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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

v. 

Michael Lacey, et al.,

Defendants.

No. CR-18-00422-001-PHX-DJH

ORDER 

Defendants Michael Lacey, James Larkin, Scott Spear, John Brunst, Andrew

Padilla, and Joye Vaught (“Defendants”) have filed a Motion to Dismiss the Superseding

Indictment (Doc. 1557). The United States (“the Government”) has filed a Response

(Doc. 1577) and the Defendants have filed their Reply (Doc. 1585). Upon consideration

of the same, and for the reasons stated herein, the Court denies Defendants’ Motion. 1

I. Background

On July 25, 2018, a federal grand jury returned a 100-count Superseding Indictment

(“SI”) against Defendants, alleging they engaged in various criminal acts while operating

the website Backpage.com (“Backpage”). (Doc. 230). Count 1 of the SI charges

Defendants with conspiracy to facilitate prostitution under the Travel Act, 18 U.S.C.

§ 1952(a)(3)(A) and Counts 2–51 charges them with fifty violations of facilitating

prostitution under the Travel Act, 18 U.S.C. § 1952(a)(3)(A). Each of the fifty violations

are based on fifty separate ads that were posted on Backpage (SI ¶¶ 195–201). Tracking

1 The Court finds this matter can be resolved adequately on the parties’ briefing and denies 

Defendants’ request for oral argument. See LRCrim 12.1(a); LRCiv. 7.2(f); United States 

v. Howell, 231 F.3d 615 (9th Cir. 2000).

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the language of the Travel Act, the SI alleges in part that Defendants:

used the mail and any facility in interstate and foreign commerce with

intent to otherwise promote, manage, establish, carry on, and facilitate the

promotion, management, establishment, and carrying on of an unlawful

activity, to wit: prostitution offenses in violation of the laws of the State in

which they are committed and of the United States, including but not

limited to Title 13, Arizona Revised Statutes, Section 13-32142, and

thereafter performed and attempted to perform an act that did promote,

manage, establish, carry on, and facilitate the promotion management,

establishment and carrying on of the unlawful activity. . .

(SI ¶ 201). The SI then identifies the fifty specific ads by date and description. (Id.) Fifteen

of the ads depict specific victims that are alleged to have been women who were sold for

sex on Backpage (SI ¶ 201, Counts 2, 4–5, 12–17, 19–24); ten of the ads were posted by

P.R, a prostitute who had extensive communications with one of the creators of Backpage,

C.F (SI ¶ 201, Counts 3, 6–11, 18, 25–26); and twenty-five ads contain the phrase “GFE,”

which the SI alleges is code for prostitution or underage prostitution. (SI ¶ 201, Counts

27–51). The SI further alleges that Defendants “were aware that the overwhelming

majority of the website’s ‘adult’ and ‘escort’ ads were actually ads for prostitution” and

makes various allegations that Defendants knew their marketing efforts to prostitution

advertisers were successful. (See e.g., SI ¶¶ 34, 70, 71, 73, 76, 81, 107, 132, 135). It

describes three specific strategies Backpage and Defendants used to attract more

prostitution ads: content aggregation (SI ¶¶ 35–44), reciprocal link and affiliate programs

(SI ¶¶ 45–67), and moderating ads to “sanitiz[e]” them. (SI ¶¶ 68–70, 72–73, 75, 77–96,

98–104, 108, 110, 112, 116–26, 128–30, 132–34, 136, 139, 143, 145, and 148). The SI

also includes “victim summaries” of women who were sold for sex on Backpage and

describes how Backpage handled ads submitted by these victims and/or their pimps. (SI

¶¶ 160–176). 

The remaining offenses in the SI allege counts for money laundering and forfeiture.

(SI ¶¶ 202–11).3 The Court has gone into even more detail about the allegations of the SI

2 A.R.S. § 13-3214 makes it “unlawful for a person to knowingly engage in prostitution.”

3 Defendant Hyer has pled guilty to Count 1, conspiracy to violate the Travel Act, and 

awaits sentencing. 

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in several previous Orders and will adopt the remaining description provided in its October

24, 2019, Order denying Defendants’ Motion to Dismiss. (See Doc. 793 at 1–7; see also

Doc. 561 at 3–11). 

Since their indictment, Defendants have sought dismissal of the SI on sufficiency 

grounds no less than three times. (See Docs. 561, 746, 783). Following a mistrial in 

September 2021 (Doc. 1308), Defendants moved to dismiss the SI on double jeopardy 

grounds (Doc. 1355). This Court denied the motion in December 2021 (Doc. 1444), and 

Defendants appealed (Doc. 1445). The Ninth Circuit affirmed the Court’s denial and 

remanded the case for trial, which is currently set for August 8, 2023. (Docs. 1469; 1546). 

Given this case’s protracted procedural history and many past rulings on the sufficiency of 

the SI, in the Court’s February 17, 2023, Order Setting a Final Pretrial Conference

(“FPTO”), the parties were informed that the law of the case doctrine would preclude the 

Court from accepting new motions that were not based on new law or facts. 

(Doc. 1524 at 4). 

II. Legal Standards

An indictment must contain a “plain, concise, and definite written statement of the 

essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). “An indictment 

is sufficient if it, first, contains the essential elements of the offense charged and fairly 

informs a defendant of the charge against which he must defend, and, second, enables him 

to plead acquittal or conviction in bar of future prosecutions for the same offense.” Hamling 

v. United States, 418 U.S. 87, 117 (1974). Accord United States v. Cecil, 608 F.2d 1294, 

1297 (9th Cir. 1979). A defendant may move to dismiss an indictment for failure to state 

an offense under Federal Rule of Criminal Procedure 12. Fed. R. Crim. P. 12(b)(3)(B)(v). 

When a count charged by an indictment fails to recite an essential element of the offense, 

that count is facially defective and must be dismissed. United States v. Pernillo-Fuentes, 

252 F.3d 1030, 1032 (9th Cir. 2001). In assessing such a motion, a court must accept the 

allegations in the indictment as true and “analyz[e] whether a cognizable offense has been 

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charged.” United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002). The court “is bound 

by the four corners of the indictment” and may not consider evidence that does not appear 

on its face. Id.

The law of the case doctrine “generally provides that when a court decides upon a 

rule of law, that decision should continue to govern the same issues in subsequent stages 

in the same case.” Askins v. U.S. Dep’t of Homeland Sec., 899 F.3d 1035, 1042 (9th Cir. 

2018) (cleaned up). Under the doctrine, “‘a court is generally precluded from reconsidering 

an issue that has already been decided by the same court, or a higher court in the identical 

case,’ absent a material change in circumstances.” Thomas v. Bible, 983 F.2d 152, 154 

(9th Cir. 1993). “For the doctrine to apply, the issue in question must have been decided 

either expressly or by necessary implication in the previous disposition.” Id. (internal 

quotations and alterations omitted). If the issue in question has already been decided, then 

reconsideration of the order is generally only permitted if “the prior decision is ‘clearly 

erroneous’ and enforcing it would create ‘manifest injustice’; intervening, controlling 

authority encourages reconsideration; or substantially different evidence is produced at a 

later merits trial.” East Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1262 (9th Cir. 

2020). “The doctrine encourages the conservation of limited judicial resources and 

promotes consistency by allowing court decisions to govern the same issues in subsequent 

stages of the same case.” Id. at 1261. 

III. Defendants’ Motion to Dismiss 

On March 30, 2023, Defendants filed a Motion to Dismiss that again challenged the 

sufficiency of the SI. (Doc. 1557). In their Motion, Defendants primarily argue that the 

Travel Act charges in the SI are aiding and abetting offenses and as a result, the SI is fatally 

defective because it does not allege “with respect to each charged ad, both that someone 

committed a prostitution offense and that Defendants intended to facilitate the commission 

of that specific prostitution offense.” (Id. at 9–10). Defendants say the Court should adopt 

this interpretation of the Travel Act because (1) the Court should hold the Government to 

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its position in Woodhull4that the terms “promote” and “facilitate” in the Allow States and 

Victims to Fight Online Sex Trafficking Act (“FOSTA”) are equivalent to “aid and abet”;

(2) the text of the Travel Act “maps neatly on the universal aiding-and-abetting elements 

reflected in the Ninth Circuit Model Criminal Jury Instructions;” (3) Ninth Circuit law 

requires that the Government prove, as elements of a Travel Act offense, all the elements 

of the underlying law that constitutes the unlawful activity Defendants allegedly violated; 

and (4) if the Travel Act did not require the Government to establish that Defendants were 

guilty of aiding and abetting an underlying criminal offense, the Act would be 

unconstitutional as applied. (Doc. 1557 at 13–14). Defendants also argue dismissal of the 

money laundering counts, and seek dismissal of the entire SI on double jeopardy grounds 

and on the assumption that the grand jury was not properly instructed on aiding and 

abetting. (Doc. 1557 at 18–21). 

The Government argues that Defendants are simply restyling old arguments they 

have already presented to this Court. It asserts that “Defendants have made these 

arguments before, and the Court has found them insufficient to require dismissal. 

Defendants cite no intervening change in the law, and no new facts about this case to 

warrant reconsideration.” (Doc. 1577 at 7). The Government also disagrees that to 

sufficiently allege Travel Act charges the Government must plead traditional elements of 

aiding and abetting offenses, but that even if such were required, the SI sufficiently alleges 

as much, either explicitly—or, as allowed under Ninth Circuit law—implicitly. (Id. at 14).

In its Reply, Defendants argue that “[n]o prior order has decided the narrow issues 

presented here. The arguments raised are new and are prompted by the government’s 

recent assertions in the Woodhull appeal. Deferring these issues until trial only invites 

error.” (Doc. 1585 at 4). 

IV. Analysis

The Travel Act makes it a federal offense for a person to “travel[] in interstate or 

foreign commerce or use[] the mail or any facility in interstate or foreign commerce, with 

4 Woodhull Freedom Found’n v. United States, No. 22-5105 (D.C. Cir. argued Jan. 11, 

2023). 

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intent to. . . promote, manage, establish, carry on, or facilitate the promotion, management, 

establishment, or carrying on, of any unlawful activity.” 18 U.S.C. § 1952(a)(3). Broken 

into its textual pieces, the Ninth Circuit requires that “[a]n indictment under the Travel Act 

[allege] each of the three elements of the crime: (1) interstate commerce or use of an 

interstate facility (2) with intent to promote an unlawful activity and (3) a subsequent overt 

act in furtherance of that unlawful activity.” United States v. Tavelman, 650 F.2d 1133, 

1138 (9th Cir. 1981). See also United States v. Gordon, 641 F.2d 1281, 1284 (9th Cir. 

1981) (stating “it is clear that the statutory language embodies all of the essential elements 

[of a Travel Act indictment] and that reference to state law is necessary only to identify the 

type of unlawful activity involved”) (cleaned up). 

The Ninth Circuit has clarified that “[t]he Travel Act does not require the 

commission of the predicate offense; rather, only an ‘attempt[ ] to promote’ the unlawful 

activity, 18 U.S.C. § 1952(a), with ‘a subsequent overt act in furtherance of that unlawful 

activity.’” United States v. Stafford, 831 F.2d 1479, 1482 (9th Cir. 1987) (citing Tavelman, 

650 F.2d at 1138). The intent required under the Travel Act is the “specific intent to 

facilitate an activity which the accused knew to be unlawful under state law.” United States 

v. Polizzi, 500 F.2d 856, 876–77 (9th Cir. 1974). See also United States v. Gibson Specialty 

Co., 507 F.2d 446, 449 (9th Cir. 1974) (to obtain a conviction under the Travel Act, the 

Government must show Defendants had “specific intent to promote, manage, establish, 

carry on or facilitate one of the prohibited activities”). The Travel Act does not contain 

the words “aid or abet.” 

The SI does not charge Defendants with the federal offense of aiding and abetting, 

but for purposes of comparison, the Court finds it helpful to look at what is required of that 

offense. The federal aiding and abetting statute, 18 U.S.C. § 2 derives from common-law 

standards for accomplice liability and states that a person who “aids, abets, counsels, 

commands, induces or procures” in the commission of a federal offense “is punishable as 

a principal.” 18 U.S.C. § 2; Rosemond v. U.S., 572 U.S. 65, 70 (2014). “As at common 

law, a person is liable under § 2 for aiding and abetting a crime if (and only if) he (1) takes 

an affirmative act in furtherance of that offense, (2) with the intent of facilitating the 

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offense’s commission.” Rosemond, 572 U.S. at 71. “In proscribing aiding and abetting, 

Congress used language that ‘comprehends all assistance rendered by words, acts, 

encouragement, support, or presence’ . . . —even if that aid relates to only one (or some) 

of a crime’s phases or elements.” Id. at 73. At trial, the Government must prove that the 

offense has been committed but need not establish that the principal offender be convicted 

or even identified. Feldstein v. United States, 429 F.2d 1092, 1095 (9th Cir. 1979). The

intent required to aid and abet “must go to the specific and entire crime charged.” Id. at 

76. “An intent to advance some different or lesser offense is not, or at least not usually, 

sufficient.” Id. The Court has clarified, however, that “a person who actively participates 

in a criminal scheme knowing its extent and character intends that scheme’s commission.” 

Id. at 77 (citing with approval United States v. Easter, 66 F.3d 1018, 1024 (9th Cir. 1995) 

(correctly finding that unarmed driver of a getaway car had the requisite intent to aid and 

abet an armed bank robbery if he “knew” his cohorts would use weapons in carrying out 

the crime)). See also United States v. Goldtooth, 754 F.3d 763, 769 (9th Cir. 2014) 

(reversing defendants’ convictions for aiding and abetting robbery on Indian reservation 

because there was no evidence that defendants had foreknowledge that robbery was to 

occur).

The Court finds that its prior rulings have addressed and rejected the reasons 

Defendants offer as support for why the Court should find the SI deficient for failure to 

allege the elements of aiding and abetting. Defendants have not shown these rulings are

“clearly erroneous,” that enforcing them would create manifest injustice, or that

intervening, controlling authority encourages reconsideration. East Bay Sanctuary 

Covenant, 950 F.3d at 1262. The Court also finds, however, that the SI is also not deficient 

for insufficiently alleging elements of aiding and abetting. Finally, the Court declines to 

reconsider its prior rulings and dismiss the SI due to double jeopardy concerns, the 

independent-standing money laundering counts, or on assumptions that the grand jury was 

erroneously instructed. 

A. There is No Cause to Reconsider the Court’s Prior Rulings Regarding 

the Alleged Deficiencies of the Travel Act Counts 

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This Court has previously held, after extensive reviews of the allegations in the SI, 

that the SI sufficiently alleges the necessary elements of Travel Act offenses and 

constitutionally puts Defendants on notice of how to defend against the Travel Act crimes 

alleged against them. The Court rejects Defendants’ premise that the Travel Act offenses 

require the Government to allege the elements of aiding and abetting to satisfy Federal 

Rule of Criminal Procedure 7. Finding no cause in Defendants’ Motion to change its prior 

findings, these rulings will continue to govern. 

1. The SI sufficiently alleges specific “unlawful activity”

The Court has already found “that the SI alleges ‘unlawful activity’ for each Travel 

Act Count with adequate specificity to inform Defendants of their charges.” (Doc. 946 at 

9) (specifically finding that “the SI alleges fifty instances where Defendants posted ads on 

Backpage.com to facilitate specific individual prostitutes or pimps involved in the business 

of prostitution. (SI ¶¶ 200-201.)”). In their Motion, Defendants now argue that the Travel 

Act charges are deficient in part because they do not allege that someone committed the 

underlying offense (or in the context of the Travel Act language, the “unlawful activity”). 

(Doc. 1557 at 10). Defendants say that “‘settled legal concepts’ of ‘aiding and abetting’ 

and the ‘traditional principles of accomplice liability’ definitively require, as elements of 

the charge, proof of (1) commission of an offense by someone . . .” (Id. at 11 citing 

Rosemond, 572 U.S. at 76). 

The Court disagrees, again. (See Doc. 840 at 10–11 (rejecting argument that SI must 

allege that Defendants or anyone commit the predicate offense). The Ninth Circuit does 

not require that an indictment allege someone committed the predicate offense to put 

Defendants on notice that they have been charged with facilitating or promoting state law 

prostitution offense under Section 1952(a)(3). See Stafford, 831 F.2d at 1482 (“[t]he Travel 

Act does not require the commission of the predicate offense; rather, only an ‘attempt[ ] to 

promote’ the unlawful activity, 18 U.S.C. § 1952(a), with ‘a subsequent overt act in 

furtherance of that unlawful activity.’”) (citing Tavelman, 650 F.2d at 1138). Accord

McIntosh v. United States, 385 F.2d 274, 277 (8th Cir. 1967) (“accomplishment of the State 

substantive offense is not a prerequisite to Travel Act conviction.”) (citations omitted); 

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United States v. Palfrey, 499 F.Supp.2d 34 (D.C. Cir. 2007) (rejecting insufficiency of 

indictment for failure to alleged the elements of the predicate state offense: “The 

Indictment must allege the essential elements of the offense with which Defendant is 

charged, namely, violations of the Travel Act . . . The elements of the predicate state 

offenses are not essential elements of the Travel Act violations.”) (internal citation 

omitted); United States v. Welch, 327 F.3d 1081, 1092 (10th Cir. 2003) (“An actual 

violation of [the Utah Commercial Bribery Statute] is not an element of the alleged Travel 

Act violations in this case and need not have occurred to support the Government’s § 1952 

prosecution”); United States v. Montague, 29 F.3d 317, 322 (7th Cir. 1994) (“Section 1952 

does not require that the state crime ever be completed.”). As Stafford and Tavelman make 

clear, the Travel Act requires only that the indictment allege the essential element of “a 

subsequent overt act in furtherance of that unlawful activity,” not that someone committed 

the underlying offense. Tavelman, 650 F.2d at 1138. And as this Court has informed the 

parties before, the SI here clears that hurdle. (Doc. 840 at 10–11). 

Moreover, the Ninth Circuit cases cited by Defendants do not require that a Travel 

Act indictment allege the underlying offense has been committed. (See Doc. 1557 at 13 

citing Myers v. Sessions, 904 F.3d 1101 (9th Cir. 2018), United States v. Hiatt, 527 F.2d 

1048 (9th Cir. 1975), and United States v. Bertman, 686 F.2d 772 (9th Cir. 1982)). Myers 

stated that “a specific ‘unlawful activity’ is an element of a Travel Act offense” in finding 

a defendant was removable for a controlled substance offense. 904 F.3d at 1107–08. The 

focus of the inquiry in Myers was whether, under the Taylor-Descamps framework for 

determining whether a specific conviction is a predicate offense mandating removal under 

the Immigration and Nationality Act (“INA”), the Travel Act was “divisible,” which in 

turn depended on “whether a statute’s ‘listed items are elements or means.’” Id. at 1107.5 

The court phrased the specific issue as: “whether it is necessary to identify a specific 

unlawful act to obtain a conviction under the Travel Act, or whether it would be sufficient 

to conclude that the defendant committed one or more of the crimes listed in § 1952(b) 

5 Taylor v. United States, 495 U.S. 575 (1990) and Descamps v. United States, 570 U.S. 

254 (2013).

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without specifying or reaching agreement on which crime.” Id. It concluded that “a 

specific ‘unlawful activity’ [was] an element of a Travel Act offense” under that 

framework. Id. at 1108. Myers, quite simply, did not discuss the essential elements 

required for a Travel Act indictment, or purport to overrule or modify the elements required 

Stafford or Tavelman, neither of which the Myers decision mentioned. Instead, in using 

the language of the divisibility test under Taylor-Descamps, the court characterized the 

specific unlawful activity that defendant was charged with as an “element” and not a 

“means” for purposes of finding him removable. Id.

United States v. Hiatt, which predates Tavelman, also does not redefine the required 

essential elements for a Travel Act indictment. 527 F.2d at 1050. The defendant there 

argued that his conviction was a constitutional impossibility because the Alaska 

prostitution statute on which his Travel Act conviction was based had been found to be 

unconstitutional by some lower courts. Id. In assessing the defense, the court stated that 

“[i]t is correct that the existence of a state law violation is an element of the violation of 

the Travel Act and that the court must make a determination of whether the underlying 

state law has been or could have been violated.” Id. at 1051 (emphasis added). The court

therefore determined that if the alleged “unlawful activity” underlying a Travel Act 

violation was not unlawful, because, for example, the statute criminalizing the conduct was 

unconstitutional, a defendant could be not convicted for promoting or facilitating in the 

promotion of such activity. Id. Accord Bertman, 686 F.2d at 774 (finding that when the 

unlawful activity is the violation of state law, “[t]he government [] must prove as part of 

the Travel Act charge that the defendant has or could violated the underlying state law, and 

the defendant may assert any relevant substantive state law defense”). Neither Hiatt or 

Bertman stand for the proposition that an indictment’s failure to allege that the underlying 

offense has been committed by someone renders an indictment defective.

6 Both cases 

instead stand for the proposition that defendants indicted for unlawful activity under state 

law are entitled to present defenses to those state law offenses at trial. 

6 Notably, here, the SI alleges the existence of a specific state law violation. (See SI ¶ 201).

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Indeed, even if the Court were to assume that the evidentiary burdens of an aiding 

and abetting offense govern the SI’s Travel Act charges, whether the Government has 

offered sufficient proof of the commission of an offense by another is an issue that goes to 

the Government’s burden at trial, not whether the SI sufficiently alleges a Travel Act 

charge under Section 1952(a)(3). The Court has already told Defendants that determining 

whether specific conduct alleged in the SI in fact qualifies as “unlawful activity” on a 

motion to dismiss is improper:

Defendants’ concern that each ad is not in fact connected to a business 

enterprise involving prostitution is premature at this stage.[] When 

considering the totality of the allegations, the Court finds that publishing an 

online ad in support of individuals seeking to repeatedly market themselves 

or others for sex could constitute a violation under the Act for facilitating a 

“business enterprise involving prostitution.” But whether these allegations 

in fact constitute a violation is not the question before the Court. Rather, 

the question right now is whether the Travel Act elements are sufficiently 

alleged to fairly inform Defendants of their charges, not whether the 

Government has proven its case. Buckley, 689 F.2d at 897. The other 

question of whether facts support a finding of a “business enterprise 

involving prostitution” is reserved for the fact-finder, and jumping to pretrial evidentiary conclusions concerning whether specific conduct in fact 

qualifies as “unlawful activity” is improper. Jensen, 93 F.3d at 669. Here, the 

Court merely concludes that the SI adequately alleges the necessary Travel 

Act elements and cannot be dismissed.

(Doc. 946 at 12–13) (emphasis added). Defendants encourage the Court not to defer on 

this question until trial. But it is improper for Defendants to “challenge an indictment, 

sufficient on its face, on the ground that the allegations are not supported by adequate 

evidence.” United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996) (quoting United States 

v. Mann, 517 F.2d 259, 267 (5th Cir. 1975)). The proper forum for challenging whether 

there is adequate evidence is at trial. See id. (“By basing its decision on evidence that 

should only have been presented at trial, the district court in effect granted summary 

judgment for the defendants. This it may not do.”); see also United States v. Critzer, 951 

F.2d 306, 307 (11th Cir. 1992) (“Nor do the [criminal] rules provide for a pre-trial 

determination of sufficiency of the evidence.”). And to the extent Defendants are asking 

the Court to rule on the properness of a proposed jury instruction, it also finds the request 

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premature. The Court has ordered the parties to submit their proposed jury instructions 

and it will consider those arguments in due course. For purposes of this Motion, the Court 

reaffirms the sufficiency of the Travel Act charges in the SI. 

2. The SI alleges sufficient mens rea for the Travel Act charges

In arguing that the Travel Act charges should be pled as aiding and abetting charges, 

Defendants also seek to impose the requirement that the Government “prove, with respect 

to each charged ad . . . that Defendants intended to facilitate the commission of that specific 

[prostitution] offense.” (Doc. 1557 at 10). The Court has already confirmed the appropriate 

mens rea standard under the Travel Act: 

[t]he Government’s proposed mens rea standard, specific intent to promote 

or facilitate prostitution, is consistent with Gibson, Tavelman, and Polizzi—

the Ninth Circuit cases discussing intent requirements of the Travel Act. The 

SI alleges the Defendants intentionally identified prostitutes, created free 

Backpage ads for them, and used those ads to try to secure future business. 

(SI ¶¶ 9, 36). They also helped known prostitution advertisers (Dollar Bill 

and P.R.) avoid their decency filters and attempted to “conceal the true nature 

of the ads being posted on” Backpage. (SI ¶¶ 11, 59–67, 132). Unlike the 

defendants in Gibson, where there was “no evidence . . . from which one 

could infer that the defendants associated with, participated in or sought to 

make succeed” the criminal venture, the SI meets Gibson’s test of requiring 

Defendants to in “some significant manner associate[]” themselves with the 

“criminal venture for the purpose of its advancement.” 

(Doc. 793 at 18). Relatedly, in their Reply, Defendants argue that Defendants’ knowledge 

and intent of the prostitution offenses is “untethered” to the ads that form the basis of the 

charges, and that this “possibility” or “wish” of unlawful activity is simply not a crime. 

(Doc. 1585 at 4). The Court has also previously rejected this assertion and identified the 

many specific facts tethering Defendants’ actions to their knowledge that posting the fifty

ads would facilitate the business of prostitution. In its October 24, 2019, Order, the Court 

explained:

Larkin regularly met with C.F. after the purported sale to discuss and direct 

the operation of Backpage. (SI ¶ 32). Larkin, Spear, Hyer, and C.F. attended 

meetings where the Dallas aggregation plan or the business relationship with 

TER was on the agenda. (SI ¶¶ 38–42, 47–48). Lacey sent Larkin a draft 

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editorial arguing Backpage brought “the oldest profession in the world . . . 

transparency.” (SI ¶ 137). Larkin reviewed the editorial, forwarded it to C.F., 

and instructed him to remove any references to editing posts. (SI ¶¶ 107–08). 

Padilla helped supervise Backpage’s moderators. (SI ¶ 12). Larkin, Spear, 

and C.F. met to discuss trade with TER. (SI ¶ 47). C.F. sent Larkin, Spear, 

and Brunst a “Backpage strategic plan” that included “expand relationship 

with TER.” (SI ¶ 49). Padilla emailed (with Vaught cc’d or as a recipient) 

Backpage’s India-based moderators to tell them to be “more lenient.” (SI. ¶¶ 

93, 99). Padilla and Vaught were sent an email informing them that their 

credit card processing company expressed concern about prostitution ads. 

Vaught directed a moderator to not remove “sex for money” links from ads. 

(SI ¶ 139). Vaught received an email from a moderator indicating that Padilla 

said to allow “GFE” in ads. (SI ¶ 148). Larkin, Spear, Brunst, Hyer, and C.F. 

received an email in August 2013 notifying them that Chase Bank would no 

longer accept transactions from Backpage because of it “involvement in 

Human Trafficking.” (SI ¶ 135). Larkin, Spear, C.F., and Brunst discussed 

strategies for fooling credit card companies into processing payments using 

shell companies. (SI ¶¶ 178–80). 

The 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. 

(Doc. 793 at 19–20). Because the basis for Defendants’ disagreement seems to be 

grounded in their selective reading of the SI, and not because the prior decisions on this 

issue were clearly erroneous, the Court reaffirms these rulings. Easy Bay Sanctuary 

Covenant, 950 F.3d at 1262. Under current Ninth Circuit law, the Court remains

unpersuaded that a different mens rea is required for Section 1952(a)(3) Travel Act 

charges, and specifically, as Defendants propose, that the intent element “go to the specific 

and entire crime charged,” as it must in an aiding and abetting charge. (Doc. 1557 at 10). 

3. The Travel Act counts are not unconstitutional as applied to the 

Defendants. 

Defendants’ aiding and abetting argument is anchored to a position taken by the 

Government in Woodhull Freedom Found’n v. United States, Case No. 22-5105, a case 

pending before the D.C. Circuit Court of Appeals. Woodhull is a First Amendment preenforcement challenge to FOSTA. FOSTA proscribes managing certain computer services 

“with the intent to promote or facilitate the prostitution of another person.” 18 U.S.C. § 

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2421A(a). In defending the constitutionality of FOSTA against claims that that statute is 

too vague and broad as to what conduct falls in its ambit, the Government has taken the 

position in Woodhull that the terms “promote” and “facilitate” in FOSTA mean the same 

thing as “aid and abet,” and thus necessarily limit its scope. Defendants assert that unless 

the Court applies the same proposed narrowing construction to the Travel Act, “a law 

making it a crime to ‘promote or facilitate’ prostitution would be overbroad and vague in 

violation of the First and Fifth Amendments.” (Doc. 1557 at 5).7 Defendants say the 

Government’s position in Woodhull “casts grave doubt on the indictment in this case.” 

(Id.) 

As an initial matter, this is not the first time that Defendants have invoked the 

Government’s position in Woodhull to argue that the Travel Act charges here are 

deficiently pled or unconstitutional as applied to them. The Court previously declined to 

be bound by the Government’s position in Woodhull, stating that “the previous statements 

made by the Government in other cases are not binding on the Court, not relevant to this 

prosecution, and, in any case, not inconsistent with the Government’s current theory 

regarding the Travel Act.” (Doc. 793 at 17–18). It expressly noted that the Government’s 

representations related to “different statutes, the Fight Online Sex Trafficking Act and the 

SAVE Act 18 U.S.C. § 1591.” (Id.) The Court continues to agree with its past statements, 

and the fact that the Government has reiterated the same position in a recent oral argument 

does not present cause to reconsider its decision. As Defendants acknowledge, there has 

been no opinion from the D.C. Circuit Court to suggest that court agrees with the 

Government’s proposed interpretation of FOSTA and of course, this Court would not be 

bound by such a holding even if it had. 

Moreover, and addressing the heart of why Defendants are invoking Woodhull, the 

Court also finds no reason to depart from its previous rulings that the Travel Act counts in 

7 Unlike FOSTA, which proscribes managing certain computer services in interstate 

commerce “with the intent to promote or facilitate the prostitution of another person,” the 

Travel Act proscribes use of “the mail or any facility in interstate or foreign commerce, 

with intent to. . . otherwise promote, manage, establish, carry on, or facilitate the 

promotion, management, establishment, or carrying on, of any unlawful activity.” 

Compare 18 U.S.C. § 2421A(a) with 18 U.S.C. § 1952(a)(3). 

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the SI are not unconstitutionally vague or overbroad as applied to Defendants. The Court 

has already explained that the Travel Act is not overbroad as applied to Defendants because 

it “requires Defendants to have intended to facilitate prostitution, which is a crime. See

A.R.S. § 13-3214. This limits its purview to criminal activity and distinguishes it from 

cases relied on by Defendants.” (Doc. 793 at 20–22). The Court also explained 

the SI alleges Defendants used a website with the intent to facilitate 

prostitution (a criminal activity) and executed strategies to further and 

increase that activity. The Court cannot conclude that such a standard or the 

allegations in the SI do not give fair warning that facilitating a criminal act 

is itself a crime. As applied in the SI, the Travel Act is not unconstitutionally 

vague. 

(Id.) Defendants’ proposed narrowing construction is therefore neither necessary to rectify 

any constitutional deficiency here nor supported by applicable authority, and the Court 

declines to reconsider these positions. 

Apart from the arguments the Government has advanced to support the 

constitutionality of other federal statutes not at issue here, Defendants have pointed to no 

authority supporting their contention that an SI alleging Travel Act charges is deficient 

because it does not allege the elements of aiding and abetting a crime. Neither the text of 

the Travel Act nor Ninth Circuit case law require as much. In this case, as the Court has 

found several times, for each of the fifty ads, the SI sufficiently alleges all the required 

elements of a Travel Act charge. 

Finally, as the Government points out, and Defendants concede (Doc. 1585 at 7), 

even if a Travel Act charge could be considered an aiding and abetting offense, an aiding 

and abetting charge is implied in every federal indictment for a substantive offense and 

would also resolve any pleading deficiency in that regard. United States v. Armstrong, 909 

F.2d 1238, 1241 (9th Cir. 1990). See also United States v. Vaandering, 50 F.3d 696, 702 

(9th Cir. 1995) (noting that an aiding and abetting instruction is proper even when the 

indictment does not specifically charge that theory of liability). In their Reply, Defendants 

briefly argue that this rule should only apply when a defendant is indicted as a principal of 

a substantive federal offense. (Doc. 1585 at 7). They say that when defendants are

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“promotor[s] of someone else’s offense,” it must allege all the elements of an aiding and 

abetting offense or is deficient. (Id.) But Defendants neither cite to relevant case law8

supporting this proposition nor otherwise explain why this rule would not apply to persons 

charged as “facilitators” of another’s offense, as here. United States v. Garcia, 400 F.3d 

816, 820 (9th Cir. 2005) (explaining that aiding and abetting is not a separate and distinct 

offense from the underlying substantive crime but is a different theory of liability for the 

same offense).

B. There is No Cause to Reconsider the Court’s Prior Rulings Regarding 

Double Jeopardy or the Independence of the Money Laundry Counts. 

Double Jeopardy. Defendants again argue that Government’s failure to allege the 

essential elements of the Travel Act warrant dismissal on the grounds that double jeopardy 

would not prevent the Government from “simply slotting in fifty more of the millions of 

Backpage.com ads, also without any allegation of aiding and abetting as to those specific 

ads and any underlying prostitution offenses.” (Doc. 1557 at 18). But the Court has 

previously found that these counts are plead in a manner that provides notice to Defendants 

of the charges being brought against them and allows them to defend against those 

particular charges. (See Doc. 946 at 12–13). This includes specifically alleging which ads 

form the basis of each of the fifty counts. (Id. at 13 (rejecting claim that SI improperly 

indicts Defendants for facilitating the amorphous notion of prostitution: “They were 

indicted for facilitating via publishing ads) on fifty distinct occasions where prostitutes, 

prostitution-related businesses, or other groups were involved in the business of 

8

In passing, Defendants cite to United States v. Superior Growers, 982 F.2d 173 (6th Cir. 

1992), but Superior Growers does not stand for the proposition that an aiding and abetting 

charge is only implied in a indictment for a principal offender. Superior Growers found 

that an indictment for “conspiracy to aid and abet the manufacture of marijuana” in 

violation of 21 U.S.C. §§ 846 and 841(a)(1) and 18 U.S.C. § 2 was deficient when it failed 

to allege facts showing that defendants knew their customers were manufacturing or 

planning to manufacture marijuana. Id. at 178 (“It seems to us then that in order to conspire 

or agree to assist “X” in the manufacture of marijuana, “Y and Z” have to know that “X” 

is manufacturing marijuana or planning to. Otherwise, all “Y and Z” are agreeing to do is 

to aid and abet a “possibility,” or a “criminal wish”; which simply isn’t a crime”). The 

case is distinguishable both on the grounds that (1) the defendants there were charged under 

the federal aiding and abetting statute with conspiracy to aid and abet the manufacture of 

marijuana; and (2) unlike the allegations in that case, the SI here is replete with allegations 

showing that Defendants knew they were facilitating the promotion of prostitution. (See 

Doc. 793 at 19–20). 

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prostitution”). Defendants would therefore be able to raise a double jeopardy defense if 

the Government tried to “slot[] in fifty more” ads. This is not sufficient reason to dismiss 

the SI. 

Money Laundering Counts. Defendants contend that the Court’s prior Order 

ruling that the money laundering counts could stand even if the Travel Act counts were 

dismissed is clearly erroneous. (Doc. 1557 at 18). Defendants argue that because “the 

government has not alleged an underlying crime, [] Defendants cannot be liable for 

laundering money that was not ‘criminally derived.’ 18 U.S.C. § 1957(a). The money 

laundering charges premised entirely on those underlying crimes cannot stand once the 

Travel Act foundation crumbles.” (Id.) The Court disagrees. Defendants can be convicted 

for money laundering without being found guilty for the activity that generated the 

laundered money – there are other elements aside from the unlawful business activity that 

the Government may fail to prove at trial that would render acquittals of Defendants on 

these counts. Moreover, per this Order, the Travel Act “foundation” has not crumbled; 

even if the law was otherwise, the Travel Acts alleged in the SI are not deficient. 

C. The Court Does Not Find Cause to Review Instructions to the Grand 

Jury. 

Finally, Defendants argue that the SI should be dismissed if the instructions 

provided to the grand jury were erroneous regarding the elements of the Travel Act. 

(Doc. 1557 at 19). Defendants say that given the Government’s position that it need not 

prove an underlying unlawful activity was committed by someone else, they assume the 

grand jury was improperly instructed. The Court disagrees with Defendants that a grand 

jury need be provided with the elements of an aiding and abetting charge to have properly 

indicted Defendants. As stated herein, the elements of a Travel Act offense are threefold: 

“interstate commerce or use of an interstate facility (2) with intent to promote an unlawful 

activity and (3) a subsequent overt act in furtherance of that unlawful activity.” Tavelman, 

650 F.2d at 1138. As such, the Court does not find cause to perform an in camera review 

of the grand jury instructions to see if they were instructed on the elements of aiding and 

abetting. 

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V. Conclusion

For the foregoing reasons, the Court again finds the SI is not constitutionally 

deficient. Accordingly, 

IT IS ORDERED that Defendants’ Motion to Dismiss (Doc. 1557) is denied. 

Dated this 31st day of May, 2023.

Honorable Diane J. Humetewa

United States District Judge

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