United States v. Lacey, et al. 

Case No. 18-CR-0422-PHX-SMB

INDEX OF EXHIBITS

EXHIBIT DESCRIPTION

A Discovery production chart prepared by Defendants

B Virus & malware report generated by TrendMicro security software

C Letter from M. Piccarreta to K. Rapp dated October 26, 2018

D Letter from R. Jones to W. Bernstein dated March 7, 2019

E Email chain between R. Jones and W. Bernstein dated April 10, 2019

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 1 of 34
EXHIBIT A

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 2 of 34
United States v. Lacey, et al., Case No. 18-CR-0422-PHX-SMB

PRODUCTION CHART 

1

Production 

#

Date Pages Bates 

Range

Government’s Purported “Index” Assorted Summary of Actual Contents

1 May 24, 

2018

4,426,710

5,948,910

1-4426710

1-5901038 

& 1-47872

Hard Drive #1: 

 “USAO 108 Subpoena;

 PSI; 

 USAO 359 Subpoena;

 CA Dep’t of Justice;

 Carl Ferrer Gmail;

 Add’l Co-Star; 

 SW Applications/Affidavits and 

Sealed GJ Pleadings/Orders; 

 USAO 108 Subpoena 

(supplemental)”

Hard Drive #2: 

 “Co-Star records”

 “USAO 108 Subpoena” refers to 1,037,594 

pages, with no other identification or indexing; 

 “PSI” refers to over one million pages from a 

U.S. Senate subcommittee, with no other 

identification or indexing; 

 “CA Dep’t of Justice” refers to over 34,000 

pages obtained from California, with no other 

identification or indexing; 

 “Carl Ferrer Gmail” refers to over 1.7 million 

pages, with no other identification or indexing

(including many irrelevant documents, like 

emails about Ferrer’s children’s activities and 

school); 

 “USAO Subpoena 108 (supplemental) refers 

to an additional 1,089 pages, with no other 

identification or indexing.

 “Co-Star Records” refers to nearly 6 million 

pages, with no other identification or indexing

(including many irrelevant documents, like 

documents relating to customers of Co-Star

other than Backpage, computer system files, 

and documents relating to Backpage operations 

in foreign countries. The data has not been 

loaded to an electronic database because of the 

costs associated with readying the files for 

loading and because many of the files may 

contain viruses and malware. 

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 3 of 34
United States v. Lacey, et al., Case No. 18-CR-0422-PHX-SMB

PRODUCTION CHART 

2

2 July 2, 2018 174,326 4426712-

4601038

“Released Records; Civil Seizure 

Warrants”

(Clawed Back)

 This production contained over 174,000 

pages, with no other identification or indexing. 

The production included large numbers of 

documents from previous civil litigation 

(“J.S.”), as well as copies of civil seizure 

warrants, documents from NCMEC, and FBI 

302s and other investigation documents, 

among others. (The government clawed back

portions of this production.)

3 July 19, 2018 1.071 4601039-

4602110

“Hot Docs” This production contained over 1,000 pages, 

with no other identification or indexing. The 

government asserts these documents are “hot 

docs” supporting its charges—although 

defendants don’t understand this claim. 

4 September 

24, 2018

81,433 4602111-

4683544

“Backpage Agendas; 

 Backpage Superseding Indictment 

‘Hot Docs’; 

 Co-Star ‘Hot Docs’; 

 Financial Records”

 “Backpage Agendas” refers to 397 pages of 

meeting agendas from 2006 through 2015, with

no other identification or indexing; 

 “Backpage Superseding Indictment ‘Hot 

Doc’” refers to 344 pages purportedly 

supporting the superseding indictment, with no 

other identification or indexing; 

 “Co-Star ‘Hot Docs’” refers to a training 

manual for Co-Star and a several page contract 

between Avion and Backpage from October 

2013; 

 “Financial Records” refers to over 80,000 

pages of bank records for Michael Gage, 

Posting Solutions, Website Technologies, and

others, with no identification or indexing.

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 4 of 34
United States v. Lacey, et al., Case No. 18-CR-0422-PHX-SMB

PRODUCTION CHART 

3

5 October 4, 

2018

Reproduction of 79 documents 

from the July 2, 2018 production

 This production reproduced, with redactions,

several thousand pages of the documents from 

production no. 2 that the government 

previously clawed back. 

6 October 10, 

2018

2,260 4683545-

4685805

“Victim Records” This production contained over 2,200 pages

of so-called “victim records,” with no other 

identification or indexing. The documents 

include FBI 302s, police reports, copies of 

Backpage ads, and documents from previous

civil litigation against Backpage.

7 November 

30, 2018

34,730 4685806-

4720536

“Add’l Superseding ‘Hot Docs’; 

 Backpage Historical Ads; 

 Erick Bauer Civil Case; 

 John Becker Documents; 

 Add’l CA Dep’t of Justice; 

 Add’l Financial Records; 

 Add’l Search Warrants and 

Affidavits; 

 Add’l Victim Records; 

 WDWA BP GJ Transcripts”

 “Add’l Superseding ‘Hot Docs’” refers to 71 

additional “hot docs,” with no other 

identification or indexing;

 “Backpage Historical Ads” refers to over 

2,800 pages of ads (spanning from 2006-2013), 

apparently selected by the government from 

among the tens of millions of ads that ran on 

Backpage during that period, with no other 

identification or indexing; 

 “Erick Bauer Civil Case” refers to a 

document dump from previous civil litigation 

against Backpage (the J.S. case), with no other 

identification or indexing; 

 “John Becker Documents” refers to 2,785 

pages of documents obtained via a grand jury 

subpoena to an attorney for one of the 

defendants, with no other identification or 

indexing; 

 “Add’l CA Dep’t of Justice” refers to over 

8,700 pages of documents, with no other 

identification or indexing; 

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 5 of 34
United States v. Lacey, et al., Case No. 18-CR-0422-PHX-SMB

PRODUCTION CHART 

4

 “Add’l Financial Records” refers to over 

16,000 pages of documents, with no other 

identification or indexing; 

 “Add’l Search Warrants and Affidavits” refers 

to over 2,700 pages of documents, with no 

other identification or indexing; 

 “Add’l Victim Records” refers to 376 pages 

of documents, many duplicative of previously 

produced documents, with no other 

identification or indexing; 

 “WDWA BP GJ Transcripts” refers to 826 

pages of transcripts of various witnesses from a 

grand jury investigation in Washington, with 

no other identification or indexing.

8 February 22, 

2019

26,033

plus

Unnumbered 

“victim 

records”

4720537-

4746570

6 add’l 

DVDs

“BDO Consulting Documents; 

 Reports of Interviews; 

 Subpoena Compliance, 

 Reports of Interviews, and other 

FBI Case Documents”

“ROIs for Dan Hyer; 

 Jail Calls for Lacey and Larkin; 

 This production contained over 26,000 pages, 

with no other identification or indexing, plus 

thousands of pages of “victim records” and 

over 37 hours of recorded audio/video. 

 The numbered portion of the production 

appears to include documents produced by 

BDO (an accounting/consulting firm), 

documents relating to research conducted by 

one of the government’s noticed experts, grand 

jury subpoenas, and documents related to the 

government’s seizure and review of electronic 

devices. 

 The “victim records” includes thousands of 

pages of documents and lengthy recordings of 

interviews pertaining to crimes having no 

apparent connection to the charges in this 

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 6 of 34
United States v. Lacey, et al., Case No. 18-CR-0422-PHX-SMB

PRODUCTION CHART 

5

&

Unnumbered 

audio/video 

recordings of 

at least 

37:54:22

 interview from local investigation 

of James C. Brown; 

 local investigation of Victim #4; 

 local investigation of Victim #15”

case—except that someone connected to the 

crimes may, at some time, have placed an ad 

on Backpage. 

9 March 14, 

2019

44,669 4746571-

4791240

“Add’l Financial Records; 

 Add’l Reports of Interview; 

 Add’l Subpoena Compliance, 

 Reports of Interviews, and other 

FBI Case Documents” 

 This production contained nearly 45,000 

pages, with no other identification or indexing. 

The production appears to include FBI 302s, 

financial records from Backpage, unredacted 

bank records from attorney trust accounts for 

defense counsel for defendants and their 

entities, and unredacted records from banks 

and other financial institutions for defendants. 

10 April 11, 

2019

66,048 4791241-

4857289

“Add’l BDO Consulting Docs; 

 EPIQ data; 

 Sampling of Backpage Ads with 

Associated Databases and Images”

 This production contained more than 66,000 

pages, with no other identification or indexing. 

This production was recently received and 

contained viruses and malware. 

TOTAL 10,806,199 & 

unnumbered 

records & 

nearly 38 

hours of 

audio/video

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 7 of 34
EXHIBIT B

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 8 of 34
Date/Time ... File Name/Target Threat Result Scan Type Path 

411212019(Fri) 13:1 0 DDJ-BP-0004827945.msg TSC_GENCLEAN Cleaned DCS E:\190408- Backpage Discovery\VDL000002\NATIVESI411212019 (Fri) 13:1 0 DDJ-BP-0004827945.msg TSC_GENCLEAN Cleaned DCS E:\190408- Backpage Discovery\VDL000002\NATIVESI411212019 (Fri) 13:1 0 DDJ-BP-0004827945.msg WDRM_CRIDEX.TN Quarantined Scheduled Scan E:\190408- Backpage Discovery\VDL000002\NATIVESI411212019 (Fri) 13:09 DDJ-BP-0004824343.msg TSC_GENCLEAN Cleaned DCS E:\190408- Backpage Discovery\VDL000002\NATIVESI411212019 (Fri) 13:09 DDJ-BP-0004824343.msg TSC_GENCLEAN Cleaned DCS E:\190408- Backpage Discovery\VDL000002\NATIVESI411212019 (Fri) 13:09 DDJ-BP-0004824343.msg JS_REDIR.EX Quarantined Scheduled Scan E:\190408- Backpage Discovery\VDL000002\NATIVESI411212019 (Fri) 12:24 DDJ-BP-0004827945.msg TSC_GENCLEAN Cleaned DCS C:\Users\cboyd\Desktop\190408- Backpage Discovery\411212019 (Fri) 12:24 DDJ-BP-0004827945.msg TSC_GENCLEAN Cleaned DCS C:\Users\cboyd\Desktop\190408- Backpage Discovery\411212019 (Fri) 12:24 DDJ-BP-0004827945.msg WDRM_CRIDEX.TN Quarantined Scheduled Scan C:\Users\cboyd\Desktop\190408- Backpage Discovery\411212019 (Fri) 12:23 DDJ-BP-0004824343.msg TSC_GENCLEAN Cleaned DCS C:\Users\cboyd\Desktop\190408- Backpage Discovery\411212019 (Fri) 12:23 DDJ-BP-0004824343.msg TSC_GENCLEAN Cleaned DCS C:\Users\cboyd\Desktop\190408- Backpage Discovery\411212019 (Fri) 12:23 DDJ-BP-0004824343.msg JS_REDIR.EX Quarantined Scheduled Scan C:\Users\cboyd\Desktop\190408- Backpage Discovery\411212019 (Fri) 12:1 6 DDJ-BP-0004827945_2336280.msg TSC_GENCLEAN Cleaned DCS C:\Users\cboyd\AppData\Local\Box\Box\unsyncedflles\ 411212019 (Fri) 12:1 6 DDJ-BP-0004827945_2336280.msg TSC_GENCLEAN Cleaned DCS C:\Users\cboyd\AppData\Local\Box\Box\unsyncedflles\ 411212019 (Fri) 12:1 6 DDJ-BP-0004827945_2336280.msg WDRM_CRIDEX.TN Quarantined Scheduled Scan C:\Users\cboyd\AppData\Local\Box\Box\unsyncedflles\ 411212019 (Fri) 12:1 5 DDJ-BP-0004824343_2332683.msg JS_REDIR.EX Quarantined Scheduled Scan C:\Users\cboyd\AppData\Local\Box\Box\unsyncedflles\ 411212019 (Fri) 12:1 5 DDJ-BP-0004824343_2332683.msg TSC_GENCLEAN Cleaned DCS C:\Users\cboyd\AppData\Local\Box\Box\unsyncedflles\ 411212019 (Fri) 12:1 0 b1e283b5-e2d5-47 42-be 7 e-5399d:3cfd0ef JS_REDIR.EX Quarantined Scheduled Scan C:\Users\cboyd\AppData\Local\Box\Box\cache\ 411212019 (Fri) 12:1 0 b1e283b5-e2d5-47 42-be 7 e-5399d3cfd0ef TSC_GENCLEAN Cleaned DCS C:\Users\cboyd\AppData\Locaf\Box\Box\cache\ 411212019 (Fri) 12:05 12019b82-7b80-4c62-9d60-9f4a1542ba82 TSC_GENCLEAN Cleaned DCS C:\Users\cboyd\AppData\Locaf\Box\Box\cache\ 411212019 (Fri) 12:05 12019b82-7b80-4c62-9d60-9f4a1542ba82 TSC_GENCLEAN Cleaned DCS C:\Users\cboyd\AppData\Locaf\Box\Box\cache\ 411212019 (Fri) 12:05 12019b82-7b80-4c62-9d60-9f4a1542ba82 WDRM_CRIDEX.TN Quarantined Scheduled Scan C:\Users\cboyd\AppData\Locaf\Box\Box\cache\ 

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 9 of 34
EXHIBIT C

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 10 of 34
PICCARRETA DAVIS KEENAN FIDEL PC 

MICHAEL L. PICCARRETA 

.JEFFERSON KEENAN 

LOUIS S. FIDEL 

BARRY M. DAVIS 

( 1948-2016) 

LAWYERS 

October 26, 2018 

VIA EMAIL: kevin.rapp@usdoj.gov 

AND U.S. FIRST CLASS MAIL 

Kevin Rapp, Esq. 

United States Attorney's Office 

Two Renaissance Square 

40 N. Central Avenue, Ste. 1200 

Phoenix, AZ 85004-4408 

2 EAST CONGRESS STREET, SUITE 1000 

TUCSON, ARIZONA 85701 

(520) 622-6900 

FAX (520) 622-0521 

WWW.PD-LAW.COM 

Re: United States v. Lacey, et al., No. CR-18-00422-PHX-SPL (BSB) 

Dear Kevin: 

I am writing to request that the government comply with its obligations under 

Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 

(1972), and to provide you with an enumerated list of documents we believe fall 

within this mandate. 1 As acknowledged in Judge Logan's order on our request for 

itemization of Brady/ Giglio material: "Brady places an affirmative duty on the prosecutor 

to seek out information in the government's possession that is favorable to the defendant; 

here, the Government has the duty to affirmatively review its discovery materials in order 

to determine and acquire those materials which would be considered Brady exculpatory 

and Giglio impeaching materials." Doc. 339, p. 3. 

This part of Judge Logan's order is, of course, based on well-settled case law. See 

Kyles v. Whitley, 514 U.S. 419, 435 (1995); United States v. Price, 566 F.3d 900, 908-09 

(9th Cir. 2009); United States v. WR. Grace, 401F.Supp.2d1069, 1075-76 (D. Mont. 

2005), id., as well as the Justice Manual which requires federal prosecutors to conduct a 

1 My October 23, 2018, letter to Reginald Jones specifically addressed the Brady and Giglio issues 

relating to the government's request to claw back "inadvertently" disclosed Brady/Giglio materials in 

specific government memoranda. This letter supplements that separate request. 

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 11 of 34
PICCARRETA DAVIS KEENAN FIDEL PC 

"review process" of investigative agency files, witness files, evidence and information 

gathered during the investigation, substantive case-related communications, potential 

Giglio information relating to witnesses, and information obtained in witness interviews. 

Justice Manual, § 9-5.002(B). The Justice Manual also states that "[h]aving gathered the 

information described above, prosecutors must ensure that the material is reviewed to 

identify discoverable information." Id. 2 Importantly, forthe purposes of the Brady/Giglio 

material in this case, "[a] prosecutor must disclose information that is inconsistent with 

any element of any crime charged against the defendant or that establishes a recognized 

affirmative defense, regardless of whether the prosecutor believes such information will 

make the difference between conviction and acquittal of the defendant for a charged 

crime." Id.,§ 9-5.00l(C)(l) (emphasis added). "[T]his policy encourages prosecutors to 

err on the side of disclosure in close questions of materiality and identify standards that 

favor greater disclosure in advance of trial through the production of exculpatory 

information that is inconsistent with any element of any charged crime and impeachment 

information that casts a substantial doubt upon either the accuracy of any evidence the 

government intends to rely on to prove an element of any charged crime or that might 

have a significant bearing on the admissibility of prosecution evidence." Id.,§ 9-5.00l(F) 

(emphasis added). As the defendants have previously noted, the Travel Act and money 

laundering offenses charged against the defendants are both specific intent crimes.3 

Therefore, any information in the government's possession that would tend to negate this 

mens rea is Brady material that must be disclosed to the defendants. 

There appears to be no fundamental disagreement regarding your constitutional 

obligations. At the hearing on the motion for itemization of the Brady/Giglio materials, 

the government assured the court that the government understood and would comply 

with its Brady/Giglio obligations: 

THE COURT: 

MR.STONE: 

If you do have exculpatory information, I'm sure it's 

your position that you'll tum that over immediately. 

100 percent. The exculpatory material is absolutely 

going over to the extent there is anything exculpatory. 

And we are doing our review as required under Brady, 

2 Internal Department of Justice memoranda also "command an actual review of the materials acquired 

during investigation of a criminal case for the purpose of disclosing Brady/Giglio materials." United 

States v. Salyer, 2010 WL 3036444, *3 (E. D. Cal. 2010) (citing Memorandum for Department 

Prosecutors, dated January 4, 2010). 

3 United States v. Gibson Specialty Co., 507 F.2d 446, 449 (9th Cir. 1974); United States v. Gurolla, 333 

F.3d 944, 957 (9th Cir. 2003). 

2 

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 12 of 34
PICCARRETA DAVIS KEENAN FIDEL PC 

Giglio, and Rule 16 to determine what we might have 

in our investigative files, and that's going over. 

Reporter's Transcript, October 5, 2018, p. 104. 

However, after providing those assurances to the court, the government also stated 

that the agents working on this case have not pulled out anything that they consider 

exculpatory. Id. at 114 ("[W]e have not identified or segregated a document or subset of 

documents that would be identified as Brady"). The government added: "If we come 

across documents that fall into Brady or exculpatory, just to identify those to the 

defendants, we could do that, Your Honor." Id. As noted above, the government assured 

the court that the government would tum over any Brady/Giglio material that it comes 

across in the future to the defendants immediately. As a consequence, Judge Logan's 

order specifically "notes that at the October 5th hearing the Government stipulated that it 

will tum over any Brady/Giglio material that it comes across in the future to the 

Defendants within 10 days. The court implores the Government to abide by this 

stipulation, without an order from the court." Doc. 339, pp. 5-6. 

Despite this pledge to adhere to legal obligations, the government made repeated 

statements to the court that the government is purportedly "unclear" or "unsure" about 

what exculpatory Brady/Giglio material "would look like." The government stated that, 

with respect to each specific defendant: 

here are the documents that relate to your defendant, why we think the 

allegations and the facts support the charges in the superseding indictment. 

What they have asked for is the converse of that, which is give us all the 

documents that help our clients that would be Brady material or possibly 

Giglio. And that's where the government's having difficulty identifying 

those documents, because we're not sure what those particular documents 

would look like. 

Id. at 103. See also id. at 101 ("it's a little unclear what the exculpatory material would 

look like"), and 102 ("with respect to Brady or exculpatory, we're unsure what that would 

look like, Your Honor"). 

These statements are puzzling to the defendants because there is abundant 

information in the government's possession and/or generated by the government that is 

favorable and exculpatory to the defendants. Accordingly, by this letter, the defendants 

specifically advise the government as to areas that are Brady/Giglio materials and that 

3 

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 13 of 34
PICCARRETA DAVIS KEENAN FIDEL PC 

we believe are subject to your office's pledge (and the Court's order) to be turned over 

immediately. 

First, it is imperative that you produce some of the documents the government is 

attempting to claw back, identified as the initial category of Brady/Giglio materials, 

which the previous prosecutors readily identified as areas of exculpatory evidence. The 

memoranda coupled with the underlying documents and any other documents that the 

government locates relative to those issues should assist the government as a beginning 

point as to identifying additional Brady/ Giglio material. 

1. My October 23 letter to Mr. Jones explained that the government has 

already disclosed exculpatory materials that it now claims were 

inadvertently produced and seeks to claw back. It is the defendants' position 

that the government "inadvertently" disclosed Brady material that it was 

legally, ethically, and constitutionally required to disclose in the first place.4 

Although counsel for the defendants ceased their review of the purportedly 

inadvertently disclosed documents when the government made its clawback request, counsel for the defendants had been in possession of these 

documents for weeks and had already reviewed the clearly exculpatory 

material. From memory, two internal government memoranda5 contained 

Brady/Giglio material contradicting, legally and factually, the 

government's theory of the case, including statements made by the 

government at the hearing regarding the level of knowledge required for 

criminal prosecution. These Brady/Giglio memoranda also contain witness 

statements favorable to the defense, contain information contradicting 

representations made to federal magistrates, and contain material relevant 

to defendants' challenges to the grand jury proceedings and to the searches 

and seizures in this prosecution, the filing of additional pretrial motions, the 

cross-examination of government witnesses, and other purposes relating to 

the present criminal proceedings. The documents undoubtedly will be 

exhibits at multiple pretrial hearings and will be exhibits at trial. 

4 Indeed, it appears the primary reason the government seeks to claw back these materials is that they are 

very favorable to the defendants, and therefore, by definition, constitute Brady material. This is 

demonstrated quite clearly by the fact that the government previously disclosed (without any claim of 

work product privilege) an internal memorandum on the viability of prosecuting the defendants under 18 

U.S.C. § 1591 containing conclusions unfavorable to the defense, but now seeks to withhold memoranda 

that are clearly favorable to the defense. 

5 See Declaration of Reginald E. Jones in support of United States' Motion to Compel Destruction of 

Inadvertently Produced Documents, p. 6 ~ 20, and Privilege Log attached as Exhibit I. 

4 

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 14 of 34
PICCARRETA DAVIS KEENAN FIDEL PC 

Brady/Giglio materials would also include documentation backing up these 

government memoranda, i.e. interviews, documents, investigative 

memoranda, and other documents and materials referred to, or contributing 

to, the memoranda. 

In addition to these specific documents, I list below some general areas that 

implicate the government's obligations under Brady and Giglio, followed by additional 

enumerated areas. 

2. High-ranking Department of Justice officials have informed Congress that 

similar activities involving the posting of third-party advertisements by the 

website Craigslist could not be prosecuted under federal criminal law. The 

DOJ' s National Coordinator for Child Exploitation, Prevention, and 

Interdiction, Francie Hakes, testified that "I am not aware of any laws that 

would make them [criminally] liable [for third-party postings], unless there 

was evidence that Craigslist was a participant ... conspiring with those who 

were misusing their site, that is, knowingly conspiring to violate laws ... .I 

am not aware of anything that shows us that Craigslist might be criminally 

liable .... " Domestic Minor Sex Trafficking: Hearing Before Subcommittee 

on Crime, Terrorism, & Homeland Security of the House Committee on 

the Judiciary, lllth Cong. 215-16 (2010). Any similar materials in the 

government's possession also constitute Brady material and must be 

disclosed immediately. 

3. Key legislators very recently admitted (a little over a month before the 

government obtained its initial indictment in this matter) that "current 

federal criminal law ... lacks proper prosecutorial tools to combat these 

websites" and "general knowledge that sex trafficking occurs on a website 

will not suffice as the knowledge element must be proven as to a specific 

victim." House ofRepresentatives Report 115-572Part1, p. 5, February 20, 

2018 (emphasis added} Any similar information also constitutes Brady 

material that must be disclosed immediately. 

In light of these examples, it is simply difficult for the defendants to fathom the 

government's claim that it would not know what Brady/Giglio materials "would look 

like." It is clear that any factual or legal matters that contradict the prosecution's theory 

of the case are, by definition, Brady materials that must be disclosed to the defendants. 

See, e.g., Bies v. Sheldon, 775 F.3d 386, 398-403 (6th Cir. 2014) (upholding the district 

court's finding of a Brady violation due to the state's suppression of "Evidence 

Undermining the State's Theory of the Case"); Wolfe v. Clarke, 819 F.Supp.2d 538, 558 

5 

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 15 of 34
PICCARRETA DAVIS KEENAN FIDEL PC 

(E. D. Va. 2011) (vacating capital defendant's conviction after finding that the 

prosecution violated Brady by withholding investigation reports and interviews 

"undermining its theory of the case"). See also United States v. Avellino, 1995 WL 

228352, *l (E. D. N. Y. 1995) ("The government agreed to submit to the Court for 

determination any evidence which may contradict its theory of the case and about which 

it questions whether the evidence properly falls within the scope of Brady and/or Giglio 

and their progeny"). 

The defendants believe that these and similar materials are clearly Brady/Giglio 

materials that the government is legally, ethically, and constitutionally obligated to tum 

over to the defendants within 10 days, in accordance with the government's assurances 

to Judge Logan and the terms of his order. To be clear: we are not requesting that the 

government has to conduct searches or investigation other than what they have already 

done or will do in regards to prosecution of this matter. We do request, however, while 

conducting its normal investigation and pretrial preparation in accordance with its 

obligations under Brady/Giglio and the Justice Manual, that if this information is located, 

that it then be segregated and provided. None of us want this case to tum into another 

Ted Stevens fiasco. 

Accordingly, and pursuant to the above authority, Mr. Padilla additionally requests 

the government to disclose the following additional information: 6 

4. All communications to and from any federal, state, or local elected officials 

relating to the possible criminal prosecution ofBackpage and its employees 

and officers. Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir. 1981) (due 

process prohibits prosecution based on improper influence exerted on the 

prosecutor to seek the indictments). 

5. All communications to and from any civil plaintiffs lawyers or advocates 

for alleged sex trafficking victims and local, state, and federal law 

enforcement agents, officers, investigators, prosecutors, and other officials 

involved in any manner with the investigation or prosecution of the website 

Backpage.com ("Backpage"). Fitzgerald v. Peek, 636 F.2d 943, 945 (5th 

Cir. 1981) (due process prohibits prosecution based upon improper outside 

influences). 

6 Although "the duty to disclose such evidence is applicable even though there has been no request by 

the accused," Strickler v. Greene, 527 U.S. 263, 280 (1999), "[w]hen the prosecutor receives a specific 

and relevant request, the failure to make any response is seldom, if ever, excusable." United States v. 

Bagley, 473 U.S. 667, 681 (1985). 

6 

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 16 of 34
PICCARRETA DAVIS KEENAN FIDEL PC 

6. All documents and commendations from law enforcement to Backpage 

relating to Backpage' s cooperation in any criminal investigations. 7 

7. All communications to and from local, state, and federal law enforcement 

agents, officers, investigators, prosecutors, and other officials involved in 

any matter with the investigation or prosecution relating to Backpage. 

8. All communications to and from Nanci Clarence, or any lawyers 

representing Mr. Ferrer or Backpage, that relate in any manner to plea 

negotiations or the plea agreement and all documents to or from the 

government and any other local, state, or federal law enforcement agents, 

officers, investigators, prosecutors, and other officials relative to Mr. Ferrer 

that relate to the plea negotiations or plea agreement and all writings 

subsequent to said plea agreement. 

9. All communications to and from K.C. Maxwell or any lawyers representing 

Mr. Hyer or Backpage that relate in any manner to plea negotiations or the 

plea agreement and all documents to or from the government and any other 

local, state, or federal law enforcement agents, officers, investigators, 

prosecutors, and other officials relative to Mr. Hyer that relate to the plea 

negotiations or plea agreement and all writings subsequent to said plea 

agreement. 

10. All documents to and from Backpage and the National Center for Missing 

and Exploited Children (NCMEC) relating to possible unlawful activity 

involving underage individuals. 

11. All documents sent by Backpage to law enforcement relating to 

cooperation with law enforcement efforts. 

12. All Department of Justice memoranda relating to the department's 

understanding of the applicable law governing Backpage during the 

relevant time periods. 

I am also requesting specific Brady/Giglio material relating to government 

witnesses, including cooperating individuals and co-defendants: 

13. Any plea bargain, immunity agreement, explicit or implied agreement, or 

any other promises any witness has received or will receive from any 

federal, state or local authority in exchange for his or her testimony or 

cooperation in this case or in any other case. 

7 For reference, documents and communications include both tangible and electronic. 

7 

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 17 of 34
PICCARRETA DAVIS KEENAN FIDEL PC 

14. Any information suggesting any bias, prejudice or motive that the witness 

may have for testifying falsely against the defendant. Pennsylvania v. 

Ritchie, 480 U.S. 39 (1987); United States v. Strifler, 851F.2d1197 (9th 

Cir. 1988); United States v. Abel, 469 U.S. 45 (1984). 

15. All promises, agreements, benefits, monies or anything of value whatsoever 

made to or provided to the witness, his/her family or friends by federal, state 

or local authorities in this matter or any other matter. See United States v. 

Uramoto, 638 F.2d 84, 86 (9th Cir. 1980); United States v. Leja, 568 F.2d 

493 (6th Cir. 1977). 

16. Any monies paid, or any other benefit provided, to any of the government's 

witnesses by the United States government or any other governmental 

agency that was in any way contingent upon the outcome of this or any 

other investigation as a result of information provided by any such 

witnesses. United States v. Bagley, 473 U.S. 667, 683 (1985). 

17. All documents between the witness, or his/her representative and the 

government relating to the negotiations of the plea bargain agreement or 

where the witness has offered or proposed testimony. Brown v. Dugger, 

831F.2d1547 (11th Cir. 1987) (evidence that witness sought plea bargain 

is to be disclosed even if no deal struck); Haber v. Wainwright, 756 F.2d 

1520, 1524 (11th Cir. 1985). 

18. Proffers and statements made by an accomplice witness in negotiating a 

cooperation agreement with the government, along with information 

revealing the negotiation process, including but not limited to any and all 

variations in the accomplice witness' statements. United States v. Sudikoff, 

36 F.Supp.2d 1196 (C.D. Cal. 1999). 

19. All documents, including the government's reports which indicate instances 

of illegal behavior of the witness or specific instances of misconduct which 

relate in any manner whatsoever to the witness' credibility. See Rule 608(b ), 

Federal Rules of Evidence. 'lhis request includes any law enforcement 

reports relating to these instances. See United States v. Ray, 731 F.2d 1361 

(9th Cir. 1984). 

20. Any prior contrary statements made by the government witness. Giles v. 

Maryland, 386 U.S. 66 (1967); Spicer v. Roxbury Correctional Institute, 

194 F.3d 547 (4th Cir. 1999). 

21. The existence of any witnesses or witness statements favorable to the 

defendant. United States v. Wilkins, 326 F.2d 135 (2d Cir. 1964); Jackson 

v. Wainwright, 390 F.2d 288 (5th Cir. 1968). 

8 

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 18 of 34
PICCARRETA DAVIS KEENAN FIDEL PC 

22. Negative exculpatory statements, such as statements by informed witnesses 

that fail to implicate the defendants in any criminal activity. See, e.g., 

United States v. Torres, 719 F.2d 549, 555-56 (2d. Cir. 1983); Jones v. 

Jago, 575 F.2d 1164, 1168 (6th Cir. 1978); Clemmons v. Delo, 124 F.3d 

944, 952 (8th Cir. 1997); White v. Helling, 194 F.3d 937, 944 (8th Cir. 

1999). 

23. Any threats, express or implied, direct or indirect, or other coercion made 

or directed against the witnesses, including but not limited to, criminal 

prosecutions, investigations, other incidents which are pending or could be 

brought against the witnesses. 

24. The existence and notification of each occasion upon which the witnesses 

testified before a Court, grand jury, or other tribunal or made other 

statements so defendant can order transcripts for use in cross-examination 

or investigation. See Rules 801(d)(l) and 806, Federal Rules of Evidence. 

See also Davis v. Heyd, 479 F.2d 446 (5th Cir. 1973). 

25. Any grand jury statements of any witnesses which are favorable to the 

defendant. United States v. Sink, 56 F.R.D. 365 (E. D. Pa. 1972). 

26. The identity of any witnesses who testified before the grand jury and who 

will be unavailable to testify at trial. Arizona State Bar Ethics Opinion No. 

94-07 (March 1994 ). See LRCiv 83 .2( e ), Rules of Practice of the United 

States District Court for the District of Arizona. 

27. Names and addresses of any witnesses to offenses charged in the indictment 

whom the government does not intend to call at trial. United States v. Cadet, 

727 F.2d 1453, 1469 (9th Cir. 1984) (it is appropriate "to conclude from the 

fact that the government did not intend to call a witness to the crime that 

there was a reasonable possibility that such person would be able to provide 

evidence favorable to the defense"). 

28. Tn regard to law enforcement agents in this case, counsel requests to know 

whether there have been any prior instances of untruthful statements by the 

agents or any complaints filed with their governmental employer at any 

time relating to any incidents which relate in any manner whatsoever to the 

agent's credibility. See Rule 608(b ), Federal Rules of Evidence; United 

States v. Henthorn, 931F.2d29 (9th Cir. 1991); Milke v. Ryan, 711 F.3d 

998 (9th Cir. 2013). 

29. It is further requested that the prosecutor further personally review the 

personnel files for Brady material. 

9 

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 19 of 34
PICCARRETA DAVIS KEENAN FIDEL PC 

30. Any reports prepared by prosecution experts relating to the legality of the 

procedure used by government agents in the course of their investigation. 

United States v. Gerena, 116 F.R.D. 596 (D. Conn. 1987). 

31. Evidence that is inconsistent with the witness' testimony. United States v. 

Fisher, 106 F.3d 622, 634-35 (5th Cir. 1997); Ballinger v. Kerby, 3 F.3d 

1371, 1375-76 (10th Cir. 1993); Derden v. McNeel, 938 F.2d 605, 617 (5th 

Cir. 1991). 

I would request that a copy of this letter be sent to your case agent or agents so that 

each agency is aware of this request. 

L. Piccarreta 

JK:mh 

cc: Brian Benczkowski, brian.benczkowski@usdoj.gov 

Peter Kozinets, peter.kozinets@usdoj.gov 

John Kucera, John.Kucera@usdoj.gov 

Reginald Jones, reginald.jones4@usdoj.gov 

Margaret Perlmeter, margaret.perlmeter@usdoj.gov 

Andrew Stone, andrew.stone@usdoj.gov 

Tom Bienert, tbienert@bmkattomeys.com 

Paul Cambria, pcambria@lglaw.com 

Robert Com-Revere, bobcomrevere@dwt.com 

Bruce Feder, bf@federlawpa.com 

James Grant, jimgrant@dwt.com 

Michael Kimerer, mdk@kimerer.com 

Stephen Weiss, sweiss@karpweiss.com 

10 

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 20 of 34
EXHIBIT D

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 21 of 34
U.S. Department of Justice

United States Attorney

District of Arizona

Via E-Mail

Whitney Z. Bernstein

Bienart, Miller & Katzman PLC 

EMail:wbernstein@bmkattorneys.com

(attorney for Defendant James Larkin)

Re: Your letter of February 26, 2019

Dear Ms. Bernstein:

We write in response to your February 26, 2019 letter summarizing our February 

20, 2019 phone call regarding Backpage server data. Your letter contains a number of 

inaccuracies. However, instead of addressing each inaccuracy contained within the letter, 

we believe it would be most fruitful to provide you with the below written summary of the 

government’s handling of the Backpage server data to date. 

Total Servers

The government has 46 Backpage servers in its possession obtained from 

Amsterdam, Netherlands (“Amsterdam”), Tucson, Arizona (“Tucson”), and Dallas, Texas 

(“Dallas”). We are currently awaiting receipt of approximately 60 additional servers from 

Amsterdam through the Mutual Legal Assistance Treaty (“MLAT”) process.

Amsterdam Servers 

We currently have in our possession nine servers obtained from Amsterdam through 

the MLAT process. Of these nine servers, three are slave database servers, three are image 

servers, two are master database servers, and one is a backup server. Backpage operated 

Two Renaissance Square Main: (602) 514-7500

40 N. Central Ave., Suite 1800 Main Fax: (602) 514-7693

Phoenix, AZ 85004-4408

March 7, 2019

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 22 of 34
March 7, 2019

Page 2

as a classified advertising website for approximately 14 years so we’re certain you are 

aware of the content hosted on the site. However, we extracted all of the Backpage 

marketplace database files (i.e. all of the ads that were on Backpage.com) from these 

servers and have imaged the server containing all of the Backpage images in order to help 

facilitate any review you would like to conduct of this data. As I indicated in my March 4, 

2019 email to you, the hard drives containing this data are available for pick-up at an FBI 

facility in Phoenix. Additionally, in accordance with Federal Rule of Criminal Procedure

16(a)(1)(E), these nine servers are available for your inspection at an FBI data center 

facility in Pocatello, Idaho. Our forensic examiners located at this facility are available to 

facilitate your review of these servers and answer any technical questions you may have 

regarding this particular data.

In addition to the aforementioned nine servers currently in the government’s 

possession, we are awaiting receipt of approximately 60 servers from Dutch officials 

through the MLAT process. We have been advised by a former Backpage employee who 

managed these servers that these 60 servers contain payment processing data and data 

redundancy from the nine Amsterdam servers currently in the government’s possession. 

These servers will also be available for your inspection at an FBI data center facility in 

Pocatello, Idaho when we receive them.

Dallas Servers

We currently have in our possession five Backpage servers seized from Dallas. Of 

these five servers, we were advised by a former Backpage employee who managed these 

servers that two of these servers contain Backpage-related email data. These two servers 

have been imaged and the hard drives containing this data are available for pick-up at an 

FBI facility in Phoenix. The former Backpage employee who managed these servers also 

advised us that the remaining three Dallas servers in our possession contain antivirus 

servers, asset tracking/inventory software, a backup server, web user interface, virtual 

private network for end point, VM servers, and WSUS. In accordance with Federal Rule 

of Criminal Procedure 16(a)(1)(E), these three servers are available for your inspection at 

an FBI data center facility in Pocatello, Idaho. Our forensic examiners located at this 

facility are available to facilitate your review of these servers and answer any technical 

questions you may have regarding this particular data.

Tucson Servers

We currently have in our possession 32 servers and three hard drives seized from 

Tucson. We were advised by a former Backpage employee who managed these servers 

that they contain data redundancy of the marketplace database files and images from the 

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 23 of 34
March 7, 2019

Page 3

Amsterdam servers. We have imaged the master marketplace database and image servers. 

The hard drives containing this data are available for pick-up at an FBI facility in Phoenix. 

In accordance with Federal Rule of Criminal Procedure 16(a)(1)(E), these 32 servers are 

available for your inspection at an FBI data center facility in Pocatello, Idaho. Our forensic 

examiners located at this facility are available to facilitate your review of these servers and 

answer any technical questions you may have regarding this particular data.

Sampling of Ad data and Ad data the Government Might Utilize at Trial

During our February 20, 2019 phone conversation (and again in your February 26, 

2019 letter), you requested samples of “[Backpage] advertisements as such ads now appear 

in the data the government has imaged.” You also requested “discrete parts of all 

advertisements that are the subject of counts in the Superseding Indictment.” To be clear, 

the government has previously produced to you in discovery ads that are referenced in

counts in the Superseding Indictment. However, we are willing to produce samples of 

Backpage ads as the ads appear in the server data the government has imaged, to include 

ads referenced in counts in the Superseding Indictment. Although we had hoped to have 

this sampling to you this week, our forensic examiner culling this data was unexpectedly 

away from the office for a number of days, so we will need additional time to compile the 

requested sampling. We will send this sampling to you as soon as possible. Also, as

previously noted, the entire marketplace of Backpage ads have been extracted for you and 

is available for pick-up at your convenience. 

Additionally, given the voluminous amount of server data, the government agrees 

to provide to you with exhibits of any server data that we might utilize at trial. This should 

greatly assist you in focusing your efforts and attention on server data relevant to the case. 

Please reach out to me with additional questions. We will continue to work

diligently to answer them and facilitate your review of materials in this case.

BRIAN BENCZKOWSKI

Assistant Attorney General

Criminal Division 

U.S. Department of Justice

s/Reginald E. Jones

REGINALD E. JONES 

Senior Trial Attorney, CEOS

(202) 616-2807

reginald.jones4@usdoj.gov

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 24 of 34
March 7, 2019

Page 4

ELIZABETH A. STRANGE

First Assistant U.S. Attorney 

KEVIN M. RAPP

MARGARET PERLMETER 

PETER S. KOZINETS 

ANDREW STONE

Assistant United States Attorneys

JOHN J. KUCERA 

Special Assistant U.S. Attorney

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 25 of 34
EXHIBIT E

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 26 of 34
1

Whitney Bernstein

From: Jones, Reginald (CRM) <Reginald.Jones4@usdoj.gov>

Sent: Wednesday, April 10, 2019 4:54 PM

To: Whitney Bernstein

Subject: RE: US v. Lacey et al., 18-CR-0422-PHX-SMB

Attachments: Response to W. Bernstein's 2.26.19 letter.pdf

Follow Up Flag: Follow up

Flag Status: Flagged

Hi Whitney: 

I’ve been out of the office today on work‐related travel.  I spoke with FBI personnel in Pocatello, Idaho today 

and unfortunately we are unable to meet with you this Thursday.  The FBI datacenter in Pocatello is required 

to run background checks on all non‐FBI personnel who enter the building and thus require 48‐72 hour notice 

before non‐FBI personnel can enter the building.    That being said, we are available to meet with you to 

inspect the Backpage server data next Wednesday April 17, 2018 at 1pm in Pocatello.  The nine servers seized 

from Amsterdam and three of the five servers seized from Dallas are located in Pocatello.  The 37 servers 

seized from Tucson and two of the five servers seized from Dallas are now available for your review at an FBI 

facility in Phoenix, Arizona.  Since you will be in Phoenix later this month and indicated you plan to pick‐up 

Defendant Larkin’s personal devices from FBI Phoenix during your visit, we are happy to facilitate your 

inspection of the servers located in Phoenix on April 23rd or April 24th.    As I articulated in my March 7, 2019 

email to you (email is attached) per Federal Rule of Criminal Procedure Rule 16, the Backpage server data 

located in Pocatello and Phoenix is available for you to inspect and copy.   

If next Wednesday April 17, 2019, still works for you to travel to Pocatello, please provide me the name, date 

of birth, and social security number of everyone who will be traveling to the datacenter so FBI can start 

conducting the necessary background investigation.   

Also, I’m currently on work‐related travel, but will plan to send you the chain of custody for all servers when 

I’m back in the office on Friday.  The chain of custody will provide a list of all servers in the government’s 

possession.  As we indicated to you previously, there is no master list that describes what data is on each 

server, but as you know, we’ve imaged several servers and have spoken with the former Backpage employee 

who managed the server data and described to you in the attached March 7 letter the data contained on the 

servers currently in our possession.  We were informed by this same former Backpage employee that the 

payment processing data is located on the remaining servers in Amsterdam.  As per your request (and as we 

indicated in our March 7 letter to you), we will make that data as well as any other data contained on those 

remaining servers available to you when it is received via the MLAT process. 

Backpage operated as a classified website for more than 14 years so we’re sure your client, as owner of the 

company, is aware of the data that was hosted on the website.  So, if there is specific data other than ads, 

images, emails, and payment processing data that you believe is material to your defense, please let us know 

and we will attempt to locate that data for you.   

We’ve worked diligently to image and make available to you server data currently in our possession that you 

might find relevant to the case and have even agreed to provide you with exhibits of any server data we might 

utilize at trial to assist you in focusing your efforts and attention.    

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 27 of 34
2

Again, in accordance with the Federal Rules of Criminal Procedure, all Backpage server data in the 

government’s possession is available for your inspection; however, we believe it would be most efficient for all 

parties if you could consult with Defendants and provide the government specific server data other than the 

ad, image, and email data we’ve imaged and made available to you (and payment processing data we will 

make available to you when we receive it), that you believe is material to your defense.   

Please send me the names, dates of birth, and social security numbers for next Wednesday as soon as 

possible, and I will get you the chain of custody documents by the end of the week. 

Best,  

Reggie  

From: Whitney Bernstein [mailto:wbernstein@bienertkatzman.com]  

Sent: Wednesday, April 10, 2019 5:01 PM 

To: Jones, Reginald (CRM) <Reginald.Jones@CRM.USDOJ.GOV> 

Subject: RE: US v. Lacey et al., 18‐CR‐0422‐PHX‐SMB 

Hi Reggie: 

I am following up again.  I also left you a voicemail this morning.  You’ve explained that the servers are only available for 

review at the FBI facility in Pocatello and won’t be imaged or otherwise produced.  We’d like to go to Pocatello.  You’ve 

explained that we have to clear our request for an appointment through you and not through the FBI tech agent 

directly.  As discussed with you yesterday, we’d like to go this Thursday or sometime next week (with the exception of 

Tuesday, as I said in my voicemail this morning).  I’ve still yet to hear back from you about this.  I would really appreciate

the courtesy of a reply, so we can sort this visit out, obtain travel arrangements if necessary, and generally plan our 

schedules. 

I can be reached at 949‐369‐3700 or via email here anytime. 

Thank you in advance for a prompt reply, 

Whitney 

Whitney Z. Bernstein | Attorney

Bienert | Katzman PC 

Tel.: (949) 369-3700

From: Whitney Bernstein  

Sent: Tuesday, April 9, 2019 1:23 PM 

To: 'Jones, Reginald (CRM)' <Reginald.Jones4@usdoj.gov> 

Subject: RE: US v. Lacey et al., 18‐CR‐0422‐PHX‐SMB 

Sorry, one more logistics email! – please let me know about Thursday 4/11, and if that doesn’t work, please let me know 

if next week—Monday 4/15, Tuesday 4/16, Wednesday 4/17, Thursday 4/18, or Friday 4/19—works. 

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 28 of 34
3

Thank you, I’m at 949‐369‐3700, 

Whitney 

Whitney Z. Bernstein | Attorney

Bienert | Katzman PC 

Tel.: (949) 369-3700

From: Whitney Bernstein  

Sent: Tuesday, April 9, 2019 1:02 PM 

To: 'Jones, Reginald (CRM)' <Reginald.Jones4@usdoj.gov> 

Subject: RE: US v. Lacey et al., 18‐CR‐0422‐PHX‐SMB 

Hi Reggie: 

Additionally, if Thursday afternoon is not available, please let me know if Monday 4/15 is. 

Thank you, I’ll wait to hear back from you, 

Whitney  

Whitney Z. Bernstein | Attorney

Bienert | Katzman PC 

Tel.: (949) 369-3700

From: Whitney Bernstein  

Sent: Tuesday, April 9, 2019 12:05 PM 

To: 'Jones, Reginald (CRM)' <Reginald.Jones4@usdoj.gov> 

Subject: RE: US v. Lacey et al., 18‐CR‐0422‐PHX‐SMB 

Hi Reggie, 

Thanks for speaking just now. 

Thank you for following up with the Pocatello folks and getting back to me as soon as you can.  I’d like to come this 

Thursday, April. 12, afternoon (~1pm until close of business) to inspect, view, turn on, manipulate, copy, etc. the 46 

servers that are there now.  (As discussed, you indicated that no court order is needed to be able to inspect, view, turn 

on, manipulate, copy, etc. the servers—just that the forensic FBI people would need to supervise the process; and that 

regarding imaging of any servers, we can coordinate that process once we identify the servers we’ll need imaged copies 

of).  Please let me know whether this visit can occur as soon as you can.   

Thank you as well for sending, or redirecting me to, the (i) evidence logs, (ii) detailed inventories, and (iii) chain of 

custody logs for all 46 servers in Pocatello as soon as you can.  This will allow us to answer your request as to which 

items in particular we want to inspect in Pocatello to make it most efficient for everyone.   

Additionally, it would help us to tell you which servers we want to inspect if you could provide a list of all servers, what is 

on each server, where each server came from, etc.  I believe when I asked for a list like this on our February 20, 2019 

phone call, Matt Frost said one did not exist, but perhaps it now does.  Especially since I now understand that the 

government does not intend to image or produce any additional servers of the 46 in Pocatello and the 60 forthcoming in 

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 29 of 34
4

the MLAT process, and only intends to make this discovery of 106 servers available to us for our inspection in Pocatello, I 

would hope to be able to get a list of what the servers contain, where they’re from, etc. so we can expedite and 

streamline future review. 

Regarding future trips to Pocatello, I will check my calendar and get back to you shortly with some dates this month and 

next that we’ll need to view the servers. 

You indicated that the government expects to receive the additional 60 servers currently in the MLAT process in the next 

one to two months.  The payment processing data is expected to be included in these 60 servers.  Once the government 

gets these 60 additional servers, please send (i) an evidence log, (ii) detailed inventory, (iii) chain of custody, and (iv) list 

of all servers, what is on each server, where each server came from, etc. so we can coordinate our review of these 60 

servers.   

Finally, regarding the data available for pick up in Phoenix (Backupify data and Larkin’s personal devices), I will plan to 

pick these up either April 22, 23, or 24.   

Thank you again for speaking, and please let me know about Thursday as soon as you can.   

Thank you, 

Whitney 

Whitney Z. Bernstein | Attorney

Bienert | Katzman PC 

Tel.: (949) 369-3700

From: Whitney Bernstein  

Sent: Monday, April 8, 2019 3:22 PM 

To: 'Jones, Reginald (CRM)' <Reginald.Jones4@usdoj.gov> 

Subject: RE: US v. Lacey et al., 18‐CR‐0422‐PHX‐SMB 

Great, please call me at 949‐369‐3700 then.  Thank you. 

Whitney Z. Bernstein | Attorney

Bienert | Katzman PC 

Tel.: (949) 369-3700

From: Jones, Reginald (CRM) <Reginald.Jones4@usdoj.gov>  

Sent: Monday, April 8, 2019 3:13 PM 

To: Whitney Bernstein <wbernstein@bienertkatzman.com> 

Subject: Re: US v. Lacey et al., 18‐CR‐0422‐PHX‐SMB 

Tomorrow morning 11am PST works for me. 

On Apr 8, 2019, at 5:41 PM, Whitney Bernstein <wbernstein@bienertkatzman.com> wrote: 

Anytime tomorrow* morning. 

  

  

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 30 of 34
5

From: Whitney Bernstein  

Sent: Monday, April 8, 2019 2:38 PM 

To: 'Jones, Reginald (CRM)' <Reginald.Jones4@usdoj.gov> 

Subject: RE: US v. Lacey et al., 18‐CR‐0422‐PHX‐SMB 

  

Hi Reggie:  

  

I just tried you again and left a VM.  I’m at my desk for the rest of the afternoon, so now would be a 

good time for this call.  Otherwise, I can speak anytime morning.  I appreciate speaking ASAP regarding 

logistics of picking up/viewing discovery at both Phoenix and Pocatello offices.   

  

Thanks,  

  

Whitney  

  

Whitney Z. Bernstein | Attorney

Bienert | Katzman PC

Tel.: (949) 369-3700

  

  

From: Whitney Bernstein  

Sent: Monday, April 8, 2019 2:26 PM 

To: 'Jones, Reginald (CRM)' <Reginald.Jones4@usdoj.gov> 

Subject: RE: US v. Lacey et al., 18‐CR‐0422‐PHX‐SMB 

  

Hi Reggie: 

  

Can you call me at 949‐369‐3700 regarding Phoenix and Pocatello? 

  

Thank, 

  

Whitney  

  

Whitney Z. Bernstein | Attorney

Bienert | Katzman PC

Tel.: (949) 369-3700

  

  

From: Jones, Reginald (CRM) <Reginald.Jones4@usdoj.gov>  

Sent: Monday, April 8, 2019 2:25 PM 

To: Whitney Bernstein <wbernstein@bienertkatzman.com> 

Subject: RE: US v. Lacey et al., 18‐CR‐0422‐PHX‐SMB 

  

Hi Whitney:

I received today the voicemail you left for me after business hours EST on Friday regarding pick‐up of the 

personal device data.  Please let me know a good time to schedule a call or let me know some times that 

work for your schedule to pick‐up the data from FBI Phoenix.

Thanks,

Reggie 

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 31 of 34
6

From: Jones, Reginald (CRM)  

Sent: Friday, April 5, 2019 2:29 PM 

To: 'Whitney Bernstein' <wbernstein@bienertkatzman.com> 

Subject: RE: US v. Lacey et al., 18‐CR‐0422‐PHX‐SMB 

  

No problem.

Also, I checked with FBI and unfortunately the personal devices and documents data cannot be picked‐

up this weekend, however, they can be picked up on Monday morning.  Let me know if you’d like to 

pick‐up these items Monday morning.  They are contained in one small box.

Thanks,

Reggie 

From: Whitney Bernstein [mailto:wbernstein@bienertkatzman.com]  

Sent: Friday, April 5, 2019 2:24 PM 

To: Jones, Reginald (CRM) <Reginald.Jones@CRM.USDOJ.GOV>; Rapp, Kevin (USAAZ) 

<KRapp@usa.doj.gov>; Kucera, John (USACAC) <jkucera@usa.doj.gov>; Perlmeter, Margaret (USAAZ) 

<MPerlmeter@usa.doj.gov>; Kozinets, Peter (USAAZ) <PKozinets@usa.doj.gov> 

Cc: Tom Bienert <tbienert@bienertkatzman.com>; Toni Thomas <tthomas@bienertkatzman.com> 

Subject: RE: US v. Lacey et al., 18‐CR‐0422‐PHX‐SMB 

  

Thanks, Reggie.   

  

Whitney Z. Bernstein | Attorney

Bienert | Katzman PC

Tel.: (949) 369-3700

  

  

From: Jones, Reginald (CRM) <Reginald.Jones4@usdoj.gov>  

Sent: Friday, April 5, 2019 11:18 AM 

To: Whitney Bernstein <wbernstein@bienertkatzman.com>; Rapp, Kevin (USAAZ) 

<Kevin.Rapp@usdoj.gov>; Kucera, John (USACAC) <John.Kucera@usdoj.gov>; Perlmeter, Margaret 

(USAAZ) <Margaret.Perlmeter@usdoj.gov>; Kozinets, Peter (USAAZ) <Peter.Kozinets@usdoj.gov> 

Cc: Tom Bienert <tbienert@bienertkatzman.com>; Toni Thomas <tthomas@bienertkatzman.com> 

Subject: RE: US v. Lacey et al., 18‐CR‐0422‐PHX‐SMB 

  

Hi Whitney,

We provided you with search warrants and affidavits (Bates labeled) in our November 30, 2018 

production.  However, I’m happy to resend you these warrants – they are attached.   Please let us know 

if we can further assist.

Thanks,

Reggie  

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 32 of 34
7

From: Whitney Bernstein [mailto:wbernstein@bienertkatzman.com]  

Sent: Thursday, April 4, 2019 2:57 PM 

To: Jones, Reginald (CRM) <Reginald.Jones@CRM.USDOJ.GOV>; Rapp, Kevin (USAAZ) 

<KRapp@usa.doj.gov>; Kucera, John (USACAC) <jkucera@usa.doj.gov>; Perlmeter, Margaret (USAAZ) 

<MPerlmeter@usa.doj.gov>; Kozinets, Peter (USAAZ) <PKozinets@usa.doj.gov> 

Cc: Tom Bienert <tbienert@bienertkatzman.com>; Toni Thomas <tthomas@bienertkatzman.com> 

Subject: RE: US v. Lacey et al., 18‐CR‐0422‐PHX‐SMB 

  

Hi Reggie: 

  

Thank you for sending this.  As previously requested, please include wbernstein@bmkattorneys.com

and tthomas@bmkattorneys.com on all case‐related electronic correspondence sent to Tom Bienert. 

  

We will make arrangements to have the hard drives and CDs containing data seized from Mr. Larkin 

picked up from the Phoenix FBI facility and reach out to you separately as requested in the letter to 

schedule a time.   

  

Finally, your letter also indicates that the government obtained court‐authorized search warrants for the 

devices.  Please also send us copies of the applications, affidavits, and warrants related to these 

searches and seizures, as we don’t believe we’ve previously received those. 

  

Thank you, 

  

Whitney 

  

Whitney Z. Bernstein | Attorney

Bienert | Katzman PLC

Tel.: (949) 369-3700

  

  

From: Jones, Reginald (CRM) <Reginald.Jones4@usdoj.gov>  

Sent: Thursday, April 4, 2019 10:41 AM 

To: Whitney Bernstein <wbernstein@bienertkatzman.com>; Rapp, Kevin (USAAZ) 

<Kevin.Rapp@usdoj.gov>; Kucera, John (USACAC) <John.Kucera@usdoj.gov>; Perlmeter, Margaret 

(USAAZ) <Margaret.Perlmeter@usdoj.gov>; Kozinets, Peter (USAAZ) <Peter.Kozinets@usdoj.gov> 

Cc: Tom Bienert <tbienert@bienertkatzman.com>; Toni Thomas <tthomas@bienertkatzman.com> 

Subject: RE: US v. Lacey et al., 18‐CR‐0422‐PHX‐SMB 

  

Hi Whitney:

Please find attached an email and letter sent to Tom Bienert of your firm on March 18, 2019, regarding 

the personal devices and documents seized from your client, Defendant James Larkin.

Please reach out with additional questions.

Best,

Reggie 

Reginald E. Jones

U.S. Department of Justice, Criminal Division

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 33 of 34
8

T: 202.616.2807 | reginald.jones4@usdoj.gov

From: Whitney Bernstein [mailto:wbernstein@bienertkatzman.com]  

Sent: Thursday, April 4, 2019 1:26 PM 

To: Rapp, Kevin (USAAZ) <KRapp@usa.doj.gov>; Kucera, John (USACAC) <jkucera@usa.doj.gov>; 

Perlmeter, Margaret (USAAZ) <MPerlmeter@usa.doj.gov>; Jones, Reginald (CRM) 

<Reginald.Jones@CRM.USDOJ.GOV>; Kozinets, Peter (USAAZ) <PKozinets@usa.doj.gov> 

Cc: Tom Bienert <tbienert@bienertkatzman.com>; Toni Thomas <tthomas@bienertkatzman.com> 

Subject: US v. Lacey et al., 18‐CR‐0422‐PHX‐SMB 

  

Kevin, 

  

Please see attached. 

  

Thank you, 

  

Whitney 

  

Whitney Z. Bernstein

Attorney

Bienert | Katzman PLC

903 Calle Amanecer, Suite 350

San Clemente, CA 92673

Main (949) 369-3700

Website: www.bmkattorneys.com

<image001.jpg>

The foregoing message is confidential and intended for the designated recipient only. The foregoing information may be protected 

by attorney-client and/or work product privileges. Accordingly, if you have received this message in error, please contact 

BIENERT | KATZMAN, PLC at (949) 369-3700 immediately, and delete the message without reviewing, copying, or making 

further use of the information contained herein.

  

Case 2:18-cr-00422-DJH Document 527-1 Filed 04/17/19 Page 34 of 34