1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Paul J. Cambria, Jr. (NY 15873, 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

Erin E. McCampbell (NY 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

emccampbell@lglaw.com

James C. Grant (WA 14358, admitted pro hac vice)

DAVIS WRIGHT TREMAINE LLP

1201 Third Avenue, Suite 2200

Seattle, Washington 98101

Telephone: (206)662-3150

Facsimile: (206)757-7700

Email: jamesgrant@dwt.com 

Robert Corn-Revere (DC 375415, admitted pro hac vice)

DAVIS WRIGHT TREMAINE LLP

1919 Pennsylvania Ave., NW, Suite 800

Washington, D.C. 20006

Telephone: (202)973-4200

Facsimile: (202)973-4499

Email: bobcornrevere@dwt.com 

Attorneys for Defendant Michael Lacey

Thomas Henry Bienert , Jr. (CA 135311, admitted pro hac vice)

BIENERT MILLER & KATZMAN PLC

903 Calle Amanecer, Ste. 350

San Clemente, CA 92673

Telephone: (949)369-3700

Facsimile: (949)369-3701

Email: tbienert@bmkattorneys.com

Attorneys for Defendant James Larkin

Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 1 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Bruce S. Feder (AZ 004832) 

FEDER LAW OFFICE PA

2930 E Camelback Rd., Ste. 160

Phoenix, AZ 85016

Telephone: (602)257-0135

Facsimile: (602)954-8737

Email: bf@federlawpa.com

Attorneys for Defendant Scott Spear

Michael D. Kimerer (AZ 002492) KIMERER & DERRICK PC

1313 E Osborn Rd., Ste. 100

Phoenix, AZ 85014

Telephone: (602)279-5900

Facsimile: (602)264-5566

Email: MDK@kimerer.com

Attorneys for Defendant John Brunst

K.C. Maxwell (CA 214701, admitted pro hac vice)

BROWNE GEORGE ROSS LLP

101 California St., Ste. 1225

San Francisco, CA 94111

Telephone: (415)391-7100

Facsimile: (415)391-7198

Email: kmaxwell@bgrfirm.com

Attorneys for Defendant Dan Hyer

Michael L Piccarreta (AZ 003962)

PICCARRETA DAVIS KEENAN FIDEL PC

2 E Congress St., Ste. 1000

Tucson, AZ 85701

Telephone: (520)622-6900

Facsimile: (520)622-0521

Email: mlp@pd-law.com

Attorneys for Defendant Andrew Padilla

Stephen M. Weiss (AZ 002261)

KARP & WEISS PC

3060 N Swan Rd.

Tucson, AZ 85712

520-325-4200

Facsimile: 520-325-4224

Email: sweiss@karpweiss.com

Attorneys for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 2 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 1

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-SPL (BSB)

DEFENDANTS’ MOTION FOR

DISCLOSURE OF DOCUMENTS

RELATED TO PRETRIAL SEIZURE

OF DEFENDANTS’ ASSETS

(First Request) 

(Oral Argument Requested)

It is expected that excludable delay under 18 U.S.C. § 3161(h)(1)(D) will occur 

as a result of this motion or an order based thereon, as explained more fully below.

Defendants Michael Lacey, James Larkin, Scott Spear, John Brunst, Dan Hyer, 

Andrew Padilla, and Joye Vaught, by and through Paul J. Cambria, Jr., hereby move 

this Court for an order requiring the government to disclose any and all filings related 

to the government’s pretrial seizure of Defendants’ assets (whether assets owned 

directly or owned indirectly through entities they own and control) including, but not 

limited to, the seizure applications, seizure warrants, and forfeiture orders, as well as 

an accelerated hearing of the instant motion. This motion is based on the legal reasoning 

and authority set forth in the attached Memorandum of Points and Authorities.

Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 3 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2

RESPECTFULLY SUBMITTED this 11th day of May, 2018.

/s/ Paul J. Cambria, Jr. 

LIPSITZ GREEN SCIME CAMBRIA LLP 

Attorneys for Defendant Michael Lacey

/s/ Thomas Henry Bienert, Jr.

BIENERT MILLER & KATZMAN PLC

Attorneys for Defendant James Larkin

/s/ Bruce S. Feder 

FEDER LAW OFFICE PA

Attorneys for Defendant Scott Spear

/s/ Michael D. Kimerer

KIMERER & DERRICK PC

Attorneys for Defendant John Brunst

/s/ K.C. Maxwell 

BROWNE GEORGE ROSS LLP 

Attorneys for Defendant Dan Hyer

/s/ Michael L. Piccarreta 

PICCARRETA DAVIS KEENAN FIDEL PC 

Attorneys for Defendant Andrew Padilla

/s/ Stephen M. Weiss

KARP & WEISS PC

Attorneys for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 4 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 3

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Defendants Michael Lacey, James Larkin, Scott Spear, John Brunst, Dan Hyer, 

Andrew Padilla, and Joye Vaught (collectively, “Defendants”) respectfully move this Court 

to issue an order requiring the government to promptly disclose to Defendants the documents 

the government relied upon in seeking pretrial restraint of Defendants’ assets (whether assets 

owned directly or owned indirectly through entities they own and control) including, but not 

limited to, seizure warrants, warrant applications, and forfeiture orders. The government has 

refused to promptly provide these documents to Defendants, which are critical to the 

Defendants’ ability to move for the release of their assets under the First, Fourth, Fifth, and 

Sixth Amendments in addition to other grounds. Because the government’s pretrial seizure 

of Defendants’ assets is hampering Defendants’ ability to defend themselves against the 

instant prosecution with counsel of choice, and in some cases, to meet their daily financial 

obligations, Defendants respectfully request that this Court hear the instant motion on an 

accelerated basis and grant the relief requested.

BACKGROUND

I. The government arrests Defendants and seeks pretrial detention.

On April 6, 2018, the government arrested Defendants Lacey, Larkin, Brunst, Spear, 

and Vaught on the basis of the then-sealed indictment. (See Arrest Warrants, Docs. 48, 49, 

50, 52.) The gist of the indictment, now unsealed, is that Defendants’ former involvement 

with the web-publishing entity Backpage.com, LLC (“Backpage”) was tantamount to the 

facilitation of prostitution and money laundering. (See generally Indict., Doc. 3.) The 

Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 5 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 4

government’s theory is that Defendants should be held criminally liable for the content of 

advertisements posted to Backpage by third-party users by virtue of Defendants’ prior 

involvement with the creation and/or operation of Backpage. (See id. at ¶¶ 1-16.) The 

government has charged Defendants with conspiracy to facilitate prostitution (18 U.S.C. §§ 

371, 1952(a)(3)(A)), facilitation of prostitution (18 U.S.C. §§ 1952(a)(3)(A), (b)(1)(i)), 

conspiracy to commit money laundering (18 U.S.C. § 1956(h)), concealment money 

laundering (18 U.S.C. § 1956(a)(1)(B)(i)), international promotional money laundering (18 

U.S.C. § 1956(a)(2)(A)), and transactional money laundering (18 U.S.C. § 1957). (See id. at 

¶¶ 157-71.)

The initial appearance and arraignment for Defendant Lacey was held on April 6, 

2018, at which he pleaded not guilty and was detained upon request of the government. (See

Min. Entry, Docs. 17.) The initial appearance and arraignment for Defendant Larkin was 

held on April 9, 2018, at which he pleaded not guilty and was detained upon request of the 

government. (See Min. Entry, Docs. 25.) The government moved for pretrial detention of 

Defendants Lacey and Larkin, claiming that they presented risk of flight and danger to the 

community. (See generally, Gov’t’s Mots., Docs. 13, 22.) Defendants Lacey and Larkin, 

lifelong residents of Phoenix, who have received recognition for their journalism and 

contributions to the community, objected to the government’s claims for the need for pretrial 

detention. (See generally Defs.’ Opp’n, Docs. 23, 26.) Subsequently, the parties reached an 

agreement on Defendants’ release, which the Court accepted. (See Min. Entries, Docs. 62-

63.)

Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 6 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 5

The initial appearance and arraignment for Defendant Vaught was held on April 6, 

2018, at which she pleaded not guilty and was released. (See Min. Entry, Doc. 18.) The initial 

appearance and arraignment for Defendants Spear and Brunst was held on April 9, 2018, at 

which they pleaded not guilty and were released. (See Min. Entry, Doc. 30.) The initial 

appearance and arraignment for Defendants Hyer and Padilla was held on April 18, 2018, at 

which they pleaded not guilty and were released. (See Min. Entry, Doc. 109.)

II. The government seized the majority of Defendants assets prior to trial. 

The government has seized the vast majority of several of the Defendants’ assets, 

even though Defendants must be presumed to be innocent of the crimes charged at this stage, 

and the conduct upon which the indictment is based involves presumptively protected First 

Amendment activities.

On May 1, 2018, Defendants learned that the government obtained pretrial restraint 

of their assets through civil forfeiture by obtaining seizure warrants in the Central District of 

California, even though Defendants and their assets, for the most part, are located in this 

District or in Texas, and the instant prosecution is pending in this District. It is unknown the 

extent to which the government has seized any of Defendants’ assets through criminal 

forfeiture proceedings in this District or elsewhere.

The government’s pretrial restraint of various of the Defendants’ assets has hampered 

them from paying living expenses and funding the defense of the instant charges with 

counsel of choice, especially considering the government’s representation that 7 to 9 million 

pages of documents will need to be reviewed. Defendants intend to move for release of their 

assets as soon as possible, in particular, for the release of any and all funds improperly 

Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 7 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 6

restrained, but they cannot do so without first obtaining the documents upon which the 

government sought the seizures.

III. The government refuses to promptly disclose any documents related to the 

pretrial restraint of Defendants’ assets. 

On April 30, 2018, the parties appeared before the Court, at which point the Court 

entered the Scheduling Order for the instant prosecution. (See Min. Entry, Doc. 126; 

Scheduling Or., Doc. 131.) The next day, Defendants learned that the government had sought 

the pretrial restraint of Defendants’ assets through civil forfeiture proceedings originating in 

the Central District of California.

In light of this development, Defendants immediately requested that the government 

disclose to Defendants the documents upon which the government relied in seeking its 

pretrial restraint of Defendants’ assets. (A true and correct copy of Defendants’ disclosure 

demand is attached hereto as Exhibit A.) The government declined to disclose the demanded 

documents, indicating that the documents were filed under seal, and would remain under seal 

until the government files its complaints in the civil forfeiture actions. Since then, the 

government indicated that it would provide defense counsel with bank records purportedly 

used by the government to trace Defendants’ assets, but not the underlying documents used 

to effect the massive pretrial restraint of those assets.

Most recently, the government has claimed that the disclosure in this case—

potentially 9 million pages of documents—is so onerous that the government cannot move 

along the initial production of documents to Defendants any sooner than the end of this 

month. Critically, Defendants have not asked for advance production of the discovery 

Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 8 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 7

underling the instant criminal action, other than as set forth in the Scheduling Order. Instead, 

Defendants seek disclosure of the documents that allegedly support the government’s 

massive asset seizure as necessary for the protection of Defendant’s fundamental 

constitutional rights, and so Defendants can fund their defense and pay their living expenses.

Defense counsel has requested that the government file an unopposed motion to 

unseal the civil forfeiture proceedings to provide defense counsel with the seizure warrants, 

warrant applications, and forfeiture orders. The government has not filed such a motion.

ARGUMENT

I. The government’s refusal to disclose the seizure warrants is indefensible.

Defendants do not have any of the documents upon which the government relied in 

seeking pretrial seizure of their assets. Without review of those documents, it is impossible 

for Defendants to move for release of their assets in any meaningful manner as Defendants 

would be speculating about the government’s theories on seizure. Defendants even are in the 

dark on the docket number(s) assigned to the civil forfeiture actions and cannot take any 

action against the government’s pretrial restraint in the appropriate forum without disclosure 

of the case caption(s), at the very least, which the government has refused to do. As a 

potential remedy to any sealing order, defense counsel has informed the government that 

Defendants have no objection to a motion to unseal the dockets or documents related to the 

government’s pretrial restraint of Defendants’ assets. However, no motion has been filed.

The government’s continued refusal to promptly disclose the asset seizure documents 

to Defendants is unacceptable. First, the government’s secret seizure of Defendants’ assets, 

and the government’s refusal to promptly provide any documentation relating to the seizures 

Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 9 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 8

deprives Defendants of due process. There can be no legitimate argument that disclosing the 

documents supporting the seizures now to Defendants would impair a criminal investigation, 

because the government has indicted the Defendants, the indictment has been unsealed, and 

the assets have been restrained.

Second, it is critical that the government provide these documents to defense counsel. 

It is believed that the government has seized assets that it is not entitled to seize and which 

are needed by the Defendants to support their defense and to fund their daily living expenses 

and pre-existing financial obligations. This is especially so considering the overarching First, 

Fourth, Fifth, and Sixth Amendment considerations which apply to this case. Defendants 

must have access to the seizure warrants, warrant applications, and the forfeiture orders to 

assess the propriety of the government’s wholesale seizure of their assets. As the Ninth 

Circuit has explained, discoverable material that could reveal a Fourth Amendment Violation 

is material to a defense. See United States v. Soto-Zuniga, 837 F.3d 992, 1000 (9th Cir. 2016).

Indeed, the government has provided no reason as to why these documents should 

remain under seal. At the very least, these documents should be disclosed to defense counsel 

under a protective order, if a sufficient basis exists for a protective order, to enable defense 

counsel to provide meaningful representation to the Defendants, and to do so without 

unnecessary delay. There is simply no reason to delay the disclosure of these documents, 

except to interfere with Defendants’ right to defend the charges in the Indictment and to 

impose undue financial pressure on Defendants. Nor for that matter, is there any reason to 

require, as the government maintains, that Defendants must litigate these issues in Los 

Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 10 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 9

Angeles when this indictment, Defendants, and the bulk of the assets seized are located in 

this District. No valid reason exists for proceeding in Los Angeles.

Finally, the sealing of documents in a federal proceeding is to be treated as the 

exception, not the norm. There is a presumption of openness with respect to judicial 

proceedings and judicial records. See Press-Enter. Co. v. Sup. Ct. of Cal., 464 U.S. 501, 509 

(1984) (“Closed proceedings, although not absolutely precluded, must be rare and only for 

cause shown that outweighs the value of openness.” (footnote omitted)); Nixon v. Warner 

Commc’ns Inc., 435 U.S. 589, 597 (1978) (recognizing a “general right to inspect and copy 

public records and documents, including judicial records and documents”). For this reason, 

documents may be sealed only if specific, on the record, findings are made that the sealing 

is necessary to preserve compelling government interests and is narrowly tailored to that 

interest. See Press-Enter. Co. v. Sup. Ct. of Cal., 478 U.S. 1, 13-14 (1986). Consequently, if 

the government fails to demonstrate a compelling interest for the continued sealing of seizure 

documents, the sealing order must be vacated.

II. The government’s wholesale seizure of Defendants’ assets is subject to 

numerous constitutional challenges. 

The Supreme Court has cautioned courts to scrutinize the pretrial restraint of a 

defendant’s assets, describing pretrial restraint as the “nuclear weapon of the law.” Grupo 

Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 329 (1999) 

(alteration omitted). Courts must safeguard the rights of a defendant whose assets have been 

restrained prior to trial because the defendant, at this stage, is presumed to be innocent. In 

Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 11 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 10

this case, there are numerous ways that the government’s wholesale pretrial restraint of 

Defendants’ assets has the potential to violate Defendants’ constitutional rights.

First, the government has no authority to seize so-called untainted assets prior to trial. 

See Luis v. United States, 578 U.S. ___, 136 S.Ct. 1083, 1094 (2016) (“We have found no 

decision of this Court authorizing unfettered, pretrial forfeiture of the defendant’s own 

‘innocent’ property—property with no connection to the charged crime.”); cf. United States 

v. Ripinksy, 20 F.3d 359, 363 (9th Cir. 1994) (“[S]ubstitute assets are not subject to pretrial 

restraint.”). Consequently, any seizure of untainted assets is subject to challenge by 

Defendants as outside the scope of what is permissible under the civil and criminal forfeiture 

statutes at this stage.

The risk of seizure of so-called untainted assets is particularly troubling in this case 

because the government has acknowledged that it cannot show how much of the revenue 

generated by Backpage was attributable to advertisements allegedly for prostitution. (See

Doc. 3 at ¶ 1 (“Backpage derives the overwhelming majority of its revenue from 

[prostitution] ads.”).) Yet, the government has seized all of the revenue attributed to 

Backpage that was dispersed to Defendants, as well as assets not attributed to Backpage. 

Indeed, Defendants generated sizeable income, and acquired substantial assets, long before 

formation of Backpage as well as separate from Backpage after its creation. That income and 

those assets are not subject to pretrial restraint.

Second, each day Defendants’ funds remain subject to pretrial restraint without any 

opportunity for the Defendants to be heard on the propriety of the government’s seizure, a 

new due process violation occurs. It is beyond cavil that “[n]o person shall be . . . deprived 

Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 12 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 11

of life, liberty, or property, without due process of law.” U.S. Const. amend. V. The 

touchstone of due process is that “a person in jeopardy of serious loss [be given] notice of 

the case against him and opportunity to meet it.” Matthews v. Eldridge, 424 U.S. 319, 348 

(1976). Here, Defendants have been deprived of the opportunity to challenge the 

government’s pretrial restraint of their assets.

Third, the government’s wholesale seizure of the Defendants’ funds violates the Sixth 

Amendment because defendants have “a Sixth Amendment right to use [their] own 

‘innocent’ property to pay a reasonable fee for the assistance of counsel.” Luis, 136 S.Ct. at 

1096 (vacating order freezing the defendant’s untainted funds).

Fourth, the government’s seizure of Defendants’ funds has violated their First 

Amendment rights, as will be fully set forth in Defendants’ motion for the return of their 

seized assets. Review of the documents supporting the seizure is necessary to fully analyze 

the government’s rationale, but the Indictment suggests that the government justified its 

actions based on Defendants’ prior ownership of Backpage, and its presumption that all 

publishing activities related to Backpage were illegal. However, the First Amendment does 

not permit the government to presume illegality of a website’s contents. See, e.g., 

Backpage.com, LLC v. Dart, 807 F.3d 229, 234 (7th Cir. 2015). Moreover, the First 

Amendment does not permit pretrial seizure of a publisher’s output (i.e., books, website). 

See Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989); Adult Video Ass’n v. Barr, 960 

F.2d 781, 788 (9th Cir. 1992) (enjoining 18 U.S.C. § 1963(d) authorizing government action 

“to preserve the availability of property . . . for forfeiture”). These same principles constrain 

the government’s ability to freeze assets that are alleged to be derived from “illegal” 

Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 13 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 12

publishing activities. See Simon & Schuster, Inc. v. Members of the New York State Crime 

Victims Bd., 502 U.S. 105 (1991). The First Amendment does not permit seizing such assets 

even when it is assumed “the income escrowed . . . represents the fruits of crime.” Id. at 118.

Fifth, in light of the fact that the government has sought the pretrial restraint of assets 

derived from Defendants’ well-documented exercise of their First Amendment rights as 

assets purportedly traceable to the charged crimes, the seizure applications likely include 

statements which violate Franks v. Delaware, 438 U.S. 154 (1978). In the First Amendment 

context, however, even a showing of probable cause would be insufficient to support pretrial 

seizure that infringes constitutionally-protected interests. See, e.g., Fort Wayne Books, 489 

U.S. at 66; Barr, 960 F.2d at 788.

Even under the government’s theory of the case, the risk of defective seizure warrants 

is particularly high with respect to its applications for the seizure of Defendants’ assets. Some, 

but certainly not all, of Defendants’ assets are attributable to the revenue generated by 

Backpage. Defendants had sizeable income unrelated to Backpage, including income earned 

long before formation of Backpage.

Even with respect to the funds attributable to revenue generated by Backpage, no 

court has ever held Defendants criminally liable for content posted to Backpage by thirdparty users. Instead, courts have uniformly rejected the same theories of liability the 

government pursues in the instant indictment. See People v. Ferrer, Case No. 16FE019224, 

2016 WL 7237305 (Cal. Super. Ct. Dec. 16, 2016), No. 16FE024013 (Cal. Super. Ct. Aug. 

23, 2017). Civil litigants have fared no better in the pursuit to hold the operators of webpublishing sites liable for the content posted to their sites by third-party users. See Doe ex 

Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 14 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 13

rel. Roe v. Backpage.com LLC, 104 F. Supp. 3d 149 (D. Mass. 2015), aff’d sub nom., Jane 

Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016); M.A. v. Village Voice Media 

Holdings, LLC, 809 F. Supp. 2d 1041, 1053-54 (E.D. Mo. 2011) see also Dart v. Craigslist, 

Inc., 665 F. Supp. 2d 961, 962-63, 967-68 (N.D. Ill. 2009).

As the Seventh Circuit explained, “Backpage is an intermediary between the 

advertisers of adult services and visitors to Backpage’s website,” and intermediaries “do not 

become liable for the sponsor’s deeds” even if they “know the information’s content.” 

Backpage.com, LLC v. Dart, 807 F.3d 229, 234 (7th Cir. 2015), cert. denied, 137 S. Ct. 46 

(2016). Even if a showing of probable cause were sufficient to seize Defendants’ assets, the 

warrant applications would have to set forth specific facts alleging how the particular assets 

at issue are traceable to the crime charged, but cannot include the conclusory facilitation 

theory that has been rejected in criminal and civil actions nationwide. In light of the 

numerous decisions rejecting the facilitation theory as a ground for holding the Defendants 

liable for the content of third-party users, the inclusion of such allegations would constitute 

the inclusion of a statement of “deliberate falsehood” or made “with reckless disregard for 

the truth.” Franks, 438 U.S. at 171.

Further, the government is not free to presume that all of the income attributable to 

Backpage constitutes proceeds of crime simply because the government is able to point to a 

handful of advertisements that it claims advertise prostitution. Under Fort Wayne Books and 

its progeny, no such presumption exists in the context of assets derived from a defendant’s 

participation in First Amendment activities. Instead, the government must provide the court 

reviewing its warrant applications with proof that each dollar seized was attributable to a 

Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 15 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 14

charged crime and Defendants must be afforded the opportunity to challenge the 

government’s proof at a hearing.

Sixth, Defendants have the right to challenge the government’s seizures for failure to 

comply with the specific requirements for pretrial seizure set forth in the civil and criminal 

forfeiture statutes, and as mandated by the First, Fourth, Fifth, and Sixth Amendments.

In light of these constitutional challenges, Defendants intend to move for accelerated 

hearings on the government’s seizure of their assets, including, but not limited to, a 

traceability hearing, a Luis hearing, and a Franks hearing.

CONCLUSION

In light of the foregoing, Defendants move, pursuant to Rule 16 of the Federal Rules 

of Criminal Procedure, for an order requiring the government to expeditiously disclose the 

seizure warrants, seizure applications, and forfeiture orders to the defense. Any further delay 

in the government’s disclosure will further undermine Defendants’ First, Fourth, Fifth, and 

Sixth Amendment rights in this action. Further, because the violation of Defendants’ 

constitutional rights compounds with each day that passes, Defendants respectfully request 

an accelerated hearing on the instant motion.

Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 16 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 15

RESPECTFULLY SUBMITTED this 11th day of May, 2018.

PICCARRETA DAVIS KEENAN FIDEL PC

/s/ Paul J. Cambria, Jr. 

LIPSITZ GREEN SCIME CAMBRIA LLP 

Attorneys for Defendant Michael Lacey

/s/ Thomas Henry Bienert, Jr.

BIENERT MILLER & KATZMAN PLC

Attorneys for Defendant James Larkin

/s/ Bruce S. Feder 

FEDER LAW OFFICE PA

Attorneys for Defendant Scott Spear

/s/ Michael D. Kimerer

KIMERER & DERRICK PC

Attorneys for Defendant John Brunst

/s/ K.C. Maxwell 

BROWNE GEORGE ROSS LLP 

Attorneys for Defendant Dan Hyer

/s/ Michael L. Piccarreta 

PICCARRETA DAVIS KEENAN FIDEL PC 

Attorneys for Defendant Andrew Padilla

/s/ Stephen M. Weiss

KARP & WEISS PC

Attorneys for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 17 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 16

On May 11, 2018, a PDF version

of this document was filed with the

Clerk of Court using the CM/ECF

System for filing and for Transmittal

of a Notice of Electronic Filing to the

following CM/ECF registrants:

Dominic Lanza, dominic.lanza@usdoj.gov

Kevin Rapp, kevin.rapp@usdoj.gov

Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 18 of 20
Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 19 of 20
Case 2:18-cr-00422-DJH Document 141 Filed 05/11/18 Page 20 of 20