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DAVID EISENBERG 

DAVID EISENBERG, P.L.C.

3550 N. Central Avenue, Ste. 1155 

Phoenix, Arizona 85012 

Arizona State Bar No. 017218 

Telephone: 602.237.5076 

Email: david@deisenbergplc.com

Attorney for Defendant Andrew Padilla 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

United States of America,

 Plaintiff, 

vs.

Michael Lacey, et al., 

 Defendants. 

NO. CR-18-00422-PHX-DJH

DEFENDANTS’ RESPONSE TO 

GOVERNMENT’S MOTION IN 

LIMINE TO PRECLUDE DEFENSE 

FROM ARGUING LEGALITY OF ADS 

(Doc. 1592) 

(Oral argument requested) 

Case 2:18-cr-00422-DJH Document 1612 Filed 06/15/23 Page 1 of 7
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 The Court should deny the government’s request to preclude Defendants from 

characterizing “any advertisement, charged or uncharged” as being legal or illegal, or eliciting 

such testimony from witnesses, for several reasons. First, the government is wrong that the 

jury will never assess whether any of the charged ads are “legal” or “illegal,” as the jury will 

need to determine whether each of the charged ads, on its face, proposes a transaction that 

necessarily would constitute an illegal act. The government’s characterization of the issues to 

be decided by the jury ignores the fact that the government cannot prosecute Defendants, 

under the Travel Act or otherwise, for publishing the charged ads if the publication of those 

ads was protected by the First Amendment. The Travel Act is a statute of general application 

that does not directly target speech, but that does not mean that the government’s proposed 

application of the statute escapes First Amendment scrutiny. To the contrary, the government: 

may not harness generally applicable laws to abridge speech 

without first ensuring the First Amendment would allow 

it....Laws cast in broad terms can restrict speech as much as laws 

that single it out....General or not, the First Amendment applies 

when [a law] is used to silence protected speech. 

People for the Ethical Treatment of Animals, Inc. v. N. Carolina Farm Bureau Fed’n, Inc., 60 F.4th 815, 

827-28 (4th Cir. 2023). Further, the question of whether the First Amendment protected 

Backpage’s publication of each charged ad will not depend on whether the government can 

prove an ad was “associated with unlawful activity,” but whether it can prove the ad on its 

face “propose[d] an illegal transaction.” Valle Del Sol Inc. v. Whiting, 709 F3d 808, 822 (9th Cir 

2013). And that means proving the “consummation of th[e] transaction” proposed in an ad 

“would necessarily constitute an illegal act.” Centro de la Comunidad Hispana de Locust Valley v. 

Town of Oyster Bay, 868 F.3d 104, 114 (2d Cir. 2017) (emphasis in original). For this reason, the 

government’s discussion of ads for firearms and billiards widely misses the mark, as whether 

such ads would be protected by the First Amendment turns not on the definition of a machine 

gun or whether a billiards ad is “indicative of illegal activity,” but whether the ads proposed 

necessarily unlawful transactions—and they plainly did not.1

1

 Additionally, as the government contends Defendants violated the Travel Act, the 

government must prove, for each charged ad, that each Defendant specifically intended to 

Case 2:18-cr-00422-DJH Document 1612 Filed 06/15/23 Page 2 of 7
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 Second, in its indictment, throughout its opening statement, and through testimony 

elicited from its witnesses at the first trial, the government repeatedly characterized ads on 

Backpage.com as being “legal” or “illegal,” whether directly or indirectly. During its opening 

statement, the government claimed: 

“How could these defendants create and run this website for nearly 14 years knowing 

that they were facilitating this illegal conduct?” Doc. 1341 at 6:3-5. 

“[B]ecause of the vast array of prostitution ads on Backpage, individuals could pay 

extra to have their ads moved to the top.” Id. at 9:11-13. 

“Backpage generated a large amount of their revenue based on charging these 

individuals to post their prostitution ads...” Id. at 9:24-10:1. 

“You looked at the vast amount of prostitution ads in the Sacramento escort section 

of Backpage.” Id. at 11:4-6. 

“[A] moderator was [] a former Backpage employee whose job was supposed to be 

preventing illegal ads, preventing prostitution ads from being posted on 

Backpage.com...” Id. at 20:20-23. 

“But while they were asserting to NCMEC and others that they were doing all they 

could to prevent the illegal ads from being posted on the website, evidence will show 

that these defendants’ main concern was making money.” Id. at 30:9-12. 

“And the evidence will show that these defendants...sent CNN a quote that Backpage 

is steadfast in its opposition of its website being used for criminal activity, and they 

also included...safety measures that they had implemented to ensure or attempt to 

prevent illegal ads from being posted on the website...” Id. at 31:16-21. 

“[T]he ads on Backpage.com were nothing less than prostitution ads. And knowing 

this, they took steps to facilitate the prostitution crimes being committed by folks 

who were posting these ads on the website...” Id. at 40:19-24. 

promote or facilitate the “business enterprise” allegedly associated with the ad and allegedly 

involved in “prostitution offenses in violation of the laws of the State in which they [we]re 

committed.” 18. U.S.C. § 1952(b). As the government does not allege, nor could it prove, 

that any Defendant knew about any charged ad, or knew anything about the persons 

associated with any ad or their activities, the jury will have only the ads themselves to assess, 

so whether the ads propose facially lawful or facially unlawful transactions plainly will be 

relevant. See IMDB.com Inc. v. Becerra, 962 F.3d 1111, 1123 (9th Cir. 2020) (rejecting 

interpretation of “Pittsburgh Press [that] would require this court to permit the restriction not 

only of speech that proposes an illegal activity but also facially inoffensive speech that a 

third-party might use to facilitate its own illegal conduct...[N]othing in the First 

Amendment nor our precedent permits th[at] drastic step...”). 

Case 2:18-cr-00422-DJH Document 1612 Filed 06/15/23 Page 3 of 7
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Calling ads “prostitution ads” is, of course, tantamount to calling them “illegal ads.” 

Moreover, during the examination of its first witness, Special Agent Supervisor Fichtner, the 

government and Fichtner continued to characterize Backpage.com ads as legal or illegal: 

Q. And what did you do next? A. Then I placed a phone call to Carl Ferrer... And he 

said he also identified another advertisement that was linked to that escort ad, but it 

didn’t appear to be illegal because it was a sofa for sale. Doc. 1334. at 46:2-3; 

46:20-22. 

Q. Did you again raise the issue of prostitution ads with her during your call? A. I 

did. I pointed out that, you know, a number of, gosh, almost all these advertisements 

just looked like blatant prostitution ads. Id. at 48:23-49:2. 

Q. [] Did Ms. McDougall ever call you to alert you to any prostitution ads on 

Backpage? 

A. She did not. Id. at 49:12-14. 

Q. Did anybody from Backpage ever call you to alert you to any prostitution ads on 

Backpage? A. No. Id. at 49:17-19. 

 The government’s motion ignores that its opening and, indeed, its entire case, hinges on 

the government and its witnesses characterizing Backpage.com ads that propose facially lawful 

transactions (dating, massage, or escorts) as “illegal ads” or “prostitution ads” (despite the 

absence of sex for money language). As such, the portions of Defendants’ opening statements 

to which the government now objects simply were rebutting the government’s contrary claims. 

If the government is permitted to characterize the ads as it did, Defendants certainly must be 

permitted to defend by asserting the opposite. 

 Third, although the government complains about defense references to legal or illegal 

ads during opening statements, the government fails to mention it never objected to those 

references during the openings. Moreover, when the government later objected to questions 

posed to Special Agent Supervisor Fichtner on cross-examination regarding the Backpage.com 

ads he reviewed, the Court overruled its objections to questions about whether those ads were 

legal or illegal. Doc. 1335. at 117:16-25; Doc. 1345 at 67:19-68:11. The government presents 

no new facts or law to justify the Court reversing course and barring references to ads as being 

legal or illegal. 

Finally, United States v. Brodie, 858 F.2d 492, 496 (9th Cir. 1988) addresses the scope of 

expert testimony and is inapposite to the issues posed by the government’s motion. 

Case 2:18-cr-00422-DJH Document 1612 Filed 06/15/23 Page 4 of 7
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RESPECTFULLY SUBMITTED this 15th day of June, 2023, 

David Eisenberg. 

David Eisenberg, PLC 

By: /s/ David Eisenberg 

David Eisenberg 

Attorneys for Andrew Padilla 

Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual (May 2018) 

§ II (C) (3), Paul J. Cambria, Jr. hereby attests that all other signatories listed, and on whose behalf this filing 

is submitted, concur in the filing’s content and have authorized its filing. 

LIPSITZ GREEN SCIME CAMBRIA LLP 

Paul J. Cambria, Jr. 

Erin McCampbell Paris 

LIPSITZ GREEN SCIME CAMBRIA LLP 

By: /s/ Paul J. Cambria, Jr. 

Paul J. Cambria, Jr. 

Attorneys for Michael Lacey

OSBORN MALEDON, P.A. 

By s/ Joseph N. Roth 

Timothy J. Eckstein 

Joseph N. Roth 

Sarah P. Lawson 

2929 North Central, 20th Floor 

Phoenix, Arizona 85012-2794 

Attorneys for James Larkin 

FEDER LAW OFFICE PA 

By s/ Bruce S. Feder (w/permission) 

Bruce S. Feder 

Case 2:18-cr-00422-DJH Document 1612 Filed 06/15/23 Page 5 of 7
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2930 E. Camelback Road, Suite 160 

Phoenix, Arizona 85016 

KESSLER LAW OFFICE 

By s/ Eric W. Kessler (w/permission) 

Eric W. Kessler 

6720 N. Scottsdale Rd., Suite 210 

Scottsdale, Arizona 85253 

Attorneys for Scott Spear 

BIRD, MARELLA, BOXER, WOLPERT, 

NESSIM, DROOKS, LINCENBERG & 

RHOW P.C. 

By s/ Gary S. Lincenberg (w/permission) 

Gary S. Lincenberg 

Gopi K. Panchapakesan 

Ariel A. Neuman 

1875 Century Park E., Suite 2300 

Los Angeles, California 90067 

Attorneys for John Brunst 

JOY BERTRAND LAW 

By s/ Joy M. Bertrand (w/permission) 

Joy M. Bertrand 

P.O. Box 2734 

Scottsdale, Arizona 85252 

Attorneys for Joye Vaught

Case 2:18-cr-00422-DJH Document 1612 Filed 06/15/23 Page 6 of 7
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On June 15, 2023, a PDF version 

of this document was filed with 

Clerk of the Court using the CM/ECF 

System for filing and for Transmittal 

Of a Notice of Electronic Filing to the 

Following CM/ECF registrants: 

Kevin Rapp, kevin.rapp@usdoj.gov 

Peter Kozinets, peter.kozinets@usdoj.gov 

Margaret Perlmeter, margaret.perlmeter@usdoj.gov 

Andrew Stone, andrew.stone@usdoj.gov 

Daniel Boyle, Daniel.boyle2@usdoj.gov

Austin Berry, austin.berry2@usdoj.gov 

Case 2:18-cr-00422-DJH Document 1612 Filed 06/15/23 Page 7 of 7