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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff, 

vs. 

Michael Lacey, et al.,

Defendants.

CR-18-00422-PHX-DJH

JOINT PROPOSED JURY 

INSTRUCTIONS

In accordance with the Court’s Orders (Docs. 1524 & 1546), the parties submit their 

joint proposed jury instructions. The parties—consistent with the Court’s guidance—have 

not included the text of the model instruction, except when the instructions have been 

specifically tailored for this case. Those tailored instructions are noted below with an 

asterisk. Bracketed material remaining in the attached instructions indicates areas needing 

clarification or input from the Court.

Section I contains model instructions. If the instruction is stipulated to by the parties 

then it is preceded by “ST.” If only one party requests the instruction, then the instruction 

is preceded by either “PL” (Plaintiff) or “DF” (Defendant), along with any objections. 

Section II contains non-model instructions to which the parties have stipulated. Section III

contains the non-model instructions requested by the United States and Defendants’ 

objections. Section IV contains non-model instructions requested by Defendants and the 

United States’ objections. 

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I. MODEL INSTRUCTIONS

 1. Preliminary Instructions

ST 1.1 Duty of Jury

PL 1.2 The Charge – Presumption of Innocence* 

DF 1.2 The Charge – Presumption of Innocence* 

ST 1.3 What Is Evidence

ST 1.4 What Is Not Evidence

ST 1.5 Direct and Circumstantial Evidence

ST 1.6 Ruling on Objections

ST 1.7 Credibility of Witnesses

ST 1.8 Conduct of the Jury

ST 1.9 No Transcript Available to Jury

ST 1.10 Taking Notes

ST 1.11 Outline of Trial

PL 1.13 Separate Consideration for Each Defendant

DF 1.13 Separate Consideration for Each Defendant*

ST 1.16 Bench Conferences and Recesses 

 2. Instructions In The Course Of Trial

ST 2.1 Cautionary Instruction – First Recess

ST 2.2 Stipulated Testimony [if necessary]

ST 2.3 Stipulations of Fact [if necessary]

ST 2.12 Evidence for Limited Purpose [if necessary] 

3. Consideration of Particular Evidence

ST 3.9 Testimony of Witnesses Involving Special Circumstances—Immunity, 

Benefits, Accomplice, Plea

ST 3.14 Opinion Evidence, Expert Witness

ST 3.15 Dual Role Testimony

ST 3.16 Charts and Summaries Not Admitted into Evidence [if necessary]

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ST 3.17 Charts and Summaries Admitted into Evidence

 4. Responsibility 

PL 4.8 Knowingly

PL 4.9 Deliberate Ignorance*

DF 4.11 Advice of Counsel*

 5. Specific Defenses

DF 5.12 Mere Presence* 

6. Jury Deliberations 

ST 6.1 Duties of Jury to Find Facts and Follow Law

PL 6.2 Charge Against Defendant Not Evidence—Presumption of 

Innocence—Burden of Proof

DF 6.2 Charge Against Defendant Not Evidence—Presumption of 

Innocence—Burden of Proof*

ST 6.3 Defendant’s Decision Not to Testify [if necessary]

ST 6.4 Defendant’s Decision to Testify [if necessary]

PL 6.5 Reasonable Doubt—Defined

DF 6.5 Reasonable Doubt—Defined*

ST 6.6 What Is Evidence

ST 6.7 What Is Not Evidence

ST 6.8 Direct and Circumstantial Evidence

ST 6.9 Credibility of Witnesses

ST 6.10 Activities Not Charged

PL 6.13 Separate Consideration of Multiple Counts—Multiple Defendants

DF 6.13 Separate Consideration of Multiple Counts—Multiple Defendants*

ST 6.18 On or About—Defined 

ST 6.19 Duty to Deliberate 

ST 6.20 Consideration of Evidence—Conduct of the Jury

ST 6.21 Use of Notes

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ST 6.22 Jury Consideration of Punishment 

ST 6.23 Verdict Form

ST 6.24 Communication with Court

11. Conspiracy 

PL 11.1 Conspiracy—Elements (Count 1)* 

DF 11.1 Conspiracy—Elements (Count 1)*

DF 11.3 Multiple Conspiracies (Count 1)*

DF 11.3 Multiple Conspiracies (Count 52)*

PL 11.4 Conspiracy—Knowledge of and Association with Other Conspirators

DF 11.4 Conspiracy—Knowledge of and Association with Other 

Conspirators* 

PL 11.6 Conspiracy—Liability for Travel Act Violations Committed by CoConspirator (Pinkerton Charge)*

DF 11.6 Conspiracy—Liability for Travel Act Violations Committed by CoConspirator (Pinkerton Charge)*

PL 11.6 Conspiracy—Liability for Concealment Money Laundering 

Committed by Co-Conspirator (Pinkerton Charge)*

DF 11.6 Conspiracy—Liability for Concealment Money Laundering 

Committed by Co-Conspirator (Pinkerton Charge)*

PL 11.6 Conspiracy—Liability for International Promotional Money 

Laundering Committed by Co-Conspirator (Pinkerton Charge)*

DF 11.6 Conspiracy—Liability for International Promotional Money 

Laundering Committed by Co-Conspirator (Pinkerton Charge)*

18. Money Laundering and Racketeering Offenses

PL 18.1 Travel Act—Interstate or Foreign Travel in Aid of Racketeering 

Enterprises* 

DF 18.1 Travel Act—Interstate or Foreign Travel in Aid of Racketeering 

Enterprises* 

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PL 18.4 Laundering Monetary Instruments*

DF 18.4 Laundering Monetary Instruments*

PL 18.5 Transporting or Attempting to Transport Funds to Promote Unlawful 

Activity*

DF 18.5 Transporting or Attempting to Transport Funds to Promote Unlawful 

Activity* 

PL 18.6 Transporting or Attempting to Transport Monetary Instruments for 

the Purpose of Laundering*

DF 18.6 Transporting or Attempting to Transport Monetary Instruments for 

the Purpose of Laundering*

PL 18.7 Money Laundering*

DF 18.7 Money Laundering*

PL 18.7A Money Laundering Conspiracy*

DF 18.7A Money Laundering Conspiracy* 

II. NON-MODEL STIPULATED INSTRUCTIONS

III. NON-MODEL INSTRUCTIONS REQUESTED BY THE UNITED STATES

PL 1. State Law Need Not Be Violated for Defendants to Be Found Guilty 

Under the Travel Act

PL 2. “Business Enterprise” Defined

PL 3. “Uses Any Facility in Interstate Commerce” Defined

PL 4. “Facilitate” Defined

PL 5. Specific Intent Defined

PL 6. Proof of Knowledge or Intent

IV. NON-MODEL INSTRUCTIONS REQUESTED BY DEFENDANTS WITH 

THE UNITED STATES’ OBJECTIONS

DF 1. Specific Intent 

DF 2. Defendant’s Good Faith

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DF 3. Defense Theory of the Case

DF 4. Conspiracy – Willfulness Defined

DF 5. Business Enterprise Explained

DF 6. Business Enterprise Defined

DF 7. First Amendment Protection—Speech Presumed Protected

DF 8. First Amendment Protection—Speech Presumed Protected

DF 9. First Amendment Protection—Offensive and Sexual Speech

DF 10. First Amendment Protection—Protected Free Speech

DF 11. First Amendment Protection—Ads Presumed Protected

DF 12. First Amendment Protection—Coded Advertisement Language

DF 13. First Amendment Protection—Examples of Legal “Adult” Services

DF 14. First Amendment Protection—Ads Presumed Protected 

DF 15. First Amendment Protection—Government’s Burden to Overcome 

Presumption

DF 16. First Amendment Protection—Ads Presumed Protected

DF 17. First Amendment Protection—No Requirement to Investigate 

DF 18. First Amendment Protection—No Requirement to Shut Down

DF 19. First Amendment Protection—Website has the Right to Exercise 

Editorial Control and Judgment

DF 20. First Amendment Protection—Government’s Burden of Proof

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UNITED STATES’ PROPOSED INSTRUCTION 1.2 THE CHARGE—

PRESUMPTION OF INNOCENCE

This is a criminal case brought by the United States government. The United States 

charges Defendants with conspiracy, violations of the Travel Act, and money laundering. 

The charges against Defendants are contained in the indictment. The indictment1 simply 

describes the charges the United States brings against each defendant. The indictment is 

not evidence and does not prove anything.

Each defendant has pleaded not guilty to the charges and is presumed innocent 

unless and until the United States proves that defendant guilty beyond a reasonable doubt. 

In addition, each Defendant has the right to remain silent and never has to prove innocence 

or present any evidence.

In order to help you follow the evidence, I will now give you a brief summary of 

the elements of the crimes that the United States must prove to make its case against each 

charged defendant: 

Count 1 is conspiracy—the three elements of conspiracy are as follows:

First, beginning in or around 2004, and ending on or about April 2018, there was 

an agreement between two or more persons to commit at least one Travel Act offense as 

charged in the indictment;

Second, the defendant became a member of the conspiracy knowing of at least one 

of its objects, and intending to help accomplish it; and

Third, on or after March 28, 2013, one of the members of the conspiracy performed 

at least one overt act for the purpose of carrying out the conspiracy.

Counts 2-51 are Travel Act counts—the two elements to support a Travel Act 

conviction are as follows: 

First, the defendant used the used the mail or any facility in interstate commerce with 

the intent to promote, manage, establish, carry on, or facilitate the promotion, management, 

1 All references to “indictment” in these instructions refer to the United States’ 

superseding indictment (Doc. 230). 

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establishment, or carrying on, of any business enterprise involving prostitution offenses in 

violation of the laws of the State in which they are committed; and 

Second, after doing so the defendant performed an act that did promote, manage, 

establish, carry on, or facilitate the promotion, management, establishment, or carrying on, 

of any business enterprise involving prostitution offenses in violation of the laws of the 

State in which they are committed. 

Further, you may find a given defendant guilty of the Travel Act as charged in Counts 

2-51 of the indictment 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; 

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.

Count 52 is conspiracy to commit money laundering—the two elements of money 

laundering conspiracy are as follows:

First, there was an agreement to commit money laundering;

Second, the defendant knew the objective of the agreement; and 

Third, the defendant joined the agreement with the intent to further its unlawful 

purpose. 

Counts 53-62 are concealment money laundering—the three elements of concealment 

money laundering are as follows:

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First, the defendant conducted a financial transaction involving property that 

represented the proceeds of promoting, managing, establishing, carrying on, or facilitating 

the promotion, management, establishment, or carrying on, of any business enterprise 

involving prostitution offenses in violation of the laws of the State in which they are 

committed. 

Second, the defendant knew that the property represented the proceeds of some form 

of unlawful activity; and

Third, the defendant knew that the transaction was designed in whole or in part to 

conceal and disguise the nature, the location, the source, the ownership, or the control of the 

proceeds of the specified unlawful activity. 

Counts 63-68 are international promotional money laundering—the two elements of 

international promotional money laundering are as follows:

First, the defendant transported money from a place in the United States to or through 

a place outside the United States or to a place in the United States from or through a place 

outside the United States; and

Second, the defendant acted with the intent to promote the carrying on of the specified 

criminal activity in the indictment. 

Counts 69-99 are transactional money laundering—the five elements of transactional 

money laundering are as follows: 

First, the defendant knowingly engaged or attempted to engage in a monetary 

transaction;

Second, the defendant knew the transaction involved criminally derived property;

Third, the property had a value greater than $10,000;

Fourth, the property was, in fact, derived from specified unlawful activity, that is

promoting or facilitating the promotion of any business enterprise involving prostitution 

offenses in violation of the laws of the State in which they are committed; and

Fifth, the transaction occurred in the United States. 

Count 100 is international concealment money laundering—the three elements of 

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international concealment money laundering are as follows:

First, the defendant transported money from a place in the United States to or 

through a place outside the United States;

Second, the defendant knew that the money represented the proceeds of promoting 

or facilitating the promotion of any business enterprise involving prostitution offenses; and

Third, the defendant knew the transportation was designed in whole or in part to 

conceal or disguise the nature, location, source, ownership, or control of the proceeds of 

promoting or facilitating the promotion of any business enterprise involving prostitution

offenses.

DEFENDANTS’ OBJECTION

Defendants’ and the government’s proposed modified instructions 1.2 are similar in 

many respects but defendants object to the following portions of the government’s version:

First, as to the description of the elements of Count 1, the government’s instruction 

states that the conspiracy began “around 2004, and end[ed] on or about April 2018.” This 

improperly assumes that evidence related to Backpage business practices in place prior to 

September 10, 2013 (the earliest publication date of one of the fifty charged ads) is relevant 

to the conspiracy charge. As explained in defendants’ Motion in Limine at Doc. 1591, 

evidence related to Backpage’s pre-2013 alleged prostitution marketing practices should 

be excluded because those practices all ceased before 2013. As the Court has held, the 

conspiracy charge is not a “boundless conspiracy to facilitate prostitution in general” or the 

“amorphous notion of ‘prostitution,” but rather is for “facilitating (via publishing ads) on 

fifty distinct occasions” between 2013 and 2018. Doc. 946 at 13. The government 

contends that the pre-2013 business practices are relevant to prove up defendants’ specific 

intent. Whatever the outcome of the MIL, it remains that defendants will contest the 

admissibility of such evidence during trial. The preliminary jury instructions should not 

prejudice defendants by pre-judging the pertinence of pre-2013 business practices in this 

jury instruction. 

Second, the government omits the word “illegal” before “objects” in the second 

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element of Count 1. But mere association with members of a conspiracy, “without an 

intention and agreement to accomplish a specific illegal objective, is not sufficient to make 

one a conspirator.” United States v. Hubbard, 96 F.3d 1223, 1226 (9th Cir. 1996) (citing 

United States v. Melchor–Lopez, 627 F.2d 886, 891 (9th Cir. 1980)). Given that indictment 

says “the object of the conspiracy was to obtain money” (Doc. 230, ¶ 197)—a patently 

lawful object—it is critical that the jury understand that the object of a conspiracy must be 

unlawful. 

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DEFENDANTS’ PROPOSED INSTRUCTION

1.2 THE CHARGE—PRESUMPTION OF INNOCENCE

This is a criminal case brought by the United States government. The United States 

charges Defendants with conspiracy, violations of the Travel Act, and money laundering. 

The charges against Defendants are contained in the indictment. The indictment2 simply 

describes the charges the United States brings against Defendants. The indictment is not 

evidence and does not prove anything.

Defendants have pleaded not guilty to the charges and are presumed innocent unless 

and until the United States proves Defendants guilty beyond a reasonable doubt. In 

addition, Defendants have the right to remain silent and never have to prove innocence or 

present any evidence.

In order to help you follow the evidence, I will now give you a brief summary of 

the elements of the crimes that the United States must prove to make its case against each 

charged defendant:

Count 1 is conspiracy—the three elements of conspiracy are as follows: 

First, there was an agreement between two or more persons to commit at least one 

Travel Act offense as charged in the indictment;

Second, the defendant became a member of the conspiracy knowing of at least one 

of its unlawful objects, and intending to help accomplish it; and

Third, one of the members of the conspiracy performed at least one overt act for the 

purpose of carrying out the conspiracy.

Counts 2-51 are Travel Act counts—the two elements to support a Travel Act 

conviction are as follows: 

First, the defendant used the mail or any facility in interstate commerce with the 

intent to promote, manage, establish, carry on, or facilitate the promotion, management, 

2 All references to “indictment” in these instructions refer to the United States’ 

superseding indictment (Doc. 230). 

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establishment, or carrying on, of a business enterprise involving prostitution offenses in 

violation of the laws of the State in which they were committed or of the United States; 

and 

Second, after doing so the defendant performed or attempted to perform an act that 

did promote, manage, establish, carry on, or facilitate the promotion, management, 

establishment, or carrying on, of that business enterprise involving prostitution offenses.

Further, you may find the defendants guilty of the Travel Act as charged in Counts 

2-51 of the indictment if the United States has proved each of the following elements 

beyond a reasonable doubt:

First, a person committed the Travel Act offense as alleged in Counts 2-51 of the 

indictment; 

Second, the person committing the Travel Act offense was a member of the 

conspiracy charged in Count 1 of the indictment;

Third, the person committing the Travel Act offense committed the offense alleged 

in furtherance of the conspiracy;

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

Act offense charged in Counts 2-51 was committed; and

Fifth, the Travel Act 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.

Count 52 is conspiracy to commit money laundering—the three elements of money 

laundering conspiracy are as follows: 

First, there was an agreement between two or more persons to commit at least one 

crimes alleged in the money laundering conspiracy, and

Second, that the defendant became a member of the conspiracy knowing of at least 

one of its objects and intending to help accomplish it; and

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Third, one of the members of the conspiracy performed at least one overt act for the 

purpose of carrying out the conspiracy. 

Counts 53-62 are concealment money laundering—the three elements of 

concealment money laundering are as follows: 

First, the defendant conducted a financial transaction involving property that 

represented the proceeds of promoting, managing, establishing, carrying on, or facilitating 

the promotion, management, establishment, or carrying on, of any business enterprise 

involving prostitution offenses.

Second, the defendant knew that the property represented the proceeds of some form 

of unlawful activity; and

Third, the defendant knew that the transaction was designed in whole or in part to 

conceal and disguise the nature, the location, the source, the ownership, or the control of 

the proceeds of the specified unlawful activity.

Counts 63-68 are international promotional money laundering—the two elements 

of international promotional money laundering are as follows: 

First, the defendant transported money from a place in the United States to or 

through a place outside the United States or to a place in the United States from or through 

a place outside the United States; and

Second, the defendant acted with the intent to promote the carrying on of the 

specified criminal activity in the indictment.

Counts 69-99 are transactional money laundering—the five elements of 

transactional money laundering are as follows: 

First, the defendant knowingly engaged or attempted to engage in a monetary 

transaction;

Second, the defendant knew the transaction involved criminally derived property; 

Third, the property had a value greater than $10,000;

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Fourth, the property was, in fact, derived from specified unlawful activity, that is 

promoting or facilitating the promotion of any business enterprise involving prostitution 

offenses; and

Fifth, the transaction occurred in the United States.

Count 100 is international concealment money laundering—the three elements of 

international concealment money laundering are as follows: 

First, the defendant transported money from a place in the United States to or 

through a place outside the United States;

Second, the defendant knew that the money represented the proceeds of promoting 

or facilitating the promotion of any business enterprise involving prostitution offenses; and

Third, the defendant knew the transportation was designed in whole or in part to 

conceal or disguise the nature, location, source, ownership, or control of the proceeds of 

promoting or facilitating the promotion of any business enterprise involving prostitution 

offenses.

Supporting Authorities 

Ninth Circuit Model Crim. J. Instructions 1.2 (modified to reflect charges in the 

indictment). 

UNITED STATES’ OBJECTIONS

The Court has already issued this preliminary instruction, after carefully considering 

the parties’ arguments and submissions. Doc. 1311 at 3-6; Doc. 1340 at 25, 47-52. The 

Court’s preliminary instruction should be deemed law of the case. See Doc. 1524 at 4 & 

n.2.

In the Court’s preliminary instruction, the first element of Count 1 and Count 52 

reads: “First, beginning in or around 2004, and ending on or about April 2018 . . .” Doc. 

1311 at 3, 4. This is consistent with how the Count 1 and Count 52 conspiracies are charged 

in the Superseding Indictment, Doc. 230, SI ¶¶196, 203. The United States objects to 

Defendants’ elimination of this date range, which conflicts with the SI. 

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In addition, Defendants removed the “March 28, 2013” date in the third element of 

Count 1, without explanation. Yet that date reflects the statute of limitations period for the 

SI’s Travel Act-related counts, and should remain.

And, Defendants erroneously added an overt act requirement to the Count 52 

conspiracy when that isn’t required. Whitfield v. United States, 543 U.S. 209, 210-11 

(2005) (“These cases present the question whether conviction for conspiracy to commit 

money laundering, in violation of 18 U.S.C. § 1956(h), requires proof of an overt act in 

furtherance of the conspiracy. We hold that it does not.”); id. at 214 (“Because the text of 

§ 1956(h) does not expressly make the commission of an overt act an element of the 

conspiracy offense, the Government need not prove an overt act to obtain a conviction.”). 

The instruction should remain substantively the same as the preliminary instruction 

issued by the Court during the first trial. The United States’ only substantive proposed 

change is in the section for Count 52. The United States replaced the Court’s language 

(Doc. 1311 at 4-5) with the language in Model Instruction 18.7A, which provides updated 

language for a Money Laundering Conspiracy charge. In all other respects, the instruction 

issued by the Court previously should remain the instruction given at trial.

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UNITED STATES’ PROPOSED 1.13 INSTRUCTION

SEPARATE CONSIDERATION FOR EACH DEFENDANT

DEFENDANTS’ OBJECTION

The government’s proposed instruction is misleading. As the Court has 

emphasized: “[T]his case is not about Backpage. Backpage was prosecuted in a separate 

case, entered a plea in a separate case.” Tr. of Dec. 4, 2020 Hearing. Although evidence 

relating to Backpage.com will necessarily be introduced, an additional paragraph 

explaining who is on trial will focus the juror’s attention on what all parties agree: 

“Backpage.com isn’t on trial.” Doc. 1216-003 at 34.

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DEFENDANTS’ PROPOSED INSTRUCTION

1.13 SEPARATE CONSIDERATION FOR EACH DEFENDANT

Although the defendants are being tried together, you must give separate 

consideration to each defendant. In doing so, you must determine which evidence in the 

case applies to each defendant, disregarding any evidence admitted solely against some 

other defendant[s]. The fact that you may find one of the defendants guilty or not guilty 

should not control your verdict as to any other defendant.

Only the defendants are on trial. Backpage.com is not on trial. You must evaluate 

the evidence as to each individual defendant, and not as to Backpage.com or any other 

person.

Supporting Authorities

Ninth Circuit Manual of Model Criminal Jury Instructions 1.13; see United States 

v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Transcript of December 4, 

2020 Hearing (“And I think one of the key things in my reason for denying the recusal is 

that this case is not about Backpage. Backpage was prosecuted in a separate case, entered 

a plea in a separate case. This case is about these individual defendants and whether they 

had specific knowledge of these ads as facilitating illegal activity.”).

UNITED STATES’ OBJECTIONS

Defendants add an extra paragraph at the end of the Model Instruction. The United 

States objects. 

First, this extra language is unnecessary. The Model instruction aptly sets forth the 

law as it should be applied by the jury. Second, the added language is confusing. While 

it’s true that Backpage is not a defendant at trial (because it already pleaded guilty),3 it is 

also true that the six Defendants created, and at relevant times owned, controlled, managed, 

and oversaw the website’s operations. As the Superseding Indictment alleges: 

3 United States v. Backpage.com, LLC, CR-18-465-PHX-DJH at Doc. 8-2.

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“The website www.backpage.com (‘Backpage’) was, until being shut down by 

federal law enforcement authorities in April 2018, notorious for being the internet’s leading 

source of prostitution advertisements.” SI ¶1. 

“Backpage was created in 2004 by defendant Michael Lacey (“LACEY”), 

defendant James Larkin (“LARKIN”), and third individual, C.F. From 2004-15, LACEY 

and LARKIN oversaw the website’s policies and strategic direction. Additionally, LACEY 

and LARKIN retained significant control over the website (and continued receiving tens 

of millions of dollars of Backpage-related distributions) after purportedly selling their 

interests in Backpage in 2015.” SI ¶2. 

“Defendant SCOTT SPEAR served as the Executive Vice President of one of 

Backpage’s parent companies and held, at times, an ownership interest in Backpage of 

approximately 4%.” SI ¶3. 

“Defendant JOHN “JED” BRUNST (“BRUNST”) served as the Chief Financial 

Officer of Backpage and several of Backpage’s parent companies and held, at times, an 

ownership interest in Backpage of approximately 6%.” SI ¶4. 

“Defendant ANDREW PADILLA (“PADILLA”) served as Backpage’s Operations 

Manager.” SI ¶5. 

“Defendant JOYE VAUGHT (“VAUGHT”) served as Backpage’s assistant 

Operations Manager.” SI¶ 6.

In short, while Backpage isn’t on trial, the remaining Defendants owned, managed, 

or operated the website, and they were largely responsible for the website’s strategic 

business decisions. The jury should be permitted to evaluate the evidence and make a 

determination about whether each individual Defendant is guilty of crimes alleged against 

them in the SI. Part of that evaluation will be determining each individual Defendant’s 

culpability in managing, owning, or operating Backpage.

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UNITED STATES’ PROPOSED INSTRUCTION 4.8 KNOWINGLY—DEFINED

An act is done knowingly if the defendant is aware of the act, and does not act or 

fail to act through ignorance, mistake, or accident. You may consider evidence of the 

defendants’ words, acts, or omissions, along with all the other evidence, in deciding 

whether the defendant acted knowingly.

DEFENDANTS’ OBJECTIONS

The Travel Act and money laundering charges are specific intent crimes. Therefore, 

it would be reversible error to provide a “Knowingly” instruction here. See United States 

v. Gibson Specialty Co., 507 F.2d 446, 449 (9th Cir. 1974) (Travel Act violation is a 

specific intent crime); United States v. Gallo, 782 F.2d 1191, 1194 (4th Cir. 1986) 

(same); United States v. James, 210 F.3d 1342, 1345 (11th Cir. 2000) (same); see Ninth 

Circuit Model Criminal Jury Instructions at 18.3 cmt. (“Because it is a specific intent crime, 

it is reversible error to give Instruction 4.8 (Knowingly–Defined) in a money laundering 

case.”) (citing United States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994); United States v. 

Turman, 122 F.3d 1167, 1169 (9th Cir. 1997)).

Defendants propose a specific intent instruction to accurately advise the jury of the 

required mens rea for the charged offenses. See United States v. Lacey, et al. (D. Ariz.), 

Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order denying motion to dismiss) 

(“[Defendants] were not indicted for facilitating the amorphous notion of ‘prostitution.’ 

They were indicted for facilitating (via publishing ads) on fifty distinct occasions where 

prostitutes, prostitution-related businesses, or other groups were involved in the business 

of prostitution.”); see United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-

PHX-SMB,Transcript of December 4, 2020 Hearing (“And I think one of the key things in 

my reason for denying the recusal is that this case is not about Backpage. Backpage was 

prosecuted in a separate case, entered a plea in a separate case. This case is about these 

individual defendants and whether they had specific knowledge of these ads as facilitating 

illegal activity.”).

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UNITED STATES’ RESPONSE

Knowledge is an important element of several of the crimes charged in the SI. 

Critically, knowledge is a sine qua non of intent, as the Court recognized in its May 4, 2020 

Order: 

“To establish Defendants’ violation of the Travel Act, the Government must 

prove, among other things, that Defendants acted with a culpable state of 

mind.” United States v. Welch, 327 F.3d 1081, 1095 (10th Cir. 2003). “In other words, the Travel Act requires a defendant act not only with knowledge of what he is doing, but also with the objective of promoting some unlawful activity.” Id. As a result, there must be allegations that each Defendant had a 

“specific intent to promote, manage, establish, carry on or facilitate one of 

the prohibited activities.” United States v. Gibson Specialty Co., 507 F.2d 

446, 449 (9th Cir. 1974) (citing United States v. Gebhard, 441 F.2d 1261 (6th Cir. 1971)); see also United States v. Polizzi, 500 F.2d 856, 876–77 (9th Cir. 1974) (describing this element as a “specific intent to facilitate an activity 

which the accused knew to be unlawful”).

Doc. 946 at 14 (emphasis added). 

The Court went on to emphasize that Defendants’ alleged awareness—i.e., 

knowledge—that the vast majority of adult and escort ads on Backpage were for 

prostitution, combined with other allegations, further supported the SI’s allegations of 

intent:

First, the SI alleges 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 . . . .” (SI ¶ 201 (emphasis added)). It also alleges “Defendants were aware that the vast 

majority of the ‘adult’ and ‘escort’ ads appearing on Backpage were actually 

ads for prostitution and took steps to intentionally facilitate that illegal 

activity.” (Id. ¶ 9; see also id. ¶¶ 10-11.) Only by ignoring these allegations can it seriously be argued that Defendants’ intent to facilitate unlawful 

activity is not alleged.

Doc. 946 at 15; see also id. at 16 (the SI additionally alleges Defendants “received notice 

by various third parties that a majority of their ‘adult services’ ads were being used to 

support these prostitution ventures”). 

In the preliminary instructions, the Court provided a “specific intent” instruction 

(Doc. 1311 at 7), so the jury will not be not be confused as to the requisite mens rea. But, 

because specific intent can be inferred from knowledge, this instruction is appropriate. In 

addition, knowledge is included in the jury instructions for several money laundering 

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crimes alleged in the SI. Ninth Cir. Manual of Model Crim. J. Instr. 18.4, 18.6, & 18.7.

Additional authorities underscore that intent can be inferred from knowledge in a 

variety of circumstances—including several that fit comfortably within the allegations of 

the SI. In People v. Lauria, 59 Cal. Rptr. 628, 635 (Cal. Ct. App. 1967), for example, the 

court reversed a conspiracy conviction of a defendant who operated a telephone messaging 

service knowing that some of his customers were using his services to further their 

prostitution businesses. After detailed legal analysis, the court found that the supplier’s 

specific intent to facilitate unlawful activity may be inferred from knowledge in any one of 

several circumstances (none of which was present in Lauria), including:

• “[P]roof . . . of inflated charges” for goods or services used for illegal activities (the 

United States anticipates introducing evidence that Backpage charged much higher 

fees for its “adult” and “escort” ads than for ads in its non-adult sections);

• “[E]vidence 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” (the 

United States anticipates introducing evidence that Backpage derived the lion’s 

share of its revenues from prostitution ads); or

• Selling goods or services that “serve no other purpose than to advertise the 

professional services of the prostitutes” (the United States anticipates introducing 

evidence that the vast majority of Backpage’s “adult” and “escort” ads were 

prostitution ads).

Lauria, 59 Cal. Rptr. at 632-33. See also 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, or that the sales to the illegal 

operation have become the dominant proportion of the seller’s business.”); id. (courts have 

also focused on “the quantity of the sales; the continuity of the relationship between seller 

and buyer; the seller’s initiative or encouragement; and the nature of the goods,” and on 

deceptive or “secretive” tactics used by the seller).

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Moreover, Lauria found that no inference would be 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. . . . When 

the intent to further and promote the criminal enterprise comes from the lips of the supplier 

himself, ambiguities of inference from circumstance need not trouble us.” Id. at 632. The 

United States anticipates introducing evidence showing, inter alia, that Backpage 

managers and employees helped customers craft their ads to reduce the risk of law 

enforcement detection without changing the underlying message (moderation), created ads 

for prostitutes and pimps and offered to publish them for a trial period for no or reduced 

fees (aggregation), entered into affiliation agreements with bulk prostitution advertisers 

like Dollar Bill (who received discounts, commissions or other fees from Backpage), and 

paid thousands of dollars to The Erotic Review, a Yelp-like website for buyers and sellers 

of commercial sex, in a cross-referral/cross-linkage business arrangement.

In yet another example of the interplay between Travel Act violations and 

“knowledge,” Senior District Judge David Campbell—during grand jury proceedings in 

this case—recognized that federal law “criminalize[s] the knowing publication of an 

advertisement for illegal prostitution or other illegal activity.” Doc. 194-1 at 66. Even 

Defendants’ attorney agreed with Judge Campbell about when Defendants could be held 

criminally liable. Doc. 446-1 at 39 (“[I]f there is actual knowledge, say through 

participation in a venture, you’re conspiring with somebody, you know they posted an ad, 

you know the person involved is underage, that’s a prosecutable crime, Your Honor.”).

Model Instruction 4.8 “Knowingly—Defined” should be given.

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UNITED STATES’ PROPOSED INSTRUCTION 

4.9 DELIBERATE IGNORANCE

You may find that the defendant acted knowingly if you find beyond a reasonable 

doubt that:

First, the defendant was aware of a high probability that the vast majority of the 

“adult” and “escort” ads appearing on Backpage.com were actually ads for prostitution, 

and

Second, the defendant deliberately avoided learning the truth.

You may not find such knowledge, however, if you find that the defendant actually 

believed that the vast majority of the “adult” and “escort” ads appearing on Backpage.com 

were not ads for prostitution, or if you find that the defendant was simply negligent, 

careless, or foolish. 

DEFENDANTS’ OBJECTION

The government’s proposed Jewell instruction, one that typically is used in drug 

smuggling cases, is inappropriate here. See Ninth Circuit Model Criminal Jury Instructions 

at 5.8 (providing the example of a defendant being aware of a high probability that “drugs 

were in the defendant’s automobile”); United States v. Jewell, 532 F.2d 697, 698 (9th Cir. 

1976) (involving drugs sealed in a secret compartment of a car). 

The Travel Act and money laundering charges are specific intent crimes; it would 

therefore be reversible error to provide a “Deliberate Ignorance” instruction to the jurors 

here. See Jewell, 532 F.2d at 700-701 (such an instruction is only appropriate where the 

underlying crime requires mere knowledge). See also United States v. Gibson Specialty 

Co., 507 F.2d 446, 449 (9th Cir. 1974) (evidence that would establish that manufacturers 

of gambling paraphernalia repeatedly sold punchboards and pulltabs to distributors in 

Montana, despite knowing that the mere possession of punchboards and pulltabs violated 

Montana’s gambling laws, was insufficient to establish a violation of the Travel Act, 

because the Travel Act is a specific intent crime, “intent to facilitate a criminal venture is 

expressly made part of the offense,” and, therefore, “the prosecutor must show that the 

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manufacturer in some significant manner associated himself with the purchaser’s criminal 

venture for the purpose of its advancement”). The Ninth Circuit expressly rejected the 

government’s contention that the “presumption that one intends the natural and probable 

consequences of his actions” was sufficient “to establish intent to facilitate criminal 

activity” because it was “as likely as not that a vendor similar to the defendants in this 

proceeding is totally indifferent to the actions of his purchaser.” Id. at 450 fn.8. See also

United States v. Gallo, 782 F.2d 1191, 1194 (4th Cir. 1986) (a “defendant is entitled to an 

instruction as to the elements of the offense charged” and “[o]ne element of a Travel Act 

violation is proof of specific intent to promote ‘unlawful activity.’”); United States v. 

James, 210 F.3d 1342, 1345 (11th Cir. 2000) (same); see Ninth Circuit Model Criminal 

Jury Instructions at 18.3 cmt. (“Because it is a specific intent crime, it is reversible error to 

give Instruction 4.8 (Knowingly–Defined) in a money laundering case.”) (citing United 

States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994). Cf. United States v. Turman, 122 F.3d 

1167, 1169 (9th Cir. 1997)). 

Further, such an instruction is only appropriate “if the jury rejects the government’s 

case as to actual knowledge.” United States v. Heredia, 483 F.3d 913, 922 (9th Cir. 2007) 

(“In deciding whether to give a willful blindness instruction, in addition to an actual 

knowledge instruction, the district court must determine whether the jury could rationally 

find willful blindness even though it has rejected the government's evidence of actual 

knowledge. If so, the court may also give a Jewell instruction.”). And “[e]ven if the factual 

predicates of the instruction are present, the district judge has discretion to refuse it.” Id.

Further, even if such an instruction were appropriate, whether a given defendant 

“was aware of a high probability that the vast majority of the ‘adult’ and ‘escort’ ads 

appearing on Backpage.com were actually ads for prostitution” is not a substitute for the 

government having to prove beyond a reasonable doubt that each defendant specifically 

intended to facilitate the prostitution offenses committed by the particular business 

enterprise associated with one or more of the fifty advertisements at issue in Counts 2-51 

through publishing the ad(s). See United States v. Lacey, et al. (D. Ariz.), Case No. 18-

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CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order denying motion to dismiss) 

(“[Defendants] were not indicted for facilitating the amorphous notion of ‘prostitution.’ 

They were indicted for facilitating (via publishing ads) on fifty distinct occasions where 

prostitutes, prostitution-related businesses, or other groups were involved in the business 

of prostitution.”); see United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-

PHX-SMB, Transcript of December 4, 2020 Hearing (“And I think one of the key things 

in my reason for denying the recusal is that this case is not about Backpage. Backpage was 

prosecuted in a separate case, entered a plea in a separate case. This case is about these 

individual defendants and whether they had specific knowledge of these ads as facilitating 

illegal activity.”). Willful blindness therefore cannot meet the elements of the offenses.

Additionally, even if a Jewell instruction was appropriate in this case, the 

government’s proposed instruction ignores the language of Jewell restricting the 

instruction to circumstances where a defendant’s ignorance “was solely and entirely a 

result of . . . a conscious purpose to avoid learning the truth.” United States v. Jewell, 532 

F.2d 697, 704 (9th Cir. 1976).

Finally, the government’s proposed Jewell instruction also is inconsistent with the 

First Amendment. The government’s proposed instruction would suggest to the jury that 

the government can prosecute the publisher of speech that is presumptively protected by 

the First Amendment because the speech looked like it might be associated with unlawful 

activity or because various parties claim that it was associated with unlawful activity. The 

government, in effect, claims that it can do indirectly through the Travel Act what three 

federal courts previously have held that the government cannot do directly—criminalize 

the publication of third-party speech because it looks like speech associated with criminal 

activity. Backpage.com, LLC v. Hoffman, Case No. 13–cv–03952 (DMC)(JAD),

2013 WL 4502097 (D.N.J. Aug. 20, 2013) (striking down, under First Amendment, state 

statute criminalizing advertisements “that would appear to a reasonable person to be for 

the purpose of engaging in what would be a commercial sex act...with a minor” and 

rejecting state’s claim that the statute “regulates illegal advertisements...not protected by 

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the First Amendment” because, among other things, “[d]escribing criminal conduct as 

anything that is ‘implicit’ is inherently vague, because it means ‘[n]ot directly expressed 

[and] existing [only] inferentially’ and ‘fails to clearly mark the boundary between what is 

permissible and impermissible’”); Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805 

(M.D. Tenn. 2013) (striking down, under First Amendment, state statute criminalizing 

advertisements “that would appear to a reasonable person to be for the purpose of engaging 

in what would be a commercial sex act...with a minor” and rejecting state’s claim that the 

statute did not “not implicate First Amendment scrutiny because it criminalize[d] only 

offers to engage in illegal transactions” because, among other things, “the statute as written 

does not ‘criminalize only offers to engage in illegal transactions’ because—as discussed 

above—the statute’s potential reach extends to notices related to legal, consensual activity 

by adults”); Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1268, 1277 (W.D. Wash. 

2012) (striking down, under First Amendment, state statute criminalizing “‘directly or 

indirectly’ caus[ing] content to be published, disseminated or displayed if it contains a 

‘depiction of a minor’ and any ‘explicit or implicit offer’ of sex for ‘something of value’”

because, among other things, the statute was unconstitutionally vague: “‘[A] speaker may 

not be put at complete peril in distinguishing between protected and unprotected speech. 

Otherwise, he could only be certain of avoiding liability by holding his tongue, causing 

him ‘to make only statements which ‘steer far wide [ ] of the unlawful zone.’’). 

The Court should not permit the government to suggest to the jury either that 

defendants had an obligation to stop publishing facially lawful third-party speech on 

Backpage.com because some of that speech might be associated with unlawful activity or 

that the jury can find that defendants intended to violate the law because Backpage.com 

did not stop publishing speech presumptively protected by the First Amendment. Greater 

Philadelphia Chamber of Com. v. City of Philadelphia, 949 F.3d 116, 142 & fn.170 (3d 

Cir. 2020) (rejecting city’s argument that speech “concern[ed] unlawful activity” where 

the speech might relate to unlawful activity because “commercial speech should not lose 

the protection of the First Amendment simply because a legislature has prohibited one of 

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many uses of the regulated speech,” unlike restricting “advertising of the sale of cocaine, 

for example, [which] would present a speech restriction that always and only related to 

illegal activity because there are no other legal uses/purposes behind the sale of cocaine”) 

(emphasis in original); IMDB.com Inc. v. Bacerra, 962 F.3d 1111, 1123 (9th Cir. 2020) 

(“Pittsburgh Pressimplicates only those instances when the state restricts speech that itself 

proposes an illegal transaction...SAG’s interpretation of Pittsburgh Press would require 

this court to permit the restriction not only of speech that proposes an illegal activity but 

also facially inoffensive speech that a third-party might use to facilitate its own illegal 

conduct. But as the Supreme Court has noted, ‘it would be quite remarkable to hold that 

speech by a law-abiding possessor of information can be suppressed in order to deter

conduct by a non-law-abiding third party.’ Bartnicki v. Vopper, 532 U.S. 514, 529–30, 121

S.Ct. 1753, 149 L.Ed.2d 787 (2001)...Rather than restrict truthful speech, the typical 

‘method of deterring unlawful conduct is to impose an appropriate punishment on the

person who engages in it.’ Bartnicki, 532 U.S. at 529, 121 S.Ct. 1753.”) (emphasis added); 

Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F3d 104, 

114 (2d Cir. 2017) (“[T]he First Amendment offers no protection to speech that proposes 

a commercial transaction if consummation of that transaction would necessarily constitute 

an illegal act. However, if, as here, there are plausible ways to complete a proposed 

transaction lawfully, speech proposing that transaction ‘concerns lawful activity’ and is 

therefore protected commercial speech.”) (emphasis in original); Valle Del Sol Inc. v. 

Whiting, 709 F3d 808, 822 (9th Cir. 2013) (“Central Hudson’s legality requirement [] has 

traditionally focused on the content of affected speech—i.e., whether the speech proposes 

an illegal transaction—instead of whether the speech is associated with unlawful activity.”) 

(emphasis added)); Metro Lights, L.L.C. v. City of Los Angeles, 551 F.3d 898, 904 fn.7 (9th

Cir. 2009) (“Central Hudson asks if the commercial speech is ‘related to unlawful activity.’ 

Thus, in the context of advertising, one must ask whether the goods or services the party 

advertises are illegal.”) (emphasis added, citation omitted); Pruett v. Harris Cty. Bail Bond 

Bd., 499 F.3d 403, 414 (5th Cir. 2007) (the “threshold inquiry” asks whether “the product 

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or service spoken about is illegal,” not whether a commercial solicitation might lead to a 

violation of the law); Eimann v. Soldier of Fortune Mag., Inc., 880 F.2d 830, 837-38 (5th 

Cir. 1989) (publishers are not required to reject “any suspicious, ambiguous ad that might 

cause serious harm,” because “in the constitutional arena we have noted that the possibility 

of illegal results does not necessarily strip an ad of its commercial speech protection”); 

Dunagin v. City of Oxford, 718 F.2d 738, 743 (5th Cir. 1983) (en banc) (“The commercial 

speech doctrine would disappear if its protection ceased whenever the advertised product 

might be used illegally.”); Art & Antique Dealers League of Am., Inc. v. Seggos, 394 F. 

Supp. 3d 447, 459 (S.D.N.Y. 2019) (“Although the First Amendment does not protect 

speech proposing a transaction that ‘necessarily constitute[s] an illegal act,’ if ‘there are 

plausible ways to complete a proposed transaction lawfully, speech proposing that 

transaction ‘concerns lawful activity’ and is therefore protected commercial speech.’”); 

Centro De La Comunidad Hispana De Locust Valley v. Town of Oyster Bay, 128 F. Supp. 

3d 597, 615 (E.D.N.Y. 2015) (“When the legality of a proposed commercial transaction 

depends on circumstances outside the content of the speech, the activity is lawful and the 

speech is entitled to protection under Central Hudson.”), aff’d, 868 F.3d 104 (2d Cir. 2017).

UNITED STATES’ RESPONSE

Defendants are wrong that a Jewell instruction can’t be given when the alleged 

crimes require specific intent. As the Ninth Circuit recently recognized:

We have repeatedly held that a Jewell instruction is proper in specific-intent 

cases (including conspiracy cases). See United States v. Ramos-Atondo, 732 

F.3d 1113, 1120 (9th Cir. 2013) (rejecting appellants’ argument that “it is 

impossible to conspire to be deliberately ignorant” and holding that “the 

Jewell standard eliminates the need to establish such positive knowledge to 

obtain a conspiracy conviction”); United States v. Heredia, 483 F.3d 913, 

922 & n.13 (9th Cir. 2007) (en banc) (approving of Jewell instruction in 

possession-with-intent-to-distribute prosecution, and observing that “willful 

blindness is tantamount to knowledge”); United States v. Nosal, 844 F.3d 

1024, 1039–40 (9th Cir. 2016) (approving Jewell instruction in aiding-andabetting case).... [T]he district court did not err in instructing the jury.

United States v. Asefi, 788 F. App’x 449, 452 (9th Cir. 2019). 

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The “theory of deliberate ignorance need not be exclusive, it may be an argument 

alternative to actual knowledge.” Ramos-Atondo, 732 F.3d 1113, 1120. The instruction 

does not “risk[] lessening the state of mind that a jury must find” and is appropriately given 

when a jury could rationally find willful blindness. Heredia, 483 F.3d at 922 & 924.

Defendants’ comment that the charges are based on “presumptively protected and 

lawful speech” is misplaced in this case, which concerns prostitution advertising (a form 

of commercial speech that is categorically excluded from First Amendment protection), as 

more fully explained in the United States’ objections to Defendants’ case-specific 

instructions in Part IV, infra. The SI clearly alleges that Defendants had ample notice that 

prostitution advertising was rampant on Backpage, and that Defendants took numerous 

steps to expand and capitalize on Backpage’s role as the internet’s primary source of 

prostitution advertising.

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DEFENDANTS’ PROPOSED INSTRUCTION

4.11 ADVICE OF COUNSEL

One element that the government must prove beyond a reasonable doubt is that each 

defendant had the unlawful intent to violate the Travel Act by promoting or facilitating 

prostitution offenses committed by a particular business enterprise in violation of the laws 

of the State in which they were committed. Evidence that a defendant in good faith 

followed the advice of counsel would be inconsistent with such an unlawful intent. 

Unlawful intent has not been proved if a defendant, before acting, made full disclosure of 

all material facts to an attorney, received the attorney’s advice as to the specific course of 

conduct that was followed, and reasonably followed the attorney’s recommended course 

of conduct or advice in good faith.

Supporting Authorities

Ninth Circuit Manual of Model Criminal Jury Instructions 4.11. See United States 

v. Ibarra-Alcarez, 830 F.2d 968, 973 (9th Cir. 1987) (defendant entitled to an advice of 

counsel instruction if it has some foundation in the evidence); United States v. DeFries, 

129 F.3d 1293, 1296 (D.C. Cir. 1997) (holding instruction required when there is even 

minimal foundation in the evidence, and defense applies to advice given about how to 

implement a business plan in a legally acceptable manner).

UNITED STATES’ OBJECTIONS

Defendants aren’t entitled to an advice of counsel defense. As the United States 

articulated in its recent motion (Doc. 1599), there are certain prerequisites that Defendants 

need to establish before an advice of counsel defense may be invoked. Id. at 3 (citing 

United States v. Holmes, No. 5:18-CR-00258-EJD-1, 2021 WL 2044470, at *51 (N.D. Cal. 

May 22, 2021). The most critical piece of an advice of counsel defense is demonstrating 

that the defendants told their attorneys all relevant and material facts. Defendants agree 

with this point. Doc. 1250 at 10. Defendants have failed to do so. To establish this point, 

Defendants need to waive the privilege. Holmes, 2021 WL 2044470, at *51. They haven’t. 

And at this point, more than five years after the case has been charged, they should be 

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precluded from doing so. To permit Defendants to waive the privilege now, would lead to 

a voluminous disclosure that would either (a) unfairly prejudice the United States, or (b) 

have the effect of delaying trial while the United States (and potentially the Court)

reviewed the communications to determine if Defendants told their attorneys all relevant 

and material facts. 

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DEFENDANTS’ PROPOSED INSTRUCTION

5.12 MERE PRESENCE

Mere presence at the scene of a crime or mere knowledge that a crime is being 

committed is not sufficient to establish that a defendant committed the crime of violating 

the Travel Act by promoting, or facilitating the promotion of, prostitution offenses 

committed by a particular business enterprise in violation of the laws of the State in which 

they were committed or the crime of money laundering. The defendant must be a 

participant and not merely a knowing spectator. If a defendant was present, that 

defendant’s presence may be considered by the jury along with other evidence in the case.

Supporting Authorities

Ninth Circuit Manual of Model Criminal Jury Instructions 5.12, 18.1 (modified to 

reflect charges); Woodhull Freedom Foundation v. United States, 334 F. Supp. 3d 185, 

199-201 (D.D.C. 2018), rev’d. 948 F.3d 363 (D.C. Cir. 2020); see United States v. Lacey, 

et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order denying 

motion to dismiss) (“[Defendants] were not indicted for facilitating the amorphous notion 

of ‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.”); see United States v. Lacey, et al. (D. Ariz.), Case No. 18-

CR-00422-PHX-SMB, Transcript of December 4, 2020 Hearing (“And I think one of the 

key things in my reason for denying the recusal is that this case is not about Backpage. 

Backpage was prosecuted in a separate case, entered a plea in a separate case. This case is 

about these individual defendants and whether they had specific knowledge of these ads as 

facilitating illegal activity.”). 

UNITED STATES’ OBJECTIONS

The Comment to this Model Criminal Jury Instruction demonstrates why this 

instruction is unnecessary for this case. “Such a ‘mere presence’ instruction is unnecessary 

if the government’s case is not solely based on the defendant’s presence and the jury has 

been instructed on the elements of the crime.” See United States v. Tucker, 641 F.3d 1110, 

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1123 (9th Cir. 2011); see also United States v. Gooch, 506 F.3d 1156, 1160 (9th Cir. 2007). 

The evidence at trial will demonstrate that each defendant was more than “merely present” 

for the alleged crimes. See United States v. Howell, 231 F.3d 615, 629 (9th Cir. 2000). 

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UNITED STATES’ PROPOSED 6.2 INSTRUCTION

CHARGE AGAINST DEFENDANT NOT EVIDENCE—

PRESUMPTION OF INNOCENCE—BURDEN OF PROOF

DEFENDANTS’ OBJECTION

“The principle that there is a presumption of innocence in favor of the accused is 

the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of 

the administration of our criminal law.” Coffin v. United States, 156 U.S. 432, 453 (1895). 

The government’s proposed instruction fails to capture the intricacy of this matter. The 

Superseding Indictment is 92 pages long and contains 100 counts. Doc. 230. Given the 

complexity of this matter, the jury may be likely to ascribe undue weight to the indictment, 

or get confused as to the burden of proof of each party. 

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DEFENDANTS’ PROPOSED INSTRUCTION

6.2 CHARGE AGAINST DEFENDANT NOT EVIDENCE—

PRESUMPTION OF INNOCENCE—BURDEN OF PROOF

You must presume each defendant to be innocent of the crimes charged. The 

indictment is not evidence. Each defendant has pleaded not guilty to the charges. Each 

defendant is presumed to be innocent unless the government proves him or her guilty 

beyond a reasonable doubt. The defendants do not have to testify or present any evidence. 

The defendants do not have to prove innocence. Thus, each defendant, although accused 

of crimes in the indictment, begins the trial with a “clean slate”—with no evidence against 

him or her. 

The indictment, as you already know, is not evidence of any kind. The defendants 

are, of course, not on trial for any act or crime not contained in the indictment. The law 

permits nothing but legal evidence presented before the jury in court to be considered in

support of any charge against a defendant. The presumption of innocence alone, therefore, 

is sufficient to acquit each defendant.

The government has the burden of proving every element of each charge beyond a 

reasonable doubt for each defendant. The burden is always upon the prosecution to prove 

guilt beyond a reasonable doubt. This burden never shifts to a defendant for the law never 

imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or 

producing any evidence. The defendant is not even obligated to produce any evidence by 

cross-examining the witnesses for the government.

Supporting Authorities

Ninth Circuit Manual of Model Criminal Jury Instructions 6.2; 1A Fed. Jury Prac.

& Instr. § 12:10 (6th ed.), 1A Fed. Jury Prac. & Instr. § 12:10 (6th ed.).

UNITED STATES’ OBJECTIONS

Defendants propose an alternative 6.2 Instruction. The United States believes the 

Model Instruction is sufficient.

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UNITED STATES’ PROPOSED 6.5 INSTRUCTION

REASONABLE DOUBT—DEFINED 

DEFENDANTS’ OBJECTION

The government’s proposed instruction omits critical information: if the jury finds 

that the evidence could reasonably support either a guilty verdict or innocent verdict, the 

jury must return a verdict of innocent. A jury must be instructed “as to their duty in the 

event they conclude[] that the evidence reasonably permit[s] a finding of either guilt or 

innocence.” U.S. v. James, 576 F.2d 223, 227 (9th Cir. 1978) (approving a reasonable 

doubt jury instruction that included language similar to defendants’ proposed instruction). 

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DEFENDANTS’ PROPOSED INSTRUCTION

6.5 REASONABLE DOUBT—DEFINED 

Proof beyond a reasonable doubt is proof that leaves you firmly convinced a 

defendant is guilty. It is not required that the government prove guilt beyond all possible 

doubt.

A reasonable doubt is a doubt based upon reason and common sense—the kind of

doubt that would make a reasonable person hesitate to act—and is not based purely on 

speculation. It may arise from a careful and impartial consideration of all the evidence, or 

from lack of evidence.

Unless the government proves, beyond a reasonable doubt, that a defendant has 

committed each and every element of the offenses charged in the indictment, and that a 

defendant acted with criminal intent and lacked good faith, you must find that defendant 

not guilty of the offenses. If you view the evidence in the case as reasonably permitting 

either of two conclusions—one of innocence, the other of guilt—the jury must, of course, 

adopt the conclusion of innocence.

Supporting Authorities

Ninth Circuit Manual of Model Criminal Jury Instructions 6.5; 1A Fed. Jury Prac.

& Instr. § 12:10 (6th ed.), 1A Fed. Jury Prac. & Instr. § 12:10 (6th ed.).

UNITED STATES’ OBJECTIONS

Defendants propose an alternative 6.5 Instruction that provides additional language 

beyond the Model Instruction. This added language to the instruction is unnecessary based 

on the additional instructions the Court will provide on the elements of the charged crimes. 

The Model Instruction is appropriate. 

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UNITED STATES’ PROPOSED 6.13 INSTRUCTION

SEPARATE CONSIDERATION OF MULTIPLE COUNTS—MULTIPLE 

DEFENDANTS

DEFENDANTS’ OBJECTION

Defendants object for the same reasons as set forth in their objection to the 

government’s proposed instruction 6.2.

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DEFENDANTS’ PROPOSED INSTRUCTION

6.13 SEPARATE CONSIDERATION OF MULTIPLE COUNTS—MULTIPLE 

DEFENDANTS

A separate crime is charged against one or more of the defendants in each count. 

The charges have been joined for trial. You must decide the case of each defendant on each 

crime charged against that defendant separately. Your verdict on any count as to any 

defendant should not control your verdict on any other count or as to any other defendant.

All the instructions apply to each defendant and to each count unless a specific 

instruction states that it applies only to a specific defendant or count.

Only the defendants are on trial. Backpage.com is not on trial. You must evaluate 

the evidence as to each individual defendant, not as to Backpage.com or any other person. 

Supporting Authorities

Ninth Circuit Manual of Model Criminal Jury Instructions 6.13; see United States 

v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order 

denying motion to dismiss) (“[Defendants] were not indicted for facilitating the amorphous 

notion of ‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty 

distinct occasions where prostitutes, prostitution-related businesses, or other groups were 

involved in the business of prostitution.”); see United States v. Lacey, et al. (D. Ariz.), Case 

No. 18-CR-00422-PHX-SMB, Transcript of December 4, 2020 Hearing (“And I think one 

of the key things in my reason for denying the recusal is that this case is not about 

Backpage. Backpage was prosecuted in a separate case, entered a plea in a separate case. 

This case is about these individual defendants and whether they had specific knowledge of 

these ads as facilitating illegal activity.”).

UNITED STATES’ OBJECTIONS

Defendants propose the same 6.13 instruction as the United States, but add an extra 

paragraph at the end. The United States objects for the same reasons set forth in its 

objection to Defendants’ proposed instruction 1.13. 

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UNITED STATES’ PROPOSED INSTRUCTION 

11.1 CONSPIRACY—ELEMENTS

The defendants are charged in Count 1 of the indictment with conspiring to violate 

the Travel Act in violation of Section 1952(a)(3)(A) of Title 18 of the United States Code. 

In order for each defendant to be found guilty of that charge, the United States must prove 

each of the following elements beyond a reasonable doubt:

First, beginning in or around 2004, and ending on or about April 2018, there was an 

agreement between two or more persons to commit at least one Travel Act crime as charged 

in the indictment, namely promoting or facilitating the promotion of any business 

enterprise involving prostitution offenses in violation of 18 U.S.C. § 1952(a)(3)(A) and 

§ 1952(b)(i)(1); 

Second, the defendant became a member of the conspiracy knowing of at least one 

of its objects and intending to help accomplish it; and

Third, one of the members of the conspiracy performed at least one overt act on or 

after March 28, 2013, for the purpose of carrying out the conspiracy.

A conspiracy is a kind of criminal partnership—an agreement of two or more 

persons to commit one or more crimes. The crime of conspiracy is the agreement to do 

something unlawful; it does not matter whether the crime agreed upon was committed.

For a conspiracy to have existed, it is not necessary that the conspirators made a 

formal agreement or that they agreed on every detail of the conspiracy. It is not enough, 

however, that they simply met, discussed matters of common interest, acted in similar 

ways, or perhaps helped one another. You must find that there was a plan to commit at 

least one of the crimes alleged in the indictment as an object of the conspiracy with all of 

you agreeing as to the particular crime, i.e., Travel Act violations, which the conspirators 

agreed to commit.

 One becomes a member of a conspiracy by willfully participating in the unlawful 

plan with the intent to advance or further some object or purpose of the conspiracy, even 

though the person does not have full knowledge of all the details of the conspiracy. 

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Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the 

originators. On the other hand, one who has no knowledge of a conspiracy, but happens to 

act in a way which furthers some object or purpose of the conspiracy, does not thereby 

become a conspirator. Similarly, a person does not become a conspirator merely by 

associating with one or more persons who are conspirators, nor merely by knowing that a 

conspiracy exists.

An overt act does not itself have to be unlawful. A lawful act may be an element of 

a conspiracy if it was done for the purpose of carrying out the conspiracy. The United States

is not required to prove that the defendant personally did one of the overt acts.

DEFENDANTS’ OBJECTION

The government’s instruction misstates the relevant dates. Here, “[Defendants] 

were not indicted for facilitating the amorphous notion of ‘prostitution.’ They were 

indicted for facilitating (via publishing ads) on fifty distinct occasions where prostitutes, 

prostitution-related businesses, or other groups were involved in the business of 

prostitution.” Doc. 946 at 13. Accordingly, the earliest date which the government may 

allege a conspiracy to commit a violation of the Travel Act is September 2013—the date 

the oldest charged ad was posted. SI ¶ 201. 

Moreover, the government’s proposed instruction misstates or fails to capture the 

nuance of the charges at issue. 

First, the government omits the word “illegal” before “objects” in the second 

element. But mere association with members of a conspiracy, “without an intention and 

agreement to accomplish a specific illegal objective, is not sufficient to make one a 

conspirator.” United States v. Hubbard, 96 F.3d 1223, 1226 (9th Cir. 1996) (citing United 

States v. Melchor–Lopez, 627 F.2d 886, 891 (9th Cir. 1980)). Given that indictment says 

“the object of the conspiracy was to obtain money” (Doc. 230, ¶ 197)—a patently lawful

object—it is critical that the jury understand that the object of a conspiracy must be 

unlawful. 

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Second, the government omits the specific intent required to commit a violation of 

the Travel Act. To prove its conspiracy charge, the government must prove the “requisite 

intent for the substantive crime.” United States v. Kaplan, 836 F.3d 1199, 1212 (9th Cir. 

2016). And violation of the Travel Act is a specific intent crime. See Doc. 946 at 14 (the 

government must allege that Defendants had the “specific intent to promote, manage, 

establish, carry on or facilitate one of the prohibited activities”) (quoting United States v. 

Gibson Specialty Co., 507 F.2d 446, 449 (9th Cir. 1974) (evidence that would establish 

that manufacturers of gambling paraphernalia repeatedly sold punchboards and pulltabs to 

distributors in Montana, despite knowing that the mere possession of punchboards and 

pulltabs violated Montana’s gambling laws, was insufficient to establish a violation of the 

Travel Act, because the Travel Act is a specific intent crime, “intent to facilitate a criminal 

venture is expressly made part of the offense,” and, therefore, “the prosecutor must show 

that the manufacturer in some significant manner associated himself with the purchaser’s 

criminal venture for the purpose of its advancement”)).

Third, the government’s proposed instruction fails to adequately instruct the jury on 

the requirement that the “existence of a state law violation is an element of the violation of 

the Travel Act.” Hiatt, 527 F.2d at 1049, 1051. To “conspire or agree to” facilitate the 

prostitution offenses of a business enterprise – the Travel Act offense defendants are 

alleged to have conspired to commit—there must be proof of “the occurrence of the 

underlying crime” as “an essential element.” United States v. Superior Growers Supply, 

Inc., 982 F.2d 173, 178-80 (6th Cir. 1992). Without the underlying crime, a conspiracy to 

facilitate that crime is merely a conspiracy to facilitate (or “aid and abet”) a “‘possibility,’ 

or a ‘criminal wish’[,] which simply isn’t a crime.” Id. at 178.

Finally, the instruction fails to include unanimity instructions—an invitation for the 

Court to err. “When the evidence [may] establish multiple conspiracies, failure to give a 

specific unanimity instruction may be plain error.” Ninth Cir. Manual of Model Crim. J. 

Instr. 11.1 cmt.; see also Ninth Cir. Manual of Model Crim. J. Instr. 6.27 cmt; United 

States v. Lapier, 796 F.3d 1090 (9th Cir. 2015) (failure to give specific unanimity 

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instruction was plain error because half of jury could have found defendant guilty of joining 

one conspiracy while the other half of jury could have found defendant guilty of joining 

second conspiracy).

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DEFENDANTS’ PROPOSED INSTRUCTION

11.1 CONSPIRACY—ELEMENTS

(Conspiracy to Violate the Travel Act – Elements)

The defendants are charged in Count 1 of the indictment with conspiring to violate 

the Travel Act in violation of Section 1952(a)(3)(A) of Title 18 of the United States Code. 

For a defendant to be found guilty of that charge, the government must prove each of the 

following elements beyond a reasonable doubt for that defendant:

First, beginning in or around 2013, and ending in April 2018, a particular business 

enterprise committed a prostitution offense in violation of the laws of the State in which 

they were committed, as charged in Count 1 of the indictment;

Second, that defendant became a member of the conspiracy knowing of at least one 

of its illegal objects and with the specific intent of helping facilitate the prostitution 

offenses committed by a particular business enterprise in violation of the laws of the State 

in which they were committed; 

Third, that a member of the conspiracy knew that a particular business enterprise 

committed prostitution offenses in violation of the laws of the State in which they were 

committed, and 

Fourth, one of the members of the conspiracy performed at least one overt act on or 

after September 10, 2013, for the purpose of carrying out the conspiracy. Without at least 

one defendant’s overt act to specifically promote, or facilitate the promotion of, prostitution 

offenses committed by a particular business enterprise in violation of the laws of the State 

in which they were committed, you cannot find a conspiracy.

What Is a Conspiracy, and How Does One Become a Member?

A conspiracy is a kind of criminal partnership—an agreement of two or more 

persons to commit one or more crimes. 

For a conspiracy to have existed, it is not necessary that the conspirators made a 

formal agreement or that they agreed on every detail of the conspiracy. It is not enough, 

however, that they simply met, discussed matters of common interest, acted in similar 

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ways, or perhaps helped one another. You must find that there was a plan to commit at 

least one of the crimes alleged in the indictment as an illegal object of the conspiracy with 

all of you agreeing as to the particular crime, i.e., the publication of a specific ad in 

violation of the Travel Act, which the conspirators agreed to commit.

One becomes a member of a conspiracy by willfully participating in the unlawful 

plan with the intent to advance or further some illegal object or purpose of the conspiracy, 

even though the person does not have full knowledge of all the details of the conspiracy. 

Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the 

originators. On the other hand, one who has no knowledge of a conspiracy, but happens to 

act in a way which furthers some illegal object or purpose of the conspiracy, does not 

thereby become a conspirator. Similarly, a person does not become a conspirator merely 

by associating with one or more persons who are conspirators, nor merely by knowing that 

a conspiracy exists. To become a co-conspirator, a person must have an intention and 

agreement to accomplish the same, specific criminal objective as his or her co-conspirators.

An overt act does not itself have to be unlawful. A lawful act may be an element of 

a conspiracy if it was done for the purpose of carrying out the unlawful conspiracy. The 

government is not required to prove that a Defendant personally did one of the overt acts.

Proof of an underlying substantive crime does not, without more, prove the 

existence of a conspiracy to commit that crime. 

What Is “Travel Act—Facilitate Prostitution”?

The elements of the Travel Act are not satisfied if a defendant merely did an act that 

promoted, or facilitated the promotion of, prostitution offenses committed by a particular 

business enterprise. The elements are not satisfied unless a defendant specifically intended 

his or her act to facilitate the prostitution offenses committed by a particular business 

enterprise.

The government cannot meet its burden to prove that a defendant had the specific 

intent to participate in and further the prostitution offenses committed by a particular 

business enterprise associated with the ad by proving:

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• the defendant learned, after an ad had run advertised on Backpage.com, that 

the ad had been associated with prostitution offenses (or learned after the fact 

that many past ads on Backpage.com had been associated with prostitution 

offenses);

• the defendant knew, in the abstract, that some ads that third parties posted on 

Backpage.com might facilitate, or did facilitate, prostitution;

• the defendant was indifferent to the actions of the purchasers of classified 

ads on Backpage.com; or

• the defendant knew that a particular advertiser might, at times, engage in 

prostitution offenses unless the defendant in a significant manner associated 

himself or herself with the particular business enterprise associated with the 

advertiser.

Rather, to satisfy the specific intent requirements of the Travel Act, the government 

must prove beyond a reasonable doubt, for each Count, that each defendant in some 

significant manner associated himself or herself with a particular business enterprise 

associated with the ad charged in that Count with the intent to promote, or facilitate the 

promotion of, the prostitution offenses committed by that business enterprise. As such, to 

find a defendant guilty of conspiring to violate the Travel Act, you must find that the 

government proved beyond a reasonable doubt that the defendant joined a conspiracy with 

the specific intent to associate himself or herself with a particular criminal venture for the 

purpose of advancing its prostitution offenses. A defendant cannot intend to promote or 

facilitate a business enterprise he or she does not know exists.

Unanimity Requirements

For a defendant to be found guilty of Count 1 (Conspiracy to Violate the Travel 

Act), you must find beyond a reasonable doubt that the defendant joined in a plan to commit 

at least one illegal object of the alleged conspiracy – specifically intending to promote, or 

facilitate the promotion of, prostitution offenses committed by a particular business 

enterprise upon which you all agree.

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Supporting Authorities

Ninth Circuit Manual of Model Criminal Jury Instructions 6.27, 11.1, 18.1; Barry 

Tarlow, Defense of a Federal Conspiracy Prosecution, 4 J.Crim.Defense 183, 201-02 

(1978) (explaining that the object of the conspiracy must be unlawful); United States v. 

Lennick, 18 F.3d 814, 819 (9th Cir. 1994) (“Proof of the underlying substantive crime, 

however, does not, without more, prove the existence of a conspiracy.”); United States v. 

Lapier, 796 F.3d 1090 (9th Cir. 2015) (failure to give specific unanimity instruction was 

plain error because half of jury could have found defendant guilty of joining one conspiracy

while other half of jury could have found defendant guilty of joining second conspiracy); 

United States v. Pomponio, 429 U.S. 10, 12 (1976) (willfulness is the “intentional violation 

of a known legal duty”).

The second element in the requested instruction is required because a conspiracy to 

violate the Travel Act requires proof of specific intent to commit the substantive violation. 

In Woodhull Freedom Foundation v. United States, the government argued that for 

prosecutions under the Travel Act, the prosecutor must prove “not simply that the 

defendant was aware of a potential result of the criminal offense, but instead that the 

defendant intended to ‘explicitly further[]’ a specified unlawful act.” 334 F. Supp. 3d 185, 

199-201 (D.D.C. 2018), rev’d. 948 F.3d 363 (D.C. Cir. 2020). The court agreed with the 

government and held that the law applies only to “specific unlawful acts with respect to a 

particular individual, not the broad subject-matter of prostitution.” Id.

The government’s position in Woodhull (in contrast to its position in this case) is 

consistent with controlling law in the Ninth Circuit. See United States v. Hansen, 599 U.S. 

__, 2023WL4138994, at *6 (June 23, 2023) (confirming that when a federal criminal 

statute uses the word “facilitation,” it means “aiding and abetting” and explaining that the 

elements of facilitation as including proof (1) “that a wrongful act be carried out” and proof 

of (2) “an intent to bring about a particular unlawful act”). See also United States v. 

Encarnacion-Ruiz, 787 F.3d 581, 588 (1st Cir. 2015) (“Under Rosemond, to establish the 

mens rea required to aid and abet a crime, the government must prove that the defendant 

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participated with advance knowledge of the elements that constitute the charged 

offense. See 134 S.Ct. at 1248–49; see also id. (stating that an aider and abettor must have 

‘full awareness of [the crime’s] scope,’ ‘full knowledge of the circumstances constituting 

the charged offense,’ and ‘participate[ ] in a criminal scheme knowing its extent and 

character’)...”).

To prove a conspiracy charge, the government must prove the “requisite intent for 

the substantive crime.” United States v. Kaplan, 836 F.3d 1199, 1212 (9th Cir. 2016). See 

also United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 

946 at 13 (Order denying motion to dismiss) (“[Defendants] were not indicted for 

facilitating the amorphous notion of ‘prostitution.’ They were indicted for facilitating (via 

publishing ads) on fifty distinct occasions where prostitutes, prostitution-related 

businesses, or other groups were involved in the business of prostitution.”); see United 

States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Transcript of 

December 4, 2020 Hearing (“And I think one of the key things in my reason for denying 

the recusal is that this case is not about Backpage. Backpage was prosecuted in a separate 

case, entered a plea in a separate case. This case is about these individual defendants and 

whether they had specific knowledge of these ads as facilitating illegal activity.”).

United States v. James, 210 F.3d 1342, 1345 (11th Cir. 2000) (“The elements of a 

Travel Act charge are: 1) that the defendant traveled in interstate commerce on or about 

the time, and between the places, charged in the indictment; 2) that the defendant engaged 

in that travel with the specific intent to promote, manage, establish or carry on an unlawful 

activity, as defined; and 3) that the defendant thereafter knowingly and willfully committed 

an act to promote, manage, establish or carry on such unlawful activity.”); United States v. 

Hagmann, 950 F.2d 175, 182 (5th Cir. 1991) (“The essential elements of the Travel Act . . . 

are: (i) travel in interstate or foreign commerce, or use of the mail (or any facility) in 

interstate or foreign commerce; (ii) with the specific intent to promote, manage, establish, 

or carry on—or distribute the proceeds of—unlawful activity; and (iii) knowing and willful 

commission of an act in furtherance of that intent subsequent to the act of travel.”) 

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(emphasis in original); United States v. Echeverri-Jaramillo, 777 F.2d 933, 937 (4th Cir. 

1985) (“in order to prove such a violation, under 18 U.S.C. § 1952(a) it must be shown that 

1) the defendant traveled in interstate commerce on or about the time and between the 

places noted in the indictment; 2) that the defendant engaged in such travel with the specific 

intent to promote, manage, establish or carry on an unlawful activity and that 3) the 

defendant did thereafter knowingly and willfully commit an act to promote, manage, 

establish or carry on such an unlawful activity.”); United States v. Stagman, 446 F.2d 489, 

491 (6th Cir. 1971) (“the majority of the Courts of Appeals which have directly addressed 

this question . . . have stated that knowing and wilful [sic] intent to violate state laws is an 

element of the crime proscribed by the Travel Act”) (citing decisions of the 4th, 7th, 8th, 

and 9th Circuits).

The third element is required because a person may not be convicted of a conspiracy 

to facilitate a business enterprise’s prostitution offenses without knowledge that the 

business enterprise is committing the substantive offense. For two people to unlawfully 

“conspire or agree to assist” a third party in committing another offense, the conspirators 

“have to know” that the third party is committing the offense. “Otherwise, all [the 

conspirators] are agreeing to is to aid and abet a ‘possibility,’ or a ‘criminal wish[,]’ which 

simply isn’t a crime.” United States v. Superior Growers Supply, Inc., 982 F.2d 173, 178-

80 (6th Cir. 1992). In Superior Growers, the Sixth Circuit dismissed an indictment for 

conspiracy to aid and abet—i.e., to facilitate a third party’s offense—because the 

indictment did not allege “the occurrence of the underlying crime,” which “has to be an 

essential element of such a charge because otherwise the requisite knowledge and intent to 

further the substantive offense cannot exist.” Id. That is, a conspiracy to facilitate a 

hypothetical—as opposed to actual—offense is not a crime. 

This principal applies with full force to the charge here of conspiracy to violate the 

Travel Act by facilitating prostitution. As the government recently confirmed in the 

Woodhull litigation, Travel Act liability for “promoting” or “facilitating” a prostitution 

offense is “equivalent to” aiding and abetting liability. Br. of United States in Woodhull 

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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’”), available at Doc. 1557-1 at 45-46.

UNITED STATES’ OBJECTIONS

The Court previously approved the appropriate instruction for conspiracy. Doc. 

1311 at 3. That’s the law of the case and should be the instruction that’s given. Defendants, 

instead, propose a much lengthier conspiracy instruction that contains misstatements of the 

law and adds extra unnecessary elementsto the crime. The Court should provide the Model 

Instruction on conspiracy, which besides representing the law of the case, provides a much 

clearer explanation of the applicable law than Defendants’ proposed instruction. 

Here are some of the problems with Defendants’ proposed instruction.

- In the first element, Defendants limit the time of the conspiracy to 2013, when 

the Court has already ruled that the conspiracy began in 2004. Doc. 1311 at 3; 

Doc. 1444 at 7; see also SI ¶¶196, 203. That’s law of the case. 

- In the first element, Defendants insist that the United States must prove that “a 

particular business enterprise committed a prostitution offense[.]” But that isn’t 

an element of a Travel Act offense (see Part III, United States’ Proposed 

Instruction No. 1, infra), and it certainly isn’t required to prove conspiracy—an 

inchoate offense. See United States v. Castillo, 69 F.4th 648, 652 (9th Cir. 2023) 

(“Conspiracy is an inchoate offense that is separate and independent from the 

crime that is the subject of the conspiracy.”); United States v. Iribe, 564 F.3d 

1155, 1160 (9th Cir. 2009) (“Conspiracy to commit a crime is not equivalent to 

the completion of that crime.”). 

- Also, Defendants insist that a Travel Act violation must involve “promoting, or 

facilitating the promotion of, prostitution offenses committed by a particular 

business enterprise.” (emphasis added). The word “particular” is unnecessary 

and confusing. The statute states that “unlawful activity” under the Travel Act 

is defined as “any business enterprise involving . . . prostitution offenses in 

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violation of the laws of the State in which they are committed or of the United 

States.” 18 U.S.C. § 1952(b)(i)(1). This Court has recognized this fact 

previously: “Instead of alleging formal labels, what must be alleged for the 

‘unlawful activity’ element under Section 1952(b)(i) are allegations showing ‘a 

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

Doc. 1311 at 3-4. The Court also suggested that each ad is evidence of a business 

enterprise: “each ad identified [in the SI] carries an indicia of a commercial or 

business enterprise because each one invites multiple commercial transactions 

by soliciting the public to engage in prostitution.” Doc. 946 at 12, n.7 (citing 

Charles v. City of Los Angeles, 697 F.3d 1146, 1151 (9th Cir. 2012) (noting that 

advertisements “propose a commercial transaction”). Further, unlike 

Defendants’ proposed instruction, the United States’ instruction tracks the 

statutory definition of “unlawful activity.”

- In the second element, Defendants graft on a scienter requirement that doesn’t 

comport with the Model Instruction. The Model Instruction’s second element 

states that “the defendant became a member of the conspiracy knowing of at 

least one of its objects and intending to help accomplish it.” Defendants add the 

word “illegal,” which is redundant and not part of the Model Instruction. The 

first element in the Model Instruction states, in pertinent part, “there was an 

agreement between two or more persons to commit at least one crime as charged 

in the indictment,” while the second element makes clear the crime requires that 

“the defendant became a member of the conspiracy knowing of at least one of 

its objects and intending to help accomplish it.” The word “illegal” doesn’t

clarify any aspect of this crime and shouldn’t be part of the instruction. This is 

also law of the case. Doc. 1311 at 3.

- In the second element, Defendants also discuss a “specific intent” requirement 

that isn’t applicable—namely, “the specific intent of helping facilitate the 

prostitution offenses committed by a particular business enterprise. . . .” This 

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creates a brand new element, requiring that a member of the conspiracy knew 

that a particular business enterprise committed prostitution offenses. It’s 

inappropriate for at least three reasons. First, the Court has already ruled this 

instruction is inappropriate, so it’s the law of the case. Doc. 1311 at 3. Second, 

it’s not an element recognized by the Model Instruction. Third, the United States 

doesn’t need to prove that the prostitution offense was actually committed.

United States v. Polizzi, 500 F.2d 856, 876-77 (9th Cir. 1974) (Government does 

not need to prove that defendants had specific intent to violate the underlying 

state law, only “specific intent to facilitate an activity which the accused knew 

to be unlawful under state law.”); Doc. 1587 at 3 (“The Ninth Circuit has 

clarified that the Travel Act does not require the commission of the predicate 

offense; rather, only an attempt to promote the unlawful activity with a 

subsequent overt act in furtherance of that unlawful activity.”) (cleaned up). 

- Defendants’ second element also reads “promote” out of the Travel Act—“a 

result we typically try to avoid.” N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 941 

(2017). See also Williams v. Taylor, 529 U.S. 362, 404 (2000) (“[W]e must give 

effect, if possible, to every clause and word of a statute.”). The Travel Act 

criminalizes using any facility in interstate commerce “with intent to--. . . 

promote, . . . or facilitate the promotion, of . . . any business enterprise . . . 

involving prostitution offenses in violation of the laws of the State in which they 

are committed[.]” 18 U.S.C. § 1952(a)(3), (b)(i)(1). The Act uses the verbs 

“promote” and “facilitate” disjunctively—it requires intent to “promote,” or to 

“facilitate the promotion” of, businesses involved in the type of unlawful activity 

at issue (here, prostitution). Again, the Court has already ruled on this issue. 

Doc. 1311 at 3.

- For similar reasons, Defendants’ justification for including its second element 

doesn’t square with applicable case law. While it’s true the United States must 

demonstrate each Defendant acted with the requisite intent to prove the 

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conspiracy charge, that doesn’t support Defendants’ proposed element. The 

United States needs to demonstrate that each Defendant had specific intent to 

violate the Travel Act, i.e., to promote, manage, establish, carry on, or facilitate 

the promotion, management, establishment, or carrying on, of any business 

enterprise involving prostitution offenses. The Court has already recognized this 

fact and declined to follow Defendants’ proposed instruction. Doc. 1311 at 3. 

- The term “promote”—when used in the context of prostitution—is often 

associated with the act or offense of solicitation. See PANDERING, Black’s 

Law Dictionary (11th ed. 2019) (associating pandering with soliciting and 

“promoting prostitution”). It is also a key part of the definition of “advertising.”

ADVERTISING, Black’s Law Dictionary (11th ed. 2019) (advertising is “[t]he 

action of drawing the public’s attention to something to promote its sale”) 

(emphasis added). Defendants’ second element ignores this term. 

- Defendants’ instruction presses the notion that because the Travel Act includes 

the verb “facilitate,” the United States must prove all elements of a traditional 

aiding-and-abetting crime. But the elements of aiding-and-abetting do not neatly 

map onto the elements of a Travel Act (or Travel Act conspiracy) charge. For 

example, on Defendants’ view, the Travel Act creates a federal offense requiring 

proof of (1) a facilitator’s aiding-and-abetting of (2) another person’s promotion 

of (3) a separate business enterprise (4) involving state law prostitution offenses 

committed by someone. This is needlessly complex, and adds elements that the 

Act does not contain. For example, the Act requires proof of a subsequent act 

of promotion or facilitation—not proof of a completed separate crime (as 

traditional aiding and abetting requires). See United States’ Proposed Instruction 

No. 1, infra. 

- Defendants’ third element repeats most of these same errors.

- In Defendants’ fourth element, they again add language to the Model Instruction 

that is unnecessary. The final sentence in this element is redundant and restates 

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the language in the first element. Moreover, Defendants erroneously state that 

the overt act must be performed by one of the Defendants. Under established 

law, any person who is a member of the conspiracy—a category of persons not 

limited to Defendants—may perform the overt act. See Model Instruction 11.1. 

This fact is also law of the case. Doc. 1311 at 3. Finally, Defendants list the 

incorrect date and as the Court has already ruled, the appropriate date is March 

28, 2013. Id.; SI ¶¶196, 203. 

- The remainder of Defendants’ proposed instruction is not needed and contains 

Defendants’ arguments for why the jury should find them not guilty. (E.g., “[a] 

defendant cannot intend to promote or facilitate a business enterprise he or she 

does not know exists.”). Instructions are not the place for arguments.

- Defendants add a section titled “unanimity requirements” to their proposed 

instruction. A specific unanimity instruction may be required when there are 

multiple conspiracies at issue. See United States v. Echeverry, 719 F.2d 974, 

975 (9th Cir. 1983). Here, however, the United States has only alleged one 

conspiracy—conspiracy to violate 18 U.S.C. § 1952(a)(3)(A). Doc. 230 at 49. 

This instruction isn’t needed. 

- Defendants’ intent and knowledge assertions are further addressed in separate 

sections of these instructions that discuss these elements. 

Defendants’ reference to Woodhull Freedom Found. v. United States, No. 22-5105 

(D.C. Cir.), does not support the proposed instruction. Woodhull involves a facial 

challenge by sex worker advocacy groups to the Allow States and Victims to Fight Online 

Sex Trafficking Act of 2017 (FOSTA), which created a new federal offense for operating 

“an interactive computer service...with the intent to promote or facilitate the prostitution 

of another person.” 18 U.S.C. § 2421(A)(a) (emphasis added). The Court has repeatedly 

rejected Defendants’ Woodhull-based arguments, which “concern[ ] [a] different statute[],” 

“are not binding on this Court, not relevant to this prosecution, and, in any case, not 

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inconsistent with the Government’s current theory regarding the Travel Act.” Doc. 793 at 

17-18; see also Doc. 946 at 4-16; Doc. 1587 at 13-16.

Moreover, the Woodhull litigation largely involves whether pure speech or 

advocacy can count as “promot[ing] or facilitat[ing] the prostitution of another person” 

under 18 U.S.C. § 2421(A)(a). That issue is absent in this case, which involves prostitution 

solicitations—offers categorically excluded from First Amendment protection. Doc. 793 

at 14 (“Prostitution ads are ads for illegal transactions. . . . The First Amendment does not 

protect ‘offers to engage in illegal transactions.’”) (citations omitted). 

Moreover, the United States never argued in Woodhull that a violation of 

§ 2421(A)(a) requires establishing every element of a traditional claim for aiding-andabetting prostitution, including proof of a completed act of prostitution. Rather, the United 

States anchored its arguments in Judge Katsas’s concurrence from an earlier appeal in that 

case, which reversed the district court’s dismissal for lack of standing. Woodhull Freedom 

Found v. United States, 948 F.3d 363 (D.C. Cir. 2020). 

Addressing the disjunctive terms “promote or facilitate” in 18 U.S.C. § 2421A(a), 

Judge Katsas wrote that “in the criminal law, to ‘promote’ prostitution means to pander”—

an offense that covers “soliciting prospective customers” and that involves speech widely 

recognized as falling outside the First Amendment. Id. at 375. Judge Katsas then discussed 

that the statute’s other operative verb, “[f]acilitate,” may be taken as a synonym for terms 

like aid, abet, and assist, “limited by the background law of aiding and abetting.” Id. But

Judge Katsas clarified that “[t]his is not to suggest that FOSTA requires proof of a specific, 

completed act of prostitution, as would the offense of aiding and abetting prostitution.” Id.

(emphasis added). As Judge Katsas’s concurrence reflects, crimes like promoting or 

soliciting are “inchoate crimes—acts looking toward the commission of another crime.” 

United States v. Williams, 553 U.S. 285, 300 (2008). These inchoate crimes are unlawful 

whether or not the proposed illegal conduct ever occurs. Id.

Defendants’ instruction should not be given.

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DEFENDANTS’ PROPOSED INSTRUCTION

11.3 MULTIPLE CONSPIRACIES

(Count 1 – Multiple Conspiracies)

Count 1 of the indictment alleges a single conspiracy to commit a violation of the 

Travel Act by promoting, or facilitating the promotion of, prostitution offenses committed 

by a particular business enterprise in violation of the laws of the State in which they were 

committed. You must decide whether the single conspiracy to violate the Travel Act as 

charged in Count 1 of the indictment existed, and, if it did, who at least some of its members 

were. If you find that the single conspiracy to violate the Travel Act charged in Count 1 

did not exist, then you must return a not guilty verdict, even though you may find that some 

other conspiracy or conspiracies existed. For example, if you find that Count 1 concerns 

two or more conspiracies, you must find each defendant not guilty of the single conspiracy 

alleged in Count 1. Similarly, if you find that any defendant was not a member of the 

conspiracy to violate the Travel Act charged in Count 1, then you must find that defendant 

not guilty, even though that Defendant may have been a member of some other conspiracy 

or conspiracies.

Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 11.3 (modified to reflect the charges in the 

indictment); see United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHXSMB, Doc. No. 946 at 13 (Order denying motion to dismiss) (“[Defendants] were not 

indicted for facilitating the amorphous notion of ‘prostitution.’ They were indicted for 

facilitating (via publishing ads) on fifty distinct occasions where prostitutes, prostitutionrelated businesses, or other groups were involved in the business of prostitution.”); see 

United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Transcript of 

December 4, 2020 Hearing (“And I think one of the key things in my reason for denying 

the recusal is that this case is not about Backpage. Backpage was prosecuted in a separate 

case, entered a plea in a separate case. This case is about these individual defendants and 

whether they had specific knowledge of these ads as facilitating illegal activity.”). 

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UNITED STATES’ OBJECTIONS

This instruction should only be given when Defendants raise a multiple conspiracy 

defense. United States v. Job, 871 F.3d 852, 867 (9th Cir. 2017). To support such an 

instruction, evidence would need to be presented at trial in which a jury could reasonably 

conclude that some of the defendants were only involved in separate conspiracies unrelated 

to the overall conspiracy charged in the indictment. Id. That’s not the case here. The 

conspiracy charged in Count One would not give rise to a reasonable juror believing that 

multiple conspiracies occurred. Id. at 868 (“Although a single conspiracy can include 

‘several subagreements or subgroups of conspirators,’ that does not mean there are separate 

conspiracies.”) “A single conspiracy exists, as compared with multiple conspiracies, where 

there is ‘one overall agreement’ to perform various functions to achieve the objectives of 

the conspiracy.” United States v. Bauer, 84 F.3d 1549, 1560 (9th Cir. 1996).

Defendants’ instruction also incorrectly states that Count One “alleges a single 

conspiracy to commit a violation of the Travel Act by promoting, or facilitating the 

promotion of, prostitution offenses committed by a particular business enterprise in 

violation of the laws of the State in which they were committed.” (Emphasis added.) But 

Count One is not limited to a conspiracy to commit a single Travel Act violation, 

committed by a particular business enterprise. Indeed, the indictment alleges that 

Defendants engaged in a conspiracy to promote, or facilitate the promotion of many 

different business enterprises. Doc. 230 at ¶¶ 1, 9, 160-176. Even though the United States 

has alleged that Defendants’ criminal conspiracy involved a vast number of business 

enterprises, the underlying conspiracy remains the same—to violate the Travel Act. The 

evidence at trial will not show that Defendants engaged in any subagreements that are 

“separate” from and “unrelated” to the overall charged conspiracy. Job, 871 F.3d at 868. 

This instruction is not necessary and should be not given. The United States’ conspiracy 

charge contemplates Defendants conspiring with many different business enterprises to 

violate the Travel Act.

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DEFENDANTS’ PROPOSED INSTRUCTION 

11.3 MULTIPLE CONSPIRACIES

(Count 52 – Multiple Conspiracies)

Count 52 of the indictment alleges a single conspiracy to commit concealment 

money laundering in violation of Section 1956(a)(1)(B)(i), international promotional 

money laundering in violation of Section 1956(a)(2)(A), transactional money laundering 

in violation of Section 1957(a), and international concealment money laundering in 

violation of Section 1956(a)(2)(B)(i). You must decide whether the single conspiracy to 

commit concealment, international promotional, transactional, and international 

concealment money laundering as charged in Count 52 of the indictment existed, and, if it 

did, who at least some of its members were. If you find that the single conspiracy to commit 

concealment, international promotional, transactional, and international concealment

money laundering as charged in Count 52 of the indictment did not exist, then you must 

return a not guilty verdict, even though you may find that some other conspiracy existed. 

For example, if you find that Count 52 concerns two or more conspiracies, you must find 

the Defendants not guilty of the single conspiracy alleged in Count 52. Similarly, if you 

find that any Defendant was not a member of the conspiracy to commit concealment, 

international promotional, transactional, and international concealment money laundering 

as charged in Count 52, then you must find that Defendant not guilty, even though that 

Defendant may have been a member of some other conspiracy.

Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 11.3 (modified to reflect the charges in the 

indictment).

UNITED STATES’ OBJECTIONS

“A defendant is entitled to a multiple conspiracies instruction only if the defendant’s 

theory of multiple conspiracies is supported by law and has some foundation in the 

evidence.” United States v. Anguiano, 873 F.2d 1314, 1317 (9th Cir. 1989) (internal 

citations and quotations omitted). As discussed above, “[a] single conspiracy exists, as 

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compared with multiple conspiracies, where there is ‘one overall agreement’ to perform 

various functions to achieve the objectives of the conspiracy.” United States v. Bauer, 84 

F.3d 1549, 1560 (9th Cir. 1996).

This instruction should be evaluated after the evidence has been presented in order 

to better understand “Defendants’ theory of multiple conspiracies.” 

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DEFENDANTS’ PROPOSED INSTRUCTION

11.4 CONSPIRACY – KNOWLEDGE OF AND ASSOCIATION WITH OTHER 

CONSPIRATORS

(Conspiracy – Knowledge of and Association With Other Conspirators)

A conspiracy may continue for a long period of time and may include the 

performance of many transactions. It is not necessary that all members of the conspiracy 

join it at the same time, and one may become a member of a conspiracy without full 

knowledge of all the details of the unlawful scheme or the names, identities, or locations 

of all of the other members.

Even though a defendant did not directly conspire with every other defendant or 

every other conspirator in the overall scheme, that defendant has, in effect, agreed to 

participate in the conspiracy if the government proves each of the following beyond a 

reasonable doubt:

First, that a defendant directly conspired with one or more conspirators to carry out 

at least one of the illegal objects of the conspiracy by specifically intending to promote, or 

facilitate the promotion of, prostitution offenses committed by a particular business 

enterprise upon which you all agree;

Second, that a defendant knew or had reason to know that other conspirators were 

involved with those with whom the defendant directly conspired; and

Third, that a defendant had reason to believe that whatever benefits he or she might 

get from the conspiracy probably were dependent upon the success of the entire enterprise.

It is not a defense that a person’s participation in a conspiracy was minor or for a 

short period of time.

Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 11.4.

UNITED STATES’ OBJECTIONS

Defendants’ proposed 11.4 instruction adds unnecessary language to the Model 

Instruction’s first element. The elements of the Travel Act are instructed on below and this 

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additional language adds nothing but wordiness to the overall instructions. There isn’t a 

valid reason to alter the language provided by the Model Instruction. The Model 

Instruction should be given.

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UNITED STATES’ PROPOSED INSTRUCTION 

11.6 CONSPIRACY—LIABILITY FOR SUBSTANTIVE OFFENSE (TRAVEL 

ACT) COMMITTED BY CO-CONSPIRATOR (PINKERTON CHARGE)

Each member of the conspiracy is responsible for the actions of the other 

conspirators performed during the course and in furtherance of the conspiracy. If one 

member of a conspiracy commits a crime in furtherance of a conspiracy, the other members 

have also, under the law, committed that crime.

Therefore, you may find the defendant guilty of committing a Travel Act crime as 

charged in Counts 2-51 of the indictment 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 alleged in that 

count;4

Second, the person was a member of the conspiracy charged in Count 1 of the 

indictment;

Third, the person committed the Travel Act offense in furtherance of the 

conspiracy;

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

4 The United States proposes a slightly different first element than the Model Instructions. 

This is consistent with the preliminary jury instructions given at the first trial (Doc. 1311 

at 4) and applicable law. For a defendant to be found guilty at trial under a Pinkerton

theory, the co-conspirator need not be named in the indictment. United States v. Carpenter, 

961 F.2d 824, 828 n.3 (9th Cir. 1992) (“As an unindicted co-conspirator, Shahabian’s acts 

and statements in furtherance of the conspiracy may be attributed to Carpenter.”) (citing 

Pinkerton v. United States, 328 U.S. 640, 646-47 (1946)). Here, the Court has already 

recognized that Pinkerton liability extends to individuals not named in the Superseding 

Indictment. Doc. 1311 at 4; Doc. 793 at 19 (discussing Pinkerton and fact that “C.F” was 

a co-conspirator of Defendants). See also United States v. Long, 301 F.3d 1095, 1103 (9th 

Cir 2002) (“The Pinkerton doctrine is a judicially-created rule that makes a conspirator 

criminally liable for the substantive offenses committed by a co-conspirator when they are 

reasonably foreseeable and committed in furtherance of the conspiracy.”). The law of the 

case, in addition to the applicable caselaw and facts, support the Court instructing the jury 

using this proposed instruction. 

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charged in Counts 2-51 were 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.

DEFENDANTS’ OBJECTION

The government’s deletion of critical language from the model instruction renders 

its proposed instruction legally incorrect. The model instruction requires that the first 

element specify that “a person named in [Count __] of the indictment committed the 

crime.” 9th Cir. Model Crim. J. Instr. 11.6. The government’s instruction, once again, 

attempts to criminalize facilitating the amorphous notion of prostitution. Facilitating 

“prostitution” is not prescribed by the Travel Act; rather, the Travel Act prescribes only 

facilitating a business enterprise involved in prostitution offenses. Moreover, the Court 

has already limited the conspiracy to the fifty specific ads charged in the indictment. See 

Doc. No. 946 at 13 (Order denying motion to dismiss) (“[Defendants] were not indicted 

for facilitating the amorphous notion of ‘prostitution.’ They were indicted for facilitating 

(via publishing ads) on fifty distinct occasions where prostitutes, prostitution-related 

businesses, or other groups were involved in the business of prostitution.”). 

The government’s proposed language is misleading in that it suggests any person 

who posted on Backpage.com could be a “member of the conspiracy” as required in the 

first element. Such a boundless conspiracy also would be a classic hub and spoke 

conspiracy lacking a rim, which the Supreme Court held impermissible in Kotteakos v. 

United States, 328 U.S. 750, 754–55 (1946) (“[T]he pattern was ‘that of separate spokes 

meeting at a common center,’ though we may add without the rim of the wheel to enclose 

the spokes.”); Dickson v. Microsoft Corp., 309 F.3d 193, 203 (4th Cir. 2002) (“A rimless 

wheel conspiracy is one in which various defendants enter into separate agreements with a 

common defendant, but where the defendants have no connection with one another, other 

than the common defendant’s involvement in each transaction . . . . In Kotteakos, the 

Supreme Court made clear that a rimless wheel conspiracy is not a single, general 

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conspiracy but instead amounts to multiple conspiracies between the common defendant 

and each of the other defendants.”).

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DEFENDANTS’ PROPOSED INSTRUCTION

11.6 CONSPIRACY—LIABILITY FOR TRAVEL ACT VIOLATIONS

COMMITTED BY CO-CONSPIRATOR (PINKERTON CHARGE)

(Co-Conspirator Liability)

Each member of a conspiracy is responsible for the actions of the other conspirators 

performed during the course and in furtherance of the conspiracy. If one member of a 

conspiracy commits a crime in furtherance of a conspiracy, the other members have also, 

under the law, committed that crime.

Therefore, you may find a defendant guilty of a violation of the Travel Act under 

Section 1952(a)(3)(A) of Title 18 of the United States Code as charged in Counts 2-51 of 

the indictment if the government has proved each of the following elements beyond a 

reasonable doubt:

First, a person named in Count 1 of the indictment committed the crime of violating 

the Travel Act by promoting, or facilitating the promotion of, prostitution offenses 

committed by a particular business enterprise in violation of the laws of the State in which 

they were committed;

Second, the person named in Count 1 was a member of the conspiracy as charged 

in Count 1 of the indictment;

Third, the violation of the Travel Act in furtherance of the conspiracy;

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

charged in Counts 2-51 were committed;

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.

To prove a conspiracy, the government must prove beyond a reasonable doubt the 

requisite intent to commit the substantive crime, here the promotion, or the facilitation of 

the promotion, of prostitution offenses committed by a particular business enterprise in 

violation of the laws of the State in which they were committed. The elements of the Travel 

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Act are not satisfied if a defendant merely did an act that promoted, or facilitated the 

promotion of, the prostitution offenses committed by a particular business enterprise. The 

elements of the Travel Act are only established if the government proves beyond a 

reasonable doubt that a defendant knowingly and willfully intended his or her act to 

facilitate the prostitution offenses committed by a particular business enterprise associated 

with that ad. 

The government has the burden to prove that a defendant had the specific intent 

required to commit the offense beyond a reasonable doubt, as explained in Instruction No. 

11.1. 

Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 11.6 (modified to reflect the charges in the 

indictment).

To prove a conspiracy charge, the government must prove the “requisite intent for 

the substantive crime.” United States v. Kaplan, 836 F.3d 1199, 1212 (9th Cir. 2016). A 

violation of the Travel Act is a specific intent crime. In Woodhull Freedom Foundation v. 

United States, the government argued that for prosecutions under the Travel Act, the 

prosecutor must prove beyond a reasonable doubt “not simply that the defendant was aware 

of a potential result of the criminal offense, but instead that the defendant intended to 

‘explicitly further[]’ a specified unlawful act.” 334 F. Supp. 3d 185, 199-201 (D.D.C. 

2018), rev’d. 948 F.3d 363 (D.C. Cir. 2020). The court agreed with the government and 

held that the law applies only to “specific unlawful acts with respect to a particular 

individual, not the broad subject-matter of prostitution.” Id. Most recently, in defending 

the district court decision in that case, DOJ repeated its position that, in a prosecution under 

the Travel Act, the government must allege that the Defendant acted to intentionally 

promote or facilitate a “specific, unlawful instance of prostitution.” Brief for the United 

States in Woodhull Freedom Found. v. United States, No. 18-5298 (D.C. Cir. Apr. 15, 

2019) (Doc. No. 1782997) at 21-22.

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See also Backpage.com v. Dart, 807 F.3d 229, 234 (7th Cir. 2015) (“‘[A]n 

intermediary . . . normally is indifferent to the content of what it transmits. Even entities 

that know the information’s content do not become liable for the sponsor’s deeds. Does a 

newspaper that carries an advertisement for ‘escort services’ or ‘massage parlors’ aid and 

abet the crime of prostitution, if it turns out that some (or many) of the advertisers make 

money from that activity?’ Doe v. GTE Corp., 347 F.3d 655, 659 (7th Cir. 2003) . . . 

Backpage is an intermediary between the advertisers of adult services and visitors to 

Backpage’s website.”); In re Aimster Copyright Litig., 334 F.3d 643, 651 (7th Cir. 2003) 

(“A retailer of slinky dresses is not guilty of aiding and abetting prostitution even if he 

knows that some of his customers are prostitutes....”). 

United States v Gibson Specialty Co., 507 F.2d 446, 450 fn. 8 (9th Cir. 1974) (“The 

presumption that one intends the natural and probable consequences of his actions is 

insufficient in this context to establish intent to facilitate criminal activity. It is as likely as 

not that a vendor similar to the defendants in this proceeding is totally indifferent to the 

actions of his purchaser.”).

See United States v. Rundo, 990 F.3d 709, 719-720 (9th Cir. 2021) (“’the intent to 

engage in one of the prohibited acts is a personal prerequisite to punishment under [the 

Anti-Riot Act] . . . Simply put, knowing that some might choose to become violent is not 

at all the same as intending that they do so.”).

Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1281 (W.D. Wash. 2012) 

(“The third-party publication of offers to engage in illegal transactions does not fall within 

‘well-defined and narrowly limited classes of speech’ that fall outside of First Amendment 

protection.”) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942)).

See United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB,

Doc. No. 946 at 13 (Order denying motion to dismiss) (“[Defendants] were not indicted 

for facilitating the amorphous notion of ‘prostitution.’ They were indicted for facilitating 

(via publishing ads) on fifty distinct occasions where prostitutes, prostitution-related 

businesses, or other groups were involved in the business of prostitution.”); see United 

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States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Transcript of 

December 4, 2020 Hearing (“And I think one of the key things in my reason for denying 

the recusal is that this case is not about Backpage. Backpage was prosecuted in a separate 

case, entered a plea in a separate case. This case is about these individual defendants and 

whether they had specific knowledge of these ads as facilitating illegal activity.”).

United States v. Jones, 909 F.2d 533, 539 (D.C.Cir.1990) (a proper Travel Act jury 

instruction “would inform the jury that the defendant must have performed or attempted to 

perform an act in furtherance of the business, with the intent that each element of the 

underlying state crime be completed”); Deptula v. Attorney General of U.S., 642 Fed. 

Appx. 184 (3rd Cir. 2016) (“to obtain a Travel Act conviction, the government must prove 

. . . that the defendant had the specific intent to facilitate each element of the relevant 

offense.”); United States v. Bertman, 686 F.2d 772, 774 (9th Cir. 1982) (“When the 

unlawful activity charged in the indictment is the violation of state law, the commission of 

or the intent to commit such a violation is an element of the federal offense.”).

UNITED STATES’ OBJECTIONS

Everything after the fifth element in Defendants’ proposed instruction should not be 

read to the jury for the same reasons the United States articulated in its objection to the 

Travel Act instruction infra. With that language eliminated, the parties’ instructions are 

similar, with two key differences. First, Defendants’ proposed instruction includes the 

statement “a person named in Count 1” in the first two elements. This instruction is too 

restrictive and does not appropriately convey Pinkerton liability. It also violates the law

of the case as the Court previously found that the member of the conspiracy doesn’t need 

to be a person named in the indictment. Doc. 1311 at 4. 

For a defendant to be found guilty at trial under a Pinkerton theory, the coconspirator need not be named in the indictment. United States v. Carpenter, 961 F.2d 

824, 828 n.3 (9th Cir. 1992) (“As an unindicted co-conspirator, Shahabian's acts and 

statements in furtherance of the conspiracy may be attributed to Carpenter.”) (citing 

Pinkerton v. United States, 328 U.S. 640, 646-47 (1946)). Here, the Court has already 

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recognized that Pinkerton liability extends to individuals not named in the Superseding 

Indictment. Doc. 1311 at 4; Doc. 793 at 19 (discussing Pinkerton and fact that “C.F” was 

a co-conspirator of Defendants). See also United States v. Long, 301 F.3d 1095, 1103 (9th 

Cir 2002) (“The Pinkerton doctrine is a judicially-created rule that makes a conspirator 

criminally liable for the substantive offenses committed by a co-conspirator when they are 

reasonably foreseeable and committed in furtherance of the conspiracy.”). 

Second, Defendants again refer to offenses “prostitution offenses committed by a 

particular business enterprise[.]” But the Travel Act does not require proof of the actual 

commission of separate prostitution offenses. See, e.g., Part III, United States’ Proposed 

Instruction No. 1, infra. 

In addition, the authorities cited by Defendants do not support their requested 

instructions. See Part IV, United States’ Objections to Defendants Proposed Instructions 

Nos. 7-20.

Both the applicable law and facts support the Court instructing the jury using the 

United States’ proposed instruction. 

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UNITED STATES’ PROPOSED INSTRUCTION 

11.6 CONSPIRACY—LIABILITY FOR SUBSTANTIVE OFFENSE 

(CONCEALMENT MONEY LAUNDERING) COMMITTED BY COCONSPIRATOR (PINKERTON CHARGE)

Each member of the conspiracy is responsible for the actions of the other 

conspirators performed during the course and in furtherance of the conspiracy. If one 

member of a conspiracy commits a crime in furtherance of a conspiracy, the other members 

have also, under the law, committed that crime.

Therefore, you may find the defendant guilty of Concealment Money Laundering 

as charged in Counts 53-62 of the indictment if the United States has proved each of the 

following elements beyond a reasonable doubt:

First, a member of the conspiracy committed Concealment Money Laundering 

alleged in that count;5

Second, the person was a member of the conspiracy charged in Count 52 of the 

indictment;

Third, the person committed Concealment Money Laundering in furtherance of the 

conspiracy;

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

charged in 53-62 were 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.

DEFENDANTS’ OBJECTION

Once again, the government’s deletion of critical language from the model 

instruction renders its proposed instruction legally incorrect. The model instruction 

requires that the first element specify that “a person named in [Count __] of the indictment 

5 See footnote 4. 

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committed the crime.” 9th Cir. Model Crim. J. Instr. 11.6. The government’s instruction, 

once again, attempts to criminalize facilitating the amorphous notion of prostitution. 

Facilitating “prostitution” is not prescribed by the Travel Act; rather, the Travel Act 

prescribes only facilitating a business enterprise involved in prostitution offenses. 

Moreover, the Court has already limited the conspiracy to the fifty specific ads charged in 

the indictment. See United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHXSMB, Doc. No. 946 at 13 (Order denying motion to dismiss) (“[Defendants] were not 

indicted for facilitating the amorphous notion of ‘prostitution.’ They were indicted for 

facilitating (via publishing ads) on fifty distinct occasions where prostitutes, prostitutionrelated businesses, or other groups were involved in the business of prostitution.”). 

The government’s proposed language is misleading in that it suggests any person 

who posted on Backpage.com could be a “member of the conspiracy” as required in the 

first element. Such a boundless conspiracy also would be a classic hub and spoke 

conspiracy lacking a rim, which the Supreme Court held impermissible in Kotteakos v. 

United States, 328 U.S. 750, 754–55 (1946) (“[T]he pattern was ‘that of separate spokes 

meeting at a common center,’ though we may add without the rim of the wheel to enclose 

the spokes.”); Dickson v. Microsoft Corp., 309 F.3d 193, 203 (4th Cir. 2002) (“A rimless 

wheel conspiracy is one in which various defendants enter into separate agreements with a 

common defendant, but where the defendants have no connection with one another, other 

than the common defendant’s involvement in each transaction . . . . In Kotteakos, the 

Supreme Court made clear that a rimless wheel conspiracy is not a single, general 

conspiracy but instead amounts to multiple conspiracies between the common defendant 

and each of the other defendants.”).

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DEFENDANTS’ PROPOSED INSTRUCTION

11.6 CONSPIRACY—LIABILITY FOR CONCEALMENT MONEY 

LAUNDERING VIOLATIONS COMMITTED BY CO-CONSPIRATOR 

(PINKERTON CHARGE)

(Co-Conspirator Liability)

Each member of a conspiracy is responsible for the actions of the other conspirators 

performed during the course and in furtherance of the conspiracy. If one member of a 

conspiracy commits a crime in furtherance of a conspiracy, the other members have also, 

under the law, committed that crime.

Therefore, you may find a Defendant guilty of a committing concealment money 

laundering in violation of Section 1956(a)(1)(B) of Title 18 of the United States Code as 

charged in Counts 53-62 of the indictment if the government has proved each of the 

following elements beyond a reasonable doubt:

First, a person named in Count 52 of the indictment committed the crime of 

concealment money laundering as alleged in Counts 53-62;

Second, the person was a member of the conspiracy as charged in Count 52 of the 

indictment;

Third, the person committed the crime of concealment money laundering in 

furtherance of the conspiracy;

Fourth, the Defendant was a member of the same conspiracy at the time the offenses 

charged in Counts 53-62 were committed;

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.

To prove a conspiracy, the government must prove beyond a reasonable doubt the 

requisite intent to commit the substantive crime, here concealment money laundering. 

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Concealment money laundering is a specific intent crime. See the Specific Intent jury 

instruction.

Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 11.6 (modified to reflect the charges in the 

indictment). As this Court previously held, the “specified unlawful activity” (“SUA”) here 

is not the general facilitation or promotion of “any business enterprise involving 

prostitution offenses” in violation of the Travel Act. See United States v. Lacey, et al. (D. 

Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order denying motion to 

dismiss) (“[Defendants] were not indicted for facilitating the amorphous notion of 

‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.”); see United States v. Lacey, et al. (D. Ariz.), Case No. 18-

CR-00422-PHX-SMB, Transcript of December 4, 2020 Hearing (“And I think one of the 

key things in my reason for denying the recusal is that this case is not about Backpage. 

Backpage was prosecuted in a separate case, entered a plea in a separate case. This case is 

about these individual defendants and whether they had specific knowledge of these ads as 

facilitating illegal activity.”). Therefore, the SUA referenced in each of the proposed jury 

instructions regarding the Indictment’s money laundering charges must reference the “fifty 

distinct” advertisements at issue in Counts 2 - 51. Id.

To prove a conspiracy charge, the government must prove the “requisite intent for 

the substantive crime.” United States v. Kaplan, 836 F.3d 1199, 1212 (9th Cir. 2016). 

Concealment money laundering is a specific intent crime.

UNITED STATES’ OBJECTIONS

Defendants’ proposed instruction, which is largely similar to the United States’ 

proposed instruction, includes the statement “a person named in Count 52” in the first 

element. This instruction is too restrictive and does not appropriately convey Pinkerton

liability and also violates the law of the case established by the Court. Doc. 1311 at 4. 

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For a defendant to be found guilty at trial under a Pinkerton theory, the coconspirator need not be named in the indictment. United States v. Carpenter, 961 F.2d 

824, 828 n.3 (9th Cir. 1992) (“As an unindicted co-conspirator, Shahabian's acts and 

statements in furtherance of the conspiracy may be attributed to Carpenter.”) (citing 

Pinkerton v. United States, 328 U.S. 640, 646-47 (1946)). Here, the Court has already 

recognized that Pinkerton liability extends to individuals not named in the Superseding 

Indictment. Doc. 1311 at 4; Doc. 793 at 19 (discussing Pinkerton and fact that “C.F” was 

a co-conspirator of Defendants). See also United States v. Long, 301 F.3d 1095, 1103 (9th 

Cir 2002) (“The Pinkerton doctrine is a judicially-created rule that makes a conspirator 

criminally liable for the substantive offenses committed by a co-conspirator when they are 

reasonably foreseeable and committed in furtherance of the conspiracy.”). Both the 

applicable law and facts support the Court instructing the jury using the United States’ 

proposed instruction. 

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UNITED STATES’ PROPOSED INSTRUCTION 

11.6 CONSPIRACY—LIABILITY FOR SUBSTANTIVE OFFENSE 

(INTERNATIONAL PROMOTIONAL MONEY LAUNDERING) COMMITTED 

BY CO-CONSPIRATOR (PINKERTON CHARGE)

Each member of the conspiracy is responsible for the actions of the other 

conspirators performed during the course and in furtherance of the conspiracy. If one 

member of a conspiracy commits a crime in furtherance of a conspiracy, the other members 

have also, under the law, committed that crime.

Therefore, you may find the defendant guilty of International Promotional Money 

Laundering as charged in Counts 63-68 of the indictment if the United States has proved 

each of the following elements beyond a reasonable doubt:

First, a member of the conspiracy committed International Promotional Money 

Laundering alleged in that count;6

Second, the person was a member of the conspiracy charged in Count 52 of the 

indictment;

Third, the person committed International Promotional Money Laundering in 

furtherance of the conspiracy;

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

charged in 63-68 were 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.

DEFENDANTS’ OBJECTION

The government’s deletion of critical language from the model instruction renders 

its proposed instruction legally incorrect. The model instruction requires that the first 

element specify that “a person named in [Count __] of the indictment committed the 

6 See footnote 4. 

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crime.” 9th Cir. Model Crim. J. Instr. 11.6. The government’s instruction, once again, 

attempts to criminalize facilitating the amorphous notion of prostitution. Facilitating 

“prostitution” is not prescribed by the Travel Act; rather, the Travel Act prescribes only 

facilitating a business enterprise involved in prostitution offenses in violation of the laws 

of the State in which they were committed. Moreover, the Court has already limited the 

conspiracy to the fifty specific ads charged in the indictment. See United States v. Lacey, 

et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order denying 

motion to dismiss) (“[Defendants] were not indicted for facilitating the amorphous notion 

of ‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.”). 

The government’s proposed language is misleading in that it suggests any person 

who posted on Backpage.com could be a “member of the conspiracy” as required in the 

first element. Such a boundless conspiracy also would be a classic hub and spoke 

conspiracy lacking a rim, which the Supreme Court held impermissible in Kotteakos v. 

United States, 328 U.S. 750, 754–55 (1946) (“[T]he pattern was ‘that of separate spokes 

meeting at a common center,’ though we may add without the rim of the wheel to enclose 

the spokes.”); Dickson v. Microsoft Corp., 309 F.3d 193, 203 (4th Cir. 2002) (“A rimless 

wheel conspiracy is one in which various defendants enter into separate agreements with a 

common defendant, but where the defendants have no connection with one another, other 

than the common defendant’s involvement in each transaction . . . . In Kotteakos, the 

Supreme Court made clear that a rimless wheel conspiracy is not a single, general 

conspiracy but instead amounts to multiple conspiracies between the common defendant 

and each of the other defendants.”).

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DEFENDANTS’ PROPOSED INSTRUCTION

11.6 CONSPIRACY—LIABILITY FOR INTERNATIONAL PROMOTIONAL 

MONEY LAUNDERING VIOLATIONS COMMITTED BY CO-CONSPIRATOR

(PINKERTON CHARGE)

Each member of a conspiracy is responsible for the actions of the other conspirators 

performed during the course and in furtherance of the conspiracy. If one member of a 

conspiracy commits a crime in furtherance of a conspiracy, the other members have also, 

under the law, committed that crime.

Therefore, you may find a Defendant guilty of a committing international 

promotional money laundering in violation of Section 1956(a)(2)(A) of Title 18 of the 

United States Code as charged in Counts 63-68 of the indictment if the government has 

proved each of the following elements beyond a reasonable doubt:

First, a person named in Count 52 of the indictment committed the crime of 

international promotional money laundering as alleged in Counts 63-68;

Second, the person was a member of the conspiracy as charged in Count 52 of the 

indictment;

Third, the person committed the crime of international promotional money 

laundering in furtherance of the conspiracy;

Fourth, the Defendant was a member of the same conspiracy at the time the offenses 

charged in Counts 63-68 were committed;

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.

To prove a conspiracy, the government must prove beyond a reasonable doubt the 

requisite intent to commit the substantive crime, here international promotional money 

laundering. International promotional money laundering is a specific intent crime. See the 

Specific Intent jury instruction.

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Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 11.6 (modified to reflect the charges in the 

indictment). As this Court previously held, the “specified unlawful activity” (“SUA”) here 

is not the general facilitation or promotion of “any business enterprise involving 

prostitution offenses” in violation of the Travel Act. See United States v. Lacey, et al. (D. 

Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order denying motion to 

dismiss) (“[Defendants] were not indicted for facilitating the amorphous notion of 

‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.”); see United States v. Lacey, et al. (D. Ariz.), Case No. 18-

CR-00422-PHX-SMB, Transcript of December 4, 2020 Hearing (“And I think one of the 

key things in my reason for denying the recusal is that this case is not about Backpage. 

Backpage was prosecuted in a separate case, entered a plea in a separate case. This case is 

about these individual defendants and whether they had specific knowledge of these ads as 

facilitating illegal activity.”). Therefore, the SUA referenced in each of the proposed jury 

instructions regarding the Indictment’s money laundering charges must reference the “fifty 

distinct” advertisements at issue in Counts 2 - 51. Id.

To prove a conspiracy charge, the government must prove the “requisite intent for 

the substantive crime.” United States v. Kaplan, 836 F.3d 1199, 1212 (9th Cir. 2016). 

International promotional money laundering is a specific intent crime.

UNITED STATES’ OBJECTIONS

Defendants’ proposed instruction, which is largely similar to the United States’ 

proposed instruction, includes the statement “a person named in Count 52” in the first 

element. This instruction is too restrictive and does not appropriately convey Pinkerton

liability and also violates the law of the case established by the Court. Doc. 1311 at 4. 

For a defendant to be found guilty at trial under a Pinkerton theory, the coconspirator need not be named in the indictment. United States v. Carpenter, 961 F.2d 

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824, 828 n.3 (9th Cir. 1992) (“As an unindicted co-conspirator, Shahabian's acts and 

statements in furtherance of the conspiracy may be attributed to Carpenter.”) (citing 

Pinkerton v. United States, 328 U.S. 640, 646-47 (1946)). Here, the Court has already 

recognized that Pinkerton liability extends to individuals not named in the Superseding 

Indictment. Doc. 1311 at 4; Doc. 793 at 19 (discussing Pinkerton and fact that “C.F” was 

a co-conspirator of Defendants). See also United States v. Long, 301 F.3d 1095, 1103 (9th 

Cir 2002) (“The Pinkerton doctrine is a judicially-created rule that makes a conspirator 

criminally liable for the substantive offenses committed by a co-conspirator when they are 

reasonably foreseeable and committed in furtherance of the conspiracy.”). Both the 

applicable law and facts support the Court instructing the jury using the United States’ 

proposed instruction. 

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UNITED STATES’ PROPOSED INSTRUCTION 

18.1 TRAVEL ACT—INTERSTATE OR FOREIGN TRAVEL IN AID OF 

RACKETEERING ENTERPRISE

(18 U.S.C. § 1952(a)(3)) 

The defendants are charged in Counts 2-51 of the indictment with violating Section 

1952(a)(3) of Title 18 of the United States Code, a statute also referred to as “the Travel 

Act.” In order for the defendants to be found guilty of Counts 2-51, the United States must 

prove, for each count, the following elements beyond a reasonable doubt: 

First, the defendant used any facility in interstate commerce with the intent to 

promote, manage, establish, carry on, or facilitate the promotion, management, 

establishment, or carrying on, of any business enterprise involving prostitution offenses in 

violation of the laws of the State in which they are committed (as specified below), and 

Second, after doing so the defendant performed or attempted to perform an act that 

did promote, manage, establish, carry on, or facilitate the promotion, management, 

establishment, or carrying on, of any business enterprise involving prostitution offenses, 

specifically, by publishing on Backpage.com the ads listed in Counts 2-51 of the 

indictment.

Counts 2, 4, 27, 29-30, 33, 35, 37, 40 and 43 concern prostitution offenses in 

violation of the laws of the State of Massachusetts. A prostitution offense in Massachusetts 

occurs when:

(1) A person engaged, agreed to engage, or offered to engage, in sexual conduct 

with another person; and 

(2) The sexual conduct was, or was to be, done in return for a fee.

The term “sexual conduct” includes sexual intercourse; anal intercourse; fellatio, or 

oral sex involving contact between the mouth of one person and the penis of another 

person; cunnilingus, or oral sex involving contact between the mouth of one person and 

the female sex organs—the vagina, vulva or labia—of another person; masturbation of 

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another person; or any intrusion of a part of one person’s body or some other object into 

the genital or anal opening of another person’s body. 

Counts 3, 6-11, 18, 25-26, and 28 concern prostitution offenses in violation of the 

laws of the State of Washington. A prostitution offense in Washington occurs when:

(1) A person engaged, agreed to engage, or offered to engage in sexual conduct with 

another person; and

(2) The sexual conduct, agreement, or offer was in return for a fee.

“Sexual conduct” means sexual contact or sexual intercourse. “Sexual contact” 

means any touching of the sexual or other intimate parts of a person done for the purpose 

of gratifying sexual desire of either party or a third party. “Sexual intercourse” means that 

the sexual organ of the male entered and penetrated the sexual organ of the female and 

occurs upon any penetration, however slight, or any penetration of the vagina or anus 

however slight, by an object, when committed on one person by another, whether such 

persons are of the same or opposite sex, or any act of sexual contact between persons 

involving the sex organs of one person and the mouth or anus of another whether such 

persons are of the same or opposite sex. 

Counts 14-15, 21-22, and 31 concern prostitution offenses in violation of the laws 

of the State of Arizona. A prostitution offense in Arizona occurs when:

A person knowingly engaged, agreed, or offered to engage in sexual conduct with 

another person under a fee arrangement with any person for money or any other valuable 

consideration.

“Sexual conduct” means sexual contact, sexual intercourse, oral sexual contact, or 

sadomasochistic abuse.

“Sexual contact” means any direct or indirect fondling or manipulating of any part 

of the genitals, anus or female breast.

“Sexual intercourse” means penetration into the penis, vulva or anus by any part of 

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the body or by an object.

“Oral sexual contact” means oral contact with the penis, vulva or anus.

“Sadomasochistic abuse” means flagellation or torture by or on a person who is 

nude or clad in undergarments or in revealing or bizarre costume or the condition of being 

fettered, bound or otherwise physically restrained on the part of one so clothed. 

Counts 12-13, 23, and 34 concern prostitution offenses in violation of the laws of 

the State of California. A prostitution offense in California occurs when:

An individual solicits, or agrees to engage in, or engages in, any act of prostitution 

with the intent to receive compensation, money, or anything of value from another person.

An act of prostitution occurs when a person has sexual intercourse or does a lewd 

act with someone else in exchange for money or other compensation. A lewd act means 

touching the genitals, buttocks, or female breast of either the prostitute or customer with 

some part of the other person’s body for the purpose of sexual arousal or gratification. 

Counts 45-47 and 51 concern prostitution offenses in violation of the laws of the 

State of New York. A prostitution offense in New York occurs when:

A person engaged, agreed, or offered to engage, in sexual conduct with another 

person for a fee. 

Counts 19-20 and 50 concern prostitution offenses in violation of the laws of the 

State of Texas. A prostitution offense in Texas occurs when:

A person knowingly offers or agrees to receive a fee from another to engage in 

sexual conduct. 

“Sexual conduct” includes deviate sexual intercourse, sexual contact, and sexual 

intercourse.

“Sexual intercourse” means any penetration of the female sex organ by the male sex 

organ.

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“Sexual contact” means any touching of the anus, breast, or any part of the genitals 

of another person with intent to arouse or gratify the sexual desire of any person.

“Fee” means the payment or offer of payment in the form of money, goods, services, 

or other benefit.

“Deviate sexual intercourse” means any contact between the genitals of one person 

and the mouth or anus of another person.

A person acts knowingly, or with knowledge, with respect to the nature of his/her 

conduct or to circumstances surrounding his/her conduct when he/she is aware of the nature 

of his/her conduct or that the circumstances exist. 

Counts 16-17 concern prostitution offenses in violation of the laws of the State of 

Colorado. A prostitution offense occurs in Colorado when: 

A person performed, offered, or agreed to perform, any act of sexual intercourse, 

fellatio, cunnilingus, masturbation, or anal intercourse, with any person who was not his or 

her spouse, in exchange for money or other thing of value.

Or when:

A person solicited another for the purpose of prostitution.

Colorado law provides the following definitions:

“Anal intercourse” means contact between human beings of the genital organs of 

one and the anus of another.

“Fellatio” means any act of oral stimulation of the penis.

“Cunnilingus” means any act of oral stimulation of the vulva or clitoris.

“Masturbation” means stimulation of the genital organs by manual or other bodily 

contact exclusive of sexual intercourse.

“Thing of value” includes real property, tangible and intangible personal property, 

contract rights, choses in action, services, confidential information, medical records 

information, and any rights of use or enjoyment connected therewith.

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Counts 38 and 42 concern prostitution offenses in violation of the laws of the State 

of Ohio. A prostitution offense occurs in Ohio when:

A person engaged in sexual activity for hire.

Or when:

A person recklessly induces, entices, or procures another to engage in sexual activity 

for hire in exchange for the person giving anything of value to the other person.

Ohio law provides the following definitions:

“Sexual activity” means sexual conduct or sexual contact, or both. 

“Sexual conduct” means vaginal intercourse between a male and female; anal 

intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without 

privilege to do so, the insertion, however slight, of any part of the body or any instrument, 

apparatus, or other object into the vaginal or anal opening of another. Penetration, however 

slight, is sufficient to complete vaginal or anal intercourse.

“Sexual contact” means any touching of an erogenous zone of another, including 

without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a 

breast, for the purpose of sexually arousing or gratifying either person.

“For hire” means for pay or compensation.

Counts 36 and 49 concern prostitution offenses in violation of the laws of the State 

of Nevada. A prostitution offense in Nevada occurs when:

A person engaged in prostitution or solicitation therefor, except in a licensed house 

of prostitution. 

“Prostitution” means engaging in sexual conduct with another person in return for 

a fee, monetary consideration or other thing of value.

“Sexual conduct” means sexual intercourse, oral-genital contact or any touching of 

the sexual organs or other intimate parts of a person for the purpose of arousing or 

gratifying the sexual desire of either person.

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Counts 24 and 44 concern prostitution offenses in violation of the laws of the State 

of Michigan. A prostitution offense in Michigan occurs when:

A person engaged or offered to engage the services of another person, not his or her 

spouse, for the purpose of prostitution, lewdness, or assignation, by the payment in money 

or other forms of consideration. 

 

Count 32 concerns prostitution offenses in violation of the laws of the State of 

Louisiana. A prostitution offense in Louisiana occurs when: 

A person engaged in indiscriminate sexual intercourse for compensation, or 

solicited another with the intent to engage in indiscriminate sexual intercourse for 

compensation.

“Sexual intercourse” means anal, oral, or vaginal sexual intercourse. 

Count 48 concerns prostitution offenses in violation of the laws of the State of 

Florida. A prostitution offense in Florida occurs when:

A person offered to commit, committed, or engaged in prostitution, lewdness, or 

assignation. 

 -ORA person solicited, induced, enticed, or procured another to commit prostitution, 

lewdness, or assignation.

“Prostitution” is the giving or receiving of the body for sexual activity for hire but 

excludes sexual activity between spouses.

“Lewdness” is any indecent or obscene act. “Indecent” means wicked, lustful, 

unchaste, licentious, or sensual intention on the part of the person doing the act.

“Sexual activity” means oral, anal, or vaginal penetration by, or union with, the 

sexual organ of another; anal or vaginal penetration of another by any other object; or the 

handling or fondling of the sexual organ of another for the purpose of masturbation; 

however, the term does not include acts done for bona fide medical purposes.

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“Assignation” includes the making of any appointment or engagement for 

prostitution or lewdness or any act in furtherance of such appointment or engagement.

To “solicit” means to command, encourage, hire, or request another person to 

engage in specific conduct.

To “procure” means to persuade, induce, prevail upon or cause a person to do 

something.

Count 39 concerns prostitution offenses in violation of the laws of the State of 

Alabama. A prostitution offense in Alabama occurs under any of the following:

(1) A person commits an act of prostitution, which is . any natural or unnatural 

sexual act, sodomy, or sexual contact for monetary consideration or other thing of value.

(2) A person solicited, compelled, or coerced any person to have sexual 

intercourse or participate in any natural or unnatural sexual act, deviant sexual intercourse, 

or sexual contact for monetary consideration or other thing of marketable value.

(3) A person agreed to engage in sexual intercourse, deviant sexual intercourse, 

or sexual contact with another or participate in the act for monetary consideration or other 

thing of marketable value and give or accept monetary consideration or other thing of value 

in furtherance of the agreement. 

(4) A person knowingly did any of the following:

a) Caused or aided a person to commit or engage in prostitution.

b) Procured or solicited patrons for prostitution.

c) Provided persons or premises for prostitution purposes.

d) Received or accepted money or other thing of value pursuant to a prior 

agreement with any person whereby he or she participated or is to 

participate in the proceeds of any prostitution activity.

e) Operated or assisted in the operation of a house of prostitution or a 

prostitution enterprise. 

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Count 41 concerns prostitution offenses in violation of the laws of the State of 

Arkansas. A prostitution offense in Arkansas occurs when:

A person engaged in, agreed, or offered to engage in sexual activity with any other 

person in return for or in expectation of a fee. 

“Sexual activity” means sexual intercourse, deviate sexual activity, or sexual 

contact.

“Sexual intercourse” means penetration, however slight, of the labia majora by a 

penis.

“Deviate sexual activity” means any act of sexual gratification involving: (A) the 

penetration, however slight, of the anus or mouth of a person by the penis of another person; 

or (B) the penetration, however slight, of the labia majora or anus of a person by any body 

member or foreign instrument manipulated by another person.

“Sexual contact” means any act of sexual gratification involving the touching, 

directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast 

of a female.

Count 5 concerns prostitution offenses in violation of the laws of the State of Maine. 

A prostitution offense in Maine occurs when: 

A person engages in, or agrees to engage in, or offers to engage in a sexual act or 

sexual contact in return for a pecuniary benefit to be received by the person engaging in 

prostitution or a 3rd person.

“Sexual act” means: (1) Any act between 2 persons involving direct physical contact 

between the genitals of one and the mouth or anus of the other, or direct physical contact 

between the genitals of one and the genitals of the other; (2) Any act between a person and 

an animal being used by another person which act involves direct physical contact between 

the genitals of one and the mouth or anus of the other, or direct physical contact between 

the genitals of one and the genitals of the other; or (3) Any act involving direct physical 

contact between the genitals or anus of one and an instrument or device manipulated by 

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another person when that act is done for the purpose of arousing or gratifying sexual desire 

or for the purpose of causing bodily injury or offensive physical contact.

“Sexual contact” means any touching of the genitals or anus, directly or through 

clothing, other than as would constitute a sexual act, for the purpose of arousing or 

gratifying sexual desire or for the purpose of causing bodily injury or offensive physical 

contact.

Supporting Authorities

Massachusetts General Laws Ch. 272 § 53A(a); Massachusetts Criminal Model 

Jury Instruction 7.480—Sexual Conduct for a Fee.

Revised Code of Washington § 9A.88.030; Washington Pattern Jury Instructions—

Criminal § 48.02 Prostitution-Elements; § 48.12 Sexual Conduct—Definition (April 2021 

update).

Arizona Revised Statute §§ 13-3211; 13-3214; Revised Arizona Jury Instructions 

(Criminal) §§ 32.11; 32.14.

California Penal Code § 647(b)(1); Judicial Council of California Criminal Jury 

Instructions (2020 Edition) CALCRIM §§ 1153-55.

New York Penal Law Article 230.00; New York Criminal Jury Instructions and 

Model Colloquies for Article 230 Prostitution Offenses (there is no statutory definition of 

the term “sexual conduct” that is expressly applicable to the statutes contained in Penal 

Law article 230; See Prus v. Holder, 660 F.3d 144 (2d Cir. 2011) (“Although ‘sexual 

conduct’ is not defined in Article 230, the plain language of the statute makes clear that 

prostitution in New York encompasses accepting payment for sexual acts beyond . . . 

“‘sexual intercourse’”).

Texas Penal Code §§ 43.01, 43.02(a), 6.03; Texas Criminal Jury Charges 

§ 10:391A. 

Colorado Revised Statutes, §§ 18-7-201 and 18-7-202; Colorado Jury Instructions 

Criminal 2018, §§ 7-2:01 Prostitution and 7-2:03 Soliciting Another for Prostitution; 

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Instruction F:16 (defining “anal intercourse”); F:81 (defining “cunnilingus”); F:147 

(defining “fellatio”); F:217 (defining “masturbation”); F:371 (defining “thing of value”); 

(the term “sexual intercourse” is not defined in section 18-7-201). 

Ohio Revised Code §§ 2907.01, 2907.25, 2907.231; 2 Ohio Jury Instructions 

Criminal § 507.25.

Nevada Revised Statutes §§ 201.354, 201.295.

Michigan Penal Code § 750.449a.

Louisiana Revised Statutes §14:82.

Florida Statutes § 796.07; 1 FL Standard Jury Instructions in Criminal Cases 23.5 

and 23.6.

Alabama Criminal Code §§ 13A-12-120, 13A-12-121.

Arkansas Code §§ 5-70-102, 5-70-101, 5-14-101.

Maine Revised Statutes 17-A §§ 853-A, 851, 251.

DEFENDANTS’ OBJECTION

First, Defendants do not object to the inclusion of the relevant statutes defining state 

law prostitution offenses. But the instruction does not adequately instruct the jury on what 

is required to prove that a defendant “promoted” or “facilitated” unlawful activity in 

violation of the Travel Act. Facilitation is the same thing as aiding and abetting, see Doc. 

1557 at 10-13. Mere days ago, the United States Supreme Court confirmed that when a 

federal criminal statute uses the word “facilitation” it means “aiding and abetting.” United 

States v. Hansen, 599 U.S. __, 2023WL4138994, at *6 (June 23, 2023). See also Doc. 

1557-1 at 45-46 (USA arguing in Woodhull litigation that “promote” and “facilitate” “as 

used in the Travel Act, is equivalent to ‘aid or abet’”). Accordingly, the inclusion of the 

pertinent state statutes is helpful but not sufficient in instructing the jury that it must find 

that defendants facilitated—i.e., aided and abetted—a particular business enterprise’s 

violations of those statutes. As set forth in Defendants’ competing proposed instruction 

18.1, a proper instruction would also instruct the jury on the elements of facilitation of a 

business enterprise’s prostitution offenses, namely that: (1) a particular business enterprise 

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committed prostitution offenses in violation of state law; (2) the defendant aided that 

business enterprise with respect to an element of the prostitution offense; (3) the defendant 

acted with specific intent that the prostitution offense be committed; (4) the defendant acted 

before the crime was completed. See also Hansen, 599 U.S. at __, 2023WL4138994, at *6 

(describing elements of facilitation as including proof (1) “that a wrongful act be carried 

out” and proof of (2) “an intent to bring about a particular unlawful act”). 

Moreover, although the government need not prove that each defendant him or 

herself violated state law for the jury to convict on a given Travel Act count, “[a] proper 

instruction would make it clear to the jury that in order to convict, they must find that the 

defendant specifically intended to promote (et cetera) an activity that involves all of the 

elements of the relevant state offense.” United States v. Jones, 909 F.2d 533, 539 (D.C. 

Cir. 1990); see United States v. Hiatt, 527 F.2d 1048, 1051 (9th Cir. 1975) (“It is correct 

that the existence of a state law violation is an element of the violation of the Travel Act 

and that the court must make a determination of whether the underlying state law has been 

or could have been violated.”). 

Second, the proposed instruction improperly groups all of the Travel Act counts, 

failing to treat each individually. As to each Travel Act count, the government must prove 

the existence of a business enterprise involving prostitution offenses, that Backpage.com’s 

publication of the charged ad facilitated that business enterprise’s prostitution offenses, the 

specific intent of each defendant to facilitate the unlawful activities of that business 

enterprise by publishing the charged ad, and a subsequent overt act in furtherance of that 

business enterprise. As written, the instruction could lead the jury to mistakenly believe 

that it can mix and match the elements among all the Travel Act counts. For example, this 

instruction could lead the jury to mistakenly believe that finding the existence of “any” 

business enterprise, whether or not it is related to a specific count, nevertheless allows it to 

convict as to that count.

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Third, the proposed instruction improperly groups all defendants, rather than 

treating each defendant as an individual as to whom the government must separately prove 

its charges.

Fourth, the term “unlawful activity” should be defined with reference to the business 

enterprise requirement (as “unlawful activity” is defined in the Travel Act statute). The 

simultaneous use of the term “unlawful activity” likely would signal to the jury that this 

term means something other than a business enterprise involving prostitution offenses in 

violation of state law.

Fifth, as drafted, the government’s proposed instruction would imply to the jury that 

the instruction is self-contained, including all the elements of a Travel Act offense, when 

it completely omits the requirement of the use of a facility in interstate commerce.

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DEFENDANTS’ PROPOSED INSTRUCTION

18.1 TRAVEL ACT—INTERSTATE OR FOREIGN TRAVEL

IN AID OF RACKETEERING ENTERPRISE

(18 U.S.C. § 1952(a)(3)) 

(Counts 2-51 – Travel Act)

Each defendant is charged in Counts 2-51 of the indictment with violating Section 

1952(a)(3) of Title 18 of the United States Code. For a defendant to be found guilty of 

those charges, the government must prove both of the following elements beyond a 

reasonable doubt for each defendant as to each of the fifty charged advertisements:

First, the defendant used a facility in interstate commerce with the specific intent to 

promote or facilitate a prostitution offense, committed by the business enterprise that 

posted the ad, in violation of the laws of the State in which the prostitution offense was 

committed; and

Second, after doing so, that defendant performed an act to promote or facilitate the 

prostitution offenses committed by the business enterprise that posted the ad for each 

Count.

“Promote” and “facilitate” under the Travel Act require either proof that the 

defendant personally committed the underlying state law criminal offense or aided and

abetted someone else in its commission. To “aid and abet” means to intentionally help 

someone else commit a crime. To prove a defendant guilty of violating the Travel Act by 

promoting or facilitating prostitution offenses committed by a particular business 

enterprise not directly involving defendants in violation of the laws of the State in which 

they were committed, the government must prove each of the following beyond a 

reasonable doubt:

First, a particular business enterprise committed prostitution offenses in violation of 

the laws of the State in which they were committed;

Second, the defendant aided, counseled, commanded, induced, or procured that 

some person with respect to at least one element of that specific prostitution offense 

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committed by a particular business enterprise in violation of the laws of the State in which 

it was committed;

Third, the defendant acted with the specific intent to promote or facilitate a 

prostitution offense committed by a particular business enterprise in violation of the laws 

of the State in which it was committed; and

Fourth, the defendant acted before the crime was completed.

It is not enough that the defendant merely associated with the person committing 

the crime, or unknowingly or unintentionally did things that were helpful to that person or 

was present at the scene of the crime. The evidence must show beyond a reasonable doubt 

that the defendant acted with the knowledge and intention of helping that person commit a 

violation of the Travel Act by promoting or facilitating a prostitution offense committed 

by a particular business enterprise in violation of the laws of the State in which it was 

committed.

A defendant acts with the intent to facilitate the crime when the defendant actively 

participatesin a criminal venture with advance knowledge of the crime and having acquired 

that knowledge when the defendant still had a realistic opportunity to withdraw from the 

crime.

The elements of the Travel Act are not satisfied if a defendant merely did an act that 

promoted or facilitated prostitution offenses committed by a particular business enterprise. 

The elements of the Travel Act are only established if the government proves beyond a 

reasonable doubt that a defendant knowingly and willfully intended his or her act to 

facilitate the specific prostitution offense committed by the business enterprise associated 

with the charged advertisement.

The government has the burden to prove that a defendant had the specific intent 

required to commit the offense beyond a reasonable doubt, as explained in Instruction No. 

11.1.

First Amendment Application

In addition to the requirements of the Travel Act, under the First Amendment, the 

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jury cannot find a defendant guilty of a crime based on the publication of a presumptively 

protected third-party classified ad, unless the government proves beyond a reasonable 

doubt that: 

(i) the defendant had actual knowledge of the particular ad,

(ii) the defendant had actual knowledge that the particular ad related to unlawful 

activity, and

(iii) the defendant personally took an action causing the particular ad to be published 

on, or to continue to be published on, Backpage.com with the aim of furthering 

the illegal activity.

It is not enough for the government to show that a defendant knew that some adult 

ads might lead to others committing crimes. If this is all the government demonstrates, 

you must find the defendant not guilty. To find a defendant guilty, the government must 

prove beyond a reasonable doubt that the defendant specifically intended that the 

prostitution offenses committed by a particular business enterprises be committed. 

Specific intent is defined in the following instruction.

Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 18.1 (modified to reflect the charges in the 

indictment); Ninth Circuit Manual of Model Criminal Jury Instructions 4.1. See United 

States v. Hansen, 599 U.S. __, 2023WL4138994, at *6 (June 23, 2023) (confirming that 

when a federal criminal statute uses the word “facilitation,” it means “aiding and abetting” 

and explaining that the elements of facilitation as including proof (1) “that a wrongful act 

be carried out” and proof of (2) “an intent to bring about a particular unlawful act”). Doc. 

1557-1, 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’”). See 18 U.S.C. § 1952 (tracking 

the aiding and abetting elements in Model Instruction 4.1). Rosemond, 572 U.S. at 76 (The 

“settled legal concepts” of “aiding and abetting” and the “traditional principles of 

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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”). See also United States v. Encarnacion-Ruiz, 787 F.3d 581, 588 (1st 

Cir. 2015) (“Under Rosemond, to establish the mens rea required to aid and abet a crime, 

the government must prove that the defendant participated with advance knowledge of the 

elements that constitute the charged offense. See 134 S.Ct. at 1248–49; see also id. (stating 

that an aider and abettor must have ‘full awareness of [the crime’s] scope,’ ‘full knowledge 

of the circumstances constituting the charged offense,’ and ‘participate[ ] in a criminal 

scheme knowing its extent and character’)...”).

See Backpage.com v. Dart, 807 F.3d 229, 234 (7th Cir. 2015) (“‘[A]n intermediary 

. . . normally is indifferent to the content of what it transmits. Even entities that know the 

information’s content do not become liable for the sponsor’s deeds. Does a newspaper that 

carries an advertisement for ‘escort services’ or ‘massage parlors’ aid and abet the crime 

of prostitution, if it turns out that some (or many) of the advertisers make money from that 

activity?’ Doe v. GTE Corp., 347 F.3d 655, 659 (7th Cir. 2003) . . . Backpage is an 

intermediary between the advertisers of adult services and visitors to Backpage’s 

website.”); In re Aimster Copyright Litig., 334 F.3d 643, 651 (7th Cir. 2003) (“A retailer 

of slinky dresses is not guilty of aiding and abetting prostitution even if he knows that some 

of his customers are prostitutes....”). 

United States v Gibson Specialty Co., 507 F.2d 446, 450 fn. 8 (9th Cir. 1974) (“The 

presumption that one intends the natural and probable consequences of his actions is 

insufficient in this context to establish intent to facilitate criminal activity. It is as likely as 

not that a vendor similar to the defendants in this proceeding is totally indifferent to the 

actions of his purchaser.”)

See United States v. Rundo, 990 F.3d 709, 719-720 (9th Cir. 2021) (“’the intent to 

engage in one of the prohibited acts is a personal prerequisite to punishment under [the 

Anti-Riot Act] . . . Simply put, knowing that some might choose to become violent is not 

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at all the same as intending that they do so.”).

Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1281 (W.D. Wash. 2012) 

(“The third-party publication of offers to engage in illegal transactions does not fall within 

‘well-defined and narrowly limited classes of speech’ that fall outside of First Amendment 

protection.”) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942)).

See United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB,

Doc. No. 946 at 13 (Order denying motion to dismiss) (“[Defendants] were not indicted 

for facilitating the amorphous notion of ‘prostitution.’ They were indicted for facilitating 

(via publishing ads) on fifty distinct occasions where prostitutes, prostitution-related 

businesses, or other groups were involved in the business of prostitution.”); see United 

States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Transcript of 

December 4, 2020 Hearing (“And I think one of the key things in my reason for denying 

the recusal is that this case is not about Backpage. Backpage was prosecuted in a separate 

case, entered a plea in a separate case. This case is about these individual defendants and 

whether they had specific knowledge of these ads as facilitating illegal activity.”).

United States v. Jones, 909 F.2d 533, 539 (D.C.Cir.1990) (a proper Travel Act jury 

instruction “would inform the jury that the defendant must have performed or attempted to 

perform an act in furtherance of the business, with the intent that each element of the 

underlying state crime be completed”); Deptula v. Attorney General of U.S., 642 Fed. 

Appx. 184 (3rd Cir. 2016) (“to obtain a Travel Act conviction, the government must prove 

. . . that the defendant had the specific intent to facilitate each element of the relevant 

offense.”); United States v. Bertman, 686 F.2d 772, 774 (9th Cir. 1982) (“When the 

unlawful activity charged in the indictment is the violation of state law, the commission of 

or the intent to commit such a violation is an element of the federal offense.”).

UNITED STATES’ OBJECTIONS

The Court should give the Travel Act instructions proposed by the United States 

instead of this proposed instruction by Defendants. First, the Court has already ruled on 

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the appropriate instruction for Travel Act violations and that language tracks the United 

States’ proposed instruction. Doc. 1311 at 3-4. Second, the United States doesn’t need to 

prove that the prostitution offense was actually committed. United States v. Polizzi, 500 

F.2d 856, 876-77 (9th Cir. 1974) (Government does not need to prove that defendants had 

specific intent to violate the underlying state law, only “specific intent to facilitate an 

activity which the accused knew to be unlawful under state law.”); Doc. 1587 at 3 (“The 

Ninth Circuit has clarified that the Travel Act does not require the commission of the 

predicate offense; rather, only an attempt to promote the unlawful activity with a 

subsequent overt act in furtherance of that unlawful activity.”) (cleaned up). For that 

reason, Defendants’ attempt to analogize the Travel Act instruction to an aid and abet 

instruction fails. 

Third, Defendants’ instructions are not supported by United States v. Hansen, 599 

U.S. __, 2023WL4138994, at *6 (June 23, 2023).7

 Defendants’ claim that “promote” and 

“facilitate” under the Travel Act “require either proof that the defendant personally 

committed the underlying state law criminal offense or aided and abetted someone else in 

its commission.” But that claim assumes that “facilitate,” in the context of the Travel Act, 

necessarily carries over all of the elements of a traditional aiding-and-abetting offense. 

And it assumes that the term “promote” has no independent meaning. Both assumptions 

are mistaken.

“Facilitate” in the Travel Act does not require proof of the independent commission 

of a separate crime. See Part III, infra, United States’ Proposed Instruction No. 1. Nor 

does it require proof of intent to bring about the commission of a particular unlawful act. 

United States v. Polizzi, 500 F.2d 856, 876-77 (9th Cir. 1974) (Government does not need 

to prove that defendants had specific intent to violate the underlying state law, only 

7 The United States will provide a fuller response to Defendants’ Hansen-based 

claims in its Response to Defendants’ Motion for Reconsideration (Doc. 1622). Suffice to 

say, Hansen—which addresses a different federal statute with different statutory language, and does not discuss the term “promote” at all—is not “clearly irreconcilable” with the 

Ninth Circuit cases that support the United States’ instructions and objections. Those cases 

remain binding here. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003).

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“specific intent to facilitate an activity which the accused knew to be unlawful under state 

law.”); Doc. 1587 at 3 (“The Ninth Circuit has clarified that the Travel Act does not require 

the commission of the predicate offense; rather, only an attempt to promote the unlawful 

activity with a subsequent overt act in furtherance of that unlawful activity.”) (cleaned up).

Defendants’ instruction also renders superfluous the term “promote” in the Travel 

Act—“a result we typically try to avoid.” N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 941 

(2017). See also Williams v. Taylor, 529 U.S. 362, 404 (2000) (“[W]e must give effect, if 

possible, to every clause and word of a statute.”). The Travel Act criminalizes using any 

facility in interstate commerce “with intent to--. . . promote, . . . or facilitate the promotion, 

of . . . any business enterprise . . . involving prostitution offenses in violation of the laws 

of the State in which they are committed[.]” 18 U.S.C. § 1952(a)(3), (b)(i)(1). The Act 

uses the verbs “promote” and “facilitate” disjunctively—it requires intent to “promote,” or 

to “facilitate the promotion” of, businesses involved in the type of unlawful activity at issue 

(here, prostitution). And “promote”—when used in the context of prostitution—is often 

associated with solicitation. See PANDERING, Black’s Law Dictionary (11th ed. 2019) 

(associating pandering with soliciting and “promoting prostitution”). It is also a key part 

of the definition of “advertising.” ADVERTISING, Black’s Law Dictionary (11th ed. 

2019) (advertising is “[t]he action of drawing the public’s attention to something to 

promote its sale”) (emphasis added). Defendants’ instruction ignores the meaning and

effect of this term. 

The United States’ instruction tracks the Model Jury Instruction and the Court’s 

previous ruling. Doc. 1311 at 3-4. Defendants’ proposed instruction provides a host of 

extraneous material. 

Defendants’ “First Amendment Application” is—as discussed by the United States 

in Part IV infra—contrary to law and the facts in this case. All of the instruction following 

the second element, which is where the Model Instruction ends, is unnecessary and 

represents Defendants’ legal arguments that are unsupported by law, as this Court has 

recognized in previous Orders. See Doc. 793 at 15 (“Defendants argue the First 

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Amendment requires the Government or prove that each Defendant was aware of each ad 

that make up the fifty Travel Act counts and knew that each ad proposed illegal 

transactions. The Court is not persuaded that the First Amendment demands such a 

standard.”); Doc. 946 at 13-14 (“[T]he allegations certainly describe a course of conduct 

where Defendants facilitated ‘unlawful activity,’ including numerous pimps, prostitutes 

and traffickers in violation of the Travel Act. They also certainly describe how these 

various groups continuously engaged in prostitution, which plausibly fits within the 

definition of a ‘business enterprise.’”).

Defendants’ reliance on United States v. Bertman, for the proposition that 

Defendants needed the intent to violate the state prostitution offense before being found 

guilty is misplaced. Bertman involved a claim under 18 U.S.C. § 1952(b)(2) that the 

defendant violated the Travel Act by bribing a public official in Hawaii in direct violation 

of the Hawaii Penal Code. 686 F.2d at 773-74. The Ninth Circuit held that “[w]hen the 

unlawful activity charged in the indictment is the violation of state law, the commission of 

or the intent to commit such a violation is an element of the federal offense,” the 

government “must prove . . . that the defendant has or could have violated the underlying 

state law, and the defendant may assert any relevant substantive state law defense.” Id. at 

774 (emphasis added). Here, the unlawful activity at issue is not Defendants’ direct 

violation of a state “extortion, bribery, or arson” statute under 18 U.S.C. § 1952(b)(2) (as 

in Bertman), but rather Defendants’ promotion or facilitation of the promotion of unlawful 

activity under 18 U.S.C. § 1952(a)(3) and (b)(1). See, e.g., SI¶¶9-11, 34. In these 

circumstances, it would make no sense to require that the United States prove Defendants 

did or could have directly committed the underlying state law offenses. “Promotion” or 

“facilitation,” not commission, is all that is required. See 18 U.S.C. § 1952(a)(3).

Defendants’ contrary reading would render superfluous the terms “promote” and 

“facilitate” in 18 U.S.C. § 1952(a)(3)—“a result we typically try to avoid.” N.L.R.B. v. SW 

Gen., Inc., 137 S. Ct. 929, 941 (2017). See also Williams v. Taylor, 529 U.S. 362, 404 

(2000) (“[W]e must give effect, if possible, to every clause and word of a statute.”). For 

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that very reason, the Ninth Circuit has recognized that the Travel Act does not require proof 

that defendants intended to violate state law themselves; proof that defendants intended to

promote or facilitate violation of state law suffices. Polizzi, 500 F.2d at 876-77 (“[T]o the 

extent that [a Sixth Circuit case] requires proof that an accused under § 1952 intended to 

violate state law himself, we find that it conflicts with the clear meaning of the language 

used in § 1952.”). These include cases decided post-Bertman. United States v. Winslow, 

962 F.2d 845, 852 (9th Cir. 1992) (“Section 1952(a)(3) requires the government to prove 

only that a defendant committed ‘a subsequent overt act in furtherance of the unlawful 

activity.’”); United States v. Stafford, 831 F.2d 1479, 1482 (9th Cir. 1987) (“The Travel 

Act does not require the commission of the predicate offense; rather, only an ‘attempt to 

promote’ the unlawful activity . . . with a ‘subsequent overt act in furtherance of that 

unlawful activity.’”); see also United States v. Jones, 642 F.2d 909, 913 (5th Cir. 1981) 

(subsequent facilitating act required by Travel Act need only make the unlawful activity 

easier and need not itself be unlawful). This Court’s prior Orders discussing the adequacy 

of the SI are to the same effect. See Doc. 793, Order at 15 (quoting Polizzi and describing 

mens rea required by Travel Act); see also Doc. 840, Order at 10-12 (discussing elements 

of Travel Act); Doc. 946, Order at 7-8, 11, 14-16 (same). 

The Court should instruct the jury based on the United States’ proposed jury 

instructions describing Counts 2-51.

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UNITED STATES’ PROPOSED INSTRUCTION 

18.4 LAUNDERING MONETARY INSTRUMENTS

(18 U.S.C. § 1956(a)(1)(B))

Defendants Lacey, Larkin, Spear, and Brunst are charged in Counts 53-62 of the 

indictment with Concealment Money Laundering in violation of Section 1956(a)(1)(B)(i)

of Title 18 of the United States Code. In order for a defendant to be found guilty of that 

charge, the United States must prove each of the following elements beyond a reasonable 

doubt: 

First, the defendant conducted a financial transaction involving property that 

represented the proceeds of promoting, managing, establishing, carrying on, or facilitating 

the promotion, management, establishment, or carrying on, of any business enterprise 

involving prostitution offenses in violation of the laws of the State in which they are 

committed;

Second, the defendant knew that the property represented the proceeds of some form 

of unlawful activity; and

Third, the defendant knew that the transaction was designed in whole or in part to 

conceal and disguise the nature, the location, the source, the ownership, or the control of 

the proceeds of the specified unlawful activity.

A financial transaction is a transaction involving the movement of funds by wire or

other means that affects interstate or foreign commerce in any way.

The phrase “knew that the property represented the proceeds of some form of 

unlawful activity” means that the defendant knew that the property involved in the 

transaction represented proceeds from some form, though not necessarily which form, of 

activity that constitutes a felony. I instruct you that violating the Travel Act is a felony.

DEFENDANTS’ OBJECTION

Defendants object to the instruction on the basis that the government seeks to put at 

issue alleged violations of the Travel Act beyond the scope of the fifty advertisements 

(Counts 2-51) alleged in the Superseding Indictment in violation of this Court’s prior 

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orders. See Doc. No. 946 at 13 (Order denying motion to dismiss) (“Defendants’ 

suggestion that the SI improperly indicts a ‘boundless conspiracy to facilitate prostitution 

in general,’ (Reply at 4), however, mischaracterizes the charges against them. Such a claim 

is simply untrue. They were not indicted for facilitating the amorphous notion of 

‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.”) (emphasis added); Doc. No. 1099 (December 4, 2020 Hr’g 

Tr.) at 38 (“[T]his case is not about Backpage . . . . This case is about these individuals 

and whether they had specific knowledge of these ads as facilitating illegal activity.”). The 

Court should therefore define “specified unlawful activity” as relating to the fifty charged 

advertisements, consistent with its prior orders. 

Further, the Superseding Indictment does not define what the “specified unlawful 

activity” is. Doc. 230 at ¶¶ 207, 209, 211. Instead, the indictment incorporates by reference 

the preceding paragraphs of the indictment. Id. at ¶¶ 204, 206, 208. The only “specified 

unlawful activity” that could be incorporated by reference into the money laundering 

charges are Counts 2-51, which charge Travel Act violations tied to fifty specific 

advertisements. See United States v. Hirmer, No. 3:08CR79/MCR, 2009 WL 10726280, 

at *4 (N.D. Fla. July 14, 2009) (“The indictment may identify the specified unlawful

activity by incorporating allegations from other counts.”). Nor does the indictment’s 

conspiracy charge regarding the Travel Act (Count 1) expand the scope of the specified 

unlawful activity beyond Counts 2-51 (the fifty advertisements) given the Court’s prior 

rulings discussed above. And in any event, a Travel Act conspiracy charge does not 

constitute “specified unlawful activity.” See 18 USC § (c)(7)(D); 18 U.S.C. § 1957(f)(3); 

18 U.S.C. § 1961(1) (making no reference to 18 U.S.C. § 371 or a conspiracy to violate the 

Travel Act).

Tethering the money laundering charges to the fifty Travel Act counts not only is 

consistent with the Court’s prior orders and the Superseding Indictment’s allegations, but 

it avoids the very real possibility that the jury infers that prostitution generally – rather than 

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the indictment’s Travel Act charges – constitutes specified unlawful activity.

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DEFENDANTS’ PROPOSED INSTRUCTION

18.4 LAUNDERING MONETARY INSTRUMENTS

(Counts 53-62—Concealment Money Laundering)

Defendants Lacey, Larkin, Spear, and Brunst are charged in Counts 53-62 of the 

indictment with Concealment Money Laundering in violation of Section 1956(a)(1)(B)(i) 

of Title 18 of the United States Code. In order for a defendant to be found guilty of that 

charge, the government must prove each of the following elements beyond a reasonable 

doubt: 

First, the defendant conducted a financial transaction involving property that 

represented the proceeds of the knowing and willful promotion, or facilitation of the 

promotion of, the prostitution offenses committed by a particular business enterprise in 

violation of 18 U.S.C. § 1952(a)(3)(A), specifically (i) a business enterprise involved in at 

least one of the fifty advertisements that is the subject of Counts 2 – 51 and (ii) a business 

enterprise for which you found that defendant guilty of promoting or facilitating the 

promotion of; 

Second, the defendant knew that the property represented the proceeds of some form 

of unlawful activity; and

Third, the defendant knew that the transaction was designed in whole or in part to 

conceal and disguise the nature, the location, the source, the ownership, or the control of 

the proceeds of the specified unlawful activity.

A financial transaction is a transaction involving the movement of funds by wire or 

other means that affects interstate or foreign commerce in any way.

The phrase “knew that the property represented the proceeds of some form of 

unlawful activity” means that the defendant knew that the property involved in the 

transaction represented proceeds from some form, though not necessarily which form, of 

activity that constitutes a felony. I instruct you that knowingly and willfully promoting, or 

facilitating the promotion of, the prostitution offenses committed by any business 

enterprise in violation of 18 U.S.C. § 1952(a)(3)(A) is a felony.

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Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 18.4 (modified to reflect the charges in the 

indictment). As this Court previously held, the “specified unlawful activity” (“SUA”) here 

is not the general facilitation or promotion of “any business enterprise involving 

prostitution offenses” in violation of the Travel Act. See United States v. Lacey, et al. (D. 

Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order denying motion to 

dismiss) (“[Defendants] were not indicted for facilitating the amorphous notion of 

‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.”); see United States v. Lacey, et al. (D. Ariz.), Case No. 18-

CR-00422-PHX-SMB, Transcript of December 4, 2020 Hearing (“And I think one of the 

key things in my reason for denying the recusal is that this case is not about Backpage. 

Backpage was prosecuted in a separate case, entered a plea in a separate case. This case is 

about these individual defendants and whether they had specific knowledge of these ads as 

facilitating illegal activity.”). Therefore, the SUA referenced in each of the proposed jury 

instructions regarding the Indictment’s money laundering charges must reference the “fifty 

distinct” advertisements at issue in Counts 2 - 51. Id. 

UNITED STATES’ OBJECTIONS

The parties’ proposed instructions are similar except for the first element and the 

final paragraph. Defendants’ instruction is contrary to the law of the case, as the Court has 

already determined the appropriate instruction for laundering monetary instruments. Doc. 

1311 at 5. The United States’ instruction tracks the Court’s ruling. Defendants propose a 

much more stringent definition of the specified unlawful activity. As this Court has 

previously recognized, that instruction is contrary to governing law. 

For instance, the first money laundering statute that Defendants are indicted 

under does not require the Government to allege or prove the underlying 

offenses. See 18 U.S.C. § 1956(c)(1) (“the term ‘knowing that the property 

involved in a financial transaction represents the proceeds of some form of 

unlawful activity’ means that the person knew the property involved in the 

transaction represented proceeds from some form, though not necessarily 

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which form, of activity that constitutes a felony.” (emphasis added)).

Doc. 946 at 17. 

Contrary to Defendants’ proposed instruction, a defendant can be found guilty of 

money laundering even if he was found not guilty under any of the Travel Act counts. Doc. 

946 at 17, n.11 (“[A] defendant may be convicted of a money laundering offense even if 

he did not commit the underlying offense.”); Doc. 1587 at 17 (“Defendants can be 

convicted for money laundering without being found guilty for the activity that generated 

the laundered money[.]”). The instruction proposed by the United States should be given.

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UNITED STATES’ PROPOSED INSTRUCTION

18.5 TRANSPORTING FUNDS TO PROMOTE 

UNLAWFUL ACTIVITY

(18 U.S.C. § 1956(a)(2)(A))

Defendants Lacey, Larkin, Spear, and Brunst are charged in Counts 63-68 of the 

indictment with transporting funds to promote unlawful activity in violation of Section 

1956(a)(2)(A) of Title 18 of the United States Code. In order for a defendant to be found 

guilty of that charge, the United States must prove each of the following elements beyond 

a reasonable doubt:

First, the defendant transported money from a place in the United States to or 

through a place outside the United States or to a place in the United States from or through 

a place outside the United States; and

Second, the defendant acted with the intent to promote the carrying on of violations 

of the Travel Act.

DEFENDANTS’ OBJECTION

Defendants object to the instruction on the basis that the government seeks to put at 

issue alleged violations of the Travel Act beyond the scope of the fifty advertisements 

(Counts 2-51) alleged in the Superseding Indictment in violation of this Court’s prior 

orders. See Doc. No. 946 at 13 (Order denying motion to dismiss) (“Defendants’ 

suggestion that the SI improperly indicts a ‘boundless conspiracy to facilitate prostitution 

in general,’ (Reply at 4), however, mischaracterizes the charges against them. Such a claim 

is simply untrue. They were not indicted for facilitating the amorphous notion of 

‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.”) (emphasis added); Doc. No. 1099 (December 4, 2020 Hr’g 

Tr.) at 38 (“[T]his case is not about Backpage . . . . This case is about these individuals 

and whether they had specific knowledge of these ads as facilitating illegal activity.”). 

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Further, the Superseding Indictment does not define what the “specified unlawful 

activity” is. Doc. 230 at ¶¶ 207, 209, 211. Instead, the indictment incorporates by reference 

the preceding paragraphs of the indictment. Id. at ¶¶ 204, 206, 208. The only “specified 

unlawful activity” that could be incorporated by reference into the money laundering 

charges are Counts 2-51, which charge Travel Act violations tied to fifty specific 

advertisements. See United States v. Hirmer, No. 3:08CR79/MCR, 2009 WL 10726280, 

at *4 (N.D. Fla. July 14, 2009) (“The indictment may identify the specified unlawful

activity by incorporating allegations from other counts.”). Indeed, the Ninth Circuit Model 

Instruction notes in brackets as to the second element: “specify criminal activity charged 

in the indictment.” Nor does the indictment’s conspiracy charge regarding the Travel Act 

(Count 1) expand the scope of the specified unlawful activity beyond Counts 2-51 (the fifty 

advertisements) given the Court’s prior rulings discussed above. And in any event, a 

Travel Act conspiracy charge does not constitute “specified unlawful activity.” See 18 

USC § (c)(7)(D); 18 U.S.C. § 1957(f)(3); 18 U.S.C. § 1961(1) (making no reference to 18 

U.S.C. § 371 or a conspiracy to violate the Travel Act). 

Tethering the money laundering charges to the fifty Travel Act counts not only is 

consistent with the Court’s prior orders and the Superseding Indictment’s allegations, but 

it avoids the very real possibility that the jury infers that prostitution generally – rather than 

the indictment’s Travel Act charges – constitutes specified unlawful activity.

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DEFENDANTS’ PROPOSED INSTRUCTION

18.5 TRANSPORTING FUNDS TO PROMOTE UNLAWFUL ACTIVITY

(Counts 63-68—International Promotional Money Laundering)

Defendants Lacey, Larkin, Spear, and Brunst are charged in Counts 63-68 of the 

indictment with transporting funds to promote unlawful activity in violation of Section 

1956(a)(2)(A) of Title 18 of the United States Code. In order for a defendant to be found 

guilty of that charge, the government must prove each of the following elements beyond a 

reasonable doubt:

First, the defendant transported money from a place in the United States to or 

through a place outside the United States or to a place in the United States from or through 

a place outside the United States; and

Second, the defendant acted with the intent to promote, or facilitate the promotion 

of, the prostitution offenses committed by a particular business enterprise in violation of 

18 U.S.C. § 1952(a)(3)(A), specifically (i) a business enterprise involved in at least one of 

the fifty advertisements that is the subject of Counts 2 – 51 and (ii) a business enterprise 

for which you found that defendant guilty of promoting or facilitating the promotion of.

Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 18.5 (modified to reflect the charges in the 

indictment). As this Court previously held, the “specified unlawful activity” (“SUA”) here 

is not the general facilitation or promotion of “any business enterprise involving 

prostitution offenses” in violation of the Travel Act. See United States v. Lacey, et al. (D. 

Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order denying motion to 

dismiss) (“[Defendants] were not indicted for facilitating the amorphous notion of 

‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.”); see United States v. Lacey, et al. (D. Ariz.), Case No. 18-

CR-00422-PHX-SMB, Transcript of December 4, 2020 Hearing (“And I think one of the 

key things in my reason for denying the recusal is that this case is not about Backpage. 

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Backpage was prosecuted in a separate case, entered a plea in a separate case. This case is 

about these individual defendants and whether they had specific knowledge of these ads as 

facilitating illegal activity.”). Therefore, the SUA referenced in each of the proposed jury 

instructions regarding the Indictment’s money laundering charges must reference the “fifty 

distinct” advertisements at issue in Counts 2 - 51. Id. 

UNITED STATES’ OBJECTIONS

The parties’ proposed instructions are similar except for the second element. The 

United States’ instruction tracks the Court’s instruction for transporting funds to promote 

unlawful activity. Doc. 1311 at 5. Defendants propose a much more stringent definition 

of the specified unlawful activity. As this Court has previously recognized, that instruction 

is contrary to governing law. 

For instance, the first money laundering statute that Defendants are indicted 

under does not require the Government to allege or prove the underlying 

offenses. See 18 U.S.C. § 1956(c)(1) (“the term ‘knowing that the property 

involved in a financial transaction represents the proceeds of some form of 

unlawful activity’ means that the person knew the property involved in the 

transaction represented proceeds from some form, though not necessarily 

which form, of activity that constitutes a felony.” (emphasis added)).

Doc. 946 at 17; see Doc. 1311 at 5.

Contrary to Defendants’ proposed instruction, a defendant can be found guilty of 

money laundering even if he was found not guilty under any of the Travel Act counts. Doc. 

946 at 17, n.11 (“[A] defendant may be convicted of a money laundering offense even if 

he did not commit the underlying offense.”); Doc. 1587 at 3 (“The Ninth Circuit has 

clarified that the Travel Act does not require the commission of the predicate offense; 

rather, only an attempt to promote the unlawful activity with a subsequent overt act in 

furtherance of that unlawful activity.”) (cleaned up).

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UNITED STATES’ PROPOSED INSTRUCTION

18.6 TRANSPORTING MONETARY INSTRUMENTS FOR THE 

PURPOSE OF LAUNDERING

(18 U.S.C. § 1956(a)(2)(B))

Defendant Lacey is charged in Count 100 of the indictment with transporting money 

for the purpose of laundering in violation of Section 1956(a)(2)(B) of Title 18 of the United 

States Code. In order for the defendant to be found guilty of that charge, the United States

must prove each of the following elements beyond a reasonable doubt:

First, the defendant transported money from a place in the United States to or 

through a place outside the United States;

Second, the defendant knew that the money represented the proceeds of some form 

of unlawful activity; and

Third, the defendant knew the transportation was designed in whole or in part to 

conceal or disguise the nature, location, source, ownership, or control of the proceeds of 

promoting or facilitating the promotion of any business enterprise involving prostitution 

offenses.

DEFENDANTS’ OBJECTION

Defendants object to the instruction on the basis that the government seeks to put at 

issue alleged violations of the Travel Act beyond the scope of the fifty advertisements 

(Counts 2-51) alleged in the Superseding Indictment in violation of this Court’s prior 

orders. See Doc. No. 946 at 13 (Order denying motion to dismiss) (“Defendants’ 

suggestion that the SI improperly indicts a ‘boundless conspiracy to facilitate prostitution 

in general,’ (Reply at 4), however, mischaracterizes the charges against them. Such a claim 

is simply untrue. They were not indicted for facilitating the amorphous notion of 

‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.”) (emphasis added); Doc No. 1099 (December 4, 2020 Hr’g 

Tr.) at 38 (“[T]his case is not about Backpage . . . . This case is about these individuals 

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and whether they had specific knowledge of these ads as facilitating illegal activity.”). 

Further, the Superseding Indictment does not define what the “specified unlawful activity” 

is. Doc. 230 at ¶¶ 207, 209, 211. Instead, the indictment incorporates by reference the 

preceding paragraphs of the indictment. Id. at ¶¶ 204, 206, 208. The only “specified 

unlawful activity” that could be incorporated by reference into the money laundering 

charges are Counts 2-51, which charge Travel Act violations tied to fifty specific 

advertisements. See United States v. Hirmer, No. 3:08CR79/MCR, 2009 WL 10726280, 

at *4 (N.D. Fla. July 14, 2009) (“The indictment may identify the specified unlawful

activity by incorporating allegations from other counts.”). Indeed, the Ninth Circuit Model 

Instruction notes in brackets as to the third element: “specify criminal activity charged in 

the indictment.” Nor does the indictment’s conspiracy charge regarding the Travel Act 

(Count 1) expand the scope of the specified unlawful activity beyond Counts 2-51 (the fifty 

advertisements) given the Court’s prior rulings discussed above. And in any event, a 

Travel Act conspiracy charge does not constitute “specified unlawful activity.” See 18 

USC § (c)(7)(D); 18 U.S.C. § 1957(f)(3); 18 U.S.C. § 1961(1) (making no reference to 18 

U.S.C. § 371 or a conspiracy to violate the Travel Act). 

Tethering the money laundering charges to the fifty Travel Act counts not only is 

consistent with the Court’s prior orders and the Superseding Indictment’s allegations, but 

it avoids the very real possibility that the jury infers that prostitution generally – rather than 

the indictment’s Travel Act charges – constitutes specified unlawful activity.

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DEFENDANTS’ PROPOSED INSTRUCTION

18.6 TRANSPORTING MONETARY INSTRUMENTS FOR THE PURPOSES OF 

LAUNDERING

(Count 100 – International Concealment Money Laundering)

Defendant Lacey is charged in Count 100 of the indictment with transporting money 

for the purpose of laundering in violation of Section 1956(a)(2)(B) of Title 18 of the United 

States Code. In order for the defendant to be found guilty of that charge, the government 

must prove each of the following elements beyond a reasonable doubt:

First, the defendant transported money from a place in the United States to or 

through a place outside the United States;

Second, the defendant knew that the money represented the proceeds of the knowing 

and willful promotion, or facilitation of the promotion of, the prostitution offenses 

committed by a particular business enterprise in violation of 18 U.S.C. § 1952(a)(3)(A), 

specifically (i) a business enterprise involved in at least one of the fifty advertisements that 

is the subject of Counts 2 – 51 and (ii) a business enterprise for which you found that 

defendant guilty of promoting or facilitating the promotion of; and

Third, the defendant knew the transportation was designed in whole or in part to 

conceal or disguise the nature, location, source, ownership, or control of the proceeds of 

the knowing and willful promotion, or facilitation of the promotion of, the prostitution 

offenses committed by any business enterprise in violation of 18 U.S.C. § 1952(a)(3)(A).

Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 18.6 (modified to reflect the charges in the 

indictment). As this Court previously held, the “specified unlawful activity” (“SUA”) here 

is not the general facilitation or promotion of “any business enterprise involving 

prostitution offenses” in violation of the Travel Act. See United States v. Lacey, et al. (D. 

Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order denying motion to 

dismiss) (“[Defendants] were not indicted for facilitating the amorphous notion of

‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

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occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.”); see United States v. Lacey, et al. (D. Ariz.), Case No. 18-

CR-00422-PHX-SMB, Transcript of December 4, 2020 Hearing (“And I think one of the 

key things in my reason for denying the recusal is that this case is not about Backpage. 

Backpage was prosecuted in a separate case, entered a plea in a separate case. This case is 

about these individual defendants and whether they had specific knowledge of these ads as 

facilitating illegal activity.”). Therefore, the SUA referenced in each of the proposed jury 

instructions regarding the Indictment’s money laundering charges must reference the “fifty 

distinct” advertisements at issue in Counts 2 - 51. Id. 

UNITED STATES’ OBJECTIONS

The United States objects to Defendants’ proposed second element, which 

improperly expands the elements of the crime and violates the law of the case. Doc. 1311 

at 6; see also 18 U.S.C. § 1956(c)(1) (“the term ‘knowing that the property involved in a 

financial transaction represents the proceeds of some form of unlawful activity’ means that 

the person knew the property involved in the transaction represented proceeds from some 

form, though not necessarily which form, of activity that constitutes a felony.”) The Court 

should follow the law of the case and issue the same instruction it did previously. Doc. 

1311 at 6. 

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UNITED STATES’ PROPOSED INSTRUCTION

18.7 MONEY LAUNDERING

(18 U.S.C. § 1957)

Defendant Lacey is charged in Counts 69-70, 81, 83-84, 86, 88-92, and 94-99; 

Defendant Larkin is charged in Counts 80 and 87; Defendant Spear is charged in Counts 

71-78, 85, and 93; and Defendant Brunst is charged in Counts 69-70, 78-84, and 86-93, of

the indictment with transactional money laundering in violation of Section 1957 of Title 

18 of the United States Code. For a defendant to be found guilty of that charge, the United 

States must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly engaged or attempted to engage in a monetary 

transaction;

Second, the defendant knew the transaction involved criminally derived property;

Third, the property had a value greater than $10,000;

Fourth, the property was, in fact, derived from violations of the Travel Act; and

Fifth, the transaction occurred in the United States.

The term “monetary transaction” means the deposit, withdrawal, transfer, or 

exchange, in or affecting interstate commerce, of funds or a monetary instrument by, 

through, or to a financial institution. 

The term “financial institution” means an insured bank, commercial bank, or credit 

union.

The term “criminally derived property” means any property constituting, or derived 

from, the proceeds of a criminal offense. The United States must prove that the defendant 

knew that the property involved in the monetary transaction constituted, or was derived 

from, proceeds obtained by some criminal offense. The United States does not have to 

prove that the defendant knew the precise nature of that criminal offense, or knew the 

property involved in the transaction represented the proceeds of promoting or facilitating 

the promotion of any business enterprise involving prostitution offenses.

Although the United States must prove that, of the property at issue more than 

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$10,000 was criminally derived, the United States does not have to prove that all of the 

property at issue was criminally derived.

DEFENDANTS’ OBJECTION

Defendants object to the instruction on the basis that the government seeks to put at 

issue alleged violations of the Travel Act beyond the scope of the fifty advertisements 

(Counts 2-51) alleged in the Superseding Indictment in violation of this Court’s prior 

orders. See Doc. No. 946 at 13 (Order denying motion to dismiss) (“Defendants’ 

suggestion that the SI improperly indicts a ‘boundless conspiracy to facilitate prostitution 

in general,’ (Reply at 4), however, mischaracterizes the charges against them. Such a claim 

is simply untrue. They were not indicted for facilitating the amorphous notion of 

‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.”) (emphasis added); Doc No. 1099 (December 4, 2020 Hr’g 

Tr.) at 38 (“[T]his case is not about Backpage . . . . This case is about these individuals 

and whether they had specific knowledge of these ads as facilitating illegal activity.”). 

Further, the Superseding Indictment does not define what the “specified unlawful 

activity” is. Doc. 230 at ¶¶ 207, 209, 211. Instead, the indictment incorporates by reference 

the preceding paragraphs of the indictment. Id. at ¶¶ 204, 206, 208. The only “specified 

unlawful activity” that could be incorporated by reference into the money laundering 

charges are Counts 2-51, which charge Travel Act violations tied to fifty specific 

advertisements. See United States v. Hirmer, No. 3:08CR79/MCR, 2009 WL 10726280, 

at *4 (N.D. Fla. July 14, 2009) (“The indictment may identify the specified unlawful

activity by incorporating allegations from other counts.”). Indeed, the Ninth Circuit Model 

Instruction notes in brackets as to the fourth element and the definition of “criminally 

derived property” that the instruction must “specify criminal activity charged in the 

indictment.” Nor does the indictment’s conspiracy charge regarding the Travel Act (Count 

1) expand the scope of the specified unlawful activity beyond Counts 2-51 (the fifty 

advertisements) given the Court’s prior rulings discussed above. And in any event, a 

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Travel Act conspiracy charge does not constitute “specified unlawful activity.” See 18 

USC § (c)(7)(D); 18 U.S.C. § 1957(f)(3); 18 U.S.C. § 1961(1) (making no reference to 18 

U.S.C. § 371 or a conspiracy to violate the Travel Act). 

Tethering the money laundering charges to the fifty Travel Act counts not only is 

consistent with the Court’s prior orders and the Superseding Indictment’s allegations, but 

it avoids the very real possibility that the jury infers that prostitution generally – rather than 

the indictment’s Travel Act charges – constitutes specified unlawful activity.

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DEFENDANTS’ PROPOSED INSTRUCTION

18.7 MONEY LAUNDERING

(Transactional Money Laundering)

Defendant Lacey is charged in Counts 69-70, 81, 83-84, 86, 88-92, and 94-99; 

Defendant Larkin is charged in Counts 80 and 87; Defendant Spear is charged in Counts 

71-78, 85, and 93; and Defendant Brunst is charged in Counts 69-70, 78-84, and 86-93, of 

the indictment with money laundering in violation of Section 1957 of Title 18 of the United 

States Code. In order for a defendant to be found guilty of that charge, the government 

must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly engaged or attempted to engage in a monetary 

transaction;

Second, the defendant knew the specific transaction charged in the indictment 

involved specific criminally derived property;

Third, the property had a value greater than $10,000;

Fourth, the property was, in fact, derived from the knowing and willful promotion,

or facilitation of the promotion of, the prostitution offenses committed by a particular 

business enterprise in violation of 18 U.S.C. § 1952(a)(3)(A), specifically (i) a business 

enterprise involved in at least one of the fifty advertisements that is the subject of Counts 

2 – 51 and (ii) a business enterprise for which you found that Defendant guilty of promoting 

or facilitating the promotion of; and

Fifth, the transaction occurred in the United States.

The term “monetary transaction” means the deposit, withdrawal, transfer, or 

exchange, in or affecting interstate commerce, of funds or a monetary instrument by, 

through, or to a financial institution. 

The term “financial institution” means an insured bank, commercial bank, or credit 

union.

The term “criminally derived property” means any property constituting, or derived 

from, the proceeds of a criminal offense. The government must prove beyond a reasonable 

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doubt that the defendant knew that the property involved in the monetary transaction 

constituted, or was derived from, proceeds obtained by some criminal offense. The statute 

only encompasses transactions in which a defendant first knowingly obtains “criminally 

derived property,” and then engages in a monetary transaction with that property.

The government does not have to prove that the defendant knew the precise nature 

of that criminal offense, or knew the property involved in the transaction represented the 

proceeds of promoting, or facilitating the promotion of, the prostitution offenses committed 

by a particular business enterprise in violation of 18 U.S.C. § 1952(a)(3)(A). But the 

government must prove beyond a reasonable doubt that the defendant knew the specific 

transaction charged in the indictment involved specific criminally derived property—it is 

not enough that the defendant knew the proceeds derived from advertisements for 

prostitution offenses. 

Although the government must prove that more than $10,000 of the property at issue 

was criminally derived, the government does not have to prove that all of the property at 

issue was criminally derived.

Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 18.7 (modified to reflect the charges in the 

indictment). As this Court previously held, the “specified unlawful activity” (“SUA”) here 

is not the general facilitation or promotion of “any business enterprise involving 

prostitution offenses” in violation of the Travel Act. See United States v. Lacey, et al. (D. 

Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order denying motion to 

dismiss) (“[Defendants] were not indicted for facilitating the amorphous notion of 

‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.”); see United States v. Lacey, et al. (D. Ariz.), Case No. 18-

CR-00422-PHX-SMB, Transcript of December 4, 2020 Hearing (“And I think one of the 

key things in my reason for denying the recusal is that this case is not about Backpage. 

Backpage was prosecuted in a separate case, entered a plea in a separate case. This case is 

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about these individual defendants and whether they had specific knowledge of these ads as 

facilitating illegal activity.”). Therefore, the SUA referenced in each of the proposed jury 

instructions regarding the Indictment’s money laundering charges must reference the “fifty 

distinct” advertisements at issue in Counts 2 - 51. Id. 

See United States v. Piervinanzi, 23 F.3d 670, 677 (2d Cir. 1994) (government 

agreeing to vacate conviction and not disputing that “the language of the statute only 

encompasses transactions in which a defendant first obtains ‘criminally derived property,’ 

and then engages in a monetary transaction with that property.”); United States v. Johnson, 

971 F.2d 562, 570 (10th Cir. 1992) (reversing conviction, noting that “Section 

1957 appears to be drafted to proscribe certain transactions in proceeds that have already 

been obtained by an individual from an underlying criminal offense.”). 

UNITED STATES’ OBJECTIONS

Defendants’ proposed instruction materially differs from the instruction the Court 

has already given for transactional money laundering. Doc. 1311 at 5-6. The instruction 

previously given is the law of the case, tracks the Model Instruction, and is appropriate. 

Defendants add language to the second element and provide an incorrect statement of law 

in the fourth element. Doc. 1311 at 5-6. As the Court has already made clear, “In a 

prosecution for an offense under [18 U.S.C. § 1957], the Government is not required to 

prove the defendant knew that the offense from which the criminally derived property was 

derived was specified unlawful activity.” 18 U.S.C. § 1957; see also Doc. 946 at 17; Doc. 

1311 at 5-6.

Further, Defendants have modified the Model Instruction’s definition of “criminally 

derived property.” Defendants’ proposed language in the last sentence of the penultimate 

paragraph is inappropriate. If the defendant knew “the transaction involved criminally 

derived property” that’s sufficient to satisfy the second element. Model Instruction 18.7. 

The Court should issue the United States’ proposed instruction, which is the law of the 

case. Doc. 1311 at 5-6.

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UNITED STATES’ PROPOSED INSTRUCTION

18.7A MONEY LAUNDERING CONSPIRACY

(18 U.S.C. § 1956(h))

Defendants Lacey, Larkin, Spear, and Brunst are charged in Count 52 the indictment 

with money laundering conspiracy in violation of Section 1956(h) of Title 18 of the United 

States Code. For each defendant to be found guilty of that charge, the government must 

prove each of the following elements beyond a reasonable doubt:

First, there was an agreement to commit money laundering;

Second, the defendant knew the objective of the agreement;

Third, the defendant joined the agreement with the intent to further its unlawful 

purpose.

DEFENDANTS’ OBJECTION

The Defendants have proposed an alternative version of the 18.7A instruction that 

more accurately and completely describes the offense and the required elements. 

First, the government’s proposed instruction fails to recite the specific money 

laundering offenses at issue in the first element. Using the generic term “money 

laundering” without reference to the specific offenses could prejudice defendants by 

confusing the jury and suggesting to the jurors that they may mix and match elements 

among different offenses. 

Second, the government omits the word “illegal” before “objective” from the second 

element. But mere association with members of a conspiracy, “without an intention and 

agreement to accomplish a specific illegal objective, is not sufficient to make one a 

conspirator.” United States v. Hubbard, 96 F.3d 1223, 1226 (9th Cir. 1996) (citing United 

States v. Melchor–Lopez, 627 F.2d 886, 891 (9th Cir. 1980)). United States v. Hubbard, 

96 F.3d 1223, 1226 (9th Cir. 1996) (“mere association with members of a conspiracy or 

knowledge of the conspiracy, ‘without an intention and agreement to accomplish a specific 

illegal objective, is not sufficient to make one a conspirator’”); United States v. Merino, 

846 F. App’x 494, 495 (9th Cir. 2021) (same). Given that the indictment says that the 

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“object of the conspiracy was to obtain money,” Doc. 230, ¶ 197—a patently lawful 

object—it is critical that the jury understand that the object of a conspiracy must be 

unlawful.

Third, this instruction should include an instruction regarding unanimity to 

accurately describe the offense to the jury. United States v. Lapier, 796 F.3d 1090 (9th 

Cir. 2015) (failure to give specific unanimity instruction was plain error because half of 

jury could have found defendant guilty of joining one conspiracy while other half of jury 

could have found defendant guilty of joining second conspiracy); Salinas v. United States, 

522 U.S. 52, 63 (1997) (the government must prove a defendant agreed to pursue the “same 

criminal objective” as his or her coconspirators).

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DEFENDANTS’ PROPOSED INSTRUCTION

18.7A CONSPIRACY—ELEMENTS

(Conspiracy to Commit Money Laundering – Elements)

Defendants Lacey, Larkin, Spear, and Brunst are charged in Count 52 of the 

indictment with money laundering conspiracy in violation of Section 1956(h) of Title 18 

of the United States Code. For a Defendant to be found guilty of that charge, the 

government must prove each of the following elements beyond a reasonable doubt:

First, there was an agreement to commit concealment money laundering in violation 

of Section 1956(a)(1)(B)(i), international promotional money laundering in violation of 

Section 1956(a)(2)(A), transactional money laundering in violation of Section 1957(a), or 

international concealment money laundering in violation of Section 1956(a)(2)(B)(i);

Second, the defendant knew the illegal objective of the agreement; and

Third, the defendant joined the agreement with the specific intent to further its 

unlawful purpose.

What Is a Conspiracy, and How Does One Become a Member?

A conspiracy is a kind of criminal partnership—an agreement of two or more 

persons to commit one or more crimes. The crime of conspiracy is the agreement to do 

something unlawful; it does not matter whether the crime agreed upon was committed.

For a conspiracy to have existed, it is not necessary that the conspirators made a 

formal agreement or that they agreed on every detail of the conspiracy. It is not enough, 

however, that they simply met, discussed matters of common interest, acted in similar 

ways, or perhaps helped one another. You must find that there was a plan to commit at 

least one of the crimes alleged in the indictment as an illegal object of the conspiracy with 

all of you agreeing as to the particular crime – i.e., concealment, international promotional, 

transactional, and international concealment money laundering – which the conspirators 

agreed to commit.

One becomes a member of a conspiracy by willfully participating in the unlawful 

plan with the intent to advance or further some illegal object or purpose of the conspiracy, 

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even though the person does not have full knowledge of all the details of the conspiracy. 

Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the 

originators. On the other hand, one who has no knowledge of a conspiracy, but happens to 

act in a way which furthers some illegal object or purpose of the conspiracy, does not 

thereby become a conspirator. Similarly, a person does not become a conspirator merely 

by associating with one or more persons who are conspirators, nor merely by knowing that 

a conspiracy exists. To become a co-conspirator a person must have an intention and 

agreement to accomplish the same, specific criminal objective as his or her co-conspirators.

Proof of an underlying substantive crime does not, without more, prove the 

existence of a conspiracy to commit that crime. 

Unanimity Requirements

For a Defendant to be found guilty of Count 52 (Conspiracy to Commit Money 

Laundering), you must find beyond a reasonable doubt that there was a plan to commit at 

least one illegal object of the alleged conspiracy – specifically intending to commit 

concealment money laundering, international promotion money laundering, transactional 

money laundering, and international concealment money laundering – with all of you 

agreeing beyond a reasonable doubt as to which illegal object – which specific act(s) of 

concealment money laundering, international promotion money laundering, transactional 

money laundering, and international concealment money laundering – and all of you 

agreeing beyond a reasonable doubt that the Defendant knowingly and willfully joined the 

conspiracy to accomplish such object(s).

Supporting Authorities

Ninth Circuit Manual of Model Criminal Jury Instructions 18.7A, 18.4, 18.5, 18.6, 

18.7 (modified to reflect criminal objects charged in Count 52); Barry Tarlow, Defense of 

a Federal Conspiracy Prosecution, 4 J.Crim.Defense 183, 201-02 (1978) (explaining that 

the object of the conspiracy must be unlawful); United States v. Lennick, 18 F.3d 814, 819 

(9th Cir. 1994) (“Proof of the underlying substantive crime, however, does not, without 

more, prove the existence of a conspiracy.”); United States v. Lapier, 796 F.3d 1090 (9th 

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Cir. 2015) (failure to give specific unanimity instruction was plain error because half of 

jury could have found defendant guilty of joining one conspiracy while other half of jury 

could have found defendant guilty of joining second conspiracy); United States v. 

Pomponio, 429 U.S. 10, 12 (1976) (willfulness is the “intentional violation of a known 

legal duty”).

Salinas v. United States, 522 U.S. 52, 63 (1997) (the government must prove a 

defendant agreed to pursue the “same criminal objective” as his or her coconspirators); 

United States v. Hubbard, 96 F.3d 1223, 1226 (9th Cir. 1996) (“mere association with 

members of a conspiracy or knowledge of the conspiracy, ‘without an intention and

agreement to accomplish a specific illegal objective, is not sufficient to make one a 

conspirator’”); United States v. Merino, 846 F. App’x 494, 495 (9th Cir. 2021) (same).

UNITED STATES’ OBJECTIONS

Defendants inappropriately expand the crime beyond what is required. The Model 

Instruction provides the required elements the United States must prove to convict

Defendants. Defendants add the word “illegal” to the second element and the word 

“specific” to the third element. The Court, previously, recognized this and chose to use the 

Model Instruction for the Preliminary Instructions. Doc. 1311 at 4-5. The Court should 

follow the law of the case and give the Model Instruction; Defendants’ additions do not 

properly explain the law. Model Instruction 18.7A; Doc. 1311 at 4-5.

II. STIPULATED NON-MODEL INSTRUCTIONS

N/A

III. NON-MODEL INSTRUCTIONS REQUESTED BY THE UNITED STATES

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UNITED STATES’ PROPOSED INSTRUCTION NO. 1

STATE LAW NEED NOT BE VIOLATED FOR DEFENDANTS TO BE FOUND 

GUILTY UNDER THE TRAVEL ACT

The United States does not have to prove that the referenced states’ laws were 

actually violated, only that each defendant had intent to promote, manage, establish, carry 

on, or facilitate the promotion, management, establishment, or carrying on, of any business 

enterprise involving prostitution offenses in violation of state law, and committed a 

subsequent overt act in furtherance of the unlawful activity.

Supporting Authorities

18 U.S.C. § 1952(a)(3); United States v. Winslow, 962 F.2d 845, 852 (9th Cir. 1992)

(“Section 1952(a)(3) requires the government to prove only that a defendant committed a 

subsequent overt act in furtherance of the unlawful activity. . . . Unlike the crime of attempt, 

the Travel Act does not require that the government establish that the accused took a 

substantial step in furtherance of the intended unlawful activity.”) (internal quotations and 

citations omitted); United States v. Polizzi, 500 F.2d 856, 876-77 (9th Cir. 1974) 

(Government does not need to prove that defendants had specific intent to violate the 

underlying state law, only “specific intent to facilitate an activity which the accused knew 

to be unlawful under state law.”); Doc. 1587 at 3 (“The Ninth Circuit has clarified that the 

Travel Act does not require the commission of the predicate offense; rather, only an attempt 

to promote the unlawful activity with a subsequent overt act in furtherance of that unlawful 

activity.”) (cleaned up).

DEFENDANTS’ OBJECTION

The government has alleged that Defendants “facilitated” unlawful activity under 

the travel act; facilitation is the same thing as aiding and abetting, see Doc. 1557 at 10-13. 

Mere days ago, the United States Supreme Court confirmed that when a federal criminal 

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statute uses the word “facilitation” it means “aiding and abetting.” United States v. Hansen, 

599 U.S. __, 2023WL4138994, at *6 (June 23, 2023). See also Doc. 1557-1 at 45-46 (USA 

arguing in Woodhull litigation that “promote” and “facilitate” “as used in the Travel Act, 

is equivalent to ‘aid or abet’”). Accordingly, unlike other cases involving principal 

offenders, when the government alleges a Travel Act violation based on only “promotion” 

or “facilitation” of unlawful activity, it must prove the elements of aiding and abetting. At 

a minimum, this requires proof that someone committed an offense and that the defendant 

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

65, 76 (2014); Hansen, 599 U.S. at __, 2023WL4138994, at *6 (describing elements of 

facilitation as including proof (1) “that a wrongful act be carried out” and proof of (2) “an 

intent to bring about a particular unlawful act”). As the Court explained in Rosemond, “

To aid and abet a crime, a defendant must not just ‘in some sort associate himself 

with the venture,’ but also ‘participate in it as in something that he wishes to bring 

about” and “seek by his action to make it succeed.’...We have previously found that 

intent requirement satisfied when a person actively participates in a criminal 

venture with full knowledge of the circumstances constituting the charged 

offense.... What matters for purposes of gauging intent, and so what jury 

instructions should convey, is that the defendant has chosen, with full knowledge, to participate in the illegal scheme... Under these principles, the District Court erred 

in instructing the jury, because it did not explain that Rosemond needed advance 

knowledge of [each element of the charged offense]. 

572 U.S. 76-77, 81 (emphasis added). See also United States v. Encarnacion-Ruiz, 787 

F.3d 581, 588 (1st Cir. 2015) (“Under Rosemond, to establish the mens rea required to aid 

and abet a crime, the government must prove that the defendant participated with advance 

knowledge of the elements that constitute the charged offense. See 134 S.Ct. at 1248–49; 

see also id. (stating that an aider and abettor must have ‘full awareness of [the crime’s] 

scope,’ ‘full knowledge of the circumstances constituting the charged offense,’ and 

‘participate[ ] in a criminal scheme knowing its extent and character’)...”).

Consistent with these recent decisions, the Ninth Circuit “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); see 

also United States v. Hiatt, 527 F.2d 1048, 1051 (9th Cir. 1975) (“It is correct that the 

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existence of a state law violation is an element of the violation of the Travel Act and that 

the court must make a determination of whether the underlying state law has been or could 

have been violated.”). The government’s authorities do not speak to the situation here, 

where only non-principals are charged. Moreover, to the extent the Court considered this 

issue in deciding Defendants’ motion to dismiss (Doc. 1587), that Order concerns the 

sufficiency of the indictment rather than the instructions that should guide the jury’s 

consideration of the evidence. The Court should consider the issue anew, especially in 

light of the Supreme Court’s unequivocal statement last week in Hansen that “facilitation 

[is] also called aiding and abetting,” and is a term that “transplants” the “old soil” of the 

traditional criminal law meaning of aiding and abetting. Hansen, 599 U.S. at __, 

2023WL4138994, at *6

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UNITED STATES’ PROPOSED INSTRUCTION NO. 2

“BUSINESS ENTERPRISE” IN THE TRAVEL ACT DEFINED

“Business enterprise,” as used in the Travel Act, 18 U.S.C. 1952(b), means a 

continuous course of criminal conduct, that is, engaging or planning to engage in two or 

more violations of law, rather than a sporadic, casual, individual or isolated violation. An 

advertisement that invites multiple commercial transactions (like a car wash ad that informs 

the public of prices charged for each wash, even if only for a limited time) refers to a 

continuous course of conduct. 

Supporting Authorities

18 U.S.C. § 1952(b)(i)(1). See Doc. 946 at 10-14; United States v. Kaiser, 660 F.2d 

724, 731 (9th Cir. 1981) (“The words ‘business enterprise’ refer to a continuous course of 

criminal conduct rather than sporadic or casual involvement in a proscribed activity.”); 

United States v. Donaway, 447 F.2d 940, 94 (1971) (same); United States v. Roselli, 432 

F.2d 879, 886 (9th Cir. 1970) (“Congress limited Section 1952 to any ‘business enterprise’ 

because the requirement of a continuous course of conduct for profit would ordinarily 

include the gambling operations of organized crime.”). 

In alleging a continuous course of criminal conduct, “[n]either [allegations] of largescale operations nor long-term duration is required[.] . . . Instead, what must be [alleged] 

is evidence of a continuous enterprise.” United States v. Tavelman, 650 F.2d 1133, 1140 

(9th Cir. 1981). See also Doc. 946 at 12-13 n.7 (“[E]ach ad identified [in the SI] carries an 

indicia of a commercial or business enterprise because each one invites multiple 

commercial transactions by soliciting the public to engage in prostitution.”).

DEFENDANTS’ OBJECTION

Defendants do not object to this portion of the proposed instruction: “‘Business

enterprise,’ as used in the Travel Act, 18 U.S.C. 1952(b), means a continuous course of 

criminal conduct . . . rather than a sporadic, casual, individual or isolated violation.” But 

the balance of the proposed instruction (including the following language in the first 

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sentence of the proposed instruction: “that is, engaging or planning to engage in two or 

more violations of law”) is an attempt by the government to circumvent the Travel Act’s 

“business enterprise” requirement. 

First, there is no support for the government’s naked assertion that a “continuous 

course of criminal conduct” is satisfied where the underlying business enterprise has 

engaged or plans to engage “in two or more violations of law.” Even an act resulting in two 

violations of law tends to indicate “sporadic” activity, not a business enterprise engaged in 

“continuous” criminal activity.

Second, the instruction would have the jury presume that the mere existence of an

advertisement satisfies the business enterprise requirement. In advancing this plainly 

erroneous instruction, the government misguidedly relies on the Court’s order denying 

Defendant Brunst’s Motion to Dismiss based on the government’s failure to allege 

necessary elements under the Travel Act. See Doc. 946 at 12 n.7 (“[E]ach ad identified 

carries an indicia of a commercial or business enterprise because each one invites multiple 

commercial transactions by soliciting the public to engage in prostitution.”). The 

government takes the Court’s statement too far. The Court was merely addressing in a 

footnote “Defendants’ concern that each ad is not in fact connected to a business enterprise” 

at the pleading stage, noting that Defendants’ concern was “premature.” Doc. 946 at 12-

13. In other words, the Court observed that, at the pleading stage, an advertisement is a 

sufficient indicia of a potential business enterprise, thereby fairly putting Defendants on 

notice of the charges against them, not that an advertisement by itself proves at trial beyond 

a reasonable doubt the existence of a corresponding business enterprise.

Taking the government’s example, an ad for a car wash does not prove the existence 

of a car wash, nor does it prove that a car wash has engaged in a continuous course of 

washing cars. The government’s inapt comparison of a criminal enterprise to a car wash 

invites the jury to ignore the government’s burden to prove not just a business enterprise, 

but a criminal business enterprise engaged in a continuous course of illegal conduct. 

The government has conceded that the “business enterprise” here is not Backpage 

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itself or the advertisements that are the subject of Counts 2-51. See Doc. 649 at 32 n.17 (in

opposing Defendants’ motion to dismiss, the government claimed that “Defendants’ 

actions facilitated or promoted the ongoing prostitution enterprises of Backpage’s 

customers.”) (emphasis added). At trial, therefore, the government must prove, for each 

Travel Act count, the existence of a particular business enterprise or enterprises tied to that 

count. See United States v. Rogers, 389 F. Supp. 3d 774, 786 (C.D. Cal. 2019) (the Travel 

Act “targets activities taken in connection with organizations involving . . . prostitution”); 

see United States v. Nader, 542 F.3d 713, 716 (9th Cir. 2008) (affirming Travel Act 

conviction where defendants operated massage studios, holding “[i]t is undisputed that the 

businesses involved prostitution.”); United States v. Baker, 611 F.2d 961, 962 (4th Cir. 

1979) (affirming Travel Act conviction where defendant operated a truck stop and 

“arranged to have it operated as a house of prostitution.”); see also United States v. Lacey, 

et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order denying 

motion to dismiss) (“[Defendants] were not indicted for facilitating the amorphous notion 

of ‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

occasions where prostitutes, prostitution-related businesses, or other groups were 

involved in the business of prostitution.”) (emphasis added). The government’s proposed 

instruction therefore misconstrues both the law and this Court’s prior orders.

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UNITED STATES’ PROPOSED INSTRUCTION NO. 3

“USES ANY FACILITY IN INTERSTATE COMMERCE” DEFINED

The phrase “uses any facility in interstate commerce” as used in the Travel Act, 18 

U.S.C. § 1952(a), means employing or utilizing any method of communication or 

transportation between one state and another, and includes, for example, the use of 

telephones, mails, and the Internet. 

In order to meet its burden of proof on this issue, it is not necessary for the United 

States to prove that the defendant(s) used an interstate facility. This section also applies to 

a person who causes another person to use an interstate facility. Therefore, if the United 

States has proven beyond a reasonable doubt that the defendant(s) caused another person 

to use an interstate facility, e.g., the Internet, then you may find that the United States has 

proven this element.

Supporting Authorities

United States v. Sutcliffe, 505 F.3d 944, 952-53 (9th Cir. 2007) (“The Internet is an 

international network of interconnected computers, similar to—and often using—our 

national network of telephone lines. We have previously agreed that it cannot be 

questioned that the nation’s vast network of telephone lines constitutes interstate 

commerce.”) (internal citations and quotations omitted); United States v. Roselli, 432 F.2d 

879, 890-91 (9th Cir. 1970) (“If the wire employed is an interstate wire the requirements 

for federal jurisdiction are satisfied. It is wholly irrelevant to any purpose of the statute 

that the perpetrator of the fraud knows about the use of interstate communication.”); United 

States v. Villano, 529 F.2d 1046, 1054-55 (10th Cir. 1976) (upholding Travel Act 

convictions based on “repeated use of the interstate communications facilities by 

defendants’ agents”). 

DEFENDANTS’ OBJECTION

Defendants object to the entire second paragraph of the proposed jury instruction as 

an unsupported and erroneous statement of law. The government cannot be permitted to 

shirk its burden of proof by proposing incorrect jury instructions. None of the cases cited 

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by the government (nor the text of the Travel Act itself)8 supports the government’s view 

that a defendant can be found guilty under the Travel Act if he or she does not actually use 

“the mail or any facility in interstate commerce.” Further, there is no charge that one of the 

defendants aided and abetted another defendant’s alleged misconduct under 18 U.S.C. § 

2.9 See United States v. Abadie, 879 F.2d 1260, 1266 (5th Cir. 1989) (“Conceding that the 

record contains no evidence that Palazzolo traveled interstate, the government contends 

that he aided and abetted Abadie’s interstate travel.”) (citing 18 U.S.C. § 2). To the extent 

the government seeks to import its conspiracy charge into this instruction, that issue is more 

appropriately dealt with in a separate conspiracy instruction where it is clear that the 

instruction applies only to the conspiracy count and not the fifty individual Travel Act 

counts. 

If the Court allows any part of the second paragraph of the proposed instruction, the 

terms “the defendant(s)” should be modified to “each defendant,” so the instruction does 

not improperly group all defendants.

8 18 U.S.C. § 1952(a) provides: “Whoever travels in interstate or foreign commerce or uses 

the mail or any facility in interstate or foreign commerce, with intent to . . . .” The Ninth 

Circuit model instruction mirrors this language.

9 That statute provides: “(a) Whoever commits an offense against the United States or aids, 

abets, counsels, commands, induces or procures its commission, is punishable as a 

principal. (b) Whoever willfully causes an act to be done which if directly performed by 

him or another would be an offense against the United States, is punishable as a principal.” 

The indictment does not charge Defendants under this statute.

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UNITED STATES’ PROPOSED INSTRUCTION NO. 4

“FACILITATE” DEFINED

In the context of the Travel Act, the term “facilitate” means “to make easy or less 

difficult.” 

Supporting Authorities

See Doc. 793 at 21 (“‘Facilitate’ is given its ‘ordinary meaning: to make easy or less 

difficult.’”) (citing United States v. Gibson Specialty Co., 507 F.2d 446, 450 (9th Cir. 

1974); see also United States v. Foreman, 926 F.2d 792, 796 (9th Cir. 1990) (“‘Facilitate’ 

is defined as ‘to make easier or less difficult.’”); United States v. Adler, 879 F.2d 491, 495 

(9th Cir. 1988) (“‘Facilitation’ is established by showing that use of a communications 

facility . . . made easier or less difficult . . . the narcotics offense.”).

DEFENDANTS’ OBJECTION

The government’s proposed instruction is incomplete. A correct instruction would 

inform the jury that facilitation means “aiding and abetting,” and would list the elements 

of aiding and abetting. 

Facilitation requires much more than deciding whether a defendant’s actions helped 

or aided another person commit a criminal offense. Mere days ago, the United States 

Supreme Court confirmed that when a federal criminal statute uses the word “facilitation” 

it means “aiding and abetting.” United States v. Hansen, 599 U.S. __, 2023WL4138994, 

at *6 (June 23, 2023). See also Doc. 1557-1 at 45-46 (USA arguing in Woodhull litigation 

that “promote” and “facilitate” “as used in the Travel Act, is equivalent to ‘aid or abet’”); 

See Doc. 1557 at 10-13 (arguing that “promoting” and “facilitating” under the Travel Act 

requires proof of aiding and abetting). Accordingly, unlike other cases involving principal 

offenders, when the government alleges a Travel Act violation based on “facilitation” of 

unlawful activity, it must prove the elements of aiding and abetting. The government’s 

proposed definition only goes to one of the elements of aiding and abetting: that the 

defendant aided at least one element of the offense. Ninth Circuit Model Criminal Jury 

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Instructions § 4.1 (2022). This leaves out critical elements that separate legal and illegal 

acts: namely that the defendant acted with an intent to further the criminal act. See 

Rosemond v. United States, 572 U.S. 65, 76 (2014) (describing elements); Hansen, 599 

U.S. at __, 2023WL4138994, at *6 (describing elements of facilitation as including proof 

(1) “that a wrongful act be carried out” and proof of (2) “an intent to bring about a particular 

unlawful act”). As the Court explained in Rosemond, 

To aid and abet a crime, a defendant must not just ‘in some sort associate himself 

with the venture,’ but also ‘participate in it as in something that he wishes to bring 

about” and “seek by his action to make it succeed.’...We have previously found that 

intent requirement satisfied when a person actively participates in a criminal 

venture with full knowledge of the circumstances constituting the charged 

offense.... What matters for purposes of gauging intent, and so what jury 

instructions should convey, is that the defendant has chosen, with full knowledge, to participate in the illegal scheme... Under these principles, the District Court erred 

in instructing the jury, because it did not explain that Rosemond needed advance 

knowledge of [each element of the charged offense]. 

572 U.S. 76-77, 81 (emphasis added). See also United States v. Encarnacion-Ruiz, 787 

F.3d 581, 588 (1st Cir. 2015) (“Under Rosemond, to establish the mens rea required to aid 

and abet a crime, the government must prove that the defendant participated with advance 

knowledge of the elements that constitute the charged offense. See 134 S.Ct. at 1248–49; 

see also id. (stating that an aider and abettor must have ‘full awareness of [the crime’s] 

scope,’ ‘full knowledge of the circumstances constituting the charged offense,’ and 

‘participate[ ] in a criminal scheme knowing its extent and character’)...”).

The government’s proposed instruction is prejudicial because it may deceive the 

jury into believing that it can convict for “facilitation” based only on a finding that a 

defendant merely made some other person’s criminal act easier. That would impermissibly 

lower the government’s burden to prove unlawful facilitation. 

The Ninth Circuit’s opinion in Gibson Specialty Co., 507 F.2d 446 (9th Cir. 1974) 

highlights the problem. There, four manufacturers of gambling paraphernalia were charged 

under the Travel Act for intentionally facilitating gambling businesses by selling 

punchboards and pulltabs to distributors in Montana. Id. at 448. Assuming that defendants 

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“knew the text of the pertinent Montana statutes” and that the government was correct that 

mere possession was a crime,” the Ninth Circuit held that it could not “find that the 

defendants by selling to Montanans intended, within the meaning of the travel act, to 

facilitate a violation of state law.” Id. at 450 & n.7. Rather—echoing the elements of 

aiding and abetting—the Court held that unlawful facilitation required the government to 

“show that the manufacturer in some significant manner associated himself with the 

purchaser’s criminal venture for the purpose of its advancement.” Id. at 449-50 

(emphasis added). Plainly, merely making gambling easier or “less difficult” for the 

gambling business was not enough to qualify as “facilitation” under the Travel Act.

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UNITED STATES’ PROPOSED INSTRUCTION NO. 5

“SPECIFIC INTENT” DEFINED

The Travel Act is a specific intent crime and that means for each defendant to be 

found guilty, the United States needs to prove that each defendant specifically intended to 

promote or facilitate the promotion of an activity which the defendant knew to be unlawful 

under state law, specifically, promoting or facilitating the promotion of any business 

enterprise involved in prostitution. 

Supporting Authorities

Doc. 1311 at 7; Doc. 1432 at 31-36; Doc. 793 at 15 (“Required intent under the 

Travel Act is ‘specific intent to facilitate an activity which the accused knew to be unlawful 

under state law.’”) (citing United States v. Polizzi, 500 F.2d 856, 876-877 (9th Cir. 1974) 

(instructions on specific intent need to “reasonably inform[] the jury that they had to find 

that [defendants] knew that what they were facilitating was an unlawful activity under state 

law”)). See also Doc. 793 at 18 (“The Government’s proposed mens rea standard, specific 

intent to promote or facilitate prostitution, is consistent with Gibson, Tavelman, and 

Polizzi—the Ninth Circuit cases discussing intent requirements of the Travel Act.”). The 

Court has already ruled on this issue after the parties’ stipulated to the instruction. The 

United States has only modified the instruction to more accurately capture the Travel Act’s 

statutory language.

DEFENDANTS’ OBJECTION

While defendants generally agree that a non-model instruction should be given, it 

should modified to more accurately describe the specific intent proof required in this case 

and to avoid confusion. 

The government’s proposed version uses the words “specifically” and “facilitate” 

in multiple times with different and unclear meanings. In addition, the proposal’s grammar 

implies that the government had to prove that the defendant knew it was “unlawful under 

state law” to “promot[e] or facilitate[e] the promotion of any business enterprise involved 

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in prostitution.” That is incorrect, as that clause does not describe a state law offense nor 

does it accurately describe the Travel Act offenses charged. Rather, the government must 

prove that defendants had a specific intent to facilitate what they knew was “unlawful 

activity” under the Travel Act – i.e., “any business enterprise involved in prostitution 

offenses in violation of the laws of the State in which they are committed.” 18 U.S.C. § 

1952(b)(3). Defendants’ proposed instruction is faithful to the text of the Travel Act. 

Moreover, to prove “facilitation”—like aiding and abetting— the government must 

prove an “intent to bring about a particular unlawful act.” Hansen 599 U.S. __ (2023), slip 

op. at 6 (describing requirements for proof of “[f]acilitation—also called aiding and 

abetting”). Accordingly, proving a defendant’s state of mind should require proof of 

knowledge of the “particular unlawful act.” The government’s proposal could be read to 

merely require knowledge of “any business enterprise involved in prostitution” in general, 

rather than involvement in (as the Travel Act requires) specific “prostitution offenses” that 

“are committed.” 18 U.S.C. § 1952(b)(i).

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UNITED STATES’ PROPOSED INSTRUCTION NO. 6

PROOF OF KNOWLEDGE OR INTENT

 The intent of a person or the knowledge that a person possesses at any given time 

may not ordinarily be proved directly because there is no way of directly scrutinizing the 

workings of the human mind. In determining the issue of what a person knew or what a 

person intended at a particular time, you may consider any statements made or acts done 

or omitted by that person and all other facts and circumstances received in evidence which 

may aid in your determination of that person’s knowledge or intent.

 You may infer, but you are certainly not required to infer, that a person intends the 

natural and probable consequences of acts knowingly done or knowingly omitted. It is 

entirely up to you, however, to decide what facts to find from the evidence received during 

this trial. 

Supporting Authorities

1A O’Malley, Grenig and Lee, Federal Jury Practice and Instructions, § 17:07 (6th 

ed. 2008).

DEFENDANTS’ OBJECTION

The government again intentionally conflates “general intent” with “specific intent” 

in an effort to reduce its burden of proof at trial. The second paragraph of the proposed 

instruction – which seeks to impute to a given defendant the “natural and probable 

consequences” of his or her actions – plainly conflicts with what courts (including this 

Court) consistently hold the government must prove in connection with a Travel Act 

charge. See United States v. Welch, 327 F.3d 1081, 1095 (10th Cir. 2003) (holding that the 

Travel Act “require[s] the Government prove Defendants acted with a higher level of 

culpability than mere knowledge. The Travel Act requires a specific ‘intent to ... 

promote[.]’ In other words, the Travel Act requires a defendant act not only with 

knowledge of what he is doing, but also with the objective of promoting some unlawful 

activity.”) (emphasis added) (citing United States v. James, 210 F.3d 1342, 1345 (11th Cir. 

2000) (Travel Act violation is a specific intent crime); United States v. Hall, 536 F.2d 313, 

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329–30 (10th Cir.1976) (approving a specific intent instruction on a Travel Act charge)) 

(cited by this Court at Doc. 946, p. 14).

By contrast, “[a] person acts knowingly or with a ‘general intent’ if he is aware that 

the result is practically certain to follow from his conduct, whatever his desire may be as 

to that result.” United States v. Welch, 327 F.3d 1081, 1096 (10th Cir. 2003); see also 

United States v. Gibson Specialty Co., 507 F.2d 446, 450 (9th Cir. 1974) (“The 

presumption that one intends the natural and probable consequences of his actions is 

insufficient in this context to establish intent to facilitate criminal activity.”) (emphasis 

added) (cited by the Court at Doc. 946, p. 14). That is why Defendants’ proposed “specific 

intent” instruction (Doc. 1216 at 152), quoted from United States v. Seymour, 576 F.2d 

1345, 1347 (9th Cir. 1978), recognizes the important distinction between “specific intent” 

and “general intent.” The government grasps at straws in objecting to Defendants’ 

proposed “specific intent” instruction, illogically asserting that the Ninth Circuit’s 

explication of “specific intent” in Seymour is somehow inapplicable here because Seymour 

was not a Travel Act case. Doc. 1216 at 152-53. But as the above cases make clear, 

“specific intent” in the context of the Travel Act means the same thing as it does in 

connection with other federal crimes. Rather, it is the government’s proposed “specific 

intent” instruction that ignores black letter law.

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IV. NON-MODEL INSTRUCTIONS REQUESTED BY DEFENDANTS WITH 

THE UNITED STATES’ OBJECTIONS

DEFENDANTS’ PROPOSED INSTRUCTION NO. 1

SPECIFIC INTENT

The Travel Act is a specific intent crime and that means for each defendant to be 

found guilty, the government needs to prove that each defendant specifically intended to 

facilitate the promotion of a business enterprise that the defendant knew was involved in 

prostitution offenses that violated the laws of the state in which they were committed. 

Supporting Authorities

United States v. Seymour, 576 F.2d 1345, 1347 (9th Cir. 1978) (verbatim quote); 

see United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 

946 at 13 (Order denying motion to dismiss) (“[Defendants] were not indicted for 

facilitating the amorphous notion of ‘prostitution.’ They were indicted for facilitating (via 

publishing ads) on fifty distinct occasions where prostitutes, prostitution-related 

businesses, or other groups were involved in the business of prostitution.”); see United 

States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Transcript of 

December 4, 2020 Hearing (“And I think one of the key things in my reason for denying 

the recusal is that this case is not about Backpage. Backpage was prosecuted in a separate 

case, entered a plea in a separate case. This case is about these individual defendants and 

whether they had specific knowledge of these ads as facilitating illegal activity.”).

UNITED STATES’ OBJECTIONS

The parties have stipulated to the appropriate “specific intent” instruction and the 

Court has already issued it. Doc. 1311 at 7; Doc. 1432 at 31-36. It is the law of the case. 

That stipulation is reflected in the United States’ proposed non-model instruction No. 5. It 

should be given.

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DEFENDANTS’ PROPOSED INSTRUCTION NO. 2

DEFENDANT’S GOOD FAITH 

The government has the burden to prove to you, beyond a reasonable doubt, that a 

defendant acted with criminal intent and lacked good faith. The burden of 

proving good faith does not rest with a defendant because a defendant does not have any 

obligation to prove anything in this case. If the government fails to meet its burden to 

prove a defendant lacked good faith, its failure to do so is a complete and absolute defense 

to the charges in this case and you must return a not guilty verdict. 

If a defendant carried out his or her actions in good faith, there was no criminal 

intent. 

A person who acts, or causes another person to act, on a belief or an opinion honestly 

held is not punishable under the charges in the indictment merely because the belief or 

opinion turns out to be inaccurate, incorrect, or wrong. An honest mistake in judgment or 

an honest error in management does not rise to the level of criminal conduct.

While the term “good faith” has no precise definition, it encompasses, among other 

things, a belief or opinion honestly held and an absence of malice or ill will.

If the evidence in the case leaves the jury with a reasonable doubt as to whether a 

defendant acted with criminal intent and lacked good faith, the jury must acquit that 

defendant.

Supporting Authorities

See 1A Fed. Jury Prac. & Instr. § 19:06 (6th ed.), 1A Fed. Jury Prac. & Instr. § 19:06 

(6th ed.). 

UNITED STATES’ OBJECTIONS

“A defendant is not entitled to a separate good faith instruction when the court 

adequately instructs on specific intent.” United States. v. Bonanno, 852 F.2d 434, 439–40 

(9th Cir. 1988) (citing United States v. Green, 745 F.2d 1205, 1209 (9th Cir. 

1984), and United States v. Cusino, 694 F.2d 185, 188 (9th Cir. 1982)); see also United 

States v. Dees, 34 F.3d 838, 842 (9th Cir. 1994) (same); United States v. Rushton, 963 F.2d 

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272, 274 (9th Cir. 1992) (same). Here, the parties have already stipulated to the appropriate 

“specific intent” instruction. Doc. 1311 at 7; Doc. 1432 at 31-36. Because the parties have 

stipulated to specific intent instruction, a “good faith” instruction should not be given.

The instruction also should not be given to the extent Defendants are attempting to 

use it to circumvent invoking an “advice of counsel” defense. If Defendants claim that 

their asserted “good faith” is based in any way on legal advice, then they should be required 

to comply with the requirements of the “advice of counsel” defense, and the jury should 

receive an appropriate “advice of counsel” instruction instead of the proposed “good faith” 

instruction.10 

10 See Ninth Circuit Model Criminal Jury Instruction 4.11.

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DEFENDANTS’ PROPOSED INSTRUCTION NO. 3

DEFENSE THEORY OF THE CASE

Defendants intend to request instructions on the defense’s theories of the case. 

Defendants reserve their right to submit that request at the close of the trial.

Supporting Authorities

See Fed. R. Crim. P. 30; United States v. Cortes, 757 F.3d 850, 857 (9th Cir. 2014) 

(“A criminal defendant is entitled to jury instructions related to a defense theory so long as 

there is any foundation in the evidence and the instruction is supported by law.” (internal 

quotation marks omitted)); United States v. Burt, 410 F.3d 1100, 1103 (9th Cir. 2005) (“A 

defendant is entitled to instructions relating to a defense theory for which there is any 

foundation in the evidence, even though the evidence may be weak, insufficient, 

inconsistent, or of doubtful credibility.”).

UNITED STATES’ OBJECTIONS

As discussed below, Defendants’ “First Amendment” instructions are not supported 

by law or evidence, and therefore should not be given. See, e.g., United States v. Freeman, 

761 F.2d 549, 551-52 (9th Cir. 1985) (where the speech at issue falls outside of the First 

Amendment’s protection, a First Amendment jury instruction should not be given). 

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DEFENDANTS’ PROPOSED INSTRUCTION NO. 4

(Conspiracy – Willfulness Defined)

To find a defendant guilty of conspiracy as charged in the indictment, you must be 

satisfied that the government has proven beyond a reasonable doubt that the defendant 

knowingly and willfully entered into the conspiracy, that is, that the defendant agreed to 

take part in the conspiracy with knowledge of its unlawful purpose and in furtherance of 

its unlawful objective. You must also find that the government has proven beyond a 

reasonable doubt that the defendant acted with criminal intent and lacked good faith. If the 

defendant carried out his or her actions in good faith, there was no criminal intent. While 

the term “good faith” has no precise definition, it encompasses, among other things, a belief 

or opinion honestly held and an absence of malice or ill will. To act willfully means to act 

with knowledge that one’s conduct is unlawful and with the intent to do something the law 

forbids, that is to say with the specific purpose to disobey or disregard the law.

Supporting Authorities

United States v. Pomponio, 429 U.S. 10, 12 (1976) (willfulness is the “intentional 

violation of a known legal duty”); see 1A Fed. Jury Prac. & Instr. § 19:06 (6th ed.), 1A 

Fed. Jury Prac. & Instr. § 19:06 (6th ed.); United States v. Stagman, 446 F.2d 489, 491 (6th 

Cir. 1971) (“the majority of the Courts of Appeals which have directly addressed this 

question . . . have stated that knowing and wilful [sic] intent to violate state laws is an 

element of the crime proscribed by the Travel Act”) (citing decisions of the 4th, 7th, 8th, 

and 9th Circuits).

UNITED STATES’ OBJECTIONS

This proposed instruction is not supported by law and is unnecessary. As discussed 

above, “A defendant is not entitled to a separate good faith instruction when the court 

adequately instructs on specific intent.” United States. v. Bonanno, 852 F.2d 434, 439–40 

(9th Cir. 1988). 

Defendants’ reliance on Pomponio is inapposite. In that case, the Supreme Court 

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reversed the court of appeals, after that court had remanded for a new trial based on an 

improper jury instruction. 429 U.S. at 10. The Supreme Court found no error in the trial 

court’s jury instructions and held that “[a]n additional instruction on good faith was 

unnecessary.” Id. at 13. Pomponio clarified that an instruction stating that “good motive 

alone is never a defense where the act done or omitted is a crime” was proper. Id. at 11. 

In addition, the “willful” instruction approved in Pomponio looks nothing like Defendants’ 

proposed instruction. “A willful act was defined in the instructions as one done ‘voluntarily 

and intentionally and with the specific intent to do something which the law forbids, that 

is to say with the bad purpose either to disobey or to disregard the law.’” Id.

Further, Defendants’ reliance on United States v. Stagman is misplaced. The Ninth 

Circuit in Polizzi made clear that Stagman is not applicable in this circuit. 

In claiming error in the court’s instructions on specific intent, appellants urge 

us to follow United States v. Stagman . . . and hold that specific intent to 

violate state law is an element of the offense under § 1952. This Court 

however, has previously approved an instruction similar to the one given in 

this case. . . . Moreover, to the extent that Stagman requires proof that an 

accused under § 1952 intended to violate state law himself, we find that it 

conflicts with the clear meaning of the language used in § 1952. . . . [The 

statute’s required intent is] specific intent to facilitate an activity which the 

accused knew to be unlawful under state law. 

Polizzi, 500 F.2d at 876-77.

The instruction should not be given.

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DEFENDANTS’ PROPOSED INSTRUCTION NO. 5

BUSINESS ENTERPRISE EXPLAINED

The existence of a “business enterprise” is an element of a Travel Act violation and, 

unless the government has proven to you beyond a reasonable doubt the existence of a 

“business enterprise” as to each count, you must return a verdict of not guilty. A defendant 

cannot intend to promote or facilitate a business enterprise he or she does not know exists. 

The government also must prove beyond a reasonable doubt that the act each defendant 

performed in furtherance of the business enterprise was done with the specific intent to 

facilitate each element of the underlying state crime. 

Supporting Authorities

United States v. Jones, 909 F.2d 533, 539 (D.C.Cir.1990) (a proper Travel Act jury 

instruction “would inform the jury that the defendant must have performed or attempted to 

perform an act in furtherance of the business, with the intent that each element of the 

underlying state crime be completed”); Deptula v. Attorney General of U.S., 642 Fed. 

Appx. 184 (3rd Cir. 2016) (“to obtain a Travel Act conviction, the government must prove 

. . . that the defendant had the specific intent to facilitate each element of the relevant 

offense.”); United States v. Bertman, 686 F.2d 772, 774 (9th Cir. 1982) (“When the 

unlawful activity charged in the indictment is the violation of state law, the commission of 

or the intent to commit such a violation is an element of the federal offense.”). 

See United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, 

Doc. No. 946 at 13 (Order denying motion to dismiss) (“[Defendants] were not indicted 

for facilitating the amorphous notion of ‘prostitution.’ They were indicted for facilitating 

(via publishing ads) on fifty distinct occasions where prostitutes, prostitution-related 

businesses, or other groups were involved in the business of prostitution.”); see United 

States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Transcript of 

December 4, 2020 Hearing (“And I think one of the key things in my reason for denying 

the recusal is that this case is not about Backpage. Backpage was prosecuted in a separate 

case, entered a plea in a separate case. This case is about these individual defendants and 

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whether they had specific knowledge of these ads as facilitating illegal activity.”)

UNITED STATES’ OBJECTIONS

This proposed instruction misstates the applicable law. Defendants’ final sentence

discuss a “specific intent” requirement that isn’t applicable—namely, “the specific intent 

to facilitate each element of the underlying state crime.” As discussed previously, the 

United States doesn’t need to prove that Defendants had specific intent to violate the 

underlying state law. Polizzi, 500 F.2d at 876-77 (Government does not need to prove that 

defendants had specific intent to violate the underlying state law, only “specific intent to 

facilitate an activity which the accused knew to be unlawful under state law.”); Doc. 1587 

at 3 (“The Ninth Circuit has clarified that the Travel Act does not require the commission 

of the predicate offense; rather, only an attempt to promote the unlawful activity with a 

subsequent overt act in furtherance of that unlawful activity.”) (cleaned up). 

Defendants’ proposed instruction also contains Defendants’ arguments for why the 

jury should find them not guilty. (E.g., “[a] defendant cannot intend to promote or facilitate 

a business enterprise he or she does not know exists.”). Instructions are not the place for 

arguments. Further, there’s no statutory or case law support for Defendants’ argument. 

The Court should use the United States’ instruction on business enterprises.

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DEFENDANTS’ PROPOSED INSTRUCTION NO. 6

BUSINESS ENTERPRISE DEFINED

“Business enterprise,” as used in the Travel Act, 18 U.S.C. 1952(b), means a 

continuous course of criminal conduct, that is, engaging or planning to engage in two or 

more violations of law, rather than a sporadic, casual, individual or isolated violation. The 

government must prove beyond a reasonable doubt that a business enterprise existed for 

each of the fifty charged advertisements. Moreover, the jury must unanimously agree on 

the existence and nature of each business enterprise.

Supporting Authorities

18 U.S.C. § 1952(b)(i)(1); (See Doc. 946 at 10-14); United States v. Kaiser, 660 

F.2d 724, 731 (9th Cir. 1981) (“The words ‘business enterprise’ refer to a continuous 

course of criminal conduct rather than sporadic or casual involvement in a proscribed 

activity.”); see also United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHXSMB, Doc. No. 946 at 13 (Order denying motion to dismiss) (“[Defendants] were not 

indicted for facilitating the amorphous notion of ‘prostitution.’ They were indicted for 

facilitating (via publishing ads) on fifty distinct occasions where prostitutes, prostitutionrelated businesses, or other groups were involved in the business of prostitution.”) 

(emphasis added).

UNITED STATES’ OBJECTIONS

The United States agrees with Defendants’ first sentence of the instruction, which 

is consistent with its proposed instruction. The final two sentences are unnecessary as the 

appropriate elements governing the Travel Act are properly laid out above.

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DEFENDANTS’ PROPOSED INSTRUCTION NO. 7

FIRST AMENDMENT PROTECTION—SPEECH PRESUMED PROTECTED

All speech is presumptively protected by the First Amendment to the United States 

Constitution. The First Amendment does not permit the government, or the jury, to 

presume that speech is unprotected by the First Amendment. Rather, the government has 

the burden to establish that the particular expressions of speech at issue are not protected 

by the First Amendment—and the government cannot meet its burden to prove that speech 

is unprotected through mere conjecture. 

Supporting Authorities

United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 816 (2000) (“When the 

Government restricts speech, the Government bears the burden of proving the 

constitutionality of its actions.”); id. at 818 (“When First Amendment compliance is the 

point to be proved, the risk of nonpersuasion ... must rest with the Government, not with 

the citizen.”); Bursey v. United States, 466 F.2d 1059, 1081–82 (9th Cir. 1972) (“The 

Government responds that (1) the information sought is not protected by the First 

Amendment... The Government first argues that threats to the President and incitements 

to insubordination in the armed forces are not ‘speech’ protected by the First 

Amendment... The Government’s argument takes as its premise the conclusion to be 

proved: The expressions and associational relationships in issue are not protected by the 

First Amendment. This argument implies that there is a presumption of nonprotection 

applied to the expressions and associations involved in this case and that the witnesses are 

obliged to overcome it before they can rely on the First Amendment. The Government has 

it backwards. All speech, press, and associational relationships are presumptively

protected by the First Amendment; the burden rests on the Government to establish that 

the particular expressions or relationships are outside its reach.”); In re Grand Jury 

Investigation, John Doe 1078, 690 F. Supp. 489, 490-91 & n.3 (E.D. Va. 1988) (“The Court 

starts with the proposition that the materials sought are presumptively protected by the First

Amendment. Sexually explicit material is not stripped of constitutional protection unless 

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and until a factfinder at trial concludes that the work, taken as a whole, meets the threepronged test set forth in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614, 37 

L.Ed.2d 419 (1973).”)

See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 392 (2000) (“We 

have never accepted mere conjecture as adequate to carry a First Amendment burden ...”)

UNITED STATES’ OBJECTION

The instruction is unnecessary, confusing, misleading, and does not fit the facts or 

the law.

First, Defendants’ proposal to provide 14 separate instructions on the First 

Amendment poses a substantial risk of confusing or misleading the jury about what it must 

determine. The jury must decide, inter alia, whether Defendants: (1) used the mail or any 

facility in interstate commerce with intent to promote, manage, establish, carry on, or 

facilitate the promotion, management, establishment, or carrying on of any business 

enterprise involved in prostitution offenses; and (2) thereafter performed or attempted to 

perform an act that did promote, manage, establish, carry on, or facilitate the promotion, 

management, establishment, or carrying on of any such enterprises. See Doc. 1340 at 

48:11-24; Doc. 1311 at 2-3. Defendants’ Proposed Instructions Nos. 7-20 misleadingly 

suggest that the jury cannot answer these questions affirmatively because the First 

Amendment somehow immunizes Defendants from all liability—especially where ads did 

not contain, on their face, express offers to exchange sex for money. 

But the SI alleges that Defendants made their customers’ prostitution ads less overt 

on purpose—to promote, or facilitate the promotion of, their customers’ ventures. E.g., SI 

¶¶ 9-11, 34. The SI alleges, inter alia, that Defendants employed automated filters and 

human “moderators” to wash Backpage’s “adult” and “escort” ads of their most obvious 

sex-for-money references. SI ¶¶9, 11, 13, 34. This created a veneer of deniability—and 

reduced risks of law enforcement scrutiny—for Backpage’s customers, while still allowing 

them to advertise prostitution to an audience of willing buyers. Id. Defendants’ 

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instructions pose a substantial risk of confusing or misleading the jury on this important 

point.

Second, the cumulative impact of hearing 14 separate First Amendment instructions 

risks eliciting a verdict based on nullification, rather than careful consideration of the 

evidence and the law. 

Third, Defendants’ Proposed Instruction Nos. 7-20 give the misleading impression 

that all speech is protected by the First Amendment. This case concerns commercial speech 

(advertising), that is, speech “which does no more than propose a commercial transaction.” 

Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 818 (9th Cir. 2013) (internal quotations and 

citations omitted). As recognized in caselaw decided after Bursey v. United States, 466 

F.2d 1059, 1082 (9th Cir. 1972), commercial speech is subject to less protection than other 

types of speech—and “commercial speech related to illegal activity” has no First 

Amendment protection at all. Central Hudson Gas & Elec. Corp. v. Pub. Serv. Commn. of 

New York, 447 U.S. 557, 563-64 (1980). See Erotic Service Provider Legal Ed. and 

Research Project v. Gascon, 880 F.3d 450, amended, 881 F.3d 792, 792 (9th Cir. 2018) 

(“For commercial speech to receive First Amendment protection[,] the speech must 

concern lawful activity and not be misleading.”); Rodney A. Smolla, 2 RIGHTS AND 

LIABILITIES IN MEDIA CONTENT: INTERNET, BROADCAST, AND PRINT § 11:10 (2d ed.) 

(“[C]ommercial speech is not protected at all if the speaker is advertising an illegal product 

or activity. There is no constitutional right to advertise crime.”).

For these reasons, prostitution advertising is categorically excluded from the First 

Amendment. See Doc. 793 at 14; United States v. Williams, 553 U.S. 285, 297 (2008) 

(“Offers to engage in illegal transactions are categorically excluded from First Amendment 

protection.”); Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376, 388 (1973) 

(“a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of 

narcotics or soliciting prostitutes”); Coyote Pub., Inc. v. Miller, 598 F.3d 592, 600-04 (9th 

Cir. 2010) (explaining that prostitution is illegal in 49 dates and most of Nevada; upholding 

ban on prostitution advertising); Erotic Service Provider, 880 F.3d at 459-60 (rejecting 

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First Amendment challenge to ordinance outlawing prostitution solicitations).

Fourth, Defendants’ instructions are unnecessary because if the United States proves 

Defendants’ guilt on any of Counts 1-51 (the conspiracy and substantive offenses involving 

the Travel Act), then it will necessarily have established that Defendants conspired to, 

and/or did, promote, or facilitate the promotion of, prostitution business enterprises. In 

other words, the United States will have established that the conduct (and speech) at issue 

here related to illegal activity—rendering any First Amendment instruction “duplicative 

and unnecessary.” United States v. Rowlee, 899 F.2d 1275, 1280 (2d Cir. 1990) (if the 

government meets its burden of proving defendants engaged in the charged offenses 

(counseling or assisting in filing false tax returns), then no First Amendment protection 

applies—and no First Amendment jury instruction is required; conversely, if the 

government does not meet its burden of proving guilt, the defendants will be acquitted 

regardless of any First Amendment defense). See also United States v. Freeman, 761 F.2d 

549, 551 (9th Cir. 1985) (where the trial evidence “disclose[s] no grounds for a legitimate 

free speech defense,” there is no requirement to instruct on that defense); United States v. 

White, 610 F.3d 956, 959 (7th Cir. 2010) (recognizing that any “potential First Amendment 

concern is addressed by the requirement of proof beyond a reasonable doubt at trial”).

Defendants’ authorities are not to the contrary. United States v. Playboy Entm’t 

Grp., Inc., 529 U.S. 803 (2000), for example, did not involve commercial speech 

(advertising), let alone prostitution advertisements or solicitations that are categorically 

excluded from the First Amendment. Rather, Playboy concerned a content-based 

restriction on video disseminated by a cable channel—a situation far removed from this 

case. 529 U.S. at 811-12. Bursey predates Pittsburgh Press, Central Hudson, Williams, 

and the other decisions cited above—all of which recognize that commercial speech is 

judged by standards much different than those for news reporting and political advocacy 

(the speech involved in Bursey, see 466 F.2d at 1065-66). In In re Grand Jury 

Investigation, John Doe 1078, 690 F. Supp. 489, 493 (E.D. Va. 1988), the court overruled 

the defendants’ First Amendment objections to a subpoena issued in an obscenity 

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investigation. The instant case involves commercial speech, which isn’t subject to the 

“Miller” obscenity test. 

The instruction should not be given.

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DEFENDANTS’ PROPOSED INSTRUCTION NO. 8

FIRST AMENDMENT PROTECTION—SPEECH PRESUMED PROTECTED

The First Amendment to the United States Constitution does not permit the 

government, or the jury, to presume that speech is unprotected merely because it resembles 

unprotected speech. 

Supporting Authorities

Ashcroft v. Free Speech Coal., 535 U.S. 234, 255 (2002) (“Protected speech does 

not become unprotected merely because it resembles the latter.”).

UNITED STATES’ OBJECTIONS

The United States incorporates its objections to Defendants’ Proposed Instruction 

No. 7. In addition, this instruction is cumulative of Instruction No. 7.

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DEFENDANTS’ PROPOSED INSTRUCTION NO. 9

FIRST AMENDMENT PROTECTION—OFFENSIVE AND SEXUAL SPEECH

The First Amendment to the United States Constitution prohibits the government 

from restricting speech because some find it offensive. The First Amendment also 

prohibits the government from restricting adult sexual expression that is indecent, but not 

obscene.

Supporting Authorities

Snyder v. Phelps, 562 U.S. 443, 458 (2011) (“speech cannot be restricted simply 

because it is upsetting or arouses contempt”); Ashcroft v. Free Speech Coal., 535 U.S. 234, 

245 (2002) (“It is also well established that speech may not be prohibited because it 

concerns subjects offending our sensibilities. . . . In evaluating the free speech rights of 

adults, we have made it perfectly clear that ‘[s]exual expression which is indecent but not 

obscene is protected by the First Amendment’”) (citing Reno v. American Civil Liberties 

Union, 521 U.S. 844, 874 (1997).

UNITED STATES’ OBJECTION

The United States incorporates its objections to Defendants’ Proposed Instruction 

No. 7. Also, this instruction is cumulative of Defendants’ Proposed Instructions Nos. 7-8.

In addition, this instruction is irrelevant, confusing, misleading, and not supported 

by the record or the law in the context of this case. This is not an “obscenity” prosecution, 

or one that seeks to restrict or enjoin the distribution of any allegedly obscene materials 

(e.g., videos, magazines, books). See Miller v. California, 413 U.S. 15, 24 (1973) 

(government may restrict dissemination of a work that, taken as a whole, appeals to the 

prurient interest, is patently offensive in light of community standards, and lacks serious 

literary, artistic, political, or scientific value); cf. Ashcroft v. Free Speech Coal., 535 U.S. 

234, 245 (2002) (invalidating statute banning “virtual child pornography”). 

Nor is this a case that seeks to restrict “offensive” speech, or “adult sexual 

expression that is indecent, but not obscene.” This case involves a different category of 

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speech—commercial speech, or speech that does no more than propose a commercial 

transaction (i.e., advertising). Central Hudson, 447 U.S. at 563-64 (1980). The First 

Amendment confers no protection at all on speech proposing illegal transactions, including 

prostitution advertising and soliciting. Doc. 793 at 14 (collecting cases). 

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DEFENDANTS’ PROPOSED INSTRUCTION NO. 10

FIRST AMENDMENT PROTECTION—PROTECTED FREE SPEECH

Advertisements, including adult-oriented classified advertisements, are 

presumptively protected speech under the First Amendment to the United States 

Constitution. Advertisers have the First Amendment right to post advertisements and 

websites have their own First Amendment rights to publish those advertisements. 

Supporting Authorities

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 

561, (1980) (“The First Amendment . . . protects commercial speech from unwarranted 

governmental regulation. . . . Even when advertising communicates only an incomplete 

version of the relevant facts, the First Amendment presumes that some accurate 

information is better than no information at all.”); Reno v. ACLU, 521 U.S. 844, 868-70 

(1997) (“[O]ur cases provide no basis for qualifying the level of First amendment scrutiny 

that should be applied to [the Internet].”).

UNITED STATES’ OBJECTIONS

The United States incorporates its objections to Defendants’ Proposed Instruction 

No. 7, and also objects because this instruction is cumulative of Defendants’ Proposed 

Instructions Nos. 7-9.

Moreover, the instruction’s first sentence is not supported by the law or the 

evidence. Advertisements must concern lawful activity to receive any First Amendment 

protection. Central Hudson, 447 U.S. at 563-64; Erotic Service Provider, 881 F.3d at 792. 

The United States anticipates that trial evidence will show that the vast majority of “adult” 

and “escort” ads on Defendants’ website were for prostitution. There is no First 

Amendment right to publish such ads. Pittsburg Press, 413 U.S. at 388; Doc. 793 at 14. 

Defendants also provide no applicable legal authority for the second sentence of 

their instruction—particularly for the notion that websites have an independent First 

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Amendment right to publish such ads. The sole case Defendants cite, Reno v. ACLU, 521 

U.S. 844 (1997), invalidated on First Amendment overbreadth grounds part of the 

Communications Decency Act (CDA) that prohibited the transmission to minors of 

“obscene” or “indecent” materials over the internet. That statute was “not limited to 

commercial speech”; rather, its “breadth . . . [was] wholly unprecedented.” Id. at 877. 

Reno nowhere discussed Central Hudson’s rule that commercial speech relating to 

unlawful activity is excluded from First Amendment protection. Reno provides no license 

for disseminating over the internet commercial offers to sell humans for sex any more than 

it permits website operators to sell illegal drugs, computer hacking or murder-for-hire 

services. See, e.g., United States v. Ulbricht, 31 F. Supp. 3d 540, 568 (S.D.N.Y. 2014) 

(rejecting website operator’s argument that his site’s online marketplace for illegal 

narcotics involved speech protected by First Amendment). 

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DEFENDANTS’ PROPOSED INSTRUCTION NO. 11

FIRST AMENDMENT PROTECTION—ADS PRESUMED PROTECTED

A website’s publication of a classified ad posted by a third party is presumptively 

protected by the First Amendment to the United States Constitution unless the transaction 

proposed in the ad necessarily would be an illegal act (like an ad proposing a sale of 

cocaine, which always is illegal). Where the legality of a transaction proposed in a 

classified ad depends on circumstances outside the content of the ad (or, said differently, 

if the content of a classified ad would not provide the website with actual knowledge that 

the transaction proposed in the ad necessarily would be unlawful), a website’s publication 

of the ad is presumptively protected by the First Amendment. 

Supporting Authorities

Greater Philadelphia Chamber of Com. v. City of Philadelphia, 949 F.3d 116, 142 & 

fn.170 (3d Cir. 2020) (rejecting city’s argument that speech “concern[ed] unlawful 

activity” where the speech might relate to unlawful activity because “commercial speech 

should not lose the protection of the First Amendment simply because a legislature has 

prohibited one of many uses of the regulated speech,” unlike restricting “advertising of the 

sale of cocaine, for example, [which] would present a speech restriction that always and 

only related to illegal activity because there are no other legal uses/purposes behind the 

sale of cocaine”) (emphasis in original); IMDB.com Inc. v. Bacerra, 962 F.3d 1111, 1123

(9th Cir. 2020) (“Pittsburgh Press implicates only those instances when the state restricts 

speech that itself proposes an illegal transaction...SAG’sinterpretation ofPittsburgh Press 

would require this court to permit the restriction not only of speech that proposes an illegal 

activity but also facially inoffensive speech that a third-party might use to facilitate its own

illegal conduct. But as the Supreme Court has noted, ‘it would be quite remarkable to 

hold that speech by a law-abiding possessor of information can be suppressed in order to

deter conduct by a non-law-abiding third party.’ Bartnicki v. Vopper, 532 U.S. 514, 529–

30, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001)...Rather than restrict truthful speech, the 

typical ‘method of deterring unlawful conduct is to impose an appropriate punishment on

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the person who engages in it.’ Bartnicki, 532 U.S. at 529, 121 S.Ct. 1753.”) (emphasis

added); Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 

F3d 104, 114 (2d Cir. 2017) (“[T]he First Amendment offers no protection to speech that 

proposes a commercial transaction if consummation of that transaction would necessarily

constitute an illegal act. However, if, as here, there are plausible ways to complete a 

proposed transaction lawfully, speech proposing that transaction ‘concerns lawful activity’ 

and is therefore protected commercial speech.”) (emphasis in original); Valle Del Sol Inc. 

v. Whiting, 709 F3d 808, 822 (9th Cir. 2013) (“Central Hudson’s legality requirement [] 

has traditionally focused on the content of affected speech—i.e., whether the speech 

proposes an illegal transaction—instead of whether the speech is associated with unlawful 

activity.”) (emphasis added)); Metro Lights, L.L.C. v. City of Los Angeles, 551 F.3d 898,

904 fn.7 (9th Cir. 2009) (“Central Hudson asks if the commercial speech is ‘related to 

unlawful activity.’ Thus, in the context of advertising, one must ask whether the goods or 

services the party advertises are illegal.”) (emphasis added, citation omitted); Pruett v. 

Harris Cty. Bail Bond Bd., 499 F.3d 403, 414 (5th Cir. 2007) (the “threshold inquiry” asks 

whether “the product or service spoken about is illegal,” not whether a commercial 

solicitation might lead to a violation of the law); Eimann v. Soldier of Fortune Mag., Inc., 

880 F.2d 830, 837-38 (5th Cir. 1989) (publishers are not required to reject “any suspicious, 

ambiguous ad that might cause serious harm,” because “in the constitutional arena we have 

noted that the possibility of illegal results does not necessarily strip an ad of its commercial 

speech protection”); Dunagin v. City of Oxford, 718 F.2d 738, 743 (5th Cir. 1983) (en 

banc) (“The commercial speech doctrine would disappear if its protection ceased whenever 

the advertised product might be used illegally.”); Art & Antique Dealers League of Am., 

Inc. v. Seggos, 394 F. Supp. 3d 447, 459 (S.D.N.Y. 2019) (“Although the First Amendment 

does not protect speech proposing a transaction that ‘necessarily constitute[s] an illegal 

act,’ if ‘there are plausible ways to complete a proposed transaction lawfully, speech 

proposing that transaction ‘concerns lawful activity’ and is therefore protected commercial 

speech.’”); Centro De La Comunidad Hispana De Locust Valley v. Town of Oyster Bay, 

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128 F. Supp. 3d 597, 615 (E.D.N.Y. 2015) (“When the legality of a proposed commercial 

transaction depends on circumstances outside the content of the speech, the activity is 

lawful and the speech is entitled to protection under Central Hudson.”), aff’d, 868 F.3d 104 

(2d Cir. 2017).

See also Backpage.com, LLC v. Hoffman, Case No. 13–cv–03952 (DMC)(JAD),

2013 WL 4502097 (D.N.J. Aug. 20, 2013) (striking down under First Amendment state 

statute criminalizing advertisements “that would appear to a reasonable person to be for 

the purpose of engaging in what would be a commercial sex act...with a minor” and 

rejecting state’s claim that the statute “regulates illegal advertisements...not protected by 

the First Amendment” because, among other things, “[d]escribing criminal conduct as 

anything that is ‘implicit’ is inherently vague, because it means ‘[n]ot directly expressed 

[and] existing [only] inferentially’ and ‘fails to clearly mark the boundary between what is 

permissible and impermissible’”); Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805 

(M.D. Tenn. 2013) (striking down, under First Amendment, state statute criminalizing 

advertisements “that would appear to a reasonable person to be for the purpose of engaging 

in what would be a commercial sex act...with a minor” and rejecting state’s claim that the 

statute did not “not implicate First Amendment scrutiny because it criminalize[d] only 

offers to engage in illegal transactions” because, among other things, “the statute as written 

does not ‘criminalize only offers to engage in illegal transactions’ because—as discussed 

above—the statute’s potential reach extends to notices related to legal, consensual activity 

by adults”); Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D. Wash. 2012) 

(“It is true that ‘[o]ffers to engage in illegal transactions are categorically excluded from 

First Amendment protection.’ ... [But] SB 6251 does not fall within the exception for offers 

to engage in illegal activity because SB 6251 prohibits not only ‘offers’ to engage in 

commercial sex acts, but also the direct and indirect publication, dissemination, and display 

of such offers. The third-party publication of offers to engage in illegal transactions does 

not fall within ‘well-defined and narrowly limited classes of speech’ that fall outside of 

First Amendment protection. Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571–

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572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).”); id. at 1279-80 (striking down, under First 

Amendment, state statute criminalizing “‘directly or indirectly’ caus[ing] content to be 

published, disseminated or displayed if it contains a ‘depiction of a minor’ and any ‘explicit 

or implicit offer’ of sex for ‘something of value’” because, among other things, the statute 

was unconstitutionally vague: “‘[A] speaker may not be put at complete peril in 

distinguishing between protected and unprotected speech. Otherwise, he could only be 

certain of avoiding liability by holding his tongue, causing him ‘to make only statements 

which ‘steer far wide [ ] of the unlawful zone.’’... The pimp that publishes the 

advertisement certainly ‘knows’ whether his offer is for sex, whether explicitly or 

implicitly. However, what does it mean for the website operator to ‘know’ that an 

advertisement ‘implicitly’ offers sex? In Washington, ‘a person acts knowingly or with 

knowledge when ... he or she has information which would lead a reasonable person in the 

same situation to believe that facts exist which facts are described by a statute defining an 

offense.’ Wash. Rev. Code Ann. § 9A.08.010(b)(ii). However, where an online service 

provider publishes advertisements that employ coded language, a reasonable person could 

believe that facts exist that do not in fact exist: an advertisement for escort services may 

be just that. Similarly, Defendants contend that ‘offer’ is used ‘to make clear that a 

transaction does not have to be consummated for SB 6251 to apply.’ However, if the offer 

is implicit, how can a third party ascertain that which is being offered before the transaction 

is consummated?”) (internal citations omitted).

UNITED STATES’ OBJECTIONS

The United States incorporates its objections to Defendants’ Proposed Instructions 

Nos. 7 and 10, and also objects to this instruction as cumulative of Defendants’ Proposed 

Instructions Nos. 7-10.

In addition, the instruction is not supported by the law or the record, and is confusing 

and misleading. There is no requirement that an advertisement “necessarily” or explicitly 

propose an illegal transaction on its face to fall outside of the First Amendment’s 

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protection. Rather, the law is clear that jurors may consider both text and context in 

assessing these ads and Defendants’ intent to facilitate prostitution. The jury may properly 

consider the ads’ use of coded prostitution terms (e.g., “GFE,” “quickie, “incall/outcall,” 

“independent,” “no pimps,” “roses”), cross-references to reviews on prostitution websites, 

prices tied to 15-, 30-, or 60-minute increments, explicit photos or videos, disclaimers that 

customers must agree they are not affiliated with law enforcement, and any other 

evidence—including the placement of the ad in categories (such as “Escorts”) that became 

synonymous with prostitution, and other textual or contextual facts that convey information 

about the ad. See Doc. 793 at 9-11 (discussing similar indicia of prostitution ads); 

Pittsburgh Press, 413 U.S. at 388 (determining that employment ads were unlawful based 

on the context of their placement in gender-specific categories; “We have no doubt that a 

newspaper constitutionally could be forbidden to publish a want ad proposing a sale of 

narcotics or soliciting prostitutes. Nor would the result be different if the nature of the 

transaction were indicated by placement under columns captioned ‘Narcotics for Sale’ and 

‘Prostitutes Wanted’ rather than stated within the four corners of the advertisement.”);

White, 610 F.3d at 960 (“that a request for criminal action is coded or implicit does not 

change its character as [unprotected] solicitation”). 

The jury is also entitled to consider Defendants’ prostitution marketing strategies, 

including “moderation” practices that were calculated to sanitize particularly obvious 

prostitution ads—without changing their underlying unlawful message. See, e.g., SI ¶¶9, 

11, 13, 34. Moreover, the jury may consider Defendants’ numerous internal admissions 

about their prostitution advertising business, which matched the steady drumbeat of notice 

Defendants received about the prevalence of prostitution ads on Backpage. See SI, passim.

Defendants’ cited authorities include no contrary Ninth Circuit cases. For example, 

in IMDb.com Inc. v. Becerra, 962 F.3d 1111, 1123 (9th Cir. 2020), the court distinguished 

Pittsburg Press from situations involving the publication of truthful, fact-based 

information that was lawfully obtained. The court said nothing about whether the legality 

of a proposed transaction must be determined solely from an ad’s express language, 

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without considering coded terms or other textual or context information. See IMDB.com, 

Inc., 962 F.3d at 1123 (“But we find nothing illegal about truthful, fact-based publication 

of an individual’s age and birthdate when that information was lawfully obtained.”). 

Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 822-23 (9th Cir. 2013), likewise 

contains no language that might limit Defendants’ liability here. In Whiting, the court held 

that Arizona could not target day laborers for harsher punishment when, in the course of 

soliciting lawful work (i.e., engaging in lawful commercial speech), they violated an 

unrelated traffic law. Id. at 814, 823. Whiting contains no analysis or discussion of any 

ads or solicitations that use code words or other indicia of illegal activity. 

In Metro Lights, L.L.C. v. City of Los Angeles, 551 F.3d 898, 904 (9th Cir. 2009), 

the parties never disputed whether advertising in that case merited First Amendment 

protection. The footnote Defendants cite merely states that “in the context of advertising, 

one must ask whether the goods or services the party advertises are illegal.” Id. at 904 n.7. 

This doesn’t support Defendants’ instruction.

Defendants’ out-of-Circuit authorities also miss the mark. Greater Philadelphia 

Chamber of Com. v. City of Philadelphia, 949 F.3d 116, 141-42 (3d Cir. 2020), for 

example, involved a challenge to an ordinance that prohibited employers from inquiring 

about prospective employees’ wage histories; it says nothing about coded solicitations for 

illegal transactions, including whether jurors may consider the use and meaning of coded 

terms and similar information about an ad. Centro de la Comunidad Hispana de Locust 

Valley v. Town of Oyster Bay, 868 F.3d 104, 114 (2d Cir. 2017), and Pruett v. Harris 

County Bail Bond Bd., 499 F.3d 403, 414 (5th Cir. 2007), also contain no such discussion. 

Defendants’ reliance on a trilogy of cases from 2012-13 in which Backpage 

succeeded in invaliding three state laws that attempted to prohibit the sale of certain types

of online prostitution solicitations is unavailing. See Backpage.com, LLC v. McKenna, 881 

F. Supp. 2d 1262 (W.D. Wash. 2012), Backpage.com, LLC v. Hoffman, 2013 WL 4502097 

(D.N.J. Aug. 20, 2013); Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805 (M.D. Tenn. 

2013). These non-precedential cases were decided in part under Section 230 of the 

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Communications Decency Act—which has no application in this federal prosecution. (See 

Doc. 840 at 4-12.) The quoted language from McKenna contains a series of rhetorical 

questions and does not state a legal rule or requirement. 

Since these cases were decided, there has been a sea change in the availability of 

evidence concerning Backpage, including Backpage’s compelled production of more than 

500,000 pages of internal documents to the United States Senate and the grand jury. Doc. 

649, Resp. at 22-23. Following these disclosures, Backpage and its CEO pleaded guilty in 

April 2018 and admitted the “great majority” of Backpage’s revenue-generating ads were 

“for prostitution services.” 18-CR-464, Doc. 7-2 at 12-13; 18-CR-465, Doc. 8-2 at 11; see 

also Doc. 271 (plea agreement of Backpage Sales and Marketing Director). These and 

other factual developments undermined many of the assumptions underlying McKenna, 

Cooper, and Hoffman, including that Backpage was merely a passive recipient of thirdparty ads, and that Backpage policed (rather than promoted, or facilitated the promotion 

of) its customers’ prostitution advertisements. Doc. 649, Resp. at 22-26. 

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DEFENDANTS’ PROPOSED INSTRUCTION NO. 12

FIRST AMENDMENT PROTECTION—CODED ADVERTISEMENT 

LANGUAGE

If a classified ad posted by a third party to a website might, or might not, propose 

an illegal transaction, depending on how supposedly “coded” language or emojis in the ad 

are interpreted, because of supposedly implicit offers in the ad, or both, the ad does not

propose a necessarily illegal act because the legality of the transaction proposed in the ad 

depends on circumstances outside the content of the ad. A website’s publication of such 

an ad posted by a third party would, therefore, be presumptively protected by the First 

Amendment. 

Supporting Authorities

See the supporting authorities for proposed instruction #11 (above).

UNITED STATES’ OBJECTIONS

The United States incorporates its objections to Defendants’ Proposed Instructions 

Nos. 7 and 10-11, and also objects to this instruction as cumulative of Defendants’ 

Proposed Instructions Nos. 7-11.

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DEFENDANTS’ PROPOSED INSTRUCTION NO. 13

FIRST AMENDMENT PROTECTION—EXAMPLES OF LEGAL “ADULT” 

SERVICES 

Advertisements for dating, massages, and escort services (which include private 

stripping) are presumptively legal and constitutionally protected speech, because dating, 

massages, and escort services (including private stripping) all are legal activities. 

Supporting Authorities

See the supporting authorities for proposed instruction #11 (above).

See also Backpage.com, LLC v. Dart, 807 F.3d 229, 234 (7th Cir. 2015), cert. 

denied, 137 S. Ct. 46 (2016) (rejecting sheriff’s presumption that ads on Backpage.com 

were illegal: Backpage.com was “an avenue of expression of ideas and opinions” protected 

by the First Amendment, including its “classified ads for ‘adult’ service;” “Fetishism? 

Phone sex? Performances by striptease artists? (Vulgar is not violent.) One ad in the 

category ‘dom & fetish’ is for the services of a ‘professional dominatrix’—a woman who 

is paid to whip or otherwise humiliate a customer in order to arouse him sexually. It’s not 

obvious that such conduct endangers women or children or violates any laws, including 

laws against prostitution. The district judge remarked ‘that the majority of the 

advertisements [in Backpage’s adult section] are for sex’—but a majority is not all, and not 

all advertisements for sex are advertisements for illegal sex.”) (internal citations omitted); 

Dart v. Craigslist, Inc., 665 F. Supp. 2d 961, 968 (N.D. Ill. 2009) (Sheriff Dart “is simply 

wrong when he insists that [craigslist’s adult services category and related subcategories] 

are all synonyms for illegal sexual services;” Craigslist’s “adult services” section “is not 

unlawful in itself nor does it necessarily call for unlawful content”); Backpage.com, LLC 

v. Hoffman, 2013 WL 4502097, at *9-11 (D.N.J. Aug. 20, 2013) (rejecting state’s argument 

that adult-oriented ads on Backpage.com were unprotected speech); Backpage.com, LLC 

v. Cooper, 939 F. Supp. 2d 805, 833-34 (M.D. Tenn. 2013) (same); Backpage.com, LLC v. 

McKenna, 881 F. Supp. 2d 1262, 1281-82 (W.D. Wash. 2012) (same).

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Cf. M.A. ex rel. P.K v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 

1049-50 (E.D. Mo. 2011) (rejecting similar presumptions in dismissing plaintiff’s civil 

claims based, among other things, on 18 U.S.C. §§ 2, 1595, and 2255); People v Ferrer, 

2016 WL 7237305, at *9 (Cal. Super. Ct. Dec. 9, 2016) (dismissing state’s pimping charges 

against Larkin and Lacey; noting that the only “whiff of illegality” in the AG’s complaint 

improperly “require[ed] the presumption that illegal content was contained in the ads,” yet 

the website’s actions in publishing the ads “would not be illegal”).

UNITED STATES’ OBJECTIONS

The United States incorporates its objections to Defendants’ Proposed Instructions 

Nos. 7 and 10-11, and also to this instruction as cumulative of Defendants’ Proposed 

Instructions Nos. 7-12.

In addition, the instruction is not supported by the facts and the law. Merely 

labelling an ad as one for an ostensibly lawful service does not make it so. Doc. 1604 at 2. 

Rather, the United States anticipates that the trial evidence will show that while Backpage 

for many years maintained an “adult” “escorts” advertising category, Defendants were 

aware that the overwhelming majority of ads in that section were for prostitution—and 

Defendants deliberately pursued a number of business strategies specifically designed to 

attract more prostitution advertising customers and increase its prostitution-related 

revenues. SI ¶34 (Defendants “took a variety of steps to intentionally facilitate that illegal 

activity”); Doc. 1176 at 15-17; Doc. 1604 at 2-4. This evidence is expected to include 

testimony from numerous witnesses, including former Backpage employees and 

contractors, people who were advertised for sexual services on Backpage, and law 

enforcement agents who investigated ads on Backpage, including testimony that no one 

who investigated or responded to an ad on Backpage’s “adult” or “escorts” sections ever 

encountered an advertisement for lawful “escort services.” The upshot is that the label 

“escort,” as used on Backpage, was nothing more than a euphemism for prostitution. (Doc. 

1176 at 15-17; Doc. 1604 at 2-4.) 

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The cases Defendants cite to support the instruction are distinguishable—and 

Backpage’s more recent litigation history undermines Defendants’ claim that Backpage’s 

“adult” ads involved “legal activities.” See Doc. 649, Resp. at 21-26.

First, most involved Section 230 of the Communications Decency Act, which—as 

this Court has recognized—does not apply here. 47 U.S.C. § 230(e)(1) (“Nothing in this 

section shall be construed to impair the enforcement of...[any] Federal criminal statute.”); 

(Doc. 840 at 4-12). See, e.g., M.A. v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 

1041, 1058 (E.D. Mo. 2011) (dismissing trafficking victim’s civil case against Backpage’s 

then-parent; “Congress has declared such websites to be immune from suits arising from 

such injuries.”); People v. Ferrer, 2016 WL 7237305, at *11 (Cal. Super. Ct. Dec. 16, 2016) 

(dismissing state law criminal charges against Lacey, Larkin and Ferrer; recognizing “it is 

for Congress, not this Court, to revisit” the CDA). 

Second, since these cases were decided, there has been a sea change in the 

availability of evidence concerning Backpage, including Backpage’s compelled production 

of more than 500,000 pages of internal documents to the United States Senate and the grand 

jury. Doc. 649, Resp. at 22-23. As alleged in the SI, evidence obtained pursuant to the 

Senate and grand jury investigations revealed that Backpage misrepresented itself in the 

above-referenced cases as merely a passive conduit for third-party content, and exposed its

supposed efforts to police unlawful ads on its site as a fiction. Cf. McKenna, 881 F. Supp. 

2d at 1266-67. 

Rather, the evidence showed Backpage facilitated its customers’ prostitution 

ventures through “moderation” practices that edited or shaped ads to reduce the risk of 

detection while still conveying the illegal message; business relationships with prostitution 

websites (e.g., The Erotic Review) and “super-affiliates” (e.g., Dollar Bill) calculated to 

increase the volume of prostitution ads on Backpage; “aggregation” practices that involved 

creating prostitution ads and soliciting pimps and prostitutes to advertise on Backpage; and 

money laundering. See generally SI¶¶ 9-11, 34-159. This evidence was not provided to 

the courts that previously ruled in Backpage’s favor.

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Third, Defendants’ cases were decided before Backpage and its CEO pleaded guilty 

in April 2018 and admitted the “great majority” of Backpage’s revenue-generating ads 

were “for prostitution services.” 18-CR-464, Doc. 7-2 at 12-13; 18-CR-465, Doc. 8-2 at 

11. Backpage’s Sales and Marketing Director pleaded guilty in August 2018 and made 

similar admissions. Doc. 271 at 10. 

Following these developments, the Northern District of Illinois dismissed Dart as 

moot and sanctioned Backpage for “knowingly and repeatedly ma[king] false 

representations of fact concerning relevant aspects of its operations. This fraudulent 

conduct has been pervasive throughout this law suit[.]” Doc. 516-1 at 8; see id. at 2-9; see 

also Doc. 446-1 at 14-35.

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DEFENDANTS’ PROPOSED INSTRUCTION NO. 14

FIRST AMENDMENT PROTECTION—ADS PRESUMED PROTECTED

The classified ads that are the bases for Counts 2 – 22 and 24 – 51 do not propose 

transactions that necessarily would be illegal acts and the legality of the transactions 

proposed in those ads depends on circumstances outside the content of the ads. Therefore, 

Backpage.com’s publication of those 49 ads was presumptively protected by the First 

Amendment to the United States Constitution. Likewise, if any defendant took any action 

in relation to the publication of any of those ads, his or her conduct also was presumptively 

protected by the First Amendment. 

Supporting Authorities

See the supporting authorities for proposed instruction #11 (above).

UNITED STATES’ OBJECTIONS

The United States incorporates its objections to Defendants’ Proposed Instructions 

Nos. 7 and 10-11, and also objects to this instruction as cumulative of Defendants’ 

Proposed Instructions Nos. 7-13.

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DEFENDANTS’ PROPOSED INSTRUCTION NO. 15

FIRST AMENDMENT PROTECTION—GOVERNMENT’S BURDEN TO 

OVERCOME PRESUMPTION

To overcome the presumption that a person’s publication of a third-party’s classified ad is 

protected by the First Amendment, the government must prove beyond a reasonable doubt 

that:

(1) the person had actual knowledge of the particular ad, and

(2) the person had actual knowledge that the particular ad was in fact associated with 

unlawful activity, and 

(3) the person personally took an action causing the particular ad to be published, or to 

continue to be published, specifically intending to further the unlawful activity.

Supporting Authorities

See Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1281 (W.D. Wash. 

2012) (“The third-party publication of offers to engage in illegal transactions does not fall 

within ‘well-defined and narrowly limited classes of speech’ that fall outside of First 

Amendment protection.”) (quoting Chaplinsky v. State of New Hampshire, 315 U.S. 568, 

571–572 (1942)); United States v Gibson Specialty Co., 507 F.2d 446, 450 fn. 8 (9th Cir. 

1974) (“The presumption that one intends the natural and probable consequences of his 

actions is insufficient in this context to establish intent to facilitate criminal activity. It is 

as likely as not that a vendor similar to the defendants in this proceeding is totally 

indifferent to the actions of his purchaser.”); See United States v. Rundo, 990 F.3d 709, 

719-720 (9th Cir. 2021) (“’the intent to engage in one of the prohibited acts is a personal 

prerequisite to punishment under [the Act] . . . Simply put, knowing that some might choose 

to become violent is not at all the same as intending that they do so.”).

See Smith v. California, 361 U.S. 147, 153-54 (1959); Mishkin v. New York, 383 

U.S. 502, 511 (1966) (“The Constitution requires proof of scienter to avoid the hazard of 

self-censorship of constitutionally protected material . . .”); Valle Del Sol Inc. v. Whiting, 

709 F.3d 808, 822 (9th Cir. 2013) (rejecting Arizona’s proposed “novel extension of 

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Central Hudson’s legality requirement, which has traditionally focused on the content of 

affected speech—i.e., whether the speech proposes an illegal transaction—instead of 

whether the speech is associated with unlawful activity”) (emphasis added); 

Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805, 830 (M.D. Tenn. 2013) (the First 

Amendment burden imposed by self-censorship is magnified on the Internet, because 

“websites ... will bear an impossible burden to review all of their millions of postings or, 

more likely, shut down their adult services section entirely.”).

United States v. Klaw, 350 F.2d 155, 170 (2d Cir. 1965) (“The courts may have 

opened the floodgates for horror and filth, but if they are to be closed it should be done by 

the careful drafting of proper laws by our duly elected representatives, and not by a 

combination of zealous governmental inspectors, prosecutors, and uninformed juries. ... 

Unless there be this protection, a witch hunt might well come to pass which would make 

the Salem tragedy fade into obscurity. Having in mind the alternatives of jail or freedom, 

courts must be aware of the facts of the [] cases [holding speech to be protected], and ensure 

that the proof is sufficient to allow a fact finder to set this case apart from them. Otherwise, 

it would be altogether too easy for any prosecutor to stand before a jury, display the exhibits 

involved, and merely ask in summation: ‘Would you want your son or daughter to see or 

read this stuff?’ A conviction in every instance would be virtually assured.”)

See also United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHXSMB, Doc. No. 946 at 13 (Order denying motion to dismiss) (“[Defendants] were not 

indicted for facilitating the amorphous notion of ‘prostitution.’ They were indicted for 

facilitating (via publishing ads) on fifty distinct occasions where prostitutes, prostitutionrelated businesses, or other groups were involved in the business of prostitution.”); see 

United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Transcript of 

December 4, 2020 Hearing (“And I think one of the key things in my reason for denying 

the recusal is that this case is not about Backpage. Backpage was prosecuted in a separate 

case, entered a plea in a separate case. This case is about these individual defendants and 

whether they had specific knowledge of these ads as facilitating illegal activity.”).

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UNITED STATES’ OBJECTIONS

The United States incorporates its objections to Defendants’ Proposed Instructions 

Nos. 7, 10-11, and 13, and also objects to the instruction as cumulative of Defendants’ 

Proposed Instructions Nos. 7-14. 

In addition, the instruction is not supported by the facts and the law. This Court 

ruled in 2019 that the allegations in the SI, if proven, satisfy the mens rea required by the 

First Amendment in the context of this case. Doc. 793 at 15-20. Based on the Court’s 

ruling, which is law of the case (Doc. 1524 at 4 n.2), the instruction should not be adopted.

As this Court has already found, the cases on which Defendants rely—including 

Smith v. California, 361 U.S. 147 (1959), and Mishkin v. New York, 383 U.S. 502 (1966)—

do not support the scienter described in the instruction:

Defendants argue the First Amendment requires the Government to prove 

that each Defendant was aware of each ad that make up the fifty Travel Act 

counts and knew that each ad proposed illegal transactions. The Court is not 

persuaded that the First Amendment demands such a standard. 

. . . . Defendants largely rely on four cases [including Smith v. California, 361 U.S. 147 (1959), and Mishkin v. New York, 383 U.S. 502, 511 (1966)]. The Court concludes none of these cases mandate the mens rea requirement described by Defendants, and, instead, agrees with the Government that 

intent to promote or facilitate prostitution is sufficient. 

. . . . [In Smith, the Supreme Court] did not consider “what sort of mental element is requisite to a constitutionally permissible prosecution of a 

bookseller for carrying an obscene book in stock” and explicitly left open the 

possibility of prosecution for something less than specific knowledge of the 

contents of a particular book. [361 U.S.] at 154–55. 

Likewise, Mishkin upheld a scienter standard less demanding than the one proposed by defendants. There, the defendant was convicted of violating a 

New York Penal Law prohibiting possession of obscene books with intent to 

sell and hiring others to prepare and publish obscene books. Mishkin, 383 

U.S. at 503. The Court upheld the scienter standard used by the New York 

Court of Appeals, requiring the State show defendants were “in some manner 

aware of the character of the material they attempt to distribute.” Id. at 510. 

The Court reasoned, “proof of scienter” is required “to avoid the hazard of 

self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity.” Id. at 511. The 

scienter standard used in the prosecution “amply serve[d] those ends, and therefore fully [met] the demands of the Constitution.” Id.

Doc. 793 at 15-16; see also Doc. 649, Resp. at 33-35.

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Defendants’ remaining cases do not support the instruction. Valle Del Sol Inc. v. 

Whiting, 709 F.3d 808, 814, 823 (9th Cir. 2013), held that Arizona could not target day 

laborers for harsher punishment when, in the course of soliciting lawful work (i.e., 

engaging in lawful commercial speech), they violated an unrelated traffic law. It contains 

no language supporting the instruction and has nothing to do with this case. 

In United States v. Rundo, 990 F.3d 709 (9th Cir. 2021), the Ninth Circuit reversed 

the dismissal of an indictment charging several defendants with violating the Anti-Riot 

Act, 18 U.S.C. § 2101-02. In the context of construing that statute, the court focused on 

separating protected advocacy from speech inciting imminent lawless violence. Id. at 716-

20. This case, in contrast, does not present the same concerns—it involves different 

statutes, and none of the charged conduct involves anything that could be considered 

constitutionally-protected abstract advocacy. Cf. Williams, 553 U.S. at 298-89 (“To be 

sure, there remains an important distinction between a proposal to engage in illegal activity 

and the abstract advocacy of illegality. . . . The Act before us does not prohibit advocacy 

of child pornography, but only offers to provide or requests to obtain it. There is no doubt 

that this prohibition falls well within constitutional bounds.”). 

United States v Gibson Specialty Co., 507 F.2d 446 (9th Cir. 1974), contains no 

First Amendment discussion, and is distinguishable for the additional reasons set forth in 

Doc. 649, Resp. at 31-32. United States v. Klaw, 350 F.2d 155 (2d Cir. 1965), reversed an 

obscenity conviction for insufficient evidence—it, too, has nothing to do with this case.

Defendants’ quote from the December 4, 2020 hearing in this case does not support 

the proposed instruction, let alone purport to define the contours of the 100 counts in the 

SI. The Court’s statement that “[t]his case is about these individual defendants and whether 

they had specific knowledge of these ads as facilitating illegal activity” was made in the 

context of explaining that the focus of this case is on establishing the guilt of “these 

defendants,” rather than Backpage (which had already been prosecuted and pleaded guilty 

in a separate case). 12/4/20 Hr’g Tr. at 38. 

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Defendants’ isolated quote from the Court’s May 4, 2020 Order denying their 

Motion to Dismiss Indictment for Failure to Allege the Necessary Elements of the Travel 

Act (Doc. 946) likewise fails to support the instruction. In disagreeing with Defendants’ 

assertion that the SI failed to identify the “unlawful activity” under the Travel Act that 

forms the basis for Travel Act charges, the Court wrote: “Based on the allegations here, 

Defendants are not charged with anything related to gambling, narcotics, bribery, extortion 

or arson. Rather, they are clearly charged with intending to facilitate and thereafter 

facilitating or attempting to facilitate businesses involved in prostitution. See 18 U.S.C. § 

1952(b)(i)(1).” Doc. 946 at 9; see also id. at 11 (“Additionally, and as noted, the ‘to wit: 

prostitution offenses’ language directs Defendants to which ‘unlawful activity’ is charged 

under each Travel Act count.”) (citing SI¶ 201). Addressing the individual substantive 

Travel Act charges in Counts 2-51, the Court also observed that “the SI alleges fifty 

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

prostitutes or pimps involved in the business of prostitution” and used language that 

“almost identically mirrors the Travel Act’s text.” Doc. 946 at 11, citing SI¶¶ 200-201. 

Later, rejecting Defendants’ suggestion that the SI indicted a “‘boundless conspiracy’ to 

facilitate prostitution in general,” the Court wrote that “[s]uch a claim is simply untrue” 

because Defendants “were not indicted for facilitating the amorphous notion of 

‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.” Doc. 946 at 13. The Court went on to explain that these 

fifty instances were part and parcel of “a continuous course of conduct where Defendants 

facilitated ‘unlawful activity’ [including] numerous pimps, prostitutes and traffickers in 

violation of the Travel Act.” Doc. 946 at 13-14.

Defendants’ instruction also ignores the many ways of proving that a seller of goods 

or services (including a website operator) intended to promote, or facilitate the promotion 

of, business enterprises involved in unlawful activity. Intent can be inferred from 

knowledge (or deliberate ignorance) in a variety of circumstances—including several that 

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fit comfortably within the allegations of the SI. In People v. Lauria, 59 Cal. Rptr. 628, 635 

(Cal. Ct. App. 1967), for example, the court reversed a conspiracy conviction of a 

defendant who operated a telephone messaging service knowing that some of his customers 

were using his services to further their prostitution businesses. The court found that the 

defendant’s specific intent to facilitate unlawful activity may be inferred from knowledge 

in any one of several circumstances (none of which was present in Lauria), including:

• “[P]roof . . . of inflated charges” for goods or services used for illegal activities (the 

United States anticipates introducing evidence that Backpage charged much higher 

fees for its “adult” and “escort” ads than for ads in its non-adult sections);

• “[E]vidence 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” (the 

United States anticipates introducing evidence that Backpage derived the lion’s 

share of its revenues from prostitution ads); or

• Selling goods or services that “serve no other purpose than to advertise the 

professional services of the prostitutes” (the United States anticipates introducing 

evidence that the vast majority of Backpage’s “adult” and “escort” ads were 

prostitution ads).

Lauria, 59 Cal. Rptr. at 632-33. See also 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, or that the sales to the illegal 

operation have become the dominant proportion of the seller’s business.”); id. (courts have 

also focused on deceptive or “secretive” tactics used by the seller); Monica J. DeLateur, 

From Craigslist to Backpage.com: Conspiracy as a Strategy to Prosecute Third-Party 

Websites for Sex Trafficking, 56 SANTA CLARA L. REV. 531, 581 (2016) (intent can be 

proven, inter alia, by showing “the illegal activity was a high proportion of the business, 

the presence of a stake in the venture, or deliberate ignorance”). Moreover, Lauria found 

that no inference would be needed in cases where “the intent to further and promote the 

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criminal enterprise comes from the lips of the supplier himself[.]” 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); United States v. Omuro, N.D. 

Cal. No. 14-CR-336, Doc. 70 at 1-3 (court accepted guilty plea and convicted 

www.myRedBook.com founder Eric Omuro under the Travel Act, 18 U.S.C. 

§ 1952(a)(3)(A); Omuro’s website hosted thousands of ads posted by prostitutes in the 

western United States, and generated profits from fees paid by “escorts” to post their ads 

more prominently); United States v. Hurant, E.D.N.Y. No. 16-CR-45, Doc. 117 at 1, 6 13-

14 (court accepted guilty plea and convicted www.Rentboy.com founder Jeffrey Hurant 

for violating the Travel Act; Hurant admitted he “was well aware...that the escort ads he 

posted...were thinly-veiled proposals of sexual services in exchange for money”; id. Doc. 

125 at 2 (like Backpage, Hurant’s employees often rejected ads with explicit offers of sex 

for money “but allow[ed] the ad to be resubmitted with different language. In many cases, 

Rentboy.com employees would just edit the advertisement’s language and approve it.”).

The instruction is unnecessary for the additional reason that the contours of the 

United States’ burden of proof is adequately described by its jury instructions regarding 

the SI’s conspiracy, Travel Act and money laundering counts, including instructions 

discussing Pinkerton. 

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DEFENDANTS’ PROPOSED INSTRUCTION NO. 16

FIRST AMENDMENT PROTECTION—ADS PRESUMED PROTECTED

A website that publishes classified ads that are presumptively protected by the First

Amendment to the United States Constitution (because the ads do not propose transactions 

that necessarily would be illegal acts) does not lose the protection of the First Amendment 

because some, or even many, of those ads actually are associated with illegal acts 

committed by the persons posting the ads. 

A website that publishes classified ads that are presumptively protected by the First

Amendment to the United States Constitution (because the ads do not propose transactions 

that necessarily would be illegal acts) does not lose the protection of the First Amendment 

because the website has been told that many of the ads it publishes are associated with 

illegal acts committed by the persons posting the ads. 

Supporting Authorities

See the supporting authorities for proposed instruction #11 (above).

UNITED STATES’ OBJECTIONS

The United States incorporates its objections to Defendants’ Proposed Instructions 

Nos. 7, 10-11, and 13, and also objects to the instruction as cumulative of Defendants’ 

Proposed Instructions Nos. 7-15. 

In addition, the instruction misleadingly suggests Defendants’ and Backpage’s 

receipt of notice (including, inter alia, from the National Center for Missing and Exploited 

Children (NCMEC), the United States Senate, the National Association of Attorneys’ 

General, other law enforcement agencies, financial institutions, news organizations, 

victims) that the overwhelming majority of Backpage’s “adult” and “escort” ads were for 

prostitution is irrelevant to determining whether Backpage was a prostitution advertising 

website (and whether Defendants knowingly and intentionally operated it as such). 

The instruction also should not be given because it is framed in terms of determining 

whether “[a] website that publishes classified ads” is protected by the First Amendment. 

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This case isn’t about whether a website—namely, www.Backpage.com, was protected by 

the First Amendment. The entities that operated the Backpage website—including 

Backpage.com, LLC and several related companies—have all pleaded guilty and admitted 

that the great majority of the website’s ads were prostitution advertisements that are not 

protected by the First Amendment. See, e.g., United States v. Backpage.com, LLC, CR18-465-PHX-SMB, Doc. 8-2 at 6-11, and Docs. 8-3 through 8-7. To the extent the 

instruction suggests otherwise, it is irrelevant and confusing, and not supported by the law 

or the record.

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DEFENDANTS’ PROPOSED INSTRUCTION NO. 17

FIRST AMENDMENT PROTECTION—NO REQUIREMENT TO 

INVESTIGATE

Publishers of third-party content, including internet providers, are not required to 

investigate or learn what their users are doing and whether anyone may be hurt as a result.

Supporting Authorities

Winter v. G.P. Putnam’s Sons, 938 F.2d 1033, 1037 & n.8 (9th Cir. 1991) (“the 

First Amendment and the values embodied therein” preclude compelling a publisher to 

“independently investigate” third-party content).

UNITED STATES’ OBJECTIONS

This “First Amendment” instruction is irrelevant, confusing and not supported by 

First Amendment or other law. The sole case Defendants cite is inapposite. Winter v. G.P. 

Putnam’s Sons, 938 F.2d 1033 (9th Cir. 1991), involved “mushroom enthusiasts” who 

attempted to sue a book’s publisher for negligence after they relied on information in a 

book that led them to pick and eat mushrooms that made them severely ill. The court found 

that the publisher did not have a duty of care that would have required it to investigate 

claims made in the book. Winter, 938 F.2d at 1037. The court noted, however, that “[a] 

stronger argument might be made” if the publisher engaged in intentional tortious conduct, 

such as “libel or fraudulent, intentional, or malicious misrepresentation, but such is not 

contended in this case.” Id. at 1037 n.9. 

Here, the SI alleges—and the United States anticipates the evidence will show—

that Defendants intentionally developed and operated Backpage as a website whose 

revenue-generating business model was focused on selling prostitution ads. That 

intentional, deliberate conduct distinguishes Winter. Cf. Ulbricht, 31 F. Supp. 3d at 556 

(unlike other online businesses, defendant “knowingly and intentionally constructed and 

operated an expansive black market for selling and purchasing narcotics and malicious 

software”); J.S. v. Village Voice Media Holdings, Inc., 359 P.3d 714, 715-16 (Wash. 2015) 

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(discussing Backpage’s involvement in victims’ ads); SI ¶109 (Backpage is “a direct 

vehicle for prostitution”). 

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DEFENDANTS’ PROPOSED INSTRUCTION NO. 18

FIRST AMENDMENT PROTECTION—NO REQUIREMENT TO SHUT DOWN

The First Amendment to the United States Constitution prohibits the government 

from restricting or punishing legal speech in an effort to eliminate illegal speech. 

For this reason, the government may not require a website that publishes classified 

ads that are presumptively protected by the First Amendment to the United States 

Constitution (because the ads do not propose transactions that necessarily would be illegal 

acts) to shut down its adult section, even if doing so could have reduced the number of ads 

on the website relating to illegal conduct. 

For the same reason, the government may not prosecute and the jury may not convict 

any defendant because he, or she, or Backpage.com refused to cease publishing protected 

dating, massage, and escort ads, even if eliminating all adult-oriented ads would have 

reduced the number of ads on the website associated with illegal conduct. 

Supporting Authorities

Packingham v. North Carolina, 137 S. Ct. 1730, 1738 (2017) (“as a general rule, 

the Government ‘may not suppress lawful speech as the means to suppress unlawful 

speech’”); Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002) (“[A] law imposing 

criminal penalties on protected speech is a stark example of speech suppression. . . . The 

Constitution gives significant protection from overbroad laws that chill speech within the 

First Amendment’s vast and privileged sphere.”)); id at 255 (rejecting the government’s 

argument that Congress could ban virtual child pornography to aid in the prosecution of 

actual child pornography, the Court held: “The argument, in essence, is that protected 

speech may be banned as a means to ban unprotected speech. This analysis turns the First 

Amendment upside down. The government may not suppress lawful speech as the means 

to suppress unlawful speech. Protected speech does not become unprotected merely 

because it resembles the latter. The Constitution requires the reverse. ‘[T]he possible harm 

to society in permitting some unprotected speech to go unpunished is outweighed by the 

possibility that protected speech of others may be muted....’”) (brackets in original); 

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IMDB.com Inc. v. Bacerra, 962 F.3d 1111, 1123 (9th Cir. 2020) (“Pittsburgh Press 

implicates only those instances when the state restricts speech that itself proposes an illegal 

transaction...SAG’s interpretation of Pittsburgh Press would require this court to permit 

the restriction not only of speech that proposes an illegal activity but also facially 

inoffensive speech that a third-party might use to facilitate its own illegal conduct. But as 

the Supreme Court has noted, ‘it would be quite remarkable to hold that speech by a lawabiding possessor of information can be suppressed in order to deter conduct by a non-lawabiding third party.’ Bartnicki v. Vopper, 532 U.S. 514, 529–30, 121 S.Ct. 1753, 149 

L.Ed.2d 787 (2001)...Rather than restrict truthful speech, the typical ‘method of deterring 

unlawful conduct is to impose an appropriate punishment on the person who engages in it.’ 

Bartnicki, 532 U.S. at 529, 121 S.Ct. 1753.”) (emphasis added).

UNITED STATES’ OBJECTIONS

The United States incorporates its objections to Defendants’ Proposed Instruction 

No. 7, 10-11 and 13, and also objects to the instruction as cumulative of Defendants’ 

Proposed Instructions Nos. 7-17. 

Moreover, the instruction is confusing, irrelevant, and misleading. This case is 

about Defendants’ commission of federal offenses in the course of operating, for more than 

a decade, the internet’s largest source of ads for the sale of people for sex. See generally

Doc. 793 (detailing the SI’s factual and legal allegations). The suggestion that this case 

was brought to “prosecute . . . and convict any defendant because he, or she, or 

Backpage.com refused to cease publishing protected dating, massage, and escort ads” 

mischaracterizes the SI and is untrue. See generally Doc. 230. 

The instruction also is confusing, irrelevant, and misleading because, in April 2018, 

Backpage pleaded guilty in a separate case and cooperated in its shut down. See United 

States v. Backpage.com, LLC, CR-18-465-PHX-SMB, Doc. 8-2 at 6-11. The instant case 

involves criminal charges against six individual Defendants, not Backpage. 

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Further, the instruction is not supported by the cases Defendants cite. None 

involved a website, like Backpage, whose revenue-generating business model consisted of 

operating a massive online marketplace for illegal prostitution. Cf. Ulbricht, 31 F. Supp. 

at 558 (rejecting website operator’s argument that his site’s online marketplace for illegal 

narcotics involved speech protected by First Amendment); see also Doc. 793 at 14 (“The 

SI does not allege Defendants are criminally liable because they unknowingly and 

unintentionally operated a website used by third parties to post prostitution ads. Rather, it 

alleges Defendants purposely sought out opportunities to increase prostitution advertising 

on Backpage. . . . As alleged, Backpage’s efforts to promote its website facilitated 

prostitution and were not protected business practices.”); Doc. 793 at 8 (“The SI 

sufficiently explains why defendants in this case are not just merely hosting third party 

content.”); Doc. 840 at 9-10 & n.6 (explaining that the SI’s allegations differentiate 

Backpage’s activities from passive hosting of third party content).

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DEFENDANTS’ PROPOSED INSTRUCTION NO. 19

FIRST AMENDMENT PROTECTION—WEBSITE HAS THE RIGHT TO 

EXERCISE EDITORIAL CONTROL AND JUDGMENT

The First Amendment presumptively protects the “editorial control and judgment” 

of a publisher, including a website, including its decisions about whether to exclude, 

moderate, filter, label, restrict, or promote third-party content. The First Amendment 

presumptively protected both the rights of Backpage.com users to post speech on the 

website and the rights of Backpage, as the publisher of Backpage.com, to exercise its 

editorial judgment over which speech it would, and would not, allow on its website.

Federal law also protects online service providers and encourages them to engage 

in the editorial practices of monitoring, limiting, and/or editing user-submitted content to 

“maintain the robust nature of Internet communication, and...keep government 

interference in the medium to a minimum.” 

Supporting Authorities

Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (“The choice of 

material to go into a newspaper, and the decisions made as to limitations on the size and 

content of the paper, and treatment of public issues and public officials—whether fair or 

unfair—constitute the exercise of editorial control and judgment. It has yet to be 

demonstrated how governmental regulation of this crucial process can be exercised 

consistent with First Amendment guarantees of a free press as they have evolved to this 

time.”); Washington Post v. McManus, 355 F. Supp. 3d 272, 300 (D. Md. 2019) (enjoining 

Maryland statute requiring social media and news websites to self-publish information 

about political ads as infringing editorial judgments; “This respect for a publisher’s right 

to exercise ‘editorial control and judgment’ ... applies with equal force to outlets that 

publish content on the Internet”) (quoting Tornillo, 418 U.S. at 258), aff’d., 944 F.3d 506 

(4th Cir. 2019).

NetChoice, LLC v. Attorney General, Florida, 34 F.4th 1196, 1203, 1210 (11th Cir. 

2022) (“Put simply, with minor exceptions, the government can’t tell a private person or 

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entity what to say or how to say it.... Social-media platforms like Facebook, Twitter, 

YouTube, and TikTok are private companies with First Amendment rights, and when they 

(like other entities) ‘disclos[e],’ ‘publish[ ],’ or ‘disseminat[e]’ information, they engage 

in ‘speech within the meaning of the First Amendment[.]’ More particularly, when a 

platform removes or deprioritizes a user or post, it makes a judgment about whether and to 

what extent it will publish information to its users—a judgment rooted in the platform’s 

own views about the sorts of content and viewpoints that are valuable and appropriate for 

dissemination on its site....When a platform selectively removes what it perceives to be 

incendiary political rhetoric, pornographic content, or public-health misinformation, it 

conveys a message and thereby engages in ‘speech’ within the meaning of the First 

Amendment.”) (internal citations omitted); id. at 1213 (“Social-media platforms exercise 

editorial judgment that is inherently expressive” and, therefore, “[w]hen platforms choose 

to remove users or posts, deprioritize content in viewers’ feeds or search results, or sanction 

breaches of their community standards, they engage in First-Amendment-protected 

activity.”); Hopson v. Google, No. 21-cv-320-wmc, 2023 WL 2733665 (W.D. Wis. Mar. 

31, 2023) (“At their core, each of these remaining claims against Google challenge its 

editorial judgments about what to publish or not publish—whether by restricting and 

filtering the website’s contents or filtering search results. Thus, numerous district courts 

have concluded that such activity is protected by the First Amendment.”); Huber v. Biden, 

No. 21-CV-06580-EMC, 2022 WL 827248, at *6 (N.D. Cal. Mar. 18, 2022) (“It is wellestablished that the First Amendment protects the ‘exercise of [a publisher’s] editorial 

control and judgment.’ Mia. Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974). For 

example, courts have recognized that ‘[s]ocial media platforms have a First Amendment 

right to moderate content disseminated on their platforms.’”) (brackets in original), aff’d,

No. 22-15443, 2022 WL 17818543 (9th Cir. Dec. 20, 2022); O’Handley v. Padilla, No. 

21-CV-07063-CRB, 2022 WL 93625, at *14-15 (N.D. Cal. Jan. 10, 2022) (“Like a 

newspaper or a news network, Twitter makes decisions about what content to include, 

exclude, moderate, filter, label, restrict, or promote, and those decisions are protected by 

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the First Amendment.... Twitter has important First Amendment rights that would be 

jeopardized by a Court order telling Twitter what content-moderation policies to adopt and 

how to enforce those policies. The Court will issue no such order.”); e-ventures 

Worldwide, LLC v. Google, Inc., 2017 WL 2210029, at *4 (M.D. Fla. Feb. 8, 2017) (“A 

search engine is akin to a publisher, whose judgments about what to publish and what not 

to publish are absolutely protected by the First Amendment;” holding that “Google’s 

actions in ... determining whether certain websites are contrary to Google’s guidelines and 

thereby subject to removal are the same as decisions by a newspaper editor regarding which 

content to publish, which article belongs on the front page, and which article is unworthy 

of publication. The First Amendment protects these decisions, whether they are fair or 

unfair, or motivated by profit or altruism.”); Zhang v. Baidu.com Inc., 10 F. Supp. 3d 433, 

438-40 (S.D.N.Y. 2014) (granting judgment on the pleadings because: “[A] ‘search 

engine’s editorial judgment is much like many other familiar editorial judgments,’ such as 

the newspaper editor’s judgment of which wire-service stories to run and where to place 

them in the newspaper... [T]he First Amendment...plainly shields Baidu from Plaintiffs’ 

claims in this lawsuit ... [because] they seek to hold Baidu liable for, and thus punish Baidu 

for [its content moderation decisions]... To allow such a suit to proceed would plainly 

‘violate[ ] the fundamental rule of protection under the First Amendment, that a speaker 

has the autonomy to choose the content of his own message.’”); Langdon v. Google, Inc., 

474 F. Supp. 2d 622, 629-630 (D. Del. 2007) (First Amendment protects decisions about 

placement, ranking, or rejection of online advertisements); Search King, Inc. v. Google 

Tech., Inc., 2003 WL 21464568 *4 (W.D. Okla. 2003) (“Google’s PageRanks are entitled 

to ‘full constitutional protection.’”).

Batzel v. Smith, 333 F.3d 1018, 1028 (9th Cir. 2003) (“there is little doubt that the 

Cox–Wyden amendment, which added what ultimately became § 230 to the Act, sought to 

further First Amendment and e-commerce interests on the Internet”); id. at 1040 (“A proper 

analysis of § 230, which makes a human being’s decision to disseminate a particular 

communication the touchstone of CDA immunity, reconciles Congress’s intent to 

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deregulate the Internet with Congress’s recognition that certain beneficial technologies, 

which promote efficient global communication and advance values enshrined in our First 

Amendment, are unique to the Internet and need special protection.”) (Gould, J. concurring 

in part and dissenting in part); Gonzalez v. Google, Inc., 282 F. Supp. 3d 1150, 1163 (N.D. 

Cal. 2017) (“the immunities in section 230(c) are far from tangential; they are one of the 

means by which Congress ‘sought to further First Amendment and e-commerce interests 

on the Internet’”), aff’d, 2 F.4th 871 (9th Cir. 2021), vacated and remanded on other 

grounds, 598 U.S. ___, 143 S.Ct. 1191 (2023).

UNITED STATES’ OBJECTIONS

The instruction should not be given because this case does not involve the exercise 

of traditional “editorial control and judgment” functions. See, e.g., Miami Herald Publ’g 

Co. v. Tornillo, 418 U.S. 241, 254-558 (1974) (newspapers cannot be compelled to publish 

editorials or commentary; decisions regarding the inclusion of materials in the newspaper 

and “treatment of public issues and public officials—whether fair or unfair—constitute the 

exercise of [protected] editorial control and judgment”). 

Rather, as this Court has recognized (in reviewing the sufficiency of the SI), 

Defendants’ management and operation of Backpage “fell outside ‘traditional, editorial 

functions’ protected by the First Amendment.” Doc. 793 at 12-15. For example, 

Defendants “participated in [ad] moderation not merely to edit, but to ‘conceal the true 

nature of the ads being posted on its website.’ (SI¶ 11).” Doc. 793 at 12. Defendants’ 

“official policy” for posts advertising child prostitution was to delete particular words in 

the ads indicative of underage prostitution and publish the revised version, thereby creating 

a veneer of deniability and helping its customers evade law enforcement. Doc. 793 at 12. 

Defendants followed similar policies for ads containing words or phrases indicative of 

adult prostitution. Doc. 793 at 12. Backpage also permitted users to include The Erotic 

Review (TER) ID numbers in ads—that is, numbers that Johns could use to locate on-line 

reviews of the advertisers’ sex-for-money services. See Doc. 793 at 12. Moreover, 

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Backpage “taught customers how to word their ads to avoid moderator restrictions,” and 

maintained non-adult sections to provide “plausible deniability” and make the website 

more “defensible” to law enforcement. Doc. 793 at 12-13. As the Court has already ruled, 

Tornillo and its progeny do not apply to these policies and practices. Doc. 793 at 12-15 

(“The SI does not attack protected editorial functions”); see also Doc. 649, Resp. at 26-29. 

This is law of the case. 

Separately, Defendants’ invocation of “[f]ederal law”—namely, Section 230 of the 

Communications Decency Act, 47 U.S.C. § 230—should be precluded in the jury 

instructions. As this Court has already held, Section 230 has no application whatsoever in 

this federal criminal case. Doc. 793 at 13; Doc. 840 at 4-12.

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DEFENDANTS’ PROPOSED INSTRUCTION NO. 20

FIRST AMENDMENT PROTECTION—GOVERNMENT’S BURDEN OF 

PROOF

In cases involving the First Amendment, the government has a heightened burden 

of proof. The government must show that each defendant joined in the alleged criminal 

conspiracy with the intent to further the criminal objective. It is not enough for the 

government to show that a defendant was aligned with criminal business enterprise for the 

purpose of supporting its legal objectives protected under the First Amendment.

Supporting Authorities

Noto v. United States, 367 U.S. 290, 299 (1961) (the element of membership in a 

criminal enterprise “must be judged strictissimi juris, for otherwise there is a danger that 

one in sympathy with the legitimate aims of such an organization, but not specifically 

intending to accomplish them by resort to violence, might be punished for his adherence to 

lawful and constitutionally protected purposes, because of other and unprotected purposes 

which he does not necessarily share”).

UNITED STATES’ OBJECTIONS

This instruction is unnecessary and not supported by the facts or the law. In this 

criminal prosecution, the United States already has the burden of proving Defendants’ guilt 

beyond a reasonable doubt; no higher burden applies. The United States’ substantive 

burdens are adequately covered by instructions on the charged offenses.

Noto v. United States, 367 U.S. 290 (1961), has nothing to do with this case. In 

Noto, the Supreme Court reversed the defendant’s Smith Act conviction for belonging to 

the Communist Party, where the evidence was insufficient to show that his party 

membership involved anything more than abstract teaching or political advocacy. 367 U.S. 

at 298-99. As the SI makes clear, this case does not involve protected abstract advocacy 

at all; rather, it concerns Defendants’ operation of a massive online source of prostitution 

solicitations.

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* * *

The United States’ Proposed Alternative to

Defendants’ Proposed Instructions Nos. 7-20

If, upon the close of the evidence, the Court nevertheless concludes that the record 

warrants any First Amendment instruction, cf. Freeman, 761 F.2d at 551-52, Rowlee, 899 

F.2d at 1280, and White, 610 F.3d at 959, the following instruction should be given instead 

of Defendants’ proposed instructions:

The jury must presume that speech is protected, and the government has the 

burden of proving otherwise. Speech relating to illegal activity is not 

protected. Prostitution is illegal in 49 states and most of Nevada. 

Advertisements or solicitations for prostitution have no protection. 

You may consider any direct or circumstantial evidence in assessing whether 

any ads in this case related to illegal activity.

See Doc. 793 at 14; Central Hudson, 447 U.S. at 563-64 (“commercial speech related to 

illegal activity” is not protected by the First Amendment); Erotic Service Provider, 880 

F.3d 450, amended, 881 F.3d at 792 (“[f]or commercial speech to receive First Amendment 

protection[,] the speech must concern lawful activity”). See also Williams, 553 U.S. at 297 

(“Offers to engage in illegal transactions are categorically excluded from First Amendment 

protection.”); Pittsburgh Press, 413 U.S. at 388 (“a newspaper constitutionally could be 

forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes”); 

Coyote Pub., 598 F.3d at 600-04 (explaining that prostitution is illegal nearly everywhere 

in the United States, and upholding Nevada ban on prostitution advertising); United States’ 

Objections to Defendants’ Proposed Instruction No. 11, Part IV, supra (citing additional 

authorities).

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