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feder law office, p.a.

2930 e. camelback road, suite 160

phoenix, arizona 85016

(602) 257-0135

bf@federlawpa.com

fl@federlawpa.com

Bruce Feder - State Bar No. 004832

Attorney for Defendant Scott Spear

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America, )

)

Plaintiff, )

)

vs. )

)

Scott Spear, )

)

Defendant. )

)

NO. CR18-00422 PHX SMB-003

DEFENDANT SCOTT SPEAR’S

AMENDED MOTION FOR

ISSUANCE OF RULE 17(c)

SUBPOENAS

(EXPEDITED REVIEW REQUESTED)

Defendant, SCOTT SPEAR, by and through his undersigned counsel, hereby

applies pursuant to Federal Rule of Criminal Procedure 17(c) for an order

authorizing the issuance of the attached subpoenas duces tecum (See Exhibit A).

The custodial witnesses are:

1) Clarence, Dyer & Cohen: the attorneys representing government

witness Carl Ferrer;

2) Maxwell Law, P.C.: the attorneys representing government witness

Dan Hyer; and

3) The custodian of records of the National Center for Missing and

Exploited Children (“NCMEC”).

For the reasons set forth below, there is good cause for Defendant Spear to

seek the issuance of the attached subpoenas.

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I. The Discovery Mr. Spear Seeks Is Essential To His Trial Preparation.

For the reasons discussed below, the discovery Mr. Spear seeks is relevant,

admissible, and specific. United States v. Nixon, 418 U.S. 683, 699-700 (1974),

outlined “three hurdles a party seeking a pre-trial subpoena must overcome” to

include (1) relevancy, (2) admissibility, and (3) specificity.” Id. at 700. Where, as

here, a defendant’s subpoena seeks materials from a third party (as opposed to the

government or a party to the litigation), a defendant need only show that the request

is (1) reasonable, construed as “material to the defense,” and (2) not unduly

oppressive for the producing party to respond. See Nixon, 418 U.S. at 700 at n. 12

(considering but not deciding the issue); Bowman Dairy Co. v. United States, 341

U.S. 214 (1951); United States v. Tucker, 279 F.R.D. 58 (S.D.N.Y. 2008); see also

United States v. Nachamie, 91 F. Supp. 2d 552, 563 (S.D.N.Y. 2000); United States

v. Rajaratnam, 753 F. Supp. 2d 317 n.l (S.D.N.Y. 2011); United States v. Stein, 488

F. Supp. 2d 350, 365, 367 (S.D.N.Y. 2007). Because Nixon is satisfied under these

circumstances, the Court need not decide whether a lower standard governs.

The information sought in the requested subpoenas is similar or equivalent to

information requested in the Defendants' Motion To Compel Production Of Brady

Material (DKT. 777) filed 10/18/2019. The government's Response (DKT. 810) was

filed 11/27/2019, and the defendants' Reply (DKT. 825) was filed 12/23/2019. The

Court has not ruled on this motion. In this discovery motion, the defense requested

plea negotiation and other communications between the government and/or state

prosecutors and Mr. Ferrer, Mr. Hyer, and their respective attorneys. The defendants

cited United States v. Sudikoff, 36 F.Supp.2d 1196 (C.D. Cal. 1999) as well as other

applicable caselaw. The Government's response appears to be they have no

correspondence with Ferrer, Hyer or their lawyers, don't possess any information

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from state prosecutors relevant to the requests and have no obligation to seek such

information. As to the request seeking information about communications between

the government and NCMEC, the government's response appears to be that NCMEC

is not a governmental entity and it therefore has no responsibility to obtain such

information. The government also suggested that the information requested could be

obtained by use of a 17C subpoena.

A. CARL FERRER.

As the Court is aware, Mr. Ferrer is the government's primary

cooperating witness. He is the former CEO of Backpage, who has pleaded guilty,

agreed to waive certain privileges, agreed to certain forfeitures and sat for numerous

interviews with the government. Although the government has produced

memoranda memorializing those interviews after April 5, 2018, it has not produced

any of its communications with Ferrer’s attorneys, or any communications that took

place outside of those formal interview settings (which were conducted before the

April 2018 indictment was returned and before Ferrer signed his plea agreement in

which he promised to be a state and federal government cooperator). Mr. Spear

specifically seeks to obtain communications between Ferrer and Ferrer’s attorneys

with any state or federal prosecutors or law enforcement agents. The government

carefully denies there were any direct proffers from Mr. Ferrer’s lawyers or

communications with him before April 5, 2018 (See 18 U.S.C. 3500), but

defendant’s subpoena is not so narrow.

In prior proceedings before this Court, the government asserted there

were no direct discussions with Mr. Ferrer prior to the filing of the initial indictment

in April 2018 (See pages 47-49 of Transcript of Status Hearing held on 4/23/19

attached hereto as Exhibit B). The government also denies it received any proffers

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from Mr. Ferrer’s attorneys prior to his plea, privilege waivers and forfeiture

agreements. In two separate letters, the government states, “As noted, the United

States did not meet with Mr. Ferrer, or receive a proffer of information from Mr.

Ferrer’s counsel, until April 5, 2018” (See Letter from AUSA Rapp dated May 14,

2018 attached hereto as Exhibit C, at 2) and “In short, neither Ferrer nor Hyer met

with or provided any information to the government prior to the first indictment.”

(Id. at 7).

Despite the government’s contentions, just before the April 2018

indictment was served, Ferrer entered into plea agreements in this case and in other

state cases, and also signed various comprehensive forfeiture and privilege waiver

agreements. Defendants are entitled to test the government’s implausible

assertions. Based on common sense and all involved defense counsel’s lengthy

experience as former prosecutors and as criminal defense lawyers practicing in this

district and throughout the United States, the government would not have had the

information necessary to evaluate Mr. Ferrer as a cooperator, nor the ability to

prepare the appropriate plea, privilege waiver, forfeiture pleadings and other

documents, without substantial communications between state and federal

government prosecutors, the lawyers for Mr. Ferrer and Mr. Ferrer, himself. If the

government did not talk directly to Ferrer prior to the formal interviews

memorialized in the produced memoranda, then it must have received this

information directly or indirectly from Ferrer’s attorneys and/or the involved state

prosecutors or agents. Such communications, including any written or verbal

proffers and notes of such proffers, any promises demanded by the defense and/or

offered by the government, any correspondence surrounding the negotiation of the

various agreements between Ferrer and the government agencies, etc., are not

privileged, and are required for production as both Jencks and Brady materials.

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(See U.S. v. Sudikoff, 36 F. Supp 2d 1196 (C.D. Cal. 1999). The materials would

be admissible directly as admissions and declarations against interest and may

disclose additional witnesses, exhibits and other evidence material to the defense for

trial or trial preparation.

Also, Mr. Spear seeks any written or digital notes, commentary, or other

statements made by Mr. Ferrer or his attorneys regarding plea negotiations,

including anything that might indicate Mr. Ferrer’s disagreement with government

assertions and accusations, including his refusal or other objections to agree to what

prosecutors or agents were attempting to have him discuss or allege. Notably, the

type of information that Mr. Spear is requesting here is the very type of information

that has been belatedly disclosed by the government and is the subject of sanction

motions in the “Varsity Blues” cases (See United States v. Sidoo, et. al., Case No.

19-10080-NMG, D. Mass (Apr. 17 2020) at Doc. No. 1085, attached hereto as

Exhibit D). Such notes, commentary or other statements would also constitute

Jencks and Brady materials.

B. DAN HYER.

Mr. Spear also seeks, and is entitled to, the same type of information

regarding another government cooperating witness, Dan Hyer. Although the

defense does not have information that Mr. Hyer or his counsel engaged in similar

conduct as Mr. Ferrer or his counsel prior to the return of the indictment, Mr. Spear

is nevertheless entitled to evidence of the negotiations of the plea agreements and

forfeiture entered into by Mr. Hyer , including any defense proffers by his attorneys,

any refusal to agree to facts alleged by the government, etc.

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C. THE NATIONAL CENTER FOR MISSING AND EXPLOITED

CHILDREN (NCMEC)

The government has noticed as witnesses Ernie Allen, John Shehan and

possibly others who are present or former leaders and employees of NCMEC.

Various emails, and other digital or written communications or statements from/to

Mr. Allen and Mr. Shehan discussing the defendants and Backpage (including

emails in which Allen and Shehan discussed Backpage and its compliance with

NCMEC’s recommendations) have either been disclosed by the government, or

discovered by the defense. The government’s disclosures, however, are

incomplete, and the defense needs the entirety of such communications and

statements to prepare for trial. Such information also should have already been

disclosed as Jencks and Brady materials, but has not.

Additionally, NCMEC engaged in communications with the United States

Department of Justice (“DOJ”) over the course of several years, in which it

encouraged the prosecution of Backpage and its principals and employees., These

efforts were ultimately successful in attaining the objective of prosecution. Indeed,

a DOJ spokesman made an announcement to this effect on December 13, 2019 (See

video footage on disc at 1:18:05-1:21, attached hereto as Exhibit E), but the

government has not produced any of the communications related to these discussions

and efforts. Mr. Spear is entitled to these communications as part of his preparation

for the trial of this matter.

II. CONCLUSION.

For the foregoing reasons, Mr. Spear requests that the Court authorize the

issuance of the attached subpoenas.

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RESPECTFULLY SUBMITTED this 12th day of June 2020.

FEDER LAW OFFICE, P.A.

BY: /s/ Bruce Feder

Bruce Feder, Esq.

Attorney for Defendant Scott Spear

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CERTIFICATE OF SERVICE

I hereby certify that on the 12th day of June, 2020, I electronically transmitted

Defendant Scott Spear’s Motion for Issuance of Subpoenas to the Clerk of the Court

via the CM/ECF system for filing.

COPY of the foregoing emailed

this 12th day of June, 2020 to:

The Honorable Susan M. Brnovich

Brnovich_Chambers@azd.uscourts.gov

Erin E. McCampbell, emccampbell@lglaw.com

Ariel A. Neuman, aan@birdmarella.com

Paul J. Cambria, pcambria@lglaw.com

Thomas H. Bienert, Jr. tbienert@bienertkatzman.com

Whitney Z. Bernstein, wbernstein@bienertkatzman.com

Gary S. Lincenberg, glincenberg@birdmarella.com

Gopi K. Panchapakesan, gpanchapakesan@birdmarella.com

Michael D. Kimerer, mdk@kimerer.com

Rhonda Elaine Neff, rneff@kimerer.com

David S. Eisenberg, david@deisenbergplc.com

Joy Malby Bertrand, Joy.Bertrand@gmail.com

Attorneys for Defendants

Kevin Rapp Kevin.Rapp@usdoj.gov

Andrew Stone Andrew.Stone@usdoj.gov

Margaret Perlmeter Margaret.Perlmeter@usdoj.gov

John Kucera John.Kucera@usdoj.gov

Reginald T. Jones reginald.jones4@usdoj.gov

Peter Kozinets Peter.Kozinets@usdoj.gov

Attorneys for United States of America

By: /s/ Mali Evans

Case 2:18-cr-00422-DJH Document 1019 Filed 06/12/20 Page 8 of 8