REPLY IN FURTHER SUPPORT OF MOTION 

TO DISCLOSE GRAND JURY INSTRUCTIONS ON PROSTITUTION 

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Paul J. Cambria, Jr. (NY Bar No.1430909, admitted pro hac vice) 

Erin E. McCampbell (NY Bar No. 4480166, admitted pro hac vice) 

LIPSITZ GREEN SCIME CAMBRIA LLP 

42 Delaware Avenue, Suite 120 

Buffalo, New York 14202 

Telephone: (716) 849-1333 

Facsimile: (716) 855-1580 

pcambria@lglaw.com 

emccampbell@lglaw.com 

Attorneys for Michael Lacey 

Thomas H. Bienert, Jr. (CA Bar No.135311, admitted pro hac vice) 

Whitney Z. Bernstein (CA Bar No. 304917, admitted pro hac vice) 

BIENERT | KATZMAN PC 

903 Calle Amanecer, Suite 350 

San Clemente, California 92673 

Telephone: (949) 369-3700 

Facsimile: (949)369-3701 

tbienert@bienertkatzman.com 

wbernstein@bienartkatzman.com 

Attorneys for James Larkin 

Additional counsel listed on next page 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

vs.

Michael Lacey, et al., 

 Defendants. 

NO. CR-18-00422-PHX-SMB 

DEFENDANTS’ REPLY IN FURTHER 

SUPPORT OF MOTION TO DISCLOSE 

GRAND JURY INSTRUCTIONS ON 

PROSTITUTION 

(Oral argument requested) 

Case 2:18-cr-00422-DJH Document 1177 Filed 06/29/21 Page 1 of 15
ii 

REPLY IN FURTHER SUPPORT OF MOTION 

TO DISCLOSE GRAND JURY INSTRUCTIONS ON PROSTITUTION 

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Gary S. Lincenberg (CA Bar No. 123058, admitted pro hac vice) 

Ariel A. Neuman (CA Bar No. 241594, admitted pro hac vice) 

Gopi K. Panchapakesan (CA Bar No. 279856, admitted pro hac vice) 

BIRD, MARELLA, BOXER, WOLPERT, NESSIM, 

DROOKS, LINCENBERG & RHOW PC 

1875 Century Park East, 23rd Floor 

Los Angeles, California 90067-2561 

Telephone: (310) 201-2100 

Facsimile: (310) 201-2110 

glincenberg@birdmarella.com 

aneuman@birdmarella.com 

gpanchapakesan@birdmarella.com 

Attorneys for John Brunst 

Bruce Feder (AZ Bar No. 004832) 

FEDER LAW OFFICE PA 

2930 E. Camelback Road, Suite 160 

Phoenix, Arizona 85016 

Telephone: (602) 257-0135 

bf@federlawpa.com 

Attorney for Scott Spear

David Eisenberg (AZ Bar No. 017218) 

DAVID EISENBERG PLC 

3550 N. Central Ave., Suite 1155 

Phoenix, Arizona 85012 

Telephone: (602) 237-5076 

Facsimile: (602) 314-6273 

david@deisenbergplc.com 

Attorney for Andrew Padilla 

Joy Malby Bertrand (AZ Bar No. 024181) 

JOY BERTRAND ESQ LLC 

P.O. Box 2734 

Scottsdale, Arizona 85252 

Telephone: (602)374-5321 

Facsimile: (480)361-4694 

joy.bertrand@gmail.com 

Attorney for Joye Vaught 

Case 2:18-cr-00422-DJH Document 1177 Filed 06/29/21 Page 2 of 15
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Defendants Michael Lacey, James Larkin, John Brunst, Scott Spear, Andrew Padilla, and 

Joye Vaught (“Defendants”), by and through their undersigned attorneys, file the instant reply in 

further support of Defendants’ Motion to Disclose Grand Jury Instructions on Prostitution 

(“Motion”). (See Doc. 1171.) The government does nothing to address the likelihood that 

Defendants were indicted in a constitutionally infirm grand jury proceeding. The government 

admits it instructed the grand jury on the Travel Act counts (Doc. 1176, at 2), but never confirms that 

those instructions defined prostitution. Moreover, although the government tries to walk back its 

recent (and blatantly false) statement to the Court that “escort services . . . [are] only legal in a very a 

small county in Nevada” (Doc. 1171-1 at 15), the government fails to dispute the logical inference 

that it made the same false assertion to the grand jury that it did to the Court—an assertion that 

would lead the grand jury to indict Defendants for publishing First Amendment protected ads 

relating to lawful adult activities. The government’s brief instead is an exercise in misdirection 

– it purports to chastise Defendants for seeking to protect their constitutional rights through 

the Motion, while ignoring the obvious: that the government continues to pursue an 

indictment at odds with the law. None of its deflection gives this Court any clarity regarding the 

accuracy of its representations to the grand jury. If the government cannot properly define 

prostitution more than three years into this case, it is highly likely that the government falsely 

instructed the grand jury. The grand jury transcripts must be disclosed for review of this issue that 

was central to the grand jury’s ability to properly determine whether or not to charge Defendants. 

ARGUMENT

 A failure to properly instruct the grand jury regarding the definition of “prostitution” 

(including any statements relating to the legality of escort services) would violate Defendants’ Fifth 

Amendment rights to an indictment issued by an independent grand jury.1 The government’s recent 

1 The government is wrong to suggest that Defendants have already raised this issue. As 

noted herein, Defendants were only recently put on notice that the government likely failed to give 

a definition of “prostitution” and also wrongly thinks escorts services are unlawful and synonymous 

with prostitution. Defendants have not previously raised this issue. 

Case 2:18-cr-00422-DJH Document 1177 Filed 06/29/21 Page 3 of 15
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statements to the Court, its proposed trial jury instructions, and its submissions to defense counsel 

demonstrate that the government has been operating with a fundamental misunderstanding of the 

law, i.e. that escort services are illegal and synonymous with “prostitution services.” Defendants are 

entitled to know how the government defined prostitution and escort services to the grand jury as 

that information is not subject to secrecy protections, like witness testimony. But, even if it was, the 

government’s statements establish that Defendants have a “particularized need” for the disclosure. 

I. The government’s on-the-record statements about prostitution and escort services 

are incorrect, misleading, and prejudicial. 

 Defendants became concerned that the government failed to provide the grand jury with an 

instruction on the definition(s) of prostitution relevant to this case when the government’s proposed 

jury instructions contained no such instruction. (See Gov’t’s Proposed Jury Instructions, attached 

hereto as Ex. A.) How can any jury (petit or grand) consider the merits of this case without an 

accurate definition of the conduct at the crux of the case? Moreover, because numerous adult 

activities that might appear to many people to be prostitution are legal and are not deemed 

“prostitution,” an accurate definition of the term is essential. 

Defendants have been concerned, from the outset of this case, that the government’s 

presentation to the grand jury was misleading and prejudicial (see Docs. 561, 697, 746, 782, 798, 826, 

881). Indeed, in an early motion to dismiss the defense argued that the indictment started with “the 

erroneous assumption that all ads on the platform are constitutionally unprotected, that government 

may presume the ads relate to unlawful conduct simply by looking at them.” (Doc. 561, at 2.) This 

concern became a reality during the June 7, 2021 status conference, when the government objected 

to a juror questionnaire question using the term “escort services” because: 

[Y]ou know, it’s really prostitution services. I think escort is sort of a 

misnomer. So we would – we would ask that it’s – because it suggests 

that escort services is somewhat legal. And, as we know, it’s only

legal in a very a small county in Nevada, so it’s really prostitution 

services is really right [sic]. 

(Doc. 1171-1 at 15 (emphasis added).) If the government even hinted or implied to the grand jury 

that escort services are unlawful essentially everywhere—a serious misstatement of the applicable 

Case 2:18-cr-00422-DJH Document 1177 Filed 06/29/21 Page 4 of 15
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law—the government led the jury to believe that publishing escort ads was per se unlawful, as if 

Backpage had a category called “Cocaine for Sale” (the sale of cocaine, of course, being per se

unlawful). And given that the prosecutor who made this statement was part of the grand jury 

presentation, it is highly likely that he made that same serious misstatement to the grand jury. 

The government’s astounding statement to the Court demonstrates that the government’s 

understanding of prostitution squarely contradicts the law. Escort services are a lawful form of adult 

entertainment and advertisements for escorts and escort services (as well as many other adult 

services) are First Amendment protected expression.2 Although this Court recognized there is a 

“distinction between escort services and prostitution services” (Doc. 1171-1 at 15-16), the Court’s 

recognition of the distinction does nothing to obviate the government’s misunderstanding of the terms 

“prostitution” and “escort.” And, of course, the grand jurors needed to understand and appreciate 

the distinctions between such terms in assessing whether or not to authorize the indictment, and 

what the government told them regarding such terms is critical to that understanding. 

 The government’s June 7, 2021 statements strongly suggest the government misled the jury 

on the “unlawful activity” at issue here, i.e. conflating escort advertising with promoting a business 

enterprise involving “prostitution offenses in violation of the laws of the State in which they were 

committed and of the United States.” (Doc. 230, Superseding Indictment, ¶ 201.) Did the 

2 See, e.g., Doc. 1171 at 4 n.1; Ala. Code § 13A-6-184 (escort businesses must register 

with the state); Ark. Code Ann. § 14-1-302 (escort agencies regulated as adult oriented 

businesses); Ariz. Rev. Stat. § 13-1422 (escorts and escort agencies are adult oriented 

businesses whose locations and hours of operation are limited); People v. Katrinak, 136 

Cal.App.3d 145 (1982) (Los Angeles County Ordinance Section 533 requiring escort bureaus 

to be licensed “was a licensing scheme for a lawful business enterprise.”); Colo. Rev. Stat. §§ 

29-11.8-103 & 104 (escort must obtain state license); 24 Del .C. § 1606 & Del. Op. Atty. Gen. 

95-IB32, 1995 WL 794501 (escort services do not require licenses from Delaware Commission 

on Adult Entertainment Establishments); Kan. Stat. Ann. 12-770 (escort agencies are sexually 

oriented businesses, whose locations may be restricted by cities); Tenn. Code Ann. §§ 7-51-

1102(20) & (26), § 7-51-1115; & 7-51-1102(7) (escorts must hold permits from Tennessee 

adult-oriented establishment board or a county massage registration board); Utah Code Ann. 

§§ 59-27-102 & 103, 10-8-41.5, & 17-50-331(taxing escort services and cities and counties may 

require escorts to be licensed). 

Case 2:18-cr-00422-DJH Document 1177 Filed 06/29/21 Page 5 of 15
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government provide an instruction on prostitution for just one State, when the Defendants are 

accused of promoting dozens of business enterprises violating the prostitution laws of dozens of 

States? Did the government provide an instruction on prostitution for the laws of the United States? 

Did the government fail to provide any instruction at all? Prostitution definitions widely vary from 

jurisdiction to jurisdiction. For example, the term “prostitution” is defined narrowly by federal 

regulation as “engaging in promiscuous sexual intercourse for hire,” 22 C.F.R. § 40.24(b), so under 

that law of the United States activities that many would think of as prostitution are not. Did the 

government instruct the grand jury that it could indict the Defendants based solely on Backpage 

having a category for “escort services” on the site, because, as it recently told the Court, escort 

services are “only legal in a very small county in Nevada”? Or because escort services are 

prostitution? Faulty instructions would mislead the grand jury into indicting Defendants for 

providing a platform for First Amendment protected speech about lawful adult entertainment, rather 

than for promoting unlawful activity. Tellingly, the government’s Opposition is silent on these issues. 

The government had the opportunity to state that it had properly instructed and did not mislead the 

grand jury, but said no such thing. Rather, the government chose to discuss how it could engage in 

“extensive prosecutorial misconduct” before the grand jury, so long as its misconduct was not 

deemed “flagrant.” (Doc. 1176 at 6-7.) 

II. Defendants are entitled to the legal instructions on prostitution and escort services 

given to the grand jury without a showing of particularized need. 

The grand jury materials at issue in this Motion – the government’s instructions to the grand 

jury about prostitution and escort services – do not implicate grand jury secrecy concerns. “The 

proceedings before the grand jury are secret, but the ground rules by which the grand jury 

conducts those proceedings are not.” United States v. Alter, 482 F.2d 1016, 1029 n.21 (9th Cir. 

1973). Although Alter dealt with the court’s charge to the grand jury, the Alter decision applies equally 

to the specific legal instructions given to a grand jury on a case. See United States v. Belton, 2015 WL 

1815273, at *3 (N.D. Cal. Apr. 21, 2015) (rejecting the government’s argument that Alter applied 

Case 2:18-cr-00422-DJH Document 1177 Filed 06/29/21 Page 6 of 15
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only to the court’s charge and not to “the specific legal instructions that were given to the grand 

jury in [Belton’s] case.”). Indeed, as the court in Belton explained: 

The legal instructions given to the grand jury regarding the charges on which they 

are deliberating are a part of the ‘ground rules’ by which the grand jury conducts its 

proceedings. The instructions do not reveal the substance of the grand jury’s 

deliberative process or other information that would compromise the secrecy that 

Rule 6 seeks to protect. Therefore, Defendant is entitled to disclosure of these 

instructions even without a showing of particularized need. 

Id. (emphasis added) See also United States v. Diaz, 236 F.R.D. 470, 477-78 (N.D. Cal. 2006).3

The law is the law. It is no secret and should not be kept secret. Disclosure of the 

government’s instructions to the grand jury about prostitution and escort services will in no way 

reveal the nature or scope of the grand jury’s investigation, reveal the names or identities of 

witnesses, nor implicate concerns for witness or juror safety. Indeed, the government made the 

surprising admission that it only presented two witnesses before the grand jury, both of whom were 

case agents who the government says it will not call at trial. (See Doc. 812 at 15.) There is simply no 

basis to withhold the instructions regarding these crucial terms. 

III. Defendants have established “particularized need” for the legal instructions relating 

to prostitution and escort services, even if that was required. 

 Even if the Court determines that legal instructions to the grand jury are subject to grand 

jury secrecy – and, thus, Defendants must make a showing of particularized need – Defendants 

readily meet that burden. Under Rule 6(e), courts have the authority to order the disclosure of “a 

grand-jury matter” when the material would be used “in connection with a judicial proceeding” or 

“at the request of a defendant who shows that a ground may exist to dismiss the indictment 

3 The government cites United States v. Stepanyan, 2016 WL 4398281, at *2 (N.D. Cal. Aug. 18, 

2016), as contrary authority, but this Court should reject the holding of Stepanyan. The court in 

Stepanyan plainly was wrong when it said “not a single court has read Alter as does Defendant” (that 

no showing of “particularized need” was required to obtain the government’s legal instructions to a 

grand jury), as District Judge Jon Tigar of the Northern District of California held exactly that in his 

decision in Belton just the year before. The government suggests the Magistrate Judge’s decision in 

Stepanyan overrules or otherwise moots the “pre-Stepanyan district court cases,” but that too plainly 

is wrong. A Magistrate Judge’s decision cannot moot or overrule the earlier decisions of District 

Judges on the same court, and upon which Defendants relied to assert that instructions on the law 

are not subject to secrecy. 

Case 2:18-cr-00422-DJH Document 1177 Filed 06/29/21 Page 7 of 15
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because of a matter that occurred before the grand jury.” Fed. R. Crim. P. 6(e)(3)(E)(i-ii). To 

establish the particularized need for such grand jury materials, a defendant must show that: (1) 

disclosure of the “desired material will avoid a possible injustice; (2) “the need for disclosure is 

greater than the need for continued secrecy”; and (3) the disclosure seeks “only the relevant parts of 

the transcripts.” United States v. Plummer, 941 F.2d 799, 806 (9th Cir. 1991) (citing Douglas Oil Co. v. 

Petrol Stops Northwest, 441 U.S. 211, 222 (1979)). 

With respect to the need for secrecy, the Supreme Court has identified several factors for 

consideration: (1) “if preindictment proceedings were made public, many prospective witnesses 

would be hesitant to come forward voluntarily, knowing that those against whom they testify 

would be aware of that testimony,” (2) “witnesses who appeared before the grand jury would 

be less likely to testify fully and frankly, as they would be open to retribution as well as to 

inducements,” (3) “the risk that those about to be indicted would flee, or would try to influence 

individual grand jurors to vote against indictment,” and (4) “persons who are accused but 

exonerated by the grand jury will not be held up to public ridicule.” Douglas Oil Co. v. Petrol 

Stops Northwest, 441 U.S. 211, 219 (1979). None of these factors are implicated by Defendants’ 

request for the government’s legal instructions relating to prostitution and escort services. 

Moreover, even if any of the factors were implicated, the importance of the factors is not 

static. After the indictment has been issued and the grand jury has finished its proceedings, it 

is “clear that . . . the considerations justifying secrecy become less relevant,” and “a party 

asserting a need for grand jury transcripts will have a lesser burden in showing justifications.” 

Douglas Oil Co., 441 U.S. 211 at 223. 

First, in this case, disclosure of the government’s instructions on prostitution (including 

any instructions on the legality or illegality of escorts or escort services or ads for escorts or escort 

services) are necessary to avoid an injustice. The Defendants were indicted by the grand jury for 

conspiring to or committing the crime of using a facility of interstate commerce with the intent to 

facilitate a “business enterprise involving . . . prostitution in violation of the laws of the State in which they 

[were] committed.” 18 U.S.C. § 1952(b)(1) (emphasis added). As Defendants explained in the 

Case 2:18-cr-00422-DJH Document 1177 Filed 06/29/21 Page 8 of 15
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Motion, the failure to include an instruction on prostitution with respect to a Travel Act charge 

concerning the facilitation of prostitution in violation of State law is reversible error. (See Doc. 

1171 at 4-6.) Yet that is what the government seeks to have this Court do in its proposed jury 

instructions and in its advocacy at the June 7, 2021 status conference. (See Doc. 1171-1.) 

Second, the government recently told the Court that escort services were “only legal in a 

very a small county in Nevada” and that “escort services” are “really prostitution services.” (Id. at 

15-16.). Given the government’s erroneous statements to the Court about the law more than three 

years into this case, the Court has no basis to presume that the government’s instructions to the 

grand jury about that law were accurate three years ago. If the government failed to give the grand 

jury legal instructions about prostitution or, worse, told the grand jury that escorts were prostitutes 

and escort services were unlawful, the grand jury was misled into believing it could indict Defendants 

based solely on Backpage accepting and publishing escort ads. The government’s own words to the 

Court show the government likely mislead the grand jury, regardless of whether it intended to do 

so.4

4 In its opposition, the government tries to walk back what it said to the Court, saying it 

intends to prove that Ferrer and Hyer admitted that most escort and other adult ads on 

Backpage were for prostitution and to show that escort and other adult ads on Backpage 

“looked like” prostitution ads, but this does not undercut what the government told the Court. 

(Doc. 1176 at 16-17.). First, as the admissions of Ferrer and Hyer may have been obtained 

after the government told them escort services were unlawful in all but one county in 

Nevada—those admissions may be premised on the government’s misrepresentations about 

the law. Second, there simply is no way to read the government’s statements to the Court as 

expressing the government’s views about what it expects to be able to prove at trial (much less 

that it can prove Defendants knew that specific ads for lawful escort services actually related 

to unlawful prostitution services). The government plainly said that “escort services” are “only 

legal in a very a small county in Nevada”—not just an incorrect statement of law, but a rather 

material misstatement of the law in a prosecution premised on the publication of third-party 

escort ads. (Jun. 7, 2021 Tr. at 15.). Finally, the First Amendment flatly bars the government 

from trying to punish speech because it “looks like” unprotected speech. Ashcroft v. Free Speech 

Coal., 535 U.S. 234, 254–55 (2002) (“Protected speech does not become unprotected merely 

because it resembles the latter. The Constitution requires the reverse. ‘[T]he possible harm 

to society in permitting some unprotected speech to go unpunished is outweighed by the 

possibility that protected speech of others may be muted.’”). 

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Misleading the grand jury on an element of a charged crime, whether by failing to provide 

an instruction on the definition of prostitution, or providing one that is at odds with the law 

(including by informing the grand jury that escort services are unlawful everywhere other than one 

county in Nevada), would have deprived the Defendants of their Fifth Amendment right to 

indictment by a grand jury. Grand jury review serves “as a kind of buffer or referee between the 

Government and the people.” United States v. Williams, 504 U.S. 36, 47 (1992); see also United States 

v. Calandra, 414 U.S. 338, 343 (1974) (recognizing that the grand jury is charged with the dual 

responsibilities of “determin[ing] whether there is probable cause to believe a crime has been 

committed and protect[ing] citizens against unfounded criminal prosecutions”). A district court may 

dismiss an indictment for errors made by the government in grand jury proceedings that “prejudice” 

the defendant. See United States v. Navarro, 608 F.3d 529, 538-39 (9th Cir. 2010). “[F]or errors brought 

to the district court’s attention ‘prior to the conclusion of the trial,’” a district court should dismiss 

an indictment “if it is established that the violation substantially influenced the grand jury’s decision 

to indict or if there is grave doubt that the decision to indict was free from the substantial influence 

of such violations.’” Id. at 539 (quoting Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988)). 

Dismissal of an indictment is appropriate when the government misleads the grand jury on 

the law. Regardless of whether a prosecutor has the duty to instruct on the law, when a prosecutor 

does provide instruction on the law “the prosecutor’s duty to instruct correctly is plainly apparent.” 

United States v. Cerullo, 2007 WL 2683799, at *3-4 (S.D. Cal. Sept. 7, 2007) (emphasis added); accord 

United States v. Stevens, 771 F. Supp. 2d 556, 567 (D. Md. 2011) (“[W]here a prosecutor’s legal 

instruction to the grand jury seriously misstates the applicable law, the indictment is subject to 

dismissal if the misstatement casts ‘grave doubt that the decision to indict was free from the 

substantial influence’ of the erroneous instruction.”); see also United States v. Hoey, 2014 WL 

2998523, at *3 (S.D.N.Y. July 2, 2014) (“[C]ourts have found error where the government 

incompletely or erroneously provides legal instruction to the grand jury.”). 

The government may have given no instruction to the grand jury on the definition of 

prostitution, in which case the grand jurors were left to speculate about this essential element of the 

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crimes charged. Alternatively, the government may have given the definition used in one jurisdiction 

at issue, but not all. And regardless of any definition given (or not), the government may have 

instructed the grand jury, as it told the Court, that escort services are illegal in all but one county in 

Nevada and that escort services equate to unlawful prostitution services. Under any of these 

scenarios, the grand jury may have been misled and its independence may have been eviscerated, 

such that it served as nothing more than a rubber stamp for the government. Such a grand jury 

proceeding would be a clear violation of a defendant’s Fifth Amendment rights—and not a 

procedural error that could be cured by the ruling of a petit jury. See Cerullo, 2007 WL 2683799, at 

*4 (dismissing indictment because “the grand jury was misled on the law, was unable to correctly 

adjudge the evidence, and no longer operated as an independent body and buffer between the 

Government and the Defendant”); see also Stevens, 771 F. Supp. 2d at 566-69 (dismissing indictment 

because the government gave an erroneous instruction to the grand jury on the advice-of-counsel 

defense). 

Indeed, any suggestion by the government to the grand jurors (or the trial jurors) that legal 

escort services and ads for such services are synonymous with illegal “prostitution services” would 

be yet another instance of the government flipping the First Amendment on its head in this case.5

5 See Dart v. Craigslist, Inc., 665 F.Supp.2d 961, 968 (N.D. Ill.2009) (Sheriff Dart “is simply 

wrong when he insists that [craigslist’s adult services] are all synonyms for illegal sexual 

services;” as it “is not unlawful in itself nor does it necessarily call for unlawful 

content”); Backpage.com, LLC v. Dart, 807 F.3d 229, 234 (7th Cir. 2015), cert. denied, 137 S. Ct. 

46 (2016) (rejecting sheriff’s presumption that ads on Backpage.com were 

illegal: Backpage.com was “an avenue of expression of ideas and opinions” protected by the 

First Amendment, including its “classified ads for ‘adult’ service.” . . . “The district judge 

remarked ‘that the majority of the advertisements [in Backpage’s adult section] are for sex’—

but a majority is not all, and not all advertisements for sex are advertisements for illegal sex.” 

(internal citations omitted)); Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1281-82 

(W.D. Wash. 2012) (rejecting similar presumption of state AG defending law targeting 

Backpage and noting the “third-party publication of offers to engage in illegal transactions 

does not fall within [the] ‘well-defined and narrowly limited classes of speech’ that fall outside 

of First Amendment protection” (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 

(1942)); Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805, 833-34 (M.D. Tenn. 2013) (rejecting 

state’s argument that escort ads on Backpage.com were unprotected speech); Backpage.com, 

LLC v. Hoffman, 2013 WL 4502097, at *9-11 (D.N.J. Aug. 20, 2013) (same); M.A. ex rel. P.K v. 

Case 2:18-cr-00422-DJH Document 1177 Filed 06/29/21 Page 11 of 15
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Protected expression concerning legal adult entertainment cannot be used by a grand jury to find 

that the Defendants facilitated and promoted unlawful activity, even if some Backpage users misused 

the website and Defendants knew about those instances of misuse. See, e.g., Doe v. GTE Corp., 347 

F.3d 655, 659 (7th Cir. 2003). And all of these misleading instructions before the grand jury, raised 

both in this Motion and prior motions, fall on the heels of high ranking officials from the 

Department of Justice testifying under oath that the operators of a classified advertising website 

cannot be prosecuted for violating federal criminal law absent the willing and knowing specific intent 

to conspire with website users to violate the law. (See Sept. 15, 2010 Testimony of Francey Hakes, 

House of Reps. Comm. on Judiciary, attached hereto as Ex. B.) Further, the government presented 

just two witnesses—summary case agents—to the grand jury. (See Doc. 812 at 15.) Absent a clear 

and proper instruction on prostitution and escort services, the grand jury was nothing more than a 

rubber stamp for the government’s novel theory of liability for third-party speech. 

Second, the need for disclosure outweighs the need for continued secrecy. Many courts in 

this Circuit have held that instructions on the law are not subject to secrecy considerations. But 

even if such considerations apply to instructions on the law, none of the reasons for secrecy are 

applicable here. The Superseding Indictment was issued almost three years ago, at which point the 

grand jury concluded its proceedings. This Court ordered the government to disclose all Jencks Act 

material (which included the testimony of the witnesses who appeared before the grand jury) by 

August 20, 2019. (See Doc. 730.) Releasing the instructions on these issues of law will have no 

impact on the witnesses, particularly because they are law enforcement and because the government 

was obligated to disclose their testimony nearly two years ago, if it intended on calling them at trial. 

Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 1049-50 (E.D. Mo. 2011) (rejecting 

similar presumption in dismissing plaintiff’s civil claims based on 18 U.S.C. §§ 2, 1595, and 

2255); People v Ferrer, 2016 WL 7237305, at *9 (Cal. Super. Ct. Dec. 9, 2016) (dismissing state’s 

pimping charges against Larkin and Lacey; noting that the only “whiff of illegality” in the AG’s 

complaint improperly “require[ed] the presumption that illegal content was contained in the 

ads,” yet the website’s actions in posting the ads “would not be illegal”).

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Likewise, such a disclosure will have no impact on the jurors, cause the accused to flee, or cause the 

accused reputational harm. 

Finally, the materials requested – the instructions on prostitution and escort services – are 

no broader than what is necessary to establish whether the Defendants’ Fifth Amendment rights 

were violated. Under these circumstances, courts have granted far greater disclosure than what the 

Defendants request here. See, e.g., Plummer, 941 F.2d at 806 (expressing approval for district court’s 

decision to release “everything” in the grand jury transcripts that mentioned or concerned the 

defendant). 

CONCLUSION 

At this time, the Defendants are not asking this Court to dismiss the indictment. Defendants 

simply seek disclosure of the government’s instructions on the law regarding prostitution and escort 

services given to the grand jury to be able to develop the record and evaluate whether their Fifth 

Amendment right to an independent and impartial grand jury was violated. This request should give 

this Court no pause as there is no basis in the law on grand jury secrecy or the facts of this case to 

continue the secrecy of the government’s instructions on the law. This Court should order the 

government to disclose all the legal instructions it gave to the grand jury on prostitution or escort 

services (including all statements to the grand jury about the legality or illegality of escorts or escort 

services or ads for escorts or escort services). At the very least, the Court should inspect the grand 

jury transcripts to determine, what, if any, instructions were given on the terms “prostitution” and 

“escort services.” 

 RESPECTFULLY SUBMITTED this 29th day of June, 2021, 

Paul J. Cambria, Jr. 

Erin E. McCampbell 

LIPSITZ GREEN SCIME CAMBRIA LLP 

 By: /s/ Paul J. Cambria, Jr. 

Paul J. Cambria, Jr. 

Attorneys for Michael Lacey 

Case 2:18-cr-00422-DJH Document 1177 Filed 06/29/21 Page 13 of 15
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Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual (May 2018) 

§ II (C) (3), Erin E. McCampbell 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.

 Thomas H. Bienert, Jr. 

Whitney Z. Bernstein 

BIENERT KATZMAN, PLC 

 By: /s/ Whitney Z. Bernstein 

Whitney Z. Bernstein 

Attorneys for James Larkin 

Gary S. Lincenberg 

Ariel A. Neuman 

Gopi K. Panchapakesan 

BIRD, MARELLA, BOXER, WOLPERT, NESSIM, 

DROOKS, LINCENBERG & RHOW, P.C. 

By: /s/ Ariel A. Neuman 

Ariel A. Neuman 

Attorneys for John Brunst 

Bruce Feder 

FEDER LAW OFFICE, P.A. 

By: /s/ Bruce Feder 

Bruce Feder 

Attorneys for Scott Spear 

David Eisenberg 

DAVID EISENBERG, P.L.C. 

By: /s/ David Eisenberg 

David Eisenberg 

Attorneys for Andrew Padilla 

 Joy Bertrand 

JOY BERTRAND, ESQ. 

By: /s/ Joy Bertrand 

Joy Bertrand 

Attorneys for Joye Vaught 

Case 2:18-cr-00422-DJH Document 1177 Filed 06/29/21 Page 14 of 15
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On June 29, 2021, a PDF version 

of this document was filed with 

Clerk of the Court using the CM/ECF 

System for filing and for Transmittal 

Of a Notice of Electronic Filing to the 

Following CM/ECF registrants: 

Kevin Rapp, kevin.rapp@usdoj.gov 

Reginald Jones, reginald.jones4@usdoj.gov 

Peter Kozinets, peter.kozinets@usdoj.gov 

Margaret Perlmeter, margaret.perlmeter@usdoj.gov 

Andrew Stone, andrew.stone@usdoj.gov 

Daniel Boyle, daniel.boyle2@usdoj.gov 

Case 2:18-cr-00422-DJH Document 1177 Filed 06/29/21 Page 15 of 15