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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

NICOLE M. ARGENTIERI

Acting 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’ BRIEF IN SUPPORT 

OF OBJECTIONS TO COURT 

RULINGS DURING FERRER 

TESTIMONY (Doc. 1840) 

AND 

DEFENDANT SPEAR’S JOINDER

(Doc. 1841) 

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Defendants’ Brief in Support of Objections to Court Rulings During Ferrer 

Testimony (Doc. 1840) seeks reconsideration of several rulings. LRCiv 7.2(g)(1) states:

The Court will ordinarily deny a motion for reconsideration of an Order 

absent a showing of manifest error or a showing of new facts or legal 

authority that could not have been brought to its attention earlier with 

reasonable diligence. Any such motion shall point out with specificity the 

matters that the movant believes were overlooked or misapprehended by the Court, any new matters being brought to the Court’s attention for the first 

time and the reasons they were not presented earlier, and any specific 

modifications being sought in the Court’s Order. No motion for 

reconsideration of an Order may repeat any oral or written argument made 

by the movant in support of or in opposition to the motion that resulted in the 

Order. Failure to comply with this subsection may be grounds for denial of 

the motion.

See also LRCrim 12.1(a). Defendants’ brief does not show “manifest error” or “new facts 

or legal authority that could not have been brought to [the Court’s] attention earlier with 

reasonable diligence.” LRCiv 7.2(g)(1). For several reasons, Defendants’ brief does not 

warrant reconsideration of any prior rulings.

I. Fed. R. Evid. 106 Applies to Specific Statements—Not Entire Categories of Evidence—and Defendants Cannot Use It to Litigate Their “Good Faith” Defense. 

Fed. R. Evid. 106 provides that “[i]f a party introduces all or part of a writing or 

recorded statement, an adverse party may require the introduction, at that time, of any other 

part—or any other writing or recorded statement—that in fairness ought to be considered 

at the same time.” Rule 106 has a singular purpose: to prevent a party from distorting the 

meaning of a proffered statement by introducing only part of the statement, while omitting 

other part(s) necessary to demonstrate the statement’s truthful meaning. United States v. 

Vallejos, 742 F.3d 902, 905 (9th Cir. 2014) (Rule 106 “codified the common law Rule of 

Completeness, which exists to avert ‘misunderstanding or distortion’ caused by 

introduction of only part of a document”) (quoting Beech Aircraft Corp. v. Rainey, 488 

U.S. 153, 172 (1988)). The Rule does not require introducing “any unedited writing or 

statement merely because an adverse party has introduced an edited version.” Id. If a

complete statement doesn’t “serve to correct a misleading impression” in the edited 

statement, Rule 106 “will not be applied[.]” Id.

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Rainey illustrates the Rule’s purpose. (Cf. Doc. 1840 at 5-6.) In Rainey, a plaintiff 

wasn’t permitted to testify about the central thrust of a letter he had written about the plane 

crash at issue—namely, that the crash was caused by catastrophic power failure. 488 U.S. 

at 170-71. When examined by opposing counsel as an adverse witness, the plaintiff testified

about misleadingly quoted snippets from the letter that discussed other potential causes. 

But when examined by his counsel, the court wouldn’t allow him to be questioned about 

the main topic of his letter. Id. The Supreme Court held that “when one party has made use 

of a portion of a document, such that misunderstanding or distortion can be averted only 

through presentation of another portion, the material required for completeness is ipso facto

relevant and therefore admissible[.]” Id. at 172. 

Courts evaluate application of Rule 106 on a statement-by-statement basis; the Rule 

is not meant to be used in a generalized, broad-brush fashion to determine that entire 

categories of evidence must be introduced whenever an adverse party asserts that such 

evidence is needed to bolster that party’s theory or defense. To that end, the Ninth Circuit 

has consistently held that Rule 106 should not be construed broadly to require the 

admission of an entire, complete writing or statement simply because an edited version is

admitted. Vallejos, 742 F.3d at 905 (the district court correctly explained that “[j]ust 

because somebody is putting in part of a transcript . . . does not mean for the sake of 

completeness, everything comes in”); United States v. Liera-Morales, 759 F.3d 1105, 1111 

(9th Cir. 2014) (affirming exclusion of defendant’s exculpatory statements because the 

admitted portions were neither taken out of context nor misleading: “The district court 

carefully and thoroughly considered the government’s proffered statements from the postarrest interview and correctly determined that those statements were neither misleading nor 

taken out of context.”); United States v. Lopez-Figueroa, 316 F. App’x 548, 549-50 (9th 

Cir. 2008) (affirming the exclusion of defendant’s statements because they weren’t

necessary to explain the admitted portions); United States v. Collicott, 92 F.3d 973, 983 

(9th Cir. 1996) (affirming exclusion of defendant’s statements under Rule 106 because they

did not serve to correct an out-of-context prior statement: “[I]t is often perfectly proper to 

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admit segments of prior testimony without including everything, and adverse parties are 

not entitled to offer additional segments just because they are there and the proponent has 

not offered them.”) (citation omitted); United States v. Dorrell, 758 F.2d 427, 434-35 (9th 

Cir. 1985) (no Rule of Completeness violation where an edited version of a confession did 

not “distort[ ] the meaning of the statement”) (internal quotation marks omitted); United 

States v. Burreson, 643 F.3d 1344, 1349 (9th Cir. 1981) (affirming exclusion of the entirety 

of prior testimony because the portions appellants wished to admit were irrelevant).

Other Circuits have similarly held that Rule 106 “permits introduction only of 

additional material that is relevant and is necessary to qualify, explain, or place into context 

the portion already introduced.” United States v. Pendas-Martinez, 845 F.2d 938, 944 (11th 

Cir. 1988). Further, just because an excluded portion is relevant, does not necessarily mean 

that it is necessary to qualify, explain or place into context. United States v. Branch, 91 

F.3d 699, 728 (5th Cir. 1996) (affirming exclusion of statements as self-serving 

exculpatory statements by the defendant that did not explain or qualify the rest of the 

statement originally offered by the United States), abrogated on other grounds as 

recognized in United States v. Mojica-Baez, 229 F.3d 292, 310 n.12 (1st Cir. 2000); United 

States v. Langford, 647 F.3d 1309, 1331 (11th Cir. 2011) (affirming exclusion of transcript 

of defendant’s testimony in SEC hearing because defendant failed to identify what specific 

portions would qualify, explain or place into context the portions that were introduced by 

the United States). To the extent Defendants contend that any statements offered against 

them are taken out of context, the burden is on them to provide an explanation regarding

what specific additional statements should be introduced so as to “qualify, explain, or place 

into context the portion already introduced.” Branch, 91 F.3d at 728.

Defendants’ reference to the Rule 106 amendment that takes effect on December 1, 

2023 (absent contrary Congressional action) does not change this calculus. (See Doc. 1840 

at 5.) The amended rule states: “If a party introduces all or part of a statement, an adverse 

party may require the introduction, at that time, of any other part—or any other statement—

that in fairness ought to be considered at the same time. The adverse party may do so over 

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a hearsay objection.” Fed. R. Evid. 106 (amended). As the Advisory Committee explains, 

allowing an adverse party to introduce a completing statement “over a hearsay objection” 

is rooted in the Rule’s core purpose of allowing correction of “a misimpression about the 

meaning of a proffered statement[.]” Fed. R. Evid. 106, Advisory Committee Notes. The 

Committee offered this example to illustrate what the amendment is designed to address:

[A]ssume the defendant in a murder case admits that he owned the murder 

weapon, but also simultaneously states that he sold it months before the 

murder. . . . [A]dmitting only the statement of ownership creates a misimpression because it suggests that the defendant implied that he owned 

the weapon at the time of the crime—when that is not what he said.

Fed. R. Evid. 106, Advisory Committee Notes.

Critically, however:

The amendment does not give a green light of admissibility to all excised 

portions of statements. It does not change the basic rule, which applies only to the narrow circumstances in which a party has created a 

misimpression about the statement, and the adverse party proffers a 

statement that in fact corrects the misimpression. The mere fact that a 

statement is probative and contradicts a statement offered by the opponent is 

not enough to justify completion under Rule 106. So, for example, the mere fact that a defendant denies guilt before later admitting it does not, without 

more, mandate the admission of his previous denial. See United States v. 

Williams, 930 F.3d 44 (2d Cir. 2019).

Fed. R. Evid. 106, Advisory Committee Notes (emphasis added). It is not clear that the 

amended language reflects any change in Ninth Circuit law. See, e.g., United States v. 

Lopez, 4 F.4th 706, 715 (9th Cir. 2021) (recognizing that “[p]ortions of a document or 

recording are admissible under Rule 106 notwithstanding the bar on hearsay evidence when 

offered “to correct a misleading impression in the edited statement” introduced by an 

opposing party) (quoting Vallejos, 742 F.3d at 905).

Doc. 1776 provides additional briefing and caselaw (beyond those discussed in Doc. 

1840 at 6) demonstrating why Defendants’ self-serving statements are not admissible under 

Rule 106—particularly where they are not required to clarify a misimpression caused by 

using only part of a statement or document. (See Doc. 1776 at 3-4 (collecting cases).) The 

United States incorporates that briefing and caselaw here.1

1 Defendants can’t distinguish United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996), 

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A. Exhibit 616a (November 2010 Correspondence with BMO)

In September 2023, the parties litigated the redactions reflected in Exhibit 616a—

particularly regarding a portion of the email thread written by James Larkin. (See, e.g., 

Doc. 1776 at 6.) As the United States argued:

The United States redacted this portion because (a) it introduces topics, 

including the Communications Decency Act, that the Court has ruled aren’t 

admissible, and (b) it contains inadmissible self-serving hearsay. (See Doc. 

1643 at 10 (“To date, no party has provided the Court with case precedent 

holding that the CDA immunizes criminal activity like that alleged here. It 

follows that a jury should not be told that the CDA does. To do so is a 

misstatement of law and will lead to jury confusion.”).) 

[¶] Defendants cannot introduce self-serving statements made by former- Defendant Larkin, including misstatements. . . .

(Doc. 1776 at 6.) While Defendants now argue they should have been able to introduce and 

ask the government’s first witness about the Larkin portion of the email chain, Defendants 

do not show “manifest error” or “new facts or legal authority that could not have been 

brought to [the Court’s] attention earlier with reasonable diligence.” LRCiv 7.2(g)(1).

None of the authorities Defendants cite were decided since September 2023. (Cf. Doc. 1840 

at 5-8.) The Court’s findings regarding the CDA remain law of the case—and Defendants 

have failed, as before, to show how that statute immunizes them from federal criminal 

liability. (See, e.g., Doc. 840 at 4-12; Doc. 1643 at 9-10.) 

Defendants’ assertion that Larkin’s blanket statement that Backpage’s operations 

were “clearly lawful” left the jury with an incomplete picture of Defendant Brunst’s mental 

state also fails. (Cf. Doc. 1840 at 8.) The United States introduced Exhibit 616a to show 

that Brunst and others were aware of questions raised by BMO about Backpage.com’s 

activities. Admission of Larkin’s self-serving statements wasn’t necessary to correct any 

misimpression on that score. And Defendants’ apparent argument that they weren’t 

or United States v. Ortega, 203 F.3d 675, 679 (9th Cir. 2000), on the basis that they discuss

statements or transcripts, not emails. (Cf. Doc. 1840 at 6.) Rule 106 applies to all 

“writing[s] and recorded statement[s],” and the amended Rule will “cover all statements,” including unrecorded ones. Fed. R. Evid. 106, Advisory Committee Notes.

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allowed to introduce (or question Mr. Ferrer about) the unredacted exhibit, Exhibit 616, 

isn’t supported by the transcript of the September 27, 2023 proceedings. The daily 

transcripts show that Defendant Brunst’s counsel didn’t seek to move Exhibit 616 into 

evidence, and didn’t seek to ask follow-up questions after the Court permitted preliminary 

yes-or-no questions relating to certain statements that counsel asked about. See 09/27/23 

PM Daily Tr. at 119-121. 

Defendants’ related claim that the state attorneys general (AG) letters “are notice of 

a potential prosecution under state law as to which the CDA was a defense” misses the 

mark. (Doc. 1840 at 8-9.) The United States introduced the letters to show that 

Backpage.com and Defendants were put on notice of the AGs’ observation that prostitution 

ads were rampant on Backpage’s adult-escorts section. Admission of the letters, by 

themselves, did not “open the door” to any discussion by Backpage or its representatives 

about the CDA—a statute that this Court has repeatedly found has no application to this 

federal criminal prosecution. (See, e.g., Doc. 840 at 4-12; Doc. 1643 at 9-10.) 

B. Responses to the State AG Letters

The Court informed Defendants that they could seek to have Backpage’s responses 

to the AG letters admitted “when it’s your turn[.]” (Doc. 1840 at 9; 09/13/23 PM Daily Tr. 

at 74.) But this was not a pre-ruling on the responses’ admissibility—rather, it was an 

invitation for the defense to seek to have the letters admitted. When Defendant Spear’s 

counsel offered Exhibits 487 and 5019 into evidence, the Court sustained the United States’ 

hearsay objections to each exhibit. (09/26/23 PM Daily Tr. at 12-15.) Defense counsel did 

not indicate that the letters weren’t being offered for the truth; nor did counsel identify any 

possible hearsay exceptions. (09/26/23 PM Daily Tr. at 12-15.)

Defendants’ present assertion—that the letters should have come in under Rule 

106—lacks merit. (Cf. Doc. 1840 at 9-10.) For one thing, Defendants fail to identify any 

specific, allegedly misleading statements in the AGs’ letters that would justify admitting 

Backpage’s responses. If Defendants contend that any statements offered against them are 

taken out of context, the burden is on them to provide an explanation regarding what 

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specific additional statements should be introduced so as to “qualify, explain, or place into 

context the portion already introduced.” Branch, 91 F.3d at 728. See also Vallejos, 742 

F.3d at 905 (“[I]f the ‘complete statement [does] not serve to correct a misleading 

impression’ in the edited statement that is created by taking something out of context, the 

Rule of Completeness will not be applied to admit the full statement.”). Yet Defendants 

have not identified any specific statements in the AG letters that are incomplete or 

distorting; nor have they explained how the response letters would correct any specific 

misimpressions in the AG letters. 

Rather, Defendants are trying to use Rule 106 as a vehicle for litigating their stateof-mind defenses. Defendants assert, for example, that the response letters are “critical to 

show Brunst’s state of mind as to Backpage’s position vis-à-vis the AGs and the steps he 

understood Backpage to be taking to address the AG’s concerns.” (Doc. 1840 at 10.) But 

if Brunst wants to establish good faith reliance on lawyer advice or some other state-ofmind defense, he will have to do far more than simply point out that Backpage hired 

counsel to write responses to the AG letters. (See, e.g., Doc. 1643 at 12-13.) For now, the

record contains no testimony that Brunst relied on the responses in any way. (Cf. Doc. 1840 

at 10 (simply asserting, without pointing to any evidence, “Brunst’s reliance on the 

responsive letters”).) Brunst thus has no basis to assert the letters “go to his understanding 

. . . that outside counsel had been retained . . . which provided him comfort that any legal 

issues posed by the AG letters were being sufficiently addressed.” (Doc. 1840 at 10.) 

Defendants’ assertions that the United States or the AGs “put [Backpage’s 

responses] at issue” is likewise insufficient to trigger Rule 106. (Cf. Doc. 1840 at 9-10.) 

These assertions don’t show how any specific statements in the AGs’ letters were false, 

incomplete, or misleading. Nor do they show how admission of the responsive letters 

would “serve to correct,” Vallejos, 742 F.3d at 905, or “qualify, explain, or place into 

context,” any such specific statements. Branch, 91 F.3d at 728. And at least one of the 

letters, Exhibit 487, contains a lengthy discussion of the CDA and prior litigation—topics 

precluded by Doc. 1643 and other rulings. (See, e.g., Doc. 1643 at 8-11.)

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C. Exhibit 836 (July 2016 Wall Street Journal Correspondence)

The redacted version of this July 11, 2016 email chain—Exhibit 836a—consists of 

a request from a Wall Street Journal reporter to a Backpage representative for a response 

from the company about the presence of TER (The Erotic Review) numbers in Backpage 

ads. In the redacted exhibit, the reporter asks: “Hi Liz. We do need to get an answer on the 

TER numbers pretty soon.” (See Ex. 836a.) Defendants’ brief does not show how this 

request for comment, in itself, is misleading in any way, or how the use of an unredacted 

(or less redacted) version of Exhibit 836a would correct any misimpression caused by the 

reporter’s simple request for comment. Defendants seem to want to introduce their theory 

of the case by offering Liz McDougal’s hearsay response to the reporter, packaged as a 

Rule 106 explanation. But Defendants don’t articulate how McDougal’s response would 

(or even could) correct a misleading impression from the reporter’s mere request for 

comment. And Defendants’ suggestion is rife with the kinds of “double hearsay” or 

“hearsay within hearsay” problems that Defendants have raised in other circumstances.

II. Defendants Should Be Barred from Using Carl Ferrer’s Attorney-Client 

Privileged Communications About the California State Prosecution for 

Impeachment in this Federal Criminal Trial.

A. The Proposed Impeachment Material Is Protected by Ferrer’s Attorney- Client Privilege, and Ferrer Hasn’t Waived the Privilege.

During Ferrer’s cross-examination, Brunst’s counsel sought to use a privileged 

attorney-client communication for impeachment purposes, designated GL-CF 36 and 37. 

As described in Doc. 1844, the communication is an email dated May 18, 2017 from Ferrer 

to two of his lawyers at the time, James Grant of Davis Wright Tremaine LLP and Dan

Quigley of Rusing Lopez & Lizardi, PLLC. The subject line of the email is “Comments on 

California – Attorney Client Privileged.” The email contains two attachments, including a 

document containing Ferrer’s comments on the amended Criminal Complaint in the 

California criminal case, People of the State of California v. Carl Ferrer, Michael Lacey, 

and James Larkin, Case No. 16FE019224 (Cal. Super. Ct.). (Doc. 1844 at 2.) When Ferrer 

sent the email, Grant personally represented him in that California criminal case (see Doc.

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1827 at 5), and Mr. Quigley personally represented him in a civil case in this court, 

Sojourner Center v. Backpage.com LLC, et al., Case No. 2:17-cv-00399-GMS. (Doc. 1844 

at 2.) As Ferrer has explained, Quigley appeared for Ferrer personally in that case, and 

Ferrer considered him to be his lawyer. (Doc. 1844 at 2.)

Defendants do not explain how they came into possession of this privileged 

material. Nor do they seriously dispute that it meets all requisites needed to qualify as a 

privileged attorney-client communication. (See Doc. 1840 at 14-16); United States v. 

Christensen, 828 F.3d 763, 802 (9th Cir. 2016). Instead, Defendants assert that Ferrer 

waived the privilege over this communication by signing a Proffer/Interview Agreement 

(the Proffer Agreement) and a Joint Defense Agreement (JDA). (Doc. 1840 at 14-16.) Yet 

neither agreement operated to waive Ferrer’s privilege over this communication—and it 

certainly did not authorize any of Ferrer’s personal attorneys to violate their duties of 

confidentiality and loyalty to him by handing over these materials to Defendants.2

1. This Court Has Already Recognized that Ferrer’s Confidences as 

a Former Client Should Be Preserved. 

First, this is not the first time that the parties have litigated these issues in this case.

In October 2018, Judge Logan carefully reviewed the Proffer Agreement, the Joint Defense 

Agreement and other agreements relating to the United States’ motion to disqualify Grant 

and his law firm, Davis Wright Tremaine (DWT), from representing Defendants Lacey and 

Larkin in this case. (See Doc. 338 at 6, 10.) The motion was based, among other things, on 

Grant’s former representation of Ferrer in the California criminal case. (Doc. 118 at 3.) 

In the Court’s October 12, 2018 Order denying disqualification, Judge Logan 

emphasized “it has been made clear that neither HCM [another law firm that personally 

represented Ferrer] nor DWT will participate as trial counsel in this matter, and both firms 

have stated that neither firm will participate in cross-examining Ferrer.” (Doc. 338 

at 9-10 (emphasis added).) The Court then stated:

2 The United States has standing to address these arguments, as explained in Doc. 1842.

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Moving forward, the Court will rely on the representations of HCM, DWT, and their respective counsel that the firms will continue to 

preserve the confidences of Ferrer as a former client, create ethical walls 

where necessary, refrain from engaging in trial preparation or participating as trial counsel, and only participate in the limited capacity set forth in the pleadings, without an order from the Court.

(Doc. 338 at 10 (emphasis added).) Cross-examining Ferrer on his attorney-client 

communications with DWT is flatly contrary to this directive—and underscores the grave 

ethical and professional concerns posed by the attempted use of such material here. 

2. The Proffer Agreement Did Not Waive Privilege Over Ferrer’s 

Personal Attorney-Client Communications. 

Ferrer’s Proffer Agreement, executed on April 5, 2018, did not waive his personal 

privilege over the May 18, 2017 email and attachments. (Cf. Doc. 1840 at 14-15.)

Defendants point to the agreement’s second paragraph, which states:

Mr. Ferrer voluntarily waives all claims of attorney-client privilege, whether in his personal or official capacity as the Chief Executive Officer of Backpage.com, LLC as to communications with any attorney or law firm 

that represented Backpage.com, or any related entity, where such 

communications concerned or related to Backpage.com or any related entity. This waiver does not apply to Mr. Ferrer’s current attorneys, Nanci Clarence, Jonathan Baum and anyone working on their behalf. Mr. Ferrer voluntarily agrees to provide all documents and other material that may be relevant to the investigation and that are in his possession or control. However, Mr. 

Ferrer shall not disclose any documents or information protected by the 

Joint Defense Agreement in this matter. Mr. Ferrer understands that his 

proffer interview and any benefit he may receive from information he provides to the prosecution does not depend on his waiver of the attorney- client privilege.

(Doc. 174-2 at 2 ¶ 2 (emphasis added).)

The parties intended for the above language to track the approach in a formal 

“Waiver of Attorney Client Privilege” that Ferrer contemporaneously signed (Doc. 174-2 

at 5-6; Doc. 195-3)—that is, it would only waive Backpage’s corporate attorney-client 

privilege but not Ferrer’s personal privilege. (See Doc 193-9 at 8 ¶ 45.) On April 5, 2018, 

Ferrer executed a two-page “Waiver of Attorney Client Privilege.” In the last paragraph of 

that document, Ferrer made clear that he was only waiving Backpage’s corporate attorneyclient privilege and was not waiving his personal attorney-client privilege, either with his 

current attorneys or with any attorneys who previously represented him on an individual 

basis: “I further state that this waiver does not apply to any aspect . . . of my personal 

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attorney-client relationship with attorneys who have represented me in the past or who 

currently represent me in an individual capacity . . . .” (Doc. 195-3 at 3.)

The Proffer Agreement waiver was meant to effectuate the same waiver. (Doc 193-

9 at 8 ¶ 45.) That’s why it only applied to “communications with any attorney or law firm 

that represented Backpage.com, or any related entity.” (Doc. 174-2 at 2 ¶ 2.) It was not 

meant to apply to communications to attorneys and law firms that represented Ferrer in a 

personal capacity. (Doc. 1844 at 2; see also Doc. 192 at 7-8.)

Alternatively, Defendants cannot be heard to argue that any waiver in the Proffer 

Agreement applies to material that they claim is covered by the JDA. The waiver language

in the Proffer Agreement states: “However, Mr. Ferrer shall not disclose any documents or 

information protected by the Joint Defense Agreement in this matter.” (Doc. 174-2 at 2 

¶ 2.) So, if the JDA applies to the impeachment material (it does not, as explained below), 

the Proffer Agreement does not waive privilege over that material. Or, in other words, if 

the Proffer Agreement effectuated a waiver, that waiver did not apply to materials covered 

by the JDA.

3. The JDA Does Not Apply to the Proposed Impeachment Material. 

Defendants assert that, by signing the JDA, Ferrer agreed that if he were to testify 

as a witness in any proceeding “arising from the Case,” then any other signatory may “us[e] 

for defense purposes any information or material contributed by [him] or by his . . . 

attorney. This specifically permits use of contributed information or material in crossexamining the witness[.]” (Doc. 1840 at 15.) As Defendants’ heavily redacted version of 

the JDA attached to their brief shows, Ferrer executed the JDA on June 14, 2017. (Doc. 

1840 at 35.) But Ferrer sent the impeachment material at issue to his personal counsel on 

May 18, 2017—before the JDA existed. (See Doc. 1844 at 2.) And nothing in the publicly 

disclosed, redacted JDA indicates that the May 2017 communication falls within the JDA’s 

temporal scope, or that the JDA applies retroactively in any way. 

Nor does anything show that the May 2017 communication falls within the JDA’s 

substantive scope. According to Defendants, “[t]he JDA defines ‘Case’ as ‘all matters 

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relating to the case of the Arizona federal grand jury investigation and any related 

proceedings.’” (Doc. 1840 at 15 n.4.) Ferrer wrote the May 2017 email in response to the 

amended criminal complaint in the California state court prosecution that had been filed 

against him in Sacramento, California, by the California Department of Justice. (See Doc. 

1844 at 2; Doc. 1827 at 2, 5; see also Doc. 118 at 3.) That criminal complaint alleged 

violations of California state laws; there is no indication that that prosecution charged the 

federal criminal law violations alleged here. (See Doc. 1840 at 11; cf. Doc. 230.)

And, in all events, Judge Logan carefully reviewed the complete, unredacted JDA 

and concluded in no uncertain terms that Ferrer’s former lawyers remain bound by their 

duties to “continue to preserve the confidences of Ferrer as a former client, create ethical 

walls where necessary, refrain from engaging in trial preparation or participating as trial 

counsel, and only participate in the limited capacity set forth in the pleadings”—i.e., as 

“auxiliary counsel” who “will not participate at trial counsel [nor] participate in crossexamining Ferrer.” (Doc. 338 at 9-10.)

Moreover, the Court correctly noted that the attachment to the May 2017 email (GLCF-37) raised serious questions about the nature and authenticity of that document, 

including multiple strikeouts, redlines, alterations, and comments. (See 09/27/23 PM Daily 

Tr. at 55-62.) Combined with the overwhelming indicia of privilege surrounding the 

document, the Court properly precluded Defendants from using it for impeachment. 

Defendants’ brief does not warrant reconsideration.

B. Defendants Have Not Shown that Ferrer’s Statements About the California 

Criminal Complaints Are Prior Inconsistent Statements

Even apart from any waiver issue, Defendants have failed to show that Ferrer’s trial 

testimony is inconsistent with any statement made in the proposed impeachment 

material. A basic rule of evidence provides that prior inconsistent statements may be used 

to impeach the credibility of a witness. But as a preliminary matter, the court must be 

persuaded that the statements are indeed inconsistent. United States v. Hale, 422 U.S. 171, 

176 (1975). The trial judge has a “high degree of flexibility” in deciding how much 

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inconsistency is enough to permit use of a prior statement for impeachment. United States 

v. Higa, 55 F.3d 448, 453 (9th Cir. 1995). If the impeaching party fails to establish a 

threshold inconsistency between the prior statement and the testimony at trial, the prior 

statement lacks significant probative value and therefore must be excluded. Hale, 422 U.S.

at 176.

 Here, Defendants sought to impeach Ferrer’s trial testimony with previous 

statements to his personal attorney in response to charges in California state court. (Doc. 

1840 at 3.) Defendants have identified the following allegedly inconsistent statements: (1) 

when a payment processing contract is filled out and months spent vetting the contract, 

there is no disguising of the transaction; (2) there is no evidence of fraudulent merchant 

bank applications; and (3) a money laundering charge is an attempt to “legislate by 

prosecution.” (Doc. 1840 at 13.) Defendants also claim there are further prior inconsistent 

statements regarding Website Technologies and payment processing. (Doc. 1840 at 13.) 

 But Ferrer did not testify inconsistently with any statements Defendants have 

identified. For example, he didn’t testify that about months being spent applying for or 

vetting payment processing contracts. Nor did he testify that he submitted fraudulent 

merchant bank applications. And he did not testify regarding his personal opinion 

regarding money laundering charges. Allowing the defense to cross-examine Mr. Ferrer on 

topics not discussed by the government in direct examination would be improper 

impeachment by a prior inconsistent statement.

 Further, the proposed areas of cross-examination would be misleading and 

confusing to the jury. The proposed impeachment material contains personal thoughts and 

statements communicated by Ferrer to his personal attorney for the purpose of preparing a 

defense to criminal charges brought by the California Department of Justice. The 

California case is a separate case, involving charges that are separate and different from 

those in this case. Allowing the defense to impeach Ferrer with statements written to defend 

against different crimes in California would result in the statements being taken out of 

context, and would be misleading and confusing to the jury. (Cf. Doc. 1643 at 11 (referring 

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to cases and decisions that do not involve the federal offenses charged here would confuse 

the jury and involve misstatements of law).)

III. The Court Should Reject Defendants’ Efforts to Relitigate Prior Rulings on Advice of Counsel and Prior Litigation.

On pages 16-18 of their brief, Defendants essentially seek to relitigate the Court’s 

motion in limine orders regarding good faith reliance on advice of counsel and references 

to prior litigation. (See Doc. 1643 at 10-13.) First, Defendants claim that because Ferrer’s 

testimony touched on letters or emails written by some attorneys (involving CNN’s 

reporting or state Attorneys General communications), and because Ferrer discussed an 

email where he disagreed with Brunst’s suggestion of hiring counsel to collect monies 

withheld by Bank Frick, Defendants should be allowed “to tell the other half of the story” 

or “further illuminate for the jury the roles these individuals held with respect to 

Backpage[.]” (Doc. 1840 at 16-17.) While Defendants aren’t clear on what they mean, it 

seems they want to use all of this as a springboard for introducing testimony and evidence 

about the attorneys they or Backpage hired, litigation they pursued, and legal advice they 

received. This is clearly an attempt to circumvent or seek reconsideration of the Court’s 

prior orders on advice of counsel and references to prior litigation. Yet Defendants have 

introduced no new authorities or facts sufficient to warrant reconsideration here.

For example, a discussion about not hiring counsel and not initiating litigation 

against Bank Frick comes nowhere close to overcoming the Court’s rulings regarding 

references to prior decisions, cases, and other litigation that Defendants or Backpage 

actually pursued. (See Doc. 1643 at 10-11; see also Doc. 1597.) Defendants’ complaint

that the jury should have heard about some of the specific background/legal credentials of 

Hemu Nigam, an internet safety expert who advised Backpage in approximately 2010-

2011, also falls short. (Doc. 1840 at 17-18.) It’s not clear whether any Defendants knew 

the details of Mr. Nigam’s background, or that Ferrer is an appropriate witness for 

attempting to establish that fact. 

More importantly, Defendants cannot use these examples as a justification for 

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delving into Defendants’ receipt of legal advice regarding Backpage’s operations. Ferrer’s 

testimony hardly established the four required elements for invoking a good faith reliance 

on advice of counsel defense. (See Doc. 1643 at 12-13, citing United States v. McLennan, 

563 F.2d 943, 946 (9th Cir. 1977).) Defendants have cited no new legal authorities or facts

sufficient to satisfy the McLennan test, and they should not be allowed to circumvent those 

requirements based on their assertions here. 

IV. Spear’s Joinder Lacks Merit.

Defendant Spear seeks reconsideration of the Court’s previous ruling finding that 

the Communications Decency Act (CDA) is irrelevant to this case. (Doc. 1643 at 9-10.) 

Similar to Brunst’s argument (supra at 2), Spear’s joinder does not warrant reconsideration.

The Court previously found that “[t]o date, no party has provided this Court with 

case precedent holding that the CDA immunizes criminal activity like that alleged here. It 

follows that a jury should not be told that the CDA does. To do so is a misstatement of law 

and will lead to jury confusion.” (Doc. 1643 at 10.) This Order tracked Judge Brnovich’s 

previous Order on the CDA, when the Court found that the CDA lacked relevance: “This 

case, however, does not concern civil liability, and the CDA has ‘no effect’ on ‘any other 

Federal criminal statute.’ 47 U.S.C. § 230(e)(1).” (Doc. 793 at 13; see also Doc. 840.) 

Defendant Spear posits that Judge Brnovich previously ruled that Defendants could 

raise issues related to the CDA. (Doc. 1841 at 2.) But Defendant Spear selectively cites 

Judge Brnovich’s previous Order. Judge Brnovich ruled—consistent with her Orders at 

Docs. 793 and 840—that Defendants could not raise issues related to the CDA and how it 

affected criminal prosecutions:

Defendants state that they do not intend to elicit a legal conclusion from Professor Goldman regarding whether Section 230 bars the Government 

charges. However, a plain reading of the disclosure shows that they intend to 

elicit testimony that section 230 should bar prosecution. Again, that is a 

policy argument outside the scope of this trial. Testimony related to the 

policy behind Section 230 or how it should work will be precluded.

(Doc. 1081 at 20.) 

Judge Brnovich ruled that a Professor Eric Goldman, who Defendants identified as 

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a potential expert, could testify in a limited manner about Section 230—specifically, only 

that the law “was meant to incentivize internet providers to engage in moderation 

practices.” (Doc. 1081 at 20.) To date, however, Defendants have not attempted to elicit 

testimony about how the CDA “incentivize[d] internet providers to engage in moderation 

practices,” rather they want to argue that the CDA provided a “complete defense” to any 

state criminal charges. (Doc. 1840 at 9.) The Court’s Orders should remain the law of the 

case—the CDA doesn’t apply here. 

Conclusion

Defendants’ requests for the admission of exhibits, impeachment material, and 

testimony discussed in Docs. 1840 and 1841 should be denied. 

Respectfully submitted this 11th day of October, 2023.

 GARY M. RESTAINO United States Attorney District of Arizona

 NICOLE M. ARGENTIERI

Acting 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 October 11, 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/ Daniel Parke

Daniel Parke

Legal Assistant

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