1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS 

Thomas H. Bienert, Jr. (CA Bar No.135311, admitted pro hac vice) 

Whitney Z. Bernstein (CA Bar No. 304917, admitted pro hac vice) 

BIENERT KATZMAN LITTRELL WILLIAMS LLP

903 Calle Amanecer, Suite 350

San Clemente, California 92673 

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

tbienert@bklwlaw.com

wbernstein@bklwlaw.com

Attorneys for James Larkin

Paul J. Cambria, Jr. (NY Bar No. 1430909, admitted pro hac vice)

Erin McCampbell (NY Bar. No 4480166, admitted pro hac vice)

LIPSITZ GREEN SCIME CAMBRIA LLP 

42 Delaware Avenue, Suite 120 

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

pcambria@lglaw.com 

emccampbell@lglaw.com 

Attorneys for Michael Lacey

Additional counsel listed on next page

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA 

United States of America,

Plaintiff,

vs.

Michael Lacey, et al., 

 

Defendants. 

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

DEFENDANTS’ REPLY IN SUPPORT 

OF MOTION TO DISMISS WITH 

PREJUDICE

(Oral argument and evidentiary hearing 

requested) 

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 1 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS 

Gary S. Lincenberg (CA Bar No. 123058, admitted pro hac vice)

Ariel A. Neuman (CA Bar No. 241594, admitted pro hac vice)

Gopi K. Panchapakesan (CA Bar No. 279856, admitted pro hac vice)

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW PC

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: (310) 201-2100

Facsimile: (310) 201-2110

glincenberg@birdmarella.com 

aneuman@birdmarella.com 

gpanchapakesan@birdmarella.com 

Attorneys for John Brunst

Bruce Feder (AZ Bar No. 004832) 

FEDER LAW OFFICE PA

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

Telephone: (602) 257-0135

bf@federlawpa.com 

Attorney for Scott Spear

David Eisenberg (AZ Bar No. 017218)

DAVID EISENBERG PLC

3550 N. Central Ave., Suite 1155

Phoenix, Arizona 85012

Telephone: (602) 237-5076

Facsimile: (602) 314-6273

david@deisenbergplc.com 

Attorney for Andrew Padilla

Joy Malby Bertrand (AZ Bar No. 024181) 

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

Telephone: (602)374-5321

Facsimile: (480)361-4694

joy.bertrand@gmail.com 

Attorney for Joye Vaught 

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 2 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

i

TABLES

TABLE OF CONTENTS

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

A. Factual Background............................................................................................... 2

B. Legal Background.................................................................................................. 6

II. THE COURT SHOULD DISMISS THE INDICTMENT WITH PREJUDICE 

UNDER THE DOUBLE JEOPARDY CLAUSE. ..................................................... 9

A. Judge Brnovich declared a mistrial because of the government’s purposeful 

conduct and did not make any findings under Kennedy. ..................................... 10

B. The government’s other arguments are similarly unavailing. ........................ 11

C. Defendants have asserted a more than colorable double jeopardy claim. ... 13

III. THE COURT SHOULD DISMISS THE INDICTMENT WITH PREJUDICE 

UNDER ITS SUPERVISORY AUTHORITY. ......................................................... 14

A. The government admits to withholding obvious Rule 16 and Brady material.

................................................................................................................................ 16

B. The government’s justification of its invasions of Defendants’ privileges 

with Ferrer is manifestly hypocritical. ............................................................... 17

C. The government’s invasions of Defendants’ privileges with respect to nearly 

1,000 emails shows a broad pattern of misconduct........................................ 19

IV. THE COURT SHOULD DISMISS THE INDICTMENT WITH PREJUDICE 

UNDER THE DUE PROCESS CLAUSE................................................................. 22

V. CONCLUSION............................................................................................................... 22

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 3 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ii

TABLES

TABLE OF AUTHORITIES

Cases Page(s)

Arizona v. Washington, 

434 U.S. 497 (1978).............................................................................................................................. 12

Bartnicki v. Vopper, 

532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001)..................................................................... 8 

Bursey v. United States, 

466 F.2d 1059 (9th Cir. 1972)............................................................................................................... 9 

Carriger v. Stewart, 

132 F.3d 463 (9th Cir. 1997)............................................................................................................... 16

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

868 F.3d 104 (2d Cir. 2017) .................................................................................................................. 8 

Chaplinsky v. New Hampshire, 

315 U.S. 568 (1942)................................................................................................................................ 9 

Greater Philadelphia Chamber of Com. v. City of Philadelphia, 

949 F.3d 116 (3d Cir. 2020) .................................................................................................................. 8 

IMDB.com Inc. v. Bacerra, 

962 F.3d 1111 (9th Cir. 2020)............................................................................................................... 8 

McKenna, 

881 F. Supp. 2d...............................................................................................................................2, 3, 9

Metro Lights, L.L.C. v. City of Los Angeles, 

551 F.3d 898 (9th Cir. 2009)................................................................................................................. 7 

Oregon v. Kennedy, 

456 U.S. 667 (1982)..........................................................................................................................9, 12

Pittsburgh Press Co. v. Human Relations Comm’n, 

413 U.S. 376 (1973)............................................................................................................................6, 7

Richardson v. United States, 

468 U.S. 317 (1984).............................................................................................................................. 13

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 4 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

iii

TABLES

United States v. Alvarez-Moreno, 

657 F.3d 896 (9th Cir. 2011)............................................................................................................... 13

United States v. Bhatia, 

No. CR 05-0334 SBA, 2007 WL 2795066 (N.D. Cal. Sept. 26, 2007).......................................... 13

United States v. Bundy, 

968 F.3d 1019 (9th Cir. 2020)............................................................................................................. 17

United States v. Kojayan, 

8 F.3d 1315 (9th Cir. 1993).................................................................................................... 14, 15, 22

United States v. Lopez-Avila, 

678 F.3d 955 (9th Cir. 2012).........................................................................................................14, 15

United States v. Lum, 

 944 F.2d 642 (9th Cir. 1991)............................................................................................................... 11

United States v. Martin, 

561 F.2d 135 (8th Cir. 1977)................................................................................................................. 9 

United States v Pederson, 

2014 WL 3871197 (D. Or. Aug. 6, 2014).......................................................................................... 21

Valle Del Sol Inc. v. Whiting, 

709 F.3d 808 (9th Cir. 2013).............................................................................................................7, 8

Statutes

A.R.S. § 9-500.10 ........................................................................................................................................ 2 

A.R.S. § 13-1422 ......................................................................................................................................... 2 

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 5 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

I. INTRODUCTION. 

In the face of damning admissions from one of its key witnesses, a California DOJ agent, 

that the hundreds of Backpage.com ads he reviewed in effect were protected speech under the 

First Amendment, the government had no option but to goad Defendants into moving for a 

mistrial. Agent Fichtner was supposed to testify that the ads he reviewed “were nothing less than 

prostitution ads.” Exh. E at 7-11.1 Instead, he testified that the ads were lawful on their face, he 

could not tell whether they advertised prostitution, and he made no arrests based on the ads (and 

is not aware of any law enforcement officer making arrests based on the ads). See, e.g., Exhs. J, K. 

With the core of the government’s case eviscerated by the conclusion of its first witness’ testimony, 

the government doubled down and goaded a mistrial through repeated inflammatory testimony 

about rape and child sex trafficking that violated multiple Court orders. If there ever was a case 

of “goading” under Oregon v. Kennedy, this is it. 

Alternatively, the Court should dismiss the indictment under its supervisory powers. The 

government admits it has not turned over a highly relevant and exculpatory attorney opinion letter 

provided by Arnold & Porter to a prospective third-party purchaser of Backpage regarding the 

legality of the business. Dkt. 1395 (“Opp.”) at 26-27. That is the tip of the iceberg here, as the 

government continues to deny the obvious relevance of a prior federal investigation that resulted 

in a decision not to prosecute Backpage just six years before this prosecution was brought, without 

ever certifying that it has produced all of the factual materials underlying that investigation. 

The government also continues to sweep under the rug its admitted, serial privilege 

invasions during its interviews of the government’s key cooperating witness, Carl Ferrer. The 

government cannot escape its tacit admission on the eve of trial (in seeking to preclude Defendants 

from putting on the very attorney advice that the government previously claimed was nonprivileged) that the questions it asked Ferrer directly called for information that, on its face, is 

privileged. This Court’s supervisory powers exist precisely to address this type of pattern of 

government misconduct and to deter the government from engaging in such conduct again in the 

future. 

1 “Exh.” Refers to the exhibits attached to Defendants’ Motion to Dismiss at Dkt. 1355.

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 6 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

Because this motion was filed prior to Judge Brnovich’s recusal and the Court does not 

have the benefit of being familiar with the nearly four years of history preceding Defendants’ 

motion dismiss, Defendants initially will provide some context regarding the government’s charges 

so the Court can better understand how the government’s case foundered, why the government 

would want to cause a mistrial, and how the government’s trial misconduct is part of a long pattern 

of misconduct. 

A. Factual Background

On March 28, 2018, Defendants were indicted on Travel Act charges tied to fifty specific 

adult-oriented ads that had run on Backpage.com, related money laundering counts, and related 

conspiracy charges. Each of the fifty charged ads was either a dating ad, an ad for massage services, 

or an ad for escort services—with dating, massage services, and escort services all being lawful 

activities.2 

Backpage.com was the second largest classified advertising website on the internet. See 

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

years it operated, the site hosted hundreds of millions of ads posted by third parties, including 

many millions of adult-oriented ads. Id. Similar to craigslist.com (the largest classified ad website 

on the Internet), most ads on Backpage were free. Id. Also like craigslist, Backpage generally 

required the payment of a small fee (between $7.00 and $12.00) for adult-oriented ads. Some of 

the fifty charged ads were paid ads, but others were free ads that generated no revenue for 

Backpage. Backpage’s aggregate revenues from the publication of the fifty charged ads probably 

were at most between $500.00 and $1,000.00. 

2 The government erroneously told Judge Brnovich that escort services were unlawful 

virtually everywhere in the United States (Dkt. 1171-1 at 15 (“I think escort is sort of a 

misnomer.... because it suggests that escort services is somewhat legal. And, as we know, it’s only 

legal in a very a small county in Nevada, so it’s really prostitution services...”)), but that is not 

true. E.g., McKenna, 881 F. Supp. 2d at 1282 (“numerous states license, tax and otherwise regulate 

escort services as legitimate businesses”); A.R.S. § 9-500.10 (regulating escort advertising); A.R.S. 

§ 13-1422 (regulating adult oriented businesses, including escorts). Judge Brnovich, too, 

understood escort services to be lawful. Dkt. 1171-1 at 15-16 (“I did think there was a distinction 

between escort services and prostitution services, so I guess that’s the main thing, or one of the 

issues involved in the case...”). 

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 7 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

From the many millions of adult-oriented classified ads that ran on Backpage in its fourteen 

years of operation, the government identified and charged just one ad that expressly offered sex 

in exchange for money. Dkt. 230, ¶ 201, Count 23. That solitary ad was a free ad, which generated 

absolutely no revenue for Backpage. None of the forty-nine other charged ads expressly offered 

sex in exchange for money, nor did any other Backpage ad the government identified in its 

disclosures to the defense. That is because, as the government knows, Backpage never allowed 

ads offering sex in exchange for money on its website. 

Undeterred by the fact that Backpage never permitted ads proposing facially unlawful 

transactions, the government premised its prosecution on its claim that many Backpage ads 

contained terms or images that were “indicative” of prostitution, which it claimed made them 

“obvious” prostitution ads. E.g., Superseding Indictment ¶ 160 (“Victim 1’s Backpage ads often 

included words and phrases that were indicative of prostitution”).3 The government took the same 

tack in its unprecedented seizures of virtually all of Defendants’ assets (see Dkt. 1366), where its 

affiant, Postal Inspector Lyndon A. Versoza, acknowledged the “seemingly innocuous language” 

in Backpage ads, but claimed the “otherwise neutral or innocuous terms” in Backpage ads actually 

were a “coded language for sex trafficking and prostitution.”4 Inspector Versoza also claimed, 

based on his “training and experience,” that images in Backpage ads such as “a picture of a 

3 See also ¶¶ 34 (“ads ... [had] terms and pictures that were particularly indicative of 

prostitution”); 68 (“particular terms that were indicative of prostitution”); 75 (“terms indicative of 

prostitution”); 78 (“50 terms [] all of which were indicative of prostitution”); 87 (“lengthy list of 

terms that were indicative of prostitution”); 91 (“ad [] was obviously for prostitution”); 95 (“660 

words or phrases that are indicative of prostitution”); 96 (“The ad was obviously for prostitution”); 

107 (“phrases ... indicative of prostitution”); 128 (“words and phrases that are indicative of 

prostitution”); 132 (“a woman who was obviously posting prostitution ads”) (first bullet point); 

143 (“long list of terms that are indicative of prostitution”); 161 (Victim 2’s ads “also contained 

words and phrases indicative of prostitution”); 164 (“Victim 5’s Backpage ads included words and 

phrases that were indicative of prostitution”); 167 (“Victim 8’s ... ads on Backpage [] included 

words and phrases that were indicative of prostitution”); 170 (Victim 11’s “Backpage ads contained 

words and phrases indicative of prostitution”).

4 Even if Postal Inspector Versoza expressed his opinions about coded language in good 

faith, he could not know whether his speculations were correct. McKenna, 881 F. Supp. 2d at 1279 

(“[W]here an online service provider publishes advertisements that employ coded language, a 

reasonable person could believe that facts exist that do not in fact exist: an advertisement for escort 

services may be just that.... [I]f the offer is implicit, how can a third party ascertain that which is 

being offered before the transaction is consummated?”).

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 8 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

woman’s cleavage,” women “wearing lingerie” and “posing in sexual positions,” and images of 

“naked buttocks” also were “typical of ads for prostitution.”5 Dkt. 1366-16, ¶¶ 31-32.

At trial, the government planned to follow a similar tack: a) calling dozens of witnesses to 

express the view that anyone could tell that most or all adult ads on Backpage were posted by 

parties engaged in prostitution; b) calling dozens more witnesses to present heart-wrenching 

testimony about various tragedies that befell young women who, voluntarily or involuntarily, were

involved in prostitution and at one point or another had an ad on Backpage, including showing 

images of individuals untethered to the indictment’s fifty ads; and c) presenting evidence that 

Defendants knew, from Backpage’s assistance to law enforcement and from politicians, law 

enforcement officers, and religious leaders calling on Backpage to censor adult advertising because 

of the criminal activities of some advertisers on the site, that Backpage knowingly “facilitated 

prostitution” by publishing dating, massage, and escort ads.6 See, e.g., Dkt. 954 (government 

arguing that a letter from Auburn Seminary’s president is “relevant and highly probative of 

Defendants’ knowledge about whether the vast majority of Backpage’s ads were for prostitution”); 

Exh. E at 28 (“[T]he news media outlet CNN was getting ready to run a broadcast about children 

being sold for sex on Backpage.com.”); id. at 62 (noting that the photos of mothers and their 

children shown during the government’s opening are not associated with any of the fifty ads in the 

indictment). Indeed, in its opening statement, the government sought to use Backpage’s right to 

hire attorneys to investigate and respond to these claims to impermissibly prejudice the jury against 

Defendants. See id. at 23 (referring to Samuel Fifer, a partner and media law expert at Dentons 

who dealt with the National Association of Attorneys General on behalf of Backpage, as a “public 

5 The government’s claimed ability to identify women as prostitutes based on cleavage, 

lingerie, provocative poses, and naked buttocks is extraordinary, given how commonplace those 

are today, both on the Internet and in society in general.

6 The government repeatedly suggests that a Travel Act violation can be predicated on 

Defendants’ “facilitating prostitution.” This is wrong. The Travel Act requires, and Judge Brnovich 

has already ruled, that a Travel Act violation requires specific intent to facilitate a business 

enterprise involved in prostitution offenses and cannot be predicated on facilitating prostitution 

in the abstract. See Dkt. 946 (“[Defendants] 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.”); Ex. S (12/04/20 Hr. Tr.) at 38 (“[T]his case is not about Backpage. Backpage 

was prosecuted in a separate case . . . . This case is about these individual defendants and whether 

they had specific knowledge of these ads as facilitating illegal activity.”). 

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 9 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

relations representative”); id. at 32 (impugning Defendants for sending a “cease and desist letter” 

to CNN, again, disparagingly referring to Backpage’s attorney as a “PR representative”). 

Commencing with its opening statement and continuing through its first several witnesses 

at trial, the government clearly headed its prosecution down that road. And from the outset, that 

road proved rather rocky. First, the government nearly caused a mistrial during its opening 

statement, which was a parade of horribles about human trafficking destroying the lives of women 

and children, contrasted with the significant profits Backpage generated, and with virtually no 

mention of the charged counts nor any linkage of any Defendant to any charged count. Then 

Judge Brnovich seriously limited the testimony the government was permitted to elicit from those 

advertised on Backpage and their relatives—so the government could elicit the heart-wrenching 

testimony it needed to inflame the jury only by repeatedly flouting the Court’s rulings. Then the 

government’s lead witness, Special Agent Supervisor Fichtner, completely undermined the 

government’s core theory of the case. Indeed, during its opening, the government promised the 

jury that Agent Fichtner would identify the ads he reviewed as express prostitution ads. Exh. E at 

7-11 (arguing that the “evidence will show” the Fichtner-reviewed ads “were nothing less than 

prostitution ads.”). But that accusation also fell apart. After Fichtner showed the jury hundreds 

of Backpage ads, with Fichtner and the government suggesting to the jury that all those ads were 

obvious prostitution ads, Fichtner was forced on cross-examination to admit that: 

a) many adult activities involving sexual activities and money are legal; 

b) the ads he reviewed were all facially lawful; 

c) he could not determine whether any of the hundreds of ads he showed the jury related 

to lawful activity or unlawful activity; and 

d) he had never arrested a person for a prostitution offense based only on the content of 

a Backpage adult ad and he knew of no law enforcement officer who had done so. 

See, e.g., Exhs. J, K. Put differently, Fichtner testified that experienced law enforcement officers 

could not look at the content of Backpage adult ads and know whether the posters of those ads 

were engaged in lawful or unlawful activities, while the government’s theory was grounded on 

convincing the jury anyone could tell that most or all Backpage adult ads were obvious ads for 

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 10 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

prostitution, so by publishing those ads Defendants had to have intended to facilitate prostitution. 

Fichtner’s admissions on cross-examination were devastating to the government’s case and 

would become even more so if Judge Brnovich ultimately instructed the jury that Backpage adult 

ads were presumptively protected by the First Amendment, as Defendants expected her to do, for 

the reasons discussed below.7 

B. Legal Background

From the outset, this prosecution has been premised on the government’s contention that 

the First Amendment did not protect Backpage’s publication of dating ads, massage ads, and 

escorts ads, because those ads were associated with prostitution, even if the ads did not expressly 

propose acts of prostitution. For example, in briefing addressing jury instructions shortly before 

the trial commenced, the government argued: “Simply put, prostitution advertising and soliciting 

are forms of commercial speech that are not constitutionally protected. Pittsburgh Press Co. v. Human 

Relations Comm’n, 413 U.S. 376, 388 (1973).” Dkt. 1216-3 at 161.

The defense reply, filed two weeks before the trial commenced, unveiled two fundamental 

flaws in the government’s position. Dkt. 1222-2 at 2-11. First, the government was conflating 

facially unlawful speech (which generally is not protected by the First Amendment) with facially 

lawful speech (which is presumptively protected by the First Amendment). Second, numerous 

courts, including the Ninth Circuit, have held that the publication of facially lawful speech, even if 

associated with unlawful activity, is presumptively protected by the First Amendment. 

In reaching its erroneous position, the government misinterpreted Pittsburgh Press, a decision 

involving facially unlawful speech in the employment context. There, the City of Pittsburgh 

prohibited the publication of “help wanted” classified ads in sex-designated columns and the 

Pittsburgh Press newspaper violated the ordinance by publishing discriminatory “help wanted” ads 

in categories such as “‘Jobs—Male Interest,’ ‘Jobs—Female Interest,’ and ‘Male-Female.’” 

Pittsburgh Press, 413 U.S. at 377-79. The Supreme Court held that “[a]ny First Amendment interest 

which might be served by advertising an ordinary commercial proposal ... is altogether absent when 

7 The government and Defendants had briefed the issue of jury instructions, but Judge 

Brnovich had not yet ruled on the jury instructions by the time she declared a mistrial. See Dkts. 

1199, 1216, 1222, 1236, 1242.

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 11 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

the commercial activity itself is illegal and the restriction on advertising is incidental to a valid 

limitation on economic activity.” Id. at 388-89.

The Supreme Court’s holding in Pittsburgh Press went no farther than saying the First 

Amendment does not protect the publication of classified ads that are, on their face, per se

unlawful—whether an ad expressing a per se unlawful sex preference in employment, an ad 

proposing a per se unlawful “sale of narcotics,” or an ad “soliciting prostitutes” (which would be per 

se unlawful in most of the United States).8 Notably, the Supreme Court did not hold, nor even 

suggest, that a newspaper could be forbidden from publishing facially lawful “help wanted” ads, 

even if the employers posting those ads refused to hire women who responded to the ads. Yet that 

is exactly how the government characterizes Pittsburgh Press when arguing that the First Amendment 

affords no protection to facially lawful adult ads that might be associated with prostitution. 

That government’s flawed characterization of Pittsburgh Press has been roundly and 

repeatedly rejected by the courts—including by the Ninth Circuit.9 In Metro Lights, L.L.C. v. City 

of Los Angeles, 551 F.3d 898, 904 n7 (9th Cir. 2009), the Ninth Circuit narrowly construed the 

language, “related to unlawful activity,” from Central Hudson as meaning “whether the goods or 

services the party advertises are illegal”—not whether an ad for a lawful service was placed by 

someone who might be engaged in unlawful activity: 

Central Hudson asks if the commercial speech is ‘related to unlawful activity.’ Thus, 

in the context of advertising, one must ask whether the goods or services the 

party advertises are illegal. 

Id. (emphasis added; internal citations omitted). Four years later, in Valle Del Sol Inc. v. Whiting, 709 

F.3d 808, 822 (9th Cir. 2013), the Ninth Circuit construed the holdings of Pittsburgh Press and Central 

8 The Supreme Court’s exact words were: “We have no doubt that a newspaper 

constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting 

prostitutes. Nor would the result be different if the nature of the transaction were indicated by 

placement under columns captioned ‘Narcotics for Sale’ and ‘Prostitutes Wanted’ rather than 

stated within the four corners of the advertisement.... We hold only that the Commission’s 

modified order, narrowly drawn to prohibit placement in sex-designated columns of 

advertisements for nonexempt job opportunities, does not infringe the First Amendment rights of 

Pittsburgh Press.” Pittsburgh Press, 413 U.S. at 388, 391. 

9 The government is wrong to claim that “Defendants cite no contrary Ninth Circuit 

authority” to Pittsburgh Press. Defendants cited each of the Ninth Circuit cases discussed below, as 

well as out-of circuit authority, in its briefing on the jury instructions (Dkt. 1222-2 at 2-11), and 

the Ninth Circuit’s Valle de Sol case in its motion. 

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 12 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

Hudson in exactly the same manner: 

Central Hudson’s legality requirement [] has traditionally focused on the content of 

affected speech—i.e., whether the speech proposes an illegal transaction— instead of whether the speech is associated with unlawful activity. 

Valle Del Sol, 709 F.3d at 822 (emphasis added). Just last year, the Ninth Circuit again held the same: 

Pittsburgh Press implicates only those instances when the state restricts speech that itself proposes an illegal transaction.... SAG’s interpretation of Pittsburgh Press

would require this court to permit the restriction not only of speech that proposes an 

illegal activity but also facially inoffensive speech that a third-party might use to facilitate its own illegal conduct. But as the Supreme Court has noted, ‘it would 

be quite remarkable to hold that speech by a law-abiding possessor of information 

can be suppressed in order to deter conduct by a non-law-abiding third party.’ 

Bartnicki v. Vopper, 532 U.S. 514, 529–30, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001) ... 

Rather than restrict truthful speech, the typical ‘method of deterring unlawful 

conduct is to impose an appropriate punishment on the person who engages in it.’ 

Bartnicki, 532 U.S. at 529, 121 S.Ct. 1753. 

IMDB.com Inc. v. Bacerra, 962 F.3d 1111, 1123 (9th Cir. 2020) (emphasis added). Accord, e.g., Centro 

de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 114 (2d Cir. 2017) (“[T]he 

First Amendment offers no protection to speech that proposes a commercial transaction if 

consummation of that transaction would necessarily constitute an illegal act. However, if, as here, 

there are plausible ways to complete a proposed transaction lawfully, speech proposing that 

transaction ‘concerns lawful activity’ and is therefore protected commercial speech.”) (emphasis in 

original) (citing Valle Del Sol Inc., 709 F.3d at 821); Greater Philadelphia Chamber of Com. v. City of 

Philadelphia, 949 F.3d 116, 142 & n.170 (3d Cir. 2020) (“commercial speech should not lose the 

protection of the First Amendment simply because a legislature has prohibited one of many uses 

of the regulated speech,” unlike restricting “advertising of the sale of cocaine, for example, [which] 

would present a speech restriction that always and only related to illegal activity because there are 

no other legal uses/purposes behind the sale of cocaine”) (emphasis in original).

Judge Brnovich had not ruled on jury instructions when she granted a mistrial, but there 

was a substantial likelihood that the jury instructions would have a) instructed the jury to presume 

that all adult ads on Backpage were lawful and b) instructed the jury that the government had the 

burden, on an ad-by-ad basis, to prove otherwise. That was a burden the government was not 

prepared to meet with its parade of witnesses who would testify that anyone could tell, just by 

looking, that the adult ads on Backpage were associated with prostitution, even though the ads 

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 13 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

offered facially lawful dating, massages, and escort services, as Fichtner conceded. 

Moreover, even if the government had been able to prove that some specific Backpage 

customers posted adult ads to promote their unlawful activities, the government also would have 

had the insuperable burden, for each such ad, to prove that each defendant took some action to 

publish the ad with the specific intent to facilitate the unlawful conduct. Bursey v. United States, 466 

F.2d 1059, 1087 (9th Cir. 1972) (“Printing, publishing, or distributing the speech [] is not criminal 

unless the persons who did these acts had the specific intent required by the statutes which 

were the basis of the investigation ... The act of printing, publishing, or distributing the speech [] 

supplies no basis for an inference that the act was done with the proscribed intent.”) (emphasis 

added); McKenna, 881 F. Supp. 2d at 1281 (“The third-party publication of offers to engage in illegal 

transactions does not fall within ‘well-defined and narrowly limited classes of speech’ that fall 

outside of First Amendment protection.”) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-

72 (1942)).

II. THE COURT SHOULD DISMISS THE INDICTMENT WITH PREJUDICE 

UNDER THE DOUBLE JEOPARDY CLAUSE.

Not once does the government expressly deny its intent to cause a mistrial, and it offers no 

persuasive, objective evidence that, in the face of repeated, clear orders regarding the scope of the 

trial, its intentions were pure. Instead, the government defends its misconduct during trial, points to

a comment Judge Brnovich made during the Court’s declaration of mistrial that cannot possibly be 

interpreted as a non-intentionality finding under Kennedy (a comment inconsistent with her objective 

findings explaining why she declared a mistrial), presents a warped and hyperbolic view of the 

strength of its case, and expresses disappointment that the Court declared a mistrial, while blaming 

the mistrial on its own witnesses. Opp. at 16-21. The government’s position is indefensible. 

Defendants’ motion to dismiss is before this Court, not Judge Brnovich, and this Court 

must review the “objective facts and circumstances of the case” to determine whether the 

government’s misconduct at trial triggers the Double Jeopardy Clause. See Oregon v. Kennedy, 456 

U.S. 667, 675 (1982) (plurality opinion). The record speaks for itself. The government’s “sequence 

of overreaching,” including continuously putting “irrelevant and highly prejudicial material” before 

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 14 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

the jury, is objective proof of the prosecution’s intent to goad the defense into a mistrial. See 

Kennedy, 456 U.S. at 680 (Powell., J., concurring); United States v. Martin, 561 F.2d 135, 139-40 (8th 

Cir. 1977). The government’s purposeful conduct caused Judge Brnovich to declare the 

foreseeable mistrial. The constitutional consequence under the Double Jeopardy Clause not only

protects Defendants’ rights but also prevents the government from avoiding all accountability and 

simply retrying its case. 

A. Judge Brnovich declared a mistrial because of the government’s purposeful conduct and did not make any findings under Kennedy. 

This Court need only read Judge Brnovich’s declaration of a mistrial (Exh. M at 4-5) to 

know two determinative facts: (1) she declared a mistrial because of the government’s purposeful 

conduct; and (2) she did not make any finding under Kennedy. The government’s argument 

that the mistrial “was largely based on concerns about ‘cumulative’ child sex trafficking references”

instead of the government’s sequence of overreaching by repeatedly putting irrelevant and highly 

prejudicial material before the jury (Opp. at 14) is unsupported by Judge Brnovich’s clear and 

concise ruling (Exh. M at 4-5). Moreover, to the extent the mistrial was based on any cumulative 

problem, that was only because the government repeatedly violated the Court’s orders, 

creating any such cumulative effect. 

Judge Brnovich’s declaration of a mistrial focused on the government’s purposeful actions. 

Exh. M at 4 (“I, at the beginning of this case, gave the government some leeway ... Yet in the 

opening, and with every witness thereafter, it seems, the government has abused that 

leeway.”) (emphasis added); id. (“The government, as prosecutors, are held to a higher standard, 

and their goal is not to win at any cost, but to win by the rules, to see that justice is done.”) 

(emphasis added). She went on to catalogue “just [] a few examples” of misconduct – by no means 

an exhaustive list – from the few days of the government’s case-in-chief. E.g., id. at 4-5 (“There 

was an order that the government stay away from the day in the life of a prostitute or victim. With 

Jessika Svendgard, the government solicited answers that went into the abuse by her trafficker

... Also, with Jessika Svendgard, the government emphasized the 105 days over, and over, and 

over again. She also talked about being raped more than once, which raises a whole new emotional 

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 15 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

response from people.”) (emphasis added). Judge Brnovich concluded her brief remarks by 

making clear there were other instances of the government violating the Court’s orders and 

presenting irrelevant and highly prejudicial testimony. Id. at 5 (“And I believe there were other 

witnesses that also talked about the reputation of Backpage untethered from communications with 

the defendants [in violation of the Court’s order].”). 

The government’s opposition ignores all of this. Instead, the government myopically 

clings to Judge Brnovich’s final comment (Ex. M at 5 (“So although I don’t see any of these as 

intentional misconduct...”)). To begin, Judge Brnovich made no finding under Kennedy. She 

clearly was focused on each individual act of misconduct, not whether the government’s 

misconduct as a whole proved the government sought to goad a mistrial. Indeed, the remark was 

not a determination of intent under Kennedy’s standard versus commenting, for example, that she 

did not believe that the government had acted unethically. Second, the remark was wholly 

inconsistent with Judge Brnovich’s objective findings and stated bases for the mistrial. The 

government cites United States v. Lun to suggest this Court should give deference to Judge 

Brnovich’s comment, when Lun involved a district court that continuously presided over a trial, a 

declaration of a mistrial, and a denial of a motion to dismiss. 944 F.2d 642, 644 (9th Cir. 1991). 

As this Court must now evaluate the record and make determinations based on the parties’ briefs 

and the applicable legal standard, it should not merely defer to Judge Brnovich’s non-finding. 

B. The government’s other arguments are similarly unavailing.

Further, the government erroneously claims that its opposition to the mistrial obviates the 

Double Jeopardy Clause. Opp. at 16. But opposing a mistrial is not proof of the government’s 

intent; hopeless opposition to a mistrial based on manifest misconduct is not a sincere objection.10

Similarly, the government tries to minimize the devastating effect of Agent Fichtner’s

testimony by suggesting it would have called other witnesses to rehabilitate its case. Opp. at 19. 

But the government cannot deny that Fichtner’s testimony shows that the ads he reviewed are 

10 Defendants, too, wish the government had not torpedoed the trial after Defendants spent 

significant time and expense preparing for trial, including sizeable non-recoupable costs such as 

pre-paid housing for three months, as well as engaging a jury consultant and trial tech. But after 

repeated, inflammatory references to child sex trafficking and rape, Defendants had no choice but 

to move for a mistrial after the jury had been irretrievably tainted by the government’s misdeeds. 

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 16 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

12

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

presumptively protected speech under the First Amendment and those ads are legally 

indistinguishable from 49 of the 50 charged ads. 

Tellingly, at trial, the government followed Agent Fichtner’s devastating testimony with the 

testimony of Dr. Cooper, whose testimony the government advanced with a last-minute change 

to its previously declared order of witnesses. The government then purposefully elicited 

inflammatory testimony from Dr. Cooper – testimony regarding underage individuals and child 

sex trafficking – that it knew, in light of the Court’s prior orders, would cause Defendants to 

move for a mistrial. The devastating cross-examination of Agent Fichtner gave the government 

ample reason to want a do-over with a different jury. 

Finally, the government’s claim that its purported prejudice from a mistrial caused by its 

own actions means the Double Jeopardy Clause does not apply here is meritless. Purported 

prejudice from a delay is especially baseless as this trial began 17 years after the government claims 

Defendants’ criminal conduct began (and, after a thorough investigation, the government 

previously declined to prosecute Backpage in 2012 based largely on the same facts underlying this 

prosecution (see Dkts. 1281, 1332). Defendants gain no measureable benefit from having seen a 

few witnesses from the government’s 70+ witness list.11 

The government quotes Justice Stevens’ concurring opinion in Kennedy, but ignores his

explanation of why the prejudice suffered by the defense from a second trial is “grossly unfair”: 

It increases the financial and emotional burden on the accused, prolongs the period 

in which he is stigmatized by an unresolved accusation of wrongdoing, and may even 

enhance the risk than an innocent defendant may be convicted. The danger of such 

unfairness to the defendant exists whenever a trial is aborted before it is completed. 

Consequently, as a general rule, the prosecutor is entitled to one, and only one, 

opportunity to require an accused to stand trial. 

Kennedy, 456 U.S. at 682 n.6 (Stevens, J., concurring) (quoting Arizona v. Washington, 434 U.S. 497, 

502 (1978)).

The natural and probable consequences of the government’s repetitive misconduct was a 

mistrial. The government cannot commit purposeful misconduct and simply get a second bite at 

11 The government also wrongly says the defense sought several continuances, without noting 

that these continuances were due to, inter alia, COVID-19 and undersigned counsel’s parental leave. 

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 17 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

13

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

the apple when the Court declares a mistrial because of that misconduct. The Double Jeopardy 

Clause requires dismissal of the case with prejudice. 

C. Defendants have asserted a more than colorable double jeopardy claim.

The government asks the Court to find Defendants’ double jeopardy claim is frivolous, 

based solely on Judge Brnovich’s comment that she did not believe the government’s individual 

instances of misconduct were intentional.12 But Defendants’ double jeopardy claim was not before 

Judge Brnovich. In any event, the government is wrong to equate intentionality with colorability. 

Tellingly, the government cites no case demonstrating that the two concepts are the same (nor 

does it cite any case in which a district court found a double jeopardy claim to be frivolous). 

Defendants’ double jeopardy claim, which is based on clear and repeated violations of 

Court orders, certainly is much stronger than the “lenient standard” the Ninth Circuit applies in 

determining the colorability of double jeopardy claims, under which even a “weak” claim is 

colorable. United States v. Bhatia, No. CR 05-0334 SBA, 2007 WL 2795066, at *2 (N.D. Cal. Sept. 

26, 2007). Defendants’ double jeopardy claim cannot be “summarily dismiss[ed],” nor does the 

government make such a claim. United States v. Alvarez-Moreno, 657 F.3d 896, 899 (9th Cir. 2011). 

The one case cited by the government is readily distinguishable, as its holding was limited to double 

jeopardy claims following a hung jury, whereas, here, there are claims of Brady violations as well as

repeated government misconduct at trial underpinning the Court’s declaration of a mistrial. 

Richardson v. United States, 468 U.S. 317, 322 (1984). Indeed, in United States v. Avenatti, Case No.19-

061-JVS (C.D. Cal.), the government recently litigated and lost this issue in connection with the 

denial and appeal of a motion to dismiss in connection with Brady violations at trial. See Ex. T 

(order denying motion to dismiss); Ex. U (order divesting jurisdiction pending appeal over 

government objection). Judge Selna specifically found that the government’s conduct was not 

intentional and that there was no “goading” under Kennedy (Ex. T at 4) – yet those findings were 

not enough (contrary to what the government argues here) to maintain jurisdiction over the case 

pending an interlocutory appeal (Ex. U). The Court should not accept the government’s invitation 

12 What the government does not tell the Court is that it seeks this finding now to avoid this 

Court divesting itself of jurisdiction (as it must) to the extent Defendants seek an interlocutory 

appeal of a denial of their motion.

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 18 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

to contravene established law regarding the colorabilty of double jeopardy claims. 

III. THE COURT SHOULD DISMISS THE INDICTMENT WITH PREJUDICE 

UNDER ITS SUPERVISORY AUTHORITY. 

The government has repeatedly failed to play by the rules – federal prosecutors are “held 

to a higher standard, and their goal is not to win at any cost, but to win by the rules.” Exh. M at 

4. The Court’s admonishment in declaring a mistrial echoes the holdings of Lopez-Avila and

Kojayan, both of which ultimately resulted in district courts dismissing indictments under their 

supervisory powers. See United States v. Lopez-Avila, 678 F.3d 955, 964-65 (9th Cir. 2012); United 

States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993). The government attempts to distinguish the 

cases cited by Defendants by stating the obvious – that the government misconduct here does not 

align exactly with the government misconduct in those cases. But that misses the point, as no 

misconduct case is exactly like another. The point is that there are rules – like the attorney-client 

privilege, Rule 16, and Brady, as well as rules that courts impose before and during trial regarding 

the admissibility of evidence – and the government broke all of them here. Short of dismissal, the 

government will not be deterred from engaging in such misconduct in the future. 

Indeed, the government’s lack of contrition here countenances in favor of dismissal. 

Instead of taking ownership for the rehearsed testimony of its witnesses (most notably, 

Dr. Cooper, a professional witness who regularly testifies for the government in child sex 

trafficking cases (Exh. L at 54)), the government’s response was to blame its witnesses. See Opp. 

at 17 (“the question did not ask if she was ‘raped’”); id. at 18 (“despite these efforts, Dr. Cooper 

testified that the ‘overwhelming majority’ of victims she had evaluated were minors ‘sold on 

Backpage.’”). Dr. Cooper, a regular government witness,13 is a self-professed “developmental 

13 The government knew exactly what it was doing when it put Dr. Cooper on the stand. The 

government regularly calls Dr. Cooper to testify broadly for the government regarding the very 

topics the Court held were off limits, and yet the government did nothing to limit her testimony 

here, despite her history and despite the Court’s order. See, e.g., United States v. D’Ambrosio, No. 

1:15-CR-003, 2016 WL 1385281, at *2 (M.D. Pa. Apr. 7, 2016), aff'd and remanded sub nom. United 

States v. Delgado, 677 F. App’x 84 (3d Cir. 2017) (“Here, Dr. Cooper’s testimony does not relate to 

the elements of the prostitution-related offenses with which Defendants are charged.... We see no 

way in which Dr. Cooper’s general testimony about the ‘culture of pimping, the nature of 

enterprises associated with sex trafficking, victim vulnerabilities, the health care problems of 

victims, the barriers to exiting, and multiple aspects of offender dynamics’ has any tendency to 

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 19 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

15

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

and forensic pediatrician”14 who, after sidebars limiting the scope of her testimony and the 

sustaining of defense objections, was asked open-ended questions like “describe ... the nature 

of ... your work with victims,” to which Dr. Cooper predictably responded in narrative fashion, 

stating that she dealt with the exploitation of minor sex trafficking victims, a topic the Court held 

was off limits. Exh. L at 14-15 (emphasis added). Then, after the Court told the government that 

it was “getting close to a 403 violation” and that it needed “to direct [its] witness a little bit, because 

she could very well go off on a tangent,” Dr. Cooper testified that “there has been no age 

verification for minor victims who have been sold online” (id. at 28-29 (emphasis added)) and 

“the majority of victims that I have evaluated who have been sold on Backpage were underage 

minors” (id. at 39 (emphasis added)). The government’s failure to take responsibility for its actions 

warrants dismissal. See Kojayan, 8 F.3d at 1323 (“While the government’s supplemental brief 

contains various references to the ‘regrettable and inappropriate’ nature of the incident ... it shows 

no appreciation of the seriousness of the misconduct, no hint of contrition .... Acceptance of 

responsibility this is not.”);15 Lopez-Avila, 678 F.3d at 965 (“When a prosecutor steps over the 

boundaries of proper conduct and into unethical territory, the government has a duty to own up 

to it and to give assurances that it will not happen again. Yet, we cannot find a single hint of 

appreciation of the seriousness of the misconduct within the pages of the government's brief on 

appeal. Instead, the government attempts to shift blame by stating that ‘the prosecutor gave the 

defense counsel an opportunity to stop the offending question before the prosecutor asked it ...’”). 

To the extent there is a factual dispute about the government’s intent in examining these witnesses, 

the way courts deal with such issues is through an evidentiary hearing. 

Further, as set forth below, the government’s fast-and-loose approach to the attorney-client 

make it more or less probable that Defendants themselves transported minors in interstate

commerce for the purpose of a commercial sex act.”)

14 Defendants mention Dr. Cooper’s status as a pediatrician not as “conspiracy theorizing run 

amok” (Opp. at 19) but because she is an expert who specializes in treating children who have 

been victims of child sex trafficking and the government knew that asking her open-ended 

questions about her experience would elicit answers discussing child sex trafficking—a topic the 

Court had instructed the government to avoid. 

15 Here, the government does not even admit the “regrettable and inappropriate” nature of 

the testimony it elicited from its own witnesses. Kojayan, 8 F.3d at 1323.

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 20 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

16

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

privilege and its discovery obligations also warrant dismissal of the indictment with prejudice. 

A. The government admits to withholding obvious Rule 16 and Brady material.

The government is wrong to assert that the issues raised by Defendants regarding the 

government’s prior investigation of Backpage have been litigated before. Judge Logan dealt only 

with the question of whether legal memos generated by the government regarding its decision 

not to prosecute Backpage could be clawed back; the instant motion concerns the disclosure of 

the underlying facts, discussed in the legal memos, that led to the government’s decision. See Dkt. 

1281; Dkt. 449 (concluding only that “the mental impressions and legal analysis from attorneys 

that are not involved in this case” cannot be considered “exculpatory evidence.”). Moreover, this 

case has changed dramatically in the nearly three years since Judge Logan issued his Order. Since 

then, the government has produced some, but not all, of the factual materials underlying that prior 

investigation, a tacit admission that such materials are relevant. See Carriger v. Stewart, 132 F.3d 463, 

481 (9th Cir. 1997) (“We have held that the government cannot satisfy its Brady obligation to 

disclose exculpatory evidence by making some evidence available and claiming the rest would be 

cumulative.”) (internal citations omitted). Further, the government intends to call at trial FBI 

Agent Steven Vienneau, the lead agent assigned to that prior years-long investigation of Backpage, 

yet the government has only produced nine pages of discovery in connection with his work. (And 

if this case indeed were, as the government contends, “wholly separate” from the government’s 

prior investigation (Opp. at 22), then why call the lead agent from that investigation?). 

Critically, the government’s response supports Defendants’ position. The government 

admits that it has withheld a non-privileged attorney opinion letter provided to a prospective 

third-party purchaser of Backpage regarding whether a publisher of adult ads could have criminal 

liability for publishing ads that might be associated with criminal activity. The government jumps 

through hoops to explain its lack of disclosure, claiming that the memo was written by a summer 

associate at Arnold & Porter and that the government need not disclose the actual memo because 

Defendants have somehow “known the memorandum’s material substance for three years,” when, 

as the government well knows, Defendants have never seen the opinion letter. Opp. at 27; see 

Banks v. Dretke, 540 U.S.668, 696 (2004) (rejecting the idea that the government, when caught, may 

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 21 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

17

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

blame a defendant for its own failures to comply with its discovery obligations, and holding that 

“[a] rule thus declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system 

constitutionally bound to accord defendants due process”). These are not serious responses to a 

very serious issue. A non-privileged memorandum written by one of the most respected law firms 

in the country regarding whether this publisher of adult ads could have criminal liability for 

publishing ads that might be associated with criminal activity on its face is discoverable both under 

Rule 16 and Brady.16

B. The government’s justification of its invasions of Defendants’ privileges 

with Ferrer is manifestly hypocritical.

The history of the government’s misconduct here is clear. The government interviewed 

Ferrer regarding privileged material and then sought an order from Judge Logan seeking to review 

privileged communications (without telling Judge Logan that it was already doing so), but the 

government’s request was denied, and it nevertheless continued to interview Ferrer about 

privileged material. Defendants moved to dismiss based on these privilege invasions, and Judge 

Brnovich denied the motion (in the defense’s view, erroneously). Defendants then provided 

reciprocal discovery in advance of trial regarding advice provided by attorneys concerning the 

legality of Backpage’s operations, as the Court held (and the government argued) such material 

was not privileged. The government responded by saying such material is privileged on its face, 

an admission that directly contradicts the position it took in opposing Defendants’ original motion 

regarding the government’s privilege invasions during its interviews of Ferrer. 

That is why Defendants renewed their underlying motion to dismiss and raise the issue here 

to demonstrate a pattern of government misconduct warranting dismissal. See Dkts. 942, 1022, 

1238.17 To be clear, this is a distinct basis upon which the Court should dismiss the indictment

16 The government claims the memo is irrelevant because it does not address purported 

“prostitution marketing strategies” (Opp. at 29 n.6), but evidence does not lose its status as Brady

material just because the government has grounds to argue the significance of the evidence to the 

jury. United States v. Bundy, 968 F.3d 1019, 1033 (9th Cir. 2020). The question is whether the 

evidence is favorable to the defense. Id. Moreover, Defendants’ knowledge of the existence of the 

memo does not undo the prejudice to Defendants from the government’s failure to produce it, as 

they know nothing about the specifics of the memo or what it says. Id. 

17 At the hearing on the original motion to dismiss, the government boldly claimed that the 

attorney advice it asked Ferrer about was in the public domain, yet in seeking to preclude 

Defendants from relying on such advice at trial, argued that the reference to subjects like the First 

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 22 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

18

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

under its supervisory powers, separate and apart from the Double Jeopardy Clause. The 

government points to one memorandum that the defense disclosed in discovery in advance of 

trial, a 2009 memorandum that was shared with a bank with whom Backpage did business, 

implicitly claiming that because it was shared with a third party, all of the legal advice that 

Defendants subsequently were provided over the years and all of the privileged material Ferrer 

was asked about by the government are not privileged. Dkt 1395 at 29 (“Defendants disclosed 

to third parties a legal memorandum that discusses, in detail, all of their legal theories—the same 

theories that were at issue in their prior motion to dismiss on privilege issues that Judge Brnovich 

denied.”). But this absurd position finds no support in the law, nor does the government even 

attempt to support it. First, the disclosure of one legal memo written more than a decade ago (that 

it appears Ferrer was not asked about) does not waive the privilege as to the subsequent legal 

advice and memos from other lawyers that he was directly asked about. Second, the government’s 

own prior conduct belies the position it now takes. The government previously shared its legal 

theories about why Backpage was not engaged in criminal conduct and could not be prosecuted 

with a third party. In a January 30, 2012, e-mail that Ernie Allen, the former president and CEO 

of the National Center for Missing & Exploited Children (“NCMEC”) and a key government 

witness, wrote to several third parties, including government expert Dr. Cooper, Allen writes: 

In my meeting with the Attorney General, I argued that while they might have civil 

immunity, I didn’t understand how that protected them from criminal prosecution. 

I argued that they were facilitating a criminal enterprise, a federal crime. Several 

weeks later, the AG sent prosecutors from his Criminal Division along with 

several FBI agents to NCMEC to meet with me. What they said was that they 

didn’t think that Backpage’s actions rose to the level of criminal culpability. 

They warned users about misuse of the site, made people click on answers promising 

not to do anything wrong, etc. DOJ felt that their activities did not generate the 

requisite “intent” to hold them criminally accountable. Clearly, I don’t agree. 

Ex. V (emphasis added). 

To summarize, in a non-privileged conversation, Attorney General Eric Holder told Ernie 

Allen that Backpage was not subject to criminal liability, and that conversation then was followed 

Amendment and CDA alone render memos providing such advice on their face privileged. E.g. 

Dkt. 1234 at 2. 

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 23 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

19

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

by a non-privileged meeting between Allen and several prosecutors from DOJ’s Criminal Division 

and several FBI agents who reiterated the same message.18 The logical extension of the argument 

the government now makes regarding a legal memo Backpage provided to a bank is that the 

meetings between the government and Ernie Allen in 2012 waived the government’s privileges as 

to the government’s prior and subsequent investigations in their entirety.19 In short, the 

government seeks to impose a separate standard on Defendants regarding the privileges they hold, 

an obvious double standard that the Court should not endorse.20

C. The government’s invasions of Defendants’ privileges with respect to nearly 

1,000 emails shows a broad pattern of misconduct.

In direct violation of the Court-approved filter team protocol and in direct violation of its 

express and unambiguous representations to Judge Brnovich that led her to deny Defendants’ 

motion to clarify the filter team protocol, in December 2019, the prosecution obtained 955 emails 

involving Defendants’ counsel, and said nothing to the Court. The government merely quibbles 

about whether it was 966 emails or 955 emails (Opp. at 32), but does not dispute that: a) the filter 

team produced nearly 1,000 emails to it in December 2019, b) those emails all involved 

communications with Defendants’ counsel, c) Defendants had not agreed those emails were not 

privileged, and d) the Court had not authorized the prosecution team to access the nearly 1,000 

attorney emails. 

18 This e-mail also belies the government’s claim that the factual materials underlying the 

government’s prior investigation of Backpage are not relevant or exculpatory. 

19 To be clear, this e-mail and its contents are admissible, as they (i) are party admissions, 

(ii) reflect Allen’s state of mind, and (iii) are not privileged. The government cannot now argue that 

NCMEC was a government actor or agent with whom it maintained the privilege. In opposing 

Defendants’ Brady request concerning, among other things, NCMEC’s communications regarding 

the potential criminal prosecution of Backpage, the government responded that “NCMEC [Does] 

Not Function As [An] Arm[] Of the Government” and that “NCMEC is a Private Organization.” 

Dkts. 777 at 11, 810 at 4-9. (The Court took the government’s representations as true in denying 

Defendants’ motion, see Dkt. 1028).

20 And if that were not enough, in opposing Defendants’ original motion to dismiss regarding 

the government’s privilege invasions, the government asserted that Defendants had waived the 

privilege as to the subjects the government questioned Ferrer about because those subjects were 

discussed with none other than NCMEC. Dkt. 1000 at 11 (“Defendants’ public disclosures have 

not been limited to court filings . . . For example, in a memorandum to NCMEC staff in 2013,” a 

Backpage attorney wrote about the First Amendment and Communications Decency Act). 

According to the government, that communication waives the privilege as to advice provided by 

attorneys to Backpage, but a similar communication between the government and NCMEC does 

not waive the privilege as to advice that the government’s attorneys provided to it. 

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 24 of 29
Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 25 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

21

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

only remedy the United States sought during the previous proceeding (before 

Judge Campbell) was the disclosure of those particular emails, the law in the 

Ninth Circuit is that “voluntary disclosure of the content of a privileged attorney 

communication constitutes waiver of the privilege as to all other such 

communications on the same subject.” 

Dkt. 195 at 12 (emphasis added). Judge Logan subsequently denied the United States’ motion, 

holding: 

The Court declines to construe the terms of the Campbell Order to allow a broad 

subject-matter privilege waiver of the contents of the remaining emails. It is clear to 

the Court that the terms of the Campbell Order were limited to determining whether Backpage waived attorney-client privilege in emails shared with specified third-party entities. 

Dkt. 345 at 5 (emphasis added). 

The government now argues the nearly 1,000 emails privileged or potentially privileged 

emails it obtained in violation of the filter protocol “involved [a] communication with a third party, 

similar to the Judge Campbell order from April 2018 that found that privilege did not attach . . .” 

Opp. at 32. Regardless of whether the emails were “similar” because they included third parties, 

they were not the same emails Judge Campbell addressed in his April 2018 order and, critically, 

many of the nearly 1,000 emails involved parties other than those involved in the separate 

set of 232 emails. Yet the prosecution team obtained the emails and said nothing.21 

The prosecution team also represented to this Court that it “received only documents that 

had been appropriately determined by the filter team to be non-privileged.” Opp. at 32. That too 

is false. Any documents with “hits” on attorney names were prohibited to the prosecution team 

unless the defense agreed or the Court so ordered. Dkt. 577 at 9-10. But all of the nearly 1,000 

emails had “hits” on attorney names and the defense never agreed the emails were unprivileged 

and the Court never ordered their production. Regardless of whether the prosecution team 

thought the nearly 1,000 emails were not privileged, the prosecution team had no right to have 

21 The government suggests the Court should disregard the Pederson decision because the 

government’s misconduct was different and greater in that case, United States v Pederson, 2014 WL 

3871197 (D. Or. Aug. 6, 2014), but Defendants cited Pederson only for the basic proposition that 

“the government has a duty to disclose the receipt of a defendant’s attorney-client 

communications.” Id. Moreover, contrary to the government’s suggestion, a prosecutor’s ethical 

and constitutional obligations do not wax and wane with the level of his or her misconduct. 

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 26 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

22

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

them unless it first made and won that argument22—and it clearly knew that was the case just 

months after this issue was hashed out before Judge Brnovich.23

IV. THE COURT SHOULD DISMISS THE INDICTMENT WITH PREJUDICE 

UNDER THE DUE PROCESS CLAUSE.

The government’s response boils down to the argument that worse misconduct has 

occurred, so the government should get a free pass on its actions in this case. But the government 

has no meaningful response to its years-long approach of overreaching, abusing the Court’s leeway, 

and trying to win at all costs. Exh. M at 4. In defense of its discovery violations and privilege 

invasions, the government misleadingly suggests to this Court that the issues have been decided 

“diametrically to the contrary” by other judges (Opp. at 22), though that is not the case, as 

explained above (supra at 15-21). The government’s years-long conduct leading up to and 

throughout trial in this case is grossly shocking and outrageous, has severely prejudiced 

Defendants, and must be sanctioned to “assur[e] that the circumstances that gave rise to the 

misconduct won’t be repeated in other cases.” Kojayan, 8 F.3d at 1324.

V. CONCLUSION.

Under the Double Jeopardy Clause, the court’s supervisory authority, and the Due Process 

Clause, the Court should dismiss the indictment with prejudice. Defendants reiterate their request 

for an evidentiary hearing. In response to a motion that concerns the government’s state of mind, 

the government provides no declarations as to its intent, but instead offers mere conclusory 

statements that it did not intend to goad a mistrial. Defendants therefore should be entitled to 

examine the four witnesses who testified and the prosecutors who examined them so that there is 

a clear record of the government’s intent. 

22 Indeed, the government took the same tack with its privilege invasions with Ferrer, first 

invading the privilege and then filing a motion seeking permission to do so—which was denied. 

23 The government suggests that Judge Brnovich rejected Defendants’ privilege invasion 

claims when she rejected a motion to dismiss based on the government’s interrogation of Carl 

Ferrer over his communications with Defendants’ counsel. That too is untrue. That motion was 

not premised on the government accessing the nearly 1,000 emails in violation of the Court-ordered 

filter protocol and Judge Brnovich’s order did not even mention the separate privilege invasion 

involving the nearly 1,000 emails when ruling on the Ferrer privilege invasion motion. 

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 27 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

23

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

RESPECTFULLY SUBMITTED this 30th day of November 2021, 

BIENERT KATZMAN LITTRELL 

WILLIAMS LLP

s/ Whitney Z. Bernstein 

Thomas H. Bienert, Jr. 

Whitney Z. Bernstein 

Attorneys for James Larkin

Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual (Oct. 2020) § 

II(C)(3), Whitney Z. Bernstein 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.

LIPSITZ GREEN SCIME CAMBRIA LLP

s/ Paul J. Cambria, Jr. 

Paul J. Cambria, Jr. 

Erin McCampbell Paris 

Attorneys for Michael Lacey 

BIRD MARELLA BOXER WOLPERT 

NESSIM DROOKS LINCENBERG AND 

RHOW PC

s/ Gary S. Lincenberg 

Gary S. Lincenberg 

Ariel A. Neuman 

Gopi K. Panchapakesan

Attorneys for John Brunst

FEDER LAW OFFICE PA

s/ Bruce Feder 

Bruce Feder 

Attorneys for Scott Spear

DAVID EISENBERG PLC

s/ David Eisenberg 

David Eisenberg 

Attorneys for Andrew Padilla 

JOY BERTRAND ESQ LLC

s/ Joy Bertrand 

Joy Bertrand 

Attorneys for Joye Vaught

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 28 of 29
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE 

I hereby certify that on November 30, 2021, 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/ Toni Thomas 

Toni Thomas

Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 29 of 29