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DEFENDANTS’ RESPONSE TO GOVERNMENT’S MOTION IN LIMINE (DKT. 1599)

Timothy J. Eckstein, 018321

 teckstein@omlaw.com

Joseph Roth, 025725

 jroth@omlaw.com

Sarah P. Lawson, 036436

 slawson@omlaw.com

OSBORN MALEDON, P.A.

2929 North Central Avenue, 20th Floor

Phoenix, AZ 85012-2793

Telephone: (602) 640-9000

Facsimile: (602) 640-9050

Attorneys for Defendant James Larkin

Gary S. Lincenberg (admitted pro hac vice)

 glincenberg@birdmarella.com

Ariel A. Neuman (admitted pro hac vice)

 aneuman@birdmarella.com

Gopi K. Panchapakesan (admitted pro hac vice)

 gpanchapakesan@birdmarella.com

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW, P.C.

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: (310) 201-2100

Facsimile: (310) 201-2110

Attorneys for Defendant John Brunst

[Additional counsel listed on next page]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Michael Lacey, et al.,

Defendants.

CASE NO. 2:18-cr-00422-004-PHX-DJH

DEFENDANTS’ RESPONSE TO 

GOVERNMENT’S MOTION 

IN LIMINE TO PRECLUDE 

DEFENDANTS’ PURPORTED GOOD 

FAITH RELIANCE ON ADVICE OF 

COUNSEL (DKT. 1599)

Case 2:18-cr-00422-DJH Document 1608 Filed 06/15/23 Page 1 of 7
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DEFENDANTS’ RESPONSE TO GOVERNMENT’S MOTION IN LIMINE (DKT. 1599)

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

 pcambria@lglaw.com

Erin McCampbell Paris (admitted pro hac vice)

 eparis@lglaw.com

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

Attorneys for Defendant Michael Lacey

Eric W. Kessler

 eric.kesslerlaw@gmail.com

Kessler Law Group

6720 N. Scottsdale Rd., Suite 210

Scottsdale, AZ 85253

Telephone: (480) 644-0093

Facsimile: (480) 644-0095

Bruce S. Feder, 004832

 bf@federlawpa.com

FEDER LAW OFFICE, P.A.

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

Telephone: (602) 257-0135 

Attorneys for Defendant Scott Spear

David Eisenberg, 017218

 david@deisenbergplc.com

DAVID EISENBERG PLC

3550 N. Central Ave., Suite 1155

Phoenix, Arizona 85012

Telephone: (602) 237-5076

Facsimile: (602) 314-6273

Attorney for Defendant Andrew Padilla

Joy Malby Bertrand, 024181

 joy.bertrand@gmail.com

JOY BERTRAND ESQ LLC

PO Box 2734

Scottsdale, Arizona 85252

Telephone: (602) 374-5321

Facsimile: (480) 361-4694

Attorney for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 1608 Filed 06/15/23 Page 2 of 7
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DEFENDANTS’ RESPONSE TO GOVERNMENT’S MOTION IN LIMINE (DKT. 1599)

I. INTRODUCTION

The Government’s motion to preclude references and testimony regarding attorney 

advice contradicts the Government’s prior actions and positions in this case. First, the 

Government interviewed Carl Ferrer repeatedly about attorney advice regarding the 

legality of Backpage’s operations. 

Second, while failing to apprise the Court that it was already questioning Ferrer 

regarding attorney advice, the Government moved for an order permitting it to do so. Dkt. 

195. Judge Logan denied the Government’s motion. Dkts. 338, 345. Nevertheless, the 

Government continued questioning Ferrer about attorney communications. 

Third, the Government opposed a motion to dismiss based on these privilege 

invasions (Dkt. 942), arguing that the attorney communications were not privileged and, if 

they ever were, the privilege had been waived. Dkt. 998 at 1-2. Judge Brnovich agreed

and denied the motion.1 Dkt. 1168. Though erroneous, that ruling is the law of the case. 

Fourth, the Government submitted witness and exhibit lists that reflect purported 

“notice” evidence from banks, credit card companies, the National Association of 

Attorneys General (NAAG), the National Center for Missing & Exploited Children 

(NCMEC), and media outlets regarding the alleged illegality of Backpage’s operations.

See, e.g., Dkt. 1313 at Exhs. 119, 171, 178a, 486, 681, 1052-55, 1768-a.

Against this backdrop, during opening statements in the first trial, the Court 

overruled the Government’s objections to defense counsel referencing attorney advice. 

That advice—validated by the results of numerous judicial proceedings and countless 

accolades from law enforcement—led Defendants to believe they were acting in 

compliance with the law. These evidentiary rulings are the law of the case. And the 

attorney advice is relevant regardless of whether the Court allows an advice of counsel 

defense since it is evidence of good faith, which negates specific intent. See Bisno v. 

United States, 299 F.2d 711, 719 (9th Cir. 1961).

1 The Court did not decide whether Ferrer had the capacity to waive the attorney-client 

privilege on behalf of Backpage. Dkt. 1168 at 19 n.5.

Case 2:18-cr-00422-DJH Document 1608 Filed 06/15/23 Page 3 of 7
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DEFENDANTS’ RESPONSE TO GOVERNMENT’S MOTION IN LIMINE (DKT. 1599)

Finally, it is premature to consider whether Defendants are entitled to an advice of 

counsel jury instruction. Case law makes clear that the Court should decide that question 

after considering the evidence that comes in at trial.

2

II. ARGUMENT

A. The Law of the Case Requires Denial of the Motion.

Prior briefing set forth in detail the Government’s extensive inquiry into lawyer 

advice and communications involving the legality of Backpage’s business practices 

(including ad moderation), the protections afforded by the First Amendment, and defenses 

to a potential federal criminal prosecution.3 The Government interviewed Ferrer about the 

contents of written legal memoranda and emails prepared by several attorneys, including

former state and federal prosecutors and First Amendment specialists. See Dkt. 1168 at 4-

6. In its exhibit lists, pre-trial motions, and even its opening statement in the first trial, the 

Government previewed its attacks on the propriety of Backpage’s attorney 

communications.

4

To defend against these attacks, and rebut the suggestion that Defendants were put 

on notice of wrongdoing, Defendants referenced this attorney advice during their opening

statements in the first trial. For example, the Government’s allegations regarding letters to 

Backpage from NCMEC and NAAG are inextricably intertwined with the 

contemporaneous advice Defendants were receiving regarding these letters. Judge 

Brnovich approved this approach and overruled the Government’s objections:

MR. BIENERT: Lawyers, you’ll hear Mr. Ferrer -- and I’ll talk about him 

in a minute -- their witness is going to tell them how he told them, we had 

lawyers the whole time telling us that our moderation practices were legal, 

that we were protected by the First Amendment. 

2 The motion should also be denied for failure to abide by the Court’s order requiring 

“proposed language for the order being sought from the Court.” Dkt. 1524 at 3-4. 

3 See Dkts. 942 (lodging Ferrer MOIs under seal), 1000, 1023, 1234, 1238, 1258.

4 See, e.g., Dkt. 1341 at 23:14-15 (belittling Samuel Fifer of Dentons, one of Backpage’s 

highly-respected First Amendment lawyers and the recipient of the NAAG letters, as a

“public relations representative.”); id. at 24:11-15 (questioning whether Backpage’s 

attorneys were forthcoming with “the AGs and others that they were doing everything they 

could to prevent these ads from being posted on the website.”).

Case 2:18-cr-00422-DJH Document 1608 Filed 06/15/23 Page 4 of 7
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DEFENDANTS’ RESPONSE TO GOVERNMENT’S MOTION IN LIMINE (DKT. 1599)

MR. JONES: Objection.

THE COURT: The objection is overruled.

Dkt. 1342 at 54:2-21 (emphasis added).5

The Court’s evidentiary rulings during the first trial are likewise the law of the case. 

See Apple Inc. v. Samsung Elecs. Co., No. 11-CV-01846-LHK, 2016 WL 777924, at *3 

(N.D. Cal. Feb. 29, 2016) (holding that prior rulings on “evidentiary objections” are the 

law of the case).

B. The Government’s Request Is Premature.

In arguing that Defendants may not raise an advice of counsel defense, the 

Government cites Bisno v. United States, 299 F.2d 711, 719 (9th Cir. 1961) and United

States v. Holmes, No. 5:18-CR-00258-EJD-1, 2021 WL 2044470 (N.D. Cal. May 22, 

2021), both of which undercut the Government’s argument. The court in Holmes deferred 

ruling on the very same “premature” motion in limine that the Government brings here. 

Holmes at *51. In Bisno, the court received advice of counsel evidence, concluding at the 

end of the case that the evidence did not warrant an advice of counsel instruction (but still 

went to the defendant’s good faith): “While the foregoing may constitute some evidence of 

good faith, it falls short of the minimum proof required to justify an instruction relating to 

advice of counsel.” Bisno, 299 F.2d at 719. Defendants are therefore not required, as the 

Government suggests, to disclose pre-trial any intent to pursue a defense based on attorney 

advice (whether an advice of counsel or good faith defense). 

5 See also Dkt. 1343 at 35:23-36:16 (“And if you were a reasonable person of 

reasonable intelligence -- and I submit that Mike Lacey is -- and you were told we have a 

number of lawyers who are skilled in the First Amendment area and in the criminal 

area, some former prosecutors and so on, and they have advised us that we --

MR. JONES: Objection, Your Honor. THE COURT: What’s your objection? . . . . 

MR. JONES: Sorry. He’s misstating the law, Your Honor. MR. CAMBRIA: I didn’t 

state the law, Your Honor. THE COURT: The objection is overruled.” MR. CAMBRIA: 

Thank you. -- and that you have hired lawyers who specialize in this area and they have 

advised you how to do these things lawfully and not be somebody who is advancing or 

promoting.”) (emphasis added).

Case 2:18-cr-00422-DJH Document 1608 Filed 06/15/23 Page 5 of 7
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DEFENDANTS’ RESPONSE TO GOVERNMENT’S MOTION IN LIMINE (DKT. 1599)

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

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

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

content and have authorized its filing.

DATED: June 15, 2023 Respectfully submitted,

Timothy J. Eckstein

Joseph Roth

Sarah P. Lawson

Osborn Maledon, P.A.

By: /s/ Timothy J. Eckstein

Timothy J. Eckstein

Attorneys for Defendant James Larkin

DATED: June 15, 2023 Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

Bird, Marella, Boxer, Wolpert, Nessim,

Drooks, Lincenberg & Rhow, P.C.

By: /s/ Gary S. Lincenberg

Gary S. Lincenberg

Attorneys for Defendant John Brunst

DATED: June 15, 2023 Paul J. Cambria

Erin McCampbell Paris

Lipsitz Green Scime Cambria LLP

By: /s/ Paul J. Cambria

Paul J. Cambria

Attorneys for Defendant Michael Lacey

DATED: June 15, 2023 Kessler Law Group

By: /s/ Eric W. Kessler

Eric W. Kessler

Attorney for Defendant Scott Spear

Case 2:18-cr-00422-DJH Document 1608 Filed 06/15/23 Page 6 of 7
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DEFENDANTS’ RESPONSE TO GOVERNMENT’S MOTION IN LIMINE (DKT. 1599)

DATED: June 15, 2023 Feder Law Office, P.A.

By: /s/ Bruce S. Feder

Bruce S. Feder

Attorney for Defendant Scott Spear

DATED: June 15, 2023 The Law Office of David Eisenberg, PLC

By: /s/ David Eisenberg

David Eisenberg

Attorney for Defendant Andrew Padilla

DATED: June 15, 2023 Joy Bertrand Esq. LLC

By: /s/ Joy Malby Bertrand

Joy Malby Bertrand 

Attorney for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 1608 Filed 06/15/23 Page 7 of 7