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3747336.1

DEFENDANTS’ OPPOSITION TO US MEMORANDUM RE RELEVANCE OF 

CERTAIN ASPECTS OF NACOLE SVENDGARD’S TESTIMONY

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

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

BIENERT KATZMAN LITTRELL WILLIAMS LLP

903 Calle Amanecer, Suite 350

San Clemente, CA 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

Attorneys for Defendant James Larkin

Gary S. Lincenberg (admitted pro hac vice) glincenberg@birdmarella.com

Ariel A. Neuman (admitted pro hac vice) aneuman@birdmarella.com

Gopi K. Panchapakesan (admitted pro hac vice) gpanchapakesan@birdmarella.com

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW, P.C.

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: (310) 201-2100

Facsimile: (310) 201-2110

Attorneys for Defendant John Brunst

[Additional counsel listed on next page]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Michael Lacey, et al.,

Defendants.

CASE NO. 2:18-cr-00422-004-PHX-SMB

DEFENDANTS’ OPPOSITION TO 

UNITED STATES’ MEMORANDUM 

RE RELEVANCE OF CERTAIN 

ASPECTS OF NACOLE 

SVENDGARD’S TESTIMONY

Assigned to Hon. Susan M. Brnovich

Courtroom 506

Trial Date: September 1, 2021

Case 2:18-cr-00422-DJH Document 1291 Filed 09/09/21 Page 1 of 8
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3747336.1 2

DEFENDANTS’ OPPOSITION TO US MEMORANDUM RE RELEVANCE OF 

CERTAIN ASPECTS OF NACOLE SVENDGARD’S TESTIMONY

Paul J. Cambria, Jr. (admitted pro hac vice) pcambria@lglaw.com

Erin McCampbell (admitted pro hac vice) emccampbell@lglaw.com

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

Attorneys for Defendant Michael Lacey

Bruce Feder (AZ Bar No. 004832)

 bf@federlawpa.com

FEDER LAW OFFICE, P.A.

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

Telephone: (602) 257-0135 

Attorney for Defendant Scott Spear

David Eisenberg (AZ Bar No. 017218)

 david@deisenbergplc.com

DAVID EISENBERG PLC

3550 N. Central Ave., Suite 1155

Phoenix, Arizona 85012

Telephone: (602) 237-5076

Facsimile: (602) 314-6273

Attorney for Defendant Andrew Padilla

Joy Malby Bertrand (AZ Bar No. 024181) joy.bertrand@gmail.com

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

Telephone: (602)374-5321

Facsimile: (480)361-4694

Attorney for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 1291 Filed 09/09/21 Page 2 of 8
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3747336.1 3

DEFENDANTS’ OPPOSITION TO US MEMORANDUM RE RELEVANCE OF 

CERTAIN ASPECTS OF NACOLE SVENDGARD’S TESTIMONY

The Government intends to call witness Nacole Svendgard on September 10, 2021. 

On September 9, 2021, the Government filed a Memorandum claiming that five categories 

of testimony from Ms. Svendgard are relevant. (Dkt. 1285). As described by the 

Government, each of these five categories describe inadmissible testimony.

1. Government Description: Recovering her daughter (“JS”) after running 

away from home between June-September 2010 and her involvement (as JS’s guardian) in 

the prosecution of JS’s pimp, Baruti Hopson, and a “John” (Julian Tarver), which 

involved JS being posted on Backpage.com.

Defendants’ Objection: Evidence of a mother recovering her under-aged, runaway 

daughter is not relevant to a trial of whether these defendants specifically intended to 

facilitate business enterprises involved in prostitution. It is simply designed to garner 

sympathy for the plight of her daughter and others involved in trafficking. Nor is there any 

relevance to a mother’s “involvement” in the prosecution of her pimp. 

2. Government Description: Meetings she had with various Washington State 

elected officials, including the Seattle Mayor and Washington State Attorney General, in 

support of two legislative bills that dealt with trafficking children on Backpage.

Defendants’ Objection: The proposed testimony regarding the Svendgards’ effort to 

change the laws in the State of Washington is a misguided effort by the Government to 

further inject the irrelevant, highly prejudicial topic of child trafficking into this trial, here, 

in the form of policy debates and requests that Backpage shut down. This case is not about 

whether any defendant later learned that a prostitute had in the past run an advertisement 

on backpage.com. It is about whether any defendant knew that any of the 50 ads in the 

indictment were illegal before they were run, and willfully promoted the running of that 

ad. 

3. Government Description: Filing a civil lawsuit on behalf of JS against, 

among others, Backpage.com and JS’s pimp Baruti Hopson. In connection with this 

lawsuit, Ms. Svendgard will testify about (a) asking the National Center for Missing and 

Exploited Children (NCMEC) to file an amicus brief on behalf of her case, and (b) having 

Case 2:18-cr-00422-DJH Document 1291 Filed 09/09/21 Page 3 of 8
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3747336.1 4

DEFENDANTS’ OPPOSITION TO US MEMORANDUM RE RELEVANCE OF 

CERTAIN ASPECTS OF NACOLE SVENDGARD’S TESTIMONY

her deposition taken by Backpage’s attorneys in July 2017, after the Washington State 

Supreme Court issued a favorable ruling that permitted the case to move to the discovery 

phase. (J.S. v. Village Voice Media Holdings LLC, d/b/a Backpage.com and Baruti 

Hopson and New Times Media, 184 Wash. 2d 95 (2015).)

Defendants’ Objection: First, the J.S. opinion is irrelevant and admitting it would be 

confusing and unfairly prejudicial. In J.S., Ms. Svendgard’s daughter, Jessica Svendgard, 

sued Backpage and certain related entities claiming that Backpage helped develop the 

content of prostitution ads. The Washington court considered the issue on appeal from 

a denial of a motion to dismiss. Thus, the court considered the case “taking the complaint 

as true, as we must at this point.” Id. at 98. The court held that even though the 

Communications Decency Act of 1996 (47 U.S.C. § 230) provides immunity to internet 

platform providers for hosting ads, the complaint alleged that Backpage created the ads: 

“Viewing J.S.’ allegations in the light most favorable to J.S., as we must at this stage, 

J.S. alleged facts that, if proved true, would show that Backpage [developed 

content] . . . .” In other words, J.S. was a procedural decision; it was not a decision on the 

merits. Id. at 102. The case never resulted in a judgment.

To suggest that the mere filing by someone of a complaint puts a putative defendant 

on notice of illegality gives weight to unproven accusations that our entire history of 

jurisprudence goes to great lengths to counsel against. Indeed, Washington’s pleading 

requirements are particularly lax. Under Washington law, a complaint may be dismissed 

for failure to state a claim “only if it appears beyond a reasonable doubt that no facts 

exist that would justify recovery.” Id. at 716 (emphasis added, citation omitted). 

Washington courts may consider “hypothetical facts” that were not pled. Therefore, 

a complaint may not be dismissed “if any set of facts could exist that would justify 

recovery,” whether such facts were pled in the complaint or not. Hoffer v. State, 110 

Wash. 2d 415, 755 P.2d 781, 785 (1988). For this reason, Washington courts may grant 

motions to dismiss “only in the unusual case in which plaintiff includes allegations that 

show on the face of the complaint that there is some insuperable bar to relief.” J.S., 359 

Case 2:18-cr-00422-DJH Document 1291 Filed 09/09/21 Page 4 of 8
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3747336.1 5

DEFENDANTS’ OPPOSITION TO US MEMORANDUM RE RELEVANCE OF 

CERTAIN ASPECTS OF NACOLE SVENDGARD’S TESTIMONY

P.3d at 716. 

The Government has made it a habit in this case of suggesting that anytime 

someone complains that he or she does not like Backpage’s position, it is relevant to 

putting Backpage “on notice.” Indeed, the bulk of the government’s evidence in this case 

is purported “notice” evidence. The suggestion is that someone cannot stand up for what is 

right if enough people say it’s wrong. But bowing to the Government’s penchant for 

repeat accusations in lieu of offering evidence of court decisions on the merits should not 

confuse the Court into giving weight to the mere accusations. By way of analogy, the 

Government is about to call to testify Special Agent Tera Mackey, a defendant in a $59 

million civil rights complaint (Olajide v. Brown, et al., Case No. 2:17-cv-02168-TLN (ED

Cal.)). Under the government’s theory, the mere filing of a civil rights complaint would 

put Agent Mackey on notice that she is a civil rights abuser.1

In short, any reference to the J.S. opinion is irrelevant under Federal Rule of 

Evidence 401 because the lawsuit does not tend to make any fact more or less probable. 

And it is inadmissible under Rule 403 because there is a likelihood that the court opinion 

would mislead the jury into believing that there was a decision on the merits against 

Backpage and VVM. This would be unfairly prejudicial and clear error.

4. Government Description: Participation in two widely distributed 

documentaries (“The Long Night” and “I am Jane Doe”) about trafficking minors on 

Backpage. The United States believes the evidence will show that Defendants were aware 

and had notice of these two documentaries.

Defendants’ Objection: This proposed testimony is inadmissible under Rule 401. The 

documentaries also are inadmissible hearsay. The documentaries have nothing to do with 

defendants’ alleged intent to facilitate business enterprises involved in prostitution through 

 1 In effect, the Government is using “notice” evidence to establish the truth of third-party 

statements regarding the ills of Backpage.com. Indeed, the only proof of the 

Government’s claims that Backpage was a “hub” for prostitution and that a “majority” of 

the ads on the site were for prostitution are these third-party statements.

Case 2:18-cr-00422-DJH Document 1291 Filed 09/09/21 Page 5 of 8
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3747336.1 6

DEFENDANTS’ OPPOSITION TO US MEMORANDUM RE RELEVANCE OF 

CERTAIN ASPECTS OF NACOLE SVENDGARD’S TESTIMONY

running prostitution ads. At most, the documentaries would demonstrate that, well after 

the running of certain ads, defendants learned that J.S. and/or her pimp placed a facially 

lawful ad which they then used to promote her prostitution. But that proves nothing as to 

these defendants.

The documentaries are also inadmissible under Rule 403. The documentaries are 

all about child trafficking, which has not been charged here and which creates an 

enormous risk of unfair prejudice. The documentaries also give the gloss of star status to 

the Svendgards, leaving the suggestion they are widely recognized heroes for going after 

Backpage. 

5. Government Description: Her testimony before the United States Senate on 

the same day that Defendants Larkin, Lacey, and Padilla appeared, along with the 

comment she believes Mr. Lacey directed at her.

Defendants’ Objection: Defendants renew their objection to Nacole Svendgard’s

testimony about Mr. Lacey’s supposed comment to her. As to her testimony before the 

Senate, it is inadmissible hearsay and irrelevant to this case for the reasons set forth above. 

The Government is attempting to use the Svendgards to inflame the jury’s passions 

by creating a hero and infusing the aura of this case being of national significance—Senate 

testimony, movies, and the like. And it is clear that the Government is attempting to get in 

much of the child trafficking testimony through the ruse of calling it “background” or 

“contextual” testimony. It is a not-so-subtle tactic being used to pressure the jury: 

villainize the defendants in a way that tells the jurors that if they do not vote to convict, 

they will have wasted all of this public effort. The Court has a duty to maintain this trial as 

a forum for deciding guilt or innocence of specified charges, untainted by the efforts to 

turn it into a theatre for expressing opposition to child trafficking. 

For all these reasons, Ms. Svendgard’s proffered testimony is inadmissible. 

Pursuant to the District’s Electronic Case Filing Administrative Policies and

Procedures Manual (October 2020) § II (C) (3), Gary S. Lincenberg hereby attests that all

Case 2:18-cr-00422-DJH Document 1291 Filed 09/09/21 Page 6 of 8
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3747336.1 7

DEFENDANTS’ OPPOSITION TO US MEMORANDUM RE RELEVANCE OF 

CERTAIN ASPECTS OF NACOLE SVENDGARD’S TESTIMONY

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

content and have authorized its filing.

DATED: September 9, 2021 Respectfully submitted,

Thomas H. Bienert Jr.

Whitney Z. Bernstein

Bienert Katzman Littrell Williams LLP

By: /s/ Thomas H. Bienert, Jr.

Thomas H. Bienert Jr.

Attorneys for Defendant James Larkin

DATED: September 9, 2021 Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

Bird, Marella, Boxer, Wolpert, Nessim,

Drooks, Lincenberg & Rhow, P.C.

By: /s/ Gary S. Lincenberg

Gary S. Lincenberg

Attorneys for Defendant John Brunst

DATED: September 9, 2021 Paul J. Cambria

Erin McCampbell

Lipsitz Green Scime Cambria LLP

By: /s/ Paul J. Cambria

Paul J. Cambria

Attorneys for Defendant Michael Lacey

DATED: September 9, 2021 Feder Law Office, P.A.

By: /s/ Bruce S. Feder

Bruce S. Feder

Attorney for Defendant Scott Spear

Case 2:18-cr-00422-DJH Document 1291 Filed 09/09/21 Page 7 of 8
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3747336.1 8

DEFENDANTS’ OPPOSITION TO US MEMORANDUM RE RELEVANCE OF 

CERTAIN ASPECTS OF NACOLE SVENDGARD’S TESTIMONY

DATED: September 9, 2021 The Law Office of David Eisenberg, PLC

By: /s/ David Eisenberg

David Eisenberg

Attorney for Defendant Andrew Padilla

DATED: September 9, 2021 Joy Bertrand Esq. LLC

By: /s/ Joy Malby Bertrand

Joy Malby Bertrand 

Attorney for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 1291 Filed 09/09/21 Page 8 of 8