UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

_________________

United States of America, )

) No. 2:18-cr-00422-DJH

Plaintiff, )

)

vs. ) Phoenix, Arizona

) July 27, 2023

Michael Lacey, et al. ) 1:04 p.m.

)

Defendants. )

_____________________________ )

BEFORE: THE HONORABLE DIANE J. HUMETEWA, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS

FINAL PRETRIAL CONFERENCE

Official Court Reporter:

Hilda Elizabeth Lopez, RMR, FCRR

Sandra Day O'Connor U.S. Courthouse, Suite 312

401 West Washington Street, Spc 30

Phoenix, Arizona 85003-2151

(602) 322-7256

Proceedings Reported by Stenographic Court Reporter

Transcript Prepared by Computer-Aided Transcription

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A P P E A R A N C E S

For the Government:

U.S. ATTORNEY'S OFFICE

By: Mr. Kevin M. Rapp, Esq.

Mr. Peter S. Kozinets, Esq.

Mr. Andrew C. Stone, Esq.

Ms. Margaret Wu Perlmeter, Esq.

40 North Central Avenue, Suite 1200

Phoenix, Arizona 85004

kevin.rapp@usdoj.gov

peter.kozinets@usdoj.gov

andrew.stone@usdoj.gov

margaret.perlmeter@usdoj.gov

For the Defendant Michael Lacey:

LIPSITZ GREEN SCIME CAMBRIA, L.L.P.

By: Mr. Paul J. Cambria, Jr., Esq.

42 Delaware Avenue, Suite 120

Buffalo, NY 14202

pcambria@lglaw.com

For the Defendant James Larkin:

OSBORN MALEDON, PA - Phoenix, AZ

By: Mr. Timothy J. Eckstein, Esq.

Mr. Joseph Nathaniel Roth, Esq.

Ms. Sarah Pook Lawson, Esq.

P.O. Box 36379

Phoenix, AZ 85067-6379

teckstein@omlaw.com

jroth@omlaw.com

slawson@omlaw.com

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For the Defendant Scott Spear:

FEDER LAW OFFICE, P.A.

By: Mr. Bruce S. Feder, Esq.

2930 East Camelback Road, Suite 160

Phoenix, AZ 85016

bf@federlawpa.com

KESSLER LAW OFFICE

By: Mr. Eric Walter Kessler, Esq.

6720 N. Scottsdale Road, Suite 210

Scottsdale, AZ 85253

eric.kesslerlaw@gmail.com

For the Defendant John Brunst:

BIRD MARELLA BOXER WOLPERT NESSIM DROOKS

LINCENBERG & RHOW, P.C.

By: Mr. Gopi K. Panchapakesan, Esq.

Mr. Gary S. Lincenberg, Esq.

1875 Century Park E, Suite 2300

Los Angeles, CA 90067

gpanchapakesan@birdmarella.com

glincenberg@birdmarella.com

For the Defendant Andrew Padilla:

DAVID EISENBERG, P.L.C.

By: Mr. David S. Eisenberg, Esq.

3550 North Central Avenue, Suite 1155

Phoenix, AZ 85012

david@deisenbergplc.com

Defendant Andrew Padilla - Appears by telephone

For the Defendant Joye Vaught:

JOY BERTRAND, ESQ., L.L.C.

By: Ms. Joy M. Bertrand, Esq.

P.O. Box 2734

Scottsdale, AZ 85252

joy@joybertrandlaw.com

Defendant Joye Vaught - Appears by telephone

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P R O C E E D I N G S

(Proceedings commence at 1:04 p.m.)

THE COURT: Please be seated.

COURTROOM DEPUTY: This is case number CR 18-422,

United States of America vs. Lacey and others, on for Final

Pretrial Conference.

Counsel, please announce for the record.

MS. PERLMETER: Good afternoon, Your Honor, Peggy

Perlmeter, Austin Berry, Kevin Rapp, Andrew Stone and

Peter Kozinets on behalf of the United States.

THE COURT: I'm going to remind counsel, because we're

in this large courtroom, do your very best to speak into the

microphone. Bring that microphone as close to you as possible.

That is for the purposes of our court reporter as well as

counsel who are on the other side of the room, so thank you.

Ms. Perlmeter.

MR. BERRY: Your Honor, in doing that, it may be

easier for us to sometimes sit down, does the Court want us

standing every time we speak?

THE COURT: Well, hopefully for this, for today's

purposes I think that's fine, but going forward in the trial

you will all be speaking from the podium, and so let's proceed.

MR. CAMBRIA: Good afternoon, Your Honor, Paul Cambria

on behalf of Michael Lacey who is present.

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MR. ECKSTEIN: Good afternoon. Tim Eckstein, Joe Roth

and Sara Lawson on behalf of James Larkin, who is present.

MR. FEDER: Bruce Feder for Mr. Spear, who is present.

THE COURT: Good afternoon.

MR. LINCENBERG: Your Honor, Gary Lincenberg and

Gopi Panchapakesan for Mr. Brunst, who is present.

MR. EISENBERG: Good afternoon, Your Honor,

David Eisenberg on behalf of Andrew Padilla. He is present by

telephone. Thank you.

THE COURT: And good afternoon.

MS. BERTRAND: Good afternoon, Your Honor,

Joye Bertrand appears for Joye Vaught. She appears by phone.

Thank you for allowing her to appear by phone.

THE COURT: Thank you. And good afternoon to

everyone.

Let me determine, Mr. Padilla, can you hear the

proceedings? Mr. Padilla, we are going to try to see if we can

pipe you in just for this purpose. I want to make sure that

you are able to hear the proceedings.

MR. PADILLA: Yes, I can.

THE COURT: Thank you. Ms. Vaught, can you hear the

proceedings?

MS. VAUGHT: Yes, I can.

THE COURT: Thank you. We are going to silence you at

the present time.

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All right. We are here on the parties' Final Pretrial

Conference. Let me begin by first confirming the trial

schedule, and obviously we are here in the Special Proceedings

Courtroom because our Clerk of Court, our security and all of

the powers that be determined that this was the better course

for the number of parties, counsel, and so we have determined

to hold court here. And so our trial schedule remains

unchanged.

There is one minor change. We will be in trial

August 8th through November the 3rd. We do have the one week

recess the first week of October. We are in half day sessions

on the Fridays of the weeks that we are in trial. There will

be no trial on Friday September the 29th, and that is due to

the necessity to use this Special Proceedings Courtroom for an

investiture ceremony for our most recent magistrate judge, so

they will need all day to set up the room for those purposes.

We will let you know in advance where you can store your boxes

and so on in advance of that and when you can bring them in

after that ceremony.

There is a GSA conference room in the corner behind

the Special Proceedings Courtroom on this floor.

Liliana, do you recall the number of that conference

room?

We will get you the precise conference room number.

It is in the corner. It is a GSA conference room, and Liliana

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will have the ability to unlock that room. That will be for

defense counsel. I'm told, however, that the room will remain

unlocked and so you are not to store any sort of private or

valuable items in that room.

Of course, for the purposes of your witnesses, we have

the witness rooms on either side behind the double doors there.

The trial schedule, Tuesdays through Fridays, begin

promptly at 9:00, and counsel are to be here and ready to

proceed before then. Counsel who wish to meet with the court

or raise issues should advise Liliana either the night prior or

the morning of and we will take up any matters at 8:30 or 8:15

depending on what the matter is, or at 4:30.

I generally, depending on how the trial is proceeding

and how witnesses are being presented, if it looks like it's

going to be a natural stop off point at 4:45, I will go through

4:45 on the trial days, but otherwise I plan to let the jury go

about 4:30. Are there any issues with regard to the trial

schedule?

MR. LINCENBERG: Yes, Your Honor, may I briefly be

heard?

THE COURT: Yes. Please come forward.

MR. LINCENBERG: Your Honor, Gary Lincenberg, counsel

for Mr. Brunst. Your Honor, several months ago the Court had

asked counsel to meet and confer about potentially starting the

trial, back then we were talking about the winter or early

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spring --

THE COURT: Can you speak into the microphone? It

seems to be a little bit more distant, I guess, or just bring

it up to you.

MR. LINCENBERG: Can I bring this over?

THE COURT: Yes, you can try to bring that over.

MR. LINCENBERG: Is that better?

THE COURT: Yes.

MR. LINCENBERG: When the Court initially set trial

schedules, the Court asked counsel what their conflicts were

and so forth, a lot of different lawyers, a lot of different

conflicts, and there were no dates that seemed to fit for trial

that was going to then take place in March or April. We were

prepared to go then. The Court then said: Well, I am going to

set the trial for June. It was later changed to August. At

that time I then filed with the Court a notice of conflict, and

the conflict was it affects the trial days of September 6, 7, 8

and 12 with a prepaid vacation that I take every year that we

set well in advance when our schedules of 24 different people

on this vacation are cleared, and I submitted that to the

Court, and the Court never ruled on it or responded to it. I

took that as the Court indicating that the Court was not going

to grant deference to that request that we not be in trial

those days.

In the meantime, I also spoke to government's counsel

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and I said to government counsel, I said: Look, we can make

these dates work. I have a partner who is co-trying the case

with me. He can be here on those days so the Court doesn't

lose those days so long as the government's main witness

Carl Ferrer is not called during that time period.

THE COURT: Mr. Lincenberg, I seem to recall this

conversation with the Court. It sounds familiar to me.

MR. LINCENBERG: I don't recall raising that at a

previous hearing.

THE COURT: I think you did.

MR. LINCENBERG: Well, just to complete the one

sentence, government counsel said they anticipated calling

Mr. Ferrer in August. It shouldn't be a problem, but they

wouldn't give us any guarantees on that. And so I wanted to

re-register our objection. This also --

THE COURT: What is the objection specifically to,

them calling Mr. Ferrer or the Court's trial schedule?

MR. LINCENBERG: The objection is to the Court's trial

schedule so long as -- having Mr. Ferrer testify during those

dates. We can -- we can certainly live with the Court's

schedule if --

THE COURT: I'm not going to change the schedule at

this juncture for all of the reasons that I stated previously.

I'm very much aware of your annual trip. I've been made aware

of that a couple of times.

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Mr. Rapp, I am sure, will work very diligently to work

around your schedule for that purpose, but to the extent for

whatever reason there's a compelling reason that his witness

has to appear on those three days that you're gone, you have

co-counsel who has been here at every proceeding, certainly is

able, and so on that basis I'm going to deny any sort of motion

that you have now made, or objection is overruled. I

appreciate it.

MR. LINCENBERG: Thank you, Your Honor.

MR. ECKSTEIN: And I understand the Court is not going

to move the schedule, but I'd like to make a record on reurging

our Motion to Continue the trial, which is filed at 1526. We

filed it on March 9th; it was argued on March 20th, at which

time we asked the Court to extend the June 20th trial date for

six months to December 20th. As we explained in writing and in

argument, extraordinary circumstances warranted that request to

solve the problem of not having sufficient time to prepare.

As the Court will recall, the government disclosed

178,000 documents totaling nearly 5 million pages. We have

been unable, because of time constraints, to review the vast

majority of those to assess impeachment or exculpatory

information. The only reason we haven't done it is a lack of

time. We can't possibly know what we've missed that may be

critical to the representation of James Larkin.

We further haven't been able to conduct any

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meaningfully independent follow-up investigation from review of

those documents, including identification and disclosure of

relevant witnesses and other documents.

Finally, the government seized Backpage's servers,

reviewed hundreds of terabits of data and purported to

reproduce some of that data to prove what was on the website at

a particular time and particular date. The government then

destroyed those servers. With additional time, we would have

retained an expert to review the government's analysis. As it

is, we're stuck with what the government did.

So we are now reurging that motion to include the

seven-week continuance the Court ended up granting at Docket

No. 1546 to again continue the trial to December 20th. I'm not

going to repeat the entirety of the argument we made in March.

I will just note following points:

We have been preparing diligently for trial. We've

reviewed, analyzed and organized the government's now over 2000

trial exhibits containing more than 19,000 documents. It's

taken months of work just to do this. We haven't been able, as

I said before, to engage in any sort of detailed review beyond

those documents. The Courts reviewed and analyzed the 1645,

probably now in excess of that, docket entries, we briefed a

substantive Motion to Dismiss and Motion for Reconsideration on

that, and engaged in trial preparation, substantial work

involving pretrial filings, including 194 pages of proposed

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jury instructions, motions in limine, responses, other

case-related documents, prepared openings, cross-examinations,

and the response to the government's trial brief.

So one issue that came up in the briefing and in

argument with the Court is the Court's observation that we

weren't starting from a blank slate. So I explained in

argument that although we have the benefit of some work done by

predecessor counsel for Mr. Larkin, and some help with having

five codefendants, we were effectively starting off from

scratch in terms of our understanding of the relevant case law,

some of which has evolved over the last six months, and more

relevant the time consuming review, analysis and organization

of the relevant facts and evidence, which was truly starting at

zero for us.

I offered in March to explain in camera the particular

flaws in that assumption that rendered unreasonable or that

rendered reasonable our request for a six-month extension. The

Court declined that offer. I will make it once again. I don't

want the Court to go into this with -- I don't -- I want to go

into privileged matters and I don't want the Court to

misunderstand what I'm saying or --

THE REPORTER: I'm sorry, can you slow down?

MR. ECKSTEIN: I'm sorry.

I want to make clear, we are not asking for a

continuance because we have not been diligently preparing.

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We're asking for it so James Larkin will have constitutionallyprepared counsel.

So the case law requires a continuance will serve a

useful purpose to ensure that James Larkin has constitutionally

adequate trial counsel. That any inconvenience caused by a

continuance would be minimal relative to the challenges to

Mr. Larkin should this request be denied. We appreciate the

Court and parties have done substantial work to get to this

point. This work having been done need not be done again

except for the specific work related to jury selection. And we

know it's not ideal, but it would be, relative to the

substantial inconvenience, for us to come back and pick up four

months from now to the harm done to Mr. Larkin.

And that's the most important factor, and he will

suffer harm and prejudice should this request be denied. For

counsel to have to go into a trial of this length and this

substance with a total inability to review and prepare

documents beyond the trial exhibits identified and listed by

the government.

MR. KESSLER: Your Honor, Eric Kessler for -- Eric

Kessler for Mr. Spear.

THE COURT: Yes.

MR. KESSLER: I join in that motion. I was assigned

this matter at about the same time Mr. Eckstein's firm was, and

I make the same request for the same reasons.

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THE COURT: Does anyone else wish to make a statement?

All right. Who wishes to respond from the government,

or is there a response that the government wishes to make?

MR. RAPP: Judge, we will submit on our response when

the previous motion was made.

THE COURT: Well, Mr. Eckstein, I appreciate the

advocacy and the argument, but the Court's prior order

thoroughly covered a number of the issues that you've raised.

The only issue that you raised that might be a little bit

different is the change in volume and nature of the exhibits,

which I don't anticipate are substantially different, at least

not to my knowledge.

The -- as parties well know, these individuals who are

on trial have been charged since 2018. Many of the counsel who

began representing them are the same counsel that continue to

represent them today. There have been, of course, changes.

Mr. Kessler has joined Mr. Feder. Mr. Feder remains on the

case. He was the original attorney. I covered that in my

order denying the Motion to Continue in part. I granted some

weeks of a continuance with the understanding that all defense

counsel, as proffered and commented to the Court at the prior

hearing, indicated that they had all shared in various duties

and responsibilities to the extent that they could, and so I

don't find the necessity at this juncture to grant a

continuance, especially given all of the work that not only the

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parties have put into this, but the Court, and because these

individuals have been pending this upcoming day since 2018.

So I will again base my ruling on the prior order, and

but you have made a record, Mr. Eckstein. Okay. Thank you.

Now, let me move forward on to jury selection. And

it's very important that counsel, all counsel and the

defendants who are here, and family members or interested

parties understand this, this space is only to be used for the

jury panel during voir dire; in other words, we don't have

extra space for anyone other than trial counsel, the named

defendants, and this includes any paralegals, family members

and so on, are to view, if they wish to view the voir dire

process, they should do it from on top of the -- I don't know

what you call that -- the ledge, the viewing area, and that is

because we will likely have to seat at least 95 to 100

individuals in the jury box and in the public seating area.

So family members, media, paralegals may all view from

the viewing area during voir dire.

Now, I think I reiterated or iterated this before at

some point, but let me go through the process. I will voir

dire the entire panel. As in the prior trial, reviewing the

prior Court's order, we will seat 16 jurors, that's pursuant to

her minute entry on August the 9th of 2021. And once I've

completed my voir dire process, then counsel will be permitted

to probe further any advances to the Court's questions. This

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is not an opportunity to argue your case, it's not an

opportunity to probe deeper or further into nonrelated areas,

and jurors will be, I think I mentioned, they will be seated in

the public area as well. We have about 18 chairs that are in

the jury box. We might be able to fit an additional chair in

the jury box.

I do not excuse jurors during the voir dire process.

They all sit and listen to one another. I will excuse the

jurors if individual jurors have indicated the necessity to

talk to the Court and counsel in private as to responses to

questions. Once all of that is completed, I will then excuse

the entire panel. And because of the size of the panel and the

number of jurors that we are seated, seating, that will

probably take about an hour to two hours long, so that will

permit you to review those responses for additional cause and

potential hardship strikes.

I understand, and I will adhere to the strikes, there

are nine for the government, 15 for defense. I conduct these

proceedings simultaneously and secretly. Once you have made

your strike determinations, you will give those determinations

to Liliana, she will put together a list, have it reviewed by

counsel and the Court. Once that occurs we will have built in

time to hear any other challenges through that process, Batson

challenges or any other challenges that counsel may make. That

then should give us a determination of who those jurors are to

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be seated. It's going to be a bit tricky, but we'll have all

of the jurors back in and we'll have to figure out a seating

process because we'll have the jury area vacant and then we

will seat the jurors who will hear this case.

As I mentioned, we will go through your stipulated

strikes for hardship and whittle down what we can, and I can

entertain some of the cause identifications in the jury

questionnaires.

The Court will pick the alternate jurors at the end of

the trial before they are sent back to deliberate, and it will

be by random draw.

In terms of jury instructions, I do instruct the jury

before counsel's closing argument and I will adhere to that

process. Jurors will have notebooks, but I do not permit

jurors to ask questions.

I will take up the stipulated hardship agreements

toward the end of this proceeding, and then we'll have you make

a record on the cause issues as well, so I will move back to

that. And just so you know, I tend to, I'll go about another

45 minutes and give everyone a break because it is a long time

to be sitting.

I -- there are only a couple additional voir dire

questions that the Court will ask. And frankly, in looking at

my standard questions, they've all been covered in the

questionnaire, so I think the focus of the inquiry will be on

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those questions that we've had substantive responses to because

they have all indicated, you know, their prior employment,

where they previously worked and so on and so forth, and some

of the standard questions that go into the Court's probing and

in criminal trials, and so I don't anticipate anything new or

unusual.

I do know that I will need to have your exhibit list,

and I think the final pretrial. The order setting this

conference indicates that you should have to Liliana and the

Court the precise witness list that you are going to use. I'm

going to use that during the voir dire process to screen for

any familiarity of those individuals and so I will need that

sooner rather than later.

In the statement of the case, you both submitted in

essence three statements. I'd say the first statement was part

of the jury screening questionnaire, and then you both sent in

modified statements of the case. Well, I took the liberty to

modify those submissions and you should have before you what I

intend to read to the jury. And so if you have an objection --

and just so you have it logged on your calendar, if there are

substantive objections or arguments to be heard that are going

to be more detailed that you wish to have some time to reflect

on, I've built some time into my calendar on Friday August 4th

in the afternoon to have you come in and do that, but otherwise

you have the statement of the case that I intend to use at the

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outset of the jury selection process, and you can take a look

at that, and I ask you to compare it to the statement on the

jury questionnaire and the submissions that you both made to

the Court, and so I tried to marry the two and not to make it

too complex or confusing.

MR. LINCENBERG: Your Honor, Gary Lincenberg. Is the

Court inviting comment on the statement of the case now or

later?

THE COURT: Well, I think you can do it later. And

like I said, I ask you to read that and compare it to what we

provided to the potential jury, compare it to what the

government submitted to the Court, compare it to what the

defense submitted to the Court. I think I created a happy

medium there, and so if you disagree for some substantive

reason, then I can hear those arguments. Like I said, I set

aside some time to do that on Friday August 4th.

MR. LINCENBERG: What time?

THE COURT: Well, I have all afternoon, but 1:00 to

3:00 o'clock. And here's what we'll do: At the conclusion of

this hearing, you'll know whether or not you want to raise

something, but by Wednesday of that -- of that week you're to

submit to my Court the issues that you wish to raise, and then

I can block out sufficient time for you, and I will let you

know what the window of time would be, but generally 1:00 to

3:00 o'clock.

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Now, let me go to the motions in limine. You have my

order on the motions in limine. After I -- let me tell you how

I intend to proceed. I am going to review those that were

unresolved, and then I'm going to move to the jury

instructions, and you have copies of the Court's approved jury

instructions at your table.

So let me move to the unresolved motions in limine.

By my count they are government's motion 1592, 1598 and 1600.

The government filed their Motion to Preclude the Defense From

Arguing the Legality of the Ads, and the defense has responded

at Document 1612. And upon further review, unless there is

something more that you wish to add, Mr. Rapp, I'm prepared to

rule.

MR. BERRY: This is Austin Berry. Sorry. Pleasure to

be in front of you for the first time. I will be arguing

anything to do with these three motions in limine. Happy to

answer any questions the Court has about these, but we don't

have anything additional to add to what we filed.

THE COURT: Did everyone hear him?

MR. CAMBRIA: No, I did not.

THE COURT: Okay. Anything more that defense wishes

to add, anyone from the defense side?

All right. Now here, I will just say at the outset on

reviewing the motion, I think the crux of the argument is that

defense can't proclaim the ads are legal, but the defendants

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say the ads are legal, and it's the government's burden to show

that they are related or veiled ads to promote prostitution,

and I think that's at the heart of the case.

And so at the outset, it's the government's burden to

show that they are purported to be what you say they are. And

so in that, in that way, I think the defendants can state that

it's the government's burden to show that these are illegal

ads.

Now, the manner in which you say that can become

problematic if it starts to look like you are stating legal

conclusions to the jury, and so I would just caution you that

you be very careful in how you present the statement. And as I

pointed out in the order on the motions in limine, that at

least in my view, and I read the transcript of both opening

arguments, or all opening arguments, I should say, and they

really did go beyond the bounds of what opening arguments are.

Opening arguments are simple roadmaps of what the

government intends to prove, the type of witnesses and the

exhibits they intend to show to prove those points, and the

defense is entitled to present their theory of the case and why

it is that the government will not meet its burden. But going

beyond that, I do think you will run into some problems. And

of course, the Court will admonish the jury that your opening

statements are not essentially evidence, and so I think the

risk you run here is if you promise too much or if you build up

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some expectation, that to me is where you get into a little bit

of a concerning spot with these jurors.

My experience is these jurors are very -- once they

have been selected, they are very attentive, and they will pay

close attention to what you say and how you conduct the trial,

so I do ask you to be very mindful of that.

That said, that leads me to the defendant's motion at

1598, and this is the Motion in Limine to Preclude the Defense

from Commenting on the Legitimacy of the Prosecution. The

defense has responded at Document 1614. And does the

government wish to be further heard?

MR. BERRY: Your Honor, only thing I would say on this

one -- I'll speak into the microphone a little bit better.

This was a very specific statement that was made in the opening

statement where the defense attorney says, "When you have the

law and the facts on your side, you go to civil court. When

you don't, you take people's money so that they can't defend

themselves and you bring a criminal charge."

We believe that just as Your Honor has ruled a moment

ago about sort of going outside the bounds of what's an

appropriate opening statement, we think that that gets too much

into, goes far beyond those bounds, goes far beyond the bounds

in the sense that it talks about the seizure of assets, which I

don't believe should be in front of the jury prior to the

forfeiture issue in this case. And so arguing or making a

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statement to the jury in opening statements that the government

seized all our assets, and that that somehow is a factor that

they should consider in the case, we don't believe that that is

correct.

The second part of that is commenting on the

difference between a civil and a criminal charge and the

legitimacy of whether you bring a case in civil under a civil

complaint or a criminal prosecution is also outside the bounds

that Your Honor was just outlining.

THE COURT: Does anyone wish to respond from defense?

MS. BERTRAND: Your Honor, I am the person -- I am the

person who wrote the response, so I'll start. It was -- it's

still not clear as I stand here today if the government meant

to limit its motion to just those two statements and topics or

if this is a prior motion to preclude us from commenting on the

legitimacy of this prosecution, which to me under -- that's

what Sixth Amendment does for a defendant. We get to get up

and say: It's not -- they can't prove it. It's -- it's

improper, whatever it is.

With regards to the forfeiture, that's an inherent

part of this criminal matter, and it does go -- intent goes

both ways. Intent is relevant, motive is relevant, and that

includes the government's motive here. They seized, what,

$500 million in assets. That's relevant as to what's really

behind this prosecution. And I don't think we have to belabor

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it, but you know, this is also intertwined with all the money

laundering charges that the government seeks. So I don't think

it is irrelevant. I think it is part and parcel to this

prosecution.

Regarding the civil versus criminal, first of all, we

are going to have jurors who have sat on civil trials and

criminal trials. It's imperative that a juror that previously

sat on a civil trial understands this is a higher burden of

proof from a preponderance of the evidence. And again, this is

about choice points that the government has had in this case

and made. So I think if the Court wants to say to the defense:

Hey, you can mention it, but don't make it your primary

defense, I think all of us would be comfortable with that, but

to just preclude us from even mentioning it when it's a huge

part of this case is improper. And like I said, really it gets

into First Amendment, Fifth Amendment and Sixth Amendment

concerns

THE COURT: Anyone else?

MR. FEDER: Judge, it's black-letter law that the

defense can challenge the good faith of a prosecution, and

that's in the Kyles vs. Whitley Supreme Court case and other

cases.

Similarly, part of this case Mr. Ferrer was allowed to

keep the money that the government is claiming is criminal

proceeds, and he's been able to pay his lawyers with that

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money, and that's a -- that's an essential part of this case.

To preclude cross-examination and therefore opening statements

on that issue is to cut the heart out of the defense and

prevent us from presenting a defense, which is improper.

This is not a civil case where everybody gets kind of

the same rules. I mean, the constitution and the law, the

cases that interpret that is very clear that because we're the

ones that may go to prison, we have a lot of leeway, and that

the Court, any kind of intervention in blocking the defense

from presenting their -- their defense is improper.

So this would interfere with cross-examination and it

would be in some fashion be kind of fraudulent way of trying to

present a case.

MR. BERRY: If I could respond to that, Your Honor.

THE COURT: Let me see, I think Mr. Cambria was --

MR. CAMBRIA: Thank you. Your Honor, we were given

the proposed jury instructions today and, of course, they are

voluminous and a number of cases have been cited and so on. So

I am not in a position, I don't think anyone else is either, to

intelligently comment on those, but one thing that seems to be

going through this whole case on the government's side is that

they do not want to confront the fact that it's a First

Amendment case.

And I am wondering at some point today, are you going

to entertain our arguments, if you will, as to why there should

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be instructions with regard to the First Amendment? To say

that a case involving the publication --

THE COURT: Let me stop you there, Mr. Cambria. I

have included a First Amendment instruction in that pile that's

before you.

MR. CAMBRIA: As I say, I haven't been able to read

all those and pay attention at the same time, so I will look at

those and we'll see, but I think that at some point, if

possible, I'd like to make connection with that. I will read

that for sure. Thank you.

THE COURT: Anyone else? All right. Mr. Berry.

MR. BERRY: My response, I think we can simplify this

a little bit. We are not trying to preclude them from

cross-examining Mr. Ferrer about any kind of bias or reason

that he might have to testify. So going into any of that sort

of thing in terms of what was seized and what was allowed to

stay with you, what wasn't, all fair ground. That's a

completely legitimate basis for cross-examination in the

general sense of it. That's not what this is asking.

What this is asking is for them not to be allowed to

say in front of the jury, "They seized all our assets, and they

did it so that we couldn't defend ourselves." That suggests

that they are not having adequate representation, which would

be an argument to the jury that would be one based upon

nullification and widely improper 'cause we don't believe that

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they should be able to make that kind of argument.

At the same time, this statement here, "When you have

the law and the facts on your side, you go to civil court"

suggests that there is some more legitimate forum than a

criminal prosecution, and that the fact that we are in a

criminal prosecution suggests that we don't have the law and

the facts on our side. They can criticize our interpretation

of the facts, they can certainly cross-examine our witnesses,

talk about our inferences and make those types of arguments

about factual inaccuracies, which they mentioned, but this

notion of government overreach, that is language of

nullification, quite frankly.

And talking about what is a better forum, defense

counsel is correct that they need to be instructed that there's

a higher standard of proof here, and that's, of course, what

would be our response if Your Honor were to allow them to say

such a thing like that, then we have to explain this idea that,

well, when you have the law and the facts on your side you go

to civil court versus criminal, why are we sitting here talking

about whether we should have brought this case in a civil forum

or not? That has nothing to do with what this jury is tasked

with, and the defense should not be allowed to sort of invoke

this notion that there is some better forum that would have

more legitimacy than a court or a trial in front of Your Honor.

That's all.

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THE COURT: Well, you have raised, both sides have

raised issues that are beyond what the motion really directs

the Court to, and the motion directs the Court to this

statement, "When you have the law and the facts on your side,

you go to civil court. When you don't, you take people's money

so that they can't defend themselves and you bring a criminal

charge." And so I'm going to direct my comments to that.

As to that precise statement, it does not tell the

jurors what the defense theory of the case is. It's more akin

to a statement of personal belief of defense counsel's comment

on the legitimacy of a government charge, and it is going to

result in confusion to the seated jury. There's an assumption

that these jurors would have sat on a civil or criminal case,

and that's an inappropriate assumption at this juncture. And

even so, it might have been years ago, and so it's during the

course of the trial that they will be instructed as to what the

burdens of proof are and to interject statements that may

confuse them in this fashion. I am not going to permit.

And further, that particular statement I think is one

of these statements that is akin to a conscience of the

community statement made to inflame the jurors at the outset.

These jurors that we will have carefully, carefully screened so

that they are sitting there without their mind made up, and so

it does border on inappropriate conscience of the community

statement.

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So to the extent that anyone wishes to make a

statement like that, I ask you, there is a Ninth Circuit court

case called United States vs. Blixt, B-L-I-X-T, 548 F3d 882,

548 F3d 882. I ask you to take a look at that so that you

understand the boundaries of what you can say.

So I will grant the government's motion to the extent

that anyone is considering making a statement similar or akin

to this that is here in the motion.

Now, finally, the last motion that needs to be ruled

upon is Government's 1600. And this one I'm a little bit --

I'm a little bit confused because, and perhaps I am misreading

this, in the -- in the opening statement defense counsel

introduces a meeting between State's Attorneys General and

Craigslist, and it is true Craigslist is not a party here and

the State Attorneys General are not a party here. So my first

question is, why is this relevant?

But then in defense response they include the exhibit

that is an e-mail chain from Mr. Ferrer in which he does refer

to understanding that Craigslist has reached some sort of

settlement, and then indicates that this represents validation

of our adult business model.

And so I'm kind of curious from the government's side,

how do you intend to use this exhibit? The defense has

proffered it as an exhibit that you produced to them and that

you intend to use.

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MR. BERRY: So with regard to that specific exhibit,

Your Honor, this is an e-mail chain, and I know they excerpted

parts of it, but it's kind of a long chain and that portion of

it is towards the end or the bottom, which basically is the

beginning of the chain effectively. This is obviously going to

go to, I can't speak to every line in this e-mail, but it's

going to go to the defendant's knowledge. Mr. Larkin is copied

on this email, Mr. Ferrer is on there, Mr. Hyer is on there,

and this type of exhibit will go to their knowledge about what

has been provided to them regarding information from the

outside of the prostitution ads.

That specific section right there is certainly

admissible, I think, for that knowledge purpose, but what our

in limine goes to is the statement, this idea that they are

going to put in front of the jury that we know somehow what was

said in these private communications between Craigslist and the

attorneys general. And unless they intend to call a witness

from one of those meetings to testify about what was -- what

happened in that, those meetings, that would be so many levels

of hearsay we could never quite get to it, right.

What they have proposed, Your Honor, as I said, they

have their own exhibit, which is, I think it's 54, let me

double-check that, yes, defense Exhibit 5054, which is a press

release regarding the actions that Craigslist plans to take.

And so they want to put that out there. We have no idea how

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they are going to authenticate it. Separate problem. We can

deal with that at another time. But they want to put this

press release out there as some sort of evidence of their,

what, lack of intent, lack of knowledge. It's unclear.

And when they quote to Your Honor that this is -- they

say in that e-mail in Government's Exhibit 17, "This represents

validation of our adult business model." And then they also

cite the idea about financial data for law enforcement

subpoenas. They leave out some important parts like screening

out underage coasters, and they also screen out the fact that

they were selling ads when Craigslist was still free.

So they are positioning this statement as though it's

some sort of evidence that, well, we learned that Craigslist

was paying, charging for it, therefore, it was okay that we

were posting prostitution ads for a fee, and that, of course,

you can't really infer that from the exhibit that they are

proposing, and you certainly can't take that from the statement

that they made in opening statement. Because as Your Honor

points out, what they said in their opening statement was, they

talk about charging for the ads. Okay. Guess where charging

for the ads came from? The attorneys general met with

Craigslist and said to Craigslist. And so just stop right

there for a second and say, and sort of quote, and they say,

said to Craigslist: We want you to charge for these adult ads.

So our argument is, how -- as Your Honor has pointed

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out, opening statement should say: Here's what we anticipate

the evidence will be. And we don't think there is any way that

they can legitimately stand there and argue we anticipate

showing the jury what the Attorneys General said to Craigslist,

and that's our argument here as to what they should not be

allowed to say.

To the extent that these exhibits are admissible in

some other basis that's not being discussed right here, that's

sort of a separate matter, but our argument on this in limine

is really merely about them saying: We are going to be able to

prove to you what 49 attorneys general said to Craigslist in a

meeting where none of these people were party to it were

present, and we have no witnesses coming to say what was said

inside those meetings.

And then they further go on to say: The Attorney

General asked that the ads be charged for, so that's what

Craigslist did. They are not previewing admissible evidence,

and that's our argument.

THE COURT: All right. Who wishes to respond or if

there is a response to this?

MR. ECKSTEIN: Very briefly, Your Honor.

Tim Eckstein. The evidence will come in through Mr. Ferrer,

simply his subjective understanding of what happened between

Craigslist and the Attorney Generals, and the influence that

had on him in terms of the justification for the billing

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practices that Backpage had for adult ads.

THE COURT: The concern I have here is, number one, as

I mentioned before, Craigslist is not a party to this. It

doesn't sound like anyone from the six defendants were a part

of the conversation. There's some e-mail communication that

loosely refers to this agreement, and I don't know what precise

agreement that is. It could have been multiple agreements. I

don't know.

And so at this juncture, until the government produces

some sort of witness or exhibit related to this knowledge, it

is hearsay, and so to say or to preview for a jury what you

don't know would be in there, specifically with regard to this

meeting and who was there and what the decisions were, is I

think a big stretch and especially in this fashion.

Mr. Eckstein.

MR. ECKSTEIN: Yeah, I understand. I think as I was

describing it, that maybe in the framing of the fact that it

would be some independent demonstration of what substantively

happened between Craigslist and the Attorney Generals as

opposed to Mr. Ferrer, his subjective understanding of what

that was, and that understanding may or may not be true. It's

not hearsay and certainly has influence over every act he

undertakes at Backpage from that point forward.

THE COURT: Well, I guess the -- why can't you just

say that his understanding was X, Y and Z based on his

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experience in this field? But you don't have to refer to

Craigslist meeting with these Attorney Generals in which they

decided X when nobody was present. Mr. Ferrer wasn't present,

none of the other defendants were present, and so it's hearsay.

MR. ECKSTEIN: Well, it may not be accurate, but I

don't think it's hearsay. I mean, it's the difference between

his understanding of what generally happens in the field and

his understanding of what happens between names that will

resonate with the jury, the largest online advertising business

in the world, Craigslist, and the State Attorney Generals has a

legitimacy that attaches to it that is very different than

something that otherwise happens in the business.

Either he will acknowledge that was his understanding

or not. And if he doesn't, and we don't have other evidentiary

basis to get it in, then we won't get it in. And if we've

raised it in opening statement, I am sure the government will

point that out.

THE COURT: Well, I think at this point I will permit

you to at least refer to the -- to the fact, if it is indeed a

fact, Mr. Ferrer was aware of some ability of his organization

or those like his organization such as Craigslist to do

whatever it is that he's purported to have done, but I think

bringing in this whole agreement with the Attorney Generals

when none of that evidence is going to come in, I don't know

how it comes in, what those agreements were, who were party to

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those agreements, who heard about them, whether or not the

third-party information that Mr. Ferrer gathered was actually

accurate, and that's the problem that I have. Until we hear

from him as to what his understanding was, it's a big mystery

to me.

And so I would caution you not to go down that road at

this juncture. You're going to hear an objection from the

government, I suspect, if it comes out and I will have to make

my ruling at that point, but and so I'll leave it at that. So

counsel are so advised.

All right. I think those are the only motions in

limine that were outstanding. Why don't we take about a

15-minute break and then we will come back. When we come back

I will move to the jury instructions and then I'll go through

what I expect in terms of trial conduct, and then we can review

the juror questionnaires.

MR. LINCENBERG: Your Honor, Gary Lincenberg.

Before -- is the Court going to allow discussion of the orders

that the Court issued on motions in limine? There's a number

of points relating to them that leave a lot of lack of clarity

as to what can and cannot be said.

For example, in opening statements on certain points,

I'd like to raise that in particular with regard to the Motion

in Limine involving the advice of counsel issue if the Court

would permit.

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THE COURT: I will permit you to make a record, but I

think my order is precisely clear with regard to advice of

counsel. And I do believe the advice of counsel issue has been

addressed previously, though there's never been really any

fleshed out motion by any defendant that he intends to use, he

or she intends to use the advice of counsel defense. And so to

the extent you wish to make a record on the Court's order, you

can do so.

MR. LINCENBERG: Thank you, Your Honor. After the

break?

THE COURT: Yes. All right. Let's stand in about a

15-minute recess.

(Recess was taken at 2:07 p.m.)

(Proceedings reconvened at 2:26 p.m.)

THE COURT: All right. Please be seated. We are back

on the record. All counsel are present, and let's continue

forward.

Now, as I mentioned before, I placed on your tables

what I have resolved to be the jury instructions. I reviewed

the submission by the government of their proposed

instructions, which also included the defendants' proposed

instructions. I looked thoroughly at the objections that were

lodged to the respective instructions. For your understanding

of how I came upon this, what you have, this is what I intend

to be, at least at this juncture, the instructions that I will

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use, and I think it's useful to determine -- make this

determination at this point because obviously you're going to

be saying things in your opening, I think, and you need to have

that roadmap available to you.

So my determination was based on this: I begin with

the premise that the Ninth Circuit Model Instruction is the

governing rule. And to the extent that either party added

unnecessary verbiage which included in some cases unnecessary

elements, confusing statements and so on, I eliminated those

and made my decision again based on what the governing standard

is in the Ninth Circuit removing any of those elements that

were confusing, and in some cases modified the instructions.

The -- I will read the preliminary instructions that

were stipulated to. And then, as you will see in the packets

that you were provided, there are still unresolved jury

instructions. For example, at page 13, the deliberate

ignorance instruction still contains defendants' objection, as

does page 20, the advice of counsel. But -- and I will tell

you this, that based on the Court's order on the motions in

limine, I am inclined not to give this instruction, but in any

event, it hasn't been perfected or removed yet.

The defendants' proposed instruction on mere presence,

and I will just make this comment for your review, I think it's

already covered in part of the government's, or the Court's

actually, the Court's perfected conspiracy. There's a sentence

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in there that relates to something akin to mere presence, so

that will likely come out, but I haven't made that

determination yet.

So in any event, that is -- that is how the Court came

to its determination. There's also a pending defendants' good

faith instruction at page 59, and generally those instructions

that I haven't ruled upon yet, I haven't done so in part

because I need to hear the evidence. And what I will do is at

this juncture, as I said, I know you need to have time to

review those jury instructions, and so I have set aside

August 4th, Friday, for that purpose if you wish to come in and

make a record. In advance of that, do let me know specifically

what instructions you take issue with.

I don't want to use the Court's time or your time if

you're going to come forward and just simply parrot what you

put in your written objection because I've considered those

arguments already, so just be mindful of that.

MR. CAMBRIA: Your Honor.

THE COURT: Yes, Mr. Cambria.

MR. CAMBRIA: Thank you. I wondered if we could

supplement our written material with regard to the

instructions? I noted a couple -- I noted a couple of

instructions here that clearly, I think, conflict with Ninth

Circuit law, and we could supply those to the Court.

The other thing, though, is, and I haven't had a

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chance obviously to read these in detail, but as I get to one

that refers to New York and violation of state law, it talks

about sexual contact as opposed to prostitution, and there's no

way for us at this point to know what the Grand Jury was

charged and what the so-called theory was of the count, and

there's a vast difference in New York between charges regarding

sexual contact and charges that are prostitution, and so it

seems to me that there's no way for us to know whether this is

a proper instruction unless we know how the Grand Jury was

charged with regard to any state law because state law has to

underpin all of these. And we've never been told, and we made

requests, but we've never been told what exact state law was

charged, if any was charged, or if a generic charge was made to

the Grand Jury concerning sexual activity. So I don't, you

know, I would -- so twofold, one is can we briefly --

THE COURT: Which -- Mr. Cambria, let me stop you

there. Which is the instruction you're referring to?

MS. BERTRAND: Your Honor, this is Joye Bertrand.

It's the one for the New York State violations. Page 40, about

the last three-quarters down the page, addressing Counts 45

through 47 and 51 concern prostitution offenses in violation of

laws of the state of New York: A prostitution offense in New

York occurs when a person engaged, agreed or offered to engage

in sexual conduct with another person for a fee. But we don't

have a definition for sexual conduct, which is different from

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the other instruction that included the instructions. As the

Court may notice, those are substantially different. I was

looking at the one for Arkansas and am kind of surprised at how

limited people's private lives are there.

So I think there is a couple details like that where

we got to fill in the definition for the jurors because sexual

conduct in terms of prostitution state by state is not a

consistent definition.

MR. CAMBRIA: I want to add to that. We can't just

throw in any definition. We are governed by what the Grand

Jury did or failed to do, and we're entitled under the Fifth

Amendment to an indictment by Grand Jury. And so they can't,

you know, say, well, this one looks good, let's throw that in.

We have to see what, if anything, the Grand Jury was told.

These require state violations. We've never been told what

they are. So how would the jurors be able to analyze that

element without knowing what the definition is that was given

to the Grand Jury that they voted the charge on, if they did?

THE COURT: In the 16,000 some odd documents in this

case, it seems to me that several requests for Grand Jury

transcripts were made, and was this one of the grounds on which

those requests were made and I think subsequently ruled on?

MR. CAMBRIA: The one that I recall is that our

position was that a state statute had to be violated in order

to violate the Travel Act. We asked whether the Grand Jury was

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instructed on state law.

THE COURT: And so this is akin to that argument?

MR. CAMBRIA: Well, and what happens is now we see an

instruction referring to New York and it includes sexual

conduct. That's a vastly different charge than prostitution in

New York.

THE COURT: Well, here's what I'm inclined to do.

Mr. Stone, did you wish to --

MR. STONE: Yes, Your Honor, I think we can

short-circuit this because Mr. Cambria mentioned that a state

law needs to be violated. But as Your Honor has indicated

correctly on page 57, it's another jury instruction, state law

need not be violated for defendants to be found guilty under

the Travel Act, just that they had the intent to promote,

manage, establish, carry on or facilitate the promotion,

management, establishment or carrying on of any business

enterprise involved in prostitution offenses.

So yes, the state crime is part of this, and that's

why it's correctly listed in the jury instruction, but because

there is not a need for the United States to prove that the

state law was actually violated, I think that we can

short-circuit Mr. Cambria's concern here.

MR. CAMBRIA: Your Honor, if I might, there is no

short-circuiting the issue that a state statute is involved.

And what did the government charge the Grand Jury with? Did

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they give them a generic definition of prostitution or did they

give specific and specific instructions? And the reason I say

that is because in your proposed instruction you now are having

a specific reference to sexual conduct, which is a different

offense under the New York penal law than prostitution.

THE COURT: Well, let me short-circuit this

conversation, Mr. Cambria. These instructions at this point,

as you know, can be changed depending on how the evidence comes

in, and so there might be a necessity to all together revise

this instruction.

MR. CAMBRIA: We can't amend the indictment.

THE COURT: But I'm going to review -- I know that

there was a ruling. Judge Brnovich made a ruling on this

precise issue on something related to the Grand Jury

transcript, and trying to identify what it was that they were

told, and so I'm going to look at that because as you all know

I'm not going to second-guess what has already been done in the

court.

I will tell you that I've found from time to time that

you've made arguments that aren't necessarily fairly

representative of what the Court has determined. And I use the

example of this, and it can be very exhausting. In the motions

in limine and other motions here, both parties have relied on

an order of the prior Court in which she is determining whether

or not there are grounds to recuse herself from the case. And

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in that order she parrots statements of her husband, then

Attorney General. Those weren't findings of fact with respect

to particular issues that were raised by the Court. The lines

that were used in various pleadings and motions before the

Court have to be very carefully made because I rely on your, on

the good faith of counsel. So I just I want to make very clear

that I look at everything. And here I -- this is familiar to

me, and that's why I'm pausing, Mr. Cambria. I do believe that

I've seen prior pleadings that address this very issue related

to the Grand Jury. No, somebody made it, a request for Grand

Jury transcripts.

MR. CAMBRIA: Oh, yes, absolutely we did.

THE COURT: And I think this was part of that, and so

I'm going to look -- I am going to look very carefully at the

docket and make sure that I understand whether or not this has

already been resolved.

But with respect to this instruction, like I said,

there's still time to make modifications depending on what the

government's case looks like, and generally my practice is

waiting until close to the end of the government's case to come

back again and to perfect the instructions that will be

presented to the jury. What I intended to do here was to give

you at least some indication of what I'm inclined to do so that

you will be prepared to understand what you can or cannot rely

on in your opening statements.

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MR. CAMBRIA: If I might, a couple of things. Yes, we

did on several occasions ask that we be told what the Grand

Jury was told with regard to state statutes. Now that I see

this proposed instruction, it becomes even more acute to me as

far as an important issue because they can't prove up something

that's not the charge that the Grand Jury found. This can't be

a matter of, well, okay, let's give them this statute or let's

say this conduct happened. What did the Grand Jury find? In

here state law is relevant, and so what people -- when I'm

reading this and I see conduct, conduct is an offense in New

York, but prostitution is a different offense.

And so I think the review has to be, what did they

charge the Grand Jury with regard to states, or did they give

them a generic charge? And if so, we should be told of it so

that we can protest it. They cannot prove something that's not

part of an indictment because that would violate the Fifth

Amendment.

THE COURT: You can file a motion. You can file a

motion. I'm going to limit you to seven pages, and you can

file it expeditiously. I will expect an expeditious response

from the government, and no reply. So your deadline, your

deadline to file this is going to be Monday, Mr. Cambria.

MR. CAMBRIA: Okay.

THE COURT: And the government will have until

Wednesday to respond.

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MR. CAMBRIA: I appreciate that. Thank you. The

other thing, though, on these instructions, since there are a

lot of cases and so on here, can we submit something different

than what we relied on before, specifically commenting on

these?

THE COURT: No.

MR. CAMBRIA: No? Okay. The only reason I --

THE COURT: Because you fully put forth your objection

to the government's, and government has done that with yours.

I relied on your objections. I relied on your statements in

order to make this determination.

Now, Mr. Cambria, that said, you asked if you could

supplement and tell the Court, well, this is against Ninth

Circuit, I'm always for that. If you can find me some reason

that is not repetitive of what you already submitted, I will

permit you to do that. Again, you have until Wednesday to do

so.

MR. CAMBRIA: Fair enough. I appreciate that, Your

Honor. I did notice something in your first amended

instruction, proposed instruction, that is in my opinion

contrary to the Ninth Circuit case, so we'll be supplying

those.

THE COURT: All right. Any other questions or

comments about the Ninth Circuit -- sorry, the Court's jury

instructions? And like I said, if you wish to make a record

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further, we'll do that on Friday August 4th on these particular

instructions, but do tell me which ones you intend to make a

record on so that I can be prepared to look at them as well.

Mr. Stone.

MR. STONE: Just a second, Your Honor. Your Honor, we

were just wondering for clarification what the preliminary

instructions would be, which would be read once the jury is

empaneled and before opening statement? I see in the packet,

Your Honor, you have preliminary instructions listed under

number one, so it would go from 1.1 to 1.16, would those be the

preliminary instructions that Your Honor is considering to read

to the jury at the beginning of the case?

THE COURT: Yes.

MR. STONE: Okay. Thank you.

THE COURT: All right. Let's -- we're going to take

some time to go through the jury questionnaires, so --

MR. LINCENBERG: Your Honor, I don't --

THE COURT: Can you speak into the microphone?

MR. LINCENBERG: Yes. Before the break we had -- I

had mentioned wanting to be heard on the Motion in Limine. I

am not sure -- I just wanted to remind the Court. I'm not sure

if the Court was intending to do that when we get back.

THE COURT: Is it your intention you want to make a

record on a statement with regard to the Court's order?

MR. LINCENBERG: Yes. It's really a discussion of

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clarification. I know that the Court indicates it's clear, but

that's really what I'd like to address.

THE COURT: You may do so.

MR. LINCENBERG: Thank you. So Your Honor, this

relates to a part of the Court's order which is at page 12 of

the MIL rulings, Document 1643. And the background to my

questions with regard to clarification is that the motion

addresses reference to advice of counsel in the opening

statement.

There seems to be some overlapping implications with

respect to a good faith defense, and it's in that context that

I ask the Court these questions because this case is going to

heavily be about the government claiming that all sorts of

communications put defendants on notice that they were engaged

in unlawful conduct, and there is going to be a back and forth

of all of the information that came in to defendants and what

notice that provided. And that's going to be for various

individuals some of whom are attorneys. This is laid out

extensively in Mr. Ferrer's multiple interviews.

So the question arises to me as I read through the

Court's ruling as to how it impacts the defense's ability in

opening statements to talk about what we anticipate and expect

Mr. Ferrer to testify to.

So for example, Judge Brnovich ruled that 15 or 19,

depending on how you break them up, various attorney-client

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communications that took place where we moved to dismiss the

case based on invasion of the privilege, Judge Brnovich said

that these are not attorney-client communications for a couple

reasons. One of them was waiver; second was the statement that

some of these may have been business communications and not

necessarily legal advice.

And the question is, are we allowed in opening to

advise jurors of what we expect Mr. Ferrer to testify to with

regard to these statements.

Again, these are statements that the law of the case

right now is either that those communications were waived, any

privilege was waived, or that they are not attorney-client

privilege. And I will give the Court a couple of particular

examples, and these go back to a couple of the examples that

were in the 19 that we pointed out in our motion.

So for example, one was Mr. Ferrer saying that

Attorney Don Moon frequently advised that the First Amendment

and mens rea requirements provided legal protection against

federal criminal prosecution. Now, it's part of the

government's overall theory, as I understand it from reading

through their extensive questioning of Mr. Ferrer, as being

delving into and even trying to come up that the communications

with Mr. Moon and others in fact shows guilt; that the full

picture is inculpatory, not exculpatory. That will be an area

of dispute.

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A second example is, for example, Mr. Ferrer stating

that Attorney Samuel Pheiffer prepared a legal memo advising it

was legal to remove content from classified ads as opposed to

adding content. There is a lot of witnesses, a lot of

discussion that the Court is going to hear during the trial

about this removing versus adding of content. And there is

discussion, for example, with an attorney named Nigam,

N-I-G-A-M, who was hired, a former sex crimes prosecutor who

was hired to go over ad moderation policies and adding and

subtracting. There is going to be a lot of testimony in that

regard.

And so forget about advice of counsel, just as it

relates to what we anticipate the evidence will show with

respect to our good faith, as well as getting into impeachment

of Mr. Ferrer, who is going to, for example, claim that I knew

and I believed it all along that this conduct was illegal, I am

paraphrasing, when his statements in his interviews suggest

differently, including getting into communications with

attorneys. So again, we're talking about attorney

communications here which the Court has ruled --

THE COURT: What is the document number --

MR. LINCENBERG: Of --

THE COURT: -- of the ruling?

MR. LINCENBERG: The ruling is document number, I have

it right here, I believe it's 1168. So for example, in

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Document 1168, just by way of example, at page 11 and 12 of the

Court's order, under the section called "Waiver," Judge

Brnovich specifically spoke about a legal memo by Attorney

Suskin in 2007. There's other examples I can go with the Court

in that regard. And so putting aside, and I'm not debating

right now the Court's ruling in terms of raising an advice of

counsel defense, but all of these communications are part of

the overall picture and evidence in this case of what put our

clients on notice one way or the other.

THE COURT: Are you finished?

MR. LINCENBERG: On that point. One or two other

points. So the second point, Your Honor, would be that with

regard to advice of counsel, and I am not arguing the ruling,

but with regard to advice of counsel, there's a bit of a

chicken and an egg issue here that leads to a little bit of

lack of clarity on my part. The Court suggests -- the Court

states that defendants must proffer evidence that would come in

to prove the four factors.

Now, the four factors essentially being that there was

disclosure of relevant information to the attorneys, the

attorneys had communications and so forth. Those factors the

Court is suggesting have to be proven up. And the case law,

certainly the Bisno case, suggests we are not entitled to an

advice of counsel jury instruction unless after the evidence

comes in there is sufficient basis for the Court to so find.

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And we're not asking right now for advice of counsel

instruction. It's premature. That's what the courts have

said, it would be premature, both the Holmes court and the

Bisno court provided that.

But in terms of opening statement, advising the jury

of what evidence will come in relating to those factors as they

may pertain seems to me it's something that the defense should

be able to do. I want to make sure that if the Court is

precluding the defense from stating that in openings, that we

abide by that if that's the ruling.

THE COURT: Are you done now?

MR. LINCENBERG: The third point, Your Honor, would be

that as part of the Court's ruling, the Court provided page 12,

beginning at line 21, that in this regard the defense would

need to provide, quote, complete disclosure with regard to the

advice they sought on an ad listed in Count 2 through 21. And

if they don't do so, they are not entitled to an instruction.

And then at page 13 the Court goes on to say that to

permit defendants to tell the jury that they broadly sought

advice on conduct unrelated to the SI allegations would present

irrelevant evidence. And the Court's opinion raises the

question of whether the Court is stating that evidence that

doesn't pertain to Counts 2 through 51 would be irrelevant.

THE COURT: That's not -- no, I'm only address the

Motion in Limine.

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MR. LINCENBERG: Right. So the Court writes in that

regard, beginning on page 12 at 21: For example, the Court

will permit defendants to argue an advice of counsel defense if

they show they provided complete disclosures about the advice

they sought on an ad listed in Counts 2 through 21.

And the Court goes on to say: If not, it's

irrelevant.

Now, this is the defense's position that evidence

unrelated to those 50 charged ads should be kept out of the

case. The government's position is there's a conspiracy count.

We can get into all sorts of ads. The Court, Your Honor and

Judge Brnovich, have ruled that the government can get into

other ads under the conspiracy count. And I am a little

confused because depending on how this is read, it could be

inconsistent with those prior rulings.

So those are the three points that I wanted to ask the

Court for clarity on.

THE COURT: I will start with the third point. There

is no inconsistency. I have not changed any prior ruling about

the scope of what the government can present in terms of the

conspiracy charge, what the conduct of one person was doing

relative to the other within the larger scope of the time span

that has already been set previously by the Court. But this

order was only specifically to putting forth an advice of

counsel statement either in opening or defense at this point,

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and I think the order speaks for itself and relies upon Ninth

Circuit precedent that requires a particularized showing.

So for example, if Don Moon says to Mr. Ferrer: Yeah,

the First Amendment covers it. Well, what's the question? And

the response is irrelevant if we don't know what the question

was that he was answering. Was the question related to the ad

in Counts, you know, 2 through 50, or is the question related

to some wholly different discussion about what Mr. Ferrer was

doing? We don't know that. So it's not relevant.

MR. LINCENBERG: I would proffer to the Court, and I

don't think there will be a dispute over this, that these

questions that the government is probing Mr. Moon on is dealing

with the practice of running ads, which don't say money for

sex, but in the government's view really are ads for that, and

that is -- the conversations they are referencing for the most

part are prior to Counts 2 through 51, but what is sauce for

the goose is sauce for the gander. If the government is going

to get into prior ads, then all of this relates to that.

And my question, I suppose, that first question I

asked Your Honor, can defense counsel in opening statements

advise the jurors what we anticipate that Carl Ferrer will say

in this regard?

THE COURT: Well, I think it's -- go ahead, Mr. Stone.

MR. STONE: Happy to respond, Your Honor.

THE COURT: Yes.

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MR. STONE: I will start with the third point from

Mr. Lincenberg as well. I think he left out the parentheses in

your order on page 12 which says: After the Court will permit

defendants to argue an advice of counsel defense if they show

they provided complete disclosures about the advice they sought

on an ad listed in Counts 2 through 51, or similar ads

described in the superseding indictment.

And that clearly, Your Honor, was an eye towards the

conspiracy. And the fact that Counts 2 through 51, according

to the United States and what we intend to prove at trial, were

ads for prostitution just like thousands and millions of other

ads on the websites as well. So I think that's easily

resolved.

The other issues that Mr. Lincenberg raised, and he's

raised these I think three or four times now to this court,

really apples and oranges. He cited to, I think the order,

which was Doc 1168. That was the order, and I may have gotten

that wrong. I thought that's what he said, but that was the

order on the outrageous government misconduct motion for

invading the attorney-client privilege through the interviews

of Carl Ferrer, and Judge Brnovich ruled that there wasn't an

invasion of the attorney-client privilege for a variety of

reasons.

And in talking about the advice of counsel, and

raising an advice of counsel defense, or in opening statement

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stating these defendants were told over and over again by

attorneys that their conduct was legal, that's advice of

counsel. And the only way that the Court and for the parties

to understand if that advice of counsel is appropriate is if

there's been a waiver of the attorney-client privilege and a

demonstration, as the Court has noted, that all relevant facts

were provided to the attorney. If not, if the relevant facts

weren't provided to the attorneys, then the advice of counsel

isn't worth the paper it's written on.

So comparing the order from 1168 to anything in the

advice of counsel defense I think isn't all that helpful, Your

Honor.

THE COURT: Well, not only that, but if you will look

closely at what the government's opposition is to the good

faith instruction at this juncture, it's because this is, and

all parties have raised it multiple times in multiple ways,

this is a specific intent, the trafficking -- Travel Act is a

specific intent crime. And circuit law, to my knowledge, says

you don't get a good faith instruction when there is a specific

intent crime alleged. I'll look more closely at it, but at

this point I am inclined not to permit you to give that.

So I mean, there certainly could be ways that you

could raise this in an opening argument that doesn't misstate

the law, and it's certainly, I think you go down a dangerous

path when you start to say: Well, he relied on this counsel or

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that counsel. And that will surely, I think the government

will raise an objection and the Court will then find itself

having to admonish counsel because of my order. So I would be

very careful about that.

MR. LINCENBERG: Your Honor, the government's case is

going to be heavily bringing out all of these different ways

that our clients were on notice that what they were doing was

illegal; NCMEC people saying it to them, Attorney General

saying it to them. The give and take with the Attorney

General, with NCMEC, all across the board is a discussion of

legal issues and what they can do and not do, and so forth.

And what the government is trying to do here is

suggest that these jurors should be told that the defendants

received notice A, B, C, D, E, F and G ways that things were

illegal and concealed from the jury the defendants heard A, B,

C, D, E, F and G that it wasn't illegal, whether through

reading court opinions or having communications with attorneys

and the like.

What the law and the Ninth Circuit on good faith is

that the Court doesn't need to specifically state good faith

because it's inherent in specific intent. In my experience --

the Court is certainly permitted to do so, particularly where

it's part of the theory of the defense, but in my experience

judges regularly and generally do so where it's part of the

defense.

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And so if a juror is going to be considering what was

Defendant John Doe's state of mind in this regard, that juror

should be able to hear whatever came in to John Doe. Frankly,

whether or not John Doe --

THE COURT: Well, that's evidence, though. We are

talking about opening statement, and I don't know why you want

to get into the specifics of evidence that hasn't already been

introduced. I guess that's the problem that I have.

MR. LINCENBERG: That's what the government is going

to do. That's what all counsel do in opening statements.

THE COURT: I will admonish them. This is what they

are going to intend to prove.

MR. LINCENBERG: Right.

THE COURT: And to the extent that they get into

specific evidence, if anyone gets into specific evidence that

has not yet been introduced, that's a very dangerous slippery

slope.

MR. LINCENBERG: Well, the government's entire opening

statement last time --

THE COURT: Well, again, I read those opening

statements, and I hope they are not repeated. I really do

think there could be a better way to do that. And one thing

that I will say is that in my experience, and all of you are

very experienced counsel, but when you watch these jurors, an

average juror's attention span is about 20 minutes. And so to

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the extent you're going to go on ad nauseam an hour, two hours

in these opening statements, you will have lost them.

And that's part of the concern when I reviewed these

opening statements. They are confusing, they offer promises

that will likely not be able to be kept, and it goes to your

standing with these jurors. So I just ask you to be cautious.

And so I'm not going to revisit my ruling on the advice of

counsel Motion in Limine. I'm going to reserve because we are

here talking now about your proposed good faith instruction. I

have not fully ruled on that. I have to wait for the evidence

to unfold, and maybe I will end up giving it at the end. I

don't know. But be very cautious in your opening statements.

I'm not going to advise counsel on how to make them. You all

know how to make them. Just be very careful about making

promises or statements that you can't keep.

So let's move on. Thank you.

MR. LINCENBERG: Thank you, Your Honor.

THE COURT: Let's move on now to the jury

questionnaires, and --

MR. ECKSTEIN: Your Honor, before we leave that

subject, and I will be as brief as I can be, I just want to

make sure I understand, 'cause this bears both on opening

statements and what anticipated evidence would be. This would

be with respect to references to section 230, reference to

lawyer advice, not necessarily the advice of counsel, and

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reference to prior litigation in which Backpage was involved.

Is the Court's view that none of those issues are potentially

relevant to the jury's consideration of the allegation in the

superseding indictment?

THE COURT: That's a very broad question. I'm

sticking to what my order says. I don't want counsel to come

up here and compare this case to some other case that was a

civil proceeding or a forfeiture proceeding. I don't want

counsel to come in and compare it to a section 230 prosecution.

If the precise types of allegations under Title 18 were not in

those previous decisions, don't mention it because it's

irrelevant.

MR. ECKSTEIN: Let me ask it a little differently. If

our argument ultimately would be that those are relevant to the

question of intent to individual defendant's subjective

understanding of what the law was that had First Amendment

implications or mens rea implications that are related to but

not necessarily subsumed within section 230, so it ultimately,

I think, goes to the intent that obviously the government needs

to prove beyond a reasonable doubt. And I understand there are

limits to that. There are parts of those cases or parts of

those discussions that don't bear on the First Amendment or

mental state that would be relevant here, but that there

certainly are parts of them that bear directly on intent.

THE COURT: Well, my ruling is what my ruling is and

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you can make that decision.

MR. ECKSTEIN: Okay.

THE COURT: All right. Let's move to the jury

questions. So I have reviewed the parties' stipulated strikes

for hardship. I'm going to take those up first. I'll move to

the -- primarily I think there were mostly defendants' requests

to review for cause. And let me just ask your preference of

how I do this because normally in a trial that is not this

large I will give the counsel, or the Court will have an

opportunity to make a record as to the specific juror and why

they are being struck for hardship. I'm only focusing on

hardship at this point. I don't know if it's a more

resourceful way to do this in terms of what I identified as the

broad categories of hardship. So I can numerically go down the

line or if you wish to make, have me make a particular record

with regard to each individual juror questionnaire. Does the

government have a preference?

MS. PERLMETER: Your Honor, we don't have a

preference, so proceed as you prefer.

THE COURT: Defense counsel, anyone wish to be heard?

MR. LINCENBERG: May I have a moment?

THE COURT: Yes.

MR. LINCENBERG: Your Honor, I just quickly consulted

with folks. I haven't spoken to everybody, so speak up if I

didn't. We would like a record with regard to each individual

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juror with regard to hardship or cause. Obviously at the

Court's discretion, it can happen today or with the juror in

the room. We would make our argument as to why some of them

should be struck today, but that would be our preference.

THE COURT: Well, I guess let me clarify this, and

maybe you'll have a different answer for me. You have

submitted stipulated hardship removals. So as to those

stipulated hardship removals, I intended just to rattle off the

number of the juror.

MR. LINCENBERG: Excuse me, that's fine. We agree to

that.

THE COURT: And so that's what I'm going to do. To

the extent there are disagreements, and I identified some that

I think should be removed, I will let you comment on them, but

I think that's the more expeditious way to proceed.

Is there an objection? All right. There is no

objection.

So let me start with Juror No. 8, because neither

party stipulated, I noticed that this juror is out of country

in September with a ticketed flight. So I'm going to exercise

my discretion to remove for hardship.

The parties have stipulated to Jurors 9, 13, 14, 15,

18, 21, 39, 40, 41, 42.

I am exercising my discretion to remove 43. This is a

financial hardship.

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Number 52 is a stipulation.

Number 62.

Defense requests and the Court will permit hardship

removal for 66. This is a person with child age children, and

they reside in Mesa and she has to take them to and from

school.

Number 67, 86, 94.

The Court will remove 96 as a hardship. He's a sole

financial provider. Also a teacher.

Number 98, 100.

The Court will remove 101 for hardship. This is a

person who has a vacation planned for the duration of the trial

or during the trial. Financial hardship.

106 was not selected by either party, but I noted at

least in my notes that this individual has a doctor's note for

a chronic medical condition.

108 I am also going to strike. This is a person that

sort of has a unique position in the job, is an engineer and

has some sort of responsibility and skill that is not able to

be duplicated.

112, I am going to exercise my discretion to remove

for hardship. This juror indicate being pregnant and having

issues related to pregnancy.

116. Although -- let me have counsel look at 114

because I have a note here that -- there is a doctor's note

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associated with Juror 114, and that may be an error, but I did

make a notation of that.

116.

I also am going to exercise my discretion to remove

for hardship 131. This individual is a sole earner and also

has a newborn baby at home and is working so the wife can

attend to the new baby.

138, this individual I'm also exercising my discretion

to remove because this person is the sole financial provider

and also the work requires traveling two times every month.

MR. CAMBRIA: Which one was that, Your Honor?

THE COURT: 138.

MR. CAMBRIA: What was 131?

THE COURT: This is the individual who is a sole

provider and has a newborn baby at home.

MR. CAMBRIA: You're excusing her?

THE COURT: Yes.

MS. PERLMETER: Your Honor, real quick, going back to

116, I have that marked as a stipulated for hardship, did the

Court have that as well?

THE COURT: Yes.

MR. CAMBRIA: She excused her.

THE COURT: Did I say 138?

MS. PERLMETER: Yes.

THE COURT: 144, please look at 144. I have a

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notation that this individual has a financial issue as well as

medical issues.

MR. LINCENBERG: I believe there was a stipulation for

cause dismissal on 144.

THE COURT: Is that correct?

MS. PERLMETER: Yes, it was.

THE COURT: 144 is removed for hardship.

145 I am exercising my discretion. This is a person

who is fearful of losing a job as a pharmacist at Walgreen's.

Okay. 150.

151, I am going to remove for hardship. This

individual has his son's baseball tournament in Florida during

the time of the trial, and works off of commission and so it's

a financial hardship.

Stipulated 161.

169 I also think should be removed at the Court's

discretion. This individual has ongoing physical therapy.

Actually, he's working towards a physical therapist license and

has classes scheduled during that time period, and is also

unemployed and actively seeking work.

I identified 173 as having ticketed. November is real

travel. So I will remove 173 for hardship.

178 as well, this individual has October plans to go

to Lima, and then plans to go to Mexico during the trial

period, so this person is removed for hardship.

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185, primarily for the medical issues, inability to

sit through long periods of time. Also financial,

self-employed.

189, I'm also going to remove because I note that this

person has financial and health issues.

200.

204 has prepaid tripe to Kauai September through early

October. On second thought, let me look at the trial schedule.

Yes, hardship removal for 204.

219, suffers from PTSD, difficulty concentrating.

234, financial hardship, has to take kids or care for

kids before and after school.

236, that I've identified as indicating having issues

of anxiety which causes lack of focus.

242, 243, 254.

261, this individual has one car in the family, can't

drive, has financial hardship issues as well.

263, 279.

Let's go back to 270. I had a notation here that this

individual indicates financial hardship, attends night classes

from 4:30 to, I believe it was 9:00 o'clock, in an M.S.

program, and I think that would be too much to ask to sit

through a trial and go to class.

Stipulations as to 285, 291, 299, 310.

MS. PERLMETER: Did Your Honor say 279 as a

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stipulation?

THE COURT: 279.

313, the Court notes this individual has, is

self-employed, sole income earner, has a work conference in

September that they must attend.

328, feared for getting a possible demotion by being

absent from employment so long.

345. And as to 345, this individual is also a sole

income earner and submitted a leave request from jury service

based on financial hardship.

347, the Court will also remove for hardship primarily

due to the migraines and vision issues suffered by this person.

351.

353 the Court will remove. I note, and I think

defense has this as a hardship as well. It's not a

stipulation, but I understood this person to be undergoing some

sort of medical care for prostate cancer.

354.

361, the Court will remove because this individual

indicated just starting a new job and having had surgery in

July with some recuperation period necessary.

388, it's a stipulation.

390, the Court will remove for hardship. There's a

financial and then a medical reason. Person has a bad back and

can't sit for more than 15, 20 minutes at a time.

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391 is a stipulation.

393.

396 are all, oh, and 398 all stipulated removals.

404, the Court will remove. This is a person who

lives in Yuma, has prolonged sitting pain.

405, 411, 418, 420, 421.

The Court will exercise its discretion as to 435 and

436. 435 had a recent medical diagnosis and needs to attend to

that, and 436 starts a new job in August.

437 is a stipulated removal, as is 455.

465, 478, 479, 481, 501, 508, 516, 521, 529, 531, 536,

537, 548, 555, 564, 573, 578, 585, 592, 599, 605, 608, 619.

The government requests and the Court also exercises

its discretion to remove 627. This juror has a planned trip to

Chicago in late October.

642, 646, 650, 653, 665.

The Court exercises its discretion and the government

points out that 672 is recuperating from surgery and has to

take frequent restroom breaks.

681, 684.

685, while the Court could bring this person in for

voir dire, indicates that English is the second language, a

financial hardship, and answered with respect to question 64,

which I believe are the terms that may be used in the trial as

being very uncomfortable hearing those terms. So I think

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that's sufficient cause to remove for hardship at least with

regard to the financial and potential inability to understand

some of the proceeding.

695, 703, 704, 718, 746, 750, 752, 754, 757.

MS. PERLMETER: Your Honor, is the Court using

discretion as to 754?

THE COURT: Yes, and thank you for calling my

attention to that. This individual is actually employed with

the U.S. border patrol and is currently stationed in the Yuma

sector, and so I think that's sufficient hardship, so 754 is

removed.

757, 762.

767 indicates -- well, actually has a note from their

employer regarding prolonged absence, so the Court will

exercise discretion and I think defense noted hardship as well,

so --

MR. FEDER: What number, Judge?

THE COURT: 767. Who is speaking?

MR. FEDER: Bruce Feder.

THE COURT: Restate the question or statement.

MR. FEDER: On 763, given what the Court's rulings

have been, he says he is unemployed, looking for work.

THE COURT: I did note that, and I wasn't -- so there

were a couple of individuals who were unemployed and they

were -- they indicated seeking employment. Some indicated

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unemployed but also working part-time at something, or being

unemployed but attending classes. So I didn't know where this

actually fell in. I just figured we can bring the individual

in and kind of probe a little further because if the person

doesn't have prospects of being employed, I don't know, unless

somebody has a hard feeling one way or the other.

Mr. Feder, you raised it, do you want to --

MR. FEDER: I'm just trying to go by what I perceive

is the Court's methodology here and it seemed he fit into that

category.

THE COURT: Any objection to removing 763 for

hardship?

MS. PERLMETER: Yes, Your Honor. We think she should

come in and be questioned.

THE COURT: All right. So we will leave 763 in.

767 is the note from the employer regarding absence.

770, defense indicates hardship. The Court finds this

individual apparently is in a use or lose leave category and

intended to use or lose the leave in the fall, and so I'm

inclined to remove 770.

771.

772 indicates having issues, periodic vertigo and it

interfering with walking.

787, 793.

806, the Court exercises its discretion to remove for

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hardship. The person has -- I think defense has also indicated

hardship. The person has indicated autoimmune issues and

fatigue.

809.

821, this individual indicates in the process of

planning a honeymoon in September and indicates service would

interfere with that, and impact employment.

MS. PERLMETER: No objection for 821.

THE COURT: Is there an objection from defense?

MR. KESSLER: This is Eric Kessler, no.

THE COURT: 838, 845, 846, 847.

857, I note that this individual indicates having

hearing issues and has a trip to Los Angeles planned in

September, so I will remove for hardship.

MR. FEDER: Which one?

THE COURT: 857.

MS. PERLMETER: Your Honor, we would object and we ask

the Court to consider bringing him in for questioning. We note

that one of his travel days is on a Friday, and perhaps if he's

going to L.A. maybe he is not flying. Perhaps he can leave in

the afternoon. We thought it might be worthwhile to probe that

a little bit.

As to the hearing issue, perhaps the Court can

accommodate with headphones similar to when an individual needs

an interpreter or is also hard of hearing.

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THE COURT: Any comment from defense?

MR. FEDER: 857?

THE COURT: 857.

MR. FEDER: My notes say: Paid trip, hearing

problems.

THE COURT: I think I'm going to remove for hardship.

I think it's unfair to have them try to fit their travel

schedule around the court's.

MR. KESSLER: Your Honor, Eric Kessler. Can we move

back one to 849? We show that person as being a sole provider.

THE COURT: I do have that notation, but I think it

might -- 849?

MR. KESSLER: Yes.

THE COURT: Is there an objection?

MR. BERRY: One second, Your Honor.

MS. PERLMETER: Your Honor, we would object. We ask

she be brought in for further questioning. The medical issue

is perhaps something that can be controlled with medication and

she could provide more information about her other concerns.

THE COURT: We will keep 849.

859.

I note 862 has child care issues with five and

six-year-old. Remove 862 for hardship.

872, 875, 877, 887, 893, 916, 927, 931, 936, 940, 950,

954, 955, 956, 960, 1010.

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MR. PANCHAPAKESAN: Your Honor, this is Gopi

Panchapakesan on behalf of Mr. Brunst. In my notes I have 981

and 990 as sole providers. So 981 is an essential worker in a

nonprofit, sole provider. And 990 says they are a new manager

at a bank and they are required to be there for daily

oversight.

THE COURT: Is there an objection first to 981? 981,

government?

MS. PERLMETER: No, Your Honor.

THE COURT: 981 is removed for hardship.

990.

MS. PERLMETER: No objection to 990.

THE COURT: 1010.

MR. PANCHAPAKESAN: Your Honor, I'm sorry, 999, this

individual says they work with a specific special needs student

and that they are integrating that student into school during

the time of the trial. That's 999.

THE COURT: We can probe that further. I've had

jurors have that same sort of comment previously and then you

probe a little further and it turns out that there is

additional support, and so we'll probe that further with 999.

1010, 1014.

I noted 1023 has child care and transportation issues,

and so I will remove 1023 for hardship.

1036, 1038, 1057, 1058.

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1066, the defense has noted and the Court also

indicates that here this individual is going to Lincoln,

Nebraska in September. So we'll remove 1066 for hardship.

1067, 1072, 1076, 1078.

1084, the Court will remove. The person is

self-employed, indicates a financial concern, feels that the

amount of loss will impact his or her career.

1088, 1089.

11 -- excuse me, yes, 1101.

MR. LINCENBERG: Your Honor, this is Gary Lincenberg.

On 1097, the juror indicates that she is breastfeeding a

seven-month-old that would cause her hardship, caretaker of

seven-month-old.

THE COURT: Is there an objection or a reason the

government didn't stipulate?

MS. PERLMETER: She -- there seems to be some

inconsistency. She claims to be the sole provider of income.

Later on she also indicates that her husband is a firefighter.

Perhaps she has someone that can assist with child care. And

as for nursing a baby, if she needs to pump, then perhaps the

Court can give her breaks so that she can accomplish that.

MR. LINCENBERG: What she writes is sole caretaker of

infant. My husband works for the City of Phoenix and is gone

24, 48, 72 hours at a time. He's a firefighter and leaving me

as sole caretaker of the infant that she's breastfeeding.

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THE COURT: 1097?

MR. LINCENBERG: Yes.

THE COURT: The Court will remove for hardship.

1101, the Court will remove, travel to San Diego in

October, ticketed trip.

1105, the Court will remove, financial issues, and

this person provides home health care for others.

1111.

MR. LINCENBERG: Your Honor, if I may, on 1106, this

person says: I drop off and pick up each of my three children

in school everyday. My wife is a school teacher, so there is

no way she can substitute for me. And then that was it.

That's with regard to 1106.

THE COURT: Any objection?

MS. PERLMETER: We would object, Your Honor. These --

we saw that, and we see that the children are also older. They

are nine, 11 and 14. Perhaps there are alternatives. Perhaps

a bus is available or aftercare, so that perhaps there are

alternatives that they could consider.

THE COURT: I'm going to remove for hardship. That's

1106.

1111.

MR. LINCENBERG: Your Honor, on Exhibit 1110, the

prospective juror notes three trips, notes that the tickets are

not purchased because the person is driving, but that the

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person is in Colorado August 18th through 21 and Missouri

September 16th through 24; Utah, October 20th to 23.

THE COURT: I don't know how I missed that.

Government, any objection?

MS. PERLMETER: I think the information is because

they don't have tickets purchased.

THE COURT: Well, I am going to remove for hardship.

1111.

1121, the Court will remove. This individual

indicates going to Nashville in September, is concerned about

having to travel from Yuma.

1128, 1141, 1152, 1170.

MR. LINCENBERG: Your Honor, if I may, sorry for not

keeping up with the Court. On 1148 I raised this realizing

that it may be a close call, but it seemed it was a hardship.

This person notes: I am over 70 years old. I do not have the

stamina or physical strength to travel downtown and spend all

day for three or four days in a row for 12 weeks.

THE COURT: I missed that somehow. Government, any

objection?

MS. PERLMETER: No, Your Honor.

THE COURT: 1148 is removed.

1152, 1170, 1189 --

MR. LINCENBERG: I am sorry, go ahead, Your Honor.

THE COURT: 1189, 1196.

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1199, I will exercise my discretion to remove for

hardship. This juror also had interesting responses to

questions 53 and 54.

1205, 1209.

The Court will remove 1230 for hardship. This is a

student, research assistant and working in laboratory during

the time of trial.

MR. EISENBERG: Your Honor, excuse me,

David Eisenberg.

THE COURT: Yes.

MR. EISENBERG: Your Honor, 1210 is a juror that we

noted that has a hardship, not paid during jury service, is

listed as a sole provider.

THE COURT: You know, it is one of these issues that

courts struggle with this financial burden. We want a good

cross-section of jurors from all economic levels, education

levels, and so at some point it might be useful to bring some

of these individuals to bring in to probe it a little further.

So at this point I'm inclined to leave 1210 in.

I mentioned 1230, as the Court noted that this

individual is a student. Will remove for hardship.

MR. EISENBERG: Your Honor, again, David Eisenberg. I

noticed in, let's see, 1221, this is listed as a sole provider

of income, the only special ed teacher in her school. She

emphasizes that in paragraph 71. And then she says she has

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student obligations, and I think what she's referring to is

teaching obligations.

THE COURT: Government.

MS. PERLMETER: We object to the release of this

juror. We ask that she come in, be subject to questioning to

see if there are any alternatives at the school. It's, you

know, a hardship on the school.

THE COURT: We will bring her in.

1240, the Court will remove for financial hardship.

1249.

1258 -- excuse me, 1259.

1261, 1270, 1273.

The Court notes 1278 is going to Dallas from

September 11th through the 18th, paying for one of these

individuals. They are taking them to college for the first

time.

MR. EISENBERG: May we go back, Your Honor? Sorry to

interrupt.

THE COURT: 1278.

MR. EISENBERG: Thank you. But 1264, I don't think

the Court mentioned that. This is, again, a sole provider for

a household of three. Hard of hearing and hearing loss. It

says: I don't hear well. The length of the service would

cause a financial burden. That's question 71.

THE COURT: Objection.

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MS. PERLMETER: We object. Our notes indicate this

juror is married, so perhaps there is an alternative form of

income.

THE COURT: I think they indicate a sole provider,

though.

MS. PERLMETER: Is there a reason why the partner or

spouse cannot contribute to the household, or if this person

were to serve on the jury?

MR. EISENBERG: Your Honor, that presumes that the

juror potential juror is not being forthcoming in the

questionnaires.

THE COURT: Well, I tend to agree, but beyond that I'm

not -- I guess I'm concerned about having the Court sort of

infer that the person's spouse should be working if they are

not, you know, and so I'm going to remove for hardship 1264.

I have lost my place.

MR. EISENBERG: 1283, Your Honor.

THE COURT: 1283 notes deafness.

MS. PERLMETER: No objection.

THE COURT: 1287, 1292.

1298, the Court will remove. This person is a sole

provider, but also going through chemotherapy treatments.

MS. PERLMETER: 1296?

MR. EISENBERG: 1296.

THE COURT: 1296. I'm sorry, 1296.

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1292 is stipulated.

MS. PERLMETER: Yes.

THE COURT: 1300, 1306, 1308, 1311, 1320, 1321, 1322,

1339, 1346, 1354, 1358, 1368, 1379, 1394, 1396.

1400, this juror indicates that they have an

eight-year-old grandson that they care for.

MR. EISENBERG: May we go back, Your Honor, to 1397?

This is David Eisenberg.

THE COURT: Why don't we do this, let's go through all

the stipulated ones and then I can let you go backwards, but

we'll know that we're going to start with, which one?

MR. EISENBERG: 1397.

THE COURT: 1397. So 1400 is removed.

MS. PERLMETER: What?

THE COURT: 1401.

MS. PERLMETER: Did the Court say something about 1397

or just come back to it?

THE COURT: No, we're going to come back to that. Let

me finish with all of the stipulated strikes.

1410, 1434, 1435, 1436, 1447, 1448, 1458, 1487, 1506,

1522, 1524, 1533, 1536, 1543, 1561, 1579, 1583, 1586, 1595,

1598, 1600, 1612, 1624, 1637, 1650, 1652, 1658, 1659, 1673,

1697, 1740.

MR. PANCHAPAKESAN: I'm sorry, Your Honor, I believe

1688 was a stipulated cause; is that right? This is Gopi

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Panchapakesan.

THE COURT: We are on hardships. Okay. Let me --

what was the last one?

MS. PERLMETER: The last one was 1740.

THE COURT: 1740, 1741, 1750, 1756.

MS. PERLMETER: Is that a Court discretion strike,

Your Honor? I don't see either party marked it.

THE COURT: Sorry, did I say 1758?

MS. PERLMETER: We heard you say 1756.

THE COURT: Oh, I misspoke. So we have 1750, 1758,

1778, 1791, 1796, 1805, 1806, 1811, 1829, 1839, 1865.

These are late submissions and so I have them out of

order. Juror No. 414 and 1833. Going -- sorry, I can't hear

you.

MR. FEDER: I have Juror No. 530.

MS. PERLMETER: Yes, we stipulated to that one.

THE COURT: This must have been a late submission

because I don't have -- I have 531. I don't have 530.

MS. PERLMETER: It was a late submission.

THE COURT: Okay. So that was a stipulated hardship?

Okay. We'll note that 503.

MS. PERLMETER: 530.

THE COURT: I am sorry, let me re-note that again.

All right. So it is about four after 4:00 o'clock. Why don't

you take about a ten-minute break. You can raise -- if there

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are particular issues that you wish to raise with regard to the

hardship removals, you may raise that and see if you can get an

agreement from either side or if you want to discuss it during

that break period, and then we will move to the cause.

And just so you know, removing some of the hardships

actually removed some of your cause issues as well. So we'll

stand in about a ten-minute recess and then we can reconvene.

I intend to go as far as I can, until about a quarter to 5:00

o'clock. As I mentioned, if we need to build in additional

time to -- well, we have to complete this today, I should say.

Yeah. I see Liliana looking at me at the side of her eye.

Yes, we can do that.

All right. All rise.

(Recess was taken at 4:06 p.m.)

(Proceedings reconvened at 4:24 p.m.)

THE COURT: All right. Please be seated. Okay. So

it is imperative that we get through this portion so that jury

admin office can release those individuals who don't have to

appear, so let's plow ahead. We might actually go just beyond

5:00 o'clock, not too much farther beyond 5:00 o'clock.

So we left off with Mr. Eisenberg wanted to raise an

issue with regard to -- I think we started off with Juror 1397

with regard to hardship, and I asked the government to be

attentive because I'm going to have you place on the record

what -- whether or not you object. Did you say one -- sorry,

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1397, Mr. Eisenberg?

MR. EISENBERG: That's correct. And during the

break --

THE COURT: Speak in the microphone.

MR. EISENBERG: During the break I discussed the

potential strikes with Ms. Perlmeter and other members of the

government. The government is going to object to 1397. My

position on it is that potential juror says, in paragraph one:

I work at a job that requires me to work 40 to 50 hours a week,

and so if I get selected I will be out of work with little or

no pay. That's similar to some of the other jurors who had

problems with working and not getting paid if they did jury

service.

So that's the reason why I think he, he or she ought

to be excused.

THE COURT: 1397, and you have an objection?

MS. PERLMETER: We do. It seems like he works for a

big company like a large chain store, and we would like to find

out if the company would reimburse for jury duty.

THE COURT: We will bring in 1397. Any others from

any other counsel?

MS. LAWSON: If we can go backwards.

THE COURT: Who is speaking?

MS. LAWSON: This is Sarah Lawson. Mr. Larkin. So on

Juror 512, 5-1-2, the juror indicated that she is in the

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process of a domestic adoption, and it sounds like if she were

to serve she would not be able to adopt the baby during the

time of the trial.

THE COURT: Did you say 512?

MS. LAWSON: 5-1-2.

THE COURT: Yes. I did indicate that this individual

also suffers from low back pain. Is that the right one? No,

sorry, I have two. I had my notes in the wrong place. I also

have that the person is going to Indiana October the 1st

through October the 8th.

MS. PERLMETER: I think that's our dark week.

THE COURT: Sorry.

MS. PERLMETER: I believe that week is our dark week.

We are off from trial October 2nd through the 9th.

THE COURT: That's correct. I'm going to remove for

hardship with regard to the adoption process.

MS. PERLMETER: Can we be heard?

THE COURT: You may.

MS. PERLMETER: We would ask the Court allow her to

come in to be questioned. We don't want to stand in the way of

an adoption obviously, but we would like more information.

When is the birth mother scheduled to give birth? If it's far

out along the way and the trial will be finished before then,

there is a possibility she could sit. Obviously if the birth

is, you know, next week, perhaps the situation would be

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different.

THE COURT: What is the precise statement of Juror

512?

MS. PERLMETER: "My husband and I are in the process

of domestic adoption. We could be called at any moment for a

child being born, and would have to be available to get them

immediately in any state. This has been a long and expensive

process for us. We would hate to miss out on an opportunity to

receive a child."

So it sounds like there is no identified birth mom and

that there is a possibility of one.

MS. LAWSON: Also on questioning -- sorry.

THE COURT: I don't know who is speaking and someone

needs to come to the microphone.

MS. LAWSON: On question 71 -- this is Sarah Lawson.

On question 71, the juror also indicated that she has financial

hardship.

THE COURT: All right. 512 is removed for hardship.

Any others?

MS. LAWSON: 514.

THE COURT: Yes. This is the individual who suffers

low back pain --

MS. LAWSON: That's correct.

THE COURT: -- and uses a walker.

MS. LAWSON: That's right.

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THE COURT: 514 is removed for hardship.

Any other?

MS. LAWSON: 577. This juror is unemployed and

actively looking for work. And she indicated that driving to

court will require funds that she does not have.

THE COURT: Is there an objection?

MS. PERLMETER: Yes, Your Honor, there is an

objection. We would ask her to come in and talk about the

situation, see if the daily jury fee could assist during this

time.

THE COURT: I'm going to overrule and remove for

hardship.

MS. LAWSON: 1289, which is one of the late jurors, we

have a hardship strike on that one as well. So Juror 1289 is

self-employed and only paid if working, and is also the sole

provider of income for his household. And it looks like we

struck Juror 313 for the exact same reason.

THE COURT: I can't hear you.

MS. PERLMETER: This is Peggy Perlmeter. 1289 was not

one proposed to me during the break, so if I could have two

seconds to look this juror up.

No objection to 1289.

THE COURT: 1289 is removed.

MS. LAWSON: Finally, I want to note that the

government agreed to strike 403 for financial hardship.

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MS. PERLMETER: That's correct.

THE COURT: 403?

MS. LAWSON: That's correct.

THE COURT: Any others?

MR. EISENBERG: Sorry I didn't bring this up before.

This is David Eisenberg. 1509, this is a man who has paid

vacation planned during the trial dates. He says: I am

epileptic and at times experience grand mal.

THE COURT: I have that as well.

MS. PERLMETER: We stipulated to 1509.

THE COURT: 1509.

MS. PERLMETER: Yes. During the break I told

Mr. Eisenberg no problem.

THE COURT: All right. 1509 is removed for hardship.

Any others for hardship?

MS. PERLMETER: I have not one for hardship, but I

have a question about Juror No. 8. The Court started -- this

is the very first juror. The Court struck this juror on the

Court's discretion based on Juror No. 8 having a flight,

however, I didn't have that in my notes. So when I pulled up

Juror No. 8's questionnaire on the break I didn't see

information about this juror having a preplanned trip, so I was

wondering if the Court might be willing to reconsider. This

juror doesn't indicate a hardship otherwise.

MR. CAMBRIA: Your Honor, you asked for any others on

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hardship --

THE COURT: Wait one moment.

MR. CAMBRIA: Okay. Sure.

THE COURT: Well, apparently I am mistaken. Juror No.

8 indicates no, no hardship. We will put Juror No. 8 back in

the queue.

MS. PERLMETER: Thank you.

MR. FEDER: Did you bring up 114 when we first

started?

THE COURT: I noted that in my notes. 114 had a

doctor's note.

MR. FEDER: Right.

THE COURT: What was the question?

MR. FEDER: You mentioned it, but we never talked

about it. He has a doctor's note saying he or she is having

mental --

THE COURT: Is there an objection by the government?

MS. PERLMETER: No.

THE COURT: 114 is removed. Any others for hardship?

MS. BERTRAND: This is Joye Bertrand. Starting at

1580, like a couple of the other jurors, she is currently

breastfeeding a one-year-old. I believe she's also caretaker

for another child. Her husband works.

THE COURT: I do have that note, seven-year-old child

in school and also breastfeeding.

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MS. BERTRAND: Yes, ma'am.

MR. BERRY: A lot of people have to drop off their

kids to school, of course. And as Ms. Perlmeter argued

earlier, a woman breastfeeding, certainly they can still work

during the day. They can take breaks. We can accommodate that

issue. Just like if somebody needs to stand up periodically to

take back breaks or they have other issues like that, we can

certainly accommodate that.

THE COURT: I am going to remove 1580 for hardship.

MS. BERTRAND: Next one, Your Honor, is 1596, 1-5-9-6.

This -- the person sounds like they are in some type of kidney

disease and her husband has cancer. I think this is quite

burdensome for her.

THE COURT: I did note that this person has various

medical appointments that are necessary to attend, 1596.

MS. PERLMETER: Your Honor, we'd ask for her to come

in, or him, him or her to come in. It's only at the very end

that this juror mentions that they have diabetes and one

kidney, and then that the spouse has appointments along with

the juror, but they don't list dates. We don't know the

frequency of the appointments. Perhaps we should gather some

more information about her, him or her.

THE COURT: Well, I'm assuming they are answering the

questions relative to the Court's calendar, the trial schedule.

So those are listed reasons, and so I'm going to remove for

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hardship.

MS. BERTRAND: Thank you, Your Honor. The next one I

have is 1633, 1-6-3-3, and this person notes a good deal of

anxiety about this matter, and says at one point she just left

a job that almost killed her. Sounded like this would be quite

overwhelming for her. She is unemployed, actively looking for

work, and she mentions travel September 19th through 26;

medical surgery appointments, August 16th, and is the mother to

a nine-year-old daughter.

THE COURT: 1633?

MS. BERTRAND: Yes, ma'am.

THE COURT: Is there an objection?

MS. PERLMETER: I'm sorry, these were not proposed to

us during the break, so give us two seconds to pull up our

info. No objection.

THE COURT: 1633 is removed for hardship.

MS. BERTRAND: 1642. 1642 represents that they are a

student with classes on Tuesday. At the end of the

questionnaire it says: Quite anxiety producing for him to miss

class and then to have to get caught up.

THE COURT: I have that down as well.

MS. PERLMETER: No objection.

MS. BERTRAND: Next one --

THE COURT: 1642 is removed for hardship.

MS. BERTRAND: Sorry about that. 1645, husband is

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a --

THE COURT: Which is that?

MS. BERTRAND: Pardon?

THE COURT: 16 what?

MS. BERTRAND: 1645.

THE COURT: Okay.

MS. BERTRAND: They live out in Pinal County. Her

husband is a farmer and she is the caretaker for the children,

in addition to what it sounds like working to supplement the

family's income. She writes: My husband is a self-employed

farmer and does not have a steady income. We are dependent on

my income for basic needs, housing, food, utilities, et cetera,

throughout the year.

THE COURT: Is there an objection?

MS. PERLMETER: We object to the release of her. We

understand it's a hard line that we have to consider with child

care and working. This person is married. The partner does

work, and perhaps there is an alternative for child care if

they are brought in and questioned and told about how important

jury service is to our country.

THE COURT: I think they were told that in the

questionnaire, and so I'm going to remove for hardship.

MS. BERTRAND: Thank you.

Your Honor, next one I have is 1681. They are sole

provider and also a student with a class schedule.

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THE COURT: I think I have this one as well indicating

some form of anxiety.

MS. BERTRAND: Yes, I saw that too.

Ms. Perlmeter.

MS. PERLMETER: No objection.

THE COURT: 1681 is removed.

MS. BERTRAND: Thank you. Next one is 1683, reports

self-employed. Does not have an income.

THE COURT: Any objection, Ms. Perlmeter?

MS. PERLMETER: No objection.

THE COURT: 1683 is removed.

MS. BERTRAND: Thank you. Next is 1710, 1-7-1-0,

graduate student with a class schedule.

MS. PERLMETER: What number?

THE COURT: 1710. I think the there really wasn't an

indication of what the class schedule was.

MS. BERTRAND: Uh-huh. Okay.

THE COURT: We will bring that person in and probe

further.

MS. BERTRAND: Next one, 1738, purports to be a sole

provider.

THE COURT: This individual apparently provides some

sort of a clinical treatment to others and is afraid that the

unavailability will disrupt the clients. I'm inclined to

remove for hardship. Any objection?

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MS. PERLMETER: No.

THE COURT: 1738 is removed.

MS. BERTRAND: Thank you. Next one is 1766, sole

provider.

THE COURT: This is a 74-year-old I have down.

MS. BERTRAND: And also is pending review at the

Veterans Administration for Agent Orange and awaiting medical

appointments with military doctors; takes a lot of medication.

THE COURT: Any objection?

MS. PERLMETER: No.

THE COURT: There is an indication of digestive health

issues.

MS. PERLMETER: We had no objection to 1766.

THE COURT: 1766 is removed.

MS. BERTRAND: Thank you. Next one, 1771, sole

provider of income for household.

THE COURT: Is this a person that would have to take a

taxi?

MS. BERTRAND: Yes. Yes.

THE COURT: Any objection?

MS. PERLMETER: No, Your Honor.

MS. BERTRAND: 1772.

MS. PERLMETER: No, that was 1771.

MS. BERTRAND: Right. Moving to 1772.

THE COURT: 1771 is removed.

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1772.

MS. BERTRAND: Yes, ma'am. Sole provider of income

for household, 1772.

THE COURT: Not much added there, so we'll keep that

individual.

MS. BERTRAND: 1807, sole provider. Does some have

some plan travel, but --

THE REPORTER: I didn't hear.

MS. BERTRAND: That's 'cause I didn't say it well.

Sole provider of income, and no planned travel, but two weekend

travel that kind of bumpers on our trial dates, but sole

provider is the primary concern.

THE COURT: We will bring that juror in and probe

further.

MS. BERTRAND: 1813, 1813.

THE COURT: And --

MS. BERTRAND: Job does pay for jury duty, but not for

that long of trial, and basically reporting financial hardship.

MS. PERLMETER: Actually says she is not sure. It's

actually they are not likely to pay for this long of a trial,

so we ask that she find out and perhaps bring that information

in.

THE COURT: We'll bring that juror in.

MS. BERTRAND: 1838.

THE COURT: I did note that this individual is

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expecting a grandchild in August, and I think in Louisiana, and

indicated a financial hardship.

MS. BERTRAND: Correct. That was my understanding as

well.

THE COURT: Any objection?

MS. PERLMETER: We object. Obviously perhaps she

could see the grandson after the grandson is born on the week

we are dark, or on the long weekend, Labor Day weekend. We

could find out when, find out more information, but we object

to her release.

MS. BERTRAND: Sounds to me like --

THE COURT: I don't know, Ms. Perlmeter, if you're

being realistic to tell a grandmother to don't go to the

grandchild's birth or see them right away. I think that's

asking a heck of a lot, so I am going to remove for hardship.

MS. PERLMETER: Also sounds like she is not exactly

sure when the mother and father would like her help. Perhaps

there are in-laws or other adults that would be stepping in and

she is going to be asked to cover a certain number of months or

weeks afterwards, so I think she should come in and provide

information about when the expectant parents would like her to

be there, and perhaps it's not going to be a conflict with the

trial date.

THE COURT: Well, I disagree, so I am going to remove

for hardship.

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MS. BERTRAND: Thank you, Your Honor. Next one I have

is 1858. I'm doing my best with a really bad cold. I

apologize. I'm not being lackadaisical about the system here.

1858 --

MR. CAMBRIA: Cold?

MS. BERTRAND: -- sole provider of income for

household. Looks like she's also caring for her four-year-old

grandson, and works with children with special needs.

THE COURT: We will bring 15, excuse me, 1858 in for

questioning.

MS. BERTRAND: 1863, please.

THE COURT: This person I note is unemployed,

financial hardship, seeking employment, has a four-year-old

child.

Ms. Perlmeter.

MS. PERLMETER: Your Honor, we object.

THE COURT: It's overruled. We will remove 1863 for

hardship.

MS. BERTRAND: Thank you, Your Honor. That's all I

have.

THE COURT: Government, any removals for hardship that

we overlooked?

MS. PERLMETER: No, Your Honor.

THE COURT: Let's --

MR. CAMBRIA: I have some, Your Honor, for hardship.

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THE COURT: All right. Well, let me inquire of

counsel because we're coming upon the 5:00 o'clock hour and we

haven't even started with your cause. We need to get this list

to the jury admin by Thursday next week, and I am not here. So

are counsel able to stay until 6:00 when they turn off the air?

That's the -- that's the critical question.

MR. CAMBRIA: We will make you a deal. Can we take

our coats off when they take off the air and you can take your

robe off?

THE COURT: No disrobing here.

MS. BERTRAND: I need to check with my husband.

MS. PERLMETER: We can stay.

THE COURT: I think we can get -- I think we can get

this accomplished in that way.

Mr. Eckstein.

MR. ECKSTEIN: I was going to ask if Mr. Larkin can be

excused for the rest of this setting?

THE COURT: It's up to him.

MR. ECKSTEIN: He is willing to do it.

THE COURT: Yes, it's -- I understand.

MR. LARKIN: Thank you, Your Honor.

THE COURT: You're welcome. Everyone else okay?

Okay. Ms. Bertrand, are you?

MS. BERTRAND: It should be fine. Let me -- I need to

give my husband a heads-up. We have a transportation thing

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this evening. Should be fine.

THE COURT: All right. So sorry, I was with the

government now. You had other -- did you have any hardship?

MS. PERLMETER: No.

THE COURT: Mr. Cambria.

MR. CAMBRIA: Thank you, Your Honor. Number 65

indicates apparently some sort of new position, indicating

missing three months would impact on him, and that was all the

information I had on him, but apparently it would impact on his

job.

THE COURT: Do you have 65, is that --

MR. CAMBRIA: 65. 65.

THE COURT: Government.

MS. PERLMETER: Mr. Cambria, there is very little

information. We'd ask that he come in.

THE COURT: I think we will bring the person in.

MR. CAMBRIA: Okay. Next one is, let's see here, next

one I have is 109. This is a person who indicates they work as

a temp and would not earn any money during the trial.

THE COURT: Ms. Perlmeter.

MS. PERLMETER: No objection to 109.

THE COURT: 109 is removed for hardship.

MR. CAMBRIA: 114, Your Honor, indicates that they do

not have any transportation and they are the sole earner.

THE COURT: I thought 114 was removed.

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MR. CAMBRIA: Sorry.

MS. PERLMETER: I don't have 114 removed. I have 114

on.

THE COURT: Isn't 114 the one with the doctor's note?

MS. PERLMETER: Yes, and I recall the Court saying,

let's go back to this one or make a note of this one.

THE COURT: I wanted to determine whether you observed

the doctor's note. Sometimes the doctor's note comes in late

or it's an attachment.

MS. PERLMETER: We did observe the doctor's note.

THE COURT: 114, is there an objection to removal?

Sorry, I thought I removed 114. Do we have an agreement as

to -- according to Liliana, who is taking copious notes, we

removed 114.

MR. CAMBRIA: Next one I have is 146, says they can't

sit or stand for long periods of time due to an injury, and

also have a financial hardship.

THE COURT: Ms. Perlmeter.

MS. PERLMETER: We don't see any indicated hardships

or financial hardships for 146. We acknowledge the sitting and

standing for long periods of time, which the Court can

accommodate with stretch breaks.

THE COURT: We'll bring 146 in.

MR. CAMBRIA: The next one is 153. It says:

Self-employed, no income if not working.

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THE COURT: Any objection?

MS. PERLMETER: No.

THE COURT: 153 is removed.

MR. CAMBRIA: Okay. Let's see here. 180, sole

provider, has a travel issue.

THE COURT: Ms. Perlmeter.

MS. PERLMETER: No objection.

THE COURT: 180 is removed.

MR. CAMBRIA: Next one I have is 195, sole

practitioner, no undercover clients, no income if not working,

sole breadwinner, child care issues and transportation issues.

That's sort of a full plate here.

MS. PERLMETER: No objection.

THE COURT: 195 is removed. I saw that. I was

inclined -- I have had lawyers come in before in jury panels

and it pains me when they say they can't serve because they

have hearings, and I often wonder what are you going to do when

you ask juries to serve in your trials?

MS. BERTRAND: Most of them don't do trials anymore.

That's the key.

THE COURT: Next one, Mr. Cambria.

MR. CAMBRIA: 240, said he and his wife have one car,

one cell phone, and share that for getting to work. Looks like

they have a transportation issue.

THE COURT: I have also noted one car for the family.

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This person is a consultant and apparently may lose clients.

Any objection?

MS. PERLMETER: No objection.

THE COURT: 240 is removed.

MR. CAMBRIA: Next one I have is 260, who says they

are shift supervisor, covers for missing employees and no one

can cover their job.

THE COURT: Yeah. This is the Albertsons grocery

employee, and apparently covers for his staff because he is

a -- he or she is a supervisor.

MS. PERLMETER: Your Honor, we object. This is a

hardship for the company, but we ask the juror to come in.

THE COURT: We will bring 260 in.

MR. CAMBRIA: Next one I have is 262. He says they

have a paid vacation that clashes with our trial.

MS. PERLMETER: This person indicates they have a

ticket purchased on September 9th, but they don't indicate how

long the trip is going to be and how long they will be gone.

Sorry, September 6th. Okay. I will be corrected. We don't

have an objection.

MR. CAMBRIA: What is happening on that?

MS. BERTRAND: No objection. You're good.

THE COURT: 262 is removed for hardship.

MR. CAMBRIA: Thank you. That's all I have, Your

Honor.

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THE COURT: Anyone else? Ms. Perlmeter?

MS. PERLMETER: No, Your Honor.

THE COURT: All right. So those are hardship

removals. Let's move to cause.

While I was going to have my staff play to you a very

nasty phone message by a juror, but he's removed for hardship,

who took umbrage at the great length of the questionnaire. And

though completed the questionnaire, left a profanity-laced

message that unfortunately went to our jury administrator, so

you are spared the necessity of listening to that horrible

message. But in any event, that person has been excused.

Now, let's move to cause. By my review, the

stipulated cause strikes are 144, 1026.

MR. FEDER: I have 465. Maybe I am misreading this.

THE COURT: Well, I'm only going through the

stipulated cause strikes that have not -- those jurors have not

already been removed through our hardship removal process.

MR. FEDER: I don't have 465 as having been removed.

Is it? Never mind.

MS. PERLMETER: We stipulated to 465 for hardship and

cause.

THE COURT: Yes. That's what I have as well. So I

lost my place now.

1026, 1688, 1779, and I believe those were the only

cause stipulations.

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So let me turn to Juror 23. Who's making the

argument?

MR. CAMBRIA: I am, Your Honor. Yeah, this is the

juror that said the defense has the burden of proof, and also

the defense has to testify.

THE COURT: I think the individual can come in and

listen to the jury's instructions and we can probe that a

little further, so --

MR. CAMBRIA: The problem with situations like that is

that we can't have a situation where the Court basically says:

You have to follow my instruction. And then the juror says to

themselves: Oh, gee, I'm forced. That wouldn't bode well for

the defense.

THE COURT: No. I think the way that the Court probes

the juror is the potential question about -- there is a

question, I don't remember the exact phrasing, but you'll be

instructed by the Court as to what the law is. Do you have any

difficulty in following that directive? If they have a

response, and then we'll probe it further. And I will make a

notation that this individual answered in this way. And

certainly if the person does not answer, I can follow what --

does not raise their card to that question, I can follow up and

say: You indicate that there is this understanding on your

part that it's the defense burden. Now you've been told that

it's the government's burden, or something of that nature, and

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see what they say.

MR. CAMBRIA: Your Honor --

MR. LINCENBERG: Your Honor, may I add in? This is

Mr. Lincenberg.

THE COURT: Yes.

MR. LINCENBERG: The questionnaire was designed this

way so that that was already told to the prospective jurors.

32 says: In a criminal case the defendant has the presumption

of innocence, presumed innocent. Government has the burden of

proof. The defendant has the right to remain silent and not

testify.

So after making that statement to the prospective

jurors, when a juror comes in and says: Well, I agree that a

defendant should be required to prove his innocence, I believe

that a defendant should be expected to testify. That, I would

submit, is as strong of a cause challenge for the person as

there could be. It's not in a vacuum that they are giving

these answers. They are giving these answers after they are

instructed.

THE COURT: Ms. Perlmeter.

MS. PERLMETER: Your Honor, none of the jurors have

been instructed that it is the Court that instructs on the law,

and that the jurors' duty as serving as jurors is to follow it.

They haven't been given that instruction.

Question 32 dealing with the presumption of innocence

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is something that is -- these responses are not uncommon for

jury trials. It is a common response for folks who have not

served or who are not embedded in the criminal justice system

to have a natural curiosity and want to hear what a criminal

defendant may have to say.

Many of them from past trials, after they are

explained what the law is and that they are required to follow

it as the Court instructs, once they receive that information

they understand and they either agree to follow the law or they

don't.

MR. CAMBRIA: I would like to add to that. Here they

have been specifically advised as to what the situation is,

what the law is, and they nevertheless have indicated they

couldn't. Now, what happens if the Court says the same thing?

You have to do all that. Their answer isn't going to be "no"

to the Court. The answer is going to be "yes" to the Court.

THE COURT: You'll be very surprised. You'll be very

surprised. These jurors are very candid during this process.

MR. LINCENBERG: Some of them are, but this is really

where, without the pressure of the Court saying: Will you

follow my instruction? They are giving their truthful answer,

and it shows a bias, which is the most important element of

cause from the defense point of view.

MR. CAMBRIA: I think it's an honest answer also. Why

should we browbeat somebody, and I am not indicating you would,

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UNITED STATES DISTRICT COURT

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but the idea is when a judge in this court says: Well, you

have to X, Y and Z, I think at that point they've been honest

and we're not respecting their honesty. That's going to be

their belief. That is their belief. They were informed of the

law and they expressed their honest belief.

THE COURT: Well, I am going to overrule the request

and I will bring the juror in.

All right. The next one I have is 25.

MR. CAMBRIA: It's the same situation. And in

addition, they say they will have an issue with looking at

evidence. But again, a situation where they've been, been

advised as to what the rules are, they honestly give an answer,

and you know, now they are put in the position of capitulating

basically.

THE COURT: What is the specific question that is

objectionable, Mr. Cambria?

MR. CAMBRIA: I'm sorry?

THE COURT: What is the specific question?

MR. CAMBRIA: The specific one is, again, that they

said the defendant should testify. And second thing is,

although as far as I know, the other thing is they may not look

at evidence if they deem it to be something that involves a

child.

THE COURT: Well, I think it's different. The

statement here is: Could not look at child pornography

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evidence.

And as you know, this is not a child pornography case,

and there will not be, as I understand it, photos or exhibits

of child pornography.

MR. CAMBRIA: But it depends what they think that is.

THE COURT: And I think that's worth probing. What is

the government's position?

MS. PERLMETER: We object to this juror being stricken

for cause.

THE COURT: And I am going to keep Juror 25 in the

pile for consideration.

MR. LINCENBERG: Your Honor, the government didn't

respond to the Court's specific question, but as I recall from

the exhibits at the last trial, this case is -- the government

intends to have this case replete with pictures of either naked

or semi-naked women.

THE COURT: That's not child pornography.

MR. LINCENBERG: The government also intends to bring

in with some of these witnesses their age, and some of these

people who are advertising lied about their age, but they were

minors.

THE COURT: Is there evidence of child pornography in

the case?

MS. PERLMETER: No.

THE COURT: And I think that's the distinction. There

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is a distinction about what is child pornography.

MR. LINCENBERG: That's helpful to know that there

will be no exhibits shown which would need a definition of

child pornography.

THE COURT: Juror 25 stays in. The next is 65.

MR. CAMBRIA: Again, this is someone who indicates

some kind of employment hardship.

THE COURT: Some sort of what? Sorry. My

transcription machine is not working, so I don't know what you

just said.

MR. CAMBRIA: I am sorry. I thought that we raised

this on hardship, Your Honor. This was someone that was saying

that they -- that it would impact on their employment.

Apparently they have a new employment assignment and it would

impact on them.

THE COURT: No, this person is not removed for

hardship, and there is no indication of financial hardship. In

fact, it says no.

MR. CAMBRIA: The other statement here, he's

indicating that because the nature of this case may have an

impact on him. Also indicating perhaps some claim of knowledge

outside the record.

THE COURT: I have a lot of, I think, some answers

that basically say I haven't thought about this much. And

although there is an indication that they have had, they say

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they have strong feelings about pornography on the Internet and

they have seen negative impacts to friends through the years,

the next question probes whether those feelings would impact

their ability to be a fair juror, and they say no. So I think

this person is worth bringing in for probing further. 65

remains in.

I have 68.

MR. CAMBRIA: 68 flat out says they can't be fair.

THE COURT: Yes, I have that in there.

Ms. Perlmeter.

MR. CAMBRIA: I'd like to think that's enough.

MS. PERLMETER: Your Honor, there are a number of

individuals who have indicated they can't be fair in like the

child sexual abuse case and the nature of a sexual assault

case.

MR. CAMBRIA: I didn't say that.

MS. PERLMETER: The government does not believe that

the juror indicating as such is a strike for cause because this

is not a child sexual abuse case or a sexual assault case.

We'd like the ability -- for the groups of people who think

that they may hear evidence about sexual assault, the details

of it, given the, you know, the rulings and the posture of this

case, it's going to be limited in such a way that people who

may not be able to sit on an underlying charge of sexual

assault, for example, or child sexual abuse or child

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pornography may be able to sit in a case like this.

THE COURT: Let me stop you there, and I understand

your desire to make the record, but I think this is an example

of a cause strike.

The question 51: Do you have strong feelings about

pornography on the Internet?

Yes.

The follow-up -- the follow-up answer: I think it's

disgusting and it should be banned all together. I've seen it

ruin adult lives.

Would these feelings affect your ability to be fair

and impartial?

Yes. It's toxic to the brain and can ruin a person.

The next question, once again: It's toxic. I don't

believe anything good comes from that industry.

Affect your ability to feel, with regard to being fair

and impartial?

Yes. I have strong feelings that it's a disgusting

industry.

The questions after that are the same. Including

this: I feel I may have too strong of feelings to be fair and

impartial.

And so I'm going to -- and then also at 65: I have

strong feelings against anything related to prostitution or sex

trafficking.

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I think this individual with these types of repeat

answers to multiple layers of questions is an appropriate

removal for cause, so 68 is removed for cause over the

objection of the government.

MR. CAMBRIA: Next one I have is 139. This is another

one where not only did they say that the defendant has to prove

their innocence, even a step beyond just testifying --

THE COURT: Let me stop you there, Mr. Cambria. Let

me tell you what I have on my list.

MR. CAMBRIA: Okay. I am sorry, Your Honor.

THE COURT: So the next one I have is 131.

MR. CAMBRIA: Oh, I have that out.

THE COURT: And I may be mistaken.

MR. CAMBRIA: I think we knocked that off for

hardship. Sole provider, monthly doctor visits, newborn, GI

issues.

MS. PERLMETER: We had 131 stricken for hardship

earlier.

THE COURT: I didn't update the list.

139.

MR. CAMBRIA: Yes. 139, again, prove innocence, not

even testify, et cetera, but prove they are innocent. "Not

comfortable with the subject matter" is obviously another

situation, and then antiprostitution. So now we're going to

start right off with someone who thinks the defendant needs to

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prove they are innocent, not comfortable being there, and is

antiprostitution, which obviously is the part of the

government's case. It just seems that this is the kind of

person that can't be fair.

THE COURT: Well, I also think they are pretty firm

statements with regard to the prosecution, the answer to

question 54 and 56. I'm inclined to grant the removal for

cause.

Do you wish to make a record?

MS. PERLMETER: Just for the general category of

jurors who have responded that they dislike prostitution or

they disagree that prostitution should be legalized, or that

they think prostitution is bad, just because they have those

beliefs does not mean that they can't necessarily be fair. And

so for this group of people, I think there is like a sliding

scale of how disturbed a juror may be and how strong their

feelings may be depending on their responses. So I don't -- we

would object to everyone being stricken for cause simply

because they say we think prostitution should be a crime, or if

it's a law it should stay a law. Just general statements like

that.

THE COURT: That's not a general statement that 139

has made. Focus on the juror questionnaire and the answer.

You have specific questions asked of each of these jurors.

They have made specific responses. If their answers are over

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and over again permeated with a strong feeling, then that's

what I look at for cause.

You may have some that have an answer that might

indicate that they do. Later on they don't say anything.

Those are people that I want to probe further. But don't paint

the questionnaire, the person who answers the question with

that broad of a brush. You have to be very specific here.

So with regard to 139, as I mentioned, I do point out

that there's an interesting answer to prostitution on the

Internet. "I think it's not good to have pornography on the

Internet."

Would the feelings affect your ability to be fair and

impartial? Yes.

And then they go into some answer related to bitcoin

and the market. And then over and over again: I don't like

it. Ability to -- it will affect their ability to be fair and

impartial because I don't like it. Feelings of sadness because

people have to engage in sex for money. If they have to do

this, I feel sad for them because it puts food on their table.

Then indicating they feel that the person should be prosecuted.

It should not be legalized. Such businesses should be barred

from doing business.

I mean, I think this is the type of juror just

permeated this questionnaire with those very clear thoughts.

MS. PERLMETER: We understand the Court's position.

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Could you please note the government's objection just for the

record?

THE COURT: The record will reflect. 139 is removed.

I have 146.

MR. CAMBRIA: So do I. Didn't we discuss financial

hardship there?

THE COURT: Yes, we did. Is it removed?

MR. CAMBRIA: Can't sit or stand.

THE COURT: Yes. This was the individual who, and I

stated that we could probe a little further as to the physical

ailment.

MR. CAMBRIA: Beyond that, apparently has a religious

problem, if you will, with anything adult, does not want to

hear about the topics, I guess let alone see. I would think

with the religious issue and anti-adult and doesn't want to

hear about the topics, that this isn't someone who could give

the attention and be fair in a case like this.

THE COURT: Ms. Perlmeter, with respect to 146?

MR. CAMBRIA: 146. Then on top of it, it's a

hardship. So we have a situation where they may be

uncomfortable physically, financial hardship, which they say

they have, and then these other religious issues such that they

don't even want to hear about the subject.

THE COURT: Is there an objection?

MS. PERLMETER: No, Your Honor.

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THE COURT: 146 is removed for cause.

153.

MR. CAMBRIA: 63?

THE COURT: 53 -- 153.

MR. CAMBRIA: I thought we excused that person for

hardship. 153, no income if not working.

MS. PERLMETER: I have that in my notes as well.

MR. CAMBRIA: Self-employed.

THE COURT: 153 is out.

177.

MR. CAMBRIA: I don't have that one.

THE COURT: In looking at 177, this individual, and I

didn't catch this, and maybe Ms. Perlmeter raised it, but has a

planned trip August 15th through the 22nd to North Carolina,

although no tickets have been purchased. Also has elderly

parents in Cleveland who require care visits at any given

moment. What was the other cause reason?

MR. CAMBRIA: I don't have --

MS. BERTRAND: We broke this up into teams. I think

that might be Mr. -- what was the number?

MR. CAMBRIA: I don't have that one. I go to --

MS. PERLMETER: For 177.

THE COURT: Yes.

MS. PERLMETER: For 177, the juror indicated strong

feelings, but then in the next question said they could be fair

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and impartial as to prostitution and the adult industry,

question 52 and 53.

MS. BERTRAND: 177 as well.

THE COURT: Well, I don't -- are you reading the same

thing that I'm reading, Ms. Perlmeter, because as to question

52: Do you have strong feelings about the adult entertainment

industry?

Yes.

Please explain.

It's degrading to women. And more importantly, it

goes against God's word.

You're right. She did say it would not affect her

ability to be fair and impartial.

MS. BERTRAND: She does say --

MS. PERLMETER: Same response implicated for 53. She

also says she could be fair and impartial.

THE COURT: Well --

MS. BERTRAND: She also says in response to 66, you

know, this question is kind of weighted, like you think people

would know her answer honestly, and she says that drugs and

alcohol would diminish a witness' credibility. That's going to

be the reality of some of these witnesses that they are going

to be former addicts.

THE COURT: Well, again, with regard to that answer

the Court can instruct the jury. I think this person is worth

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bringing in just because there is some inconsistencies in the

way that the answers are laid out. Clearly strong feelings,

but then there's indication that she is willing to set aside

those feelings and participate, so we'll bring 177 in.

The next one I have is 180.

MS. BERTRAND: I have that marked as also a hardship

strike.

MS. PERLMETER: I do have 180 removed.

THE COURT: 180 has been removed. 201.

MR. CAMBRIA: This is another person who puts the

burden on the defense even though the questionnaire makes it

clear that the burden is not on the defense. That's what they

expect.

THE COURT: Ms. Perlmeter.

MS. PERLMETER: As to question 32, we ask the juror be

brought in, be told, be instructed that the Court instructs on

the law; that they need to follow it. Similar to our arguments

previously for our other objections to question 32.

THE COURT: I agree. We will keep 201 in.

237.

MR. CAMBRIA: 237 is another one who believes that the

defense should testify. That's basically all I have on her

even though there is a, you know, a question indicating that

the defense, more than one, doesn't have the burden and doesn't

have to testify, so another person who expects that.

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THE COURT: I think this individual also indicates a

disagreement with the statement: A defendant in a criminal

trial should be required to prove his or her innocence, and

they disagree, and so I think there's opportunity to probe this

individual further. So 237 will remain.

I have 325.

MS. LAWSON: Your Honor, this is Sarah Lawson for

James Larkin. 325 indicated on five separate occasions that

they cannot be fair and impartial. This is another one of

those questionnaires where it was just permeated on questions

25 to 26, 28 and 31. The juror indicated that when a person is

arrested, indicted or tried --

THE COURT: Can you bring the microphone closer to

you? Thank you.

MS. LAWSON: When a person is arrested, indicted and

tried, it's more likely than not that the person is guilty.

And if it's not, it's because of a technicality.

MS. PERLMETER: Answer to 26: Would it impact your

ability to be fair and impartial? This juror said no.

MS. LAWSON: On question 28, she said it would impact

her from being fair and impartial. On question 25 it was the

same answer, question 53, question 52, question 51.

THE COURT: It's a somewhat an inconsistent answer, I

think. Well, actually, no, there is an indication by this

individual that it will affect her ability to be fair and

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impartial, and that is the answer, this answer: In my opinion

when someone is arrested, charged, filed and case goes to

trial, more likely than not the person is guilty. And if the

person is found not guilty, it is usually based on a

technicality.

That's the answer given for question 51, 52, 53. And

and then goes on to say, believes that prostitution is illegal.

It's wrong. It should not be legalized. Makes a comment on

56. And so yes, I think this individual should be removed for

cause. 325 is removed.

I have 410.

MS. LAWSON: Your Honor, I think you skipped over 350,

but based on the Court's previous rulings about question 32 --

THE COURT: What was that, 350?

MS. LAWSON: 350, uh-huh. We are willing to withdraw

this objection to 350.

THE COURT: All right. I have 410.

MS. LAWSON: Juror 410, the juror expressed that they

think the defendant should be required to prove his or her

innocence on question 32. And then on question 64 they

indicated they are not thrilled about the topic of sex, but

would be able to discuss it.

MS. PERLMETER: We object. We ask that this juror be

brought in to be questioned.

THE COURT: I think so as well. The answers indicate

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a dislike for the area of pornography and adult entertainment,

but the answers are not passionately strong. We can probe

further. 410 remains.

I have 429.

MS. LAWSON: Very similar reasons. This juror thinks

the defendant should be required to prove his or her innocence

and expects the defendant to testify, and also indicated she

will not be able to discuss sexually explicit topics. She is

not sure she will be able to do that.

MS. PERLMETER: Correct. She says she is not sure, so

we would like an opportunity to ask her some questions to see

if she can be rehabilitated.

This juror otherwise indicates they can be fair. And

as like question 32, the presumption of innocence will be

explained to this juror.

THE COURT: I think we should bring this juror in.

There's also some indication it's kind of an inconsistent

answer about her husband having asthma. She's not

uncomfortable with coming in with regard to COVID, but we'll

bring 429 in.

I have 451.

MS. LAWSON: This juror is extremely familiar with the

case, and he made it clear that he could not be fair and

impartial. He recalled listening to a 2018 podcast episode

about this matter. He also has a strong family history and a

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lot of emotions surrounding Backpage. He indicated he could

not be fair and impartial because his father-in-law was using

Backpage and Craigslist to solicit prostitutes on business

trips which resulted on criminal charges. You could tell that

there is a lot of emotion there.

THE COURT: Government. Ms. Perlmeter.

MS. PERLMETER: No objection.

THE COURT: 451 is removed for cause. I have 465.

MS. PERLMETER: Your Honor, I have 465 as a stipulated

hardship and cause strike.

THE COURT: You may be right. Let me double-check.

MS. PERLMETER: 465.

MS. LAWSON: We do as well.

THE COURT: 465.

MS. LAWSON: 465.

THE COURT: All right. So 465 has been removed

apparently. I didn't have him down, or her.

591.

MS. LAWSON: What about 512?

THE COURT: 512, did you say? That individual I

thought was removed.

MS. LAWSON: Sorry. You're correct.

THE COURT: 565 was removed. 591.

MS. LAWSON: Your Honor, I don't have 565 as being

removed in my notes.

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THE COURT: We just did. 565.

MS. LAWSON: 565 is removed.

THE COURT: I was told, I may have misheard, I thought

you said that was a stipulated --

MS. LAWSON: 465 was stipulated.

THE COURT: 465, that's what I said. Didn't I say

that, 465, 465?

MS. LAWSON: I am getting confused with 465 and 565.

THE COURT: 565. Let's start over. 565 is or is not

removed?

MS. LAWSON: Not removed.

THE COURT: What is the issue with 565?

MS. LAWSON: 565, this juror is not sure whether she

could be fair and impartial. She indicated on several

questions there was a possibility that she could not be fair

and impartial, and she may not be able to hear evidence and

deliberate on sexually explicit evidence.

MS. PERLMETER: She is not very firm on her responses.

She is not sure, she may not, may be. But as to the questions

51, 52, 53, she indicates she can be fair and impartial.

THE COURT: I think we need to bring the individual

in, and please note that there's also indication of a concern

about employment. She is checking with an employer as to what

the impact, so we will bring 565 in.

591, this was government's cause.

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MS. PERLMETER: Yes. We are moving to strike this

juror for cause. This juror is biased against law enforcement

based on an experience regarding the juror's son in a domestic

violence incident bought by a, quote, crazy ex, unquote,

involving false accusations. The prosecution and the

authorities were very unfair, and they just wanted a -- they

just wanted a prosecution. It would affect the juror's ability

to be fair and impartial.

Additionally, this juror read about the, quote, hung

jury, because the government mislead jury with false

allegations about sex trafficking, and then made comments about

how the case is about escorts placing ads in their papers.

THE COURT: We did not indicate as well that this is a

sole income earner for the household, has no backup to perform

duties, would require a taxi or a rideshare to report, so we

will remove 561 for hardship.

MS. PERLMETER: 591.

THE COURT: Sorry, I -- it's late in the day. 591.

623.

MR. KESSLER: Eric Kessler. This individual did not

complete question 32, but indicated that if the case involves

something of a sexual nature, that he cannot be fair. Question

64.

THE COURT: And I think that is a single answer.

There are multiple other areas where the individual answers no

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with regard to question 51 through 55, that the feelings

wouldn't affect their ability to be fair and impartial, so we

will keep 623 in and probe further.

I have 624.

MR. KESSLER: Again, Eric Kessler. The individual

indicated in question 53 that he or she could not be fair if

the subject matter was prostitution, and there may also be a

hardship issue with this person.

THE COURT: Yes. They're a sole provider, financial

hardship indicated.

Ms. Perlmeter, the answer to 71 -- ah, this individual

is also starting a new job, has no vacation time. Also

indicates at 73: Making the following feelings known to the

Court and parties. I strongly oppose coercion, manipulation,

brainwashing for perpetrator's financial gains.

Any objection to removal for hardship and cause, 624?

MS. PERLMETER: No.

THE COURT: 624 is removed.

629.

MR. KESSLER: Your Honor, we withdraw that. That's a

Fifth Amendment issue, except we do have hardship issues with

that person, sole provider, paid vacation for August 31st.

That would be a financial hardship.

THE COURT: Yes. It says: Only breadwinner right

now, and has plans, paid vacation plans August 31st. Any

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objection to removal for hardship, 629?

MS. PERLMETER: No.

THE COURT: 645.

MR. KESSLER: This person also indicated that they

disagree with portions of the Fifth Amendment, but there is

again a hardship issue. This is the sole supporter for the

family.

MS. PERLMETER: Your Honor, this juror says he's a

sole provider, but doesn't seem to give a lot of info.

Indicates single word answers to a lot of questions, and says

they can be fair and impartial as to the questions in 51

through - the questions in the 50s.

THE COURT: I'm going to remove this individual. I

didn't focus on this set of questions really, but there's a

COVID concern. Indicates wife has a kidney transplant, is

immunocompromised, and so I am going to remove 645 for

hardship.

669.

MR. KESSLER: I think we have 660 as well. 660,

unless he was removed for hardship, we were moving to strike

him for cause.

THE COURT: Ms. Perlmeter, I think I have him as

questionable. I did recognize that this individual is about

one-third of his staff is a -- I think it's a troubleman. Back

in my day they used to be called the lineman, APS worker, and

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is basically on call, one of three power troubleman for APS.

So it's very difficult to leave. I would be inclined to remove

for hardship 660. Any objection?

MS. BERTRAND: That was 663 we were on?

THE COURT: I think Mr. Kessler raised 660.

MR. KESSLER: I did.

MS. BERTRAND: I didn't hear the number.

THE COURT: 660 is removed for hardship.

MS. PERLMETER: Your Honor, can we be heard?

THE COURT: Yes.

MS. PERLMETER: We object. This is a hardship on APS,

not so much the juror him or herself. And then the questions

related to cause and bias and fairness he answered -- never

mind. Scratch that. We withdraw.

THE COURT: All right. 660 is removed.

669.

MR. KESSLER: This person simply indicated that he or

she could not discuss or listen to the topic of sex, which is

what this case is about for three months, and also indicated a

hardship with respect to being a sole supporter.

THE COURT: And I note on question 71, there is a

mandatory religious holiday that falls on a couple of the trial

dates, and I would therefore not be able to attend. And so I

think this individual should be removed for hardship, and I am

inclined to do so. Is there an objection?

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MS. PERLMETER: No, Your Honor.

THE COURT: 678.

MR. KESSLER: This individual did not answer question

32, indicated religious moral objections to prostitution and

matters involving sex, and stated that he or she could not sit

through this trial.

THE COURT: Ms. Perlmeter.

MS. PERLMETER: We are verifying that. We see

question 51 through 53 juror indicated they have no strong

feelings and can be fair and impartial. They indicate that

prostitution is legal, but they also indicate that they can be

fair and impartial.

MR. KESSLER: Your Honor, that may be in a general

sense, but if the juror is telling us that he or she cannot sit

through this trial because of the subject matter and it's part

of that person's religion, it would be offensive to that

person. I don't see how that person can listen to the evidence

for three months.

MS. PERLMETER: Can you tell us --

THE COURT: Which question did that statement about

not sitting through the trial, what --

MR. KESSLER: I don't have the whole questionnaire in

front of me.

THE COURT: I don't have that.

MR. BERRY: That's not anywhere for 678.

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THE COURT: Yes. This is Juror 678, and I think I am

inclined to leave this person in. I don't see that statement,

and there really is non-answers to most of those probing

questions, so 678 remains in.

686.

MR. KESSLER: This was more of a hardship. This

person has Fifth Amendment problems, but this person indicated

that he or she is the sole support for the family.

THE COURT: I see that. Employed full-time. I don't

understand the question the way that it's answered because it

says: Financial hardship and not paid during jury duty, no.

And then the next answer is: Sole provider of income for

household.

We will bring the person in for further questioning.

692.

MR. KESSLER: Again, this person had Fifth Amendment

problems on question 32, but also from a hardship standpoint is

unemployed.

THE COURT: Yes, I'm inclined to agree with regard to

the unemployed hardship. 692. Is there an objection?

MS. PERLMETER: No, Your Honor.

THE COURT: 692 is removed for hardship.

I then have -- bless you. I have 710.

MR. KESSLER: Your Honor, the only reason for cause

was question 32, so we withdraw that.

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THE COURT: 710 remains in.

738.

MR. KESSLER: This person also has Fifth Amendment

issues as to question 32.

THE COURT: All right. We will probe 738 further.

I have 765.

MR. KESSLER: 765 or 763?

THE COURT: I have 765. 763 is removed for hardship.

I have 765.

MR. KESSLER: 765 indicated she could not be fair.

Question 28.

THE COURT: 765 basically says to one of the

questions, her husband was a former Phoenix police officer who

acted in some undercover capacity regarding Backpage. I think

that's sufficient removal for cause.

MS. PERLMETER: No objection, but I do see that 763 is

in according to my notes.

THE COURT: 763 is in?

MS. PERLMETER: That's what I see.

THE COURT: Oh, this individual I noted, this is a

stipulated hardship strike. I'm sorry. I am looking at the

wrong one, 763. This is an individual who's unemployed looking

for work, you know, I think with these individuals that

indicate that it would be a hardship, for those reasons they

should be removed for hardship reasons. So 763 is out for

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hardship.

808. This is, again, this is the same sort of

unemployed, actively looking for work.

MR. KESSLER: Also a student, and had problems with

the Fifth Amendment.

THE COURT: Any objection for hardship removal?

MS. PERLMETER: No, Your Honor.

THE COURT: I have 826.

MS. PERLMETER: Was the last 808?

THE COURT: Yes.

MR. KESSLER: 826, again, Fifth Amendment issues.

That was the only basis.

THE COURT: We will keep 826 in. 914.

MR. PANCHAPAKESAN: 914.

MS. BERTRAND: 849 was struck for hardship?

THE COURT: I did not strike 849.

MS. BERTRAND: I believe defense also noticed that one

for cause.

MR. KESSLER: 849 had Fifth Amendment issues, but also

a sole provider.

THE COURT: Objection to removing for hardship?

MS. PERLMETER: We argued this one already.

THE COURT: I think so.

MS. PERLMETER: We discussed this one for hardship

already, 849.

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THE COURT: 849 is removed for hardship.

MS. PERLMETER: Your Honor, we argued 849 already.

The government asked for 849 to remain. The Court granted

that. This is the one with the thyroid, or without the

thyroid.

THE COURT: I have sole provider, financial hardship,

but I do have a notation to keep them in the queue.

MS. PERLMETER: She indicated that she was a sole

provider. Didn't provide a lot of information.

THE COURT: Yes, I think there was more probing

needed, so we keep 849 in.

Okay. 914.

MR. PANCHAPAKESAN: Your Honor, Gopi Panchapakesan.

On 914, this is one where the bias kind of infects the entire

questionnaire, so I'll direct the Court to questions 51 through

53 and 65. In response to 51, the juror says: I believe

pornography is just like a drug and changes the makeup of our

brains. It can lead to a deeper and darker messed up things

and should be banned.

On 53 the juror says: I think there is a lot of

control and manipulation in prostitution that we do not see or

understand. They are trapped. And then in response to 65: Is

there anything about the subject that would make it difficult

for you to be fair and impartial? Yes. Prostitution.

MS. PERLMETER: Your Honor, with regard to question 52

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and 53, while they do indicate strong opinions, they ultimately

did as to both questions say that they could be fair and

impartial.

THE COURT: Well, I'm also looking at answer to 56.

It says: Prostitution is a pathway to a world that is dark and

creepy. It's never enough with people, and leads to creepier

things. And then on the back it indicates, 71, that they are

currently looking for another job. So I am going to remove for

hardship and cause 914.

945.

MR. PANCHAPAKESAN: 945, we are willing to withdraw

our objection at this time.

THE COURT: 945 will remain in the pile.

958.

MR. PANCHAPAKESAN: 958, Your Honor, direct the Court

to responses to question 64 and 71. On 64 the individual says

they are very uncomfortable hearing about and commenting on

sexual activity. In response to 71: Is there any reason why

you prefer not to serve?

The juror says: Yes, as a practicing Catholic I am

not comfortable hearing about or discussing sexual activity of

others.

THE COURT: Any objection?

MS. PERLMETER: We do object. It's not everyone's

topic of choice for discussion. That can be understandable,

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however, as to the prostitution-related questions, adult

industry oriented questions, she indicated no strong feelings

and said she could be fair. Given that this is one of the --

this is more towards, you know, the topic is not one that I

would choose to discuss, but this is, again, not a child sexual

abuse case and not a child pornography case.

MR. PANCHAPAKESAN: There is nothing in this answer

about child pornography. It's about sexual activity broadly.

THE COURT: And I also think that there's -- I think

it's worth keeping this juror in for probing because in an

answer to one question he or she basically said it's not my

place to judge other people's lifestyle choices, so we will

keep 958 in.

981. We are at the 6:00 o'clock hour. The air, I am

told, will stay on until 7:00, and hopefully we will need that

air by 7:00, so let's plow through.

One second. If you wish to leave, my student summer

externs have been diligently sitting there observing all of

your professionalism, but I am going to release them because

they are free labor.

MR. LINCENBERG: Your Honor, we object to the students

being released.

THE COURT: If you would like to, please. All right.

MS. PERLMETER: Your Honor, is it okay if I step away

for five minutes? I am going to let my family know I am

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staying later. Mr. Berry will cover in my absence.

THE COURT: Yes. We are at 981.

MR. PANCHAPAKESAN: I believe 982. I believe the

Court struck 981 for hardship.

THE COURT: Yes, 981 is out. 990.

MR. PANCHAPAKESAN: In my notes I have the same for

that.

THE COURT: I have a notation, yes.

997.

MR. PANCHAPAKESAN: On 997 I direct the Court to the

responses to questions 30, and then 71 and 73. I believe this

individual's deceased husband was a police officer, and

throughout the questionnaire she says, I quote, "always side

with law enforcement," and she repeats that --

THE COURT: I see that.

MR. PANCHAPAKESAN: -- a couple times.

THE COURT: Yes, I do.

MR. BERRY: No objection.

THE COURT: 997 is removed for cause.

999.

MR. PANCHAPAKESAN: On 999, Your Honor, I will direct

the Court to questions 39, 51 and 71. This juror indicates in

response to 39, quote, "This is not a topic I would at all be

fair or impartial about having a daughter being a victim of

rape" --

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THE COURT: And I do note with 999 there is a hardship

indication here. Sole provider. And then also in answer to

question 13, they only have one car and a husband who has a

medical condition, so they don't -- she would not have access

to a vehicle. Any objection to remove for hardship?

MS. PERLMETER: No objection.

THE COURT: Sorry, what did you say?

MS. PERLMETER: No objection.

THE COURT: 999 is removed for hardship.

1026.

MR. LINCENBERG: 1026 was stipulated for cause.

THE COURT: Yes, you are right. 1026 is stipulated,

removed for cause.

10 -- I have.

MR. LINCENBERG: 1032.

THE COURT: 1032 is removed for hardship.

MS. PERLMETER: We have that person still in.

THE COURT: 1032.

MS. PERLMETER: Yes.

THE COURT: You're right. I have, though, I will

remove this person for hardship because my notations, though

you did not stipulate, this person has a rented cabin in Payson

August 18th through 20th.

MS. PERLMETER: Yeah, we saw that, Your Honor, and the

18th is a first day and that is a Friday, so we thought maybe

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they were meeting in the afternoon and perhaps they could

serve.

MR. LINCENBERG: We agree. It's a weekend. The

person also suggests issues, I think work related, but we're

not pushing on hardship.

THE COURT: 1032 will remain in.

MR. LINCENBERG: And we had a cause objection, which

is question 32, which the Court has repeatedly ruled on, so we

submit with that objection.

MS. BERTRAND: Before we go forward with anymore, just

real quickly, Ms. Vaught has been on this call --

THE COURT: I can't hear you.

MS. BERTRAND: Ms. Vaught has been on this call the

entirety. She needs to be up at 3:00 o'clock in the morning

Dallas time for work. May she be excused for the remainder of

these jury questionnaires?

THE COURT: She may.

MS. BERTRAND: I will let her know.

THE COURT: 1082.

MR. LINCENBERG: 1082 relates to question 51 and 53,

and it's very similar to 146, which the Court removed for

cause. This is a person who basically says: I will not

compromise my religious beliefs that they will -- that they

will affect my ability to be a fair and impartial juror.

THE COURT: And I think the individual also politely,

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I think, asks to be excused because they are 70 years of age.

MR. LINCENBERG: 1082 is 53 years old, I thought.

THE COURT: In answer to 71 says: Hi. I am 70 years

old and wish to be exempt from service.

MR. LINCENBERG: 1082?

THE COURT: 1082.

MS. PERLMETER: Yes, we agree Juror 70, or indicated

they were 70.

THE COURT: 1082 will therefore be removed for

hardship.

I have 1093. Who is speaking as to 1093?

MR. LINCENBERG: It's me, Your Honor, and I lost track

of my notes. Here we are. 1093 is a question 32 objection.

MS. BERTRAND: They also graduated from Maricopa

County Police Academy and didn't fill out much of the thing.

THE COURT: Well, we will bring him in for further

probing, so 1093 is in.

1095.

MR. LINCENBERG: 1095 is a question 32 objection.

There was also a medical.

THE COURT: Yes, I do note that. 1095 indicates has a

defibrillator, doctor appointments regularly, has an, either a

medical or a surgical appointment on September 8th. Any

objection to removal for hardship, 1095?

MS. PERLMETER: We object. This juror didn't indicate

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they couldn't be fair. They didn't indicate -- I mean, the

heart condition does not immediately or automatically preclude

one from being able to sit. We acknowledge the medical

appointment for September 8th, but perhaps they could be

changed to a Monday or a Friday afternoon.

THE COURT: I'm going to overrule and remove for

hardship 1095.

1097.

MR. LINCENBERG: Your Honor, 1097 was already struck

for hardship.

THE COURT: You are correct.

1106.

MR. LINCENBERG: Was struck for hardship.

THE COURT: You are correct.

MR. LINCENBERG: As was 1110.

THE COURT: 1148.

MR. LINCENBERG: 1148 was struck as well, Your Honor.

MS. PERLMETER: We agree.

THE COURT: Yes, 1148 has been removed.

1164.

MR. LINCENBERG: 1164 was, first of all, a question 32

objection, and then indicated -- 1164 indicated he was not sure

he could be fair and impartial, wanted to discuss it in

private.

THE COURT: And I think the juror can come in for a

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further probing. 1164 will remain in.

MR. LINCENBERG: 1168, in addition to a question 32

objection, I would direct the Court to questions 51 and 52,

where the juror, in connection with discussion about strong

feelings about prostitution and adult-oriented entertainment,

said that the feelings or experience would affect their ability

to be fair and impartial, would make sure anyone promoting

child pornography be sentenced to life in prison.

And then continues on: Would your feelings or

experiences affect your ability to be fair and impartial?

Again says yes. And then says: Would press to put people in

charge to rot in prison.

THE COURT: And I think that is -- and there are some

other strong feelings about feeding the sex industry, being

part of the problem, and then there are -- I am not entirely

sure what to make of the answers to question 66 with regard to

people of different nationalities or low socioeconomic income,

all of the answers are yes. And then the answer is: If they

were taken advantage of because of those issues, it would weigh

heavily on my decision.

So I think the answers to 53, 51 and 52 are sufficient

for cause removal. 1168 is removed.

I have then 1210.

MR. EISENBERG: Your Honor, I will cover some of

these. 1210.

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MS. PERLMETER: I'm sorry to interrupt, could

Mr. Eisenberg speak up a little bit, please?

MR. EISENBERG: My arms are too short to grab this any

further. 1210, Your Honor, paragraph 51, strong Christian

beliefs. I'm going to turn to that now: I believe pornography

is too easily available. There should be limitations, et

cetera.

But then the question says: Would your feelings or

experiences affect your ability to be fair and impartial? Yes

is the answer. It goes on to explain: My Christian beliefs

and my own experiences in life can affect my impartiality, and

I can't honestly say it won't be affected and that I can be a

hundred percent impartial.

I think that's sort of -- I don't know if that's a

double negative, but the impression I'm getting is this

person --

MS. PERLMETER: No objection.

THE COURT: 1210 is removed for cause.

1221.

MR. EISENBERG: 1221, Your Honor. This person, I

think we may have talked with about her in terms of her being

special education. She was a sole provider. She also says

with respect to question 51 and 52, 51: Do you have strong

feelings about pornography on the Internet, et cetera?

Yes.

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If yes, please explain.

I find it distasteful and immoral.

Would your feelings or experience affect your ability

to be fair and impartial?

Yes. It's hard to say without being in the moment,

but I think all humans are impacted by their personal views. I

would try to be fair and impartial, but I do not -- but I do

believe I would still at least have a subconscious reaction

that might influence me despite my best ethics. This would be

even more true if it involved children.

This is a pretty honest answer.

THE COURT: I didn't think there are strong feelings

indicated at 55 and 56. And it includes, with regard to 56: I

think they are still guilty of the crime even if they are only

operating back stage.

So there is just a permeated feeling of bias in 1221.

I'm going to remove for cause.

1242.

MR. EISENBERG: 1242, Your Honor, this is another one

of the question 32, disagreed crossed the line, but I

understand the Court's ruling with respect to that question.

That person should be brought in. Her answers vary with

respect to the series I call between 51 and 56 or 57.

THE COURT: And given that observation, as I so

observed, we'll keep 1242 in for further probing.

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1305.

MR. EISENBERG: 1305, Your Honor, excuse me, give me a

moment, please.

THE COURT: This individual -- let me just say that

this individual indicated, and I don't know if this is related

to health issues, this is in regards to question 51, I'm sorry,

52. They basically say: It's wrong to do this against

society.

Would the feeling affect your ability to be fair and

impartial?

Yes.

And the answer is very odd to me: I do not think

right when I get tired.

It's sort of nonresponsive, but sort of indicates a

lack of focus, I think. And then there is an e-mail. Did

we remove --

MS. PERLMETER: Your Honor, perhaps the juror is being

cheeky because their response to question number 53 was: How

many times are you going to answer the same question?

THE COURT: And I also have a supplemental note: I am

over 75 years old.

So we will remove 1305 for hardship.

1316.

MR. EISENBERG: Your Honor, I'll withdraw that one.

THE COURT: 1331.

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MR. EISENBERG: 1331, this is a person who says that

he or she is a sole provider. It might have been addressed

before. Also, I think that was my indication, Your Honor. I

am not sure. My notes don't reflect whether this was one that

was brought up before with respect to hardship. I might have

missed it.

THE COURT: No, it was not. I think that's the only

indication. We'll keep 1331 in for further probing.

1338.

MR. EISENBERG: On this one, Your Honor --

THE COURT: I know what you're going to say. This

person did some research.

MR. EISENBERG: Yes. The answers are peculiar with

respect to this 52 series. There is an indication after many

answers, something to the effect that, private. But what

really got me about this juror, potential juror, is question

really 64 and 65: If selected as a juror, this is 64, will you

be able to listen to and deliberate on the evidence, et cetera?

Not sure.

Please explain.

And then she says, or he: If topics include violent

or nonconsensual acts, I would not be comfortable with having

to view explicit images, probably not testimony as well from

persons denominated as victims.

65: Some of the charges that have been brought in

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this case involve claims of facilitation and so forth, would

it -- is there anything about these subjects that would make it

difficult for you to be fair and impartial in this case?

The answer is yes.

Please explain.

I would be coming in with a bias of assuming that

those facilitating a business are taking advantage of the

people who are participating in the prostitution. See it as

sex trafficking of marginalized communities. Private.

So I think --

THE COURT: Well, let me just stop you there,

Mr. Eisenberg. I think that, and there's also an indication on

question 71, that the individuals, one of two people that has

the skills to do work at the company, and that they have

quarterly and monthly reporting to do, and he would not be able

to complete that, and I think those answers in addition to

doing this background or having background familiarity at

answer eight are sufficient to remove for cause.

Ms. Perlmeter, do you want to put anything on the

record with respect to 1338?

MS. PERLMETER: We would object to 1338, Your Honor.

This juror is one of a few people who can do their job, but we

believe that it's worth bringing the juror in to question

because like most of society, they will eventually take a

vacation or fall ill and somebody will need to cover for them

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for work, and there must be a plan in place, and we feel like

this is an important -- jury service is an important civic

duty, and she should be brought in to answer questions like

many of the others that are part of this panel.

THE COURT: Well, I'm going to overrule in particular

because of some of the inconsistent answers, and the fact that

the person has familiarity with at least one of the defendants

and the issues.

1408.

MR. EISENBERG: 1408.

THE COURT: 1408 indicates at answer 64 and 73 that

they would be very biased with this trial. And basically

states in response to question 51 that: I hate it. My friends

are affected by pornography. I hate it. Yes, they would be

affected. I don't like it. It's wrong. I think it's wrong.

Repetitive statements like that. Is there an

objection to removing 1408 for cause?

MS. PERLMETER: No, Your Honor.

THE COURT: 1408 is removed.

I have 1440.

MR. EISENBERG: Your Honor, may I have a moment? I'll

withdraw that one. 1382, Your Honor.

THE COURT: What is that, what number?

MR. EISENBERG: 1382, Your Honor.

THE COURT: What is the objection?

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145

MR. EISENBERG: This is actually -- this is one more

for inconvenience. He says: The week of 9-11 I have an

out-of-the-office meeting in Tucson. I already booked that. I

already booked that. It's critical to projects I'm working on.

I'm the sole person in charge of building competitive pricing

reports. This is in block one.

I think he also has a medical problem. Block 70 says:

I have a lower back problem.

THE COURT: I have a, yeah, I couldn't read my own

writing. I thought I wrote "teleworking." It says: Tucson,

working on September 11th.

MR. EISENBERG: 71, he says: Three-month trial is a

major, major burden on myself, my job and my wife. And he goes

on to talk about having just the one car.

THE COURT: Any reason why 1382 should not be removed

for hardship, Ms. Perlmeter?

MS. PERLMETER: We do. This juror indicates, or the

juror could be fair and impartial as to the topics of

prostitution, adult. It is an inconvenience to everybody to

have to serve on a three-month jury, but that alone should not

be a reason to strike someone for cause.

THE COURT: I think he says: I have a trip scheduled

in September that can't be rescheduled because it relates to my

husband, it relates to my husband's job, and I need to be

there.

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146

I am going to remove that juror. I'm sorry. I am

looking at the wrong questionnaire. I'm going to remove 1382

for hardship.

Getting back now to 1440, this person, I don't know

why I -- maybe -- maybe -- so this person actually has paid

vacation to Canada, yes, Canada, September 23rd through the

29th.

MR. EISENBERG: Also, Your Honor, I am sorry --

THE COURT: Shall be removed for hardship.

MS. PERLMETER: Juror also said tickets have not been

purchased and dates can be changed. Sorry. There's a -- there

is --

MR. EISENBERG: This is more complex than that, Your

Honor. She wants to accompany her husband. I think this is

the one.

THE COURT: Yes, that is the one. That's different.

MR. EISENBERG: I think we are on 1440.

THE COURT: Yes.

MR. EISENBERG: And the last, next to the last

question: Although it seems like it would be very interesting

and a privilege to serve, I am very concerned for my job and my

employer. Terrible hardship for him if I was gone for 46 days.

I have a trip scheduled in September that cannot be

rescheduled because it relates to my husband's job, and I need

to be there.

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MS. PERLMETER: Your Honor, we would object. She is

stating that it's a hardship to the employer. And then

furthermore, I understand she may want to accompany her husband

on his work job trip, but I think we should bring her in and

have her explain if she's needed. Is she a participant or is

she going to accompany him for some other reason? She

indicated the tickets haven't been purchased.

THE COURT: Well, I am going to overrule and remove

1440 for hardship.

1514, the person does indicate having high blood

pressure and he's concerned about that. It says: My concern

is that I don't want to be seated on the jury and have my blood

pressure go out of control.

I am going to remove 14, sorry, 1514 for hardship.

MR. EISENBERG: There is one other, Your Honor. I

think that I omitted 1486. This is -- this goes to hardship:

I am the sole income provider for my wife and two children. My

job has a small base -- this is from question 71 -- it is made

primarily up from commission from loans that I close each

month.

He also talks about very bad --

THE COURT: Is this the person who can only sit for

30 minutes?

MR. EISENBERG: Yes, Your Honor.

MS. PERLMETER: Which juror is Mr. Eisenberg referring

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to?

THE COURT: 1486.

MS. PERLMETER: Yes. We already argued 1486. This is

the individual who has back issues, and the government's

position is that the Court can accommodate stretch breaks

standing up, you know.

THE COURT: Yes. I think we already said we'd keep

him in, and just probe a little on that.

MR. EISENBERG: The only other one that I have in this

sequence is 1539, and you covered it in other questions.

THE COURT: What number? Speak up, Mr. Eisenberg.

MR. EISENBERG: 1539. I think this is a question in

which the person answered negatively to 32. And 32, the

problem is they disagree with B and C, but I heard the Court

give the opinion as to whether that person wanted to be brought

in.

THE COURT: Yes, we will keep that juror in, 1539.

1525, I have a defense cause strike request on 1525.

MR. EISENBERG: I think this may be another question

32, Your Honor.

THE COURT: A what?

MR. EISENBERG: Question 32. In that the answers here

are negative, but, yeah, disagree. This person disagrees

across the lot with the questions 32 A, B and C. I didn't find

anything else in there that came to mind that was grounds for

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strike for cause.

MS. PERLMETER: Yes. This juror's answers to question

32 were that he did not expect a person to testify in his own

defense. The criminal justice system does not make it -- he

answered appropriately.

MR. EISENBERG: No.

MS. PERLMETER: Is not required to prove his own --

THE COURT: Disagrees with the statement that

defendant in a criminal trial should be required to prove his

or her innocence.

MR. EISENBERG: Oh, sorry, Your Honor, my eyes are

crossed.

THE COURT: All right. 1525 will remain in.

I next have 1575.

MS. BERTRAND: I will be addressing that, Your Honor,

Joye Bertrand. The only basis for that was unusual. They just

didn't answer question 32. I am not sure if it was just a

reproduction issue with the copies we received, but consistent

with my colleagues' positions. I would be moving to strike

that person for cause. That's my only basis for cause.

THE COURT: We will keep the individual in and then we

will probe further on that question.

MS. BERTRAND: Next one I have is 1582.

THE COURT: Yes, I have.

MS. BERTRAND: Only basis for that motion for cause

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strike is the answers to question 32. I have no other argument

on that juror.

THE COURT: And we keep that person in, probe further,

1582.

MS. BERTRAND: 1615. My only basis is responses to

question 32. No further argument on that.

THE COURT: And we will keep 1615 in.

MS. BERTRAND: Likewise, with 1618.

THE COURT: And that juror will remain in for further

probing.

MS. BERTRAND: This one I have on my list is 1702.

THE COURT: I have 1633, was that person removed?

MS. BERTRAND: I thought we excused her for hardship.

She was the person with child care and her job almost killed

her.

MS. PERLMETER: The Court struck 1633.

THE COURT: 1633 is out. Okay. The other one, did

you say 1702?

MS. BERTRAND: Yes, ma'am. My basis is answers to

question 32, no further argument.

THE COURT: And 1702 will remain for further

questioning.

MS. BERTRAND: 1709, based on the answers to question

32.

THE COURT: We will keep that juror in for further

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questioning.

MS. BERTRAND: 1718. This was a little bit more,

little bit more fleshed out. There were answers to question 32

that were troubling. She also stated she's a little shy about

explicit topics, which makes me concerned about her ability to

consider the evidence in this matter and deliberate

independently.

MS. PERLMETER: Your Honor, she indicated she could be

fair and she had no strong feelings regarding the questions in

the 50s, and she said that she's a little bit shy. I'm a

little shy.

THE COURT: We will keep 1718 in.

MS. BERTRAND: Next one is 1723, that person.

THE COURT: Wait, one moment. 1723? I don't have --

MS. BERTRAND: Your Honor, that was a mistake on my

end. Sorry, Your Honor.

Next one is 1747. And again, I believe the only basis

is the answers to question 32.

THE COURT: And 1747 will remain in.

MS. BERTRAND: I have next 1757, but I -- yeah, 1757.

Question 32 and question 54 were issues.

THE COURT: Well, I think this is interesting because

I don't -- I don't think -- and you know, unless there is

something different that I don't know or appreciate, this is

strong feelings if there's physical violence, people being

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kidnapped or forced into it, or death. That is a pretty strong

statement.

MS. BERTRAND: And I would like to be heard about

that.

THE COURT: There's also an indication about, you

know, children not being exploited, but then there's this sort

of this other kind of position that it would also depend on

what the service or the crime is and how it's regulated.

MS. BERTRAND: I agree with you. There is some

response here that seemed equivocal, but with the answer to 54,

one thing that we know based on the government's witness list

in this case is they are going to put on evidence of forcible

involvement in prostitution.

I expect to hear from Ms. Svengard again, and we are

going to hear evidence based on their witness list of homicide

detectives where the government is going to try to tie their

evidence from these homicides to some involvement with Backpage

that I would note is not involved. There's a real risk with a

juror like this of that person blowing up our whole jury pool

given the evidence and the witness list that the government has

submitted.

THE COURT: Well, I think it's worth probing a little

further because with regard to the other questions in that

series, there is also an indication that it would not impact

their ability to be fair and impartial, and so we'll bring 1757

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in.

I have 1787.

MS. BERTRAND: That is based on their responses to

question 32. No further argument.

THE COURT: We will keep 1787 for further questioning.

1809.

MS. BERTRAND: Question 32 responses and responses to

question 54. It starts with some pretty clear bias pretty

quickly.

THE COURT: We'll keep this individual in for further

probing. There were some interesting responses.

MS. BERTRAND: There is also the answer to 56: I

believe the law enforcement should expend their DHERE

investigations and resources against businesses or anything

that promotes or facilitates prostitution because prostitution

is one thing that can lead to another thing in a crime.

Prostitution is very dangerous especially with random strangers

you do not know.

THE COURT: Well, and I do think there are some strong

statements at 54, 55, 56, and I am inclined to remove for

cause.

MS. PERLMETER: Your Honor, we would object to that.

We would ask that she be brought in. She has strong opinions,

but she didn't say that she could not be fair. It says: Would

it affect your ability to be a fair and impartial juror? She

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answered: No. She does not have strong feelings about

everything. As to question 55, she said she did not have

strong feelings about whether or not prostitution should be

legalized. So it's --

THE COURT: Well, that -- I think there is strong

indications, yes, to 54.

MS. PERLMETER: It's okay for -- we expect jurors to

have feelings and opinions, but the issue is whether or not

they can set aside and consider the evidence that is presented

in court and evaluate the case fairly and impartially, or

whether or not these opinions make them so biased that they

cannot sit. And while this juror has strong opinions, this one

doesn't seem to cross the line like some of the others do.

THE COURT: And I think in fairness, this person

ultimately states at 64: I will be able to listen and

deliberate to topics that involve sexual nature because I want

to hear the evidence that they have.

We'll keep 1809 in for further probing. There is some

inconsistencies there.

1815.

MS. BERTRAND: That is based on responses to questions

32, 51 and 64. The answers to question 32 are the least of my

concerns. Question 51, they refer to prostitution as a crime

against humanity. They specifically say in question 64 that

they would be biased.

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THE COURT: Ms. Perlmeter.

MS. PERLMETER: Your Honor, this juror indicated she

had strong feelings about pornography and can be fair related

to pornography. However, this is a case not involving

pornography. As to prostitution, this juror indicated they

could be fair.

THE COURT: Well, I think there's also the answer to

73: If the case involves sex trafficking and pornography, I

feel these are the worse crimes against humanity and this would

affect my judgement.

I think I am going to remove for cause.

And 1873.

MS. BERTRAND: Excuse me, Your Honor, let me just get

there.

Your Honor, this was based in part on answers to rule

32. Let me just double-check to make sure I am not

overlooking.

COURTROOM DEPUTY: Phones needs to be silenced,

please.

MS. BERTRAND: Your Honor, I have no further argument

regarding that juror.

THE COURT: 1873 will be kept in. That is all I have.

MS. LAWSON: There is one more, 1794. It was one of

the late submissions.

THE COURT: 1794.

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MS. LAWSON: 1794, correct. This juror indicated

several hardship reasons that I don't think we ever addressed.

THE COURT: What are they?

MS. LAWSON: This person is unemployed and looking for

work effective October 1st. Has depression and anxiety and

difficulty concentrating, and takes medication that may impact

cognitive function.

THE COURT: Any objection for hardship removal?

MR. BERRY: No, Your Honor.

THE COURT: 1794 is removed for hardship. Did I

overlook anyone?

MS. BERTRAND: I don't believe so.

THE COURT: Now, those are the individuals that will

not report. We, I believe, have to get to at least 95 or 100,

and I think we have enough. The remainder who remain in the

pool will come in. We usually have some drop out in between

time, and so that is how we will proceed.

Now, I wanted to go over what I expect at the trial.

There were other issues related to -- I know I gave counsel the

opportunity to file pleadings with regard to jury instructions

and to do that in a very resourceful way.

I think the only other items that I want to raise are

related to -- and I will go over trial conduct on August 4th.

To the extent that counsel don't find a necessity to come in on

August 4th, I do want to make sure that you understand, so far

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we have not seen anyone order daily transcripts. Our court

reporters are going to be sharing this duty and they need to

have those orders timely.

With regard to the public and media, there is no live

audio feed available from this SPC courtroom, and we will have

a designated place for media in the back of the courtroom. I

direct counsel and media to look at Local Rule 43.1, Rule 43.1

regarding conduct in the courtroom and the Environs.

So order those daily transcripts.

I will cover the remaining trial conduct issues on

August 4th, but I just want to say that everyone is going to

question their witnesses from the podium. You're going to give

me at least an advance notice of who is going to question the

witness from either side. Those are the individuals that are

permitted to make the objections during the cross-examination.

I know it's a little bit unwieldy with a lot of defense

counsel, and so if you want to designate a person, or you can

make an objection if somebody misses an objection, for example.

I think I covered this before, but I do not permit

sidebars. Sidebars waste a lot of time for the jury. If you

have an objection, if I overrule your objection and you want to

make a full record, you just tell me you want to make a record

and I will make a note of it. We will take up your oral

statement to the Court at a break or the beginning or the end

of the day, but I'll have a notation that you'll want to do

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that.

From time to time I have been known to change my

ruling. So -- and of course, no speaking objections. Hearsay,

form of the question, cite the rule.

I think there is -- I saw a concern somewhere about

how to refer to testimony that was already taken in the trial,

the mistrial, and I think it's appropriate to say something

like, "In a prior hearing you said," but I don't want anybody

here saying, "In the last trial you said." It's a fine point,

but it's an important point. It may move to prejudice a party

one way or the other, so please be very cautious about that.

The other matters I will take up on August 4th, unless

there is something pressing immediately here that you wish to

raise for my consideration --

MR. RAPP: One matter. This has to do to the exhibits

provided to the Court so the Court can have the exhibits as the

witness is testifying. My paralegal tells me that our exhibits

would fill ten notebooks -- 100, 100 notebooks.

MR. STONE: 100.

THE COURT: Ten notebooks to me would be a delight.

MR. RAPP: I omitted a zero on that 100 notebooks. So

what we are suggesting is that we provide you with a notebook

or a CD, if the Court would prefer to have just a CD of the

exhibits so they can look at the exhibits on a computer.

That's one option. The other option is that we provide in a

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notebook the chronological exhibits as the witnesses are

testifying so that you're looking at the hard copy. Whatever

you prefer.

THE COURT: Well, I think in order to manage the

exhibits you can bring in forward the exhibits that are going

to be used for that witness for that day. I don't want to be

inundated with, you know, 50 binders up here. So to the extent

that you can provide the Court with whatever those exhibits

are. They are going to be displayed here. And presuming that

that's going to work, it should be sufficient for you at least

with your, those exhibits that may be electronic. I don't know

what your exhibits are. I guess it's very hard for me to

determine.

MR. RAPP: They are all electronic. Not to interrupt.

THE COURT: I guess I don't know what the necessity is

for you to give me a hard binder copy.

MR. RAPP: If the Court is fine with just looking at

the exhibit realtime as it's being shown to the witness, that

is fine. Then there is no reason to give the Court a CD of the

exhibits, nor a notebook with the exhibits.

THE COURT: I would like a CD of the exhibits in

advance. I will need that for both my court reporter, Liliana

and me because I will look at them in advance. So if you can

give them to me in a CD form.

MR. RAPP: I think we already provided those today.

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MS. PERLMETER: We gave a copy of the exhibits for the

court reporter -- for the court reporters to share during the

trial today, just one.

COURTROOM DEPUTY: One more.

MR. RAPP: Done. Thank you. That's all we have on

that issue.

MR. BERRY: I have one issue. There was a motion

filed by a government witness who is represented by counsel.

THE COURT: Yes. Yes. I meant to take that up. Is

there an objection to that? Is there a necessity to bring that

individual in?

MR. BERRY: I wanted to address my understanding --

because I haven't seen any motion other than the motion to

seal -- I understand that the defense have all agreed for

Mr. Allen to testify remotely. And as long as they are

consenting to that so that there is no confrontation clause

issue, the government is okay with him testifying remotely.

They need to consent, and I haven't seen it. I am just taking

it on representation of witness counsel that they all agreed.

THE COURT: And that was what was provided to the

Court that you had no objection to that witness, and I can't

remember the gentleman's name.

MR. ECKSTEIN: Ernie Allen. We have no objection to

him testifying remotely.

THE COURT: All right. So what you will do is

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48 hours beforehand you'll let my courtroom deputy know when

you anticipate calling that witness so that we can make sure

that all of the proper technology is running.

MR. BERRY: Yes, Your Honor.

THE COURT: I will take up also what I thought was a

trial brief, and the trial brief seems to raise new issues that

are more along the lines of motions in limine. I haven't had a

chance to thoroughly digest the trial brief, and I will take

that up on August 4th, any issues that are outstanding with

regard to that. Anything further?

MR. LINCENBERG: On August 4th -- this is

Mr. Lincenberg. I am not sure what all yet will be on the

agenda, do we have permission to appear remotely?

THE COURT: No, not here. We don't have that capacity

yet on August 4th.

MR. LINCENBERG: And if one of our -- if

Mr. Panchapakesan or I are here, is there -- do you have the

ability for the other two to listen in by phone?

THE COURT: I'll have to double-check. Our -- we

would have the capacity for you to listen in by telephone, I

think, but I would prefer to have at least one counsel here.

And if you wish to waive presence, you may do so. But

otherwise I realize one of the nuances of this room is there's

no light. There's no light switch. We're at natural light.

So anything further from defense counsel?

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MR. CAMBRIA: Yes, Your Honor, I understood -- sorry,

I understood that the last trial I know that one of my

associates was able to listen in in realtime and work with me,

and I know today the same thing happened, will that be

happening for the trial? Because we frankly are in a situation

where we don't have the funds to have another lawyer here with

me, and that would help me if they can listen in and we can

communicate by computer.

THE COURT: At this point, no, that's -- it's an issue

with regard to this room.

MR. CAMBRIA: We did it today.

THE COURT: But to accommodate a number of counsel on

a line and the Court loses control about whether or not

proceedings are being recorded, and that's prohibited against

the local rule.

MR. CAMBRIA: This would be an attorney and obviously

the attorney --

THE COURT: I will have to inquire, Mr. Cambria.

MR. LINCENBERG: Your Honor, we did do that at the

last trial, which was in this courtroom.

THE COURT: And I will remind everybody that that was

during the time of COVID, so there were other restrictions that

were lifted. And we are not in the time of COVID, so things

have changed in terms of access to video and so on.

MR. LINCENBERG: It's not a matter of technology.

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It's a matter of court rules.

THE COURT: Not speaking for my IT department. I

don't know. We'll find out. Oh, yes, it was the CARES Act

that authorized the way that the matter was handled the last

time.

So anything further?

MR. FEDER: Do the clients need to be here August 4th?

THE COURT: No. I just said if you wish to waive

presence, you may.

All right. There being nothing further, we are

adjourned.

(Proceedings concluded at 6:58 p.m.)

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C E R T I F I C A T E

I, HILDA E. LOPEZ, do hereby certify that I am duly

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

I FURTHER CERTIFY that the foregoing pages constitute

a full, true, and accurate transcript of all of that portion of

the proceedings contained herein, had in the above-entitled

cause on the date specified therein, and that said transcript

was prepared under my direction and control.

DATED at Phoenix, Arizona, this 2nd day of August,

2023.

s/Hilda E. Lopez_______

HILDA E. LOPEZ, RMR, FCRR

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