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3895823.2

DEFENDANTS’ REPLY IN SUPPORT OF OBJECTIONS TO 

COURT RULINGS DURING FERRER TESTIMONY

Gary S. Lincenberg (admitted pro hac vice)

 glincenberg@birdmarella.com

Ariel A. Neuman (admitted pro hac vice)

 aneuman@birdmarella.com

Gopi K. Panchapakesan (admitted pro hac vice)

 gpanchapakesan@birdmarella.com

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW, P.C.

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: (310) 201-2100

Facsimile: (310) 201-2110

Attorneys for Defendant John Brunst

Paul J. Cambria, Jr. (admitted pro hac vice)

 pcambria@lglaw.com

Erin McCampbell Paris (admitted pro hac vice)

 eparis@lglaw.com

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

Attorneys for Defendant Michael Lacey

[Additional counsel listed on next page]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Michael Lacey, et al.,

Defendants.

CASE NO. 2:18-cr-00422-004-PHX-DJH

DEFENDANTS’ REPLY IN SUPPORT 

OF OBJECTIONS TO COURT 

RULINGS DURING FERRER 

TESTIMONY

Case 2:18-cr-00422-DJH Document 1871 Filed 10/18/23 Page 1 of 9
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3895823.2 2

DEFENDANTS’ REPLY IN SUPPORT OF OBJECTIONS TO 

COURT RULINGS DURING FERRER TESTIMONY

Eric W. Kessler, 009158

 eric.kesslerlaw@gmail.com

Kessler Law Group

6720 N. Scottsdale Rd., Suite 210

Scottsdale, AZ 85253

Telephone: (480) 644-0093

Facsimile: (480) 644-0095

Bruce S. Feder, 004832

 bf@federlawpa.com

FEDER LAW OFFICE, P.A.

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

Telephone: (602) 257-0135 

Attorney for Defendant Scott Spear

David Eisenberg, 017218

 david@deisenbergplc.com

DAVID EISENBERG PLC

3550 N. Central Ave., Suite 1155

Phoenix, Arizona 85012

Telephone: (602) 237-5076

Facsimile: (602) 314-6273

Attorney for Defendant Andrew Padilla

Joy Malby Bertrand, 024181

 joy.bertrand@gmail.com

JOY BERTRAND ESQ LLC

PO Box 2734

Scottsdale, Arizona 85252

Telephone: (602) 374-5321

Facsimile: (480) 361-4694

Attorney for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 1871 Filed 10/18/23 Page 2 of 9
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3895823.2 3

DEFENDANTS’ REPLY IN SUPPORT OF OBJECTIONS TO 

COURT RULINGS DURING FERRER TESTIMONY

I. Background

A. The Impeachment

After testifying on direct examination that Backpage was deceiving credit card 

companies, credit card processors, and banks, defense counsel attempted to impeach Ferrer 

with his prior statements to the contrary: 

1. When you “spend months vetting contracts vetted by the acquiring bank and 

processor. You are not disguising your transaction.” (09/27/23 PM Trial Tr. 

at 61:11-15) (quoting GL-CF-37, May 18, 2017 comments to First Amended 

Complaint). 

2. “There was no evidence of fraudulent merchant bank applications.” Id.

3. “A money laundering charge is really an attempt to legislate by prosecution” 

and that “it’s done in order to cut off unpopular speech.” Id. at 61:16-19.

4. One cannot secure a bank account without meeting Know Your Customer 

(KYC) policies. 

The Court precluded this impeachment.

B. Rule of Completeness

The Court’s pre-trial order states: “During trial, exhibits will be admitted or 

rejected in their entirety. Thus, if any part of an exhibit is objectionable, it will be 

excluded in its entirety. Ordinarily, the parties will not be permitted to break offered 

exhibits into admissible sub-parts if an objection is sustained.” Despite this order and,

more importantly, despite Federal Rule of Evidence 106, Crawford and its progeny, and 

due process considerations, the Court repeatedly allowed the government to introduce parts 

of documents that supposedly put defendants on notice of Backpage.com’s purported 

wrongdoing (not for the truth, but only to show notice), while precluding those parts of the 

documents and interactions that were exculpatory (and would provide notice in the other 

direction). The prejudice to the defense has been overwhelming, for the reasons set forth 

at length in prior pleadings and oral argument (and which need not be repeated here).

With respect to the government’s Exhibit 616, on October 12, 2023, the Court 

Case 2:18-cr-00422-DJH Document 1871 Filed 10/18/23 Page 3 of 9
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3895823.2 4

DEFENDANTS’ REPLY IN SUPPORT OF OBJECTIONS TO 

COURT RULINGS DURING FERRER TESTIMONY

suggested that the defense never tried to introduce Exhibit 616 (the unredacted version), 

but that was incorrect. The defense objected to the introduction of the government’s 

Exhibit 616a (the redacted version) unless it was admitted in its complete form (Exhibit 

616) and also objected to the Court keeping out the topics referenced in the redacted 

Larkin email.1 Lest there be any doubt in the record, the defense hereby moves for the 

admission of government Exhibit 616 in its unredacted form. 

(1) Response to AG Letters

The Government’s argument does not merit a reply. The record is clear that the 

Government introduced the AG letters to suggest that Backpage.com was operating 

illegally, given the AG’s repeated demands that Backpage.com stop publishing adult ads. 

Although that brought into dispute whether Backpage in fact was violating state laws, the 

Court has precluded the defense from introducing Backpage’s meritorious letters 

responding to the AGs—which laid out why the AGs were dead wrong and why efforts to 

investigate and prosecute Backpage.com under state laws would have failed because of the 

First Amendment, the CDA, and an inability to establish elements of alleged offenses. 

Indeed, this Court has generally shut down the defense when even just the word “lawyer” 

is mentioned (at least when mentioned by the defense). 

2. Preclusion of Impeachment of Ferrer with His Prior Statements

The Government filed its response in the middle of trial last Wednesday, claiming 

the defense should not be permitted to use Ferrer’s statements set forth in GL-CF-37. The 

Court gave defense counsel no opportunity to respond, either orally or in writing, before 

1

 “MR. RAPP: Move to admit 616a. MR. LINCENBERG: Objection. No objection to 

616 but we certainly object to 616a which is an incomplete version of the email 

correspondence. MR. FEDER: Also same objections. THE COURT: Is 616 the 

unredacted version, Mr. Rapp? MR. RAPP: It is. THE COURT: And I guess let me 

inquire if you can answer, is there a reason that you’re not introducing 616 as opposed to 

616a? MR. RAPP: Because the redacted version is hearsay. THE COURT: Oh. I see. 

Okay. MR. LINCENBERG: 616a, the redacted version, is admissible because it’s not 

hearsay. It’s not offered for the truth. 616a is the response to the initial email. It’s out of 

context without the initial email.) Trial Transcript, September 15, 2023 A.M., p. 12:9-24.

Case 2:18-cr-00422-DJH Document 1871 Filed 10/18/23 Page 4 of 9
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3895823.2 5

DEFENDANTS’ REPLY IN SUPPORT OF OBJECTIONS TO 

COURT RULINGS DURING FERRER TESTIMONY

ruling in favor of the Government at 9:00 a.m. on Thursday morning. 

The Court essentially adopted the Government’s arguments from its response and 

ruled that the impeachment was improper because (1) the written statements with which 

the defense sought to impeach Ferrer did not appear to have come from Ferrer; (2) the 

written statements appeared to have been a “work in progress”; and (3) the written 

statements appear to have been an attorney-client communication from Ferrer, made in 

May 2017, but the joint defense agreement was not signed until June 2017. None of those 

government arguments had merit.2

(1) The inconsistent statements were Ferrer’s statements. As the record reflects, 

Mr. Ferrer transmitted the written statements with which the defense sought 

to impeach Ferrer, in the email that is GL-CF-36, to Mr. Grant and 

Mr. Quigley. On its face, that email makes plain that the statements were 

Ferrer’s statements. If the Court had any doubt, it should have permitted 

counsel to question Ferrer to establish that was the case. Moreover, in their 

filings claiming that the written statements with which the defense sought to 

impeach Ferrer were his privileged communications with counsel, counsel 

for Ferrer and the Government each necessarily conceded that the statements 

were Ferrer’s statements. Additionally, in cutting off defense counsel’s 

pursuit of this line of impeachment, the Court precluded defense counsel 

from getting to Ferrer’s similar prior inconsistent statements set forth in his 

email, GL-CF-36 (May 18, 2017 e-mail from Ferrer to J. Grant and D. 

Quigley) regarding denial of merchant processing and the “100 reasons” why 

that might occur. 

(2) Whether or not Ferrer’s statements were a “work in progress” is speculative 

and irrelevant. The only person who can say whether the statements were a 

2

In setting out the bases for precluding the impeachment, the Court did not contest that 

the statements with which the defense sought to impeach Ferrer clearly were contrary to 

Ferrer’s testimony at trial.

Case 2:18-cr-00422-DJH Document 1871 Filed 10/18/23 Page 5 of 9
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3895823.2 6

DEFENDANTS’ REPLY IN SUPPORT OF OBJECTIONS TO 

COURT RULINGS DURING FERRER TESTIMONY

“work in progress” is Ferrer, and he was not allowed to testify about his 

statements. There is no basis for the Court to conclude this. Nor is it 

relevant to admissibility. If the government wants to try to minimize the 

relevance of Ferrer’s inconsistent statements by suggesting he might have 

later changed them, that would be a matter for redirect examination.

(3) The Joint Defense Agreement permits counsel to use Ferrer’s 

communications to cross-examine him. As an initial matter, Ferrer does not 

(and cannot) deny that he waived the privilege for communications with 

Backpage.com’s counsel or that Mr. Grant represented Backpage.com.

3 As 

Mr. Grant made clear in his declaration (lodged with the Court in camera in 

2018 in connection with Doc. 180), since October 2016, Ferrer had separate 

counsel representing him in the California criminal case (Nanci Clarence) 

and Grant represented Backpage and the individuals as to common issues 

focusing on First Amendment and Internet issues. Grant Decl., ¶ 7. Under 

the Section of the JDA regarding “Potential Conflicts of Interest,” the JDA 

states: “This specifically permits use of contributed information or material 

in cross-examining the witness and permits the presentation of their 

information or material by the defense at any point of the proceedings.” 

Grant Decl., ¶ 22. Paragraph 1 of the JDA, captioned Background and 

Purpose of the Agreement, made clear that the agreement included prior 

communications between counsel that were subject to the joint defense 

agreement. It also made clear that shared emails were considered “Defense 

Materials” and that the sharing of those materials was essential to the 

3

“Proffer/Interview Agreement,” Doc. 940-2, p. 23 ¶ 2 (“Mr. Ferrer voluntarily waives all 

claims of attorney-client privilege, whether in his personal or official capacity as the Chief 

Executive Officer of Backpage.com, LLC as to communications with any attorney or law 

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

concerned or related to Backpage.com or any related entity.”).

Case 2:18-cr-00422-DJH Document 1871 Filed 10/18/23 Page 6 of 9
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3895823.2 7

DEFENDANTS’ REPLY IN SUPPORT OF OBJECTIONS TO 

COURT RULINGS DURING FERRER TESTIMONY

preparation of an effective defense. Id. Paragraph 7 of the JDA also

provided that “Each party, in the Party’s sole discretion, may provide the 

other Party with access to his client for interview for any purpose under the 

Agreement.” As such, Ferrer’s communication with Grant, who Ferrer knew 

also was representing Lacey, Larkin, and Backpage, clearly was joint defense 

material subject to the terms of the JDA. 

(4) Even absent the JDA, Mr. Grant had no obligation to keep Ferrer’s 

communications secret from Messrs. Lacey and Larkin because Mr. Grant 

jointly represented Lacey, Larkin, Ferrer, and others. Rstmt. (Third) of the 

Law Governing Lawyers § 75 (2000) reporter’s note cmt. d (“Rules 

governing the co-client privilege are premised on an assumption that coclients usually understand that all information is to be disclosed to all of 

them. Courts sometimes refer to this as a presumed intent that there should 

be no confidentiality between co-clients. Fairness and candor between the 

co-clients and with the lawyer generally precludes the lawyer from keeping 

information secret from any one of them, unless they have agreed 

otherwise . . . .”). As Mr. Grant discussed in his declaration, his joint 

representation was consistent with the norm. Grant Decl., ¶ 11. 

(5) Finally, Ferrer not only emailed his statements to Mr. Grant, but he also 

emailed them to Daniel Quigley, an attorney representing Medalist Holdings, 

Inc. (f/k/a New Times, Inc.) and its subsidiaries—the companies owned by 

Larkin and defendants Lacey, Brunst, and Spear. See GL-CF-36. During his 

direct examination, Mr. Ferrer described Mr. Quigley as a representative of 

“the sellers,” not as his personal lawyer.4 Mr. Quigley did not represent 

Ferrer in the California criminal cases to which Ferrer’s comments pertained,

4

 “Q. All right. And when you say you’re having regular meetings with the sellers, who 

from the sellers were you having regular meetings with? A. Jim Larkin, Don Moon, Dan 

Quigley, another intermediary.” 09/12/23 PM Trial Tr. at 82:16-19.

Case 2:18-cr-00422-DJH Document 1871 Filed 10/18/23 Page 7 of 9
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3895823.2 8

DEFENDANTS’ REPLY IN SUPPORT OF OBJECTIONS TO 

COURT RULINGS DURING FERRER TESTIMONY

and Quigley had absolutely no obligation to keep Ferrer’s comments secret 

from Messrs. Lacey and Larkin, the directors and principals of his clients. 

Exhibit A, Declaration of Daniel J. Quigley. Ferrer’s claim that Quigley was 

his personal counsel and obligated to keep Ferrer’s email and statements 

confidential from his clients is baseless.5

Pursuant to the District’s Electronic Case Filing Administrative Policies and

Procedures Manual (May 2023) § II(C)(3), Gary S. Lincenberg hereby attests that all

other signatories listed, and on whose behalf this filing is submitted, concur in the filing’s

content, and have authorized its filing.

DATED: October 18, 2023 Respectfully submitted,

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

Bird, Marella, Boxer, Wolpert, Nessim,

Drooks, Lincenberg & Rhow, P.C.

By: /s/ Gary S. Lincenberg

Gary S. Lincenberg

Attorneys for Defendant John Brunst

5

 Ferrer correctly notes that Quigley represented the defendants in a civil tort action 

brought by Sojourner Center in this Court, Case No. 17-CV-00399-PHX-GMS, but 

Quigley was not Ferrer’s personal counsel. He briefly appeared for all defendants, 

including Michael Lacey, James Larkin, John Brunst, Scott Spear, Medalist Holdings, Inc., 

Camarillo Holdings, LLC, and Carl Ferrer and various entities he then owned and 

controlled. Quigley Decl., ¶¶ 8-9. That civil tort action was unrelated to the California 

criminal case (the topic of Ferrer’s email and statements). Id., ¶ 9. And, in any event, 

Mr. Quigley jointly represented all the defendants in the action, so had no obligation to 

keep any communications from Ferrer relating to the action secret from Messrs. Lacey, 

Larkin, Brunst, or Spear or their companies. Rstmt. § 75.

Case 2:18-cr-00422-DJH Document 1871 Filed 10/18/23 Page 8 of 9
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3895823.2 9

DEFENDANTS’ REPLY IN SUPPORT OF OBJECTIONS TO 

COURT RULINGS DURING FERRER TESTIMONY

DATED: October 18, 2023 Kessler Law Group

By: /s/ Eric W. Kessler

Eric W. Kessler

Attorney for Defendant Scott Spear

DATED: October 18, 2023 Paul J. Cambria

Erin McCampbell Paris

Lipsitz Green Scime Cambria LLP

By: /s/ Paul J. Cambria

Paul J. Cambria

Attorneys for Defendant Michael Lacey

DATED: October 18, 2023 Feder Law Office, P.A.

By: /s/ Bruce S. Feder

Bruce S. Feder

Attorney for Defendant Scott Spear

DATED: October 18, 2023 The Law Office of David Eisenberg, PLC

By: /s/ David Eisenberg

David Eisenberg

Attorney for Defendant Andrew Padilla

DATED: October 18, 2023 Joy Bertrand Esq. LLC

By: /s/ Joy Malby Bertrand

Joy Malby Bertrand 

Attorney for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 1871 Filed 10/18/23 Page 9 of 9