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feder law office, p.a.

2930 e. camelback road, suite 160

phoenix, arizona 85016

(602) 257-0135

bf@federlawpa.com

fl@federlawpa.com

Bruce Feder - State Bar No. 004832

Attorney for Defendant, Scott Spear

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America, )

)

Plaintiff, )

)

vs. )

)

Scott Spear, )

)

Defendant. )

)

)

NO. CR18-00422 PHX SMB-003

MOTION FOR BILL

OF PARTICULARS

(Oral Argument Requested)

Defendant, Scott Spear, by and through his counsel undersigned, and pursuant to Rule

7(f), Fed. R. Crim. P., respectfully requests that this Court enter an order requiring the

government to issue a Bill of Particulars providing the information set forth below. This

motion is based on the attached Memorandum, the files and records in this case, evidence and

argument to be advanced at a hearing in this matter, and upon such other materials which the

Court may take notice.

Specifically, Mr. Spear requests that the Court order the government to provide a Bill

of Particulars that sets forth with specificity the following information:

1. The names of all alleged known, but unidentified, co-conspirators in Counts 1 and

52 of the Superseding Indictment.

2. The precise nature of the “specified unlawful activity” alleged in Counts 53-100

of the Superseding Indictment.

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3. The exact nexus between the Travel Act violations alleged in Counts 1051 of the

Superseding Indictment and the property listed in forfeiture Allegation No. 1.

4. The exact nexus between the alleged money laundering violations in Counts 52-

100 of the Superseding Indictment and the property listed in Forfeiture Allegation

No. 2.

It is expected that excludable delay under Title 18 U.S.C. §3161(h)(1)(F) may occur

as a result of this motion or from an order based thereon.

RESPECTFULLY SUBMITTED this 18th day of October, 2019.

FEDER LAW OFFICE, P.A.

/s/ Bruce Feder

Attorney for Defendant, Scott Spear

MEMORANDUM

I. FACTS:

Scott Spear is charged with one count of Conspiracy to Commit Travel Act violations

(Count 1) and 50 counts of substantive Travel Act charges. See 18 U.S.C. § 1952(a)(3)(A).

It is alleged that Spear and others with intent to “otherwise promote, manage, establish, carry

on, and facilitate the promotion of unlawful activity” published ads for prostitutes through

facilities of interstate commerce. The specific illegal activity alleged is “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 Statute, Section 13-3214. . . .”

See ¶163.

In addition, Spear is charged with Conspiracy to Commit Money Laundering (Count

51) and 25 substantive counts of Money Laundering. These include, Concealment Money

Laundering in violation of 18 U.S.C. §1956(a)(1)(B)(i) (Counts 53-62), International

Promotional Money Laundering in violation of 18 U.S.C. §1956(a)(2)(A) (Counts 63-68), and

Transactional Money Laundering in violation of 18 U.S.C. 1957(a) (Counts 69-78, 85, 93).

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Two Forfeiture Allegations listing hundreds of accounts and property are included in the

Indictment related to the Travel Act and Money Laundering charges, respectively.

While the Superseding Indictment contains numerous factual allegations concerning

the operation of the website www.backpage.com (“Backpage”) by the named defendants,

there are several places where insufficient information is provided for the defendant to prepare

a defense. These include: allegations in the conspiracy counts (Counts 1 and 52) that the

defendants conspired with “others known and unknown to the grand jury;” the precise nature

of the “specified unlawful activity” alleged in the Money Laundering counts; the exact nexus

between the alleged Travel Act violations in Counts 1-51 and the property listed in Forfeiture

Allegation No. 1; and the exact nexus between the alleged Money Laundering violation in

Counts 52-100 and the property listed in Forfeiture Allegation No. 2. Defendant Spear seeks

a Bill of Particulars to require the government to provide this information.

II. ARGUMENT.

Rule 7(f), Fed. R. Crim. P., provides that “the court may direct the government to file a

bill of particulars.” A bill of particulars “serves to inform the defendant of the nature of the

charge against him with sufficient precision to enable him to prepare for trial, to avoid or

minimize danger of surprise at trial, and to enable him to plead his acquittal or conviction in bar

of another prosecution for the same offense when the indictment is too vague and indefinite.”

United States v. Hernandez, 299 F.3d 984, 989-90 (8th Cir. 2002). See also United States v.

Long, 706 F.2d 1044, 1054 (9th Cir. 1983); United States v. Mitchell, 744 F.2d 701, 705 (9th Cir.

1984). The decision to require a bill of particulars is within a trial court’s discretion, which is

broad under the circumstances. Long, 706 F.2d at 1054; Will v. United States, 389 U.S. 90, 99

(1967).

Additionally, if the government intends to assert the admissibility of co-conspirator

statements, knowledge of the names of the alleged co-conspirator also allows the defendant to

prepare for such allegations and evidence. The Ninth Circuit has held that when deciding

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whether to order a bill of particulars “a court should consider whether the defendant has been

advised adequately of the charges through the indictment and all other disclosures made by the

government.” Long, 706 F.2d at 1054. Production of a large volume of discovery, however,

cannot cure the lack of specificity in the indictment and sometimes make a bill of particulars

even more necessary. United States v. Bortnovsky, 820 F.2d 572, 575 (2d Cir. 1987)

(“providing mountain of documents to defense counsel” when the indictment contained general

allegations impermissibly shifted the burden of proof to the defendant, necessitating a bill of

particulars.). However, “[a] defendant is not entitled to know all the ‘evidence the government

intends to produce.’”

The need for a bill of particulars in the present case is especially pronounced given the

magnitude of the discovery and the complexity of the case. Bills of particulars are granted in

cases where the generally more vague conspiracy and substantive charges are alleged, where the

period of the alleged conspiracy spanned numerous years, where there is substantial amount of

documents, and where witnesses and events occurred in multiple states and overseas. See,

United States v. Nachamie, 91 F.Supp. 2d 565, 571-72 (S.D.N.Y. 2000) (granting bill of

particulars where government had produced 200,000 documents related to 2,000 Medicare

claims but had not told the defendants which claims were alleged to be false); United States v.

King, 1995 WL 146252, 1 (S.D.N.Y. 1995) (“A defendant being presumed innocent it must be

assumed that he is ignorant of the facts in which the pleader founds his charges”) (quoting

United States v. Smith, 16 F.R.D. 372, 375 (W.D. Mo. 1954)).

A. A Bill of Particulars is the Appropriate Vehicle for Identifying

Alleged Co-conspirators Known to the Grand Jury.

In this case, the grand jury has alleged in the indictment that defendant Spear conspired

with the other named defendants “and others known and unknown to the grand jury....” (See

§196). As the Second Circuit has noted, when the indictment uses such general phrases to

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identify the alleged perpetrators or alleged accomplices, it is “simply unrealistic” to think that

a defendant preparing to meet the indictment’s express allegations has a fair opportunity to

defend against other alleged participants not made known until trial. United States v.

Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988) (reversing conviction because defendant

prejudiced by denial of bill of particulars identifying all victims and companies involved in

alleged extortion scheme.).

Defendant Spear seeks identification of those other alleged co-conspirators known

to the grand jury. In United States v. Palfrey, 499 F.Supp. 2d 34 (D.D.C. 2007), the

defendants were charged with violating three federal statutes through the operation of a

business allegedly offering prostitution services to clients in the District of Columbia,

Maryland and Virginia. The indictment included counts of Travel Act violations under 18

U.S.C. §1952 and Money Laundering charges. The defendant sought a bill of particulars to

identify “the individuals with whom defendant conspired in the money laundering charge”

who were known to the grand jury but not identified. Id. at 52. In granting this request,

the district court stated as follows:

As defendant correctly points out, however, disclosure of the

names of alleged co-conspirators is not uncommon in

conspiracy cases and particularly in cases alleging nonviolent offenses brought in this jurisdiction. See, e.g., Id.

at 91. Ramirez, 54 F.Supp. 2d at 30. Significantly, the

government has identified no prejudice to its cases that

would be caused by such disclosure.

Id. at 52.

Disclosure of alleged unindicted co-conspirators in Counts 1 and 52 of the indictment

is clearly necessary for the defendant to properly prepare for trial. As the court has indicated

in Davidoff, supra, it was far too late for the defendant to have to respond at trial to surprise

assertions by the government concerning names of co-conspirators. Indeed, should the

government seek to admit statements of alleged co-conspirators under F.R.E. 801(d)(2)(E),

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the defendant will be totally unprepared to respond to such an assertion. Therefore, a bill of

particulars is appropriate as in Palfrey to identify the alleged co-conspirators known to the

grand jury but not identified.

B. A Bill of Particulars is Necessary to Identify the Precise Nature

of the “Specified Unlawful Activity” Alleged in the Money

Laundering Counts of the Superseding Indictment.

The Money Laundering charges in Counts 53-100 of the Superseding Indictment

allege that the named defendants conducted and attempted to conduct various financial

transactions involving proceeds of “specified unlawful activity”. The money laundering

statute defines “specified unlawful activity” to include numerous Federal statutes. 18 U.S.C.

§1956(c)(7). However, the indictment fails to identify the nature of the “specified unlawful

activity” alleged in this case. While the “factual allegations” of the Indictment are re-alleged

in each Money Laundering count, no criminal violations are specified. The defendants are

left to guess the Federal statute allegedly violated and how it was violated.

In United States v. Trumpower, 546 F. Supp. 2d 849 (E.D. Cal. 2008), the district

court was faced with a similar situation. The defendant was indicted for two counts of

money laundering. While the indictment alleged that the criminal proceeds allegedly

laundered derived from a fraudulent scheme involving mail and wire fraud, there were no mail

or wire fraud charges. The indictment included a factual background describing a fraudulent

scheme but only in “generic terms.” The court found that a defense to these charges “cannot

be marshaled unless the defendant knows both the statute allegedly violated and the conduct

which allegedly violates the statute.” Id. at 852. The court ordered a bill of particulars to

include:

...(1) the circumstances of the crime or crimes from which

the laundered money was derived, including how and when

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those crimes were accomplished; (2) in the case of mail or

wire fraud, the particular false material representations and

particular mailings or wire transactions; (3) who committed

the crimes; (4) who were the victims of the crimes; and (5)

in Count Two, how the allegedly laundered money can be

identified as the proceeds of criminal conduct to the extend

that it was ever commingled with legitimately derived funds.

Id.

Similarly, in this case the defendants cannot prepare a defense without knowing the

statute allegedly violated and the conduct which allegedly violated that statute. It may be

the alleged Travel Act violations or something else. The defendants are left to guess. In

those circumstances the court must order a bill of particulars requiring the government to

produce the precise nature of the “specified unlawful activity” in Counts 53-100. This

should include: (1) the circumstances of the crime or crimes from which the laundered funds

were derived, including how and when they occurred; (2) who committed the crimes and

affirming they were the Travel Act violations alleged in Counts 1-51, the particular

involvement of each defendant in the acts alleged; (3) any alleged victims of these crimes;

and (4) how the allegedly laundered funds can be identified as proceeds of criminal conduct.

C. The Defendants Are Entitled to a Bill of Particulars Identifying the Nexus

Between Alleged Travel Act Violations and Money Laundering Charges

and the Property and Accounts Listed in the Forfeiture Allegations.

In Palfrey, supra, the defendants were also advised in the indictment of the

government’s intent to forfeit property allegedly derived from proceeds obtained from the

unlawful activity. The defendant sought a bill of particulars “the nexus” between the alleged

offenses and the property sought in the forfeiture allegations. Palfrey, supra, 499 F.Supp. 2d

at 51.

The district court granted this request and ordered the government to provide the

information requested to include “details regarding the nexus between the property sought in

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the Indictment’s forfeiture allegations and the alleged RICO and money laundering

violations.” Id. At 52. The Court stated as follows:

Moreover, additional information regarding the property

sought in the Indictment’s forfeiture allegations, as well as

the “proceeds” allegedly used in the furtherance of the

enterprise is necessary to enable defendant to conduct her

investigation and trial preparation with sufficient direction.

See United States v. Rogers, 617 F. Supp. 1024, 1030 (D.

Col. 1985). The Indictment alleges an enterprise that

existed for over 13 years and generated over two million

dollars in income. Defendant should not have to waste

precious pretrial preparation time guessing what data among

her 13 years of financial information will be relevant to her

defense. See United States v. Trie, 21 F.Supp. 2d 721

(D.D.C. 1998).

Id.

In this case, the government has similarly alleged that various properties should be

forfeited based on convictions of the Travel Act violation in Counts 1-51 and the Money

Laundering violations in Counts 53-100. See Forfeiture Allegations 1 and 2. Indeed, the

government has included nearly 30 pages listing hundreds of properties and accounts which

it claims are subject to forfeiture. However, other than some vague general allegations that

“virtually all” of Backpage’s earnings “represented the proceeds of illegal activity,” See ¶ 15

on p. 5, the government has failed to provide any nexus between the alleged properties and

accounts listed and the alleged criminal activity. A bill of particulars is the appropriate

vehicle for having the government provide this information to the defendant so that time is

not wasted guessing what financial data will be relevant to this case. Indeed, the allegations

in this case even go beyond those of Palfrey in that the government claims that the alleged

conspiracy lasted over 14 years and earned over five hundred million dollars in revenue.

(See ¶ 1 on p. 2). Without a bill of particulars identifying the nexus between the properties

and accounts and the alleged criminal violations, the defense will be unable to adequately

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prepare for trial.

III. CONCLUSION.

For the reasons stated, the defendant respectfully requests that the Court

order a bill of particulars as requested.

RESPECTFULLY SUBMITTED this 18th day of October, 2019.

FEDER LAW OFFICE, P.A.

/s/ Bruce Feder

Attorney for Defendant, Scott Spear

CERTIFICATE OF SERVICE

I hereby certify that on the 18th day of October, 2019, I electronically transmitted the

foregoing to the Clerk of the Court via the CM/ECF system for filing and transmittal of a

Notice of Electronic Filing to the following CM/ECF registrants:

Kevin Rapp: Kevin.Rapp@usdoj.gov

Andrew Stone: Andrew.Stone@usdoj.gov

Margaret Perlmeter: Margaret.Perlmeter@usdoj.gov

John Kucera: John.Kucera@usdoj.gov

Reginald Jones: Reginald.Jones@usdoj.gov

Peter S. Kozinets: Peter.Kozinets@usdoj.gov

Attorneys for the United States

Anne Michelle Chapman, anne@mscclaw.com

Erin E. McCampbell, emccampbell@lglaw.com

Anthony R. Bisconti, tbisconti@bienertkatzman.com

Ariel A. Neuman, aan@birdmarella.com

James C. Grant, jimgrant@dwt.com

Lee David Stein, lee@mscclaw.com

Paul J. Cambria, pcambria@lglaw.com

Robert Corn-Revere, bobcornever@dwt.com

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Ronald Gary London, ronnielondon@dwt.com

Janey Henze Cook, janey@henzecookmurphy.com

John Lewis Littrell, jlittrell@bmkattorneys.com

Seetha Ramachandran, Seetha.Ramachandran@srz.com

Thomas H. Bienert, Jr. tbienert@bienertkatzman.com

Whitney Z. Bernstein, wbernstein@bienertkatzman.com

Gary S. Lincenberg, glincenberg@birdmarella.com

Gopi K. Panchapakesan, gpanchapakesan@birdmarella.com

Michael D. Kimerer, mdk@kimerer.com

Rhonda Elaine Neff, rneff@kimerer.com

David S. Eisenberg, david@deisenbergplc.com

Joy Malby Bertrand, Joy.Bertrand@gmail.com

By: /s/ A. Jones

Case 2:18-cr-00422-DJH Document 781 Filed 10/18/19 Page 10 of 10