Exhibit C 

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff, 

vs. 

Michael Lacey, et al.,

Defendants.

CR-18-00422-PHX-SMB

UNITED STATES’ PROPOSED JURY 

INSTRUCTIONS

The United States submits the attached Proposed Jury Instructions, which includes both 

parties’ proposed instructions. Where applicable, the instructions have been modified to fit 

the facts of this case, as noted with an asterisk. In accordance with the Court’s guidance for 

jury instructions, the full text of all requested instructions is included below and each proposed 

instruction begins on a new page. Bracketed material remaining in the attached instructions 

indicates areas needing clarification or input from the Court.

Section I contains model instructions. If the instruction is stipulated to by the parties 

then it is preceded by “ST.” If only one party requests the instruction, then the instruction is 

preceded by either “PL” (Plaintiff) or “DF” (Defendant). Section II contains non-model 

instructions to which the parties have stipulated. Section III contains the non-model 

instructions requested by the United States. Section IV contains non-model instructions 

requested by Defendants and the United States’ objections. 

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I. MODEL INSTRUCTIONS

 1. Preliminary Instructions

ST 1.1 Duty of Jury

PL 1.2 The Charge – Presumption of Innocence*

DF 1.2 The Charge – Presumption of Innocence*

ST 1.3 What Is Evidence*

ST 1.4 What Is Not Evidence

ST 1.5 Direct and Circumstantial Evidence

ST 1.6 Ruling on Objections

ST 1.7 Credibility of Witnesses

ST 1.8 Conduct of the Jury

ST 1.9 No Transcript Available to Jury

ST 1.10 Taking Notes

ST 1.11 Outline of Trial

PL 1.13 Separate Consideration for Each Defendant

DF 1.13 Separate Consideration for Each Defendant

ST 1.16 Bench Conferences and Recesses 

 2. Instructions In The Course Of Trial

ST 2.1 Cautionary Instruction – First Recess

ST 2.2 Stipulated Testimony [if necessary]

ST 2.3 Stipulations of Fact [if necessary]

ST 2.12 Evidence for Limited Purpose [if necessary] 

3. Instructions At End Of Case

ST 3.1 Duties of Jury to Find Facts and Follow Law

PL 3.2 Charge Against Defendant Not Evidence – Presumption of Innocence –

Burden of Proof*

DF 3.2 Charge Against Defendant Not Evidence – Presumption of Innocence –

Burden of Proof*

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ST 3.3 Defendant’s Decision Not to Testify [if necessary]

ST 3.4 Defendant’s Decision to Testify [if necessary]

PL 3.5 Reasonable Doubt – Defined

DF 3.5 Reasonable Doubt – Defined

ST 3.6 What Is Evidence*

ST 3.7 What Is Not Evidence*

ST 3.8 Direct and Circumstantial Evidence

ST 3.9 Credibility of Witnesses

ST 3.10 Activities Not Charged*

PL 3.13 Separate Consideration of Multiple Counts—Multiple Defendants

DF 3.13 Separate Consideration of Multiple Counts—Multiple Defendants

ST 3.18 On or About—Defined*

 4. Consideration Of Particular Evidence

ST 4.9 Testimony of Witnesses Involving Special Circumstances—Immunity, 

Benefits, Accomplice, Plea*

ST 4.14 Opinion Evidence, Expert Witness*

ST 4.15 Dual Role Testimony*

ST 4.16 Charts and Summaries Not Admitted into Evidence [if necessary]

ST 4.17 Charts and Summaries Admitted into Evidence

5. Responsibility

PL 5.7 Knowingly – Defined*

PL 5.8 Deliberate Ignorance*

6. Specific Defenses

DF 6.10 Mere Presence*

7. Jury Deliberations

ST 7.1 Duty to Deliberate

ST 7.2 Consideration of Evidence – Conduct of the Jury

ST 7.3 Use of Notes

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ST 7.4 Jury Consideration of Punishment

ST 7.5 Verdict Form

ST 7.6 Communication With Court

8. Offenses Under Title 18

PL 8.20 Conspiracy—Elements (Count 1)*

DF 8.20 Conspiracy—Elements (Count 1)*

DF 8.22 Multiple Conspiracies 

PL 8.23 Conspiracy—Knowledge of and Associated with Other Conspirators*

DF 8.23 Conspiracy—Knowledge of and Associated with Other Conspirators*

PL 8.144 Travel Act—Interstate or Foreign Travel in Aid of Racketeering 

Enterprises*

DF 8.144 Travel Act—Interstate or Foreign Travel in Aid of Racketeering 

Enterprises*

PL 8.25 Conspiracy—Liability for Travel Act Violations Committed by CoConspirator (Pinkerton Charge)*

DF 8.25 Conspiracy—Liability for Travel Act Violations Committed by CoConspirator (Pinkerton Charge)*

PL 8.20 Conspiracy—Elements (Count 52)*

DF 8.20 Conspiracy—Elements (Count 52)*

PL 8.147 Laundering Monetary Instruments*

DF 8.147 Laundering Monetary Instruments*

PL 8.25 Conspiracy—Liability for Concealment Money Laundering Violations 

Committed by Co-Conspirator (Pinkerton Charge)*

DF 8.25 Conspiracy—Liability for International Promotional Money 

Laundering Violations Committed by Co-Conspirator (Pinkerton

Charge)*

PL 8.148 Transporting Funds to Promote Unlawful Activity*

DF 8.148 Transporting Funds to Promote Unlawful Activity*

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PL 8.25 Conspiracy—Liability for International Promotional Money 

Laundering Violations Committed by Co-Conspirator (Pinkerton 

Charge)*

DF 8.25 Conspiracy—Liability for International Promotional Money 

Laundering Violations Committed by Co-Conspirator (Pinkerton 

Charge)*

PL 8.150 Money Laundering*

DF 8.150 Money Laundering*

PL 8.149 Transporting Monetary Instruments for the Purpose of Laundering*

DF 8.149 Transporting Monetary Instruments for the Purpose of Laundering*

DF 8.22 Multiple Conspiracies*

II. NON-MODEL STIPULATED INSTRUCTIONS

III. NON-MODEL INSTRUCTIONS REQUESTED BY THE UNITED STATES

PL “Business Enterprise” Defined

PL “Uses Any Facility in Interstate Commerce” Defined

PL “Facilitate” Defined

PL Specific Intent Defined

PL Proof of Knowledge or Intent

PL State Law Need Not Be Violated for Defendants to Be Found Guilty Under the 

Travel Act

IV. NON-MODEL INSTRUCTIONS REQUESTED BY DEFENDANTS WITH 

THE UNITED STATES’ OBJECTIONS

DF Specific Intent

DF Defendant’s Good Faith

DF Defense Theory of the Case

DF Conspiracy—Willfulness Defined

DF First Amendment Protection—Protected Free Speech

DF First Amendment Protection—Websites Hosting Third-Party Ads

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DF First Amendment Protection— “Adult” Services Are Legal

DF First Amendment Protection—Examples of Legal “Adult” Services

DF First Amendment Protection—Website Has the Right to Exercise Editorial 

Control and Judgment

DF First Amendment Protection—Offensive and Sexual Speech

DF First Amendment Protection—Speech Presumed Protected

DF First Amendment Protection—Ads Presumed Protected

DF First Amendment Protection—Coded Advertisement Language

DF First Amendment Protection—Government Cannot Punish Legal Speech to 

Suppress Illegal Speech

DF First Amendment Protection—Protected Publication of Third-Party Speech

DF First Amendment Protection—No Requirement to Shut Down

DF First Amendment Protection—No Requirement to Investigate

DF First Amendment Protection—Publication Does Not Create Criminal 

Culpability

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1.1 DUTY OF JURY

Jurors: You now are the jury in this case, and I want to take a few minutes to tell 

you something about your duties as jurors and to give you some preliminary instructions. 

At the end of the trial I will give you more detailed [written] instructions that will control 

your deliberations. When you deliberate, it will be your duty to weigh and to evaluate all 

the evidence received in the case and, in that process, to decide the facts. To the facts as 

you find them, you will apply the law as I give it to you, whether you agree with the law 

or not. You must decide the case solely on the evidence and the law before you. Perform 

these duties fairly and impartially. You should not be influenced by any person’s race, 

color, religious beliefs, national ancestry, sexual orientation, gender identity, gender, or 

economic circumstances. Also, do not allow yourself to be influenced by personal likes or 

dislikes, sympathy, prejudice, fear, public opinion, or biases, including unconscious biases. 

Unconscious biases are stereotypes, attitudes, or preferences that people may consciously 

reject but may be expressed without conscious awareness, control, or intention. Like 

conscious bias, unconscious bias can affect how we evaluate information and make 

decisions.

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UNITED STATES’ PROPOSED INSTRUCTION 1.2 THE CHARGE—

PRESUMPTION OF INNOCENCE

This is a criminal case brought by the United States government. The United States 

charges Defendants with conspiracy, violations of the Travel Act, and money laundering. 

The charges against Defendants are contained in the indictment. The indictment1 simply 

describes the charges the United States brings against Defendants. The indictment is not 

evidence and does not prove anything.

Defendants have pleaded not guilty to the charges and are presumed innocent unless 

and until the United States proves Defendants guilty beyond a reasonable doubt. In 

addition, Defendants have the right to remain silent and never have to prove innocence or 

present any evidence.

In order to help you follow the evidence, I will now give you a brief summary of 

the elements of the crimes that the United States must prove to make its case against each 

charged defendant: 

Count 1 is conspiracy—the three elements of conspiracy are as follows:

First, there was an agreement between two or more persons to commit at least one 

Travel Act offense as charged in the indictment;

Second, the defendant became a member of the conspiracy knowing of at least one 

of its objects, and intending to help accomplish it and

Third, one of the members of the conspiracy performed at least one overt act for the 

purpose of carrying out the conspiracy.

Counts 2-51 are Travel Act counts—the two elements to support a Travel Act 

conviction are as follows:

First, the defendant used the used the mail or any facility in interstate commerce with 

the intent to promote, manage, establish, carry on, or facilitate the promotion, management, 

establishment, or carrying on, of any business enterprise involving prostitution offenses in 

1 All references to “indictment” in these instructions refer to the United States’ 

superseding indictment (Doc. 230). 

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violation of the laws of the State in which they are committed or of the United States; and

Second, after doing so the defendant performed or attempted to perform an act that 

did promote, manage, establish, carry on, or facilitate the promotion, management, 

establishment, or carrying on, of any business enterprise involving prostitution offenses.

Further, you may find the defendants guilty of the Travel Act as charged in Counts 2-

51 of the indictment if the United States has proved each of the following elements beyond 

a reasonable doubt:

First, a member of the conspiracy committed the Travel Act offense as alleged in that 

count;

Second, the person was a member of the conspiracy charged in Count 1 of the 

indictment;

Third, the person committed the Travel Act offense alleged in furtherance of the 

conspiracy;

Fourth, the defendant was a member of the same conspiracy at the time the offense 

charged in Counts 2-51 was committed; and

Fifth, the offense fell within the scope of the unlawful agreement and could 

reasonably have been foreseen to be a necessary or natural consequence of the unlawful 

agreement.

Count 52 is conspiracy to commit money laundering—the two elements of money 

laundering conspiracy are as follows:

First, there was an agreement between two or more persons to commit at least one 

crimes alleged in the money laundering conspiracy, and 

Second, that the defendant became a member of the conspiracy knowing of at least 

one of its objects and intending to help accomplish it. 

Counts 53-62 are concealment money laundering—the three elements of concealment 

money laundering are as follows:

First, the defendant conducted a financial transaction involving property that 

represented the proceeds of promoting, managing, establishing, carrying on, or facilitating 

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the promotion, management, establishment, or carrying on, of any business enterprise 

involving prostitution offenses. 

Second, the defendant knew that the property represented the proceeds of some form 

of unlawful activity; and

Third, the defendant knew that the transaction was designed in whole or in part to 

conceal and disguise the nature, the location, the source, the ownership, or the control of the 

proceeds of the specified unlawful activity.

Counts 63-68 are international promotional money laundering—the two elements of 

international promotional money laundering are as follows:

First, the defendant transported money from a place in the United States to or through 

a place outside the United States or to a place in the United States from or through a place 

outside the United States; and

Second, the defendant acted with the intent to promote the carrying on of the specified 

criminal activity in the indictment. 

Counts 69-99 are transactional money laundering—the five elements of transactional 

money laundering are as follows:

First, the defendant knowingly engaged or attempted to engage in a monetary 

transaction;

Second, the defendant knew the transaction involved criminally derived property;

Third, the property had a value greater than $10,000;

Fourth, the property was, in fact, derived from specified unlawful activity, that is

promoting or facilitating the promotion of any business enterprise involving prostitution

offenses; and

Fifth, the transaction occurred in the United States.

Count 100 is international concealment money laundering—the three elements of 

international concealment money laundering are as follows:

First, the defendant transported money from a place in the United States to or through 

a place outside the United States;

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Second, the defendant knew that the money represented the proceeds of promoting or 

facilitating the promotion of any business enterprise involving prostitution offenses; and

Third, the defendant knew the transportation was designed in whole or in part to 

conceal or disguise the nature, location, source, ownership, or control of the proceeds of 

promoting or facilitating the promotion of any business enterprise involving prostitution

offenses.

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DEFENDANTS’ PROPOSED INSTRUCTION 

1.2 THE CHARGE—PRESUMPTION OF INNOCENCE

This is a criminal case brought by the United States government. The government 

charges the defendants with conspiracy, violations of the Travel Act, and money 

laundering. The charges against the defendants are contained in the indictment. The 

indictment simply describes the charges the government brings against the defendants. The 

indictment is not evidence and does not prove anything.

Each defendant has pleaded not guilty to all the charges and is presumed innocent 

unless the government proves that defendant guilty beyond a reasonable doubt. In addition, 

each defendant has the right to remain silent and never has to prove innocence or present 

any evidence.

In order to help you follow the evidence, I will now give you a brief summary of 

the elements of the crimes that the government must prove to make its case against each 

defendant: 

Count 1 is conspiracy—the three elements of conspiracy are as follows:

First, beginning in or around 2004, and ending on or about April 2018, there was an 

agreement between two or more persons to commit a violation of the Travel Act by 

promoting, or facilitating the promotion of, prostitution offenses committed by a particular 

business enterprise in violation of the laws of the State in which they are committed, as 

charged in Count 1 of the indictment;

Second, that defendant became a member of the conspiracy knowing of at least one 

of its illegal objects and with the specific intent of helping promote, or facilitate the 

promotion of, prostitution offenses committed by a particular business enterprise in 

violation of the laws of the State in which they are committed; and

Third, one of the members of the conspiracy performed at least one overt act on or 

after March 28, 2013, for the purpose of carrying out the conspiracy. Without at least one 

defendant’s overt act to specifically promote, or facilitate the promotion of, prostitution 

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offenses committed by a particular business enterprise in violation of the laws of the State 

in which they are committed, you cannot find a conspiracy.

Counts 2-51 are Travel Act counts—the two elements to support a Travel Act 

conviction are as follows:

First, that defendant used the mail or any facility in interstate commerce with the 

specific intent to promote, or facilitate the promotion of, the prostitution offenses 

committed by a particular business enterprise in violation of the laws of the State in which 

they were committed, as alleged in each Count; and

Second, after doing so, that defendant performed an act to promote, or facilitate the 

promotion of, the prostitution offenses committed by a particular business enterprise 

associated with that particular ad specified in each Count.

Further, you may find a defendant guilty of violating the Travel Act as charged in 

Counts 2-51 of the indictment if the government has proved each of the following elements 

beyond a reasonable doubt:

First, a person named in Count 1 of the indictment committed the crime of violating 

the Travel Act by promoting, or facilitating the promotion of, prostitution offenses 

committed by a particular business enterprise in violation of the laws of the State in which 

they are committed;

Second, the person named in Count 1 was a member of the conspiracy as charged 

in Count 1 of the indictment;

Third, the person named in Count 1 committed the crime of promoting, or 

facilitating the promotion of, prostitution offenses committed by a business enterprise in 

furtherance of the conspiracy;

Fourth, the defendant was a member of the same conspiracy at the time the offenses 

charged in Counts 2-51 were committed;

Fifth, the offense fell within the scope of the unlawful agreement and could 

reasonably have been foreseen to be a necessary or natural consequence of the unlawful 

agreement.

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Count 52 is conspiracy to commit money laundering—the three elements of money 

laundering conspiracy are as follows:

First, beginning in or around 2004, and ending on or about April 2018, there was an 

agreement between two or more persons to commit concealment money laundering in 

violation of Section 1956(a)(1)(B)(i), international promotional money laundering in 

violation of Section 1956(a)(2)(A), transactional money laundering in violation of Section 

1957(a), and international concealment money laundering in violation of Section 

1956(a)(2)(B)(i); and

Second, a defendant became a member of the conspiracy to commit concealment, 

international promotional, transactional, and international concealment money laundering 

knowing of at least one of its illegal objects and with the specific intent to help commit one 

or more of the substantive money laundering offenses charged (whose elements are listed 

below); and

Third, one of the members of the conspiracy performed at least one overt act on or 

after March 28, 2013, for the purpose of carrying out the conspiracy to commit 

concealment, international promotional, transactional, and international concealment 

money laundering. 

Counts 53-62 are concealment money laundering—the three elements of 

concealment money laundering are as follows:

First, the defendant conducted a financial transaction involving property that 

represented the proceeds of the knowing and willful promotion, or facilitation of the 

promotion of, prostitution offense of a particular business enterprise in violation of 18 

U.S.C. § 1952(a)(3)(A), specifically (i) a business enterprise involved in at least one of the 

fifty advertisements that is the subject of Counts 2 – 51 and (ii) a business enterprise for 

which you found that Defendant guilty of promoting or facilitating the promotion of; 

Second, the defendant knew that the property represented the proceeds of some form 

of unlawful activity; and

Third, the defendant knew that the transaction was designed in whole or in part to 

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conceal and disguise the nature, the location, the source, the ownership, or the control of 

the proceeds of the specified unlawful activity.

Counts 63-68 are international promotional money laundering—the two elements 

of international promotional money laundering are as follows:

First, the defendant transported money from a place in the United States to or 

through a place outside the United States or to a place in the United States from or through 

a place outside the United States; and

Second, the defendant acted with the intent to promote, or facilitate the promotion 

of, a particular business enterprise involving prostitution offenses in violation of 18 U.S.C. 

§ 1952(a)(3)(A), specifically (i) a business enterprise involved in at least one of the fifty

advertisements that is the subject of Counts 2 – 51 and (ii) a business enterprise for which 

you found that defendant guilty of promoting or facilitating the promotion of.

Counts 69-99 are transactional money laundering—the five elements of 

transactional money laundering are as follows:

First, the defendant knowingly engaged or attempted to engage in a monetary 

transaction;

Second, the defendant knew the specific transaction charged involved specific 

criminally derived property;

Third, the property had a value greater than $10,000;

Fourth, the property was, in fact, derived from the knowing and willful promotion,

or facilitation of the promotion of, the prostitution offenses committed by a particular 

business enterprise in violation of 18 U.S.C. § 1952(a)(3)(A), specifically (i) a business 

enterprise involved in at least one of the fifty advertisements that is the subject of Counts 

2 – 51 and (ii) a business enterprise for which you found that Defendant guilty of promoting 

or facilitating the promotion of; and

Fifth, the transaction occurred in the United States.

Count 100 is international concealment money laundering—the three elements of 

international concealment money laundering are as follows:

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First, the defendant transported money from a place in the United States to or 

through a place outside the United States;

Second, the defendant knew that the money represented the proceeds of the knowing 

and willful promotion, or facilitation of the promotion of, the prostitution offenses 

committed by a particular business enterprise in violation of 18 U.S.C. § 1952(a)(3)(A), 

specifically (i) a business enterprise involved in at least one of the fifty advertisements that 

is the subject of Counts 2 – 51 and (ii) a business enterprise for which you found that 

defendant guilty of promoting or facilitating the promotion of; and

Third, the defendant knew the transportation was designed in whole or in part to 

conceal or disguise the nature, location, source, ownership, or control of the proceeds of 

the knowing and willful promotion, or facilitation of the promotion of, the prostitution 

offenses committed by a business enterprise in violation of 18 U.S.C. § 1952(a)(3)(A).

Supporting Authorities

See United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB,

Doc. No. 946 at 13 (Order denying motion to dismiss) (“[Defendants] were not indicted 

for facilitating the amorphous notion of ‘prostitution.’ They were indicted for facilitating 

(via publishing ads) on fifty distinct occasions where prostitutes, prostitution-related 

businesses, or other groups were involved in the business of prostitution.”); see United 

States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Transcript of 

December 4, 2020 Hearing (“And I think one of the key things in my reason for denying 

the recusal is that this case is not about Backpage. Backpage was prosecuted in a separate 

case, entered a plea in a separate case. This case is about these individual defendants and 

whether they had specific knowledge of these ads as facilitating illegal activity.”). 

UNITED STATES’ OBJECTIONS

Defendants’ isolated quote from the Court’s May 4, 2020 Order denying their 

Motion to Dismiss Indictment for Failure to Allege the Necessary Elements of the Travel 

Act (Doc. 946) fails to support their proposed instruction. In disagreeing with Defendants’ 

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assertion that the SI failed to identify the “unlawful activity” under the Travel Act that 

forms the basis for Travel Act charges, the Court wrote: “Based on the allegations here, 

Defendants are not charged with anything related to gambling, narcotics, bribery, extortion 

or arson. Rather, they are clearly charged with intending to facilitate and thereafter 

facilitating or attempting to facilitate businesses involved in prostitution. See 18 U.S.C. 

§ 1952(b)(i)(1).” (Doc. 946 at 9; see also id. at 11 (“Additionally, and as noted, the ‘to 

wit: prostitution offenses’ language directs Defendants to which ‘unlawful activity’ is 

charged under each Travel Act count.”) (citing (Doc. 230 (“SI”)¶ 201).) Addressing the 

individual substantive Travel Act charges in Counts 2-51, the Court also observed that “the 

SI alleges fifty instances where Defendants posted ads on Backpage.com to facilitate 

specific individual prostitutes or pimps involved in the business of prostitution” and used 

language that “almost identically mirrors the Travel Act’s text.” (Doc. 946 at 11, citing 

SI¶¶ 200-201.) Later, rejecting Defendants’ suggestion that the SI indicted a “‘boundless 

conspiracy’ to facilitate prostitution in general,” the Court wrote that “[s]uch a claim is 

simply untrue” because Defendants “were not indicted for facilitating the amorphous 

notion of ‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty 

distinct occasions where prostitutes, prostitution-related businesses, or other groups were 

involved in the business of prostitution.” (Doc. 946 at 13.) The Court went on to explain 

that these fifty instances were part and parcel of “a continuous course of conduct where 

Defendants facilitated ‘unlawful activity’ [including] numerous pimps, prostitutes and 

traffickers in violation of the Travel Act.” (Doc. 946 at 13-14.)

Defendants’ proposed instruction incorporates many of the errors discussed in Part 

I.8 (Offenses Under Title 18), below. These errors include, without limitation:

Count 1 – Conspiracy 

- In the first element, Defendants insist that a Travel Act violation must involve 

“promoting, or facilitating the promotion of, prostitution offenses committed by 

a particular business enterprise.” (emphasis added). The word “particular” is 

unnecessary and confusing. The statute states that “unlawful activity” under the 

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Travel Act is defined as “any business enterprise involving . . . prostitution 

offenses in violation of the laws of the State in which they are committed or of 

the United States.” 18 U.S.C. § 1952(b)(i)(1). Unlike Defendants’ proposed 

instruction, the United States’ instruction tracks the statutory definition of 

“unlawful activity.” Moreover, this Court has recognized that “[i]nstead of 

alleging formal labels, what must be alleged for the ‘unlawful activity’ element 

under Section 1952(b)(i) are allegations showing ‘a continuous course of 

criminal conduct.’” (Doc. 946 at 10.) 

- In the second element, Defendants add the word “illegal,” which is redundant 

and not part of the Model Instruction. The first element in the Model Instruction 

states, in pertinent part, “there was an agreement between two or more persons 

to commit at least one crime as charged in the indictment,” while the second 

element makes clear the crime requires that “the defendant became a member of 

the conspiracy knowing of at least one of its objects and intending to help 

accomplish it.” The word “illegal” doesn’t clarify any aspect of this crime and 

shouldn’t be part of the instruction.

- In the third element, Defendants again add language to the Model Instruction 

that is unnecessary. The final sentence in the third element is redundant and 

restates the language in the first element. Moreover, Defendants erroneously 

state that the overt act must be performed by one of the defendants. Under 

established law, any person who is a member of the conspiracy—a category of 

persons not limited to Defendants—may perform the overt act. See Model 

Instruction 8.20.

Counts 2-51 – Travel Act

- Defendants’ proposed instruction includes, in the first three elements under the 

Pinkerton theory of liability, that “a person named in Count 1” must have 

committed the Travel Act violation. This instruction is too restrictive and does 

not appropriately convey Pinkerton liability. For a defendant to be found guilty 

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at trial under a Pinkerton theory, the co-conspirator need not be named in the 

indictment. United States v. Carpenter, 961 F.2d 824, 828 n.3 (9th Cir. 1992) 

(“As an unindicted co-conspirator, Shahabian’s acts and statements in 

furtherance of the conspiracy may be attributed to Carpenter.”) (citing Pinkerton 

v. United States, 328 U.S. 640, 646-47 (1946)). Here, the Court has already 

recognized that Pinkerton liability extends to individuals not named in the 

Superseding Indictment. (Doc. 793 at 19) (discussing Pinkerton and fact that 

“C.F” was a co-conspirator of Defendants). See also United States v. Long, 301 

F.3d 1095, 1103 (9th Cir 2002) (“The Pinkerton doctrine is a judicially-created 

rule that makes a conspirator criminally liable for the substantive offenses 

committed by a co-conspirator when they are reasonably foreseeable and 

committed in furtherance of the conspiracy.”). Both the applicable law and facts 

support the Court instructing the jury using the United States’ proposed 

instruction. 

Count 52 – Conspiracy

- Defendants’ proposed instruction includes an overt act requirement, which isn’t 

part of a money laundering conspiracy. An overt act is not part of a money 

laundering conspiracy. Whitfield v. United States, 543 U.S. 209, 210-11 (2005) 

(“These cases present the question whether conviction for conspiracy to commit 

money laundering, in violation of 18 U.S.C. § 1956(h), requires proof of an overt 

act in furtherance of the conspiracy. We hold that it does not.”); id. at 214 

(“Because the text of § 1956(h) does not expressly make the commission of an 

overt act an element of the conspiracy offense, the Government need not prove 

an overt act to obtain a conviction.”). 

Counts 53-100 – Various Money Laundering Offenses

- The parties’ proposed instructions are similar except Defendants propose 

a much more stringent definition of the specified unlawful activity. As 

this Court has previously recognized, that instruction is contrary to 

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governing law. “[T]he first money laundering statute that Defendants are 

indicted under does not require the Government to allege or prove the 

underlying offenses.” (Doc. 946 at 17.) See 18 U.S.C. § 1956(c)(1) (“the 

term ‘knowing that the property involved in a financial transaction 

represents the proceeds of some form of unlawful activity’ means that the 

person knew the property involved in the transaction represented 

proceeds from some form, though not necessarily which form, of activity 

that constitutes a felony.” (emphasis added)).

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1.3 WHAT IS EVIDENCE

The evidence you are to consider in deciding what the facts are consists of:

(1) the sworn testimony of any witness; and

(2) the exhibits that are received in evidence; and

(3) any facts to which the parties agree.

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1.4 WHAT IS NOT EVIDENCE

The following things are not evidence, and you must not consider them as 

evidence in deciding the facts of this case:

(1) statements and arguments of the attorneys;

(2) questions and objections of the attorneys;

(3) testimony that I instruct you to disregard; and

(4) anything you may see or hear when the court is not in session even if what you 

see or hear is done or said by one of the parties or by one of the witnesses.

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1.5 DIRECT AND CIRCUMSTANTIAL EVIDENCE

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, 

such as testimony by a witness about what that witness personally saw or heard or did. 

Circumstantial evidence is indirect evidence, that is, it is proof of one or more facts from 

which one can find another fact.

You are to consider both direct and circumstantial evidence. Either can be used to 

prove any fact. The law makes no distinction between the weight to be given to either direct 

or circumstantial evidence. It is for you to decide how much weight to give to any evidence.

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1.6 RULING ON OBJECTIONS

There are rules of evidence that control what can be received in evidence. When a 

lawyer asks a question or offers an exhibit in evidence and a lawyer on the other side thinks 

that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the 

objection, the question may be answered or the exhibit received. If I sustain the objection, 

the question cannot be answered, or the exhibit cannot be received. Whenever I sustain an 

objection to a question, you must ignore the question and must not guess what the answer 

would have been.

Sometimes I may order that evidence be stricken from the record and that you 

disregard or ignore the evidence. That means that when you are deciding the case, you must 

not consider the evidence that I told you to disregard.

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1.7 CREDIBILITY OF WITNESSES

In deciding the facts in this case, you may have to decide which testimony to believe 

and which testimony not to believe. You may believe everything a witness says, or part of 

it, or none of it.

In considering the testimony of any witness, you may take into account:

(1) the witness’s opportunity and ability to see or hear or know the things testified

to;

(2) the witness’s memory;

(3) the witness’s manner while testifying;

(4) the witness’s interest in the outcome of the case, if any;

(5) the witness’s bias or prejudice, if any;

(6) whether other evidence contradicted the witness’s testimony;

(7) the reasonableness of the witness’s testimony in light of all the evidence; and

(8) any other factors that bear on believability.

You must avoid bias, conscious or unconscious, based on a witness’s race, color, 

religious beliefs, national ancestry, sexual orientation, gender identity, gender, or economic 

circumstances in your determination of credibility.

The weight of the evidence as to a fact does not necessarily depend on the number 

of witnesses who testify about it. What is important is how believable the witnesses are, 

and how much weight you think their testimony deserves.

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1.8 CONDUCT OF THE JURY

I will now say a few words about your conduct as jurors.

First, keep an open mind throughout the trial, and do not decide what the verdict 

should be until you and your fellow jurors have completed your deliberations at the end of 

the case.

Second, because you must decide this case based only on the evidence received in 

the case and on my instructions as to the law that applies, you must not be exposed to any 

other information about the case or to the issues it involves during the course of your jury 

duty. Thus, until the end of the case or unless I tell you otherwise:

Do not communicate with anyone in any way and do not let anyone else 

communicate with you in any way about the merits of the case or anything to do with it. 

This restriction includes discussing the case in person, in writing, by phone or electronic 

means, via email, via text messaging, or any Internet chat room, blog, website or 

application, including but not limited to Facebook, YouTube, Twitter, Instagram, 

LinkedIn, Snapchat, or any other forms of social media. This restriction also applies to 

communicating with your fellow jurors until I give you the case for deliberation, and it 

applies to communicating with everyone else including your family members, your 

employer, the media or press, and the people involved in the trial, although you may notify 

your family and your employer that you have been seated as a juror in the case, and how 

long you expect the trial to last. But, if you are asked or approached in any way about your 

jury service or anything about this case, you must respond that you have been ordered not 

to discuss the matter. In addition, you must report the contact to the court.

Because you will receive all the evidence and legal instruction you properly may 

consider to return a verdict: do not read, watch, or listen to any news or media accounts or 

commentary about the case or anything to do with it; do not do any research, such as 

consulting dictionaries, searching the Internet or using other reference materials; and do 

not make any investigation or in any other way try to learn about the case on your own. Do 

not visit or view any place discussed in this case, and do not use Internet programs or other 

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devices to search for or view any place discussed during the trial. Also, do not do any 

research about this case, the law, or the people involved—including the parties, the 

witnesses or the lawyers—until you have been excused as jurors. If you happen to read or 

hear anything touching on this case in the media, turn away and report it to me as soon as 

possible.

These rules protect each party’s right to have this case decided only on evidence

that has been presented here in court. Witnesses here in court take an oath to tell the truth, 

and the accuracy of their testimony is tested through the trial process. If you do any research 

or investigation outside the courtroom, or gain any information through improper 

communications, then your verdict may be influenced by inaccurate, incomplete or 

misleading information that has not been tested by the trial process. Each of the parties is 

entitled to a fair trial by an impartial jury, and if you decide the case based on information 

not presented in court, you will have denied the parties a fair trial. Remember, you have 

taken an oath to follow the rules, and it is very important that you follow these rules.

A juror who violates these restrictions jeopardizes the fairness of these proceedings

[, and a mistrial could result that would require the entire trial process to start over]. If any 

juror is exposed to any outside information, please notify the court immediately.

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1.9 NO TRANSCRIPT AVAILABLE TO JURY

At the end of the trial you will have to make your decision based on what you recall 

of the evidence. You will not have a written transcript of the trial. I urge you to pay close 

attention to the testimony as it is given.

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1.10 TAKING NOTES

If you wish, you may take notes to help you remember the evidence. If you do take 

notes, please keep them to yourself until you and your fellow jurors go to the jury room to 

decide the case. Do not let note-taking distract you from being attentive. When you leave 

court for recesses, your notes should be left in the [courtroom] [jury room] [envelope in 

the jury room]. No one will read your notes.

Whether or not you take notes, you should rely on your own memory of the 

evidence. Notes are only to assist your memory. You should not be overly influenced by 

your notes or those of your fellow jurors.

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1.11 OUTLINE OF TRIAL

The next phase of the trial will now begin. First, each side may make an opening 

statement. An opening statement is not evidence. It is simply an outline to help you 

understand what that party expects the evidence will show. A party is not required to make 

an opening statement.

The United States will then present evidence and counsel for Defendants may crossexamine. Then, if Defendants choose to offer evidence, counsel for the United States may 

cross-examine.

After the evidence has been presented, [I will instruct you on the law that applies to 

the case and the attorneys will make closing arguments] [the attorneys will make closing 

arguments and I will instruct you on the law that applies to the case].

After that, you will go to the jury room to deliberate on your verdict.

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UNITED STATES’ PROPOSED INSTRUCTION 1.13 -- SEPARATE 

CONSIDERATION FOR EACH DEFENDANT

Although the defendants are being tried together, you must give separate 

consideration to each defendant. In doing so, you must determine which evidence in the 

case applies to each defendant, disregarding any evidence admitted solely against some 

other defendant[s]. The fact that you may find one of the defendants guilty or not guilty 

should not control your verdict as to any other defendant.

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DEFENDANTS’ PROPOSED 1.13 INSTRUCTION

Although the defendants are being tried together, you must give separate 

consideration to each defendant. In doing so, you must determine which evidence in the 

case applies to each defendant, disregarding any evidence admitted solely against some 

other defendant[s]. The fact that you may find one of the defendants guilty or not guilty 

should not control your verdict as to any other defendant.

Only the defendants are on trial. Backpage.com is not on trial. You must evaluate 

the evidence as to each individual defendant, and not as to Backpage.com or any other 

person.

Supporting Authorities

Ninth Circuit Manual of Model Criminal Jury Instructions 1.13 (online versions of 

May 25, 2021); see United States v. Lacey, et al. (D. Ariz), Case No. 18-CR-00422-PHXSMB, Transcript of December 4, 2020 Hearing (“And I think one of the key things in my 

reason for denying the recusal is that this case is not about Backpage. Backpage was 

prosecuted in a separate case, entered a plea in a separate case. This case is about these 

individual defendants and whether they had specific knowledge of these ads as facilitating 

illegal activity.”).

UNITED STATES’ OBJECTIONS

Defendants propose the same 1.13 instruction as the United States, but add an extra 

paragraph at the end. The United States objects. 

First, this extra language is unnecessary. The Model instruction aptly sets forth the 

law as it should be applied by the jury. Second, the added language is confusing. While 

it’s true that Backpage.com is not a defendant at trial (because it already pleaded guilty),2

it is also true that the six defendants created, and at relevant times owned, controlled, 

managed, and oversaw the website’s operations. As the Superseding Indictment alleges: 

“The website www.backpage.com (‘Backpage’) was, until being shut down by federal law 

2 United States v. Backpage.com, LLC, CR-18-465-PHX-DJH at Doc. 8-2.

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enforcement authorities in April 2018, notorious for being the internet’s leading source of 

prostitution advertisements.” (SI¶ 1.) 

“Backpage was created in 2004 by defendant Michael Lacey (“LACEY”), 

defendant James Larkin (“LARKIN”), and third individual, C.F. From 2004-15, LACEY 

and LARKIN oversaw the website’s policies and strategic direction. Additionally, LACEY 

and LARKIN retained significant control over the website (and continued receiving tens 

of millions of dollars of Backpage-related distributions) after purportedly selling their 

interests in Backpage in 2015.” (SI¶ 2.) 

“Defendant SCOTT SPEAR served as the Executive Vice President of one of 

Backpage’s parent companies and held, at times, an ownership interest in Backpage of 

approximately 4%.” (SI¶ 3.) 

“Defendant JOHN “JED” BRUNST (“BRUNST”) served as the Chief Financial 

Officer of Backpage and several of Backpage’s parent companies and held, at times, an 

ownership interest in Backpage of approximately 6%.” (SI¶ 4.) 

“Defendant ANDREW PADILLA (“PADILLA”) served as Backpage’s Operations 

Manager.” (SI¶ 5.) 

“Defendant JOYE VAUGHT (“VAUGHT”) served as Backpage’s assistant 

Operations Manager.” (SI¶ 6.)

In short, while Backpage.com isn’t on trial, the remaining defendants owned, 

managed, or operated the website, and they were largely responsible for the website’s 

strategic business decisions. The jury should be permitted to evaluate the evidence and 

make a determination about whether each individual defendant is guilty of crimes alleged 

against them in the SI. Part of that evaluation will be determining each individual 

defendant’s culpability in managing, owning, or operating Backpage.com.

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1.16 BENCH CONFERENCES AND RECESSES

During the trial, I may need to take up legal matters with the attorneys privately, 

either by having a conference at the bench when the jury is present in the courtroom, or by 

calling a recess. Please understand that while you are waiting, we are working. The purpose 

of these conferences is not to keep relevant information from you, but to decide how certain 

evidence is to be treated under the rules of evidence and to avoid confusion and error.

Of course, we will do what we can to keep the number and length of these 

conferences to a minimum. I may not always grant an attorney’s request for a conference. 

Do not consider my granting or denying a request for a conference as any indication of my 

opinion of the case or what your verdict should be.

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2.1 CAUTIONARY INSTRUCTION—FIRST RECESS

At the End of Each Day of the Case: 

As I indicated before this trial started, you as jurors will decide this case based solely 

on the evidence presented in this courtroom. This means that, after you leave here for the 

night, you must not conduct any independent research about this case, the matters in the 

case, the legal issues in the case, or the individuals or other entities involved in the case. 

This is important for the same reasons that jurors have long been instructed to limit their 

exposure to traditional forms of media information such as television and newspapers. You 

also must not communicate with anyone, in any way, about this case. And you must ignore 

any information about the case that you might see while browsing the internet or your 

social media feeds. 

At the Beginning of Each Day of the Case: 

As I reminded you yesterday and continue to emphasize to you today, it is important 

that you decide this case based solely on the evidence and the law presented here. So you 

must not learn any additional information about the case from sources outside the 

courtroom. To ensure fairness to all parties in this trial, I will now ask each of you whether 

you have learned about or shared any information about this case outside of this courtroom, 

even if it was accidental. 

[ALTERNATIVE 1 (in open court): if you think that you might have done so, please let 

me know now by raising your hand. [Wait for a show of hands]. I see no raised hands; 

however, if you would prefer to talk to the court privately in response to this question, 

please notify a member of the court’s staff at the next break. Thank you for your careful 

adherence to my instructions.]

[ALTERNATIVE 2 (during voir dire with each juror, individually): Have you learned 

about or shared any information about this case outside of this courtroom? . . . Thank you 

for your careful adherence to my instructions.]

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2.2 STIPULATED TESTIMONY

[if necessary]

The parties have agreed what [name of witness]’s testimony would be if called as a 

witness. You should consider that testimony in the same way as if it had been given here 

in court.

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2.3 STIPULATIONS OF FACT

[if necessary]

The parties have agreed to certain facts that have been stated to you. Those facts are 

now conclusively established.

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2.12 EVIDENCE FOR LIMITED PURPOSE

[if necessary]

You are about to hear evidence that [describe evidence to be received for limited 

purpose]. I instruct you that this evidence is admitted only for the limited purpose of 

[describe purpose] and, therefore, you must consider it only for that limited purpose and 

not for any other purpose.

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3.1 DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW

Members of the jury, now that you have heard all the evidence, it is my duty to 

instruct you on the law that applies to this case. A copy of these instructions will be 

available in the jury room for you to consult.

It is your duty to weigh and to evaluate all the evidence received in the case and, in 

that process, to decide the facts. It is also your duty to apply the law as I give it to you to 

the facts as you find them, whether you agree with the law or not. You must decide the 

case solely on the evidence and the law. Do not allow personal likes or dislikes, sympathy, 

prejudice, fear, or public opinion to influence you. You should also not be influenced by 

any person’s race, color, religious beliefs, national ancestry, sexual orientation, gender 

identity, gender, economic circumstances3 [, profession, occupation, celebrity, or position 

in life or in the community]. You will recall that you took an oath promising to do so at the 

beginning of the case.

You must follow all these instructions and not single out some and ignore others; 

they are all important. Please do not read into these instructions or into anything I may have 

said or done any suggestion as to what verdict you should return—that is a matter entirely 

up to you.

3 Modified to conform with the language in Model Criminal Jury Instruction 1.1.

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UNITED STATES’ PROPOSED INSTRUCTION 3.2 CHARGE AGAINST 

DEFENDANT NOT EVIDENCE—PRESUMPTION OF INNOCENCE—BURDEN 

OF PROOF

The indictment is not evidence. The defendants have pleaded not guilty to the 

charges. The defendants are presumed to be innocent unless and until the United States

proves the defendants guilty beyond a reasonable doubt. In addition, the defendants do not 

have to testify or present any evidence. The defendants do not have to prove innocence; 

the United States has the burden of proving every element of the charges beyond a 

reasonable doubt.

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DEFENDANTS’ PROPOSED 3.2 INSTRUCTION

I instruct you that you must presume each defendant to be innocent of the crimes 

charged. The indictment is not evidence. Each defendant has pleaded not guilty to the 

charges. Each defendant is presumed to be innocent unless the government proves him or 

her guilty beyond a reasonable doubt. The defendants do not have to testify or present any 

evidence. The defendants do not have to prove innocence. Thus, each defendant, although 

accused of crimes in the indictment, begins the trial with a “clean slate”—with no evidence 

against him or her. 

The indictment, as you already know, is not evidence of any kind. The defendants 

are, of course, not on trial for any act or crime not contained in the indictment. The law 

permits nothing but legal evidence presented before the jury in court to be considered in

support of any charge against a defendant. The presumption of innocence alone, therefore, 

is sufficient to acquit each defendant.

The government has the burden of proving every element of each charge beyond a 

reasonable doubt for each defendant. The burden is always upon the prosecution to prove 

guilt beyond a reasonable doubt. This burden never shifts to a defendant for the law never 

imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or 

producing any evidence. The defendant is not even obligated to produce any evidence by 

cross-examining the witnesses for the government.

Supporting Authorities

Ninth Circuit Manual of Model Criminal Jury Instructions 3.2 (2021); 1A Fed. Jury 

Prac. & Instr. § 12:10 (6th ed.), 1A Fed. Jury Prac. & Instr. § 12:10 (6th ed.).

UNITED STATES’ OBJECTIONS

Defendants propose an alternative 3.2 Instruction. The United States believes the 

Model Instruction is sufficient.

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3.3 DEFENDANT’S DECISION NOT TO TESTIFY

[if necessary]

A defendant in a criminal case has a constitutional right not to testify. In arriving at 

your verdict, the law prohibits you from considering in any manner that the defendant did 

not testify.

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3.4 DEFENDANT’S DECISION TO TESTIFY

[if necessary]

The defendant has testified. You should treat this testimony just as you would the 

testimony of any other witness.

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UNITED STATES’ PROPOSED INSTRUCTION 3.5 

REASONABLE DOUBT—DEFINED

Proof beyond a reasonable doubt is proof that leaves you firmly convinced the 

defendant is guilty. It is not required that the United States prove guilt beyond all possible 

doubt.

A reasonable doubt is a doubt based upon reason and common sense and is not based 

purely on speculation. It may arise from a careful and impartial consideration of all the 

evidence, or from lack of evidence.

If after a careful and impartial consideration of all the evidence, you are not 

convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the 

defendant not guilty. On the other hand, if after a careful and impartial consideration of all 

the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it 

is your duty to find the defendant guilty.

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DEFENDANTS’ PROPOSED 3.5 INSTRUCTION

Proof beyond a reasonable doubt is proof that leaves you firmly convinced a 

defendant is guilty. It is not required that the government prove guilt beyond all possible 

doubt.

A reasonable doubt is a doubt based upon reason and common sense—the kind of

doubt that would make a reasonable person hesitate to act—and is not based purely on 

speculation. It may arise from a careful and impartial consideration of all the evidence, or 

from lack of evidence.

Unless the government proves, beyond a reasonable doubt, that a defendant has 

committed each and every element of the offenses charged in the indictment, and that a 

defendant acted with criminal intend and lacked good faith, you must find that defendant 

not guilty of the offenses. If you view the evidence in the case as reasonably permitting 

either of two conclusions—one of innocence, the other of guilt—the jury must, of course, 

adopt the conclusion of innocence.

Supporting Authorities

Ninth Circuit Manual of Model Criminal Jury Instructions 3.5 (2021); 1A Fed. Jury 

Prac. & Instr. § 12:10 (6th ed.), 1A Fed. Jury Prac. & Instr. § 12:10 (6th ed.).

UNITED STATES’ OBJECTIONS

Defendants propose an alternative 3.5 Instruction that provides additional language 

beyond the Model Instruction. This added language to the instruction is unnecessary based 

on the additional instructions the Court will provide on the elements of the charged crimes. 

The Model Instruction is appropriate. 

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3.6 WHAT IS EVIDENCE

The evidence you are to consider in deciding what the facts are consists of:

(1) the sworn testimony of any witness; and

(2) the exhibits that are received in evidence; and

(3) any facts to which the parties agree.

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3.7 WHAT IS NOT EVIDENCE

The following things are not evidence, and you must not consider them as 

evidence in deciding the facts of this case:

(1) statements and arguments of the attorneys;

(2) questions and objections of the attorneys;

(3) testimony that I instruct you to disregard; and

(4) anything you may see or hear when the court is not in session even if what you 

see or hear is done or said by one of the parties or by one of the witnesses.

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3.8 DIRECT AND CIRCUMSTANTIAL EVIDENCE

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, 

such as testimony by a witness about what that witness personally saw or heard or did. 

Circumstantial evidence is indirect evidence, that is, it is proof of one or more facts from 

which one can find another fact.

You are to consider both direct and circumstantial evidence. Either can be used to 

prove any fact. The law makes no distinction between the weight to be given to either direct 

or circumstantial evidence. It is for you to decide how much weight to give to any evidence.

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3.9 CREDIBILITY OF WITNESSES

In deciding the facts in this case, you may have to decide which testimony to believe 

and which testimony not to believe. You may believe everything a witness says, or part of 

it, or none of it.

In considering the testimony of any witness, you may take into account:

(1) the witness’s opportunity and ability to see or hear or know the things testified 

to;

(2) the witness’s memory;

(3) the witness’s manner while testifying;

(4) the witness’s interest in the outcome of the case, if any;

(5) the witness’s bias or prejudice, if any;

(6) whether other evidence contradicted the witness’s testimony;

(7) the reasonableness of the witness’s testimony in light of all the evidence; and

(8) any other factors that bear on believability.

Sometimes a witness may say something that is not consistent with something else 

he or she said. Sometimes different witnesses will give different versions of what 

happened. People often forget things or make mistakes in what they remember. Also, two 

people may see the same event but remember it differently. You may consider these 

differences, but do not decide that testimony is untrue just because it differs from other 

testimony.

However, if you decide that a witness has deliberately testified untruthfully about 

something important, you may choose not to believe anything that witness said. On the 

other hand, if you think the witness testified untruthfully about some things but told the 

truth about others, you may accept the part you think is true and ignore the rest.

The weight of the evidence as to a fact does not necessarily depend on the number 

of witnesses who testify. What is important is how believable the witnesses were, and how 

much weight you think their testimony deserves.

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3.10 ACTIVITIES NOT CHARGED

You are here only to determine whether the defendants are guilty or not guilty of 

the charges in the indictment. The defendants are not on trial for any conduct or offense 

not charged in the indictment.

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UNITED STATES’ PROPOSED INSTRUCTION 3.13 SEPARATE 

CONSIDERATION OF MULTIPLE COUNTS—MULTIPLE DEFENDANTS

A separate crime is charged against one or more of the defendants in each count. 

The charges have been joined for trial. You must decide the case of each defendant on each 

crime charged against that defendant separately. Your verdict on any count as to any 

defendant should not control your verdict on any other count or as to any other defendant.

All the instructions apply to each defendant and to each count unless a specific 

instruction states that it applies only to a specific defendant or count.

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DEFENDANTS’ PROPOSED 3.13 INSTRUCTION

A separate crime is charged against one or more of the defendants in each count. 

The charges have been joined for trial. You must decide the case of each defendant on each 

crime charged against that defendant separately. Your verdict on any count as to any 

defendant should not control your verdict on any other count or as to any other defendant.

All the instructions apply to each defendant and to each count unless a specific 

instruction states that it applies only to a specific defendant or count.

Only the defendants are on trial. Backpage.com is not on trial. You must evaluate 

the evidence as to each individual defendant, not as to Backpage.com or any other person. 

Supporting Authorities

Ninth Circuit Manual of Model Criminal Jury Instructions 3.13 (2021); see United 

States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 

(Order denying motion to dismiss) (“[Defendants] were not indicted for facilitating the 

amorphous notion of ‘prostitution.’ They were indicted for facilitating (via publishing ads) 

on fifty distinct occasions where prostitutes, prostitution-related businesses, or other 

groups were involved in the business of prostitution.”); see United States v. Lacey, et al.

(D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Transcript of December 4, 2020 Hearing 

(“And I think one of the key things in my reason for denying the recusal is that this case is 

not about Backpage. Backpage was prosecuted in a separate case, entered a plea in a 

separate case. This case is about these individual defendants and whether they had specific 

knowledge of these ads as facilitating illegal activity.”). 

UNITED STATES’ OBJECTIONS

Defendants propose the same 3.13 instruction as the United States, but add an extra 

paragraph at the end. The United States objects for the same reasons set forth in its 

objection to Defendants’ proposed instruction 1.13. 

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3.18 ON OR ABOUT—DEFINED*

The indictment charges that the offenses alleged in Counts 2-51, 53-100, was 

committed “on or about” a certain date.

Although it is necessary for the United States to prove beyond a reasonable doubt 

that the offenses were committed on a date reasonably near the date alleged in Counts 2-

51, 53-100 the indictment, it is not necessary for the United States to prove that the offense 

was committed precisely on the date charged.

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4.9 TESTIMONY OF WITNESSES INVOLVING SPECIAL 

CIRCUMSTANCES—IMMUNITY, BENEFITS, ACCOMPLICE, PLEA*

You have heard testimony from Carl Ferrer and Dan Hyer, witnesses who pleaded 

guilty to a crime arising out of the same events for which the defendants are on trial. This 

guilty plea is not evidence against the defendants, and you may consider it only in 

determining the witnesses’ believability.

For these reasons, in evaluating the testimony of Carl Ferrer and Dan Hyer, you 

should consider the extent to which or whether their testimony may have been influenced 

by the fact that they have already pleaded guilty. In addition, you should examine the 

testimony of Carl Ferrer and Dan Hyer with greater caution than that of other witnesses.

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4.14 OPINION EVIDENCE, EXPERT WITNESS

You [have heard] [are about to hear] testimony from [name] who [testified] [will 

testify] to opinions and the reasons for [his] [her] opinions. This opinion testimony is 

allowed because of the education or experience of this witness.

Such opinion testimony should be judged like any other testimony. You may accept 

it or reject it, and give it as much weight as you think it deserves, considering the witness’s 

education and experience, the reasons given for the opinion, and all the other evidence in 

the case.

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4.15 DUAL ROLE TESTIMONY

You [have heard] [are about to hear] testimony from [name] who [testified] [will 

testify] to both facts and opinions and the reasons for [his] [her] opinions.

Fact testimony is based on what the witness saw, heard or did. Opinion testimony is 

based on the education or experience of the witness.

As to the testimony about facts, it is your job to decide which testimony to believe 

and which testimony not to believe. You may believe everything a witness says, or part of 

it, or none of it. [Take into account the factors discussed earlier in these instructions that 

were provided to assist you in weighing the credibility of witnesses.]

As to the testimony about the witness's opinions, this opinion testimony is allowed 

because of the education or experience of this witness. Opinion testimony should be judged 

like any other testimony. You may accept all of it, part of it, or none of it. You should give 

it as much weight as you think it deserves, considering the witness's education and 

experience, the reasons given for the opinion, and all the other evidence in the case.

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4.16 CHARTS AND SUMMARIES NOT ADMITTED INTO EVIDENCE

During the trial, certain charts and summaries were shown to you in order to help 

explain the evidence in the case. These charts and summaries were not admitted into 

evidence and will not go into the jury room with you. They are not themselves evidence 

or proof of any facts. If they do not correctly reflect the facts or figures shown by the 

evidence in the case, you should disregard these charts and summaries and determine the 

facts from the underlying evidence.

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4.17 CHARTS AND SUMMARIES ADMITTED INTO EVIDENCE

Certain charts and summaries have been admitted into evidence. Charts and 

summaries are only as good as the underlying supporting material. You should, therefore, 

give them only such weight as you think the underlying material deserves.

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UNITED STATES’ PROPOSED INSTRUCTION 5.7 KNOWINGLY—DEFINED

An act is done knowingly if the defendant is aware of the act, and does not act or 

fail to act through ignorance, mistake, or accident. You may consider evidence of the 

defendants’ words, acts, or omissions, along with all the other evidence, in deciding 

whether the defendant acted knowingly.

DEFENSE OBJECTION

The Travel Act and money laundering charges are specific intent crimes. Therefore, 

it would be reversible error to provide a “Knowingly” instruction here. See United States 

v. Gibson Specialty Co., 507 F.2d 446, 449 (9th Cir. 1974) (Travel Act violation is a 

specific intent crime); United States v. Gallo, 782 F.2d 1191, 1194 (4th Cir. 1986) (same); 

United States v. James, 210 F.3d 1342, 1345 (11th Cir. 2000) (same); see Ninth Circuit 

Model Criminal Jury Instructions at 8.146 cmt. (“Because it is a specific intent crime, it is 

reversible error to give Instruction 5.7 (Knowingly–Defined) in a money laundering case.”) 

(citing United States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994); United States v. Turman, 

122 F.3d 1167, 1169 (9th Cir. 1997)). 

See Ninth Circuit Model Criminal Jury Instructions at 8.146 cmt. (“Because it is a 

specific intent crime, it is reversible error to give Instruction 5.7 (Knowingly–Defined) in 

a money laundering case.”) Defendants propose a specific intent instruction to accurately 

advise the jury of the required mens rea for the charged offenses. See United States v. 

Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order 

denying motion to dismiss) (“[Defendants] were not indicted for facilitating the amorphous 

notion of ‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty 

distinct occasions where prostitutes, prostitution-related businesses, or other groups were 

involved in the business of prostitution.”); see United States v. Lacey, et al. (D. Ariz.), Case 

No. 18-CR-00422-PHX-SMB, Transcript of December 4, 2020 Hearing (“And I think one 

of the key things in my reason for denying the recusal is that this case is not about 

Backpage. Backpage was prosecuted in a separate case, entered a plea in a separate case. 

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This case is about these individual defendants and whether they had specific knowledge of 

these ads as facilitating illegal activity.”). 

UNITED STATES’ RESPONSE

Knowledge is an important element of several of the crimes charged in the SI. 

Critically, knowledge is a sine qua non of intent, as the Court recognized in its May 4, 2020 

Order: 

“To establish Defendants’ violation of the Travel Act, the Government must 

prove, among other things, that Defendants acted with a culpable state of mind.” United States v. Welch, 327 F.3d 1081, 1095 (10th Cir. 2003). “In other words, the Travel Act requires a defendant act not only with knowledge of what he is doing, but also with the objective of promoting some unlawful activity.” Id. As a result, there must be allegations that each Defendant had a “specific intent to promote, manage, establish, carry on or facilitate one of 

the prohibited activities.” United States v. Gibson Specialty Co., 507 F.2d 

446, 449 (9th Cir. 1974) (citing United States v. Gebhard, 441 F.2d 1261 (6th Cir. 1971)); see also United States v. Polizzi, 500 F.2d 856, 876–77 (9th Cir. 1974) (describing this element as a “specific intent to facilitate an activity 

which the accused knew to be unlawful”).

(Doc. 946 at 14 (emphasis added).) 

The Court went on to emphasize that Defendants’ alleged awareness—i.e., 

knowledge—that the vast majority of adult and escort ads on Backpage were for 

prostitution, combined with other allegations, further supported the SI’s allegations of 

intent:

First, the SI alleges Defendants “used the mail and any facility in interstate 

and foreign commerce with intent to otherwise promote, manage, establish, carry on, and facilitate the promotion, management, establishment, and carrying on of an unlawful activity, to wit: prostitution offenses . . . .” (SI ¶ 

201 (emphasis added)). It also alleges “Defendants were aware that the vast 

majority of the ‘adult’ and ‘escort’ ads appearing on Backpage were actually ads for prostitution and took steps to intentionally facilitate that illegal 

activity.” (Id. ¶ 9; see also id. ¶¶ 10-11.) Only by ignoring these allegations can it seriously be argued that Defendants’ intent to facilitate unlawful 

activity is not alleged.

(Doc. 946 at 15; see also id. at 16 (the SI additionally alleges Defendants “received notice 

by various third parties that a majority of their ‘adult services’ ads were being used to 

support these prostitution ventures”).) 

Indeed, Defendants’ proposed “specific intent” instruction includes a similar 

definition of “knowingly.” (“To establish specific intent, the government must prove 

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beyond a reasonable doubt that the defendant knowingly did an act which the law forbids, 

purposely and intending to violate the law. Such intent may be determined from all the 

facts and circumstances surrounding the case. An act or a failure to act is knowingly done 

if done voluntarily and intentionally, not because of mistake or accident, or other innocent 

reason.”) (emphasis added). Both parties propose a “specific intent” instruction, so the 

jury will not be not be confused as to the requisite mens rea. But, because specific intent 

can be inferred from knowledge, this instruction is appropriate. 

Additional authorities underscore that intent can be inferred from knowledge in a 

variety of circumstances—including several that fit comfortably within the allegations of 

the SI. In People v. Lauria, 59 Cal. Rptr. 628, 635 (Cal. Ct. App. 1967), for example, the

court reversed a conspiracy conviction of a defendant who operated a telephone messaging 

service knowing that some of his customers were using his services to further their 

prostitution businesses. After detailed legal analysis, the court found that the supplier’s 

specific intent to facilitate unlawful activity may be inferred from knowledge in any one of 

several circumstances (none of which was present in Lauria), including:

• “[P]roof . . . of inflated charges” for goods or services used for illegal activities (the 

United States anticipates introducing evidence that Backpage charged much higher 

fees for its “adult” and “escort” ads than for ads in its non-adult sections);

• “[E]vidence of any unusual volume of business with prostitutes,” such as where 

“sales for illegal use amount to a high proportion of the seller’s total business” (the 

United States anticipates introducing evidence that Backpage derived the lion’s 

share of its revenues from prostitution ads); or

• Selling goods or services that “serve no other purpose than to advertise the 

professional services of the prostitutes” (the United States anticipates introducing 

evidence that the vast majority of Backpage’s “adult” and “escort” ads were 

prostitution ads).

Lauria, 59 Cal. Rptr. at 632-33. See also Wayne R. LaFave, 2 Substantive Criminal Law

(SUBCRL) § 12.2(c)(3), Providing goods or services, (3d ed., Oct. 2020 update) (“Intent 

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may also be inferred from the fact that the seller has made inflated charges, that he has 

supplied goods or services which have no legitimate use, or that the sales to the illegal 

operation have become the dominant proportion of the seller’s business.”); id. (courts have 

also focused on “the quantity of the sales; the continuity of the relationship between seller 

and buyer; the seller’s initiative or encouragement; and the nature of the goods,” and on 

deceptive or “secretive” tactics used by the seller).

Moreover, Lauria found that no inference would be needed in cases involving 

“[d]irect evidence of participation, such as advice from the supplier of legal goods or 

services to the user of those goods or services on their use for illegal purposes. . . . When 

the intent to further and promote the criminal enterprise comes from the lips of the supplier 

himself, ambiguities of inference from circumstance need not trouble us.” Id. at 632. The 

United States anticipates introducing evidence showing, inter alia, that Backpage 

managers and employees helped customers craft their ads to reduce the risk of law 

enforcement detection without changing the underlying message (moderation), created ads 

for prostitutes and pimps and offered to publish them for a trial period for no or reduced 

fees (aggregation), entered into affiliation agreements with bulk prostitution advertisers 

like Dollar Bill (who received discounts, commissions or other fees from Backpage), and 

paid thousands of dollars to The Erotic Review, a Yelp-like website for buyers and sellers 

of commercial sex, in a cross-referral/cross-linkage business arrangement.

In yet another example of the interplay between Travel Act violations and 

“knowledge,” Senior District Judge David Campbell—during grand jury proceedings in 

this case—recognized that federal law “criminalize[s] the knowing publication of an 

advertisement for illegal prostitution or other illegal activity.” (Doc. 194-1 at 66.) Even 

Defendants’ attorney agreed with Judge Campbell about when Defendants could be held 

criminally liable. (Doc. 446-1 at 39 (“[I]f there is actual knowledge, say through 

participation in a venture, you’re conspiring with somebody, you know they posted an ad, 

you know the person involved is underage, that’s a prosecutable crime, Your Honor.”).)

Model Instruction 5.7 “Knowingly—Defined” should be given.

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UNITED STATES’ PROPOSED INSTRUCTION 5.8 DELIBERATE 

IGNORANCE

You may find that the defendant acted knowingly if you find beyond a reasonable 

doubt that the defendant:

1. was aware of a high probability that the vast majority of the “adult” and “escort” 

ads appearing on Backpage.com were actually ads for prostitution, and

2. deliberately avoided learning the truth.

You may not find such knowledge, however, if you find that the defendant actually 

believed that the vast majority of the “adult” and “escort” ads appearing on Backpage.com 

were not ads for prostitution, or if you find that the defendant was simply negligent, 

careless, or foolish.

DEFENSE OBJECTION

The government’s proposed Jewell instruction, one that typically is used in drug 

smuggling cases, is inappropriate here. See Ninth Circuit Model Criminal Jury Instructions 

at 5.8 (providing the example of a defendant being aware of a high probability that “drugs 

were in the defendant’s automobile”); United States v. Jewell, 532 F.2d 697, 698 (9th Cir. 

1976) (involving drugs sealed in a secret compartment of a car). Here, the Travel Act and 

money laundering charges are specific intent crimes. Therefore, it would be reversible 

error to provide a “Deliberate Ignorance” instruction to the jurors here. See Jewell, 532 

F.2d at 700-701 (such an instruction is only appropriate where the underlying crime 

requires mere knowledge); see United States v. Gibson Specialty Co., 507 F.2d 446, 449 

(9th Cir. 1974) (holding that the violation of the Travel Act is a specific intent crime and 

that “[t]he presumption that one intends the natural and probable consequences of his 

actions is insufficient in this context to establish intent to facilitate criminal activity.”); 

United States v. Gallo, 782 F.2d 1191, 1194 (4th Cir. 1986) (same); United States v. James, 

210 F.3d 1342, 1345 (11th Cir. 2000) (same); see Ninth Circuit Model Criminal Jury 

Instructions at 8.146 cmt. (“Because it is a specific intent crime, it is reversible error to 

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give Instruction 5.7 (Knowingly–Defined) in a money laundering case.”) (citing United 

States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994); United States v. Turman, 122 F.3d 

1167, 1169 (9th Cir. 1997)). 

Further, such an instruction is only appropriate “if the jury rejects the government’s 

case as to actual knowledge.” United States v. Heredia, 483 F.3d 913, 922 (9th Cir. 2007) 

(“In deciding whether to give a willful blindness instruction, in addition to an actual 

knowledge instruction, the district court must determine whether the jury could rationally 

find willful blindness even though it has rejected the government's evidence of actual 

knowledge. If so, the court may also give a Jewell instruction.”). And 

“[e]ven if the factual predicates of the instruction are present, the district judge has 

discretion to refuse it.” Id.

Further, even if such an instruction were appropriate, whether a given Defendant 

“was aware of a high probability that the vast majority of the ‘adult’ and ‘escort’ ads 

appearing on Backpage.com were actually ads for prostitution” is not a substitute for the 

government having to prove beyond a reasonable doubt that each Defendant specifically 

intended to facilitate the prostitution offenses committed by a particular business enterprise 

through the publication of fifty advertisements at issue. See United States v. Lacey, et al.

(D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order denying motion 

to dismiss) (“[Defendants] were not indicted for facilitating the amorphous notion of 

‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.”); see United States v. Lacey, et al. (D. Ariz.), Case No. 18-

CR-00422-PHX-SMB, Transcript of December 4, 2020 Hearing (“And I think one of the 

key things in my reason for denying the recusal is that this case is not about Backpage. 

Backpage was prosecuted in a separate case, entered a plea in a separate case. This case is 

about these individual defendants and whether they had specific knowledge of these ads as 

facilitating illegal activity.”). Willful blindness therefore cannot meet the elements of the 

offenses.

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The government’s proposed Jewell instruction also is inconsistent with the First 

Amendment. The government’s proposed instruction would suggest that the jury can use 

the publication of presumptively protected and lawful speech as the factual basis for a 

finding that defendants intended to violate the law. The government proposes to instruct 

the jury that defendants were obligated to assume that presumptively protected and lawful 

speech was unprotected speech and to censor that speech. The First Amendment prohibits 

this. 

Finally, even if a Jewell instruction was appropriate in this case, the government’s 

proposed instruction ignores the language of Jewell restricting the instruction to 

circumstances where a defendant’s ignorance “was solely and entirely a result of . . . a 

conscious purpose to avoid learning the truth.” United States v. Jewell, 532 F.2d 697, 704 

(9th Cir. 1976).

UNITED STATES’ RESPONSE

Defendants are wrong that a Jewell instruction can’t be given when the alleged 

crimes require specific intent. As the Ninth Circuit recently recognized:

We have repeatedly held that a Jewell instruction is proper in specific-intent 

cases (including conspiracy cases). See United States v. Ramos-Atondo, 732 

F.3d 1113, 1120 (9th Cir. 2013) (rejecting appellants’ argument that “it is 

impossible to conspire to be deliberately ignorant” and holding that “the 

Jewell standard eliminates the need to establish such positive knowledge to 

obtain a conspiracy conviction”); United States v. Heredia, 483 F.3d 913, 

922 & n.13 (9th Cir. 2007) (en banc) (approving of Jewell instruction in 

possession-with-intent-to-distribute prosecution, and observing that “willful 

blindness is tantamount to knowledge”); United States v. Nosal, 844 F.3d 

1024, 1039–40 (9th Cir. 2016) (approving Jewell instruction in aiding-andabetting case).... [T]he district court did not err in instructing the jury.

United States v. Asefi, 788 F. App’x 449, 452 (9th Cir. 2019). 

The “theory of deliberate ignorance need not be exclusive, it may be an argument 

alternative to actual knowledge.” Ramos-Atondo, 732 F.3d 1113, 1120. The instruction 

does not “risk[] lessening the state of mind that a jury must find” and is appropriately given 

when a jury could rationally find willful blindness. Heredia, 483 F.3d at 922 & 924.

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Defendants’ comment that the charges are based on “presumptively protected and 

lawful speech” is misplaced in this case, which concerns prostitution advertising (a form 

of commercial speech that is categorically excluded from First Amendment protection), as 

more fully explained in the United States’ objections to Defendants’ case-specific 

instructions in Part IV, infra. The SI clearly alleges that Defendants had ample notice that 

prostitution advertising was rampant on Backpage, and that Defendants took numerous 

steps to expand and capitalize on Backpage’s role as the internet’s primary source of 

prostitution advertising.

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DEFENDANTS’ PROPOSED INSTRUCTION 6.10 MERE PRESENCE

Mere presence at the scene of a crime or mere knowledge that a crime is being 

committed is not sufficient to establish that a defendant committed the crime of violating 

the Travel Act by promoting, or facilitating the promotion of, prostitution offenses 

committed by a particular business enterprise in violation of the laws of the State in which 

they are committed or the crime of money laundering. The defendant must be a participant 

and not merely a knowing spectator. The defendant’s presence may be considered by the 

jury along with other evidence in the case.

[This instruction should track the elements and definition of “prostitution” that the 

government provided to the grand jury at the time this indictment was returned. See Doc. 

No. 1171.]

Supporting Authorities

Ninth Circuit Manual of Model Criminal Jury Instructions 6.10, 8.144 (2021) 

(modified to reflect charges); Woodhull Freedom Foundation v. United States, 334 F. 

Supp. 3d 185, 199-201 (D.D.C. 2018), rev’d. 948 F.3d 363 (D.C. Cir. 2020); see United 

States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 

(Order denying motion to dismiss) (“[Defendants] were not indicted for facilitating the 

amorphous notion of ‘prostitution.’ They were indicted for facilitating (via publishing ads) 

on fifty distinct occasions where prostitutes, prostitution-related businesses, or other 

groups were involved in the business of prostitution.”); see United States v. Lacey, et al.

(D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Transcript of December 4, 2020 Hearing 

(“And I think one of the key things in my reason for denying the recusal is that this case is 

not about Backpage. Backpage was prosecuted in a separate case, entered a plea in a 

separate case. This case is about these individual defendants and whether they had specific 

knowledge of these ads as facilitating illegal activity.”). 

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UNITED STATES’ OBJECTIONS

The Comment to this Model Criminal Jury Instruction demonstrates why this 

instruction is unnecessary for this case. “Such a ‘mere presence’ instruction is unnecessary 

if the government’s case is not solely based on the defendant’s presence and the jury has 

been instructed on the elements of the crime.” See United States v. Tucker, 641 F.3d 1110, 

1123 (9th Cir. 2011); see also United States v. Gooch, 506 F.3d 1156, 1160 (9th Cir. 2007). 

The evidence at trial will demonstrate that each defendant was more than “merely present” 

for the alleged crimes. See United States v. Howell, 231 F.3d 615, 629 (9th Cir. 2000). 

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7.1 DUTY TO DELIBERATE

When you begin your deliberations, elect one member of the jury as your [presiding 

juror] [foreperson] who will preside over the deliberations and speak for you here in court.

You will then discuss the case with your fellow jurors to reach agreement if you can 

do so. Your verdict, whether guilty or not guilty, must be unanimous.

Each of you must decide the case for yourself, but you should do so only after you 

have considered all the evidence, discussed it fully with the other jurors, and listened to the 

views of your fellow jurors.

Do not be afraid to change your opinion if the discussion persuades you that you 

should. But do not come to a decision simply because other jurors think it is right.

It is important that you attempt to reach a unanimous verdict but, of course, only if 

each of you can do so after having made your own conscientious decision. Do not change 

an honest belief about the weight and effect of the evidence simply to reach a verdict.

Perform these duties fairly and impartially. Do not allow personal likes or dislikes, 

sympathy, prejudice, fear, or public opinion to influence you. You should also not be 

influenced by any person’s race, color, religious beliefs, national ancestry, sexual 

orientation, gender identity, gender, economic circumstances4 [, profession, occupation, 

celebrity, or position in life or in the community].

It is your duty as jurors to consult with one another and to deliberate with one 

another with a view towards reaching an agreement if you can do so. During your 

deliberations, you should not hesitate to reexamine your own views and change your 

opinion if you become persuaded that it is wrong.

4 Modified to conform with the language in Model Criminal Jury Instruction 1.1.

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7.2 CONSIDERATION OF EVIDENCE—CONDUCT OF THE JURY

Because you must base your verdict only on the evidence received in the case and 

on these instructions, I remind you that you must not be exposed to any other information 

about the case or to the issues it involves. Except for discussing the case with your fellow 

jurors during your deliberations:

Do not communicate with anyone in any way and do not let anyone else 

communicate with you in any way about the merits of the case or anything to do with it. 

This restriction includes discussing the case in person, in writing, by phone or electronic 

means, via email, text messaging, or any Internet chat room, blog, website or any other 

forms of social media. This restriction applies to communicating with your family 

members, your employer, the media or press, and the people involved in the trial. If you 

are asked or approached in any way about your jury service or anything about this case, 

you must respond that you have been ordered not to discuss the matter and to report the 

contact to the court.

Do not read, watch, or listen to any news or media accounts or commentary about 

the case or anything to do with it; do not do any research, such as consulting dictionaries, 

searching the Internet or using other reference materials; and do not make any investigation 

or in any other way try to learn about the case on your own.

The law requires these restrictions to ensure the parties have a fair trial based on the 

same evidence that each party has had an opportunity to address. A juror who violates these 

restrictions jeopardizes the fairness of these proceedings[, and a mistrial could result that 

would require the entire trial process to start over]. If any juror is exposed to any outside 

information, please notify the court immediately.

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7.3 USE OF NOTES

Some of you have taken notes during the trial. Whether or not you took notes, you 

should rely on your own memory of what was said. Notes are only to assist your memory. 

You should not be overly influenced by your notes or those of your fellow jurors.

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7.4 JURY CONSIDERATION OF PUNISHMENT

The punishment provided by law for this crime is for the court to decide. You may 

not consider punishment in deciding whether the United States has proved its case against 

the defendant beyond a reasonable doubt.

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7.5 VERDICT FORM

A verdict form has been prepared for you. [Explain verdict form as needed.] After 

you have reached unanimous agreement on a verdict, your [presiding juror] [foreperson] 

should complete the verdict form according to your deliberations, sign and date it, and 

advise the [clerk] [bailiff] that you are ready to return to the courtroom.

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7.6 COMMUNICATION WITH COURT

If it becomes necessary during your deliberations to communicate with me, you may 

send a note through the [clerk] [bailiff], signed by any one or more of you. No member of 

the jury should ever attempt to communicate with me except by a signed writing, and I will 

respond to the jury concerning the case only in writing or here in open court. If you send 

out a question, I will consult with the lawyers before answering it, which may take some 

time. You may continue your deliberations while waiting for the answer to any question. 

Remember that you are not to tell anyone—including me—how the jury stands, 

numerically or otherwise, on any question submitted to you, including the question of the 

guilt of the defendant, until after you have reached a unanimous verdict or have been 

discharged.

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UNITED STATES’ PROPOSED 8.20 CONSPIRACY—ELEMENTS*

The defendants are charged in Count 1 of the indictment with conspiring to violate 

the Travel Act in violation of Section 1952(a)(3)(A) of Title 18 of the United States Code. 

In order for the defendants to be found guilty of that charge, the United States must prove 

each of the following elements beyond a reasonable doubt:

First, beginning in or around 2004, and ending on or about April 2018, there was an 

agreement between two or more persons to commit at least one Travel Act crime as charged 

in the indictment, namely promoting or facilitating the promotion of any business 

enterprise involving prostitution offenses in violation of 18 U.S.C. § 1952(a)(3)(A) and 

§ 1952(b)(i)(1); 

Second, the defendant became a member of the conspiracy knowing of at least one 

of its objects and intending to help accomplish it; and

Third, one of the members of the conspiracy performed at least one overt act on or 

after March 28, 2013, for the purpose of carrying out the conspiracy.

A conspiracy is a kind of criminal partnership—an agreement of two or more 

persons to commit one or more crimes. The crime of conspiracy is the agreement to do 

something unlawful; it does not matter whether the crime agreed upon was committed.

For a conspiracy to have existed, it is not necessary that the conspirators made a 

formal agreement or that they agreed on every detail of the conspiracy. It is not enough, 

however, that they simply met, discussed matters of common interest, acted in similar 

ways, or perhaps helped one another. You must find that there was a plan to commit at 

least one of the crimes alleged in the indictment as an object of the conspiracy with all of 

you agreeing as to the particular crime, i.e., Travel Act violations, which the conspirators 

agreed to commit.

One becomes a member of a conspiracy by willfully participating in the unlawful 

plan with the intent to advance or further some object or purpose of the conspiracy, even 

though the person does not have full knowledge of all the details of the conspiracy. 

Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the 

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originators. On the other hand, one who has no knowledge of a conspiracy, but happens to 

act in a way which furthers some object or purpose of the conspiracy, does not thereby 

become a conspirator. Similarly, a person does not become a conspirator merely by 

associating with one or more persons who are conspirators, nor merely by knowing that a 

conspiracy exists.

An overt act does not itself have to be unlawful. A lawful act may be an element of 

a conspiracy if it was done for the purpose of carrying out the conspiracy. The United States

is not required to prove that the defendant personally did one of the overt acts.

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DEFENDANTS’ PROPOSED 8.20 INSTRUCTION

The defendants are charged in Count 1 of the indictment with conspiring to violate 

the Travel Act in violation of Section 1952(a)(3)(A) of Title 18 of the United States Code. 

In order for a defendant to be found guilty of that charge, the government must prove each 

of the following elements beyond a reasonable doubt for that defendant:

First, beginning in or around 2004, and ending on or about April 2018, there was an 

agreement between two or more persons to commit a violation of the Travel Act by 

promoting, or facilitating the promotion of, prostitution offenses committed by a particular 

business enterprise in violation of the laws of the State in which they are committed, as 

charged in Count 1 of the indictment;

Second, that defendant became a member of the conspiracy knowing of at least one 

of its illegal objects and with the specific intent of helping promote, or facilitate the 

promotion of, prostitution offenses committed by a particular business enterprise in 

violation of the laws of the State in which they are committed; and

Third, one of the members of the conspiracy performed at least one overt act on or 

after March 28, 2013, for the purpose of carrying out the conspiracy. Without at least one 

defendant’s overt act to specifically promote, or facilitate the promotion of, prostitution 

offenses committed by a particular business enterprise in violation of the laws of the State 

in which they are committed, you cannot find a conspiracy.

What Is a Conspiracy, and How Does One Become a Member?

A conspiracy is a kind of criminal partnership—an agreement of two or more 

persons to commit one or more crimes. The crime of conspiracy is the agreement to do 

something unlawful; it does not matter whether the crime agreed upon was committed.

For a conspiracy to have existed, it is not necessary that the conspirators made a 

formal agreement or that they agreed on every detail of the conspiracy. It is not enough, 

however, that they simply met, discussed matters of common interest, acted in similar 

ways, or perhaps helped one another. You must find that there was a plan to commit at 

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least one of the crimes alleged in the indictment as an illegal object of the conspiracy with 

all of you agreeing as to the particular crime, i.e., a specific publication of an ad in violation 

of the Travel Act, which the conspirators agreed to commit.

One becomes a member of a conspiracy by willfully participating in the unlawful 

plan with the intent to advance or further some illegal object or purpose of the conspiracy, 

even though the person does not have full knowledge of all the details of the conspiracy. 

Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the 

originators. On the other hand, one who has no knowledge of a conspiracy, but happens to 

act in a way which furthers some illegal object or purpose of the conspiracy, does not 

thereby become a conspirator. Similarly, a person does not become a conspirator merely 

by associating with one or more persons who are conspirators, nor merely by knowing that 

a conspiracy exists. To become a co-conspirator a person must have an intention and 

agreement to accomplish the same, specific criminal objective as his or her co-conspirators. 

An overt act does not itself have to be unlawful. A lawful act may be an element of 

a conspiracy if it was done for the purpose of carrying out the unlawful conspiracy. The 

government is not required to prove that a Defendant personally did one of the overt acts.

Proof of an underlying substantive crime does not, without more, prove the 

existence of a conspiracy to commit that crime. 

What Is “Travel Act—Facilitate Prostitution”?

The elements of the Travel Act are not satisfied if a defendant merely did an act that

promoted, or facilitated the promotion of, prostitution offenses committed by a particular 

business enterprise. The elements are not satisfied unless a defendant specifically intended 

his or her act to facilitate the prostitution offenses committed by a particular business 

enterprise . 

The government cannot meet its burden to prove that a defendant had the specific 

intent to participate in and further the prostitution offenses committed by a particular 

business enterprise associated with the ad by proving:

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• the defendant had after-the-fact knowledge that some people who advertised 

on Backpage.com engaged in prostitution offenses or that some or even many 

past ads on Backpage.com related to unlawful activity;

• the defendant knew Backpage.com might facilitate prostitution in the 

abstract;

• the defendant was indifferent to the actions of the purchasers of classified 

ads on Backpage.com; or

• the defendant knew that a particular advertiser might, at times, engage in 

prostitution offenses.

Rather, to satisfy the specific intent requirements of the Travel Act, the government must 

prove beyond a reasonable doubt, for each Count, that each defendant in some significant 

manner associated himself or herself with a particular business enterprise associated with 

the ad charged in that Count with the intent to promote, or facilitate the promotion of, the 

prostitution offenses committed by that business enterprise. As such, to find a defendant 

guilty of conspiring to violate the Travel Act, you must find that the government proved 

beyond a reasonable doubt that the defendant joined a conspiracy with the specific intent 

to associate himself or herself with a particular criminal venture for the purpose of 

advancing its prostitution offenses. A defendant cannot intend to promote or facilitate a 

business enterprise he or she does not know exists.

Unanimity Requirements

For a defendant to be found guilty of Count 1 (Conspiracy to Violate the Travel 

Act), you must find beyond a reasonable doubt that the defendant joined in a plan to commit 

at least one illegal object of the alleged conspiracy – specifically intending to promote, or 

facilitate the promotion of, prostitution offenses committed by a particular business 

enterprise upon which you all agree.

[This instruction should track the elements and definition of “prostitution” that the 

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government provided to the grand jury at the time this indictment was returned. See Doc. 

No. 1171.]

Supporting Authorities

Ninth Circuit Manual of Model Criminal Jury Instructions 7.9, 8.20, 8.144 (2021); 

Barry Tarlow, Defense of a Federal Conspiracy Prosecution, 4 J.Crim.Defense 183, 201-

02 (1978) (explaining that the object of the conspiracy must be unlawful); United States v. 

Lennick, 18 F.3d 814, 819 (9th Cir. 1994) (“Proof of the underlying substantive crime, 

however, does not, without more, prove the existence of a conspiracy.”); United States v. 

Lapier, 796 F.3d 1090 (9th Cir. 2015) (failure to give specific unanimity instruction was 

plain error because half of jury could have found defendant guilty of joining one conspiracy 

while other half of jury could have found defendant guilty of joining second conspiracy); 

United States v. Pomponio, 429 U.S. 10, 12 (1976) (willfulness is the “intentional violation 

of a known legal duty”).

In Woodhull Freedom Foundation v. United States, the government argued that for 

prosecutions under the Travel Act, the prosecutor must prove “not simply that the 

defendant was aware of a potential result of the criminal offense, but instead that the 

defendant intended to ‘explicitly further[]’ a specified unlawful act.” 334 F. Supp. 3d 185, 

199-201 (D.D.C. 2018), rev’d. 948 F.3d 363 (D.C. Cir. 2020). The court agreed with the 

government and held that the law applies only to “specific unlawful acts with respect to a 

particular individual, not the broad subject-matter of prostitution.” Id. Most recently, in 

defending the district court decision in that case, DOJ repeated its position that in a 

prosecution under the Travel Act, the government must allege that the Defendant acted to 

intentionally promote or facilitate a “specific, unlawful instance of prostitution.” Brief for 

the United States in Woodhull Freedom Found. v. United States, No. 18-5298 (D.C. Cir. 

Apr. 15, 2019) (Doc. No. 1782997) at 21-22.

To prove a conspiracy charge, the government must prove the “requisite intent for 

the substantive crime.” United States v. Kaplan, 836 F.3d 1199, 1212 (9th Cir. 2016). 

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See also United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHXSMB, Doc. No. 946 at 13 (Order denying motion to dismiss) (“[Defendants] were not 

indicted for facilitating the amorphous notion of ‘prostitution.’ They were indicted for 

facilitating (via publishing ads) on fifty distinct occasions where prostitutes, prostitutionrelated businesses, or other groups were involved in the business of prostitution.”); see 

United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Transcript of 

December 4, 2020 Hearing (“And I think one of the key things in my reason for denying 

the recusal is that this case is not about Backpage. Backpage was prosecuted in a separate 

case, entered a plea in a separate case. This case is about these individual defendants and 

whether they had specific knowledge of these ads as facilitating illegal activity.”). 

United States v. James, 210 F.3d 1342, 1345 (11th Cir. 2000) (“The elements of a 

Travel Act charge are: 1) that the defendant traveled in interstate commerce on or about 

the time, and between the places, charged in the indictment; 2) that the defendant engaged 

in that travel with the specific intent to promote, manage, establish or carry on an unlawful 

activity, as defined; and 3) that the defendant thereafter knowingly and willfully committed 

an act to promote, manage, establish or carry on such unlawful activity.”); United States v. 

Hagmann, 950 F.2d 175, 182 (5th Cir. 1991) (“The essential elements of the Travel Act . . 

. are: (i) travel in interstate or foreign commerce, or use of the mail (or any facility) in 

interstate or foreign commerce; (ii) with the specific intent to promote, manage, establish, 

or carry on—or distribute the proceeds of—unlawful activity; and (iii) knowing and willful 

commission of an act in furtherance of that intent subsequent to the act of travel.”) 

(emphasis in original); United States v. Echeverri-Jaramillo, 777 F.2d 933, 937 (4th Cir. 

1985) (“in order to prove such a violation, under 18 U.S.C. § 1952(a) it must be shown that 

1) the defendant traveled in interstate commerce on or about the time and between the 

places noted in the indictment; 2) that the defendant engaged in such travel with the specific 

intent to promote, manage, establish or carry on an unlawful activity and that 3) the 

defendant did thereafter knowingly and willfully commit an act to promote, manage, 

establish or carry on such an unlawful activity.”); United States v. Stagman, 446 F.2d 489, 

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491 (6th Cir. 1971) (“the majority of the Courts of Appeals which have directly addressed 

this question . . . have stated that knowing and wilful [sic] intent to violate state laws is an 

element of the crime proscribed by the Travel Act”) (citing decisions of the 4th, 7th, 8th, 

and 9th Circuits).

UNITED STATES’ OBJECTIONS

Defendants propose a much lengthier conspiracy instruction that contains 

misstatements of the law. The Court should provide the Model Instruction on conspiracy, 

which provides a much clearer explanation of the applicable law than Defendants’ 

proposed instruction. Here are some of the problems with Defendants’ proposed 

instruction.

- In the first element, Defendants insist that a Travel Act violation must involve 

“promoting, or facilitating the promotion of, prostitution offenses committed by 

a particular business enterprise.” (emphasis added). The word “particular” is 

unnecessary and confusing. The statute states that “unlawful activity” under the 

Travel Act is defined as “any business enterprise involving . . . prostitution 

offenses in violation of the laws of the State in which they are committed or of 

the United States.” 18 U.S.C. § 1952(b)(i)(1). This Court has recognized this 

fact previously: “Instead of alleging formal labels, what must be alleged for the 

‘unlawful activity’ element under Section 1952(b)(i) are allegations showing ‘a 

continuous course of criminal conduct.’” (Doc. 946 at 10) (case citations 

omitted). The Court also suggested that each ad is evidence of a business 

enterprise: “each ad identified [in the SI] carries an indicia of a commercial or 

business enterprise because each one invites multiple commercial transactions 

by soliciting the public to engage in prostitution.” (Doc. 946 at 12, n.7) (citing 

Charles v. City of Los Angeles, 697 F.3d 1146, 1151 (9th Cir. 2012) (noting that 

advertisements “propose a commercial transaction”).) Further, unlike 

Defendants’ proposed instruction, the United States’ instruction tracks the 

statutory definition of “unlawful activity.”

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- In the second element, Defendants add the word “illegal,” which is redundant 

and not part of the Model Instruction. The first element in the Model Instruction 

states, in pertinent part, “there was an agreement between two or more persons 

to commit at least one crime as charged in the indictment,” while the second 

element makes clear the crime requires that “the defendant became a member of 

the conspiracy knowing of at least one of its objects and intending to help 

accomplish it.” The word “illegal” doesn’t clarify any aspect of this crime and 

shouldn’t be part of the instruction.

- In the third element, Defendants again add language to the Model Instruction 

that is unnecessary. The final sentence in the third element is redundant and 

restates the language in the first element. Moreover, Defendants erroneously 

state that the overt act must be performed by one of the defendants. Under 

established law, any person who is a member of the conspiracy—a category of 

persons not limited to Defendants—may perform the overt act. See Model 

Instruction 8.20.

- The remainder of Defendants’ proposed instruction is not needed and contains 

Defendants’ arguments for why the jury should find them not guilty. (E.g., “[a] 

defendant cannot intend to promote or facilitate a business enterprise he or she 

does not know exists.”). Instructions are not the place for arguments.

- Defendants add a section titled “unanimity requirements” to their proposed 

instruction. A specific unanimity instruction may be required when there are 

multiple conspiracies at issue. See United States v. Echeverry, 719 F.2d 974, 

975 (9th Cir. 1983). Here, however, the United States has only alleged one 

conspiracy—conspiracy to violate 18 U.S.C. § 1952(a)(3)(A). (Doc. 230 at 49.) 

This instruction isn’t needed. 

- Defendants’ intent and knowledge assertions are further addressed in separate 

sections of these instructions that discuss these elements. 

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Defendants also cite Woodhull Freedom Found. v. United States, 334 F. Supp. 3d 

185 (D.D.C. 2018), which dismissed on standing grounds a facial challenge by sex worker 

advocacy groups to the Allow States and Victims to Fight Online Sex Trafficking Act of 

2017 (FOSTA). FOSTA created a new federal offense for operating “an interactive 

computer service...with the intent to promote or facilitate the prostitution of another 

person.” 18 U.S.C. § 2421(A)(a) (emphasis added). The court held the plaintiffs lacked a 

credible threat of prosecution because “key textual indications...make clear that FOSTA 

targets specific acts of illegal prostitution,” not abstract advocacy. 334 F. Supp. 3d at 200. 

These “textual indications” included FOSTA’s reference to the “‘prostitution of another 

person,’ which denotes specific unlawful acts.” Id. at 199-200. While the court found the 

plaintiffs’ standing arguments flawed for the “additional reason []” that § 2421A “mirrors” 

the Travel Act, which had never been used to prosecute advocacy, id. at 199-200, the Travel 

Act contains no text specifically referencing “the prostitution of another person.” 

Defendants also assert the “DOJ repeated [in the Woodhull appeal] that in a 

prosecution under the Travel Act, the government must allege that the defendant acted to 

intentionally promote or facilitate a ‘specific, unlawful instance of prostitution.’” 

However, the quoted text refers not to the United States’ discussion of the Travel Act, but 

to § 2421A of FOSTA. (Gov’t Br., Woodhull Freedom Found. v. United States, No. 18-

5298 (D.C. Cir. Apr. 15, 2019) (Doc.#1782997) at 20-21.) The United States went on to 

characterize § 2421A and the Travel Act as “substantially similar” in that both statutes 

“prohibit[ ] using the internet ‘with intent to’ ‘promote...or facilitate the promotion’ of 

illegal ‘prostitution offenses’”—a reading consistent with the government’s instructions

here. Id.

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DEFENDANTS’ PROPOSED 8.22 INSTRUCTION—

MULTIPLE CONSPIRACIES (Count 1)

Count 1 of the indictment alleges a single conspiracy to commit a violation of the 

Travel Act by promoting, or facilitating the promotion of, prostitution offenses committed 

by a particular business enterprise in violation of the laws of the State in which they are 

committed. You must decide whether the single conspiracy to violate the Travel Act as 

charged in Count 1 of the indictment existed, and, if it did, who at least some of its members 

were. If you find that the single conspiracy to violate the Travel Act charged in Count 1 

did not exist, then you must return a not guilty verdict, even though you may find that some 

other conspiracy existed. For example, if you find that Count 1 concerns two or more 

conspiracies, you must find each defendant not guilty of the single conspiracy alleged in 

Count 1. Similarly, if you find that any defendant was not a member of the conspiracy to 

violate the Travel Act charged in Count 1, then you must find that defendant not guilty, 

even though that Defendant may have been a member of some other conspiracy.

[This instruction should track the elements and definition of “prostitution” that the 

government provided to the grand jury at the time this indictment was returned. See Doc. 

No. 1171.]

Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 8.22 (2021) (modified to reflect the charges in the 

indictment); see United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHXSMB, Doc. No. 946 at 13 (Order denying motion to dismiss) (“[Defendants] were not 

indicted for facilitating the amorphous notion of ‘prostitution.’ They were indicted for 

facilitating (via publishing ads) on fifty distinct occasions where prostitutes, prostitutionrelated businesses, or other groups were involved in the business of prostitution.”); see 

United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Transcript of 

December 4, 2020 Hearing (“And I think one of the key things in my reason for denying 

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the recusal is that this case is not about Backpage. Backpage was prosecuted in a separate 

case, entered a plea in a separate case. This case is about these individual defendants and 

whether they had specific knowledge of these ads as facilitating illegal activity.”). 

UNITED STATES’ OBJECTIONS

This instruction should only be given when Defendants raise a multiple conspiracy 

defense. United States v. Job, 871 F.3d 852, 867 (9th Cir. 2017). To support such an 

instruction, evidence would need to be presented at trial in which a jury could reasonably 

conclude that some of the defendants were only involved in separate conspiracies unrelated 

to the overall conspiracy charged in the indictment. Id. That’s not the case here. The 

conspiracy charged in Count One would not give rise to a reasonable juror believing that 

multiple conspiracies occurred. Id. at 868 (“Although a single conspiracy can include 

‘several subagreements or subgroups of conspirators,’ that does not mean there are separate 

conspiracies.”) “A single conspiracy exists, as compared with multiple conspiracies, where 

there is ‘one overall agreement’ to perform various functions to achieve the objectives of 

the conspiracy.” United States v. Bauer, 84 F.3d 1549, 1560 (9th Cir. 1996).

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UNITED STATES’ PROPOSED 8.23 CONSPIRACY—KNOWLEDGE OF AND 

ASSOCIATION WITH OTHER CONSPIRATORS*

A conspiracy may continue for a long period of time and may include the 

performance of many transactions. It is not necessary that all members of the conspiracy 

join it at the same time, and one may become a member of a conspiracy without full 

knowledge of all the details of the unlawful scheme or the names, identities, or locations 

of all of the other members.

Even though a defendant did not directly conspire with every other defendant or 

every other conspirator in the overall scheme, the defendant has, in effect, agreed to 

participate in the conspiracy if the United States proves each of the following beyond a 

reasonable doubt:

First, that the defendant directly conspired with one or more conspirators to carry 

out at least one of the objects of the conspiracy;

Second, that the defendant knew or had reason to know that other conspirators were 

involved with those with whom the defendant directly conspired; and

Third, that the defendant had reason to believe that whatever benefits the defendant 

might get from the conspiracy were probably dependent upon the success of the entire 

venture.

It is not a defense that a person’s participation in a conspiracy was minor or for a 

short period of time.

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DEFENDANTS’ PROPOSED 8.23 CONSPIRACY—KNOWLEDGE OF AND 

ASSOCIATION WITH OTHER CONSPIRATORS*

A conspiracy may continue for a long period of time and may include the 

performance of many transactions. It is not necessary that all members of the conspiracy 

join it at the same time, and one may become a member of a conspiracy without full 

knowledge of all the details of the unlawful scheme or the names, identities, or locations 

of all of the other members.

Even though a defendant did not directly conspire with every other defendant or 

every other conspirator in the overall scheme, that defendant has, in effect, agreed to 

participate in the conspiracy if the government proves each of the following beyond a 

reasonable doubt:

First, that a defendant directly conspired with one or more conspirators to carry out 

at least one of the illegal objects of the conspiracy by specifically intending to promote, or 

facilitate the promotion of, prostitution offenses committed by a particular business 

enterprise upon which you all agree;

Second, that a defendant knew or had reason to know that other conspirators were 

involved with those with whom the defendant directly conspired; and

Third, that a defendant had reason to believe that whatever benefits he or she might 

get from the conspiracy were probably dependent upon the success of the entire enterprise.

It is not a defense that a person’s participation in a conspiracy was minor or for a 

short period of time.

[This instruction should track the elements and definition of “prostitution” that the 

government provided to the grand jury at the time this indictment was returned. See Doc. 

No. 1171.]

Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 8.23 (2021).

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UNITED STATES’ OBJECTIONS

The parties’ proposed 8.23 Instructions are identical except for the first element. 

Defendants add language that is unnecessary. The elements of the Travel Act are instructed 

on below and this additional language adds nothing but wordiness to the overall instructions. 

Also, the request that the instructions track the definition of “prostitution” that was given to 

the grand jury is wholly unnecessary. This is so because (a) how the grand jurors were 

instructed, if at all, is of no moment when determining the appropriate jury instructions for 

a petit jury, and (b) the particular state statutes defining “prostitution offenses” need not be 

part of this conspiracy instruction.

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UNITED STATES’ PROPOSED 8.144 TRAVEL ACT—INTERSTATE OR 

FOREIGN TRAVEL IN AID OF RACKETEERING ENTERPRISE

(18 U.S.C. § 1952(a)(3))* 

The defendants are charged in Counts 2-51 of the indictment with violating Section 

1952(a)(3) of Title 18 of the United States Code, a statute also referred to as “the Travel 

Act.” In order for the defendants to be found guilty of Counts 2-51, the United States must 

prove, for each count, the following elements beyond a reasonable doubt:

First, the defendant used any facility in interstate commerce with the intent to 

promote, manage, establish, carry on, or facilitate the promotion, management, 

establishment, or carrying on, of any business enterprise involving prostitution offenses in 

violation of the laws of the State in which they are committed (as specified below) or of the 

United States, and

Second, after doing so the defendant performed or attempted to perform an act that 

did promote, manage, establish, carry on, or facilitate the promotion, management, 

establishment, or carrying on, of any business enterprise involving prostitution offenses,

specifically, by publishing on Backpage.com the ads listed in Counts 2-51 of the indictment.

Counts 2, 4, 27, 29-30, 33, 35, 37, 40 and 43 concern prostitution offenses in violation 

of the laws of the State of Massachusetts. A prostitution offense in violation of 

Massachusetts General Laws Ch. 272 § 53A(a) occurs when:

(1) A person engaged, agreed to engage, or offered to engage, in sexual conduct with 

another person; and 

(2) The sexual conduct was, or was to be, done in return for a fee.

The term “sexual conduct” includes sexual intercourse; anal intercourse; fellatio, or 

oral sex involving contact between the mouth of one person and the penis of another person; 

cunnilingus, or oral sex involving contact between the mouth of one person and the female 

sex organs—the vagina, vulva or labia—of another person; masturbation of another person; 

or any intrusion of a part of one person’s body or some other object into the genital or anal 

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opening of another person’s body. 

Counts 3, 6-11, 18, 25-26, and 28 concern prostitution offenses in violation of the 

laws of the State of Washington. A prostitution offense in violation of Revised Code of 

Washington § 9A.88.030 occurs when:

(1) A person engaged, agreed to engage, or offered to engage in sexual conduct with 

another person; and

(2) The sexual conduct, agreement, or offer was in return for a fee.

“Sexual conduct” means sexual contact or sexual intercourse. “Sexual contact” 

means any touching of the sexual or other intimate parts of a person done for the purpose of 

gratifying sexual desire of either party or a third party. “Sexual intercourse” means that the 

sexual organ of the male entered and penetrated the sexual organ of the female and occurs 

upon any penetration, however slight, or any penetration of the vagina or anus however 

slight, by an object, when committed on one person by another, whether such persons are of 

the same or opposite sex, or any act of sexual contact between persons involving the sex 

organs of one person and the mouth or anus of another whether such persons are of the same 

or opposite sex. 

Counts 14-15, 21-22, and 31 concern prostitution offenses in violation of the laws of 

the State of Arizona. A prostitution offense in violation of Arizona Revised Statute § 13-

3214 occurs when:

A person knowingly engaged, agreed, or offered to engage in sexual conduct with 

another person under a fee arrangement with any person for money or any other valuable 

consideration.

“Sexual conduct” means sexual contact, sexual intercourse, oral sexual contact, or 

sadomasochistic abuse.

“Sexual contact” means any direct or indirect fondling or manipulating of any part of 

the genitals, anus or female breast.

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“Sexual intercourse” means penetration into the penis, vulva or anus by any part of 

the body or by an object.

“Oral sexual contact” means oral contact with the penis, vulva or anus.

“Sadomasochistic abuse” means flagellation or torture by or on a person who is nude 

or clad in undergarments or in revealing or bizarre costume or the condition of being fettered, 

bound or otherwise physically restrained on the part of one so clothed. 

Counts 12-13, 23, and 34 concern prostitution offenses in violation of the laws of the 

State of California. A prostitution offense in violation of California Penal Code § 647(b)(1)

occurs when:

An individual solicits, or agrees to engage in, or engages in, any act of prostitution 

with the intent to receive compensation, money, or anything of value from another person.

An act of prostitution occurs when a person has sexual intercourse or does a lewd act 

with someone else in exchange for money or other compensation. A lewd act means 

touching the genitals, buttocks, or female breast of either the prostitute or customer with 

some part of the other person’s body for the purpose of sexual arousal or gratification. 

Counts 45-47 and 51 concern prostitution offenses in violation of the laws of the State 

of New York. A prostitution offense in violation of New York Penal Law Article 230.00

occurs when:

A person engaged, agreed, or offered to engage, in sexual conduct with another person 

for a fee. 

Counts 19-20 and 50 concern prostitution offenses in violation of the laws of the State 

of Texas. A prostitution offense in violation of Texas Penal Code § 43.02(a)-(b) occurs 

when:

A person knowingly offered or agreed to pay or receive a fee from another to engage 

in sexual conduct. 

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“Sexual conduct” includes deviate sexual intercourse, sexual contact, and sexual 

intercourse.

“Sexual intercourse” means any penetration of the female sex organ by the male sex 

organ.

“Sexual contact” means any touching of the anus, breast, or any part of the genitals 

of another person with intent to arouse or gratify the sexual desire of any person.

“Fee” means the payment or offer of payment in the form of money, goods, services, 

or other benefits.

“Deviate sexual intercourse” means any contact between the genitals of one person 

and the mouth or anus of another person.

A person acts knowingly, or with knowledge, with respect to the nature of his conduct 

or to circumstances surrounding his conduct when he is aware of the nature of his conduct 

or that the circumstances exist. A person acts knowingly or with knowledge with respect to 

a result of his conduct when he is aware that his conduct is reasonably certain to cause the 

result. 

Counts 16-17 concern prostitution offenses in violation of the laws of the State of 

Colorado. A prostitution offense in violation of Colorado Revised Statutes § 18-7-201

occurs when:

A person performed, offered, or agreed to perform, any act of sexual intercourse, 

fellatio, cunnilingus, masturbation, or anal intercourse, with any person who was not his or 

her spouse, in exchange for money or other thing of value.

A prostitution offense in violation of Colorado Revised Statutes § 18-7-202 occurs 

when:

A person solicited another for the purpose of prostitution.

Colorado law provides the following definitions:

“Anal intercourse” means contact between human beings of the genital organs of one 

and the anus of another.

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“Fellatio” means any act of oral stimulation of the penis.

“Cunnilingus” means any act of oral stimulation of the vulva or clitoris.

“Masturbation” means stimulation of the genital organs by manual or other bodily 

contact exclusive of sexual intercourse.

“Thing of value” includes real property, tangible and intangible personal property, 

contract rights, choses in action, services, confidential information, medical records 

information, and any rights of use or enjoyment connected therewith.

Counts 38 and 42 concern prostitution offenses in violation of the laws of the State of 

Ohio. A prostitution offense in violation of Ohio Revised Code § 2907.25 occurs when:

The defendant engaged in sexual activity for hire.

A prostitution offense violation of Ohio Revised Code § 2907.231 occurs when:

The defendant recklessly induces, entices, or procures another to engage in sexual 

activity for hire in exchange for the person giving anything of value to the other person.

Ohio law provides the following definitions:

“Sexual activity” means sexual conduct or sexual contact, or both. 

“Sexual conduct” means vaginal intercourse between a male and female; anal 

intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without 

privilege to do so, the insertion, however slight, of any part of the body or any instrument, 

apparatus, or other object into the vaginal or anal opening of another. Penetration, however 

slight, is sufficient to complete vaginal or anal intercourse.

“Sexual contact” means any touching of an erogenous zone of another, including 

without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a 

breast, for the purpose of sexually arousing or gratifying either person.

“For hire” means for pay or compensation.

“Sexual activity for hire” means an implicit or explicit agreement to provide sexual 

activity in exchange for anything of value paid to the person engaging in such sexual activity, 

to any person trafficking that person, or to any person associated with either such person.

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Counts 36 and 49 concern prostitution offenses in violation of the laws of the State of 

Nevada. A prostitution offense in violation of Nevada Revised Statutes § 201.354 occurs 

when:

A person engaged in prostitution or solicitation therefor, except in a licensed house 

of prostitution. 

“Prostitution” means engaging in sexual conduct with another person in return for a 

fee, monetary consideration or other thing of value.

“Sexual conduct” means sexual intercourse, oral-genital contact or any touching of 

the sexual organs or other intimate parts of a person for the purpose of arousing or gratifying 

the sexual desire of either person.

Counts 24 and 44 concern prostitution offenses in violation of the laws of the State 

of Michigan. A prostitution offense in violation of Michigan Penal Code § 750.449a 

occurs when:

A person engaged or offered to engage the services of another person, not his or her 

spouse, for the purpose of prostitution, lewdness, or assignation, by the payment in money 

or other forms of consideration. 

Count 32 concern prostitution offenses in violation of the laws of the State of 

Louisiana. A prostitution offense in violation of Louisiana Revised Statutes §14:82 occurs 

when:

A person engaged in indiscriminate sexual intercourse for compensation, or solicited 

another with the intent to engage in indiscriminate sexual intercourse for compensation.

“Sexual intercourse” means anal, oral, or vaginal sexual intercourse. 

Count 48 concern prostitution offenses in violation of the laws of the State of Florida. 

A prostitution offense in violation of Florida Statutes § 796.07 occurs when:

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A person offered to commit, committed, or engaged in prostitution, lewdness, or 

assignation. 

-ORA person solicited, induced, enticed, or procured another to commit prostitution, 

lewdness, or assignation.

“Prostitution” is the giving or receiving of the body for sexual activity for hire but 

excludes sexual activity between spouses.

“Lewdness” is any indecent or obscene act. “Indecent” means wicked, lustful, 

unchaste, licentious, or sensual intention on the part of the person doing the act.

“Sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual 

organ of another; anal or vaginal penetration of another by any other object; or the handling 

or fondling of the sexual organ of another for the purpose of masturbation; however, the term 

does not include acts done for bona fide medical purposes.

“Assignation” includes the making of any appointment or engagement for prostitution 

or lewdness or any act in furtherance of such appointment or engagement.

To “solicit” means to command, encourage, hire, or request another person to engage 

in specific conduct.

To “procure” means to persuade, induce, prevail upon or cause a person to do 

something.

Count 39 concern prostitution offenses in violation of the laws of the State of 

Alabama. A prostitution offense in violation of Alabama Criminal Code § 13A-12-121

occurs under any of the following:

(1) A person committed an act of prostitution. Prostitution is defined as the 

commission by a person of any natural or unnatural sexual act, sodomy, or sexual contact for 

monetary consideration or other thing of value.

(2) A person solicited, compelled, or coerced any person to have sexual 

intercourse or participate in any natural or unnatural sexual act, deviant sexual intercourse, 

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or sexual contact for monetary consideration or other thing of marketable value.

(3) A person agreed to engage in sexual intercourse, deviant sexual intercourse, or 

sexual contact with another or participate in the act for monetary consideration or other thing 

of marketable value and give or accept monetary consideration or other thing of value in 

furtherance of the agreement. 

(4) A person knowingly did any of the following:

a) Caused or aided a person to commit or engage in prostitution.

b) Procured or solicited patrons for prostitution.

c) Provided persons or premises for prostitution purposes.

d) Received or accepted money or other thing of value pursuant to a prior 

agreement with any person whereby he or she participated or is to 

participate in the proceeds of any prostitution activity.

e) Operated or assisted in the operation of a house of prostitution or a 

prostitution enterprise. 

Count 41 concern prostitution offenses in violation of the laws of the State of 

Arkansas. A prostitution offense in violation of Arkansas Code § 5-70-102 occurs when:

A person engaged in, agreed, or offered to engage in sexual activity with any other 

person in return for or in expectation of a fee. 

“Sexual activity” means sexual intercourse, deviate sexual activity, or sexual contact.

“Sexual intercourse” means penetration, however slight, of the labia majora by a 

penis.

“Deviate sexual activity” means any act of sexual gratification involving: (A) the 

penetration, however slight, of the anus or mouth of a person by the penis of another person; 

or (B) the penetration, however slight, of the labia majora or anus of a person by any body 

member or foreign instrument manipulated by another person.

“Sexual contact” means any act of sexual gratification involving the touching, directly 

or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female.

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Count 5 concern prostitution offenses in violation of the laws of the State of Maine. 

A prostitution offense in violation of Maine Revised Statutes 17-A §§ 853-A & 851 occurs 

when:

A person engages in, or agrees to engage in, or offers to engage in a sexual act or 

sexual contact in return for a pecuniary benefit to be received by the person engaging in 

prostitution or a 3rd person.

“Sexual act” means: (1) Any act between 2 persons involving direct physical contact 

between the genitals of one and the mouth or anus of the other, or direct physical contact 

between the genitals of one and the genitals of the other; (2) Any act between a person and 

an animal being used by another person which act involves direct physical contact between 

the genitals of one and the mouth or anus of the other, or direct physical contact between 

the genitals of one and the genitals of the other; or (3) Any act involving direct physical 

contact between the genitals or anus of one and an instrument or device manipulated by 

another person when that act is done for the purpose of arousing or gratifying sexual desire 

or for the purpose of causing bodily injury or offensive physical contact.

“Sexual contact” means any touching of the genitals or anus, directly or through 

clothing, other than as would constitute a sexual act, for the purpose of arousing or 

gratifying sexual desire or for the purpose of causing bodily injury or offensive physical 

contact.

Supporting Authorities

Massachusetts General Laws Ch. 272 § 53A(a); Massachusetts Criminal Model 

Jury Instruction 7.480—Sexual Conduct for a Fee.

Revised Code of Washington § 9A.88.030; Washington Pattern Jury Instructions—

Criminal § 48.02 Prostitution-Elements; § 48.12 Sexual Conduct—Definition (April 2021 

update).

Arizona Revised Statute §§ 13-3211; 13-3214; Revised Arizona Jury Instructions 

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(Criminal) §§ 32.11; 32.14.

California Penal Code § 647(b)(1); Judicial Council of California Criminal Jury 

Instructions (2020 Edition) CALCRIM §§ 1153-55.

New York Penal Law Article 230.00; New York Criminal Jury Instructions and 

Model Colloquies for Article 230 Prostitution Offenses (there is no statutory definition of 

the term “sexual conduct” that is expressly applicable to the statutes contained in Penal 

Law article 230; See Prus v. Holder, 660 F.3d 144 (2d Cir. 2011) (“Although ‘sexual 

conduct’ is not defined in Article 230, the plain language of the statute makes clear that 

prostitution in New York encompasses accepting payment for sexual acts beyond . . . 

“‘sexual intercourse’”).

Texas Penal Code § 43.02(a)-(b); Texas Criminal Jury Charges § 10:390.10. 

Colorado Revised Statutes, §§ 18-7-201 and 18-7-202; Colorado Jury Instructions 

Criminal 2018, §§ 7-2:01 Prostitution and 7-2:03 Soliciting Another for Prostitution; 

Instruction F:16 (defining “anal intercourse”); F:81 (defining “cunnilingus”); F:147 

(defining “fellatio”); F:217 (defining “masturbation”); F:371 (defining “thing of value”); 

(the term “sexual intercourse” is not defined in section 18-7-201). 

Ohio Revised Code §§ 2907.01, 2907.25, 2907.231; 2 Ohio Jury Instructions 

Criminal § 507.25.

Nevada Revised Statutes §§ 201.354, 201.295.

Michigan Penal Code § 750.449a.

Louisiana Revised Statutes §14:82.

Florida Statutes § 796.07; 1 FL Standard Jury Instructions in Criminal Cases 23.5 

and 23.6.

Alabama Criminal Code §§ 13A-12-120, 13A-12-121.

Arkansas Code §§ 5-70-102, 5-70-101, 5-14-101.

Maine Revised Statutes 17-A §§ 853-A, 851, 251.

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DEFENDANTS’ PROPOSED 

8.144 TRAVEL ACT—INTERSTATE OR FOREIGN TRAVEL

IN AID OF RACKETEERING ENTERPRISE

(18 U.S.C. § 1952(a)(3)) 

(Counts 2-51 – Travel Act)

Each defendant is charged in Counts 2-51 of the indictment with violating Section 

1952(a)(3) of Title 18 of the United States Code. In order for a defendant to be found 

guilty of those charges, the government must prove each of the following elements beyond 

a reasonable doubt for that defendant as to each charge:

First, that defendant used the mail or any facility in interstate commerce with the 

specific intent to promote, or facilitate the promotion of, the prostitution offenses 

committed by a particular business enterprise in violation of the laws of the State in which 

they were committed, as alleged in each Count; and

Second, after doing so, that defendant performed an act to promote, or facilitate the 

promotion of, the prostitution offenses committed by a particular business enterprise 

associated with that particular ad specified in each Count.

The elements of the Travel Act are not satisfied if a defendant merely did an act that 

promoted, or facilitated the promotion of, prostitution offenses committed by a particular 

business enterprise. The elements of the Travel Act are only established if the government 

proves beyond a reasonable doubt that a defendant knowingly and willfully intended his or 

her act to facilitate the prostitution offenses committed by a particular business enterprise 

associated with that ad. 

The government cannot meet its burden to prove that a defendant had the specific 

intent to participate in and further the prostitution offenses committed by a particular 

business enterprise associated with the ad by proving:

• the defendant had after-the-fact knowledge that some people who advertised 

on Backpage.com engaged in prostitution offenses or that some or even many 

past ads on Backpage.com related to unlawful activity;

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• the defendant knew Backpage.com might facilitate prostitution in the 

abstract;

• the defendant was indifferent to the actions of the purchasers of classified 

ads on Backpage.com; or

• the defendant knew that a particular advertiser might, at times, engage in 

prostitution offenses.

Rather, to satisfy the specific intent requirements of the Travel Act, the government must 

prove beyond a reasonable doubt, for each Count, that each defendant in some significant 

manner associated himself or herself with a particular business enterprise associated with 

the ad charged in that Count with the intent to promote, or facilitate the promotion of, the 

prostitution offenses committed by that business enterprise. 

The existence of a “business enterprise” is an element of this crime and, unless the 

government has proven to you beyond a reasonable doubt the existence of a “business 

enterprise” as to each count, you must return a verdict of not guilty. A defendant cannot 

intend to promote or facilitate a business enterprise he or she does not know exists. The 

government also must prove beyond a reasonable doubt that the act each defendant 

performed in furtherance of the business enterprise was done with the specific intent to 

facilitate each element of the underlying state crime. 

First Amendment Application

In addition to the requirements of the Travel Act, under the First Amendment, the 

jury cannot find a defendant guilty of a crime based on the publication of a presumptively 

protected third-party classified ad, unless the government proves beyond a reasonable 

doubt that: 

(i) the defendant had actual knowledge of the particular ad, and

(ii) the defendant had actual knowledge that the particular ad related to unlawful 

activity, and

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(iii) the defendant personally took an action causing the particular ad to be 

published on, or to continue to be published on, Backpage.com with the aim of 

furthering the illegal activity.

It is not enough for the government to show that a defendant knew that some adult 

ads might lead to others committing crimes. If this is all the government demonstrates, 

you must find the defendant not guilty. In order to find the defendant guilty, the 

government must prove beyond a reasonable doubt that a defendant specifically intended 

that the prostitution offenses of a particular business enterprises be committed. Specific 

intent is defined in the following instruction. 

[This instruction should track the elements and definition of “prostitution” that the 

government provided to the grand jury at the time this indictment was returned. See Doc. 

No. 1171.]

Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 8.144 (2021) (modified to reflect the charges in the 

indictment); Woodhull Freedom Foundation v. United States, 334 F. Supp. 3d 185, 199-

201 (D.D.C. 2018), rev’d. 948 F.3d 363 (D.C. Cir. 2020) (where the United States took the 

position that for prosecutions under the Travel Act, the government must prove “not simply 

that the defendant was aware of a potential result of the criminal offense, but instead that 

the defendant intended to ‘explicitly further[]’ a specified unlawful act.”). 

See Backpage.com v. Dart, 807 F.3d 229, 234 (7th Cir. 2015) (“‘[A]n intermediary 

. . . normally is indifferent to the content of what it transmits. Even entities that know the 

information’s content do not become liable for the sponsor’s deeds. Does a newspaper that 

carries an advertisement for ‘escort services’ or ‘massage parlors’ aid and abet the crime 

of prostitution, if it turns out that some (or many) of the advertisers make money from that 

activity?’ Doe v. GTE Corp., 347 F.3d 655, 659 (7th Cir. 2003) . . . Backpage is an 

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intermediary between the advertisers of adult services and visitors to Backpage’s 

website.”); In re Aimster Copyright Litig., 334 F.3d 643, 651 (7th Cir. 2003) (“A retailer 

of slinky dresses is not guilty of aiding and abetting prostitution even if he knows that some 

of his customers are prostitutes....”). 

United States v Gibson Specialty Co., 507 F.2d 446, 450 fn. 8 (9th Cir. 1974) (“The 

presumption that one intends the natural and probable consequences of his actions is 

insufficient in this context to establish intent to facilitate criminal activity. It is as likely as 

not that a vendor similar to the defendants in this proceeding is totally indifferent to the 

actions of his purchaser.”)

See United States v. Rundo, 990 F.3d 709, 719-720 (9th Cir. 2021) (“’the intent to 

engage in one of the prohibited acts is a personal prerequisite to punishment under [the 

Anti-Riot Act] . . . Simply put, knowing that some might choose to become violent is not 

at all the same as intending that they do so.”).

Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1281 (W.D. Wash. 2012) 

(“The third-party publication of offers to engage in illegal transactions does not fall within 

‘well-defined and narrowly limited classes of speech’ that fall outside of First Amendment 

protection.”) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942)).

See United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB,

Doc. No. 946 at 13 (Order denying motion to dismiss) (“[Defendants] were not indicted 

for facilitating the amorphous notion of ‘prostitution.’ They were indicted for facilitating 

(via publishing ads) on fifty distinct occasions where prostitutes, prostitution-related 

businesses, or other groups were involved in the business of prostitution.”); see United 

States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Transcript of 

December 4, 2020 Hearing (“And I think one of the key things in my reason for denying 

the recusal is that this case is not about Backpage. Backpage was prosecuted in a separate 

case, entered a plea in a separate case. This case is about these individual defendants and 

whether they had specific knowledge of these ads as facilitating illegal activity.”).

United States v. Jones, 909 F.2d 533, 539 (D.C.Cir.1990) (a proper Travel Act jury 

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instruction “would inform the jury that the defendant must have performed or attempted to 

perform an act in furtherance of the business, with the intent that each element of the 

underlying state crime be completed”); Deptula v. Attorney General of U.S., 642 Fed. 

Appx. 184 (3rd Cir. 2016) (“to obtain a Travel Act conviction, the government must prove 

. . . that the defendant had the specific intent to facilitate each element of the relevant 

offense.”); United States v. Bertman, 686 F.2d 772, 774 (9th Cir. 1982) (“When the 

unlawful activity charged in the indictment is the violation of state law, the commission of 

or the intent to commit such a violation is an element of the federal offense.”).

UNITED STATES’ OBJECTIONS

The Court should give the Travel Act instructions proposed by the United States 

instead of this proposed instruction by Defendants. First, the United States’ instruction 

tracks the Model Jury Instruction. Defendants’ proposed instruction provides a host of 

extraneous material. Defendants’ “First Amendment Application” is—as discussed by the 

United States in Part IV infra—contrary to law and the facts in this case. All of the 

instruction following the second element, which is where the Model Instruction ends, is 

unnecessary and represents Defendants’ legal arguments that are unsupported by law, as 

this Court has recognized in previous Orders. (See Doc. 793 at 15 (“Defendants argue the 

First Amendment requires the Government or prove that each Defendant was aware of each 

ad that make up the fifty Travel Act counts and knew that each ad proposed illegal 

transactions. The Court is not persuaded that the First Amendment demands such a 

standard.”); Doc. 946 at 13-14 (“[T]he allegations certainly describe a course of conduct 

where Defendants facilitated ‘unlawful activity,’ including numerous pimps, prostitutes 

and traffickers in violation of the Travel Act. They also certainly describe how these 

various groups continuously engaged in prostitution, which plausibly fits within the 

definition of a ‘business enterprise.’”).)

Defendants also rely on United States v. Bertman, for the proposition that 

Defendants needed the intent to violate the state prostitution offense before being found 

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guilty. That’s not accurate. Bertman involved a claim under 18 U.S.C. § 1952(b)(2) that 

the defendant violated the Travel Act by bribing a public official in Hawaii in direct 

violation of the Hawaii Penal Code. 686 F.2d at 773-74. The Ninth Circuit held that 

“[w]hen the unlawful activity charged in the indictment is the violation of state law, the 

commission of or the intent to commit such a violation is an element of the federal offense,” 

the government “must prove . . . that the defendant has or could have violated the 

underlying state law, and the defendant may assert any relevant substantive state law 

defense.” Id. at 774 (emphasis added). Here, the unlawful activity at issue is not 

Defendants’ direct violation of a state “extortion, bribery, or arson” statute under 18 U.S.C. 

§ 1952(b)(2) (as in Bertman), but rather Defendants’ promotion or facilitation of unlawful 

activity under 18 U.S.C. § 1952(a)(3) and (b)(1). (See, e.g., SI¶¶9-11, 34.) In these 

circumstances, it would make no sense to require that the United States prove Defendants 

did or could have directly committed the underlying state law offenses. “Promotion” or 

“facilitation,” not commission, is all that is required. See 18 U.S.C. § 1952(a)(3).

Defendants’ contrary reading would render superfluous the terms “promote” and 

“facilitate” in 18 U.S.C. § 1952(a)(3)—“a result we typically try to avoid.” N.L.R.B. v. SW 

Gen., Inc., 137 S. Ct. 929, 941 (2017). See also Williams v. Taylor, 529 U.S. 362, 404

(2000) (“[W]e must give effect, if possible, to every clause and word of a statute.”). For 

that very reason, the Ninth Circuit has recognized that the Travel Act does not require proof 

that defendants intended to violate state law themselves; proof that defendants intended to

promote or facilitate violation of state law suffices. Polizzi, 500 F.2d at 876-77 (“[T]o the 

extent that [a Sixth Circuit case] requires proof that an accused under § 1952 intended to 

violate state law himself, we find that it conflicts with the clear meaning of the language 

used in § 1952.”). These include cases decided post-Bertman. United States v. Winslow, 

962 F.2d 845, 852 (9th Cir. 1992) (“Section 1952(a)(3) requires the government to prove 

only that a defendant committed ‘a subsequent overt act in furtherance of the unlawful 

activity.’”); United States v. Stafford, 831 F.2d 1479, 1482 (9th Cir. 1987) (“The Travel 

Act does not require the commission of the predicate offense; rather, only an ‘attempt to 

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promote’ the unlawful activity . . . with a ‘subsequent overt act in furtherance of that 

unlawful activity.’”); see also United States v. Jones, 642 F.2d 909, 913 (5th Cir. 1981) 

(subsequent facilitating act required by Travel Act need only make the unlawful activity 

easier and need not itself be unlawful). This Court’s prior Orders discussing the adequacy 

of the SI are to the same effect. (See Doc. 793, Order at 15 (quoting Polizzi and describing 

mens rea required by Travel Act); see also Doc. 840, Order at 10-12 (discussing elements 

of Travel Act); Doc. 946, Order at 7-8, 11, 14-16 (same).) 

The Court should instruct the jury based on the United States’ proposed jury 

instructions describing Counts 2-51.

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UNITED STATES’ PROPOSED 8.25 CONSPIRACY—LIABILITY FOR TRAVEL 

ACT VIOLATIONS COMMITTED BY CO-CONSPIRATOR (PINKERTON 

CHARGE)*

Each member of the conspiracy is responsible for the actions of the other conspirators 

performed during the course and in furtherance of the conspiracy. If one member of a 

conspiracy commits a crime in furtherance of a conspiracy, the other members have also, 

under the law, committed that crime.

Therefore, you may find the defendant guilty of committing a Travel Act crime as 

charged in Counts 2-51 of the indictment if the United States has proved each of the 

following elements beyond a reasonable doubt:

First, a member of the conspiracy committed the Travel Act offense alleged in that 

count;

Second, the person was a member of the conspiracy charged in Count 1 of the 

indictment;

Third, the person committed the Travel Act offense in furtherance of the conspiracy;

Fourth, the defendant was a member of the same conspiracy at the time the offenses 

charged in Counts 2-51 were committed; and

Fifth, the offense fell within the scope of the unlawful agreement and could 

reasonably have been foreseen to be a necessary or natural consequence of the unlawful 

agreement.

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DEFENDANTS’ PROPOSED INSTRUCTION

8.25 CONSPIRACY—LIABILITY FOR TRAVEL ACT VIOLATIONS

COMMITTED BY CO-CONSPIRATOR (PINKERTON CHARGE)

(Co-Conspirator Liability)

Each member of a conspiracy is responsible for the actions of the other conspirators 

performed during the course and in furtherance of the conspiracy. If one member of a 

conspiracy commits a crime in furtherance of a conspiracy, the other members have also, 

under the law, committed that crime.

Therefore, you may find a defendant guilty of a violation of the Travel Act under 

Section 1952(a)(3)(A) of Title 18 of the United States Code as charged in Counts 2-51 of 

the indictment if the government has proved each of the following elements beyond a 

reasonable doubt:

First, a person named in Count 1 of the indictment committed the crime of violating 

the Travel Act by promoting, or facilitating the promotion of, prostitution offenses 

committed by a particular business enterprise in violation of the laws of the State in which 

they are committed;

Second, the person named in Count 1 was a member of the conspiracy as charged 

in Count 1 of the indictment;

Third, the person named in Count 1 committed the crime of promoting, or 

facilitating the promotion of, prostitution offenses committed by a business enterprise in 

furtherance of the conspiracy;

Fourth, the defendant was a member of the same conspiracy at the time the offenses 

charged in Counts 2-51 were committed;

Fifth, the offense fell within the scope of the unlawful agreement and could 

reasonably have been foreseen to be a necessary or natural consequence of the unlawful 

agreement.

To prove a conspiracy, the government must prove beyond a reasonable doubt the 

requisite intent to commit the substantive crime, here the promotion, or the facilitation of 

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the promotion, of prostitution offenses committed by a particular business enterprise in 

violation of the laws of the State in which they are committed. The elements of the Travel 

Act are not satisfied if a defendant merely did an act that promoted, or facilitated the 

promotion of, the prostitution offenses committed by a particular business enterprise. The 

elements of the Travel Act are only established if the government proves beyond a 

reasonable doubt that a defendant knowingly and willfully intended his or her act to 

facilitate the prostitution offenses committed by a particular business enterprise associated 

with that ad. 

The government cannot meet its burden to prove that a defendant had the specific 

intent to participate in and further the prostitution offenses committed by a particular 

business enterprise associated with the ad by proving:

• the defendant had after-the-fact knowledge that some people who advertised 

on Backpage.com engaged in prostitution offenses or that some or even many 

past ads on Backpage.com related to unlawful activity;

• the defendant knew Backpage.com might facilitate prostitution in the 

abstract;

• the defendant was indifferent to the actions of the purchasers of classified 

ads on Backpage.com; or

• the defendant knew that a particular advertiser might, at times, engage in 

prostitution offenses.

Rather, to satisfy the specific intent requirements of the Travel Act, the government must 

prove beyond a reasonable doubt, for each Count, that each defendant in some significant 

manner associated himself or herself with a particular business enterprise associated with 

the ad charged in that Count with the intent to promote, or facilitate the promotion of, the 

prostitution offenses committed by that business enterprise. As such, to find a defendant 

guilty of conspiring to violate the Travel Act, you must find that the government proved 

beyond a reasonable doubt that the defendant joined a conspiracy with the specific intent 

to associate himself or herself with a business enterprise for the purpose of advancing the 

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prostitution offenses committed by that business enterprise. 

The existence of a “business enterprise” is an element of this crime and, unless the 

government has proven to you beyond a reasonable doubt the existence of a “business 

enterprise” as to each count, you must return a verdict of not guilty. A defendant cannot 

intend to promote or facilitate a business enterprise he or she does not know exists. The 

government also must prove beyond a reasonable doubt that the act each defendant 

performed in furtherance of the business enterprise was done with the specific intent to 

facilitate each element of the underlying state crime. 

[This instruction should track the elements and definition of “prostitution” that the 

government provided to the grand jury at the time this indictment was returned. See Doc. 

No. 1171.]

Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 8.25 (2021) (modified to reflect the charges in the 

indictment).

To prove a conspiracy charge, the government must prove the “requisite intent for 

the substantive crime.” United States v. Kaplan, 836 F.3d 1199, 1212 (9th Cir. 2016). A 

violation of the Travel Act is a specific intent crime. In Woodhull Freedom Foundation v. 

United States, the government argued that for prosecutions under the Travel Act, the 

prosecutor must prove beyond a reasonable doubt “not simply that the defendant was aware 

of a potential result of the criminal offense, but instead that the defendant intended to 

‘explicitly further[]’ a specified unlawful act.” 334 F. Supp. 3d 185, 199-201 (D.D.C. 

2018), rev’d. 948 F.3d 363 (D.C. Cir. 2020). The court agreed with the government and 

held that the law applies only to “specific unlawful acts with respect to a particular 

individual, not the broad subject-matter of prostitution.” Id. Most recently, in defending 

the district court decision in that case, DOJ repeated its position that in a prosecution under 

the Travel Act, the government must allege that the Defendant acted to intentionally 

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promote or facilitate a “specific, unlawful instance of prostitution.” Brief for the United 

States in Woodhull Freedom Found. v. United States, No. 18-5298 (D.C. Cir. Apr. 15, 

2019) (Doc. No. 1782997) at 21-22.

See also Backpage.com v. Dart, 807 F.3d 229, 234 (7th Cir. 2015) (“‘[A]n 

intermediary . . . normally is indifferent to the content of what it transmits. Even entities 

that know the information’s content do not become liable for the sponsor’s deeds. Does a 

newspaper that carries an advertisement for ‘escort services’ or ‘massage parlors’ aid and 

abet the crime of prostitution, if it turns out that some (or many) of the advertisers make 

money from that activity?’ Doe v. GTE Corp., 347 F.3d 655, 659 (7th Cir. 2003) . . . 

Backpage is an intermediary between the advertisers of adult services and visitors to 

Backpage’s website.”); In re Aimster Copyright Litig., 334 F.3d 643, 651 (7th Cir. 2003) 

(“A retailer of slinky dresses is not guilty of aiding and abetting prostitution even if he 

knows that some of his customers are prostitutes....”). 

United States v Gibson Specialty Co., 507 F.2d 446, 450 fn. 8 (9th Cir. 1974) (“The 

presumption that one intends the natural and probable consequences of his actions is 

insufficient in this context to establish intent to facilitate criminal activity. It is as likely as 

not that a vendor similar to the defendants in this proceeding is totally indifferent to the 

actions of his purchaser.”).

See United States v. Rundo, 990 F.3d 709, 719-720 (9th Cir. 2021) (“’the intent to 

engage in one of the prohibited acts is a personal prerequisite to punishment under [the 

Anti-Riot Act] . . . Simply put, knowing that some might choose to become violent is not 

at all the same as intending that they do so.”).

Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1281 (W.D. Wash. 2012) 

(“The third-party publication of offers to engage in illegal transactions does not fall within 

‘well-defined and narrowly limited classes of speech’ that fall outside of First Amendment 

protection.”) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942)).

See United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB,

Doc. No. 946 at 13 (Order denying motion to dismiss) (“[Defendants] were not indicted 

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for facilitating the amorphous notion of ‘prostitution.’ They were indicted for facilitating 

(via publishing ads) on fifty distinct occasions where prostitutes, prostitution-related 

businesses, or other groups were involved in the business of prostitution.”); see United 

States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Transcript of 

December 4, 2020 Hearing (“And I think one of the key things in my reason for denying 

the recusal is that this case is not about Backpage. Backpage was prosecuted in a separate 

case, entered a plea in a separate case. This case is about these individual defendants and 

whether they had specific knowledge of these ads as facilitating illegal activity.”).

United States v. Jones, 909 F.2d 533, 539 (D.C.Cir.1990) (a proper Travel Act jury 

instruction “would inform the jury that the defendant must have performed or attempted to 

perform an act in furtherance of the business, with the intent that each element of the 

underlying state crime be completed”); Deptula v. Attorney General of U.S., 642 Fed. 

Appx. 184 (3rd Cir. 2016) (“to obtain a Travel Act conviction, the government must prove 

. . . that the defendant had the specific intent to facilitate each element of the relevant 

offense.”); United States v. Bertman, 686 F.2d 772, 774 (9th Cir. 1982) (“When the 

unlawful activity charged in the indictment is the violation of state law, the commission of 

or the intent to commit such a violation is an element of the federal offense.”).

UNITED STATES’ OBJECTIONS

Everything after the fifth element in Defendants’ proposed instruction should not be 

read to the jury for the same reasons the United States articulated in its objection to the 

Travel Act instruction infra. With that language eliminated, the parties’ instructions are 

similar with one key difference: Defendants’ proposed instruction includes the statement 

“a person named in Count 1” in each of the first three elements. This instruction is too 

restrictive and does not appropriately convey Pinkerton liability.

For a defendant to be found guilty at trial under a Pinkerton theory, the coconspirator need not be named in the indictment. United States v. Carpenter, 961 F.2d 

824, 828 n.3 (9th Cir. 1992) (“As an unindicted co-conspirator, Shahabian's acts and 

statements in furtherance of the conspiracy may be attributed to Carpenter.”) (citing 

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Pinkerton v. United States, 328 U.S. 640, 646-47 (1946)). Here, the Court has already 

recognized that Pinkerton liability extends to individuals not named in the Superseding 

Indictment. (Doc. 793 at 19) (discussing Pinkerton and fact that “C.F” was a coconspirator of Defendants). See also United States v. Long, 301 F.3d 1095, 1103 (9th Cir 

2002) (“The Pinkerton doctrine is a judicially-created rule that makes a conspirator 

criminally liable for the substantive offenses committed by a co-conspirator when they are 

reasonably foreseeable and committed in furtherance of the conspiracy.”). Both the 

applicable law and facts support the Court instructing the jury using the United States’ 

proposed instruction. 

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UNITED STATES’ PROPOSED INSTRUCTION 8.20 MONEY LAUNDERING

CONSPIRACY—ELEMENTS*

Defendants Lacey, Larkin, Spear, and Brunst are charged in Count 52 of the 

indictment with conspiring to commit money laundering in violation of Section 1956(h) of 

Title 18 of the United States Code. In order for a defendant to be found guilty of that charge, 

the United States must prove each of the following elements beyond a reasonable doubt: 

First, beginning in or around 2004, and continuing through April 2018, there was an 

agreement between two or more persons to commit at least one crime alleged in the money 

laundering conspiracy, namely Promotional Money Laundering, Concealment Money 

Laundering, International Promotional Money Laundering, International Concealment 

Money Laundering, or Transactional Money Laundering; and 

Second, that the defendant became a member of the conspiracy knowing of at least 

one of its objects and intending to help accomplish it.

A conspiracy is a kind of criminal partnership––an agreement of two or more persons 

to commit one or more crimes. The crime of conspiracy is the agreement to do something 

unlawful; it does not matter whether the crime agreed upon was committed. 

For a conspiracy to have existed, it is not necessary that the conspirators made a 

formal agreement or that they agreed on every detail of the conspiracy. It is not enough, 

however, that they simply met, discussed matters of common interest, acted in similar ways, 

or perhaps helped one another. You must find that there was a plan to commit at least one 

of the crimes alleged in the indictment as an object of the conspiracy with all of you agreeing 

as to the particular crime that the conspirators agreed to commit. 

One becomes a member of a conspiracy by willfully participating in the unlawful plan 

with the intent to advance or further some object or purpose of the conspiracy, even though 

the person does not have full knowledge of all the details of the conspiracy. Furthermore, 

one who willfully joins an existing conspiracy is as responsible for it as the originators. On 

the other hand, one who has no knowledge of a conspiracy, but happens to act in a way which 

furthers some object or purpose of the conspiracy, does not thereby become a conspirator. 

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Similarly, a person does not become a conspirator merely by associating with one or more 

persons who are conspirators, nor merely by knowing that a conspiracy exists. 

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DEFENDANTS’ PROPOSED INSTRUCTION 

8.20 CONSPIRACY—ELEMENTS

(Conspiracy to Commit Money Laundering – Elements)

Defendants Lacey, Larkin, Spear, and Brunst are charged in Count 52 of the 

indictment with conspiring to commit money laundering in violation of Section 1956(h) of 

Title 18 of the United States Code. In order for a Defendant to be found guilty of that 

charge, the government must prove each of the following elements beyond a reasonable 

doubt for that Defendant: 

First, beginning in or around 2004, and ending on or about April 2018, there was an 

agreement between two or more persons to commit concealment money laundering in 

violation of Section 1956(a)(1)(B)(i), international promotional money laundering in 

violation of Section 1956(a)(2)(A), transactional money laundering in violation of Section 

1957(a), and international concealment money laundering in violation of Section 

1956(a)(2)(B)(i); and

Second, a Defendant became a member of the conspiracy to commit concealment, 

international promotional, transactional, and international concealment money laundering 

knowing of at least one of its illegal objects and with the specific intent to help commit one 

or more of the substantive money laundering offenses charged (whose elements are listed 

below); and

Third, one of the members of the conspiracy performed at least one overt act on or 

after March 28, 2013, for the purpose of carrying out the conspiracy to commit 

concealment, international promotional, transactional, and international concealment 

money laundering. 

What Is a Conspiracy, and How Does One Become a Member?

A conspiracy is a kind of criminal partnership—an agreement of two or more 

persons to commit one or more crimes. The crime of conspiracy is the agreement to do 

something unlawful; it does not matter whether the crime agreed upon was committed.

For a conspiracy to have existed, it is not necessary that the conspirators made a 

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formal agreement or that they agreed on every detail of the conspiracy. It is not enough, 

however, that they simply met, discussed matters of common interest, acted in similar 

ways, or perhaps helped one another. You must find that there was a plan to commit at 

least one of the crimes alleged in the indictment as an illegal object of the conspiracy with 

all of you agreeing as to the particular crime – i.e., concealment, international promotional, 

transactional, international concealment money laundering – which the conspirators agreed 

to commit.

One becomes a member of a conspiracy by willfully participating in the unlawful 

plan with the intent to advance or further some illegal object or purpose of the conspiracy, 

even though the person does not have full knowledge of all the details of the conspiracy. 

Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the 

originators. On the other hand, one who has no knowledge of a conspiracy, but happens to 

act in a way which furthers some illegal object or purpose of the conspiracy, does not 

thereby become a conspirator. Similarly, a person does not become a conspirator merely 

by associating with one or more persons who are conspirators, nor merely by knowing that 

a conspiracy exists. To become a co-conspirator a person must have an intention and 

agreement to accomplish the same, specific criminal objective as his or her co-conspirators.

An overt act does not itself have to be unlawful. A lawful act may be an element of 

a conspiracy if it was done for the purpose of carrying out the unlawful conspiracy. The 

government is not required to prove that a Defendant personally did one of the overt acts.

Proof of an underlying substantive crime does not, without more, prove the 

existence of a conspiracy to commit that crime. 

Unanimity Requirements

For a Defendant to be found guilty of Count 52 (Conspiracy to Commit Money 

Laundering), you must find beyond a reasonable doubt that there was a plan to commit at 

least one illegal object of the alleged conspiracy – specifically intending to commit 

concealment money laundering, international promotion money laundering, transactional 

money laundering, and international concealment money laundering – with all of you 

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agreeing beyond a reasonable doubt as to which illegal object – which specific act(s) of 

concealment money laundering, international promotion money laundering, transactional 

money laundering, and international concealment money laundering – and all of you 

agreeing beyond a reasonable doubt that the Defendant knowingly and willfully joined the 

conspiracy to accomplish such object(s).

Supporting Authorities

Ninth Circuit Manual of Model Criminal Jury Instructions 8.20, 8.147, 8.148, 8.150, 

8.149 (2021) (modified to reflect criminal objects charged in Count 52); Barry Tarlow, 

Defense of a Federal Conspiracy Prosecution, 4 J.Crim.Defense 183, 201-02 (1978) 

(explaining that the object of the conspiracy must be unlawful); United States v. Lennick, 

18 F.3d 814, 819 (9th Cir. 1994) (“Proof of the underlying substantive crime, however, 

does not, without more, prove the existence of a conspiracy.”); United States v. Lapier, 796 

F.3d 1090 (9th Cir. 2015) (failure to give specific unanimity instruction was plain error 

because half of jury could have found defendant guilty of joining one conspiracy while 

other half of jury could have found defendant guilty of joining second conspiracy); United 

States v. Pomponio, 429 U.S. 10, 12 (1976) (willfulness is the “intentional violation of a 

known legal duty”). 

Salinas v. United States, 522 U.S. 52, 63 (1997) (the government must prove a 

defendant agreed to pursue the “same criminal objective” as his or her coconspirators); 

United States v. Hubbard, 96 F.3d 1223, 1226 (9th Cir. 1996) (“mere association with 

members of a conspiracy or knowledge of the conspiracy, ‘without an intention and

agreement to accomplish a specific illegal objective, is not sufficient to make one a 

conspirator’”); United States v. Merino, 846 F.Appx. 494, 495 (9th Cir. 2021) (same).

UNITED STATES’ OBJECTIONS

First, an overt act is not part of a money laundering conspiracy. Whitfield v. United 

States, 543 U.S. 209, 210-11 (2005) (“These cases present the question whether conviction 

for conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h), requires 

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proof of an overt act in furtherance of the conspiracy. We hold that it does not.”); id. at 

214 (“Because the text of § 1956(h) does not expressly make the commission of an overt 

act an element of the conspiracy offense, the Government need not prove an overt act to 

obtain a conviction.”). 

The remainder of Defendants’ proposed instruction is similar to the Model 

Instruction. The United States believes the Model Instruction as articulated in its proposed 

instruction is appropriate.5

 

5 This includes the fact that the United States need only prove that one of the underlying money laundering crimes listed in the instruction was the object of Defendants’ 

conspiracy, rather than all of them. The United States has properly used the disjunctive 

“or” while Defendants have improperly used the conjunctive “and.” 

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UNITED STATES’ PROPOSED 8.147 LAUNDERING OR ATTEMPTING TO 

LAUNDER MONETARY INSTRUMENTS

(18 U.S.C. § 1956(a)(1)(B))* 

Defendants Lacey, Larkin, Spear, and Brunst are charged in Counts 53-62 of the 

indictment with Concealment Money Laundering in violation of Section 1956(a)(1)(B)(i) of 

Title 18 of the United States Code. In order for a defendant to be found guilty of that charge, 

the United States must prove each of the following elements beyond a reasonable doubt: 

First, the defendant conducted a financial transaction involving property that 

represented the proceeds of promoting, managing, establishing, carrying on, or facilitating 

the promotion, management, establishment, or carrying on, of any business enterprise 

involving prostitution offenses;

Second, the defendant knew that the property represented the proceeds of some form 

of unlawful activity; and

Third, the defendant knew that the transaction was designed in whole or in part to 

conceal and disguise the nature, the location, the source, the ownership, or the control of the 

proceeds of the specified unlawful activity.

A financial transaction is a transaction involving the movement of funds by wire or 

other means that affects interstate or foreign commerce in any way.

The phrase “knew that the property represented the proceeds of some form of 

unlawful activity” means that the defendant knew that the property involved in the 

transaction represented proceeds from some form, though not necessarily which form, of 

activity that constitutes a felony. I instruct you that violating the Travel Act is a felony.

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DEFENDANTS’ PROPOSED INSTRUCTION 

8.147 LAUNDERING MONETARY INSTRUMENTS

(Counts 53-62—Concealment Money Laundering)

Defendants Lacey, Larkin, Spear, and Brunst are charged in Counts 53-62 of the 

indictment with Concealment Money Laundering in violation of Section 1956(a)(1)(B)(i) 

of Title 18 of the United States Code. In order for a defendant to be found guilty of that

charge, the government must prove each of the following elements beyond a reasonable 

doubt: 

First, the defendant conducted a financial transaction involving property that 

represented the proceeds of the knowing and willful promotion, or facilitation of the 

promotion of, the prostitution offenses committed by a particular business enterprise in 

violation of 18 U.S.C. § 1952(a)(3)(A), specifically (i) a business enterprise involved in at 

least one of the fifty advertisements that is the subject of Counts 2 – 51 and (ii) a business 

enterprise for which you found that defendant guilty of promoting or facilitating the 

promotion of; 

Second, the defendant knew that the property represented the proceeds of some form 

of unlawful activity; and

Third, the defendant knew that the transaction was designed in whole or in part to 

conceal and disguise the nature, the location, the source, the ownership, or the control of 

the proceeds of the specified unlawful activity.

A financial transaction is a transaction involving the movement of funds by wire or 

other means that affects interstate or foreign commerce in any way.

The phrase “knew that the property represented the proceeds of some form of 

unlawful activity” means that the defendant knew that the property involved in the 

transaction represented proceeds from some form, though not necessarily which form, of 

activity that constitutes a felony. I instruct you that knowingly and willfully promoting, or 

facilitating the promotion of, the prostitution offenses committed by any business 

enterprise in violation of 18 U.S.C. § 1952(a)(3)(A) is a felony.

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Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 8.147 (2021) (modified to reflect the charges in the 

indictment). As this Court previously held, the “specified unlawful activity” (“SUA”) here 

is not the general facilitation or promotion of “any business enterprise involving 

prostitution offenses” in violation of the Travel Act. See United States v. Lacey, et al. (D. 

Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order denying motion to 

dismiss) (“[Defendants] were not indicted for facilitating the amorphous notion of 

‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.”); see United States v. Lacey, et al. (D. Ariz.), Case No. 18-

CR-00422-PHX-SMB, Transcript of December 4, 2020 Hearing (“And I think one of the 

key things in my reason for denying the recusal is that this case is not about Backpage. 

Backpage was prosecuted in a separate case, entered a plea in a separate case. This case is 

about these individual defendants and whether they had specific knowledge of these ads as 

facilitating illegal activity.”). Therefore, the SUA referenced in each of the proposed jury 

instructions regarding the Indictment’s money laundering charges must reference the “fifty 

distinct” advertisements at issue in Counts 2 - 51. Id. 

UNITED STATES’ OBJECTIONS

The parties’ proposed instructions are similar except for the first element. 

Defendants propose a much more stringent definition of the specified unlawful activity. 

As this Court has previously recognized, that instruction is contrary to governing law. 

For instance, the first money laundering statute that Defendants are indicted 

under does not require the Government to allege or prove the underlying 

offenses. See 18 U.S.C. § 1956(c)(1) (“the term ‘knowing that the property 

involved in a financial transaction represents the proceeds of some form of 

unlawful activity’ means that the person knew the property involved in the 

transaction represented proceeds from some form, though not necessarily 

which form, of activity that constitutes a felony.” (emphasis added)).

(Doc. 946 at 17.) 

Contrary to Defendants’ proposed instruction, a defendant can be found guilty of 

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money laundering even if he was found not guilty under any of the Travel Act counts. 

(Doc. 946 at 17, n.11) (“[A] defendant may be convicted of a money laundering offense 

even if he did not commit the underlying offense.”)

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UNITED STATES’ PROPOSED 8.25 CONSPIRACY—LIABILITY FOR 

CONCEALMENT MONEY LAUNDERING VIOLATIONS COMMITTED BY COCONSPIRATOR (PINKERTON CHARGE)*

Each member of the conspiracy is responsible for the actions of the other conspirators 

performed during the course and in furtherance of the conspiracy. If one member of a 

conspiracy commits a crime in furtherance of a conspiracy, the other members have also, 

under the law, committed that crime.

Therefore, you may find the defendant guilty of Concealment Money Laundering as 

charged in Counts 53-62 of the indictment if the United States has proved each of the 

following elements beyond a reasonable doubt:

First, a member of the conspiracy committed the crime of concealment money 

laundering as alleged in that count;

Second, the person was a member of the conspiracy charged in Count 52 of the 

indictment;

Third, the person committed the crime of concealment money laundering in 

furtherance of the conspiracy;

Fourth, the defendant was a member of the same conspiracy at the time the offenses

charged in Counts 53-62 were committed; and

Fifth, the offense fell within the scope of the unlawful agreement and could 

reasonably have been foreseen to be a necessary or natural consequence of the unlawful 

agreement.

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DEFENDANTS’ PROPOSED INSTRUCTION 8.25 CONSPIRACY—LIABILITY 

FOR CONCEALMENT MONEY LAUNDERING VIOLATIONS COMMITTED 

BY CO-CONSPIRATOR (PINKERTON CHARGE)

(Co-Conspirator Liability)

Each member of a conspiracy is responsible for the actions of the other conspirators 

performed during the course and in furtherance of the conspiracy. If one member of a 

conspiracy commits a crime in furtherance of a conspiracy, the other members have also, 

under the law, committed that crime.

Therefore, you may find a Defendant guilty of a committing concealment money 

laundering in violation of Section 1956(a)(1)(B) of Title 18 of the United States Code as 

charged in Counts 53-62 of the indictment if the government has proved each of the 

following elements beyond a reasonable doubt:

First, a person named in Count 52 of the indictment committed the crime of 

concealment money laundering as alleged in Counts 53-62; 

Second, the person was a member of the conspiracy as charged in Count 52 of the 

indictment;

Third, the person committed the crime of concealment money laundering in 

furtherance of the conspiracy;

Fourth, the Defendant was a member of the same conspiracy at the time the offenses 

charged in Counts 53-62 were committed;

Fifth, the offense fell within the scope of the unlawful agreement and could 

reasonably have been foreseen to be a necessary or natural consequence of the unlawful 

agreement.

To prove a conspiracy, the government must prove beyond a reasonable doubt the 

requisite intent to commit the substantive crime, here concealment money laundering. 

Concealment money laundering is a specific intent crime. See the Specific Intent jury 

instruction. 

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Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 8.25 (2021) (modified to reflect the charges in the 

indictment). As this Court previously held, the “specified unlawful activity” (“SUA”) here 

is not the general facilitation or promotion of “any business enterprise involving 

prostitution offenses” in violation of the Travel Act. See United States v. Lacey, et al. (D. 

Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order denying motion to 

dismiss) (“[Defendants] were not indicted for facilitating the amorphous notion of 

‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.”); see United States v. Lacey, et al. (D. Ariz.), Case No. 18-

CR-00422-PHX-SMB, Transcript of December 4, 2020 Hearing (“And I think one of the 

key things in my reason for denying the recusal is that this case is not about Backpage. 

Backpage was prosecuted in a separate case, entered a plea in a separate case. This case is 

about these individual defendants and whether they had specific knowledge of these ads as 

facilitating illegal activity.”). Therefore, the SUA referenced in each of the proposed jury 

instructions regarding the Indictment’s money laundering charges must reference the “fifty 

distinct” advertisements at issue in Counts 2 - 51. Id.

To prove a conspiracy charge, the government must prove the “requisite intent for 

the substantive crime.” United States v. Kaplan, 836 F.3d 1199, 1212 (9th Cir. 2016). 

Concealment money laundering is a specific intent crime.

UNITED STATES’ OBJECTIONS

Defendants’ proposed instruction, which is largely similar to the United States’

proposed instruction, includes the statement “a person named in Count 52” in the first 

element. This instruction is too restrictive and does not appropriately convey Pinkerton

liability.

For a defendant to be found guilty at trial under a Pinkerton theory, the coconspirator need not be named in the indictment. United States v. Carpenter, 961 F.2d 

824, 828 n.3 (9th Cir. 1992) (“As an unindicted co-conspirator, Shahabian's acts and 

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statements in furtherance of the conspiracy may be attributed to Carpenter.”) (citing 

Pinkerton v. United States, 328 U.S. 640, 646-47 (1946)). Here, the Court has already 

recognized that Pinkerton liability extends to individuals not named in the Superseding 

Indictment. (Doc. 793 at 19) (discussing Pinkerton and fact that “C.F” was a coconspirator of Defendants). See also United States v. Long, 301 F.3d 1095, 1103 (9th Cir 

2002) (“The Pinkerton doctrine is a judicially-created rule that makes a conspirator 

criminally liable for the substantive offenses committed by a co-conspirator when they are 

reasonably foreseeable and committed in furtherance of the conspiracy.”). Both the 

applicable law and facts support the Court instructing the jury using the United States’

proposed instruction. 

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UNITED STATES’ PROPOSED INSTRUCTION 8.148 TRANSPORTING OR 

ATTEMPTING TO TRANSPORT 

FUNDS TO PROMOTE UNLAWFUL ACTIVITY

(18 U.S.C. § 1956(a)(2)(A))* 

Defendants Lacey, Larkin, Spear, and Brunst are charged in Counts 63-68 of the 

indictment with transporting funds to promote unlawful activity in violation of Section 

1956(a)(2)(A) of Title 18 of the United States Code. In order for a defendant to be found 

guilty of that charge, the United States must prove each of the following elements beyond a 

reasonable doubt:

First, the defendant transported money from a place in the United States to or through 

a place outside the United States or to a place in the United States from or through a place 

outside the United States; and

Second, the defendant acted with the intent to promote the carrying on of violations 

of the Travel Act.

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DEFENDANTS’ PROPOSED INSTRUCTION 

8.148 TRANSPORTING FUNDS TO PROMOTE UNLAWFUL ACTIVITY

(Counts 63-68—International Promotional Money Laundering)

Defendants Lacey, Larkin, Spear, and Brunst are charged in Counts 63-68 of the 

indictment with transporting funds to promote unlawful activity in violation of Section 

1956(a)(2)(A) of Title 18 of the United States Code. In order for a defendant to be found 

guilty of that charge, the government must prove each of the following elements beyond a 

reasonable doubt:

First, the defendant transported money from a place in the United States to or 

through a place outside the United States or to a place in the United States from or through 

a place outside the United States; and

Second, the defendant acted with the intent to promote, or facilitate the promotion 

of, the prostitution offenses committed by a particular business enterprise in violation of 

18 U.S.C. § 1952(a)(3)(A), specifically (i) a business enterprise involved in at least one of 

the fifty advertisements that is the subject of Counts 2 – 51 and (ii) a business enterprise 

for which you found that defendant guilty of promoting or facilitating the promotion of.

Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 8.147 (2021) (modified to reflect the charges in the 

indictment). As this Court previously held, the “specified unlawful activity” (“SUA”) here 

is not the general facilitation or promotion of “any business enterprise involving 

prostitution offenses” in violation of the Travel Act. See United States v. Lacey, et al. (D. 

Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order denying motion to 

dismiss) (“[Defendants] were not indicted for facilitating the amorphous notion of 

‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.”); see United States v. Lacey, et al. (D. Ariz.), Case No. 18-

CR-00422-PHX-SMB, Transcript of December 4, 2020 Hearing (“And I think one of the 

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key things in my reason for denying the recusal is that this case is not about Backpage. 

Backpage was prosecuted in a separate case, entered a plea in a separate case. This case is 

about these individual defendants and whether they had specific knowledge of these ads as 

facilitating illegal activity.”). Therefore, the SUA referenced in each of the proposed jury 

instructions regarding the Indictment’s money laundering charges must reference the “fifty 

distinct” advertisements at issue in Counts 2 - 51. Id. 

UNITED STATES’ OBJECTIONS

The parties’ proposed instructions are similar except for the second element. 

Defendants propose a much more stringent definition of the specified unlawful activity. 

As this Court has previously recognized, that instruction is contrary to governing law. 

For instance, the first money laundering statute that Defendants are indicted 

under does not require the Government to allege or prove the underlying 

offenses. See 18 U.S.C. § 1956(c)(1) (“the term ‘knowing that the property 

involved in a financial transaction represents the proceeds of some form of 

unlawful activity’ means that the person knew the property involved in the 

transaction represented proceeds from some form, though not necessarily 

which form, of activity that constitutes a felony.” (emphasis added)).

(Doc. 946 at 17.) 

Contrary to Defendants’ proposed instruction, a defendant can be found guilty of 

money laundering even if he was found not guilty under any of the Travel Act counts. 

(Doc. 946 at 17, n.11) (“[A] defendant may be convicted of a money laundering offense 

even if he did not commit the underlying offense.”) 

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UNITED STATES’ PROPOSED 8.25 CONSPIRACY—LIABILITY FOR 

INTERNATIONAL PROMOTIONAL MONEY LAUNDERING VIOLATIONS

COMMITTED BY CO-CONSPIRATOR (PINKERTON CHARGE)*

Each member of the conspiracy is responsible for the actions of the other conspirators 

performed during the course and in furtherance of the conspiracy. If one member of a 

conspiracy commits a crime in furtherance of a conspiracy, the other members have also, 

under the law, committed that crime.

Therefore, you may find the defendant guilty of International Promotional Money 

Laundering as charged in Counts 63-68 of the indictment if the United States has proved 

each of the following elements beyond a reasonable doubt:

First, a member of the conspiracy committed the crime of concealment money 

laundering as alleged in that count;

Second, the person was a member of the conspiracy charged in Count 52 of the 

indictment;

Third, the person committed the crime of international promotional money laundering

in furtherance of the conspiracy;

Fourth, the defendant was a member of the same conspiracy at the time the offenses 

charged in Counts 63-68 were committed; and

Fifth, the offense fell within the scope of the unlawful agreement and could 

reasonably have been foreseen to be a necessary or natural consequence of the unlawful 

agreement.

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DEFENDANTS’ PROPOSED INSTRUCTION 

8.25 CONSPIRACY—LIABILITY FOR INTERNATIONAL PROMOTIONAL 

MONEY LAUNDERING VIOLATIONS COMMITTED BY CO-CONSPIRATOR 

(PINKERTON CHARGE)

(Co-Conspirator Liability)

Each member of a conspiracy is responsible for the actions of the other conspirators 

performed during the course and in furtherance of the conspiracy. If one member of a 

conspiracy commits a crime in furtherance of a conspiracy, the other members have also, 

under the law, committed that crime.

Therefore, you may find a Defendant guilty of a committing international 

promotional money laundering in violation of Section 1956(a)(2)(A) of Title 18 of the 

United States Code as charged in Counts 63-68 of the indictment if the government has 

proved each of the following elements beyond a reasonable doubt:

First, a person named in Count 52 of the indictment committed the crime of 

international promotional money laundering as alleged in Counts 63-68; 

Second, the person was a member of the conspiracy as charged in Count 52 of the 

indictment;

Third, the person committed the crime of international promotional money 

laundering in furtherance of the conspiracy;

Fourth, the Defendant was a member of the same conspiracy at the time the offenses 

charged in Counts 63-68 were committed;

Fifth, the offense fell within the scope of the unlawful agreement and could 

reasonably have been foreseen to be a necessary or natural consequence of the unlawful 

agreement.

To prove a conspiracy, the government must prove beyond a reasonable doubt the 

requisite intent to commit the substantive crime, here international promotional money 

laundering. International promotional money laundering is a specific intent crime. See the 

Specific Intent jury instruction.

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Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 8.25 (2021) (modified to reflect the charges in the 

indictment). As this Court previously held, the “specified unlawful activity” (“SUA”) here 

is not the general facilitation or promotion of “any business enterprise involving 

prostitution offenses” in violation of the Travel Act. See United States v. Lacey, et al. (D. 

Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order denying motion to 

dismiss) (“[Defendants] were not indicted for facilitating the amorphous notion of 

‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.”); see United States v. Lacey, et al. (D. Ariz.), Case No. 18-

CR-00422-PHX-SMB, Transcript of December 4, 2020 Hearing (“And I think one of the 

key things in my reason for denying the recusal is that this case is not about Backpage. 

Backpage was prosecuted in a separate case, entered a plea in a separate case. This case is 

about these individual defendants and whether they had specific knowledge of these ads as 

facilitating illegal activity.”). Therefore, the SUA referenced in each of the proposed jury 

instructions regarding the Indictment’s money laundering charges must reference the “fifty 

distinct” advertisements at issue in Counts 2 - 51. Id.

To prove a conspiracy charge, the government must prove the “requisite intent for 

the substantive crime.” United States v. Kaplan, 836 F.3d 1199, 1212 (9th Cir. 2016). 

International promotional money laundering is a specific intent crime. 

UNITED STATES’ OBJECTIONS

Defendants’ proposed instruction, which is largely similar to the United States’ 

proposed instruction, includes the statement “a person named in Count 52” in the first 

element. This instruction is too restrictive and does not appropriately convey Pinkerton

liability.

For a defendant to be found guilty at trial under a Pinkerton theory, the coconspirator need not be named in the indictment. United States v. Carpenter, 961 F.2d 

824, 828 n.3 (9th Cir. 1992) (“As an unindicted co-conspirator, Shahabian's acts and 

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statements in furtherance of the conspiracy may be attributed to Carpenter.”) (citing 

Pinkerton v. United States, 328 U.S. 640, 646-47 (1946)). Here, the Court has already 

recognized that Pinkerton liability extends to individuals not named in the Superseding 

Indictment. (Doc. 793 at 19) (discussing Pinkerton and fact that “C.F” was a coconspirator of Defendants). See also United States v. Long, 301 F.3d 1095, 1103 (9th Cir 

2002) (“The Pinkerton doctrine is a judicially-created rule that makes a conspirator 

criminally liable for the substantive offenses committed by a co-conspirator when they are 

reasonably foreseeable and committed in furtherance of the conspiracy.”). Both the 

applicable law and facts support the Court instructing the jury using the United States’

proposed instruction. 

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UNITED STATES’ PROPOSED INSTRUCTION 8.150 

TRANSACTIONAL MONEY LAUNDERING

(18 U.S.C. § 1957)* 

Defendant Lacey is charged in Counts 69-70, 81, 83-84, 86, 88-92, and 94-99; 

Defendant Larkin is charged in Counts 80 and 87; Defendant Spear is charged in Counts 71-

78, 85, and 93; and Defendant Brunst is charged in Counts 69-70, 78-84, and 86-93, of the 

indictment with transactional money laundering in violation of Section 1957 of Title 18 of 

the United States Code. In order for a defendant to be found guilty of that charge, the United 

States must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly engaged or attempted to engage in a monetary 

transaction;

Second, the defendant knew the transaction involved criminally derived property;

Third, the property had a value greater than $10,000;

Fourth, the property was, in fact, derived from violations of the Travel Act; and

Fifth, the transaction occurred in the United States.

The term “monetary transaction” means the deposit, withdrawal, transfer, or 

exchange, in or affecting interstate commerce, of funds or a monetary instrument by, 

through, or to a financial institution. 

The term “financial institution” means an insured bank, commercial bank, or credit 

union.

The term “criminally derived property” means any property constituting, or derived 

from, the proceeds of a criminal offense. The United States must prove that the defendant 

knew that the property involved in the monetary transaction constituted, or was derived from, 

proceeds obtained by some criminal offense. The United States does not have to prove that 

the defendant knew the precise nature of that criminal offense, or knew the property involved 

in the transaction represented the proceeds of promoting or facilitating the promotion of any 

business enterprise involving prostitution offenses.

Although the United States must prove that, of the property at issue more than $10,000 

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was criminally derived, the United States does not have to prove that all of the property at 

issue was criminally derived.

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DEFENDANTS’ PROPOSED INSTRUCTION 

8.150 MONEY LAUNDERING

(Transactional Money Laundering)

Defendant Lacey is charged in Counts 69-70, 81, 83-84, 86, 88-92, and 94-99; 

Defendant Larkin is charged in Counts 80 and 87; Defendant Spear is charged in Counts 

71-78, 85, and 93; and Defendant Brunst is charged in Counts 69-70, 78-84, and 86-93, of 

the indictment with money laundering in violation of Section 1957 of Title 18 of the United 

States Code. In order for a defendant to be found guilty of that charge, the government 

must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly engaged or attempted to engage in a monetary 

transaction;

Second, the defendant knew the specific transaction charged involved specific 

criminally derived property;

Third, the property had a value greater than $10,000;

Fourth, the property was, in fact, derived from the knowing and willful promotion,

or facilitation of the promotion of, the prostitution offenses committed by a particular 

business enterprise in violation of 18 U.S.C. § 1952(a)(3)(A), specifically (i) a business 

enterprise involved in at least one of the fifty advertisements that is the subject of Counts 

2 – 51 and (ii) a business enterprise for which you found that Defendant guilty of promoting 

or facilitating the promotion of; and

Fifth, the transaction occurred in the United States.

The term “monetary transaction” means the deposit, withdrawal, transfer, or 

exchange, in or affecting interstate commerce, of funds or a monetary instrument by, 

through, or to a financial institution. 

The term “financial institution” means an insured bank, commercial bank, or credit 

union.

The term “criminally derived property” means any property constituting, or derived 

from, the proceeds of a criminal offense. The government must prove beyond a reasonable 

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doubt that the defendant knew that the property involved in the monetary transaction 

constituted, or was derived from, proceeds obtained by some criminal offense. The statute 

only encompasses transactions in which a defendant first knowingly obtains “criminally 

derived property,” and then engages in a monetary transaction with that property.

The government does not have to prove that the defendant knew the precise nature 

of that criminal offense, or knew the property involved in the transaction represented the 

proceeds of promoting, or facilitating the promotion of, the prostitution offenses committed 

by a particular business enterprise in violation of 18 U.S.C. § 1952(a)(3)(A). But the 

government must prove beyond a reasonable doubt that the defendant knew the specific 

transaction charged involved specific criminally derived property—it is not enough that 

the defendant knew the proceeds derived from advertisements for prostitution offenses. 

Although the government must prove that more than $10,000 of the property at issue 

was criminally derived, the government does not have to prove that all of the property at 

issue was criminally derived.

Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 8.150 (2021) (modified to reflect the charges in the 

indictment). As this Court previously held, the “specified unlawful activity” (“SUA”) here 

is not the general facilitation or promotion of “any business enterprise involving 

prostitution offenses” in violation of the Travel Act. See United States v. Lacey, et al. (D. 

Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order denying motion to 

dismiss) (“[Defendants] were not indicted for facilitating the amorphous notion of 

‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.”); see United States v. Lacey, et al. (D. Ariz.), Case No. 18-

CR-00422-PHX-SMB, Transcript of December 4, 2020 Hearing (“And I think one of the 

key things in my reason for denying the recusal is that this case is not about Backpage. 

Backpage was prosecuted in a separate case, entered a plea in a separate case. This case is 

about these individual defendants and whether they had specific knowledge of these ads as 

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facilitating illegal activity.”). Therefore, the SUA referenced in each of the proposed jury 

instructions regarding the Indictment’s money laundering charges must reference the “fifty 

distinct” advertisements at issue in Counts 2 - 51. Id. 

See United States v. Piervinanzi, 23 F.3d 670, 677 (2d Cir. 1994) (government 

agreeing to vacate conviction and not disputing that “the language of the statute only 

encompasses transactions in which a defendant first obtains ‘criminally derived property,’ 

and then engages in a monetary transaction with that property.”); United States v. Johnson, 

971 F.2d 562, 570 (10th Cir. 1992) (reversing conviction, noting that “Section 

1957 appears to be drafted to proscribe certain transactions in proceeds that have already 

been obtained by an individual from an underlying criminal offense.”).

UNITED STATES’ OBJECTIONS

Defendants proposed fourth element is an incorrect statement of law. As the Court 

has already made clear, “In a prosecution for an offense under [18 U.S.C. § 1957], the 

Government is not required to prove the defendant knew that the offense from which the 

criminally derived property was derived was specified unlawful activity.” 18 U.S.C. 

§ 1957; (see also Doc. 946 at 17). 

Further, Defendants have modified the Model Instruction’s definition of “criminally 

derived property.” Defendants have removed the following sentence from the Model 

Instruction: “The government does not have to prove that the defendant knew the precise 

nature of that criminal offense, or knew the property involved in the transaction represented 

the proceeds of [specified unlawful activity as alleged in the indictment].” Manual of 

Model Criminal Jury Instructions 8.150. That statement should remain in the instruction 

given to the jury.

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UNITED STATES’ PROPOSED INSTRUCTION 8.149 TRANSPORTING OR 

ATTEMPTING TO TRANSPORT MONETARY INSTRUMENTS FOR THE 

PURPOSE OF LAUNDERING

(18 U.S.C. § 1956(a)(2)(B))*

Defendant Lacey is charged in Count 100 of the indictment with transporting money 

for the purpose of laundering in violation of Section 1956(a)(2)(B) of Title 18 of the United 

States Code. In order for the defendant to be found guilty of that charge, the United States

must prove each of the following elements beyond a reasonable doubt:

First, the defendant transported money from a place in the United States to or through 

a place outside the United States;

Second, the defendant knew that the money represented the proceeds of Travel Act 

offenses; and

Third, the defendant knew the transportation was designed in whole or in part to 

conceal or disguise the nature, location, source, ownership, or control of the proceeds of 

Travel Act offenses.

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DEFENDANTS’ PROPOSED INSTRUCTION 

8.149 TRANSPORTING MONETARY INSTRUMENTS FOR THE PURPOSES 

OF LAUNDERING

(Count 100 – International Concealment Money Laundering)

Defendant Lacey is charged in Count 100 of the indictment with transporting money 

for the purpose of laundering in violation of Section 1956(a)(2)(B) of Title 18 of the United 

States Code. In order for the defendant to be found guilty of that charge, the government 

must prove each of the following elements beyond a reasonable doubt:

First, the defendant transported money from a place in the United States to or 

through a place outside the United States;

Second, the defendant knew that the money represented the proceeds of the knowing 

and willful promotion, or facilitation of the promotion of, the prostitution offenses 

committed by a particular business enterprise in violation of 18 U.S.C. § 1952(a)(3)(A), 

specifically (i) a business enterprise involved in at least one of the fifty advertisements that 

is the subject of Counts 2 – 51 and (ii) a business enterprise for which you found that 

defendant guilty of promoting or facilitating the promotion of; and

Third, the defendant knew the transportation was designed in whole or in part to 

conceal or disguise the nature, location, source, ownership, or control of the proceeds of 

the knowing and willful promotion, or facilitation of the promotion of, the prostitution 

offenses committed by any business enterprise in violation of 18 U.S.C. § 1952(a)(3)(A).

Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 8.149 (2021) (modified to reflect the charges in the 

indictment). As this Court previously held, the “specified unlawful activity” (“SUA”) here 

is not the general facilitation or promotion of “any business enterprise involving 

prostitution offenses” in violation of the Travel Act. See United States v. Lacey, et al. (D. 

Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order denying motion to 

dismiss) (“[Defendants] were not indicted for facilitating the amorphous notion of 

‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct 

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occasions where prostitutes, prostitution-related businesses, or other groups were involved 

in the business of prostitution.”); see United States v. Lacey, et al. (D. Ariz.), Case No. 18-

CR-00422-PHX-SMB, Transcript of December 4, 2020 Hearing (“And I think one of the 

key things in my reason for denying the recusal is that this case is not about Backpage. 

Backpage was prosecuted in a separate case, entered a plea in a separate case. This case is 

about these individual defendants and whether they had specific knowledge of these ads as 

facilitating illegal activity.”). Therefore, the SUA referenced in each of the proposed jury 

instructions regarding the Indictment’s money laundering charges must reference the “fifty 

distinct” advertisements at issue in Counts 2 - 51. Id. 

UNITED STATES’ OBJECTIONS

The United States objects to Defendants’ proposed second element, which 

improperly expands the elements of the crime. See 18 U.S.C. § 1956(c)(1) (“the term 

‘knowing that the property involved in a financial transaction represents the proceeds of 

some form of unlawful activity’ means that the person knew the property involved in the 

transaction represented proceeds from some form, though not necessarily which form, of 

activity that constitutes a felony.”)

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DEFENDANTS’ PROPOSED INSTRUCTION 

8.22 MULTIPLE CONSPIRACIES

(Count 52 – Multiple Conspiracies)

Count 52 of the indictment alleges a single conspiracy to commit concealment 

money laundering in violation of Section 1956(a)(1)(B)(i), international promotional 

money laundering in violation of Section 1956(a)(2)(A), transactional money laundering 

in violation of Section 1957(a), and international concealment money laundering in 

violation of Section 1956(a)(2)(B)(i). You must decide whether the single conspiracy to 

commit concealment, international promotional, transactional, and international 

concealment money laundering as charged in Count 52 of the indictment existed, and, if it 

did, who at least some of its members were. If you find that the single conspiracy to commit 

concealment, international promotional, transactional, and international concealment 

money laundering as charged in Count 52 of the indictment did not exist, then you must 

return a not guilty verdict, even though you may find that some other conspiracy existed. 

For example, if you find that Count 52 concerns two or more conspiracies, you must find 

the Defendants not guilty of the single conspiracy alleged in Count 52. Similarly, if you 

find that any Defendant was not a member of the conspiracy commit concealment, 

international promotional, transactional, and international concealment money laundering 

as charged in Count 52, then you must find that Defendant not guilty, even though that 

Defendant may have been a member of some other conspiracy.

Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 8.22 (2021) (modified to reflect the charges in the 

indictment).

UNITED STATES’ OBJECTIONS

“A defendant is entitled to a multiple conspiracies instruction only if the defendant’s 

theory of multiple conspiracies is supported by law and has some foundation in the 

evidence.” United States v. Anguiano, 873 F.2d 1314, 1317 (9th Cir. 1989) (internal citations 

and quotations omitted). As discussed above, “[a] single conspiracy exists, as compared 

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with multiple conspiracies, where there is ‘one overall agreement’ to perform various 

functions to achieve the objectives of the conspiracy.” United States v. Bauer, 84 F.3d 1549, 

1560 (9th Cir. 1996).

This instruction should be evaluated after the evidence has been presented in order to 

better understand “Defendants’ theory of multiple conspiracies.” 

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II. STIPULATED NON-MODEL INSTRUCTIONS

N/A

III. NON-MODEL INSTRUCTIONS REQUESTED BY THE UNITED STATES

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STATE LAW NEED NOT BE VIOLATED FOR DEFENDANTS TO BE FOUND 

GUILTY UNDER THE TRAVEL ACT

The United States does not have to prove that the referenced states’ laws were actually 

violated, only that defendants had intent to promote, manage, establish, carry on, or facilitate 

the promotion, management, establishment, or carrying on, of any business enterprise 

involving prostitution offenses in violation of state law, and committed a subsequent overt 

act in furtherance of the unlawful activity.

Supporting Authorities

18 U.S.C. § 1952(a)(3); United States v. Winslow, 962 F.2d 845, 852 (9th Cir. 1992) 

(“Section 1952(a)(3) requires the government to prove only that a defendant committed a 

subsequent overt act in furtherance of the unlawful activity. . . . Unlike the crime of attempt, 

the Travel Act does not require that the government establish that the accused took a 

substantial step in furtherance of the intended unlawful activity.”) (internal quotations and 

citations omitted); United States v. Polizzi, 500 F.2d 856, 876-77 (9th Cir. 1974) 

(Government does not need to prove that defendants had specific intent to violate the 

underlying state law, only “specific intent to facilitate an activity which the accused knew to 

be unlawful under state law.”). 

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“BUSINESS ENTERPRISE” IN THE TRAVEL ACT DEFINED

“Business enterprise,” as used in the Travel Act, 18 U.S.C. 1952(b), means a 

continuous course of criminal conduct, that is, engaging or planning to engage in two or 

more violations of law, rather than a sporadic, casual, individual or isolated violation. An 

advertisement that invites multiple commercial transactions (like a car wash ad that informs 

the public of prices charged for each wash, even if only for a limited time) refers to a 

continuous course of conduct. 

Supporting Authorities

18 U.S.C. § 1952(b)(i)(1); (See Doc. 946 at 10-14); United States v. Kaiser, 660 

F.2d 724, 731 (9th Cir. 1981) (“The words ‘business enterprise’ refer to a continuous 

course of criminal conduct rather than sporadic or casual involvement in a proscribed 

activity.”); United States v. Donaway, 447 F.2d 940, 94 (1971) (same); United States v. 

Roselli, 432 F.2d 879, 886 (9th Cir. 1970) (“Congress limited Section 1952 to any ‘business 

enterprise’ because the requirement of a continuous course of conduct for profit would 

ordinarily include the gambling operations of organized crime.”). 

In alleging a continuous course of criminal conduct, “[n]either [allegations] of largescale operations nor long-term duration is required[.] . . . Instead, what must be [alleged] 

is evidence of a continuous enterprise.” United States v. Tavelman, 650 F.2d 1133, 1140 

(9th Cir. 1981). (See also Doc. 946 at 12-13 n.7 (“[E]ach ad identified [in the SI] carries 

an indicia of a commercial or business enterprise because each one invites multiple 

commercial transactions by soliciting the public to engage in prostitution.”)).

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“USES ANY FACILITY IN INTERSTATE COMMERCE” DEFINED

The phrase “uses any facility in interstate commerce” as used in the Travel Act, 18 

U.S.C. § 1952(a), means employing or utilizing any method of communication or 

transportation between one state and another, and includes, for example, the use of 

telephones, mails, and the Internet. 

In order to meet its burden of proof on this issue, it is not necessary for the United 

States to prove that the defendant(s) used an interstate facility. This section also applies to 

a person who causes another person to use an interstate facility. Therefore, if the United 

States has proven beyond a reasonable doubt that the defendant(s) caused another person to 

use an interstate facility, e.g., the Internet, then you may find that the United States has 

proven this element.

Supporting Authorities

United States v. Sutcliffe, 505 F.3d 944, 952-53 (9th Cir. 2007) (“The Internet is an 

international network of interconnected computers, similar to—and often using—our 

national network of telephone lines. We have previously agreed that it cannot be questioned 

that the nation’s vast network of telephone lines constitutes interstate commerce.”) (internal 

citations and quotations omitted); United States v. Roselli, 432 F.2d 879, 890-91 (9th Cir. 

1970) (“If the wire employed is an interstate wire the requirements for federal jurisdiction 

are satisfied. It is wholly irrelevant to any purpose of the statute that the perpetrator of the 

fraud knows about the use of interstate communication.”); United States v. Villano, 529 F.2d 

1046, 1054-55 (10th Cir. 1976) (upholding Travel Act convictions based on “repeated use 

of the interstate communications facilities by defendants’ agents”). 

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“FACILITATE” DEFINED

In the context of the Travel Act, the term “facilitate” means “to make easy or less 

difficult.” 

Supporting Authorities

(See Doc. 793 at 21 (“‘Facilitate’ is given its ‘ordinary meaning: to make easy or less 

difficult.’”) (citing United States v. Gibson Specialty Co., 507 F.2d 446, 450 (9th Cir. 1974)); 

see also United States v. Foreman, 926 F.2d 792, 796 (9th Cir. 1990) (“‘Facilitate’ is defined 

as ‘to make easier or less difficult.’”); United States v. Adler, 879 F.2d 491, 495 (9th Cir. 

1988) (“‘Facilitation’ is established by showing that use of a communications facility . . . 

made easier or less difficult . . . the narcotics offense.”).

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“SPECIFIC INTENT” DEFINED

“Specific intent” under the Travel Act (Counts 2-51) means the defendants knew that 

they were facilitating an unlawful activity under state law. 

Supporting Authorities

(Doc. 793 at 15 (“Required intent under the Travel is ‘specific intent to facilitate an 

activity which the accused knew to be unlawful under state law.’”) (citing United States v. 

Polizzi, 500 F.2d 856, 876-877 (9th Cir. 1974) (instructions on specific intent need to 

“reasonably inform[] the jury that they had to find that [defendants] knew that what they 

were facilitating was an unlawful activity under state law”)).) (See also Doc. 793 at 18 (“The 

Government’s proposed mens rea standard, specific intent to promote or facilitate 

prostitution, is consistent with Gibson, Tavelman, and Polizzi—the Ninth Circuit cases 

discussing intent requirements of the Travel Act.”).)

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PROOF OF KNOWLEDGE OR INTENT

 The intent of a person or the knowledge that a person possesses at any given time 

may not ordinarily be proved directly because there is no way of directly scrutinizing the 

workings of the human mind. In determining the issue of what a person knew or what a 

person intended at a particular time, you may consider any statements made or acts done or 

omitted by that person and all other facts and circumstances received in evidence which may 

aid in your determination of that person's knowledge or intent.

 You may infer, but you are certainly not required to infer, that a person intends the 

natural and probable consequences of acts knowingly done or knowingly omitted. It is 

entirely up to you, however, to decide what facts to find from the evidence received during 

this trial. 

Supporting Authorities

1A O’Malley, Grenig and Lee, Federal Jury Practice and Instructions, § 17:07 (6th 

ed. 2008).

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IV. NON-MODEL INSTRUCTIONS REQUESTED BY DEFENDANTS WITH 

THE UNITED STATES’ OBJECTIONS

DEFENDANTS’ PROPOSED INSTRUCTION 

SPECIFIC INTENT

The crimes charged in this case are serious crimes which require proof of specific 

intent before the defendant can be convicted. Specific intent, as the terms implies, means 

more than a general intent to commit the act. To establish specific intent, the government 

must prove beyond a reasonable doubt that the defendant knowingly did an act which the 

law forbids, purposely and intending to violate the law. Such intent may be determined 

from all the facts and circumstances surrounding the case. An act or a failure to act is 

knowingly done if done voluntarily and intentionally, not because of mistake or accident, 

or other innocent reason.

Supporting Authorities

United States v. Seymour, 576 F.2d 1345, 1347 (9th Cir. 1978) (verbatim quote); 

see United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Doc. No. 

946 at 13 (Order denying motion to dismiss) (“[Defendants] were not indicted for 

facilitating the amorphous notion of ‘prostitution.’ They were indicted for facilitating (via 

publishing ads) on fifty distinct occasions where prostitutes, prostitution-related 

businesses, or other groups were involved in the business of prostitution.”); see United 

States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Transcript of 

December 4, 2020 Hearing (“And I think one of the key things in my reason for denying 

the recusal is that this case is not about Backpage. Backpage was prosecuted in a separate 

case, entered a plea in a separate case. This case is about these individual defendants and 

whether they had specific knowledge of these ads as facilitating illegal activity.”).

UNITED STATES’ OBJECTIONS

Defendants’ reliance on Seymour is misplaced because that case did not involve the 

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Travel Act. United States v. Seymour, 576 F.2d 1345, 1345 (9th Cir. 1978) (prosecution for 

violations of mail fraud (18 U.S.C. § 1341) and interstate transportation fraud (18 U.S.C. 

§ 2314)). Under the Travel Act, the government need only prove that a defendant had 

“specific intent to facilitate an activity which the accused knew to be unlawful under state 

law.” United States v. Polizzi, 500 F.2d 856, 876-877 (9th Cir. 1974) (instructions on 

specific intent need to “reasonably inform[] the jury that they had to find that [defendants] 

knew that what they were facilitating was an unlawful activity under state law”). 

The sentence in the middle of Defendants’ proposed instruction is particularly 

problematic. This sentence reads, “To establish specific intent, the government must prove 

beyond a reasonable doubt that the defendant knowingly did an act which the law forbids, 

purposely and intending to violate the law.” This is a misstatement of the applicable law. 

To be convicted under the Travel Act, one does not need to violate the underlying state law. 

Polizzi, 500 F.2d at 876-77 (Government does not need to prove that defendants had specific 

intent to violate the underlying state law). Rather, a defendant must have acted with specific 

intent to “facilitate the promotion” of the underlying unlawful activity. 18 U.S.C. 

§ 1952(a)(3). And “facilitate” is given its ordinary meaning: to make easy or less difficult. 

(Doc. 793 at 21) (“‘Facilitate’ is given its ‘ordinary meaning: to make easy or less difficult.’”)

Defendants’ proposed instruction imparts an intent requirement that is not part of the 

Travel Act. 

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DEFENDANTS’ PROPOSED INSTRUCTION 

DEFENDANT’S GOOD FAITH 

The government has the burden to prove to you, beyond a reasonable doubt, that a 

defendant acted with criminal intent and lacked good faith. The burden of 

proving good faith does not rest with a defendant because a defendant does not have any 

obligation to prove anything in this case. If the government fails to meet its burden to 

prove a defendant lacked good faith, its failure to do so is a complete and absolute defense 

to the charges in this case and you must return a not guilty verdict.

If a defendant carried out his or her actions in good faith, there was no criminal 

intent. 

A person who acts, or causes another person to act, on a belief or an opinion honestly 

held is not punishable under the charges in the indictment merely because the belief or 

opinion turns out to be inaccurate, incorrect, or wrong. An honest mistake in judgment or 

an honest error in management does not rise to the level of criminal conduct.

While the term “good faith” has no precise definition, it encompasses, among other 

things, a belief or opinion honestly held and an absence of malice or ill will.

If the evidence in the case leaves the jury with a reasonable doubt as to whether a 

defendant acted with criminal intent and lacked good faith, the jury must acquit that 

defendant.

Supporting Authorities

See 1A Fed. Jury Prac. & Instr. § 19:06 (6th ed.), 1A Fed. Jury Prac. & Instr. § 19:06 

(6th ed.). 

UNITED STATES’ OBJECTIONS

“A defendant is not entitled to a separate good faith instruction when the court 

adequately instructs on specific intent.” United States. v. Bonanno, 852 F.2d 434, 439–40 

(9th Cir. 1988) (citing United States v. Green, 745 F.2d 1205, 1209 (9th Cir.

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1984), and United States v. Cusino, 694 F.2d 185, 188 (9th Cir. 1982)); see also United 

States v. Dees, 34 F.3d 838, 842 (9th Cir. 1994) (same); United States v. Rushton, 963 F.2d 

272, 274 (9th Cir. 1992) (same). The parties have submitted proposed “specific intent” 

instructions. Accordingly, a “good faith” instruction should not be given here.

The instruction also should not be given to the extent Defendants are attempting to 

use it to circumvent invoking an “advice of counsel” defense. If Defendants claim that 

their asserted “good faith” is based in any way on legal advice, then they should be required 

to comply with the requirements of the “advice of counsel” defense, and the jury should 

receive an appropriate “advice of counsel” instruction instead of the proposed “good faith” 

instruction.6

 

Finally, Defendants’ “good faith” instruction deviates substantially from the source 

of the instruction that Defendants cite. See 1A Fed. Jury Prac. & Instr. § 19:06 (6th ed., 

Feb. 2021 Update). If the Court is inclined to give a “good faith” instruction, the United 

States respectfully requests that the Court use the language in 1A Fed. Jury Prac. & Instr. 

§ 19:06 instead of Defendants’ instruction.

6 See Ninth Circuit Model Criminal Jury Instruction 5.10:

One element that the government must prove beyond a reasonable doubt is 

that the defendant had the unlawful intent to [specify applicable unlawful 

act]. Evidence that the defendant in good faith followed the advice of counsel would be inconsistent with such an unlawful intent. Unlawful intent 

has not been proved if the defendant, before acting, made full disclosure of 

all material facts to an attorney, received the attorney’s advice as to the specific course of conduct that was followed, and reasonably followed the 

attorney’s recommended course of conduct or advice in good faith.

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DEFENDANTS’ PROPOSED INSTRUCTION 

DEFENSE THEORY OF THE CASE

Defendants intend to request instructions on the defense’s theories of the case. 

Defendants reserve their right to submit that request at the close of the trial.

Supporting Authorities

See Fed. R. Crim. P. 30; United States v. Cortes, 757 F.3d 850, 857 (9th Cir. 2014) 

(“A criminal defendant is entitled to jury instructions related to a defense theory so long as 

there is any foundation in the evidence and the instruction is supported by law.” (internal 

quotation marks omitted)); United States v. Burt, 410 F.3d 1100, 1103 (9th Cir. 2005) (“A 

defendant is entitled to instructions relating to a defense theory for which there is any 

foundation in the evidence, even though the evidence may be weak, insufficient, 

inconsistent, or of doubtful credibility.”).

UNITED STATES’ OBJECTIONS

As discussed below, Defendants’ “First Amendment” instructions are not supported 

by law or evidence, and therefore should not be given. See, e.g., United States v. Freeman, 

761 F.2d 549, 551-52 (9th Cir. 1985) (where the speech at issue falls outside of the First 

Amendment’s protection, a First Amendment jury instruction should not be given).

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DEFENDANTS’ PROPOSED INSTRUCTION 

(Conspiracy – Willfulness Defined)

To find a defendant guilty of conspiracy as charged in the indictment, you must be 

satisfied that the government has proven beyond a reasonable doubt that the defendant 

knowingly and willfully entered into the conspiracy, that is, that the defendant agreed to 

take part in the conspiracy with knowledge of its unlawful purpose and in furtherance of 

its unlawful objective. You must also find that the government has proven beyond a 

reasonable doubt that the defendant acted with criminal intent and lacked good faith. If the 

defendant carried out his or her actions in good faith, there was no criminal intent. While 

the term “good faith” has no precise definition, it encompasses, among other things, a belief 

or opinion honestly held and an absence of malice or ill will. To act willfully means to act 

with knowledge that one’s conduct is unlawful and with the intent to do something the law 

forbids, that is to say with the specific purpose to disobey or disregard the law.

Supporting Authorities

United States v. Pomponio, 429 U.S. 10, 12 (1976) (willfulness is the “intentional

violation of a known legal duty”); see 1A Fed. Jury Prac. & Instr. § 19:06 (6th ed.), 1A 

Fed. Jury Prac. & Instr. § 19:06 (6th ed.); United States v. Stagman, 446 F.2d 489, 491 (6th 

Cir. 1971) (“the majority of the Courts of Appeals which have directly addressed this 

question . . . have stated that knowing and wilful [sic] intent to violate state laws is an 

element of the crime proscribed by the Travel Act”) (citing decisions of the 4th, 7th, 8th, 

and 9th Circuits).

UNITED STATES’ OBJECTIONS

This proposed instruction is not supported by law and is unnecessary. As discussed 

above, “A defendant is not entitled to a separate good faith instruction when the court 

adequately instructs on specific intent.” United States. v. Bonanno, 852 F.2d 434, 439–40 

(9th Cir. 1988). 

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Defendants’ reliance on Pomponio is inapposite. In that case, the Supreme Court 

reversed the court of appeals, after that court had remanded for a new trial based on an 

improper jury instruction. 429 U.S. at 10. The Supreme Court found no error in the trial 

court’s jury instructions and held that “[a]n additional instruction on good faith was 

unnecessary.” Id. at 13. Pomponio clarified that an instruction stating that “good motive 

alone is never a defense where the act done or omitted is a crime” was proper. Id. at 11. 

In addition, the “willful” instruction approved in Pomponio looks nothing like Defendants’ 

proposed instruction. “A willful act was defined in the instructions as one done ‘voluntarily 

and intentionally and with the specific intent to do something which the law forbids, that 

is to say with the bad purpose either to disobey or to disregard the law.’” Id.

Further, Defendants’ reliance on United States v. Stagman is misplaced. The Ninth 

Circuit in Polizzi made clear that Stagman is not applicable in this circuit. 

In claiming error in the court’s instructions on specific intent, appellants urge 

us to follow United States v. Stagman . . . and hold that specific intent to 

violate state law is an element of the offense under § 1952. This Court 

however, has previously approved an instruction similar to the one given in 

this case. . . . Moreover, to the extent that Stagman requires proof that an 

accused under § 1952 intended to violate state law himself, we find that it 

conflicts with the clear meaning of the language used in § 1952. . . . [The 

statute’s required intent is] specific intent to facilitate an activity which the 

accused knew to be unlawful under state law. 

Polizzi, 500 F.2d at 876-77.

The instruction should not be given.

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DEFENDANTS’ PROPOSED INSTRUCTION 

FIRST AMENDMENT PROTECTION—PROTECTED FREE SPEECH

Advertisements are legally protected speech under the First Amendment to the 

United States Constitution. A website’s hosting of a third-party’s advertisement on the 

internet is also protected under the First Amendment, including the publication of 

suggestive advertisements that might relate to either legal or illegal activity.

Supporting Authorities

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557, 

561, (1980) (“The First Amendment . . . protects commercial speech from unwarranted 

governmental regulation. . . . Even when advertising communicates only an incomplete 

version of the relevant facts, the First Amendment presumes that some accurate 

information is better than no information at all.”); Reno v. ACLU, 521 U.S. 844, 868-70 

(1997) (“[O]ur cases provide no basis for qualifying the level of First amendment scrutiny 

that should be applied to [the Internet].”). 

UNITED STATES’ OBJECTIONS

The first sentence of the instruction is not supported by the law or the evidence. As 

the Court has already recognized, “Prostitution ads are ads for illegal transactions,” and 

“[t]he First Amendment does not protect ‘offers to engage in illegal transactions.’” (Doc. 

793 at 14, quoting United States v. Williams, 553 U.S. 285, 297 (2008).) Even the case 

Defendants cite makes clear that advertisements must concern lawful activity to receive 

First Amendment protection. Central Hudson Gas & Elec. Corp. v. Pub. Serv. Commn. of 

New York, 447 U.S. 557, 563-64 (1980) (“commercial speech related to illegal activity” is 

not protected by the First Amendment). See also Erotic Service Provider Legal Ed. and 

Research Project v. Gascon, 880 F.3d 450, amended, 881 F.3d 792, 792 (9th Cir. 2018) 

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(“[f]or commercial speech to receive First Amendment protection[,] the speech must 

concern lawful activity”). Simply put, prostitution advertising and soliciting are forms of 

commercial speech that are not constitutionally protected. Pittsburgh Press Co. v. Human 

Relations Comm’n, 413 U.S. 376, 388 (1973) (“We have no doubt that a newspaper 

constitutionally could be forbidden to publish a want ad...soliciting prostitutes.”); Erotic 

Service Provider, 880 F.3d at 459-60 (rejecting First Amendment challenge to ordinance 

outlawing prostitution solicitations); Coyote Pub., Inc. v. Miller, 598 F.3d 592, 600-04 (9th 

Cir. 2010) (upholding Nevada ban on prostitution advertising).

As the Ninth Circuit has explained, “the degree of disfavor in which prostitution is 

held in our society, as reflected in law,” “is sui generis”: “Forty-nine of the fifty states 

today prohibit all sales of sexual services. The federal government acknowledges the link 

between prostitution and trafficking in women and children, a form of modern day 

slavery.” Coyote Pub., 598 F.3d at 600-01. See also id. at 603-04 (the Thirteenth 

Amendment “enshrines the principle that people may not be bought and sold as 

commodities”). This “genuine objection to buying and selling [adults and children for sex] 

means that in the context of prostitution an advertisement is an integral aspect of the harm 

to be avoided. In contract terms, an advertisement is an invitation to deal and may operate 

as an offer. . . .” Id. at 604 (emphasis added). Without communicating an offer to sell an 

adult or child for sex, no sale can occur. See, e.g., A.R.S. § 13-3211(5) (crime of 

prostitution defined in part as “offering to engage in sexual conduct under a fee 

arrangement with any person for money”) (emphasis added)). The United States 

anticipates that trial evidence will show that the vast majority of “adult” and “escort” ads 

published on the website that Defendants owned, operated and/or managed consisted of 

ads for unlawful prostitution. 

Defendants also provide no applicable legal authority for the second sentence of 

their instruction—that “a website’s hosting of a third-party’s advertisement on the internet

is also protected under the First Amendment, including the publication of suggestive 

advertisements that might relate to either legal or illegal activity.” The sole case 

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Defendants cite, Reno v. ACLU, 521 U.S. 844 (1997), invalidated on First Amendment 

overbreadth grounds part of the Communications Decency Act (CDA) that prohibited the 

transmission to minors of “obscene” or “indecent” materials over the internet. That statute 

was “not limited to commercial speech”; rather, its “breadth . . . [was] wholly 

unprecedented.” Id. at 877. Reno nowhere discussed Central Hudson’s rule that 

commercial speech proposing an illegal transaction is excluded from First Amendment 

protection. Reno provides no license for disseminating over the internet commercial offers 

to sell humans for sex any more than it permits website operators to sell illegal drugs, 

computer hacking or murder-for-hire services. See, e.g., United States v. Ulbricht, 31 F. 

Supp. 3d 540, 568 (S.D.N.Y. 2014) (rejecting website operator’s argument that his site’s 

online marketplace for illegal narcotics involved speech protected by First Amendment). 

The Court has already considered and rejected Defendants’ efforts to dismiss the SI 

based on claims that Backpage merely operated as a passive host of third-party content 

involving both legal and illegal activities. (See, e.g., Doc. 793 at 8 (“Defendants repeatedly 

argue that the government is pursuing a theory of vicarious liability for merely hosting 

third party content. That argument is not supported by the SI, which goes through a long 

and fact-specific description of the Defendants[’] participation in a conspiracy to facilitate 

and promote prostitution. The SI sufficiently explains why defendants in this case are not 

just merely hosting third party content.”); Doc. 793 at 9 (the SI is “replete with specific 

facts that support finding that the conspirators knew the ads were for prostitution”); Doc. 

793 at 9 (“Here, taking the allegations in the SI as true, as the Court must, the Government 

has met its burden of showing the fifty ads in the SI are for prostitution.”); Doc. 793 at 9-

11 (detailing SI’s allegations showing the ads were for prostitution); Doc. 793 at 12-15 and 

Doc. 840 at 9-10 & n.6 (explaining that SI’s allegations differentiate Backpage’s activities 

from passive hosting of third party content).)

The SI alleges Defendants pursued a number of business strategies specifically 

designed to attract more prostitution advertising customers and increase prostitutionrelated revenues. (SI ¶34 (Defendants “took a variety of steps to intentionally facilitate 

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that illegal activity”).) These steps “included, but were not limited to, creating free ads for 

prostitutes in an attempt to secure future advertising revenues from them (i.e., ‘content 

aggregation’), entering into formal business arrangements with known prostitution services 

and websites in an attempt to increase the volume of prostitution advertisements being 

posted on Backpage (i.e., reciprocal link and affiliate programs), and sanitizing ads by 

editing them—specifically, removing terms and pictures that were particularly indicative 

of prostitution and them publishing a revised version of that ad (i.e., moderation).” (SI 

¶34.) As the Court has recognized: “The SI does not allege Defendants are criminally 

liable because they unknowingly and unintentionally operated a website used by third 

parties to post prostitution ads. Rather, it alleges Defendants purposely sought out 

opportunities to increase prostitution advertising on Backpage.” (Doc. 793 at 14.)

Furthermore, on April 5, 2018, Backpage.com, LLC and several related operating 

entities pleaded guilty to an information charging one count of money laundering. 

Backpage admitted it “derived the great majority of its revenue from fees charged in return 

for publishing advertisements for ‘adult’ and ‘escort’ services,” and “[t]he great majority 

of these advertisements are, in fact, advertisements for prostitution services.” (United 

States v. Backpage.com, LLC, CR-18-465-PHX-SMB, Doc. 8-2 at 11.) That same day, 

Backpage’s then-CEO and 100% owner, Carl Ferrer, pleaded guilty to an information 

charging one count of conspiracy. (United States v. Ferrer, CR-18-464-PHX-SMB, Doc. 

7-2.) Ferrer likewise admitted that the great majority of Backpage’s “adult” and “escort” 

ads were for prostitution, and he further admitted that to “create a veneer of deniability for 

Backpage,” he worked with co-conspirators “to create ‘moderation’ processes through 

which Backpage would remove terms and pictures that were particularly indicative of 

prostitution and then publish a revised version of the ad.” (Id., Doc. 7-2 at 13.) 

Subsequently, Backpage’s Sales and Marketing Director Dan Hyer pleaded guilty to Count 

1 of the SI (conspiracy to violate the Travel Act/facilitate prostitution), and admitted the 

majority of the “escort” ads he and others at Backpage had created as part of the 

“aggregation” process were actually offering illegal prostitution services. (Doc. 271 at 9.) 

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At trial, the United States anticipates introducing testimony from numerous 

witnesses regarding the actual contents of Backpage’s “adult” and “escort” sections, 

including former Backpage employees and contractors, adults and children who were 

advertised for sexual services on Backpage, and law enforcement agents who investigated 

ads on Backpage. In addition, the United States anticipates introducing evidence showing 

what Backpage’s “adult” and “escort” webpages actually looked like—evidence 

demonstrating that, rather than marketing legitimate “escort services,” these sections 

included page after page after page of prostitution solicitations. Moreover, consistent with 

the SI, the United States anticipates introducing testimony and other evidence showing that 

Backpage’s “non-adult sections” were simply intended to provide “plausible deniability” 

and to make the website “defensible” and more palatable to law enforcement. (SI¶ 112).

In United States v. Freeman, 761 F.2d 549, 551-52 (9th Cir. 1985), the Ninth Circuit 

held that the defendant was entitled to jury instruction concerning a First Amendment 

defense for 12 counts where he may have generally advocated for the filing of false tax 

returns, but not for the two counts where he “also assisted in the filing of false returns.” 

The court recognized that “[w]here there is some evidence . . . that the purpose of the 

speaker or the tendency of his words are directed to ideas or consequences remote from the 

commission of the criminal act, a defense based on the First Amendment is a legitimate 

matter for the jury’s consideration.” Id. at 551. However, where the speech at issue falls 

outside of the First Amendment’s protection, a First Amendment jury instruction should 

not be given. Id. at 522. See also, e.g., United States v. Rowlee, 899 F.2d 1275, 1280 (2d 

Cir. 1990) (where First Amendment did not protect defendants’ statements, district court 

could have avoided giving any First Amendment jury instructions); United States v. White, 

610 F.3d 956, 962 (7th Cir. 2010) (district court may await development of full factual

record at trial before deciding whether to instruct jury on First Amendment defenses).

The proposed instruction should not be given.

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DEFENDANTS’ PROPOSED INSTRUCTION 

FIRST AMENDMENT PROTECTION—WEBSITES HOSTING THIRD-PARTY 

ADS 

A website’s hosting of a third-party’s ad is presumptively protected and therefore 

legal, unless the government can prove beyond a reasonable doubt that: 

(i) the defendant had actual knowledge of the specific ad, and

(ii) the defendant had actual knowledge that the specific ad’s content was in fact for 

unlawful activity, and

(iii) the defendant specifically intended to further illegal activity.

Supporting Authorities

See Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1281 (W.D. Wash. 

2012) (“The third-party publication of offers to engage in illegal transactions does not fall 

within ‘well-defined and narrowly limited classes of speech’ that fall outside of First 

Amendment protection.”) (quoting Chaplinsky v. State of New Hampshire, 315 U.S. 568, 

571–572 (1942)); United States v Gibson Specialty Co., 507 F.2d 446, 450 fn. 8 (9th Cir. 

1974) (“The presumption that one intends the natural and probable consequences of his 

actions is insufficient in this context to establish intent to facilitate criminal activity. It is 

as likely as not that a vendor similar to the defendants in this proceeding is totally 

indifferent to the actions of his purchaser.”); See United States v. Rundo, 990 F.3d 709, 

719-720 (9th Cir. 2021) (“the intent to engage in one of the prohibited acts is a personal 

prerequisite to punishment under [the Act] . . . Simply put, knowing that some might choose 

to become violent is not at all the same as intending that they do so.”).

See also United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHXSMB, Doc. No. 946 at 13 (Order denying motion to dismiss) (“[Defendants] were not 

indicted for facilitating the amorphous notion of ‘prostitution.’ They were indicted for 

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facilitating (via publishing ads) on fifty distinct occasions where prostitutes, prostitutionrelated businesses, or other groups were involved in the business of prostitution.”); see 

United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-PHX-SMB, Transcript of 

December 4, 2020 Hearing (“And I think one of the key things in my reason for denying 

the recusal is that this case is not about Backpage. Backpage was prosecuted in a separate 

case, entered a plea in a separate case. This case is about these individual defendants and 

whether they had specific knowledge of these ads as facilitating illegal activity.”).

UNITED STATES’ OBJECTIONS

The United States incorporates, by this reference, its objections to Defendants’ 

proposed First Amendment instruction, supra. As explained above, the Court has already 

considered and rejected Defendants’ efforts to dismiss the SI based on claims that 

Backpage merely operated as a passive host of third-party content. (See, e.g., Doc. 793 at 

8-15 and Doc. 840 at 9-10 & n.6 (explaining that the SI’s allegations differentiate 

Backpage’s activities from passive hosting).)

In addition, the United States objects to Defendants’ suggestion that a website’s

publication of prostitution ads is “presumptively protected and thereby legal” unless the 

government can prove beyond a reasonable doubt that one or more of the individual 

Defendants in this case, United States v. Lacey, et al., CR-18-422-PHX-SMB, “had actual 

knowledge of the specific ad,” “had actual knowledge that the specific ad’s content was in 

fact for unlawful activity,” and “the [D]efendant specifically intended to further illegal 

activity.” On April 5, 2018, Backpage.com, LLC and several related entities that operated 

the Backpage website pleaded guilty and admitted that Backpage “derived the great 

majority of its revenue from fees charged in return for publishing advertisements for ‘adult’ 

and ‘escort’ services” and that “[t]he great majority of these advertisements are, in fact, 

advertisements for prostitution services.” (United States v. Backpage.com, LLC, CR-18-

465-PHX-SMB, Doc. 8-2 at 11.) The Court accepted Backpage’s guilty plea. (CR-18-

465-PHX-SMB, Docs. 10, 20.) Backpage’s guilty plea took the place of its criminal trial. 

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Florida v. Nixon, 543 U.S. 175, 187 (2004) (“[T]he plea is . . . itself a conviction.”). The 

legality of Backpage’s operations is not dependent on what the United States can prove or 

not prove about any individual Defendant here. To the extent the instruction suggests 

otherwise, it is irrelevant and confusing, and not supported by the law or the record.

The instruction is unnecessary for the additional reason that the contours of the 

United States’ burden of proof is adequately described by its jury instructions regarding 

the SI’s conspiracy, Travel Act and money laundering counts, including instructions 

discussing Pinkerton. The First Amendment does not create any additional or heightened 

burdens of proof where, as here, the Defendants’ charged conduct involves the publication 

of offers to engage in transactions that are illegal in 49 states and nearly all of Nevada. See

Coyote Pub., Inc. v. Miller, 598 F.3d 592, 603-04 (9th Cir. 2010).

Moreover, Defendants’ authorities do not support the instruction. Backpage.com, 

LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D. Wash. 2012)—and similar cases like 

Backpage.com LLC v. Dart, 807 F.3d 229 (7th Cir. 2015)—were based largely on the false 

notion that Backpage was nothing more than passive intermediary between advertisers and 

visitors to its website. As explained in prior pleadings, many of these cases involved the 

broad immunity provision of Section 230 of the Communications Decency Act, which does 

not apply to this federal criminal prosecution. 47 U.S.C. § 230(e)(1) (“Nothing in this 

section shall be construed to impair the enforcement of...[any] Federal criminal statute.”); 

(see generally Doc. 840). 

Second, since those cases were decided, there has been a sea-change in the 

availability of evidence concerning Backpage, including Backpage’s compelled production 

of more than 500,000 pages of internal documents to the United States Senate and the grand 

jury. (Doc. 649 at 22-23.) As alleged in the SI, evidence obtained pursuant to the Senate 

and grand jury investigations revealed that Backpage misrepresented itself in the abovereferenced cases as merely a passive “conduit” for third-party content, and exposed its

supposed efforts to police unlawful ads on its site as a fiction. Cf. McKenna, 881 F. Supp. 

2d at 1266-67. Rather, the evidence showed Backpage facilitated its customers’ 

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prostitution ventures through “moderation” practices that edited or shaped pimps’ ads to 

reduce the risk of detection while still conveying the illegal message; business relationships 

with prostitution websites (e.g., The Erotic Review) and “super-affiliates” (e.g., Dollar 

Bill) calculated to increase the volume of prostitution ads on Backpage; “aggregation” 

practices that involved creating prostitution ads and soliciting pimps and prostitutes to 

advertise on Backpage; and money laundering. (See generally SI¶¶ 9-11, 34-159.)

Defendants failed to disclose this evidence to the courts that previously ruled in Backpage’s 

favor, including McKenna.

Third, Defendants’ cases were decided before Backpage and its CEO pleaded guilty 

in April 2018 and admitted the “great majority” of Backpage’s revenue-generating ads 

were “for prostitution services.” (18-CR-464, Doc. 7-2 at 12-13; 18-CR-465, Doc. 8-2 at 

11.) Following these developments, the Northern District of Illinois dismissed Dart and 

imposed $250,000 in sanctions against Backpage. (Doc. 516-1 at 2-9; see also Doc. 446-

1 at 14-35.) The court held Backpage and Ferrer’s admissions provide “incontrovertible” 

proof that Backpage misled the Seventh Circuit about whether “speech on the site was 

protected, whether Backpage.com policed, rather than promoted, unlawful solicitations, 

and otherwise merely published, rather than authored, content on its site.” (Doc. 516-1 at 

4-5; see id. at 8 (“Backpage knowingly and repeatedly made false representations of fact 

concerning relevant aspects of its operations.”). The court attempted to rewrite Backpage’s 

complaint truthfully, as follows:

The Sheriff has infringed Backpage’s First Amendment rights by accurately 

advising credit card companies...that the great majority of ads on Backpage’s adult services web site are for prostitution and that Backpage 

routinely doctors those ads to conceal their unlawful nature. When told about 

these facts by Sheriff Dart, those credit card providers decided that they did not want to be publicly linked to...Backpage and stopped accepting 

payments for ads placed on Backpage.com. Or at least they thought they had 

stopped accepting such payments. In reality, however, Backpage.com 

devised ways to deceive the card companies about its continued use of their cards as payment for access to its adult services advertising. 

(Doc. 516-1 at 6.) 

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Defendants’ remaining authorities are inapposite. In United States v. Rundo, 990 

F.3d 709 (9th Cir. 2021), the Ninth Circuit reversed the dismissal of an indictment charging 

several defendants with violating the Anti-Riot Act, 18 U.S.C. § 2101-02. In the context 

of construing that statute, the court focused on separating protected advocacy from speech 

inciting imminent lawless violence. Id. at 716-20. This case, in contrast, does not present 

the same concerns—it involves different statutes, and none of the charged conduct involves 

anything that could be considered constitutionally-protected abstract advocacy. Cf. United 

States v. Williams, 553 U.S. 285, 298-89 (2008) (“To be sure, there remains an important 

distinction between a proposal to engage in illegal activity and the abstract advocacy of 

illegality. . . . The Act before us does not prohibit advocacy of child pornography, but only 

offers to provide or requests to obtain it. There is no doubt that this prohibition falls well 

within constitutional bounds.”).

Moreover, Defendants’ quote from the December 4, 2020 hearing in this case does 

not support the proposed instruction, let alone purport to define the contours of the 100 

counts in the SI. The Court’s statement that “[t]his case is about these individual 

defendants and whether they had specific knowledge of these ads as facilitating illegal 

activity” was made in the context of explaining that the focus of this case is on establishing 

the guilt of “these defendants,” rather than Backpage (which had already been prosecuted 

and pleaded guilty in a separate case). (12/4/20 Hr’g Tr. at 38.) 

Defendants’ isolated quote from the Court’s May 4, 2020 Order denying their 

Motion to Dismiss Indictment for Failure to Allege the Necessary Elements of the Travel 

Act (Doc. 946) likewise fails to support the proposed instruction. In disagreeing with 

Defendants’ assertion that the SI failed to identify the “unlawful activity” under the Travel 

Act that forms the basis for Travel Act charges, the Court wrote: “Based on the allegations 

here, Defendants are not charged with anything related to gambling, narcotics, bribery, 

extortion or arson. Rather, they are clearly charged with intending to facilitate and 

thereafter facilitating or attempting to facilitate businesses involved in prostitution. See 18 

U.S.C. § 1952(b)(i)(1).” (Doc. 946 at 9; see also id. at 11 (“Additionally, and as noted, the 

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‘to wit: prostitution offenses’ language directs Defendants to which ‘unlawful activity’ is 

charged under each Travel Act count.”) (citing SI¶ 201).) Addressing the individual 

substantive Travel Act charges in Counts 2-51, the Court also observed that “the SI alleges 

fifty instances where Defendants posted ads on Backpage.com to facilitate specific 

individual prostitutes or pimps involved in the business of prostitution” and used language 

that “almost identically mirrors the Travel Act’s text.” (Doc. 946 at 11, citing SI¶¶ 200-

201.) Later, rejecting Defendants’ suggestion that the SI indicted a “‘boundless 

conspiracy’ to facilitate prostitution in general,” the Court wrote that “[s]uch a claim is 

simply untrue” because Defendants “were not indicted for facilitating the amorphous 

notion of ‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty 

distinct occasions where prostitutes, prostitution-related businesses, or other groups were 

involved in the business of prostitution.” (Doc. 946 at 13.) The Court went on to explain 

that these fifty instances were part and parcel of “a continuous course of conduct where 

Defendants facilitated ‘unlawful activity’ [including] numerous pimps, prostitutes and 

traffickers in violation of the Travel Act.” (Doc. 946 at 13-14.)

Moreover, to the extent that Defendants’ proposed instruction purports to impose a 

scienter requirement greater than that required by the First Amendment, the instruction is 

not supported by any First Amendment caselaw cited by Defendants. See Part IV, infra,

United States’ Objections to Defendants’ proposed instruction “FIRST AMENDMENT 

PROTECTION-PROTECTED PUBLICATION OF THIRD-PARTY SPEECH” 

(incorporated by this reference).

The instruction should not be given.

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DEFENDANTS’ PROPOSED INSTRUCTION 

FIRST AMENDMENT PROTECTION—“ADULT” SERVICES ARE LEGAL

The phrase ‘adult,’ even in conjunction with ‘services,’ is not unlawful in itself nor 

does it necessarily call for unlawful content.

Supporting Authorities

Dart v. Craigslist, Inc., 665 F. Supp. 2d 961, 968 (N.D. Ill. 2009) (verbatim quote).

UNITED STATES’ OBJECTIONS

This instruction is unnecessary and irrelevant, and is supported by a case that was 

decided under the Section 230 of the Communications Decency Act, 47 U.S.C. § 230—

which, as this Court has already held, has no application here. (See generally Doc. 840.) 

Moreover, distinguishing that same case, this Court has recognized that the SI “alleges 

conduct far beyond the simple maintenance of neutral policies prohibiting certain content. 

Cf. Dart v. Craigslist, Inc., 665 F.2d 961, 968-69 (N.D. Ill. 2009).” (Doc. 840 at 10; see 

also Doc. 649 at 25-26.) 

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DEFENDANTS’ PROPOSED INSTRUCTION 

FIRST AMENDMENT PROTECTION—EXAMPLES OF LEGAL “ADULT” 

SERVICES 

Advertisements for escort services, strippers, massage services, dominatrix, and 

dating are presumptively legal and constitutionally protected speech, because escorting, 

stripping, providing massage or dominatrix services, and dating all are legal activities. 

Supporting Authorities

See Dart v. Craigslist, Inc., 665 F.Supp.2d 961, 968 (N.D. Ill.2009) (Sheriff Dart 

“is simply wrong when he insists that [craigslist’s adult services category and related 

subcategories] are all synonyms for illegal sexual services;” craiglist’s “adult services” 

section “is not unlawful in itself nor does it necessarily call for unlawful content”);

Backpage.com, LLC v. Dart, 807 F.3d 229, 234 (7th Cir. 2015), cert. denied, 137 S. Ct. 46 

(2016) (rejecting sheriff’s presumption that ads on Backpage.com were illegal: 

Backpage.com was “an avenue of expression of ideas and opinions” protected by the First 

Amendment, including its “classified ads for ‘adult’ service;” “Fetishism? Phone sex? 

Performances by striptease artists? (Vulgar is not violent.) One ad in the category ‘dom 

& fetish’ is for the services of a ‘professional dominatrix’—a woman who is paid to whip 

or otherwise humiliate a customer in order to arouse him sexually. It’s not obvious that 

such conduct endangers women or children or violates any laws, including laws against 

prostitution. The district judge remarked ‘that the majority of the advertisements [in 

Backpage’s adult section] are for sex’—but a majority is not all, and not all advertisements 

for sex are advertisements for illegal sex.”) (internal citations omitted); Backpage.com, 

LLC v. McKenna, 881 F. Supp. 2d 1262, 1281-82 (W.D. Wash. 2012) (rejecting similar 

presumption of state AG defending law targeting Backpage and noting the “third-party 

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defined and narrowly limited classes of speech’ that fall outside of First Amendment 

protection.” (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942)); 

Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805, 833-34 (M.D. Tenn. 2013) (rejecting 

state’s argument that escort ads on Backpage.com were unprotected speech); 

Backpage.com, LLC v. Hoffman, 2013 WL 4502097, at *9-11 (D.N.J. Aug. 20, 2013) 

(same); M.A. ex rel. P.K v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 

1049-50 (E.D. Mo. 2011) (rejecting similar presumption in dismissing plaintiff’s civil 

claims based on 18 U.S.C. §§ 2, 1595, and 2255); People v Ferrer, 2016 WL 7237305, at 

*9 (Cal. Super. Ct. Dec. 9, 2016) (dismissing state’s pimping charges against Larkin and 

Lacey; noting that the only “whiff of illegality” in the AG’s complaint improperly 

“require[ed] the presumption that illegal content was contained in the ads,” yet the 

website’s actions in posting the ads “would not be illegal”).

UNITED STATES’ OBJECTIONS

The instruction is not supported by the record or the cited cases.

As explained in the SI, while Backpage for many years maintained an “adult” 

“escorts” advertising category, Defendants were aware that the overwhelming majority of 

ads in that section were for prostitution—and Defendants deliberately pursued a number of 

business strategies specifically designed to attract more prostitution advertising customers 

and increase its prostitution-related revenues. (SI ¶34 (Defendants “took a variety of steps 

to intentionally facilitate that illegal activity”).) These steps “included, but were not limited 

to, creating free ads for prostitutes in an attempt to secure future advertising revenues from 

them (i.e., ‘content aggregation’), entering into formal business arrangements with known 

prostitution services and websites in an attempt to increase the volume of prostitution 

advertisements being posted on Backpage (i.e., reciprocal link and affiliate programs), and 

sanitizing ads by editing them—specifically, removing terms and pictures that were 

particularly indicative of prostitution and them publishing a revised version of that ad (i.e., 

moderation).” (SI ¶34.) 

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The United States anticipates that the trial evidence will show that Backpage’s 

“adult” and “escorts” ads predominantly consisted of ads for prostitution. (See, e.g., Doc. 

1176 at 15-17.) The United States anticipates introducing testimony from numerous 

witnesses, including former Backpage employees and contractors, adults and children who 

were advertised for sexual services on Backpage, and law enforcement agents who 

investigated ads on Backpage. This evidence is expected to include, among other things, 

testimony that no one who investigated or responded to an ad on Backpage’s “adult” or 

“escorts” sections ever encountered an advertisement for lawful “escort services.” In 

addition, the United States anticipates introducing evidence showing what Backpage’s 

“adult” and “escort” webpages actually looked like—evidence demonstrating that, rather 

than marketing legitimate “escort services,” these sections included page after page after 

page of prostitution ads. Simply put, the term “escort” as used on Backpage was nothing 

more than a euphemism for prostitution.

As also explained elsewhere, Defendants’ cited cases have all been eclipsed by 

Backpage’s compelled disclosures of more than 500,000 pages of internal documents to 

the U.S. Senate and the grand jury, and by the subsequent guilty pleas of Backpage and 

several related operating entities, Backpage’s CEO and 100% owner, and Backpage’s Sales 

and Marketing Director. (Doc. 649 at 21-26.)

Citing a string of cases—from Backpage.com LLC v. Dart, 807 F.3d 229 (7th Cir. 

2015), to People v Ferrer, 2016 WL 7237305 (Cal. Super. Ct. Dec. 9, 2016)—Defendants

erroneously suggest that “escort” and other adult ads on Backpage were protected under the 

First Amendment, and that providing a forum for such ads was likewise protected. 

Defendants fail to mention that they misled courts across the United States in these cases, 

and that recent subpoenas have unlocked hundreds of thousands of internal documents 

undermining their claims. Many of these cases—including the Seventh Circuit’s opinion in 

Dart—were based on the notion that Backpage was merely a passive “intermediary between 

the advertisers of adult services and visitors to Backpage’s website.” Dart, 807 F.3d at 233-

34; see also, e.g., Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D. Wash. 

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2012) (using similar First Amendment and Communications Decency Act rationales to 

invalidate state law that attempted to regulate the online advertising of minors for sex). In 

Dart v. Craigslist, 665 F. Supp. 2d 961, 969 and n.9 (N.D. Ill. 2009), the court similarly 

found Craigslist protected by Section 230 of the Communications Decency Act, 47 U.S.C.

§ 230 (CDA), because it operated as merely a passive host for ads created and posted by third 

parties, and did not create, solicit or cause or induce anyone to create or post illegal ads. 

These cases are thoroughly inapposite.

First, most of these cases involved Section 230 of the Communications Decency Act, 

which courts have construed to provide immunity from civil and state criminal claims for 

websites that publish content created by third-parties. See, e.g., M.A. v. Village Voice Media 

Holdings, LLC, 809 F. Supp. 2d 1041, 1058 (E.D. Mo. 2011) (dismissing trafficking victim’s 

civil case against Backpage’s then-parent; “Congress has declared such websites to be 

immune from suits arising from such injuries.”); People v. Ferrer, 2016 WL 7237305, at *11 

(Cal. Super. Ct. Dec. 16, 2016) (dismissing state law criminal charges against Lacey, Larkin 

and Ferrer; recognizing “it is for Congress, not this Court, to revisit” the CDA). As this 

Court has recognized, however, the CDA’s immunity provision does not apply to the federal 

criminal prosecutions of Backpage and its operators—including this case. 47 U.S.C. 

§ 230(e)(1) (“Nothing in this section shall be construed to impair the enforcement of...[any] 

Federal criminal statute.”); see generally Doc. 840.

Second (as explained above), since these cases were decided, there has been a seachange in the availability of evidence concerning Backpage, including Backpage’s 

compelled production of more than 500,000 pages of internal documents to the United 

States Senate and the grand jury. (Doc. 649 at 22-23.) As alleged in the SI, evidence 

obtained pursuant to the Senate and grand jury investigations revealed that Backpage 

misrepresented itself in the above-referenced cases as merely a passive “conduit” for thirdparty content, and exposed its supposed efforts to police unlawful ads on its site as a fiction. 

Cf. McKenna, 881 F. Supp. 2d at 1266-67. Rather, the evidence showed Backpage 

facilitated its customers’ prostitution ventures through “moderation” practices that edited 

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or shaped pimps’ ads to reduce the risk of detection while still conveying the illegal 

message; business relationships with prostitution websites (e.g., The Erotic Review) and 

“super-affiliates” (e.g., Dollar Bill) calculated to increase the volume of prostitution ads on 

Backpage; “aggregation” practices that involved creating prostitution ads and soliciting 

pimps and prostitutes to advertise on Backpage; and money laundering. (See generally

SI¶¶ 9-11, 34-159.) Defendants failed to disclose this evidence to the courts that previously 

ruled in Backpage’s favor.

Third, Defendants’ cases were decided before Backpage and its CEO pleaded guilty 

in April 2018 and admitted the “great majority” of Backpage’s revenue-generating ads 

were “for prostitution services.” (18-CR-464, Doc. 7-2 at 12-13; 18-CR-465, Doc. 8-2 at 

11.) Following these developments, the Northern District of Illinois dismissed Dart and 

sanctioned Backpage. (Doc. 516-1 at 2-9; see also Doc. 446-1 at 14-35.) 

Where, as here, the speech at issue falls outside of the First Amendment’s 

protection, a First Amendment jury instruction should not be given. United States v. 

Freeman, 761 F.2d 549, 551-52 (9th Cir. 1985).

The instruction should not be given.

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DEFENDANTS’ PROPOSED INSTRUCTION 

FIRST AMENDMENT PROTECTION—WEBSITE HAS THE RIGHT TO 

EXERCISE EDITORIAL CONTROL AND JUDGMENT

The First Amendment prohibits the government from punishing a website that 

exercises “editorial control and judgment,” including decisions about whether to allow, 

block, or edit third-party content. 

Federal law also protects online providers and encourages them to engage in the 

editorial practices of monitoring, limiting, and/or editing user-submitted content to 

“maintain the robust nature of Internet communication, and ... keep government 

interference in the medium to a minimum.”

Supporting Authorities

Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974); Washington Post 

v. McManus, 355 F. Supp. 3d 272, 300 (D. Md. 2019) (enjoining Maryland statute that 

required social media and news websites to self-publish information about political ads, 

holding that the statute infringed editorial judgments; “This respect for a publisher’s right 

to exercise ‘editorial control and judgment’ ... applies with equal force to outlets that 

publish content on the Internet”) (quoting Tornillo, 418 U.S. at 258), aff’d., 944 F.3d 506 

(4th Cir. 2019); e-ventures Worldwide, LLC v. Google, Inc., 2017 WL 2210029, at *4 

(M.D. Fla. Feb. 8, 2017) (“A search engine is akin to a publisher, whose judgments about 

what to publish and what not to publish are absolutely protected by the First Amendment”; 

holding that “Google’s actions in ... determining whether certain websites are contrary to 

Google’s guidelines and thereby subject to removal are the same as decisions by a 

newspaper editor regarding which content to publish, which article belongs on the front 

page, and which article is unworthy of publication. The First Amendment protects these 

decisions, whether they are fair or unfair, or motivated by profit or altruism.”); Zhang v. 

Baidu.com Inc., 10 F. Supp. 3d 433, 438 (S.D.N.Y. 2014) (“a ‘search engine’s editorial 

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judgment is much like many other familiar editorial judgments,’ such as the newspaper 

editor’s judgment of which wire-service stories to run and where to place them in the 

newspaper”); Langdon v. Google, Inc., 474 F. Supp. 2d 622, 629-630 (D. Del. 2007) (First 

Amendment protects decisions about placement, ranking, or rejection of online 

advertisements); Search King, Inc. v. Google Tech., Inc., 2003 WL 21464568 *4 (W.D. 

Okla. 2003) (“Google’s PageRanks are entitled to ‘full constitutional protection.’”).

Batzel v. Smith, 333 F.3d 1018, 1027-28 (9th Cir. 2003) (“‘Section 230 was enacted, 

in part, to maintain the robust nature of Internet communication, and accordingly, to keep 

government interference in the medium to a minimum.’ Making interactive computer 

services and their users liable for the speech of third parties would severely restrict the 

information available on the Internet.”) (internal citations omitted); Doe v. Kik Interactive, 

Inc., 482 F. Supp. 3d 1242, 1247 (S.D. Fla. 2020) (“‘Section 230, though . . . was enacted 

to maintain the robust nature of Internet communication and, accordingly, to keep 

government interference in the medium to a minimum.’ Force v. Facebook, Inc., 934 F.3d 

53, 63 (2d Cir. 2019), cert. denied, ––– U.S. ––––, 140 S.Ct. 2761, 206 L. Ed. 2d 936 

(2020) (quotations omitted). ‘Indeed, Congress stated in Section 230 that ‘[i]t is the policy 

of the United States – (1) to promote the continued development of the Internet and other 

interactive computer services and other interactive media; [and] (2) to preserve the vibrant 

and competitive free market that presently exists for the Internet and other interactive 

computer services, unfettered by Federal or State regulation.’’ Id. (quoting 47 U.S.C. § 

230(b)(1)-(2)).”). See Bennett v. Google, Inc., 2017 WL 2692607, at *2 (D.D.C. June 21, 

2017) (“holding Google liable for establishing standards and guidelines would ultimately 

create a powerful disincentive for service providers to establish any standards or ever 

decide to remove objectionable content, which the CDA was enacted to prevent”), aff’d 

sub nom., Bennett v. Google, LLC, 882 F.3d 1163 (D.C. Cir. 2018).

UNITED STATES’ OBJECTIONS

The instruction should not be given because this case does not involve the exercise 

of traditional “editorial control and judgment” functions. See, e.g., Miami Herald Publ’g 

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Co. v. Tornillo, 418 U.S. 241, 254-558 (1974) (newspapers cannot be compelled to publish 

editorials or commentary; decisions regarding the inclusion of materials in the newspaper 

and “treatment of public issues and public officials—whether fair or unfair—constitute the 

exercise of [protected] editorial control and judgment”). 

Rather, as this Court has recognized (in reviewing the sufficiency of the SI), 

Defendants’ management and operation of Backpage “fell outside ‘traditional, editorial 

functions’ protected by the First Amendment. (Doc. 793 at 12-15.) For example, 

Defendants “participated in [ad] moderation not merely to edit, but to ‘conceal the true 

nature of the ads being posted on its website.’ (SI¶ 11).” (Doc. 793 at 12.) Defendants’ 

“official policy” for posts advertising child prostitution was to delete particular words in 

the ads indicative of underage prostitution and publish the revised version, thereby creating 

a veneer of deniability and helping its customers evade law enforcement. (Doc. 793 at 12.) 

Defendants followed similar policies for ads containing words or phrases indicative of 

adult prostitution. (Doc. 793 at 12.) Backpage also permitted users to include TER ID 

numbers in ads—that is, numbers that Johns could use to locate on-line reviews of the 

advertisers’ sex-for-money services. (See Doc. 793 at 12.) Moreover, Backpage “taught 

customers how to word their ads to avoid moderator restrictions,” and maintained nonadult sections to provide “plausible deniability” and make the website more “defensible” 

to law enforcement. (Doc. 793 at 12-13.) Tornillo and its progeny do not apply to these 

policies and practices. (See Doc. 793 at 12-15; see also Doc. 649 at 26-29.)

Separately, Defendants’ invocation of “[f]ederal law”—namely, Section 230 of the 

Communications Decency Act, 47 U.S.C. § 230—should be precluded in the jury 

instructions. As this Court has already held, Section 230 has no application whatsoever in 

this federal criminal case. (Doc. 793 at 13; Doc. 840 at 4-12.) 

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DEFENDANTS’ PROPOSED INSTRUCTION 

FIRST AMENDMENT PROTECTION—OFFENSIVE AND SEXUAL SPEECH

The First Amendment prohibits the government from restricting speech because 

some find it offensive. The First Amendment also prohibits the government from 

restricting adult sexual expression that is indecent, but not obscene.

Supporting Authorities

Ashcroft v. Free Speech Coal., 535 U.S. 234, 245 (2002) (“It is also well established 

that speech may not be prohibited because it concerns subjects offending our sensibilities. 

. . . In evaluating the free speech rights of adults, we have made it perfectly clear that 

‘[s]exual expression which is indecent but not obscene is protected by the First 

Amendment’”) (citing Reno v. American Civil Liberties Union, 521 U.S. 844, 874 (1997).

UNITED STATES’ OBJECTION

This instruction is irrelevant and confusing, and not supported by the record or the 

law in the context of this case. This is not an “obscenity” prosecution, or one that seeks to 

restrict or enjoin the distribution of materials (videos, magazines, books, etc.) that might 

call for consideration of whether they are “obscene.” See Miller v. California, 413 U.S. 

15, 24 (1973) (government may restrict dissemination of a work that, taken as a whole, 

appeals to the prurient interest, is patently offensive in light of community standards, and 

lacks serious literary, artistic, political, or scientific value); cf. Ashcroft v. Free Speech 

Coal., 535 U.S. 234, 245 (2002) (invalidating statute banning “virtual child pornography”). 

Indeed, this case does not involve any effort to restrict or enjoin the distribution of any 

materials at all.

Moreover, this is not a case that seeks to restrict “offensive” speech, or “adult sexual 

expression that is indecent, but not obscene.” Rather than involve purely expressive speech 

subject to the highest levels of constitutional protection, this case involves a different 

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category of speech altogether—commercial speech, or speech that does no more than 

propose a commercial transaction (i.e., advertising). Central Hudson Gas & Elec. Corp. 

v. Pub. Serv. Commn. of New York, 447 U.S. 557, 563-64 (1980). The First Amendment 

confers no protection at all on speech proposing illegal transactions, including prostitution 

advertising and soliciting. (Doc. 793 at 14); Pittsburgh Press Co. v. Human Relations 

Comm’n, 413 U.S. 376, 388 (1973); Central Hudson, 447 U.S. at 563-64; United States v. 

Williams, 553 U.S. 285, 297 (2008); Erotic Service Provider Legal Ed. and Research 

Project v. Gascon, 880 F.3d 450, 459-60, amended, 881 F.3d 792, 792 (9th Cir. 2018); 

Coyote Pub., Inc. v. Miller, 598 F.3d 592, 600-04 (9th Cir. 2010). 

Given this background, the instruction should not be given.

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DEFENDANTS’ PROPOSED INSTRUCTION 

FIRST AMENDMENT PROTECTION—SPEECH PRESUMED 

PROTECTED

The Constitution does not permit the jury to presume that speech is unprotected 

merely because it resembles unprotected speech. The jury must presume that speech is 

protected. 

The government always has the burden to prove that particular instances of speech 

are not protected by the First Amendment.

Supporting Authorities

Ashcroft v. Free Speech Coal., 535 U.S. 234, 255 (2002) (“Protected speech does 

not become unprotected merely because it resembles the latter.”); United States v. Playboy 

Entm’t Grp., Inc., 529 U.S. 803, 816 (2000) (“When the Government restricts speech, the 

Government bears the burden of proving the constitutionality of its actions.”); id. at 818 

(“When First Amendment compliance is the point to be proved, the risk of nonpersuasion 

... must rest with the Government, not with the citizen.”).

UNITED STATES’ OBJECTIONS

The instruction is confusing and not supported by the record or the law—

particularly to the extent it might be understood as requiring the United States to prove that 

each and every ad that ever appeared on Backpage’s “adult” or “escorts” sections was a 

prostitution ad in order to prove the offenses charged in the SI. If Defendants’ revenuegenerating business model was knowingly, intentionally and overwhelmingly based on the 

sale of prostitution ads, the Constitution does not impose the near-impossible burden of 

proving that every ad sold on Backpage proposed an illegal transaction. Under that 

interpretation, selling even one licit ad—among millions of illicit ones—would immunize 

Defendants from prosecution. 

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That is not the law. Rather, just as “[b]ookselling in an establishment used for 

prostitution does not confer First Amendment coverage to defeat a valid statute aimed at 

penalizing and terminating illegal uses of premises,” Arcara v. Cloud Books, Inc., 478 U.S. 

697, 707 (1986), so too may the government seek to prosecute a website (and the individuals 

who directed and managed it) that operated a massive online marketplace for illegal 

prostitution—even if the website also gave away free (or sold for exponentially lower prices) 

ads for legal goods and services for the sake of “plausible deniability.” (See SI¶ 112); see 

also United States v. Ulbricht, 31 F. Supp. 3d 540, 556 (S.D.N.Y. 2014) (unlike other online 

businesses, defendant “knowingly and intentionally constructed and operated an expansive 

black market for selling and purchasing narcotics and malicious software”); United States v. 

Jackson, 865 F.3d 946, 949 (7th Cir. 2017) (Backpage “advertis[ed]...sex work”), cert. 

granted, judgment vacated on other grounds, 138 S. Ct. 1983 (2018); J.S. v. Village Voice 

Media Holdings, Inc., 359 P.3d 714, 715-16 (Wash. 2015) (discussing Backpage’s 

involvement in minor victims’ ads); SI¶ 109 (Backpage is “a direct vehicle for prostitution”).

If the record warrants an instruction similar to that proposed by Defendants, cf. 

Freeman, 761 F.2d at 551-52, and to avoid confusion and more faithfully track the law’s 

requirements, the proposed instruction should be revised as follows (additions underlined; 

deletions in strikeout):

The Constitution does not permit the jury to presume that speech 

is unprotected merely because it resembles unprotected speech. The 

jury must presume that speech is protected, and the government has the 

burden of proving otherwise. 

The government always has the burden to prove that particular 

instances of speech are not protected by the First Amendment.

This instruction, if given, should be coupled with an instruction explaining that 

prostitution advertisements or solicitations are not protected by the First Amendment, as 

follows:

Prostitution is illegal in 49 states and most of Nevada. In those 

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places, prostitution advertisements or solicitations have no First 

Amendment protection at all. Advertisements or solicitations must 

concern lawful activity to receive First Amendment protection. 

See Doc. 793 at 14; Central Hudson Gas & Elec. Corp. v. Pub. Serv. Commn. of New York, 

447 U.S. 557, 563-64 (1980) (“commercial speech related to illegal activity” is not 

protected by the First Amendment); Erotic Service Provider Legal Ed. and Research 

Project v. Gascon, 880 F.3d 450, amended, 881 F.3d 792, 792 (9th Cir. 2018) (“[f]or 

commercial speech to receive First Amendment protection[,] the speech must concern 

lawful activity”). See also United States v. Williams, 553 U.S. 285, 297 (2008) (“Offers to 

engage in illegal transactions are categorically excluded from First Amendment 

protection.”); Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376, 388 (1973) 

(“a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of 

narcotics or soliciting prostitutes”); Coyote Pub., Inc. v. Miller, 598 F.3d 592, 600-04 (9th 

Cir. 2010) (explaining that prostitution is illegal nearly everywhere in the United States, 

and upholding Nevada ban on prostitution advertising); A.R.S. § 13-3211(5) (crime of 

prostitution defined in part as “offering to engage in sexual conduct under a fee 

arrangement with any person for money”) (emphasis added)). 

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DEFENDANTS’ PROPOSED INSTRUCTION 

FIRST AMENDMENT PROTECTION—ADS PRESUMED PROTECTED 

A website’s publication of a classified ad posted by a third party is protected under 

the First Amendment unless the transaction proposed in the ad necessarily would be an 

illegal act (like an ad proposing a sale of cocaine, which always is illegal). Where the 

legality of a transaction proposed in an ad depends on circumstances outside the content of 

the ad, a website’s publication of the ad is protected by the First Amendment. 

The jury cannot conclude from coded language or implicit offers in a classified ad 

that an ad necessarily proposes an illegal act. Coded language or implicit offers mean that 

the legality of a transaction proposed in an ad will depend on circumstances outside the 

content of the ad. 

The classified ads charged in Counts 2 – 22 and 24 – 51 do not necessarily propose 

unlawful acts and the legality of the transactions proposed in those ads depends on 

circumstances outside the content of those ads. Therefore, Backpage.com’s publication of 

those 49 ads was protected by the First Amendment. 

A website’s publication of classified ads protected by the First Amendment does 

not become unprotected merely because some, or even many, third-parties use the ads 

hosted on the website to facilitate their own illegal conduct.

Supporting Authorities

Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 822 (9th Cir. 2013) (rejecting Arizona’s

proposed “novel extension of Central Hudson’s legality requirement, which has 

traditionally focused on the content of affected speech—i.e., whether the speech proposes 

an illegal transaction—instead of whether the speech is associated with unlawful activity”) 

(emphasis added).

UNITED STATES’ OBJECTIONS

The instruction is not supported by the law or the record, and it is confusing and 

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misleading. The jury is entitled to consider all of the relevant facts and circumstances in 

determining the meaning of an ad. An advertisement is not an integrated legal instrument, 

and the jury may properly consider the use and meaning of coded terms (e.g., “GFE,” 

“incall/outcall,” “roses,” “car service,” “quickie”), incremental prices (e.g., quarter-hour, 

half-hour, one-hour), photos, video or other images, identification numbers from 

prostitution review websites, and any other evidence—including the placement and context 

of the ad—that conveys information about the meaning of the ad. See Pittsburgh Press 

Co. v. Human Relations Comm’n, 413 U.S. 376, 388 (1973) (determining that employment 

ads were unlawful based on the context of their placement in gender-specific categories; 

“We have no doubt that a newspaper constitutionally could be forbidden to publish a want 

ad proposing a sale of narcotics or soliciting prostitutes. Nor would the result be different 

if the nature of the transaction were indicated by placement under columns captioned 

‘Narcotics for Sale’ and ‘Prostitutes Wanted’ rather than stated within the four corners of 

the advertisement.”).

There is no requirement that an advertisement “necessarily” or explicitly propose 

an illegal transaction, without the use of code words or other indicia of unlawful activity, 

in order for the publication to fall outside of the First Amendment’s protection. The sole 

case Defendants cite in support of their proposed instruction—Valle Del Sol Inc. v. 

Whiting, 709 F.3d 808 (9th Cir. 2013)—does not support that concept and has nothing to 

do with this case. In Whiting, the court held that Arizona could not target day laborers for 

harsher punishment when, in the course of soliciting lawful work (i.e., engaging in lawful 

commercial speech), they violated an unrelated traffic law. Id. at 814, 823. Whiting

contains no analysis or discussion of any ads that use code words or other thinly-veiled 

indicia of illegal activity. Whiting likewise contains no language that would prevent the 

jury from using ordinary interpretative aids in assessing the meaning of Backpage’s ads; 

nor does it say anything that might limit Defendants’ liability here. 

To the contrary, Whiting (id. at 822) recognized the continuing validity of Pittsburg 

Press—which itself recognized that the context and/or content of an ad may be considered, 

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and that prostitution ads have no constitutional protection whatsoever. 413 U.S. at 388-39. 

The instruction should not be given. 

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DEFENDANTS’ PROPOSED INSTRUCTION 

FIRST AMENDMENT PROTECTION—CODED ADVERTISEMENT 

LANGUAGE

Coded language in an ad does not mean the ad is for an illegal activity. For example, 

where a website publishes an escort advertisement posted by a third-party that uses coded 

language that implies the advertisement is for prostitution, the advertisement may, in fact, 

just be for legal escort services. 

[This instruction should track the elements and definition of “prostitution” that the 

government provided to the grand jury at the time this indictment was returned. See Doc. 

No. 1171.]

Supporting Authorities

See Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1279 (W.D. Wash. 

2012) (“The pimp that publishes the advertisement certainly ‘knows’ whether his offer is 

for sex, whether explicitly or implicitly. However, what does it mean for the website 

operator to “know” that an advertisement “implicitly” offers sex? In Washington, ‘a person 

acts knowingly or with knowledge when ... he or she has information which would lead a 

reasonable person in the same situation to believe that facts exist which facts are described 

by a statute defining an offense.’ Wash. Rev. Code Ann. § 9A.08.010(b)(ii). 

However, where an online service provider publishes advertisements that employ coded 

language, a reasonable person could believe that facts exist that do not in fact exist: an 

advertisement for escort services may be just that. Similarly, Defendants contend that 

‘offer’ is used ‘to make clear that a transaction does not have to be consummated for SB 

6251 to apply.’ However, if the offer is implicit, how can a third party ascertain that which 

is being offered before the transaction is consummated?”).

UNITED STATES’ OBJECTIONS

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misleading. The jury is entitled to consider all of the relevant facts and circumstances in 

determining the meaning and import of a Backpage ad or advertising category. The 

government also incorporates by reference its objections to the preceding proposed jury 

instruction. 

Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D. Wash. 2012), does 

not support the instruction. That non-precedential case (decided in part under the 

inapplicable Communications Decency Act) involved a facial challenge to a Washington 

state statute, not a federal criminal prosecution. The quoted language contains a series of 

rhetorical questions and does not state a legal rule or requirement. The instruction should 

not be given. 

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DEFENDANTS’ PROPOSED INSTRUCTION 

FIRST AMENDMENT PROTECTION—GOVERNMENT CANNOT PUNISH 

LEGAL SPEECH TO SUPPRESS ILLEGAL SPEECH

The First Amendment prohibits the government from restricting or punishing legal 

speech in an effort to eliminate illegal speech. The possible harm to society from 

permitting illegal speech to go unpunished is outweighed by the possibility that legal 

speech will be suppressed.

The First Amendment prohibits the government from punishing a defendant based 

on that defendant’s or Backpage.com’s refusal to cease publishing adult services or dating 

ads, even if eliminating all adult-oriented ads would have reduced the number of ads 

relating to illegal conduct on the website. 

Supporting Authorities

Packingham v. North Carolina, 137 S. Ct. 1730, 1738 (2017) (“as a general rule,

the Government ‘may not suppress lawful speech as the means to suppress unlawful 

speech’”); Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002) (“The government 

may not suppress lawful speech as the means to suppress unlawful speech.”).

UNITED STATES’ OBJECTIONS

The instruction is not supported by the facts or the law, and it is confusing, irrelevant 

and misleading. This case is about Defendants’ commission of federal offenses in the 

course of operating, for more than a decade, the internet’s largest source of ads for the sale 

of adults and children for sex. (See generally Doc. 793 (detailing the SI’s factual and legal 

allegations); Doc. 230.) The suggestion that this case was brought to “punish[ ] a defendant 

based on that defendant’s or Backpage.com’s refusal to cease publishing [otherwise lawful] 

adult services or dating ads” mischaracterizes the SI and is untrue. (See generally Doc. 

230.) The instruction should not be given.

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DEFENDANTS’ PROPOSED INSTRUCTION 

FIRST AMENDMENT PROTECTION—PROTECTED PUBLICATION OF 

THIRD-PARTY SPEECH

Under the First Amendment, the jury cannot find a defendant guilty of a crime based 

on a website’s publication of a third-party classified ad, unless the government proves 

beyond a reasonable doubt that: 

(i) the defendant had actual knowledge of the particular ad, and

(ii) the defendant had actual knowledge that the particular ad related to unlawful 

activity, and

(iii) the defendant personally took an action causing the particular ad to be 

published on, or to continue to be published on, Backpage.com with the aim of 

furthering the illegal activity.

Supporting Authorities

See Smith v. California, 361 U.S. 147, 153-54 (1959); Mishkin v. New York, 383 

U.S. 502, 511 (1966) (“The Constitution requires proof of scienter to avoid the hazard of 

self-censorship of constitutionally protected material ....”); Valle Del Sol Inc. v. Whiting, 

709 F.3d 808, 822 (9th Cir. 2013) (rejecting Arizona’s proposed “novel extension of 

Central Hudson’s legality requirement, which has traditionally focused on the content of 

affected speech—i.e., whether the speech proposes an illegal transaction—instead of 

whether the speech is associated with unlawful activity”) (emphasis added); 

Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805, 830 (M.D. Tenn. 2013) (the First 

Amendment burden imposed by self- censorship is magnified on the Internet, because 

“websites ... will bear an impossible burden to review all of their millions of postings or, 

more likely, shut down their adult services section entirely.”).

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UNITED STATES’ OBJECTIONS

The instruction is not supported by the law. (Doc. 793 at 15-20; see also Doc. 649 

at 32-36.) As this Court has already found, the cases on which Defendants rely do not 

support the scienter described above:

Defendants argue the First Amendment requires the Government to prove that each Defendant was aware of each ad that make up the fifty Travel Act 

counts and knew that each ad proposed illegal transactions. The Court is not 

persuaded that the First Amendment demands such a standard. 

. . . . Defendants largely rely on four cases [including Smith v. California, 361 U.S. 147 (1959), and Mishkin v. New York, 383 U.S. 502, 511 (1966)]. The Court concludes none of these cases mandate the mens rea requirement described by Defendants, and, instead, agrees with the Government that 

intent to promote or facilitate prostitution is sufficient. 

. . . . [In Smith, the Supreme Court] did not consider “what sort of mental element is requisite to a constitutionally permissible prosecution of a 

bookseller for carrying an obscene book in stock” and explicitly left open the possibility of prosecution for something less than specific knowledge of the 

contents of a particular book. [361 U.S.] at 154–55. 

Likewise, Mishkin upheld a scienter standard less demanding than the one proposed by defendants. There, the defendant was convicted of violating a 

New York Penal Law prohibiting possession of obscene books with intent to 

sell and hiring others to prepare and publish obscene books. Mishkin, 383 

U.S. at 503. The Court upheld the scienter standard used by the New York 

Court of Appeals, requiring the State show defendants were “in some manner 

aware of the character of the material they attempt to distribute.” Id. at 510. 

The Court reasoned, “proof of scienter” is required “to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity.” Id. at 511. The 

scienter standard used in the prosecution “amply serve[d] those ends, and therefore fully [met] the demands of the Constitution.” Id.

(Doc. 793 at 15-16.) Discussing Pinkerton liability, the Court also found:

The SI contains sufficient factual allegations to implicate all Defendants. Additionally, when there is a “continuous conspiracy,” the “overt act[s] of 

one partner may be the act of all without any new agreement specifically 

directed to that act.” United States v. Pinkerton, 328 U.S. 640, 646–47 

(1946); see United States v. Long, 301 F.3d 1095, 1103 (9th Cir 2002) (“The Pinkerton doctrine is a judicially-created rule that makes a conspirator criminally liable for the substantive offenses committed by a co-conspirator when they are reasonably foreseeable and committed in furtherance of the 

conspiracy.”). . . . The pleadings and this order are replete with the relevant 

factual allegations against the defendants, so the Court will only briefly 

repeat them here. Taken as true, they show Defendants had a specific intent 

to promote prostitution.

(Doc. 793 at 19.) 

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In discussing Smith and Mishkin, the government similarly explained:

Defendants’ cases provide a more generous mens rea standard than 

Defendants suggest. In Smith v. California, the Supreme Court invalidated an obscenity ordinance that contained no mens rea standard whatsoever; the 

ordinance imposed criminal sanctions on a bookseller “if in fact there is to 

be found in his shop an obscene book,” “even though [he] had not the 

slightest notice of the character of the books [that he] sold.” 361 U.S. 147, 152 (1959). In requiring some mens rea requirement, Smith expressly did not adopt a specific standard: “We need not and most definitely do not pass 

today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller for carrying an obscene book in 

stock; [including] whether there might be circumstances under which the 

State constitutionally might require that a bookseller investigate further, or 

might put on him the burden of explaining why he did not, and what such 

circumstances might be.” Id. at 154. Smith accordingly contemplates that 

mens rea may be satisfied by something other than knowledge of the contents of a specific book (or ad), especially where, as here, Defendants knew the vast majority of their “adult” ads were for prostitution and engaged in 

practices specifically intended to increase such advertising.[ ]

Mishkin v. State of New York, similarly recognizes a broader scienter 

standard. In Mishkin, the Court noted the constitution requires proof of scienter to “avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of 

obscenity.” 383 U.S. 502, 511 (1966). The Court declined to set a firm rule on what mens rea was required under Smith, and found more than sufficient 

the scienter required by the New York Court of Appeals in interpreting the 

state law at issue: namely, that defendants were “in some manner aware of 

the character of the material they attempt to distribute” such that the punished 

behavior was a “calculated purveyance of filth” and not innocent behavior. 

Id. at 510-11.[ ] Mishkin then rejected the defendant’s argument that the 

evidence was insufficient to show such awareness, where the evidence 

included that the defendant had instructed artists and writers regarding the 

contents of most of the 50 books at issue, his efforts to conceal his role in the 

enterprise, and “the massive number of obscene books [he] published, hired others to prepare, and possessed for sale.” Id. at 504, 511-12. 

Here, the SI’s allegations likewise demonstrate that Defendants were “in 

some manner aware of the character of the material” they distributed such 

that their conduct involved the “calculated purveyance of filth” and not 

innocent behavior. Id. at 510-11. The SI alleges Defendants and their co- conspirators coached users, including P.R. and Victim 13, regarding the 

contents of their ads, including many of the 50 ads identified in SI¶ 201 (see, 

e.g., SI¶132, 172); concealed their roles in facilitating prostitution (see, e.g., SI¶16 (Defendants misled the public, regulators and law enforcement), ¶77 (Padilla threatened to fire any employee who acknowledged in writing that a customer was a prostitute), ¶¶107-08 (Larkin warned Ferrer about making “public” Lacey’s statements lauding Backpage’s contributions to the 

prostitution industry); knew the vast majority of their “adult” ads were for 

prostitution (SI¶¶1, 9, 11, 15, 34); and sold massive numbers of such ads by operating the internet’s leading website for prostitution advertising and 

collecting approximately $500 million in fees from such sales (see SI¶¶1, 177). Combined with Defendants’ intentional efforts to expand Backpage’s prostitution advertising, and the repeated notices Defendants received from 

law enforcement, anti-trafficking organizations, the news media and other 

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sources concerning the predominance of prostitution ads in Backpage’s 

“adult” section (see generally SI¶¶9-11, 34-159), the SI demonstrates Defendants were well “aware of the character” of Backpage’s “adult” ads 

such that their activity was “not [the] innocent but calculated purveyance of” 

prostitution solicitations. Mishkin, 383 U.S. at 512. 

(Doc. 649 at 33-35.)

Valle Del Sol Inc. v. Whiting, 709 F.3d 808 (9th Cir. 2013), contains no language 

supporting the instruction and has nothing to do with this case. Whiting held that Arizona 

could not target day laborers for harsher punishment when, in the course of soliciting lawful 

work (i.e., engaging in lawful commercial speech), they violated an unrelated traffic law. 

Id. at 814, 823. Moreover, Whiting recognized the continuing validity of Pittsburgh Press 

Co. v. Human Relations Comm’n, 413 U.S. 376 (1973), and the Ninth Circuit has 

repeatedly reaffirmed that the First Amendment “extends no protection” to prostitution ads 

and solicitations. Whiting, 709 F.3d at 822; Erotic Service Provider Legal Ed. and 

Research Project v. Gascon, 880 F.3d 450, 459-60 (9th Cir. 2018); Coyote Pub., Inc. v. 

Miller, 598 F.3d 592, 603-04 (9th Cir. 2010).

Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805 (M.D. Tenn. 2013), predated 

the factual and legal developments described supra and in Doc. 649 at 21-26 (incorporated 

by this reference). That non-precedential decision (decided in part under the inapplicable 

Communications Decency Act) does not support Defendants’ proposed standard. The 

instruction should not be given.

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DEFENDANTS’ PROPOSED INSTRUCTION 

FIRST AMENDMENT PROTECTION—NO REQUIREMENT TO SHUT DOWN

The First Amendment prohibits the government from requiring a website hosting 

third-party ads to shut down the adult section, even if doing so could have reduced the 

number of ads relating to illegal conduct. 

Supporting Authorities

Packingham v. North Carolina, 137 S. Ct. 1730, 1738 (2017) (“as a general rule, 

the Government ‘may not suppress lawful speech as the means to suppress unlawful 

speech’”); Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002) (“The government 

may not suppress lawful speech as the means to suppress unlawful speech.”).

UNITED STATES’ OBJECTIONS

The instruction is confusing and irrelevant. In April 2018, Backpage pleaded guilty 

in a separate case and cooperated in its shut down. (See United States v. Backpage.com, 

LLC, CR-18-465-PHX-SMB, Doc. 8-2 at 6-11.) The instant case involves criminal charges 

against six individual Defendants, not Backpage. 

Moreover, the proposed instruction is not supported by the cases Defendants cite. 

Neither case involved a website whose revenue-generating business model consisted of 

operating a massive online marketplace for illegal prostitution. See, e.g., United States v. 

Ulbricht, 31 F. Supp. 3d 540, 558 (S.D.N.Y. 2014) (rejecting website operator’s argument 

that his site’s online marketplace for illegal narcotics involved speech protected by First 

Amendment); see also Doc. 793 at 14 (“The SI does not allege Defendants are criminally 

liable because they unknowingly and unintentionally operated a website used by third 

parties to post prostitution ads. Rather, it alleges Defendants purposely sought out 

opportunities to increase prostitution advertising on Backpage. The SI alleges the 

Defendants intentionally identified prostitutes, created free Backpage ads for them, and 

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used those ads to try to secure future business. (SI¶ ¶ 9, 36). . . . Defendants also sought 

to expand their traffic through TER, a ‘prostitution website’ where ‘johns’ could rate and 

review escorts including the ‘prices charged for particular sex acts.’ (SI ¶¶ 10, 54). As 

alleged, Backpages’ efforts to promote its website facilitated prostitution and were not 

protected business practices.”). See also Doc. 793 at 8 (“The SI sufficiently explains why 

defendants in this case are not just merely hosting third party content.”); Doc. 840 at 9-10 

& n.6 (explaining that the SI’s allegations differentiate Backpage’s activities from passive 

hosting of third party content).

The instruction should not be given.

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DEFENDANTS’ PROPOSED INSTRUCTION 

FIRST AMENDMENT PROTECTION—NO REQUIREMENT TO 

INVESTIGATE

An internet provider is not required to investigate or learn what its users are doing 

and whether anyone is hurt as a result.

Supporting Authorities

Doe v. GTE Corp, 347 F.3d 655, 661 (7th Cir. 2003) (“Plaintiffs do not cite any case 

in any jurisdiction holding that a service provider must take reasonable care to prevent 

injury to third parties. Consider the Postal Service or Federal Express, which sell 

transportation services that could be used to carry harmful articles. As far as we can 

discover, no court has held such a carrier liable for failure to detect and remove harmful 

items from shipments. . . . Similarly, telephone companies are free to sell phone lines to 

entities such as [the Wrongdoer], without endeavoring to find out what use the customers 

make of the service. See, e.g., Anderson v. New York Telephone Co., 35 N.Y.2d 746, 361 

N.Y.S.2d 913, 320 N.E.2d 647 (1974) (no liability for phone company that furnished 

service to someone who used the connection to play a defamatory recording to all callers). 

. . . Landlord, phone company, delivery service, and web host all could learn, at some cost, 

what [Wrongdoer] was doing with the services and who was potentially injured as a result; 

but state law does not require these providers to learn, or to act as Good Samaritans if they 

do. The common law rarely requires people to protect strangers, or for that matter 

acquaintances or employees. See generally Stockberger v. United States, 332 F.3d 479 (7th 

Cir. 2003).”).

UNITED STATES’ OBJECTIONS

This “First Amendment” instruction is irrelevant, confusing and not supported by 

First Amendment or other law. In the case Defendants cite, Doe v. GTE Corp, 347 F.3d 

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655 (7th Cir. 2003), the Seventh Circuit affirmed the district court’s dismissal, under 

Section 230 of the Communications Decency Act, of a civil suit brought against an internet 

service provider. As this Court has already found, the CDA has no applicability in this 

federal criminal prosecution. (Doc. 793 at 13; see generally Doc. 840.) Moreover, the 

quoted language from GTE involved an analysis of the plaintiff’s “negligent entrustment 

of chattel” argument—a legal theory that has no relationship to this case. See GTE, 347 F. 

3d at 660-62. The instruction should not be given. 

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DEFENDANTS’ PROPOSED INSTRUCTION 

FIRST AMENDMENT PROTECTION—PUBLICATION DOES NOT CREATE 

CRIMINAL CULPABILITY

A defendant’s operation of a website does not in and of itself provide culpable 

assistance to a wrongdoer; to prove a defendant guilty of assisting a criminal, the 

government must prove beyond a reasonable doubt that the defendant had a desire to 

promote the wrongful venture’s success. 

Supporting Authorities

Doe v. GTE Corp, 347 F.3d 655, 659 (7th Cir. 2003) (evaluating internet service 

provider’s liability under section 230 where wrongdoer posted surreptitiously obtained 

photos of naked college athletes: “GTE’s activity does not satisfy the ordinary 

understanding of culpable assistance to a wrongdoer, which requires a desire to promote 

the wrongful venture’s success. See generally United States v. Pino-Perez, 870 F.2d 1230 

(7th Cir. 1989) (en banc). A web host, like a delivery service or phone company, is an 

intermediary and normally is indifferent to the content of what it transmits. Even entities 

that know the information’s content do not become liable for the sponsor’s deeds. Does a 

newspaper that carries an advertisement for “escort services” or “massage parlors” aid and 

abet the crime of prostitution, if it turns out that some (or many) of the advertisers make 

money from that activity? How about Verizon, which furnishes pagers and cell phones to 

drug dealers and thus facilitates their business? GTE does not want to encourage the 

surreptitious interception of oral communications, nor did it profit from the sale of the 

tapes. It does profit from the sale of server space and bandwidth, but these are lawful 

commodities whose uses overwhelmingly are socially productive. That web hosting 

services likewise may be used to carry out illegal activities does not justify condemning 

their provision whenever a given customer turns out to be crooked. [The wrongdoer] did 

not demand a quantity or type of service that is specialized to unlawful activities, nor do 

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plaintiffs allege that the bandwidth or other services required were themselves tipoffs so 

that GTE, like the seller of sugar to a bootlegger, must have known that the customer had 

no legitimate use for the service. Just as the telephone company is not liable as an aider 

and abettor for tapes or narcotics sold by phone, and the Postal Service is not liable for 

tapes sold (and delivered) by mail, so a web host cannot be classified as an aider and abettor 

of criminal activities conducted through access to the Internet.”).

UNITED STATES’ OBJECTIONS

The instruction is not supported by law. In Defendants’ sole supporting case, Doe 

v. GTE Corp, 347 F.3d 655 (7th Cir. 2003), the Seventh Circuit affirmed the dismissal 

under Section 230 of the Communications Decency Act of a civil suit against an internet 

service provider. As this Court has already found, the CDA has no application to this 

federal criminal prosecution. (Doc. 793 at 13; see generally Doc. 840.) Moreover, GTE

does not address the Travel Act or other charged offenses set forth in the SI. And while 

Defendants style this as a “First Amendment” instruction, they cite no First Amendment 

caselaw in support. The instruction should be rejected.

In all events, and contrary to GTE, there are many independent ways of proving that 

a seller of goods or services (including a website operator) intended to facilitate unlawful 

activity. See, e.g., People v. Lauria, 59 Cal. Rptr. 628, 632-33 (Cal. Ct. App. 1967) (a 

seller’s intent to facilitate prostitution may be inferred from, inter alia: (1) “proof . . . of 

inflated charges” for goods or services used for prostitution; (2) “evidence of any unusual 

volume of business with prostitutes,” such as where “sales for illegal use amount to a high 

proportion of the seller’s total business”; or (3) sales that “serve no other purpose than to 

advertise the professional services of the prostitutes”); Wayne R. LaFave, 2 Substantive 

Criminal Law (SUBCRL) § 12.2(c)(3), Providing goods or services, (3d ed., Oct. 2020 

update) (intent may also be inferred from “the fact that the seller has made inflated charges, 

that he has supplied goods or services which have no legitimate use, [] that the sales to the 

illegal operation have become the dominant proportion of the seller’s business,” or the 

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seller’s use of deceptive or “secretive” tactics); Monica J. DeLateur, From Craigslist to 

Backpage.com: Conspiracy as a Strategy to Prosecute Third-Party Websites for Sex 

Trafficking, 56 Santa Clara L. Rev. 531, 581 (2016) (intent can be proven, inter alia, by 

showing “the illegal activity was a high proportion of the business, the presence of a stake 

in the venture, or deliberate ignorance”). Moreover, no inference of intent is needed in 

cases involving “[d]irect evidence of participation, such as advice from the supplier of legal 

goods or services to the user of those goods or services on their use for illegal purposes.” 

Lauria, 59 Cal. Rptr. at 632.

Furthermore, a website operator may be found to have the requisite intent when the 

defendant’s website was designed or tailored to further illegal activity. See, e.g., United 

States v. Ulbricht, 31 F. Supp. 3d 540, 556 (S.D.N.Y. 2014) (“The Indictment does not 

allege that Ulbricht is criminally liable simply because he is alleged to have launched a 

website that was—unknown to and unplanned by him—used for illicit transactions. . . . 

Rather, Ulbricht is alleged to have knowingly and intentionally constructed and operated 

an expansive black market for selling and purchasing narcotics and malicious software and 

for laundering money. This separates Ulbricht’s alleged conduct from the mass of others 

whose websites may—without their planning or expectation—be used for unlawful 

purposes.”); United States v. Omuro, N.D. Cal. No. 14-CR-336, Doc. 70 at 1-3 (court 

accepted guilty plea and convicted www.myRedBook.com founder Eric Omuro under the 

Travel Act, 18 U.S.C. § 1952(a)(3)(A); Omuro’s website hosted thousands of ads posted 

by prostitutes in the western United States, and generated profits from fees paid by 

“escorts” to post their ads more prominently); United States v. Hurant, E.D.N.Y. No. 16-

CR-45, Doc. 117 at 1, 6 13-14 (court accepted guilty plea and convicted 

www.Rentboy.com founder Jeffrey Hurant for violating the Travel Act; Hurant admitted 

he “was well aware...that the escort ads he posted...were thinly-veiled proposals of sexual 

services in exchange for money”; id. Doc. 125 at 2 (like Backpage, Hurant’s employees 

often rejected ads with explicit offers of sex for money “but allow[ed] the ad to be 

resubmitted with different language. In many cases, Rentboy.com employees would just 

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edit the advertisement’s language and approve it.”).

Finally, the instruction is unnecessary to the extent it merely reiterates any 

requirements from other instructions, including those regarding the substantive offenses 

charged in the SI. 

The instruction should not be given.

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