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3742485.1

DEFENDANTS’ JOINT RESPONSE TO GOVERNMENT’S SUBMISSION OF TRIAL DOCUMENTS

Thomas H. Bienert, Jr. (admitted pro hac vice) tbienert@bmkattorneys.com

Whitney Z. Bernstein (admitted pro hac vice) wbernstein@bmkattorneys.com

BIENERT KATZMAN LITTRELL WILLIAMS LLP

903 Calle Amanecer, Suite 350

San Clemente, CA 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

Attorneys for Defendant James Larkin

Paul J. Cambria, Jr. (admitted pro hac vice) pcambria@lglaw.com

Erin McCampbell (admitted pro hac vice) emccampbell@lglaw.com

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

Attorneys for Defendant Michael Lacey

[Additional counsel listed on next page]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Michael Lacey, et al.,

Defendants.

CASE NO. 2:18-cr-00422-PHX-SMB

DEFENDANTS’ JOINT RESPONSE 

TO GOVERNMENT’S NOTICE OF 

SUBMISSION OF PROPOSED 

STATEMENT OF THE CASE, 

VERDICT FORM, AND JURY 

INSTRUCTIONS

Assigned to Hon. Susan M. Brnovich, Courtroom 506

Trial Date: September 1, 2021

Case 2:18-cr-00422-DJH Document 1222 Filed 08/18/21 Page 1 of 8
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3742485.1 2

DEFENDANTS’ JOINT RESPONSE TO GOVERNMENT’S SUBMISSION OF TRIAL DOCUMENTS

Gary S. Lincenberg (admitted pro hac vice) glincenberg@birdmarella.com

Ariel A. Neuman (admitted pro hac vice) aneuman@birdmarella.com

Gopi K. Panchapakesan (admitted pro hac vice) gpanchapakesan@birdmarella.com

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW, P.C.

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: (310) 201-2100

Facsimile: (310) 201-2110

Attorneys for Defendant John Brunst

Bruce Feder (AZ Bar No. 004832)

 bf@federlawpa.com

FEDER LAW OFFICE, P.A.

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

Telephone: (602) 257-0135 

Attorney for Defendant Scott Spear

David Eisenberg (AZ Bar No. 017218)

 david@deisenbergplc.com

DAVID EISENBERG PLC

3550 N. Central Ave., Suite 1155

Phoenix, Arizona 85012

Telephone: (602) 237-5076

Facsimile: (602) 314-6273

Attorney for Defendant Andrew Padilla

Joy Malby Bertrand (AZ Bar No. 024181)

 joy.bertrand@gmail.com

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

Telephone: (602)374-5321

Facsimile: (480)361-4694

Attorney for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 1222 Filed 08/18/21 Page 2 of 8
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3742485.1 3

DEFENDANTS’ JOINT RESPONSE TO GOVERNMENT’S SUBMISSION OF TRIAL DOCUMENTS

In advance of the August 20, 2021 Status Conference, Defendants Michael Lacey, 

James Larkin, John Brunst, Scott Spear, Andrew Padilla, and Joye Vaught (“Defendants”) 

hereby respond to the Government’s Notice of Submission of Proposed Statement of the 

Case, Verdict Form, and Jury Instructions. Dkt. 1216. 

The government’s filing is misleading in suggesting it provided ample notice of the 

information provided. In short, after having agreed to a schedule whereby (1) Defendants 

would provide comments to the government’s proposed trial documents by June 15, 2021, 

(2) the parties would meet and confer thereafter, and (3) the parties would submit (to the 

extent possible) joint trial documents by July 26, 2021, the government altogether failed to 

uphold its end of the bargain. See Dkt. 1199 at 1-2. Not once did the government offer to 

meet and confer with Defendants or propose changes to their original trial documents. 

Consequently, the defense was forced to file on August 5, 2021 the same versions of 

Defendants’ trial documents that were shared with the government on June 15, 2021. 

Dkt. 1199. 

Indeed, on July 28, 2021, over a month after the defense provided the government 

with its proposed instructions, the government represented that it was “responding to your 

16 case specific instructions” and “revisiting some of [the government’s] original 

instructions,” claiming that “it’s a time-consuming task” given that Defendants’ proposed 

instructions were sent to the government “two months before trial” during its “busiest trial 

preparation period.” Dkt. 1199, Exh. E. Apparently unaware that Defendants also are 

preparing for trial, and having ignored the agreed-upon schedule and meet-and-confer 

procedure, the government filed on August 13, 2021, proposed jury instructions that are 

materially different from the previous ones they provided to the defense, but did not even 

attempt to apprise the Court or Defendants as to what those changes are. Defendants 

were required to review line-by-line over 200 pages of dense legal instructions to search 

for and identify the changes. Among the significant changes, for the first time in this case, 

the government identifies the underlying state laws it now claims correspond to each of the 

indictment’s Travel Act counts (Dkt. 1216-3 at 90-99). This recent addition interjects into 

Case 2:18-cr-00422-DJH Document 1222 Filed 08/18/21 Page 3 of 8
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3742485.1 4

DEFENDANTS’ JOINT RESPONSE TO GOVERNMENT’S SUBMISSION OF TRIAL DOCUMENTS

the case for the first time the substantive “prostitution” laws of 15 different states. 

Defendants cannot adequately evaluate and research the body of law on this topic in one 

week (the time between the government’s submission of these instructions and the hearing 

set by the Court). 

Also buried in the government’s proposed jury instructions are six new instructions 

that the government has never proposed to the defense, and that were disclosed for the first 

time in the government’s August 13, 2021 submission. Dkt. 1216-3 at 146-151. Attached 

as Exhibit A are Defendants’ objections to these six new “Non-Model Instructions 

Requested by the United States.” In short, as to the Travel Act counts, the new proposed 

instructions are an attempt on the part of the government to impermissibly (1) circumvent 

the plain elements of the Travel Act, namely its “business enterprise” requirement1 and 

(2) convert what is plainly a “specific intent” crime into a “general intent” crime.

Further, the government, for the first time in its August 13, 2021 submission, 

provided the Defendants with its response to Defendants’ proposed instructions concerning 

the First Amendment. Dkt. 1216-3 at 159-201. Defendants vigorously dispute the 

government’s characterization of the law on the First Amendment and its applicability to 

the charges here. Attached as Exhibit B is a set of supplemental authorities in response to 

the government’s submission as to Defendants’ proposed First Amendment instructions.

With respect to the government’s proposed statement of the case, the document 

should more accurately be entitled “government’s proposed opening statement,” as the 

proposed statement is nothing but an argumentative recitation of what the government 

intends to prove. Dkt. 1216-1. Having already agreed that “they have no intention of 

 1 The government proposes the following instruction that obviously is contrary to law: 

“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.” See Exh. A. In lieu of actually proving a business 

enterprise tied to each Travel Act count, the government instead would have the jury 

presume that an advertisement, in and of itself, establishes the existence of a business 

enterprise.

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3742485.1 5

DEFENDANTS’ JOINT RESPONSE TO GOVERNMENT’S SUBMISSION OF TRIAL DOCUMENTS

providing the Superseding Indictment to the jury or reading it to the jury” (Dkt. 842), the 

government cannot now use a purported “statement of the case” to summarize the 

indictment for the jury. The proposed statement is also rife with blatantly improper 

conclusions that have no place in a court of law and should be precluded. The first 

paragraph alone is filled with improper assertions, such as the claim that Backpage “was 

well known for being the internet’s leading source of prostitution”; the government cannot 

prove its case by reputation or conjecture, but must prove its claims by competent 

percipient evidence of the purported acts of prostitution. Similarly, the government cannot 

assert conclusions like “Backpage derived the overwhelming majority of its revenue from 

[prostitution] ads” and Backpage “earn[ed] over $500 million in prostitution-related 

revenue” without presenting competent, percipient evidence of “the overwhelming 

majority” of the ads and tracing of revenue to actual prostitution. The suggested statement 

contains many other improper conclusions. Government discovery and pleadings in this 

case strongly suggest that the government does not intend to present proper, admissible 

proof of these things, but improperly intends to put on witnesses who will simply make 

such conclusory assertions without actual percipient evidence to support them, which is 

improper. 

If the Court were to read to the jury—and in effect endorse—a statement

summarizing the government’s allegations before the trial even starts, the prejudice 

inflicted upon the defense would be irremediable. The juror questionnaire provided to 

potential jurors already summarized the case2

—there is no need for the Court to provide 

 2 The introduction to the JQ reads: “Six individuals (Michael Lacey, James Larkin, Scott 

Spear, John “Jed” Brunst, Andrew Padilla, and Joye Vaught) (“Defendants”) have been 

charged in a superseding indictment with: (1) conspiracy to commit violations of the 

Travel Act by facilitating prostitution; (2) violations of the Travel Act; (3) conspiracy to 

commit money laundering; (4) concealment money laundering; (5) international 

promotional money laundering; (6) transactional money laundering; and (7) international 

concealment money laundering. The charges arise from the Defendants’ various roles in 

the creation, operation, and management of the website Backpage.com. Defendants have 

each pleaded not guilty to all charges and are presumed innocent. The United States has 

the burden of proving an individual guilty beyond a reasonable doubt.”

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3742485.1 6

DEFENDANTS’ JOINT RESPONSE TO GOVERNMENT’S SUBMISSION OF TRIAL DOCUMENTS

additional statements from the parties. That is why the defense did not submit its own 

competing, self-serving statement, instead opting to edit the government’s statement so 

that it is neutral in tone. Dkt. 1199, Exhs. A, B. 

Lastly, as to the proposed verdict form, in light of (1) the government’s recent 

disclosure of the numerous underlying state laws tied to each of the fifty Travel Act counts

and (2) the government’s attempt to avoid having to prove actual business enterprises 

allegedly involved in prostitution offenses in violation of state laws, Defendants propose 

a revised verdict form that includes necessary questions regarding (a) the existence of 

a business enterprise, (b) whether that enterprise was involved in prostitution offenses in 

violation of the specified state laws, and (c) whether each defendant intended to facilitate 

those business enterprises. See Exhibit C. These additional questions are necessary to 

avoid the manifest risk that the jury convicts a defendant as to a given Travel Act count 

merely on the basis that the government claims an advertisement concerned prostitution, 

without proof that the ad in fact pertained to prostitution and without the jury finding 

a corresponding business enterprise involved in prostitution in violation of the specified 

state laws, that a defendant knew of the business enterprise, that a defendant knew of the 

ad or that it pertained to prostitution, or that a defendant intended to facilitate the unlawful 

activities of the business enterprise. See United States v. Jones, 909 F.2d 533, 539 (D.C. 

Cir. 1990) (“Thus, the court would first decide whether the business activity that the 

defendant is charged with intending to promote is in fact prohibited by the relevant State’s 

law. If so, then the court would instruct the jury that it must find that the defendant 

specifically intended to promote (et cetera) each feature of the activity that is necessary to 

make it unlawful under that law.”).

Pursuant to the District’s Electronic Case Filing Administrative Policies and

Procedures Manual (October 2020) § II (C) (3), Gary S. Lincenberg hereby attests that all

Case 2:18-cr-00422-DJH Document 1222 Filed 08/18/21 Page 6 of 8
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3742485.1 7

DEFENDANTS’ JOINT RESPONSE TO GOVERNMENT’S SUBMISSION OF TRIAL DOCUMENTS

other signatories listed, and on whose behalf this filing is submitted, concur in the filing’s 

content and have authorized its filing. 

DATED: August 18, 2021 Respectfully submitted, 

Thomas H. Bienert Jr. 

Whitney Z. Bernstein 

Bienert Katzman Littrell Williams LLP 

By: /s/ Thomas H. Bienert, Jr.

Thomas H. Bienert Jr.

Attorneys for Defendant James Larkin

DATED: August 18, 2021 Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

Bird, Marella, Boxer, Wolpert, Nessim,

Drooks, Lincenberg & Rhow, P.C.

By: /s/ Gary S. Lincenberg

Gary S. Lincenberg

Attorneys for Defendant John Brunst

DATED: August 18, 2021 Paul J. Cambria

Erin McCampbell

Lipsitz Green Scime Cambria LLP

By: /s/ Paul J. Cambria

Paul J. Cambria

Attorneys for Defendant Michael Lacey

DATED: August 18, 2021 Feder Law Office, P.A.

By: /s/ Bruce S. Feder

Bruce S. Feder

Attorney for Defendant Scott Spear

Case 2:18-cr-00422-DJH Document 1222 Filed 08/18/21 Page 7 of 8
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3742485.1 8

DEFENDANTS’ JOINT RESPONSE TO GOVERNMENT’S SUBMISSION OF TRIAL DOCUMENTS

DATED: August 18, 2021 The Law Office of David Eisenberg, PLC

By: /s/ David Eisenberg

David Eisenberg

Attorney for Defendant Andrew Padilla

DATED: August 18, 2021 Joy Bertrand Esq. LLC

By: /s/ Joy Malby Bertrand

Joy Malby Bertrand 

Attorney for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 1222 Filed 08/18/21 Page 8 of 8