012. The 

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MOTION TO COMPEL THE GOVERNMENT 

TO COMPLY WITH ITS BRADY AND GIGLIO OBLIGATIONS

government is wrong to withhold Brady and Giglio materials because it hopes to prove its current 

case at trial. This Court cannot countenance such violations.

III. CONCLUSION

Defendants have provided ample grounds to demonstrate that DOJ’s WDWA materials 

are subject to required disclosure under Brady/Giglio. Cf. Price, 566 F.3d at 910 (in asserting a 

Brady claim, the defendant “bears the initial burden of producing some evidence to support an 

inference that the government possessed or knew about material favorable to the defense and 

failed to disclose it,” and thereafter “the burden shifts to the government to demonstrate that the 

prosecutor satisfied his duty to disclose all favorable evidence known to him or that he could 

have learned from others acting on the government’s behalf” (internal quotations and citations 

omitted). 

Defendants respectfully request that the Court compel the government to produce all 

materials from its WDWA investigation that were relied upon when its attorneys concluded that 

there was no evidence of criminality. 

Additionally, since the Court now knows far more about the government’s case and 

Defendant’s defenses than Judge Logan did three years ago, Defendants also request that the 

Court review the DOJ’s WDWA memos in camera to determine whether the factual assertions in 

the memos could undermine positions taken by the government in this trial and, if so, order all 

or appropriate portions of the memo disclosed. 

RESPECTFULLY SUBMITTED this 8th day of September 2021,

BIENERT KATZMAN LITTRELL 

WILLIAMS LLP

s/ Whitney Z. Bernstein

Thomas H. Bienert, Jr.

Whitney Z. Bernstein

Attorneys for James Larkin

Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual (Oct. 2020) § 

II(C)(3), Whitney Z. Bernstein hereby attests that all other signatories listed, and on whose behalf this filing is 

submitted, concur in the filing’s content and have authorized its filing.

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MOTION TO COMPEL THE GOVERNMENT 

TO COMPLY WITH ITS BRADY AND GIGLIO OBLIGATIONS

LIPSITZ GREEN SCIME CAMBRIA LLP

s/ Paul J. Cambria, Jr.

Paul J. Cambria, Jr.

Erin McCampbell Paris

Attorneys for Michael Lacey

BIRD MARELLA BOXER WOLPERT 

NESSIM DROOKS LINCENBERG AND 

RHOW PC

s/ Gary S. Lincenberg

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

Attorneys for John Brunst

FEDER LAW OFFICE PA

s/ Bruce Feder

Bruce Feder

Attorneys for Scott Spear

DAVID EISENBERG PLC

s/ David Eisenberg

David Eisenberg

Attorneys for Andrew Padilla

JOY BERTRAND ESQ LLC

s/ Joy Bertrand

Joy Bertrand

Attorneys for Joye Vaught

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3739131.1 CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE 

I hereby certify that on September 8, 2021, I electronically transmitted the attached 

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

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

record. 

/s/ Toni Thomas 

Toni Thomas

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