1 Case No. 2:18-cr-00422-SMB

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Nanci L. Clarence (CA State Bar No. 122286, admitted pro hac vice) 

Jonathan Baum (CA State Bar No. 303469, admitted pro hac vice) 

Shaneeda Jaffer (CA State Bar No. 253449, admitted pro hac vice) 

CLARENCE DYER & COHEN LLP 

899 Ellis Street 

San Francisco, CA 94109 

Tel: (415) 749-1800 

Fax: (415) 749-1694 

nclarence@clarencedyer.com 

jbaum@clarencedyer.com

sjaffer@clarencedyer.com 

Attorneys for Movant CARL FERRER 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

 v. 

Michael Lacey, et al. 

 Defendants. 

CASE NO. 2:18-cr-00422-SMB 

NOTICE OF MOTION AND MOTION TO 

QUASH SUBPOENA SERVED BY 

DEFENDANT JAMES LARKIN ON 

CARL FERRER 

Hearing Date: Oct. 3, 2019 

Hearing Time: 9:00 a.m. 

PLEASE TAKE NOTICE that on Oct. 3, 2019, at 9:00 a.m., or as soon thereafter as 

counsel may be heard in the above-entitled Court located at 401 West Washington Street, 

Phoenix, AZ 85003-2151, subpoenaed party Carl Ferrer, by and through his counsel, Clarence 

Dyer & Cohen, LLP, will move for the Court to quash the subpoena to provide testimony at the 

evidentiary hearing related to the Defendants’ motion to compel served upon him by Defendant 

James Larkin. 

This motion is brought on the grounds that compliance with the subpoena would be 

unreasonable and/or oppressive, as it would require Mr. Ferrer to travel hundreds of miles, when 

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NOTICE OF MOTION AND MOTION TO QUASH SUBPOENA SERVED BY DEF. LARKIN ON C. FERRER 

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he has already communicated to Defendants’ counsel that he intends to assert his Fifth 

Amendment privilege and decline to provide substantive testimony. 

In addition, the subpoena should be quashed because it was not accompanied by the 

required witness-attendance fees or legal mileage allowances under Rule 17(d) of the Federal 

Rules of Criminal Procedure. 

This motion will be based upon this Notice of Motion and motion, the Memorandum of 

Points and Authorities set forth below, Declaration of Jonathan Baum, Declaration of Chris 

Kempel, and on all papers and records on file in the above-captioned action, as well as any 

evidence as may be presented at the hearing of this motion. 

Dated: September 23, 2019 Respectfully submitted, 

CLARENCE DYER & COHEN LLP 

By

Nanci L. Clarence 

 Jonathan Baum 

Shaneeda Jaffer

Attorneys for Movant Carl Ferrer

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NOTICE OF MOTION AND MOTION TO QUASH SUBPOENA SERVED BY DEF. LARKIN ON C. FERRER 

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MEMORANDUM OF POINTS AND AUTHORITIES 

INTRODUCTION

This subpoena to Carl Ferrer is a transparent attempt by Defendants to use an unrelated 

discovery dispute between Defendants and the government to obtain a deposition of the 

government’s key witness against them at their upcoming trial. 

This subpoena is improper for many reasons. First, while Mr. Ferrer served as the cofounder and CEO of Backpage.com and had numerous interactions with Defendants 

concerning their joint efforts to promote prostitution and launder Backpage proceeds, Mr. 

Ferrer has no knowledge or expertise relevant to this hearing. Mr. Ferrer was not involved in 

the government’s decision about how to produce ESI to Defendants and has not reviewed the 

government’s production. Indeed, as is made clear in the enclosed declaration from 

Backpage’s former Chief Information Officer, Chris Kempel, Mr. Ferrer is unable to answer 

basic technical questions about how the company’s data was managed because that function 

was outsourced to an independent data management vendor (Desertnet). 

Second, this subpoena is improper because Mr. Ferrer has communicated to 

Defendants’ counsel that he intends to assert his Fifth Amendment privilege and decline to 

provide any substantive testimony related to his role at Backpage at this hearing. Defendants’ 

insistence that Mr. Ferrer attend the hearing, knowing that he intends to assert his Fifth 

Amendment privilege, constitutes nothing more than an attempt to harass Mr. Ferrer for his 

decision to plead guilty and cooperate with the government against them in this matter. 

The burden and expense of flying Mr. Ferrer from Texas, where he is currently under 

pretrial supervision by both federal and state authorities, only to assert his Fifth Amendment 

privilege against self-incrimination, far outweighs any benefit that Mr. Ferrer’s testimony 

could provide. Under these circumstances, the subpoena should be quashed under Rule 17 of 

the Federal Rules of Civil Procedure on the grounds that complying with it would be 

unreasonable and/or oppressive. 

 In addition, the subpoena was not accompanied by the required witness-attendance 

fees or legal mileage allowances under Rule 17(d) of the Federal Rules of Criminal Procedure. 

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For the foregoing reasons, the subpoena served by Defendant Larkin on Carl Ferrer 

should be quashed. 

LEGAL STANDARD 

A subpoena for testimony may be quashed if compliance with it would be 

unreasonable or oppressive. See Fed. R. Crim. P. 17(c)(2); United States v. Bergeson, 425 

F.3d 1221, 1225 (9th Cir. 2005) (applying Rule 17(c)(2)’s “unreasonable or oppressive” 

standard for subpoenas for testimony in addition to subpoenas for documents and objects); 

United States v. Berberian, 767 F.2d 1324 (9th Cir. 1985); Amsler v. United States, 381 F.2d 

37, 51 (9th Cir. 1967). A decision to quash or modify a subpoena is within the sound 

discretion of the trial court. See United States v. Nixon, 418 U.S. 683, 702 (1974). 

“[T]he Sixth Amendment does not by its terms grant to a criminal defendant the right 

to secure the attendance and testimony of any and all witnesses.” U.S. v. Valenzuela-Bernal, 

458 U.S. 858, 867 (1982). “The accused does not have an unfettered right to offer testimony 

that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” 

Taylor v. Illinois, 484 U.S. 400, 410 (1988). Rule 17 subpoenas “are not discovery devices 

and may not be used to expand the scope of Rule 16.” United States v. Fletcher, 461 

F.Supp.2d 1101, 1102 (D. Ariz. 2006); see also United States v. Binday, 908 F.Supp.2d 485, 

492 (S.D.N.Y. 2012) (“an impermissible discovery motive is much more likely to underlie a 

subpoena calling for a return well in advance of trial than one issued for return the date trial is 

set to begin.”). 

“[A]ny requested testimony must pass muster under the Federal Rules of Evidence . . . 

[even] relevant evidence may be excluded ‘if its probative value is substantially outweighed 

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by 

considerations of undue delay, waste of time, or needless presentation of cumulative 

evidence.’” United States v. Rosen, 520 F. Supp.2d 802, 811 (E.D. Va. 2007) (quoting Fed. R. 

Evid. 403). 

Finally, there is no “Sixth Amendment right to conduct an exploratory foray based on 

mere speculation.” United States v. Rivera, 412 F.3d 562, 570 (4th Cir. 2005). 

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ARGUMENT 

1. The Court Should Quash this Subpoena Because Mr. Ferrer has Indicated his 

Intention to Assert his Fifth Amendment’s Privilege Against Self Incrimination 

This subpoena should be quashed because Mr. Ferrer has unequivocally expressed his 

intention to invoke his Fifth Amendment privilege against self-incrimination. See Baum Decl., 

para. 4 (“On Sept. 18, 2019, the day after receiving the subpoena from Defendant Larkin’s 

counsel, Mr. Ferrer’s counsel, Nanci Clarence, wrote to counsel for Mr. Larkin informing her 

that Mr. Ferrer would invoke his privilege against self-incrimination and decline to provide 

substantive testimony in response to all questions related to his role at Backpage.com.”). 

This assertion, together with Mr. Ferrer’s status as a criminal defendant in a related 

criminal case, United States v. Ferrer, Case No. 2:18-cr-00464-SMB, provides good cause for 

the Court to quash this subpoena. “[A] motion to quash a subpoena is an appropriate and the 

most effective procedural means of resolving the constitutional confrontation that is created 

whenever [a party] seeks to compel a witness to give self-incriminating testimony.” United 

States v. Berberian, 767 F.2d 1324, 1326 (9th Cir. 1985). In that case, which is analogous to 

the present matter, the Ninth Circuit upheld the district court’s decision to quash a subpoena 

directed to a co-defendant, whose case had been severed. The Ninth Circuit held that, because 

it was clear the witness would refuse to testify, “it was not necessary for [him] to wait until he 

was sworn before asserting his privilege against self-incrimination.” Id., at 1326. 

The fact that Mr. Ferrer has pled guilty in this Court does not deprive him of his Fifth 

Amendment rights. It is settled law that, even where a defendant has pled guilty, “[w]here the 

sentence has not yet been imposed a defendant may have a legitimate fear of adverse 

consequences from further testimony.” Mitchell v. United States, 526 U.S. 314, 326 (1999), 

citing Estelle v. Smith, 451 U.S. 454, 462 (1981). Indeed, Mr. Ferrer’s federal plea agreement 

specifically acknowledges the possibility that the Court may reject his plea and includes 

provisions that permit him to withdraw his guilty plea and/or that allow the government to 

vacate his federal plea agreement should state court judges in Texas or California reject his 

plea in those independent matters. Case No. 2:18-cr-00464-SMB, Dkt. No. 7-1, para. 3(c). 

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Here, Mr. Ferrer’s status as a defendant who has pled guilty but has not been sentenced means 

that his Fifth Amendment rights are fully intact. See Mitchell, supra, 526 U.S. at 326 (Fifth 

Amendment right against self- incrimination applies until a defendant’s “sentence has been 

fixed and the judgment of conviction has become final.”). 

This is not the only Court where Mr. Ferrer faces criminal exposure. Mr. Ferrer has 

also pled guilty, but is still awaiting sentencing, in state courts in California and Texas on 

similar charges related to the operation of Backpage.com. People v. Ferrer et al., Case No. 

16FE019224, Cal. Sup. Ct., Sacramento Cnty; State of Texas v. Ferrer, Case No. 18FC1652C. Additionally, there are ongoing criminal or quasi-criminal investigations into 

Backpage.com in Missouri, Massachusetts, and possibly other jurisdictions. See, e.g., 

Backpage.com, LLC v. Hawley, Case No. 17-cv-1951 (E.D. Mo.) These separate state matters 

provide an independent basis for Mr. Ferrer’s assertion of his Fifth Amendment privilege 

against self-incrimination. See Berberian, supra, 767 F.2d at 1326 (“the possibility of state 

criminal liability convinces us that the district court did not err in permitting the witness to 

rely on his privilege.”). 

Lastly, the fact that Mr. Ferrer has discussed his involvement with Backpage with the 

government is irrelevant to his assertion of the Fifth Amendment privilege in this matter. See 

Berberian, supra, 767 F.2d at 1324 (Ninth Circuit quashes on Fifth Amendment grounds 

subpoena calling for witness to “repeat the incriminating testimony he gave at his own 

suppression hearing.”); see also United States v. Trejo-Zambrano, 582 F.2d 460, 464 (9th Cir. 

1978) (“A waiver of the Fifth Amendment privilege at one stage of a proceeding is not a 

waiver of that right for other stages”), citing Jeffries v. United States, 215 F.2d 225 (9th Cir. 

1954). Mr. Ferrer’s Fifth Amendment privilege is fully intact, and he should not be required to 

attend this hearing simply to assert it. 

2. The Court Should Quash This Subpoena Because it is Unreasonable and 

Oppressive Given Mr. Ferrer’s Lack of Knowledge About the Subject of the 

Hearing 

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This hearing arises out of a discovery dispute between the government and Defendants 

related to the government’s production of “imaged” data from Backpage servers. (Dkt. No. 

643, at 10.) Mr. Ferrer had no involvement in or knowledge about the government’s decisions 

about how it would produce discovery to Defendants, and he can shed no light on the matter. 

Therefore, the subpoena to him for this hearing is inappropriate because his testimony would 

be irrelevant. See United States v. Fletcher, 461 F.Supp.2d 1101, 1103 (D. Ariz. 2006) (“It is 

fundamental that there must be a proceeding pending before the Court to which the 

subpoenaed material relate before the subpoena may issue.” (emphasis added)); United States 

v. Charamella, 294 F.Supp. 280, 286 (D. Del. 1968) (motion for Rule 17 subpoena denied 

where subpoenaed information would establish “irrelevant fact”). 

Mr. Ferrer’s lack of knowledge related to the highly technical issues at issue in this 

discovery dispute makes clear that his testimony would not be relevant to this hearing. 

Defendants’ dispute with the government centers on whether the discovery provided allows 

them to recreate the way that Backpage used “data and images drawn from numerous 

interrelated databased connected by specific software, systems, and algorithms.” (Dkt. No. 

643, at 11) But, as Backpage’s Chief Information Officer, Chris Kempel, attests, Mr. Ferrer 

knows little about this subject. See Kempel Decl. 

Mr. Kempel, who directly managed the data in question in his role at Backpage, 

explains: 

“Mr. Ferrer’s expertise was in classified sales and management. He was not 

technically versed, and did not have personal knowledge about how [the] company’s 

data servers functioned or how elements were pulled from multiple servers in order to 

generate an advertisement on Backpage as it would have been displayed to the user.” 

Kempel Decl., para. 3. 

The reason that Mr. Ferrer doesn’t have particularized knowledge about the 

functionality of Backpage’s servers is because Backpage outsourced management of its 

advertising servers to a vendor called Desertnet. Kempel Decl., para. 4. This vendor handled 

every aspect of managing Backpage’s servers. Id. Indeed, while Mr. Ferrer, along with dozens 

of other Backpage employees “were able to access the photos, text and banner ads, etc. for 

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moderation purposes on Desertnet servers,” Mr. Ferrer was not “able to access or administrate 

the underlying technology that the data resided on” and was not “knowledgeable about how it 

functioned.” Id., para. 5. Because Mr. Ferrer is not knowledgeable about the subject of the 

hearing, it would be oppressive and unduly burdensome to require him to travel to attend the 

hearing. 

3. The Court Should Quash the Subpoena for Failure to Comply with Rule 17(d) 

Lastly, the subpoena should be quashed because it was not accompanied by the 

required witness-attendance fees or legal mileage allowances under Rule 17(d) of the Federal 

Rules of Criminal Procedure. 

CONCLUSION 

For all of these reasons, the subpoena served by Defendant Larkin on Carl Ferrer 

should be quashed. 

Dated: September 23, 2019 Respectfully submitted, 

CLARENCE DYER & COHEN LLP 

 

By

Nanci L. Clarence 

 Jonathan Baum 

Shaneeda Jaffer

 Attorneys for Movant Carl Ferrer 

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1 Case No. 2:18-cr-00422-SMB 

DECLARATION OF JONATHAN BAUM IN SUPPORT OF MOTION TO QUASH SUBPOENA 

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Nanci L. Clarence (CA State Bar No. 122286, admitted pro hac vice) 

Jonathan Baum (CA State Bar No. 303469, admitted pro hac vice) 

Shaneeda Jaffer (CA State Bar No. 253449, admitted pro hac vice) 

CLARENCE DYER & COHEN LLP 

899 Ellis Street 

San Francisco, CA 94109 

Tel: (415) 749-1800 

Fax: (415) 749-1694 

nclarence@clarencedyer.com 

jbaum@clarencedyer.com

sjaffer@clarencedyer.com 

Attorneys for Movant CARL FERRER 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

 v. 

Michael Lacey, et al. 

 Defendants. 

CASE NO. 2:18-cr-00422-SMB 

DECLARATION OF JONATHAN BAUM 

IN SUPPORT OF MOTION TO QUASH 

SUBPOENA SERVED BY DEFENDANT 

JAMES LARKIN ON CARL FERRER 

Hearing Date: October 3, 2019 

Hearing Time: 9:00 a.m. 

I, Jonathan Baum, hereby declare as follows: 

1. I am an attorney admitted pro hac vice before this Court, and I am counsel of 

record for subpoenaed party Carl Ferrer in the above-entitled action. I have personal knowledge 

of the facts set forth below and, if called as a witness, could competently testify thereto. 

2. This declaration is submitted in support of Mr. Ferrer’s motion to quash the 

subpoena served by Defendant James Larkin. 

3. Attached hereto as Exhibit “A” is a true and correct copy of a letter from Mr. 

Larkin’s counsel, Whitney Z. Bernstein, sent to Nanci Clarence, copying me, on September 17, 

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DECLARATION OF JONATHAN BAUM IN SUPPORT OF MOTION TO QUASH SUBPOENA 

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2019. The letter encloses a subpoena to Mr. Ferrer, but is not accompanied by the required 

witness-attendance fees or legal mileage allowances under Rule 17(d) of the Federal Rules of 

Criminal Procedure. 

4. On September 18, 2019, the day after receiving the subpoena from Defendant 

Larkin’s counsel, Mr. Ferrer’s counsel, Nanci Clarence, wrote to counsel for Mr. Larkin, 

copying me, informing her that Mr. Ferrer would invoke his privilege against self-incrimination 

and decline to provide substantive testimony in response to all questions related to his role at 

Backpage.com. 

5. Attached hereto as Exhibit “B” is a true and correct copy of a letter sent from Mr. 

Ferrer’s counsel, Nanci Clarence, to Mr. Larkin’s counsel, Whitney Z. Bernstein, on September 

18, 2019. This letter states that, if required to attend, Mr. Ferrer would invoke his Fifth 

Amendment privilege against self-incrimination, and asks Ms. Bernstein to reply by September 

20 to confirm that she would still require Mr. Ferrer to attend the hearing. 

6. As of 1:00 p.m. on September 23, 2019, Ms. Bernstein has not responded to Ms. 

Clarence’s letter. 

7. I certify that, if called to testify at the hearing on Defendants' motion to compel, 

Mr. Ferrer will assert his Fifth Amendment right against self-incrimination and decline to 

provide testimony related to the operation of Backpage.com. 

I declare under penalty of perjury under the laws of the United States that the 

foregoing is true and correct. Executed on September 23, 2019, at San Francisco, California. 

 

 Jonathan Baum 

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EXHIBIT A 

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CalEdison Building: 601 W. 5th Street, Suite 720, Los Angeles, CA 90071, Tel. (213) 528-3400 _____________________________________________________________________________________________________________________ 

903 Calle Amanecer, Suite 350, San Clemente, CA 92673, Tel. (949) 369-3700 

September 17, 2019 

Via Email and Overnight Mail 

Nanci Clarence 

Clarence Dyer & Coehn LLP 

899 Ellis St. 

San Francisco, CA 94109 

Tel: 415-749-1800 

Fax: 451-749-1694 

Email: nclarence@clarencedyer.com 

Re: Subpoena for Carl Allen Ferrer 

Dear Ms. Clarence: 

I hope this letter finds you well. I am writing to provide a subpoena for your client, Carl 

Allen Ferrer, to be called as a witness at an upcoming evidentiary hearing in United States v. 

Lacey, et al., 18-CR-00422-PHX-SMB. Pursuant to the subpoena, Ferrer must be present at 9:00 

a.m. on Thursday, October 3, 2019 in Courtroom 506 at the Sandra Day O’Conner United States 

Courthouse (located at 401 W. Washington St., Phoenix, AZ 85003). 

A courtesy copy of the subpoena accompanies this letter. Because you represent Ferrer, 

we are sending the subpoena to you on his behalf. Please confirm that you will accept service on 

Ferrer’s behalf, or, alternatively, if you will not accept service for him. 

Very truly yours, 

 BIENERT | KATZMAN PC 

 

 Whitney Z. Bernstein 

 Thomas H. Bienert 

Enclosure (1) 

 

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EXHIBIT B 

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1 Case No. 2:18-cr-00422-SMB 

[PROPOSED] ORDER GRANTING MOTION TO QUASH SUBPOENA BY CARL FERRER 

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Nanci L. Clarence (CA State Bar No. 122286, admitted pro hac vice) 

Jonathan Baum (CA State Bar No. 303469, admitted pro hac vice) 

Shaneeda Jaffer (CA State Bar No. 253449, admitted pro hac vice) 

CLARENCE DYER & COHEN LLP 

899 Ellis Street 

San Francisco, CA 94109 

Tel: (415) 749-1800 

Fax: (415) 749-1694 

nclarence@clarencedyer.com 

jbaum@clarencedyer.com

sjaffer@clarencedyer.com 

Attorneys for Movant CARL FERRER 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

 v. 

Michael Lacey, et al. 

 Defendants. 

CASE NO. 2:18-cr-00422-SMB 

[PROPOSED] ORDER GRANTING 

MOTION TO QUASH SUBPOENA 

SERVED BY DEFENDANT JAMES 

LARKIN ON CARL FERRER 

The motion of subpoenaed party Carl Ferrer to quash the subpoena to provide testimony 

at the evidentiary hearing related to the Defendants’ motion to compel served upon him by 

Defendant James Larkin came on regularly for hearing on October 3, 2019, and counsel for the 

parties were present. 

 After considering the papers submitted in suppot of and in opposition to the motion, the 

authorities cited by the parties, as well as oral argument of counsel, IT IS HEREBY ORDERED 

THAT the motion to quash the subpoena is GRANTED. 

// 

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[PROPOSED] ORDER GRANTING MOTION TO QUASH SUBPOENA BY CARL FERRER 

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 IT IS SO ORDERED. 

DATED: 

 Honorable Susan M. Brnovich 

 United States District Judge 

 

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