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GARY M. RESTAINO

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 

NICOLE M. ARGENTIERI

Acting Assistant Attorney General Criminal Division, U.S. Department of Justice 

AUSTIN M. BERRY (Texas Bar No. 24062615, austin.berry2@usdoj.gov) 

U.S. Department of Justice 

Child Exploitation and Obscenity Section 

1301 New York Avenue, NW, 11th Floor 

Washington, D.C. 20005 

Telephone (202) 412-4136 

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. 

CR-18-422-PHX-DJH 

UNITED STATES’ RESPONSE TO 

DEFENDANTS’ FIRST 

SUPPLEMENT TO MOTION TO 

DISMISS (Doc. 1972)

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SUMMARY OF ARGUMENT

Defendants’ supplemental motion to dismiss or for other relief should be denied. 

The supplement is based on the United States’ recent disclosure of 18 emails from Carl 

Ferrer relating to the forfeiture phase of this case. The emails date from April to August 

2018, and they all involve Ferrer’s post-plea assistance with the United States’ efforts to 

locate Backpage-related assets for possible seizure and forfeiture. The Ferrer forfeiture 

emails do not concern the subject matter of Ferrer’s testimony during the guilt phase of the 

trial. Moreover, the lion’s share of the information in the emails had previously been 

disclosed to Defendants in other, more detailed documents, and Defendants thoroughly 

cross-examined Ferrer at trial. Although under the United States’ broad disclosure policies 

these emails would have likely been turned over earlier, their disclosure was not required 

under the Jencks Act during the trial phase of this case. Even if otherwise, the United 

States’ earlier non-disclosure of the Ferrer forfeiture emails was due entirely to 

inadvertence, and the United States promptly produced the emails upon learning of them. 

For these and other reasons explained below, the United States has conscientiously 

complied with its discovery and disclosure obligations in this case—and Defendants’ 

requests for the extreme sanctions of dismissal or striking testimony should be denied. 

FACTUAL BACKGROUND

A. The United States Promptly Disclosed the Ferrer Forfeiture Emails Upon 

Learning They Had Not Been Produced 

On Thursday, November 9, 2023 Defendant Brunst orally moved to dismiss the case 

based on an alleged Jencks violation related to Quoc Thai. (Docs. 1958, 1966, 1967.) The 

Court ordered briefing by Monday, November 13, 2023, at noon. (Doc. 1958.) The United 

States immediately started preparing an exhibit, later filed at Doc. 1966-7, comparing the 

asset tracing document at issue (Doc. 1966-4) to seizure warrant affidavits filed in 

California federal court in 2018 by Postal Inspector Lyndon Versoza (Docs. 1966-1, 1968-

1, 1968-2.) These affidavits were disclosed in this case in 2018. (Docs. 1966-5, 1966-6.)

In preparing Doc. 1966-7, the United States noticed a reference in one of the 2018 

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affidavits to email communications between Inspector Versoza and Carl Ferrer. (Doc. 

1968-2 at 59 (“Following [an] in-person interview [on April 17-18, 2018], I also have 

spoken with Ferrer on the phone and communicated via email.”). Because the prosecution 

team did not immediately recall whether the referenced emails had been disclosed as part 

of the several million documents produced in this case since 2018, the prosecution team 

asked Inspector Versoza to search his files for the referenced emails. 

On November 9, 2023, Inspector Versoza identified a sub-folder on his laptop titled 

“Emails re Carl” that was contained in his “Forfeiture” folder. Within that sub-folder he

located another sub-folder titled “Saved.” Within the “Saved” sub-folder there were 18 

emails between Versoza and Ferrer (the “Ferrer forfeiture emails”). The emails were saved 

in a manner indicating to Inspector Versoza they had been previously produced. His emails 

are automatically deleted unless he separately saves them to his computer, so he generally 

only saves emails when he plans on producing them in discovery. Because he had saved 

the Ferrer forfeiture emails, he believed they had been produced.

The prosecution team continued working through the weekend on its response to 

Defendants’ motion to dismiss. On Monday, November 13, prosecutors asked IRS-CI 

Special Agent Richard Robinson to search the Relativity database of discovery to 

determine whether the Ferrer forfeiture emails had been produced. These searches require

some work due to the sheer size of discovery—over 11 million pages.

That evening, SA Robinson searched Relativity for Inspector Versoza’s email 

address “(laversoza@uspis.gov)” and “Carl.” The search yielded two emails between 

Inspector Versoza and Ferrer relating to the seizure of Backpage’s servers in April 2018. 

The next day, Tuesday, November 14, Inspector Versoza shared the Ferrer forfeiture 

emails with the prosecution team, and SA Robinson reported that he couldn’t find these 

emails in the Relativity database. The prosecution team immediately determined that the 

Ferrer forfeiture emails should be disclosed because they were arguably Jencks for the 

then-upcoming forfeiture trial, and the United States wanted to disclose them as soon as 

the trial team became aware of their existence. AUSA Rapp sent an email to defense 

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counsel at 12:02pm that tried to attach the emails. (Nov. 14, 2023 email from K. Rapp to 

defense counsel, attached as Exhibit 1 at 2.) Due to the size of the attachments, that email 

failed to send. Two hours later, the United States notified the defense that the emails had 

been uploaded to USAfx—an application the United States uses for document productions. 

B. While The Ferrer Forfeiture Emails Did Not Relate To Ferrer’s Trial 

Testimony; The Lack of Prior Disclosure Was Entirely Inadvertent 

Inspector Versoza’s main role in the Backpage investigation concerned asset 

forfeiture. He was the affiant on multiple seizure warrants (Docs. 1966-1, 1968-1, 1968-2) 

and the verified civil forfeiture complaint (Doc. 166-2) in the Central District of California. 

The Ferrer forfeiture emails concerned asset forfeiture. In his plea agreement, Ferrer 

agreed to provide forfeiture assistance to the United States:

b. Forfeiture Assistance: The defendant stipulates and agrees that, upon 

entry of his guilty plea, he will take all steps within his power to forfeit to the 

United States all corporate assets and other property owned or controlled by 

Website Technologies, LLC (“Website Technologies”), which owns and 

operates the Backpage website, as well as all corporate assets and other 

property owned or controlled by Backpage.com [and related entities]. Such 

steps shall include, but not be limited to, agreeing to the forfeiture of the . . . 

bank accounts, cryptocurrency, and other financial instruments owned or 

controlled by such entities. . . . 

(United States v. Ferrer, 18-CR-464-DJH, Plea Agreement, Doc. 7-2 at ¶ 3(b).) 

The 18 Ferrer forfeiture emails all involve communications concerning assets that 

Inspector Versoza reviewed for possible identification and inclusion in his asset seizure

warrant affidavits and/or the civil forfeiture complaint that he verified.1 

Inspector Versoza intended to disclose these communications. First, he saved the 

emails so that the United States Postal Inspection Service system wouldn’t automatically 

delete them. Second, he segregated these emails into a separate folder, which is consistent 

with how he categorizes emails that will be produced in discovery. Third, he understood 

that all emails exchanged with trial witnesses should at least be provided to the prosecutors 

1 Defendant Spear attached all the emails to his Supplemental Motion (Doc. 1972-1). To ease the Court’s review, the United States has included all of Ferrer’s actual statements 

from these emails in the attached chart. (Chart attached as Exhibit 2.) 

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to analyze whether the emails constituted Jencks/Brady/Giglio or otherwise should be 

disclosed. On January 8, 2019, AUSA Rapp sent an email to the prosecution team that 

attached a draft witness list. (Email from K. Rapp to Prosecution Team, attached as Exhibit 

3.) In the email, AUSA Rapp wrote, “We have two pressing deadlines: Jencks statements 

are due to defense by 2/25 and witness list (and preliminary exhibit list) are due on 4/1. We 

will review the witness list on 1/14 to determine if all statements have been forwarded to 

Relativity.” (Id.) Inspector Versoza understood, both through this email and his training 

and experience, that emails with trial witnesses should be disclosed to the prosecutors to 

make a determination about whether the communications should be produced—even when, 

as is the case here, the subject of the emails do not apply to the witness’s trial testimony. 

On November 9, 2023, when Inspector Versoza reviewed the sub-folder containing

the Ferrer forfeiture emails, he believed that those emails had been disclosed. It wasn’t 

until the evening of November 13, 2023, after SA Robinson searched the 11 million plus 

pages of discovery in Relativity that the United States confirmed that the Ferrer forfeiture 

emails had not been produced. When the United States learned this, it moved expeditiously 

to produce the documents, sending the Ferrer forfeiture emails to Defendants the next day.

C. The Ferrer Forfeiture Emails Cover Previously Disclosed Subjects

The Ferrer forfeiture emails cover subjects that have all been independently 

disclosed to Defendants. First, generally, the emails pertain to Ferrer’s stipulation to “take 

all steps within his power to forfeit to the United States all corporate assets and other 

property owned or controlled by” the entity that owned and operated Backpage, and related 

entities. (United States v. Ferrer, 18-CR-464-DJH, Plea Agreement, Doc. 7-2 at ¶ 3(b).)

Second, the majority of attachments in the Ferrer forfeiture emails related to 

attorney IOLTA accounts that the United States subsequently seized. This is documented 

in Inspector Versoza’s October 31, 2018 seizure warrant affidavit, which the United States 

filed in the Central District of California in 2018, produced to Defendants in 2018, and 

recently filed as Doc. 1968-1. Paragraphs 10(a)-10(q) outline 17 attorney IOLTA accounts 

that received Backpage proceeds. (Doc. 1968-1 at 10-15.) The affidavit provides more 

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detailed information about these accounts than the attachments to the Ferrer forfeiture 

emails. (Compare Doc. 1968-1 at 10-15 with Ex. 2.) 

Third, one of the specific issues Defendant Spear argues was prejudicial relates to 

the money paid to Ferrer’s lawyers at the Clarence Dyer & Cohen law firm (“Clarence 

Dyer”). Defendant Spear points to a series of prepayments to lawyers representing a variety 

of entities and individuals associated with Backpage, including $4 million to Clarence 

Dyer. (See Feder Law email to Chambers and counsel dated 11/15/23 attaching Defense 

Exhibit 6273, attached as Exhibit 4.) But that figure does not shed light on the amount of 

money that Ferrer’s lawyers were paid after Ferrer pleaded guilty and agreed to cooperate 

with the United States in April 2018. 

Here are the relevant facts that relate to Ferrer’s representation by Clarence Dyer. 

Between Backpage’s sale to Ferrer in 2015 and Ferrer’s guilty plea in April 2018, 

Backpage paid millions of dollars to over a dozen law firms. (Doc. 1968-1 at ¶¶ 10(a)-

10(q).) According to Ferrer, Defendant Brunst and Don Bennett Moon would direct Ferrer 

to make these payments. (Ferrer MOI, dated June 11, 2019, at ¶ 2, attached as Exhibit 5.) 

As Ferrer explained, “Early on there would be invoices and they wouldn’t make payments 

without an invoice. Later on payments to law firms were all retainers. Backpage staff would 

be told to send a check to a given law firm.” (Ex. 5 at ¶¶ 2(a)-(b).)

In October 2016, Clarence Dyer began representing Ferrer. (Doc. 193-9, ¶ 8.)

Backpage paid Clarence Dyer substantial sums well before Ferrer pleaded guilty in April 

2018. A portion of that money is captured by the disclosed bank records: 

Date Payee Type Amount Bates No Disclosure Date

3/20/2017

Clarence Dyer & 

Cohen LLP Wire $ 250,000.00 

DOJ-BP0004921163 January 13, 2020

3/20/2017

Clarence Dyer & 

Cohen LLP Wire $ 250,000.00 

DOJ-BP0004921164 January 13, 2020

3/30/2017 Clarence Dyer & Wire $ 79,733.13 DOJ-BP- January 13, 2020

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Cohen LLP 0004921164

4/27/2017

Clarence Dyer & 

Cohen LLP Wire $ 500,000.00 

DOJ-BP0005036155 January 13, 2020

7/14/2017

Clarence Dyer & 

Cohen LLP Wire $ 143,552.56 

DOJ-BP0005036173 January 13, 2020

9/28/2017

Clarence Dyer & 

Cohen LLP Wire $ 154,565.23 

DOJ-BP0005039710 January 13, 2020

$ 1,377,850.92 

(Jan. 13, 2020, discovery letter, attached as Exhibit 6.) 

Ferrer’s plea agreement makes clear that he could use money paid by Backpage to 

Clarence Dyer before his guilty plea, but “any funds remaining in the . . . IOLTA bank 

accounts at the conclusion of the litigation” were subject to forfeiture. (United States v. 

Ferrer, 18-CR-464-DJH, Doc. 7-2 at ¶ 8(a).) Defendants Lacey, Spear, and Brunst all filed 

verified petitions asserting that they each had a “right, title, and interest” in the Clarence 

Dyer IOLTA accounts. (18-CR-464-DJH, Doc. 29 at 12, Doc. 33 at 13-14, Doc. 34 at 12-

13.) 

The amount of money paid by Backpage to Clarence Dyer before Ferrer pleaded 

guilty in April 2018 is of no relevance. The key question, as asked by defense attorneys 

during Ferrer’s cross examination, is how much money Ferrer’s attorneys were permitted 

to keep after his agreement to cooperate with the United States. 

At trial, Ferrer was questioned at length about his cooperation with the United States 

and benefits he received. Ferrer testified on direct examination that he pleaded guilty to 

crimes in federal court and Texas and California state courts, and that part of his guilty 

pleas included providing assistance to investigators and prosecutors. (9/22/23 A.M. Daily 

Tr. at 53.) He knew his assistance could be considered at sentencing, but acknowledged 

that no promises had been made regarding what his sentences would be. (Id.) 

On cross-examination, defense counsel highlighted many benefits of Ferrer’s 

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cooperation. Defense counsel questioned Ferrer about whether he knew, when he pled 

guilty in April 2018, about the sentence he’d be facing if he did not plead guilty; in 

response, Ferrer testified “I do have a recollection that it was substantial[.]” (9/26/23 A.M. 

Daily Tr. at 67-68.) Counsel underscored the potential sentencing benefits of cooperation. 

(9/26/23 A.M. Daily Tr. at 70-71; see also 9/28/23 A.M. Daily Tr. at 99-100.) Ferrer 

testified that the prosecutors “have complete discretion to advocate for” him at sentencing. 

(9/26/23 A.M. Daily Tr. at 73; see also 9/28/23 A.M. Daily Tr. at 104-108 (same).)

Defense counsel questioned Ferrer about assets he had “been allowed to keep” as 

part of his agreement with the government. These assets included Ferrer’s personal 

residence in Frisco, Texas (9/28/23 P.M. Daily Tr. at 10); a “multi-million dollar” residence 

that was purchased in cash for his now ex-wife with Backpage proceeds (9/28/23 P.M. at 

12-14); a Mercedes vehicle that he purchased right before he entered the plea (9/26/23 AM 

Daily Tr. at 74); and a speedboat and another Mercedes vehicle purchased for his ex-wife 

with Backpage proceeds (9/28/23 P.M. Daily Tr. at 12-14).

Defense counsel also asked whether part of Ferrer’s motivation for pleading guilty 

and cooperating involved “being able to retain money that was from BP to pay the large 

attorneys’ fees that you spoke about . . .?” (9/26/23 P.M. Daily Tr. at 15-16.). Ferrer 

answered, “[I]t is a benefit.” (9/28/23 P.M. Daily Tr. at 16.) Counsel questioned Ferrer 

about how much money Ferrer’s lawyers had been paid since they began talking with 

prosecutors in February 2018, and Ferrer answered that he did not know:

Q. You don’t know if it’s been millions of dollars, hundreds of thousands of 

dollars, $5, no information whatsoever?

A. Well, obviously I know it’s not; it’s more than $5.

Q. Okay. Let’s try this out, how about over a $100,000? A. Yes.

Q. How about over a million dollars?

A. I don’t think so.

(9/26/23 A.M. Daily Tr. at 8).)

Defense counsel focused on “the Backpage money that’s being used to pay your 

lawyers for the last five years”—since Ferrer agreed to cooperate in 2018. (9/26/23 A.M. 

Daily Tr. at 18-19.) Ferrer testified that his lawyers were being paid from a “prepaid 

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account,” and that “the balance that’s being used to pay my lawyers, whatever is left over 

will be forfeited.” (9/26/23 A.M. Daily Tr. at 18-19.) Ferrer testified that he did not know 

how much had been charged against that account, or its remaining balance. (9/26/23 A.M. 

Daily Tr. at 18-19.) Another defense lawyer asked Ferrer about “the amount that was 

deposited into [his] attorney trust account (10/10/23 A.M. Daily Tr. at 105). The question 

did not clarify the time frame involved, and Ferrer testified that he could not recall the 

amount that had been placed in his attorney trust account. (10/10/23 A.M. Daily Tr. at 106.) 

 Other documents show that, by April 2018, Backpage and Ferrer, had no idea how 

much of the $4 million pre-paid to Clarence Dyer remained. Indeed, one of the attachments 

to the Ferrer forfeiture emails listed Clarence Dyer in a category titled, “other potential 

liabilities bills not received.” (USAO-BP-0038120, attached as Exhibit 7.) In that 

spreadsheet, Clarence Dyer is listed as having “potential work not billed.” (Id.) In the same 

spreadsheet, Davis Wright Tremaine is listed under the Backpage payables section as being 

owed over $380,000. (Id.) This despite Davis Wright Tremaine receiving $6.25 million—

as documented in the same spreadsheet sent by Website Technologies Controller Stefanie 

Parks, that listed the $4 million sent to Clarence Dyer. (Ex. 4 at 4.) 

 In short, Defendants knew that a benefit Ferrer received under his plea agreement 

was that his Clarence Dyer attorneys could continue to use the money paid to the firm by 

Backpage. The Ferrer forfeiture emails did not disclose how much money was available to 

that firm as of the time that Ferrer pleaded guilty.

ARGUMENT

I. The Ferrer Forfeiture Emails and Attachments Aren’t Jencks

A. The Emails Are Not Jencks 

The Jencks Act states that, after a government witness has testified at trial, “the 

court shall, on motion of the defendant, order the United States to produce any statement 

(as hereinafter defined) of the witness in the possession of the United States which relates 

to the subject matter as to which the witness has testified.” 18 U.S.C. § 3500(b). As 

pertinent here, the Act narrowly defines a “statement” as “a written statement made by said 

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witness and signed or otherwise adopted or approved by him[.]” 18 U.S.C. § 3500(e)(1). 

Defendants have the burden “to show that the [materials at issue] qualify . . . as 

witness’s ‘statements’ for purposes of the Jencks Act.” United States v. Michaels, 796 F.2d 

1112, 1117 (9th Cir. 1986). Here, the 18 emails at issue do not qualify as “a written 

statement made by [Ferrer] and signed or otherwise adopted or approved by him” that 

“relates to the subject matter as to which [Ferrer] has testified.” 18 U.S.C. § 3500(b), (e)(1). 

Ferrer’s statements in the emails did not relate to the subject matter of his trial 

testimony. Ferrer’s testimony, particularly on direct examination, involved Defendants’ 

activities during Backpage’s existence. It did not address the details of the assistance Ferrer 

rendered to the United States after Backpage shut down—and after he pleaded guilty and 

agreed to assist the United States in identifying Backpage-related assets for possible seizure 

and forfeiture. But that is the exact subject matter of the Ferrer forfeiture emails.

Notably, the emails fall within a narrow band of time from April to August 2018

(following Ferrer’s April 5, 2018 guilty plea). All of the emails were aimed at keeping 

Inspector Versoza informed about Backpage’s assets, including their location and amounts, 

so that the assets could be properly identified and/or seized for forfeiture purposes. Many 

of Ferrer’s statements in the emails were questions to Backpage Controller Stefanie Parks 

seeking details about which accounts held what money for forfeiture purposes. In other 

instances, Ferrer’s emails merely transmitted or forwarded the statements of others, e.g., 

Parks, in response to questions from Inspector Versoza. (Ex. 2 at 1-4, 6 (“See attached info 

you requested”; “See below and attached”; “Here is the info you need.”).)

The most voluminous email statements by Ferrer are the first email, dated April 20, 

2018. (Ex. 2 at 1.) In that email, Ferrer tried to explain where bank accounts were located 

and their balances for purposes of seizure and forfeiture. Thus, the email relates to Ferrer’s 

anticipated testimony in the forfeiture phase of the case, not the guilt phase. On July 9-10,

2018, Ferrer sent emails to Parks asking about how much an entity owed Backpage, and 

indicating that the receivables could be something the United States might seek for 

forfeiture. (Ex. 2 at 1-2.) Ferrer then forwarded Parks’s responses to Inspector Versoza. 

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A few days later, on July 13, 2018, Ferrer emailed Parks and directed her to send 

him a document containing “prepayments and prepayments to attorneys,” and a master list 

of monies transferred to the United States, again for purposes of asset forfeiture. (Ex. 2 at 

2-3.) The attachment to this email—from Parks—contains the $4 million prepaid line item 

to Ferrer’s counsel, Clarence Dyer, identified in Defendants’ supplemental motion. (See

Suppl. at 3; Ex. 4 at 4.) The same day, July 13, 2018, Ferrer also forwarded information to 

Inspector Versoza about a company, Paymitco, that owed Backpage money, again for 

collection and forfeiture purposes. (Id.)

On July 17, 2018, Ferrer forwarded documents and discussed money transferred 

from CryptoCapital. (Ex. 2 at 3.) On July 19, 2018, he responded to a question from 

Inspector Versoza about Backpage’s payroll in February 2014. (Ex. 2 at 3.) On July 26, 

2018, Ferrer informed Michael Gage that a bank account should be maintained, and 

forwarded the exchange to Inspector Versoza. (Ex. 2 at 3.)

On August 2, 2018, Ferrer forwarded emails between Versoza and Parks with 

nothing more than a “see below” or “see attached” added to those chains. (Ex. 2 at 3.) On 

August 3, 2018, Ferrer described a conversation with Parks. He tried to explain payments 

made in May that are reflected on an attached spreadsheet. Again, this relates not to his 

testimony at trial, but to the forfeiture phase. (Ex. 2 at 3-4.) Also on August 3, 2018, Ferrer 

sent an email regarding attorneys he had previously hired and funds used to pay them; he 

also forwarded exchanges between Parks and Versoza regarding monies used to pay a 

victim. (Ex. 2 at 4.) On August 6, 2018, Ferrer again discussed accounts and what could be 

done with them for seizure/forfeiture purposes. (Ex. 2 at 4-5.) On August 7, 2018, Ferrer 

directed Parks about instructions from Inspector Versoza relating to a cryptocurrency 

account. (Ex. 2 at 5.) On August 21, 2018, Ferrer inquired of Inspector Versoza what to do 

with about $40,000 in an account. (Ex. 2 at 5.) This too deals with forfeiture issues as it 

relates to the seizure of monies earned by Backpage.

Because none of these statements related to the subject matter of Ferrer’s trial 

testimony, the United States did not have to disclose them as Jencks during the guilt phase 

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of the trial.

B. The Attachments

Most of the emails from Ferrer between April and August 2018 contain attachments. 

But the attachments to the emails from Ferrer do not qualify as Jencks statements. “The 

Jencks value of a statement is defined by the identity of the speaker and quality of the 

speech, not the medium for communicating the statement.” United States v. Pac. Gas & 

Elec. Co., 2016 WL 3185008, at *8 (N.D. Cal. June 8, 2016). Indeed, in United States v 

PG&E, the defendant argued that because the United States disclosed certain emails under 

an early Jencks disclosure policy, that “necessarily renders any attached documents Jencks 

materials.” Id. But the district court found “[t]his argument is utterly lacking in merit,” 

ruling that the attachments did not have to be disclosed by the United States. Id. 

The spreadsheet attachments are not “written statements made by” Carl Ferrer. The 

attachments were not authored or made by him, but rather by Backpage’s Controller, 

Stefanie Parks. It is unknown what information she relied upon to prepare the spreadsheets.

Because Ferrer was not the author of the spreadsheets, nor did he contribute substantively 

to them, they aren’t a “written statement made” or adopted or approved by him. 

Accordingly, they were not Ferrer’s “statements” and do not require production under the 

Jencks Act. See, e.g., United States v. Reed, 575 F.3d 900, 921 (9th Cir. 2009) (no Jencks 

Act violation where there was no evidence that the statements were made, adopted or 

approved by any of the witnesses); United States v. Bettencourt, 614 F.2d 214, 215-16 (9th 

Cir. 1980) (when government witness testified based on the report of another officer, the 

Jencks Act did not cover the report because it “was not ‘made by’ the witness”); United 

States v. Blas, 947 F.2d 1320, 1327 and n.6 (7th Cir. 1991) (reports reviewed by the 

witness—but not authored by him—were not Jencks Act “statements”). 

Even if Ferrer “adopted or approved” the spreadsheets, they aren’t Jencks because 

they didn’t relate to Ferrer’s trial testimony. Importantly, Ferrer was questioned by neither 

the United States nor any defense counsel about his efforts in assisting Inspector Versoza 

in locating assets for forfeiture after he agreed to cooperate in April 2018. Therefore, the 

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18 emails and their attachments did not relate to his testimony and, again, did not constitute 

Jencks. United States. v. Butenko, 384 F.2d 554, 568 (3d Cir. 1967), vacated on other 

grounds, 394 U.S. 165 (1969) (“a defendant is not entitled to statements when they do not 

relate to the subject matter as to which the witness has testified on direct examination, even 

though they relate to the subject matter of the indictment, information or investigation”; 

“Congress was very careful” in so limiting the Jencks Act’s scope); United States v. Bin 

Laden, 397 F. Supp. 2d 465, 501 (S.D.N.Y. 2005) (“[A]s the Jencks Act itself makes clear, 

a statement’s mere relation to the subject matter at issue in a case does not render it 

producible”; “only a statement related to a witness’s testimony is producible.”). 

II. The United States Acted in Good Faith and Defendants Suffered No Prejudice 2

 Even if the Court findsthat these materials otherwise qualified as Jencks statements, 

the United States acted in good faith and the recent disclosure did not prejudice Defendants.

The Court has discretion not to impose sanctions for noncompliance with the Jencks 

Act. United States v. Echeverry, 759 F.2d 1451, 1456 (9th Cir. 1985). Whether to impose 

a Jencks Act remedy “generally depend[s] on (1) a consideration of the culpability of the 

government, and (2) the injury resulting to the defendants.” Echeverry, 759 F.2d at 1456. 

“[W]hen there is no prejudice, a witness’s testimony need not be stricken.” Reed, 575 F.3d 

at 921 (citation omitted). See, e.g., United States v. Sterling, 742 F.2d 521, 524-25 (9th Cir.

1984) (no abuse of discretion to decline Jencks sanctions where other available materials 

enabled a vigorous cross-examination). 

Indeed, no sanctions are required “where the government acted in good faith” and 

an “acceptable substitute or summary” was available. United States v. Cardenas-Mendoza, 

579 F.3d 1024, 1031-32 (9th Cir. 2009). See Echeverry, 759 F.2d at 1456 (upholding denial 

of sanctions where non-disclosure “was inadvertent and not in bad faith,” the United States 

2 To the extent Defendants attempt to frame their supplement as a Brady issue, the Court 

should resolve the matter under the rubric of Jencks: “When the defense seeks evidence 

which qualifies as both Jencks Act and Brady material, Jencks Act standards control.”

United States v. Jones, 612 F.2d 453, 455 (9th Cir. 1979); accord United States v. Alvarez,

358 F.3d 1194, 1211 (9th Cir. 2004); see also United States v. Gomez, 2014 WL 231984, 

at *5 (N.D. Cal. Jan. 21, 2014) (“the Jencks Act trumps Brady”) (citation omitted).

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produced other Jencks Act material before trial, and the material at issue “[was] generally 

duplicative of information previously disclosed” such that the defense was “not deterred 

from a thorough cross-examination”); Sterling, 742 F.2d at 525 (affirming no sanctions 

where “the government’s failure was totally inadvertent,” the government had “dutifully 

endeavored to comply with” the Act, and “counsel was able vigorously to cross-examine 

[with] available materials”); United States v. Finnegan, 568 F.2d 637, 642 (9th Cir. 1977)

(no sanctions where “[t]he record show[ed] the trial court’s satisfaction that this witness 

was examined ‘quite thoroughly’”).

A. The Non-Disclosure Was Entirely Inadvertent

The United States’ non-disclosure was totally inadvertent and not due to any willful 

attempt to conceal statements. When Inspector Versoza located the Ferrer forfeiture emails, 

he believed they had already been disclosed because of how they had been saved and 

segregated. It wasn’t until the evening of November 13, 2023, when Agent Robinson 

searched more than 11 million pages produced in discovery, that the United States learned

the emails had not been produced. The United States produced them the next day. These 

facts are similar to United States v. Dupuy, 760 F.2d 1492, 1497 (9th Cir. 1985), where:

The court’s finding that the prosecutor had acted in good faith was based 

upon the prosecutor’s prompt disclosure (within a few hours) upon discovery of the document. The late discovery was due to the volume of the documents 

and the fact that a case agent had been directed to go through the file and make copies of all pertinent documents to give to the defendants. Although 

he found the unedited version, he failed to discover the edited version. This 

oversight could not be labeled as a “willful avoidance and egregious 

dereliction of the prosecutor’s statutory obligation.” [citation omitted] Neither a mistrial nor a striking of Jackson’s testimony was required.

See also, e.g., United States v. Paillet, 668 F. App’x 256 (9th Cir. 2016) (no abuse of 

discretion where record did not show prejudice or “anything more than mere negligence”).

Moreover, the United States endeavored to comply with 18 U.S.C. § 3500

throughout this case. The plea agreements that extended benefits to Ferrer and related 

Backpage entities were disclosed months after Defendants’ indictment and arrest. (See, 

e.g., CR 18-465-PHX-DJH, Doc. 7-1.) The parties then negotiated a series of scheduling 

orders (see, e.g., Doc. 121), which were adopted by this Court. (See, e.g., Doc. 

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131.) Among other things, the parties agreed to disclose Jencks Act information in advance 

of trial. (See id. at 2.) The United States then disclosed Jencks Act statements of Ferrer 

years before 18 U.S.C. § 3500 required, and notified the Court. (Doc. 733.) In addition, the 

vast majority of Jencks Act statements were email exchanges between Ferrer and coconspirators, including Defendants, which were disclosed well before trial. Many were 

included on the United States’ exhibit list and admitted at trial. 

B. Defendants Suffered No Prejudice Because They Received Similar 

Information and Subjected Ferrer to Extensive Cross-Examination

The Ferrer forfeiture emails involved information about specific assets, including 

IOLTA account payments, that were described in even greater detail in other documents 

long ago produced to Defendants. (Compare Doc. 1968-1 at 10-15 with Ex. 2). Cf. 

Rosenberg v. United States, 360 U.S. 367, 371 (1959) (no prejudice where the same 

information is available to defendant).

Moreover, Defendants had an arsenal of facts regarding the benefits that Ferrer 

received or could receive as a result of his cooperation with the United States—and they 

broadly cross-examined him regarding those benefits at trial. Defendants had access to 

Ferrer’s guilty plea and cooperation addendum; the Preliminary Order of Forfeiture—

which specified the precise benefits Ferrer negotiated with the United States relating to his 

attorneys’ fees, see CR-18-464-DJH, Doc. 2 at 13-14; and millions of documents produced 

in discovery, including nearly $1.4 million in bank wires of payments to Ferrer’s personal 

attorneys that predated his cooperation. 

Defendants have failed to demonstrate how their cross-examination of Ferrer would 

have been any different had the forfeiture emails been known to them earlier. After Ferrer 

testified on direct for approximately seven trial days, five defense attorneys crossexamined him over four full trial days—spanning September 22, 26, 27, 28, 29, and 

October 10, and covering about 786 transcript pages. 

As pertinent to Defendants’ supplement, the key question, as asked by defense 

attorneys during Ferrer’s cross examination, is how much money Ferrer’s attorneys were 

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permitted to keep after his agreement to cooperate with the United States. Counsel 

questioned Ferrer about how much money Ferrer’s lawyers had been paid since they began 

talking with prosecutors in February 2018, and Ferrer answered that he did not know. 

(9/26/23 A.M. Daily Tr. at 8.) While he didn’t think they had been paid over a million 

dollars, he was unable to provide the information requested by defense counsel. (9/26/23 

A.M. Daily Tr. at 8.) Ferrer testified that his lawyers were being paid from a “prepaid 

account,” and that “the balance that’s being used to pay my lawyers, whatever is left over 

will be forfeited.” (9/26/23 A.M. Daily Tr. at 18-19.) Ferrer testified that he did not know 

how much had been charged against that account, or its remaining balance. (9/26/23 A.M. 

Daily Tr. at 18-19.) The bottom line is that Ferrer was unsure of the balance that remained 

after he began cooperating—and Stefanie Parks’s spreadsheet showing a $4 million 

payment before cooperation was irrelevant to his testimony on that point. 

To the extent Defendants argue that they could have refreshed Ferrer’s memory with 

the spreadsheet and further impeached him in some way, Defendants have failed to 

demonstrate how such information would have moved the needle for the jury. The jury 

clearly engaged in a thoughtful and careful deliberation, finding no defendant guilty of all 

charged counts, finding Lacey guilty of one count, and acquitting Padilla and Vaught 

altogether. Given the robust cross-examination of Ferrer and extensive closing arguments 

focused on his credibility, it’s difficult to conclude that the jury would have rendered a 

more favorable decision based on this additional information.

In sum, Defendants vigorously crossed Ferrer, and production of the Ferrer 

forfeiture emails would not have materially added to the cross-examinations’ effectiveness. 

No Jencks Act remedy should be imposed. See, e.g., United States v. Dobbs, 357 F. App’x 

767, 770 (9th Cir. 2009) (“As in [Dupuy], the late disclosure did not prejudice Defendant, 

and there is no evidence of bad faith. There also is no ‘reasonable probability that, had the 

evidence been [timely] disclosed to the defense, the result of the proceeding would have 

been different.’”) (citation omitted); United States v. Adams, 938 F.2d 96, 98 (8th Cir. 

1991) (affirming denial of sanctions were the belatedly produced statement “would not 

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have materially added to the [cross-] examination’s effectiveness”).

Defendants’ request for the extraordinary remedy of dismissal is particularly 

misplaced. “A district court may dismiss an indictment on any of three grounds: (1) due 

process, (2) inherent supervisory powers (protecting the integrity of the judicial process), 

and (3) statutory grounds.” Reed, 575 F.3d at 921 (citation omitted). Dismissal “is a drastic 

measure” that is disfavored. United States v. Isgro, 974 F.2d 1091, 1098 (9th Cir. 1992). 

The Jencks Act’s text does not authorize dismissal. See 18 U.S.C. § 3500(d). 

Nevertheless, “[a] district court may exercise its supervisory power ‘to implement a remedy 

for the violation of a recognized statutory or constitutional right; to preserve judicial 

integrity by ensuring that a conviction rests on appropriate considerations validly before a 

jury; and to deter illegal future conduct.” United States v. Chapman, 524 F.3d 1073, 1085 

(9th Cir. 2008) (citations omitted). But “because dismissing an indictment with prejudice 

encroaches on the prosecutor’s charging authority, this sanction may be permitted only in 

cases of flagrant prosecutorial misconduct.” Id. at 1085 (quotations and citation omitted).

“[F]lagrant misconduct cannot be an accidental or merely negligent failure to disclose[.]”

United States. v. Bundy, 968 F.3d 1019, 1038 (9th Cir. 2020). 

The United States non-disclosure of Ferrer’s forfeiture emails was at most 

“accidental or merely negligent.” Id. Before trial, the United States disclosed millions of 

documents, including memoranda of numerous interviews with Ferrer and other witnesses, 

Ferrer and Backpage’s plea agreements, and Ferrer’s cooperation addendum. Post-trial,

within a day of confirming that the email subfolder containing the Ferrer forfeiture emails

had not been produced, the prosecutor wrote to defense counsel to inform them of the 

oversight and provide the emails. That’s the opposite of “flagrant misconduct”—and 

Defendants’ motion should be denied. See, e.g., United States v. Sanft, 2023 WL 5428065, 

at *10 (W.D. Wash. Aug. 23, 2023) (denying motion to dismiss where the government had 

conscientiously complied with its discovery obligations and promptly notified the defense 

about its discovery of inadvertently non-disclosed material).

For the same reasons, Brady and Giglio do not apply. See Jones v. Ryan, 691 F.3d 

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1093, 1102 (9th Cir. 2012). As shown above, the emails all involved Ferrer’s post-plea 

assistance with identifying assets for seizure and forfeiture—and Defendants have long 

known about Ferrer’s guilty plea and cooperation. Defendants subjected Ferrer to a 

thorough four-day cross examination. There was no suppression of material exculpatory or 

impeachment evidence, and Defendants were not prejudiced.

III. Defendants’ Supplement Raises Other Issues that Do Not Warrant Relief

A. Double-Bates Stamps

The United States discovered that the Ferrer forfeiture emails likely were not 

produced on Monday evening, November 13—and produced them the next day. In its 

haste, the United States inadvertently used Bates numbers that had been used for other 

documents. (See Ex. 1 at 1.) On November 16, 2023, the United States sent defense counsel 

an email correcting this discrepancy. (Id. (“After review we determined that thirteen 

documents in Disclosure 51 had bates numbers that overlapped with the documents 

provided in Disclosure 48. Those thirteen documents have been renumbered and . . . should 

no longer overlap with the documents provided in Disclosure 48.”).) The United States has 

resolved this issue. 

B. Proton Mail

Defendants’ assertion that they were prejudiced because the Ferrer forfeiture emails 

revealed Ferrer’s use of Proton Mail is a nonstarter. (Supp. at 3-4.) Defendants have long 

known that Ferrer—like Defendants Lacey, Spear, and Brunst—all switched to Proton Mail 

in 2016. (9/21/23 P.M. Daily Tr. at 78-79 (Ferrer testifying that they switched to Proton 

Mail because it’s “an email service provider that would be difficult . . . for the Government 

to subpoena”); Ferrer 2/5/19 MOI, at ¶ 130, attached as Exhibit 8 (“Ferrer began using 

ProtonMail after [his 2016 California arrest]”).) This is no surprise: many trial exhibits 

showed Ferrer’s and other Defendants’ exchanges of Proton Mails during the charged 

conspiracy. (See Trial Exs. 1235-38, 1240, 1242-43, 1246.)

CONCLUSION

Defendants’ supplemental motion to dismiss or for other relief should be denied.

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Respectfully submitted this 27th day of November, 2023.

 GARY M. RESTAINO United States Attorney District of Arizona

 NICOLE M. ARGENTIERI

Acting Assistant Attorney General Criminal Division, U.S. Department of Justice 

s/ Kevin M. Rapp KEVIN M. RAPP

MARGARET PERLMETER

PETER KOZINETS

ANDREW STONE

DANIEL BOYLE

 Assistant U.S. Attorneys 

 AUSTIN M. BERRY

Trial Attorney 

CERTIFICATE OF SERVICE

I hereby certify that on November 27, 2023, 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/ Daniel Parke

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