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 MICHAEL BAILEY

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

JOHN J. KUCERA (Cal. Bar No. 274184, john.kucera@usdoj.gov)

Special Assistant U.S. Attorney 312 N. Spring Street, Suite 1200

Los Angeles, CA 90012

Telephone (213) 894-3391

BRIAN BENCZKOWSKI

Assistant Attorney General

Criminal Division, U.S. Department of Justice

REGINALD E. JONES (Miss. Bar No. 102806, reginald.jones4@usdoj.gov)

Senior Trial Attorney, U.S. Department of Justice

Child Exploitation and Obscenity Section 

950 Pennsylvania Ave N.W., Room 2116

Washington, D.C. 20530

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.

CR-18-422-PHX-SPL (BSB) 

UNITED STATES’ RESPONSE TO 

DEFENDANTS’ JOINT MOTION 

FOR AN ADJOURNAMENT OF THE 

5/27/19 DISCOVERY DEADLINE

(Doc. 610)

INTRODUCTION AND SUMMARY OF ARGUMENT

The United States of America, by and through undersigned counsel, submits this 

response to Defendants’ Joint Motion for an Adjournment of the 5/27/19 Discovery 

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Deadline. (Doc. 610). For several reasons, Defendants’ continuing requests to delay the 

Scheduling Order deadlines previously negotiated and agreed to by the parties is unavailing 

and should be rejected.

First, Defendants’ claim that they do not have access to servers that contain millions 

of ads for prostitution (many of them redundant) posted in Backpage’s domestic and 

international markets has nothing to do with their ability to produce statements from 

testifying witnesses. Notably, some of the defense witnesses have already been identified

as expert witnesses. It is unclear why any of the statements produced for these identified 

witnesses cannot be disclosed. 

Second, the United States has provided all Jencks Act statements in the 

government’s possession with the exception of a single witness, Carl Ferrer. It is unclear, 

however, why this prevents Defendants from providing Rule 26.2 statements that are 

currently in their possession. 

Third, the government has provided Defendants with a preliminary exhibit list 

identifying nearly 1200 exhibits. In many cases, the exhibits have a corresponding Bates 

number. The government is diligently working to supplement the list with a complete set 

of Bates-number references. As stated in the government’s status memorandum (Doc. 

524), the government intends to periodically provide updated exhibit and witness lists to 

Defendants. Importantly, many of the exhibits (mainly numerous internal Backpage 

emails) were disclosed to the government by Defendants (via grand jury subpoena), and 

many others are public source documents (e.g., article, videos, etc.). The United States has 

also provided disclosure obtained in parallel civil cases against Defendants where the 

United States was not a party. Indeed, some of the same attorneys representing Defendants 

in this case were attorneys (primarily from the firm of Davis Wright Tremaine) for 

Defendants in related criminal and civil cases. In sum, the discovery should be familiar to 

Defendants. But again, this does not prevent Defendants from producing 26.2 statements 

in their possession. 

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Lastly, Defendants’ claim that they lack sufficient funds to review the evidence is 

belied by the fact that they are receiving funds on a monthly basis. (See Doc. 476-1 at 31-

34 (Decl. of Lyndon Versoza).) Moreover, as noted in other pleadings, Defendants have 

failed to pursue a Monsanto hearing (see, e.g., Doc. 446 at 1-5), and they have advised the 

Court that they are exploring ways to reduce their costs of reviewing evidence. (See, e.g.,

Doc. 348, 10/5/18 Hr’g Tr., Vol. II at 115-18.) In any event, this has nothing to do with 

their ability to simply produce statements that are currently in their possession. 

RELEVANT FACTS 

On April 26, 2018, the parties agreed on a scheduling order. (Doc. 121.) The 

government requested a trial date of October 7, 2019. (Id.) Defendants believed a more 

reasonable date was January 15, 2020. (Id. n.4.) On May 5, 2018, the Court accepted the 

parties’ scheduling order but agreed with Defendants’ requested trial date and set a trial

date for January 15, 2020. (Doc. 131 (Scheduling Order).) The other deadlines were not 

extended to correspond with the January 15, 2020 trial date. The government has complied 

with every date set forth in the Scheduling Order. The compliance by the government is 

set forth in the United States status memorandum. (Doc. 524.) Importantly, the United 

States has provided Defendants with 85 witness interviews and Jencks Act statements. (Id.)

In addition, on April 1, 2019, the government provided Defendants with preliminary

witness and exhibit lists. (Doc. 511.) Despite providing numerous witness interviews, a 

preliminary witness and exhibit list, segregating “hot” documents, and, in some cases,

meeting with individual defense attorneys to review evidence, Defendants claim that they 

have been provided only limited discovery and allege the government has “failed to comply 

with their obligations.” (See Doc. 524 at 4-6; see also Exhs. A and B.)

On March 14, 2019, Defendants jointly filed an expert disclosure noticing ten expert 

witness. (Doc. 500.) They identified six experts by name but failed to identify the names 

of four other experts. Defendants have not provided any 26.2 statements for any of these 

witnesses. 

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Finally, on May 21, 2019, Defendants asked for the government’s position on their 

motion requesting an adjournment of their May 27, 2019 deadline to produce Rule 26.2

material. In response, the government sent them an email objecting to the request, and 

asked that Defendants include the reason for the government’s objection in any filing. (See

Exh. C.) On May 21, 2019, Defendants filed the instant motion without including the

specific objections of the United States. (Doc. 610.) 

LAW AND ARGUMENT

Here, the parties agreed that this case should be designated complex. (Doc. 107.) 

As a result, the parties negotiated and agreed on certain deadlines. One of those deadlines

was the early disclosure of witness’s statements. As the Court is aware, the Jencks Act 

requires the government produce statements that have been adopted by a witness after the 

witness testifies. 18 U.S.C. §3500(e)(1); see also United States v. Jackson, 978 F.2d 903, 

913 (5th Cir.1992) (“To adopt a statement under the Jencks Act. . . a witness must read the 

entire statement and formally approve the statement.”). Despite having no obligation to 

produce witness statements until after the witness testifies, the United States agreed to 

disclose those statements well in advance of trial and has, to date, disclosed 85 witness

statements. Moreover, in the event that Jencks Act statements are produced after the 

deadline, the Scheduling Order requires the government to promptly disclose those 

statements. (Doc. 131 n.3.)

The government has complied with its obligations under the Scheduling Order, 

therefore, the Court should reject Defendants’ request to delay disclosure of any Rule 26.2 

statements in their possession. Except with respect to Defendants’ own statements, the 

requirement for production of witness statements under Rule 26.2 applies equally to the 

government and the defense. See United States v. Nobles, 422 U.S. 225 (1975) (applying 

witness statement production obligations to the defense in a pre-Rule 26.2 case); see also 

United States v. Wallace, 326 F.3d 881, 885 (7th Cir. 2003) (noting that “Nobles was a 

basis on which Rule 26.2 was added to the Federal Rules of Criminal Procedure”).

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Defendants argue other reasons why they should not be obligated to comply with 

their deadline to disclose witness statements. These claims are irrelevant. For example, 

they argue that the government’s exhibit list does not have Bates numbers for some of the 

exhibits. As a preliminary matter, the exhibits should be well known to Defendants. Many 

are emails that they authored by received, and many others are documents that Defendants

produced (e.g., meeting agendas, power points, letters, etc.).

In addition, a substantial volume of the discovery was disclosed to the defense in 

other criminal and civil proceedings. And, in many cases the discovery was provided to 

the government by Defendants in response to grand jury subpoenas. As noted in other 

pleadings, the government has provided Defendants “hot docs” and, in some cases, even 

met with counsel to review relevant discovery—steps far exceeding the government’s 

discovery obligations. (See, e.g., Doc. 524 at 4-6.) In any event, the grievances asserted 

by Defendants in their instant motion have nothing to do with providing witness statements 

that are in Defendants’ possession now. 

Next, they argue they don’t have the funds the review the discovery. Again, none 

of Defendant have made a Monsanto claim despite being invited to do so. (See Doc. 446

n.1.) And, Defendants advised the Court they were pursing avenues to reduce the cost of 

discovery review. (See Doc. 348, 10/5/18 Hr’g Tr., Vol. II at 115-18.) Importantly, this is 

immaterial to their obligation to disclose witness statements. 

In sum, the Court should deny Defendants’ request to suspend their obligation to 

produce Rule 26.2 statements on the agreed-upon date. 

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Respectfully submitted this 24th day of May, 2019.

MICHAEL BAILEY

United States Attorney

District of Arizona

s/ Kevin Rapp

KEVIN M. RAPP

MARGARET PERLMETER

PETER S. KOZINETS

ANDREW C. STONE

Assistant U.S. Attorneys

JOHN J. KUCERA

Special Assistant U.S. Attorney

BRIAN BENCZKOWSKI

Assistant Attorney General

Criminal Division, U.S. Department of Justice

REGINALD E. JONES

Senior Trial Attorney

U.S. Department of Justice, Criminal Division

Child Exploitation and Obscenity Section

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Certificate of Service

I hereby certify that on this 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 following CM/ECF registrants:

Paul J. Cambria Jr. Esq. and Erin e. McCambpell, Esq., Lipsitz Green Scime Cambria, 

LLC, 42 Delaware Ave, Suite 120, Buffalo, NY 14202, pcambria@lglaw.com and

emccampbell@lglaw.com, Thomas H. Bienert, Jr., Esq., Anthony R. Bisconti, Esq., Kenneth M. Miller, Esq., and Whitney Bernstein, Esq., Bienert, Miller & Katzman, PLC, 

903 Calle Amanecer, Suite 350, San Clemente, CA 92673, tbienert@bmkattorneys.com, tbisconti@bmkattorneys.com, kmiller@bmkattorneys.com, 

wbernstein@bmkattorneys.com; Jim Grant Esq., Davis Wright Tremaine, LLP, 1201 

Third Avenue, Suite 2200, Seattle, WA 98101, jimgrant@dwt.com; Michael D. Kimerer, 

Esq. and Rhonda Elaine Neff, Esq., 1313 E. Osborn Road, Suite 100, Phoenix, AZ 85014, 

MDK@kimerer.com and rneff@kimerer.com; Robert Corn-Revere Esq., Davis Wright 

Tremaine, LLP, 1919 Pennsylvania Avenue N.W., Suite 800, Washington, D.C., 20006, bbcornrevere@dwt.com; Bruce Feder, Esq., 2930 East Camelback Road, Suite 160, Phoenix, AZ 85016, bf@federlawpa.com; Gary Linenberg, Esq., Ariel Neuman, Esq., Gopi K. Panchapakesan, Esq., Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg 

& Rhow, P.C., 1875 Century Park East, 23rd Floor, Los Angeles, CA 90067, 

glincenberg@birdmarella.com, aan@birdmarella.com, gkp@birdmarella.com; 

David Eisenberg, David Eisenberg PLC, 3550 N Central Ave., Ste. 1155, Phoenix, AZ,

david@deisenbergplc.com; Joy M. Bertrand, Joy Bertrand Esq LLC, P.O. Box 2734,

Scottsdale, AZ 85252, joyous@mailbag.com.

s/Angela Schuetta

U.S. Attorney’s Office

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