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Timothy J. Eckstein, 018321

Joseph N. Roth, 025725

Sarah P. Lawson, 036436

OSBORN MALEDON, P.A.

2929 North Central Avenue, 20th Floor

Phoenix, Arizona 85012-2793

(602) 640-9000

teckstein@omlaw.com

jroth@omlaw.com

slawson@omlaw.com

Attorneys for James Larkin

Additional counsel on following 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-DJH

DEFENDANTS’ MOTION TO 

DISMISS SUPERSEDING 

INDICTMENT

(Oral Argument Requested)

Case 2:18-cr-00422-DJH Document 1557 Filed 03/30/23 Page 1 of 21
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Paul J. Cambria, Jr. (NY 15873, admitted pro hac vice)

Erin E. McCampbell (NY 4480166, admitted pro hac vice)

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

(716) 849-1333

pcambria@lglaw.com

emccampbell@lglaw.com

Attorneys for Michael Lacey

Bruce S. Feder (AZ 004832)

FEDER LAW OFFICE PA

2930 E. Camelback Rd., Suite 160

Phoenix, Arizona 85016

(602) 257-0135

bf@federlawpa.com

Eric Walter Kessler

KESSLER LAW OFFICE

6720 N. Scottsdale Rd., Suite 210

Scottsdale, Arizona 85253

(480) 644-0093

Eric.kesslerlaw@gmail.com

Attorneys for Defendant Scott Spear

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

BIRD, MARELLA, BOXER, WOLPERT, NESSIM, DROOKS, LINCENBERG & RHOW P.C. 1875 Century Park E., Suite 2300

Los Angeles, California 90067

(310) 201-2100

glincenberg@birdmarella.com

gpanchapakesan.@birdmarella.com

aneuman@birdmarella.com

Attorneys for John Brunst

David S. Eisenberg

DAVID EISENBERG PLC

3550 N. Central Ave., Ste. 1155

Phoenix, Arizona 85012

(602) 237-5076

david@eisenbergplc.com

Attorneys for Andrew Padilla

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Joy Malby Bertrand

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

(480) 656-3919

joyous@mailbag.com

Attorneys for Defendant Joye Vaught

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The government accuses Backpage of having been the “internet’s leading source 

of prostitution advertisements,” and claims that Defendants “employed . . . business 

strategies that were specifically intended to promote and facilitate prostitution.” Doc. 

230 (“SI”) ¶¶ 1, 10. After years of failed civil suits and criminal enforcement efforts, 

the government shut down the website and seeks to punish and impoverish its one-time 

owners and employees. The Superseding Indictment does not charge Defendants with 

any prostitution offenses, however. Instead, relying on the Travel Act, 18 U.S.C. § 

1952, the government says it is enough to prove that Defendants, through Backpage, 

promoted or facilitated prostitution by hosting ads the Defendants knew, or should have 

known, might be associated with prostitution.

The government has always taken the position that, under the Travel Act, it 

“does not have to prove” that a state law was “actually violated.” Doc. 1216-3 at 147 

(proposed jury instruction). When Defendants suggested that the government must 

prove that each of them “knowingly did an act which the law forbids, purposely and 

intending to violate the law,” the government responded that “[t]his is a misstatement 

of the applicable law. To be convicted under the Travel Act, one does not need to violate 

the underlying state law.” Id. at 154. “Rather, a defendant must have acted with 

specific intent to ‘facilitate the promotion’ of the underlying unlawful activity. And 

‘facilitate’ is given its ordinary meaning: to make easy or less difficult.” Id. 

But on November 2, 2022, in a matter pending before the D.C. Circuit, the 

government argued the opposite–that a charge of “promoting” or “facilitating” under 

the Travel Act is an aiding and abetting offense, requiring, among other things, proof 

that the defendant intended to facilitate the commission of a specific underlying 

criminal act. See Br. of United States in Woodhull Freedom Found’n v. United States, 

Case No. 22-5105, at 28-30 (D.C. Cir., Nov. 2, 2022) (asserting that “[t]he phrase 

‘promote or facilitate,’ as used in the Travel Act, is equivalent to ‘aid or abet’” 

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(emphasis added)).

1

 The government stated that “whatever meaning ‘promote’ or 

‘facilitate’ might have in everyday speech, their meaning as terms of art in criminal 

statutes, invoking traditional principles of accomplice liability, is established.” Id. at 

29.

As the government’s position in Woodhull makes clear, the Travel Act cannot 

be used to punish the promotion of “prostitution” in the abstract or theoretical assumed 

prostitution offenses, but only conduct undertaken with the “specific intent to aid or 

abet a specific crime under traditional principles of accomplice liability.” Id. at 51. 

Without proof that a defendant participated in a particular criminal venture with the aim 

of making it succeed, there can be no aiding and abetting. See, e.g., Altamirano v. 

Gonzales, 427 F.3d 586, 594 (9th Cir. 2005) (“It is well-established that in order to aid 

and abet another to commit a crime it is necessary that a defendant in some sort 

associate himself with the venture, that he participate in it as in something he wishes to 

bring about, that he seek by his action to make it succeed.”) (cleaned up). Moreover, 

there can be no aiding and abetting without proof that an underlying offense was 

committed. Indeed, notwithstanding the government’s position on jury instructions in 

this case, the Ninth Circuit has held that “[t]he existence of a state law violation is an 

element of the violation of the Travel Act.” United States v. Hiatt, 527 F.2d 1048, 1051 

(9th Cir. 1975).

In Woodhull, the government has pressed its view that the terms “promote or 

facilitate” as used in the Travel Act are “equivalent to” aiding and abetting because, 

without that narrowing, a law making it a crime to “promote or facilitate” prostitution 

would be overbroad and vague in violation of the First and Fifth Amendments. See 

Woodhull Brief at 48-51, 57-58. While Defendants welcome the government’s recent 

confirmation in the D.C. Circuit that the scope and applicability of the Travel Act is not 

boundless, this confirmation casts grave doubt on the indictment in this case. The 

1 The government’s brief in Woodhull is attached as Exhibit A (referred to for 

convenience as the “Woodhull Brief”).

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government can no longer dispute that its charges of promotion or facilitation under the 

Travel Act are aiding and abetting offenses that require proof of the intent to facilitate 

the commission of a specific underlying prostitution offense. Id. at 28-30.

Here, however, the Superseding Indictment fails to allege the elements of aiding 

and abetting as required. Rather, it charges 50 separate substantive Travel Act offenses

based on Backpage’s publication of 50 ads, contending that each ad was likely for 

prostitution, regardless of whether the text proposes an unlawful transaction. SI ¶¶ 200-

01. The indictment fails to allege that any ad was linked to a specific prostitution 

offense, that any Defendant was aware of that specific offense, or that any Defendant 

“intend[ed] to facilitate that offense’s commission.” Rosemond v. United States, 572 

U.S. 65, 76 (2014) (emphasis added). A person (even a known prostitute) could not be 

prosecuted solely on the allegation that she posted an ad stating, for example: 

“HOTTEST in town!!!!!- 26,” SI ¶ 201, Count 17. Nor should the ad allow prosecution 

of Defendants, who were several steps removed as alleged operators and owners of the 

web platform where the ad was one among millions posted by third parties. Clumping

50 such ads together in a single indictment does not cure the deficiency. When an 

indictment does not allege each required element, the government is relieved 

unconstitutionally of the burden to prove every element of the offense. In re Winship, 

397 U.S. 358, 364 (1970).

The failure to allege the express and implied elements of the charged offenses

requires dismissal of the Travel Act charges. Because the money laundering charges 

hinge entirely on the purported Travel Act violations, they must also be dismissed. 

Finally, the indictment should be dismissed if the grand jury was not instructed on the 

essential elements of an aiding and abetting offense.

I. Pertinent background and allegations in the Superseding Indictment.

The background facts regarding the parties and many details in the Superseding 

Indictment have been discussed in past motions and orders and will not be repeated at 

length here. See, e.g., Doc. 561 at 3-11; Doc. 793 at 2-7; Doc. 946 at 2-4. The 

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background pertinent to the arguments raised in this motion is set forth below, accepting 

the truth of the allegations of the indictment.

A. The Superseding Indictment’s factual allegations.

Backpage.com was an online classified ad site similar to craigslist.com. SI ¶¶ 

20-21. It replicated the “back pages” classified sections of weekly newspapers such as 

the Phoenix New Times, which Defendants Lacey and Larkin founded. SI ¶¶ 18-21. 

Among other categories of ads (car sales, job postings and the like), Backpage users 

could post in an “adult” section. The Superseding Indictment contends that Defendants 

were aware that “the overwhelming majority of the website’s ‘adult’ and ‘escort’ ads 

were actually ads for prostitution.” SI ¶¶ 9, 34. The indictment includes “victim 

summaries” of individuals featured in Backpage ads, SI ¶¶ 160-76, although there are 

no allegations that any Defendant knew of the existence of any of those individuals or 

the facts described.

The indictment further alleges that Backpage used various methods to increase 

the number of adult ads (all of which the government characterizes as “prostitution” 

ads). See SI ¶¶ 35-44 (summarizing so-called “aggregation” business practice that

encouraged those placing ads on other websites, like Craigslist, to also place their ads

on Backpage); SI ¶¶ 45-67 (summarizing so-called “reciprocal link and affiliate 

programs” business practices to increase adult ads through referrals from other websites

and affiliations with those who placed many ads on various websites); SI ¶¶ 11, 68-70, 

77-96, 99-104 (describing Backpage’s “moderation” policies—rules web platforms use 

to filter and screen third-party content—and implementation efforts allegedly intended 

to “conceal the true nature of the ads being posted”); see generally Doc. 793 at 4-5.

B. The Superseding Indictment’s charges are tied to 50 ads.

Count 1 charges Defendants with conspiracy to commit a violation of the Travel 

Act, 18 U.S.C. § 1952(a)(3)(A) (Travel Act-Facilitate Prostitution). SI ¶¶ 196-198. 

The charge (like the Superseding Indictment as a whole) does not allege Defendants 

conspired to promote or facilitate any specific prostitution offense, nor does it suggest 

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that promoting or facilitating a specific offense is an element of the Travel Act charges. 

Rather, counts 2-51 allege 50 separate Travel Act violations based on 50 ads published 

on Backpage. SI ¶ 201 (listing Counts 2-51 and descriptions of the fifty ads). As to 

each ad, the Superseding Indictment charges that Defendants:

used the mail and any facility in interstate and foreign commerce with 

intent to otherwise promote, manage, establish, carry on, and facilitate the 

promotion, management, establishment, and carrying on of an unlawful 

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

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

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

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

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

establishment and carrying on of the unlawful activity, as follows . . .

SI ¶ 201. For each count, the indictment alleges that Defendants “publish[ed] ad” on a 

particular date. Id. The 50 ads can be divided into three categories: (1) 15 ads the 

indictment says depicted individuals identified in the “victim summaries” (Counts 2,4-

5, 12-17, 19-24); (2) 10 ads involving P.R., whom the government alleges was a 

prostitute known to a purported co-conspirator (Counts 3, 6-11, 18, 25-26); and (3) 25 

ads that contain the term “GFE,” which the indictment alleges is a “coded term for 

prostitution,” while providing no further information about those 25 ads or any 

individuals associated with those ads (Counts 27-51).

The Superseding Indictment alleges that some Backpage-hosted ads led to acts 

of prostitution, but, critically, does not allege any prostitution offenses connected to any

of the charged ads. For example, the indictment does not allege that anyone responded 

to any charged ad, that sexual conduct occurred as a result of any charged ad, or that 

money was exchanged for sexual conduct as a result of a charged ad causing a 

prostitution offense under state law. Moreover, the indictment does not allege that any 

Defendant knew of the existence of any of the charged ads, the persons associated with 

any of the charged ads, or the intent of any such persons to engage in prostitution 

offenses. There is no allegation that any Defendant had any role whatsoever in 

Backpage’s publication of any charged ad.

Counts 53-100 allege various money laundering offenses. To support those 

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charges, the Superseding Indictment asserts that essentially all of Backpage’s revenue 

“constituted the proceeds of unlawful activity” because most of the ads on Backpage

were, according to the government, really associated with prostitution and published in 

violation of the Travel Act. SI ¶ 177.

C. Prior orders have not decided this issue.

As the Court knows, this case has involved complex and lengthy litigation and 

the Court has denied more than one motion to dismiss. See, e.g., Docs. 793, 840, 946. 

In Doc. 840 (denying a motion to dismiss based on Section 230 and void for vagueness), 

the Court stated, “the Travel Act does not require the government to allege Defendants 

committed the underlying violation of state law.” Doc. 840 at 10.

Defendants agree that the Travel Act does not require proof that they 

individually committed a prostitution offense in violation of state law. The Travel Act 

does, however, require proof that someone did, as “[t]he existence of a state law 

violation is an element of the violation of the Travel Act” and the government must 

allege and prove that “the underlying state law has been or could have been violated.”

Hiatt, 527 F.2d at 1051. This Court has not yet ruled on the question prompted by the 

government’s position, as articulated in Woodhull, that is implicated here—whether the 

government’s Travel Act charges here are aiding and abetting offenses, requiring the 

government to prove, with respect to each charged ad, both that someone committed a 

prostitution offense and that Defendants intended to facilitate the commission of that

specific prostitution offense.

II. Argument

A. Legal standard

The Fifth Amendment requires an indictment to set forth the elements of the 

charged offenses. United States v. Bernhardt, 840 F.2d 1441, 1445 (9th Cir. 1988). 

The indictment must “contain[] the elements of the offense charged” to “fairly inform[] 

a defendant of the charge against which he must defend.” Hamling v. United States, 

418 U.S. 87, 117 (1974). In addition, “[t]o be legally sufficient, the indictment must 

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assert facts which in law constitute an offense; and which, if proved, would establish 

prima facie the defendant’s commission of that crime.” United States v. Superior 

Growers Supply, Inc., 982 F.2d 173, 177 (6th Cir. 1992) (citing Fleisher v. United 

States, 302 U.S. 218 (1937)). The “failure to recite an essential element of the charged 

offense is not a minor or technical flaw subject to harmless error analysis, but a fatal 

flaw requiring dismissal of the indictment.” United States v. Omer, 395 F.3d 1087, 

1088 (9th Cir. 2005). “[T]he fact that an indictment may have tracked the language of 

the statute will not render it valid if it fails to allege an essential element of the offense 

or the minimum facts required to fulfill the purposes of indictments.” United States v. 

Cecil, 608 F.2d 1294, 1297 (9th Cir. 1979). 

B. The Superseding Indictment does not allege two essential elements of 

the Travel Act charges.

1. The Travel Act charges are aiding and abetting offenses. As 

such, essential elements of the crime are (a) the commission of 

an offense and (b) an intent to aid the commission of that 

offense.

The Travel Act creates a federal offense for aiding and abetting a business 

enterprise’s commission of state-law prostitution offenses. As with any aiding or 

abetting offense, to “aid and abet” (or using the Travel Act analogues “promote” and 

“facilitate”) means that: (1) “someone else committed” an offense, (2) the defendant 

aided at least one element of the offense, and (3) the defendant acted “with the intent to 

facilitate” the criminal offense. Ninth Circuit Model Criminal Jury Instructions § 4.1 

(2022) (aiding and abetting). Although a defendant’s acts must only “facilitat[e] one 

or another element,” the “state of mind” must “extend[] to the entire crime.” Rosemond, 

572 U.S. at 75-76. The intent “to facilitate that offense’s commission . . . must go to 

the specific and entire crime charged.” Id. at 76.

The government contends, however, that the existence of actual violations of 

state law are unnecessary and that Defendants do not “need[] the intent to violate the 

state prostitution offense before being found guilty.” See Doc. 1216-3 at 147 

(proposing jury instruction before first trial that “the United States does not have to 

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prove that the referenced states’ laws were actually violated”); Doc. 1216-3 at 104 

(disputing that “Defendants needed the intent to violate the state prostitution offense”). 

The government’s statement on the law is wrong for several reasons.

First, the government has now affirmatively taken the opposite position, 

asserting that “[t]he phrase ‘promote or facilitate,’ as used in the Travel Act, is 

equivalent to ‘aid or abet.’” Woodhull Brief. at 28-29. In Woodhull, the D.C. Circuit 

is considering whether the Allow States and Victims to Fight Online Sex Trafficking 

Act of 2017, 132 Stat. 1253 (2018) (“FOSTA”) is unconstitutionally overbroad and 

vague.2

 FOSTA makes it a crime to “own[], manage[], or operate[] an interactive 

computer service . . . with the intent to promote or facilitate the prostitution of another 

person.” 18 U.S.C. § 2421A. To defend the law’s constitutionality, the government’s 

primary argument is that “promote” and “facilitate” are “terms of art in criminal 

statutes, invoking traditional principles of accomplice liability,” and that “the phrase 

‘promote or facilitate,’ as used in the Travel Act, is equivalent to ‘aid or abet.’” 

Woodhull Brief. at 28-29. Consequently, says the government in Woodhull, there is no 

constitutional problem because FOSTA’s reach does not extend beyond someone who 

“intentionally aids and abets the commission of crimes,” and the “invocation of aidingand-abetting liability draws on settled legal concepts to provide adequate notice of what 

the statute prohibits.” Id. at 2.3

Given this concession, the government cannot credibly contend here that it is 

irrelevant whether state law was “actually violated,” (Doc. 1216-3 at 147) or whether 

Defendants intended the violation. The “settled legal concepts” of “aiding and 

abetting” and the “traditional principles of accomplice liability” definitively require, as 

elements of the charge, proof of (1) commission of an offense by someone and (2) a 

state of mind extending “to the specific and entire crime,” Rosemond, 572 U.S. at 76. 

Indeed, the government’s Woodhull Brief cites (at 25) as evidence for its reading of the 

2 The court heard argument on January 11, 2023. The court’s decision is pending.

3 A transcript of the oral argument before the D.C. Circuit is attached as Exhibit B.

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Travel Act and FOSTA the “influential LaFave treatise” which states: “The guilt of the 

principal must be established at the trial of the accomplice as a part of the proof on the 

charge against the accomplice. If the acts of the principal [are not criminal,] then the 

accomplice may not be convicted.” Wayne R. LaFave, 2 Substantive Criminal Law § 

13.3(c). And “the accomplice must have a state of mind extending to the entire crime.” 

Id. § 13.2(b) (quoting Rosemond).

Second, the Travel Act’s text confirms the government’s position in Woodhull:

for non-principals who are charged with “promoting” or “facilitating” unlawful activity, 

the Act is an aiding and abetting offense limited in scope by “traditional principles of 

accomplice liability.” Woodhull Brief at 29. Indeed, the statutory text maps neatly onto 

the universal aiding-and-abetting elements reflected in the Ninth Circuit’s Model 

Criminal Jury Instructions:

Traditional Aiding and Abetting Travel Act Text

Someone else committed an offense. There is a “business enterprise involving 

. . . prostitution offenses” that “are 

committed.” 18 U.S.C. § 1952(b)(i).

The defendant committed an act to aid at 

least one element of the offense.

The defendant “performs or attempts to 

perform an act” to “promote . . . or 

facilitate the promotion, management, 

establishment, or carrying on, of any 

unlawful activity.” 18 U.S.C. 

§ 1952(a)(3)(A).

The defendant acted with intent to 

facilitate each element of the offense. 

Ninth Circuit Model Criminal Jury 

Instructions § 4.1 (2022)

The defendant “travels in interstate” 

commerce or “uses . . . any facility in 

interstate . . . commerce with intent to . . . 

otherwise promote . . . or facilitate . . . any 

unlawful activity.” 18 U.S.C. 

§ 1952(a)(3).

By adding the interstate commerce requirement, the Travel Act creates a federal offense 

for aiding and abetting a business enterprise’s commission of certain state-law offenses, 

including prostitution offenses. As with any aiding and abetting liability, the 

government must prove the existence of an offense and defendants’ criminal intent.

Third, the “existence of a state law violation is an element of the violation of the 

Travel Act.” Hiatt, 527 F.2d at 1049, 51 (element satisfied when defendant’s conduct 

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in managing “house of prostitution” would have violated Alaska prostitution laws). As 

the Ninth Circuit has explained, this circuit along with “most circuits” “require[s] that 

the specific elements of the underlying law that constitute the unlawful activity be found 

as elements of the Travel Act offense.” Myers v. Sessions, 904 F.3d 1101, 1110 (9th 

Cir. 2018). Even in Travel Act cases charging a principal offender, the Ninth Circuit 

has held that the government “must prove as part of the Travel Act charge that the 

defendant has or could have violated the underlying state law, and the defendant may 

assert any relevant substantive state law defense.” United States v. Bertman, 686 F.2d 

772, 774 (9th Cir. 1982) (principal charged with traveling interstate to bribe state 

official). See also United States v. Jones, 909 F.2d 533, 538 (D.C. Cir. 1990) (reversing 

conviction of operators of escort service where jury instruction did not require “intent 

specified by the state [prostitution] laws with respect to each element of the escort 

service’s allegedly unlawful activity”); United States v. Goldfarb, 643 F.2d 422, 426 

(6th Cir. 1981) (holding that “as a predicate to a Travel Act conviction . . . the 

defendants must have engaged in some form of unlawful activity prohibited by the law 

of the State of Nevada” and noting that the Ninth Circuit is among courts requiring 

“proof of the commission or attempted commission of a state defined criminal offense” 

as an “essential element of a Travel Act conviction”); United States v. Kahn, 472 F.2d 

272, 277 (2d Cir. 1973) (The “initial inquiry in a Travel Act case is whether the 

underlying activity violates a state law,” including the “assertion of a particular state 

law defense.”).

In other words, just like general aiding and abetting liability, the Travel Act 

requires proof of some violation of state law, and that the defendants intended to 

commit each element of the underlying offenses.

Fourth, if the Travel Act required less—if the government did not need to show

the aiding and abetting of an underlying criminal offense—the statute would be 

unconstitutional as applied here. Allowing a prosecution to move forward without 

requiring the government to allege or prove that the Defendants knew about, assisted, 

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and intended to assist in the commission of a specific criminal offense would be

unconstitutional. See, e.g., United States v. Hansen, 25 F.4th 1103, 1109 (9th Cir. 

2022), cert. granted, 143 S. Ct. 555 (2022) (holding that statute criminalizing the 

encouragement of certain violations is unconstitutionally overbroad because, among 

other reasons, it is not limited to traditional aiding and abetting, which “requires 

someone to have committed an underlying criminal offense”).

2. The Superseding Indictment fails to allege the commission of 

an offense or an intent to aid the commission of that offense.

The Superseding Indictment’s Travel Act charges (2-51) fail to allege the key 

elements of aiding and abetting: (1) the commission of a state law violation and (2) a 

state of mind extending “to the specific and entire crime,” Rosemond, 572 U.S. at 76. 

In a previous order, Judge Brnovich characterized the Travel Act charges as alleging

“fifty instances where Defendants posted ads on Backpage.com to facilitate specific 

individual prostitutes or pimps involved in the business of prostitution.” Doc. 946 at 

8-9. Taking the government’s allegations as true that the charged ads were really for 

illegal prostitution transactions, such allegations do not suffice.

First, no allegation links any of the fifty ads to a specific prostitution offense. 

For many ads (the “GFE” ads, Counts 27-51) the indictment alleges nothing other than 

the existence of the ad itself. For some ads (those linked with victim summaries, Counts 

2,4-5, 12-17, 19-24, and those involving P.R., Counts 3, 6-11, 18, 25-26), the 

indictment alleges that the person who placed the ad generally engaged in prostitution. 

At most, the government alleges that individuals who may have committed other 

prostitution offenses also placed these ads. This does not prove that Backpage’s 

publication of any charged ad was associated with an underlying state law prostitution 

offense, the “existence” of which is “an element of the violation of the Travel Act.” 

Hiatt, 527 F.2d at 1051.

Second, the indictment fails to allege that Defendants’ state of mind extended to 

the entire crime. Taking Arizona’s law for example (the state statute cited in Counts 2-

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51, SI ¶ 201), the crime of prostitution requires proof that a defendant “knowingly” 

“engag[ed] in or agree[d] or offer[ed] to engage in sexual conduct under a fee 

arrangement with any person for money or any other valuable consideration.” A.R.S. 

§§ 13-3214(A), 13-3211(5). “Sexual conduct” means “fondling” or “manipulating” the 

“genitals, anus or female breast,” “sexual intercourse, oral sexual contact or 

sadomasochistic abuse.” A.R.S. § 13-3211(8), (9). The Superseding Indictment does 

not allege that any Defendant knew about these charged ads, much less knew of any

exchange for “sexual conduct under a fee arrangement” tied to any such ad. See also 

Rosemond, 572 U.S. at 78 (holding that in addition to the requisite knowledge, the 

accomplice must have had “advance knowledge”).

The details matter. By eliding allegations of an actual violation of state law and 

requisite intent, the indictment makes no distinction between illegal and legal ads. A

person (even a known prostitute) can place an ad for lawful services, including lawful 

sexual services. In Arizona, for example, it is legal to advertise for and pay someone 

to “privately model lingerie or to privately perform a striptease.” A.R.S. § 13-

1422(G)(7) (defining “escort”, a lawful “adult oriented business”); A.R.S. § 9-500.10 

(regulating escort advertising). The essential elements of aiding and abetting liability 

are necessary to separate non-criminal and criminal conduct, and the Superseding 

Indictment fails to allege them.

The Sixth Circuit’s decision in United States v. Superior Growers Supply, Inc., 

982 F.2d 173 (6th Cir. 1992), is highly instructive. Although not a Travel Act case, the 

indictment there was parallel in structure to the Superseding Indictment, “charging 

defendants, a garden supply store, its owners and an employee, with conspiracy to aid 

and abet the manufacture of marijuana,” along with “89 overt acts” to further their 

customers’ growing of marijuana. Id. at 175. Marijuana cultivation was illegal 

throughout the country at the time. The allegations linking the defendants’ business 

with those in the cultivation business were significant, defendants: made and sold 

“equipment and supplies used for the illegal manufacture and cultivation of marijuana;” 

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“advertise[d] their products in ‘High Times’ magazine and other marijuana-related 

publications;” would “sell or give publications concerning the growing of marijuana 

and other marijuana-related publications to many of their customers;” provided 

“information and advice on the growing of marijuana” to customers; and would on 

occasion “accept marijuana or hashish in partial payment for equipment and supplies.” 

Id.

Although the indictment alleged those defendants had reason to know that some 

of their customers might have been marijuana cultivators, the Court held that the 

indictment was still missing the “essential elements” of the “actual manufacture of 

marijuana” and defendants’ “intent to further” that unlawful act. Id. at 178-79. A 

charge of conspiracy to aid and abet is only “legally and factually viable when an 

underlying crime has been committed.” Id. at 180. Otherwise, there is only an 

agreement to “aid and abet a ‘possibility,’ or a ‘criminal wish[,]’ which simply isn’t a 

crime.” Id. at 178.

The Travel Act and conspiracy charges likewise fail here. As was the case in 

Superior Growers, the government merely stacks allegations about how defendants 

used legal means to target customers (i.e., Backpage publishing adult ads, allowing only 

facially lawful ads, and encouraging those who placed ads to place more ads) on top of 

allegations that the Defendants knew that Backpage’s customers included “prostitutes”

and “pimps.” But that does not state an offense. “Charges of conspiracy are not to be 

made out by piling inference upon inference, thus fashioning what . . . is called a dragnet 

to draw in all substantive crimes.” Id. (cleaned up and citation omitted). Whatever

innuendo or suspicion is in the indictment, “knowledge of the underlying crime and 

intent to further it are essential elements of a conspiracy to aid and abet a substantive 

crime.” Id. Those elements are missing here.

This conclusion is consistent with the numerous cases addressing Backpage, in 

which other federal courts previously held that the publication of third-party ads on 

Backpage.com could not create liability, including under an aiding and abetting theory. 

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Those cases have been briefed previously and will not be recited again here. See, e.g., 

Doc. 561 at 4-8. As but one example, in M.A. ex rel. P.K. v. Vill. Voice Media Holdings, 

LLC, the court held that the allegations that Backpage used marketing practices to 

increase ad placements, knew prostitutes used Backpage, and that “no reasonable 

person could review the postings in the adult categories and deny prostitution was the 

object of almost each and every ad” “do not describe the specific intent required for 

aiding and abetting” of a person’s prostitution. 809 F. Supp. 2d 1041, 1050, 1054 (E.D. 

Mo. 2011).

The government has never cited a case, and we can find no case, involving any 

prosecution under the Travel Act anything like the theory charged here. Rather, the 

reported cases invariably involve proof of a defendant’s direct involvement in the 

business enterprise committing underlying prostitution offenses. See, e.g., Hiatt, 527 

F.2d at 1049-50 (defendant had “active role” in management of “massage parlor” and 

“acknowledge[d] . . . was in fact a house of prostitution,” including “maintain[ing] 

records of the women’s earnings” and “monitor[ing] sessions through one-way 

mirrors . . . to verify the earnings”); United States v. Monaco, 700 F.2d 577, 579 (10th 

Cir. 1983) (defendants “owned and operated” “massage parlors” where employees 

“would perform sexual acts with customers for money” “as part of their work”); United 

States v. Palfrey, 499 F. Supp. 2d 34 (D.D.C. 2007) (denying motion to dismiss where 

indictment alleges defendant owned and managed a multistate prostitution business). 

The Superseding Indictment does not allege the “essential elements” of aiding and 

abetting liability present in these other cases.

C. The failure to allege essential elements of the Travel Act charges

compels dismissal of the Superseding Indictment.

The failure to allege essential elements of the Travel Act charges requires 

dismissal. The failure to allege these essential elements deprives defendants of notice 

of the charges against them and the ability to prepare a defense. Bernhardt, 840 F.2d 

1441, 1445 (9th Cir. 1988). The failure to allege these elements means that the Fifth 

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Amendment’s requirement of fair notice in an indictment is “not satisfied, since the 

essential facts set out in [the indictment] do not describe a crime.” Superior Growers, 

982 F.2d at 179 (citing Hamling, 418 U.S. at 117-18). The failure to allege the 

“occurrence of the underlying crime has to be an essential element” of an aiding and 

abetting offense (or a conspiracy to commit an aiding and abetting offense) and its 

absence requires dismissal. Id. at 178. Moreover, an indictment must “enable [the 

defendant] to plead double jeopardy.” Bernhardt, 840 F.2d at 1445. After this case, 

would double jeopardy prevent the government from simply slotting in fifty more of 

the millions of Backpage.com ads, also without any allegation of aiding and abetting as 

to those specific ads and any underlying prostitution offenses?

The money laundering counts must also be dismissed. Judge Brnovich

previously ruled the money laundering counts could stand regardless of a dismissal of 

the Travel Act counts. See Doc. 946 at 17 (order denying Def. Brunst’s Motion to 

Dismiss). That ruling is clearly erroneous, as the money laundering counts all hinge on 

the Travel Act counts. Although “the government need not allege all the elements of 

the ‘specified unlawful activity,’ i.e., the underlying offense,” Doc. 946 at 17, the 

proceeds must be derived from a specified unlawful activity. See 9th Cir. Model Crim. 

J. Inst. 18.7 (2022) (requiring the government to prove “the property was, in fact, 

derived from . . . the specified unlawful activity alleged in the indictment”). The 

contention of this motion is that the government has not alleged an underlying crime, 

and Defendants cannot be liable for laundering money that was not “criminally 

derived.” 18 U.S.C. § 1957(a). The money laundering charges premised entirely on 

those underlying crimes cannot stand once the Travel Act foundation crumbles. U.S. 

v. Garrido, 713 F.3d 985, 989-99 (9th Cir. 2013) (reversing money laundering 

convictions because the “criminally derived property” was from a defectively alleged 

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underlying crime).

4

D. The Court should also dismiss if the grand jury was given incomplete, 

misleading instructions of the elements of the Travel Act.

The failure to accurately instruct the grand jury can require dismissal if the 

erroneous instruction “substantially influenced the grand jury’s decision to indict or” if 

the error creates “grave doubt that the decision to indict was free from the substantial 

influence” of the error. United States v. Navarro, 608 F.3d 529, 539 (9th Cir. 2010) 

(describing standard for “errors brought to the district court’s attention” before the end 

of trial). This occurs when the erroneous instructions are “flagrantly misleading” or 

when the instructions fail to “at least impl[y]” “all the elements.” United States v. 

Larrazolo, 869 F.2d 1354, 1359 (9th Cir. 1989) overruled on other grounds by Midland 

Asphalt Corp. v. United States, 489 U.S. 794, 799-800 (1989).

Here, contrary to its position in Woodhull, the government has not alleged that 

any of the Defendants published the charged ads with the intent to aid or abet specific 

prostitution offenses (as opposed to “prostitution” in the abstract), and has urged that

proof of the existence of actual violations of law are unnecessary and that Defendants 

do not “need[] the intent to violate the state prostitution offense” for conviction. See 

Doc. 1216-3 at 104, 147. Given that, it is fair to assume that the government failed to 

instruct the grand jury on the essential elements of aiding and abetting, which are

essential to the government’s Travel Act charges.

The Court is in possession of the sealed grand jury instructions on the Travel 

Act. See Doc. 879 (ordering production for in camera review). The Court should 

review those instructions to determine if the grand jury was properly instructed that the 

4 The cases the government cites in opposition to an earlier motion to dismiss (Doc. 776 

at 16) stand only for the proposition that a defendant can be convicted of certain money 

laundering offenses if he or she knows that the funds at issue were illegally derived, 

e.g., where the defendant is acquitted of a substantive drug offense but knew the funds 

were derived from drug sales. If the Court were to dismiss the Travel Act charges, then 

there would be no “specified unlawful activity” underlying the money laundering 

charges.

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promotion and facilitation charged under the Travel Act required it to find that 

Defendants had aided and abetted the commission of specific prostitution offenses. If 

not, the Court should dismiss the indictment because it was procured through 

“flagrantly misleading” instructions that fail to instruct on “all the elements.” 

III. Conclusion 

The Superseding Indictment fails to allege the essential elements required to 

prove a crime under the Travel Act. The Superseding Indictment should be dismissed.

 DATED this 30th day of March, 2023. 

OSBORN MALEDON, P.A.

By s/ Joseph N. Roth 

 Timothy J. Eckstein 

 Joseph N. Roth 

Sarah P. Lawson 

 2929 North Central, 20th Floor 

Phoenix, Arizona 85012-2794 

Attorneys for James Larkin 

LIPSITZ GREEN SCIME CAMBRIA LLP 

By s/ Paul J. Cambria, Jr. (w/permission) 

 Paul J. Cambria, Jr. (pro hac vice) 

Erin E. McCampbell (pro hac vice) 

 42 Delaware Avenue, Suite 120 

 Buffalo, New York 14202 

Attorneys for Michael Lacey 

FEDER LAW OFFICE PA 

By s/ Bruce S. Feder (w/permission) 

 Bruce S. Feder 

 2930 E. Camelback Road, Suite 160 

Phoenix, Arizona 85016

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KESSLER LAW OFFICE

By s/ Eric W. Kessler (w/permission) 

 Eric W. Kessler 

 6720 N. Scottsdale Rd., Suite 210 

 Scottsdale, Arizona 85253 

Attorneys for Scott Spear 

BIRD, MARELLA, BOXER, WOLPERT, 

NESSIM, DROOKS, LINCENBERG & 

RHOW P.C. 

By s/ Gary S. Lincenberg (w/permission) 

 Gary S. Lincenberg 

Gopi K. Panchapakesan 

Ariel A. Neuman 

 1875 Century Park E., Suite 2300 

 Los Angeles, California 90067 

Attorneys for John Brunst 

DAVID EISENBERG PLC 

By s/ David S. Eisenberg (w/permission) 

 David S. Eisenberg 

 3550 N. Central Ave., Ste. 1155 

Phoenix, Arizona 85012

Attorneys for Andrew Padilla

JOY BERTRAND LAW 

By s/ Joy M. Bertrand (w/permission) 

 Joy M. Bertrand 

 P.O. Box 2734 

 Scottsdale, Arizona 85252 

Attorneys for Joye Vaught

Case 2:18-cr-00422-DJH Document 1557 Filed 03/30/23 Page 21 of 21