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DEFENDANT JAMES LARKIN’S REPLY TO GOVERNMENT’S RESPONSE TO MOTION TO AMEND 

THE CONDITIONS OF HIS PRETRIAL RELEASE

Thomas H. Bienert, Jr., State Bar No. 135311 (Admitted Pro Hac Vice)

tbienert@bmkattorneys.com

Kenneth M. Miller, State Bar No. 151874 

(Admitted Pro Hac Vice)

kmiller@bmkattorneys.com

John L. Littrell, State Bar No. 221601 

(Admitted Pro Hac Vice)

jlittrell@bmkattorneys.com

BIENERT, MILLER & KATZMAN, PLC

903 Calle Amanecer, Suite 350

San Clemente, California 92673

Telephone (949) 369-3700 / Facsimile (949) 369-3701

Attorneys for Defendant

James Larkin

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff, 

 vs.

Michael Lacey, et al., 

Defendants. 

Case No. CR-18-00422-PHX-SPL (BSB)

DEFENDANT JAMES LARKIN’S REPLY 

TO GOVERNMENT’S RESPONSE TO 

MOTION TO AMEND THE CONDITIONS 

OF HIS PRETRIAL RELEASE 

(Oral Argument Requested) 

Date: July 20, 2018 

Time: 1:30 p.m. 

Place: Sandra Day O’Connor 

 United States Courthouse Courtroom 304

 401 W. Washington St.

 Phoenix, Arizona 85003

Judge: Bridget S. Bade

Defendant James Larkin, through his undersigned counsel of record, hereby replies 

to the government’s Response to Motion to Amend Release Conditions of Defendant 

Larkin’s Pretrial Release (“Response”). While U.S. Pretrial Services takes no position on 

this motion, and will not object to Mr. Larkin’s traveling throughout Arizona and 

Case 2:18-cr-00422-DJH Document 199 Filed 06/22/18 Page 1 of 12
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DEFENDANT JAMES LARKIN’S REPLY TO GOVERNMENT’S RESPONSE TO MOTION TO 

AMEND THE CONDITIONS OF HIS PRETRIAL RELEASE

California if his electronic monitor is removed, the government raises the following 

objections to the proposed amendments. 

First, the government claims there are no changed circumstances that warrant 

amending Mr. Larkin’s release conditions from those stipulated in the original release 

order. But changed circumstances are not required to amend release conditions, and even 

if they were, there are compelling new circumstances (i.e., Mr. Larkin’s need to support 

his daughter and be with his wife) that justify a motion to amend his release conditions. 

Second, the government unjustifiably claims Mr. Larkin made a false statement at 

his bail hearing and engaged in misconduct in separate civil litigation. But Mr. Larkin’s 

statement at his bail hearing was demonstrably true (he has not controlled Backpage since 

he sold it) and the assertion he engaged in misconduct in separate civil litigation is 

patently meritless (because it is not misconduct to deny the government’s charges).

Third, the government makes the baseless assertion that “since his arrest, the weight 

of the evidence against [Mr. Larkin] has increased.” In fact, the government’s allegations 

(not evidence) don’t differ from the time of Mr. Larkin’s Indictment and the “weight” the 

government gives its allegations is seriously overblown.

Additionally, the government simply ignores Mr. Larkin’s compelling need to 

amend his release conditions to support his daughter and be with his wife. Because 

electronic monitoring is not necessary and interferes with Mr. Larkin’s pressing need to 

be with and support his family, it should be omitted. And because limiting Mr. Larkin’s 

travel to Maricopa County is required only because of the electronic monitoring, that 

condition should be removed, too.

1. There Are Changed Circumstances (Even Though None Are Required)

The government faults Mr. Larkin for “fail[ing] to articulate changed 

circumstances” to justify his motion to amend his release conditions. Response at 3. But 

the plain language of 18 U.S.C. § 3142(c)(3) has no such requirement and that resolves 

Case 2:18-cr-00422-DJH Document 199 Filed 06/22/18 Page 2 of 12
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DEFENDANT JAMES LARKIN’S REPLY TO GOVERNMENT’S RESPONSE TO MOTION TO 

AMEND THE CONDITIONS OF HIS PRETRIAL RELEASE

the issue.

1

 In fact, the single sentence from the Senate Report that the government cites to 

support the alleged changed-circumstance requirement does not even say that changed 

circumstances are required.2

 And the unpublished district court opinion from the First 

Circuit that the government cites to support its position is not persuasive authority to the 

contrary.3

 

The government goes on to cite numerous cases noting that changed circumstances 

are expressly required by the text of Section 3142(f) to reopen a detention hearing. 

Response at 3-4. But the government apparently fails to appreciate that those cases are 

irrelevant since (as the government acknowledges) there was no detention hearing here to 

reopen. 

Regardless, these legal technicalities are beside the point. As stated in his original 

motion, the new conditions include “the impact of the electronic monitoring and travel 

restrictions on Mr. Larkin’s ability to support his daughter and the impact of the travel 

restrictions on Mr. Larkin’s ability to be with his wife.” Doc. 183 at 3 n.1. Having never 

worn an electronic monitor before, there is no way Mr. Larkin could have foreseen how it 

would impact his relationship with his wife and daughter. But it has clearly undermined 

 

1 See Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 550 U.S. 81, 93 (2007) (“But what of the 

provision's literal language? The matter is important, for normally neither 

the legislative history nor the reasonableness of the Secretary's method would be determinative if 

the plain language of the statute unambiguously indicated that Congress sought to foreclose the 

Secretary's interpretation.”). 

2

 “The final sentence of Section 3142(c) retains the authority now set forth in 18 U.S.C. § 

3146(e) for the court to amend the release order at any time to impose different or additional 

conditions of release. This authorization is based on the possibility that a changed situation or 

new information may warrant altered release conditions.” 1983 WL 25404 at *16. 

3 See, e.g., United States v. Hutchins, 298 F.Supp.3d 1205, 1208 (E.D. Wisc. 2017) (Certainly, in 

the government's primary citation, United States v. Lafrance . . . . modification of the release 

conditions was not warranted. . . . Moreover, this Court is not prepared to accept Lafrance's 

broad statement that mere compliance with release conditions is never sufficient to warrant a 

reduction thereof. Consequently, the Court finds the case to be of little relevance here.” 

Case 2:18-cr-00422-DJH Document 199 Filed 06/22/18 Page 3 of 12
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DEFENDANT JAMES LARKIN’S REPLY TO GOVERNMENT’S RESPONSE TO MOTION TO 

AMEND THE CONDITIONS OF HIS PRETRIAL RELEASE

his ability to be with his wife. Moreover, as explained in the original motion: 

[T]he situation is made far worse because [Mr. Larkin’s daughter] was greatly 

affected by the FBI raid on the Larkins’ home. The agents knew Mr. Larkin was 

not in the home. Still, a number of agents burst into her small bedroom, some with 

masks and machine guns, to shout at her to awake. She is in great fear for her, her 

mother’s and her father’s safety. Sadly, the travel restrictions undermine Mr. 

Larkin’s ability to provide her with necessary emotional support.

Doc. 183 at 5. Mr. Larkin was arrested at the airport and was not at his home when agents 

raided it. He was in custody from that time through the time his release conditions were 

negotiated. He could not, and did not, appreciate the full scope of the agents’ conduct and 

its impact on his daughter.4

2. Mr. Larkin Made a Provably True Statement at his Bail Hearing and Engaged in No

Misconduct in Related Civil Litigation

The government’s claims that Mr. Larkin has engaged in misconduct are meritless. 

First, the government argues that Mr. Larkin’s statement at his bail hearing--“I haven’t 

been in control [of Backpage] for three years”--is false. But the government admits that

Backpage was sold to a company controlled by Carl Ferrer in 2015. The government 

cannot deny that Ferrer was Backpage’s CEO. And it is plain Ferrer actually controlled 

Backpage. For example, Ferrer caused Backpage to plead guilty to money laundering in 

United States v. Backpage.com LLC et al., CR 18-00465-PHX-SPL, which Ferrer could 

only do because he controlled Backpage (and which Larkin could not prevent, because 

Larkin did not control Backpage). Ferrer also caused Backpage to forfeit its interest in 

many millions of dollars, which he could do only because he (not Larkin) controlled 

4 By focusing on changed circumstances, the government is trying to deny Mr. Larkin relief on a 

technicality. The government touts the fact the current release conditions were negotiated over 

10 days. The government fails to appreciate that during that 10-day negotiation, one of the 

parties was incarcerated and the other was not. Logic and the law dictate that this Court give 

little weight to the fact Mr. “Larkin’s release conditions resulted from a stipulated agreement 

between him and the government.” Doc. 197 at 2.

4

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DEFENDANT JAMES LARKIN’S REPLY TO GOVERNMENT’S RESPONSE TO MOTION TO 

AMEND THE CONDITIONS OF HIS PRETRIAL RELEASE

Backpage. 

The government’s claims (even if true) that Mr. Larkin had “numerous discussions” 

with Ferrer about circumventing conventional bankers, met with Ferrer to “discuss the 

management” of Backpage and “insisted that he retain management of the legal strategy” 

of Backpage would not establish that the sale was “a sham” or that Mr. Larkin 

“controlled” Backpage. Response at 5. Mr. Larkin does not deny that he met with Ferrer 

after the sale of Backpage to Ferrer. After the sale, Ferrer owed Mr. Larkin’s companies

millions of dollars and Mr. Larkin was entitled to certain information about the company 

under agreements related to that sale. The government apparently intends to argue at trial 

that this amounted to “control” of Backpage. But that is just an argument; and it is a weak 

argument given the undeniable proof that Ferrer actually controlled Backpage (which his 

dealings with the government prove). 

The government next claims Mr. Larkin engaged in misconduct because he was 

sanctioned by a trial court in Washington State. The sanctions were imposed because 

civil defendants, including companies in which Mr. Larkin had an ownership interest, 

denied wrongdoing in a civil action that asserted some of the same claims that are charged 

in the Indictment here. Defendants denied wrong doing in their answer, responses to 

interrogatories, responses to requests for admissions and elsewhere. But after Ferrer and 

Backpage pled guilty in Arizona federal court, the Washington court concluded those 

denials must have been done in bad faith. See 5/23/18 Hearing Transcript at 45-55 and 

64-65.5 And the government is asserting that finding as a basis to allege Mr. Larkin

engaged in misconduct. Response at 5-6.

In short, the government is claiming Mr. Larkin engaged in misconduct by denying 

the government’s charges. When properly understood, the argument is patently frivolous. 

Ferrer had his own reasons for pleading guilty and those reasons will be explored at trial. 

But his decision to plead guilty does not suggest Mr. Larkin has engaged in misconduct 

by consistently and repeatedly denying the charges.

5

 The full transcript is attached as Exhibit 1. 

Case 2:18-cr-00422-DJH Document 199 Filed 06/22/18 Page 5 of 12
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DEFENDANT JAMES LARKIN’S REPLY TO GOVERNMENT’S RESPONSE TO MOTION TO 

AMEND THE CONDITIONS OF HIS PRETRIAL RELEASE

3. There Is No New Evidence and the Government Overstates Its Weight

The government’s third argument is that “since [Mr. Larkin’s] arrest, the weight of

the evidence against him has increased.” Response at 2. But the government does not 

allege any new facts (and presents no evidence). Every case, factual allegation and 

argument the government cites existed and was known at the time of Mr. Larkin’s 

indictment. And the government overstates the weight of the so-called evidence it does 

cite. 

The government cites three cases that supposedly show courts have accepted the 

argument that advertising publishers can be liable for facilitating prostitution. Response

at 7-8. But each of these cases—United States v. Omuro, N.D. Cal 14-CR-336, United 

States v. Hurant, E.D.N.Y. 16-CR-45 and the www.escorts.com forfeiture case—was 

based on a guilty plea. “The results in these cases are hardly surprising”6—not for the 

reasons given by the government—but because they only confirm the government’s 

overwhelming power to force guilty pleas. The government does not—and cannot—cite a 

single contested case that resulted in a conviction that supports its theory of prosecution.

The government’s citations to opinions in recent civil litigation do not help its 

cause, either. Response at 9-10. 

•While the court in J.S. v. Village Voice Media Holdings, Inc., 359 P.3d 714, 715-

716 (Wash. 2015) denied a motion to dismiss civil claims, it did so after noting: it 

must accept all plaintiffs’ allegations as true; motions to dismiss are disfavored (in 

Washington); and, Backpage had to show the plaintiff’s action was baseless beyond 

a reasonable doubt. The three sentence denial of Backpage’s summary judgment 

motion--with no analysis--is not “telling.” 

•The denial of the motion to dismiss in Jane Doe No. 1 v. Backpage.com, LLC,

2018 WL 1542056 at 1* (D. Mass. 2018) is far from solid support for the 

government’s theory. Rather, the court dismissed the complaints of two plaintiffs 

6

 Reply at 8. 

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DEFENDANT JAMES LARKIN’S REPLY TO GOVERNMENT’S RESPONSE TO MOTION TO 

AMEND THE CONDITIONS OF HIS PRETRIAL RELEASE

on immunity grounds, and denied the motion as to a third plaintiff only after 

“drawing all reasonable inferences in Plaintiff’s favor, [finding] a modicum of 

support for the notion that Backpage has substantively changed an ad, which then 

support[ed] the information and belief allegation in the complaint.” A “modicum of 

support” may be sufficient to keep a civil claim alive, but it hardly suggests that the 

government can prevail on its criminal charges. 

•Contrary to the government’s assertion, the defense did not “conspicuously avoid

noting that the Dart case was dismissed.” Response at 10. The case was dismissed 

as moot because of “Backpage’s shutdown” and because the company chose not to 

contest a motion to dismiss in the wake of Ferrer’s plea agreement. Doc. 197-4 at 3 

of 4. That fact was omitted from Mr. Larkin’s motion because it has no bearing on 

the larger point, i.e., publishing “classified ads for ‘adult’ services” is protected by 

the First Amendment. See Doc. 183 at 7.

•Likewise, a court’s refusal to quash a grand jury subpoena means the subpoena

was not “unreasonable, oppressive, or improper.” Impounded, 277 F.3d 407, 415 

(3d Cir. 2002). That not only is a low bar that the government should not crow 

about clearing, but its clearing of the bar has absolutely no bearing on the merits of 

the government’s charges. 

The government delineates its allegations (not evidence) about “strip filter 

moderation,” “aggregation” and the “Erotic Review.” These are factual allegations that 

will be addressed at trial (assuming the case is not dismissed before then). Refusing to 

give undue weight to this argument is particularly appropriate given that the weight of the 

evidence is the least important factor in determining the least restrictive conditions 

necessary. United States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir. 1985). 

Finally, the government repeatedly and wrongly claims Mr. Larkin “bases his 

motion to modify release conditions primarily on First Amendment grounds.” Response

at 6. See also Response at 11. To the contrary, the motion is based on his history of 

facing and fighting charges like these, his exceptionally strong family and community 

Case 2:18-cr-00422-DJH Document 199 Filed 06/22/18 Page 7 of 12
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DEFENDANT JAMES LARKIN’S REPLY TO GOVERNMENT’S RESPONSE TO MOTION TO 

AMEND THE CONDITIONS OF HIS PRETRIAL RELEASE

ties, his almost life-long history as a journalist and publisher bringing injustices to light, 

and he and his family’s need for him to be able to travel freely between Arizona and 

California. The defense cites to Mr. Larkin’s long and successful history of defending the 

First Amendment, and Backpage under the First Amendment, to prove his determination 

to fight this case and demonstrate that there is truly something to fight about. 

Accordingly, Mr. Larkin respectfully submits that the conditions of his pretrial 

release be amended to omit electronic monitoring and permit unrestricted travel between 

California and Arizona.

Dated: June 22, 2018 BIENERT, MILLER & KATZMAN, PLC

/s/ Thomas H. Bienert, Jr. 

Thomas H. Bienert, Jr.

Kenneth M. Miller

John L. Littrell 

Attorneys for Defendant James Larkin

Case 2:18-cr-00422-DJH Document 199 Filed 06/22/18 Page 8 of 12
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9

CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE

I certify that on this 22nd day of June, 2018, I electronically transmitted a PDF 

version of this document to the Clerk of Court, using the CM/ECF System, for filing and 

for transmittal of a Notice of Electronic Filing to the attorneys of record. See attached 

service list.

/s/ Toni Lindemann

 Toni Lindemann

Case 2:18-cr-00422-DJH Document 199 Filed 06/22/18 Page 9 of 12
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SERVICE LIST 

COUNSEL REPRESENTING

Anne M. Chapman

Mitchell Stein & Carey PC

1 Renaissance Sq. 

2 N Central Ave., Ste. 1900 

Phoenix, AZ 85004

Email: anne@mscclaw.com

Henze Cook Murphy, PLC

Lee Stein

Mitchell Stein & Carey PC

1 Renaissance Sq. 

2 N Central Ave., Ste. 1900 

Phoenix, AZ 85004

lee@mscclaw.com

Henze Cook Murphy, PLC

James C. Grant

Davis Wright Tremaine LLP

1201 3rd Ave., Ste. 2200 

Seattle, WA 98101-3045

jimgrant@dwt.com

Michael Lacey

Robert Corn-Revere

Davis Wright Tremaine LLP

1919 Pennsylvania Ave. NW, Ste. 800 

Washington, DC 20006

bobcornrevere@dwt.com

Michael Lacey

Ronald G. London

Davis Wright Tremaine LLP

1919 Pennsylvania Ave. NW, Ste. 800 

Washington, DC 20006

ronnielondon@dwt.com

Michael Lacey

Paul J. Cambria, Jr.

Liptsitz Green Scime Cambria LLP

42 Delaware Ave., Ste. 120 

Buffalo, NY 14202

pcambria@lglaw.com

Michael Lacey

Janey Henze Cook

Henze Cook Murphy PLLC

4645 N 32nd St., Ste. 150 

Phoenix, AZ 85018

janey@henzecookmurphy.com

Michael Lacey

Bruce Feder

Feder Law Office PA

2930 E Camelback Rd., Ste. 160 

Phoenix, AZ 85016

bf@federlawpa.com

Scott Spear

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SERVICE LIST

Michael D. Kimerer

Kimerer & Derrick PC

1313 E Osborn Rd., Ste. 100 

Phoenix, AZ 85014

mdk@kimerer.com

John Brunst

Rhonda E. Neff

Kimerer & Derrick PC

1313 E Osborn Rd., Ste. 100 

Phoenix, AZ 85014

rneff@kimerer.com 

John Brunst

Gary S. Lincenberg

Bird Marella

1875 Century Park E # 23, Los Angeles, CA 

90067

glincenberg@birdmarella.com

John Brunst

Ariel A. Neuman

Bird Marella

1875 Century Park E # 23, Los Angeles, CA 

90067

aneuman@birdmarella.com

John Brunst

Gopi Panchapakesan

Bird Marella

1875 Century Park E # 23, Los Angeles, CA 

90067

gpanchapakesan@birdmarella.com

John Brunst

KC Maxwell

Browne George Ross LLP

101 California St., Ste. 1225 

San Francisco, CA 94111

kmaxwell@bgrfirm.com

Dan Hyer

David Wakukawa

Browne George Ross LLP

101 California St., Ste. 1225 

San Francisco, CA 94111

dwakukawa@bgrfirm.com

Dan Hyer

Michael L. Piccarreta

Piccarreta Davis Keenan Fidel PC

2 E Congress St., Ste. 1000 

Tucson, AZ 85701

mlp@pd-law.com

Andrew Padilla

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SERVICE LIST

Jefferson Keenan

Piccarreta Davis Keenan Fidel PC

2 E Congress St., Ste. 1000 

Tucson, AZ 85701

jlk@pd-law.com

Andrew Padilla

Stephen M. Weiss

Karp & Weiss PC

3060 N Swan Rd. 

Tucson, AZ 85712

sweiss@karpweiss.com

Joye Vaught

Andrew Stone

US Attorneys Office

40 N Central Ave, Ste 1800 

Phoenix, AZ 85004

andrew.stone@usdoj.gov

USA

John Jacob Kucera

US Attorneys Office - Los Angeles, CA 312 N Spring St., Ste. 1200 

Los Angeles, CA 90012

john.kucera@usdoj.gov

USA

Kevin M. Rapp

US Attorneys Office - Phoenix, AZ

2 Renaissance Square 

40 N Central Ave., Ste. 1800 

Phoenix, AZ 85004-4408

kevin.rapp@usdoj.gov

USA

Margaret Wu Perlmeter

US Attorneys Office - Phoenix, AZ

2 Renaissance Square 

40 N Central Ave., Ste. 1800 

Phoenix, AZ 85004-4408

margaret.perlmeter@usdoj.gov

USA

Peter Kozinets

US Attorneys Office - Phoenix, AZ

2 Renaissance Square 

40 N Central Ave., Ste. 1800 

Phoenix, AZ 85004-4408

peter.kozinets @usdoj.gov

USA

Case 2:18-cr-00422-DJH Document 199 Filed 06/22/18 Page 12 of 12