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GLENN B. McCORMICK

Acting 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

KENNETH POLITE

Assistant Attorney General 

Criminal Division, U.S. Department of Justice

REGINALD E. JONES (D.C. Bar No. 1620183, reginald.jones4@usdoj.gov) Senior Trial Attorney 

U.S. Department of Justice, Criminal Division

1400 New York Ave N.W., Suite 1200

Washington, D.C. 20005

Telephone (202) 616-2807 

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. 

No. CR-18-422-PHX-DJH

UNITED STATES’ RESPONSE IN 

OPPOSITION TO DEFENDANTS’ 

MOTION TO DISMISS (Doc. 1355) 

[Redacted For Public Filing] 

Oral Argument: December 3, 2021, 9:00 a.m.

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I. TABLE OF CONTENTS

Page

A. Table of Contents..............................................................................i 

B. Table of Authorities.........................................................................iii 

C. Preliminary Statement........................................................................1 

D. Background....................................................................................3 

I. The Grand Jury Indicted Defendants for Facilitating Prostitution, Money 

Laundering and Conspiracy.........................................................3 

II. The United States Worked Diligently for Years to Bring this Case to 

Trial....................................................................................5 

III. The Court Ruled the United States Could Refer to Child Sex Trafficking at 

Trial ....................................................................................6 

IV. The United States Did Not Use Its Opening Statement to Provoke a 

Mistrial........................................................................................6 

V. The United States’ First Witness Provided a Devastating Overview of 

Defendants’ Website.................................................................7 

VI. There Was No Intentional Misconduct............................................9

A. Jessika Svendgard..........................................................10

B. Nacole Svendgard..........................................................12

C. Dr. Sharon Cooper.........................................................13

VII. The Mistrial Ruling Was Largely Based on Concerns About “Cumulative” 

Child Sex Trafficking References................................................14 

E. Argument....................................................................................15 

I. Retrial is Not Barred By the Double Jeopardy Clause.........................15 

A. Defendants Must Prove that the United States Deliberately Sabotaged 

the Trial—an Extraordinary Standard that Is Almost Never 

Met............................................................................15

B. Defendants Have Failed to Meet Kennedy’s Exacting Standard......16

C. Defendants Have Failed to Make a Colorable Double Jeopardy 

Claim........................................................................21 

II. The Extreme Sanction of Dismissal is Not Appropriate Under Due Process 

or the Court’s Supervisory Powers................................................21

A. Defendants Cannot Obtain Relief Under the Due Process Clause....21

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B. The Court Should Not Grant the Extreme Remedy of Dismissal Under 

Its Supervisory Power......................................................23

F. Conclusion....................................................................................33 

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II. TABLE OF AUTHORITIES

CASES PAGE(S)

Arizona v. Washington, 

434 U.S. 497 (1978) .......................................................................................... 21

Erotic Service Provider Legal Ed. And Research Project v. Gascon, 

880 F.3d 450 (9th Cir. 2018) ............................................................................ 19

McNabb v. United States, 

318 U.S. 332 (1943) ................................................................................. 3, 23-24

Pinkerton v. United States, 

328 U.S. 640 (1946) ............................................................................................ 5

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

413 U.S. 376 (1973) .......................................................................................... 19

Richardson v. United States, 

468 U.S. 317 (1984) .......................................................................................... 21

Oregon v. Kennedy, 

456 U.S. 667 (1982) ................................................................................ 1, 15, 20

Tibbs v. Florida, 

457 U.S. 31 (1982) ............................................................................................ 21

Tyler v. Barnes, 

2015 WL 6537149 (E.D. Cal. Oct. 28, 2015) ................................................... 16

United States v. Aguilar, 

831 F. Supp. 2d 1187-98 (C.D. Cal. 2011) ....................................................... 24

United States v. Black, 

733 F.3d 294 (9th Cir. 2013) ............................................................................ 22

United States v. Bundy, 

968 F.3d 1019 (9th Cir. 2020) ............................................................... 23, 25-26

United States v. Chapman, 

524 F.3d 1073 (9th Cir. 2008) .......................................................................... 25

United States v. Curtis, 

683 F.2d 769 (3rd Cir. 1982) ............................................................................ 20

United States v. Dinitz, 

424 U.S. 600 (1976) .......................................................................................... 15

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United States v. Fowlkes, 

804 F.3d 954 (9th Cir. 2015) ............................................................................ 16

United States v. Isgro, 

974 F.2d 1091 (9th Cir. 1992) .......................................................................... 23

United States v. Jorn, 

400 U.S. 470 (1971) .......................................................................................... 15

United States v. Kearns, 

5 F.3d 1251 (9th Cir. 1993) ..................................................................... 2, 22-24

United States v. Kessler, 

530 F.2d 1246 (5th Cir. 1976) .......................................................................... 21

United States v. Kojayan, 

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

United States v. Lewis, 

368 F.3d 1102 (9th Cir. 2004) .......................................................................... 15

United States v. Lopez-Avila, 

678 F.3d 955 (9th Cir. 2012) ............................................................ 1, 15, 20, 24

United States v. Lun, 

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

United States v. Martin, 

561 F.2d 135 (8th Cir. 1977) ............................................................................ 21

United States v. McKoy, 

78 F.3d 446 (9th Cir. 1996) .............................................................................. 16

United States v. Owen, 

580 F.2d 365 (9th Cir. 1978) ........................................................................ 3, 23

United States v. Pedersen, 

2014 WL 3871197 (D. Or. Aug. 6, 2014) ......................................................... 31

United States v. Rogers, 

751 F.2d 1074 (9th Cir. 1985) ..................................................................... 22-23

United States v. Ruehle, 

583 F.3d 600 (9th Cir. 2009) ............................................................................ 28

United States v. Singleterry, 

683 F.2d 122 (5th Cir. 1982) ............................................................................ 21

United States v. Sterba, 

22 F. Supp. 2d 1333 (M.D. Fla. 1998) .............................................................. 21

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United States v. Tateo, 

377 U.S. 463 (1964) .......................................................................................... 15

United States v. Venegas, 

800 F.2d 868 (9th Cir. 1986) ............................................................................ 24

United States v. Weems, 

49 F.3d 528 (9th Cir. 1995) .............................................................................. 21

Valle Del Sol Inc. v. Whiting, 

709 F.3d 808 (9th Cir. 2013) ............................................................................ 19

RULES

Fed. R. Evid. Rule 403 .......................................................................................... 13

Fed. R. Evid. Rule 702 .......................................................................................... 13

Fed. R. Evid. 704 .................................................................................................... 18

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Preliminary Statement

After expressly finding “I don’t see any of these [reasons for the Court’s mistrial 

ruling] as intentional misconduct,” Judge Brnovich set a new trial for February 9, 2022—

a date this Court has since reaffirmed. (Ex. M. at 5; Docs. 1336 and 1377.)1 The Court’s 

no-intent finding is fatal to Defendants’ motion to dismiss under the Double Jeopardy 

Clause. In Oregon v. Kennedy, 456 U.S. 667, 676 (1982), the Supreme Court held that 

where, as here, the trial court grants Defendants’ motion for a mistrial, only intentional 

misconduct aimed at sabotaging the trial warrants dismissal on double jeopardy grounds. 

Defendants bear the heavy burden of proving the prosecutors intended to bring about a 

mistrial: “The only relevant intent is intent to terminate the trial, not intent to prevail at this 

trial by impermissible means.” United States v. Lopez-Avila, 678 F.3d 955, 962 (9th Cir. 

2012). “In practice,” the Kennedy standard “is rarely met.” Id. No reported Ninth Circuit 

case since Kennedy has barred a retrial in these circumstances. For several reasons, 

Defendants cannot meet their heavy burden of obtaining such extraordinary relief here.

First, the United States never intended to bring about an abrupt end to the trial. The 

trial team was surprised and deeply disappointed when the Court granted Defendants’

mistrial motion on September 14, 2021, after the second full day of testimony in a trial 

scheduled to last ten weeks. The United States worked for years to get this complex case 

to trial, and consistently pressed to start at the earliest practicable time. It had only put on 

four of its more than 70 trial witnesses, and introduced only a handful of its 1,800 trial 

exhibits, when the mistrial was declared. The witnesses still to come included Backpage 

CEO Carl Ferrer and Sales and Marketing Director Dan Hyer—two insiders who pleaded 

guilty and admitted that Backpage facilitated prostitution; former Backpage “moderators”; 

victims who had been advertised for prostitution on Backpage; representatives of nongovernmental organizations, law enforcement and others who repeatedly put Defendants 

on notice of Backpage’s extensive prostitution advertising; and others with knowledge of 

Defendants’ actions. Once trial commenced, Defendants repeatedly sought to terminate the 

1 “Ex.” refers to the exhibits attached to Defendants’ Motion. 

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proceedings by making multiple mistrial requests—which the United States strenuously 

opposed. The United States had no intent to end the trial.

Second, the trial judge expressly found that the reasons prompting the mistrial ruling 

did not involve “intentional misconduct”—and that finding is amply supported by the 

record. The mistrial declaration was largely based on concerns about the “cumulative 

effect” of references to child sex trafficking. Pretrial, the Court ordered that sex trafficking 

and child sex trafficking could be discussed, provided the United States did not “linger on” 

the details of victims’ abuse. Before, during and after the United States’ opening statement, 

the Court reaffirmed that ruling—and the trial judge found that the opening did not violate 

her orders or “cross the line” when it twice denied Defendants’ requests for mistrial on that 

issue. The United States engaged in detailed colloquies with the Court regarding the scope 

of its witnesses’ testimony, and believed its questions fell within the appropriate bounds of 

the Court’s orders. The Court overruled most of Defendants’ objections when the United 

States’ witnesses testified, and there was no intentional misconduct. 

Third, Defendants have failed to establish that the United States had any reason to 

sabotage the trial. The United States’ introductory witness gave the jury a detailed 

overview of how Defendants’ website appeared to the public in 2015, and he testified that 

an undercover ad—modeled on the Backpage Escort ads he showed the jury—generated 

over 300 responses directed to soliciting sex for money. The United States had noticed over

70 additional witnesses to testify about the true nature of Defendants’ business. Moreover, 

it faced severe prejudice from a mistrial, including the substantial costs and delays of 

starting anew. United States v. Lun, 944 F.2d 642, 646 (9th Cir. 1991). In these 

circumstances, Defendants do not come anywhere close to Kennedy’s exacting standard.

For similar reasons, Defendants’ requests under the Due Process Clause and 

supervisory powers should be denied. To obtain Due Process relief, Defendants have the 

weighty burden of proving the United States’ conduct was “so grossly shocking and 

outrageous as to violate the universal sense of justice.” United States v. Kearns, 5 F.3d 

1251, 1253 (9th Cir. 1993). If Defendants cannot meet the high bar of Kennedy, they 

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certainly cannot make that showing. Defendants likewise cannot establish “outrageous 

government conduct” to warrant dismissal under the Court’s supervisory powers. The 

court’s exercise of its supervisory powers prevents the courts from “making . . . themselves 

accomplices in willful disobedience of law.” McNabb v. United States, 318 U.S. 332, 345 

(1943) (emphasis added). “[T]hese supervisory powers remain a harsh, ultimate sanction 

(which) are more often referred to than invoked.” United States v. Owen, 580 F.2d 365, 

367 (9th Cir. 1978). Dismissal “is an extreme sanction which should be infrequently 

utilized.” Id. Defendants cannot justify that extreme sanction here. 

Defendants also raise several discovery issues that have already been litigated and 

decided against them. For these and other reasons, the Motion should be denied. 

Background

I. THE GRAND JURY INDICTED DEFENDANTS FOR FACILITATING 

PROSTITUTION, MONEY LAUNDERING AND CONSPIRACY. 

On July 25, 2018, the grand jury returned a Superseding Indictment charging 100 

counts of conspiracy, Travel Act and money laundering violations. (Doc. 230, SI.) The SI 

alleges that from 2004 until April 2018, Defendants owned, controlled or operated 

www.Backpage.com (Backpage), the internet’s leading source of prostitution solicitations. 

(SI¶¶1-8.) Backpage generated over a half-billion-dollars in revenue from these ads. (SI¶1.) 

The SI alleges Defendants knew the vast majority of “adult” ads on their website

“were actually ads for prostitution” and pursued several prostitution marketing strategies 

“to intentionally facilitate that illegal activity.” (SI¶34.) First, Backpage’s employees were 

trained to—and paid bonuses for—identifying prostitutes who advertised on rival websites, 

creating free ads on Backpage for them, and using the resulting Backpage ads to secure 

their business. (SI¶9.) Second, Backpage entered business arrangements with known 

prostitution services and websites to increase its volume of prostitution advertising. (SI¶10; 

see SI¶34.) For example, Backpage had a reciprocal link agreement with The Erotic 

Review (TER), a Yelp-like website where “johns” reviewed prostitutes they had purchased 

on Backpage, including descriptions of prices charged for specific sex acts. (SI¶10.) 

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Backpage paid The Erotic Review, which for years served as a leading source of referrals 

for Backpage. (SI¶¶10, 45-58.) Third, Backpage formed “affiliate” partnerships with, and 

paid fees to, several high-volume purchasers of prostitution ads. (SI¶¶59-67.) Fourth, 

Backpage helped pimps and prostitutes avoid detection by law enforcement, most notably 

by utilizing “moderation” measures to remove terms and pictures particularly indicative of 

prostitution—and then publishing a revised version of the ad without blocking the ad itself. 

(SI¶¶ 11, 34.) This editing didn’t change the purpose of the ad (soliciting prostitution)—it 

only created a veneer of deniability for Backpage and its customers. (SI¶¶13, 68-152.) 

As Defendants successfully oversaw and executed these strategies, they faced 

withering criticism from law enforcement, the news media, anti-trafficking organizations, 

U.S. Senate investigators and others who concluded—and notified Defendants—that the 

vast majority of Backpage’s “adult” ads were for prostitution. (SI¶¶74, 86, 97, 105, 109, 

111, 127, 131, 134, 140-41, 144, 146, 151). For example, representatives from the National 

Center for Missing and Exploited Children (NCMEC) informed Defendants Lacey, Larkin 

and Spear that a large portion of the ads on Backpage were blatant prostitution ads, many 

featuring children. (SI¶¶86, 97.) At one meeting, NCMEC presented a PowerPoint 

documenting how Backpage and The Erotic Review cross-advertised numerous victims. 

(Doc. 446-1 at 41-62.) NCMEC recommended measures to prevent trafficking, which

Backpage declined to adopt. (SI¶ 134.) The SI references several victims who were 

advertised on Backpage while underaged. (SI¶¶120, 123-25, 163, 164, 167, 169, 172.) 

Count 1 of the SI charges Defendants with a 14-year conspiracy to violate the Travel 

Act by facilitating prostitution. (SI¶¶195-99.) Counts 2-51 identify 50 examples of

prostitution ads that Defendants published in the course of that conspiracy. (SI¶¶ 200-

01.) Counts 52-100 charge various Defendants with money laundering conspiracy and 

several specific money laundering counts. (SI¶¶202-11.)

Defendants’ characterization of the SI as involving only the 50 ads in Counts 2-51 

is erroneous. (Mot. at 2.) Their assertion is based on an isolated quote from a May 4, 2020 

Order, which then explained that the ads in Counts 2-51 were part and parcel of “a 

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continuous course of conduct where Defendants facilitated ‘unlawful activity’ [including] 

numerous pimps, prostitutes and traffickers in violation of the Travel Act.” (Doc. 946 at 

13-14.) Defendants cite another out-of-context statement, made while explaining that this 

case is focused on “these defendants” rather than Backpage—which had already pleaded

guilty. (Ex. N at 38.) Defendants’ misreading is directly at odds with the SI, which alleges 

a continuous criminal conspiracy from 2004-2018—as this Court has repeatedly 

confirmed. (SI¶¶195-199, 202-203; see Doc. 793 at 19-20 (Oct. 14, 2019 Order) 

(discussing Pinkerton v. United States, 328 U.S. 640, 646-67 (1946), and holding “[t]he 

alleged facts in the SI, taken as true, establish defendants had the specific intent to promote 

prostitution in violation of the Travel Act. They conspired together to do so. The conspiracy 

was successful and resulted in the fifty ads for prostitution that now make up fifty counts 

of violating the Travel Act.”); Ex. F at 7 (denying motion for mistrial; ruling that other acts

during the conspiracy—including publication of ads other than the 50 identified in Counts 

2-51—were “all in furtherance of the charge[d] conspiracy”); Doc. 1275 at 8-11.) 

II. THE UNITED STATES WORKED DILIGENTLY FOR YEARS TO BRING 

THIS CASE TO TRIAL. 

 From April 2018 to August 2021, the parties engaged in extensive pretrial litigation, 

evidenced by more than 1200 entries in the Clerk’s Docket. Defendants filed six motions 

to dismiss that the United States vigorously opposed—and the Court denied. (See Docs. 

559, 793, 840, 844, 946, 1168.) By January 2019, the United States had produced 

approximately 7.8 million documents in discovery. (Doc. 444.) While the United States 

strove to move this case to trial at the earliest practicable date, Defendants sought several 

continuances. (See, e.g., Docs. 862, 990, 1058, 1113.) Trial finally began September 1, 

2021, and the United States scheduled more than 70 witnesses from around the country to 

testify over the next ten weeks. (See Ex. J at 5 (“90 percent of [the United States’] witnesses

are from out of state that we’re flying in”); Doc. 1314.)

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III. THE COURT RULED THE UNITED STATES COULD REFER TO CHILD 

SEX TRAFFICKING AT TRIAL. 

 In its May 7, 2021 pretrial Order, the Court ruled the United States could present 

evidence regarding sex trafficking and child sex trafficking. The Court agreed that: 

Sex trafficking and child sex trafficking are, by definition, both forms of 

prostitution. Both are simply a subset of the crime. Sex trafficking and child 

sex trafficking require victims to engage in sex in exchange for payment, and 

the Government must prove that Defendants intended to facilitate 

prostitution through Backpage.com. Evidence that tends to prove that Defendants were aware that Backpage.com was being used to facilitate sex 

trafficking and child sex trafficking are extremely probative to show notice 

to Defendants that the website was being used for illegal purposes. 

(Doc. 1156 at 3.) The United States could not “linger on the details of” victims’ abuse, but 

could present “evidence of the fact that people were trafficked using Backpage.com at trial” 

subject to specific objections. (Id. at 4.) The United States could also introduce testimony 

relating to victims’ use of Backpage, notice to Backpage that prostitutes were using their 

website, and “how ads were created, drafted, edited, and paid for.” (Id. at 5.) 

 While Defendants assert jurors were “much less likely to be fair and objective if the 

trial involved sex trafficking and child sex trafficking” (Mot. at 3), the Court’s Order 

recognized that explaining how Defendants’ website operated, and what kinds of ads it 

promoted, would involve discussion of these topics at trial. 

IV. THE UNITED STATES DID NOT USE ITS OPENING STATEMENT TO 

PROVOKE A MISTRIAL.

The record contains no evidence to support Defendants’ assertion that the United 

States “used its opening to provoke a mistrial.” (Mot. at 3.) Before openings began, the 

Court stated that “they [the United States] aren’t prohibited from using the word 

trafficking,” but cautioned the government not to focus its “whole opening” on that topic.

(Ex. D at 31.) The Court told defense counsel: “[I]f you think he’s crossing the line, I know 

maybe you disagree about where the line should be, . . . you can object.” (Ex. D at 32.) 

Defense counsel asserted six objections to portions of the United States’ opening 

statement that referenced trafficking, most of which were overruled. (See Ex. E at 5, 28, 

29, 33, 44-45, 56-57.) After the prosecutor concluded, Defendants moved for a mistrial 

based on a litany of issues. The Court responded: “[W]ith respect to comments about 

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children trafficking, I’ve already ruled on that. And the government didn’t cross the line 

on that issue, in my mind, because they didn’t go into any of the details. It was merely the 

fact that this happened.” (Ex. E at 70.) Even after the parties submitted written briefs, the 

Court again rejected Defendants’ assertion “the government committed error by 

referencing child trafficking.” (Ex. F at 8.) Rather, as the Court reaffirmed, “the fact that 

child trafficking and sex trafficking occurred on the website was not precluded by my 

earlier order. The Court has previously found that child sex trafficking and adult sex 

trafficking is a subset of prostitution, so that was not precluded.” (Ex. F at 8.) This record 

evinces no intent to provoke a mistrial or violate any Court rulings. 

V. THE UNITED STATES’ FIRST WITNESS PROVIDED A DEVASTATING 

OVERVIEW OF DEFENDANTS’ WEBSITE. 

 When one of the defense lawyers asserted—on only the second full day of 

testimony—that “we still have heard no connection of anything to any defendant or any ad 

in the indictment,” the Court responded: “[I]t’s way too early to make that argument, 

because I can envision from the evidence that I’ve already seen where they’re going to get 

to that. It’s way too early. We’re barely, I don’t know, ten percent in.” (Ex. L at 68-69.) 

The Court was exactly right. The trial was anticipated to run from September 1 

through December 3, 2021, covering ten trial weeks. It was not until Trial Day 6 when the 

jury heard its first full day of testimony. (Exs. I-J.) When Defendants moved for a mistrial 

mid-afternoon on Trial Day 7, the United States had presented testimony from only four of 

its more than 70 anticipated witnesses (Doc. 1314), and introduced only a handful of its 

more than 1,800 listed exhibits (Doc. 1313.) The United States had barely started, and it 

was “way too early” to argue the sufficiency of the evidence. (Ex. L at 69.)

Defendants’ related assertion that California Department of Justice Special Agent 

Supervisor Brian Fichtner’s testimony “undermine[d]” the United States’ “entire case”—

and thereby caused the prosecutors to instigate a mistrial—is meritless in the extreme. (Cf. 

Mot. at 4-7.) The United States called Agent Fichtner as its first witness to provide the jury 

with an overview of how the Backpage website appeared to the general public in 2015 (see

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Doc. 931 at 22-23)—and he excelled at that introductory task. 

Agent Fichtner’s testimony centered on showing the jury an approximately 30-

minute video he recorded in March 2015 of his review of the Backpage website and his 

placement of two undercover ads. (See Ex. G at 56-62.)2 He showed the jury Backpage’s 

Sacramento homepage and “Escorts” section, lists of ads appearing in that section, the 

contents of many of those ads, and “gallery” (or thumbnail) views of 300 ads published in 

that section in the 27 hours preceding his recording. (See Ex. G at 62-77; Ex. I at 30-37.) 

He described several common characteristics of these ads, including an “opening 

description” that is “[k]ind of a proposition,” terms including “incalls,” “outcalls,” “100% 

independent,” “QK” (or “quickie”), phrases like “I’m in town for a short time,” prices for 

15-, 30- and 60-minute time increments, and photos or videos of women in lingerie or 

partially or entirely nude. (See, e.g., Ex. G at 58-59, 68-69; Ex. I at 59; Ex. K at 97, 99.) 

The ads’ propositions included, among others: “I love to take my time pleasing you. I never 

rush”; “I am here to please and excite you in every way, from my lips to my hips.” (Ex. G 

at 69-70, 72, 74; Ex. I at 59; Ex. J. at 81, 84.) 

Agent Fichtner crafted an undercover ad that incorporated many of these 

characteristics; after the ad went “live” on Backpage, it generated some 200 text messages 

and 130 calls from different phone numbers that “were directed towards soliciting sex for 

money.” (Ex. I at 20-21, 43-44.) He later discussed prostitution ads with Backpage general 

counsel Elizabeth McDougall, who didn’t deny their prevalence on Backpage: “I pointed 

out that . . . almost of all of these advertisements just looked like blatant prostitution ads. 

And each time I raised that, you known, she never dissuaded me from that. She basically 

said the Internet and prostitution is not going away.” (Ex. I at 48-49.) 

While he also testified that the ads he reviewed with the jury did not offer the 

exchange of sex for money in express terms, and he knew of no arrests based on such ads 

alone (Ex. K at 85; Ex. J. at 116-18), he wasn’t allowed to opine on the issue of whether 

2 Agent Fichtner’s March 2015 video, which was admitted at trial as Exhibit 489A, was 

provided to the Court on a DVD on April 21, 2020. (Doc. 931 at 22-23 n.11.)

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specific ads offered prostitution; nor was he called to provide expert testimony. (See Ex. J 

at 96-100.) Other witnesses addressed those topics. After he testified, Dr. Sharon Cooper—

a designated expert—defined several coded prostitution terms, including “100 percent 

independent” (the seller is in charge of themselves, rather than under the control of 

another), “quickie” (“a very short sexual encounter,” such “as a blow job, which is oral 

sex, or a hand job”), “Greek” (anal sex), and “BBBJ” (“Bare Back Blow Job,” or oral sex 

without a condom). (Ex. L at 40-46.) Another witness, Jessika Svendgard, defined terms 

in the Backpage ads that facilitated her prostitution. (See Ex. J at 13 (“In call means that 

people can come to your location, and out call means you can go to them”).) Her ads didn’t 

expressly offer sex for money; rather, “[w]e would try to clean the add up a little bit to 

make it less obvious to law enforcement that we were committing a crime.” (Ex. J at 12.)

The United States planned on calling scores of additional witnesses to testify about 

the true nature of Defendants’ “Escorts” advertising, including: Backpage CEO Carl Ferrer, 

who had already pleaded guilty and admitted that the vast majority of Backpage’s adult 

and escort ads were for illegal prostitution (18-CR-464, Doc. 7-2 at 12-13); Backpage’s 

Sales and Marketing Director Dan Hyer, who had similarly pleaded guilty and admitted 

that “the great majority of the ads being ‘moderated’ were actually offering illegal 

prostitution services—our removal of explicit words and pictures did nothing to change the 

services being offered” (Doc. 271 at 10); victims that were advertised for prostitution on 

Backpage; former “moderators”; representatives of NCMEC, law enforcement, and other 

organizations who repeatedly put Defendants on notice that Backpage was the internet’s 

leading marketplace for prostitution solicitations; and numerous others. (See Doc. 1314.) 

VI. THERE WAS NO INTENTIONAL MISCONDUCT. 

Nor did the United States engage in “repeated, obvious, and calculated violations of 

this Court’s clear rulings with each witness.” (Cf. Mot. at 5.) Agent Fichtner did not testify 

about child sex trafficking. The United States’ questioning of its three other witnesses 

reveals no intent to bring about the trial’s early termination. 

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 A. Jessika Svendgard

The United States paused Agent Fichtner’s direct examination so that it could call

Jessika and Nacole Svendgard, both of whom had traveled across the country to appear. 

Jessika is identified as Victim 4 in the SI¶163, which alleged: 

In or around 2010, Victim 4 was sold for sex, through the use of Backpage 

ads, in Washington. During this period, Victim 4 was a juvenile (15 years 

old). Victim 4’s pimp drafted the ads that were placed on Backpage. The 

wording of these ads was edited by Backpage before publication. The ads 

contained words and phrases such as 

“W’E’L’L_W’O’R’T’H_I’T***^***150HR” and “IT WONT TAKE 

LONG AT ALL” and included pictures of Victim 4 in provocative positions 

showing her breasts and buttocks. 

On September 8, 2021, the Court ruled that Jessika’s testimony “is relevant” but stated

“you can’t go into the life of her while she was being trafficked.” (Ex. G at 105.) In 

response, the prosecutor outlined the following anticipated areas of testimony: 

[S]he’s just going to say, “Look, I had a pimp. The pimp posted me on 

Backpage. He took pictures of me. He crafted the text. On some occasions, I 

crafted the text. He posted me. The phone rang. I did three to four tricks a 

night.” . . . . [¶] [S]he will talk in limited terms about the sexual activities she had with these men who kept the money, but the reality is she was very much 

involved in the -- she testified in a criminal case in Seattle regarding the prosecution of the pimp.

Obviously, there are certain preliminary questions I have to ask her to set up 

the story, but I don't intend to dwell on, you know, her -- her life during that time period, the day-to-day life as being pimped out and trafficked.

(Ex. G at 105.) The Court agreed “the victim can testify as to most of what you said.” (Ex. 

G. at 107.) 

 Just before Jessika testified, Defendants filed a motion to limit her testimony. (Ex. 

I at 60; Doc. 1295.) The Court and the prosecutor engaged in the following colloquy:

THE COURT: Okay. So I’m going to allow her testimony, but it’s going be really limited. I mean, she’s allowed to testify that she was trafficked by her pimp through Backpage and that she filed suit, but I don’t know what else 

you anticipate getting into.

MR. RAPP: I anticipate -- I anticipate her to testify that she was trafficked by being posted on Backpage, yes, and that people paid money to post her ad

. . . . [¶] They used Visa cards to post her. They paid for the ads. All of those 

things that are relevant to a business enterprise. They paid for the hotels that 

she was at. They paid for her clothes. Those are relevant to the business 

enterprise. They reposted her ad, kind of like what we saw this morning, 

again and again. And then of course she filed suit against them and was 

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deposed by Backpage attorneys, including Liz McDougall was present there during the testimony, who was an agent of theirs.

(Ex. I at 65.) The Court then ruled: “She going to be allowed to testify. If she doesn’t have 

the foundation, she’s not going to be allowed to answer those questions.”(Ex. I. at 67.) 

As her testimony proceeded, Jessika explained how another prostitute had posted 

her on Backpage, which resulted in calls from men who called to arrange to have sex with 

them for money. (Ex. I at 70-71, 76-77.) When asked “did you have sex with them?,” 

Jessika answered “I was 15, and I was not the age of consent. I was raped.” (Ex. I at 77.) 

The question posed, however, did not ask if she was “raped,” and the Court sustained a 

defense objection that “[t]hat’s not the question that was asked.” (Ex. I at 77.) After she

described a fight and “hid[ing] in the back of the motel under a mattress,” the Court told

the prosecutor at a sidebar “these details are violating my order that you not go into the sort 

of details of her life as a prostitute” and “you need to be very careful.” (Ex. I at 77-79.) 

Following that sidebar, the prosecutor focused the remainder of his examination on 

Jessika’s advertising on Backpage and the fact that such advertising facilitated her 

prostitution. Jessika testified she had next met a pimp, Baruti Hopson, and was with him 

for approximately 105 days, during which time he took photos of her and created Backpage 

ads, and as a result Jessika received calls from johns – “people paying for sex.” (Ex. I at 

80-82.)3 The prosecutor elicited testimony about how Hopson paid for Jessika’s Backpage 

ads, and how she engaged in prostitution until recovered by police. (Ex. I at 83-89.) The 

prosecutor had her authenticate and discuss several of her Backpage ads, including times

Backpage modified her ads. (Ex. I at 89-91; Ex. J at 11-17.) Finally, the prosecutor 

confirmed that Jessika had been deposed in a civil suit against Backpage. (Ex. J at 18-19.) 

While Defendants assert they “objected more than 27 times” (Mot. at 7), the 

transcript shows that after the sidebar, the Court sustained seven foundation and six 

relevance objections, and overruled the rest. (Ex. I 80-89; Ex. J. at 11, 16, 51-53.) 

3 Defendants complain that the prosecutor referenced in multiple questions the 105-day period Jessika was with Hopson. (Mot. at 6 n.2.) Yet defense counsel did not object to these 

references at trial, and they accurately reflected the time period at issue. 

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 B. Nacole Svendgard

Jessika’s mother, Nacole, testified next. After the parties briefed and argued the 

scope of her testimony, the Court ruled that “the fact that her daughter was posted on 

Backpage I see as relevant.” (Ex. I at 8.) Meetings that Nacole had with public officials 

about her daughter’s trafficking could be discussed in a limited fashion, and “of course you 

can talk about her confrontation with Mr. Lacey.” (Ex. I at 14-15.) However, Nacole could 

not cover “the prosecution of [Jessika’s] pimp.” (Ex. I at 14.)

 The prosecutor hewed to these limits. Nacole testified briefly about her involvement 

in meetings with public officials about her daughter’s trafficking, her confrontation with 

Defendant Lacey when they both were called to testify before the U.S. Senate, and her civil 

litigation against Backpage. (Ex. J at 54-69.) While Defendants claim that they “repeatedly 

objected” (Mot. at 7), the Court overruled more objections that it sustained. (Ex. J at 55-

61, 65-67, 77.) And contrary to Defendants’ assertions, the government did not “repeatedly 

ask” about the prosecution of Jessika’s pimp. (Mot. at 7.) Nacole merely referenced that 

case as one of the sources of her knowledge of her daughter’s advertising on Backpage, 

and mentioned she had been contacted by a reporter from one of Defendants Lacey and 

Larkin’s publications (the Seattle Weekly) during the pimp’s trial. (Ex. J at 56-58.) The 

prosecutor asked no questions and elicited no testimony about anything that occurred at 

that trial. (Ex. J at 56-58.) The prosecutor then complied with a sidebar ruling that he not 

ask about an amicus brief in Nacole’s civil suit. (Ex. J at 61-63.)

Defendants’ claim that Nacole “provided no information about the 50 charged ads 

or any count in the [SI]” (Mot. at 5) is similarly misplaced. The United States focused its 

examination on her role as a notice witness. After she testified about her meetings with 

public officials advocating for legislation to prevent trafficking on Backpage, she identified 

Defendant Lacey as the person who, while turning to her as she passed him in the halls of 

the U.S. Senate, “said, if these fucking yahoos would just keep their mouths shut.” (Ex. J. 

at 68-69.) This testimony was specifically contemplated by the Court. (See Ex. I at 14-15.)

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 C. Dr. Sharon Cooper

 The evening before Dr. Cooper was to testify, Defendants filed a motion in limine 

to preclude her. (See Ex. K at 5.) The next morning, the prosecutor explained that Dr. 

Cooper would address two areas—how sex trafficking occurs online, and the terminology 

and vernacular used in the trafficking and prostitution industry. (Ex. K at 5.) The Court 

denied the motion to preclude. (Ex. K. at 10.) 

After Dr. Cooper provided foundational testimony about her background, the 

prosecutor moved to have Dr. Cooper “qualified as an expert in the area of how trafficking 

occurs through online media platforms, and also terminology and [the] vernacular used in 

sex trafficking and prostitution industry.” (Ex. L at 17.) The Court denied a defense request 

to “voir dire the witness” and ruled “[t]he government may proceed.” (Ex. L at 17.)

Shortly after starting her substantive testimony, Dr. Cooper testified that she learned 

from briefings by law enforcement and/or child protective services agencies that “victims 

were most commonly being sold from Backpage.” (Ex. L at 25-26.) Defense counsel 

objected on hearsay grounds, and the Court called a sidebar and explained “Rule 702 gives 

the expert some leeway, so you can have a continuing objection, but as long it’s something 

she used in her experience, it’s coming in under 702.” (Ex. L at 26.) During the sidebar, 

defense raised a separate relevance/Rule 403 objection regarding what the defense 

considered to be excessive references to children. (Ex. L at 26-27.) After further argument, 

the Court cautioned the prosecutor that “you need to be careful, because you’re getting 

close to a 403 violation.” (Ex. L at 28.) As Defendants admit, the Court then stated “using 

the phrase ‘sex trafficking’ was acceptable but that the government and its witnesses must 

‘stay away from the child sex trafficking.’” (Mot. at 9, quoting Ex. L at 29.)

After the sidebar, the prosecutor tried to avoid questions that might call for 

discussions of minor victims. (See Ex. L at 30-39.) Despite these efforts, Dr. Cooper at one 

point testified that the “overwhelming majority” of victims she had evaluated over the last 

10 years “have been sold on Backpage,” and the majority of those victims “were underage 

minors.” (Ex. L. at 39.) The Court sustained objections to further questioning about 

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“victims,” and the prosecutor turned to the issue of nomenclature used in the prostitution 

industry. (Ex. L at 40-48.) Dr. Cooper’s testimony about such terminology did not concern 

children, and the prosecutor avoided asking about terms that might have done so (e.g., 

“amber alert,” “Lolita”). The final portion of her testimony involved two-transcript pages’ 

worth of discussion about a call she received from Backpage’s general counsel. (Ex. L at 

51-53.) The Court overruled Defendants’ relevance objections to that testimony. (Ex. L at 

51.) Overall, while Defendants assert they “objected more than 50 times” (Mot. at 8-9), the 

Court overruled nearly two-thirds of their objections. (Ex. L at 8-53.) 

On this record, there was no intentional misconduct, and certainly no intentional 

effort to bring about an abrupt end to this long-delayed trial.

VII. THE MISTRIAL RULING WAS LARGELY BASED ON CONCERNS 

ABOUT “CUMULATIVE” CHILD SEX TRAFFICKING REFERENCES. 

During Dr. Cooper’s cross-examination, defense counsel renewed their mistrial 

motion regarding the witness’s repeated references to child sex trafficking. (Ex. L at 66-

67.) The Court granted the motion the next morning. The Court stated it had given the 

United States “some leeway” at the beginning “because child sex trafficking and sex 

trafficking are forms of prostitution,” “[y]et in the opening, and with every witness 

thereafter, it seems, the government has abused that leeway.” (Ex. M at 4.) The Court listed

examples of Dr. Cooper addressing child sex trafficking, Jessika Svendgard testifying 

about being abused as a trafficking victim, and referenced other testimony. (Ex. M at 4-5.)

The Court concluded: “So although I don’t see any of these as intentional misconduct, 

the cumulative effect of all of that” led to the mistrial ruling. (Ex. M at 5 (emphasis added).) 

The Court later set a new trial for February 9, 2022, and a status hearing to discuss juror 

questionnaires for January 31, 2022. (Doc. 1336; see also Doc. 1377.) 

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Argument

I. RETRIAL IS NOT BARRED BY THE DOUBLE JEOPARDY CLAUSE. 

A. Defendants Must Prove that the United States Deliberately Sabotaged the Trial—an Extraordinary Standard that Is Almost Never Met.

The Double Jeopardy Clause generally does not apply where—as here—the 

Defendants have obtained a mistrial. United States v. Tateo, 377 U.S. 463, 467 (1964). In 

Kennedy, the Supreme Court identified a single, exceedingly “narrow exception” to this 

rule: “Only where the governmental conduct in question is intended to ‘goad’ the defendant 

into moving for a mistrial may a defendant raise the bar of double jeopardy to a second 

trial after having succeeded in aborting the first on his own motion.” 456 U.S. at 676. 

Kennedy rejected a broader exception, suggested by prior cases, that encompassed “‘badfaith conduct by [the] judge or prosecutor’ [that] threatens the ‘[h]arassment of an accused 

by successive prosecutions [or] afford[s] the prosecution a more favorable opportunity to 

convict,’” id. at 674 (quoting United States v. Dinitz, 424 U.S. 600, 611 (1976)), or other 

instances of “prosecutorial or judicial overreaching.’” Id. at 678 (quoting United States v. 

Jorn, 400 U.S. 470, 485 (1971)). 

Kennedy clarified that only prosecutorial conduct deliberately and intentionally 

aimed at sabotaging the first trial will trigger the exception. This narrow exception 

“prevents prosecutors from sinking a case they knew was doomed to end in an acquittal in 

the hope of having better luck before a second jury.” United States v. Lewis, 368 F.3d 1102,

1108 (9th Cir. 2004). “[I]n the language of veteran trial lawyers, the Double Jeopardy 

Clause bars retrial when a prosecutor’s misconduct aims to ‘burn’ the jury, but not when 

he merely aims to convict the defendant by methods foul.” Lopez-Avila, 678 F.3d at 962. 

“‘[I]t doesn’t even matter that [the prosecutor] knows he is acting improperly, provided 

that his aim is to get a conviction. The only relevant intent is intent to terminate the trial, 

not intent to prevail at this trial by impermissible means.’” Id. (citation omitted). This 

exacting standard “is rarely met.” Id. “‘Even when the government’s actions remove[ ] any 

meaningful choice for defendants between pushing on with the trial or seeking mistrial,’ 

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defendants bear the heavy burden of proving that the prosecutor ‘intended’ the results.” 

Tyler v. Barnes, 2015 WL 6537149, at *15 (E.D. Cal. Oct. 28, 2015) (quoting Lun, 944 

F.2d at 646). For several reasons, Defendants cannot meet their “heavy burden” here. 

B. Defendants Have Failed to Meet Kennedy’s Exacting Standard. 

1. The United States Strenuously Opposed a Mistrial. 

First, the United States strongly opposed Defendants’ motions for mistrial—

demonstrating the government’s lack of intent to end the trial. See United States v. Fowlkes, 

804 F.3d 954, 972 (9th Cir. 2015); United States v. McKoy, 78 F.3d 446, 449 (9th Cir. 

1996); Lun, 944 F.2d at 644. When Defendants raised their mistrial motion following the 

prosecutor’s opening statement, the United States opposed Defendants’ assertions. (Ex. E 

at 67-72.) The Court agreed with the United States’ position regarding comments about 

child sex trafficking: “I’ve already ruled on that. And the government didn’t cross the line 

on that issue, in my mind, because they didn’t go into any of the details.” (Ex. E at 70.) 

The United States then worked through the ensuing holiday weekend to prepare a 

comprehensive 17-page response to Defendants’ motion. (Doc. 1275.) On September 8, 

2021, the Court denied Defendants’ motion in its entirety. (Ex. F at 7-11.) 

Defendants next sought a mistrial after Dr. Cooper provided foundational testimony 

explaining her background, which involved working with victims of underage sex 

trafficking. The prosecutor reiterated the arguments that undergirded the United States’ 

previous (and successful) briefing on this issue. (See Ex. L at 28.) When Defendants again 

raised the issue at an afternoon break, the prosecutor resisted Defendants’ arguments and 

grounded his position in the Court’s prior rulings. (See Ex. L at 72-73.) In sum, the United 

States strongly opposed all of Defendants’ mistrial motions—a factor that weighs against 

a finding of prosecutorial intent to cause a mistrial. E.g., Fowlkes, 804 F.3d at 972. 

2. The Court Found No Intentional Misconduct. 

Second, the Court made an express finding that the prosecutors’ actions giving rise 

to the mistrial ruling were not intentional. (Ex. M at 5.) The judge who made that finding 

had numerous opportunities to observe the prosecutors’ conduct during the two-and-a-half 

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years she presided over pretrial preparations, and during the trial. See Lun, 944 F.2d at 644 

(crediting trial court’s findings of non-intentionality based on judge’s lengthy observation 

of the prosecution team pretrial and during trial). The Court’s finding is consistent with 

several critical parts of the record. 

Pre-trial, the Court ruled the United States could present evidence regarding sex 

trafficking and child sex trafficking—which the Court recognized are “both forms of 

prostitution”—provided it did not “linger on the details of the [victims’] abuse.” (Doc. 

1156 at 3-4.) Then, before, during and after the United States’ opening statement, the Court

indicated that the United States could reference trafficking, including child sex trafficking. 

Before openings began, the Court stated that “they [the United States] aren’t prohibited 

from using the word trafficking” (Ex. D at 31); the Court overruled most defense objections

on this issue (Ex. E at 5, 28, 29, 33, 44-45, 56-57); and when Defendants moved for a 

mistrial that day, the Court ruled “the government didn’t cross the line on that issue.” (Ex. 

E at 70.) After briefing, the Court reaffirmed “the fact that child trafficking and sex 

trafficking occurred on the website was not precluded by my earlier order.” (Ex. F at 8.) 

The Court’s rulings regarding Jessika Svendgard’s testimony similarly did not 

evince any findings of intentional misconduct, let alone give the United States reason to 

believe Defendants could obtain a mistrial. Before Jessika started testifying, the Court ruled 

her testimony “is relevant” but reminded the prosecutor “you can’t go into the life of her 

while she was being trafficked.” (Ex. G at 105.) When the prosecutor outlined several areas 

of anticipated testimony (Ex. G. at 105), the Court found: “the victim can testify as to most 

of what you said.” (Ex. G at 107). Later, when the prosecutor listed topics he proposed to 

ask about, including the details of how she was advertised on Backpage and her traffickers’ 

“business enterprise,” the Court allowed the testimony to proceed. (Ex. I at 65-67.) While 

she referenced being “raped” in an answer to a question, the question did not ask if she was 

“raped,” and the Court sustained an objection that “[t]hat’s not the question that was 

asked.” (Ex. I at 77.) After she mentioned a fight, the Court told the prosecutor at a sidebar 

“these details are violating my order that you not go into the sort of details of her life as a 

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prostitute.” (Ex. I at 77-79.) Following that sidebar, the prosecutor took care to focus on 

Jessika’s advertising on Backpage and how it facilitated her prostitution. (Ex. I at 80-89.) 

There was no “intentional misconduct.” (Ex. M at 5.) 

The same is true regarding the United States’ examination of Nacole Svendgard, 

who testified about her meetings with public officials regarding her daughter’s trafficking, 

her confrontation with Defendant Lacey when they both were called to testify before the 

U.S. Senate, and her litigation against Backpage. (Ex. J at 54-69.) Defendants claim that 

they “repeatedly objected” to the prosecutor’s questions (Mot. at 7), but the Court overruled 

more objections that it sustained. (Ex. J at 55-61, 65-67, 77.) Nor did the government 

“repeatedly ask” about the prosecution of Jessika’s pimp. (Mot. at 7.) The prosecutor asked 

no questions about anything that occurred at that trial. (Ex. J at 56-58.) He also complied

with a sidebar ruling regarding references to an amicus brief. (Ex. J at 61-63.) 

The United States likewise did not engage in intentional misconduct involving Dr. 

Cooper. Rather than “ignore[ ] the Court’s warnings” at a sidebar early in her examination.

(Mot. at 9; Ex. L at 28-29), the prosecutor spent the balance of his examination trying to 

steer away from discussions about children. (Ex. L at 30-39.) When, despite these efforts, 

Dr. Cooper testified that the “overwhelming majority” of victims she had evaluated were 

minors “sold on Backpage” (Ex. L. at 39), the prosecutor turned to the issue of 

nomenclature in the prostitution industry—and studiously avoided asking about terms like 

“amber alert” or “Lolita” that might have prompted discussions about underage victims. 

(Ex. L at 40-48.) Defendants further complain that portions of Dr. Cooper’s answers 

“opined on the ultimate issues” (Mot. at 9)—yet their objections were overruled (Ex. L at 

41, 44), and the rules permit expert testimony on such issues. Fed. R. Evid. 704(a)-(b). The 

Court correctly determined none of this constituted “intentional misconduct.” (Ex. M at 5.) 

 3. The Government’s Case Was Not “Faltering.” 

Third, Agent Fichtner showed the jury what Backpage actually looked like in 2015, 

including its Adult Escorts section, and described several common characteristics of 

Backpage’s Escorts ads. (See supra at 7-8.) When he posted an undercover ad that 

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incorporated several of these characteristics, the ad generated more than 300 unique 

responses “directed towards soliciting sex for money.” (Ex. I at 43-44.) And when he 

confronted Backpage’s general counsel about the prevalence of blatant prostitution ads on 

the website, she did not dissuade him—but merely told him that the “Internet and 

prostitution is not going away.” (Ex. I at 49.) 

Agent Fichtner was not called to opine on whether specific ads were solicitations 

for prostitution. The United States had numerous other witnesses—including experts and 

victims who had been advertised for prostitution on Backpage—to explain the meaning of 

the ads to the jury. Rather, the purpose of his testimony was to introduce the jury to how

Backpage’s website looked and functioned. At this, he most definitely succeeded. His

testimony provided no reason for the United States to sabotage the trial after only two full 

days of testimony. 4

 

Furthermore, to accept Defendants’ theory, one would have to believe the 

prosecution viewed Agent Fichtner’s testimony as undermining its case (it did not), and 

then decided to call Dr. Cooper, “a self-proclaimed ‘developmental and forensic 

pediatrician,’” to instigate a mistrial. (Mot. at 7.) This is conspiracy theorizing run amok. 

The prosecution disclosed Dr. Cooper as an expert witness more than two years before

Agent Fichtner took the stand, and the Court—having been provided with Dr. Cooper’s 

curriculum vitae—had already ruled that she could testify about “how victims are recruited 

and controlled and how the internet has changed the dynamics between the pimp and 

4 Defendants allude to the erroneous legal argument that the ads were “presumptively 

protected by the First Amendment” if they didn’t expressly state an offer of sex for money. (See Mot. at 16.) Yet the law is clear that the jury may properly consider the totality of the 

text and context of the ads in determining the services offered, including the meaning of coded prostitution terms, prices with short time increments, nude or partially-nude photos, references to prostitution review websites like The Erotic Review, and other evidence. See

Doc. 1216-3 at 185-87; Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376, 

388 (1973) (employment ads were unlawful based on the context of their placement in gender-specific categories, rather than their text). Valle Del Sol Inc. v. Whiting, 709 F.3d 

808 (9th Cir. 2013) (Mot. at 16 n.5), is not to the contrary. It recognizes the continuing validity of Pittsburgh Press and reaffirms that the First Amendment “extends no 

protection” at all to prostitution ads and solicitations. 709 F.3d at 822. Accord, Erotic 

Service Provider Legal Ed. And Research Project v. Gascon, 880 F.3d 450, 459-60, as 

amended, 881 F.3d 792 (9th Cir. 2018). Defendants cite no contrary Ninth Circuit authority. 

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prostitute,” and “terms unique to the vernacular of the prostitution and sex trafficking 

subculture.” (Doc. 1081 at 16; see Doc. 422-7 at 1-57; Doc. 958 at 2-3.) 

At bottom, Agent Fichtner’s testimony gave the United States no cause to abort the 

trial, which had barely started. Defendants’ Motion should be denied for this reason alone. 

See Lopez-Avila, 678 F.3d at 959-62 (affirming denial of motion to dismiss where district 

court found no evidence that intentional misconduct was part of a “strategy decision . . . to

abort the trial”); Lun, 944 F.2d at 644 (defendants failed to establish prosecutor believed 

he would be better off with a new trial); United States v. Curtis, 683 F.2d 769 (3rd Cir. 

1982) (affirming where there was no evidence the government feared acquittal). 

 4. The United States Is Prejudiced by the Mistrial. 

Fourth, Defendants’ assertion the United States’ “intent to goad” can somehow be 

inferred from advantages it would gain from retrying the case lacks merit. (Cf. Mot. at 15-

16.) Both sides—not just the defense—have much to lose from having to start over in a 

second trial. When prosecutorial error occurs, “the prosecutor suffers substantial costs” 

whether or not the defendant choses to continue with the trial or seek a mistrial:

If the defendant consents to a mistrial, the prosecutor must go to the time, 

trouble, and expense of starting all over with the criminal prosecution. If the defendant chooses to continue the proceeding and preserve his objection for 

appeal, the prosecutor must continue to completion a proceeding in which a 

conviction may not be sustainable.

Kennedy, 456 U.S. at 685-86 (Stevens, J., concurring). And if a mistrial is declared, 

“[w]itnesses may disappear or forget their testimony after the long delay [leading to the 

second trial]”; and delay nearly always prejudices the government—the party bearing the 

burden of proving guilt beyond a reasonable doubt—far more than the defense. Lun, 944 

F.2d at 646. Such prejudice is particularly pronounced in cases, such as this, that involve 

lengthy trials with scores of witnesses traveling from all parts of the country. The 

prosecution team had worked for years to prepare. The United States had much to lose 

from having the trial abruptly terminated.

For their part, “[D]efendants benefit by retrial. They have had the opportunity to see 

a substantial portion of the government’s case-in-chief. They will also have the opportunity 

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to portray [information from] the first trial in the most beneficial way for their position, 

from the very outset.” Lun, 944 F.2d at 646. Here, the last thing the prosecution wanted 

was an abrupt early end to this long-delayed trial.

5

 

C. Defendants Have Failed to Make a Colorable Double Jeopardy Claim.

Judge Brnovich found that there was no “intentional misconduct.” (Ex. M at 5.) As 

shown above, the prosecutors vigorously opposed Defendants’ efforts to seek a mistrial; 

endeavored to conform their witness examinations to the Court’s rulings; and had much to 

lose from having the trial abruptly terminated. Simply put, there is nothing in the record 

capable of supporting anything close to Kennedy’s burden of proving a deliberate strategy

to abort the trial. Particularly given the Court’s finding of non-intentionality, “no set of 

facts will support the assertion of a claim of double jeopardy” under Kennedy’s 

intentionality-based standard. Richardson v. United States, 468 U.S. 317, 326 n.6 (1984)

(a “colorable claim” is one for which there is “some possible validity”). For all these

reasons, the United States respectfully requests that the Court deny Defendants’ Motion—

and also find that Defendants’ double jeopardy claim has no colorable basis on this record.

II. THE EXTREME SANCTION OF DISMISSAL IS NOT APPROPRIATE 

UNDER DUE PROCESS OR THE COURT’S SUPERVISORY POWERS. 

A. Defendants Cannot Obtain Relief Under the Due Process Clause.

Defendants’ alternative requests to dismiss this case under the Due Process Clause 

or the Court’s supervisory powers likewise should be denied. Defendants seek dismissal 

under the Due Process Clause of the Fifth Amendment—a remedy that may be invoked 

5 Defendants’ other double jeopardy cases are inapposite. Both United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976), and United States v. Martin, 561 F.2d 135, 140 (8th Cir. 1977), used the broader standard the Supreme Court rejected in Kennedy. See United States 

v. Singleterry, 683 F.2d 122, 123 n.1 (5th Cir. 1982) (Pre-Kennedy decisions using “a more expansive double jeopardy bar—i.e., that reprosecution is barred by any ‘grossly negligent’ or intentional misconduct that ‘seriously prejudices’ the defendant . . . [are] no longer the law.”). Tibbs v. Florida, 457 U.S. 31 (1982), and United States v. Weems, 49 F.3d 528 (9th Cir. 1995), allowed retrial. In United States v. Sterba, 22 F. Supp. 2d 1333, 1335-37, 1341- 42 (M.D. Fla. 1998), the prosecutor elicited false testimony, and in Arizona v. Washington, 434 U.S. 497, 510-11 (1978), defense counsel’s prejudicial remarks prompted a mistrial; those decisions are miles away from this case. 

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only when the government engages in “outrageous” conduct. (Cf. Mot. at 27-29.) 

“Dismissing an indictment for outrageous government conduct, however, is ‘limited to 

extreme cases’ in which the defendant can demonstrate that the government’s conduct 

‘violates fundamental fairness’ and is ‘so grossly shocking and so outrageous as to violate 

the universal sense of justice.’ This is an ‘extremely high standard.’” United States v. Black, 

733 F.3d 294, 302 (9th Cir. 2013) (citations omitted). This relief is reserved only for truly 

extreme cases, such as where the police have used “extreme physical or mental brutality” 

against the defendant, or the government has engineered and directed a criminal enterprise 

from start to finish. Kearns, 5 F.3d at 1253; See also United States v. Kojayan, 8 F.3d 1315 

(9th Cir. 1993) (conviction reversed where prosecutor misstated key facts regarding a 

central witness in closing argument). In addition to shocking and outrageous misbehavior, 

a defendant must show the misconduct prejudiced his defense. See United States v. Rogers, 

751 F.2d 1074, 1077 (9th Cir. 1985).

Defendants cannot make that extreme showing here. First, with respect to the 

mistrial, if Defendants cannot meet the exacting Kennedy standard for barring a retrial on 

double jeopardy grounds (and they cannot), then they cannot meet the even more 

extraordinary standard that applies to due process dismissals. This is not a case of “extreme 

physical or mental brutality”; nor was the Court’s mistral ruling based on any type of 

extreme trial misconduct of the kind referenced in the foregoing cases. 

Second, Defendants’ arguments regarding discovery of materials from a wholly 

separate investigation of Backpage conducted a decade ago in the Western District of 

Washington (WDWA) likewise fail to justify this extreme form of relief. (Mot. at 28.) As 

explained below, the central problem with Defendants’ argument is that it presupposes 

something that has never been found in this case—namely, that any discovery violations at 

all have occurred regarding the WDWA investigation. If anything, the record is 

diametrically to the contrary—the parties have litigated this issue, and Judge Logan ruled 

in 2019 that (Doc. 449.) 

Third, the analysis is much the same regarding Defendants’ next alleged basis for 

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relief—supposed “invasions” of the attorney-client privilege. (Mot. at 28.) The Court has 

already ruled on that issue—against Defendants. (Doc. 1168.) 

Fourth, Defendants assert the United States’ seizures of certain assets have 

“impeded and restricted” their right to present a defense. (Mot. at 29.) Yet Defendants have 

never provided the United States with anything to substantiate that claim, and multiple 

courts have authorized the asset freezes. (See, e.g., Docs. 446, 1384.) The request for relief 

under the Due Process Clause should be denied.

B. The Court Should Not Grant the Extreme Remedy of Dismissal Under 

its Supervisory Power. 

Defendants’ request for dismissal under the Court’s supervisor powers also should 

be denied. The court’s exercise of its supervisory powers protects the integrity of the 

federal courts and prevents the courts from “making ... themselves accomplices in willful 

disobedience of law.” McNabb, 318 U.S. at 345 (emphasis added). However, “these 

supervisory powers remain a harsh, ultimate sanction (which) are more often referred to 

than invoked.” Owen, 580 F.2d at 367. “Because it is a drastic step, dismissing an 

indictment”—which prevents the case from proceeding at all—“is a disfavored 

remedy.” Rogers, 751 F.2d at 1076-77. It “is an extreme sanction which should be 

infrequently utilized,” Owen, 580 F.2d at 367, and “is impermissible absent ‘a clear basis 

in fact and law for doing so.’” United States v. Isgro, 974 F.2d 1091, 1097 (9th Cir. 1992). 

Under its supervisory powers, a district court may dismiss an indictment with 

prejudice for prosecutorial misconduct only if it finds (1) “flagrant misbehavior” by the 

government that caused (2) “substantial prejudice” to the defense, and has concluded (3)

“no lesser remedial action” is available to redress injury. United States v. Bundy, 968 F.3d 

1019, 1031 (9th Cir. 2020); Kearns, 5 F.3d at 1253. Regarding lesser remedies, the Court

may consider a range of options, including dismissing without prejudice and forcing the 

government to begin anew, limiting witnesses or testimony, and disciplinary or other 

sanctions. Bundy, 968 F.3d at 1031. A defendant “bears a heavy burden” when seeking the 

most extreme of all of these alternatives—dismissal with prejudice of criminal charges. 

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United States v. Venegas, 800 F.2d 868, 869 (9th Cir. 1986). For several reasons, 

Defendants cannot meet that heavy burden here.

1. The Mistrial Is a Severe Sanction for the United States’ Trial Conduct. 

Contrary to Defendants’ assertions, the United States’ conduct at trial does not 

warrant the extreme, case-terminating sanction of dismissal with prejudice. As shown 

above, the Court ruled pretrial that the United States could introduce evidence regarding 

sex trafficking and child sex trafficking, but could not linger on details of victim abuse. 

The Court rejected all of Defendants’ arguments regarding the opening statement, the 

prosecutors’ attempted in good faith to adhere to the Court’s rulings during the witness 

examinations, and the Court concluded that there had been no intentional misconduct. (Ex. 

M at 5; see McNabb, 318 U.S. at 345 (requiring “willful disobedience of law”); Kearns, 5 

F.3d at 1255 (even though the government’s conduct “may have been negligent, or even 

grossly negligent,” it did not rise to the level of flagrant misconduct). 

This case is nothing like United States v. Aguilar, 831 F. Supp. 2d 1180, 1187-98 

(C.D. Cal. 2011) (Mot. at 18), where the district court granted a motion to dismiss after 

prosecutors had inserted a false statement into one FBI agent’s affidavit, allowed another 

key FBI agent to testify untruthfully before the grand jury, made misleading factual 

representations in closing arguments, and engaged in a host of other misconduct. Nor is 

this case remotely analogous to Lopez-Avila, 678 F.3d at 958-61 (Mot. at 17-18), where 

the prosecutor deliberately misquoted impeachment material during his cross-examination 

of the defendant, and thereby elicited testimony that undermined her duress defense. The 

trial here is devoid of any remotely similar facts. 

Moreover, while a mistrial can involve advantages and disadvantages for both sides, 

the mistrial here has substantially prejudiced the United States. (See supra at 20-21.) In the 

circumstances of this case, the mistrial itself is a sufficiently severe remedy for the events 

that led to the mistrial declaration. 

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2. Defendants’ Brady Arguments Have Already Been Litigated and Rejected. 

Defendants’ assertion that alleged Brady violations warrant dismissal is deficient. 

(Mot. at 19-22.) First, despite numerous accusations by Defendants about purported 

discovery violations (see, e.g., Docs. 273, 531, 643, 662, 665, 740, 777), the Court has 

failed to find any. (Docs. 339, 768, 802, 839, 1028.) Judge Logan and Judge Brnovich 

denied two prior motions to compel production of Brady material. (Docs. 339 and 1028.) 

Defendants’ third motion to compel (Doc. 1281) concerns an issue decided by Judge 

Logan in January 2019. (Doc. 449-1.) 

 

Nearly three years after Judge Logan issued his Order—and immediately following 

the Court’s denial of Defendants’ motion for acquittal or mistrial on the fourth trial day—

Defendants attempted to resurrect this issue (Ex. F at 11-13) and filed their third Brady

motion (Doc. 1281). That motion is fully briefed, and Defendants’ Brady assertions in the 

instant Motion are largely borrowed from that motion. (Compare Doc. 1281 with Mot. at 

19-22.) Accordingly, the United States incorporates herein the arguments made in its 

response to that motion. (Doc. 1326.) Suffice to say, Judge Logan unequivocally found—

and it is law of the case—

 

These facts are nothing like United States v. Chapman, 524 F.3d 1073 (9th Cir. 

2008), or United States v. Bundy, 968 F.3d 1019 (9th Cir. 2020) (Mot. at 19-22). In

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Chapman, the AUSA failed to keep a log of disclosed and nondisclosed materials—and 

thereby could not verify that he had complied with Brady and Giglio, and failed to disclose 

impeachment materials until after the pertinent witnesses had testified. 524 F.3d at 1079, 

1085; id. at 1079. In Bundy, the government started disclosing Brady material days after

trial started—including numerous categories of evidence that “undermined the 

government’s theory that the defendants intentionally lied about fearing government 

snipers surrounding the property.” 968 F.3d at 1033; see id. at 1034-37. Here, a judge has 

already reviewed the underlying memoranda and found no obligation to disclose. 

Defendants’ assertion of a Brady violation regarding a legal opinion referenced in a 

WDWA grand jury transcript holds no water. (Mot. at 22-23.) The United States produced 

the transcript to Defendants on November 30, 2018. (See Ex. Q.) 

 

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In these circumstances, 

Brady does not require disclosure of the underlying summer associate memorandum—

particularly when Defendants have known the memorandum’s material substance for three 

years. And this is certainly not enough to warrant the extraordinary result of dismissing 

with prejudice all criminal charges in this case.

3. Defendants’ Attempted Motion for Reconsideration on Privilege 

Issues Is Deficient on Every Level.

Defendants’ argument about the United States’ purported privilege invasions lacks 

merit. Defendants have already made this argument—in a motion with similarly hyperbolic 

language—and lost. (Docs. 940, 998, 1020, 1168, RT 5/3/21, attached as Exhibit 1.) Now, 

Defendants move for dismissal of the entire case based on this issue—without even 

mentioning the Court’s Order denying their previous motion, much less attempting to 

counter the Court’s findings or seeking formal reconsideration.

Defendants’ argument is deficient because (a) they failed to establish that any 

statements made by Carl Ferrer to the United States were privileged, and (b) even if the 

communications had been privileged, that privilege has been waived. This fact is illustrated 

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by, among other reasons, a lengthy legal memorandum—disclosed to third parties—that 

discusses all of Defendants’ legal defense theories in detail. 

On May 1, 2020, Defendants filed a “motion to dismiss based on outrageous 

government misconduct invading attorney-client privilege.” (Doc. 940.) After full briefing 

and argument, the Court denied the motion on June 4, 2021. (Doc. 1168.) Defendants 

argued that the United States invaded Defendants’ privileged communications when it 

interviewed Carl Ferrer. (Doc. 940 at 5-7.) Defendants then claimed that the United States 

acted “flagrantly” by “invading” their privilege, which caused them to suffer “substantial 

prejudice” and should result in the case being dismissed. (Doc. 940 at 15.) The instant 

Motion raises identical arguments. (Mot. at 22-23, 25-27.) 

 

 

Defendants recently admitted to having waived their privilege on these issues—in a 

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manner that neither the Court nor the United States previously knew about. In July 2021, 

Defendants disclosed multiple legal memoranda as potential trial exhibits. (Doc. 1234 at 

2.) One such memorandum is titled “Why Village Voice Media’s Backpage.com Service 

Does Not Create Liability for Promoting Prostitution” (the “Memorandum,” attached as 

Exhibit 2). The United States grew concerned Defendants would attempt to raise an advice 

of counsel defense without expressly waiving the privilege beforehand, which is required, 

so it filed a motion. (Doc. 1234.) Defendants then admitted the Memorandum “was 

disclosed to third parties, including financial institutions, and, therefore, is not privileged.”

(Doc. 1239 at 3, n.1.) It contains detailed analyses of Defendants’ theories involving the 

Communications Decency Act, the First Amendment and mens rea. (Ex. 2 .)6

In other words, 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. Interestingly, this 

is contrary to Defendants’ representations. 

 

 

 

6 The Memorandum fails to analyze the prostitution marketing strategies Defendants 

utilized to help Backpage become the internet’s leading prostitution ad marketplace. 

 

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This statement, 

of course, isn’t correct, as evidenced by the fact that the Memorandum was shared with 

third parties.7 Unbeknownst to the Court or the United States, Defendants’ primary 

argument in support of their motion to dismiss for outrageous government misconduct was 

wrong. The argument in Defendants’ instant Motion—that the United States invaded 

Defendants’ privilege through its interviews of Carl Ferrer—is wholly without merit. 

4. Defendants’ Arguments Regarding a Purported Violation of Filter 

Team Protocols Lacks Merit.

Defendants’ assertion that the United States engaged in a “pattern and practice” of 

violating the Court’s Orders and Defendants’ privileges as it relates to filter team practices 

doesn’t withstand the barest scrutiny. To put this argument in context, the United States 

offers this brief outline the history of both the filter team litigation and some of the grand 

jury litigation that occurred pre-indictment.

a. Brief History of Filter Team Litigation.

On October 29, 2018, the United States filed a motion for clarification on whether 

it could continue to utilize a filter team to review the potentially privileged materials in its 

possession. (Doc. 355 at 3.) This filter process had previously been approved by two 

magistrate judges. (Docs. 195-1, 195-2.) After Defendant filed an objection (Doc. 409), 

Judge Logan granted the United States’ motion, finding “the filter team is the most efficient 

way to advance the Government’s discovery review.” (Doc. 445 at 2.) Defendants then 

filed a motion for further clarification, urging the Court to adopt new rules governing the 

7 In addition, Ferrer never provided anything close to the detail that is provided by the 

Memorandum. Ferrer merely identified the legal defense theories in his interviews with the 

United States, while the memorandum goes into painstaking detail about the legal support 

for each theory. Further, the United States was intimately familiar with Defendants’ legal theories before it ever spoke with Ferrer. (See Doc. 998 at 10-12.). 

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filter team. (Doc. 452.) Judge Brnovich denied Defendants’ motion and affirmed filter team 

protocols that three other judges had already approved. (Doc. 545; Doc. 577 at 11-12.) 

The United States, both in its response to Defendants’ motion for further 

clarification (Doc. 462) and at a hearing (Doc. 577 at 7-9), explained how the filter process 

would work. The filter team would review the segregated documents and organize the 

documents into three categories vis-à-vis the attorney-client privilege: not protected; 

potentially protected; and presumptively protected. (Doc. 462 at 1-2; Doc. 577 at 8.) If the 

communications weren’t protected by the privilege, then the filter team would produce 

those documents to the prosecution team.8 On May 15, 2019, the United States 

memorialized its filter team instructions, which were consistent with the protocol approved 

previously by the Court. (Doc. 1023 at Ex. A.)9

 

b. Judge Campbell’s Order Compelling Backpage to Produce 

Third Party Communications. 

Before the United States charged Defendants, the parties engaged in extensive 

litigation related to document production in compliance with grand jury subpoenas. (Doc. 

780 at Ex. 13.) On April 2, 2018, Judge Campbell issued an Order compelling Backpage 

to produce all communications between its attorneys and representatives from public 

relations (PR) firms and an investment bank. (Doc. 780, Ex. 13 at Ex. K.) Judge Campbell 

found that any communications between Backpage’s attorneys and PR firms weren’t 

privileged. (Id.) Accordingly, these communications between third party PR firms and 

Backpage’s attorneys could be disclosed to the prosecution team. 

8 The Court rejected Defendants’ demand that all non-privileged documents be produced to them before disclosure to the prosecution team. (Doc. 452 at 2-3; Doc. 577 at 5-13.)

9 Defendants’ reliance on United States v. Pedersen, 2014 WL 3871197 (D. Or. Aug. 6, 2014) is misplaced. (Mot. at 25.) In that case, the prosecution made multiple errors not present here. The filter team instructions were neither submitted, nor approved, by the 

Court. Pedersen, 2014 WL 3871197, at *16. The filter team protocol in Pedersen allowed 

filter team members to intentionally review privileged material and permitted an AUSA to 

work on both the filter team and prosecution team. Id. at *29. Finally, a number of the defendants’ privileged legal communications were intercepted and reviewed by members 

of the prosecution team and the filter team. Id. at *12. Pedersen is inapposite. 

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c. Defendants’ Arguments About Filter Team Violations Have 

Previously Been Denied.

On June 15, 2020, in their reply in support of their motion to dismiss on the privilege 

issue, Defendants raised the same argument that it included in the instant motion. (Compare

Mot. at 24-25 with Doc. 1023 at 10-11.) In that reply, Defendants discussed a production 

from the United States of “955 emails sent to/from Defendants’ counsel.” (Doc. 1023 at 

10-11.)10 As in the instant Motion, Defendants utilized similarly colorful language. (Doc. 

1023 at 11 (“The government has a serious problem with candor to the Court, with candor 

to Defendants, and with knowingly and intentionally invading Defendants’ privileges.”).) 

Defendants promised they would “raise the additional points with the Court soon.” (Id.) 

 

 

 

Despite receiving these documents nearly two years ago, Defendants have not filed 

a motion seeking redress regarding a specific communication they deemed privileged from 

this production. Instead, they trot out the same general arguments that the Court rejected 

when it denied Defendants’ motion to dismiss (Doc. 1168), in the hopes that its inclusion 

would add weight to an otherwise meritless motion. This Court should reject such a ploy. 

The United States acted consistently with the filter team protocol that two magistrate judges 

and two district court judges approved. The prosecution team only received documents that 

had been appropriately determined by the filter team to be non-privileged. 

10 Defendants previously referred to “955 emails” but now refer to “966 documents.” (Compare Doc. 1023 at 11 with Mot. at 24.) Both citations appear to reference the same December 2019 production. (Dec. 17, 2019 Ltr from R. Jones, attached as Exhibit 3.)

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Conclusion

Defendants’ Motion to Dismiss with Prejudice (Doc. 1355) should be denied.

Respectfully submitted this 17th day of November, 2021. 

GLENN B. McCORMICK

Acting United States Attorney District of Arizona

s/Peter S. Kozinets KEVIN M. RAPP

MARGARET PERLMETER

PETER S. KOZINETS

ANDREW C. STONE

Assistant U.S. Attorneys

DAN G. BOYLE

Special Assistant U.S. Attorney

 KENNETH POLITE

Assistant Attorney General 

U.S. Department of Justice 

Criminal Division, U.S. Department of Justice

REGINALD E. JONES 

Senior Trial Attorney

U.S. Department of Justice, Criminal Division

CERTIFICATE OF SERVICE

I hereby certify that on this same date, 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/ Marjorie Dieckman U.S. Attorney’s Office

Case 2:18-cr-00422-DJH Document 1393 Filed 11/17/21 Page 39 of 39