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3902126.2

DEFENDANT BRUNST’S SUPPLEMENTAL BRIEF IN SUPPORT OF 

MOTION FOR ACQUITTAL UNDER RULE 29

Gary S. Lincenberg (admitted pro hac vice)

 glincenberg@birdmarella.com

Ariel A. Neuman (admitted pro hac vice)

 aneuman@birdmarella.com

Gopi K. Panchapakesan (admitted pro hac vice)

 gkp@birdmarella.com

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW, P.C.

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: (310) 201-2100

Facsimile: (310) 201-2110

Attorneys for Defendant John Brunst

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-00422-004-PHX-DJH

DEFENDANT JOHN BRUNST’S 

SUPPLEMENTAL BRIEF IN 

SUPPORT OF MOTION FOR 

ACQUITTAL UNDER FED. R.

CRIM. P. 29

Case 2:18-cr-00422-DJH Document 2007 Filed 12/04/23 Page 1 of 23
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TABLE OF CONTENTS

Page

I. INTRODUCTION...................................................................................................... 1

II. ARGUMENT.............................................................................................................. 3

A. Legal Standard................................................................................................. 3

B. Brunst Must Be Acquitted on Count 1 (Travel Act Conspiracy).................... 4

1. The Government Argued to the Jury That the “Object” of the 

Conspiracy Was to “Make Money.” .................................................... 4

2. The Government Presented Insufficient Evidence Regarding an 

Agreement to Violate the Travel Act. .................................................. 6

C. Brunst Must Be Acquitted of the Money Laundering Convictions 

(Counts 52-62, 64-70, 78-84, and 86-93)........................................................ 8

1. Concealment Money Laundering (Counts 53-62)................................ 8

a. The Government Failed to Prove Specified Unlawful 

Activity...................................................................................... 8

b. There Was No Evidence That the Transactions in 

Counts 53-62 Were Designed to Conceal. .............................. 10

2. The Government Failed to Prove Actual “Promotion” as to the 

International Promotional Money Laundering Counts of 

Conviction (Counts 64-68)................................................................. 11

3. Transactional Money Laundering (Counts 69-70, 78-84, 

and 86-93)........................................................................................... 13

a. The Government Failed to Prove Any Specified 

Unlawful Activity Underlying These Counts. ........................ 13

b. The Government Failed to Prove Brunst’s Involvement 

as to Counts 69-70 and 83-84 (Lacey Transactions)............... 14

4. Brunst Should be Acquitted of Conspiracy to Commit Money 

Laundering (Count 52). ...................................................................... 15

D. The Court’s Allen Charge May Have Created Reversible Error................... 17

III. CONCLUSION ........................................................................................................ 17

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3902126.2 ii

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TABLE OF AUTHORITIES

Page(s)

Cases

Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay

868 F.3d 104 (2d Cir. 2017)........................................................................................... 9

Jiminez v. Myers

40 F.3d 976 (9th Cir. 1993)........................................................................................... 17

Prigge v. USA

No. CR-13-01363-PHX-GMS, 2018 WL 513380 

(D. Ariz. Jan. 23, 2018)................................................................................................ 11

Regalado Cuellar v. United States

553 U.S. 550, 128 S. Ct. 1994, 170 L. Ed. 2d 942 (2008)........................................... 10

RJR Nabisco, Inc. v. Eur. Cmty.

579 U.S. 325, 136 S. Ct. 2090, 195 L. Ed. 2d 476 (2016)........................................... 16

United States v. Alarcon–Simi

300 F.3d 1172 (9th Cir. 2002)........................................................................................ 4

United States v. Awan

966 F.2d 1415 (11th Cir. 1992).................................................................................... 16

United States v. Banks

514 F.3d 959 (9th Cir. 2008)........................................................................................ 17

United States v. Bishop

1 F.3d 910 (9th Cir. 1993).............................................................................................. 4

United States v. Brown

186 F.3d 661 (5th Circ. 1999)................................................................................ 12, 13

United States v. Brown

553 F.3d 768 (5th Cir. 2008)........................................................................................ 11

United States v. Caplan

633 F.2d 534 (9th Cir. 1980)...................................................................................... 5, 6

United States v. Chao Fan Xu

706 F.3d 965 (9th Cir. 2013), 

as amended on denial of reh’g (Mar. 14, 2013)........................................................... 16

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United States v. Croft

124 F.3d 1109 (9th Cir. 1997)........................................................................................ 4

United States v. Gibson Specialty Co.

507 F.2d 446 (9th Cir. 1974)........................................................................................ 10

United States v. Henry

325 F.3d 93 (2d Cir. 2003)........................................................................................... 16

United States v. Ionutescu

752 F. Supp. 2d 1091 (D. Ariz. 2009)........................................................................ 4, 8

United States v. Jaimez

45 F.4th 1118 (9th Cir. 2022), 

cert. denied, 143 S. Ct. 1038, 215 L. Ed. 2d 198 (2023) ............................................. 15

United States v. Johnson

44 F. App’x 752 (9th Cir. 2002), 

opinion amended on reh’g (Aug. 30, 2002)................................................................... 4

United States v. Kaplan

836 F.3d 1199 (9th Cir. 2016)........................................................................................ 6

United States v. Licciardi

30 F.3d 1127 (9th Cir. 1994).......................................................................................... 8

United States v. Manarite

44 F.3d 1407 (9th Cir. 1995).......................................................................................... 4

United States v. Medina

485 F.3d 1291 (11th Cir. 2007).................................................................................... 16

United States v. Messer

197 F.3d 330 (9th Cir. 1999)........................................................................................ 13

United States v. Nattier

127 F.3d 655 (8th Cir. 1997)........................................................................................ 16

United States v. Polizzi

500 F.2d 856 (9th Cir. 1974).......................................................................................... 9

United States v. Singh

No. 2:14-CR-00648-CAS-9, 2020 WL 2768848 

(C.D. Cal. May 27, 2020) ............................................................................................ 10

United States v. Wilkes

662 F.3d 524 (9th Cir. 2011).......................................................................................... 8

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United States v. Williams

547 F.3d 1187 (9th Cir. 2008)...................................................................................... 17

Statutes

18 U.S.C.

§ 371....................................................................................................................... 2, 4, 6

§ 1952....................................................................................................................passim

§ 1952(a)(3)(A).............................................................................................................. 6

§ 1952(b)(i)(1)................................................................................................................ 6

§ 1956(a)(1).................................................................................................................... 8

§ 1956(a)(1)(B)(i)........................................................................................................... 8

§ 1956(a)(2)(A)............................................................................................................ 11

§ 1956(c)(7).................................................................................................................... 8

§ 1956(h) ...................................................................................................................... 15

§ 1961(1) ........................................................................................................................ 9

§§ 1961, et seq. ............................................................................................................. 16 

Other Authorities

Fed. R. Crim. P. 29 ...................................................................................................... 3, 5, 6

Local Civil Rule 39.2(b).................................................................................................... 17

U.S. Const. amend I............................................................................................................. 9

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3902126.2 1

DEFENDANT BRUNST’S SUPPLEMENTAL BRIEF IN SUPPORT OF 

MOTION FOR ACQUITTAL UNDER RULE 29

I. INTRODUCTION

Following the conclusion of the Government’s case, Brunst moved for a judgment 

of acquittal on all counts. The Court took the matter under submission and has not yet 

ruled. Meanwhile, a jury has acquitted Brunst of all 50 counts of violating the Travel Act, 

while convicting him of conspiracy to violate the Travel Act and the money laundering 

counts. The convictions are legally unsupportable and based on insufficient evidence. This 

brief supplements the arguments previously presented (and currently pending before the 

Court) in light of the government’s closing argument and the verdict.

Travel Act Conspiracy (Count 1). The acquittals support two of the bases for 

dismissing Count One. First, the object of the conspiracy—“to obtain money”—cannot 

form the basis for a conspiracy conviction. Yet in its closing, the Government told the jury 

that there are multiple objects of the conspiracy and the object they should convict on is 

“to make money.” The Ninth Circuit requires the object of a conspiracy to be a federal 

offense, yet Brunst was convicted of a conspiracy that did not meet this black-letter

requirement. 

Second, this Court has held—and made clear in the jury instructions—that the 

Travel Act conspiracy is bounded by the 50 advertisements charged in Counts 2 to 51, as 

to which Brunst was acquitted. The Government failed to present sufficient evidence that 

Brunst entered into an agreement with anyone to violate the Travel Act in those 50 specific 

instances. Brunst’s acquittal confirms his lack of intent to violate the Travel Act as to the 

ads which were charged and as to which proof was presented at trial. There also was 

insufficient evidence at trial that he intended for anyone else to violate the Travel Act 

through the publication of any of the 50 ads.

Concealment Money Laundering (Counts 53-62). First, in light of the acquittals, 

there was no specified unlawful activity that supported the jury’s verdict. The charged 

wires were sent between May 18, 2016 and August 31, 2016. There were no Travel Act 

convictions of any defendant after the sale of Backpage in April 2015. And there were

none whatsoever against Brunst. The only Travel Act-related conviction of Brunst was for

Case 2:18-cr-00422-DJH Document 2007 Filed 12/04/23 Page 6 of 23
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3902126.2 2

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a Section 371 conspiracy; Section 371, however, is not a “specified unlawful activity” that 

can support a money laundering conviction. Nor did the Government attempt to prove any 

specified Travel Act violation that could form the basis for these counts. 

Second, concealment money laundering requires that a given transaction be 

designed to conceal. Yet the only testimony on these transactions was Ferrer’s testimony 

that the legitimate purpose of the transactions was to make loan payments to the sellers of 

Backpage.

International Promotional Money Laundering (Counts 64-68). Here, 

promotional money laundering requires an intent to promote a specified Travel Act 

offense. The only evidence of “promotion”—as argued by the Government during 

closing—was the threadbare claim that funds that went to Cereus Properties were later

used for Backpage’s payroll. But the promotional money laundering statute is not a general 

expenditure statute. Instead, the Government is required to show that Brunst intended to 

promote Travel Act violations through these wire transfers, which it plainly failed to do.

And in any event, the only testimony on the “payroll” issue was from Quoc Thai, 

who (1) later admitted he did not investigate the purpose of any wire transfer and (2) failed 

to link any of the transfers in Counts 64-68 to Backpage’s payroll. Moreover, Ferrer 

testified that these wire transfers were merely loan payments tied to the sale of 

Backpage—no percipient witness said otherwise. 

Transactional Money Laundering (Counts 69-70, 78-84, and 86-93). First, the 

Government failed to prove the underlying specified unlawful activity as to these counts. 

Other than Counts 69 and 70, these counts all post-date any counts of conviction as to the 

Travel Act offenses. As to Counts 69 and 70, no attempt was made by the Government to 

tie the transfers in these counts to any substantive Travel Act violations (indeed, the 

transfer in Count 69 predates the earliest Travel Act count of conviction, Count 2).

Second, as to Counts 69-70 and 83-84, each of which concerns a personal 

transaction made by Lacey involving the transfer of money from a personal bank account 

to a title company, the Government failed to present any evidence regarding Brunst’s role 

Case 2:18-cr-00422-DJH Document 2007 Filed 12/04/23 Page 7 of 23
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3902126.2 3

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in Lacey’s personal transactions. That Lacey was not convicted on personal transactions he 

conducted, yet Brunst was, highlights the irrationality of the verdict on these counts. 

Conspiracy to Commit Money Laundering (Count 52). There was no evidence at 

trial of an agreement on Brunst’s part to commit (or for any alleged co-conspirator to 

commit) the substantive money laundering counts. The Government’s argument that there 

was an agreement to conceal Backpage from credit card companies and banks missed the 

mark. The Government never presented evidence that Brunst was part of a criminal 

agreement to conceal the source of funds as to any transaction from any financial 

institution referenced in the case. Nor did the Government present evidence that any 

alleged circumvention of a credit card ban related to a specific transaction alleged in the 

Indictment. Ultimately, the Government’s claim that tainted funds moved through various 

accounts falls well short of establishing that Brunst was part of a money laundering 

conspiracy. Indeed, the Government never even attempted to link a particular Travel Act 

violation to a particular wire transfer, let alone establish Brunst’s knowledge of such a 

violation or his intent to launder funds tied to such a violation.

Allen Charge. Lastly, following the Court’s Allen charge, the jury quickly moved 

from being deadlocked on 99 counts to reaching verdicts on every count as to every 

defendant other than Lacey. Defendants had objected at trial that in light of the jurors’ note 

and the length of time the jurors had been away from their lives, the charge would have an 

unduly coercive effect. In order to test the merits of Defendants’ objection, Defendants 

seek leave from the Court to question jurors. 

II. ARGUMENT

A. Legal Standard

Rule 29 provides that “the court on defendant’s motion must enter a judgment of 

acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. 

R. Crim. P. 29(a) (emphasis added). In ruling on a Rule 29 motion, “‘[t]he relevant 

question is whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

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beyond a reasonable doubt.’” United States v. Ionutescu, 752 F. Supp. 2d 1091, 1095 (D. 

Ariz. 2009) (quoting United States v. Alarcon–Simi, 300 F.3d 1172, 1176 (9th Cir. 2002)).

B. Brunst Must Be Acquitted on Count 1 (Travel Act Conspiracy).

1. The Government Argued to the Jury That the “Object” of the 

Conspiracy Was to “Make Money.”

In the Ninth Circuit, “a federal conspiracy conviction [cannot] be upheld when nonfederal offenses as well as federal offenses were submitted to the jury as objects of the 

conspiracy, and it [is] impossible to determine on which basis the jury convicted.” United

States v. Croft, 124 F.3d 1109, 1115 (9th Cir. 1997) (emphasis in original); United States

v. Manarite, 44 F.3d 1407, 1414 (9th Cir. 1995), as amended on denial of reh’g (Mar. 15, 

1995) (“Under 18 U.S.C. § 371, a single charge of conspiracy can have multiple objects, 

but each object alleged must constitute a federal offense.”); United States v. Bishop, 1 F.3d 

910, 911 (9th Cir. 1993) (“To prove a conspiracy, the government must prove that 

defendant entered into an agreement to accomplish an illegal objective.”).1

For example, in United States v. Johnson, 44 F. App’x 752, 754 (9th Cir. 2002), 

opinion amended on reh’g (Aug. 30, 2002), a case involving a conspiracy charge regarding 

interstate travel for the purpose of prostitution, the Ninth Circuit reversed a conspiracy 

conviction where there were “multiple objects” and one of the alleged objects was “not a 

federal offense.” Id. (noting that ‘“[t]o obtain the proceeds of prostitution from females the 

defendants had recruited to work as prostitutes,’ is not a federal offense”). The Court held

that because the jury returned general verdict forms, “[w]e cannot determine which 

‘object’ of the conspiracy the jury relied on in reaching its verdict. Because the jury could 

have relied on object number three,” which was not a federal offense, “the conspiracy 

conviction is legally unsupportable.” Id.

Here, the Indictment alleges that the object of Count 1 was to “obtain money”

(Dkt. 230 at ¶ 197)—which plainly is not a federal offense. In asking the jury to convict 

Brunst, the Government argued during closing that “Defendant[s] became members of the 

1 Unless otherwise noted, internal citations and quotation marks have been omitted.

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conspiracy knowing of at least one of its objects and intending to help accomplishment—

accomplish it. What is the object in this case? Well, one of the object is to make money. 

And they did.” 10/27/23 PM Tr. at 6:19-23. In effect, the Government made two 

statements to the jury: (1) there are multiple “objects” of the alleged Travel Act conspiracy 

and (2) the object on which the jury should convict is “to make money.”

2

In the Ninth 

Circuit, the Travel Act conspiracy conviction therefore cannot stand against Brunst

because it is impossible to know whether the jury convicted based on the legally 

insufficient object identified by the Government both in the Indictment and closings.

The Government is likely to argue that in connection with the conspiracy jury 

instruction, this Court held that it was unnecessary to modify the term “object” with 

“illegal” because “under the [C]aplan case, the additional guidance there is that a 

conspiracy is defined as a combination of two or more persons to accomplish some 

unlawful purpose or some lawful purpose by unlawful means.” 10/26/23 AM Tr. at 18-19

(citing United States v. Caplan, 633 F.2d 534, 542 (9th Cir. 1980) (“A conspiracy is 

defined as a combination of two or more persons to accomplish some unlawful purpose, or 

some lawful purpose by unlawful means.”)). This argument is unavailing in connection 

with Rule 29. First, the Court’s ruling was limited to the context of whether the Court 

should depart from the model Ninth Circuit instruction on conspiracy, which does not use 

the term “illegal” to modify “object” (presumably because the case law holds that the 

object must be a federal offense). But that does not mean a perfectly legal object is 

sufficient to sustain a conviction. Second, the Government did not argue in closing that the 

object of the conspiracy was to make money through the unlawful means of committing 

Travel Act violations. The Government instead sought to convict Brunst of Count 1 based 

2 See also 11/01/23 AM Tr. at 43:20-24 (“They knew the only way to actually prevent 

the promotion of prostitution enterprises was to do one thing, shut the site down, but they 

didn’t want to do that because of the object of the conspiracy, which was to make 

money.”); id. at 57:10-11 (“It would reduce the object of the conspiracy, which was to 

make money.”).

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solely on the purported object of making money.3

2. The Government Presented Insufficient Evidence Regarding an 

Agreement to Violate the Travel Act.

“To prove a conspiracy under 18 U.S.C. § 371, the government must establish three 

elements: “(1) an agreement to engage in criminal activity, (2) one or more overt acts taken 

to implement the agreement, and (3) the requisite intent to commit the substantive crime.”

United States v. Kaplan, 836 F.3d 1199, 1212 (9th Cir. 2016) (citations and quotations 

omitted).

As an initial matter, the law of the case is that Count 1 of the Indictment is limited 

to a conspiracy concerning the 50 ads charged in Counts 2-51:

Defendants’ suggestion that the SI improperly indicts a ‘boundless 

conspiracy to facilitate prostitution in general’ (Reply at 4), however, 

mischaracterizes the charges against them. Such a claim is simply untrue. 

They were not indicted for facilitating the amorphous notion of 

‘prostitution.’ They were indicted for facilitating (via publishing ads) on 

fifty distinct occasions where prostitutes, prostitution-related businesses, or 

other groups were involved in the business of prostitution.

Dkt. 946 at 13; see also Final Jury Instructions at 24 (“First, beginning in or around 2004, 

and ending on or about April 2018, there was an agreement between two or more persons 

to commit at least one Travel Act offense as charged in Counts 2-51 of the indictment by 

promoting, or facilitating the promotion of, a business enterprise or enterprises involving 

prostitution offenses in violation of the laws of the State in which they were committed, in 

violation of 18 U.S.C. § 1952(a)(3)(A) and § 1952(b)(i)(1)”) (emphasis added).4

3 And even in Caplan, the Ninth Circuit observed that the “unlawful purpose” of the 

conspiracy was “the importation, possession and distribution of marijuana,” as opposed to 

making money or making money by distributing marijuana. United States v. Caplan, 633 

F.2d 534, 543 (9th Cir. 1980).

4 The Government’s theory that the 50 charged ads are merely “examples” is plainly 

wrong. The Government will presumably continue to point to the rest of pages 13-16 of 

Dkt. 946 in support of this claim, as they did during oral argument on the Rule 29 motion. 

But the discussion from the Court in this respect merely indicates that the Indictment’s 

allegations sufficiently support the existence of business enterprises “on fifty distinct 

occasions,” i.e., the fifty charged ads. Id. at 14. The Government’s strained reading of this 

language should be rejected. Nor does the relevance of evidence regarding alleged 

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Against this backdrop, the Government failed to establish that Brunst was in 

a conspiracy with anyone to commit Travel Act violations as to the 50 charged ads. The 

Government presented no evidence (1) of any agreement as to the 50 charged ads 

involving Brunst or (2) that Brunst specifically intended to violate (or intended for Ferrer 

or any other alleged co-conspirator to violate) the Travel Act through these 50 charged ads. 

Evidence that, for example, Ferrer had an arrangement with The Erotic Review (“TER”)

and so-called super-posters, or that Backpage’s moderation function was designed to 

facilitate prostitution, is insufficient to establish these elements. That is because there was

no evidence that (1) any of the 50 ads was the product of any such purported prostitution 

marketing strategies or (2) Brunst had an agreement with Ferrer or others to violate the 

Travel Act as to any business enterprise associated with the 50 ads through these alleged

marketing strategies. Ferrer admitted that Brunst had no direct involvement with regard to:

• Dealings with David Elms of TER;

• Moderation;

• Aggregation;

• Advertisers who posted on the site;

• The reviewing of advertisements;

• Dealings with so-called super-posters;

• Dealings with NCMEC;

• Dealings with Attorneys General;

• Dealings with the U.S. Senate;

• Dealings with law enforcement and responses to subpoenas; and

• Dealings with PR firms and the press.

09/27/23 AM Trial Tr. at 87:23-93:16.

The Government’s case in this respect primarily focused on annual Backpage 

budget meetings at which Brunst was present. But Brunst’s mere presence at a budget 

meeting where a meeting agenda may have referenced TER, or where a budget line item 

may have concerned marketing, plainly is not enough to establish either an agreement or 

the requisite intent to violate the Travel Act. Indeed, Ferrer testified that Brunst’s role at 

these meetings was merely to look at expenses and revenue, and that the “main discussion”

marketing strategies during the 14-year period of the alleged conspiracy broaden the 

Indictment’s Travel Act charges to more than the 50 ads. The relevance of evidence and 

the scope of the Indictment’s charges are two distinct issues. 

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on Brunst’s part would concern executive salaries. 09/27/23 PM Tr. at 14:3-25. None of 

this comes close to establishing Brunst’s participation in a criminal conspiracy. See Final 

Jury Instructions at 24 (“It is not enough, however, that they simply met, discussed matters 

of common interest, acted in similar ways, or perhaps helped one another. You must find 

that there was a plan to commit at least one of the crimes alleged in the indictment as an 

object of the conspiracy with all of you agreeing as to the particular crime, i.e. the Travel 

Act violation, which the conspirators agreed to commit.”); see also United States v.

Ionutescu, 752 F. Supp. 2d 1091, 1102 (D. Ariz. 2009) (“That the incidental effects of 

a defendant’s actions further a conspiracy does not confer upon the defendant the mens rea

of accomplishing the object of the conspiracy.”) (citing United States v. Licciardi, 30 F.3d 

1127, 1132 (9th Cir. 1994)).

C. Brunst Must Be Acquitted of the Money Laundering Convictions

(Counts 52-62, 64-70, 78-84, and 86-93).

1. Concealment Money Laundering (Counts 53-62)

a. The Government Failed to Prove Specified Unlawful 

Activity.

In order “[t]o convict a person for money laundering under 18 U.S.C. 

§ 1956(a)(1)(B)(i), the government must prove that (1) the defendant conducted or 

attempted to conduct a financial transaction; (2) the transaction involved the proceeds of 

unlawful activity; (3) the defendant knew that the proceeds were from unlawful activity; 

and (4) the defendant knew ‘that the transaction [was] designed in whole or in part—(i) to 

conceal or disguise the nature, the location, the source, the ownership, or the control of the 

proceeds of specified unlawful activity.’” United States v. Wilkes, 662 F.3d 524, 545 (9th 

Cir. 2011). Critically, the statute requires that the subject financial transaction “in fact 

involves proceeds of specified unlawful activity.” 18 U.S.C. § 1956(a)(1); see also Final 

Jury Instructions at 41 (“the Defendant conducted a financial transaction involving 

property that represented the proceeds of a violation of the Travel Act.”).

The specified unlawful activity underlying a money laundering violation cannot be 

conspiracy to violate the Travel Act. See 18 USC § 1956(c)(7) (no reference to conspiracy 

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or Travel Act); 18 USC 1961(1) (only refers to 18 USC § 1952). In other words, the 

specified unlawful activity here must be substantive violations of the Travel Act. But the 

only counts of conviction as to Travel Act violations are the ones on which Spear was 

convicted, Counts 2 to 18, each of which pre-date the sale of Backpage and the 

transactions identified in Counts 53 to 62 by at least a year (and there was no evidence that 

any fees from the ads in Counts 2 to 18 were part of the subject transactions).

5 Therefore, 

there is no specified unlawful activity that the jury could have found that forms the basis 

for Counts 53 to 62. Indeed, there are no substantive Travel Act counts in the Indictment 

that concern ads posted from May 18, 2016, to August 31, 2016, the timeframe of the 

concealment money laundering counts of conviction. 

The Government will likely argue that Ferrer’s general testimony that escort ads 

were all prostitution ads forms the basis for Counts 53 to 62. But that generality is not 

proof a specified unlawful activity to form the basis for a money laundering count. And 

that position would be completely at odds with the presumptions required by the First 

Amendment. See Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster

Bay, 868 F.3d 104, 114 (2d Cir. 2017) (“[T]he First Amendment offers no protection to 

speech that proposes a commercial transaction if consummation of that transaction would 

necessarily constitute an illegal act. However, if, as here, there are plausible ways to 

complete a proposed transaction lawfully, speech proposing that transaction ‘concerns 

lawful activity’ and is therefore protected commercial speech.”) (emphasis added).

Moreover, there is no evidence of any such violations during the timeframe of these 

10 counts and no evidence of any budget meetings, TER marketing, or the like during this 

time period involving Brunst. The Travel Act is a specific intent crime that requires the 

intent to “facilitate an activity which the accused knew to be unlawful under state law,”

specifically business enterprises involved in prostitution. Dkt. 946 at 14 (quoting United 

5 The ads in Counts 2 to 18 are dated September 10, 2013, to February 26, 2015. The 

transactions in Counts 53 to 62 are dated May 18, 2016, to August 31, 2016.

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States v. Polizzi, 500 F.2d 856, 876–77 (9th Cir. 1974)); see also United States v. Gibson

Specialty Co., 507 F.2d 446, 449 (9th Cir. 1974) ((“[T]he prosecutor must show that the 

manufacturer in some significant manner associated himself with the purchaser’s criminal 

venture for the purpose of its advancement. Were we not to define intent in the travel act in 

this manner, the act would be plagued by the very overexpansiveness which Congress 

sought to rule out by inclusion of an express mens rea requirement.”). Further, “one cannot 

intend to promote/facilitate a business enterprise one does not know exists.” Dkt. 946 at 

15-16.

But the Government did not prove (or even seek to prove) (1) the existence of other 

paid ads that allegedly form the basis for Travel Act violations during the time period of 

the transactions alleged in Counts 53-62, (2) that any such ads in fact establish a Travel 

Act violation, or (3) that any fees paid for such ads were part of the subject transactions. 

Indeed, the only analysis Quoc Thai provided in terms of source of revenue pertained to 

the October 2010 to November 2012 time period. 10/17/23 AM Tr. at 54-55. And in any 

event, testimony that a majority of Backpage’s revenue came from adults ads during any 

time period clearly falls short of establishing the existence of a Travel Act violation.

b. There Was No Evidence That the Transactions in 

Counts 53-62 Were Designed to Conceal.

Under a concealment money laundering charge, “[t]he statutory text makes clear, 

however, that a conviction under this provision requires proof that the purpose—not 

merely effect—of the transportation was to conceal or disguise a listed attribute.”

Regalado Cuellar v. United States, 553 U.S. 550, 567, 128 S. Ct. 1994, 2005, 170 L. Ed. 

2d 942 (2008); see also United States v. Singh, No. 2:14-CR-00648-CAS-9, 2020 WL 

2768848, at *3 (C.D. Cal. May 27, 2020) (“Although Cuellar concerned the money 

laundering statute’s transportation prong, rather than Section 1956(a)(1)(B)(i), the statute’s 

transaction prong, various circuit courts of appeal have nonetheless specifically applied 

Cuellar in cases involving the money laundering statute’s transaction prong.”) (collecting 

cases, including United States v. Sun, 673 F. App’x 729, 733 (9th Cir. 2016)).

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Here, the only testimony as to the transactions in Counts 52 to 63 came from Ferrer, 

who said that payments from Website Technologies to Cereus Properties were loan 

payments in connection with the sale of Backpage. See 09/21/23 PM Tr. at 91:1-13 

(“Cereus Properties collected the interest and debt payments from the $600 million loan”). 

There was no testimony that the sale of Backpage and associated loan was consummated

for the purpose of concealing from financial institutions the source of the funds. 

2. The Government Failed to Prove Actual “Promotion” as to the 

International Promotional Money Laundering Counts of 

Conviction (Counts 64-68).

International promotional money laundering requires that “the defendant 

transported, transmitted, or transferred money from the United States to another country, 

‘with the intent to promote the carrying on of specified unlawful activity.’” Prigge v. USA, 

No. CR-13-01363-PHX-GMS, 2018 WL 513380, at *7 (D. Ariz. Jan. 23, 2018), report

and recommendation adopted sub nom. United States v. Prigge, No. CR-13-01363-PHXGMS, 2018 WL 4846544 (D. Ariz. Oct. 5, 2018) (quoting 18 U.S.C. § 1956(a)(2)(A)).

Here, the Government’s burden at trial was to prove that Brunst “acted with the intent to 

promote a violation of the Travel Act.” Final Jury Instructions at 42. Further, “[t]he crime 

of money laundering promotion is aimed not at maintaining the legitimate aspects of 

a business nor at proscribing all expenditures of ill-gotten gains, but only at transactions 

which funnel ill-gotten gains directly back into the criminal venture.” United States v.

Brown, 553 F.3d 768, 786 (5th Cir. 2008).

The Government’s only potential hook for “promotion”—as articulated by the 

Government during its closing argument—is Quoc Thai’s testimony that “Cereus 

Properties appears to be an entity used to pay the various payroll expenses.” 10/27/23 AM 

Tr. at 26:5-13. The Government pointed to this testimony in closing and argued that “[t]his 

is promotional money laundering. Plowing the money back in or the activity related to 

Backpage.com.” Id. This theory falls well short of establishing intent to promote a Travel 

Act violation. 

Courts have reversed promotional money laundering convictions based on the 

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generic “expenditure” theory advanced by the Government here:

The problem with the government’s position is that it ignores the intent

aspect of the promotion element. Section 1956(a)(1)(A)(i) is not satisfied by 

a showing that a financial transaction involving the proceeds of specified 

unlawful activity merely promoted the carrying on of unlawful activity. The 

provision has a specific intent element: The government must show that the 

“dirty money” transaction was conducted “with the intent to promote the 

carrying on of specified unlawful activity.

United States v. Brown, 186 F.3d 661, 669-670 (5thCirc. 1999) (emphasis in original) 

(alleging that the defendant “used the funds from the fraud at SGC to pay SGC’s operating 

expenses, enabling the dealership to defraud more customers.”). But the Government 

presented no evidence that the five wire transfers at issue (1) involved funds later used for 

Backpage payroll expenditures, (2) that Brunst made any such expenditures with the 

subject funds, or (3) that Brunst made such expenditures with the specific intent to 

promote a Travel Act violation, i.e., the intentional promotion of a business enterprise 

involved in prostitution. 

Indeed, the only Travel Act violations that the Government sought to prove during 

the time period covered by Counts 64 to 68 (August 5, 2016, to November 15, 2016) were 

Counts 28 to 31 (November 2016), as to which there were no convictions. Nor was there 

evidence that anyone else (like Ferrer) committed these violations. And as discussed 

above, conspiracy is not a recognized specified unlawful activity. In sum, there was zero 

evidence at trial connecting the wire transfers in Counts 64 to 68 to the “promotion” of 

Travel Act violations tied to ads published on Backpage.

Additionally, the only witness to advance this “payroll” theory was Quoc Thai, who

admitted that he never looked at the purpose of a given wire transfer. 10/17/23 AM Trial 

Tr. at 32 (“Q. Okay. And is it fair to say that as to the other counts reflected in these 

flowcharts you also did not look at the underlying purpose of those transfers; correct?

A. That’s correct, yes.”).6 Further, Ferrer—the only percipient witness to testify to these 

6

Indeed, the Backpage Investigation Report that the Government belatedly produced 

shows that in 2017 (around the time of these promotional money laundering counts), 

a Prosperity Bank account held by Posting Solutions and operated by Michael Gage 

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transfers—admitted that the transfers were merely loan payments in connection with the 

sale of Backpage. 09/21/23 PM Tr. at 93:20-23 (Q. “And what was the purpose to go from 

AD Tech BV to Cereus” A. “It was to make interest and principal payments on the smaller 

note.”) (emphasis added). 

The promotional money laundering statute is not a “money spending statute,” yet 

that is precisely how the Government seeks to apply it here. Brown, 186 F.3d at 670 

(“Strictly adhering to the specific intent requirement of the promotion element of 

§ 1956(a)(1)(A)(i) helps ensure that the money laundering statute will punish conduct that 

is really distinct from the underlying specified unlawful activity and will not simply 

provide overzealous prosecutors with a means of imposing additional criminal liability any 

time a defendant makes benign expenditures with funds derived from unlawful acts.”). The 

lack of a nexus between the transactions in Counts 64 to 68 and the promotion of any 

Travel Act violations is fatal to these charges.

3. Transactional Money Laundering (Counts 69-70, 78-84, 

and 86-93)

a. The Government Failed to Prove Any Specified Unlawful 

Activity Underlying These Counts.

Under a charge of transactional money laundering, the Government must prove that 

the “property, was in fact, derived from violations of the Travel Act.” Final Jury 

Instructions at 44; United States v. Messer, 197 F.3d 330, 341 (9th Cir. 1999). Much like 

the concealment money laundering counts of conviction, the Government has failed to 

establish specified unlawful activity, i.e., Travel Act violations, as to the transactional 

money laundering counts of conviction. As to Counts 78-84 (transactions dated January 

2016 to July 2016) and 86-93 (transactions dated August 2016 to October 2016), each of 

these Counts post-dates the April 2015 sale of Backpage. As discussed above (supra at 8-

10), (1) there were no counts of conviction as to the substantive Travel Act offenses 

(Backpage’s CFO after the sale of Backpage), was used to pay Backpage’s payroll. 

Dkt. 1967 at 6.

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(Counts 2-51) after April 2015; (2) conspiracy to violate the Travel Act is not a cognizable 

specified unlawful activity; and (3) the Government failed to put on sufficient evidence of 

other Travel Act violations underlying these specific transactional money laundering 

counts.

As to Counts 69 (transaction dated August 21, 2013) and 70 (transaction dated 

September 13, 2013), which pre-date the sale of Backpage, the Government failed to link 

these transactions to any Travel Act violation. The only Travel Act count of conviction 

around this time period is Count 2 (Spear), which reflects an ad dated September 10, 2013. 

As an initial matter, there was no evidence that any fee was paid for the ad in Count 2 or 

that any such fee is reflected in the transactions in Counts 69 or 70. Further, the transaction 

in Count 69 pre-dates the ad in Count 2, meaning there is no possibility that any fee from 

the ad in Count 2 was included in the transaction in Count 69. And the Government proved 

no other substantive Travel Act violations that could form the basis for these two counts. 

b. The Government Failed to Prove Brunst’s Involvement as

to Counts 69-70 and 83-84 (Lacey Transactions).

As to Counts 69-70 and 83-84, each of these counts concerns a personal transaction 

made by Lacey from one of his bank accounts to a title company. Counts 69-70 concern 

a payment to Stewart Title in connection with a Sedona property, and Counts 83-84 

concern a payment to Fidelity Title in connection with a San Francisco property. Dkt. 230 

at 59-60. The Government presented no evidence at trial that Brunst had any involvement 

in these transactions. There was no evidence that Brunst (1) was a signer on any of Lacey’s 

personal accounts, (2) effectuated any of these transfers, or (3) even knew about these 

transactions. That Lacey himself was not convicted on any of these counts highlights the 

absurdity of the verdict here. In other words, no rational juror could find that Lacey lacked 

knowledge regarding a personal transaction he made to buy real property, while Brunst

somehow had such knowledge. 

The Government may argue that Brunst was CFO of an entity (Cereus Properties 

and/or Camarillo Holdings) that initially transferred the funds to Lacey (as shareholder 

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distributions) that were then used in Counts 69-70 and 83-84 for Lacey’s personal use. But 

the former transfers (from Cereus or Camarillo to Lacey) are not the transactions at issue. 

Rather, the transactions that are the subject of these counts are the personal transactions 

Lacey made as alleged in the Indictment (i.e., transactions involving criminally derived 

property of $10,000 or more).

4. Brunst Should be Acquitted of Conspiracy to Commit Money 

Laundering (Count 52).

To convict a defendant of money laundering conspiracy under 18 U.S.C. § 1956(h), 

the Government must prove: (1) “There was an agreement to commit money laundering;”

(2) “The defendant knew the objective of the agreement;” and (3) “The defendant joined

the agreement with the intent to further its unlawful purpose.” United States v. Jaimez, 45 

F.4th 1118, 1124 (9th Cir. 2022), cert. denied, 143 S. Ct. 1038, 215 L. Ed. 2d 198 (2023). 

Here, the object of the alleged conspiracy was to commit the substantive money laundering 

offenses alleged in the Indictment. See Dkt. 230 at ¶ 203(a)-(e). 

As set forth above, Brunst himself did not engage in any money laundering. And

there is insufficient evidence supporting an agreement on his part to commit any of the 

substantive money laundering offenses. The Government’s evidence in this respect

primarily concerned Backpage’s dealings with credit card companies, the formation of 

Website Technologies, and the termination of bank accounts. But these arguments—which 

were untethered to any specific transaction—are red herrings that divert attention away 

from the precise manner in which the law defines money laundering (whether 

transactional, promotional, or in the form of concealment), as detailed above. The 

Government did not even attempt to prove, for example, that (1) Website Technologies 

was set up to deceive a bank that wired or received one of the wires alleged in the 

Indictment or that (2) any purported attempt to circumvent an AmEx credit card ban bore 

any relation to one of the transactions alleged in the Indictment. In short, there is no 

evidence of any agreement on Brunst’s part to: (1) conceal from a bank or credit card 

company the source of proceeds used in any specific transaction alleged in the Indictment; 

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(2) promote Travel Act violations through a specific transaction alleged in the Indictment; 

or (3) engage in an alleged transaction over $10,000 that was in fact derived from a Travel 

Act violation.

Ultimately, the Government’s money laundering conspiracy theory boils down to 

the claim that “dirty money” moved amongst various accounts. But that plainly is not 

enough to sustain a money laundering conspiracy conviction. A money laundering 

conspiracy charge requires a showing of (1) specified unlawful activity and 

(2) a defendant’s knowledge that the subject proceeds resulted from the specified unlawful 

activity. See United States v. Chao Fan Xu, 706 F.3d 965, 986 (9th Cir. 2013), as amended

on denial of reh’g (Mar. 14, 2013), and abrogated on other grounds by RJR Nabisco, Inc.

v. Eur. Cmty., 579 U.S. 325, 136 S. Ct. 2090, 195 L. Ed. 2d 476 (2016) (“To support 

a conviction on the RICO conspiracy charge in count one and the money laundering 

conspiracy charge in count two, the government was required to prove that the property at 

issue (the funds from the Bank of China) was derived from a specified unlawful activity.”); 

United States v. Medina, 485 F.3d 1291, 1300–01 (11th Cir. 2007) (“For these [money 

laundering] counts to succeed, the government must prove that the proceeds were derived 

from a specified unlawful activity, and that the defendant had knowledge that the proceeds 

resulted from said unlawful activity.”) (involving conspiracy to commit money laundering) 

(citing United States v. Awan, 966 F.2d 1415, 1434 (11th Cir. 1992); United States v. 

Nattier, 127 F.3d 655, 658 (8th Cir. 1997); United States v. Henry, 325 F.3d 93, 103 (2d 

Cir. 2003)).

But the Government never attempted to link any particular Travel Act violation to 

a given “money laundering” transaction, let alone establish that Brunst (1) had knowledge 

that any such funds resulted from a Travel Act violation or (2) intended to launder such 

funds. Calling Brunst the “bag man” or saying that Brunst “knows where every dime is 

coming from” are pejorative statements that fall woefully short of establishing his 

participation in a money laundering conspiracy and only serve to highlight the complete 

lack of a case against him in this respect. 10/26/23 PM Trial Tr. at 54:12-18.

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D. The Court’s Allen Charge May Have Created Reversible Error.

The first communication of a possible deadlock occurred on the second day of 

deliberations. See 11/08/23 Tr. at 4:7-10 (“What happens if we are unable to reach an 

unanimous agreement on a count?”). Then, on November 14th, jurors 13 and 15 confirmed

that the jury was deadlocked. 11/14/23 Tr. at 17:5-13 (“It is unfortunate that we have been 

in deliberations for days now and I feel that people’s personal feelings, emotions & what if 

opinions have brought us to a standstill. There has only been (1) charge that we have 

finally gotten all members of the jury to agree on. I feel that this has become a hung jury & 

we were not able to perform our required duties as jurors.”). 

Allen charges are permissible “in all cases except those where it’s clear from the 

record that the charge had an impermissibly coercive effect on the jury.” United States v.

Banks, 514 F.3d 959, 974 (9th Cir. 2008). But where the court inquires into the numerical 

division of the jury, or even becomes inadvertently aware of the division, the charge is 

“per se coercive and requires reversal.” United States v. Williams, 547 F.3d 1187, 1205 

(9th Cir. 2008). Here, the factual circumstances suggest that—after at least four days of the 

jury apparently being deadlocked—Jurors 13 and 15 may have been holdouts and the Allen 

charge had the effect of inducing findings of guilt as to Brunst. Indeed, these two jurors 

suggested that further discussions would likely be fruitless. Under the “totality of the 

circumstances,” the Allen charge may have been improper here. Jiminez v. Myers, 40 F.3d 

976, 980–81 (9th Cir. 1993).

The merit of Brunst’s objection here will be either bolstered of undermined if we 

learn whether these two jurors were in fact holdouts, and whether they felt pressured by the 

Allen instruction. Brunst requests that the Court permit counsel to interview the jurors or 

serve targeted interrogatories to develop the record regarding the effect of the Allen charge. 

Brunst asks for such permission given Local Civil Rule 39.2(b), which concerns contact 

with jurors following the conclusion of trial.

III. CONCLUSION

For the foregoing reasons, Brunst respectfully requests that the Court enter 

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a judgment of acquittal as to Counts 1, 52-62, 64-70, 78-84, and 86-93.

DATED: December 4, 2023 Respectfully submitted,

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

Bird, Marella, Boxer, Wolpert, Nessim,

Drooks, Lincenberg & Rhow, P.C.

By: /s/ Gary S. Lincenberg 

Gary S. Lincenberg 

Attorneys for Defendant John Brunst

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