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GLENN B. McCORMICK

Acting United States Attorney District of Arizona

KEVIN M. RAPP (Ariz. Bar No. 014249, kevin.rapp@usdoj.gov) MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov) PETER S. KOZINETS (Ariz. Bar No. 019856, peter.kozinets@usdoj.gov) ANDREW C. STONE (Ariz. Bar No. 026543, andrew.stone@usdoj.gov) Assistant U.S. Attorneys

40 N. Central Avenue, Suite 1800

Phoenix, Arizona 85004-4408

Telephone (602) 514-7500

DAN G. BOYLE (N.Y. Bar No. 5216825, daniel.boyle2@usdoj.gov) Special Assistant U.S. Attorney

312 N. Spring Street, Suite 1400

Los Angeles, CA 90012

Telephone (213) 894-2426

KENNETH POLITE

Assistant Attorney General 

Criminal Division, U.S. Department of Justice

REGINALD E. JONES (Miss. Bar No. 102806, reginald.jones4@usdoj.gov) Senior Trial Attorney, U.S. Department of Justice

Child Exploitation and Obscenity Section

950 Pennsylvania Ave N.W., Room 2116

Washington, D.C. 20530

Telephone (202) 616-2807 

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff, 

v. 

Michael Lacey, et al.,

Defendants.

No. CR-18-422-PHX-SMB

UNITED STATES’ MOTION TO 

PRECLUDE DEFENDANTS’ 

ADVICE OF COUNSEL DEFENSE

Case 2:18-cr-00422-DJH Document 1234 Filed 08/24/21 Page 1 of 5
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Defendants should be precluded from soliciting testimony or otherwise suggesting 

that they relied upon the advice of their attorneys as a defense to the charged offenses. 

Defendants have not waived any applicable attorney-client privilege. Without such a 

waiver—and a subsequent opportunity for the United States to review the information 

Defendants provided to their attorneys to determine whether counsel knew the full scope 

of Backpage’s business practices—black letter law prohibits Defendants from making an 

advice of counsel defense. This includes any argument that Defendants possessed “good 

faith” based on the advice they may have received from their attorneys.

I. Defendants’ Recent Disclosures

In a recent disclosure, Defendants produced legal memoranda that—on their face—

appear to be protected by the attorney-client privilege. (Letter from W. Bernstein dated 

July 2, 2021, attached as Exhibit A.) These memoranda—authored by various attorneys—

include one titled, “Why Village Voice Media’s Backpage.com Service Does Not Create 

Liability for Promoting Prostitution.”1

 This 31-page-memorandum was written by 

attorneys at a law firm in St. Louis, Missouri. 

In response to the government’s inquiry regarding whether the disclosure waived 

Defendants’ privilege as to those particular attorneys, defense counsel claimed that there 

was no waiver because the disclosure tracked the Court’s recent Order (Doc. 1169 at 9-

11). (Email exchange between A. Stone and W. Bernstein, attached as Exhibit. B.) That 

Order analyzed Defendants’ claims that certain statements made by Carl Ferrer were 

privileged. In that context, the Court found that “Defendants have not satisfied their burden 

of establishing an attorney-client relationship and/or attorney-client communications.” 

(Doc. 1169 at 9.) Here, Defendants produced (seemingly) complete legal memoranda 

prepared by their former attorneys. But when the government inquired as to whether 

1 This memorandum includes, among others, the following sections: “Section 230 

Immunizes Interactive Computer Service Providers From Liability For Third Party 

Content;” “Village Voice Cannot Be Liable Under Missouri Law For Promoting 

Prostitution;” “Backpage.com Is Engaged In Protected Speech;” and “Even If Section 230 

And The Scienter And Remoteness Doctrines Of Criminal Law Did Not Apply, The First 

Amendment Would Prevent Imposition Of Criminal Liability On Village Voice In This 

Situation.”

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Defendants were waiving the privilege, Defendants were adamant that they were not. (Ex. 

B at 1) (“the disclosure . . . is not a waiver of a privilege”.) Instead, Defendants claimed 

that they may use legal memoranda at trial to negate the United States’ evidence of criminal 

intent, by arguing that reliance on their attorneys’ advice demonstrates Defendants’ “good 

faith.” (Exs. A & B.) 

II. Advice of Counsel Defense Isn’t Available Without a Privilege Waiver

A trier of fact may consider advice of counsel as a partial defense to disprove a mens 

rea element, but “only upon the showing that [a defendant] made a full disclosure of all 

relevant and material facts to his attorney.” Bisno v. United States, 299 F.2d 711, 719-20

(9th Cir. 1961). Accordingly, “[t]o qualify for an advice of counsel instruction, the 

defendant must show that there was full disclosure to his attorney of all material facts, and 

that he relied in good faith on the specific course of conduct recommended by the attorney.” 

United States v. Ibarra-Alcarez, 830 F.2d 968, 973 (9th Cir. 1987). When the evidence 

shows that a defendant failed to make a full disclosure of the underlying facts to his 

attorney, then an advice of counsel defense is not available. See id.

Here, Defendants are explicit that they have not waived any attorney-client 

privilege. (Exs. A & B.) Without doing so, they are precluded from invoking an advice of 

counsel defense. See, e.g., Hunt v. Blackburn, 128 U.S. 464, 470-71 (1888) (when 

defendant entered into a defense which relied upon what her lawyer told her, she waived 

her right to object to him giving his own account); United States v. Bush, 626 F.3d 527, 

539 (9th Cir. 2010) (an advice-of-counsel instruction requires the defendant to show he 

made a full disclosure of all material facts to his attorney); United States v. Pinson, 584 

F.3d 972, 977 (10th Cir. 2009) (when defendant invoked an advice of counsel defense, he 

waived his attorney-client privilege as to all advice received concerning the same subject 

matter); United States v. Workman, 138 F.3d 1261, 1263 (8th Cir. 1998) (attorney-client 

privilege can be implicitly waived by raising an advice of counsel defense). This includes 

any “good faith” arguments based on attorneys’ advice. Ibarra-Alcarez, 830 F.2d at 974 

(no error when trial court refused to instruct the jury on defendant’s good faith reliance on 

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the advice of counsel, because defendant failed to disclose all the material facts to his 

attorney). 

Accordingly, at trial, Defendants should be precluded from both (a) soliciting

testimony suggesting that attorneys made statements to Defendants or that Defendants

relied upon such statements in an attempt to negate intent; and (b) a formal advice-ofcounsel defense and the associated jury instruction.2 Defendants’ stated “good faith” 

defense—based on attorneys’ advice—appears an attempt to avoid the affirmative 

obligations an “advice of counsel” defense places upon them. Without adhering to these 

obligations, i.e., waiving the privilege and disclosing all their relevant communications 

with the attorneys offering advice, Defendants should be precluded from eliciting 

testimony in this area or making any arguments related to an attorney’s advice.

III. Conclusion

Defendants have not waived any attorney-client privileges. Without such a waiver, 

they are precluded from raising either (a) a “good faith” defense based on advice received 

from attorneys, or (b) a formal advice of counsel defense.

Respectfully submitted this 24th day of August, 2021.

GLENN B. McCORMICK

Acting United States Attorney District of Arizona

s/ Andrew C. Stone

KEVIN M. RAPP

MARGARET PERLMETER

PETER S. KOZINETS

ANDREW C. STONE

Assistant U.S. Attorneys

2 The Ninth Circuit Manual of Model Criminal Jury Instruction 5.10 Advice of 

Counsel reads: 

One element that the government must prove beyond a reasonable doubt is 

that the defendant had the unlawful intent to [specify applicable unlawful 

act]. Evidence that the defendant in good faith followed the advice of counsel would be inconsistent with such an unlawful intent. Unlawful intent has not 

been proved if the defendant, before acting, made full disclosure of all 

material facts to an attorney, received the attorney’s advice as to the specific course of conduct that was followed, and reasonably followed the attorney’s 

recommended course of conduct or advice in good faith.

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DAN G. BOYLE

Special Assistant U.S. Attorney

KENNETH POLITE

Assistant Attorney General 

U.S. Department of Justice 

Criminal Division, U.S. Department of Justice

REGINALD E. JONES

Senior Trial Attorney

U.S. Department of Justice, Criminal Division

Child Exploitation and Obscenity Section

CERTIFICATE OF SERVICE

I hereby certify that on August 24, 2021, I electronically transmitted the attached 

document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a 

Notice of Electronic Filing to the CM/ECF registrants who have entered their appearance 

as counsel of record.

s/ Marjorie Dieckman U.S. Attorney’s Office

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