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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

KENNETH POLITE

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’ TRIAL BRIEF

In an effort to assist the Court and expedite the trial, the United States respectfully 

submits this trial brief to address procedural, legal, and evidentiary issues that the 

government anticipates will arise at trial, but that are not appropriate for a motion in limine. 

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I. Photographs of Trial Witnesses for the Jury

At the September 2021 trial, the United States asked that photos be taken of 

testifying witnesses (including Defendants’ witnesses) and then be provided to the jurors 

in a notebook. Doc. 1432 at 92. The purpose is obvious: In a long trial, a juror can identify 

and recall each witness and make notes, if appropriate, regarding their testimony. 

Defendants objected to this process. Doc. 1432 at 99-101. The Court took the request under 

advisement, but never ruled on it. See Doc. 1432 at 101.

The Court should adopt this procedure here. Providing jurors photographs of 

witnesses has been routinely allowed in many complex trials in this District in the last 25 

years.1 This practice has been favored by courts to help jurors digest and recall evidence. 

See Judicial Conference Second Judicial Circuit of the United States, 178 F.R.D. 210, 229 

(1997) (Hon. Jack B. Weinstein: “Anything that will help these good people who come 

into court, who want to do a good job, and who do their work effectively should be utilized. 

That includes . . . giving [jurors] photos of witnesses[.]”). Furthermore, psychological 

research shows that visual cues, such as photos of the witnesses, will substantially improve 

the jury’s recall of that witness’s testimony by the encoding-specificity principle that says 

that context cues enhance memory recall. See Rebecca L. Wheeler and Fiona Gabbert, 

“Using Self-Generated Cues to Facilitate Recall: A Narrative Review,” Frontiers in 

Psychology, Oct. 27, 2017, at 6 (“The relationship between memory and context is a natural 

extension of the encoding-specificity principle of memory.”).2

 This long-standing 

procedure should be used here. 

1 E.g., United States v. Sinclair, CR-01-486-PHX-MHM; United States v. Slade, et al., 09-

1492-PHX-ROS; United States v. Maximov, CR-10-00822-PHX-DCG; United States v. 

Anderson, CR-12-01606-PHX-SRB; United States v. Hinkelday, CR-15-1118-PHX-SPL; 

United States v. Harbour, CR-19-00898-PHX-DLR. 

2

 Available at https://www.frontiersin.org/articles/10.3389/fpsyg.2017.01830/full (last visited July 17, 2023).

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II. Protocol Regarding Witnesses and Exhibits

 To expedite trial, the United States proposed a stipulation where the parties would 

identify witnesses and their corresponding exhibits one week before the witness’s expected 

testimony, in exchange for handling any objections to the exhibits outside the jury’s 

presence. Doc. 1625 at 3, n.1. Defendants rejected this. This Court should nevertheless 

impose this condition to avoid waste of time and expedite this jury trial. The Court has 

ample power to do so. Fed. R. Evid. 611(a) states that “[t]he court shall exercise reasonable 

control over the mode and order of interrogating witnesses and presenting evidence so as 

to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; 

and (3) protect witnesses from harassment or undue embarrassment.” 

The United States’ suggested protocol is particularly warranted here. The parties’ 

exhibit lists identify about 3,000 exhibits. The vast majority are emails that were authored 

or received by a Defendant, a co-conspirator, or an agent of a Defendant. Defendants have 

had access to nearly all these exhibits for years, so they cannot claim surprise if the United 

States indicates it intends to use any of these. 

The parties have also disclosed about 100 trial witnesses, and the pace of trial could 

slow to a crawl if the parties wait until each exhibit is presented to a witness before they 

raise (and if permitted, litigate) their individual objections to each exhibit. 

And, in similar cases, courts in this District have adopted the United States’ 

proposed procedure. For example, in United States v. Slade, et al., 09-1492-PHX-ROS—a 

six-week trial involving 3,500 exhibits and 40 witnesses—the court adopted the same 

protocol, which required the opposing party to state any objections to specific exhibits 

before the jury was seated. As the court summarized:

THE COURT: . . . . You have had an opportunity to look at each other’s 

exhibits for the most part. . . . [Y]ou are going to let me know ahead of time 

those exhibits to which you were going to have an objection. . . .

. . . . If you have an objection to an exhibit that you believe is upcoming, give 

me a heads-up. We will take care of that objection outside the presence of 

the jury. Now, I understand sometimes you may not know if you’re going to 

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object because you don’t know what the witness is going to say, and I 

understand that. And for those limited situations, we will take care of that at 

sidebar. Admission of exhibits for the most part, will be done by counsel and 

Court personnel without me in the courtroom and without the jury in the 

courtroom because you’re merely going to read into the record those exhibits 

to which there is no objection and you don’t need me. If there are arguments 

on certain exhibits, please [inform the Court]. We will set aside time during 

the course of any day to handle those objections and admissions or exclusions 

outside the presence of the jury. I want to maximize the use of court time 

while the jury is here. I don’t want them to be bogged down with our 

administrative issues. 

CR 09-1492-PHX-ROS, RT, 1/3/13, at 177-179, transcript attached as Exhibit A. 

To expedite this multi-week, multi-party trial, the Court should adopt the same 

approach here.

III. Prostitution Synonyms: Drawing Clear Boundaries for the Use of Terms Like 

“Sex Trafficking,” “Child Sex Trafficking,” and “Human Trafficking.” 

A. Relevant Procedural History 

In its May 7, 2021 Order (Doc. 1156), the Court granted in part and denied in part 

Defendants’ motion in limine to preclude the United States from presenting evidence of 

“sex trafficking or child-sex trafficking.” Doc. 1156 at 2, 6. The Court “agree[d] with the 

Government’s position” that “[s]ex trafficking and child sex trafficking are, by definition, 

both forms of prostitution. Both are simply a subset of the crime.” Doc. 1156 at 3. Both 

“require victims to engage in sex in exchange for payment, and the Government must prove 

that Defendants intended to facilitate prostitution through Backpage.com.” Doc. 1156 at 3. 

The Court ruled: “Evidence that tends to prove that Defendants were aware that 

Backpage.com was being used to facilitate sex trafficking and child sex trafficking are 

extremely probative to show notice to Defendants that the website was being used for 

illegal purposes.” Doc. 1156 at 3. While the prejudicial value of that evidence to 

Defendants “is high, it does not substantially outweigh the probative value of the evidence 

which is also very high.” Doc. 1156 at 3-4. 

 The Court was careful to rule, however, that it would “not allow the Government to 

linger on the details of the abuse sex trafficking victims suffered as a result of being 

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trafficked.” Doc. 1156 at 4. However, “the Court will allow evidence of the fact that people 

were trafficked using Backpage.com at trial subject to specific objections from 

Defendants.” Doc. 1156 at 4. The Court also stated that it would “not allow the Government 

to introduce lengthy testimony from witnesses who were engaged in prostitution about their 

lives, lifestyles, or other details of their time working as prostitutes. Testimony from people 

involved in prostitution is only relevant as it relates to their use of Backpage.com and notice 

to Defendants that prostitutes were using their website. Testimony concerning the lifestyle 

and impact that prostitution had on witnesses’ lives is irrelevant to the crimes charged and 

may unduly prejudice Defendants.” Doc. 1156 at 5. But the United States could explore 

“how ads were created, drafted, edited, and paid for.” Doc. 1156 at 5. 

In its Order, the Court specifically ruled: 

Defendants’ Motion in Limine to Preclude Presentation of Certain Evidence 

is granted in part and denied in part. (Doc. 908.) The motion is granted to 

preclude testimony from people engaged in prostitution regarding the details 

of their lifestyle except as it relates to their use of Backpage.com. The motion 

is also granted to preclude evidence related to details of crimes committed 

by third parties . . . The rest of Defendants’ motion is denied.

Doc. 1156 at 6.

After the government presented testimony from only four of its 76 anticipated 

witnesses, the Court declared a mistrial based on what it determined was “abuse[ ]” of the 

“leeway” that Doc. 1156 afforded to introduce evidence about child sex trafficking and sex 

trafficking. Doc. 1347 at 4. The Court found that one of the witnesses, Dr. Cooper, had 

“emphasiz[ed] child sex trafficking,” and that another, J.S., had talked about her experience 

as a trafficking victim. Doc. 1347 at 4-5. While the Court found “I don’t see any of these 

as intentional misconduct,” it concluded that a mistrial was warranted based on their 

“cumulative effect.” Doc. 1347 at 5.3

 

3 After the case was reassigned, this Court denied Defendants’ motion to dismiss under the

double jeopardy clause, based in part on the trial court’s finding of no intentional 

misconduct. Doc. 1444 at 1-17. The Ninth Circuit affirmed, finding that “the government 

generally had good-faith reasons to believe its questions were within the contours of the 

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The United States has no desire to see the next trial end the same way. It respectfully 

submits this memorandum to preview related issues and suggest safeguards that would 

permit introduction of relevant evidence about Backpage’s operations and Defendants’ 

knowledge and intent—without creating a risk of unfair prejudice that substantially 

outweighs the evidence’s probative value. See Fed. R. Evid. 403. 

The core of the Court’s May 7, 2021 Order remains valid—namely, that the terms 

“prostitution,” “sex trafficking,” and “child sex trafficking” involve a single common 

denominator: the exchange of sex for money. While they may indicate the different labels 

for persons whose sexual services were offered for sale, they all describe conduct that 

comes under the general umbrella of prostitution.

B. Prevalence of Prostitution Synonyms 

As before, the United States anticipates that a primary issue will involve the terms 

that attorneys and witnesses use when discussing the subject matter of prostitution. Many

exhibits contain the terms “sex trafficking,” “human trafficking,” or “child sex trafficking.”

Each term, as used in the evidence, signifies a form of prostitution. “Sex trafficking” is 

sometimes used to describe instances where a pimp is selling one of his prostitutes for sex; 

“child sex trafficking” is a subset of sex trafficking that involves minor victims. But these

terms all involve prostitution—the statutory term used in the Travel Act, 18 U.S.C. § 1952.

The United States anticipates that Defendants will object—or even seek a mistrial—

whenever any of these terms are used instead of “prostitution.” Or, they may demand that 

“sex trafficking,” “child sex trafficking,” or “human trafficking” be redacted wherever they 

appear in the more than 3,000 trial exhibits. In many instances, the United States will not 

be able to avoid these terms because they are contained in exhibits created by other people 

before the indictment and are essential to understanding the exhibit and the witness’s 

trial judge’s rulings” or had “cogent reason[s]” for its questions. United States v. Lacey, 

2022 WL 4363818, at *2 (9th Cir. Sept. 21, 2022).

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testimony about why they were communicating with Backpage representatives. In other 

instances, these terms will be integral to evidence and testimony about Defendants’ notice, 

knowledge, or intent regarding prostitution conducted via their website. 

Examples abound. On April 28, 2010, Defendant Lacey emailed Defendant Spear 

asking, “is there any evidence of child trafficing [sic] anywhere?”, to which Spear replied, 

“We have had subpoenas that deal with this exact issue. . . We get a ton of subpoenas that 

we comply with on a daily basis.” Exh. 804.

4 In other words, Lacey asked about a subset 

of prostitution involving children, and was informed by a co-defendant that, yes, there is 

lots of evidence of that type of prostitution being linked to Backpage, namely “a ton of 

subpoenas” notifying Backpage “daily” of such activity.

In another example, a minor sued “Village Voice Media Holdings, d/b/a 

backpage.com,” alleging, and placing Defendants on notice, that she was “sexually 

trafficked as a paid escort for sex” by another person who ultimately pleaded guilty to 

certain crimes. Exh. 906a. That person, in turn, admitted in the guilty plea that she had 

“post[ed] this child pornography on defendant’s website, backpage.com in advertisements 

seeking sex from paying customers; pa[id] backpage.com for these postings; transport[ed]

minor M.A. for the purpose of sexual liaisons for money with adult male customers 

obtained through defendant’s website; collect[ed] money for minor M.A.’s sexual services 

from these customers; and purchas[ed] goods to facilitate these sexual services.” Exh. 906a. 

Defendants understood the interchangeability of terms regarding commercial sex in 

M.A.’s suit. This is shown by an email from co-conspirator Carl Ferrer, which Defendant 

Larkin forwarded to Defendant Lacey, and which stated, in part, “there is NO sex act for 

money language in the [M.A.] posting.” Exh. 906. In other words, the conspirators read the 

M.A. pleadings, which used the terms “sexually trafficked as a paid escort for sex,” and 

understood that language was synonymous with “sex act for money,” i.e., prostitution. 

4 “Exh.” refers to the trial exhibits that the United States has disclosed to Defendants on its 

list of exhibits. The United States is not attaching the cited exhibits here, but it stands ready 

to provide the Court with copies if requested.

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Another example involves a March 2011 meeting between the National Center for 

Missing and Exploited Children (NCMEC) and Defendants Lacey, Larkin, and Spear, and 

Carl Ferrer. This meeting, along with the participants’ preparation for it, will be the subject 

of testimony for several witnesses, including Ferrer, John Shehan, and Staca Shehan. At 

the meeting on March 1, 2011, NCMEC showed Defendants Lacey, Larkin, and Spear a

PowerPoint presentation that detailed case studies of trafficked children on Backpage. Exh. 

652. These studies highlighted the reciprocal link relationship between Backpage and The 

Erotic Review (TER). Unbeknownst to NCMEC at the time, Backpage had a robust 

relationship with TER. Lacey, Larkin, and Spear remained silent at the meeting about that

relationship. 

Ferrer is expected to testify that Lacey, Larkin, and Spear, and others, held several 

internal meetings to prepare for the March 2011 meeting with NCMEC. Their primary goal

was to persuade NCMEC that Backpage was part of the solution for child sex trafficking, 

rather than the problem. At the meeting, however, NCMEC confronted these Defendants 

with presentations showing how Backpage advertised minor prostitutes. 

This is critical evidence. It will not be offered for the truth of whether children were 

actually trafficked on Backpage, but to demonstrate what these individual Defendants were 

told about their website’s content. It will help refute Defendants’ argument that they knew 

nothing about prostitution advertisements being posted on their website. Doc. 1212 at 10 

(“The fact numerous third parties informed the Defendants of the prostitution ads present 

on Defendants’ website may be validly used to prove that the Defendants had knowledge 

of the ads’ existence.”). 

In another example, on January 26, 2012, Defendant Larkin forwarded to coconspirator Carl Ferrer a link to a column in the New York Times by Nicholas Kristof titled 

“How Pimps Use the Web to Sell Girls.” Exh. 1032. The column focused on Backpage as 

a marketplace for commercial sex. Exh. 1032a. Kristof quoted a prosecutor in Brooklyn,

who headed the “sex trafficking unit,” saying that most of her cases that year involved girls 

who were marketed on Backpage. Kristof further wrote that Attorneys General from 48 

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states wrote to Backpage and called it a hub for “sex trafficking.” Kristof then quoted the 

Brooklyn prosecutor discussing the average age in which girls are “forced into 

prostitution.” In the next paragraph, Kristof acknowledged that statistics on “human 

trafficking” are hard to come by. Kristof finished with a rhetorical flourish saying that the 

minor who ran away from her pimp and pounded on the door of a Brooklyn resident “was 

also in effect pounding on the executive suite of Backpage and Village Voice Media.” 

Thus, in one exhibit, the terms “sex trafficking,” “prostitution,” and “human 

trafficking” were used interchangeably to discuss Backpage’s core issue: It teemed with

prostitution ads. Sometimes the prostitution involved minors, sometimes adults; sometimes 

it involved prostitution offered by an individual posting her own ad voluntarily, sometimes 

by a pimp who forced a person to engage in prostitution. 

These are but a few examples from the many others that exist in the United States’

evidence that it plans to introduce in its case-in-chief.5

As noted above, the Court has already held that evidence showing Defendants’ 

knowledge of sex trafficking and child sex trafficking is admissible and not unfairly 

prejudicial. Doc. 1156 at 3-4. Nevertheless, the United States proposes several safeguards 

to further address any potential risk of unfair prejudice to Defendants from the use of 

exhibits and testimony that reference terms like “sex trafficking,” “child sex trafficking,” 

or “human trafficking” when discussing Defendants’ notice, knowledge, or intent 

5 Another example is the United States Senate Permanent Subcommittee on Investigation’s January 2017 report, BACKPAGE.COM’S KNOWING FACILITATION OF ONLINE SEX 

TRAFFICKING. Exh. 1587. The report—which contains “sex trafficking” in its title—is 

discussed in ¶¶ 151-152 of the Superseding Indictment (Doc. 230), and represents a critical piece of notice evidence that caused Backpage to alter its websites. Still another example 

is a June 29, 2015 letter from Cook County (Illinois) Sheriff Dart to the CEO of VISA 

regarding Backpage, which discusses prostitution and sex trafficking together in several paragraphs. Ex. 459. The United States anticipates introducing testimony showing that the letter caused Visa to scrutinize Defendants’ website—and ultimately terminate Backpage from its network. Scores of other exhibits contain similar discussions of prostitution and sex trafficking. For a non-exhaustive list, see, e.g., Exhs. 73, 104, 104a, 111, 112, 112a, 

116, 119, 124a, 593, 593b, 594, 619, 628, 628a, 628b, 631, 633, 634, 635, 637, 638, 643, 

644, 644a, 651, 652, 653, 658, 660, 661, 662, 670, 670a, 670b, 670c, 681, 683, 683a, 689, 

692b, 694, 699, 720, 722, 804, 805, 814, 826, 827a, 842, 843, 844, 846, 846a, 864, 864a , 

901, 906, 906a, 906b, 912, 926, 929, 937, 1021, 1032, 1043, 1051, 1161, 1162, 1163, 

1032a.

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concerning prostitution. 

C. Limiting Jury Instruction

The Court could provide the jury with a limiting instruction that makes clear that 

Defendants are not charged with the crimes of sex trafficking, child sex trafficking, or 

human trafficking. Such an instruction could read as follows:

Jurors: The evidence and testimony that you will receive at trial will 

occasionally involve terms such as “sex trafficking,” “child sex trafficking,” 

or “human trafficking.” As used in this case, those terms should be 

understood as referring to the exchange of sex for money—what is 

commonly known as “prostitution.” Any use of those terms is not meant to 

imply that any Defendant has been charged with, or may be guilty of, any 

other crimes. Instead, Defendants are charged only with the crimes of

conspiracy to violate the Travel Act; individual Travel Act crimes; and 

money laundering. 

This instruction could be given at the outset of the case; it could be repeated the first time 

that a Defendant objects to the use of one of these terms; and it could be repeated with the 

final jury instructions.

D. Limiting “Day in the Life” and Child Sex Trafficking Testimony 

The United States will focus its questioning of victims in a way that avoids a detailed 

discussion about the daily life of a prostitute. Although the Court has not explicitly defined 

what “day in the life of a prostitute” means, the United States understands the Court does 

not want the United States to “linger on the details of the abuse sex trafficking victims 

suffered as a result of being trafficked.” Doc. 1156 at 4. Thus, the United States will not 

ask the victims about any physical, emotional, and mental abuse they suffered from their 

pimps and Johns.6 But the United States does need to establish that prostitution business 

6 The United States reserves the right to discuss the abuse a victim suffered because of 

being advertised on Backpage if Defendants raise any issues with respect to the victims’ 

credibility. See Doc. 1345 at 6-7, 10-11. For example, some of the victims were directed 

or controlled by their pimps through physical, verbal, or emotional abuse or provided 

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enterprises existed and how the enterprise operated. To do so, the United States will ask 

the victims questions about the prostitution business. 

The United States will begin by asking the victim if they were advertised on 

Backpage. The United States will not ask questions about the victim’s life circumstances

before they were marketed on Backpage. The United States will ask the victim how she 

was posted on Backpage and go over the details of her ads, including how the ads were 

created and the language used, and the number or frequency of their ads. Regarding the

photos in the ads, the victims will testify about where the photos were taken, what they 

were to be used for, who told them how to pose, or what to wear for the photos. During the 

course of this testimony, some victims will testify that they were directed to do this by a 

pimp or trafficker. Nevertheless, the United States will not elicit from such victims any 

details about how they may have been forced, e.g, threats of violence, actual violence. 

The victims are expected to testify about how the ads were paid for and that the 

phone would start ringing almost immediately after the ad was posted. It is anticipated the 

victims will testify that they engaged in acts of commercial sex, a.k.a. “dates” with Johns

(the sex customers who responded to Backpage ads featuring them). To establish the nature 

of the prostitution business enterprise, the victims are expected to testify that they seldom 

kept the money earned during “dates” and that the money almost always went to their pimp 

or trafficker, who would, in turn, pay certain expenses for the victims. The victims are also 

expected to testify about how long they worked for their pimps or traffickers, and the 

number of “dates” they conducted as part of their participation in the prostitution 

enterprise.

7

drugs, while engaging in acts of prostitution for their pimps. If Defendants challenge the 

victims’ credibility, memory, or ability to recall or perceive an event, the United States reserves the right to ask more specific questions.

7 The United States acknowledges the Court’s concern, at the end of the September 2021 

trial, about testimony on the length of time that victim J.S. worked for a pimp who advertised her on Backpage. Doc. 1347 at 5. The duration or frequency of the trafficking is relevant to establishing the prostitution business enterprise. See Doc. 946 at 10 (“[W]hat 

must be alleged for the ‘unlawful activity’ element under section 1952(b)(i) are allegations showing ‘a continuous course of criminal conduct.’”); United States v. Kaiser, 660 F.2d. 

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In addition, some victims are expected to testify that the final version of their 

Backpage ads were sometimes different from the ad that was submitted, for example, 

certain photos would be removed from the ads. Finally, the victims will testify about how 

their pimp or trafficker’s prostitution business enterprise was disrupted by law 

enforcement, including prosecutions and convictions. 

Similar to avoiding “day in the life” type testimony with victims, the United States 

will avoid excessive and unnecessary testimony related to child sex trafficking. For law 

enforcement officers, the United States will not mention child sex trafficking during their 

testimony. When a law enforcement officer’s work experience involves child sex 

trafficking, the United States will instead refer to “prostitution crimes.”8

 

IV. Admissibility of Non-Testifying Witness Statements

This Court has already ruled that evidence of third party statements may be admitted 

as non-hearsay to show that Defendants had knowledge or notice of those statements, and 

not as proof of truth of the matters asserted. In its June 2, 2021 Order (Doc. 1165), the 

Court denied Defendants’ motion to preclude evidence, testimony, and argument of 

Backpage’s alleged reputation as a leading source of illegal sexual services. While the 

Court found such evidence not admissible under Fed. R. Evid. 803(3)’s state-of-mind 

exception to the hearsay rule, the Court ruled the evidence admissible as non-hearsay: 

[T]he Court finds that the evidence the government intends to offer to trial is 

724, 731 (9th Cir. 1981) (“The words ‘business enterprise’ refer to a continuous course of 

criminal conduct rather than the sporadic or casual involvement in a proscribed activity.”). In the case of J.S., it also established the fact that J.S. was trafficked by two separate pimps, Baruti Hopson and a person who responded to J.S.’s Backpage ad posing as a John. Doc. 1334 at 85. In the retrial, the United States simply plans to establish the time factor and 

will move on, unless necessary to clarify or connect a fact or event. 

8 The United States reserves the right to discuss a witness’s experience and qualifications 

in more detail if Defendants raise any issues with respect to the witness’s qualifications. 

For example, retired Detective Christi Decoufle has been noticed as an expert for the 

United States and will testify about the three areas outlined in the amended notice. (Doc. 

1627.) If Defendants raise any issues related to Detective Decoufle’s qualifications and 

experience, the United States reserves the right to ask more specific questions about, for 

example, her work on the FBI Human Trafficking Task Force and the scores of forensic 

interviews of child sex trafficking victims, among others. 

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admissible as non-hearsay. If statements which would otherwise constitute 

hearsay are offered to show notice, not for their truth, they may be admitted 

as non-hearsay. See MacDonald v. Ford Motor Co., 142 F. Supp. 3d 884, 

898 (N.D. Cal. 2015) (allowing statements to be admitted to show “Ford had 

knowledge of the events, not that the events were true.”). Here, the evidence 

the government desires to offer may be admitted to show that Defendants had 

knowledge of Backpage’s reputation with third parties, which is relevant to 

Defendants’ intent to facilitate an unlawful activity under the Travel Act.

Doc. 1165 at 5. The Court reiterated and expanded on this ruling in its August 11, 2021 

Order, applying this reasoning to letters from third parties informing Backpage of allegedly 

unlawful activity being conducted via Defendants’ website. Doc. 1212 at 10-11 (sealed). 

Consistent with these rulings, which are the law of the case, the United States plans 

to introduce many exhibits containing statements by witnesses who will not be testifying 

at trial. The statements contained within those exhibits typically involve a person 

condemning Backpage and its principals for permitting prostitution ads to be published. 

Sometimes the condemnation is in a public forum, such as a documentary (e.g., CNN) or 

newspaper column (e.g., New York Times); sometimes it is in a private email or letter. In 

a related example, Backpage hired public relations firms to help combat the negative press 

the website was receiving, which resulted in presentations that also placed many of the 

individual Defendants on notice about their website’s content.

In each instance, the United States submits that the exhibit is admissible as nonhearsay, because each will be offered to show the effect on the listener—and not for the 

truth of the matter asserted. Fed. R. Evid. 801, advisory notes (“If the significance of an 

offered statement lies solely in the fact that it was made, no issue is raised as to the truth 

of anything asserted, and the statement is not hearsay.”).

A. New York Times Column

For example, as mentioned above, The New York Times published Mr. Kristof’s 

column that focused on Backpage as a known marketplace for prostitution. Exh. 1032a. 

The United States does not intend to call Mr. Kristof to testify about his column, but the 

content of his column is offered, and therefore admissible, regardless of the truth of 

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anything he, or anyone else quoted within, said about Backpage. Instead, it is offered 

because it was published in one of the most prominent newspapers in the United States by 

a well-known columnist, and thus the mere publication of it, regardless of its truth, would 

have put Defendants on notice, in a very public way, that they were potentially promoting, 

or facilitating the promotion of, business enterprises involving prostitution by continuing 

to operate Backpage as they had done before that publication. Indeed, a number of email 

exchanges between Defendants Larkin and Lacey will be admitted showing them 

strategizing a response to Mr. Kristof’s various articles criticizing Backpage as a hub for 

child sex trafficking. See, e.g., Exhs. 1004, 1005.

B. CNN Documentary 

Similarly, on January 23, 2011, CNN aired a documentary titled “Selling the Girl 

Next Door” that focused on Backpage as the leading website for prostitution. Exh. 1052a, 

1052b, 1052c. Both before and after the initial airing of the documentary, Backpage 

representatives engaged in internal communications and communications with CNN 

representatives. Such communications show that Defendants were actually aware of the 

documentary and its criticisms of Backpage as a hub for prostitution advertisements. See, 

e.g., Exhs. 84, 85, 86, 87, 89a, 630, 937, 1185. As with the New York Times column, the 

CNN documentary is offered not for the truth of the allegations, but to show Defendants’ 

intent and actions in maintaining the website in the face of a nationally televised one-hour 

documentary on a major news network. 

C. Anderson Cooper 360o

On December 28, 2011, CNN’s Anderson Cooper focused a large portion of his 

program on how often Backpage was used to promote prostitution in different parts of the 

country. Exhs. 1053a, 1053b.9 Again, this type of focused treatment on Backpage and its 

9 The United States intends to offer only the portion of the program where Anderson 

Cooper is interviewing Backpage’s representative Ed McNally and a subsequent program 

where Cooper interviews Backpage’s attorney Elizabeth McDougall. Exhs. 1054 & 1055.

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promotion of prostitution on a national news network during primetime on a well-known 

anchor’s program did not go unnoticed by Defendants.10 Indeed, the United States will 

offer multiple exhibits showing some Defendants knew about the program, as evidenced 

by their email discussions. See, e.g., Exhs. 945, 946, 949, 953, 982, 997. Thus, the 

statements made within the program are not offered for their truth, but to illustrate to the 

jury that Defendants were consistently aware of public criticism that Backpage was a 

prostitution marketplace, and that their actions when confronted with these allegations

were to deflect blame (Exh. 949, Lacey to Larkin: “we know victim posted on numerous 

websites”), threaten legal action (Exh. 946, co-conspirator to Lacey and Larkin: “we have 

a history with CNN legal” and “we could send a brush-back pitch, reminding them they'd 

better be awfully certain of any statements they publish about us”), and then continue with 

business as usual. 

D. Public Relations and Brand Analysis 

In 2011, Backpage hired Washington D.C. public relations firm Goddard Gunster 

(Goddard) to address the negative press Backpage was receiving. Goddard in turn hired a 

brand analysis firm known has Greenberg Quinlan Rosner (GQR) to prepare research

reports to augment the public relations strategy. At trial, both Robert Leggat from Goddard 

and Anna Greenberg from GQR are expected to testify. Leggat will testify to conversations 

with Backpage representatives (e.g., Ferrer, Larkin, and Lacey) about formulating a public 

relations strategy to combat negative press and pressure from the National Association of 

Attorneys General. This evidence is admissible as non-hearsay because it is offered to show 

the effect on the listener, and not for the truth of the matter asserted.

1. Goddard 

Leggat prepared a PowerPoint deck that was presented to Backpage in October 

2011. The deck included many slides identifying Backpage’s reputational issues as 

10 Viewership for Anderson Cooper 360 in 2011 exceeded 600,000 nightly. 

https://cnnpressroom.blogs.cnn.com/2011/12/15/cnn-has-significant-ratings-gains-in2011-up-30-in-primetime/. (last visited July 17, 2023). 

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including child sex trafficking. One slide summarizes the issue as follows:

 

Exh. 126a at 20.

Goddard recommended banner ads that Backpage should consider publishing on the 

site, including: 

Exh. 126a at 27. 

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Exh. 126a at 28. 

Backpage did not accept Goddard’s recommendations, and the relationship ended.

2. GQR

After Dr. Greenberg signed a contract with Defendant Larkin, GQR prepared three 

research papers on Backpage’s behalf. Exh. 860, 860A. The first proposal was titled 

“Backpage.com Potentially Vulnerable to DOJ Investigation.” Exh. 803. The January 19, 

2012 memo from GQR summarizes the results of interviews with five former United States

Department of Justice staff members. The introduction summarizes the results: 

We set out on this project to determine if Backpage.com has a potential 

problem with Department of Justice (DOJ) staff. The answer to that question 

is a qualified yes. The former DOJ staffers we spoke with believe the 

department needs to do more to prosecute Internet crime and child protection 

issues. When given a basic explanation of the role that websites, 

Backpage.com in particular, play in fostering child trafficking, they think 

prosecuting Backpage makes sense.

Exh. 803 at 1. This report is again not offered for the truth, but to show that Backpage 

principals had notice about potential exposure to criminal liability. 

GQR prepared a second report for Backpage and provided it to Backpage attorneys 

and Ferrer by email on July 10, 2012. Ex. 823a. The report was titled “Backpage.com 

Media and Digital Brand Analysis.” The introduction states: 

Over the past several years Backpage.com has become nearly synonymous 

with prostitution and illegal activity. This brand image is, in large part, the 

result of press coverage driven by anti-Craigslist and anti-Backpage.com 

advocates. However, this advocate-driven negative coverage is not the whole 

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story. For years, there has been a near constant stream of stories about 

prostitution busts that mention Backpage.com.

Ex. 823a. The report details several damaging articles implicating Backpage in prostitution 

busts, law enforcement stings, child sex trafficking and murders. At trial, both Greenberg’s 

testimony and the GQR reports will be sanitized to remove any references to murders—as 

is true for all exhibits the United States will introduce as evidence. Similar to her first 

report, however, the rest of the reports’ contents are highly relevant for notice to 

Defendants that prostitution proliferated on their website.

E. These Statements Are Not Offered for the Truth

The United States expects that Defendants will argue that they did not have 

knowledge that the users of their site were engaging in prostitution offenses, and thus they 

could not have had the requisite intent to promote, or facilitate the promotion of, any 

business enterprises involving prostitution. Similarly, Defendants are expected to argue 

that they did not do any act that did promote, or facilitate the promotion of, any business 

enterprises involving prostitution. Thus, these statements are offered to show that 

Defendants had ample knowledge that there were many individuals who had reviewed their 

site and believed that users of their site were engaging in prostitution offenses. That is, 

whether the ads actually were for prostitution, as all these third parties told Defendants, is 

not why the statements are being offered. Instead, they are being offered to show that 

Defendants were hearing a steady drumbeat from many public and private sources that 

their site was engaged in promoting, or facilitating the promotion of, prostitution activities. 

Likewise, these third-party statements about the prostitution ads posted on Backpage are 

offered to help better understand the acts that Defendants took after hearing the 

information: They took affirmative steps to try to mollify critics, while not actually altering 

the business model of continuing to promote, or facilitating the promotion of, business 

enterprises involving prostitution.

If these third-party statements are excluded, Defendants may argue to the jury that 

they lacked any notice or knowledge of prostitution via their website. The Court should 

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admit such third-party statements not as statements offered for the truth of the matter 

asserted, but as notice or knowledge evidence so that the jury understands what Defendants 

knew, when they knew it, and how they responded. This evidence will help the jury 

determine each Defendant’s intent. It will also help the jury decide whether Defendants, 

with that intent, thereafter did an act to promote, or facilitate the promotion of, business 

enterprises involving prostitution. 

V. Recordings of Phone Calls of Backpage Users Responding to a California 

Department of Justice Undercover “Escort” Ad Posted in March 2015

In early 2015, California Department of Justice Special Agents Brian Fichtner and 

Tera Mackey began investigating Backpage. Doc. 1343 at 50, 55, 57. In March 2015, the 

agents created two undercover Backpage ads to investigate how the webpage worked, see 

what responses to the ads would be like, and explore how Backpage might respond to a 

call for assistance. Doc. 1343 at 57, 60. One of the undercover ads was an adult ad in the 

adult escort section; the other was of a couch for sale. Doc. 1343 at 58. The agents began 

receiving calls and text messages about the escort ad almost immediately after the ad went 

live. Doc. 1343 at 43. Special Agent Mackey, working in an undercover capacity posing as 

a prostitute, took phone calls from the undercover phone number in the escort ad and 

recorded her conversations. The responses she received were solicitations of sex for 

money. Doc. 1343 at 43. 

The United States intends to move into evidence a sampling of four of Special Agent 

Mackey’s phone conversations with the callers, that range between one and four minutes 

each, in response to the escort ad. See Exhs. 1550-1557. During the calls, callers ask Special 

Agent Mackey if she is available for 30 minutes or something quick. Exhs. 1553, 1555. 

One caller asks Special Agent Mackey if she will do deep throat, has a gag reflex, and if 

it’s okay if [he’s] about ten inches. Exh. 1551. Another quickly ends his call, after stating 

he was calling in response to an ad on Backpage, because he was suspicious that Special 

Agent Mackey was a law enforcement officer. Exh. 1557. 

The recorded phone calls are relevant because the calls will help the jury understand 

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how escort ads posted on Backpage were seen and responded to by users of Backpage’s 

escort section in March 2015. Admission would not be unduly prejudicial under Rule 403 

because the United States only intends to admit four calls out of hundreds of calls and text 

messages Special Agent Mackey received. The recordings are short and provide the jury 

with a general understanding of how users responded to escort ads posted on Backpage.

The calls are admissible as non-hearsay as they are not being introduced for the truth of the 

matter asserted. United States v. Sledge, 762 F. App’x 433 (9th Cir. Mar. 11, 2019) 

(admission of a spreadsheet properly admitted to show effect on the listener, and not for 

the truth of any statement made by the spreadsheet’s preparer); see also United States v. 

Payne, 944 F.2d 1458, 1472 (9th Cir. 1991); United States v. Issa, 265 F. App’x 801, 806 

(11th Cir. 2008) (affirming admission agent’s statement that he received information from 

a non-testifying informant that the defendant was involved in narcotics trafficking as nonhearsay evidence offered “to show the effect the information had on the witness in 

beginning his investigation”); United States v. Standley, 121 Fed. Appx, 728, 729 (9th Cir. 

2005) ; see also United States v. Louis, 233 Fed. Appx. 933, 935 (11th Cir. 2007) (affirming 

that statements offered to give context to the Defendant’s statements were not offered for 

the truth and therefore did not fall within the ambit of the Confrontation Clause); United 

States v. Bermea-Boone, 563 F.3d 621, 626 (7th Cir. 2009) (affirming that it is “wellsettled” that statements that are offered for context, and not for the truth of the matter 

asserted, are not hearsay and do not present a Crawford issue); United States v. Detelich, 

351 Fed. Appx. 616, 623 (3rd Cir. 2009). The United States is not trying to prove the truth 

of the callers’ statements. The statements are being introduced to show the effect on the 

listener, Special Agent Mackey. The responses she and Special Agent Fichtner received 

from the posting of their undercover ads caused the California Department of Justice to 

continue forward with its investigation into Backpage.11

11 Alternatively, Fed. R. Evid. 801(d)(1)(B) will apply if Defendants question 

Special Agent Mackey’s motives, memory, or credibility. 

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VI. Ernie Allen’s Past Recollection Recorded – FRE 803(5)

The United States anticipates that at least one witness, who took contemporaneous 

notes of meetings with some Defendants, might be unable to recall the details of the 

meetings that occurred in 2010 and 2011. Consequently, the United States expects to offer 

the witness’s notes under Fed. R. Evid. 803(5), the past recollection recorded hearsay 

exception. 

On March 1, 2011, Ernie Allen, the then-CEO of NCMEC, took contemporaneous 

notes of his in-person meeting with Defendants Larkin, Spear, Lacey, and co-conspirator 

Carl Ferrer; a meeting that took place at NCMEC in Virginia. The three-page, singlespaced, notes provide details about the meeting, including that Defendants showed Allen a 

presentation of what steps Backpage was taking at that time regarding moderation. In the 

notes, Allen then explained that he responded to the presentation with several points, 

including the links in Backpage ads to The Erotic Review, where “all they have to do is 

look at the Erotic Review site to determine that the ads they are running are clearly 

prostitution ads.” Allen’s notes also detail that he asked Defendants “whether it was 

appropriate for newspapers to run ads that are obviously for illegal prostitution and are 

easily ascertained as illegal prostitution ads.” Allen further informed Defendants, “you are 

supporting a criminal enterprise.” 

Allen’s notes also detail a moment in the meeting in which Defendant Lacey “lit 

into [Allen] with a vengeance,” telling Allen that “adult prostitution is none of [Allen’s] 

business and that what people were doing under the banner of ‘child trafficking’ was a 

joke.” In response to Defendant Lacey’s tirade, Allen’s notes make clear that Allen 

responded with a question: “so what you are telling me is that your company is going to 

continue to operate a criminal enterprise, and that you are OK with it as long as the people 

being prostituted and trafficked aren’t underage?” Allen further declared in his notes that 

he told Defendants, “Prostitution is a crime in every state, and what you are saying is that 

you are going to allow it and facilitate it on your site, as long as it doesn’t involve kids.” 

Allen’s notes also quote Defendant Lacey as saying, “we are not going to roll over. We are 

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not Craigslist, and we aren’t going to succumb to pressure and run for cover.” 

Allen further memorialized that Defendants asked Allen if he thought they were 

vulnerable to criminal prosecution. Allen told Defendants, “I thought companies could be 

held criminally liable if they knowingly and intentionally facilitate criminal enterprises.”

On June 6, 2017, the FBI interviewed Allen regarding these notes. In that interview, 

Allen said he had reviewed the notes that, at that time, had taken place more than six years 

before. At that time, Allen said his notes would be the best reference as to the 

Backpage.com meetings, and that he would stipulate that what was in his notes was his 

recollection of the meetings.

The United States understands that Allen’s memory about the meetings in 2010 and

2011 has not improved in the six years since being interviewed by the FBI about the notes 

in June 2017. Consequently, the United States expects that Allen will be able to attest to 

the following facts that will satisfy Rule 803(5):

(1) Allen is the founder of the National Center for Missing and Exploited 

Children (NCMEC), and also the founder of the International Center for 

Missing and Exploited Children (ICMEC). 

(2) Allen was the President and CEO of NCMEC until 2012, and the President 

and CEO of ICMEC until 2014. 

(3) In his capacity as President and CEO of NCMEC, Allen had meetings with 

many individuals.

(4) It was his practice to record his memories of the meetings close in time to the 

meetings. 

(5) Allen has such notes from three meetings with representatives from 

Backpage.

(6) On November 30, 2010, Allen had a conference call with the following 

Backpage representatives: James Larkin, Scott Spear, Carl Ferrer, Steve 

Suskin, and Hemu Nigam.

(7) On March 1, 2011, Allen had an in-person meeting with the following 

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Backpage representatives: James Larkin, Scott Spear, Michael Lacey, Carl 

Ferrer, and Hemu Nigam.

(8) On March 31, 2011, Allen met with Backpage representative Don Moon.

(9) Allen created typed notes from all three meetings, each created on the same 

day as the meeting.

(10) At the time Allen created the notes, he vividly recalled the details of those 

meetings, but he can no longer recall the details well enough to testify fully 

and accurately. 

(11) At the time Allen created the notes, the contents were fresh in his memory.

(12) The notes accurately reflect Allen’s knowledge at the time they were created.

Federal Rule of Evidence 803(5) provides that a record is not excluded as hearsay 

if that record:

(A) is on a matter the witness once knew about but now cannot recall well 

enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the 

witness's memory; and

(C) accurately reflects the witness's knowledge.

Fed. R. Evid. 803(5); United States v. Patterson, 678 F.2d 774, 778 (9th Cir. 1982).

Importantly, it need not be shown that a witness has zero recollection of a subject; 

it is sufficient if he only has a partial or incomplete recollection when asked to testify at 

trial. Fed. R. Evid. 803(5)(A) (requiring only that a witness “now cannot recall well enough 

to testify fully”) (emphasis added); 30B C. Wright & K. Graham, Federal Practice and 

Procedure: Federal Rules of Evidence § 6854 (2018) (“The witness’s memory failure need 

only be partial[.] As long as the witness is shown to be unable to testify fully about some 

point, . . . a . . . recorded recollection that does fully address that point will be permitted.”) 

(citing United States v. Cash, 394 F.3d 560, 564 (7th Cir. 2005); United States v. Williams, 

571 F.2d 344, 349 (6th Cir. 1978)).

Furthermore, this Court will not have to permit additional cross-examination once 

it admits the witness’s prior written statement per Rule 803(5). Not only does the text of 

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that rule not require as much, the whole point of a past recollection recorded is that a 

declarant can no longer recall the subject matter addressed by the statement. Thus, crossexamination can be (and often is) properly denied on that basis alone—a circumstance that 

has also been held to go to the weight of the evidence, not its admissibility: 

Since the exception for past recollection recorded comes into play only when 

the declarant cannot be effectively cross-examined upon matters as to which 

he or she asserts a lack of memory, the question has arisen as to whether the 

reading into the record of [a past recollection recorded] in a criminal case 

violates the Confrontation Clause. It has been held that the . . . denial of cross- examination must go to the weight rather than the admissibility of a 

memorandum, since otherwise the objection would always preclude the 

reading of past recollections which have been recorded. 

12A J. Bourdeau & P. Coltoff, Federal Procedure: Evidence § 33:439 (2019). 

The United States is unaware of any authority finding a Sixth Amendment violation 

from the admission of a past recollection recorded without concomitant cross-examination 

on that statement. Instead, courts have long found the admission of past recollections 

recorded not to violate the Confrontation Clause. See, e.g., United States v. Brown, 800 F. 

App'x 455, 459 (9th Cir. 2020) (affirming admission of minor’s statement from 2001 under 

FRE 803(5) and holding no Confrontation Clause violation); see also United States v. 

Marshall, 532 F.2d 1279, 1285 (9th Cir. 1976); cf. United States v. Owens, 484 U.S. 554, 

559 (1988) (that the witness could not be cross-examined on a subject because he was 

“unable to recollect the reason for [a] past belief” did not violate Confrontation Clause; 

finding it sufficient that defendant could bring out “the very fact that [the witness] has a 

bad memory”). 

VII. Frye/Cooper Notices

The United States made plea offers to all six Defendants. To date, no Defendant has 

accepted. Accordingly, the United States requests that the Court inquire of Defendants that 

they understood the plea, its deadline, and knowingly rejected the plea. See Lafler v. 

Cooper, 132 S. Ct. 1376 (2012); Missouri v. Frye, 132 S. Ct. 1399 (2012).

 

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Respectfully submitted this 21st day of July, 2023.

 GARY M. RESTAINO United States Attorney District of Arizona

 KENNETH POLITE Assistant Attorney General 

Criminal Division, U.S. Department of Justice 

s/ Andrew C. Stone KEVIN M. RAPP

MARGARET PERLMETER

PETER KOZINETS

ANDREW STONE

DANIEL BOYLE

Assistant U.S. Attorneys

AUSTIN M. BERRY Trial Attorney

CERTIFICATE OF SERVICE

I hereby certify that on July 21, 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/ Gaynell Smith U.S. Attorney’s Office

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