UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF ARIZONA 

 _________________ 

United States of America, ) 

 ) 

 Plaintiff, ) CR-18-0422-PHX-DJH 

 ) 

 vs. ) Phoenix, Arizona 

 ) December 3, 2021 

Michael Lacey, ) 9:01 a.m. 

James Larkin, ) 

Scott Spear, ) 

John Brunst, ) 

Andrew Padilla, ) 

Joye Vaught, ) 

 ) 

 Defendants. ) 

______________________________) 

 

BEFORE: THE HONORABLE DIANE J. HUMETEWA, JUDGE 

REPORTER'S TRANSCRIPT OF PROCEEDINGS

ORAL ARGUMENT

Official Court Reporter: 

Linda Schroeder, RDR, CRR 

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

401 West Washington Street, Spc. 32 

Phoenix, Arizona 85003-2151 

(602) 322-7249 

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: 

 U.S. Attorney's Office 

 By: PETER SHAWN KOZINETS, ESQ. 

 KEVIN M. RAPP, ESQ. 

 MARGARET WU PERLMETER, ESQ. 

 ANDREW C. STONE, ESQ. 

 40 North Central Avenue, Suite 1200 

 Phoenix, AZ 85004 

 U.S. Department of Justice 

 By: REGINALD E. JONES 

 1400 New York Avenue NW, Suite 600 

 Washington, DC 20530 

 U.S. Department of Justice 

 By: DANIEL G. BOYLE, ESQ. (Telephonic) 

 312 North Spring Street, 14th Floor 

 Los Angeles, CA 90012 

For the Defendant Lacey: 

 Lipsitz Green Scime Cambria 

 By: PAUL JOHN CAMBRIA, JR., ESQ. 

 42 Delaware Avenue, Suite 120 

 Buffalo, NY 14202 

For the Defendant Larkin: 

 Bienert Katzman 

 By: THOMAS HENRY BIENERT, JR., ESQ. 

 WHITNEY Z. BERNSTEIN, ESQ. 

 903 Calle Amanecer, Suite 350 

 San Clemente, CA 92673 

For the Defendant Spear: 

 Feder Law Office 

 By: BRUCE S. FEDER, ESQ. 

 2930 East Camelback Road, Suite 160 

 Phoenix, AZ 85016 

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For the Defendant Brunst: 

 Bird Marella Boxer Wolpert Nessim Drooks 

 Lincenberg & Rhow 

 By: GARY S. LINCENBERG, ESQ. 

 1875 Century Park E, Suite 2300 

 Los Angeles, CA 90067 

For the Defendant Padilla: 

 DAVID EISENBERG, PLC 

 By: DAVID S. EISENBERG, ESQ. 

 3550 North Central Avenue, Suite 1155 

 Phoenix, AZ 85012 

For the Defendant Vaught: 

 JOY BERTRAND ESQ, LLC 

 By: JOY MALBY BERTRAND, ESQ. (Telephonic) 

 P.O. Box 2734 

 Scottsdale, AZ 85252 

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THE CLERK: This is case number CR 18-422,

United States of America versus Michael Lacey and others, on

for oral argument. Counsel, please announce your presence for

the record.

MR. KOZINETS: Good morning, Your Honor. Peter

Kozinets on behalf of the United States of America. Appearing

with me is Kevin Rapp, Andrew Stone, Margaret Perlmeter, and

Reginald Jones, and on the phone we have Daniel Boyle.

THE COURT: All right. Good morning, counsel.

MR. KOZINETS: Good morning.

MR. CAMBRIA: Good morning, Your Honor. Paul Cambria

on behalf of Michael Lacey, who is present today.

MR. BIENERT: Good morning, Your Honor. Thomas

Bienert and Whitney Bernstein on behalf of defendant James

Larkin, who is present in court today.

THE COURT: Good morning.

MR. LINCENBERG: Good morning, Your Honor. Gary

Lincenberg on behalf of Mr. Brunst, who is present in court.

MR. FEDER: Bruce Feder on behalf of Scott Spear, who

is also present. Good morning.

THE COURT: Good morning.

MR. EISENBERG: Good morning, Your Honor. David

Eisenberg on behalf of Andrew Padilla. As he resides in Texas,

Your Honor, we would waive his presence today.

THE COURT: All right. So noted, and good morning to

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you.

MS. BERTRAND: Good morning, Your Honor. Sorry. Joy

Bertrand appears for Joye Vaught. We waive her appearance for

today, and thank you for allowing me to appear by phone.

THE COURT: All right. Good morning to you. Is there

anyone else on the phone? All right. 

MR. LINCENBERG: I believe somebody is on the phone.

Mr. Boyle from the government is on the phone.

MR. KOZINETS: We have announced for him.

THE COURT: All right. All right. So the Court has

previously set parameters for the oral argument. And who is

going to argue on behalf of the joint motion to dismiss?

MR. BIENERT: From the defense side, Your Honor, more

than one of us will argue. I'm Mr. Bienert. I'm going to be

primarily addressing the double jeopardy issue. And there will

also be some comment on that by Mr. Cambria and I believe

Mr. Feder. And then Mr. Lincenberg is going to be talking

about sort of the due process, misconduct issue.

THE COURT: How are you going to present the

arguments? Are you going first with the double jeopardy

argument, Mr. Bienert?

MR. BIENERT: Yes, Your Honor.

THE COURT: And just to be clear, I permitted you, in

the entirety of the argument, 20 minutes. And so be mindful of

the time.

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MR. BIENERT: We understand your time limits. And

just so Your Honor knows, I notice your court is a little

different in that the clock is behind me. If it's all right,

I'm going to have my phone open so I can see the time when I'm

standing.

THE COURT: That's fine. All right. And you may

proceed, and you may proceed from the podium. Thank you.

MR. BIENERT: Your Honor, when I'm standing at the

podium, am I allowed to take my mask off?

THE COURT: Yes, you may. And I guess I just would --

I'm not going to make the assumption that everyone is

vaccinated, but I think the majority at least of the

government, from my understanding of all of the federal

prosecutors who have come before me as well as the CJA panel,

they have all, my understanding is, been vaccinated. Some of

them have been boostered. But I just want to make the

observation that if you are vaccinated, I certainly do not have

a problem with you removing your mask, especially during the

oral argument.

MR. BIENERT: Thank you, Your Honor. And I have no

problem saying I am vaccinated. I even got my booster a couple

days ago.

THE COURT: All right.

MR. BIENERT: May I begin, Your Honor?

THE COURT: You may.

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MR. BIENERT: I'll just get my phone out for time.

So, Your Honor, as indicated, I'm going to be speaking

about the double jeopardy aspect. And basically we believe

that an objective reading of the facts and what happened at

trial establishes that the government did intend to goad a

mistrial, which is why the double jeopardy should apply here.

I'm going to talk a little bit about just some of the

overall themes in the case that I think give important

background, since Your Honor is new to the case. I am going to

address your specific question about the court Ms. -- Judge

Brnovich's comment about not intentional. And I'm just going

to hit some of the high points that are in our brief about her

findings and why we believe it establishes what we say.

So, first of all, background tension in the case that

I think is just really important, you know, one of the few

things the government and I agree on is there's a lot of

motions, a lot of background, a lot of discussion about many

issues.

And one of the big ticket themes, Your Honor, that has

permeated this case that if we go forward you will to have deal

with is I think we all agree that if the government puts on a

case that shows individualized knowledge by each individualized

defendant about the ads in question and that they were

intend -- that they showed prostitution and were intended to

promote it, then that's the type of case they're allowed to put

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on. But the big fight is on other stuff.

We believe, the defendants, that the government has

repeatedly tried to make this case about something else: A

generalized Backpage did a lot of prostitution ads, you can

tell it by looking at the ads, and everybody knew it.

There's been a tremendous amount of fighting over that

issue. And I would submit to Your Honor that if you look at

Judge Brnovich's rulings in a continuum over the course of a

year and a half or so, there's a lot back and forth on that.

And the one thing that I would plant to Your Honor is

common sense, what happens in real life as a judge. When

you're dealing with things early on, they're concepts about

what may or may not happen at trial. And when the trial

happens, things start to crystallize, because for the first

time the Court actually sees the real evidence and what's

really happening as opposed to giving, for example, the benefit

of the doubt during a hearing months earlier that the

government would or wouldn't put something on.

So what I would submit to you is the big ticket

tension is the government continually wanting to talk about

things like child trafficking, victimization, everyone can tell

these ads are for prostitution versus our saying, "No, no, no,

no. It has to be particularized. It needs to be about these

defendants and their knowledge of the counts and the evidence

in the case."

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And I would submit to you that Judge Brnovich's

earlier rulings were sort of saying I'm not going to say you

can't do any of the generalized stuff at all, but you've got to

tie it into these specific ads and these specific defendants,

and you can't go too far with it because it's inflammatory.

And once we got actually to trial, what starts

happening is over and over again, beginning with the opening

bell and the opening statements, is the government repeatedly

was talking about inflammatory victimization, child

trafficking, which, number one, Judge Brnovich kept recognizing

you're going over the line, but, number two, was never tied to

any defendant.

Not a single witness that was called -- And, frankly,

I would submit, Your Honor, at the end of the trial it wouldn't

have been any different. But through all of these things that

you were looking at that happened in the trial at the time the

mistrial was declared, nothing put on tied to any defendant in

this case.

THE COURT: Well, let me just make an observation. In

looking at the record, the trial record, isn't it true that

only four witnesses -- I think I saw the lodged witness list --

only four witnesses testified, and only roughly two, maybe a

little over two days of actual testimony occurred.

MR. BIENERT: That's right, yes.

THE COURT: And so you're asking the Court to base the

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opinion on that record.

MR. BIENERT: Yes, Your Honor, on the record we have.

THE COURT: All right. But you concede that there

were 76, I think, witnesses that are listed on the government's

witness list?

MR. BIENERT: There were. But here's the deal. When

it comes to mistrial and then of course a separate issue in

this case was there goading or not, it's not about what else

was out there. It's about what specifically was done. I mean,

I'll remind Your Honor the Kennedy case, which Mr. Cambria is

going to talk about, the seminal case that dictates this, was

about one line, one question, one line, in an overall case.

The point is the question is was something done on

this record that shows, number one, that it was worthy of a

mistrial but, two, that it was intended to goad. 

And I'll explain to you why I believe that was

established here.

THE COURT: Well, I think really the question that I

have here is the question I asked you to focus your argument

on. Judge Brnovich presided over the matter. Judge Brnovich

had the case for over two years. Judge Brnovich listened and

saw the evidence. But yet she did not make the type of finding

that you're asking me to make. And she made specific

statements using examples of specific witnesses. I think in

her order she mentioned three. And she said I don't find

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prosecutorial misconduct here. I don't know how it is that I

can find something different, given the fact that I did not sit

through the trial. It's really something remarkable that

you're asking me to do.

MR. BIENERT: And here's why I don't think it is.

Number one, the reason Judge Brnovich didn't make findings on

this issue was this issue was never raised. We didn't raise a

double jeopardy issue in front of Judge Brnovich. She wasn't

addressing whether double jeopardy applies. We weren't talking

about Kennedy. We weren't talking about goading. In fact, she

didn't even have a hearing or anything to determine any of

that. At the time --

THE COURT: Couldn't she sua sponte make that

determination? Did it have to be raised in a motion?

MR. BIENERT: Well, it certainly didn't have to. I

think she could have made it on her own, but I think certainly

before one would conclude whether there was or wasn't goading,

to say there couldn't have been, there needs to be some sort of

further addressment.

Remember, what Judge Brnovich found was that a motion

for mistrial should be granted. She did not get into what the

ramifications were or weren't of that.

But let me tell you what I would submit to Your Honor

the limited record we have does suggest. You know, words of

course, as we always say in this business --

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THE COURT: Let me back up and say I'll tell you what

she said after she -- after she discusses at least three

examples of witness testimony: "Although I don't see any of

these as intentional misconduct." 

And so doesn't that erase at least the three that

she's talking about?

MR. BIENERT: No. What it does is it means that she

is saying, to the degree that she's opining at all, I would

submit what it says is she is not making a finding that any of

these individual prosecutors have committed misconduct such

that they could or should be subject to the individualized to

them ramifications that could come from that. And I would

submit to Your Honor, as Your Honor may recall -- and my

understanding of your background is you were U.S. Attorney; I

was at a U.S. Attorney's Office for ten years -- if there was

misconduct, a judicial observation of misconduct, then under

the DOJ manual or, as we used to call it, the U.S. Attorney's

Manual at Section 1-4.310, there must be a referral by the

U.S. Attorney or the individual AUSA to the Office of

Professional Responsibility based on judicial findings or

statements concerning attorney professional misconduct. That's

Section 1-4.310 of the U.S. Attorney's Manual.

In other words, there's a difference, Your Honor,

between what happens in a particular case to the defendants,

whether the case gets dismissed, goes forward, whatever, and

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what if anything could or could not happen to individual

prosecutors as a result of their activities.

First of all, this issue, this issue of double

jeopardy, of goading, it simply was never raised. It wasn't

mentioned. It's not in the record. No one raised it. It was

not at issue when she made her comments.

So there is just no way, I would submit, that one can

say that her comment was a comment on whether there was goading

for a mistrial.

However, if we are, I would submit, sort of reading

tea leaves, the one thing she mentions, while she doesn't

mention goading, she doesn't mention double jeopardy, she

mentions misconduct. And there's a specific rule on that. And

that rule has to do with these prosecutors. Has nothing to do

with the defendants or whether the case goes forward.

That is why her comments, number one, they weren't

against the backdrop of this motion, which was never raised,

and, number two, they, if we're seeing what they seem to relate

to, that's what it relates to. And I will just say

anecdotally, Your Honor, I've been part of dozens of cases

where judges will make findings dismissing cases, considering

it, whatever, and then they make a statement on the record

about what their views are of the individual prosecutor's

actions. That's a different issue. And it's certainly not one

that you can conclude or any of us can from that statement

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about misconduct that that's a finding about goading.

And we also can't ignore the other things she said.

As Your Honor points out, she said several things right before

that. And it's the things that she said before that -- One

thing she did was her comments, whatever result they lead to,

were very succinct. Right. They cover two pages.

But as Your Honor said, she mentions very strong

things that I would submit an objective review of can only lead

to this wasn't an accident. This wasn't a mistake. What the

prosecutors put on here was purposeful. She constantly says

they repeatedly abused her leeway.

She notes that when they were going over the sexual

trauma to a victim witness, Ms. Svendgard, she says it three

times over and over and over again. They talked about -- and

this was the prosecutor's questioning -- the 105 days of being

trafficked on Backpage.

She talks about multiple examples, as your Court

notes, all of which she is saying I told you not to do this,

and you turned around, and you did it.

I would submit, Your Honor, that objectively the only

thing we see there is that it was purposeful. So then the

question is what was the setting when it was done?

Remember, I'd submit there's two avenues to this case: 

The one we all agree was proper: What evidence do you

have that these ads were for prostitution and these defendants

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knew it?

The one I would say is improper: Child sex

trafficking, people harmed, without any link to the defendants.

The reason Fichtner is so important is their number

one witness, Special Agent Fichtner, who was there to talk

about here's the site, here's what it looked like, this is the

window that anybody looking at the site would see like these

defendants. And he said in direct that's prostitution.

But on cross he fell apart: Well, it really isn't

prostitution. Yeah, escort's legal. No, I can't tell from

looking at these whether they're escort or prostitution. You

would need more, like to know what happened in the hotel room,

et cetera. I agree with you no arrests were made off of this

because you couldn't tell if it's prostitution or not.

That gutted their case, Your Honor. If that guy was

believed, the case is over, because you can't make a case based

on the ads, which is what their whole case is about.

That's why at that moment they knew they were in real

trouble. So then what do they put on? Ms. Svendgard and her

mom. They admitted: Never met any of these defendants in my

life, know nothing about them. My ads were facially legal. I

said I was over 18. Two policemen arrested me for prostitution

and believed I was over 18.

Nothing there to suggest an illegal ad. Nothing to

suggest anything about these defendants.

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Then the piece de resistance: When Judge Brnovich

said, enough, I can't do this anymore, they put on the expert

who literally every word out of her mouth was child trauma,

child trafficking, the psychological effects of children being

harmed, none of which had anything to do with these defendants.

And they had been warned not to do it. Why'd they do it?

They were supposed to put a different witness on, but

after Agent Fichtner blew apart on them, they doubled down, and

they knew it would be a mistrial.

THE COURT: Let me just mention that you're about ten

minutes, as I can see, into your time.

MS. BIENERT: Yep, you've obviously heard enough from

me, so I will sit. Anyway, those are the answers as best I can

in the allotted time.

THE COURT: All right. Thank you.

MR. BIENERT: Thank you, Your Honor.

THE COURT: And who am I hearing from next?

MR. BIENERT: I think Mr. Cambria.

THE COURT: And I'll give you some leeway just because

I need to understand the context of the arguments as well.

MR. BIENERT: Thank you, Your Honor.

MR. CAMBRIA: Good morning, Your Honor.

THE COURT: Good morning.

MR. CAMBRIA: I am also vaccinated. To address

specifically how could you make a different finding, before

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Judge Brnovich was a mistrial motion which I made, and all she

had to decide was was there prejudice. It didn't matter how it

got there. It could have been intentional, could have been

accidental, could have been reckless. It didn't matter. So

that issue was never before her.

When we look at the Kennedy case, the Supreme Court, I

think there, laid out the procedure. And Justice Rehnquist at

the time said inferring the existence or nonexistence of intent

from objective facts and circumstances is a familiar process in

our criminal justice system. And that's what they did. They

had a hearing. Prosecutor testified under oath.

Here we don't have any denials of what we're saying.

And if we look at the objective facts here found by Judge

Brnovich, none of them support a lack of intent to goad. They

all support an intent to goad.

And the reason is, as was indicated here by

Mr. Bienert, the First Amendment presumes that speech is lawful

and unless it's illegal on its face, unless it's illegal on its

face. 

Here Fichtner made it very clear that none of these

were illegal on their face. We asked him if he would arrest

based on any of them. He said no. We asked him if anybody had

ever arrested based on the ad alone. He said no.

So then what happens at that point is -- look at the

objective finding -- she says I gave you leeway, and repeatedly

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she said from the opening to each and every witness you abused

that leeway.

That's an objective fact. It supports us.

We have a situation where they knew that we would move

for a mistrial. We moved for one at their opening. We've

objected to everything every time there was something in there

about kids. They knew what our reaction would be.

And they continued, even though they knew our

reaction. They knew what the warning was from the judge. They

continued to put in this prejudicial proof.

And so the objective facts, if we use this test that

the Supreme Court set out, the objective facts support an

intent to goad us into doing a mistrial. Not one of those

objective facts supports the lack of that intent on the part of

the prosecution. And that's what's important here.

And the minimum, the minimum before, we respectfully

submit, we could have you deny our motion would be to have such

a hearing at that point, because we currently now only have the

findings made by Judge Brnovich, none of which had to do with

goading at all. But they did have to do with the conduct of

the prosecution and the situation on the defense side.

She made each one of these findings. Each one of

those findings support us and support the intent to goad.

They knew what our reaction would be. They reacted

purposely as a result of that. And by her saying they did it

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over and over and over, that's a circumstance. Under Kennedy,

that's a circumstance you could use to show an intent. It's

not an accident. This wasn't a one-off situation like in

Kennedy. There was one comment there: Well, you did that

because you knew he was a crook. 

THE COURT: But I think, if I understand your pleading

correctly, you sort of lump in not just what happened at the

trial, but you lump in these other issues in asking me to

exercise supervisory authority. For example, you talk about

not only the trial misconduct, concealment of discovery

materials, and so on.

And so it seems to me, again, that the hardest part of

this exercise is those matters. If you're asking me to

consider them in making this decision, they had already been

determined by not only Judge Brnovich but Judge Logan, many of

the things that you put into your pleading as a basis to rule

in your favor.

And so how am I supposed to parse this out if, for

example, you're also including the concealment of discovery

materials for the Western District of Washington investigation?

You're also including the privilege invasions, which have

already been ruled upon, at least if my review of the record.

MR. CAMBRIA: My --

THE COURT: So I'm a little bit confused as to how all

of that should be considered by me if Judge Brnovich and Judge

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Logan have previously reviewed some of this, made specific

findings. And I guess whoever's going to address this issue, I

want to ask a question about the specific examples, for

example, specific examples of what was the ongoing violations

that you're alleging.

MR. CAMBRIA: Okay. First part -- And Mr. Lincenberg

is going to answer that precise question. But the first part

is this: Neither Brnovich nor Logan ever had before them the

discrete issue that we are relying on for due process here

because it occurred, first of all, at trial, and, secondly,

there was never a specific objective finding or an issue before

Brnovich as to whether or not there was an intent to goad

demonstrated by the circumstances and the facts that had

developed as of that time.

So they made no decisions on that. And we're saying

at this point that all the objective facts support us on that.

THE COURT: So I can disregard all of the other

arguments that you're making under your supervisory authority?

MR. CAMBRIA: No, no, no. And Mr. Lincenberg will

address that. I think he's going to show that there was a

pattern here.

But what I'm saying is we don't have a decision by

either Logan or Brnovich on the discrete issue we're raising on

double jeopardy. And he'll explain why the supervisory,

et cetera, is relevant.

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MR. LINCENBERG: Your Honor, Gary Lincenberg. And I'm

vaccinated and boosted. 

Your Honor, I think the Court's question is a good

one.

THE COURT: Thank you.

MR. LINCENBERG: And if I were in Your Honor's shoes,

jumping into a case like this with this history and trying to

learn a lot in a short period of time, I would be struggling

with the same thing, because Your Honor has to say, well, how

much deference do I give to prior rulings? How do they fit in?

And why did the defense include these as part of the double

jeopardy motion? 

And part of the reason we included it as part of the

double jeopardy motion is because when you look at Oregon

versus Kennedy and some of its progeny such as the Fern's case,

courts have said if we're trying to opine what is an intent of

the prosecution, we should also be looking at a full record. 

So in Oregon versus Kennedy -- and the concurring

opinions discuss this as well -- well, there was one question.

Some of these cases say, look, I've been watching this

prosecutor for years in this case, and this was a one-off. I

don't find some pattern here.

Now, Your Honor says, okay, Mr. Defense Lawyer, but if

there's a pattern, how does that help you if a prior judge

ruled against you on the invasion of privilege?

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And the reason it helps is if the Court looks into

those prior occasions and also conducts an evidentiary hearing,

what the Court would see is as follows:

So, for example, with the privilege invasion, we

argued hard, fervently believe that there was an improper

invasion of privilege. Judge Brnovich ruled against us.

One of the prosecution's key arguments was that there

was a difference between documents and discussing privileged

issues when we're interviewing Mr. Ferrer. There was nothing

on their face about any of this stuff.

Well, then the government comes in at the beginning of

trial and moves to preclude our advice of counsel defense

saying, hey, they just turned over a document in discovery that

on its face is dealing with this privileged issue. Well, that

contradicted one of the arguments that they were using on the

underlying motion as to why they could question Mr. Ferrer.

Because if the Court -- and this would take some time -- but if

the Court looks at the interview memos and the discussions of

them in our underlying motion to dismiss for invasion of the

privilege, on its face the government is invading privileged

areas.

And so that's why in response to their motion about

precluding the advice of counsel defense in which in their

pleading they say look at this, on its face it's dealing with

what looks like attorney-client privileged information, well,

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that's why their interviews were improper.

And the second part specifically as it relates to Your

Honor's decision on this motion is the Court has to decide were

these prosecutors knowingly violating Judge Brnovich's orders?

Because intent is not -- In looking at intent, you

know, you say, well, what is intent? Is it -- Do they know

that the natural and probable consequences of what they're

doing may be construed by the Judge as violating the orders?

And even that, some courts will look at reckless disregard.

Reckless disregard can satisfy intent. Are they being --

recklessly disregarding this idea?

You've seen in the pleadings how that clearly is the

case. And Judge Brnovich found as much when she said, Page 4

of this transcript of her reasoning, that I told the government

to keep away from child sex trafficking with Dr. Cooper.

Mr. Jones then proceeded to question Dr. Cooper solely on child

sex trafficking.

There was an order to the government stay away from

the day in the life of a prostitute or victim, and then with

Jessika Svendgard they did just that.

They're knowingly or recklessly disregarding Judge

Brnovich's orders.

We have a history here. The Kennedy case, the Fern's

case, other cases say Your Honor should look at the overall

history, and that history shows intentional invasions of the

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privilege.

Why do we include the Brady violations? Because even

recently the government, after for years saying we've provided

all Brady, comes up and produces last, you know, way after the

fact, a legal memo from Arnold & Porter law firm to a potential

buyer saying we can buy this company because none of what is

happening there is illegal.

And then they say, well, we didn't think it was

relevant or we didn't think it was a good opinion, so we didn't

produce it. We had in the history of this case --

THE COURT: When was that produced?

MS. BERNSTEIN: It was never produced.

MR. LINCENBERG: It was never produced. It was never

produced. They later admitted it was never produced.

THE COURT: I'm sorry. So how do you know about it?

MR. LINCENBERG: Do you want to answer that question?

MS. BERNSTEIN: Good morning, Your Honor. Whitney

Bernstein. We were produced segments of the grand jury

testimony by Charles Craig, and in the grand jury testimony

they reference this exhibit that was used at the grand jury.

MR. KOZINETS: Your Honor, I'm sorry. I believe that

the actual grand jury transcript is under court seal.

THE COURT: All right. So just generally how do you

know?

MR. LINCENBERG: That's how we knew. 

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MS. BERNSTEIN: In the grand jury transcript that we

received, they referenced this letter as an exhibit, which is

how we're aware of its existence. We've asked for that

document, the advisory opinion from the Arnold & Porter

attorneys, many times and have not received it. The government

concedes as much in its response.

THE COURT: All right.

MR. LINCENBERG: Thank you, Ms. Bernstein.

THE COURT: I'm sorry. Remind me again when that was

discovered or when you learned about this.

MS. BERNSTEIN: When we learned about the grand jury

testimony?

THE COURT: Yes, the letter.

MS. BERNSTEIN: The grand jury testimony was produced,

I believe -- I would have to check, Your Honor. I don't want

to speak out of turn. We had asked for the letter, the opinion

letter, in a series of e-mails and a series of letters, which

are part of the record with docket 1281. And the government

addresses why they didn't produce it in their response to

docket 1281 as well as in the response to this motion at 1395.

THE COURT: All right.

MR. LINCENBERG: And, Your Honor, the other example

that we provide is intentionally not following a taint team

protocol of which there was a big hearing a couple of years

ago.

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THE COURT: And I read the order on it.

MR. LINCENBERG: And so if the Court -- And this Court

is approaching it in somewhat of a vacuum. And Judge Brnovich

had some of the history. Some of it was even predating her. I

believe Judge Brnovich would have been quite upset and would

have looked at this in the context Judge Brnovich had not yet

ruled on our renewed motion to dismiss. And Judge Brnovich,

you know, Judge Brnovich recused herself. We don't know why.

It may have been that she didn't feel comfortable

addressing these issues. This was in the middle of a motion to

dismiss on double jeopardy grounds that's pending. 

And now the Court has the unenviable task of trying to

recreate things and how much deference do I give when Judge

Brnovich lays out what is clearly knowing violations of her

orders at trial and then makes a generalized statement -- but,

looking at the prosecutors, don't worry, I'm not saying

misconduct -- which we believe is something that the Judge was

saying, because I'm not suggesting anything. That has to go

back to OPR. We don't know exactly what the Judge's intent

was, but that's logical.

That last sentence should not be given deference as

some finding that there wasn't knowing conduct here.

Judge Brnovich had not been presented with Oregon

versus Kennedy where the Court said, you know, one of the

things we're looking to is there was an evidentiary hearing in

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which the prosecutor testified. Well, the prosecutors in this

case, in opposition to our motion, have suggested that they

instructed these witnesses in a certain way and put the fault

on the witnesses.

Well, how is -- There's no declarations to that

effect. How is Your Honor to decide what deference to give to

their pleading in that regard without hearing from these

witnesses: Were you in fact instructed in that way? Did you

violate this order?

It's hard to believe that Dr. Cooper would have

violated an instruction that the prosecutors gave her or -- I

don't know what Ms. Svendgard would have done.

But if -- There certainly should be no deference to a

prosecutor's statement in that regard.

THE COURT: Let me turn to the issue of concealment of

materials regarding the Western District of Washington. You

say that much of that investigation overlapped in time with the

case here. And I want to know what evidence and what period of

time that you're referring to. Because I know that Judge Logan

previously found, as to at least some of the documents that

were being argued about at a particular time, that some of the

documents in the government's possession involving that Western

District of Washington investigation, that the time and the

investigation was not the same. I read that clearly in his

order.

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And now you have this new allegation that they haven't

turned over overlapping investigative materials.

MR. LINCENBERG: So, Your Honor, the -- First of all,

one of the investigators from that Washington case is on the

government's witness list, number one.

Number two, the Western District of Washington case I

believe was in the 2012-2013 time frame. This is a conspiracy

which is charged as going back to, I believe, 2004.

There is clearly overlap. And the main issue that

occurred earlier in time was that the government inadvertently

disclosed to us a memo from the U.S. Attorney's Office in the

Western District of Washington concluding that there's no crime

here, that this is not a case that can be brought criminally.

And they then moved for a clawback, and that was

clawed back.

THE COURT: I'm aware of that.

MR. LINCENBERG: What our discovery relates to is the

facts and the evidence underlying that, the evidence underlying

that. The government had said, well, that's -- that's not --

that's not evidence. And our response is, well, but there's

evidence that underlies that that we're looking for. Did you

want to add on that?

MS. BERNSTEIN: Yeah. Your Honor, Whitney Bernstein.

I wanted to directly address your question about the timing.

Judge Logan's finding was that the -- we had been asking for

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the memorandum. Judge Logan's finding was that it was

protected by work product privilege. Sorry. I'm vaccinated

and boostered as well. That it's protected by work product

privilege, and that, as Your Honor said, was different.

The government -- That was years before the government

put on its case. We renewed our request for the underlying

factual material as Brady after the government's opening, which

focused almost exclusively on the time frame leading up to

2012.

The Western District of Washington investigation

concluded around 2012-2013, I believe, is the date of those

memos, and the government's opening and the evidence that they

put on with their four witnesses focused almost exclusively on

that. Fichtner's video was about 2015. The video was

presented to the jury as a way to show what the website looked

like. It wasn't substantive evidence of what had been

happening at that time. And so our motion was renewed because

in fact the government was alleging that Backpage was

engaged -- that Backpage and our clients vicariously were

engaged in a series of hiding facts and of doing aggregation,

of doing moderation, of doing certain things during the time

frame that the Western District of Washington investigated.

And that was why the overlap came, and we renewed after the

motion -- after the opening.

MR. LINCENBERG: Your Honor, the last thing that I

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would then say and why we also cite supervisory powers as an

independent basis of authority is because there's overlap. The

Court is looking at prosecutorial conduct. And I frame it more

in terms of violating court orders.

And I -- It's got to be difficult to go back in time

to 2019 when defense counsel, without having received any

Jencks, the government is coming into court and saying, Judge,

let us go into the issue of attorney-client communications

because Mr. Ferrer has waived the privilege for Backpage. The

defense opposes that. And Judge Logan rules our way because of

these overriding joint representation agreement privileges.

And unknown to Judge Logan during these hearings is

that the government is continuing to question Mr. Ferrer on the

identical attorney-client privilege communications. Identical.

And when we raise in court, Judge, we don't have

Jencks, but we have a sneaking suspicion, given what the

government's doing here, that this may be going on, the

government stands silent. I believe this is in October of

2018, if I have my timing right. They stand silent and

continue to interview Mr. Ferrer about these same issues.

This is a pattern of violating court orders. And it's

relevant to the Court making an assessment under Oregon versus

Kennedy as well as under court supervisory powers as to whether

or not the case should be dismissed either on the basis of

double jeopardy or misconduct in connection with violating

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court orders. 

And the best way to get a full understanding is to

have an evidentiary hearing where the Court takes testimony to

further delve into these issues.

Thank you, Your Honor.

THE COURT: All right. And I think, Mr. Feder, you

were going to say something? And I'll give you about five

minutes.

MR. FEDER: It won't take five minutes.

THE COURT: I'll give you two minutes.

MR. FEDER: Bruce Feder for Mr. Spear, vaccinated and

had breakthrough COVID and my booster -- 

THE COURT: Well, unfortunately -- 

MR. FEDER: -- so I'm in good shape, I think.

THE COURT: -- I'm sorry to hear that.

MR. FEDER: If the Court's not going to give us a

hearing, which we strongly request, and you want to look at the

objective facts of what happened in this trial, everybody in

this courtroom, the lawyers, are experienced. And when a judge

or another lawyer says your witness is going over the

boundaries, what do you do? You go -- You ask the court, if

it's in court, you ask the court may I have a couple of minutes

with my witness to tell she or he that I don't want her going

into these areas anymore. 

And if you look at the transcript -- And I'm

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specifically going to recommend to the Court look at -- it's

Day 6, September 10 -- look at Pages 77 to 90. In those pages,

number one, at Page 90, the prosecutor tells the court we

prepared this witness -- and this is Jessika Svendgard -- and

then during those pages, in argument about that they're going

into improper areas, the prosecutor's arguing with the judge,

well, she's entitled to get her story out. And the judge says,

no, she isn't, not if these are areas that the motions

in limine addressed.

Then we end the bench conference, and there is no

conference with the witness Jessika Svendgard. There is no

request to the court to do anything like that. The prosecutor

goes back right away, immediately into the areas that the judge

had in limine'd and the judge had told the prosecutor at the

bench not to go back into.

That's the evidence of the objective facts of this

being -- whether it's reckless disregard or intent to goad into

a mistrial. That's just one example.

And I would encourage the Court to look at the bench

conferences that we had with Dr. Cooper that's a similar

situation.

So this is not accidental by any means. And all one

really has to do is read the transcripts, which Judge Brnovich

did and made her findings.

Thank you, Judge.

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THE COURT: Thank you.

Who is arguing for the government?

MR. KOZINETS: Your Honor, I will be primarily arguing

for the government, although with respect to certain more

detailed areas such as privilege, I will turn to other members

of the team.

THE COURT: Thank you.

MR. KOZINETS: Good morning, Your Honor.

THE COURT: Good morning.

MR. KOZINETS: We've heard a lot of talk about a lot

of issues. But I want to be clear, for purposes of the double

jeopardy motion, the only standard that applies is the standard

from the Kennedy case. That standard requires that the

prosecutors acted deliberately with intent to terminate the

trial. It's a very high standard. As the Ninth Circuit has

recognized, it is rarely met. In the 40 years since Kennedy

was decided, there hasn't been a single reported Ninth Circuit

case finding that the standard has been met in these

circumstances. And the defendants in their papers for that

40-year period cite only one case, a 1998 case from Florida,

which goes that far. Nothing else. And that involved

intentional obscuring of a witness's true identity and

eliciting false testimony, circumstances having nothing to do

with this case.

Now, the Kennedy court clarified that prior cases

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recognizing a broader standard are no longer good law.

So it rejected the notion that other types of conduct

can satisfy this double jeopardy standard, including

prosecutorial overreach, bad faith conduct, and harassment.

And indeed on Page 675 to 676 of the Kennedy decision,

Justice Rehnquist writes "Prosecutorial misconduct that might

be viewed as harassment or overreaching, even if sufficient to

justify a mistrial on the defendant's motion, is not enough."

That doesn't satisfy the standard.

Here -- And Justice Stevens in his concurrence at Page

690 actually kind of underscored the notion that you really

need a finding of deliberate prosecutorial misconduct in order

to meet the Kennedy standard. That's at Page 690 of the

decision.

And here the trial judge, who observed the prosecutors

for two and a half years, was in the trial, expressly found

that there had been no intentional misconduct. The trial judge

then set a new trial date.

The defendants didn't even mention this in their

opening motion here. And it really is, Your Honor, fatal to

their claim. It's fatal to their claim for several reasons.

First, it's consistent with the record in this case.

The prosecution never intended for this case to come to an

abrupt end. We had prepared for three and a half years. We

had arranged for witnesses from across the country, 90 percent

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of our 76 witnesses, to travel here and scheduled them to

testify over the course of this planned ten-week trial. We

produced more than --

THE COURT: Let me ask you a question, Mr. Kozinets.

Looking at the transcript, it appeared to me that at least one

of the prosecutors, after Judge Brnovich issued her ruling with

respect to the particular testimony about the day in the life

of a prostitute, seemed to emphasize and reemphasize a number

of times that that witness was trafficked or assaulted or

something of that nature, even after the court's admonishment.

And how isn't that intentional?

MR. KOZINETS: Okay. Thank you, Your Honor.

The -- The reference to 105 days was a reference to

the period of time that that victim, Jessika Svendgard, had

been advertised on Backpage. And it served to distinguish the

period of time where she had also been involved in prostitution

but was with effectively another pimp and was not involved in

Backpage.

There was no objection to references to 105 days

during that testimony. There certainly was no motion for

mistrial that was made based on that testimony.

And it was not something that was viewed by the

prosecutor as getting into excessive details about the daily

life of the victim. Again, it was just a shorthand for

referring to the period of time that she was on Backpage.

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And getting into kind of the specifics of the witness

testimony for purposes of the double jeopardy claim, I want to

point out just a couple of quick things.

The first defense counsel got up here and said that,

essentially, that the government somehow strategized to provoke

a mistrial after Special Agent Fichtner had been

cross-examined. And then defense counsel said at that point

the government called Jessika and Nacole Svendgard to testify.

That's actually not the timeline in the record. It's just not

the sequence of events.

Agent Fichtner's cross-examination didn't even begin

until the afternoon of Friday, September 10th.

The Svendgards -- So he hadn't been cross-examined at

all before the Svendgards testified. There was a break in his

examination because the Svendgards had traveled across the

country, and they were allowed to testify during the day. So

there's no causal connection whatsoever between the Svendgards'

testimony and any sort of alleged motivation on the

government's part to try to seek a mistrial. That just doesn't

make any sense at all.

On this issue of causation, the crux of the

cross-examination that the defense is claiming led -- allegedly

led to the government seeking a mistrial or trying to instigate

some sort of mistrial is a cross-examination that occurred on

Monday morning, September 13th.

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But the government, the government informed the

defense on Friday, September 10th, before that

cross-examination had occurred, that it was going to call

Dr. Cooper next after Agent Fichtner. So there is no

conceivable way the government could have plotted to somehow

scuttle the trial based on what happened at that Monday morning

cross-examination when it already informed the defense that she

was going to be the next witness. It just doesn't make any

sense. So --

THE COURT: Let me ask you what did the government do

with respect to the Svendgard witnesses to ensure that the

Court's admonishment about what they could testify to, that

they would be aware of that? What specifically as to each of

those witnesses did the government do, if anything?

MR. KOZINETS: Right. Well, I think, you know, I

don't know that there was a particular conference with the

witness, but here's what happened. Okay. Mr. Rapp was --

THE COURT: Mr. Rapp.

MR. RAPP: Yes, thank you, and I am actually

vaccinated.

With respect to Mrs. Svendgard, there's two periods of

time that she was trafficked. The first was ten days. During

that ten days she was raped repeatedly. We discussed that with

her that's not coming into evidence, and of course it didn't.

The second was the 105 days.

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THE COURT: When you say, "We discussed it with her,"

what do you mean?

MR. RAPP: Yes. We, look, we understand -- So I think

I have to back up on this witness, because this witness is well

known to the defense. This witness sued these defendants

in 2000 --

THE COURT: I understand the context of the testimony

was that Judge Brnovich said if you can then somehow

demonstrate through foundation that they had knowledge of this

and the knowledge was -- or maybe I'm misinterpreting some

other testimony -- but that the suit actually gave them

knowledge.

MR. RAPP: Yes, yes. She was 15 at the time she was

trafficked. She filed suit in 2012. Two other plaintiffs in

that lawsuit were 13 at the time they were trafficked. This

plays out a little bit in the exchange with the court because

that case proceeds in the State of Washington. It goes up to

the Washington State Supreme Court. That Supreme Court gives a

very unfavorable ruling to the defendants in that discovery can

go forward. It pushes forward for discovery. And I think this

is important about the witness, because they actually depose

this witness. And they know from the deposition. Their

general counsel was present. They paid Perkins Coie to

represent them to defend this case. They know that this victim

was trafficked twice for ten days with this woman that we talk

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about to a point in her testimony that introduces her to the

notion of prostitution. They know that during that ten days,

she's in a house, and she's raped repeatedly by three or four

men. None of that comes into evidence during the trial,

obviously not.

THE COURT: Well, now, get back to my question, my

original question. What if anything did the government do to

prepare this witness to abide by Judge Brnovich's order?

MR. RAPP: Right. "You're not going to, Jessika,

you're not going to talk about the fact that you were raped

during that ten-day time frame. That's not relevant to this

case."

All right. Now let's jump ahead.

You were now trafficked for 105 days, and during those

105 days, you were posted repeatedly on Backpage by your pimp.

And that comes into evidence. That's Exhibit 211. Those

postings come into evidence. They span that 105 days from

June, 2010, to approximately September of 2010.

During that time frame, she is beat up repeatedly by

her pimp. Her pimp is 35. She's 15. Or strike that.

She's -- Her pimp is 32. She's 15.

She's repeatedly beat up by her pimp. She is forced

to be posted on Backpage. Sometimes he directs her to be

posted on Backpage. He takes her to meet with the clients.

"You're not going to talk about the fact that you were

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beat up by your pimp. It is not relevant to this case. What

is relevant is the fact that you were posted and reposted for

that 105 days and that this pimp had indicators or indicia of a

business enterprise. Namely, he paid for your hotel room. He

allowed to you stay at the apartment. He used the proceeds

from prostitution to pay for your food, for your clothing. He

had a digital camera to take pictures of you to post you on

Backpage, which is certainly relevant to the case." But 

there -- And he gives her lots of instructions about what type

of sex activities she could engage in with the customers. None

of that comes in.

THE COURT: Now, let me ask you the same question with

regard to Dr. Cooper.

What if anything did the government do to prepare

Dr. Cooper?

MR. JONES: Good morning, Your Honor. Reggie Jones on

behalf of the United States. As the record reflects, the

morning before Dr. -- afternoon before Dr. Cooper's testimony,

the court had originally stated that Dr. Cooper could testify

about the victimization as well as how human trafficking occurs

online as well as the vernacular of sex trafficking.

The court the afternoon prior to her testimony said

that that third area how individuals are victimized was no

longer relevant and shouldn't be talked about by the expert.

After -- The morning of Dr. Cooper's testimony -- she

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flew in that night -- I met with her and advised her of the

court's orders to stay away from the victimization, which she

did, Your Honor.

She is a pediatrician, and most if not all of the --

her reference to child sex trafficking during trial was during

her discussion of her background, what she does for a living

and how long she has been working in that area. So it was

by -- In prepping her, we were -- I was adamant in ensuring

that she did not touch on any of the victimization of -- as

pertains to how children are victimized.

THE COURT: Thank you. You may continue.

MR. KOZINETS: Thank you. I just want to, while we're

on this -- Well, just to close out the Svendgards, I don't

think there's any real allegation regarding Nacole Svendgard's

testimony. The scope of her testimony was briefed before she

testified. The court set certain limits. The prosecutor cued

to those limits. And her testimony was fairly brief.

Also I want to talk about Dr. Cooper a little bit

more.

THE COURT: Well, before you do that, I want to make

sure that -- And I've got to be cognizant of my own time here

because I've got other things that I've got to attend to as

well. And the matter is fully briefed. You've had extensive

pleadings throughout -- well, after the trial.

But what I want to ask you about now is did any

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portion of the investigation by the Department of

Justice/U.S. Attorney's Office in Western Washington, did that

overlap with the one here?

And I want to know, if it did, how it overlapped and

whether or not the government has met, in its view, its Brady

obligations with respect to any information.

MR. KOZINETS: Your Honor, just a couple of points

here. We have outlined our position on how that investigation

does not fit into this case in our briefing in response to the

motion to compel at docket 1281.

We've extensively briefed that matter. And it was my

understanding actually that that motion wouldn't be argued

today but instead would be argued --

THE COURT: Well, it's part of the allegation in the

defendants' motion.

MR. KOZINETS: Right. And so here's the way I would

suggest looking at that. They've basically added that

allegation --

THE COURT: Well, I guess, Mr. Kozinets, somebody has

to know. Somebody on your prosecution team has to know whether

or not there's a point in which there was any overlap or if

there was any relevancy with respect to what happened, even if

it was concluded in Washington as to the timeline.

MR. STONE: Your Honor, may I just ask a clarifying

question? When you say overlap, what does that mean?

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THE COURT: It's an allegation in the defendants'

motion that you failed to produce information because there was

overlapping information in the investigation in Western

Washington.

MR. JONES: Your Honor, Reggie -- I apologize. I'm

fully vaccinated as well. Your Honor, the Western District of

Washington's 2012 grand jury investigation was wholly separate

from the case at hand, totally separate prosecutors, totally

separate investigation.

Two inadvertently disclosed documents were

inadvertently disclosed to defendants from that wholly separate

investigation three years ago. There was litigation on that

issue. Judge Logan in camera reviewed the inadvertently

disclosed documents.

THE COURT: And that's what I want to understand,

because your position is completely different from the

defendants in that I read Judge Logan's order to say that it

did not involve the same investigation.

MR. JONES: Correct.

THE COURT: So if the grand jury finished its

investigation in 2012, to your knowledge, nothing happened

after that?

MR. JONES: Correct. Our investigation is wholly

separate from their investigation, Your Honor. And we've made

that clear to defendants that nothing in that 2012-2013

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investigation is exculpatory or impeachment materials in our

case. They've litigated that again before Judge Logan.

Again, this is a third motion to compel Brady. Their

first two denied. Judge Brnovich, even at the trial, when the

defendants brought up this issue before filing their motion,

she stated point blank the government is the gatekeeper. 

And so what the defendants have always tried to do in

this case is they've tried to decide prospectively what's

considered Brady. And the law doesn't allow that. It is the

government's, not the trial court or the defendant's. 

You know, the government decides prospectively what is

to be considered Brady. And we have complied with those

obligations in this wholly separate case, Your Honor.

THE COURT: All right. Mr. Kozinets, I'm going to

give you five more minutes, and then I'm going to hear the

rebuttal.

MR. JONES: Thank you, Your Honor.

THE COURT: Thank you.

MR. KOZINETS: So just real briefly, getting back to

Dr. Cooper, the court approved Dr. Cooper's expert testimony on

multiple occasions. There was a motion in limine that the

court decided on October 26, 2020, where, having Dr. Cooper's

CV showing her background as a forensic pediatrician, the court

approved her to testify as an expert. Then, the morning of her

testimony, adjudicating a second motion in limine. After

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Mr. Jones outlined the areas of her testimony, the court again

denied the second motion in limine, allowed her to go forward.

Then during the foundational part of her testimony when she

talked about her experience as a child, you know, as a

physician who looked after children and who had become an

expert on child trafficking issues, the defense asked for a

side bar and objected and said, Your Honor, we're hearing too

much about child exploitation. The court said I overrule the

objection; this is only going to foundation; I overrule it.

Then after Dr. Cooper finished with her foundational

testimony, the defense asked to voir dire the witness. The

government proffered her as a reliable and relevant expert.

The judge denied the request to voir dire and said,

government, you can proceed. And that is really where -- That

kind of ends the portion of Dr. Cooper's testimony where most

of discussion about children come up.

So we don't think that is any indication at all of any

sort of misconduct or any -- even negligence with respect to

Dr. Cooper's testimony.

Now, once she begins her substantive testimony, at one

point she talks about how Child Protective Services agencies

have supplied her with information. There's a side bar, a Rule

702 objection. The court overrules that objection, but then

there is a motion for mistrial based on references to children.

At this point the judge turns to the prosecutor and

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says you can mention trafficking, but you can't -- don't get

into child-related issues from this point forward. 

And if you look carefully at the transcript of

everything that occurs after that second side bar -- and this

is at about Page 29 of, I think, Exhibit L -- the prosecutor

very clearly steers away from discussion of children. There's

a series of questions around Pages 37, 38, about adults, adult

content, adult prostitution, adult advertising. He's not

talking about children.

The witness does mention minors once, and the

prosecutor promptly shifts gears to talk about vernacular

that's used in the prostitution industry. And he stays away

from asking about any terms involving minors even though those

terms are mentioned in the superseding indictment, even though

those terms come up frequently in the internal Backpage

documents that we've obtained in this case and that we've made

as trial exhibits, terms like Amber Alert, Lolita, new in town,

teen, young, et cetera. He doesn't ask about any of that. And

that's essentially the end of the story with respect to

Dr. Cooper.

So we would submit that there was no -- there really

is no evidence, if you actually, you know, a close reading of

the transcript shows no evidence of any sort of purposeful

questioning of her talking about children.

With respect to -- Is there anything else Your Honor

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would like to hear about regarding meeting the Kennedy standard

on double jeopardy?

THE COURT: No.

MR. KOZINETS: Okay. With respect to other requests

by the defense, there's no reason to have an evidentiary

hearing here. We have a huge trial record, more than a

thousand pages. We've had extensive briefing. You've heard

from the government now. There's no case that requires an

evidentiary hearing. They haven't cited any that require that

kind of relief. And I think the record is very adequate here

for the Court to conclude that there was no intentional

strategy on the prosecution's part to cause a mistrial and that

there was no violation of the Court's supervisory powers.

They talked a little bit about recklessness. That

doesn't come into play at all on the double jeopardy analysis.

You have to show this intent to subvert the trial.

With respect to supervisory relief powers, you have to

show flagrant misconduct, which can be willful misconduct, or

it can be reckless disregard of constitutional obligations.

But negligence, gross negligence, those things don't count.

And we would submit that on careful review of the transcripts

in this case, there's nothing that rises to that level of

flagrant misconduct. 

And remember that supervisory remedy, it's a harsh

sanction. It's extreme. It's rare. It's disfavored. It's

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UNITED STATES DISTRICT COURT

rarely used. The defense has a very heavy burden to establish

entitlement to that extreme sanction that they're seeking here,

and they don't come close, anywhere close to meeting it. You

also look at substantial prejudice, and you look at alternative

remedies.

The government has been substantially prejudiced by

the mistrial. And that in and of itself is a more than

sufficient consequence for any conduct giving rise to the

mistrial ruling. We'll have to start over again. We've laid

this out in our brief. It is in and of itself a very severe

consequence.

There's been some discussion about the case theory in

the arguments we've heard from the defense about what the

government has to prove, et cetera and so forth. We don't

agree with their characterization of the case. And I don't

think I have time to get into all of that here. But I would

direct your Court to Judge Brnovich's rulings on the

defendants' motions to dismiss. In particular, order at doc

793, which provides a comprehensive discussion of the

government's theory of the case and why the defendants' First

Amendment theories don't apply here if we prove everything --

if the allegations in the superseding indictment essentially

are taken as true.

We had extensive oral argument about preliminary jury

instructions where they proffered their kind of First Amendment

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theory of what we have to show. That was on August 20th.

Judge Brnovich denied their requested motion. She did that

just before -- right after the jury had been selected and

shortly before she delivered the preliminary instructions,

which did not include the defense requested instruction but did

include specific Pinkerton instructions, which inform the

government's theory of the case.

Finally, one other point on the merits is that the

merits played no role whatsoever in the mistrial decision. And

this is, I think, at Exhibit L around Page 68, 69, where

defense counsel says to the judge we need a mistrial because

the government hasn't proved its case. And the court says

basically: Stop. It's way too early to make that argument.

The only argument I'm considering at this point is the

prejudicial value of testimony that's been given.

So she shuts that down. It plays no role in her

decision.

With respect to -- I realize I'm running out of time.

THE COURT: Yes, you're out of time actually. I've

given you a little bit more leeway.

MR. KOZINETS: Is there any chance that another member

of the team could respond to the privilege issues?

THE COURT: Very quickly.

MR. STONE: I'll be very brief, Your Honor.

MR. KOZINETS: Thank you, Your Honor.

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MR. STONE: This is specific, Your Honor, to the

ancillary issues of this purported invasion of privilege. And

what the defense is asking you to do is to conduct a horizontal

appeal of Judge Brnovich's order. That order is document 1168.

Every argument that is made in the motion to dismiss with

respect to this purported invasion of privilege and the filter

team issues was before Judge Brnovich. And she issued a

19-page order, document 1168, that outlines why all of, in

her -- in her view, all of defendants' arguments had no merit.

So it's already been determined it certainly can't

provide any basis and any support for any motion to dismiss

here.

And I think it's important to note that during that

argument, there was a question by the judge. Judge Brnovich

asked defense counsel -- Clearly defendants have been arguing

about these defenses. They involve Section 230, the

Communications Decency Act, First Amendment, and others.

They've been arguing about it in cases all across the country

for a decade or so. Why is there any prejudice here?

And defense counsel said that's easy, because not once

has there ever been a legal memoranda or memorandum, has that

been given to a third party.

Well, a month later in discovery -- this is Exhibit 2

to our response -- defendants send us a 31-page legal

memoranda, memorandum -- excuse me -- that is titled "Why

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Village Voice Media's Backpage.com Service Does Not Create

Liability for Promoting Prostitution."

In response, the government filed a motion that

relates to advice of counsel -- advice of counsel defense. And

as Your Honor knows, to assert an advice of counsel defense,

defendant or defendants need to waive the privilege and need to

show that all of the material information was shared with their

attorneys before the attorney rendered a decision that they

relied upon.

So the only basis for the government filing that

motion -- and I think there will be further litigation on that

particular issue before the next trial -- is you can't assert

an advice of counsel defense without demonstrating that that

attorney who wrote the memo had all the pertinent information.

That's it. This is apples and oranges to any sort of

invasion of privilege. As Judge Brnovich notes in Doc 1168,

there's an eight-step process to determine whether something

has been privileged. And certainly one of those eight steps

would be has that privilege been maintained. And this memo was

shared with banks and third parties.

So it has nothing to do -- What I should -- What I

would add is that Judge Brnovich's order, which, among other

things, found that the defendants failed to demonstrate that

these were privileged communications, the communications that

Carl Ferrer had with the government, and on top of that, even

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if they were privileged, they'd been waived in a multitude of

ways, and this is one more that Judge Brnovich didn't even know

about at the time when she made this decision in May and June

of this year.

And same with the filter team, Your Honor. They

complained about it in document 1029. There's a Judge Campbell

order, which is document 780, Exhibit 13 at Exhibit K, which

ruled that these communications with third-party PR firms were

not privileged. These thousand or so documents that were

turned over all involved third-party PR firms, many of which

were the same exact PR firms that were listed in Judge

Campbell's order. That's all I have.

THE COURT: All right. Thank you. Who is going to

provide rebuttal?

MR. LINCENBERG: I believe Mr. Bienert, and then I'll

have a brief --

THE COURT: All right. I'm going to give you seven

minutes.

MR. BIENERT: Thank you, Your Honor, and I'll try to

be quick.

Your Honor, you were just misled. You specifically

asked the prosecutors -- you noted that the court said, Judge

Brnovich, called out the fact that you were violating -- that

she said they violated her orders with Jessika Svendgard by

asking about inflammatory things.

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You basically said what's with that? They got up here

20 minutes ago and said: That never happened. When we

referenced 105 days, that was just to designate a point in

time. We never had her talk about rape. In fact, we didn't

want her to and told her not to.

That's what they just said. Here's the transcript,

Your Honor.

Ms. Svendgard's direct testimony by government at Page

82 asked about what happens when you meet people, when your

pimp had you hooked up. 

I would be either -- "I would either be driven to

where they are or they would come to me."

Question by government prosecutor: "And when you went

with them, Jessika," meaning Svendgard, "what would happen?"

Answer: "I would be raped for money." 

Question by prosecutor. "In the 105 days that you

were with Mr. Hopson," her pimp, "how many times would that

happen, Jessika?"

"Three to --"

Objection.

Sustained.

So there's two misrepresentations to you. They told

you that they didn't want her to talk about rape. But in

reality, as soon as she said she was raped when she went to

hotels, they specifically asked her how many times a day that

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would happen.

Secondly, Mr. -- counsel, Mr. Kozinets, got up here

and inaccurately just told you that we didn't object to any of

this; we had no problem with the 105 days. Another falsity.

Here it is. As soon as Mr. Rapp asked her how many

times she would be raped a day in the 105 days, Ms. Bernstein

objected, at trial, and the judge sustained it.

Your Honor, I can't help but note that there's a lot

of misinformation here. And I think they're trying to take

advantage of the fact that you're new to the case.

The simple reality is and what is inescapable is Judge

Brnovich, who sat over this trial and did get a feel for things

after lots of representations by the government for years about

the propriety with which they would put things on, flat out

declared a mistrial because she said I can't have you

repeatedly violating my orders. And she found that they did.

You also specifically asked about Dr. Cooper.

Mr. Kozinets again said, oh, well, we -- or I think it was

Mr. Jones just got up here and said, oh, we just tried to tell

you we told her not to talk about all that child stuff.

Well, that's not what Judge Brnovich noted. You know,

if you look at Exhibit M in her two-page statement about why

the mistrial was granted, she calls out Mr. Jones by name. She

says: Just after we had a discussion and the government agreed

to minimize the focus on child trafficking, Mr. Jones then

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proceeded to question Dr. Cooper solely on child sex

trafficking.

That's what happened, Your Honor. If you read

Dr. Cooper's testimony, it was child sex trafficking over and

over and over again, and the judge was saying you can't do

that, and Mr. Jones got up and did it.

So they're not being honest with you right here in

this courtroom on the two things that you asked about. It's in

the transcript. These were wrongdoings. They were not by

mistake. That's why the mistrial was granted.

And while it wasn't addressed by Judge Brnovich, that

is why, when we put the standard up of intent to go to

mistrial, objectively it's met. They repeatedly violated the

orders. They went to the third rail that the court said don't.

And they did it right after their attempt to put on -- the

court allowed -- Mr. Fichtner, Agent Fichtner, blew up because

he said you can't show criminality based on these ads.

The other thing that I want to address because another

misleading comment by the government right here was on the

Western District of Washington. I am going to have

Ms. Bernstein, because she was the person who dealt with that

issue and is far more informed.

MS. BERNSTEIN: Thank you, Your Honor, and I'll be

brief with this. What Judge Logan found three years ago at

this point was that inadvertently produced memos authored by

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DOJ attorneys relating to a separate investigation in the

Western District of Washington where DOJ concluded there was no

evidence of criminality, Judge Logan said those inadvertently

produced memorandums were protected by work product, that

those -- that the conclusions of DOJ related to a different

investigation than this case.

And I don't want to -- I want to contain that, because

it is not as the government is suggesting, but it's wholly

separate. That is the first time Mr. Jones has ever said that.

THE COURT: Well, let me say that's what Judge Logan

said. Let me quote from his order.

"Court finds the defendants' argument is misguided

because the Western District of Washington was a wholly

separate investigation and failed to show how the mental

impressions and legal analysis from attorneys not involved in

this case can be exculpatory."

So he found it was a wholly separate investigation.

MS. BERNSTEIN: Your Honor, I believe that was

probably in 2018 or 2019. I don't recall when Judge Logan

recused. I believe the order you're referring to is at docket

446, I think. I'm familiar with that.

THE COURT: It was 449. 

MS. BERNSTEIN: 449. I'm sorry. The issue, Your

Honor, is that the facts that were underlying the investigation

in Washington at the time Judge Logan made that decision or

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issued that order were not what the government had then spent

three years producing discovery about, witnesses about, and

putting on their trial.

There's only one website, Your Honor. It's the same

Backpage.com that it was back then that the government put on

trial now.

One of the very defendants in this case was called

before the grand jury in the Western District of Washington.

And I would say about 65 percent of the millions and millions

of pages of discovery we've received in this case pertained to

the 2010 to 2013 time frame that was investigated in the

Western District of Washington. There's overlapping witnesses.

The government's given us Jencks from that grand jury

investigation in this trial.

So for the government to say that what they presented

at trial is wholly separate, as Judge Logan concluded years ago

when we were tracking an indictment that was different than

what the government presented, the government focused almost

exclusively in their opening and at trial on the time frame

leading up to 2013. That's almost exclusively what they did. 

And that was at the point at which we said to Judge

Brnovich how is the findings -- how are the factual issues that

they investigated, interviews of these defendants, interviews

of the same witnesses, how is that not material?

The government just stood up here and said in 2010, in

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2011, in 2012, in 2013 this is what Backpage did; this is what

these defendants did. The government knows the DOJ

investigated those years and came to a contrary conclusion.

The government also has not told us, well, these are

separate; that's why we're not giving it to you; we're not

giving it to because it's separate. 

In fact, I'm quoting from a letter that Mr. Jones sent

to us in response to my request, my umpteenth request for this

information, and he says -- And I believe this is in the

record. I can find the cite or submit this for Your Honor.

Mr. Jones says, "We do not share your view that the materials

from the Western District of Washington's 2012 to 2013

investigation reveal exculpatory or impeaching information in

this criminal case. As you know, the Western District of

Washington's investigation lacked significant evidence that we

have since obtained clearly demonstrating defendants' knowledge

and intent to facilitate prostitution."

And that has been the government's argument. Until

today, that has been the refrain -- 

THE COURT: Well, couldn't -- I guess -- 

MS. BERNSTEIN: -- that we found more stuff.

THE COURT: -- let me see if I -- Let me -- I

didn't -- I don't know what you read, I mean, in terms of where

that came from or what the prompt was for the letter.

But couldn't it be the case that the Western District

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of Washington shut down their investigation. They made a

determination based on what they had at the time. The

government then in its investigation here then takes leads or

information, develops new information. Are you saying that

that's not what happened here? Are you saying that they're

wholly relying on the prior material that was produced by the

grand jury and that the decision was made not to prosecute

because presumably there was exculpatory evidence?

MS. BERNSTEIN: I don't know what the government's

relying on here. I can only take the government at its

representations, which has been that since the Western District

of Washington, they claim to have unearthed additional

information that was not known to the investigators or to the

prosecutors in that district at that time.

And I would submit, Your Honor, that that goes to the

weight of the evidence when it comes in at trial. They can

cross-examine people about that. That doesn't allow the

government to withhold from the defense years-long

investigations subpoenaing dozens of witnesses before the grand

jury, thousands of documents. I don't know the full extent of

it. But it was an extensive investigation that concluded no

criminality.

And then the government comes here and says no, no,

no, in those years criminality was robust; it was occurring all

the time.

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And we say, well, gosh, that's not what you found, and

so we are entitled to the underlying facts that supported the

conclusion that there was no criminality.

And in response they don't say no, no, no, it's

separate. In response they say they didn't know everything

that we know now.

Okay. The government can argue that. If we present

some piece of evidence that was a smoking gun in 2012 that led

to the Western District of Washington concluding no

criminality, the government can say: But you didn't know X.

You didn't know Y. You didn't know Z. 

But the government doesn't get to hide all of that

from us and say, no, we've decided that -- we reached a

separate conclusion, so we're not going to give you anything

that they've given. 

It's the IRS that investigated in 2012. It's the FBI

that investigated in 2012. It's the same case agents here that

are sitting in the courtroom today. It's their agencies, Your

Honor. There were overlapping witnesses. And this came up

again before Judge Brnovich, because in response to my endless

inquiries about discovery from the Western District of

Washington and Jencks for these witnesses, the government kept

taking the witnesses off their witness list. So they

interviewed a number of moderators in the Western District of

Washington, and we hadn't been provided with their notes or all

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of that information.

When we asked for it again and again, updated

iterations of the witness list would no longer have those

people on them.

Judge Brnovich understood that that may obviate their

Jencks obligations, but it doesn't obviate Brady. If they

interview 15 moderators in 2012 who tell them this is what

we're doing, and the conclusion they make from that is that

there was no criminality and there's no indictment, and then

they come into court years later and say to the jury and to

Judge Brnovich in 2012 moderators were committing illegality

and doing things that were illegal, criminality and illegality,

that's not what they found then. And we don't see any of it

because they do gatekeep. We don't see any of it because we

don't get to know what went on there. All we see is the tip of

the iceberg. And every time we ask, there's more and more and

more. The government doesn't dispute that Arnold & Porter, a

premier, respected law firm, told -- gave advice in 2012 to a

prospective buyer of Backpage that at that time -- The

prospective buyer was seeking advice about possible liability

if he purchased Backpage and was told there's no criminal

liability. There's a memorandum performed -- written by a

summer associate. There's e-mails about this.

We know that because it was in the grand jury

transcript that they did give to us. So we read this and say,

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well, gosh, can we please have that exhibit?

And they say: No, no, no, no. It's a summer

associate. They didn't know what we know now.

That doesn't preclude turning it over. The government

doesn't dispute that these things are relevant and bear on

this. So this idea that it's wholly separate that Mr. Jones

just latched onto when Your Honor offered that to him, I just

want to make clear that that's not what the government's

argument has been.

THE COURT: I think I asked him the question. I don't

think I offered it to him.

MS. BERNSTEIN: I'd like to make clear that that's

inconsistent with everything Mr. Jones has written to the

defense in this case about this specific issue and what's

before Your Honor in the rest of the record. 

THE COURT: All right. Well, I will -- Did you wish

to say something?

MR. LINCENBERG: I did, Your Honor.

THE COURT: Okay. Two minutes, and I'm going to cut

you off.

MR. LINCENBERG: Two minutes is enough. A couple of

quick points. First, with regard to Dr. Cooper and what they

claim they discussed, the Court should bear in mind what we

have at Footnote 13 on Page 14 of the defendants' reply brief

where prior courts have noted Dr. Cooper doesn't really have

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testimony relating to the elements of prostitution-related

offenses. She talks about all of this trafficking stuff. I

think that's relevant here.

Second, with regard to the filter team protocol

violations, Judge Campbell's order dealt with 232 e-mails where

a PR firm was involved. After that we were in court for a

hearing. There was a protocol that the government said they

would abide by in which they would not turn over to the merits

team -- the taint team would not turn over to the merits team

documents which contained attorneys' names without

going through the protocol which involved also giving the

defense an opportunity to object. They directly violated that

with some 955 e-mails that they turned over.

THE COURT: And I think you raised that in another

pleading previously.

MR. LINCENBERG: Yes. Yes. Third, with regard to the

attorney-client privilege, the whole point on the renewed

motion is that when Judge Brnovich finds the defendants didn't

meet their burden of establishing privilege, because we can't

just assume that these topics on their face are privileged, and

then the government comes back and later, two years later, says

this is on its face privileged, that's a contradiction.

And that issue will either be fleshed out by the Court

allowing an evidentiary hearing relating to that prior to trial

or that misconduct will come out during Carl Ferrer's

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testimony. He will either testify in a hearing beforehand, or

at trial the Court will see that he will come out and say this

was clearly attorney-client communications.

Third -- Fourth, briefly on this recklessness point,

Oregon versus Kennedy doesn't say exactly what is meant by

government intending to goad. What I'm suggesting that intent

is whether the government knows the natural and probable

consequences of what's going to come when they solicit

testimony in violation of orders.

And I'm suggesting that it's the government in many

cases under Jewell that says that that can also be satisfied by

reckless disregard. I don't know if that's what the courts

would uphold as the definition of intent for this purpose, but

it is something which shows knowledge.

And finally I think that what really comes out of this

hearing is that Judge Brnovich's findings about what the

government did with Dr. Cooper and Jessika Svendgard are

inconsistent with what Mr. Jones' and Mr. Rapp's answers are of

the conversations they had with these witnesses.

Now, I don't know the truth. I don't know what was

stated in meetings with Mr. Rapp and Ms. Svendgard or with

Mr. Jones and Dr. Cooper.

But whatever that truth is, it's particularly relevant

to the Court's decision on this motion. And the Court should

not in any way defer to their claims about what was said when

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there's no under oath testimony on that, which is in fact what

occurred in Oregon versus Kennedy and in the Fern's case and

the like where courts, in order to decide what the truth was on

this very important motion, had a hearing in which they took

testimony.

Thank you, Your Honor.

THE COURT: Thank you. I will take the matter under

advisement. 

And let me just, on a somewhat related matter, I think

the Court has been, because of the number of individuals that

are involved here, the numbers of lawyers we have present, I

have been generous in giving you extensions of page limits and

so on and so forth. But I do want to just make sure that

everyone adheres to the local rules of pleading standards.

I don't want to have to turn back any pleading because

half of what it is is in footnotes, single spaced. All right.

If you're going to make the points, make them in the body of

your briefs.

Otherwise I'm going to start rejecting these very

lengthy pleadings that also attach hundreds of pages of

exhibits.

And with respect to that, let me just say that I'm

going to institute -- and if I have to issue it in a separate

order -- I want to make sure that you specifically pincite to

the referred matter that you're talking about, because I'm

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dealing with transcripts, I'm dealing with prior orders and

exhibits, e-mails and so on. If you're going to refer to it in

your pleading, make sure that you direct the Court to the page

and the lines that are relevant to the argument. Okay?

And, lastly, sealing. Study the local rule on

sealing. Study the docket. There have been some inconsistent

filings I've already noticed. Some folks have attached

exhibits that they wish to have sealed when they are actually

on the public docket. And so do pay attention to that. I'm

going to myself go through that because it's quite confusing to

me what is sealed and what is not. And you're referring to

documents as being sealed, and then I discover they're not. So

be very careful about that as well.

And so with that, I will take the matter under

advisement.

Let me just double check is there anything further

from the government that you wish to raise today just in terms

of housekeeping matters or any issues since I have you all

here?

MR. KOZINETS: No, Your Honor.

THE COURT: Anything from defense counsel that you

wish to raise today in terms of a housekeeping matter?

MR. LINCENBERG: Yes, Your Honor. Can we -- The

defense would like just some clarification of exactly what is

on for hearing on the 13th.

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THE COURT: I don't know. All right. So I'm still

parsing through a lot of this. And as you notice, I issued a

minute entry because there were prior matters that were

lingering on the docket before the mistrial was declared. I

didn't know whether or not -- And some of that was relitigated

in the motion that we just heard. And I didn't know whether or

not, to the extent that the Court is going to make a particular

finding or opine on, it might include some of that prior

material.

And I noticed the parties didn't have a reply filed

because obviously the mistrial occurred. And so my guess is

you all thought it was moot at that point.

So, in any event, I'm still parsing through

specifically what I want to hear about. And I want to maximize

the use of my time and your time to be able to focus narrowly

on those particular issues that I think bear hearing.

Mr. Feder.

MR. FEDER: As it pertains to the hearing on the 13th,

as it stands right now, I'm supposed to be on a plane and would

ask to be allowed to participate by phone, but --

THE COURT: Yes.

MR. FEDER: -- travel plans are changing very quickly,

so I'm not sure where I'm going to be.

THE COURT: And you may, as you have done previously

or some of you have done, just make a motion inquiry so that I

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have it on the record, and I can make sure that I'm focused on

your particular requests.

MR. FEDER: Great. Thank you.

THE COURT: All right. There being nothing further,

then we are adjourned.

(Proceedings recessed at 10:37 a.m.)

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C E R T I F I C A T E

I, LINDA SCHROEDER, 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 7th day of January, 

2022. 

 s/Linda Schroeder 

 Linda Schroeder, RDR, CRR 

 

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