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Timothy J. Eckstein, 018321

Joseph N. Roth, 025725

Sarah P. Lawson, 036436

OSBORN MALEDON, P.A.

2929 North Central Avenue, 20th Floor

Phoenix, Arizona 85012-2793

(602) 640-9000

teckstein@omlaw.com

jroth@omlaw.com

slawson@omlaw.com

Attorneys for James Larkin

Additional counsel on following page

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Michael Lacey, et al.,

Defendants.

Case No. 2:18-cr-00422-PHX-DJH

DEFENDANTS’ RESPONSE TO 

GOVERNMENT’S MOTION TO 

PRECLUDE DEFENSE FROM 

REFERENCING CRAIGSLIST 

MEETINGS WITH ATTORNEYS 

GENERAL

(DOC. 1600)

(Oral Argument Requested)

Case 2:18-cr-00422-DJH Document 1611 Filed 06/15/23 Page 1 of 7
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Paul J. Cambria, Jr. (NY 15873, admitted pro hac vice)

Erin E. McCampbell (NY 4480166, admitted pro hac vice)

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

(716) 849-1333

pcambria@lglaw.com

emccampbell@lglaw.com

Attorneys for Michael Lacey

Bruce S. Feder (AZ 004832)

FEDER LAW OFFICE PA

2930 E. Camelback Rd., Suite 160

Phoenix, Arizona 85016

(602) 257-0135

bf@federlawpa.com

Eric Walter Kessler

KESSLER LAW OFFICE

6720 N. Scottsdale Rd., Suite 210

Scottsdale, Arizona 85253

(480) 644-0093

Eric.kesslerlaw@gmail.com

Attorneys for Scott Spear

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW P.C.

1875 Century Park E., Suite 2300

Los Angeles, California 90067

(310) 201-2100

glincenberg@birdmarella.com

gpanchapakesan.@birdmarella.com

aneuman@birdmarella.com

Attorneys for John Brunst

David S. Eisenberg

DAVID EISENBERG PLC

3550 N. Central Ave., Ste. 1155

Phoenix, Arizona 85012

(602) 237-5076

david@eisenbergplc.com

Attorneys for Andrew Padilla

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Joy Malby Bertrand

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

(480) 656-3919

joyous@mailbag.com

Attorneys for Joye Vaught

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During opening statements at the first trial, counsel stated that state Attorneys 

General “met with [and asked] Craigslist” to charge for its adult ads to “create a paper 

trail” for law enforcement, “and so that’s what Craigslist did.” Doc. 1343 at 43:21-44:6. 

The government did not object, nor did it have a basis for doing so, as the statement was 

based on “facts which [defendants] intend[] or in good faith expect[] to prove.” Leonard v. 

United States, 277 F.2d 834, 841 (9th Cir. 1960). The government now argues that any 

similar reference should be precluded during the retrial’s opening statement as it is based 

on irrelevant, inadmissible hearsay. Doc. 1600 at 2. The court should deny the motion 

for the following reasons.

First, the statement refers to relevant information that helps explain why 

Backpage.com charged for adult ads. Backpage.com was an online classified ad site that 

competed with Craigslist. Like Backpage, for many years, Craigslist allowed users to post 

ads for adult-oriented services. Like Backpage, Craigslist faced pressure from various 

groups about the content of some of these adult ads. In 2008, Craigslist, multiple state 

Attorneys General, and the National Center for Missing and Exploited Children jointly 

announced various changes to Craigslist’s business, including that it would charge fees for 

ads in its “erotic services” category. See Def. Trial Ex. 5054, attached as Exhibit A. This 

change and others were among “new safeguards for craigslist and new ways of working 

together with law enforcement.” Id. The joint announcement followed “a series of 

discussions and in person meetings between” Craigslist, NCMEC, and a state attorney 

general. Id. The announcement was widely publicized, including by the Arizona Attorney 

General, whose website still publicizes it. See Press Release, Arizona Attorney General, 

Terry Goddard Announces Multi-State Agreement with Craigslist (Nov. 6, 2008), 

https://www.azag.gov/press-release/terry-goddard-announces-multi-state-agreementcraigslist; https://www.azag.gov/sites/default/files/2018-10/craigslistfinalstatement.pdf.

Backpage, including the government’s star witness Carl Ferrer, were following these 

developments. See, e.g., Gov’t Trial Ex. 17, attached as Exhibit B (11/21/2008 email chain

with Carl Ferrer and others, noting that “Craigslist has begun charging for adult postings 

Case 2:18-cr-00422-DJH Document 1611 Filed 06/15/23 Page 4 of 7
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in conjunction with a settlement reached with 40 state attorney generals”). Backpage 

personnel thought this was “validation of our adult business model,” including that 

charging a fee can provide “financial data for law enforcement.” Id. at 2.

This evidence is relevant to explain the rationale for Backpage’s business practices

and Defendants’ intent in charging for ads. In addition, this evidence impeaches the 

government’s assertion that Defendants’ “greed” motivated them to publish ads the 

government says are for prostitution. Indeed, the government has made this a major theme 

of its case, mentioning “greed” eleven times during its opening statement at the first trial. 

Doc. 1341 at 6:9; 12:18; 28:8; 31:8; 37:24; 40:4, 24; 42:10; 45:23; 46:20; 50:19. 

Second, evidence related to what Backpage employees knew about Craigslist’s 

interactions with attorneys general is not hearsay; it is relevant to show what Backpage 

employees and Defendants understood about what happened, not to prove the truth of 

what occurred between Craigslist and government officials. Fed. R. Evid. 801(c)(2)

(evidence is potentially hearsay if it is “offer[ed] . . . to prove the truth of the matter 

asserted”); see Haddad v. Lockheed Cal. Corp., 720 F.2d 1454, 1456 (9th Cir. 1983) (testimony 

that management received complaints about plaintiff from third parties is not hearsay 

because it was relevant to defendant’s intent, not to prove the truth of the complaints).

Third, the motion is speculative and premature. Defendants understand that the 

opening statements should not include information counsel does not expect, in good faith, 

to be adduced at trial. The Court should not attempt to rule ahead of time on which 

statements from the 2021 trial’s opening statement could or could not be repeated. If the 

defense makes a statement during opening that the government believes is not proper, it 

can object at that time, and the Court may rule based on the actual statement made.

Conclusion. 

The government’s motion at Doc. 1600 should be denied.

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DATED this 15th day of June, 2023.

OSBORN MALEDON, P.A.

By s/ Joseph N. Roth

Timothy J. Eckstein

Joseph N. Roth

Sarah P. Lawson

2929 North Central, 20th Floor

Phoenix, Arizona 85012-2794

Attorneys for James Larkin

LIPSITZ GREEN SCIME CAMBRIA LLP

By s/ Paul J. Cambria, Jr. (w/permission)

Paul J. Cambria, Jr. (pro hac vice)

Erin E. McCampbell (pro hac vice)

42 Delaware Avenue, Suite 120

 Buffalo, New York 14202

Attorneys for Michael Lacey

FEDER LAW OFFICE PA

By s/ Bruce S. Feder (w/permission)

Bruce S. Feder

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

KESSLER LAW OFFICE

By s/ Eric W. Kessler (w/permission)

Eric W. Kessler

6720 N. Scottsdale Rd., Suite 210

Scottsdale, Arizona 85253

Attorneys for Scott Spear

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BIRD, MARELLA, BOXER, WOLPERT,

NESSIM, DROOKS, LINCENBERG & 

RHOW P.C.

By s/ Gary S. Lincenberg (w/permission)

Gary S. Lincenberg

Gopi K. Panchapakesan

Ariel A. Neuman

1875 Century Park E., Suite 2300

Los Angeles, California 90067

Attorneys for John Brunst

DAVID EISENBERG PLC

By s/ David S. Eisenberg (w/permission)

David S. Eisenberg

3550 N. Central Ave., Ste. 1155

Phoenix, Arizona 85012

Attorneys for Andrew Padilla

JOY BERTRAND LAW 

By s/ Joy M. Bertrand (w/permission)

Joy M. Bertrand

P.O. Box 2734

Scottsdale, Arizona 85252

Attorneys for Joye Vaught

Case 2:18-cr-00422-DJH Document 1611 Filed 06/15/23 Page 7 of 7