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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

v. 

Michael Lacey, et al.,

Defendants.

No. CR-18-00422-001-PHX-DJH

NOTICE OF FILING OF DRAFT 

JOINT STATEMENT OF THE CASE 

AND DRAFT JURY INSTRUCTIONS 

This Notice of Filing contains “The Court’s Proposed Statement of the Case” and 

the “Jury Instructions Draft” as they were discussed on the record at the Final Pretrial 

Conference held on July 27, 2023 (Doc. 1650).

Dated this 2nd day of August, 2023.

Honorable Diane J. Humetewa

United States District Judge

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The Court’s Proposed Statement of the Case: 

Six individual Defendants—Michael Lacey, James Larkin, Scott Spear, John “Jed” 

Brunst, Andrew Padilla, and Joye Vaught—have been charged in a superseding 

indictment with conspiracy to commit violations of the Travel Act; and with violations of 

the Travel Act by using the mail and any facility in interstate commerce with the intent to 

facilitate the promotion, management, establishment or carryon on of a business 

enterprise involving prostitution offenses in violation of the state laws, including 

Arizona, and the laws of the United States.

Four of these Defendants—Michael Lacey, James Larkin, Scott spear, John Brunst—

have been charged with conspiracy to commit money laundering; concealment money 

laundering; international promotional money laundering; and transactional money 

laundering.

Defendant Michael Lacey has been charged with international concealment money 

laundering. 

These charges arise from the Defendants’ various roles in the creation, operation, and 

management of the website Backpage.com. All Defendants have pleaded not guilty to 

the charges against him and are presumed innocent. The United States has the burden of 

proving each individual guilty beyond a reasonable doubt. 

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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-DJH

JURY INSTRUCTIONS DRAFT

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

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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. Consideration of Particular Evidence

ST 3.9 Testimony of Witnesses Involving Special Circumstances—Immunity, 

Benefits, Accomplice, Plea

ST 3.14 Opinion Evidence, Expert Witness

ST 3.15 Dual Role Testimony

ST 3.16 Charts and Summaries Not Admitted into Evidence [if necessary]

ST 3.17 Charts and Summaries Admitted into Evidence

 4. Responsibility 

PL 4.8 Knowingly

PL 4.9 Deliberate Ignorance*

DF 4.11 Advice of Counsel*

 5. Specific Defenses

DF 5.12 Mere Presence*

6. Jury Deliberations 

ST 6.1 Duties of Jury to Find Facts and Follow Law

PL 6.2 Charge Against Defendant Not Evidence—Presumption of 

Innocence—Burden of Proof

DF 6.2 Charge Against Defendant Not Evidence—Presumption of 

Innocence—Burden of Proof*

ST 6.3 Defendant’s Decision Not to Testify [if necessary]

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ST 6.4 Defendant’s Decision to Testify [if necessary]

PL 6.5 Reasonable Doubt—Defined

DF 6.5 Reasonable Doubt—Defined*

ST 6.6 What Is Evidence

ST 6.7 What Is Not Evidence

ST 6.8 Direct and Circumstantial Evidence

ST 6.9 Credibility of Witnesses

ST 6.10 Activities Not Charged

PL 6.13 Separate Consideration of Multiple Counts—Multiple Defendants

DF 6.13 Separate Consideration of Multiple Counts—Multiple Defendants*

ST 6.18 On or About—Defined 

ST 6.19 Duty to Deliberate 

ST 6.20 Consideration of Evidence—Conduct of the Jury

ST 6.21 Use of Notes

ST 6.22 Jury Consideration of Punishment 

ST 6.23 Verdict Form

ST 6.24 Communication with Court

11. Conspiracy 

PL 11.1 Conspiracy—Elements (Count 1)*

DF 11.1 Conspiracy—Elements (Count 1)*

DF 11.3 Multiple Conspiracies (Count 1)*

DF 11.3 Multiple Conspiracies (Count 52)*

PL 11.4 Conspiracy—Knowledge of and Association with Other Conspirators

DF 11.4 Conspiracy—Knowledge of and Association with Other 

Conspirators* 

PL 11.6 Conspiracy—Liability for Travel Act Violations Committed by CoConspirator (Pinkerton Charge)*

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Conspirator (Pinkerton Charge)*

PL 11.6 Conspiracy—Liability for Concealment Money Laundering 

Committed by Co-Conspirator (Pinkerton Charge)*

DF 11.6 Conspiracy—Liability for Concealment Money Laundering 

Committed by Co-Conspirator (Pinkerton Charge)*

PL 11.6 Conspiracy—Liability for International Promotional Money 

Laundering Committed by Co-Conspirator (Pinkerton Charge)*

DF 11.6 Conspiracy—Liability for International Promotional Money 

Laundering Committed by Co-Conspirator (Pinkerton Charge)*

18. Money Laundering and Racketeering Offenses

PL 18.1 Travel Act—Interstate or Foreign Travel in Aid of Racketeering 

Enterprises*

DF 18.1 Travel Act—Interstate or Foreign Travel in Aid of Racketeering 

Enterprises*

PL 18.4 Laundering Monetary Instruments*

DF 18.4 Laundering Monetary Instruments*

PL 18.5 Transporting or Attempting to Transport Funds to Promote Unlawful 

Activity*

DF 18.5 Transporting or Attempting to Transport Funds to Promote Unlawful 

Activity* 

PL 18.6 Transporting or Attempting to Transport Monetary Instruments for 

the Purpose of Laundering*

DF 18.6 Transporting or Attempting to Transport Monetary Instruments for 

the Purpose of Laundering*

PL 18.7 Money Laundering*

DF 18.7 Money Laundering*

PL 18.7A Money Laundering Conspiracy*

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DF 18.7A Money Laundering Conspiracy* 

II. NON-MODEL STIPULATED INSTRUCTIONS

III. NON-MODEL INSTRUCTIONS REQUESTED BY THE UNITED STATES

PL 1. State Law Need Not Be Violated for Defendants to Be Found Guilty 

Under the Travel Act

PL 2. “Business Enterprise” Defined

PL 3. “Uses Any Facility in Interstate Commerce” Defined

PL 4. “Facilitate” Defined

PL 5. Specific Intent Defined

PL 6. Proof of Knowledge or Intent

IV. NON-MODEL INSTRUCTIONS REQUESTED BY DEFENDANTS WITH 

THE UNITED STATES’ OBJECTIONS

DF 1. Specific Intent 

DF 2. Defendant’s Good Faith

DF 3. Defense Theory of the Case

DF 4. Conspiracy – Willfulness Defined

DF 5. Business Enterprise Explained

DF 6. Business Enterprise Defined

DF 7. First Amendment Protection—Speech Presumed Protected

DF 8. First Amendment Protection—Speech Presumed Protected

DF 9. First Amendment Protection—Offensive and Sexual Speech

DF 10. First Amendment Protection—Protected Free Speech

DF 11. First Amendment Protection—Ads Presumed Protected

DF 12. First Amendment Protection—Coded Advertisement Language

DF 13. First Amendment Protection—Examples of Legal “Adult” Services

DF 14. First Amendment Protection—Ads Presumed Protected 

DF 15. First Amendment Protection—Government’s Burden to Overcome 

Presumption

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DF 16. First Amendment Protection—Ads Presumed Protected

DF 17. First Amendment Protection—No Requirement to Investigate 

DF 18. First Amendment Protection—No Requirement to Shut Down

DF 19. First Amendment Protection—Website has the Right to Exercise 

Editorial Control and Judgment

DF 20. First Amendment Protection—Government’s Burden of Proof

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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 indictment1simply 

describes the charges the United States brings against each defendant. The indictment is 

not evidence and does not prove anything.

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

unless and until the United States 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 United States must prove to make its case against each 

charged defendant: 

Count 1: Conspiracy

Defendants are charged in Count 1 of the indictment with conspiring to facilitate 

prostitution in violation of the Travel Act under Section 1952(a)(3(A) of Title 18 of the 

United States Code. For each defendant to be found guilty of that charge, the United States 

must prove each of the following elements beyond a reasonable doubt:

First, beginning on or about 2004 and ending on or about April 2018, 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 on or 

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

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

superseding indictment (Doc. 230). 

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Counts 2–51: Travel Act Violations

Defendants are charged in Counts 2–51 of the indictment with violating Section 

1952(a)(3) of Title 18 of the United States Code. For each 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 used mail or any facility in interstate or foreign commerce with 

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

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

violation of state or federal law; 

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 a business enterprise involving prostitution offenses; and

Third, the defendant did something that was a substantial step toward committing 

the crime and that strongly corroborated the defendant’s intent to commit the crime. 

Further, you may find a given defendant guilty of the Travel Act offense 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, the defendant committed the Travel Act offense as charged in Counts 2-51 of 

the indictment;

Second, the defendant who committed the charged Travel Act offense was a 

member of the conspiracy as charged in Count 1 of the indictment;

Third, the defendant who committed the charged Travel Act offense did so in 

furtherance of the charged conspiracy;

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

Act offense charged in Counts 2-51 was committed; and

Fifth, the charged Travel Act 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: Conspiracy to Commit Money Laundering

Defendants are charged in Count 52 of the indictment with money laundering 

conspiracy in violation of Section 1956(h) of Title 18 of the United States Code. For each

defendant to be found guilty of that charge, the United States must prove each of the 

following elements beyond a reasonable doubt:

First, there was an agreement to commit money laundering;

Second, the defendant knew the objective of the agreement;

Third, the defendant joined the agreement with the intent to further its unlawful 

purpose.

Count 53–62: Concealment Money Laundering

Defendants are charged in Counts 53–62 of the indictment with concealment money 

laundering in violation of Section 1956(a)(1)(B) of Title 18 of the United States Code. For 

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

the specific unlawful activity.

Count 63–68: International Promotional Money Laundering 

Defendants are charged in Count 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 

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States Code. For each 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; and

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

specified criminal activity charged in the indictment, that is promoting or facilitating the 

promotion of any business enterprise involving prostitution offenses.

Count 69–99: Transactional Money Laundering

Defendants are charged in Counts 69–99 of the indictment with transactional money 

laundering in violation of Section 1957 of Title 18 of the United States Code. For each

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 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: International Concealment Money Laundering 

Defendants are 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. For each 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 

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through a place outside the United States;

Second, the defendant knew that the money represents 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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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 defendants. The fact that you may find one of the defendants guilty or not guilty 

should not control your verdict as to any other defendants.

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UNITED STATES’ PROPOSED INSTRUCTION 

4.9 DELIBERATE IGNORANCE

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

doubt that:

First, the 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, 

and

Second, the defendant 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. 

DEFENDANTS’ 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). 

The Travel Act and money laundering charges are specific intent crimes; it would 

therefore 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 also United States v. Gibson Specialty 

Co., 507 F.2d 446, 449 (9th Cir. 1974) (evidence that would establish that manufacturers 

of gambling paraphernalia repeatedly sold punchboards and pulltabs to distributors in 

Montana, despite knowing that the mere possession of punchboards and pulltabs violated 

Montana’s gambling laws, was insufficient to establish a violation of the Travel Act, 

because the Travel Act is a specific intent crime, “intent to facilitate a criminal venture is 

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expressly made part of the offense,” and, therefore, “the prosecutor must show that the 

manufacturer in some significant manner associated himself with the purchaser’s criminal 

venture for the purpose of its advancement”). The Ninth Circuit expressly rejected the 

government’s contention that the “presumption that one intends the natural and probable 

consequences of his actions” was sufficient “to establish intent to facilitate criminal 

activity” because it was “as likely as not that a vendor similar to the defendants in this 

proceeding is totally indifferent to the actions of his purchaser.” Id. at 450 fn.8. See also

United States v. Gallo, 782 F.2d 1191, 1194 (4th Cir. 1986) (a “defendant is entitled to an 

instruction as to the elements of the offense charged” and “[o]ne element of a Travel Act 

violation is proof of specific intent to promote ‘unlawful activity.’”); United States v. 

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

Jury Instructions at 18.3 cmt. (“Because it is a specific intent crime, it is reversible error to 

give Instruction 4.8 (Knowingly–Defined) in a money laundering case.”) (citing United 

States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994). Cf. 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 the particular business 

enterprise associated with one or more of the fifty advertisements at issue in Counts 2-51 

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through publishing the ad(s). 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.

Additionally, 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).

Finally, the government’s proposed Jewell instruction also is inconsistent with the 

First Amendment. The government’s proposed instruction would suggest to the jury that 

the government can prosecute the publisher of speech that is presumptively protected by 

the First Amendment because the speech looked like it might be associated with unlawful 

activity or because various parties claim that it was associated with unlawful activity. The 

government, in effect, claims that it can do indirectly through the Travel Act what three 

federal courts previously have held that the government cannot do directly—criminalize 

the publication of third-party speech because it looks like speech associated with criminal 

activity. Backpage.com, LLC v. Hoffman, Case No. 13–cv–03952 (DMC)(JAD),

2013 WL 4502097 (D.N.J. Aug. 20, 2013) (striking down, under First Amendment, state 

statute criminalizing advertisements “that would appear to a reasonable person to be for 

the purpose of engaging in what would be a commercial sex act...with a minor” and 

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rejecting state’s claim that the statute “regulates illegal advertisements...not protected by 

the First Amendment” because, among other things, “[d]escribing criminal conduct as 

anything that is ‘implicit’ is inherently vague, because it means ‘[n]ot directly expressed

[and] existing [only] inferentially’ and ‘fails to clearly mark the boundary between what is 

permissible and impermissible’”); Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805 

(M.D. Tenn. 2013) (striking down, under First Amendment, state statute criminalizing 

advertisements “that would appear to a reasonable person to be for the purpose of engaging 

in what would be a commercial sex act...with a minor” and rejecting state’s claim that the 

statute did not “not implicate First Amendment scrutiny because it criminalize[d] only 

offers to engage in illegal transactions” because, among other things, “the statute as written 

does not ‘criminalize only offers to engage in illegal transactions’ because—as discussed 

above—the statute’s potential reach extends to notices related to legal, consensual activity 

by adults”); Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1268, 1277 (W.D. Wash. 

2012) (striking down, under First Amendment, state statute criminalizing “‘directly or 

indirectly’ caus[ing] content to be published, disseminated or displayed if it contains a 

‘depiction of a minor’ and any ‘explicit or implicit offer’ of sex for ‘something of value’”

because, among other things, the statute was unconstitutionally vague: “‘[A] speaker may 

not be put at complete peril in distinguishing between protected and unprotected speech. 

Otherwise, he could only be certain of avoiding liability by holding his tongue, causing 

him ‘to make only statements which ‘steer far wide [ ] of the unlawful zone.’’). 

The Court should not permit the government to suggest to the jury either that 

defendants had an obligation to stop publishing facially lawful third-party speech on 

Backpage.com because some of that speech might be associated with unlawful activity or 

that the jury can find that defendants intended to violate the law because Backpage.com 

did not stop publishing speech presumptively protected by the First Amendment. Greater 

Philadelphia Chamber of Com. v. City of Philadelphia, 949 F.3d 116, 142 & fn.170 (3d 

Cir. 2020) (rejecting city’s argument that speech “concern[ed] unlawful activity” where 

the speech might relate to unlawful activity because “commercial speech should not lose 

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the protection of the First Amendment simply because a legislature has prohibited one of 

many uses of the regulated speech,” unlike restricting “advertising of the sale of cocaine, 

for example, [which] would present a speech restriction that always and only related to 

illegal activity because there are no other legal uses/purposes behind the sale of cocaine”) 

(emphasis in original); IMDB.com Inc. v. Bacerra, 962 F.3d 1111, 1123 (9th Cir. 2020) 

(“Pittsburgh Press implicates only those instances when the state restricts speech that itself 

proposes an illegal transaction...SAG’s interpretation of Pittsburgh Press would require 

this court to permit the restriction not only of speech that proposes an illegal activity but 

also facially inoffensive speech that a third-party might use to facilitate its own illegal 

conduct. But as the Supreme Court has noted, ‘it would be quite remarkable to hold that 

speech by a law-abiding possessor of information can be suppressed in order to deter

conduct by a non-law-abiding third party.’ Bartnicki v. Vopper, 532 U.S. 514, 529–30, 121

S.Ct. 1753, 149 L.Ed.2d 787 (2001)...Rather than restrict truthful speech, the typical 

‘method of deterring unlawful conduct is to impose an appropriate punishment on the

person who engages in it.’ Bartnicki, 532 U.S. at 529, 121 S.Ct. 1753.”) (emphasis added); 

Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F3d 104, 

114 (2d Cir. 2017) (“[T]he First Amendment offers no protection to speech that proposes 

a commercial transaction if consummation of that transaction would necessarily constitute 

an illegal act. However, if, as here, there are plausible ways to complete a proposed 

transaction lawfully, speech proposing that transaction ‘concerns lawful activity’ and is 

therefore protected commercial speech.”) (emphasis in original); Valle Del Sol Inc. v. 

Whiting, 709 F3d 808, 822 (9th Cir. 2013) (“Central Hudson’s legality requirement [] 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)); Metro Lights, L.L.C. v. City of Los Angeles, 551 F.3d 898, 904 fn.7 (9th

Cir. 2009) (“Central Hudson asks if the commercial speech is ‘related to unlawful activity.’ 

Thus, in the context of advertising, one must ask whether the goods or services the party 

advertises are illegal.”) (emphasis added, citation omitted); Pruett v. Harris Cty. Bail Bond 

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Bd., 499 F.3d 403, 414 (5th Cir. 2007) (the “threshold inquiry” asks whether “the product 

or service spoken about is illegal,” not whether a commercial solicitation might lead to a 

violation of the law); Eimann v. Soldier of Fortune Mag., Inc., 880 F.2d 830, 837-38 (5th 

Cir. 1989) (publishers are not required to reject “any suspicious, ambiguous ad that might 

cause serious harm,” because “in the constitutional arena we have noted that the possibility 

of illegal results does not necessarily strip an ad of its commercial speech protection”); 

Dunagin v. City of Oxford, 718 F.2d 738, 743 (5th Cir. 1983) (en banc) (“The commercial 

speech doctrine would disappear if its protection ceased whenever the advertised product 

might be used illegally.”); Art & Antique Dealers League of Am., Inc. v. Seggos, 394 F. 

Supp. 3d 447, 459 (S.D.N.Y. 2019) (“Although the First Amendment does not protect 

speech proposing a transaction that ‘necessarily constitute[s] an illegal act,’ if ‘there are 

plausible ways to complete a proposed transaction lawfully, speech proposing that 

transaction ‘concerns lawful activity’ and is therefore protected commercial speech.’”); 

Centro De La Comunidad Hispana De Locust Valley v. Town of Oyster Bay, 128 F. Supp. 

3d 597, 615 (E.D.N.Y. 2015) (“When the legality of a proposed commercial transaction 

depends on circumstances outside the content of the speech, the activity is lawful and the 

speech is entitled to protection under Central Hudson.”), aff’d, 868 F.3d 104 (2d Cir. 2017).

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.

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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.

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

4.11 ADVICE OF COUNSEL

One element that the government must prove beyond a reasonable doubt is that each 

defendant had the unlawful intent to violate the Travel Act by promoting or facilitating 

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

of the State in which they were committed. Evidence that a defendant in good faith 

followed the advice of counsel would be inconsistent with such an unlawful intent. 

Unlawful intent has not been proved if a 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.

Supporting Authorities

Ninth Circuit Manual of Model Criminal Jury Instructions 4.11. See United States 

v. Ibarra-Alcarez, 830 F.2d 968, 973 (9th Cir. 1987) (defendant entitled to an advice of 

counsel instruction if it has some foundation in the evidence); United States v. DeFries, 

129 F.3d 1293, 1296 (D.C. Cir. 1997) (holding instruction required when there is even 

minimal foundation in the evidence, and defense applies to advice given about how to 

implement a business plan in a legally acceptable manner).

UNITED STATES’ OBJECTIONS

Defendants aren’t entitled to an advice of counsel defense. As the United States 

articulated in its recent motion (Doc. 1599), there are certain prerequisites that Defendants 

need to establish before an advice of counsel defense may be invoked. Id. at 3 (citing 

United States v. Holmes, No. 5:18-CR-00258-EJD-1, 2021 WL 2044470, at *51 (N.D. Cal. 

May 22, 2021). The most critical piece of an advice of counsel defense is demonstrating 

that the defendants told their attorneys all relevant and material facts. Defendants agree 

with this point. Doc. 1250 at 10. Defendants have failed to do so. To establish this point, 

Defendants need to waive the privilege. Holmes, 2021 WL 2044470, at *51. They haven’t. 

And at this point, more than five years after the case has been charged, they should be 

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precluded from doing so. To permit Defendants to waive the privilege now, would lead to 

a voluminous disclosure that would either (a) unfairly prejudice the United States, or (b) 

have the effect of delaying trial while the United States (and potentially the Court) 

reviewed the communications to determine if Defendants told their attorneys all relevant 

and material facts.

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DEFENDANTS’ PROPOSED INSTRUCTION

5.12 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 were committed or the crime of money laundering. The defendant must be a 

participant and not merely a knowing spectator. If a defendant was present, that 

defendant’s presence may be considered by the jury along with other evidence in the case.

Supporting Authorities

Ninth Circuit Manual of Model Criminal Jury Instructions 5.12, 18.1 (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.”). 

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, 

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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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6.2 INSTRUCTION CHARGE AGAINST DEFENDANT NOT EVIDENCE—

PRESUMPTION OF INNOCENCE—BURDEN OF PROOF

The indictment is not evidence. Defendants have pleaded not guilty to the charges. 

Each defendant is presumed to be innocent unless and until the United States proves the 

defendant guilty beyond a reasonable doubt. In addition, the defendant does not have to 

testify or present any evidence. The defendant does 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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6.5 INSTRUCTION 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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6.13 INSTRUCTION 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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11.1 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 each 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 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 illegal 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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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.

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11.3 MULTIPLE CONSPIRACIES

(Count 1 – Multiple Conspiracies)

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 were 

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 or conspiracies 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 

or conspiracies.

Supporting Authorities

Model Crim. Jury Instr. 9th Cir. 11.3 (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 

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

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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).

Defendants’ instruction also incorrectly states that Count One “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 were committed.” (Emphasis added.) But 

Count One is not limited to a conspiracy to commit a single Travel Act violation, 

committed by a particular business enterprise. Indeed, the indictment alleges that 

Defendants engaged in a conspiracy to promote, or facilitate the promotion of many 

different business enterprises. Doc. 230 at ¶¶ 1, 9, 160-176. Even though the United States 

has alleged that Defendants’ criminal conspiracy involved a vast number of business 

enterprises, the underlying conspiracy remains the same—to violate the Travel Act. The 

evidence at trial will not show that Defendants engaged in any subagreements that are 

“separate” from and “unrelated” to the overall charged conspiracy. Job, 871 F.3d at 868. 

This instruction is not necessary and should be not given. The United States’ conspiracy 

charge contemplates Defendants conspiring with many different business enterprises to 

violate the Travel Act.

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11.3 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 to 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. 11.3 (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 with multiple conspiracies, where there is ‘one overall agreement’ to perform 

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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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11.4 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;

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 the defendant

might get from the conspiracy probably were 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.

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11.6 CONSPIRACY—LIABILITY FOR SUBSTANTIVE OFFENSE (TRAVEL 

ACT) 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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11.6 CONSPIRACY—LIABILITY FOR SUBSTANTIVE OFFENSE 

(CONCEALMENT MONEY LAUNDERING) 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 Concealment Money Laundering 

alleged in that count;

Second, the person was a member of the conspiracy charged in Count 52 of the 

indictment;

Third, the person committed 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 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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11.6 CONSPIRACY—LIABILITY FOR SUBSTANTIVE OFFENSE 

(INTERNATIONAL PROMOTIONAL MONEY LAUNDERING) 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 International Promotional Money 

Laundering alleged in that count;

Second, the person was a member of the conspiracy charged in Count 52 of the 

indictment;

Third, the person committed 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 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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18.1 TRAVEL ACT—INTERSTATE OR FOREIGN TRAVEL IN AID OF 

RACKETEERINGENTERPRISE (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), 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.

Third, the defendant did something that was a substantial step toward committing 

the crime and that strongly corroborated the defendant's intent to commit the crime. Mere 

preparation is not a substantial step toward committing the crime. To constitute a 

substantial step, a defendant's act or actions must demonstrate that the crime will take place 

unless interrupted by independent circumstances. 

Jurors do not need to agree unanimously as to which particular act or actions 

constituted a substantial step toward the commission of a crime.

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 Massachusetts 

occurs when:

(1) A person engaged, agreed to engage, or offered to engage, in sexual conduct 

with another person; and 

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(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 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 Washington 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 Arizona 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.

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“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.

“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 California 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 New York 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 Texas occurs when:

A person knowingly offers or agrees to receive a fee from another to engage in 

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sexual conduct. 

“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 benefit.

“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/her 

conduct or to circumstances surrounding his/her conduct when he/she is aware of the nature 

of his/her conduct or that the circumstances exist. 

Counts 16-17 concern prostitution offenses in violation of the laws of the State of 

Colorado. A prostitution offense occurs in Colorado 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.

Or 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.

“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 

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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 occurs in Ohio when:

A person engaged in sexual activity for hire.

Or when:

A person 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.

Counts 36 and 49 concern prostitution offenses in violation of the laws of the State 

of Nevada. A prostitution offense in Nevada 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 

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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 Michigan 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 concerns prostitution offenses in violation of the laws of the State of 

Louisiana. A prostitution offense in Louisiana 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 concerns prostitution offenses in violation of the laws of the State of 

Florida. A prostitution offense in Florida occurs when:

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, 

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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 concerns prostitution offenses in violation of the laws of the State of 

Alabama. A prostitution offense in Alabama occurs under any of the following:

(1) A person commits an act of prostitution, which is . 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, 

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 

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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 concerns prostitution offenses in violation of the laws of the State of 

Arkansas. A prostitution offense in Arkansas 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.

Count 5 concerns prostitution offenses in violation of the laws of the State of Maine. 

A prostitution offense in Maine 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 

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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.

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“SPECIFIC INTENT” DEFINED

The Travel Act is a specific intent crime and that means for each defendant to be 

found guilty, the United States needs to prove that each defendant specifically intended to 

promote or facilitate the promotion of an activity which the defendant knew to be unlawful 

under state law, specifically, promoting or facilitating the promotion of any business 

enterprise involved in prostitution. 

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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.

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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. 

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UNITED STATES’ PROPOSED INSTRUCTION NO. 4

“FACILITATE” DEFINED

In the context of the Travel Act, the term “facilitate” means “to make easy or less 

difficult.” 

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18.4 LAUNDERING 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 in violation of the laws of the State in which they are 

committed;

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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18.5 TRANSPORTING 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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18.6 TRANSPORTING 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 some form 

of unlawful activity; 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 to avoid a transaction reporting requirement under state or federal law, and

Fourth, the defendant did something that was a substantial step toward committing 

the crime. 

A “substantial step” is conduct that strongly corroborated the defendant’s intent to 

commit the crime. To constitute a substantial step, a defendant’s act or actions must 

unequivocally demonstrate that the crime will take place unless interrupted by independent 

circumstances. Mere preparation is not a substantial step toward committing the crime of 

transporting money for the purposes of laundering.

Jurors do not need to agree unanimously as to which particular act or actions 

constituted a substantial step toward the commission of a crime.

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18.7 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. 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. 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;

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 

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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 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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18.7A MONEY LAUNDERING CONSPIRACY

(18 U.S.C. § 1956(h)) 

Defendants Lacey, Larkin, Spear, and Brunst are charged in Count 52 the indictment 

with money laundering conspiracy in violation of Section 1956(h) of Title 18 of the United 

States Code. For each defendant to be found guilty of that charge, the government must 

prove each of the following elements beyond a reasonable doubt: 

First, there was an agreement to commit money laundering;

Second, the defendant knew the objective of the agreement;

Third, the defendant joined the agreement with the intent to further its unlawful 

purpose.

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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 each defendant 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.

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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. 

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). Here, the parties have already stipulated to the appropriate 

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“specific intent” instruction. Doc. 1311 at 7; Doc. 1432 at 31-36. Because the parties have 

stipulated to specific intent instruction, a “good faith” instruction should not be given.

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.2 

2 See Ninth Circuit Model Criminal Jury Instruction 4.11.

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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.

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FIRST AMENDMENT PROTECTION—SPEECH PRESUMED PROTECTED

All speech is presumptively protected by the First Amendment to the United States 

Constitution. Accordingly, you must presume that speech is protected. Speech relating to 

illegal activity, however, is not protected. Prostitution is illegal in 49 states and most of 

Nevada. Therefore, advertisements or solicitations for prostitution have no protection. The 

government has the burden to establish that the particular expressions of speech at issue 

are not protected by the First Amendment.

You may consider any direct or circumstantial evidence in assessing whether any 

ads in this case related to illegal activity.

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