UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF ARIZONA 

 _________________ 

United States of America, ) 

 ) 

 Plaintiff, ) CR-18-00422-05-PHX-SPL

 ) 

 vs. ) Phoenix, Arizona 

 ) August 17, 2018 

Dan Hyer, ) 

 ) 

 Defendant. ) 

 ) 

______________________________) 

 

BEFORE: THE HONORABLE STEVEN P. LOGAN, JUDGE 

REPORTER'S TRANSCRIPT OF PROCEEDINGS

CHANGE OF PLEA HEARING 

Official Court Reporter: 

Elva Cruz-Lauer, RMR, CRR 

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

401 West Washington Street, Spc. 33 

Phoenix, Arizona 85003 

(602) 322-7261 

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: KEVIN M. RAPP,, ESQ. 

 MARGARET WU PERLMETER, ESQ. 

 PETER SHAWN KOZINETS, ESQ. 

 40 North Central Avenue, Suite 1200 

 Phoenix, AZ 85004 

For the Defendant Dan Hyer: 

 Maxwell Law PC 

 By: KC MAXWELL, ESQ. 

 899 Ellis Street 

 San Francisco, CA 94109 

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P R O C E E D I N G S

THE CLERK: Criminal case 18-422, United States of

America versus Dan Hyer. 

This is the time set for a change of plea hearing.

MR. RAPP: Good morning. Kevin Rapp, Peter Kozinets,

and Peg Perlmeter on behalf of the United States.

THE COURT: Good morning to all of you.

MS. MAXWELL: Good morning, Your Honor. KC Maxwell on

behalf of Mr. Hyer, who is present.

THE COURT: I'm sorry, Ms. Maxwell. If you could move

the microphone and speak into it, please?

MS. MAXWELL: Good morning, Your Honor. KC Maxwell on

behalf of Mr. Dan Hyer, who is present and out of custody.

THE COURT: Good morning to both of you as well.

Mr. Hyer, this is the time set for your change of plea

hearing. If you and your lawyer would please approach the

lectern.

Please administer the oath.

THE CLERK: Please raise your right hand.

 (The defendant is placed under oath by the courtroom deputy.) 

THE COURT: Mr. Hyer, it is very important this

morning that you answer all of my questions truthfully. If you

don't, the U.S. Attorney's Office, they can prosecute you for

the crime of perjury or false statement, and both of those

crimes carry prison sentences. Do you understand that?

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THE DEFENDANT: Yes, Your Honor.

THE COURT: Sir, what is your full name?

THE DEFENDANT: Daniel John Hyer.

THE COURT: Sir, is your name spelled correctly on the

plea agreement?

THE DEFENDANT: Yes, sir.

THE COURT: Ms. Maxwell, if you could please lay the

foundation as to how the plea agreement was explained to your

client.

MS. MAXWELL: Your Honor, I went over every line of

the plea agreement with Mr. Hyer. I explained the sentencing

guidelines. I explained what he -- his obligations under the

plea agreement and what he was giving up, as well as the

government's obligations.

THE COURT: Thank you. Mr. Hyer, how old are you?

THE DEFENDANT: I am 49, Your Honor.

THE COURT: Sir, how much education do you have?

THE DEFENDANT: I graduated with a bachelor of arts in

liberal arts from Kirksville Missouri School. That's now

called Truman University. At the time of graduation it was

Northeast Missouri State.

THE COURT: Sir, in the last 48 hours, have you used

any drugs, prescription medication, alcohol, or anything that

would make it difficult for you to understand what's being said

this morning?

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THE DEFENDANT: No, Your Honor.

THE COURT: Sir, have you ever been treated for a

mental or an emotional disorder?

THE DEFENDANT: No, Your Honor.

THE COURT: Does either counsel have reason to believe

that the defendant is not competent to enter a plea?

MR. RAPP: The United States does not.

MS. MAXWELL: No, Your Honor.

THE COURT: Sir, I have your original plea agreement

here, which is a 13-page document, but before we get there,

Mr. Rapp, I was looking at the forfeiture section here, and you

have the Bank of America bank account, a second one, and then

there's a piece of property, but there's also a section in your

plea agreement on page number 3 that talks about 500 million in

restitution. Where does that figure come from?

MR. RAPP: Judge, that is the United States'

assessment as to what we believe the restitution is owed to --

THE COURT: Sorry, Mr. Hyer, can you move over to your

left so I can see Mr. Rapp.

THE COURT: Go ahead.

MR. RAPP: Yes. In consultation with the defense, we

have -- it is our assessment that that is the restitution that

would be owed to a class of victims that were trafficked on

Backpage.

THE COURT: Thank you very much, Mr. Rapp.

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Sir, as I indicated before, I have your original plea

agreement which is a 13-page document. And on page number 13,

I recognize the signature of Mr. Rapp. Sir, on page number 12,

I see some additional signatures. Your lawyer is from out of

town.

Ms. Maxwell, is that your signature above your

typewritten name?

MS. MAXWELL: Yes, Your Honor, it is.

THE COURT: And, Mr. Hyer, above your type-written

name I also see a signature. Did you sign off on the plea

agreement?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Sir, you speak the English language really

well. Do you read it and write it just as well?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Did you personally have an opportunity to

sit down with your lawyers, you have three of them, and go

through each and every section of this 13-page contract?

THE DEFENDANT: Yes, Your Honor, however, I have -- do

I have three lawyers? I have two.

THE COURT: I have three lawyers. You have an Erin

McCampbell, a KC Maxwell, who is here, and it appears you have

local counsel, Anne Michelle Chapman.

MS. MAXWELL: No, Your Honor, those are not -- those

lawyers are not part of --

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THE COURT: So your only lawyer is KC Maxwell?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Okay. Thank you for that clarification.

Sir, when you had a chance to sit down with Ms.

Maxwell, did she answer any and all questions that you had

about your plea agreement?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you understand the entire plea

agreement?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Has anyone forced, threatened, or coerced

you into entering into this plea agreement?

THE DEFENDANT: No, Your Honor.

THE COURT: Has anyone made you any promises to get

you to enter into this plea agreement, other than the promises

that are contained in your plea agreement?

THE DEFENDANT: No, Your Honor.

THE COURT: Sir, are you pleading guilty voluntarily

because you believe you are guilty of this crime?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Mr. Hyer, your plea agreement, it

contemplates that you will plead guilty to count number 1 of

the superceding indictment in case number CR-18-422, and you

are the fifth defendant in this case. And the crime is

conspiracy, which is a class D felony offense under 18 United

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States Code Section 371.

Sir, is that the crime you wish to plead guilty to?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Mr. Hyer, this crime is punishable by a

fine of $250,000, and a maximum term of imprisonment of five

years or both and a term of supervised release of three years

and the maximum term for probation is five years.

Sir, do you understand the potential maximum

punishment in your case.

THE DEFENDANT: Yes, Your Honor.

THE COURT: Mr. Hyer, in addition to that, at the time

of sentencing, you will be required to pay $100 special

assessment for the count of conviction. 

Do you understand that, sir?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Mr. Hyer, I have this document right here,

it's called the Federal Sentencing Table. There should be a

copy of the Federal Sentencing Table on the lectern there in

front of you. Have you had a chance to review the Federal

Sentencing Table with your lawyer, Ms. Maxwell?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you understand the Federal Sentencing

Table?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Sir, your plea agreement, it contains

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certain promises you have made to the United States and they

have made to you. If you would like to follow along, I am on

page 2, line number 25 of your plea agreement.

The first item under section 3A is that you reserve

the right to request a downward departure or downward variance

based on the factors set forth under 18 United States Code

Section 3553(a), and you also understand that the government is

free to oppose any such request. 

Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you agree with that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Sir, we touched on this issue moments ago.

Restitution on page number 3, Mr. Rapp just explained what that

$500 million was all about. The 500 million is what the United

States Government believes the victims in this case, that were

directly or proximately harmed, should receive, an amount not

more than the $500 million, and that's based on relevant

conduct in the entire case. 

Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: You understand that you're jointly liable

for the actions of the other actors that are -- if they get

convicted. 

Do you understand that?

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THE DEFENDANT: Yes, Your Honor.

THE COURT: And you've read that entire restitution

section with your lawyer?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Sir, the second thing there on page number

3, line Number 10, it talks about your assets, and it indicates

that you'll make a full accounting of all of your assets and

you agree not to hide or waste any of those assets and you'll

notify the U.S. Attorney's Office of this. 

Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And you agree to make a full accounting of

those assets that you have legal or equitable interest?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Sir, the last promise is under section

number 3D. It's called Acceptance of Responsibility.

Basically, if you sit down with the probation officer and if

you provide that officer with truthful information about how

you violated the law, the U.S. Attorney's Office, they will

recommend a two-level reduction and an additional one-level

reduction if you have an offense level of a 16 or more.

Do you understand that, Mr. Hyer?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Sir, section number 4A indicates that at

the time of sentencing, the United States Government, they'll

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make an oral or written motion to dismiss counts 2 through 68

of the superseding indictment. 

Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: In subpart 4B, it goes on to indicate that

the U.S. Attorney's Office in the District of Arizona shall not

prosecute you for any additional offenses committed by you, and

known by the United States in connection with the subject

matter described in the factual basis of this agreement. 

Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: The last item, subpart 4C, indicates that

this matter only deals with the District of Arizona. It

doesn't tie the hands of any other district. It only applies

to the District of Arizona. 

Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Sir, after I review this entire plea

agreement, this 13-page contract, if I conclude that any

provision is inappropriate, I can reject your plea agreement

and give you an opportunity to withdraw your guilty plea. 

Do you understand that, sir?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Sir, if this plea is accepted and if I

impose a sentence permitted by the terms of your plea

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agreement, you will not be permitted to withdraw from your plea

or challenge your judgment and sentence on appeal with the

exception of an appeal based on ineffective assistance of

counsel based on your lawyer's performance or prosecutorial

misconduct based on the government's conduct in the case. 

Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Sir, I am not required to go along with

any recommendations that you have in your plea agreement. And

if I reject a recommendation in your plea agreement, you cannot

withdraw from this plea agreement or your plea. However, if

there's a stipulation in here, which I don't believe you have a

stipulation in here, it would be a promise, and if the promise

is not kept, that means you can get out of this plea agreement.

Do you understand that, sir?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Mr. Hyer, if you are required to do so,

after you serve your prison sentence, you will then be placed

on supervised release, and you will be required to follow

certain conditions imposed by me. And if you violate any of

those conditions, you could receive more time in prison in this

case. 

Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Ms. Maxwell, is your client currently on

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probation, parole, or any other punishment?

MS. MAXWELL: No, Your Honor.

THE COURT: Sir, are you a U.S. citizen?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Sir, if you commit another crime against

the United States after this one, your conviction in this case

could be used to make whatever sentence you receive for the new

offense even longer or harsher than it otherwise would be.

Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Mr. Hyer, as a person accused of a crime

here in the United States, you have certain rights that are

guaranteed to you by the U.S. Constitution.

You have a right to remain silent and to maintain your

innocence through each phase of your case, as well as to have

Ms. Maxwell represent you through each phase of your case. 

You have a right to confront and cross-examine all of

the government witnesses.

You can present your own evidence and compel witnesses

to come to court and testify on your behalf.

Sir, the burden of proof is always on the U.S.

government to prove you are guilty. It never shifts for you to

prove that you are innocent, and the United States Government

must prove each and every element of the crime beyond a

reasonable doubt.

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Sir, proof of guilt beyond a reasonable doubt means

that Mr. Rapp behind you, and his team, must come into this

federal courtroom and present the jury members with sufficient

evidence that would leave each and every jury member firmly

convinced of your guilt before any of those jury members can

vote in finding you guilty. 

Mr. Hyer, do you understand your constitutional rights

that you have here in the United States?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Mr. Rapp, can the United States Government

avow that if this matter were to proceed to trial, you could

prove each and every element beyond a reasonable doubt?

MR. RAPP: The United States would be able to do that,

yes.

THE COURT: Mr. Rapp, I need you to place the elements

on the record.

MR. RAPP: The elements for conspiracy under Title 18

United States Code Section 371, beginning no later than 2004

and continuing through in or around April of 2018, in the

District of Arizona and elsewhere, number 1, there was an

agreement between two or more persons to commit one or more of

the crimes of the Travel Act, which was the Facilitation of

Prostitution, in violation of 18 U.S.C. Section 1952 (a)(3)(A); 

Number 2, the defendant became a member of the

conspiracy knowing of at least one of its objects and intending

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to help accomplish it. 

And three, one of the members of the conspiracy

performed at least one overt act for the purpose of carrying

out the conspiracy.

THE COURT: Mr. Rapp, thank you for that.

Mr. Hyer, did you just hear Mr. Rapp place the

elements of the crime on the record?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you understand those elements?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Has your lawyer explained those elements

to you?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Sir, in your own words, tell me exactly

why you believe you're guilty of this crime. In other words,

what did you do?

THE DEFENDANT: Around 2006 or 2007, I was working for

the Dallas Observer. At that time, I was asked to help grow

Backpage.com, which was owned by Village Voice Media to have a

competitor to their website Craigslist.

We grew the site by taking content that was in the --

on the Craigslist website in the adult section, copied those

ads and posted those on our site. And the term that we used

for that type of practice was called "agregation." 

Eventually we started doing what was called

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"preboarding," which was contacting the users that were on

Craigslist and other prostitution sites offering them a free ad

on our website, and then they would end up getting a link and

verify the ad on our website.

The reason that we -- and I know that those ads were

sometimes illegal is because they contained links to sites like

The Erotic Review, which -- and other prostitution review

websites. 

The rationale or the purpose of doing this practice

was to try to gain as many users as we could, participants on

our website, to in turn draw in as many consumers to look at

the content, respond to the content, and ultimately to grow

revenues.

THE COURT: Well, sir, I want to focus on count number

1. You heard Mr. Rapp earlier. An agreement between two or

more individuals. Who do you believe those individuals are

that you had an agreement with?

THE DEFENDANT: Carl Ferrer was my immediate

supervisor. We strategized this approach, this tactic often.

It was one that we had employed at the Dallas Observer where we

would contact people who are -- at that time it was a

newspaper. They were posting ads -- or they had ads in the

newspaper, like The Dallas Morning News. And we would contact

them to post their ads that were in the Dallas Morning News in

the Dallas Observer. So we utilized that same approach. I was

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hired in '98 and worked for Carl at that time, and we used that

tactic to grow Backpage as well.

THE COURT: And, sir, do you -- after having a chance

to sit down with your lawyer, do you understand 18 United

States Code Section 1952, which is the -- a crime pursuant to

the Travel Act to facilitate prostitution; do you understand

that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And do you understand that your conduct

with this other individual would fall under that crime, that

federal crime?

THE DEFENDANT: Yes, Your Honor. I also --

THE COURT: Go ahead.

THE DEFENDANT: I also worked in those -- 2006, 2007

with Scott Spear, who is Carl's boss, but we also talked at

times about how to grow the site.

THE COURT: And, sir, when you became a member of this

conspiracy, you knew that one of the objects was to basically

use that print form to facilitate prostitution?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And you agree that by helping to grow the

paper, that you were helping with this -- you were helping to

carry out this conspiracy?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Mr. Rapp, the factual basis contained on

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pages 8 through 9 actually, actually 8 through 10, I need you

to fill in any blanks for the record that you need to. You can

even question the defendant if you need to.

MR. RAPP: Thank you, Your Honor. Just for the

record, this plea agreement was negotiated over the last 30 or

so days and -- with both defense and the prosecution going back

and forth about the details of this factual basis, and so I

think the record should reflect that this defendant ultimately

agreed to the facts contained therein as evidenced by signature

on the plea.

The only additions I would add are halfway down on

page 9, in addition, Mr. Hyer and other Backpage employees were

deluged with near-constant reminders in the form of news

articles --

THE COURT: What line are you on?

MR. RAPP: I am on line 18 of page 9. They were

deluged with near-constant reminders in the form of news

articles discussing prostitution busts on Backpage, warning

letters from the attorney generals and other sources of the

reality of what was being offered. All of these went to their

knowledge.

For a period of time, Mr. Hyer often received Google

alerts that summarized the new prostitution-related stories

about Backpage, that kept appearing in the news. He kept

working at Backpage and kept facilitating these prostitution

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offenses because he was afraid of losing his job, among other

things. And because the Village Voice Media and Backpage

operated in a culture of denial, he also participated in later

efforts to expand Backpage's agregation efforts to the overseas

markets where they often did not even bother talking about

prostitution-related activities in codes to conceal that those

type of services were being offered.

I would also point out that Mr. Hyer became involved

not only with Carl Ferrer, but moderators Andrew Padilla and

Joye Vaught, who are defendants in this case, in Backpage's

efforts to moderate the content of the website's escort and

adult ads. They knew that the majority of these ads being

moderated were actually offering illegal prostitution services.

Their removal of explicit words and pictures did nothing to

change the underlying nature of the services being offered.

In fact, Mr. Padilla and Mr. Hyer agreed that Mr. Hyer

and other Backpage sales and marketing employees used the term

"models" quote, unquote, in intra-company emails when referring

to persons in Backpage ads who appeared to be underage. The

use of this term was to avoid looking bad in a lawsuit or

subsequent lawsuits.

THE COURT: Thank you, Mr. Rapp.

Mr. Hyer, you told me earlier that you had a chance to

read through the entire plea agreement. I just want to focus

on the factual basis, which starts on page number 8, line

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number 18, through page Number 10, line Number 10. Again, have

you had a chance to read through the entire factual basis?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Sir, is there anything in there that you

would like -- is there anything in there that you would like to

change?

THE DEFENDANT: No, Your Honor.

THE COURT: Is it all accurate?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Sir, are you pleased with the assistance

that your lawyer has provided to you in this case?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Would you like to give up your rights to

go to trial so you can enter a plea of guilty to this crime.

THE DEFENDANT: I'm sorry, I don't understand that?

THE COURT: It's a very confusing question. My

apologies to you. 

You have a constitutional right to maintain your

innocence, and the United States Government, they're

responsible for proving each and every element of the crime

beyond a reasonable doubt.

What I believe you are here to do this morning is to

enter a plea of guilty to try to resolve these charges against

you.

Sir, there's some tissues on the lectern.

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THE DEFENDANT: I'm cool. I'm all right, Your Honor,

I'm sorry.

THE COURT: Is there a box of tissues up there or on

the defense counsel table? We usually have tissues on the

lectern. I don't know what happened to them. Just grab some

tissues. I know it's very emotional.

Ms. Maxwell, get your client some water. There's

water back there also.

Sir, you have -- as I stated before, you have a right

to have a jury decide your case, but it appears that you want

to resolve the issues by way of a change of plea hearing.

For me to go forward with you by accepting guilt by a

change of plea, you have to waive your right to go to trial.

Is it your intent to waive your rights to go to trial so you

can enter this plea?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Sir, as to count 1 of the superceding

indictment charging you with a conspiracy, which is a class D.

felony offense under 18 United States Code Section 371, Mr.

Hyer, how do you with to plead, guilty or not guilty?

THE DEFENDANT: Guilty, Your Honor.

THE COURT: Sir, this Court accepts your plea of

guilty. This Court also finds that you have knowingly,

intelligently, and voluntarily entered a plea of guilty. 

That you understand the charge and that there's a

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factual basis for your plea, and also that you're competent to

enter a plea of guilty.

It's ordered that a presentence report be prepared in

your case, and, Mr. Hyer, your sentencing is set for November

the 19th, 2018, at 11:00 in the morning. Again, 19 November,

2018, at 11:00 in the morning.

Mr. Hyer, do you have any questions about anything 

that's happened in your case? 

THE DEFENDANT: No, Your Honor.

THE COURT: Sir, I have your release status report

here, and it appears that you have adjusted well under

supervision. You've been on supervision for about four months,

and you -- it appears that you've been in full compliance.

There was a home visit in July of 2018 and there were no issues

to report. You've also surrendered your passport. You have no

new arrests or warrants or convictions. 

Sir, you're doing everything you need to do to present

your most favorable argument during the sentencing phase. Ms.

Maxwell, I am sure, will continue to tell you that you need to

continue to just go to work, whatever you're doing right now,

stay out of trouble, and just make sure that you provide her

with positive things that she can tell me about when I do

sentence you so I'll have a full picture of you. Do you

understand that?

THE DEFENDANT: Yes, Your Honor.

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THE COURT: Ms. Maxwell, was there anything else from

the defense?

MS. MAXWELL: No, Your Honor.

THE COURT: Mr. Rapp, is there anything else from the

United States Government?

MR. RAPP: No, Your Honor. Thank you.

THE COURT: You're welcome. The hearing is adjourned.

* * * *

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C E R T I F I C A T E

I, ELVA CRUZ-LAUER, 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 28th day of August,

2018.

 s/Elva Cruz-Lauer 

 Elva Cruz-Lauer, RMR, CRR 

 

 

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