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3895279.4

BRUNST MOTION TO SEEK ADMISSION RE: STATE OF MIND TESTIMONY

rafficGary 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)

 gkp@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

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Michael Lacey, et al.,

Defendants.

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

DEFENDANT JOHN BRUNST’S 

MOTION TO SEEK ADMISSION OF 

BRUNST’S TESTIMONY RE: STATE 

OF MIND

Case 2:18-cr-00422-DJH Document 1879 Filed 10/20/23 Page 1 of 15
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3895279.4 2

BRUNST MOTION TO SEEK ADMISSION RE: STATE OF MIND TESTIMONY

Defendant John Brunst respectfully seeks Court approval to testify as to his state of 

mind during the defense case. Mr. Brunst files this motion because the anticipated 

testimony would violate prior Court Orders. If the Court intends to preclude such 

testimony, Mr. Brunst likely would not testify at trial. 

I. PROFFERED TESTIMONY

Counsel proffers that Mr. Brunst likely would testify, among other things, to the 

following: 

• Mr. Brunst rarely met with counsel who advised Backpage on the lawfulness of 

Backpage’s adult advertising and rarely met with counsel who had handled 

litigation relating to the adult advertising. 

• Nevertheless, Mr. Brunst learned about such counsel’s advice and litigation 

positions. This sometimes came orally or in writing from Mr. Larkin. On 

occasion, Mr. Brunst heard it from attorneys Don Moon, Liz McDougall, and

Steve Suskin. On occasion, Mr. Brunst saw a written legal memorandum. For 

example, Mr. Brunst saw a legal memorandum prepared by attorney Mark 

Sableman (a partner at Thompson Coburn) in late 2010 regarding protections 

afforded to Backpage under the First Amendment and the Communications 

Decency Act. Advice like this—that Backpage’s adult ad section was protected 

by both the First Amendment and the Communications Decency Act—was the 

subject of Mr. Ferrer’s interviews with Government counsel during his pre-trial 

interviews (see, e.g., 04/05/18 MOI at ¶¶ 67, 88; 04/17/18 MOI at ¶¶ 142, 145). 

Mr. Brunst’s testimony on this subject is relevant for several reasons: (i) it 

shows that the banks have long been aware of and communicating about 

Backpage’s adult ads; (ii) the attorney advice and statements from Mr. Larkin

gave Mr. Brunst a good faith belief that the business was operating lawfully; 

(iii) Bank of Montreal’s (“BMO”) continued banking with the company 

throughout the relevant time period gave Mr. Brunst comfort that BMO was 

satisfied that the business was operating lawfully; and (iv) it counters any 

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3895279.4 3

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suggestion by the Government that Mr. Brunst was hiding things about 

Backpage’s adult ads from banks.

• While Mr. Brunst was not involved in the litigation and government 

investigations involving Backpage’s adult section, he generally monitored these 

issues. While he played almost no role in the litigation, as the CFO, he tracked 

litigation because: (i) he was aware of the legal expenses of attorneys

representing Backpage; (ii) the auditors sought representation letters from 

counsel as to risks posed by litigation; and (iii) legal complaints and adverse 

decisions (the legal decisions as to Backpage were generally all favorable) could 

impact the valuation of the company, the willingness of investors to invest and 

banks to lend, and other financial issues. Mr. Brunst relied on favorable court 

decisions, in particular the McKenna and Dart decisions (but also other 

Backpage and Craigslist decisions), in believing that he could continue to serve 

in good faith as CFO of the holding company and perform any parent-level 

duties related to Backpage. Indeed, if Judge Posner had delivered the opposite 

opinion in 2015—and determined that Sheriff Dart was justified in his actions 

because Backpage was operating unlawfully—Mr. Brunst would not have 

continued to do business with Backpage. Indeed, the majority of the Travel Act 

and money laundering counts charged against Mr. Brunst occurred during and 

after the Dart litigation. 

• Though Mr. Brunst never dealt with state Attorneys General, District Attorneys, 

and local law enforcement, he was generally aware that some state law 

enforcement attacked Backpage. He was also aware that none ever succeeded in 

their legal threats or actions, which gave him further comfort that the company’s 

compliance efforts and legal advice were sound.

• Mr. Brunst was contemporaneously aware of the federal grand jury investigation 

in the District of Washington. Again, while he was not involved in dealing with 

litigation counsel or legal strategy, he monitored it from the perspective of the 

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CFO. He learned that the Washington United States Attorney declined to seek 

an indictment and that there was no legal basis to do so. This further validated 

Mr. Brunst’s belief that Backpage was operating lawfully.

• Mr. Brunst contemporaneously became aware of the California criminal charges 

against Ferrer, Larkin, and Lacey in 2016-17. Again, that a California judge 

granted a motion to dismiss these charges gave Mr. Brunst further comfort that 

Backpage was operating in compliance with the law. 

• Mr. Brunst was not involved with Backpage’s ad moderation compliance 

function. But Mr. Brunst was comforted by the fact that Backpage employed

a former sex crimes prosecutor (Hemu Nigam) and later hired Craigslist’s 

outside counsel (Liz McDougall) to oversee this compliance function. Neither 

Mr. Nigam nor Ms. McDougall ever advised Mr. Brunst of criticisms of the 

compliance function.

• Don Moon is a former county attorney for La Paz County, Arizona, and a highly 

successful attorney in Arizona with a First Amendment background. Mr. Moon 

served on the Board of Directors of the holding company (Village Voice Media 

Holdings [VVMH]). He played a large role in advising the company on legal 

issues and working with outside counsel. As set forth in Ferrer’s interview 

memoranda, he frequently advised the company that Backpage’s operations 

were protected by the First Amendment. Mr. Brunst did not have a lot of direct 

interaction with Mr. Moon, but was familiar with Mr. Moon’s advice on the 

First Amendment (sometimes presented by Moon to banking partners) and on 

other occasions learned the same through Mr. Larkin.

• The Government polluted the jurors’ minds with evidence that even the United 

States Senate investigated Backpage. The Court has precluded the defense from 

pointing out that a central reason for the Senate hearings was to try to pass new 

legislation targeted at Backpage’s publication of adult advertising (because no 

then-existing federal law provided a basis for criminal liability). That certain

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members of Congress and congressional witnesses were complaining that 

current laws did not reach Backpage gave Mr. Brunst more comfort that the 

business was operating lawfully under the laws at that time. On March 21, 

2018, Congress passed a new law based on two bills, FOSTA (Allow States and 

Victims to Fight Online Sex Trafficking Act) and SESTA (The Stop Enabling 

Sex Traffickers Act). The new law, which targeted Backpage.com, expanded 

federal criminal liability for facilitating sex trafficking and also purported to 

eliminate Section 230 as a defense for companies like Backpage. Though the 

Court cut off counsel’s cross-examination of Ferrer as to this part of his 

motivation to cut a deal, the passage of this law clearly was one of Ferrer’s 

motives for pleading guilty and shutting down the business. He knew it would 

at least be more difficult, if not impossible, to continue to operate Backpage 

once the new law took effect later in 2018. 

• Mr. Brunst dealt regularly with the holding company’s financial auditors,

Deloitte and BDO. As part of their duties, the auditors assessed contingent 

liabilities, including any legal exposure facing the company (both civil and 

criminal) and whether any such legal exposure could call into question the 

company’s ability to continue as a going concern. Mr. Brunst advised the 

auditors of the names and contact information of litigation counsel so that the 

auditors could address any legal questions directly to counsel. Auditors do 

extensive due diligence. No auditor ever told Mr. Brunst that they believed 

Backpage was unlawfully facilitating prostitution or engaging in money 

laundering. No auditor ever refused to take payment from funds generated by 

Backpage. And when Deloitte withdrew from further work for Backpage, 

Mr. Brunst was advised that it did so for reputational reasons. 

• Mr. Brunst was aware that Ferrer repeatedly gave declarations and testified 

under oath in defense of attacks on Backpage’s adult section. At no time did 

Ferrer tell Mr. Brunst that Ferrer testified falsely. Ferrer expressed a confidence 

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BRUNST MOTION TO SEEK ADMISSION RE: STATE OF MIND TESTIMONY

in the righteousness of Backpage’s legal position. This gave Mr. Brunst comfort 

that Backpage was operating lawfully and addressing legal issues how they 

should be addressed—in the courts.

• Mr. Brunst had periodic meetings, calls, and emails with various bank 

representatives, including representatives of BMO and US Bank, that were 

referenced in Ferrer’s testimony. Mr. Brunst was at all times transparent with 

them, answering their questions about Backpage’s adult section, and connecting 

them to others at the company, including Ferrer and attorneys, where others 

were in a better position to answer their questions. 

• In response to an inquiry, Brunst forwarded the Mark Sableman legal memo to 

the BMO in 2010. See Exhs. 5507 and 5508. The Court sustained the 

Government’s objection to admission of the exhibits. 

• He also forwarded the response from VVMH CEO Larkin (Exhibit 616) to 

BMO. (The Court allowed the prosecution to redact this out and instead 

introduce Exhibit 616a, thereby precluding the jurors from hearing that 

Mr. Larkin was representing that the website was “clearly lawful.”) Mr. Brunst 

would testify that Mr. Larkin’s email was consistent with what Mr. Larkin told 

him on multiple occasions. Over the years, Mr. Larkin made similar reassuring 

statements in the context of litigation, attacks by Attorney Generals, grand jury 

investigations, and the advice that Larkin received from counsel. Mr. Larkin 

told Mr. Brunst to focus on his work—”stay in your swim lane”—and let the 

lawyers, Board of Directors, and Larkin address the legal challenges.

Based on the Court’s rulings to date, it appears that most, if not all, of this testimony 

would be precluded. 

Yet, at the same time, the Court has allowed the government to introduce ad nauseum 

the irrelevant and highly inflammatory opinions of religious institutions and other NGOs,

a New York Times editorialist, and Hollywood celebrities, among others, regarding their 

views on Backpage, including that the site be shut down. None of this evidence was 

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3895279.4 7

BRUNST MOTION TO SEEK ADMISSION RE: STATE OF MIND TESTIMONY

tethered to any specific advertisement, defendant, or prostitution business enterprise. Most 

of this purported “notice” evidence never even came to Mr. Brunst’s attention. Nor would 

any rational CFO of a business base his or her actions on the uninformed lay opinions of 

individuals and organizations that have agendas adverse to the business. Instead, what

a rational CFO would do is look to what federal courts and attorneys with First 

Amendment expertise were saying about the legality of Backpage’s operations.

Indeed, we proffer that Dennis Chookaszian,1 Brunst’s expert on the role of a CFO, 

would testify regarding the “functions” a CFO performs “in a corporate setting, including 

what is and is not required of a CFO in assessing allegations that a company or one of its 

subsidiaries has engaged in unlawful conduct.” Dkt. 500 at 4; Dkt. 1081 at 19 (“The Court 

agrees this testimony is relevant and useful specifically as to Defendant Brunst for the jury 

to understand his role in the overall corporate structure. The testimony of Mr. Weil will be 

limited to describing what a CFO does, his role and obligations, but Mr. Weil will be 

precluded from providing testimony about what Mr. Brunst may have done in the context 

of this case or anything about his state of mind.”). In other words, Mr. Chookaszian 

intends to lay out for the jury—without getting into the specifics of what Brunst may or 

may not have done in this case—the ways in which a CFO gains comfort with the legality 

of a business, including with respect to challenged industries like an online platform for 

adult content. Unsurprisingly, Chookaszian would testify that a CFO is better served by

relying on rulings from federal judges and attorney advice than the musings of editorialists, 

media companies, and religious institutions and other NGOs. 

But if Brunst cannot testify to his good faith reliance on statements from attorneys and 

court opinions, then he will not testify in his own defense. Nor would he put on testimony 

1 Mr. Chookaszian is a professor at the University of Chicago’s Booth School of 

Business. He is the former chairman of the Financial Accounting Standards Advisory 

Council, former chairman and CEO of CNA Insurance Companies, and regularly teaches 

courses in corporate governance and the role of the CFO. Earlier this year, after the 

passing of Brunst’s originally designated expert, Roman Weil, Brunst informed the 

Government that Mr. Chookaszian would be serving as Brunst’s expert.

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3895279.4 8

BRUNST MOTION TO SEEK ADMISSION RE: STATE OF MIND TESTIMONY

from Mr. Chookaszian, if neither Brunst nor his expert can speak to the fact that the role of

a CFO involves the very things that Brunst did relative to litigation, court opinions, and 

attorney advice concerning Backpage. Brunst therefore moves the Court to permit him to 

testify to this proffered testimony. 

II. ARGUMENT

A. Brunst’s Reliance on Court Opinions Played a Central Role in His State 

of Mind.

1. Backpage v. Dart

Mr. Brunst relied on the decision in Backpage.com, LLC v. Dart, 807 F.3d 229, 230 

(7th Cir. 2015). From the filing of the indictment and through the trial of this case, the 

Government has put at issue the actions of the major credit card companies, the effect 

those actions had on Backpage and Defendants, and Backpage’s response. This has been

a focal point of the Government’s case against Brunst. At least 71 of the Government’s 98 

substantive counts in the indictment took place after the Dart letters were sent out, and the 

Dart litigation commenced in July 2015. 

While the Government seeks to use the credit card cancellations as “notice” to 

Brunst that ads on Backpage were illegal, the Seventh Circuit Court of Appeals’ decision

in Dart provided Mr. Brunst with notice to the contrary. As the Court knows, following 

threatening letters sent by Sheriff Tom Dart to Visa and MasterCard, within days, those 

credit card companies ceased doing business with Backpage. Backpage sued Dart and 

ultimately secured an injunction before the Seventh Circuit. More than any other event 

from 2004 to 2018, Brunst relied on the Dart opinion in guiding his actions going forward.

In Dart, the Seventh Circuit held the following:

• “The Sheriff of Cook County, Tom Dart, has embarked on a campaign 

intended to crush Backpage’s adult section – crush Backpage, period, it seems

– by demanding that firms such as Visa and MasterCard prohibit the use of their 

credit cards to purchase any ads on Backpage, since the ads might be for illegal 

sex-related products or services, such as prostitution. Visa and MasterCard 

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bowed to pressure from Sheriff Dart and others by refusing to process 

transactions in which their credit cards are used to purchase any ads on 

Backpage, even those that advertise indisputably legal activities.” Id. at 230

(emphasis added).

• “[W]hile [Dart] has a First Amendment right to express his views about 

Backpage, a public official who tries to shut down an avenue of expression of 

ideas and opinions through ‘actual or threatened imposition of government 

power or sanction’ is violating the First Amendment.” Id. (quoting American

Family Association, Inc. v. City & County of San Francisco, 277 F.3d 1114, 

1125 (9th Cir.2002)) (emphasis added).

• The Court extensively detailed the threatening nature of the Dart letter, 

observing that “[u]pon receipt of the letter MasterCard forthwith stopped

allowing its credit cards to be used to purchase ads anywhere on Backpage’s

website. Visa followed suit. So the threats had worked. And so just two days 

after Dart’s letter was sent, the Cook County Sheriff’s Office was able to (and 

did) issue a triumphant press release captioned ‘Sheriff Dart’s Demand to 

Defund Sex Trafficking Compels Visa and MasterCard to Sever Ties with 

Backpage.com.’ Notice ‘demand,’ not request; notice ‘compels,’ not persuades; 

notice ‘sever ties,’ not ‘refuse to make payments for ads in the adult section of 

the Backpage website.’” Id. at 229 (emphasis added).

• The Court rejected and openly mocked a declaration submitted by Martin Elliot, 

an executive of Visa, who claimed that “at no point did Visa perceive Sheriff 

Dart to be threatening Visa.” Id. at 233 (“But what would one expect an 

executive of Visa to say? ‘I am afraid of the guy?’ ‘He is in effect calling me 

an accomplice of a criminal organization (Backpage), and I’m afraid he might 

pull strings to get me investigated and even prosecuted by any one of several 

federal or state agencies?’”). Indeed, Judge Posner observed that Visa 

employees dealing with Dart acknowledged that the “subtle messages [Dart’s

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office has] been sending us . . . could easily be taken for blackmail.” Id. 

(emphasis added).

Each of these portions of the Dart opinion—relied on by Brunst—directly counters

any purported “notice” the Government asks the jury to infer from the credit card 

terminations.

Critically, in holding that Dart had violated Backpage’s First Amendment rights, the 

Court found:

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. There is no

estimate of how many ads in Backpage’s adult section promote illegal

activity; we just gave examples of some that do not.

Id. at 234 (emphasis added).

This portion of the Dart opinion directly contradicts Ferrer’s trial testimony and 

undermines the Government’s central claim: that escort ads are synonymous with illegal 

prostitution ads. Ultimately, the Seventh Circuit enjoined Dart from further interfering 

with Backpage’s relationships with financial institutions. Id. at 239. Brunst relied on this 

opinion written by one of the most respected (conservative) jurists of our time and formed 

an impression that: (1) the major credit card companies terminated their relationships with 

Backpage in response to illegal and unconstitutional threats from law enforcement;

(2) Backpage’s First Amendment rights were violated by Dart; and (3) even if a majority 

of the ads on Backpage are for sex—as the government alleges here—that does not mean 

those ads were for illegal sex. 

The Government has thrown up smoke and mirrors in response to Dart. They seek 

to impugn the Seventh Circuit’s ruling by claiming that the facts underlying the opinion 

have changed in light of their indictment. Not only is that immaterial to Mr. Brunst’s good 

faith defense, but it also is flat wrong. Sheriff Dart’s evidence in that case essentially 

mirrored the Government’s evidence here, including:

• Allegations regarding “sponsored ads,” an “affiliate program,” and reciprocal 

links. Exh. 5902 at 480, 491 (Dart’s appendix on appeal).

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BRUNST MOTION TO SEEK ADMISSION RE: STATE OF MIND TESTIMONY

• A New York Times op-ed written by Nicholas Kristoff, entitled “Where Pimps 

Peddle their Goods.” Id. at 352.

• An affidavit from the National Association of Attorneys General, attaching the 

letters the Government has put into evidence here. Id. at 352, 386-426.

• An Affidavit from Staca Shehan (NCMEC). Id. at 352.

• Affidavits from local law enforcement officers on the Government’s witness list 

here.

• Allegations regarding certain forms of payment, including virtual currency 

(“The Backpage Defendants accept Bitcoin because they know that such 

payments are largely untraceable and therefore attractive to traffickers and other 

predators.”). Id. at 480-81.

In other words, in issuing its ruling, the Seventh Circuit was relying on a record that 

tracks the Government’s indictment and evidence at trial in the instant case. Further, the 

Supreme Court denied certiorari in Dart, and the opinion remains good law.2 

The current state of the record in this trial is that in 2015 there was a “credit card 

Armageddon” triggered by Dart. The Government wants the jury to believe that this 

would put Brunst on notice of an illegality even though the Court in Dart validated 

Backpage’s position on allegations nearly identical to those here, and excoriated Sheriff 

Dart for doing what he did to ruin Backpage’s business. Moreover, for evidence to be

2

In 2018, after pleading guilty and reversing his story, Ferrer was sanctioned by the 

District Court. This does nothing to negate Brunst’s reliance in 2015 on the Dart opinion. 

Moreover, the Seventh Circuit recently affirmed the continuing vitality of Dart. See 

Webber v. Armslist LLC, 70 F.4th 945 (7th Cir. 2023) (“[I]n Backpage.com, LLC v. Dart, 

this court considered whether a county sheriff violated the First Amendment by threatening 

credit card companies with criminal prosecution as accomplices to illegal activity being 

advertised on an online forum. This court . . . not[ed] that under ordinary understandings 

of culpable assistance of wrongdoers, entities that know the information’s content do not 

become liable for the poster’s words. We therefore expressed doubt that the online forum 

could be held liable for aiding and abetting a crime just because they were aware that users 

had posted ads for illegal conduct. We acknowledged, however, that the CDA did not 

immunize the online forum from federal criminal liability.”) (internal citations omitted). 

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admissible as to a defendant’s state of mind, the evidence need not be “legally controlling”

or provide a complete defense to the charged crime. Dkt. 1643 at 11. It must only tend to

show the defendant’s state of mind at the time of the alleged charges. That is plainly the

case as to Brunst’s reliance on Dart, as the vast majority of the charges against Brunst

occurred after the litigation was commenced. 

Indeed, while trying to keep out the fact that Defendants are immunized from 

criminal liability under state law by Section 230, the Government has elicited testimony 

from prior state prosecutors that Backpage was violating their state laws. The Court has 

prohibited the defense from correcting this smear campaign. The Court has also allowed 

testimony regarding the Senate PSI committee hearing and report, but precluded the 

defense from getting into the motivations of that committee, namely to pave the way for 

the passage of FOSTA/SESTA, which amended the CDA. A juror could easily be 

“confuse[d]” by the Government’s presentation of such evidence and be misled into 

believing that what a State AG or Senate committee believed about Backpage is “legally 

controlling” here. Dkt. 1643 at 11. But the Court allowed such evidence in on the basis 

that these prior investigations were not-for-the-truth “notice” to Defendants that there were 

illegal ads for prostitution on the site. The plain language of Judge Posner’s opinion in 

Dart contradicts the inferences that one would draw from the Government’s evidence in 

this regard.

B. Other Court Cases Guided Brunst.

Brunst also relied on other cases like Backpage.com, LLC v. McKenna, 881 F. 

Supp. 2d 1262, 1268 (W.D. Wash. 2012), in which Backpage successfully challenged the 

constitutionality of a proposed law in Washington that would criminalize the knowing 

publication of “explicit or implicit” offers for sex. Here, the Government seeks to apply 

the Travel Act much like the Washington statute that a federal court found unconstitutional 

under the First Amendment because:

[A] publisher who receives notice that content might be illegal would have

no incentive to ensure that such content is in fact illegal. Rather, the rational

choice in such a scenario is to remove the content as quickly as possible,

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whether or not it constitutes protected speech.

Id. at 1278 (emphasis in original). 

This federal court opinion was monumental, and Brunst familiarized himself with it

at the time. Brunst’s reliance on this opinion is highly relevant, given the recent testimony

from state and local cops who have admitted that there is no probable cause for

a prostitution arrest on the face of an advertisement, even if (as Detective Murry and other

cops have testified) the advertisement has express sex for money language. There has

been no trial testimony—nor could there be any testimony—that Defendants knew each of

the fifty charged ads was for illegal prostitution before the ads were published or while

they were live on the website. Indeed, there has been no testimony that Brunst even saw

any ad on Backpage before it was published, let alone one of the fifty charged ads. What

the McKenna court presciently observed is that the First Amendment presents a roadblock

to criminal liability “in a regime”—like the one the Government seeks to impose here—“in 

which such liability is triggered only by notification or knowledge that ‘illegal’ content is 

available on an actor’s website.” Id. Brunst relied on this language, which directly 

undermines the inferences the Government seeks to draw from its core evidence that 

Defendants merely were “on notice” that some ads published on the site led to prostitution 

transactions. Id. at 1279 (“[W]here 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.”). 

C. Brunst’s Good Faith

Brunst’s role was not to manage Backpage attorneys (whether in-house or outside 

counsel).

3 Brunst was not aware of whether counsel opined on the specific ads or wire 

transfers charged in the indictment. As previously noted, he is not asserting an advice of 

counsel defense. His level of knowledge of such advice and court opinions is generally set 

forth above and was generally for the purpose of answering questions raised by investors, 

3 Brunst did regularly deal with transactional counsel on other issues.

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BRUNST MOTION TO SEEK ADMISSION RE: STATE OF MIND TESTIMONY

financial institutions, and auditors. This advice was often provided to him by Larkin and 

others involved in the management of Backpage. For example:

• As Ferrer testified, Brunst was not part of Backpage’s moderation efforts. But 

he understood that the company had hired (1) Hemu Nigam, a former state and 

federal prosecutor who prosecuted sex and internet crimes, and (2) Liz 

McDougall, a former partner at Perkins Coie who had represented Craigslist, to 

oversee the company’s moderation practices. 

• As Ferrer testified, Brunst was not consulted on the State AG response letters. 

But he understood that the company had retained Samuel Fifer, a partner at 

Dentons and First Amendment expert, to address the State AGs’ concerns.

• During regular meetings with BMO from 2006 to 2014, Don Moon, a Backpage 

in-house attorney and VVMH board member, or another lawyer, was sometimes

present to address questions from the banks regarding legal issues facing the 

company. 

• Brunst also relayed such advice to financial institutions, as reflected in 

Exhibits 5507 and 5508 (a legal opinion letter sent to BMO in October 2010), 

which the Court precluded Defendants from asking Ferrer about. 

Brunst’s reliance on (1) the company’s hiring of counsel to address legal matters 

facing Backpage and (2) his relaying of this advice to financial institutions in

a non-privileged context tends to negate the Government’s assertions that Brunst 

(1) knowingly entered into a conspiracy with Ferrer and others and (2) acted dishonestly 

and deceptively in his dealings with financial institutions.

III. CONCLUSION

For the foregoing reasons, Brunst seeks permission to testify in his own defense 

regarding his good faith, as set forth above. 

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BRUNST MOTION TO SEEK ADMISSION RE: STATE OF MIND TESTIMONY

DATED: October 20, 2023 Respectfully submitted,

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

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