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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

_________________

United States of America, )

) No. 2:18-cr-00422-DJH

Plaintiff, )

)

vs. ) Phoenix, Arizona

) August 31, 2023

Michael Lacey, et al. ) 8:47 a.m.

)

Defendants. )

_____________________________ )

BEFORE: THE HONORABLE DIANE J. HUMETEWA, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS

JURY TRIAL - DAY 3 - A.M. SESSION

Official Court Reporter:

Hilda Elizabeth Lopez, RMR, FCRR

Sandra Day O'Connor U.S. Courthouse, Suite 312

401 West Washington Street, Spc 30

Phoenix, Arizona 85003-2151

(602) 322-7256

Proceedings Reported by Stenographic Court Reporter

Transcript Prepared by Computer-Aided Transcription

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A P P E A R A N C E S

For the Government:

UNITED STATES ATTORNEY'S OFFICE

By: Mr. Kevin M. Rapp, Esq.

Mr. Peter S. Kozinets, Esq.

Mr. Andrew C. Stone, Esq.

Ms. Margaret Wu Perlmeter, Esq.

40 North Central Avenue, Suite 1200

Phoenix, Arizona 85004

kevin.rapp@usdoj.gov

peter.kozinets@usdoj.gov

andrew.stone@usdoj.gov

margaret.perlmeter@usdoj.gov

For the Government:

UNITED STATES DEPARTMENT OF JUSTICE

By: Mr. Austin Berry, Esq.

1301 New York Avenue, NW, 11th Floor

Washington, DC 20005

austin.berry2@usdoj.gov

For the Defendant Michael Lacey:

LIPSITZ GREEN SCIME CAMBRIA, L.L.P.

By: Mr. Paul J. Cambria, Jr., Esq.

42 Delaware Avenue, Suite 120

Buffalo, NY 14202

pcambria@lglaw.com

For the Defendant Scott Spear:

FEDER LAW OFFICE, P.A.

By: Mr. Bruce S. Feder, Esq.

2930 East Camelback Road, Suite 160

Phoenix, AZ 85016

bf@federlawpa.com

- and -

KESSLER LAW OFFICE

By: Mr. Eric Walter Kessler, Esq.

6720 N. Scottsdale Road, Suite 210

Scottsdale, AZ 85253

eric.kesslerlaw@gmail.com

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For the Defendant John Brunst:

BIRD MARELLA BOXER WOLPERT NESSIM DROOKS

LINCENBERG & RHOW, P.C.

By: Mr. Gopi K. Panchapakesan, Esq.

Mr. Gary S. Lincenberg, Esq.

1875 Century Park E, Suite 2300

Los Angeles, CA 90067

gpanchapakesan@birdmarella.com

glincenberg@birdmarella.com

For the Defendant Andrew Padilla:

DAVID EISENBERG, P.L.C.

By: Mr. David S. Eisenberg, Esq.

3550 North Central Avenue, Suite 1155

Phoenix, AZ 85012

david@deisenbergplc.com

For the Defendant Joye Vaught:

JOY BERTRAND, ESQ., L.L.C.

By: Ms. Joy M. Bertrand, Esq.

P.O. Box 2734

Scottsdale, AZ 85252

joy@joybertrandlaw.com

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P R O C E E D I N G S

(Proceedings commence at 8:47 a.m.)

THE COURT: All right. The record will reflect the

presence of government counsel, the presence of all defense

counsel and clients. No jury panel member is present.

Let me tell you, just in looking at the PowerPoint on

the government's perspective, and looking at the law, in the

Ninth Circuit the rule is that if it is admissible and you

intend to admit it, and if it is stipulated to at this point,

you can put it in your PowerPoint. If it is not, and I will

tell you that if there is no agreement with regard to e-mail

statements yet, remove it. You can talk about it, but remove

it.

To the extent that any of those photographs are

booking photographs, remove them. You have the parties here.

You can refer to the parties, point to the parties. Remove

those photographs.

The same goes for defense. I haven't seen anything

yet, but I will tell you if it is not intended to be admitted,

if there's no foundation to be laid, it is not going to come

in. Don't risk the potential 'cause I'll stop you midsentence

and tell you to shut down your PowerPoint. So scrub those

PowerPoints with those directives in mind. If you do not

intend to admit it, if it is inadmissible, not agreed to at the

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moment, do not use it. That is my ruling.

Yes.

MR. STONE: May I ask just one clarifying question,

Your Honor?

THE COURT: Yes.

MR. STONE: You're saying there are exhibits that the

government intends to admit. There's been zero stipulation

about any exhibits coming in at all from either side.

THE COURT: That's fine.

MR. STONE: So is it -- is your ruling that if we

intend to admit and we have a good faith basis, then we can use

it, or does it need to be stipulated to come in?

THE COURT: It should be stipulated to. You are

certain it's going to be admitted.

And what I'm saying is, I noted that there are

PowerPoints with quotes from e-mails or whatever they may be,

directed to a particular -- attached to a particular defendant,

and that is not yet admitted, so that will not come in in the

form of a PowerPoint slide. You can talk about the e-mail

content, but don't display it for the jury, please.

MR. STONE: What about demonstrative slides, Your

Honor, that are just intended to help the jury understand what

the evidence will be when it comes in?

THE COURT: That may be permitted. The same goes for

the defense. However, it need not be over the top or

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excessive. And if I find it to be excessive, like I said,

don't run the risk in front of this jury that I will shut you

down.

I don't necessarily -- so yesterday there was an

example of some lyrics or something like that. This case is

not about lyrics or a song. So to the extent that anyone has

that in their PowerPoint, remove it.

No mugshots --

MR. STONE: I take it, Your Honor, again, another

point of clarification, if an exhibit is not stipulated to it

should not be shown to the jury?

THE COURT: That's right. Gone are the days

apparently where this didn't have to occur. You could just

speak because all of you are great lawyers, and we wouldn't

have this problem. You create the problem if you want to

pursue this avenue of drama, and this is not the time or the

place.

Yes, Mr. Eisenberg?

MR. EISENBERG: Your Honor, I have the actual e-mails

that are noted as exhibits for the defense. The government has

just informed me that it will not stipulate to the admission of

those e-mails, and I assume what they are saying they won't

stipulate to that at trial, and they are not stipulating to it

now. Does that mean that e-mail still cannot be used?

THE COURT: That's right. You can talk about it. You

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can say: The evidence will show. The evidence will show --

MR. EISENBERG: It just can't --

THE COURT: -- we are going to put forth the evidence

of X, Y and Z.

MR. EISENBERG: It just can't be displayed?

THE COURT: Yes. Do not display it.

MR. STONE: One further point of clarification, Your

Honor. We don't have any mugshots as photos in the PowerPoint.

THE COURT: Well, they look like mugshots to me. I

mean, the problem, Mr. Stone, is we've been inundated in the

media with what appeared to be mugshots, and I think we all

know what I'm talking about. And so those photographs, I don't

think they are necessary. You have the defendants all present

here. You can refer to them. This jury will be here for two

months plus. They will know who's who. I understand that you

want to provide a roadmap, but I don't think the photographs

are necessary at this point.

MR. STONE: The only --

THE COURT: Frankly, some of the photographs don't

look like the same individual.

MR. STONE: Understood, Your Honor. The only

follow-up is the defense made the same argument for the first

trial and Judge Brnovich ruled that she thought the photographs

would be helpful and could be used in the PowerPoint, so we

were taking that as law of the case.

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THE COURT: Well, at this juncture, that is my ruling.

MR. STONE: Understood, Your Honor.

THE COURT: Thank you. Be prepared to go. Let's have

our -- I'm sorry, Mr. Eisenberg.

MR. EISENBERG: Yes. Thank you, Your Honor. So that

if I refer to the e-mail and don't display it and the

government objects during my opening, do I have to face that?

THE COURT: I don't know. We'll see.

MR. EISENBERG: Oh. Well, okay.

THE COURT: I can't predict what the government is

going to do, and I can't predict what I'm going to do. I am

giving you the same directive as I gave the government.

MR. EISENBERG: I understand.

THE COURT: If you intend to prove it, if you intend

to admit it during your case in chief or through a witness, you

may refer to it orally. But if it's a part of an exhibit that

you intend to admit and it hasn't been stipulated to, there is

no foundation yet to be laid, then don't show it.

MR. EISENBERG: I got it.

THE COURT: Okay. Thank you. All right. Let's have

the individual last panel in.

(Prospective jury panel members 98 through 110 are present

at 8:56 a.m.)

THE COURT: Come to order. Do we have our microphones

there? Thank you.

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All right. We have Jurors 97 -- I'm sorry -- 98

through 110 present. Please be seated. And welcome back to

the jury panel members. Again, I do thank you for your

patience. And I do want to remind you that you remain under

oath for the duration of the proceeding, and so all of the

information that you provide to us must be completely truthful

and accurate. Certainly, if during this process you'd rather

answer something in a private way, I'll permit you to do that.

As I asked you yesterday, I asked you to report if you

had seen, read, heard, listened to anything having to do with

the case, so I ask you to keep that in the back of your mind

and I will finalize my questioning of you with that question

again.

And so with that, I want to remind you about a couple

of the questions that were in the questionnaire that you

probably haven't thought about since you completed it, and I

wanted to make sure that you didn't have additional information

that you wanted to share, if you had feelings that were

generated recently about these areas.

There were a series of questions about your attitudes

or feelings regarding prostitution and adult-oriented

entertainment. And the question, to refresh your recollection

was, whether you had strong feelings about pornography on the

Internet, or have you or someone close to you ever been

affected by pornography, whether you had strong feelings about

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the adult entertainment industry or people working in the adult

entertainment industry, or have you or someone close to you

ever been affected by this type of service?

And similarly, if you had strong feelings about

prostitution or whether you or someone close to you has been

affected by prostitution or the purchase or sale of a sex act

for money, otherwise known as commercial sex?

Many of you had a variety of different answers to

those questions. Some of you answered no to all of them and,

therefore, you basically moved on. Some of you said that you

have had some feeling about it. Others of you believed

strongly about it, had strong feelings about it, and,

therefore, followed up about what those feelings were.

As you can recall filling out the answers to those

questions, have any of your feelings changed?

And there were a number of questions related to

whether or not you thought law enforcement, local, state or

federal and the government should expend resources

investigating and prosecuting individuals who are purchasers of

commercial sex. Again, here too, some of you expressed no

feeling whatsoever. Some of you in fact said: I've never

thought of it. Others of you expressed strong feelings. Some

of you qualified those feelings only if it related to people

who were forced into certain activity or if it affected

children.

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Have any of your feelings regarding that question

changed, or have you developed new thoughts about that?

There was another question about whether or not you

had strong feelings about whether or not prostitution should be

legalized. Again, here too, some of you either said you had

never thought about it before, some of you said no, and some of

you basically said, yes, you had strong feelings.

And the qualification to the answers went something

like this: Yes, it should be legalized, therefore, we can

regulate it better.

Some of you said: No, it should not be legalized. It

creates all sorts of social ills, and there's other things that

go along with that.

And like I said, some of you expressed no feeling

about it. Perhaps you had not given it much thought.

Have any of your thoughts or attitudes since you

completed this questionnaire changed? Okay. No.

Now, there was another question about whether you

thought resources, law enforcement or government resources

should be used to investigate and prosecute businesses or

individuals who provide a platform that sell goods or services

that promote or facilitate prostitution. And here too there

were a variety of answers. Some of you said no. Some of you

said I have not thought about that. Some of you said it's a

complex issue. Some of you, in fact, believed that resources

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should be used.

Have any of your thoughts, opinions or feelings

changed one way or the other?

All right. Let me -- with regard to those series of

questions, I do have a couple of follow-up questions. Let me

go to Juror 100. Juror 100, with regard to strong feelings

about pornography on the Internet or whether or not someone

close to you has ever been affected by pornography, you had

strong feelings, yes. And when I ask you a question, if you

would bring the mic -- pass the mic to the juror, and speak

very closely into the microphone. They are a bit sensitive.

If you would just stand so that all counsel can see you. Thank

you.

Your explanation was that you thought it had a very

negative effect on families. Is there anything more about that

that you would like to expound upon?

PROSPECTIVE JUROR: No, Your Honor.

THE COURT: Now, having developed that feelings and

its effects on families, would you be able to set aside those

opinions and view the evidence and hear the testimony in this

case with an open mind?

PROSPECTIVE JUROR: I believe I can do that.

THE COURT: Okay. So when you say you believe you

can, would these thoughts and feelings about the effect on

families, would those creep into your head from time to time?

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PROSPECTIVE JUROR: Well, being a human being I have

to say of course they would, but I also believe everybody is

entitled to a fair trial.

THE COURT: Okay. Thank you. And you similarly

answered the question about having strong feelings about people

working in the adult entertainment industry and people who

purchase commercial sex, and with those topics, do you have

anything more to expound upon?

PROSPECTIVE JUROR: No. My feelings would reflect

what I said initially about pornography in that I think it's

harmful to all of us and all the individuals involved in that.

THE COURT: And then with regard to questions about

using resources to investigate and prosecute people who

purchase commercial sex, your answer was, like others, that the

government should investigate all crimes.

And then you followed up with the other question about

prostitution, and you said you had strong feelings about that,

whether it should be legalized, and you said yes. And it's a

little bit contradictory because the question is a little

bit -- I guess it could be read either way. It says: Do you

have strong feelings about whether or not prostitution should

be legalized? And you said: Yes. So when you said yes, is

that that you believe it should be legalized?

PROSPECTIVE JUROR: No. Yes, I have strong feelings

about it.

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THE COURT: And then you write: I do not believe it

is good for workers or society.

Is there anything more that you can say about that?

PROSPECTIVE JUROR: Your Honor, in truth, I could

probably speak for an hour about my personal opinions on this

topic, but what is germane to your court is that I think I have

clarified that. I just see it as a harmful thing to the people

working in the industry and to our society at large.

THE COURT: Okay. And then once again, I don't want

to badger the point, but knowing how you feel and the fact that

you have a lot of opinions, it sounds like, about this topic,

would you be able to set those personal views and opinions

aside and come to this case, the evidence and the testimony,

with an open mind?

PROSPECTIVE JUROR: I feel that, again, people are

entitled to a fair trial, and that's what this is all about.

To me that's the bottom line. It doesn't matter what the

particular crime is. It depends on whether or not the guilt or

innocence is proven to me.

THE COURT: All right. Thank you.

And let me inquire of Juror 101, 101. Generally with

regard to using resources to investigate and prosecute

purchasers of commercial sex, you said you had no opinion, and

then you followed up by saying: I would say no if we are

talking about consenting adults and no one has been injured or

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victimized.

Is there anything that you wish to say more about

that?

PROSPECTIVE JUROR: Well, I saw that -- can you hear

me?

THE COURT: Yes.

PROSPECTIVE JUROR: I saw that movie, Sound of

Freedom, and so it kind of, you know, when I saw that I go,

okay, consenting adults, okay. It's always been like that.

Adults -- I'm kind of a Libertarian. Adults should be able to

do, as long as they are not doing any harm to anybody else,

that's the way I look at it. Children is a whole different

story.

THE COURT: Okay. Now, let me ask you another

question in another series. This question was about whether

you had strong feelings about whether websites like YouTube,

Facebook, Twitter and so on, should be responsible for the

content posted by users of the website, and you said yes. And

you stated that you have strong feelings that they should not

be responsible unless it violates community standards or is a

provable lie, such as not suitable for children or threatening

or causing damage to someone.

Is there anything more that you wish to add to that,

or do you have further opinions on that?

PROSPECTIVE JUROR: No. I agree with that.

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THE COURT: Okay. And so having that opinion, would

you be able to set that aside and come to the evidence and the

testimony in this case with an open mind?

PROSPECTIVE JUROR: Yes. I believe so.

THE COURT: Okay. Now, finally, there was a series of

questions that asked about how you would view witness and

victim testimony, and I do want some clarification from you on

this. The question was: Some of the witnesses in the case

are, one, ethnic minorities; two, of a low socioeconomic

status; or three, have experienced challenges with alcohol

and/or substance abuse. Would you find a witness' testimony to

be more or less credible simply based on their, and then it

asks you to answer each, and for each of those categories you

answered no.

And then you explained: I generally take what anyone

tells me with a grain of salt, meaning it doesn't matter who it

is. They usually won't be telling me both sides of the story

factually.

And so it sounds like you come to people's statements

with a high level of skepticism, is that fair to say?

PROSPECTIVE JUROR: Yes.

THE COURT: Now, having developed that view, there are

going to be many, many, as you heard, witnesses who will come

and take the witness stand and they would have to take the oath

just as you did to tell the truth. Would you be able to set

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aside this high skepticism in the first place and listen

intently to what each witness says and base your opinion upon

their testimony with a number of factors about what they --

what their capacity was to hear and see and know the things

testified to?

PROSPECTIVE JUROR: Yeah. Well, since they are under

oath and they face a lot of penalties if they lie, I would -- I

would -- I would lean towards that they are telling the truth.

THE COURT: All right. All right. And that is -- let

me just see if I can clarify, that would be as to any witness

who would take the stand, regardless of their background, if

they had addictions or anything of that kind, is that fair to

say?

PROSPECTIVE JUROR: Yes.

THE COURT: Okay. Thank you. Oh, let me ask all of

you this, because I know there are a couple of folks, and I do

want to follow up on this. Having sat through the process on

Tuesday and this morning, you understand, and in the

questionnaire it pointed out that there are going to be sexual

terms, there are going to be witnesses who talk about

prostitution, use sexual terms, there might be evidence of

that, and there was a question about whether or not you would

be able to listen to that type of testimony, and if selected as

a juror be able to talk about and deliberate with your fellow

jurors, even if it relates to those topics.

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Again, here too, some of you said you would be able to

do so, that it's a part of, you know, some of the society that

we live in today. Others of you said, absolutely not. Some of

you said, yes, but it would be difficult. Some of you said you

weren't sure.

At this point, let me ask, is there anyone among you

who have, know for certain that you would not be able to hear

or discuss that type of content if you were selected as a

juror?

Juror 103, let me just ask you a question, because in

the series of questions about whether or not you thought

resources should be expended to investigate and prosecute

individuals who purchase commercial sex, in my reading your

answer it seemed like you really tried to think about this a

lot and put down what your thoughts were, so I wanted to get

some clarification from you.

You start out by saying: This is a hard question to

answer. I generally feel that law should be followed and that

individuals who break laws should be prosecuted accordingly.

That said, I also believe that there are far worse crimes than

paid sex between consenting individuals, and that resources

could potentially be better spent.

Is there anything more that you can think of or

further explain in that answer?

PROSPECTIVE JUROR: I don't think so. I think that

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summarizes it fairly well.

THE COURT: Okay. And then with regard to whether or

not prostitution should be legalized, you said: No. And then

you said: I think legalization generally makes sense, but I

don't feel strongly about it. I understand that this is a very

difficult and complicated subject.

Have you had anymore time to think on that topic or

whether or not your opinions have formed?

PROSPECTIVE JUROR: I intentionally did not. I

really, really try to avoid making judgments about issues when

I don't have enough information, and I intentionally did not

seek help for further information during the time I filled the

questionnaire out.

THE COURT: All right. Thank you. And then as to the

question about resources being used to investigate and

prosecute businesses or individuals who provide a platform that

sell goods or services that promote or facilitate prostitution,

you said no. And then you basically said: I feel the same way

here as I do about prostitution itself. I generally feel that

laws should be followed, and that individuals who break laws

should be prosecuted accordingly. That said, I also believe

that there are far worse crimes than paid sex between

consenting individuals, and that resources could potentially be

better spent.

Are those your same feelings today?

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PROSPECTIVE JUROR: The same, yes.

THE COURT: There's nothing more that you want to

expound upon with regard to that?

PROSPECTIVE JUROR: I don't think so.

THE COURT: Okay. Thank you.

Juror 104, I wanted to follow up on something that you

said previously. You mentioned that you had migraines.

PROSPECTIVE JUROR: Yes.

THE COURT: And how frequently does that occur?

PROSPECTIVE JUROR: They are sporadic. They are worse

in the summer. I do work outside.

THE COURT: When you have one of these episodes, how

long does the migraine usually last?

PROSPECTIVE JUROR: It could be an hour; it could be

all day. I've had them since I was a child. I deal with them.

THE COURT: And so I guess when you say you deal with

them, in your line of work, if you came upon a migraine, do you

just power through?

PROSPECTIVE JUROR: I do. As a matter of fact, I have

a headache today, but it's -- most of the time I do power

through it.

THE COURT: Do you feel that at times that when you

have the onset of the migraine you're not concentrating or

working as you normally would?

PROSPECTIVE JUROR: Sometimes. If it's bad enough in

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the morning, I do stay home, but again, it's -- it just depends

on the severity. If it comes on during the day, I stay at

work. I have never gone home in the middle of a shift. I

power through it and stay at work.

THE COURT: Now, if you were selected as a juror in

this case, do you feel that you would be able to I guess not

have a situation where the migraine would interfere with your

concentration, or do you worry about that at all?

PROSPECTIVE JUROR: I think most of the time it should

be okay. It's -- I have had them, like I said, my whole life

for the most part, so...

THE COURT: Okay. Well, I'm sorry to hear that, but

thank you.

PROSPECTIVE JUROR: Yes.

THE COURT: Now, there was a question that I wanted to

follow up with you on, and it is that series of questions about

whether or not you had strong feelings about whether or not

prostitution should be legalized, and you said no. And then

you answered: I had never really thought about legalizing it.

Having an opportunity to revisit that question, have

you formed an opinion one way or the other?

PROSPECTIVE JUROR: No. I think I kind of got

confused on the questions as well. Same thing, you know, I

agree as well. I agree that there are more crimes that are

more fitting to be -- I don't really think about it either.

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Consenting adults, in my opinion, can do what they want. As

far as children, it's a different situation in my opinion. But

consenting adults, if that's what they want to do, it doesn't

affect me. As far as legalizing it, I have never really formed

an opinion on that. So...

THE COURT: Okay. It's not something that you think

about it everyday?

PROSPECTIVE JUROR: No, I do not.

THE COURT: Okay. Thank you. Now, there was a series

of questions about victim and witness testimony and the types

of witnesses that may appear and provide testimony. And again,

the categories were: One, ethnic minorities; two, persons of a

low socioeconomic status; or three, those who have experienced

challenges with alcohol and substance abuse. And the question

is: Would you find a witness' testimony to be more or less

credible simply based on their, and then based on their status,

one, two or three. And when it came to substance abuse,

alcohol and/or drugs, you said yes.

And then you explained: I feel that drugs and alcohol

affect a person's actions, et cetera, but that they are still

responsible for the themselves and their actions. And if

currently on drugs and alcohol, they might not be a reliable

witness. And so can you explain that just a little bit

further?

PROSPECTIVE JUROR: I just feel if they are currently

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on, it could affect how -- how they might, you know, respond or

be in that moment, if they are currently on them, how they

could be -- I'm probably not explaining this very well. If

they are currently doing drugs, how they could be affected by

those drugs. Not saying that they purposely are doing anything

wrong, but you're responsible for your actions if you are on

drugs, and it could affect how you -- how you are at the

moment.

THE COURT: Okay.

PROSPECTIVE JUROR: Not saying that they are a bad

person. Just saying that they could possibly be doing

something that they are not meaning to do. If they are on a

drug -- I'm having -- sorry. I'm a little nervous.

THE COURT: That's okay. Let me see if I could maybe

ask you a different way. If an individual came and took the

witness stand and is testifying about something they saw, heard

or knew, the fact that they also have an alcohol or substance

abuse problem, would that affect the way that you view their

testimony?

PROSPECTIVE JUROR: No, ma'am.

THE COURT: Okay. And so is it fair to say it's

whether or not they were on the illegal substance at the time

they saw, heard or knew or came to know?

PROSPECTIVE JUROR: No, not necessarily. And I am not

saying that I am judging them if they are a bad person because

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of that, because we all have our vices. Nobody is perfect.

Not judging them for that. That's not what I meant by that.

THE COURT: Okay. Thank you.

PROSPECTIVE JUROR: Yes.

THE COURT: I wanted to just follow up because I asked

you about some of the sexually explicit topics that were going

to be presented in the case, and you were one of the jurors

that said you weren't sure. And in response you also said: It

would be difficult, especially if it involved children or

molestation.

As I had indicated before, this is not a case where

anyone has been charged with a child sex trafficking or child

molestation charge. And so understanding that, would you still

continue to have difficulty listening and potentially

discussing some of these topics if you were selected as a

juror?

PROSPECTIVE JUROR: No problem at all. Only if it

involved children. That just -- yeah, no problem if there is

no children involved.

THE COURT: Okay. Thank you.

Juror 106, 1-0-6, good morning.

PROSPECTIVE JUROR: Good morning.

THE COURT: There we are. Okay. So I wanted to ask

you a question relating to the potential hardship of serving as

a juror. Although you said the length of the jury schedule

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would not be a hardship, you went on to say that you are a sole

provider of income for your household, has that changed?

PROSPECTIVE JUROR: No, I am still the sole provider.

THE COURT: And so if you are sitting here in jury

service for the better part of two months, how would that

affect your finances, or would it?

PROSPECTIVE JUROR: It wouldn't affect the finances.

The hardship comes is that I have -- I provide transportation

for medical and schooling and so I would have to find coverage

for that.

THE COURT: And in finding coverage, is that often

difficult for your employer?

PROSPECTIVE JUROR: No. I would find -- it's for my

family --

THE COURT: Oh, for your family.

PROSPECTIVE JUROR: -- to get where they need to go.

I am the only driver in that household, so I take them to

school, I take them to appointments, so I would need to find

other people to do that.

THE COURT: And so Tuesday and yesterday, how were the

accommodations made for that transportation?

PROSPECTIVE JUROR: School -- they didn't have school

on Tuesday. I didn't have to worry about it. The day before I

had to find someone else to, and I found my sister to do that.

THE COURT: And is that something that you would be

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able to do if you were selected as a juror to find alternative

sources of transportation?

PROSPECTIVE JUROR: If I know the schedule like the

calendar, I can schedule it ahead of time.

THE COURT: All right. Thank you for providing that.

Juror 107, as well, you answered that you were also

the sole provider of income for your household, and has that

changed?

PROSPECTIVE JUROR: No. I am still the sole provider.

THE COURT: And so if you were selected to serve as a

juror in this case, understanding the length of time that

service would require, would that affect your income or your

ability to serve?

PROSPECTIVE JUROR: Not -- no, not in the slightest.

THE COURT: You have other means of help?

PROSPECTIVE JUROR: My company is very generous with

jury duty time.

THE COURT: Well, we thank that company. We

appreciate that.

I wanted to follow up with you as well that there was

that question regarding victims and witnesses and the

categories, again, the three categories, ethnic minorities,

people of a low socioeconomic status, or people who have

experienced challenges with alcohol and/or substance abuse, and

whether or not you would find those categories of witnesses to

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be more or less credible based on those categories. With

regard to the substance abuse, alcohol or drugs, persons who

are using those substances, you answered yes. And then you

went on to explain: Substance abusers often will say anything

to shape a narrative, and I would be suspicious of their

testimony, though I would try to be open to what they are

saying.

Is there anything more about that that you wish to

expound upon?

PROSPECTIVE JUROR: Yeah, if -- it depends on their

state of mind or their frame while the acts are being

committed. So if they are high on narcotics or something like

that, I don't believe that they could be trusted to tell an

accurate account of what was going on, let alone report on

somebody else if they are doing something. But if they are not

high doing it and they are just an alcoholic or if they have a

drug problem but their story seems accurate based on the

evidence that's being presented at the same time, then, yeah, I

wouldn't have any trouble believing it.

THE COURT: Thank you. Now, in response to a

different set of questions, there was a question that asked

you: Do you have strong feelings about the laws and

regulations affecting the Internet, including the publishing of

content posted by users of the websites? And your answer was

yes. And you stated: I believe strongly that the Internet is

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protected speech and that people should be free to say what

they want under the First Amendment of the constitution.

Is there anything more that you wish to expound upon

with regard to that?

PROSPECTIVE JUROR: Not really. I mean, I just think

that speech is protected. You can say what you want. There's

repercussions for what you say. I have no problem with that,

but lately society, we have become a lot of pearl clutchers,

and everything that comes out everybody is screaming about, and

I think people should be allowed to say what's on their mind.

THE COURT: And then the next question was whether you

had strong feelings about whether websites like YouTube,

Facebook, Twitter and so on should be responsible for the

content posted by users of the website? And you said yes. And

then you explained: While an individual can say what they want

as protected speech, a platform can inadvertently boost hate

speech simply by hosting it. Media companies have a

responsibility to not boost such content. It's a fine line,

but I know it exists.

Can you expound upon that?

PROSPECTIVE JUROR: These are private companies. They

have user agreements that everybody scrolls through and never

reads, but they exist. These private companies have rules, and

if you go on these platforms and start saying things that are

against what the platforms stand for, then you should be

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censored by the platform. I have no problem with that at all.

THE COURT: Okay. And having come to jury service

with this strong belief and that you expressed earlier, would

you be able to sort of set those beliefs aside and view the

testimony and evidence, come to it with an open mind?

PROSPECTIVE JUROR: I don't see a problem with that at

all. I mean, everything is framed in your experience, but I

really don't know what this case is about. To be honest with

you, I have no idea. I'd like to think that I can be fair

based on, you know, my experience and what I believe. I am not

a legislature, so I don't know the statute either. So if the

law -- if there is evidence presented that the laws are broken,

then the laws are broken.

THE COURT: And then you would be able to follow the

Court's directive in terms of how to apply the law to the

facts, is that fair to say?

PROSPECTIVE JUROR: Yeah, absolutely.

THE COURT: Thank you.

Juror No. 110, in answer to the question whether or

not you thought law enforcement and the government should

expend resources investigating, prosecuting people who are

purchasers of commercial sex, you said no. And then you went

on to explain: I think that the facilitators, producers and

persons providing the service should be addressed before the

person who may be tempted by the product. The purchaser may

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need help, help them to not do harm to themselves and

inadvertently intentionally to others labeling, registering and

publicly shaming must be used with extreme care to the

individuals and circumstances.

And so is there something -- can you expound a little

bit more on that?

PROSPECTIVE JUROR: Sure. So my center of thinking

answering those questions was who is being, where is the harm

being done? And that's where answering it was easy to have

feelings on the idea of a stereotypical interaction. That's

probably changed through thinking about this. It's an

introspective survey. I would say that initially I was

thinking that there are some people that might be victims or

they might be perpetrating or causing harm to others, and the

more I think about it, it could be the person buying, it could

be the person selling, and it could be a mixture of any of

those. Any of those people could be harmed or be the person

causing harm. So it became complex. I know I used that word.

THE COURT: Okay. Well, I appreciate you explaining

that a little bit further.

I also wanted to follow up with your answer about

strong feelings about whether or not prostitution should be

legalized, and you said, yes, you do have strong feelings. And

then you said: I think that the facilitators, producers and

persons providing this service should follow normal democratic

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means to make their case how this would be acceptable.

Is that your feeling today?

PROSPECTIVE JUROR: Yeah, I think that that's fairly

accurate. It comes to where it's not legal, if that -- there

are other instances of things becoming legalized, and that

would probably be an appropriate way to approach if -- sorry.

That would be an appropriate way to approach it. If that is

something that society agrees is acceptable and it can be

handled within what's acceptable to society, then that would be

the direction it should go.

THE COURT: And then you also indicated that you

thought resources should be spent investigating and prosecuting

businesses or individuals who provide a platform that sell

goods or services that promote or facilitate prostitution, and

you said yes. And then again here you said: I think that the

facilitators, producers and persons providing the service

should be addressed if they are doing things in an illegal

context. If there were not a marketplace, then potential

victims and seekers would not easily have temptation,

opportunity to engage in illegal activities.

Is that your feeling today?

PROSPECTIVE JUROR: I think it's still mostly captures

what I think about that, but I would say that I would expect a

company, a business or the facilitators to act within the law,

and I am not an expert on that, so I would -- I would interpret

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that through like proceedings like this, having the law

explained, having actual facts instead of supposing what

happened and applying it that way.

THE COURT: All right. Thank you. Then with regard

to another question about strong feelings about whether

websites should be responsible for content posted by users of

the websites, and you said yes. And you say: The main point

is that websites post their community rules, they should refer

to them and apply them fairly. Generally I feel that they do

this, but it is not always perfect. Surprises to users who get

flagged for violating the community rules are the -- are the

onus -- onus of the users, and should have an appropriate

appeal process in the case of a mistake or misunderstanding,

but in many cases the rules are provided and clear. Not

reading them does not excuse the users.

It seems like you thought pretty hard about that

question.

PROSPECTIVE JUROR: Yeah, and I -- I heard -- I kind

of heard similar, similar what I was getting that somebody said

better, that joining a community it's on me to read through the

community guidelines. And I think surprises come up. Might be

surprises to a person in the community. It could also be

people who administer the platform. Once someone becomes

aware, then I have a choice of not being -- deleting my

profile, leaving the community, and also if the platform finds

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a surprise. Our platform has this going on, and it's against

our community rules, then it should adhere -- they should

adhere to the rules that they agreed in.

THE COURT: So the onus is on the user, in your view?

PROSPECTIVE JUROR: It's on both. The user can choose

whether or not they want to be part of that community and the

community leaders should -- should manage their community to

the rules that they set out.

THE COURT: All right. Thank you.

Are there any follow-up questions from the government

on these series of questions?

MS. PERLMETER: No, Your Honor.

THE COURT: Mr. Eisenberg.

MR. EISENBERG: No.

MR. FEDER: No. Thanks.

THE COURT: Mr. Lincenberg.

MR. LINCENBERG: Yes, Your Honor.

Good morning, ladies and gentlemen. My name is

Gary Lincenberg. I am one of the defense attorneys in this

case. I have just a few questions.

First for Juror 99, sir, in the questionnaire you

indicated that the length of the trial would create an undue

hardship because you're caring for a two-year-old grandson.

PROSPECTIVE JUROR: That's not me.

MR. LINCENBERG: That's not you. Was that one of the

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others in this group? Okay. I apologize.

PROSPECTIVE JUROR: That's all right.

MR. LINCENBERG: Juror No. 100, if I recall yesterday,

did you make mention of having digestive flare-ups, is that

you?

PROSPECTIVE JUROR: It was on Tuesday. Yes, I did.

MR. LINCENBERG: And as I recall, my note is that you

said that you can't guarantee that you can leave the house at

any day, is that accurate?

PROSPECTIVE JUROR: That's correct because when this

happens, it's always in the morning for some reason. Don't

know the source of it.

MR. LINCENBERG: So there's days just throughout the

year when you'll have this flare-up and just can't leave the

house?

PROSPECTIVE JUROR: Being retired it isn't a problem

for me.

MR. LINCENBERG: If you're going to work; right?

Okay. Would that potentially interfere with your ability to

get to court if you had a flare-up?

PROSPECTIVE JUROR: Yes, it would, honestly.

MR. LINCENBERG: How often do you have the flare-ups?

PROSPECTIVE JUROR: I would say every six weeks or so.

Just had a flare-up last week, so...

MR. LINCENBERG: So you don't know when the next

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one --

PROSPECTIVE JUROR: I have no idea.

MR. LINCENBERG: Okay. Thank you, ma'am.

PROSPECTIVE JUROR: Sorry.

MR. LINCENBERG: Juror No. 105, I'm sorry, I think we

covered it. Thank you, ma'am. I'm sorry.

Jury No. 106, ma'am, in response to one of the

questions about sexually explicit topics, because there are

going to be sexually explicit topics in this case, the

questionnaire asked whether or not you can listen and discuss

this with others. And my note indicates that your answer was

you were not sure; that if it's very graphic, you may be

shocked. And you said: But can manage. If it involves

children, then certainly no.

Is that accurate?

PROSPECTIVE JUROR: That's correct.

MR. LINCENBERG: Now, this is a case in which there

may be images everyday of the trial that are sexually explicit.

Would that be shocking to you? Would that be difficult?

MS. PERLMETER: Objection.

THE COURT: I don't think she can answer that. I

think she can -- she can --

MR. LINCENBERG: Would that potentially be the type of

thing that might be shocking to you?

PROSPECTIVE JUROR: It could be. I don't know. I see

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movies all the time that have things in it that I'm shocked by,

but, yeah.

MR. LINCENBERG: So you can't tell the Court today not

knowing what type of shocking material may come up whether or

not you could manage with regard to discussing the topics, is

that fair?

PROSPECTIVE JUROR: I couldn't talk about it. I just

don't know how shocking it's going to be.

MR. LINCENBERG: Okay. Your answer was you weren't

sure whether or not you could listen or discuss that. Is that

fair that you just aren't sure, but that things shock you and

sometimes you can't listen or discuss it?

PROSPECTIVE JUROR: I would think it would be more

with children if that came up, then that I shouldn't. But with

adults nowadays, I mean everything is open right now.

MR. LINCENBERG: Okay. Thank you, ma'am. Appreciate

it.

Thank you, Your Honor.

THE COURT: Ms. Bertrand.

MS. BERTRAND: Mr. Lincenberg covered my questions. I

am good. Thank you.

THE COURT: Mr. Cambria.

MR. CAMBRIA: None, Your Honor.

THE COURT: All right. Members of the jury panel, as

I mentioned before, I was going to ask each of you if you had

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contemplated or thought about something you may have heard,

seen, listened to, inadvertently or otherwise, since filling

out your questionnaire and through your time of jury service

about this case or any of the parties in it, any of the named

defendants, any of the government lawyers or any of the subject

matter. If you have, please raise your hand.

All right. Thank you very much for coming in early

this morning. We're going to excuse all of you now. You may

exit through the double doors of the courtroom. Return to the

jury assembly room for further direction. We'll probably --

There's a hand about to be raised. I see. Okay.

Juror number -- your hair is covering your badge number. State

your number.

PROSPECTIVE JUROR: Juror No. 98.

THE COURT: Juror No. 98.

PROSPECTIVE JUROR: Yes.

THE COURT: And the answer that, or the statement

you're going to give relates to something about hearing or

listening to any of the matters?

PROSPECTIVE JUROR: No. It was about the questions we

had gone over earlier in the questionnaire.

THE COURT: Is this something that you wish to discuss

privately?

PROSPECTIVE JUROR: It doesn't need to be privately.

Just one of my answers has changed and it was not covered just

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now.

THE COURT: Okay. And what was the -- do you recall

what the question was?

PROSPECTIVE JUROR: Yes. It was about the hardship.

THE COURT: Oh, the hardship. Okay. So can you

describe generally what the hardship would be?

PROSPECTIVE JUROR: Yes. After the initial

questionnaire I was notified by my company that I would only

receive pay for two weeks of jury service.

THE COURT: And if that is the case, even though you

will get a stipend for service here, would that create a

financial hardship for you?

PROSPECTIVE JUROR: I'm not quite -- is that -- is the

stipend what we're paid daily?

THE COURT: Yes.

PROSPECTIVE JUROR: Yes, it would create a hardship.

THE COURT: Thank you. I appreciate you providing

that information to us. All right. And so is there a

follow-up?

MS. PERLMETER: No, Your Honor, but in the

questionnaire Juror No. 104 had indicated that they wished

to --

THE COURT: I can't hear you, Ms. Perlmeter.

MS. PERLMETER: Juror No. 104 had indicated in their

questionnaire that they wished to talk to the Court privately.

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It was in question 74 referencing question 64.

THE COURT: Certainly Juror 104, do you wish to speak

with the Court privately about one of your answers?

PROSPECTIVE JUROR: Was that just about if it was

about --

THE COURT: Yes.

PROSPECTIVE JUROR: If it does not involve children,

then there is no reason to.

THE COURT: Okay. Thank you.

All right. Members of the jury panel, I will ask now

that you exit through the double doors in front of the

courthouse or courtroom, excuse me, return to the jury assembly

area. You'll probably be on a break for the better part of an

hour, but we will have the Jury Administrator keep you

apprised. We have some business to attend to.

As I mentioned yesterday to all of you, we hope to be

able to select and seat a jury before lunchtime, so do -- do

not go far.

All right. With that, please all rise for the jury

panel members.

(Prospective jury panel leaves courtroom at 9:48 a.m.)

THE COURT: All right. Please be seated. Now, I

think just given the answer from Juror No. 100, she should be

released for hardship. She's got physical difficulties, and I

don't think we can depend on her if selected. Is there any

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objection?

MS. PERLMETER: To 100, no objection.

MS. BERTRAND: No objection.

THE COURT: Mr. Cambria.

MR. CAMBRIA: I'm sorry, no objection.

MR. EISENBERG: No objection.

THE COURT: 100 is removed. All right. With that, I

ask that you --

MR. EISENBERG: What about 98?

THE COURT: I'm sorry?

MR. EISENBERG: What about 98?

MR. FEDER: 98.

THE COURT: Oh, 98, she is the person that would only

receive two weeks pay.

MS. PERLMETER: No objection.

THE COURT: Any objection to removal for financial?

MR. FEDER: No objection.

MS. BERTRAND: No objection.

THE COURT: Any other juror in that batch for a

hardship? I don't identify any myself, but if you do, you can

let me know.

MR. LINCENBERG: The only question would be what the

Court views in terms of 104 with the migraines.

THE REPORTER: I'm sorry. Who spoke?

MR. LINCENBERG: Gary Lincenberg. The cause argument,

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I guess, would be, or hardship as well. She said: I

concentrate most of the time.

I'm not sure that's sufficient. That would be --

THE COURT: Well, it sounds like she's lived with the

issue. You know, I fortunately -- I do know what a migraine is

like, but I fortunately am not one of these that has to live

with that. It seemed like in her answer she worked through it.

MR. LINCENBERG: I think she said when she's at work

she stays, but otherwise she stays home in the morning.

MS. PERLMETER: Yes. The juror indicated that she's

had this issue since childhood. She manages, she powers

through. She did indicate she's never left a shift because of

it. So it appears that -- I don't think it's sufficient for

cause or hardship.

THE COURT: I think given her explanation and her

willingness to continue on, that sort of to me demonstrates an

ability to power through, and she's lived with it, so I'm going

to keep her in.

All right. Now, before you concentrate on your

strikes, I told you that we would take up the preliminary

instructions or there any objections thereto. My staff sent to

you by e-mail last evening the revision. Is there any change

from the government?

MR. STONE: Yes, Your Honor. We filed the document

last night, Doc 1743. I have it right here.

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THE COURT: Yes. What is -- just tell me orally what

is the nature of your objection?

MR. STONE: I will take the role. There are just four

minor issues with the preliminary jury instruction 1.2.

THE COURT: Hold on. Let me get there. What is that?

MR. STONE: The first line under Count 1, the

conspiracy count describes the charges conspiring to facilitate

prostitution. This is on page 3 of the preliminary jury

instructions, Your Honor. And that's just an incomplete

description of the Travel Act crime. As the Court instructs in

the first paragraph of the substantive violations, which is the

next page, the statutory language reads: To promote, manage,

establish, carry on or facilitate the promotion, management,

establishment or carrying on of a business enterprise involving

prostitution offenses.

And so the government believes just a more accurate

way to shorthand that would be to state: Count 1 of the

indictment is for conspiring to promote or facilitate the

promotion of prostitution.

So just changing the shorthand to be more accurate

with the statutory language, Your Honor.

THE COURT: Say that again. Count 1 of the indictment

is for conspiracy to?

MR. STONE: For conspiring to promote or facilitate

the promotion of prostitution.

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THE COURT: Any objection? Any objection --

MR. PANCHAPAKESAN: I need to approach, Your Honor.

THE COURT: -- to that change?

MR. PANCHAPAKESAN: We have no objection -- we have no

objection to that change.

THE COURT: Okay. Then let me have him go to the next

matter.

MR. STONE: Are you ready for the next one?

THE COURT: Yes.

MR. STONE: Second, the second element in Count 1

contains the word "illegal" before "objects."

THE COURT: I think we covered this in the discussion

of the final instructions at the Final Pretrial Conference.

MR. STONE: I think so, but if I can just make a

record, Your Honor.

THE COURT: You can.

MR. STONE: In the full jury instruction, the full

draft instructions that the court prepared, sometimes the

"illegal" was not listed before, so it was a little bit

inconsistent, and I just want to make the record that I think

it's right not to have it and it's for three reasons.

First, the word "illegal" isn't used in the Model

Criminal Jury Instructions. That's 11.1. It's not there. It

wasn't in the preliminary jury instructions for the first

trial, so it's contrary to law of the case. That's

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Document 1311 at three.

And third, it's contrary to Ninth Circuit law, United

States vs. Kaplan 633 F.2d 534 states --

THE COURT: Give me the citation because I have

contrary circuit law.

MR. STONE: 633 F.2d 534.

THE COURT: I think my case is an F.3d.

MR. STONE: I know there is case law that

Mr. Panchapakesan has provided, but I don't think those cases

is our intention, Your Honor. I think they both stand, they

can both stand for this proposition because this case states a

conspiracy is defined as a combination of two or more persons

to accomplish some unlawful purpose, or some lawful purpose by

unlawful means.

Here in the Superseding Indictment, Doc 230, the

purpose or the object of the conspiracy is listed as to obtain

money. That's not unlawful in itself. Any business' object

would be to obtain money. But if they have an unlawful means

to do so, in this case violating the Travel Act, promotion,

promoting or facilitating the promotion of prostitution

offenses, then that's a criminal conspiracy. And so the cases

that have been cited that you may have on F.3d talk about the

one that where you need to have the illegal object, but you

don't need it, and that's why 11.1 under the Model Jury

Instructions doesn't contain that word.

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THE COURT: All right. Thank you. Next.

MR. STONE: Third issue is the Pinkerton instruction,

and this is the middle of page 4. That's inaccurate here,

although it is accurate on the Court's draft jury instructions,

which is Doc 1656 at 37. So I think we just need to modify it

to make --

THE COURT: Which paragraph are you --

MR. STONE: It's the elements under Pinkerton.

THE COURT: Which paragraph? Page 4, which paragraph?

MR. STONE: It starts with: First the defendant

committed the Travel Act offense.

THE COURT: Okay.

MR. STONE: So our issue is with the first three

elements here. Under Pinkerton, it doesn't need to be a

defendant who is sitting over here to commit the offense for a

defendant to be found guilty under that theory. It could be

any member of the conspiracy. And that's what the Court

properly instructed at Doc 1656 at 37. So it should read:

First a member of the conspiracy committed the Travel Act

offense alleged in that count. Second, the person was a member

of the conspiracy charged in Count 1 of the indictment, and

third --

THE COURT: Wait, wait, wait, wait.

MR. STONE: Sorry.

THE COURT: First, a member of the conspiracy

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committed the Travel Act offense?

MR. STONE: Yes.

THE COURT: And then next.

MR. STONE: Second, the person was a member of the

conspiracy charged in Count 1 of the indictment.

And third --

THE COURT: Second, the defendant who committed the

charged Travel Act offense was a member of the conspiracy.

MR. STONE: Second, the person was a member of the

conspiracy because it doesn't need to be a defendant who

committed the crime.

And then there's a modification to the third element

as well.

THE COURT: What is that modification?

MR. STONE: It would read: Third, the person

committed the Travel Act offense in furtherance of the

conspiracy.

Again, I've just taken the language that the Court

instructed in Document 1656. That's the larger draft jury

instructions, page 37.

THE COURT: And what else?

MR. STONE: This is consistent with how the Court in

the first trial instructed, and that's Doc 1311 at four. Okay.

That's it for the corrections to 1.2.

Then we just have one --

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THE COURT: Let me have defense counsel address 1.2

then. What is --

MR. PANCHAPAKESAN: So Your Honor, a couple things in

response to Mr. Stone on this issue on Count 1 in terms of the

word "illegal modifying objects." Our view is that under Ninth

Circuit precedent, the object itself has to be unlawful, and

there is two cases on that. There is U.S. vs. Manarite 44 F.3d

1407. Another one is U.S. vs. Johnson 44 F.APPX 752. The

indictment itself only says that the object is, quote, to

obtain money. It does not follow it up by saying there were

unlawful means to obtain money. And so a couple things on

this.

One, given the government's position on this, it's our

view that that count should be dismissed because it's defective

under Ninth Circuit precedent, and we're making an oral motion

in that respect.

THE COURT: I think I heard that before.

MR. PANCHAPAKESAN: But as to the jury instructions,

our view is that the word "illegal" should be in there.

As to when Mr. Stone referred to as the Pinkerton

section of the Travel Act counts, I think we're in agreement.

Our modification would be as to the first line it should say:

A member of the conspiracy charged in Count 1. We just don't

want the implication that --

THE COURT: Sorry, what is the modification? I want

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to know now what is the modification that you're proposing

then?

MR. PANCHAPAKESAN: We're okay with Mr. Stone's

proposed changes to the three sections of the Pinkerton portion

of Counts 2 through 51. I believe his language was a member of

the conspiracy.

THE COURT: Yes.

MR. PANCHAPAKESAN: We are proposing after that is to

say: Charged in Count 1. To avoid the implication that there

is in fact a conspiracy.

THE COURT: Okay. So let -- this is a little bit

unwieldy, but the first modification is: First, a member of

the conspiracy committed the Travel Act offense as charged in

Counts 2 through 51 of the indictment.

MR. PANCHAPAKESAN: Right.

THE COURT: Is there a modification to that? You

wanted to say --

MR. PANCHAPAKESAN: "A member of the conspiracy

charged in Count 1." If it just says "a member of the

conspiracy" the implication is there is in fact a conspiracy.

MR. STONE: May I be heard?

THE COURT: And I think that's what the indictment

alleges, isn't it?

MR. PANCHAPAKESAN: The indictment does allege a

conspiracy, but I think that language implies the existence of

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one.

THE COURT: Well, they still have to prove it up.

These are just preliminary instructions.

All right. What is your second modification?

MR. PANCHAPAKESAN: That's the only modification. I

have some further comments, but I will let Mr. Stone go through

his other -- do you have further ones?

MR. STONE: I have an --

THE COURT: I guess let me just, Mr. Panchapakesan,

let me just ask you then if, because I do see, and I have noted

that it is the defense's position that the object of the

conspiracy was to make money. I know that's -- I have seen

that over and over again, and I do say. I do agree that the

making money in and of itself is not anything illegal. And so

I think I am curious as to whether or not you've had an

opportunity to distinguish the case that you cite, is it the

Kaplan case, to what the government cited?

MR. PANCHAPAKESAN: We cite the Manarite case and the

Johnson case. I think the case that Mr. Stone cites says that

you can obtain money in an unlawful way, right, and what they

are saying is that it was done in an unlawful way here. But

the defect is in the indictment says it does not actually

specify what those unlawful means are in terms of the object.

THE COURT: Well, it does in toto, and I think Judge

Brnovich had already ad nauseam discussed that, that the

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totality of the indictment was sufficient in terms of its

description of the illegal means. So I guess -- and I will

say, Mr. Stone, the case law basically that I look at, for

example, United States vs. Hubbard, this is a 96 F.3d, 1223:

To prove a conspiracy, the government must show an agreement

between two or more persons to accomplish an illegal objective

coupled with one or more overt acts in further of the illegal

purpose.

And I also -- I think that that is still good circuit

law. And so I'll look at the case that you cited see if I

change my mind in regard to the preliminary instructions

keeping in mind there are going to be final instructions that

will be perfected based upon the evidence and testimony that is

received.

Were there any other records to be made with regard to

anything else that the government objects to in a preliminary

instruction?

MR. PANCHAPAKESAN: The only addition I had, or

request that there be a specific intent instruction, which I

can address now briefly.

THE COURT: As a preliminary instruction?

MR. PANCHAPAKESAN: That's right, Your Honor. In

connection with the initial trial there was a preliminary

instruction on specific intent. That's Docket 1311. And the

reason we're making that request is the -- but there is no

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dispute that the Travel Act is a specific intent crime. I

think as the Court is going to see, much of the government's

evidence is going to go to knowledge.

For example, a third party sending a letter to a

defendant that there may be illegal activity on the site. I

think that is the bulk of the government's evidence. It does

not go to a specific ad or a specific business enterprise. And

so the concern is, we may go through two or three months of

trial and the jury may be under the misimpression that

knowledge that a site is being used in a certain way is enough,

when it's not. There has to be intent as to an ad, as to a

business enterprise. So including that instruction now would

mitigate against that risk.

THE COURT: Is there an objection? I do note it was

in the preliminary instructions that were given last time.

Mr. Stone.

MR. STONE: No objection to the instruction that was

given the first time around. I don't think -- we don't think

it's necessary, Your Honor, but it was given before, and that's

fine.

THE COURT: All right. Anything further?

MR. STONE: Just to clarify, I think the modification

that Mr. Panchapakesan offered makes that first element

confusing. The whole point of Pinkerton is they don't need to

be sitting at defense table. If the jury finds that

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Carl Ferrer committed the crime and he was in a conspiracy with

the defendant sitting here and the other elements of Pinkerton

are met, then they can find -- it's an alternative way to find

a defendant guilty. So I just want it to be clear that it is a

member of the conspiracy; not a current defendant.

THE COURT: All right. Thank you.

MR. STONE: The argument I have -- I have one argument

on the limiting instruction, Your Honor, and one and a half, I

will say. The big one is, the first sentence identifies

misdemeanor state law prostitution offenses. And the

government's position is there's no reason to say

"misdemeanor." That doesn't provide the jury with any

information that's helpful. We -- it serves no legitimate

purpose except for perhaps defendants to make some

nullification argument about, what is the big deal? These were

just misdemeanor offenses at the state level, even though they

are federal felony charges that the jury has to find in this

case.

We don't instruct that the Travel Act has a five-year

statutory maximum, or that concealment money laundering is

20 years. We can get to everything that the Court wants to

instruct here by just excising "misdemeanor, facilitating state

law prostitution offenses." That's the way it should read.

And then the half argument I have is similarly that this says

"facilitating." We think it should be "promoting or

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facilitating the promotion of," just to be more accurate to the

Travel Act language.

THE COURT: All right.

MR. PANCHAPAKESAN: Your Honor, on Mr. Stone's second

point, we have no objection to adding the promotion language.

In terms of the reference of the misdemeanor, look,

our understanding is that the state statutes on what the Court

will eventually instruct the jury are in fact misdemeanor

statutes, so this is not a nullification issue. We are not

misstating the law. And the conclusion of that makes an

important distinction between a trafficking offense, which is a

felony, and a state prostitution offense, which as I understand

it are all misdemeanors here. That's why we included it.

THE COURT: And you'll have an opportunity to argue

that, but I think sometimes we lose focus about who our public

jury is, and often times these individuals they have no concept

or have never thought of the distinction between a misdemeanor

and a felony, a petty offense and so on, and so I think

removing it at this juncture is not problematic. I will add

the promotion language in there.

And again, you will let me know when it is appropriate

to give the limiting instruction. I purposely did not include

what the defendants suggested was to describe what the intended

meaning of it was, not for the truth of the matter and so on,

but it's for the counsel to lay that foundation and extract

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that information from the witness. It's not my responsibility

to project and predict what that would be.

So in any event, anything more on that limiting

instruction?

MR. CAMBRIA: Yes. Yes, Your Honor. I think that

it's necessary that you included the First Amendment

instruction. You've agreed, and I think rightly so --

THE COURT: As a preliminary instruction?

MR. CAMBRIA: No. That there is a First Amendment

instruction appropriate in this case.

THE COURT: Mr. Cambria, let me back up. We're

talking about preliminary instructions.

MR. CAMBRIA: I know we are.

THE COURT: You can save that argument for later.

MR. CAMBRIA: No. All I am saying is that it's clear

the Court has recognized First Amendment applies to this case,

and what I'm saying is that it should be given as a preliminary

instruction.

THE COURT: That's just what I asked you. I just

asked you, do you mean a preliminary instruction --

MR. CAMBRIA: Yes.

THE COURT: -- and you said no.

MR. CAMBRIA: No. No. No. Yes, what I was saying is

since you've already recognized in the final instructions that

First Amendment applies, that it should be given to the jurors

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in the beginning as part of a preliminary instruction because

it permeates this entire case, and they should have that

guidance as we -- as they hear the evidence.

THE COURT: Was that given in the first trial?

MR. CAMBRIA: In the first trial, no, it was not.

THE COURT: Okay. Let me hear from --

MR. CAMBRIA: I understand that, but it should be

given in this trial because it's appropriate. There is no way

that this case is not governed by the First Amendment. These

are publications. It's classic First Amendment. And the

jurors need to know just exactly what your instructions said

for the most part. We did object to the part about "related

to" 'cause it's not consistent with Ninth Circuit law, but at

least tell them that it is governed by the First Amendment,

presumptively protected. That clearly should be said to them.

This case is about that.

THE COURT: Who from the government wishes to respond?

MR. KOZINETS: I do, Your Honor. Peter Kozinets for

the United States. This issue came up in identical form at the

first trial and it is was extensively briefed by the parties

whether there should be a preliminary First Amendment

instruction, and whether there should be any such instruction

at all. This is set forth at Doc 1216 at three and 164 Doc

1236 and Doc 1242. We argued it at length before Judge

Brnovich as reflected at Doc 1432. This was an August 20th

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status conference two years ago. At pages 36 to 66 of that

transcript, we discussed all of these issues specifically

including whether there should be a preliminary instruction on

this issue.

On September 3rd, 2021, just before opening

statements, the Court ruled that she had e-mailed preliminary

jury instructions that, quote, on purpose doesn't include a

First Amendment instruction. That's at Document 1340, page 25.

She said: I have done the research, considered the arguments

that were previously presented, the new information presented

and have declined to include that in the preliminary

instructions. That's at Doc 1340 at page 25.

That ruling remains correct today. It is well

grounded in Ninth Circuit law and the law of the Second Circuit

and the Seventh Circuit as we briefed in Doc 1242. We're -- we

told the Court, the defendants had cited no case requiring a

preliminary jury instruction on any defense theory involving

First Amendment and the U.S. located none. That remains true

today.

We cited the Freeman case from the Ninth Circuit,

United States vs. Freeman, the Rowlee case from the Second

Circuit, and the White case from the Seventh Circuit. And

basically what all of these cases stand for, and the full case

citations are set forth in our brief at Doc 1242, what these

all essentially stand for is the proposition that you can't

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tell until all of the evidence has come in whether such an

instruction is warranted, and giving it in advance has great

potential to confuse the issues and to invite potential

nullification where in a manner that's just not appropriate.

So for all of those reasons, and for the reasons that

we've previously set forth to the Court, we object to that

instruction.

Does Your Honor have any questions about this?

THE COURT: No, I don't. And I do note, and I have

reviewed some of the prior Court's orders, and I do note

specifically a note from the prior Court that indeed there is

no First Amendment instruction to be given in the preliminary

instructions, and I did note the order stating the reasons why

I. I don't have a -- I don't find the necessity to change that

prior decision at least in the preliminary instructions, and

that is going to continue to be my ruling.

All right. Now --

MR. PANCHAPAKESAN: Your Honor, I'm sorry, I just have

one quick comment.

THE COURT: One quick comment, yes. Thank you.

MR. PANCHAPAKESAN: Given that on Count 1, the

conspiracy, we are now tracking the statute in terms of the

promotion language. We would ask that after that there be a

reference to a business enterprise involving prostitution

offenses, just to be consistent the with the statute, and that

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would also be consistent with the substantive count. And I

believe that language is in Counts 2 through 51.

THE COURT: What lines?

MR. PANCHAPAKESAN: One second.

THE COURT: Is it in the prior preliminary

instructions given by Judge Brnovich?

MR. PANCHAPAKESAN: That I am not sure of, Your Honor,

but it is in Counts 2 through 51 in the current preliminary

instructions. So this would be the first paragraph of Count 1

under 1.2. And so it would read: Count 1, the indictment, is

for conspiring to facilitate or promote the facilitation of a

business enterprise involving prostitution offenses, et cetera.

That would track what's in the substantive counts.

THE COURT: All right. Now, we are at 20 after the

hour. I ask that you use the next hour to exercise your

strikes. I will be back to gather those strikes and review it,

take up any argument with respect to those strikes. I will

then expect that process hopefully won't go on beyond

20 minutes or so. My idea then is to have all of the jury

panel come in, filter through the back, take up the gallery

seating, and then we will select the jurors who will hear the

case.

Now, at that juncture I will then give them the

preliminary instructions. And if we are at around then, if

that puts us close to about quarter to 12:00 or so, then I

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would break for lunch, give them the admonishment and then we

would begin opening statements from the government. If we are

around 11:30, which I highly doubt we will be, then I will

expect the government to be ready to be prepared to begin their

opening arguments, and then we can do that for about an hour

taking a break for lunch. That's how I intend to proceed.

Ms. Bertrand, looks like you want to say something.

MS. BERTRAND: If I may, please. Two things we

skipped and I was trying to stand up. With regard to the

Pinkerton instruction, for Counts 2 through 51, I just want to

make sure that that instruction specifically references Count 1

of the indictment because there are two defendants here who are

not implicated in the additional conspiracies that are charged,

and I don't want the jury to be confused about which conspiracy

applies to that Pinkerton instruction. That's issue one.

And then I have a question about jury selection. My

question about jury selection, I just want to make sure I

understand, I note that the defense has request to strike for

cause on hardship remaining, so I want to make sure that we're

spending our time correctly. Is the Court going to allow us to

make cause and hardship challenges in addition to what's

already been done?

THE COURT: No. We've gone through hardship

challenges, so those are done. As far as I am concerned, they

are done. I've identified some, you've identified some. The

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remaining pool is the remaining pool.

MS. BERTRAND: What about challenge for cause, Your

Honor?

THE COURT: If you wish to make a challenge for cause,

here's what I'm going to tell you. Remember that the

government has nine strikes. You have 15 strikes. If you wish

to have a challenge for cause, you can bring those to my

attention. If you want to do that now, we can do that now.

Are there challenge for cause that you've identified?

MR. LINCENBERG: Yes, there are, Your Honor.

THE COURT: Has the government identified those?

MS. PERLMETER: We identified jurors for cause as well

as hardship, and these were individuals that we consulted with

the defense on yesterday where we were unable to reach an

agreement. There were some jurors that the government proposed

that the defense did not agree with, and the defense has some

individuals for both reasons, cause and hardship, that they

propose that the government did not agree with.

THE COURT: Let's take a 15-minute break and we will

come back and I will hear those challenges for cause.

MS. BERTRAND: Thank you, Your Honor.

(Recess was taken at 10:23 a.m.)

(Proceedings reconvened at 10:41 a.m.)

THE COURT: All right. The record will reflect the

presence of counsel.

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I'm going to take up your argument for cause strikes

now. Ms. Perlmeter.

MS. PERLMETER: Thank you. The government moves to

excuse Juror No. 3. Juror No. 3 is the individual --

MR. LINCENBERG: Can you speak into the microphone?

I'm having trouble hearing you. I apologize.

MS. PERLMETER: Juror No. 3 is the male who indicated

that he would have difficulty wearing a mask. He is the

individual who has emphysema and he stated in questioning that

he has experienced difficulty masking while at the airports.

The government's concern is that if our county or our city or

this District Court requires masking at some point in the

future, that he would be, although willing, but he, given his

respiratory issues and his medical diagnosis, would be fumbling

with the mask, he would be uncomfortable and that would be

distracting and would prevent him from listening to the case.

MR. LINCENBERG: Your Honor, I will be handling the

arguments on the cause.

THE COURT: As to 3?

MR. LINCENBERG: As to all of them.

THE COURT: Well, as to 3?

MR. LINCENBERG: As to 3 we disagree. Juror No. 3,

part of the answer was: It's not too bad. If I have to do it,

I'll get by.

Now, Ms. Perlmeter asked a question in I thought a

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fairly aggressive manner in a sense, if you had to sit here

from 9:00 to 5:00 and couldn't take off the mask for one minute

the entire day, he said that would be a problem. A lot of

people indicated that would be a problem. I'm not sure where

the Court is at as to how the Court is going to deal with the

different mask answers, but with this juror, this juror said he

would get by if he had to.

THE COURT: I agree. And quite frankly, I think that,

you know, we're sort of speculating about resurgence of COVID

in any event, and whether or not we would then be falling under

those restrictions. What the CDC is going to do is highly

speculative in the first place. I think he gave a sufficient

answer, and I think everyone agreed it would be uncomfortable

but would get through it. So the cause removal for three is

denied.

MS. PERLMETER: Juror No. 5 is next. Your Honor, this

is the individual who has recently purchased the home. He

indicated that he also does not get paid for jury duty past

80 hours. It would have to go into his PTO. He stated that

while he and his partner would be able to make payments and

they wouldn't become destitute, it would be a -- it would be a

struggle for them.

He is the one the Court asked the parties to consider

after he left. The Court grouped him in the same category as

Juror No. 1. Juror No. 1 we did stipulate to yesterday and the

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Court has excused her, and we would ask the Court to be

consistent and excuse Juror No. 5 for those same reasons.

THE COURT: Mr. Lincenberg.

MR. LINCENBERG: Your Honor, we disagree. I think the

Court is going to have to make the call on the Court's feel on

income loss and so forth. Everybody is losing income with this

jury. We don't stipulate because he indicated: There's a

potential loss; I need to check with the employer. I don't

know we got a final answer, so we don't stipulate to that one.

THE COURT: I am going to remove him for hardship,

financial hardship. It dawned on me when you raised his number

that he was the individual who just recently purchased the

home, and it seemed to me that he indicated a financial

struggle, although I am sure in the public setting he wasn't

going to go into too much detail but it sounded like it would

be a difficulty, so 5 is removed for hardship.

MS. PERLMETER: Oh, and Your Honor, we agree to

stipulate to the removal of Juror No. 4. We came to that

agreement over the break.

MR. LINCENBERG: That's correct.

THE COURT: Juror No. 4, for what reason?

MR. LINCENBERG: We had both cause and hardship.

THE COURT: What is the cause, your agreement on

cause?

MR. LINCENBERG: Yes. Cause related to the nephew

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committing sex crimes against the sister when a minor, and the

effect and so forth, uncomfortable discussing sexually explicit

subject matter with fellow jurors.

THE COURT: All right.

MS. PERLMETER: Yes, he really wavered on -- I think

he tried, but he wavered on his ability to be fair and

deliberate.

THE COURT: Juror No. 4 is removed for cause.

MS. PERLMETER: Next, Your Honor, Juror No. 8. We ask

for him to be removed for cause as well similar to Juror No. 4.

THE COURT: Is this a stipulation?

MS. PERLMETER: No. This is a motion by the United

States. He is the individual who talked about morality laws.

He has strong views against prostitution laws; he has strong

views against drug laws. His position is that because no one

is harmed, basically it's not a big deal.

He says that, when the Court asked him, he says:

Well, I suppose I can set aside my opinions. I've never seen

or dealt with something like this before, so I don't know. He

reiterated his strong opinions. He said: I think I can be

fair, but this is my opinion.

So the concern is that he won't, although he will

certainly try based on his answers, and I think we wants to

try, based on how strong his views are and how they are so

embedded in his core, we think he should be removed for cause

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because he is just unable to be fair even though he is

certainly trying, or willing to try.

THE COURT: Mr. Lincenberg.

MR. LINCENBERG: Your Honor, this juror twice said

that he could set it aside and he said he would definitely

follow the law.

MS. PERLMETER: He also said: I don't know. I never

seen this before. I don't know if I could set aside my

opinions.

THE COURT: And I think that was consistent with other

jurors, so the cause removal is denied.

MS. PERLMETER: Juror No. 24, Your Honor. Juror No.

24 is a taxi cab driver or at one point was a cab driver who

took people from one county and Nevada to the next. He had a

number of statements about his experiences and videos that he's

seen about brothels, about the federal, about the Feds taking

over the brothel, watching YouTube videos about it.

The government -- he also had the potential bias

towards law enforcement because the cops violated his Fourth

Amendment back in the '90s because everything was caught on the

dash cam. He -- but foremost, he is too close to the issues of

this case. We ask that he be removed for cause.

MR. LINCENBERG: Your Honor, this juror -- this juror

said: I would not come to this case with any preconceived

ideas.

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THE COURT: And he did say that, but I was concerned

because I took down notes about his back issues. He looked

very uncomfortable on the first day, although he came back and

he said they weren't bothering him too much. I think he has a

physical --

MR. LINCENBERG: On that point, Your Honor, with

regard to hardship, what he said was: I would need to stand up

and stretch, and I am not distracted by this now.

THE COURT: And we'll keep him in, 24, denied.

MS. PERLMETER: Next is Juror No. 86. Juror No. 86

has a work hardship, not a financial hardship, she indicated.

She is the one who was seated in the front row yesterday

talking about how she works for a small office and it's a

strain on her ability to do her job. She had -- she explained

she had been doing work on her phone during the break

yesterday. She is the only one that does her job. When asked

how she would manage her work responsibilities if selected as a

juror, she said that she would just have to try to do both;

that it would be inconvenient and she would have to try to make

it up on the weekends.

So we think that is a hardship. That would prevent

her from doing her responsibilities at work and maintaining her

responsibilities as a juror if she's selected.

THE COURT: Mr. Lincenberg.

MR. LINCENBERG: Your Honor, if I recall 86, I believe

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86 is the one who said, yeah, I may have to do my work on

Monday and Fridays and the like, and deal with e-mails during

the breaks and so forth but --

MS. PERLMETER: No. The one who spoke specifically

about Mondays and Friday is somebody else. This juror said

that she would just do it on the phone, breaks and on the

weekends.

MR. LINCENBERG: Are you on 86, did you say?

MS. PERLMETER: 86.

THE COURT: I did probe in that area and it seemed to

me that she would be capable of making it work, so I'm going to

deny.

MS. PERLMETER: And then Juror No. 87, he is the

individual who said he worked last night and that he worked

during the breaks when he was questioned. He was not --

THE COURT: Wait, wait, wait. Let me get there. What

number?

MS. PERLMETER: Juror No. 87.

THE COURT: 87.

MR. LINCENBERG: Counsel, was this the one who said

would have to make it up on Mondays and Fridays and so forth?

I think my note was for 87; not 86.

THE COURT: All right. Go forward.

MS. PERLMETER: Juror No. 87 is the individual who

said he had worked last night and he was working during the

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breaks yesterday, and that he doesn't have a hundred percent

backup if he, as to his work responsibilities if he were to be

selected, so we ask that he be removed for hardship.

THE COURT: I actually think that this is an

individual who would have a difficult time because he didn't

want to be away from his job for that long. He was the primary

person for the responsibilities in his office, and he was

unsure whether or not it would affect his standing in work at

this point, and so I think 87 should be removed for hardship.

MS. PERLMETER: And that's --

THE COURT: I'm sorry, did you wish to make a record,

Mr. Lincenberg?

MR. LINCENBERG: That's okay. That's fine.

MS. PERLMETER: And that's it from the government?

THE COURT: That was 87.

MS. PERLMETER: Yes, Your Honor. No more motions.

THE COURT: All right. The defense then,

Mr. Lincenberg.

MR. LINCENBERG: Your Honor, Juror No. 7 was a woman

who had, first of all, had indicated that she did not want

graphic pornographic images in her head, preferred not to think

about. Our second argument for cause, Your Honor, has to do

with question 32. What I'd like to do is just make a general

statement hoping to persuade the Court, but at least for the

record, and I will make it at a little bit of length now and

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not repeat the argument with the other jurors where we want to

make the argument.

Your Honor, we had questionnaires which were submitted

where people stated under oath that they expected the defendant

to testify; they expected the defendant to prove the case and

so forth. Those are under oath statements which, not with

regard to number 7, I will talk about 7 in a moment, where we

believe it's a hardship, and it's a hardship for a couple of

reasons. First of all, we don't believe that the Court's

general question to the venire --

THE COURT: You mean the several questions I asked

under oath?

MR. LINCENBERG: I think there's three. Several

questions, the questions that the Court asked --

THE COURT: Jury panel members who were under oath?

MR. LINCENBERG: Yes. Yes. That where the Court

threw out those general questions and nobody raised their hand,

which we believe is a situation which would be much more

intimidating for the jurors to do, but that negates the under

oath statements they made in their questionnaire.

Your Honor, even if the Court were of the view that it

did not, what we would then have would be contradictory answers

under oath on the most fundamental point to our clients, and

the defendants. And the -- and the Court denied us the

opportunity to explore further with the jurors during our voir

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dire or any follow-up on question 32.

THE COURT: Mr. Lincenberg, I'm going to cut you off

because I'm watching the time here and I want to get this.

MR. LINCENBERG: That's why I wanted to make the

argument once, and then I'll just note that the objection on

various jurors on question 32 is for cause and I won't repeat

the argument.

THE COURT: All right.

MR. LINCENBERG: With regard to 7, 7 there was no

questionnaire. The Court did not ask question 32, so we

believe --

THE COURT: In the questionnaire?

MR. LINCENBERG: Yes. So we believe that that raises

similar concerns. So the second objection on 32 was the, on

number 7, was that this juror indicated that she does not want

graphic pornographic images in her head for her not to think

about. And that's what this case is going to be about. There

is going to be images everyday.

THE COURT: And I think the Court sufficiently

followed up with all of the jurors who sat in the jury box

about whether or not they could set aside those opinions

understanding now the testimony and evidence that is involved

in the case, and I don't believe any of them vehemently said

that they could not. There were a couple of them, I did note

that, there were a couple of them that said it would be

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difficult. They continued to say that.

Again, there was qualifiers regarding the fact that

this doesn't involve child molestation or child pornographic

images so to speak, and that, I think, calmed some of their

fears.

So with regard to that objection to 7, that is, I am

going to overrule or deny the request for cause challenge to 7.

MR. LINCENBERG: There was the second element of that

challenge. Did the Court address that, that this juror not

wanting pornographic images?

THE COURT: As I said, yes.

MR. LINCENBERG: Next challenge, Your Honor, would be

to Juror No. 17. This gentleman, the most striking answer was:

I'm not the judge. God is the judge.

I could go on with his other answers throughout the

questionnaire, but I think that's pretty troubling.

THE COURT: Ms. Perlmeter.

MS. PERLMETER: Your Honor, this individual did

express some strong views based on his religious beliefs,

however, he was questioned extensively and he talked about on

numerous occasions how he can be impartial. Although he said,

although he may believe it is wrong, it is the law. He would

not let his personal beliefs get in the way of him following

the law. It would not affect his decision. He would follow

the law. While he would prefer not to look at graphic images,

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it would not be an issue because he understands his duty as a

juror. He then went to talk about how there are many different

types of sins in the world and how he himself has committed

one. He then, again, reaffirmed his ability to follow the law

and to set aside his personal beliefs, and he finished up with

stating that individuals are innocent until they are proven

guilty.

THE COURT: Yes. I recall that as well. I

specifically questioned him because he did state having strong

biblical views, but then I think he started out his statement

by saying, you know, prostitution is has been around forever.

And I think I was sufficiently satisfied that he would be able

to set aside those views and be fair and impartial. So 17

is --

MR. LINCENBERG: Your Honor, if I may make a further

record. I thought this one so straightforward I was trying to

keep it brief, but this is a person who indicates this industry

is evil; that these people are committing major sins; that it's

leading to moral decay. These are answers he's given under

oath. Then he is basically saying: I am not the judge.

As a juror, he is going to have to be judging certain

things. He is saying God is the judge, and he believes that

everything about this case is involving evil and moral decay.

I think this is as strong of a case for a cause as there is.

THE COURT: I think he rehabilitated himself in the

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jury box by answering the Court's direct questions and probing

it further, as did all parties have an opportunity to do so,

and so I'm going to keep him in.

All right. Which one is next?

MR. LINCENBERG: Number 18, which for cause this

person indicated that has very strong feelings that could

impact that person, tied it in a little bit to watching Sound

of Freedom, and said, quote: I have very strong feelings and

it could affect me.

18. Yes. We also have a question to 32, objection.

THE COURT: Sorry, what was that last statement?

MR. LINCENBERG: The questionnaire 32. I am going to

repeat that briefly for the record.

THE COURT: All right. And Juror 18, as with all

panel members, answered the Court's oral questions relating to

32 while under oath, and so for that reason that's denied, but

Ms. Perlmeter, as to the other.

MS. PERLMETER: Your Honor, this individual did

indicate that while he has strong opinions, he can be fair and

impartial. He was reminded by this court that this is not a

case about human trafficking. He indicated that he could be

professional, do his duty, and that his beliefs would not

impact the case.

When asked by the defense if the defendants would be a

step behind based on his views, he said no, and he would not be

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affected. So he has indicated an ability to be fair and

impartial in this case.

THE COURT: And I do recall, I think it was Ms.

Bertrand, that questioned him about the ultimate statement

relating to invoking emotions of anger and stress, and I think

that he indicated that he would be able to set that aside and

that had to do with a different subject matter. Now

understanding what the case is about, he could be fair and

impartial. So I'm going to deny the request for 18.

MR. LINCENBERG: Juror No. 20, in addition to our

challenges based on question 32, this juror indicated answers

that were inconsistent with the law. For example, said nothing

should be posted that is illegal. It's not the law. And

further, Your Honor, we want to follow up on that and we were

not permitted to do so.

MS. PERLMETER: Your Honor, the Court will ultimately

instruct the jurors on the law in this case. The Court

explained that concept to the jurors as a group on several

occasions throughout the past several days. This juror did

not -- this juror indicated they would be willing to follow the

law. And when questioned by the defense if that given the

juror's particular views and opinions, whether they -- they

would perceive that the defendants were already a step behind,

and the juror indicated no. So this juror has also indicated

an ability to sit on this case fairly and impartially.

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THE COURT: That was my recollection as well having

further probed those views, and so as to 20 that is denied.

MR. LINCENBERG: Our next challenge is as to Juror 25.

It's a cause challenge. This is a juror who under oath said

that the defendant should be required to prove his innocence.

THE COURT: 25?

MR. LINCENBERG: Yes.

THE COURT: All right. Ms. Perlmeter.

MS. PERLMETER: We don't have that indication at all

between me and co-counsel at the table here, so if

Mr. Lincenberg can direct us to when he made that statement

because we don't believe that statement was made.

MR. LINCENBERG: Well, first of all, the person made

that statement in the questionnaire in response to question

32 A. Also, with regard to 25, this is a sole provider of

income for the household, spoke about needing to book a

colonoscopy, working through some fascial pain syndrome, and

upper cross syndrome, and so forth, so there is also a hardship

challenge.

MS. PERLMETER: So if the concern of the defense is

that they indicated as such on the questionnaire, we stand on

our prior arguments and the Court's position we concur with

that the Court has sufficiently re-raised the issue, re-voir

dired the jurors on this issue, given everyone an opportunity

to change their answers or to raise their hand, and there's

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been no indication that as to the fundamental principles of

criminal law, presumption of innocence, need not testify, that

the jurors did not understand the question, did not hear the

question or did not have an ability to answer the question if

they so wanted to.

This juror also -- we have several individuals on this

panel who are sole providers, and some indicated financial

hardship, others did not. This one did not, and there was no

indication that he wouldn't be able to sit fairly.

THE COURT: I recall probing as to the financial

hardship, and I don't recall there being a strong statement

that it would be. I do recall that there was a desire to

schedule a physical examination sometime in September and

October, and I thought -- and I may be mistaken by another

gentleman who basically said I wanted to figure out what the

trial schedule was before doing so, and so I think those are

sufficient answers to overcome the hardship removal for 25.

All right. Next.

MR. LINCENBERG: Next is 32. Your Honor, this is a

questionnaire 32 A and C objection. Person stated under oath

that the defendant should be required to prove their innocence

and should be expected to testify.

MS. PERLMETER: Same response from the government;

that the Court has adequately and sufficiently probed this

issue. First in the questionnaire and then in open court on

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several occasions over the past few days.

THE COURT: The Court also agrees it probed that

question. There was no negative response, and so denied as to

32.

MR. LINCENBERG: Your Honor, as to 33, same objection

as 32.

MS. PERLMETER: Same response.

THE COURT: And the Court will deny the objection

because it sufficiently questioned the juror on those

principles and the there was no indication that the juror

disagreed. Next.

MR. LINCENBERG: 39 is a hardship and cause challenge.

Hardship, this juror just began on a new team at work. Will

have to miss a lot of training and assimilating. It would be

tough and would not be able to participate in team activities,

might affect his standing at work, set him back.

Also said with regard to cause, that his wife

volunteers at CASA, watches trafficking training films all the

time. He's seen negative impact on pornography on friends. He

had the close friend of the daughter situation where the person

was missing, suspected the person had been taken.

I think that with this juror it goes beyond

simply that -- whether he said at the end that I would try to

put this aside and be impartial, there's so much baggage and

history that comes to the table in connection with this case

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that I think there is a basis for a cause challenge.

MS. PERLMETER: Your Honor, as to the numerous

sub-issues that the defense has raised, the juror was asked and

he addressed each one, and he did not indicate. He said he

could be fair and impartial.

As to his wife being a CASA volunteer, he just was

being forthcoming with the Court. He did not indicate that her

watching human trafficking video as part of her volunteer

training would affect his ability to sit fairly and

impartially. Specifically as to question 64 about the

experience that his daughter's friend had, he said that he

could be fair. He did not think that it would bring back

feelings of what happened if he were chosen to sit at this

trial.

In the small group, Your Honor, when asked about work,

he said: I am not sure if there would be a negative impact on

me, but I don't think so.

He didn't think there would be an impact on him. And

then he stated that he would not be distracted by his work

responsibilities if he were selected as a member of this jury.

And then in follow-up when he was in private, he stated that he

could be fair.

So given the totality of the statements and the number

of statements he made before this Court, and the Court's

ability to observe him the past several days, we think he is

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able to sit as a fair and impartial juror.

THE COURT: I think this juror caused me pause because

there were multiple instances, although the CASA volunteer work

that his wife did really didn't have to do with anything of the

subject matter of this case. It was more along the lines of a

maternity-paternity sort of issue. The family was involved in

posting or reposting items on trafficking. He had the instance

of concern with the very close friend of the daughter and the

daughter may have had some residual effects about the potential

that she may have been trafficked, and I think there were

multiple other areas that this individual presented with having

preconceived ideas. And so I'm going to grant the cause.

Well, I guess it's a combined cause and hardship. He

was not sure about the impact of leaving work or missing work

given this new team that started. He was unsure if he would be

behind the eight ball and would have any negative consequence,

and so I'm going to remove 39 for hardship.

MR. LINCENBERG: Next, Your Honor, is 54. This was

this 81-year-old gentleman from, with the long drive in, who

had, first of all, for hardship. He discussed having a number

of appointments. The urologist appointments didn't seem as

important as the cardiology appointments. And on the cause

front, we also would challenge him twice in the questionnaire

in response to 51 and 65. He said his impartiality would be

affected, and as well there was no question 32 questionnaire.

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MS. PERLMETER: Your Honor, this individual said that

he, regarding deliberation, that he didn't think it would be a

problem so long as kids weren't involved. He explained that he

has no problem with prostitution generally; that it's been

around forever, but he just had general concerns over kids, and

the jurors have an instruction that this is not a case about

child molestation or child pornography.

Regarding the doctor's appointments, Your Honor, there

are days that he can schedule them when the Court is not in

trial. The Court mentioned to him that they could also be

possibly scheduled during the October break given the time

frame he had provided about when appointments could be

scheduled.

THE COURT: I actually noted a concern about 54. It

was more or less, I think -- I think he has a desire to serve

such that he would overlook his own health issues, but when he

raised issues of having to go to the doctor for heart-related

matters and putting off those appointments and, in fact,

rescheduling appointment to be here, I thought that was a

concern. It didn't appear to me that he should have reschedule

those appointments especially if they are heart related, and so

I will remove 54 for hardship. One moment.

Mr. Lincenberg.

MR. LINCENBERG: Next is 57. 57, this woman indicated

that she would have a hard time watching explicit -- seeing

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explicit materials, and we challenge her for cause because

that's what we're going to see everyday for the next ten weeks.

THE COURT: Ms. Perlmeter.

MS. PERLMETER: Your Honor, this juror spoke quite

extensively yesterday and ultimately concluded on several

occasions that she would be able to keep an open mind. She

said she would be able to be fair and impartial. She talked

about how -- how she would consider the case, that there would

be goods or positives or negatives and why someone would do

something. Again, reiterating that she would be able to come

to the case with an open mind and consider all of the evidence

that she receives if selected as a juror.

MR. LINCENBERG: I think the statement she made was:

I would do my best to be neutral.

I think when I see answers about difficulty watching

things, we heard one juror today say, "Well, I really don't

know what the case is about," the Court gave a description that

these are the charges. But I think when some of these jurors

get into it and see what is going to be on the screen all day

everyday, and we have somebody who under oath is saying, "I am

going to have a hard time looking at this," and then just says

to, you know, "Well, sure, I will do my best to be neutral," I

think there's a difficulty there that is subject to a cause

challenge.

MS. PERLMETER: And given the extensiveness of

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question 64 and the amount of detail provided regarding the

potential of sexually explicit materials or what those could

contain or hear or view, this juror still indicated she could

keep an open mind.

THE COURT: And I do recall there being qualifiers

with regard to if there are children involved. That was going

to be the explicit, you know, difficulty, and but the other

explanation was this person is a health care professional and

she could maintain the professionalism in order to go forward,

and so I'm going to deny as to 57.

MR. LINCENBERG: Your Honor, there is three more

jurors who we have challenges, but they are in the 70s. I am

not sure if the Court is keeping a count.

THE COURT: I am not keeping a count right now. I am

listening to you.

MR. LINCENBERG: Your Honor, with regard to Juror 75,

I will keep this brief, we have a challenge for cause because

this juror stated under oath that a defendant should be

required to prove his innocence.

THE COURT: All right. For the same reasons, I am

going to deny. Next.

MR. LINCENBERG: Two more. With regard to Juror 70 --

THE COURT: Juror 70?

MR. LINCENBERG: 78. With regard to 78, this is a

challenge for cause. This is a juror who indicated that the

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juror believes -- this woman indicated that she believes that

the platforms use their businesses to do illegal stuff.

MS. PERLMETER: This juror also indicated that she

would keep an open mind and that she would listen to the

evidence and that she would be able to be fair and impartial.

THE COURT: I actually think there were a couple of

other concerning comments that I noted. On the first day she

had a negative response to law enforcement and the judicial

system it seemed because one of her family members was a

juvenile and then charged as an adult, and that left an

impression, a negative impression on her.

MS. PERLMETER: But Your Honor, she also indicated in

response to that event that she would be able to be fair in

this case.

Further down the questionnaire, Your Honor, she also

indicated that her mom, this was not discussed in open court,

but in her questionnaire she indicated that her mom and her

sister had been victims of robbery about six years ago, and

that she had a positive experience with law enforcement. And

that case, felt safe, and so these are just experiences that

this juror happens to have had. She didn't indicate that they

would affect her ability to sit in this case understanding that

they are different.

MR. LINCENBERG: Our note is that this juror said: I

can't be sure that I can keep an open mind.

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THE COURT: I don't recall that in the -- was that in

the follow-up question?

MS. BERTRAND: I have it in my notes directly as she

was speaking. She said: I can't be certain that I can keep an

open mind. She also made a comment about poor people, lower

socioeconomic status people will do illegal things for money.

THE COURT: Yes, I think on total, 78 should be

removed for cause, and so I will grant that. The last one,

Mr. Lincenberg.

MR. LINCENBERG: The last one is 79. Juror 79 was a

gentleman who had discussed having personally viewed

pornography and it affected him negatively. I don't think this

is the right case for him.

MS. PERLMETER: Your Honor, this individual indicated

that he understands pornography is harmful. He indicated he

had seen it himself, but that it does not change his opinion on

policies, and that he -- it would not negatively impact him

from sitting on this case, and that he will be able to do so in

a fair and impartial way. This is the individual that works in

the ministry helping underserved populations and urban

entrepreneurs.

THE COURT: 79?

MS. PERLMETER: Yes.

MR. LINCENBERG: Yes.

MS. PERLMETER: He didn't have strong feelings about

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things, and the Court observed him as he spoke yesterday. He

spoke clearly, confidently. He indicated without hesitation an

ability to sit fairly.

THE COURT: I recall that as well. I was just looking

at the notation about ministry work and I thought you said he

worked in the ministry, and that's not what it indicates here.

But if I missed something, it's entirely possible I did. But

in any event, I don't think there is sufficient cause to remove

him for cause.

Okay. Now, I have asked the jury administration to

let the jury panel members go for lunch until 12:30. I am

going to give you at least a period of time for lunch. I would

suggest that you return back here at a quarter after 12:00, and

you can let me know who you your strikes are at that time. And

then at that time we will see where we are on the clock and I

will have the jury panel members come in.

Now, while I did not specifically tell you what slides

that I would permit or not permit, I gave you parameters. I

will tell you, I am not going to let the government show these

types of photos. These should all be out of your opening

PowerPoint.

MR. STONE: Understood, Your Honor.

THE COURT: And the PowerPoints that have in

quotations different statements that have not yet been

admitted. You can talk about them, the kind of conversations

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that occurred, but to the extent that they are not admitted yet

or stipulated to be admitted.

MR. STONE: All e-mails are out, Your Honor. I did

have a couple other questions if now is the good time.

THE COURT: Well, if now is not the good time, then

when? So Mr. Stone, yes.

MR. STONE: Agreed, Your Honor. We are showing some

of the ads that are counts that make up, I think we are showing

four counts, which should be four ads. Are we -- they are not

stipulated to, but are we permitted to show that to the jury?

THE COURT: To support the counts in the charge?

MR. STONE: Yes, Your Honor.

THE COURT: Yes, they may be shown.

MR. STONE: Also Your Honor, we have a few slides that

are pages from the Backpage website that just show escort ads

for 2015. It's the -- it was the defendant's website. That's

not stipulated to, but we think we should be able to show that

as well in opening.

THE COURT: Is it demonstrative of an advertising page

for Backpage?

MR. STONE: It's not a demonstrative. It's an actual

screen shot from what would have been on the screen if you were

searching for escorts in Sacramento in 2015 on a certain date

in March.

THE COURT: I will permit it.

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MR. STONE: Your Honor, we have a few slides that show

just Backpage revenue for certain years. Not nothing else. I

mean, that's certainly an issue that is relevant. It's part of

the conspiracy. As we talked about earlier, the object was to

make money. There is motive there.

THE COURT: What is the point of the slide? How are

you going to use it?

MR. STONE: Just to indicate what Backpage was earning

during these years, and the argument that the vast bulk of

those earning were from prostitution ads.

THE COURT: I will permit it.

MR. STONE: Similarly, we have three slides for the

owner defendants, Defendants Lacey, Spear and Brunst, that just

take a snapshot for 2013 and 2014 for what they earned only

from Backpage.

THE COURT: I will permit it.

MR. LINCENBERG: Your Honor, we did want to respond on

at least one of the points that Mr. Stone is raising. Are we

allowed to?

THE COURT: Well, let him finish.

MR. STONE: We have photos that we are using for our

two cooperating witnesses. They are not sitting over there. I

can't point to them, Carl Ferrer and Dan Hyer. Are we allowed

to use photos for them to help the jury understand for what at

least they are going to look like?

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MR. CAMBRIA: They will see them.

THE COURT: No.

MR. STONE: Okay. We have slides that show reviews on

the The Erotic Review, which, Your Honor, in the order on

Motions in Limine found was relevant to this case. And there

is a relationship that Backpage had with The Erotic Review for

three years within the conspiracy period. Are we permitted to

show the reviews from the The Erotic Review?

THE COURT: I'm assuming you're going to explain what

the The Erotic Review is and what the alleged relationship is,

and then use that one slide to support that statement.

MR. STONE: Yes, Your Honor. I actually have three or

four slides from the The Erotic Review. Several of them are

tied to counts, so it's a review of the -- what who the

government believes would be a prostitute who also posted on

Backpage.

THE COURT: Pick your one demonstrative or best slide

per count. Don't inundate the PowerPoint with multiple slides

for multiple counts. Use it as an example, a roadmap, if you

would.

MR. STONE: Okay. Just to be clear, this is actually,

if you went on the The Erotic Review, it would show what a

review looks like. That's the demonstrative.

THE COURT: Understood.

MR. STONE: Thank you, Your Honor. I think that

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answers all my questions.

THE COURT: Mr. Lincenberg, you had a particular --

MR. LINCENBERG: That's all right, Your Honor.

THE COURT: No.

MS. BERTRAND: Your Honor --

MR. CAMBRIA: I do.

MS. BERTRAND: I would like to note an objection to

any TER, the The Erotic Review site slides. These are not

going to be demonstrative. This is being offered as

substantive evidence that they are trying to slide in as a

demonstrative. These are objectionable under hearsay, 801.

There is also -- there's a lack of foundation here. So we are

not stipulating to the admissibility of these, and they are

going to be used as substantive evidence. I know they are

trying to say it's demonstrative, but it's not.

THE COURT: Well, no, I think in my order in the

motions in limine made my position fairly clear that it was

relevant; that the The Erotic Review and the TER, I can't

recall specifically, that that information was relevant to the

case, and so I don't understand what it is that you're

objecting to in terms of their ability to use that information

to show the relationship.

MS. BERTRAND: Your Honor, it's a hearsay objection;

not a relevance objection. They are using it --

THE COURT: Do you know what the slide is? Are you

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saying that there is not going to be foundation laid for that?

MS. BERTRAND: Correct. That's my assertion, and this

is what I put the government on notice about when I sent them

my objections and said I object to these slides.

THE COURT: What is the foundation to be laid for that

line of evidence, Mr. Stone?

MR. STONE: With respect to hearsay, it's not a

statement, so that's my initial response on hearsay. The

foundation is, we will have a detective who went on The Erotic

Review and used the indicators from the prostitute who posted

on Backpage, and this is one of our substantive counts, either

a phone number or an e-mail, looked up the The Erotic Review

profile, and matched it to the same individual who posted an ad

that is a substantive count.

So if this count was from 2016, someone who was on

Backpage's website in 2016, if they looked up that prostitute

on the The Erotic Review, they would see this profile. That's

what we're matching up and that's what we will marry up in the

opening, Your Honor, and throughout trial.

THE COURT: And at this point I'm going to overrule

the objection. You can renew it at the time.

MR. CAMBRIA: May I be heard, Your Honor?

THE COURT: Ms. Bertrand is not finished.

MR. CAMBRIA: I'm sorry.

MS. BERTRAND: Thank you, Your Honor. I would just

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note, I don't know how they can say it's not a statement. It's

words asserting something, whether it's this is the phone

number that you can call me at, this is what I do for a living.

Those are, by definition, statements, and they were made out of

court and they are going to be offered for the truth of the

matter asserted.

So that phone number, this person on TER is related to

this ad over here. That is being offered for the truth of the

matter asserted. So I am noting my objection now. I don't

like to interrupt people during their openings, so I want to

make sure my objection is clear.

THE COURT: I have ruled. Yes. Thank you.

Next.

MS. BERTRAND: That is my statement, Your Honor.

THE COURT: Mr. Cambria.

MR. CAMBRIA: Thank you, Your Honor. First of all,

the company is not a defendant. Individuals are defendants.

Under 401, this -- an offer has to be relevant. Unless there

is a good faith representation that one of the charged people

here saw those ads, then they are not relevant to the case.

THE COURT: Are you talking about -- I want to focus

this, Mr. Cambria. There is enough time to make an argument

relating to whether something is admissible or whether there's

lack foundation or whether it's relevant. I want to focus on

the opening statements.

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MR. CAMBRIA: Right.

THE COURT: Tell me what the objection is and to what.

MR. CAMBRIA: The objection is that the only reason

they would put in anything about the The Erotic Review is to

show knowledge or intent. The only reason they would put an ad

in is to show knowledge and intent. Those are 404(b) subjects.

So they have to be -- they have to comply with 404 (b), but

they have to be relevant. The only way they are relevant in

this case is if they have a good faith basis to say one of

these defendants actually saw those, because they cannot serve

as knowledge or intent proved unless someone actually has seen

those out of millions of ads.

So just to put them in and to inflame the jury with

pictures and words and so on and not connect it to any of the

defendants, that's not fair. That is not relevant under 401.

The only way that evidence could be competent is if they can

show that one of these individuals was exposed to it.

THE COURT: Mr. Cambria, in the first instance, in my

rulings is in the Motion in Limine I found them to be relevant,

so that's a nonstarter.

MR. CAMBRIA: Well, how could they be relevant if they

haven't seen them and if there is no proof that they saw them

out of millions of ads?

THE COURT: Well, you're asking me a specifically

different question with regard to a specific ad, and I don't

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know the answer to that. We're waiting to see how that

unfolds.

MR. CAMBRIA: What I'm saying is that I think they

need to make an offer of proof as to stating that they can

prove that one of these defendants saw these, otherwise they

are not competent for what they are doing. All they are going

to do is inflame the jury. All they are going to do is be

explicit things, which they can't connect to an individual

defendant, and there is no corporate defendant.

So the only way they could be relevant is if they

could show one of these defendants saw that so they can make an

argument. They saw them, that gave them knowledge, that gave

them intent. The first part has to happen.

THE COURT: Well, I think there are multiple layers to

the conspiracy charge, and we discussed the Pinkerton charge

for that reason, and so I think the government understands the

parameters that the Court gave this morning shortly a few

minutes ago as well as my ruling on the Motions in Limine, and

you had multiple opportunities to brief the Court on these

issues, and so my ruling stands.

Anything further?

MR. CAMBRIA: Yes. The further is that -- that you

say we have had opportunity to brief these, we just got these a

day ago as to what they plan to use in their opening.

THE COURT: Are these different slides than from prior

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proceedings?

MR. CAMBRIA: Hard to say. There are millions of ads.

All I'm saying is they want to use this in an opening. My

position is they can't do it in good faith without connecting

it to a defendant.

THE COURT: Anything further, Mr. Cambria?

MR. CAMBRIA: No, Your Honor.

THE COURT: Mr. Eisenberg, you look like you want to

say something.

MR. EISENBERG: Yes, Your Honor. Thank you. Earlier

the Court ruled that under certain circumstances, including

e-mails --

THE COURT: Can you speak -- get closer to the

microphone. I am sorry. We just need to make sure that

everyone can hear you. You can come to the podium, yes.

MR. EISENBERG: I understood Your Honor's rulings with

respect to the e-mails that you made earlier today, and of

course, prepared to abide by that. Now I hear counsel for the

government talk about many documents which are contained within

their business records or whether Backpage's business records.

THE COURT: Many documents meaning what?

MR. EISENBERG: That they intend to use for slide

purposes.

THE COURT: I saw Mr. Stone show a slide graph with

figures on them, one slide. Are there multiple documents that

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are going to be shown on that slide?

MR. STONE: No, Your Honor.

MR. EISENBERG: Well, he is talking about things

connected with the The Erotic Review, and we've already had an

objection as to whether that should actually be coming in.

Here's my concern about these e-mails. These e-mails are part

of Backpage's own repository of records.

THE COURT: Let me stop you there. I think I said no

e-mails.

MR. STONE: We've removed all e-mails from our

PowerPoint.

THE COURT: He was talking about an ad on the The

Erotic Review, not an e-mail.

MR. EISENBERG: Let me be heard on the e-mail.

THE COURT: Thank you.

MR. EISENBERG: These come from Backpage's repository

of documents. There's been no Motion in Limine that has come

in from the government saying that they are not relevant or

that they can't be admitted because there is no foundation for

them, and the government has had these -- what they consist of,

Your Honor, are notices to my client, among others, that:

Thank you for doing a good job on behalf of law enforcement.

It's notice to him from a law enforcement agent that

he has done a good job in helping to indicate where evidence

may lie in the commission of an offense, something that

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Backpage gave up, sometimes voluntarily, sometimes by subpoena.

So it's notice to him and others at Backpage never to have

gotten anything indicating that this was illegal activity. So

it is relevant. I can read from them, Your Honor.

THE COURT: And that's fine. I mean, I am quizzical

here, Mr. Eisenberg, because I am wondering why it is you can't

just say that?

MR. EISENBERG: Because I am prepared to admit it into

evidence, and I don't understand what the government's problem

is with it.

THE COURT: Is there going to be an objection to the

admission of that?

MR. STONE: Well, it's going to depend on the

particular exhibit. Some of these seem to be e-mails from

detectives or law enforcement from all across the country to

individuals who likely aren't going to take the witness stand,

and so those are hearsay statements and it's unclear how there

is going to be foundation laid for them.

There's others where there is e-mails to Carl Ferrer,

and I suppose they are going to attempt to admit those exhibits

through Mr. Ferrer, and we'll have to see on those. But I

think at this point it's Your Honor's ruling that e-mails are

not to be shown to the jury in opening. I think that's all

we're talking about.

THE COURT: If they are not going to be admitted, if

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there is not at this point an agreement that it is going to be

admitted, and I don't know how it could not be admitted,

Mr. Eisenberg, you have like a hundred people listed on your

witness list, so somebody has got to be able to testify to

something.

MR. EISENBERG: Sorry, I didn't mean to interrupt.

THE COURT: In any event, that is my ruling. I am

going to adhere to it. You can refer to that e-mail. My

client received these notes from law enforcement. And you

can -- if you have it there, I will permit you to refer to it

and read from it.

MR. EISENBERG: I will.

THE COURT: But at this point, just don't make it an

issue with regard to putting it in front of the jury something

that is not admitted, okay?

MR. EISENBERG: Okay.

THE COURT: Thank you, Mr. Eisenberg. Anyone else?

All right. So you have your charge. Be back here, I think I

said at a quarter after 12:00, and my law clerk will hand to

you the revised preliminary instructions.

I have looked at the case law. I will remove the term

"illegal." I will make the additional modifications, including

the terms "business enterprise." I will include the specific

intent preliminary instruction.

When we return then you will provide to me, possibly

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even before that time, your proposed preliminary strikes and

then at that time I think what we will do is I need to give you

guys a lunch break, and if you pardon me, it will be along the

lines of a 45-minute lunch break, not an hour, so that we can

bring this jury in, release the rest of them and then continue

on.

MR. BERRY: Your Honor, I apologize, you went through

in some detail about what the government can do in their

opening, and I understand you made general rulings that the

defense should take and heed, but I did hand out some of the

defense exhibits that the United States objected to, and I am

concerned that we haven't addressed any of the specificity of

that, and I am concerned that they are going to maybe still

show some of that, so I would like the Court to, if it's so

inclined, to --

THE COURT: Which one are they, are they these?

MR. BERRY: Correct. So that's one of them. I think

you have another stack. That's Lacey's.

THE COURT: I have Defendant Lacey one, two, six, what

does that mean?

MR. BERRY: Those are the slide or page numbers.

Those are the three things that you have up there. Page 6 is a

multipage document. It's the Court filing from the Backpage

vs. Dart case. It's a violation of this Court's Document 1643

at 11.

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THE COURT: I would agree. This needs to be removed.

MR. CAMBRIA: Your Honor, I only planned on verbally

discussing those; not showing that on the Elmo.

MR. BERRY: Your Honor, that would also be a violation

of this Court's order.

THE COURT: It would be.

MR. CAMBRIA: Wait, just one second.

THE COURT: Read my -- no, read my order.

MR. CAMBRIA: I understand your order, but all I'm

saying is that certain statements were made under oath by one

of their witnesses. I don't -- it's all I'm saying. These

statements were made under oath by this witness, not

identifying a case or anything else.

THE COURT: Was the statement made under oath in a

civil matter?

MR. CAMBRIA: Yes.

THE COURT: Okay. Then it's irrelevant.

MR. CAMBRIA: How can it be irrelevant if it's a sworn

statement?

THE COURT: Was it a Travel Act case?

MR. CAMBRIA: Your Honor, I am not introducing it for

that reason. I'm introducing it as this witness made these

representations under oath, and it doesn't matter what -- what

the situation was, what kind of case it was.

THE COURT: Mr. Cambria, it does matter. I went

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through the analysis. It matters to the Court. I said

specifically that no one is to mention any other case.

MR. CAMBRIA: I am not going to mention the case.

THE COURT: Let me speak. Don't interrupt me.

MR. CAMBRIA: All right.

THE COURT: It does not matter whether or not you

mention the case, but if the testimony was given in an

unrelated irrelevant proceeding to this case, if the testimony

was given upon a series of questions that don't relate to any

Travel Act violation, it's not coming in.

MR. CAMBRIA: It's not anything in relation to

questioning. It is a declaration made by a witness under oath

where he stated certain things under oath.

THE COURT: Tell me what the certain things are that

he stated.

MR. CAMBRIA: That they followed certain procedures to

keep things off the website that were illegal; that they had

terms of use; that they did everything they could to keep

children off the website, things like that.

THE COURT: Are you going to bring in in your case in

chief evidence of that?

MR. CAMBRIA: I will ask that witness those questions,

if he made those statements under oath.

THE COURT: Who is that witness?

MR. CAMBRIA: Mr. Ferrer.

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MR. BERRY: Your Honor, what I think Your Honor's

ruling was also in regards to this is to the extent that there

was any testimony in a prior hearing, I think is the way Your

Honor referred to that, maybe more in reference to the first

trial to the extent they wanted to impeach, I think it would be

okay for the defense to ask Mr. Ferrer: Did you say under oath

at some point in time X? And if he says yes, then that's the

end of the inquiry. If he says no, then he could be impeached

with that document, but there is no reason for Mr. Cambria to

actually bring this in front of the jury at this opening

statement stage.

MR. CAMBRIA: Your Honor, that's preposterous.

THE COURT: I think, Mr. Cambria, you can, and I am

not going to give you your opening statement for you, but I

think you're on safer ground if you say: They had an

understanding. They were informed that they were doing

everything right.

You can say that.

MR. CAMBRIA: What I want to say is: Mr. Ferrer said

under oath that we did X, Y and Z legally.

THE COURT: The problem is, when you refer to the

under oath, you're referring to some other proceeding that I

don't know about. I don't know whether it's a civil

proceeding, I don't know if it's a prior criminal proceeding,

whether it was a different statute that was being alleged, and

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so that's the problem. And if it is in violation of this

Court's order, I am not going to have it.

MR. CAMBRIA: But it's not any of those things. It's

a declaration by him, an affidavit, where he says: We followed

this the following protocols in operating Backpage.

THE COURT: You can talk about it. I am not going to

let you bring in any sort of court document.

MR. CAMBRIA: That's what I plan to do. Thank you.

THE COURT: Let's move forward.

MR. BERRY: With that same first Doc that Mr. Cambria

handed to us, the first one is the front page of the New Times

from March of 1991, which predates the conspiracy by 13 years,

and I don't see any relevance to the front page of the New

Times in a case about Backpage.com. This Court has ruled that

we are not permitted to talk about certain other websites and

things like that. We think that should not be permitted in the

opening statement. It's not relevant.

THE COURT: What is the relevance of that?

MR. CAMBRIA: Just an example of the newspapers that

they were operating in the early days.

THE COURT: And if that's all you say, then it's fine.

MR. CAMBRIA: That's it.

MR. BERRY: Next, Your Honor, is the slide showing

past professional awards. We don't believe those are relevant.

THE COURT: What page is that?

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MR. BERRY: It's the one that says two, one, two and

six. It would be number two. It's a slide that just shows

like the Pulitzer and --

THE COURT: And as I mentioned in my order on the

motions in limine, counsel can refer to prior practices of

their clients, and if that includes receiving awards, they may

touch upon it, but this is not going to be something where

we're going to describe each award and go into detail --

MR. CAMBRIA: Don't plan to.

THE COURT: -- about the way it was received and what

was done and who provided it and so on and so forth. That's

not going to occur.

MR. CAMBRIA: Not the plan.

MR. BERRY: The next one would be the larger stack of

Mr. Spear's opening slides, and there is quite a few on that

one that were problematic. No, yeah.

THE COURT: I don't have that. Let's see.

MR. BERRY: It was the other stack you had in your

hand a moment ago.

MS. BERTRAND: May Ms. Vaught step out to use the

ladies' room?

MR. BERRY: No.

THE COURT: This one.

MR. BERRY: That was part of it.

THE COURT: I have one -- Mr. -- this is Mr. Lacey's

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objections to the government. I have Ms. Vaught's objections.

That's all I have.

MR. BERRY: I'm sorry, I handed them to Liliana

earlier. I can show them to you on the computer.

THE COURT: You're eating into your time. I hope the

rest of the counsel are looking at these remaining jurors. I

am not going to extend your time.

MR. BERRY: This is obviously important regarding some

of the slides. They have a slide of Megan Thee Stallion and

Cardi B that they want to show to this jury.

MR. FEDER: Maybe I can save some time. We are not

going to show the ads, external ads.

MR. BERRY: I am plugged in. Did the Court want to

look at it? Slide one.

MR. FEDER: Taken out.

MR. BERRY: The next one would be slide three. Your

Honor's order at Document 1643, pages 8 to 9, we don't believe

that the defense can just argue that the First Amendment

protects everything. We think the injection of the First

Amendment into opening statement would be inappropriate here

because what is -- the way the First Amendment protects them is

by the jury finding them not guilty saying that they did not

find that these ads were prostitution ads, therefore, then

those ads are protected. But to say: Ladies and gentlemen of

the jury, the First Amendment protects us here from doing this

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activity, would, I believe, violate this Court's order as 1643.

It invites the jury to acquit on a notion of constitutional law

and suggests that that's something that's going to be

instructed or part of this Court's instruction.

THE COURT: How are you going to use the exhibit?

MR. FEDER: Judge, I think the Court -- I don't have

the Court's order in front of me. We can certainly say that we

tried to follow it and goes to intent, and that's how they

would be used.

THE COURT: This particular slide.

MR. FEDER: Everybody hasn't memorized the First

Amendment, and I think the jury can at least see what it says.

THE COURT: It's fine. Let's move forward.

MR. BERRY: The next one would be number six

showing --

MR. FEDER: Out.

MR. BERRY: Okay. Seven, we don't know where this one

comes from. It's some sort of terms of use, but we don't know

where it comes from.

MR. FEDER: These are going to be -- there is about

ten exhibits from the government and the defense on this.

MR. BERRY: If this is one of the exhibits that the

defense intends to admit, then I think Your Honor has already

just ordered just that we can't do that.

THE COURT: That's correct.

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MR. FEDER: Fine.

MR. BERRY: The next one is a slide of Liz McDougal.

MR. FEDER: Out.

MR. BERRY: If we are keeping the slides, the picture

is out.

In addition to this one, Your Honor, the reference to

her as a legal consultant, we believe they should not be

allowed to refer to any of these individuals that may have been

advising them as legal consultants or that sort of thing

because that would violate this Court's order regarding the

advice of counsel.

THE COURT: If that is their position, I am going to

allow it.

MR. BERRY: And then --

MR. FEDER: Out.

MR. BERRY: Okay. Is that the same for 12?

MR. FEDER: Yes.

MR. BERRY: Is that the same for 17?

MR. FEDER: I like that one. Yup, she is out.

MR. BERRY: Wow. What about 19?

MR. FEDER: Out.

MR. BERRY: This aggregation quote, we don't know

where this comes from.

THE COURT: Mr. Feder, can you just talk about

aggregation?

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MR. FEDER: It will take longer.

THE COURT: Are you going to read this?

MR. FEDER: I will show it and try to read through it

to explain it very quickly.

MR. BERRY: Your Honor, this violates 1643, 9 to 10,

because it references the CDA at the end.

THE COURT: Yes, remove the CDA.

MR. BERRY: 22.

MR. FEDER: Out.

MR. BERRY: Did you say "out"?

MR. FEDER: Out.

MR. BERRY: 24.

MR. FEDER: Out.

MR. BERRY: 26.

MR. FEDER: Out.

MR. BERRY: 28.

MR. FEDER: Out.

MR. BERRY: 30.

MR. FEDER: Same thing as the First Amendment.

MR. BERRY: This is --

THE COURT: No. This is in violation of the Court's

order on the motions in limine, so remove that.

MR. BERRY: 31, lyrics to a song.

MR. FEDER: Out.

MR. BERRY: Next is -- that's all for Mr. Spear, Your

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Honor.

The last one, just a couple more. Mr. Brunst has one

slide that references good faith. And while good faith can be

argued, it cannot be argued in the sense of advice of counsel

defense because this Court has ordered at 1643, pages 9 and 13,

that unless they make the four-part showing, they cannot do

that.

THE COURT: In the context of that, I agree.

MR. BERRY: Okay. And then the final one --

MR. LINCENBERG: I do think it would be helpful to be

heard. I know you agree.

THE COURT: I can't hear you. We can't hear you.

Move to the microphone.

MR. LINCENBERG: Thank you, Your Honor. Your Honor, I

appreciate the Court's ruling on that point. But I also want

to make a point that's broader because the government has

slides, for example, that are dealing with the credit card

companies canceled Backpage, and their intent is to suggest

that that provides notice to my client that there was something

illegal because credit card companies were canceling, and I

wouldn't expect the Court to be familiar with all of the

correspondence, but that entire dialogue involving the credit

card cancellations discusses Dart. Dart is related to the

Seventh Circuit opinion, Dart.

This is credit card companies being threatened by

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Sheriff Dart and taking certain actions. It is communications

between Ferrer and people involved in payment processing. On

some of the communications Mr. Brunst is involved,

communications with the credit card companies. The discussion

of Dart is all over the conduct. It's impossible to discuss

and respond to what they want to talk about.

THE COURT: What is the good faith slide related to?

MR. LINCENBERG: The good faith is the summary slide,

and the good faith is the conclusion at the end that Mr. Brunst

acted in good faith because of all of the information that he

received. And a part of the underlying part of my opening,

because I am going to be dealing with a lot with the monetary

transactions, is one of the slides that Mr. Stone had, one of

them that I did not object to, is this whole discussion of that

my client was put on notice by credit card cancellations. And

so if they are opening the door to talk about getting into

Mr. Brunst's state of mind, I need to be able to complete the

communications. And Mr. Ferrer will testify about all of this.

THE COURT: So long as it does not get into the

avenues of reliance on attorney advice because, as you even

acknowledged at the Final Pretrial Conference, you've waived

that, and you've not asserted it. And so with those parameters

I will permit the slide. Touch upon it, and move on.

MR. LINCENBERG: To be clear, what we asserted is I've

indicated my client is not having an advice of counsel defense

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because of prior rulings in this case suggested that regard to

the 50 ads he would have to have disclosures and so forth.

Okay.

MR. BERRY: The last one, Your Honor, very briefly,

Ms. Vaught has burdens of proof slide that are 14 burdens of

proof that don't exist in the law. There's a case from United

States vs. McDade, 1996 Westlaw 432 490 from the Eastern

District of Pennsylvania that basically goes through almost an

identical version of this chart, and says that that would be

misleading to the jury and misstates the law, and it needs to

be reasonably informative, and it is not a correct statement of

the law.

THE COURT: And looking at the slide myself, I agree.

I don't know any terminology in the law of highly possible or

possible, and so these are incorrect statements or

misstatements. They may be misleading and confusing, so it's

not going to be used. You can describe what you think that the

burden of proof is, but do not use the slide.

MS. BERTRAND: Your Honor, I would like to make a

quick record. It will not take more than two minutes. First,

I used this slide in the first trial in my opening statement.

Drew no objection from the government. The Court has asked

counsel regarding another exhibit if this was used in the first

trial or another proceeding. It was here. Government never

had a problem with it. It isn't until that they stood there

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that they even gave me a bases for their objection.

I don't believe that I am representing to anyone in

that slide or exhibit that this is the law. I am giving them

examples in common life of different levels of belief that

people have. I am not representing that it is a legal matter.

That's my argument. I do believe it is totally

appropriate as a demonstrative, and the Court can certainly

address any concern that the government has about it through --

THE COURT: Well, it's --

MS. BERTRAND: -- instructions about reasonable doubt.

THE COURT: Looking at it myself, I have concerns

about it. It's misstatements. It's incorrect to tell this

jury, to have them look at a slide that introduces concepts

that are not the law, and so it's confusing. And so,

therefore, I am not going to permit it.

All right. Thank you. You have 15 minutes.

(Proceedings concluded at 12:59 p.m.)

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C E R T I F I C A T E

I, HILDA E. LOPEZ, do hereby certify that I am duly

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

I FURTHER CERTIFY that the foregoing pages constitute

a full, true, and accurate transcript of all of that portion of

the proceedings contained herein, had in the above-entitled

cause on the date specified therein, and that said transcript

was prepared under my direction and control.

DATED at Phoenix, Arizona, this 6th day of September,

2023.

s/Hilda E. Lopez_______

HILDA E. LOPEZ, RMR, FCRR

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