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3745369.1

DEFENDANTS’ JOINT OPPOSITION TO US' MOTION RE BANK RECORDS AND SUMMARY EXHIBITS

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

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

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

[Additional counsel listed on next page]

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-00422-004-PHX-SMB

DEFENDANTS’ JOINT OPPOSITION 

TO UNITED STATES’ MOTION RE 

BANK RECORDS AND SUMMARY 

EXHIBITS

Assigned to Hon. Susan M. Brnovich

Courtroom 506

Trial Date: September 1, 2021

Case 2:18-cr-00422-DJH Document 1264 Filed 09/02/21 Page 1 of 7
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3745369.1 2

DEFENDANTS’ JOINT OPPOSITION TO US' MOTION RE BANK RECORDS AND SUMMARY EXHIBITS

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

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 1264 Filed 09/02/21 Page 2 of 7
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3745369.1 3

DEFENDANTS’ JOINT OPPOSITION TO US' MOTION RE BANK RECORDS AND SUMMARY EXHIBITS

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

While Defendants do not object to the authenticity of bank records certified by 

financial institutions, Defendants do object to the pre-admission of records purportedly 

certified by Carl Ferrer. Ferrer is the Government’s main cooperating witness and will 

testify at trial. Therefore, none of the Government’s proposed time-saving justifications 

for the pre-admission of financial records apply to him and the records he purports to 

certify. Defendants must be afforded the opportunity to cross-examine Ferrer about the 

preparation, maintenance, and accuracy of the records he purports to certify—records that 

relate to the Backpage business after its sale to Ferrer.1

As to the proposed summary exhibits, the Government must lay a foundation at trial 

as to how the exhibits were prepared. Defendants should not be deprived of the 

opportunity to cross-examine the Government witness who prepared the exhibits. 

Further, certain of the exhibits plainly do not qualify as summaries under 

Rule 1006. Flowcharts that attempt to depict webs of transactions tied to each money 

laundering count are demonstratives, not summaries. And any exhibits that are not literal 

translations of the underlying materials also are not proper summaries.

Lastly, any exhibits tied to materials purportedly certified by Ferrer should not be 

admitted before trial. As noted above, Defendants are entitled to cross-examine Ferrer on 

the admissibility of the materials that form the basis for those “summaries.”

II. ARGUMENT

A. The Records “Certified” by Carl Ferrer Should Not Be Pre-Admitted.

As to the financial records certified by financial institutions, Defendants will not 

object to those records as being authentic. But Defendants reserve their right to object to 

 1 In anticipation of the predictable Government argument that these are “Defendants’ 

records,” that argument would not be true as to the records Ferrer purports to certify. The 

Backpage business was sold to Ferrer in April 2015, and, short of cross-examination, 

Defendants have no way of ascertaining the admissibility of those records.

Case 2:18-cr-00422-DJH Document 1264 Filed 09/02/21 Page 3 of 7
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3745369.1 4

DEFENDANTS’ JOINT OPPOSITION TO US' MOTION RE BANK RECORDS AND SUMMARY EXHIBITS

the records on the grounds of relevance or prejudice under Rule 403. Defendants do, 

however, object to the admissibility of nine financial spreadsheets purportedly certified by 

the government’s main cooperator, Carl Ferrer, on August 6, 2021. Dkt. 1223-10 (August 

6, 2021 Certification). Neither the Government’s motion nor the proposed certification 

explains what these records are, who prepared them, or how they were prepared. Not 

every record kept by a business qualifies as a business record for purposes of the hearsay 

exception; rather only those records “considered trustworthy because they are the product 

of ‘systematic checking, by regularity and continuity which produce habits of precision, by 

actual experience of business in relying upon them, or by a duty to make an accurate 

record as part of a continuing job or occupation’” qualify. Lion Oil Trading & Transp., 

Inc. v. Statoil Marketing & Trading (US) Inc., 2011 WL 855876, *6 (S.D.N.Y. Feb. 28, 

2011) (quoting Rule 803(6)). The government has made no attempt to show that the 

handful of spreadsheets that Ferrer purports to certify as business records meet this 

standard. Further, since Ferrer is testifying at trial, none of the concerns the government 

raises regarding trial delays and calling potentially out-of-state custodians apply here. 

Dkt. 1223 at 3. To avoid a due process violation, Defendants must be afforded the 

opportunity to cross-examine Ferrer regarding these records at trial.

B. Defendants Should Be Afforded the Opportunity to Cross-Examine 

Government Witnesses Regarding the Proposed Summary Exhibits.

First, as to each of the purported “summary” exhibits, Defendants have the 

fundamental right to cross-examine the Govenrment witness who prepared them and will 

testify about them at trial (presumably, IRS agent Quoc Thai) to ascertain how the exhibits 

were prepared and whether there were any errors in the methods used to prepare the 

proposed exhibits. See Montana Land & Min. Owners Ass'n, Inc. v. Devon Energy Corp., 

No. CV 05-30-H-DWM, 2006 WL 1876859, at *3 (D. Mont. June 2, 2006) (“Testimony 

from the preparer of the summary usually is required to establish the foundational facts 

necessary to establish relevance and authentication.”); United States v. Grajales-Montoya, 

117 F.3d 356, 361 (8th Cir. 1997) (“The rule appears to contemplate, however, that 

Case 2:18-cr-00422-DJH Document 1264 Filed 09/02/21 Page 4 of 7
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3745369.1 5

DEFENDANTS’ JOINT OPPOSITION TO US' MOTION RE BANK RECORDS AND SUMMARY EXHIBITS

a summary . . . will have been prepared by a witness available for cross-examination, not 

by the lawyers trying the case.”). 

Second, a summary document “must be accurate and nonprejudicial.” United States 

v. Bray, 139 F.3d 1104, 1110 (6th Cir. 1998) (citations and quotations omitted). 

Specifically, to qualify as a summary exhibit,

the information on the document summarizes the information contained in 

the underlying documents accurately, correctly, and in a nonmisleading 

manner. Nothing should be lost in the translation. It also means, with respect 

to summaries admitted in lieu of the underlying documents, that the 

information on the summary is not embellished by or annotated with the 

conclusions of or inferences drawn by the proponent, whether in the form of 

labels, captions, highlighting techniques, or otherwise.

Id; see also U.S. v. Wood, 943 F.2d 1048, 1053–54 (9th Cir. 1991) (“[C]harts or 

summaries of testimony or documents already admitted into evidence are merely 

pedagogical devices, and are not evidence themselves”). The Ninth Circuit has “long held 

that such pedagogical devices should be used only as a testimonial aid, and should not be 

admitted into evidence or otherwise be used by the jury during deliberations.” Id. at 1053.

Certain of the Government’s proposed “summary” exhibits are instead “pedagogical 

devices” that are not literal translations of the underlying documents. Id., Bray, 139 F.3d 

at 1110. The most stark example of this is Exhibit A, a compilation of flowcharts of 

various transactions that tie to each of the money laundering counts in the indictment. On 

their face, these flowcharts obviously are not summaries. They reference each of the 

money laundering counts in the indictment (“Count XX”) and cherry-pick transactions in 

an attempt to paint a web of supposedly illegal transactions. Other “summary” exhibits 

commit this same violation. For example, Exhibit C purports to paint a picture to the jury 

that Defendants continued to own Backpage after its sale in April 2015 when the 

government knows full well that “Medalist” (certain of Defendants’ company) did not own 

Backpage after that point. These are just some examples of how these exhibits are 

misleading and therefore not proper summaries. Other examples may come out on crossexamination at trial. 

Third, two of the proposed exhibits, Exhibits B and C, are based on records that 

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3745369.1 6

DEFENDANTS’ JOINT OPPOSITION TO US' MOTION RE BANK RECORDS AND SUMMARY EXHIBITS

Ferrer recently purported to certify. For the reasons noted above, Defendants must be 

allowed the opportunity to cross-examine Ferrer at trial about the underlying spreadsheets 

before the spreadsheets (and the purported summaries) are admitted.

III. CONCLUSION

For the foregoing reasons, Defendants respectfully request that (1) any materials 

purportedly certified by Ferrer not be admitted into evidence until Defendants have an 

opportunity to cross-examine Ferrer and (2) the Government’s motion be denied as to their 

proposed “summary” exhibits.

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

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

content and have authorized its filing.

DATED: September 2, 2021 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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3745369.1 7

DEFENDANTS’ JOINT OPPOSITION TO US' MOTION RE BANK RECORDS AND SUMMARY EXHIBITS

DATED: September 2, 2021 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: September 2, 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: September 2, 2021 Feder Law Office, P.A.

By: /s/ Bruce S. Feder

Bruce S. Feder

Attorney for Defendant Scott Spear

DATED: September 2, 2021 The Law Office of David Eisenberg, PLC

By: /s/ David Eisenberg

David Eisenberg

Attorney for Defendant Andrew Padilla

DATED: September 2, 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 1264 Filed 09/02/21 Page 7 of 7