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Timothy J. Eckstein, 018321

Joseph N. Roth, 025725

Sarah P. Lawson, 036436

OSBORN MALEDON, P.A.

2929 North Central Avenue, 20th Floor

Phoenix, Arizona 85012-2793

(602) 640-9000

teckstein@omlaw.com

jroth@omlaw.com

slawson@omlaw.com

Attorneys for James Larkin

Additional counsel on following page

IN THE 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-PHX-DJH

DEFENDANTS’ RESPONSE TO 

GOVERNMENT’S MOTION IN 

LIMINE TO PRECLUDE 

REFERENCES TO COURT 

DECISIONS, RULINGS, 

OPINIONS, OR RESULTS FROM 

PRIOR LITIGATION FILED BY OR 

AGAINST BACKPAGE.COM, LLC 

OR ITS OWNER(S)

(Oral Argument Requested)

Case 2:18-cr-00422-DJH Document 1616 Filed 06/15/23 Page 1 of 8
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Paul J. Cambria, Jr. (NY 15873, admitted pro hac vice)

Erin E. McCampbell (NY 4480166, admitted pro hac vice)

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

(716) 849-1333

pcambria@lglaw.com

emccampbell@lglaw.com

Attorneys for Michael Lacey

Bruce S. Feder (AZ 004832)

FEDER LAW OFFICE PA

2930 E. Camelback Rd., Suite 160

Phoenix, Arizona 85016

(602) 257-0135

bf@federlawpa.com

Eric Walter Kessler

KESSLER LAW OFFICE

6720 N. Scottsdale Rd., Suite 210

Scottsdale, Arizona 85253

(480) 644-0093

Eric.kesslerlaw@gmail.com

Attorneys for Scott Spear

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW P.C.

1875 Century Park E., Suite 2300

Los Angeles, California 90067

(310) 201-2100

glincenberg@birdmarella.com

gpanchapakesan.@birdmarella.com

aneuman@birdmarella.com

Attorneys for John Brunst

David S. Eisenberg

DAVID EISENBERG PLC

3550 N. Central Ave., Ste. 1155

Phoenix, Arizona 85012

(602) 237-5076

david@eisenbergplc.com

Attorneys for Andrew Padilla

Case 2:18-cr-00422-DJH Document 1616 Filed 06/15/23 Page 2 of 8
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Joy Malby Bertrand

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

(480) 656-3919

joyous@mailbag.com

Attorneys for Joye Vaught

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The government moves to preclude all references to any past litigation involving 

Backpage.com, its affiliates, or its owners, claiming they are irrelevant and “everything is 

different now.” The government is incorrect, and the Court should deny the motion.

First, the government identified six cases, claiming each is irrelevant because it

“concerned other statutes, including Section 230.” The government’s characterization of 

those six cases is, at best, inaccurate. In three of the cases, federal district courts struck 

down, on First Amendment grounds, state statutes that would have authorized the 

prosecution of Backpage.com for publishing adult-oriented ads that either contained an 

explicit or implicit offer for a commercial sex act involving a minor or would have appeared 

to a reasonable person to be for the purpose of engaging in what would be a commercial 

sex act involving a minor.1 In another case, the Seventh Circuit Court of Appeals reversed 

a district court’s decision refusing a preliminary injunction against a law enforcement 

officer, holding that he violated Backpage.com’s First Amendment rights by threatening 

credit card companies with criminal prosecution for being accomplices to purported illegal 

activity on Backpage.com.2 Two cases involved the dismissal of civil suits, in part on 

Section 230 grounds, but each decision also rejected claims premised on allegations that

Backpage’s website and moderation practices violated federal criminal law, including the 

18 U.S.C. § 2, 18 U.S.C. §§ 1591 & 1595, and 18 U.S.C. § 2255.

3 

The government failed to mention a seventh case in which Backpage.com 

challenged the constitutionality of 18 U.S.C. § 1591, after Congress added “advertising” as 

a predicate act for sex trafficking. In seeking to dismiss on standing grounds, the 

government insisted: 

“Even if an advertisement for illegal sex trafficking appeared on Plaintiff’s 

website, Plaintiff could not be convicted under either § 1591(a)(1) or (a)(2) 

1 Backpage.com, LLC v. Hoffman, Case No. 13–cv–03952 (DMC)(JAD), 2013 WL 4502097 

(D.N.J. Aug. 20, 2013); Backpage.com, LLC v. Cooper, 939 F.Supp.2d 805 (M.D. Tenn. 

2013); Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D. Wash. 2012). 

Additionally, each court held the state statute at issue to be preempted by Section 230. 2 Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015).

3 Doe ex rel. Roe v. Backpage.com, LLC, 104 F. Supp. 3d 149, 157 (D. Mass. 2015), aff’d sub 

nom. Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016); M.A. ex rel. P.K. v. 

Village Voice Media Holdings, LLC, 809 F.Supp.2d 1041 (E.D. Mo. 2011)

Case 2:18-cr-00422-DJH Document 1616 Filed 06/15/23 Page 4 of 8
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without proving that Plaintiff knew that the advertisement at issue related to 

illegal sex trafficking of a minor or of a victim of force, fraud, or coercion.”

Backpage.com, LLC v. Lynch, No. 1:15-2155-RBW (D.D.C. Apr. 15, 2016) (ECF No. 13 at 

7-8, ) (emphasis added). The district court agreed with the government’s interpretation of 

the statute. Backpage.com, LLC v. Lynch, 216 F. Supp. 3d 96, 108-09 (D.D.C. 2016).

The government claims “Defendants...misled courts across the United States,” but 

Defendants were not parties to these suits, nor did they submit anything to the courts, much 

less mislead the courts. The government claims “the cases all were premised on the notion 

that Backpage merely was a passive ‘intermediary,’” citing Dart, but that decision does not 

even include the word “passive,” much less the phrase “passive intermediary.” The 

government claims the district court dismissed Dart and imposed sanctions, but fails to 

disclose that a) the case was dismissed on mootness grounds only after the government 

seized and shutdown the website and Backpage failed to respond to a motion to dismiss 

and b) sanctions were awarded only after Backpage also failed to respond to a sanctions 

motion. Backpage.com, LLC v. Dart, No. 1:15-cv-06340 (N.D. Ill. 2018) (ECF Nos. 244 & 

253). Moreover, the Seventh Circuit just confirmed the continuing vitality of Dart, citing 

it in Webber v. Armslist, LLC, __ F.4th __, 2023 WL 3945516 (7th Cir. June 12, 2023):

[I]n Backpage.com v. Dart, this court considered whether a county sheriff 

violated the First Amendment by threatening credit card companies with 

criminal prosecution as accomplices to illegal activity being advertised on an 

online forum. This court...not[ed] that under ordinary understandings of 

culpable assistance of wrongdoers, entities that know the information’s 

content do not become liable for the poster’s words. We therefore 

expressed doubt that the online forum could be held liable for aiding and 

abetting a crime just because they were aware that users had posted ads for 

illegal conduct. We acknowledged, however, that the CDA did not 

immunize the online forum from federal criminal liability.

(internal citations omitted) .

As the government notes, at the first trial the Court did say “all of those cases are 

misleading” (Doc. 1334 at 12) and there would need to be “some discussion about the 

admissibility of all these other cases” (Doc. 1434 at 103). The government failed to 

disclose, however, that the Court made each of those comments after the government elicited

testimony about a different civil suit that Backpage settled and after the defense objected. 

While the Court’s comments seem to have been directed at both sides, the Court said it 

Case 2:18-cr-00422-DJH Document 1616 Filed 06/15/23 Page 5 of 8
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would “probably...reread the [cases] again a couple of other times” (Doc. 1334 at 13), but 

made no decisions before the mistrial. 

The government claims the decisions are “not applicable,” but the trilogy of cases,

brought by Backpage, resulting in three different federal courts each striking down, as 

inconsistent with the First Amendment, a statute purporting to criminalize the publication

of adult ads because they look like they might be associated with prostitution, plainly are 

relevant to Defendants’ state of mind and the issue of specific intent. So too the Seventh 

Circuit’s opinion holding that a sheriff’s threats to prosecute credit card companies for 

facilitating illegal activity being advertised on Backpage.com violated Backpage’s First 

Amendment rights. For the reasons discussed in Defendants’ response to the 

government’s motion addressing Section 230 (Doc. 1615), the decisions in the two civil 

suits also are relevant as to Backpage’s moderation practices and for their rejection of the 

criminal theories advanced and how those affected Defendants’ state of mind. 

Moreover, these civil actions are relevant for the independent reasons that 

numerous government witnesses had connections with one or more of the actions and 

Defendants must be permitted to cross-examine the government’s witnesses about the 

actions. For example, cooperator Carl Ferrer submitted declarations under oath in many 

of the actions—and those declarations contradict statements in his plea agreement. The 

government also intends to elicit testimony from Paula Selis about Washington’s demands 

of Backpage.com and statements made in response in a meeting, but Ms. Selis provided 

the same testimony in defense of a state law that was struck down as facially 

unconstitutional. The government also intends to elicit testimony from various NCMEC 

representatives about demands they made of Backpage, but NCMEC said similar things in 

amicus filings in some of these actions and the courts rejected NCMEC’s positions. If the 

Court permits the government to elicit testimony suggesting that these witnesses put 

Backpage on “notice” or that Backpage should have followed their demands, Defendants 

need to be able to rebut that testimony by showing that the courts rejected those positions. 

The government complains about complexity at trial if its motion is not granted, 

but the government brought this prosecution knowing of these cases, and that Defendants 

would rely on them, so any complexity is of its own making. The motion should be denied.

Case 2:18-cr-00422-DJH Document 1616 Filed 06/15/23 Page 6 of 8
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DATED this 15th day of June, 2023.

OSBORN MALEDON, P.A.

By s/ Joseph N. Roth

Timothy J. Eckstein

Joseph N. Roth

Sarah P. Lawson

2929 North Central, 20th Floor

Phoenix, Arizona 85012-2794

Attorneys for James Larkin

LIPSITZ GREEN SCIME CAMBRIA LLP

By s/ Paul J. Cambria, Jr. (w/permission)

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

Erin E. McCampbell (pro hac vice)

42 Delaware Avenue, Suite 120

 Buffalo, New York 14202

Attorneys for Michael Lacey

FEDER LAW OFFICE PA

By s/ Bruce S. Feder (w/permission)

Bruce S. Feder

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

KESSLER LAW OFFICE

By s/ Eric W. Kessler (w/permission)

Eric W. Kessler

6720 N. Scottsdale Rd., Suite 210

Scottsdale, Arizona 85253

Attorneys for Scott Spear

Case 2:18-cr-00422-DJH Document 1616 Filed 06/15/23 Page 7 of 8
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BIRD, MARELLA, BOXER, WOLPERT,

NESSIM, DROOKS, LINCENBERG & 

RHOW P.C.

By s/ Gary S. Lincenberg (w/permission)

Gary S. Lincenberg

Gopi K. Panchapakesan

Ariel A. Neuman

1875 Century Park E., Suite 2300

Los Angeles, California 90067

Attorneys for John Brunst

DAVID EISENBERG PLC

By s/ David S. Eisenberg (w/permission)

David S. Eisenberg

3550 N. Central Ave., Ste. 1155

Phoenix, Arizona 85012

Attorneys for Andrew Padilla

JOY BERTRAND LAW 

By s/ Joy M. Bertrand (w/permission)

Joy M. Bertrand

P.O. Box 2734

Scottsdale, Arizona 85252

Attorneys for Joye Vaught

Case 2:18-cr-00422-DJH Document 1616 Filed 06/15/23 Page 8 of 8