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3870624.2

MOTION IN LIMINE TO PRECLUDE REFERENCES TO ALLEGED FORMER “PROSTITUTION” 

MARKETING STRATEGIES 

Timothy J. Eckstein, 018321

 teckstein@omlaw.com

Joseph Roth, 025725

 jroth@omlaw.com

Sarah P. Lawson, 036436

 slawson@omlaw.com

OSBORN MALEDON, P.A.

2929 North Central Avenue, 20th Floor

Phoenix, AZ 85012-2793

Telephone: (602) 640-9000

Facsimile: (602) 640-9050

Attorneys for Defendant James Larkin

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

[Additional counsel listed on next page]

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

MOTION IN LIMINE TO PRECLUDE 

REFERENCES TO ALLEGED 

FORMER “PROSTITUTION”

MARKETING STRATEGIES

Case 2:18-cr-00422-DJH Document 1591 Filed 06/08/23 Page 1 of 13
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3870624.2 2

MOTION IN LIMINE TO PRECLUDE REFERENCES TO ALLEGED FORMER “PROSTITUTION” 

MARKETING STRATEGIES 

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

 pcambria@lglaw.com

Erin McCampbell Paris (admitted pro hac vice)

 eparis@lglaw.com

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

Attorneys for Defendant Michael Lacey

Eric W. Kessler, SBN 009158 

KESSLER LAW GROUP 

6720 N. Scottsdale Rd., Ste. 210 

Scottsdale, Arizona 85253 

(480) 644-0093 phone 

(480) 644-0095 fax 

Eric.KesslerLaw@gmail.com

Attorney for Defendant Scott Spear

David Eisenberg, 017218

 david@deisenbergplc.com

DAVID EISENBERG PLC

3550 N. Central Ave., Suite 1155

Phoenix, Arizona 85012

Telephone: (602) 237-5076

Facsimile: (602) 314-6273

Attorney for Defendant Andrew Padilla

Joy Malby Bertrand, 024181

 joy.bertrand@gmail.com

JOY BERTRAND ESQ LLC

PO Box 2734

Scottsdale, Arizona 85252

Telephone: (602) 374-5321

Facsimile: (480) 361-4694

Attorney for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 1591 Filed 06/08/23 Page 2 of 13
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3870624.2 3

MOTION IN LIMINE TO PRECLUDE REFERENCES TO ALLEGED FORMER “PROSTITUTION” 

MARKETING STRATEGIES 

I. THE GOVERNMENT HAS IDENTIFIED WITNESSES AND EXHIBITS 

BARRED BY THE COURT’S PRIOR ORDER.

In its May 4, 2020 Order denying Defendant John Brunst’s Motion to Dismiss 

Indictment for Failure to Allege the Necessary Elements of the Travel Act, the Court held 

that:

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. (SI ¶ 201.)

Dkt. 946 at 13 (emphasis added).

That is the law of the case. Dkt. 1524 at 4 n.2 (Order Setting Final Pretrial 

Conference). This case is about whether Defendants facilitated business enterprises 

engaged in prostitution in violation of state law when Backpage.com published one or 

more of the fifty charged adult-oriented ads – not about the millions of other adult-oriented 

ads that Backpage.com published over the years. Dkt. 946 at 13. Evidence is therefore 

relevant only if it concerns one of the fifty charged ads. To avoid another mistrial, 

Defendants seek an order to make clear that evidence of alleged strategies to increase 

purported “prostitution” ads on the site not specific to these fifty ads is irrelevant, because 

those alleged practices ended long before any of the fifty charged ads was posted. 

Defendants anticipate the Government will attempt to introduce evidence unrelated 

to the fifty charged ads involving (1) ad moderation (allowing moderators to modify the 

wording of ads and then allowing the ads to run); (2) Backpage’s alleged “reciprocal” 

advertising/link program with The Erotic Review (TER) (a different website with adult 

content); and (3) content “aggregation,” alleged to be the provision of free ads “in an 

attempt to secure future advertising revenues.” Dkt. 230 (Superseding Indictment) at 

¶¶ 10-11, 34. Under the Court’s Order, such evidence is inadmissible because each of 

those alleged practices ended well before September 10, 2013—the date that the first 

Case 2:18-cr-00422-DJH Document 1591 Filed 06/08/23 Page 3 of 13
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3870624.2 4

MOTION IN LIMINE TO PRECLUDE REFERENCES TO ALLEGED FORMER “PROSTITUTION” 

MARKETING STRATEGIES 

charged ad was published. Dkt. 230 at 201 (Count 2).1 

First, Backpage.com prohibited its moderators from modifying the wording of ads 

by the fall of 2012 – roughly a year before the first charged ad was published – a fact 

admitted by several former Backpage.com moderators interviewed by the Government. 

Second, as to alleged reciprocal links with TER, Backpage had ended its relationship with 

TER and banned any reference to TER in its ads (including any “review ID” numbers tied 

to TER) by early 2011 – about two-and-a-half years before the first charged ad was 

published. Exh. A (February 18, 2011 email from Defendant Andrew Padilla). Third, as 

to aggregation, the indictment references a November 2008 internal Backpage email 

regarding “aggregation efforts in Dallas”—nearly five years before the first charged ad

was published. Dkt. 230 at ¶ 43. Although the indictment makes a single reference to an 

October 2013 email from Carl Ferrer (Backpage’s CEO) to Defendant Scott Spear 

regarding a “plan to hire . . . Content creators” in the Netherlands (where prostitution is 

legal), there is no allegation that this plan was ever executed or that it had anything to do 

with ads published in the United States, let alone any of the fifty charged ads. Id. at ¶ 44.

Critically, the Government does not allege, and could not allege, that any of the 

fifty charged ads were the product of content aggregation, a “reciprocal” advertising/link 

program with TER, or had their wording modified by a Backpage.com moderator. 

Therefore, no evidence of any of these alleged practices should be admitted. 

The Government may claim that those discontinued practices are relevant to the 

conspiracy charge. But as the Court has already held, that charge is not “boundless”; it is 

wedded and limited to the fifty charged ads. Dkt. 946 at 13; see also Dkt. 1444 at 8 

(implying that any conspiracy is logically bound by the dates of the fifty charged ads, from 

2013 to 2018). Nor are those practices relevant background information regarding the 

1 The first charged ad was published on September 10, 2013, ten of the charged ads were 

published in 2014, fourteen of the charged ads were published in 2015, nine of the charged 

ads were published in 2016, eight of the charged ads were published in 2017, and eight of 

the charged ads were published in 2018. 

Case 2:18-cr-00422-DJH Document 1591 Filed 06/08/23 Page 4 of 13
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3870624.2 5

MOTION IN LIMINE TO PRECLUDE REFERENCES TO ALLEGED FORMER “PROSTITUTION” 

MARKETING STRATEGIES 

Backpage.com website because, as this Court has held, “this case is not about Backpage . . 

. . This case is about these individuals and whether they had specific knowledge of these 

ads as facilitating illegal activity.” Exh. B (December 4, 2020 Hr’g. Tr. at 38). 

In addition to being barred under Rule 401 as irrelevant, evidence about these 

discontinued practices should be barred under Rule 403, as the prejudice and confusion 

resulting from the presentation of evidence about those practices would lead jurors to

conclude that such evidence is connected to the fifty charged ads. 

II. THE COURT PREVIOUSLY DEALT WITH A RELATED ISSUE.

In denying the Government’s Motion in Limine to Admit Evidence as Non-Hearsay 

Statements (Dkt. 1162), the Court previously ruled that the Government would need to 

“establish the foundation” necessary to admit unspecified statements from William “Dollar 

Bill” Mersey (an alleged “super affiliate” of Backpage) and David Elms (who ran TER). 

Dkt. 230 at 60; Dkt. 929 at 7-10. The instant motion seeks to preclude the admission of a 

broader set of evidence regarding earlier practices the Government alleges were intended 

to promote “prostitution” ads on the Backpage.com website, an approach supported by the 

Court’s prior ruling as to statements made by Mersey and Elms. 

III. PROPOSED ORDER

Defendants seek an order that precludes the Government from introducing evidence 

regarding or making reference to (1) ad moderation; (2) a “reciprocal” advertising/link 

program with The Erotic Review; and (3) content aggregation, as these alleged practices 

are untethered to the fifty charged ads.2

2 Undersigned counsel certifies that they have conferred with the Government in an 

effort to resolve the disputed evidentiary issues that are the subject of this motion.

Case 2:18-cr-00422-DJH Document 1591 Filed 06/08/23 Page 5 of 13
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3870624.2 6

MOTION IN LIMINE TO PRECLUDE REFERENCES TO ALLEGED FORMER “PROSTITUTION” 

MARKETING STRATEGIES 

Pursuant to the District’s Electronic Case Filing Administrative Policies and 

Procedures Manual (May 2023) § II(C)(3), Gary S. Lincenberg hereby attests that all 

other signatories listed, and on whose behalf this filing is submitted, concur in the filing’s 

content and have authorized its filing.

DATED: June 8, 2023 Respectfully submitted,

Timothy J. Eckstein

Joseph Roth

Sarah P. Lawson

Osborn Maledon, P.A.

By: /s/ Timothy J. Eckstein

Timothy J. Eckstein

Attorneys for Defendant James Larkin

DATED: June 8, 2023 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

DATED: June 8, 2023 Paul J. Cambria

Erin McCampbell Paris

Lipsitz Green Scime Cambria LLP

By: /s/ Paul J. Cambria

Paul J. Cambria

Attorneys for Defendant Michael Lacey

Case 2:18-cr-00422-DJH Document 1591 Filed 06/08/23 Page 6 of 13
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3870624.2 7

MOTION IN LIMINE TO PRECLUDE REFERENCES TO ALLEGED FORMER “PROSTITUTION” 

MARKETING STRATEGIES 

DATED: June 8, 2023 Kessler Law Office

By: /s/ Eric W. Kessler

Eric W. Kessler

Attorney for Defendant Scott Spear

DATED: June 8, 2023 The Law Office of David Eisenberg, PLC

By: /s/ David Eisenberg

David Eisenberg

Attorney for Defendant Andrew Padilla

DATED: June 8, 2023 Joy Bertrand Esq. LLC

By: /s/ Joy Malby Bertrand

Joy Malby Bertrand 

Attorney for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 1591 Filed 06/08/23 Page 7 of 13
EXHIBIT A

Case 2:18-cr-00422-DJH Document 1591 Filed 06/08/23 Page 8 of 13
From: 

Sent: 

To: 

Cc: 

Subject: 

Attachments: 

All: 

Andrew Padilla •••••••••••I on behalf of Andrew Padilla 

Friday, February 18, 2011 10:16 Pivi 

Adam Alien Amanda Andrew Angel Angela 

Beveilie Billie Brian Bryan Cathleen ' Cody 

Dawn Devyn Donavon :an James Jana 

Jason Jeff Jennifer Jessica John Justin Kolter 

LaTamara Levi Maria Martina Matt 

Michael Michael Misty Monica Nathan 

Nick Ray Roger Sara Sean Stefano 

Tara Tranica Zeke 

Joye 

another term bites the dust 

good.jpg; bad.jpg; bad (1).jpg; bad (2).jpg; bad (3).jpg 

We've been fiitering out the terms "TER" and "The Erotic Review" aiong with iinks to theeroticreview.com since January 

of this year but our internet safety experts have suggested we take a more aggressive approach. 

Effective irrtrriediateiy, any variation of, or reference to, TER is banned. if you find ii in an ad, rernove H·1e pr·1rase 

and update tiie ad but do not lock tiie ad from editing for tiiis violation alone. if ti1e review iD number is attached to tiie 

iefeience (TER #8075309), iernove tt-1e ID numbei along with the TER iefeience. 

If you find a string of numbers without a direct reference to TER, it's allowed. 

Examples: 

"#123456" 

"\Nell Reviewed #666666" 

"Google my reviews #12011201" 

An easy way to weed out a good chunk of these references is to do a search for "TER" on the city page. You'll get some 

false positives but it should point you in the right direction. ~~on-adult spammers vvill sometimes use hidden keyvvords 

like "blockbuster video .. and the search vvill see the tail-end of "buster". To avoid this, you can start your search after 

you've navigated to the Adult section of the city. 

!'m attaching '1 examp!e screenshots of \Alhat is not a!!ov1ed {circled in red) and 1 example screenshot of '.·vhat is okay 

(circled in green). 

If you have any questions, please ask me or Joye. Thanks. 

Andrew Padilla 

erati n.~ ~ ... fan ager 

Backoa1te.com I Villai:te Voice Media 

CONFiDENTiAL BP-PSi-0297·i 7 

From: Andrew Padilla on behalf of Andrew Padilla 

Sent: 

To; 

Cc: 

Subjecl: bites the dust 

Attachments : good.jpg; bad.jpg; bad (1).jpg; bad (2).jpg; bad (3).jpg 

All: 

We've been filtering out the terms "TER" and "The Erotic Review" along with links to theeroticreview.com since January 

of this year but our internet safety experts have suggested we take a more aggressive approach. 

Effective ifnrnedicHeiy, 8ny v8fi8tion of, Of fefefence 10, TER is banned. if yOu find it in £In 8d, fefnOve iI're phfase 

and update the ad but do not lock the ad from editing fOf this violation alone. If the review ID number is attached to the 

reference (TER :tSG75309}, remove the ID nurnber along with the TER reference. 

If you find a string of numbers without a direct reference to TER, it's allowed. 

Examples: 

"#123456" 

'Well Reviewed #666666" 

"Google my reviews #12011201~ 

An easy way to weed out a good chun k of these references is to do a search for ~TER" on the city page. You'll get some 

false positi ves but it should point you in the right direction. Non-adult spammers v.ill sometimes use hidden key,vords 

like "block bus ter video" and the search will see the tail-end of "bus ter". To avoid this. you can start your search after 

you've novigated to the Adu lt section of the city. 

I'm anaching 1 example screens hots of what is not allowed (circled in red) and 1 example screenshot of what is okay 

(circled in green). 

If you have any Questions, please ask me or Joye. Thanks. 

And rew P3dilla 

Or"'3tic;ns 1'.('''''1<'' 

CONFiDENTiAL 

"redi. 

8P-PSi-029717 

App.000260

Case 2:18-cr-00422-DJH Document 1591 Filed 06/08/23 Page 9 of 13
EXHIBIT B

Case 2:18-cr-00422-DJH Document 1591 Filed 06/08/23 Page 10 of 13
UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF ARIZONA 

 _________________ 

United States of America, ) 

 ) 

 Plaintiff, ) CR-18-0422-PHX-SMB 

 ) 

 vs. ) Phoenix, Arizona 

 ) December 4, 2020 

Michael Lacey, ) 10:02 a.m. 

James Larkin, ) 

Scott Spear, ) 

John Brunst, ) 

Andrew Padilla, ) 

Joye Vaught, ) 

 ) 

 Defendants. ) 

______________________________) 

 

BEFORE: THE HONORABLE SUSAN M. BRNOVICH, JUDGE 

REPORTER'S TRANSCRIPT OF PROCEEDINGS

TELEPHONIC MOTION HEARING

Official Court Reporter: 

Linda Schroeder, RDR, CRR 

Sandra Day O'Connor U.S. Courthouse, Suite 312 

401 West Washington Street, Spc. 32 

Phoenix, Arizona 85003-2151 

(602) 322-7249 

Proceedings Reported by Stenographic Court Reporter 

Transcript Prepared by Computer-Aided Transcription 

Case 2:18-cr-00422-DJH Document 1591 Filed 06/08/23 Page 11 of 13
 38

UNITED STATES DISTRICT COURT

And I think one of the key things in my reason for

denying the recusal is that this case is not about Backpage.

Backpage was prosecuted in a separate case, entered a plea in a

separate case.

This case is about these individual defendants and

whether they had specific knowledge of these ads as

facilitating illegal activity. And that is why any reference

to the fact that this type of activity occurs on Backpage and

other social media doesn't have the strength it would had my

husband said something particular about these defendants, which

he has not.

He has also not -- I think the defense motion says

that he's made public statements about the people, which he has

not. The entities, yes, he's commented that Backpage -- that

human trafficking has occurred on Backpage along with

Craigslist, Facebook, other social media. And you also

mentioned issues in this case. He has not commented on this

case or any of the issues in this case.

MR. LINCENBERG: Your Honor, this is Gary Lincenberg.

I do not want to interrupt, but I would like to correct one

thing that the Court may have mistakenly just stated.

THE COURT: What's that?

MR. LINCENBERG: I believe I heard the Court state

that we had this key Attorney General letter in discovery, and

that's not correct, I believe, to the best of my knowledge.

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Case 2:18-cr-00422-DJH Document 1591 Filed 06/08/23 Page 12 of 13
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UNITED STATES DISTRICT COURT

C E R T I F I C A T E

I, LINDA SCHROEDER, do hereby certify that I am duly

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

I FURTHER CERTIFY that the foregoing pages constitute

a full, true, and accurate transcript of all of that portion of

the proceedings contained herein, had in the above-entitled

cause on the date specified therein, and that said transcript

was prepared under my direction and control.

DATED at Phoenix, Arizona, this 4th day of December, 

2020. 

 s/Linda Schroeder 

 Linda Schroeder, RDR, CRR 

 

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Case 2:18-cr-00422-DJH Document 1591 Filed 06/08/23 Page 13 of 13