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GARY M. RESTAINO 

United States Attorney 

District of Arizona 

KEVIN M. RAPP (Ariz. Bar No. 014249, kevin.rapp@usdoj.gov) MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov) PETER S. KOZINETS (Ariz. Bar No. 019856, peter.kozinets@usdoj.gov) ANDREW C. STONE (Ariz. Bar No. 026543, andrew.stone@usdoj.gov) Assistant U.S. Attorneys 

40 N. Central Avenue, Suite 1800 

Phoenix, Arizona 85004-4408 

Telephone (602) 514-7500 

DAN G. BOYLE (N.Y. Bar No. 5216825, daniel.boyle2@usdoj.gov) Special Assistant U.S. Attorney 

312 N. Spring Street, Suite 1400 

Los Angeles, CA 90012 

Telephone (213) 894-2426 

KENNETH POLITE 

Assistant Attorney General 

Criminal Division, U.S. Department of Justice 

AUSTIN M. BERRY (Texas Bar No. 24062615, austin.berry2@usdoj.gov) U.S. Department of Justice 

Child Exploitation and Obscenity Section 1301 New York Avenue, NW, 11th Floor 

Washington, D.C. 20005 

Telephone (202) 412-4136 

Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

 v. 

Michael Lacey, et al., 

 Defendants. 

CR-18-422-PHX-DJH 

UNITED STATES’ RESPONSE TO 

DEFENDANTS’ MOTION TO 

DISMISS SUPERSEDING 

INDICTMENT 

[Doc. 1557] 

 

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Preliminary Statement 

 Recycling arguments from several motions to dismiss that the Court rejected, 

Defendants now challenge—for the fourth time—whether the July 2018 Superseding 

Indictment (SI or Doc. 230) states an offense. For several reasons, Defendants’ motion 

should be denied. 

 First, the motion is barred by law of the case. This is Defendants’ tenth motion to 

dismiss. (Docs. 456, 561, 746, 782, 783, 940, 1239, 1250, 1355, 1421, 1557.) Three 

challenged the SI’s sufficiency. (Docs. 561, 746, 783.) In denying those motions, the Court 

repeatedly determined that the SI properly alleges the essential elements of an indictment 

for Travel Act offenses. (Docs. 793, 840, 946.) The Court got it right—it correctly applied 

Ninth Circuit law to the detailed 92-page SI, which amply put Defendants on notice of the 

charges against them. 

 Defendants’ latest motion is not based on new facts or law, but merely repackages 

the same arguments that this Court has rejected. It should be denied for this reason alone. 

(See Doc. 1524 at 4 and n.2.) Defendants’ cited cases don’t hold that the SI must allege 

any extra elements to survive a motion to dismiss. At most, they concern jury instructions 

and trial evidence—issues irrelevant to determining the sufficiency of the SI. 

 Second, Defendants have been recycling the same Woodhull-based arguments for 

the last four years. Those arguments involve a different statute (FOSTA) in a different 

lawsuit, and this Court has already found them irrelevant here. Moreover, the notion that 

the SI is deficient for not alleging aiding-and-abetting is a non-starter, because such 

elements are read into every federal indictment as a matter of law. 

 Third, even if the SI were required, as Defendants claim, to identify specific state 

crimes and Defendants’ intent to aid their commission, the SI does precisely that. The Court 

has found the SI alleges that the ads in the SI were for prostitution, and advertising 

prostitution is illegal throughout the United States. The SI alleges Defendants intended to 

promote, and did promote, their customers’ prostitution ventures by publishing these 

unlawful ads. Nothing more is required. This tenth motion to dismiss should be denied. 

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Factual Background 

 The SI’s factual allegations must be taken as true at this stage. United States v. 

Boren, 278 F.3d 911, 914 (9th Cir. 2002). The Court has summarized them multiple times. 

United States v. Lacey, 423 F. Supp. 3d 748, 752-57, 763-64; Doc. 840 at 1-3; Doc. 946 at 

1-4. In brief, the SI alleges that www.Backpage.com (Backpage) was, until shut down in 

April 2018, notorious for being the internet’s leading source of prostitution ads. (SI¶1.) 

Defendants Michael Lacey and James Larkin co-founded Backpage in 2004 with Carl 

Ferrer.1

 (SI¶¶2, 18-21.) Lacey and Larkin oversaw Backpage’s policies and strategic 

direction from 2004-15. (SI¶2.) Defendant Scott Spear served as Executive Vice President 

of one of Backpage’s parent companies. (SI¶3.) Defendant John Brunst served as 

Backpage’s Chief Financial Officer. (SI¶4.) In 2015, they purported to sell Backpage for 

around $600 million, yet “retained a significant financial interest in” and “significant 

operational control over Backpage following these transactions.” (SI¶¶30-31.) Defendants 

Andrew Padilla and Joye Vaught served as Backpage’s Operations Manager and Assistant 

Operations Manager, respectively. (SI¶¶6-7.)2

 The SI—consisting of 92 pages, 100 counts, and 211 paragraphs—alleges 

Defendants knew the vast majority of the “adult” ads on Backpage were for prostitution, 

and generated a half-billion dollars in prostitution ad revenue. (See SI¶¶ 1-17, 177.) 

Defendants used several strategies to corner the online market for prostitution ads, 

including: (1) aggregation, or creating free ads for—and enlisting business from—

prostitutes who advertised on other websites (SI¶¶9, 34-44); (2) reciprocal link 

partnerships, which involved inserting links or allowing references to websites like The 

Erotic Review that published reviews of the sexual services and prices offered by 

1

 On April 5, 2018, Backpage.com, LLC and four related entities pleaded guilty to money laundering conspiracy (CR18-00465, Docs. 4-1, 8, 10), and Ferrer—Backpage.com, LLC’s CEO—pleaded guilty to conspiracy to violate 18 U.S.C. §§ 1952 (Travel Act) and 1956- 1957 (Money Laundering). (CR18-00464, Doc. 4-1 at 1-2, and Doc. 7-1 at 1, 12-14.) 

2

 Defendant Dan Hyer served as Backpage’s Sales and Marketing Director. (SI¶5.) On August 18, 2018, Hyer pleaded guilty to Count 1 of the SI (18 U.S.C. § 371 Conspiracy to Violate 18 U.S.C. § 1952 (Travel Act). (Doc. 271.) 

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prostitutes advertising on Backpage (SI¶¶10, 34, 45-58); (3) affiliate relationships, through 

which Backpage paid fees to secure bulk prostitution advertising (SI¶¶59-67); and (4) 

moderation, the process of “sanitizing” customers’ ads by removing the most overt 

references to prostitution without blocking the ad itself (SI¶¶11, 34, 68-152). 

 The SI alleges “Backpage derived the overwhelming majority of its revenue” from 

prostitution ads (SI¶¶1, 15, 177), while the rest of the website served as a cover. (SI¶112.) 

As Defendants admitted, Backpage’s “adult” section became a hub for prostitution ads. 

(See, e.g. SI¶1, 9, ¶11 (Defendants “admitted—in internal company documents and during 

private meetings—that, despite [moderation], they knew the overwhelming majority of the 

website’s ads still involved prostitution”); ¶11 (Lacey “bragged about the company’s 

contributions to the prostitution industry”).) 

 The SI contains scores of allegations that law enforcement, news organizations, antitrafficking groups, the U.S. Senate, and others notified Defendants that the vast majority 

of Backpage’s “adult” ads were for prostitution. (See SI¶¶74, 86, 97, 105, 109, 111, 127, 

131, 134, 140-41, 144, 146, 151.) These notifications mirrored Backpage’s internal 

admissions. (See, e.g., SI¶¶11, 36, 54, 59, 68-69, 75, 81, 82, 85, 92, 94-96, 98, 107-108, 

112, 114, 116, 118-119, 128, 132, 138, 139, 143, 145, 148-149.) 

 The SI includes 100 substantive counts. (SI¶¶195-211.) Count 1 alleges Lacey, 

Larkin, Spear, Brunst, Padilla, and Vaught, and others known and unknown, “knowingly 

and intentionally” entered into a conspiracy with others to commit Travel Act offenses and 

that “overt acts were committed in furtherance of the conspiracy,” including those 

described in SI paragraphs 1-194. (SI¶¶195-99.) The count sets forth the statutory elements 

and the time-period when the conspiracy occurred. (SI¶¶195-99.) 

 Counts 2-51 allege Lacey, Larkin, Spear, Brunst, Padilla, and Vaught, and others 

known and unknown, “used . . . any facility in interstate . . . commerce with intent to 

otherwise promote, manage, establish, carry on, and facilitate the promotion, management, 

establishment, and carrying on of an unlawful activity, to wit: prostitution offenses in 

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

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including but not limited to [Ariz. Rev. Stat.] Section 13-3214, and thereafter performed 

and attempted to perform an act that did promote, manage, establish, carry on, and facilitate 

the promotion, management, establishment, and carrying on of the unlawful activity” by 

publishing the 50 ads identified in Counts 2-51. (SI¶201.) 

 The 50 ads fall into three categories. First, 15 of the 50 depict specific victims who 

were repeatedly sold for sex through Backpage ads. (SI Counts 2, 4-5, 12-17, 19-24.) 

Backpage employees coached pimps or victims about the ads or edited them. (E.g., 

SI¶¶ 160, 163-64, 166, 170, 172.) 

 Second, 10 of the 50 ads were posted by P.R., who communicated extensively with 

Ferrer, a co-conspirator. (SI Counts 3, 6-11, 18, 25-26.) Her ads used coded prostitution 

terms such as “50 Red Roses Special” to show per-session pricing of $50. (SI¶ 132; see 

also SI¶¶160-61, 201.) She corresponded with Ferrer about Backpage’s removal of explicit 

photos from her ads; he restored her posting privileges and advised her on how to get her 

ads published on Backpage. (SI¶ 132.) Padilla and Vaught instructed another employee to 

“dig into” her difficulty posting nude pictures. (SI¶ 132.) P.R. posted over a dozen ads from 

2012 to 2015. (SI¶132.) The SI shows Backpage knew since 2010 that P.R. was a prostitute, 

and affirmatively helped her post ads. (SI¶132.) 

 Third, the remaining 25 ads contain “GFE” (shorthand for “girlfriend experience”). 

(SI Counts 27-51.) Defendants, including Spear, Padilla, and Vaught, acknowledged 

“GFE” is a “coded sex act for money” term and one of several “solid sex for money 

terms.”” (SI¶¶148-149.) Several reference reviews on websites like The Erotic Review or 

include per session pricing. (SI Counts 29, 31, 32, 35-36, 47.) 

 By 2015, the credit card companies stopped processing payments for Backpage and 

some banks closed Backpage’s accounts out of concern they were being used for illegal 

purposes. (SI¶15.) Defendants pursued an array of money laundering strategies in response. 

(SI¶¶15-16, 177-194.) Counts 52-100 charge money laundering conspiracy, concealment 

money laundering, and related offenses. (SI¶¶202-211.) 

 

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Argument 

I. The SI Sufficiently Alleges the Essential Elements of a Travel Act Offense—as 

this Court Has Repeatedly Determined. 

A. Notice Pleading Is All that Is Required. 

 An indictment is sufficient if it meets two constitutional requirements: first, it 

contains the elements of the offense charged in sufficient detail to fairly inform the 

defendant of the crime against which he or she must defend; and second, it safeguards the 

defendant from a subsequent prosecution of the same offense. United States v. ResendizPonce, 549 U.S. 102, 108 (2007). While a “complete failure to recite an essential element 

of the charged offense” requires dismissal, United States v. Omer, 395 F.3d 1087, 1088 

(9th Cir. 2005), an indictment that tracks the language of the charged statute “is often 

sufficient,” Resendiz-Ponce, 549 U.S. at 109. If more is required, the indictment need only 

“contain a few basic factual allegations [to] accord[ ] defendants adequate notice of the 

charges.” United States v. Cecil, 608 F.2d 1294, 1296-97 (9th Cir. 1979) (dismissing a 

“rather barren” indictment that provided almost no factual context). “While detailed 

allegations might well have been required under common-law pleading rules . . . they surely 

are not contemplated by Rule 7(c)(1), which provides that an indictment ‘shall be a plain, 

concise, and definite written statement of the essential facts constituting the offense 

charged.’” Resendiz-Ponce, 549 U.S. at 108. 

 The indictment “should be read in its entirety, construed according to common 

sense, and interpreted to include facts which are necessarily implied.” United States. v. 

O’Donnell, 608 F.3d 546, 555 (9th Cir. 2010). At this stage, “[t]he Government need not 

allege its theory of the case or supporting evidence, but only the essential facts necessary 

to apprise a defendant of the crime charged.” United States v. Buckley, 689 F.2d 893, 897 

(9th Cir. 1982). 

 As this Court has repeatedly found, the SI sets forth the statutory language and

provides detailed statements of the facts and circumstances to inform Defendants of the 

charged offenses. It far surpasses the minimal requirements of notice pleading. 

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B. This Court Has Thrice Found that the SI States an Offense, and Those 

Decisions Are Law of the Case.

 The issue presented in Defendants’ motion to dismiss is, essentially, this: does the 

SI properly state an offense under the Travel Act? Relying on their view of arguments 

made in separate civil case (Woodhull) about a different statute (FOSTA), Defendants 

contend that Travel Act charges here must allege “with respect to each charged ad, both 

that someone committed a prostitution offense and that Defendants intended to facilitate 

the commission of that specific prostitution offense.” (Mot. at 9.) Defendants have made 

these arguments before, and the Court has found them insufficient to require dismissal. 

Defendants cite no intervening change in the law, and no new facts about this case, to 

warrant reconsideration. (See Doc. 1524 at 4 (“The Court reminds the parties that it will 

not accept any new motions unless based on new law or facts.”).) 

 This Court has denied three motions to dismiss the SI that raised the same 

arguments. First, in its October 24, 2019 Order denying Defendants’ Motion to Dismiss, 

the Court rejected Defendants’ claims that the SI was deficiently pled under the First 

Amendment and the Travel Act. United States v. Lacey, 423 F. Supp. 3d 748 (D. Ariz. 

2019); Doc. 793. The Court found that “taking the allegations in the SI as true, as the Court 

must, the Government has met its burden of showing the fifty ads [in Counts 2-51] are for 

prostitution.” Lacey, 423 F. Supp. 3d at 757. The Court then correctly stated that, in the 

Ninth Circuit, a Travel Act indictment must allege three essential elements: “(1) interstate 

commerce or use of an interstate facility; (2) with the intent to ‘promote, manage, establish, 

carry on, or facilitate the promotion, management, establishment, or carrying on, of any 

unlawful activity’; and (3) a subsequent overt act in furtherance of that unlawful activity.” 

Lacey, 423 F. Supp. 3d at 765 (citing 18 U.S.C. § 1952(a) and United States v. Tavelman, 

650 F.2d 1133, 1138 (9th Cir. 1981)). 

 The Court found the SI “contains the elements of the offense charged” and “gives 

Defendants enough facts and circumstances to inform the accused of the charged offenses.”

Id. at 766. Also, “[t]he SI contains sufficient factual allegations to implicate all Defendants. 

Additionally, when there is a ‘continuous conspiracy,’ the ‘overt act[s] of one partner may 

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be the act of all without any new agreement specifically directed to that act.’” Id. at 763 

(citing Pinkerton v. United States, 328 U.S. 640, 646-47 (1946)). 

 Second, in its January 8, 2020 Order denying Defendants’ Motion to Dismiss Based 

on Section 230 of the Communications Decency Act or, Alternatively, as Void for 

Vagueness, the Court again recognized that Tavelman sets forth the essential elements for 

a Travel Act offense in an indictment, and found that “[t]he [SI] clears each hurdle. It 

alleges Defendants, with intent to promote or facilitate state law prostitution offenses, 

performed overt acts in furtherance of that unlawful activity.” (Doc. 840 at 10-11.) 

 Third, in its May 4, 2020 Order denying Defendants’ Motion to Dismiss Indictment 

on Failure to Allege the Necessary Elements of the Travel Act, the Court recognized, again, 

that “[t]he Travel Act’s text clearly outlines the requisite elements [of stating an offense].” 

(Doc. 946 at 8.) The Court rejected Defendants’ assertions—repeated here (Mot. at 15)—

“that the SI does not allege any specific ‘unlawful activity’ or ‘business enterprise(s) 

involving prostitution offenses,” and that Defendants “cannot have an ‘intent to promote 

an unlawful activity’ because they do not know what or who the business enterprise 

involving prostitution offenses for each violation is.” (Doc. 946 at 8-9.) The Court found 

that the SI alleges “unlawful activity” for each Travel Act count “with adequate specificity 

to inform Defendants of their charges” by alleging “fifty instances where Defendants 

posted ads on Backpage.com to facilitate specific individual prostitutes or pimps involved 

in the business of prostitution,” and by using language that “almost identically mirrors the 

Travel Act’s text.” (Doc. 946 at 12.) 

 The Court “[found] previously that the SI alleged each Defendant had the requisite 

specific intent to promote an unlawful activity in violation of the Travel Act on fifty 

occasions”; whether they “in fact intended to facilitate prostitution by publishing the ads is 

a matter for the fact-finder, not the Court right now.” (Doc. 946 at 15-16.) 

 C. The Court’s Rulings Are Correct. 

 In the Ninth Circuit, “[a]n indictment under the Travel Act requires allegations of 

each of the three elements of the crime: (1) interstate commerce or use of an interstate 

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facility (2) with intent to promote an unlawful activity and (3) a subsequent overt act in 

furtherance of that unlawful activity.” Tavelman, 650 F.2d at 1138. The statutory language 

of § 1952 “embodies all of the essential elements” of that offense. United States v. Gordon, 

641 F.2d 1281, 1284 (9th Cir. 1981); United States v. Winslow, 962 F.2d 845, 852 (9th Cir. 

1992); United States v. Stafford, 831 F.2d 1479, 1482 (9th Cir. 1987). 

 At least five Circuits share this view. See United States v. Welch, 327 F.3d 1081, 

1090 (10th Cir. 2003); United States v. Childress, 58 F.3d 693, 719 (D.C. Cir. 1995); 

United States v. Monu, 782 F.2d 1209, 1211 (4th Cir. 1986); United States v. Muskovsky, 

863 F.2d 1319, 1326 (7th Cir. 1988); United States v. Palfrey, 499 F. Supp. 2d 34, 43 

(D.D.C. 2007) (the Fifth, Seventh, Eighth, Ninth, and D.C. Circuits have upheld Travel 

Act convictions “based on virtually identical indictments”). 

 The SI contains precisely such “statute-tracking language” in SI¶201. Palfrey, 499 

F. Supp. 2d at 43. If that were not enough, the SI contains pages and pages of allegations 

describing how Defendants built Backpage into the internet’s leading online marketplace 

for prostitution (SI¶¶1-194), alleges that Defendants conspired together to violate the 

Travel Act, and alleges that Defendants committed substantive Travel Act violations by 

publishing each of the enumerated prostitution solicitations in Counts 2-51. (SI¶¶195-

201.) Particularly when viewed through notice pleading standards, the SI’s allegations are 

more than enough to inform Defendants of the charges. 

 Contrary to Defendants’ suggestions, whether an underlying state offense is ever 

accomplished is irrelevant under the Travel Act. Stafford, 831 F.2d at 1482 (“[t]he Travel 

Act does not require the commission of the predicate offense”). Rather, “the gravamen of 

a charge under 18 U.S.C. § 1952 is the violation of federal law (use of an interstate facility 

with intent to violate state or federal law),” and “reference to state law is only necessary to 

identify the type of illegal activity.” Gordon, 641 F.2d at 1284 and n.6 (cleaned up). The 

SI need not even cite the particular state or federal statute on which the “unlawful activity” 

is based. Id. at 1284-85 and n.6. See also Welch, 327 F.3d at 1092 (“The Travel Act 

proscribes not the unlawful activity per se, but the use of interstate facilities with the 

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requisite intent to promote such unlawful activity. An actual violation of [state law] is not 

an element . . . and need not have occurred[.]”); United States v. Montague, 29 F.3d 317, 

322 (7th Cir. 1994) (“Section 1952 does not require that the state crime ever be 

completed.”); Palfrey, 499 F. Supp. 2d at 43 (“To the extent Defendant is arguing that the 

Government must prove each element of the predicate state offenses, it is well-settled that 

the Government bears no such burden. [The Act] requires only that a defendant ‘inten[ded] 

to . . . promote . . . any unlawful activity[.]’”). 

 Defendants’ cases do not establish that more is required to survive a motion to 

dismiss. (Mot. at 12-13.) United States v. Hiatt, 527 F.2d 1048 (9th Cir. 1975), did not 

involve a challenge to the sufficiency of a Travel Act indictment and contains no holding 

that an actual state law violation must be alleged in a notice pleading to survive a motion 

to dismiss. And it predated Tavelman, Gordon, and other Ninth Circuit cases recognizing 

that § 1952’s language states the essential elements of a Travel Act offense. 

 Myers v. Sessions, 904 F.3d 1101 (9th Cir. 2018), addressed a noncitizen’s 

removability under 8 U.S.C. § 1227(a)(2)(B)(i); it likewise contains no discussion of the 

pleading requirements for Travel Act indictments. United States v. Bertman, 686 F.2d 772, 

772-75 (9th Cir. 1982), also didn’t address an indictment’s sufficiency, and it concerned a 

different subsection of the Travel Act, § 1952(b)(2), not involved here. United States v. 

Jones, 909 F.2d 533, 537-39 (D.C. Cir. 1990), considered jury instructions, but did not 

address the elements that must be alleged in a Travel Act indictment. See Palfrey, 499 F. 

Supp. 2d at 44 (distinguishing Jones on this basis, and finding sufficient a Travel Act 

indictment that tracked § 1952’s statutory language). United States v. Goldfarb, 643 F.2d 

422, 426-32 (6th Cir. 1981), and United States v. Kahn, 472 F.2d 272, 277 (2d Cir. 1973), 

were jury instruction cases—and Goldfarb, 643 F.2d at 426, recognizes that “unlawful 

activity” need not be accomplished. 

 Defendants’ reference to overbreadth and vagueness fails to mention that this Court 

previously rejected their as-applied overbreadth and vagueness claims. (See Mot. at 13-

14.) See Lacey, 423 F. Supp. 3d at 765-66; Doc. 840 at 13. If Defendants seek to re-litigate 

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these issues, they cite no new facts or law. United States v. Hansen, 25 F.4th 1103, 1107 

(9th Cir. 2022), cert. granted, 143 S. Ct. 555 (2022) (Mot. at 14), involves the same 

immigration law and reasoning of United States v. Sineneng-Smith, 910 F.3d 461 (9th Cir. 

2018), vacated and remanded, 140 S. Ct. 1575 (2020), which this Court has already found 

“not relevant here.” Lacey, 423 F. Supp. 3d at 765-66. 

D. The SI Alleges State Law Offenses and Defendants’ Intent. 

 Alternatively, even if the SI needed to allege (1) the actual (or attempted) 

commission of a state law violation and (2) intent to accomplish that violation (Mot. at 14-

15), the SI does so—as this Court has already found. (Doc. 946 at 9-14 (“Specific Instances 

of ‘Unlawful Activity’ Are Alleged”); Doc. 946 at 14-16 (“Intent is Adequately Alleged 

for Each Travel Act Count”); Lacey, 423 F. Supp. 3d at 761-64. 

 First, Defendants claim that “no allegation links any of the fifty ads to a specific 

prostitution offense,” but the SI does precisely that. (Mot. at 14.) Defendants allow, as they 

must at this stage, that “the charged ads were really for illegal prostitution transactions.” 

(Mot. at 14.) Arizona law—and similar state laws that apply to Counts 2-51— generally 

define prostitution as “engaging in or agreeing or offering to engage in sexual conduct 

under a fee arrangement with any person for money or any other valuable consideration.” 

A.R.S. § 13-3211(5) (emphasis added); Doc. 1216-3 at 91-100. Under these definitions, 

there is no requirement that any prohibited sex act ever be completed—rather, each charged 

ad is unlawful. (Doc. 776 at 12-13); Coyote Pub., Inc. v. Miller, 598 F.3d 592, 603-04 (9th 

Cir. 2010) (advertising the sale of adults for sex is illegal throughout the U.S. except parts 

of Nevada); Erotic Serv. Provider Legal Ed. and Research Project v. Gascon, 880 F.3d 

450, 459-60 (9th Cir. 2018) (soliciting is illegal). 

 Second, Defendants assert that “the SI does not allege that any Defendant knew 

about these charged ads, much less knew of any exchange for ‘sexual conduct under a fee 

arrangement’ tied to any such ad.” (Mot. at 15.) In Doc. 746, Defendants similarly asserted 

the SI fails to allege any Defendant “had any knowledge of any specific ad relating to a 

business enterprise engaged in prostitution offenses or any role in Backpage.com’s 

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publication of any such ad.” (Doc. 746 at 10-11.) This Court disagreed, and found the SI’s 

intent allegations sufficient. (Doc. 946 at 14-16.) Counts 2-51 allege that each Defendant 

violated the Travel Act by publishing the 50 identified ads with the intent to promote, or 

facilitate the promotion of, unlawful prostitution. (SI¶201.) The SI is replete with 

allegations that Defendants knew the vast majority of their “adult” ads were for prostitution 

and took steps to intentionally facilitate that activity. (Doc. 946 at 15); see also Lacey, 423 

F. Supp. 3d at 763-64 (“[t]he SI contains sufficient factual allegations to implicate all 

Defendants”). And whether a defendant had the requisite criminal intent is a question of 

fact for the jury. Morissette v. United States, 342 U.S. 246, 274 (1952). 

 If any Defendant deliberately ignored the prostitution ads on Backpage’s website, 

knowledge can be inferred from such willful ignorance. 9th Cir. Model Crim. J. Instr. 4.9. 

And even if any Defendant were not personally aware of each ad or involved in that ad’s 

publication process, publication of the ads was reasonably foreseeable given the policies 

Defendants implemented as part of the conspiracy charged in Count 1. 9th Cir. Model 

Crim. J. Instr. 11.6; Lacey, 423 F. Supp. 3d at 763-64 (discussing the Pinkerton doctrine). 

But the use of these jury instructions is for trial; at this stage, all that is required is “a 

minimally adequate description” of the crime charged. Buckley, 689 F.2d at 899. 

 Defendants’ related assertion that the SI “makes no distinction between illegal and 

legal ads” is also an argument for trial. (Mot. at 15.) Defendants can argue to the jury that 

the ads were for legal services like “model[ing] lingerie” or “perform[ing] a striptease.” 

(Cf. Mot. at 15.) But the SI sufficiently alleges that the ads are for prostitution. Lacey, 423 

F. Supp. 3d at 757-58. “[A]t this stage of the proceeding, the Court cannot consider the 

adequacy of the evidence; that job is reserved for the fact finder.” Id. at 758. 

United States v. Superior Growers Supply, Inc., 982 F.2d 173 (6th Cir. 1992), is 

instructive—but not for the reasons Defendants claim. (Cf. Mot. at 15-16.) Growers

affirmed the dismissal of indictment that charged a garden-supply store with conspiracy to 

aid and abet the manufacture of marijuana, because critically missing from the indictment 

was “defendants’ knowledge that their customers were manufacturing marijuana or 

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intended to manufacture marijuana.” Id. at 175. The SI here could not be more different. It 

alleges Defendants knowingly published prostitution solicitations that are illegal 

throughout the United States. (SI¶¶9-11; 33-152, 160-76, 201). Defendants purposefully 

developed their website into a massive online marketplace for prostitution ads. (See SI ¶¶9-

11, 34, 177.) Backpage employees assisted prostitutes and pimps in connection with the 

sale and posting of these unlawful solicitations. (See, e.g., SI¶¶ 59-67, 91, 132, 160, 163, 

164, 166, 170, 172.) Defendants received a drumbeat of notice that Backpage’s “adult” ads 

were overwhelmingly for prostitution; this mirrored their internal admissions. (See 

generally SI¶¶1-194.) Growers has none of this. 

 Defendants’ reference to cases that they cited in their prior unsuccessful motions to 

dismiss also misses the mark. (See Mot. at 16-17.) Those cases largely involved Section 

230 of the Communications Decency Act of 1996, 47 U.S.C. § 230 (CDA). See, e.g., M.A. 

v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 1058 (E.D. Mo. 2011) (Mot. 

at 17) (dismissing civil case against Backpage’s then-parent; “Congress has declared such 

websites to be immune from suits arising from such injuries.”). Yet Section 230 has no 

application to this federal criminal prosecution. Lacey, 423 F. Supp. 3d at 760. 

 Website operators have been prosecuted for promoting or facilitating the sale of 

other types of illegal goods and services. (See Doc. 649, Resp. at 20-21, discussing United 

States v. Ulbricht, 31 F. Supp. 3d 540, 556 (S.D.N.Y. 2014), and the Travel Act 

prosecutions of the operators of the prostitution advertising websites myRedBook.com and 

Rentboy.com.) During grand jury proceedings in this case, Judge Campbell recognized that 

federal law “criminalize[s] the knowing publication of an advertisement for illegal 

prostitution or other illegal activity.” (Doc. 194-1 at 66.) The SI alleges that Defendants 

did just that. 

II. Defendants’ Motion Is Not Based on Any Intervening Change in the Law or Any New Evidence Concerning this Case. 

 Defendants’ motion is not based on any intervening change in governing law, or 

new trial evidence. Instead, Defendants assert the United States’ arguments about a 

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different statute, the Allow States and Victims to Fight Online Sex Trafficking Act 

(FOSTA), asserted in a pending appeal in a different case, Woodhull Freedom Found v. 

United States, D.C. Cir. Case No. 22-5105, have somehow altered the pleading standards 

in this case. (See Mot. at 4-6, 9, 11-12, 19.) Not so. 

 First, this isn’t the first time that Defendants have asserted this. They made the same 

argument in their May 2019 motion to dismiss. (Doc. 561 at 41-42 (in Woodhull, “DOJ 

repeated its position that in a prosecution under the Travel Act, the government must allege 

that the defendant acted to intentionally promote or facilitate a ‘specific, unlawful instance 

of prostitution’”).) The Court rejected these arguments, which “concerned [a] different 

statute[],” “are not binding on this Court, not relevant to this prosecution, and, in any case, 

not inconsistent with the Government’s current theory regarding the Travel Act.” Lacey, 

423 F. Supp. 3d at 763. 

 Defendants raised similar arguments in their next dismissal motion. As here, 

Defendants highlighted the United States’ arguments in Woodhull that likened aspects of 

FOSTA to the Travel Act (Doc. 746 at 12 n.3), and wrote the United States “effectively 

conceded that the Travel Act does not criminalize the promotion of prostitution in general, 

and requires an allegation (and proof) that the defendant knowingly and intentionally 

promoted or facilitated a specific criminal business enterprise.” (Doc. 746 at 14 n.5.) This 

Court was not persuaded that any of this warranted dismissing the SI. (See Doc. 946 at 4-

16.) Defendants’ current take should be rejected for the same reasons. 

 Second, Defendants’ insistence that the Woodhull arguments require the United 

States to allege the elements of aiding-and-abetting in this case falter for an independent 

reason. “Aiding and abetting is implied in every federal indictment for a substantive 

offense”; it need not be separately charged or spelled-out in a federal criminal indictment. 

United States v. Armstrong, 909 F.2d 1238, 1241 (9th Cir. 1990). Even if the elements of 

aiding-and-abetting are required here (they are not), the SI can be read as including them. 

 Third, Defendants set up a false dichotomy between Woodhull and the government’s 

proposed jury instructions here. (See, e.g., Mot. at 4, 10-11, 19 (citing Doc. 1216-1 (jury 

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instructions)).) Assessing the sufficiency of indictment under notice pleading standards is 

a different task than settling jury instructions. See Palfrey, 499 F. Supp. 2d at 44. This 

motion isn’t the proper vehicle for determining how to instruct the jury on the definitions 

of “promote,” “facilitate,” or other Travel Act terms. 

 Fourth, Defendants suggest that the United States’ positions in Woodhull and this 

case are at odds; but a close look at Woodhull shows no inconsistency. The Woodhull

litigation largely involves whether pure speech or advocacy can count as “promot[ing] or 

facilitat[ing] the prostitution of another person” under 18 U.S.C. § 2421(A)(a). That issue 

is absent in this case, which involves prostitution solicitations—offers categorically 

excluded from First Amendment protection. See Lacey, 423 F. Supp. 3d at 760 

(“Prostitution ads are ads for illegal transactions. . . . The First Amendment does not protect 

‘offers to engage in illegal transactions.’”) (citations omitted). 

 Moreover, the United States never argued in Woodhull that a violation of 

§ 2421(A)(a) requires establishing every element of a traditional claim for aiding-andabetting prostitution, including proof of a completed act of prostitution. Rather, the United 

States anchored its arguments in Judge Katsas’s concurrence from an earlier appeal in that 

case, which reversed the district court’s dismissal for lack of standing. Woodhull Freedom 

Found v. United States, 948 F.3d 363 (D.C. Cir. 2020). 

 Addressing the disjunctive terms “promote or facilitate” in 18 U.S.C. § 2421A(a), 

Judge Katsas wrote that “in the criminal law, to ‘promote’ prostitution means to pander”—

an offense that covers “soliciting prospective customers” and that involves speech widely 

recognized as falling outside the First Amendment. Id. at 375. Judge Katsas then discussed 

that “[f]acilitate” may be taken as a synonym for terms like aid, abet, and assist, “limited 

by the background law of aiding and abetting.” Id. While he wrote that FOSTA’s 

requirement of action with an “intent to promote or facilitate” “track[ed] almost verbatim 

the canonical formulation for the offense of aiding and abetting,” he clarified that “[t]his 

is not to suggest that FOSTA requires proof of a specific, completed act of 

prostitution, as would the offense of aiding and abetting prostitution.” Id. (emphasis 

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added). As Judge Katsas’s concurrence reflects, crimes like pandering and solicitation are 

“inchoate crimes—acts looking toward the commission of another crime.” United States v. 

Williams, 553 U.S. 285, 300 (2008). Liability for such inchoate crimes does not rely on the 

completion of the other crime; rather, those crimes are unlawful whether or not the 

proposed illegal conduct ever occurs. Id. 

 In arguing that FOSTA does not cover advocacy, education, or other nontransactional assistance to prostitutes, the United States quoted Judge Katsas’s 

concurrence—including the bolded language above—in its most recent Woodhull brief. 

(See Mot., Ex. A (Woodhull Ans. Br. at 23-24, 29-30).) The United States also highlighted 

at oral argument that “[p]romoting prostitution is its own special legal term of art”—i.e., 

“pandering.” (Mot., Ex. B at 36-37, 40.) But the United States did not argue that a FOSTA 

(or Travel Act) conviction could be supported only by proof of a completed, underlying 

offense and intent to accomplish every element of that offense. 

 The D.C. Circuit has yet to issue a merits decision in Woodhull. Even if that court 

holds the terms “promote or facilitate” in FOSTA import all elements of an aiding-andabetting charge, that’s not identical to the issue before this Court—whether all such 

elements must be alleged to state a Travel Act offense in an indictment. Defendants’ 

Woodhull arguments concern a different issue and a different statute, are not binding on 

this Court, and are not relevant to this prosecution. Lacey, 423 F. Supp. 3d at 763. 

III. Defendants Remaining Arguments Lack Merit. 

 Double Jeopardy. Defendants also assert “double jeopardy” as a basis for dismissal 

(Mot. at 18)—attempting to relitigate still another issue. (Doc. 746 at 5.) When they first 

raised this, the Court found: “After thoroughly considering the parties’ arguments 

presented at oral argument and in their pleadings alongside Rule 7(c)(1), the Travel Act, 

and the above case law, the Court finds the requisite Travel Act elements adequately 

alleged to provide Defendants with notice of the charges against them.” (Doc. 946 at 12.) 

Consistent with that ruling, double jeopardy would prevent the United States from “simply 

slotting in fifty more” Backpage ads into an indictment (Mot. at 18), because Defendants 

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were “indicted for facilitating (via publishing ads) on fifty distinct occasions where 

prostitutes, prostitution-related businesses, or other groups were involved in the business 

of prostitution.” (Doc. 946 at 13.) Further, the Court found that the Travel Act counts 

“enable each Defendant to plead an acquittal or conviction in future similar prosecutions 

and prepare to defend themselves at trial.” (Doc. 946 at 18.) 

 Money Laundering. The Court’s order that the money laundering counts would 

survive regardless of the Travel Act counts is not “clearly erroneous.” (Mot. at 18.) 

Defendants have conceded that “a defendant may be convicted of a money laundering 

offense even if he did not commit the underlying offense.” (Doc. 946 at 17, n.11.) Here, 

Backpage, its former CEO Carl Ferrer, and its former Sales and Marketing Director Dan 

Hyer have pleaded guilty to charges concerning Backpage’s operations. (See nn.1-2, 

supra.) Defendants can therefore be convicted for money laundering without being 

criminally liable for the activity that generated the laundered money. And as the Court 

previously ruled, any argument about Defendants’ knowledge that the money was in fact 

derived from “specified unlawful activities” is premature. (Doc. 946 at 17, n.11.) 

 Grand Jury Instructions. Defendants “assume” the United States “failed to instruct 

the grand jury on the essential elements of aiding and abetting,” which they claim provides 

sufficient reason to dismiss the SI. (Mot. at 19.) They previously raised, and lost, the same 

issue. (Docs. 1171, 1176, 1177, 1179.) 

 In their Motion to Disclose Grand Jury Instruction on Prostitution, they argued that 

because they believed the United States’ proposed jury instructions were deficient, the 

Court could speculate that the legal instructions provided to the grand jury were equally 

deficient. (Doc. 1171 at 3.) The Court denied that motion. (Doc. 1179.) Defendants make 

the same argument here. (Mot. at 19.) As this Court noted when it denied previous 

Defendants’ motion (Doc. 1179), the Court had also already denied an even earlier request 

for disclosure of grand jury transcripts. (Doc. 844 at 9 (“Defendants have identified no 

compelling reason with any sort of particularity worthy of breaching the secrecy of the 

grand jury.”).) These rulings are law of the case. 

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 As before, Defendants fail to show (a) a particularized need to obtain the grand jury 

transcripts and (b) the material sought is necessary to avoid a possible injustice. (Doc. 1179 

at 6.) In their previous motion, “Defendants speculate[d] that the government provided 

insufficient instructions to the grand jury on the Travel Act.” (Doc. 1179 at 6.) Here, 

Defendants “assume that the government failed to instruct the grand jury” properly on the 

Travel Act charges. (Mot. at 19.) The Court’s ruling that “speculation is insufficient to 

show particularized need” applies with equal force here. (Doc. 1179 at 6.) 

 Similarly, this Court previously found “under Ninth Circuit caselaw, ‘Erroneous 

jury instructions do not automatically invalidate an otherwise proper grand jury 

indictment.’” (Doc. 1179 at 7 (internal quotations omitted).) Indeed, “[a]t least one court 

in this Circuit went as far as to say, ‘We are not persuaded that the Constitution imposes 

the additional requirement that the grand jury receive legal instructions.’” (Id. (citing 

United States v. Kenny, 645 F.2d 1323, 1347 (9th Cir. 1981)).) As before, Defendants again

fail to demonstrate that the disclosure of the grand jury instructions could avoid a possible 

injustice and have failed to show a particularized need. (See Doc. 1179 at 5).) 

Conclusion 

 Defendants’ Motion to Dismiss (Doc. 1557) should be denied. 

Respectfully submitted this 28th day of April, 2023.

 GARY M. RESTAINO 

 United States Attorney 

 District of Arizona 

 

 KENNETH POLITE 

 Assistant Attorney General 

 Criminal Division, U.S. Department of Justice 

 s/Peter S. Kozinets 

 KEVIN M. RAPP 

 MARGARET PERLMETER 

 PETER KOZINETS 

 ANDREW STONE 

 DANIEL BOYLE 

 Assistant U.S. Attorneys 

 AUSTIN M. BERRY 

 Trial Attorney 

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CERTIFICATE OF SERVICE 

 I hereby certify that on April 28, 2023, 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. 

 s/ Brian Wolfe

 Brian Wolfe 

 Legal Assistant U.S. Attorney’s Office 

Case 2:18-cr-00422-DJH Document 1577 Filed 04/28/23 Page 19 of 19