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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 

DEFENDANT BRUNST’S MOTION 

TO TESTIFY RE STATE OF MIND 

AND DEFENDANTS LACEY’S, 

PADILLA’S, SPEAR’S, AND 

VAUGHT’S JOINDERS 

 (Docs. 1879, 1886, 1887, 1888, 1889) 

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Defendants seek reconsideration of the Court’s previous Orders that found certain 

categories of evidence inadmissible at trial. (Docs. 1879, 1886, 1887, 1888, 1889.) These 

motions are without merit and should be denied.

I. Defendants May Not Introduce Evidence Precluded By Rule 403

Defendants seek to introduce evidence through their case-in-chief about prior 

unrelated civil cases. Nearly three months ago, the Court ruled that Defendants are 

precluded from referencing at trial any prior case involving Backpage.com, because that 

evidence “would confuse the jury, and would prejudice the Government.” (Doc. 1643 at 

11.) This order should remain the law of the case.

The United States Supreme Court has made clear that defendants do not have the 

right to introduce all relevant evidence at trial. Montana v. Egelhoff, 518 U.S. 37, 41-42 

(1996). In overturning a state supreme court decision, the Egelhoff Court found that “the 

proposition that the Due Process Clause guarantees the right to introduce all relevant 

evidence is simply indefensible.” Id. at 42. The Court then provided a number of examples 

of when relevant evidence may be excluded at trial, including because of Rule 403. Id. 

Here, Defendants clearly have the right to testify in their own defense, but that right doesn’t 

extend to topics that violate Rule 403. Id. (“And any number of familiar and 

unquestionably constitutional evidentiary rules also authorize the exclusion of relevant 

evidence. For example, Federal (and Montana) Rule of Evidence 403 provides. . .”). 

As the United States argued in a previous motion, evidence related to Backpage’s 

prior litigation would create serious risks of confusing the issues, misleading the jury, and 

wasting time. (Doc. 1597 at 4.) “The United States would have to explain that these cases 

involved different statutes, standards, parties, and facts. It would have to spend time 

articulating how numerous exhibits in this case were unknown to opposing litigants in 

earlier cases, and thus how the outcomes in those cases involved Backpage’s lack of 

transparency. This trial would devolve into a series of mini trials about those earlier cases.” 

(Id.) The Court agreed and granted the motion. (Doc. 1643 at 11.) There’s no reason to 

revisit this issue now.

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Defendant Brunst’s filing illustrates precisely the Rule 403 problems that the 

Court’s Order (Doc. 1643 at 11) is designed to avoid. Brunst asserts that the Seventh 

Circuit in Backpage.com LLC v. Dart, 807 F.3d 229, 233-34 (7th Cir. 2015), relied on a 

factual record “that tracks the Government’s indictment and evidence at trial in the instant 

case.” (Doc. 1879 at 11.) That’s incorrect. As the United States has pointed out repeatedly, 

the Seventh Circuit (which decided Dart in 2015) had none of the internal evidence of 

Backpage’s prostitution marketing strategies that Backpage was later compelled to produce 

to the U.S. Senate and the Arizona federal grand jury in 2016-2017. (Doc. 1597 at 3; Doc. 

649, Resp. at 2-3, 22-24.) 

This evidence includes incriminating emails demonstrating, inter alia, that 

Backpage entered into a yearslong business relationship with The Erotic Review—

discussed in budgets that Brunst reviewed and approved, and funded with checks that 

Defendant Scott Spear signed—that “created huge brand awareness in this niche industry 

and increased page views from TER by 120,000 per day” (Ex. 23 at 3, 2008 Budget Plan); 

Brunst, Scott Spear, Jim Larkin, and others regularly received Google Analytics reports 

showing that—even as late as 2015—The Erotic Review continued to be Backpage’s 

number one source of non-search engine referrals (see, e.g., Exs. 1924, 1926, 1995); and 

Defendants continued to allow users to include their TER review identification numbers 

until the site’s shutdown in 2018 (see, e.g., Exs. 73 and 647). The Erotic Review’s postings 

contained details about the prostitution services and prices offered by prostitutes 

advertising on Backpage. Multiple trial witnesses (including Backpage employees,

victims, law enforcement officers, and NCMEC and Polaris representatives) testified that 

references to such reviews in Backpage’s ads left no doubt about what the ads were for—

prostitution. 

And, of course, the Dart court didn’t have witness testimony from Backpage 

insiders like Carl Ferrer, Dan Hyer, and Jess Adams, detailing the company’s partnership 

with The Erotic Review and how that partnership was instrumental in establishing

Backpage’s market position as a leading source of prostitution ads. Nor did the Dart court 

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have access to internal Backpage documents detailing Backpage’s aggregation strategy—

copying prostitution ads from other websites, putting them on Backpage, and attempting 

to enlist the featured prostitutes as Backpage customers—or testimony about how 

Backpage implemented that strategy. (See, e.g., Ex. 10.) The Dart court likewise lacked

internal evidence about Backpage’s commission-driven relationship with super-posters. It 

certainly did not have the hundreds of internal emails, and related witness testimony, 

detailing how Backpage implemented a “moderation” program that was calculated to make 

prostitution ads less obvious while still promoting, or facilitating the promotion of, its

customers’ prostitution business enterprises.

Dart and similar cases cited by Defendants were all premised on the false notion 

that Backpage was merely a passive “intermediary between the advertisers of adult services 

and visitors to Backpage’s website.” Dart, 807 F.3d at 233-34. (Doc. 1597 at 3.) Yet, the 

subsequently produced internal documents (only a small portion of which are described 

above) revealed that Backpage had misrepresented itself in the above-referenced cases as 

merely a passive “conduit” for third-party content, cf. Dart, 807 F.3d 229, 233-34, and 

exposed its supposed efforts to police unlawful ads on its site as a fiction, cf. 

Backpage.com, LLC v. McKenna, 881 F.Supp. 2d 1262, 1266-67 (W.D. Wash. 2012).

Defendants failed to disclose this evidence to the courts that previously ruled in Backpage’s 

favor. 

After this evidence emerged, Backpage and Ferrer pleaded guilty in 2018 and 

admitted that the “great majority” of Backpage’s revenue-generating ads were “for 

prostitution services.” (18-CR-464, Doc. 7-2 at 12-13; 18-CR-465, Doc. 8-2 at 11; see Doc. 

271 at 9-10.) 

Following these developments, the Northern District of Illinois made a remarkable 

U-turn—it dismissed Dart and imposed $250,000 in sanctions on Backpage.com, LLC for 

perpetuating a fraud on the court. (See Doc. 516-1 at 2-9; see also Doc. 446-1 at 14-35.) 

The court found that Backpage misled the court about whether “speech on the site was 

protected, whether Backpage.com policed, rather than promoted, unlawful solicitations, 

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and otherwise merely published, rather than authored, content on its site.” (Doc. 516-1 at 

4-5; see id. at 8 (“Backpage knowingly and repeatedly made false representations of fact 

concerning relevant aspects of its operations.”). 

While Brunst attempts to characterize this as irrelevant to his state of mind in 2015-

2018 (cf. Doc. 1879 at 11 n.2), much of the trial evidence shows that Brunst was aware and 

approved of Backpage’s relationship with TER—including his review and approval of 

budgets that including funding for TER, his routine receipt of Google Analytics reports, 

and his oversight and familiarity with the Backpage business—as evidenced by, among 

other things, his efforts to market the website to third party investors in 2011 and 2014. 

Based on investor presentations that he co-authored and reviewed, Brunst knew that the 

vast majority of Backpage’s revenue came from its Adult section, and that most of that 

revenue came from Female Escorts. (See, e.g., Ex. 120 at 12, 15; Ex. 1049 b at 6.) Brunst

knew that most of the revenue from these ads came from the sale of “move-to-top” 

upgrades. (See Ex. 500.) And he knew that most of those upgrades, in turn, were sold to 

users of the Female Escorts section. (See Exs. 1670, 1670a.) The trial evidence also 

overwhelmingly shows Brunst’s awareness of how Backpage’s reputation as a hub for 

prostitution ads had made the company toxic in banking and financial circles—causing 

Brunst to personally lead the way for Backpage to open new credit card processing and 

banking relationships in foreign countries including Bulgaria (eMerchant Pay), 

Liechtenstein (Bank Frick), and Iceland (Borgun). Brunst also helped direct the use of 

corporate entities with names unrelated to Backpage to process and launder Backpage 

derived funds. 

The foregoing is not meant to be an exhaustive account of the evidence showing 

Defendant Brunst’s (or any other Defendant’s) guilt. Rather, the point is that Brunst had 

knowledge of Backpage’s internal strategies and the public fallout that they caused long 

before the Dart litigation ended in dismissal and sanctions for Backpage. 

Defendant Lacey makes similar arguments, and also references other court 

decisions—including orders dismissing two California criminal complaints against him. 

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(Doc. 1886 at 5.) But Lacey concedes, as he must, that these orders were based on the 

CDA. (Doc. 1886 at 5.) See People v. Ferrer, 2016 WL 7237305, at *11 (Cal. Super. Ct. 

Dec. 16, 2016) (dismissing state law criminal charges against Lacey, Larkin and Ferrer; 

recognizing “it is for Congress, not this Court, to revisit” the CDA); People v. Ferrer, No. 

16FE024013 (Cal. Super. Ct. Aug. 23, 2017) (after Lacey, Larkin and Ferrer were indicted 

on new counts, the court again found itself compelled to dismiss pimping-related charges 

“until Congress sees fit to amend...the broad reach of section 230”) (Doc. 561-1 at 19). 

And the Court has consistently excluded references to the CDA on relevance and Rule 403 

grounds here. (See, e.g., Doc. 1643 at 10; Doc. 793 at 13; Doc. 840.)

Defendant Spear suggests that “[h]ad [he] received information that the 

Backpage/Village Voice Media practices were illegal and/or not legally protected, he 

would have resigned.” (Doc. 1888 at 3.) Brunst make a similar claim. (Doc. 1879 at 3.) 

But Backpage’s litigation track record was not as straightforward as Defendants argue. 

In 2015, for example, the Washington Supreme Court denied Backpage’s motion to 

dismiss a civil lawsuit brought by three minor girls who had been “bought and sold for 

sexual services” on Backpage. See J.S., 359 P.3d at 715-16. The court held that, because 

the plaintiffs had plausibly alleged that Backpage does “more than just provide a forum for 

illegal content” and affirmatively shapes the content of users’ ads through “posting rules 

[that are] ‘designed to help pimps develop advertisements that can evade the unwanted 

attention of law enforcement, while still conveying the illegal message,’” the plaintiffs 

should be permitted to conduct discovery “to ascertain whether in fact Backpage designed 

its posting rules to induce sex trafficking.” Id. at 718.1

 See also Jane Doe No. 1 v. 

Backpage.com, LLC, 817 F.3d 12, 17, 29 (1st Cir. 2016) (three minor girls who had been 

raped more than 1,900 times as a result of being trafficked via Backpage “made a 

persuasive case” that “Backpage has tailored its website to make sex trafficking easier”; 

nevertheless dismissing case under CDA, which does not a apply here). 

1 In 2017, the trial judge in the J.S. case denied Backpage’s motion for summary judgment. Afterward, Backpage entered a confidential settlement with the plaintiffs.

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Backpage also lost several important legal battles regarding the compelled 

disclosure of its internal documents. See, e.g., Senate Permanent Subcommittee v. Ferrer, 

199 F. Supp. 3d 125, 129 (D.D.C. 2016); (Doc. 194 at 7-8; Doc. 194-1, Exs. A-D). In 

January 2017, based on documents Backpage was forced to produce, the U.S. Senate 

Permanent Subcommittee on Investigations issued its 50-page report, 

BACKPAGE.COM’S KNOWING FACILITATION OF ONLINE SEX TRAFFICKING.

(Ex. 1587.) Allowing Defendants to testify about Backpage’s litigation track record could 

open the door to questioning about these contrary legal developments—further raising the 

serious risks of confusing the issues, misleading the jury, and wasting time highlighted in 

the United States’ motion in limine about prior litigation. (See Doc. 1597 at 4.)

Defendants also reference the previous investigation into Backpage that occurred in 

the Western District of Washington as somehow demonstrating that the company and its 

principals and managers could not be criminally charged. As has been discussed above, 

the United States did not possess the same evidence it does now that detailed Backpage’s 

internal prostitution marketing strategies. The previous investigation cannot be used to 

demonstrate Defendants’ alleged good faith.

II. Defendants May Not Assert An Advice of Counsel Defense Without Meeting 

the Four Factors Articulated By the Court

Defendants also ask the Court to reconsider its previous ruling on Defendants’ 

advice-of-counsel defense.2

 Again, Defendants provide no justification for doing so. The 

Court clearly set forth the formula for Defendants to raise such a defense. (Doc. 1643 at 

12.) To assert the defense, Defendants needed to demonstrate the following four factors:

(1) they made a complete disclosure to counsel; (2) they requested counsel’s advice as to 

2 Defendant Lacey is incorrect when he characterizes the Court’s previous Order as limiting any potential advice Defendants received to the 50 charged ads. (Doc. 1886 at 3.) The Court’s Order made clear that Defendants could raise an advice of counsel defense “if 

they show they provided ‘complete disclosure[s]’ about the advice they sought on an ad 

listed in Counts 2-51 (or similar ad described in the SI).” (Doc. 1643 at 12) (emphasis added.) The evidence at trial has demonstrated that nearly every single ad posted in 

Backpage’s female escorts section was for prostitution, so the advice of counsel defense 

would cover any advice Defendants received related to escort ads. 

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the legality of the contemplated action; (3) they received advice that it was legal; and (4) 

they relied in good faith on the advice. (Id.) 

Defendants have failed to establish any of these four factors. Without demonstrating 

that “they made a complete disclosure to counsel,” any advice they may have received from 

an attorney isn’t valid. For example, Defendant Brunst identifies a 31-page legal 

memorandum authored by attorney Mark Sableman (Doc. 1879 at 14; Exhibit 5507), as 

evidence supporting Brunst’s good faith. But a cursory review of the memo would lead 

the reader to conclude that Sableman didn’t know, for example, about Backpage’s 

reciprocal link program with The Erotic Review. Exhibit 5507 at 13 (“Village Voice does 

not encourage, promote, or even acquiesce in ads for illegal services.”); Id. at 16 (“[Village 

Voice] takes great efforts to make sure its service is not used for prostitution.”). If 

Defendants didn’t inform Sableman of all material facts, then his advice is meaningless. 

This, of course, is why the Court ruled that Defendants must establish the four factors 

before offering this evidence. This evidence, without first establishing that the attorney 

had a complete understanding of Backpage’s business practices before providing the 

advice, would confuse and mislead the jury. This advice of counsel evidence should 

remain inadmissible.3

Nor should Defendants be permitted to introduce advice of counsel through the 

backdoor of asserting that another person (e.g., Mr. Larkin) obtained such advice and then 

relayed it to them. (See Doc. 1886 at 3.) Lacey concedes that he and Larkin were business 

partners, and that Larkin obtained legal advice on behalf of both of them and/or their 

jointly-owned business entities. (See Doc. 1886 at 3.) Lacey cannot avoid meeting the 

3 Defendant Lacey’s footnote on page three is misguided. (Doc. 1886 at 3, n.1.) Defendant Lacey confuses whether the attorney-client privilege has been waived as to 

certain topics based on certain disclosures (Doc. 1168) with the requirements necessary to assert an advice-of-counsel defense. It matters not whether the attorney-client privilege exists as to certain communications. Rather the important consideration is whether Lacey has demonstrated that he “made a complete disclosure to counsel” before the attorneys rendered their advice. The Court’s Order in Doc. 1168 is a red herring and has no relevance to the asserted advice of counsel defense. 

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requirements for asserting an advice of counsel defense merely by virtue of the fact that 

his partner relayed their lawyers’ advice to him. 

Nor should Lacey be allowed to cite amicus briefs in other litigation involving 

Backpage, or letters written in support of Backpage’s legal positions by other third parties. 

Without any proof that full disclosures of Backpage’s prostitution-marketing strategies had 

been made to these third parties, the same undue risks of jury confusion, waste of time, and 

misleading pronouncements of law underlying the Court’s rulings in Doc. 1643 also 

militate strongly against admission of these third party materials under Rule 403.

III. Lacey’s “Good Faith Reliance on Public Officials” Argument Lacks Merit

Defendant Lacey asserts that he wants to introduce evidence that certain public 

officials made statements “indicating that website operators, like Backpage, could not be 

prosecuted with any federal crimes.” (Doc. 1886 at 5.) As support for this argument, he 

points to Francine Hakes and Ernie Allen. Defendants have made similar arguments about 

public officials’ testimony in the past, and the Court has rejected them. (See, e.g., Doc. 

561, Mot. at 28-29; Doc. 793 at 15, 17-18.)

As for Hakes, Lacey cannot testify to what he heard Hakes say, any more than he 

can testify about what he heard one of his own lawyers say, or what he read some civil 

court case held. In addition to being hearsay without an exception, such testimony would 

violate Rule 403 as being misleading, confusing, and a waste of time for the jury. Indeed, 

if Lacey were to testify to one statement he heard Hakes say in a hearing in September 

2010, the United States would have to put into evidence the testimony of all other people 

who testified at that same hearing who said contradictory things—including specifically 

about Backpage. Interestingly, that would include the testimony of Ernie Allen from that 

same hearing, contained Exhibit 925a (not yet admitted), even though Lacey does not 

mention that testimony among the other Ernie Allen statements he wants to claim to rely 

upon.

Lacey next asserts that Ernie Allen, who was President and CEO of NCMEC for 

many years, is a “public official” upon whom Lacey wants to testify he relied upon. But 

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Allen is not a public official because NCMEC is not a government entity. (Doc. 810 at 4-

9.) As John Shehan testified on October 19, 2023, NCMEC is “is a private nonprofit 

organization.” Thus, Allen is not a public official, and his statements cannot be attributed 

to the United States government in any agency capacity. 

Regardless of Allen’s title or position, the statements Lacey intends to introduce are 

hearsay within hearsay, with no exception. See Sept. 12, 2023 Tr. (Court sustained Mr. 

Cambria’s objection to “rank hearsay” when Ferrer testified to what Mayor McGinn said 

in a letter). But here, there are even more layers of hearsay because Lacey would not be 

testifying about what Ernie Allen said to Lacey, but instead what Don Moon told Lacey 

that Allen said to Moon. (Exh. 5519). Even worse, is Exhibit 5520, in which Lacey would 

testify about what Larkin told Lacey that Moon told Larkin, about what Allen told Moon. 

Additionally, Defendants are yet again trying to smuggle in advice of counsel by 

introducing evidence of what Moon, a lawyer, told them. The United States does not object 

to the advice of counsel defense if Defendants comply with requirements for asserting it. 

(Doc. 1643 at 12-13.) But until they do so, the introduction of statements by such lawyers, 

especially in the form of hearsay statements contained in emails offered by someone on the 

witness stand who is not that lawyer (in this case, Lacey), violates this Court’s prior orders 

on the advice of counsel issue, and would violate Rule 801. 

Lacey further supports his argument in part by reliance on impeachment exhibits 

that have not been disclosed with his filing. (See Doc. 1886 at 6 (citing Exh. PC-EA-82, 

which has not been provided to the United States).) Lacey wants to testify about reading 

an email or letter of unknown vintage and context, ostensibly from Ernie Allen, in which 

Allen asserts that he met with Attorney General Eric Holder on some unspecified date, and 

then sometime later “some Criminal Division prosecutors” met with Allen and made some 

statements about the mens rea for prosecuting Backpage. (See id.)

In other words, Lacey seeks to testify that unnamed federal prosecutors told Allen 

that Backpage could not be prosecuted. This, too, is multi-layered hearsay without 

exception that should be excluded, especially because at least one layer of hearsay comes 

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from unnamed sources. It would be the equivalent of the United States offering testimony 

from Ferrer that he read an email in which Allen said that Allen met with some executives 

at Backpage who confessed that they were committing a Travel Act crime. Ferrer doesn’t 

know who the executives were that confessed, and he did not hear it himself, but he read it 

in an email. In that hypothetical, however, there would be a plausible hearsay exception 

(statement of a party opponent), but it would be so buried within additional layers of 

hearsay that it would not be admissible. Lacey’s attempt to offer similar hearsay—without 

any exception—should be disallowed.

Similarly, Lacey seeks to testify about and introduce Exhibit 5518, yet another email 

from Don Moon, about what John Shehan said to Moon in a meeting. Again, like the Allen 

emails discussed above, this statement by Moon about something he claimed Shehan said, 

is a double-layered hearsay statement that Lacey cannot introduce. Fed. R. Evid. 801. 

Notably, Lacey’s counsel could have cross-examined Shehan about making such a 

statement when Shehan testified on October 18, 2023, but chose not to. Perhaps that is 

because counsel knew that Shehan could not be impeached with an email from Moon about 

what Moon claimed Shehan said. But that is precisely the same reason why Lacey should 

not be able to testify about what Lacey claims Moon told Lacey about what Shehan said to 

Moon. Rule 801 does not have an exception for the hearsay Lacey seeks to introduce in 

this form.

Next, Lacey argues that a House Judiciary Report published on February 20, 2018, 

in advance of the enactment of SESTA/FOSTA, “strengthened his belief that the operation 

of Backpage was lawful.” (Doc 1886 at 6.) Lacey quotes the report as saying: “current 

federal criminal law, which is unaffected by the CDA, presently lacks proper prosecutorial 

tools to combat these websites.” ( Id. (quoting Exh. 6119 at 5).) 

It is unclear from his filing what Lacey wants to introduce to the jury regarding this 

particular issue. Perhaps he wants to introduce Exhibit 6119 during his own testimony as 

some kind of evidence that he had relied in good faith on such language that was issued 

approximately two months before the end of the 14-year conspiracy when Backpage was 

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shut down and he was indicted. The United States objects to the introduction of such an 

exhibit because it contains numerous references to Section 230 and the CDA, as well as 

other litigation, which this Court has already ruled would be very confusing and misleading 

to the jury. (Doc. 1643 at 9-11.) The law of the case here should control. 

Even if the law of the case did not control, this Court should preclude this testimony 

and exhibit because, if 6119 were admitted, the United States would have to focus the 

jury’s attention on the savings clause:

SEC. 5. SAVINGS CLAUSE.

Nothing in this Act or the amendments made by this Act shall be construed to

limit or preempt any civil action or criminal prosecution under Federal law or State

law (including State statutory law and State common law) filed before or after the

day before the date of enactment of this Act that was not limited or preempted by

section 230 of the Communications Act of 1934 (47 U.S.C. 230), as such section 

was in effect on the day before the date of enactment of this Act.

Ex. 6119 at 3. The admission of testimony about Exhibit 6119 or admission of the exhibit 

itself would require rebuttal testimony to explain why the Savings Clause notified 

Defendants that FOSTA/SESTA does not impede the instant prosecution, and how the 

Savings Clause further puts Defendants on notice that such a prosecution is viable. Such 

a devolution into the esoteric nature of federal legislation that post-dated all but two months 

of a 14-year conspiracy would be so confusing to the jury and such a waste of time, that it 

necessarily becomes far more prejudicial than probative on the point for which it is 

proffered. See Fed. R. Evid. 403.

Defendants’ suggestion that they could not have been prosecuted under federal law 

pre-FOSTA lacks merit for another reason: Before the indictment issued in this case, at 

least three federal courts recognized that prostitution website operators may be prosecuted 

under the Travel Act. (See Doc. 649 at 20-23.) First, in United States v. Omuro, the 

Northern District of California accepted the guilty plea and convicted the founder, Eric 

Omuro, of www.myRedBook.com under the Travel Act, 18 U.S.C. § 1952(a)(3)(A). (See 

N.D. Cal. No. 14-CR-336, Doc. 70 at 1-2.) Omuro’s website hosted thousands of ads 

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posted by prostitutes, and Omuro generated some millions in profits from fees paid by 

“escorts” to post their ads more prominently and from “membership” fees. (N.D. Cal. No. 

14-CR-336, Doc. 70 at 2-3.) 

Second, in United States v. Hurant, the Eastern District of New York accepted the 

guilty plea and convicted the founder of www.Rentboy.com, Jeffrey Hurant, for violating 

the Travel Act. (E.D.N.Y. No. 16-CR-45, Doc. 117 at 1, 13-14.) Hurant admitted he “was 

well aware . . . that the escort ads he posted . . . were thinly-veiled proposals of sexual 

services in exchange for money.” (E.D.N.Y. No. 16-CR-45, Doc. 117 at 6.) Like 

Backpage, his employees often rejected ads with explicit offers of sex for money “but 

allow[ed] the ad to be resubmitted with different language. In many cases, Rentboy.com 

employees would just edit the advertisement’s language and approve it.” (E.D.N.Y. No. 

16-CR-45, Doc. 125 at 2.)

Third, during grand jury proceedings that led to this prosecution, Senior District 

Judge David Campbell recognized that federal law “criminalize[s] the knowing publication 

of an advertisement for illegal prostitution or other illegal activity.” (Doc. 194-1 at 66.) 

Judge Campbell and a unanimous three-judge panel of the Ninth Circuit rejected 

Backpage’s First Amendment challenges to the government’s investigation and theory of 

the case. (See Doc. 194 at 7-8; Doc. 194-1, Exhs. A-D.)

Defendants’ assertions are also squarely at odds with the law of this case. In Doc. 

793, the Court rejected Defendants’ motion to dismiss the SI (Doc. 230) and held that the 

SI properly stated an offense under the Travel Act. In Doc. 946, the Court again upheld 

the sufficiency of the Travel Act charges in the SI. (See also Doc. 840 (denying motion to 

dismiss based on the CDA).); see United States v. Lacey, No. 22-10000, 2022 WL 

4363818, at *1–2 (9th Cir. Sept. 21, 2022) (discussing Doc. 793’s holding that the SI’s 

facts, “taken as true, establish [D]efendants had the specific intent to promote prostitution 

in violation of the Travel Act”; finding that, at the time of prior mistrial, “the government 

still had a clear path to prevailing at trial”).

Finally, Lacey seeks to testify that the “Director of the FBI, Robert Mueller, 

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presented a commendation to Ferrer.” (Doc. 1886 at 7.) First, there is no evidence that 

Director Mueller ever met Ferrer, much less presented a commendation to him. Instead, 

there is evidence that a field agent mailed a certificate to Ferrer that was signed by Mueller. 

But this evidence was already admitted during Mr. Eisenberg’s cross-examination of Ferrer 

on October 10, 2023. (See also Ex. 6142.) If Mr. Lacey wants to take the stand and testify 

under oath that he relied on Exhibit 6142 in good faith, in the face of all the contrary 

evidence, the United States does not object; indeed, the United States welcomes the 

opportunity to test that good faith reliance through cross-examination. 

Respectfully submitted this 23rd day of October, 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/Andrew C. Stone 

 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 October 23, 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/ Andrew C. Stone

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