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GARY M. RESTAINO 

United States Attorney 

District of Arizona 

KEVIN M. RAPP (Ariz. Bar No. 014249, kevin.rapp@usdoj.gov) MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov) PETER S. KOZINETS (Ariz. Bar No. 019856, peter.kozinets@usdoj.gov) ANDREW C. STONE (Ariz. Bar No. 026543, andrew.stone@usdoj.gov) 

Assistant U.S. Attorneys 

40 N. Central Avenue, Suite 1800 

Phoenix, Arizona 85004-4408 

Telephone (602) 514-7500 

DAN G. BOYLE (N.Y. Bar No. 5216825, daniel.boyle2@usdoj.gov) Special Assistant U.S. Attorney

312 N. Spring Street, Suite 1400 

Los Angeles, CA 90012 

Telephone (213) 894-2426 

NICOLE M. ARGENTIERI 

Acting Assistant Attorney General 

Criminal Division, U.S. Department of Justice 

AUSTIN M. BERRY (Texas Bar No. 24062615, austin.berry2@usdoj.gov) 

U.S. Department of Justice 

Child Exploitation and Obscenity Section 

1301 New York Avenue, NW, 11th Floor 

Washington, D.C. 20005 

Telephone (202) 412-4136 

Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

 v. 

Michael Lacey, et al., 

 Defendants. 

CR-18-422-PHX-DJH 

UNITED STATES’ STIPULATIONS 

AND OBJECTIONS TO DEFENSE 

EXHIBITS INTENDED TO BE 

INTRODUCED THROUGH CARL 

FERRER 

Case 2:18-cr-00422-DJH Document 1801 Filed 09/20/23 Page 1 of 6
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Stipulation 

On Monday, September 18, 2023, the defense provided the United States with a list 

of 453 defense exhibits that they intend to introduce during the cross examination of Carl 

Ferrer. The United States hereby stipulates to the admission of the 101 exhibits listed in 

Attachment A. Furthermore, to expedite the process, the United States does not object to 

the admission of these exhibits en masse. 

Objections 

In addition to the exhibits stipulated in Attachment A, large numbers of defense 

exhibits fall into categories that should not be admitted. First, numerous exhibits involve 

advice of counsel. Second, numerous exhibits are court opinions or filings from other cases 

that have no bearing on the instant matter, or that discuss Section 230 of the 

Communications Decency Act. Third, there are more than 200 exhibits that are irrelevant, 

cumulative, and misleading that should all be excluded. Each exhibit falling into one of 

these categories should be excluded under the Court’s pretrial rulings. Moreover, the Court 

should again admonish the defense to not ask Mr. Ferrer questions that touch on these 

issues because it would be unfairly prejudicial to the United States to have these issues 

raised in front of the jury at all, which is why they were raised and ruled upon pretrial. 

1. Advice of Counsel 

 In Doc. 1643, the Court ruled that Defendants are precluded from arguing good faith 

reliance on advice of counsel unless they comply with the Ninth Circuit’s requirements in 

United States v. McLennan, 563 F.2d 943, 946 (9th Cir. 1977) for such a defense. Doc. 

1643 at 12. To date, Defendants still have not complied with the requirements for 

advancing the advice of counsel defense. Consequently, the exhibits below discussing or 

referencing advice of counsel should be excluded. 

Defense Date Topic

5329 4/4/2012

Letter from General Counsel for Village Voice Media Holdings, Inc. re 

Backpage.com Adult Category

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5507 N/A Memo on why Backpage does not create liability for prosecution

5524 2/15/2012

Email between Jim Suskin and Jim Larkin about memo on statute proposed in 

Washington legislature

6025 7/21/2015

Emails between Ferrer and Voigt discussing the Dart litigation and referring 

to discussion with counsel

6043 6/11/2006

Email from Spear stating, “with assistance of counsel,” changes to terms of 

use and warnings and disclaimers

6066 8/17/2010

Emails between Ferrer and Spear and Ferrer and Alex about terms of use and 

banner ads

6109 7/15/2009

Emails from Suskin to Spear about memo of why WM/BP does not create 

liability for promoting prostitution

2. Court Decisions and Section 230 

 In Doc. 1643, the Court held that “that Defendants are instructed not to refer to prior 

court decisions, rulings, opinions or results filed by or against Backpage.Com, LLC, unless 

those prior cases were adjudications of 18 U.S.C. § 1952(a)(3)(A) offenses.” Doc. 1643 at 

11. That ruling addressed references to the CDA and Section 230 as well: “CDA Section 

230 does not immunize Defendants from prosecution of Counts 2–51 for Travel Act 

crimes.” Notwithstanding this Court’s clear ruling, the defense has noticed the following 

exhibits: 

A. Other litigation: 

Defense Date Topic

5030 8/29/2012 9th circuit opinion in Lacey v. Maricopa County

5066 11/4/2015

Amicus Curae brief in support of Backpage for the Center for Democracy 

and Technology, Electronic Frontier Foundation, and Association of 

Alternative Newsmedia

5068 11/4/2015

Amicus Curae brief in support of Backpage for the Cato Institute, Reason 

Foundation, and DKT Liberty Project

5079 7/27/2012 District Court, W.D., opinion in Backpage v. McKenna

5081 1/3/2013 District Court, M.D., opinion in Backpage v. Cooper

5083 8/20/2013

NJ District Court opinion in Backpage v. Hoffman and The Internet Archive 

v. Hoffman

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5085 3/14/2016 1st circuit opinion in Doe v. Backpage

5092 5/15/2015 MA District Court opinion in Doe 1, 2, and 3 v. Backpage

5101 None Superior Court opinion in CA v. Ferrer, Lacey, and Larkin

5103 1/3/2013 District Court, M.D. of TN, opinion in Backpage v. Cooper

5104 11/30/2015 7th circuit opinion in Backpage v. Dart

5106 10/3/2016 Denial of writ of certiorari in Dart v. Backpage

5109 7/27/2012

District Court, W.D. of Washington, Grant of P's motion for preliminary 

injunction in Backpage and Internet Archive v. McKenna 

5119 8/20/2013

District Court, District of NJ, grant of P's motions for temporary restraining 

order and preliminary injunction in Backpage and Internet Archive v. 

Hoffman

5120 8/15/2011

Grant of D's motion to dismiss in M.A. v. Village Voice Media Holdings and 

Backpage

5167 11/30/2015 7th circuit opinion in Backpage v. Dart

5324 12/9/2016 Court Ruling on Demurrer in People v. Ferrer et al.

5532 N/A

Statement of Jim Larkin and Michael Lacey regarding settlement of civil 

lawsuit against Sheriff Joe Arpaio and Dennis Wilenchik

5902 10/15/2015 District Court ND Illinois record on appeal Backpage v. Dart

5904 7/21/2015

District Court ND Illinois Backpage complaint for injunctive and declaratory 

relief and damages in Backpage v. Dart

5905 6/26/2013 District Court NJ Backpage complaint to enjoin enforcement

5907 6/4/2012

District Court WD of Washington Backpage complaint to enjoin 

enforcement of bill 

5910 10/16/2014

District Court MA complaint Jane Do 1 and 2 v. Backpage, Camarillo 

Holdings (VVM), and New Times Media 

5915 9/16/2010 District Court ED of MO complaint for damages M.A. v. VVM

5917 9/26/2016 Criminal complaint in CA v. Ferrer, Lacey, and Larkin

5919 12/23/2016 Felony criminal complaint in CA v. Ferrer, Lacey, and Larkin

B. Section 230 of the CDA: 

Defense Date Topic

5519 9/2-9/3/11

Emails between Don Bennett Moon and Samuel Fifer about press 

coverage, AG, and Backpage

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5525 N/A

Memo analyzing Washington state legislation directed at providers of 

internet personal ads

5538 3/4/2017

Letter from FALA to AG expressing concern about prosecutorial overreach 

in Backpage and extensively discussing the CDA

5554 Sept. 2011

"The Role of Networking Sites and Online Classifieds" article written by 

Mark Latonero

5967 2/24/2009

Draft of operating procedures for taking and placing Backpage ads by VVM 

employees

6072 9/24/2010 Email from Ferrer to self of new initiatives for Backpage operations

3. Irrelevant, cumulative, and unfairly prejudicial exhibits 

Next, the United States objects to the 220 exhibits that Defendants intend to 

introduce involving Backpage agents or employees notifying law enforcement of similar 

prostitution ads on other websites. This prosecution is not about these other websites, and 

therefore the existence of similar or identical prostitution ads on other sites is not relevant 

to any of the elements of the charges in the Superseding Indictment. Indeed, such evidence 

is geared primarily towards a nullification argument such as, “Ladies and Gentlemen of the 

jury, you have seen hundreds of emails in which Backpage notified law enforcement of 

similar ads on other websites, therefore these defendants were not the only ones engaged 

in this conduct. Where are those companies and why are they not being prosecuted?”1

Additionally, these exhibits are likely to confuse the jury because these exhibits merely 

demonstrate that other websites were engaged in the same criminal activity as Backpage 

and the Defendants. Rule 403. Finally, given the United States’ stipulation to 100 similar 

exhibits regarding appreciative comments from law enforcement to Backpage for subpoena 

compliance, these additional 220 exhibits between Backpage and law enforcement are 

cumulative. Rule 403. The United States has attached the list of exhibits as Attachment B. 

1 See, e.g., Mr. Feder’s opening statement: “Long ago the great fictional Sherlock Holmes said: The police dog’s nose is long and straight, but it points in only one direction. That’s what this case is about...That’s why it is so concerning that this experimental prosecution has been brought against principals of an Internet site.” (emphasis added). 

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Conclusion

Respectfully submitted this 20th day of September, 2023.

 GARY M. RESTAINO 

 United States Attorney 

 District of Arizona 

 NICOLE M. ARGENTIERI 

Acting Assistant Attorney General 

Criminal Division, U.S. Department of Justice 

 s/Austin M. Berry AUSTIN M. BERRY 

Trial Attorney 

KEVIN M. RAPP 

 MARGARET PERLMETER 

 PETER KOZINETS 

 ANDREW STONE 

DANIEL BOYLE

 Assistant U.S. Attorneys 

 

CERTIFICATE OF SERVICE 

I hereby certify that on September 20, 2023, I electronically transmitted the attached 

document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a 

Notice of Electronic Filing to the CM/ECF registrants who have entered their appearance 

as counsel of record. 

s/ Austin M. Berry

Austin M. Berry 

Trial Attorney 

Case 2:18-cr-00422-DJH Document 1801 Filed 09/20/23 Page 6 of 6