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Bruce Feder (AZ Bar No. 004832) 

FEDER LAW OFFICE PA

2930 E. Camelback Road, Suite 160 

Phoenix, Arizona 85016 

Telephone: 602.257.0135 

bf@federlawpa.com 

Attorney/Knapp Counsel for Scott Spear 

Eric W. Kessler, Esq. (AZ Bar No. 009158) 

KESSLER LAW GROUP 

9237 E. Via De Ventura, Suite 230 

Scottsdale, AZ 85258 

Telephone: 480.644.0093 

Eric@kesslerlawgroup.net 

Attorney for Scott Spear 

Gary Lincenberg (CA Bar No. 123058, admitted pro hac vice) 

Gopi Panchapakesan (CA Bar No. 279856, admitted pro hac vice)

BIRD MARELLA BOXER WOLPERT, NESSIM DROOKS LINCENBERG RHOW, PC

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: 310.201.2100

glincenberg@birdmarella.com

gpanchapakesan@birdmarella.com

Attorneys for John Brunst

Paul J. Cambria (NY Bar No. 1430909, admitted pro hac vice)

Erin McCampbell Paris (NY Bar No. 4480166, admitted pro hac vice) 

LIPSITZ GREENE SCHIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

Telephone: 716.849.1333

pcambria@lglaw.com

emccampbell@lglaw.com

Attorneys for Michael Lacey

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

vs.

Scott Spear, et al., 

 

Defendants.

Case No. CR18-00422-PHX-DJH

DEFENDANT SPEAR’S REPLY RE: RULE 

29 MOTION CONCERNING ALL COUNTS 

OF CONVICTION 

(ORAL ARGUMENT REQUESTED)

(Assigned to the Hon. Diane J. Humetewa)

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Defendant Spear, by his attorneys undersigned, hereby files his Reply to his Rule 

29 motion, and requests this Court to enter a judgement of acquittal as to the counts of 

conviction against him.

I. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT 

CONVICTION ON ANY COUNT. 

1. A Review Of The Response Filed By The Government Demonstrates 

Its Failure To Respond To And Therefore Failure To Prove That: 

a. Moderation, aggregation, reciprocal link to The Erotic Review

(‘TER’), publishing super-posters ads are illegal. It is obvious that the moderation of ads 

is not only legal, but encouraged by Section 230 of the CDA, given that this Court initially 

ordered that the defense could present the expert testimony of Eric Goldman to state this 

fact (Doc. 1081); This premise of the government’s case constituted legal behavior unless 

proven otherwise.

b. any of the ads contained in Counts 2-18 were the product of 

moderation, aggregation, linked or otherwise connected to TER, or an ad from a superposter. To the contrary, the testimony was that as of the time Elizabeth MacDougal was 

hired in spring 2012, moderation of ads stopped, and the aggregation, reciprocal links to 

TER, ads submitted by super-posters, and all of the other so called “marketing 

techniques” claimed by the government had been terminated. In Counts 2-18, there was 

no demonstration any of these practices affected these ads in any way. 

c. As of 1/1/2013, Mr. Spear was not a supervisor of the ads and/or a 

participant in the ads that appeared in Backpage given that Elizabeth McDougal’s 

employment. This includes Counts 2-18, and any of the ads after 1/1/2013. 

d. Mr. Spear never saw any of the ads contained in Counts 2-18 or any 

other ad after 1/1/2013 or had any contact with any advertiser. Interestingly, the email 

correspondence between the email address carl@backpage.com and Pamela Robinson 

that were admitted as exhibits were dated before 1/1/2013 (See Exhibits 162-165, and 

168). 

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The Pamela Robinson ads listed in the indictment were Exhibits 504-513, and were dated 

substantially after any alleged communications between Carl@backpage.com and Ms. 

Robinson. There was no correspondence or other proof offered or admitted that the 

Pamela Robinson ads listed in the Counts were seen by anyone, including Mr. Spear, 

Mr. Ferrer. or Mr. Hyer. 

e. any evidence that Mr. Ferrer, Mr. Hyer, or any defendant had any 

discussion with one another to conspire to commit or actually commit Travel Act and 

Money Laundering violations. A review of the exhibits and trial testimony shows an 

absence of any such discussion. Given the willingness of Mr. Ferrer and Mr. Hyer to 

testify to the minutae of Backpage operations from 2004 to 2018, it is a noticeable 

omission that the prosecutors failed to elicit or present any such testimony or exhibits 

demonstrating this basic element. 

2. The Elements Of The Travel Act Were Not Satisfied. 

There also was no evidence to satisfy the elements of the Travel Act, as it pertains 

to Counts 2-18. Specifically, in this Court’s Travel Act Jury Instruction (Doc. 1998, pg. 

30) there must have been evidence that the defendant violated both the first and second 

elements. Given the acquittals of defendants Brunst, Padilla and Vaught on Counts 2018, 

and Defendant Lacey’s hung jury on these counts, the government must have 

presumably proven an action by Mr. Spear that he both “used a facility in interstate 

commerce with specific intent to promote or facilitate the promotion of any business 

enterprise involving prostitution offenses...” , and that “...after doing so, the defendant 

performed an act that did promote or facilitate the promotion, of any business enterprise

involving prostitution offenses, specifically, by publishing on backpage.com, the ads 

listed in Counts 2-18, of the indictment” (Emphasis added). There was no act, 

communication, or any other evidence indicating Mr. Spear, distinct from the other 

defendants satisfied either of these elements. As a matter of fact, there appears to be no 

acts, communications, or other evidence that was demonstrated to show that even Mr. 

Ferrer and/or Mr. Hyer violated the statute. 

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3. Strict Scrutiny Of The Evidence Against Mr. Spear. 

Given the First Amendment backdrop of the superseding indictment and the 

counts of conviction, this Court must focus on the specific acts of Mr. Spear to determine 

the sufficiency of the evidence, as opposed to the actions of others. (See, Hellman v. 

United States, 298 F.2d 810, 813 (9th Cir. 1962); United States v. Spock, 416 F.2d. 165, 

173, United States v. Montour, 944 F.2d 1019, 1024 (2nd Cir. 1991) (When the ultimate 

objective of a group, of which the defendant is a member, is legal, but the means chosen 

to accomplish that end involved both legal and illegal activities, a court will apply 

strictissimi juris to ensure that the defendant was personally involved with the illegal 

aspects of the group activity.), and United States v. McKee, 506 F.3d 225 (3rd Cir. 2006). 

II. THE FIRST AMENDMENT REQUIRES ACQUITTAL. 

This Court’s final jury instructions recognized that the First Amendment protected 

Backpage’s publication of adult advertisements unless “an ad propose[d] an illegal 

transaction.” Doc. 1998 at 48:3-7. Spear does not seek to “relitigate” the instruction, 

but rather he challenges whether the government’s evidence cleared that legal hurdle and 

he contends that it failed to do so, as a matter of law.1

The government argued to the jury, and now argues to the Court, that the jury could 

determine that an otherwise facially lawful ad for escort services “proposed an illegal 

transaction” if it contained so-called “code words” that might sometimes be associated 

with prostitution. That position is inconsistent with the United States Supreme Court’s 

holding in Pittsburgh Press,

2 with decisions of the Ninth Circuit construing Pittsburgh 

1

 Judge Brnovich’s denial of Defendants’ motion to dismiss on First Amendment grounds has no 

bearing on Spear’s Rule 29 motion. Doc. 793. That ruling only addressed whether the indictment was 

sufficient and did not address the sufficiency of the government’s evidence. “[T]he Court takes the 

allegations on their face and does not consider the adequacy of the evidence when reviewing whether 

an indictment is sufficient.” Id. at 12:27-28. “The proper forum for challenging whether there is 

adequate evidence is at trial.” Id. at 3:3-4. 

2

 Pitt. Press Co. v. Pitt. Comm. on Human Relations, 413 U.S. 376, 377-80 (1973). 

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Press,

3 with decisions of the Second and Third Circuits construing Pittsburgh Press,4

and with the holdings of the United States District Courts in Washington and New Jersey 

in McKenna and Hoffmann.

5

 The government seeks to distinguish these cases but raises 

either spurious arguments or distinctions without a difference. 

In Pittsburgh Press, the Supreme Court held that the publication of classified ads 

proposing facially unlawful transactions (employment ads expressing unlawful sex 

preferences) were not protected by the First Amendment. The government argues that 

Pittsburgh Press created a sweeping exception to the First Amendment but the Supreme 

Court narrowly cabined its decision to employment ads expressly proposing unlawful 

transactions, whether directly through the text of an individual ad or indirectly through 

the placement of an otherwise facially lawful ad in a category expressly proposing an 

unlawful sex preference (e.g., “Male Help Wanted”):

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...We hold only that the 

Commission’s modified order, narrowly drawn to prohibit placement in 

sex-designated columns of advertisements for nonexempt job 

opportunities, does not infringe the First Amendment rights of 

Pittsburgh Press.

Id. at 388. In subsequently construing Pittsburgh Press, the Ninth, Second, and Third 

Circuits all have narrowly construed the First Amendment exception for “speech 

proposing an illegal transaction” recognized in Pittsburgh Press. 

Each of Spear’s Travel Act convictions is premised on an ad for escort services, 

3

 E.g., IMDb.com Inc. v. Bacerra, 962 F.3d 1111, 1123 (9th Cir. 2020) (holding state statute restricting 

speech unconstitutional); Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 821 (9th Cir. 2013) (holding state 

statute restricting commercial speech unconstitutional). 

4

 Greater Phila. Chamber of Comm. v. City of Phila., 949 F.3d 116, 142 & n.170 (3d Cir. 2020); Centro 

de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 114 (2d Cir. 2017). 5

 Backpage.com, LLC v. Hoffman, 2013 WL 4502097 (D.N.J. Aug. 20, 2013); Backpage.com, LLC v. 

McKenna, 881 F. Supp. 2d 1262, 1279 (W.D. Wash. 2012). 

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which can encompass a wide range of lawful activities, including sexual services such 

as stripping and autoeroticism that stop short of prostitution. There can be no dispute 

that escort services are lawful and that the First Amendment protects both the posting of 

escort ads and the publication of escort ads, notwithstanding the more limited nature of 

the First Amendment’s protections for commercial speech. Spear’s convictions were not 

predicated on ads expressly proposing sex for money transactions nor on the publication 

of ads in a facially unlawful category like “Prostitution Services,” which puts this case 

outside of the narrow First Amendment exception recognized in Pittsburgh Press. 

The government argues that the ads underlying Counts 2-18 satisfy the requirements 

of Pittsburgh Press’ exception for speech proposing an illegal transaction because they 

contained “coded prostitution transaction terms,” such as “clean,” “discrete,” 

“hygienic,” “real pics,” “roses,” “donation,” “independent,” “New in Town,” and “in 

call.” Doc. 2021 at 10:16-27. But none of these so-called “code words” are codes for a 

sex act or for prostitution itself, none of the ads underlying the convictions contained 

any codes for a sex act (with consideration flowing from the ad being placed in the escort 

services category) or for prostitution itself, and none of those terms causes any of the 

ads to propose an illegal act. Rather, the so-called “code words” are just words 

associated with prostitution or sometimes used by people engaging in prostitution 

offenses. Regardless of whether the use of such terms may have increased the likelihood 

that an escort ad was associated with prostitution, an escort ad using one of those terms 

cannot be said to propose a sex for money transaction. 

The government also argues that the ads underlying Spear’s convictions proposed 

illegal transactions: because one ad used text, rather than numbers, to provide a phone 

number; because Backpage deleted saucy pictures from some of the ads (none of which 

were sex act pictures); because the ads were on Backpage (which the government says 

“indicated the ads were for prostitution” (Doc. 2021 at 10:8-11)); and because many of 

the ads expressly disclaimed being solicitations of prostitution (which the government 

claims was “proof that the ads offered illegal services” (id. at 11:16-17)). 

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Those claims all are absurd and amount to little more than the government saying that 

the ads proposed illegal transactions because the government says they did.6

 

The difference between an ad proposing prostitution and an ad merely being 

associated with prostitution (or, more accurately, looking like it might be associated with 

prostitution) matters because the First Amendment protects the publication of escort ads 

that might be associated with prostitution or that might result in prostitution, provided 

the ads do not propose unlawful sex for money transactions.7

 Valle del Sol, 709 F.3d at 

821 (“Central Hudson’s legality requirement...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.”). 

In Valle del Sol, the State of Arizona defended a state statute proscribing commercial 

speech on the grounds that the speech was related to unlawful activity. 709 F.3d at 821. 

The Ninth Circuit distinguished the facts in Valle del Sol from Pittsburgh Press, saying 

that the speech at issue in Pittsburgh Press “proposed an illegal transaction,” whereas 

the Arizona statute at issue proposed to “regulate speech proposing a legal transaction 

where the speech is conducted in an unlawful manner.” Id. at 822. The Court then held 

that “[n]othing in Pittsburgh Press ... suggests that we should expand our inquiry 

beyond whether the affected speech proposes a lawful transaction to whether the affected 

speech is conducted in a lawful manner.” Id.; accord IMDB, 962 F.3d 1122 (rejecting 

an interpretation of Pittsburgh Pressthat would “permit the restriction not only of speech 

6

 The government also claims that Ferrer “knew” that Pamela Robinson (who was associated with the 

ads in Counts 3, 6-11, and 18) was a prostitute, but there is no evidence in the record that Pamela 

Robinson in fact was a prostitute or that Ferrer “knew” that to be the case. To the contrary, Ferrer 

merely testified that, based solely on looking the ads and emails, he was of the opinion that Robinson 

was a prostitute. 9/14/23 Tr. at 80:4-6 (Q. What is your—what is your opinion based upon the e-mail 

exchanges and postings? A. That Pamela Robinson was engaged in prostitution.”). Moreover, the 

government never established that Ferrer reached that opinion before he began cooperating with the 

government. And, critically, the government never established that Ferrer shared that opinion with 

Spear or any other defendant before doing so during his testimony. 7

 The government does not contend that any defendant ever saw any of the charged ads or had actual 

knowledge of the ads, the persons posting them, or the activities of those persons, so there is no path to 

a First Amendment exception based on actual knowledge by a defendant. The same also is true for the 

cooperators, which forecloses Pinkerton liability (as discussed at length in the motion for a new trial, 

Ferrer was not a party to the emails with Pamela Robinson). 

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that proposes an illegal activity but also facially inoffensive speech that a third-party 

might use to facilitate its own illegal conduct”).8

 At trial, the government’s evidence 

largely focused on establishing that adult ads on Backpage.com resulted in prostitution 

offenses and the government now seeks to bootstrap that evidence into a finding that 

facially lawful ads proposed illegal transactions, but the government merely invites the 

Court to do what the Ninth Circuit hasinstructed it must not—expand its inquiry beyond 

whether the charged ads proposed lawful transactions. 

The government dismisses McKenna and Hoffman as “Section 230” cases, while 

utterly ignoring the fact that each decision expressly rejected the government’s position 

regarding coded speech and implicit offers of sex for money on First Amendment 

grounds. McKenna, 881 F. Supp. 2d at 1279; Hoffman, 2013 WL 4502097 at *10. 

Likewise, in dismissing the holding of the Second Circuit construing the “speech 

proposing an illegal transaction” from Pittsburgh Press, the government claims the case 

said, “nothing about coded solicitations of illegal transactions” (Doc. 2021 at 13:8-10), 

but the holding forecloses the government’s argument on coded speech. Centro de la 

Comunidad, 868 F.3d at 114 (narrowly construing Pittsburgh Press to apply only if the 

consummation of the transaction proposed “would necessarily constitute an illegal act”). 

The government relies on United States v. White, 610 F.3d 956, 960 (7th Cir. 2010), 

but that case is readily distinguished, as it involved both first party speech

(pimp/prostitute) and the solicitation—neither of which are at issue here. The 

government cites no authority for the proposition that a publisher can be prosecuted for 

publishing facially lawful speech that uses coded language to propose an illegal 

transaction—because there is none. A prostitute or pimp can be prosecuted for using a 

facially lawful ad to facilitate their own prostitution crimes, since they would have actual 

knowledge that the ad was intended to promote their criminal activity, but that does not 

8

 The government argues that neither of these decisions involved coded speech, which is true, but also 

irrelevant. Spear cited the cases for their holdings narrowly construing the Pittsburgh Press exception 

and rejecting the expansive reading of that exception proposed by the government. The differences in 

the underlying facts in each case has no bearing on the holdings construing Pittsburgh Press nor on the 

strictures of the First Amendment when the government seeks to restrict or punish speech. 

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mean that a third-party publisher of the same ad is not protected by the First Amendment. 

McKenna, 881 F. Supp. 2d at 1279, 1281 (“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? ... 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.”).

Finally, to the extent the government’s response might be read to suggest that the ads 

associated with Counts 2-18 initially proposed illegal transactions but that 

Backpage.com moderators altered the text of the ads so they no longer proposed illegal 

transactions, there was absolutely no evidence at trial to support that suggestion. 

Moreover, Ferrer admitted that Backpage.com moderators were not permitted to edit the 

text of ads after the fall of 2012, well before any of the charged ads were published. 

RESPECTFULLY SUBMITTED this 27th day of December, 2023. 

FEDER LAW OFFICE, P.A. 

s/ Bruce Feder 

Bruce Feder 

Knapp Counsel for Scott Spear

KESSLER LAW GROUP 

s/ Eric Kessler 

Eric Kessler 

Attorneys for Scott Spear 

 

BIRD MARELLA BOXER WOLPERT, 

NESSIM DROOKS LINCENBERG RHOW, PC 

s/ Gary Lincenberg 

Gary Lincenberg 

Attorneys for Jed Brunst 

LIPSITZ GREENE SCHIME CAMBRIA, LLP

s/ Paul Cambria 

Paul Cambria 

Attorneys for Michael Lacey 

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CERTIFICATE OF SERVICE 

I hereby certify that on January 16, 2024, I electronically transmitted the attached 

document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice 

of Electronic Filing to the CM/ECF registrants who have entered their appearance as counsel 

of record. 

Clerk of the Court 

United States District Court 

Sandra Day O’Connor U.S. Courthouse 

401 W. Washington Street 

Phoenix, AZ 85003 

Efiling: https://ecf.azd.uscourts.gov/cgi-bin/login.pl

THE HONORABLE DIANE J. HUMETEWA 

United States District Court 

Email: Humetewa_chambers@azd.uscourts.gov 

Andrew Stone Andrew.Stone@usdoj.gov

Daniel Boyle Daniel.Boyle2@usdoj.gov

Peter Kozinets Peter.Kozinets@usdoj.gov

Joseph Bozdech Joseph.Bozdech@usdoj.gov

Margaret Perlmeter Margaret.Perlmeter@usdoj.gov

Kevin Rapp Kevin.Rapp@usdoj.gov

Austin Berry berry2.austin@usdoj.gov 

Attorneys for United States of America 

By: /s/ M. Evans 

Case 2:18-cr-00422-DJH Document 2030 Filed 01/16/24 Page 10 of 10