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GLENN B. McCORMICK

Acting 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

KENNETH POLITE

Assistant Attorney General 

Criminal Division, U.S. Department of Justice

REGINALD E. JONES (Miss. Bar No. 102806, reginald.jones4@usdoj.gov) Senior Trial Attorney, U.S. Department of Justice

Child Exploitation and Obscenity Section

950 Pennsylvania Ave N.W., Room 2116

Washington, D.C. 20530

Telephone (202) 616-2807 

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.

No. CR-18-422-PHX-SMB

UNITED STATES’ REPLY IN 

SUPPORT OF MOTION RE BANK 

RECORDS AND SUMMARY 

EXHIBITS

Defendants’ response narrows the issues before the Court. Defendants agree that

the financial records and IRS income tax returns are admissible. (Doc. 1264 (“Resp.”) at 

3.) The only issues left for this Court to determine are the admissibility of (1) the nine 

revenue spreadsheets certified by Carl Ferrer, and (2) the admissibility of the nine proposed 

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summary exhibits. Because the United States has made a prima facie showing of 

authenticity for the nine revenue spreadsheets, those exhibits should be admitted. 

Likewise, the summary exhibits should be admitted as summaries to prove content under 

Rule 1006.

I. The Nine Revenue Spreadsheets Have Been Authenticated Through Carl 

Ferrer’s Declaration

“The government need only make a prima facie showing of authenticity, as the rule 

requires only that the court admit evidence if sufficient proof has been introduced so that a 

reasonable juror could find in favor of authenticity or identification.” United States v. 

Tank, 200 F.3d 627, 630 (9th Cir. 2000). “Once this prima facie showing is made the 

document in question is admitted; however, the jury is then free to, after considering all 

the evidence offered on the issue, either to rely on or disregard the document.” JUDGE 

JAMES CISSELL, FEDERAL CRIMINAL TRIALS 432 (6th ed. 2003). Carl Ferrer’s 902(11) 

declaration is a prima facie showing of the authenticity for these revenue spreadsheets. 

(Doc. 1223-10.)

Defendants previously raised concerns about Carl Ferrer authenticating other 

documents through a 902(11) certification. (Doc. 1139 at 23.) The Court noted 

Defendants’ objection, but found that “[a]s the former CEO of Backpage, Ferrer is clearly 

qualified to certify screenshots of the Backpage website.” (Doc. 1212 at 17-18.) The same 

reasoning applies with equal force here. Ferrer’s 902(11) declaration (Doc. 1223-10) 

authenticates nine revenue spreadsheets. He certifies that these spreadsheets were (a) made 

at or near the time of the occurrence, condition or event of the matters set forth by, or from 

information transmitted by, a person with knowledge of these matters, (b) kept in the course 

of regularly conducted business activity, and (c) made as a part of the regular practice of 

the business activity, by personnel of the business. (Doc. 1223-10.) These records clearly 

meet the prima facie showing of authenticity. As Backpage’s CEO, Ferrer would be in a 

position to know if the business’s revenue documents are authentic. Defendants will have 

an opportunity to cross examine Ferrer. But, as a general matter, the opposing party doesn’t 

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cross examine the witness before the Court determines the admissibility of an exhibit. In 

addition, any issues Defendants may have with the accuracy of these spreadsheets goes to 

the weight of the evidence, not the admissibility. See United States v. Catabran, 836 F.2d 

453, 458 (9th Cir. 1988) (“Any question as to the accuracy of the printouts . . . would have 

affected only the weight of the printouts, not their admissibility.”) These financial 

spreadsheets are admissible.

II. The Summary Exhibits Should Be Admitted

Likewise, the United States’ proposed summary exhibits should be admitted. These 

exhibits aren’t pedagogical devices, rather they help prove the content of voluminous 

writings that cannot be conveniently examined in Court, i.e., financial records. Fed. R. 

Evid. 1006. 

As an initial matter, Defendants will have an opportunity to cross examine the 

United States’ summary witness, United States Postal Inspection Service Postal Inspector 

Quoc Thai. He’s the witness who prepared these exhibits and will testify about all nine. 

Again, Defendants won’t have an opportunity to cross examine Inspector Thai until after 

the Court has ruled on the admissibility of these summary exhibits. If the Court waited to 

admit these summary exhibits until after Defendants finished their cross examination, then 

most of the prosecution’s examination would occur in re-direct. That’s not tenable. 

Defendants’ few specific arguments for why these summary exhibits are 

inadmissible lack merit. First, they argue that summary exhibit A (Doc. 1223-1) can’t be 

admitted because the United States has “cherry-pick[ed] transactions.” (Resp. at 5.) But, 

again, that’s an issue for the jury to resolve. United States v. Soulard, 730 F.2d 1292, 1298 

(9th Cir. 1984) (“[O]nce adequate foundational showings of authenticity and relevancy 

have been made, the issue of completeness then bears on the Government’s burden of proof 

and is an issue for the jury to resolve.”). 

Defendants also complain that because the exhibit is presented as a “compilation of 

flowcharts” it is a “pedagogical device” and not “literal translations of the underlying 

documents.” (Resp. at 5.) Not so. United States v. Possick, 849 F.2d 332, 339 (8th Cir. 

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1988) (flow charts showing organization of alleged drug conspiracy properly admitted). In 

a recent Idaho district court case, defendants objected to the admission of a summary 

exhibit because it used arrows to indicate the flow of money between defendants’ business 

entities. United States v. Babichenko, 2021 WL 236459, at *3 (D. Idaho June 9, 2021). 

They also objected that the arrows were argumentative and rendered the exhibits 

pedagogical devices rather than summaries. Id. The trial court, however, disagreed and 

found the arrows “a reasonable method of presenting the evidence.” Id. The same logic 

applies here. Rather than show the jury the voluminous financial documents,1 the United 

States has compiled a flowchart to summarize the relevant financial transactions in a 

digestible format. 

Defendants also object to summary exhibit C (Doc. 1223-3) because it “purports to 

paint a picture to the jury that Defendants continued to own Backpage after its sale in April 

2015.” (Resp. at 5.) First, the exhibit simply reflects the revenue for Website Tech and 

Ad Tech BV from 2016-18. And other summary exhibits demonstrate that Defendants 

were still receiving Backpage funds in 2016. (See Doc. 1223-7 (payments from Website 

Tech to Cereus Properties in 2016); Doc. 1223-6 (payments from Cereus Properties to 

Spear in 2016); Docs. 1223-8 & 1223-9 (payments from Cereus Properties to Lacey and 

Larkin in 2016).) Second, Defendant Larkin’s opening statement discussed how Carl 

Ferrer owed Defendants Lacey, Larkin, Brunst, and Spear $300 million as of April 2018 

because of the 2015 sale. Clearly, Backpage’s revenue remained relevant for these four 

Defendants post-2015. Finally, any arguments about what these exhibits include or failed 

to include, go to the weight rather than their admissibility. United States v. Rizk, 660 F.3d 

1125, 1131 n.2 (9th Cir. 2011) (any argument about what a summary chart did not include 

goes to the weight rather than their admissibility); see also United States v. Scholl, 166 

F.2d 964, 978 (9th Cir. 1999) (“Generally, objections that an exhibit may contain 

inaccuracies, ambiguities, or omissions go to the weight and not the admissibility of the 

evidence.”). 

1 (See Doc. 1223-11) (production of over 165,000 financial records.)

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The United States has complied with Rule 1006. Defendants and the Court have 

now had an opportunity to inspect the summary exhibits. These nine exhibits properly 

summarize voluminous financial records. Further, the United States has established (1) the 

underlying materials that support the summary exhibits are admissible into evidence, and 

(2) those underlying materials were made available to Defendants. The nine summary

exhibits should be admitted. 

Respectfully submitted this 9th day of September, 2021.

GLENN B. McCORMICK

Acting United States Attorney District of Arizona

s/ Andrew C. Stone

KEVIN M. RAPP

MARGARET PERLMETER

PETER S. KOZINETS

ANDREW C. STONE

Assistant U.S. Attorneys

DAN G. BOYLE

Special Assistant U.S. Attorney

KENNETH POLITE

Assistant Attorney General 

U.S. Department of Justice 

Criminal Division, U.S. Department of Justice

REGINALD E. JONES

Senior Trial Attorney

U.S. Department of Justice, Criminal Division Child Exploitation and Obscenity Section

CERTIFICATE OF SERVICE

I hereby certify that on this same date, 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/ Andrew C. Stone

U.S. Attorney’s Office

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