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PICCARRETA DAVIS KEENAN FIDEL PC

2 East Congress Street, Suite 1000

Tucson, Arizona 85701-1782

(520) 622-6900

Michael L. Piccarreta 

State Bar No. 003962 

Email: mlp@pd-law.com

Attorney for DefendantAndrew Padilla

 -andKARP & WEISS, P.C. 

3060 N Swan Road

Tucson, AZ 85712 

(520) 325-4200 

Stephen M. Weiss

State Bar No. 002261

Email: sweiss@karpweiss.com

Attorney for Defendant Joye Vaught

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America,

 Plaintiff,

v.

6. Andrew Padilla,

 (Counts 1-51)

7. Joye Vaught,

 (Counts 1-51)

 Defendants.

NO. CR-18-00422-06-PHX-SMB

JOINT REPLY TO RESPONSE (DOC. 476) 

TO MOTION TO DISMISS DUE TO 

GOVERNMENT INTERFERENCE WITH 

RIGHT TO COUNSEL AND REQUEST 

FOR DISCLOSURE OR, IN THE 

ALTERNATIVE, MOTION TO 

WITHDRAW (DOC. 456)

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I. BACKGROUND

In their motion to dismiss, defendants Padilla and Vaught note that Judge Logan made it clear 

that issues relating to the seizure of attorney trust accounts for the defendants in this case should be 

addressed in the Central District of California (see Doc. 447 p. 3), and defendants further noted that 

issues relating to the government’s unlawful seizures of defendants’ assets are currently pending on 

appeal from the Central District of California to the Ninth Circuit Court of Appeals. (Doc. 456 p. 9). 

The defendants repeated their strong belief that the government’s actions were unlawful and 

unconstitutional, but stated that they “will not reiterate those arguments here,” (Doc. 456 p. 9), given 

the fact that those matters are being currently litigated and await decision elsewhere. Defendants’

motion then sets forth a number of grounds showing that the government’s improper interference 

with funds earmarked for indemnification and advancement of legal costs and fees denied them their 

right to counsel of choice under the Fifth and Sixth Amendments to the United States Constitution. 

(Doc. 456 pp. 9-16). In its response, the government addresses none of these grounds for dismissal, 

injects many factual and legal matters beyond the scope of defendants’ motion, and re-argues the 

seizure issues while ignoring the actual arguments in defendants’ motion.

II. ARGUMENT

A. The Government’s Interference with Assets Earmarked to Fund the Defense of the 

Present Case Has Denied Defendants Their Right to Assistance of Counsel of Choice 

in Violation of the Fifth and Sixth Amendments to the United States Constitution.

Defendants Padilla and Vaught have requested this Court to dismiss the indictment against 

them due to the government’s violation of their Fifth Amendment right to due process and Sixth 

Amendment right to counsel of choice, based on the principles set forth in United States v. Stein, 435 

F.Supp.2d 330 (S.D.N.Y. 2006), aff’d 541 F.3d 130 (2d Cir. 2008), and this Court’s supervisory powers. 

Defendants submit that the government’s actions in the present case constitute the same type of 

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improper interference with assets earmarked to fund counsel of choice that led the court to dismiss 

the indictment in Stein.

The government contends that Stein is inapposite because there was no question that the funds 

of the accounting firm, KPMG, were “untainted.” (Doc. 476 p. 9). The government’s response ignores 

several key factors. First, the government has never established that the funds at issue in this case are 

“tainted” as it is obligated to do. Thus, assets earmarked for funding counsel of choice must be made 

available to fund the defense. Second, Stein involved both tainted and untainted assets of the accounting 

firm, KPMG, inasmuch as “KPMG admitted extensive wrongdoing, paid a $456 million fine, and 

committed itself to cooperation in any future government investigation or prosecution.” 541 F.3d at 

139. It is not likely that the distinguished trial judge, Judge Lewis Kaplan, would have permitted the 

government to achieve the same result of denying the defendants their right to counsel of choice simply 

by alleging that KPMG’s “extensive wrongdoing” tainted all of KPMG’s assets.

In fact, Stein is precisely on point in its analysis of the effect of the government’s conduct in 

denying the defendants’ constitutional right to counsel of choice. As inStein, these defendants, by virtue 

of their employmentwith Backpage.com, LLC (“Backpage”), were entitled to use the assets earmarked 

for defense of the case.1 The government’s conduct regarding these assets “unjustifiably interfered 

with [the defendants’] relationship with counsel and their ability to mount the best defense they could 

muster.” Id. at 155.

The court’s analysis of the impact of the government’s interference with the defendants’right 

to counsel is directly on point in the present case:

 1 “Because defendants reasonably expected to receive legal fees from KPMG, the fees ‘were, in every 

material sense, their property.’” 541 F.3d at 151 (quoting district court).

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Defendants were indicted based on a fairly novel theory of criminal liability; they faced 

substantial penalties; the relevant facts are scattered throughout over 22 million 

documents regarding the doings of scores of people...; the subject matter is 

“extremely complex”...; technical expertise is needed to figure out and explain what 

happened.... As Judge Kaplan found, these defendants “have been forced to limit 

their defenses...for economic reasons and...they would not have been so constrained 

if KPMG paid their expenses”....We therefore hold that these defendants were also 

deprived of their right to counsel under the Sixth Amendment.

Id. at 157 (quoting district court).

In the instant case, defendants face a novel theory of criminal prosecution -- indeed, 

unprecedented and contrary to nine different courts that have addressed Backpage and its status of 

publisher. Defendants face substantial penalties given the government’s larding up dozens of alleged 

misdemeanor prostitution acts into federal five-year statutes by coupling them with the Travel Act. 

The relevant facts are scattered through tens of millions of pages of documents, most of which have 

not even been produced by the government despite a scheduling order that called for their production 

by December 3, 2018. The subject matter is extremely complex, involving what rivals a law school 

exam question designed to see how many issues can be implicated -- First Amendment, Fourth 

Amendment, Fifth Amendment, Sixth Amendment, in addition to the potential need for expert 

assistance in areas of internet postings, publishing, electronic document tracing, age determination, and 

sex trafficking.It is as though Judge Kaplan were writing his opinion in our case. Because defendants 

Padilla and Vaught have also been denied access to assets earmarked to fund their counsel of choice, 

the indictment against them must also be dismissed.

Here, the law is clear that the government cannot by fiat declare the proceeds from Backpage 

are “tainted” any more than it can presume all adult advertising is illegal and unprotected by the First 

Amendment. However, even if -- as the government has asserted -- this case is no different from any 

run-of-the-mill prosecution that does not involve constitutionally-protected interests, the government 

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has engaged in improper actions in the present case that simply are not present in any of the cases upon 

which the government relies. The government’s response does not address these arguments or attempt 

to defend the government’s conduct.

1. Permitting Cooperating Defendants to Keep Funds Earmarked for Attorneys’

Fees While Denying those Funds to Defendants Who Are Contesting the 

Charges Is Unseemly and Undermines the Workings of the Adversary System.

The government does not even attempt to defend its conduct in allowing cooperating 

defendants to use allegedly “tainted” money to fund their defense, while denying funds from the very 

same source to those who will make it harder for the government to win its case through vigorous 

representation and assertion of the defendants’ rights, except to contend, in a footnote, that the 

government is permitted to provide benefits in exchange for cooperation. (Doc. 476 p. 16 n. 23).

The problem in this case is the government’s disparate treatment of defendants in an ongoing 

criminal prosecution. The defendants who have the temerity to assert their innocence and vigorously 

assert their rights are suddenly deprived of the assets necessary to continue to fund counsel of choice 

and thereby deprived of counsel. On the other hand, the defendants who curry favor with the 

government, give up their rights, and cooperate with the government can continue to utilize assets 

derived from the same allegedly “tainted” source in their attorneys’ trust fund accounts and continue 

to be represented by their counsel of choice. The result is to clearly undermine the contemplated 

workings of the adversary system and is precisely the type of “ends justify the means” conduct that has 

been rightly condemned. United States v. Helmandollar, 852 F.2d 498, 501 (9th Cir. 1988).

In short, if the government believes it can use “tainted” funds to further the government’s 

interest in securing cooperation from a co-defendant, then the government can surely use the same 

funds to further “the government’s interest that every defendant receives the best possible 

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representation he or she can obtain.” Stein, 541 F.3d at 157. The fact that the government has not done 

so here shows its true motivation and improper interference with right to counsel of choice.

2. The Timing of the Government’s Seizure of Attorney Trust Funds to Severely 

Disrupt Criminal Proceedings after Defendants Exercised their Protected 

Constitutional and Statutory Rights Warrants Dismissal of the Indictment.

The government’s response makes no effort to justify its conduct in seizing attorney trust 

accounts 18 months after undersigned counsel began representing Mr. Padilla and seven months after 

Mr. Weiss began representing Ms. Vaught. The government obtained ex parte seizure warrants for the 

attorney trust accounts for defendants Padilla and Vaught only after months of vigorous litigation and 

two weeks after receiving rulings on litigated pretrial motions.

2 Again, this highly unusual and selective 

use of mid-case seizure of attorney trust accounts did not occur in the cases on which the government 

relies. This is a seemingly intentional strategy which has severely impaired the ability of Padilla and 

Vaught to defend this case.

The government’s actions have completely disrupted the defense, creating uncertainty and 

limiting the ability of undersigned counsel to proceed in complex and time-consuming criminal 

litigation. This type of seizure of attorney trust accounts in the middle of highly disputed criminal 

litigation has not occurred previously in this district in undersigned counsel’s experience. This is 

especially troubling in a case with critical First Amendment implications—where there has not been a 

contested adversary hearing demonstrating that any of the publishing assets are tainted. This case does 

not involve per se contraband,3 but rather legitimately earned publishing proceeds of a business that had 

 2 These included adverse rulings on the government’s motion to disqualify counsel and violate 

attorney-client privileges. (Docs. 338, 345).

3 See Luis v. United States, 578 U.S. __, __, 136 S.Ct. 1083, 1090 (2016) (describing contraband subject 

to seizure as “a robber’s loot, a drug seller’s cocaine, a burglar’s tools, or other property associated with 

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been operating openly for years collecting revenue and paying its bills.

The government’s conduct must be viewed in light of its pattern to deprive defendants of their 

Sixth Amendment rights. The government sought ex parteseizure warrants outside of this district thus 

necessitating the expenditure of additional resources. The government adopted a course of conduct 

seeking to avoid judicial review of its actions. The government unsuccessfully attempted to conflict out 

First Amendment counsel of choice, which also took considerable time and resources to resolve. The 

government provided disclosure in a manner that is useless to the defendants without expensive 

technical assistance. After discussions with counsel for the defendants, the government initially elected 

not to seize trust accounts which contain the funds to defend the case. However, after defendants 

asserted their constitutional rights, the government changed course and seized the trust accounts of 

First Amendment counsel in yet another unsuccessful attempt to remove them from the case. Counsel 

for Padilla and Vaught vigorously asserted their clients’ rights and the government responded, in part, 

by seizing their attorneys’ trust accounts. The government then asserts that, even without the benefit 

of a valid seizure warrant, any attorneys accessing funds in the trust accounts may be investigated with 

no assurances that they will not be criminally prosecuted. As a result, counsel for Padilla and Vaught 

have not received any compensation for any services rendered after November 30, 2018, over three 

months ago. These actions cannot be viewed in a vacuum, but as an overall pattern which has 

significantly and adversely impacted defendants’ due process and Sixth Amendment rights, severely 

undermining the workings of the criminal adversary system.

The government’s response does not even attempt to excuse or justify the timing of these 

 

the planning, implementing or concealing of a crime”).

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seizures of attorney trust accounts. Defendants submit that the chronology speaks for itself and 

demonstrates the government’s improper purpose in severely disrupting these criminal proceedings 

mid-stream, after the defendants have vigorously asserted their rights. See United States v. DeMarco, 550 

F.2d 1224, 1227-28 (9th Cir. 1977).

3. Monsanto.

Finally, the government’s repeated emphasis on United States v. Monsanto, 491 U.S. 600 (1989),

is misplaced. As the defendants have repeatedly pointed out, Monsanto comes into play only after a lawful 

seizure of assets that could be used to fund counsel of choice – and that matter has yet to be 

determined. Second, the government’s seemingly generous offer to counsel for Padilla and Vaught is 

not at all what it seems. The government says it “specifically invited [counsel for Padilla and Vaught] 

to submit financial records evidencing financial need, and the Government would consider releasing 

attorneys’ fees, without requiring them to request a formal Monsanto hearing from this Court.” (Doc. 

476 p. 17 n. 24). When counsel for Mr. Padilla pursued the government’s apparent offer to “consider 

releasing attorneys’fees,”counsel learned that the government was actually stating only that “CJA panel 

funds” may be available “to supplement attorney fees.” (See email correspondence between counsel 

for Mr. Padilla and counsel for the government, January 23, 2019, attached hereto as Exhibit 1). 

In other words, the government simply referred counsel to the “overworked and underpaid 

public defenders” that the Supreme Court found to be no substitute for a defendant’s retained counsel 

of choice. Luis, 136 S.Ct. at 1095. Indeed, Luis recognized “a substantial risk that accepting the 

Government’s views would -- by increasing the government-paid-defender workload -- render less 

effective the basic right the Sixth Amendment seeks to protect.” Id. This, of course, would also directly 

contravene “the government’s interest that every defendant receives the best possible representation 

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he or she can obtain.” Stein, 541 F.3d at 157. Thus, in addition to the fact that Monsantois an improper 

vehicle for addressing access to funds for counsel of choice in this case, the government’s 

representations about relief under Monsantoring particularly hollow.4

In any event, prior to any Monsanto hearing, the government would be required to identify the 

specific ads that it claims were for prostitution, identify the proceeds from those specific ads, and then 

trace those specific proceeds to the assets it has seized, none of which the government has done to 

date.

B. Defendants Are Entitled to Disclosure of All Communications Relating to the 

Government’s Belated Decision to Seize Attorney Trust Accounts and Disclosure of 

Any Other Cases in the District of Arizona Where There Have Been Post-Indictment 

Pretrial Seizures of Defendants’Attorneys’ Fees.

The government’s response does not address or oppose defendants’request for disclosure of 

communications surrounding the seizures of publishing assets and attorneys’fees post-indictment and 

pre-trial. (Doc. 456 pp. 16-17). Because the government does not oppose this request, the government 

should be ordered to turn over these communications to the defendants. At a minimum, these 

communications should be produced and reviewed by the Court in camera and any records not 

disclosed kept under seal for potential appellate review.

C. The Government Response Misstates the Law Regarding Protected First 

Amendment Activities.

Although the motion did not address the First Amendment issues underlying this case, the 

 4 Indeed, Justice Kagan’s dissent in Luis, 136 S.Ct. at 1112, indicates that the controversial 5-4 Monsanto

decision permitting pretrial seizure of attorneys’ fees was incorrectly decided and is ripe for 

reconsideration. See also Sixth Amendment – Right to Counsel – Scope of Pretrial Asset Freezes -- Luis v. United 

States, 130 Harv.L.Rev. 357, 365 n. 76 (2016) (“interpreting Justice Kagan’s opinion as ‘openly invit[ing] 

future petitioners to make broader arguments and to challenge all pretrial orders freezing assets needed 

to retain counsel,’” citation omitted).

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government devotes five pages of its response to a discussion of these issues in an effort to justify its 

actions, primarily those involving the seizure of assets and proceeds attributable to Backpage. (Doc. 

476 pp. 9-14). This puts the cart before the horse, with the government merely assuming the truth of 

its allegations that all postings on Backpage related to illegal activity, that the defendants are culpable 

for third-party speech, and that the government’s asset seizures are entirely legitimate. By trying to 

divert the Court’s attention from the arguments actually made in the motion and in an effort to reframe 

the question, the government is asking this Court to get out in front of the Ninth Circuit, which 

currently is considering the constitutional validity of the government’s pretrial seizure ofthe publishing 

proceeds.5 The government’s response also appears to anticipate a motion not yet filed or briefed --

that the Superseding Indictment is patently defective because it fails to allege under proper standards 

of mens rea any criminal activity by the defendants for actions and speech of third parties.

In any event, the government’s arguments on this point expose a frail understanding of the 

law that underlies both this misguided prosecution and the government’s abusive tactics. It 

fundamentally distorts the issues by asserting the defendants are claiming First Amendment rights “to 

commit or facilitate criminal activity” and to receive “proceeds of a crime.” (Doc. 476 pp. 10, 13). Both 

propositions fundamentally misstate the constitutional issues in this case, and are irrelevant to the 

motion, which is focused on the government’s efforts to hobble the defense in violation of defendants’

Sixth Amendment rights. However, the government’s discussion of these issues is addressed below so 

that it does not mislead the Court with half-baked notions of how the First Amendment works.

1. The Government Misleadingly Conflates the Speaker and the Platform.

 5 See In the Matter of Seizure of: Any and all funds held in Republic Bank of Arizona Accounts xxxx1889, 

xxxx2592, xxxx1938, xxxx2912, and xxxx2500, No. 18-56455, Doc. No. 27 (9th Cir.) (setting case for 

expedited briefing and argument). See alsoAppellant’s Opening Brief (“AOB”), attached as Exhibit 2.

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The government’s statement that the First Amendment does not protect “speech proposing 

an illegal transaction,” (Doc. 476 p. 10), ignores the fact that Backpage was not the “advertiser,” but 

instead provided a platform for ads posted by others.6 The question of what legal standards apply 

when the government seeks to hold a publisher criminally liable for speech posted by third parties is 

addressed more fully below, but the government’s reliance on Pittsburgh Press Co. v. Pittsburgh Comm’n on 

Human Rights, 413 U.S. 376 (1973), is misplaced. (Doc. 476 p. 10).As with the rest of the government’s 

argument, it begins with the assumption that all ads on Backpage proposed illegal transactions and that 

the defendants knew about particular ads in advance and intended to promote illegal transactions. But 

the Ninth Circuit has held that Pittsburgh Press cannot be read to presume that only illegal speech is 

involved where the government targets commercial speakers. Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 

822 (9th Cir. 2013) (“Nothing in Pittsburgh Press...suggests that we should expand our inquiry beyond 

whether the affected speech proposes a lawful transaction to whether the affected speech is conducted 

in a lawful manner”). Pittsburgh Press involved a newspaper advertising category that on its face violated a 

municipal anti-discrimination ordinance. It would apply to this case only if Backpage had maintained 

a “prostitution” category and accepted ads that had explicit money-for-sex offers, which was never the 

case. Instead, the government merely presumes all ads in the adult categories were for prostitution and 

 6 Backpage.com, LLC v. Cooper, 939 F.Supp.2d 805, 830 (M.D.Tenn. 2013) (“[T]he statute at issue here 

does not criminalize prostitution—it criminalizes the sale or potential sale of advertisements”). 

“Providing a forum for online publishing is a recognized legal purpose.” People v. Ferrer, No. 

16FE024013 (Sup.Ct.Sacramento Cty. Aug. 23, 2017) (“Ferrer II”), slip op. at 13. See also Backpage.com, 

LLC v. Dart, 807 F.3d 229, 230-31 (7th Cir. 2015) (specifically recognizing Backpage as “an avenue of 

expression of ideas and opinions” protected by the First Amendment, including its “classified ads for 

‘adult’services”). See alsoOrder, January 17, 2013, pp. 19-20, In re Grand Jury Subpoenas, Case No. GJ12-

172RAJ (W.D.Wash.), submitted as Exhibit 4 hereto under seal.

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that it may impute the undisclosed intentions of the advertisers to the defendants who ran the platform. 

There is no authority to support this proposition, and many cases conclude the opposite.7

Contrary to the government’s reading of Pittsburgh Press, courts have held that the First 

Amendment bars the government from criminalizing Internet advertising based on the assumption 

that some of the ads may propose illegal transactions. As a consequence, courts invalidated criminal 

laws targeting Backpage in Washington, Tennessee, and New Jersey, affirming that constitutional 

protection extended to Backpage’s role as a platform for speech. Backpage.com, LLC v. McKenna, 881 

F.Supp.2d 1262, 1281-82 (W.D.Wash. 2012); Cooper, 939 F.Supp.2d at 833; Backpage.com, LLC v. 

Hoffman, 2013 WL 4502097 *9 (D.N.J. Aug. 20, 2013).

The government’s citation of United States v. Ulbricht, 31 F.Supp.3d 540 (S.D.N.Y. 2014), United 

States v. Omuro, No. 14-CR-336-WHO (N.D.Cal.), and United States v. Hurant, No. CR 16-45 

(E.D.N.Y.), for the proposition that a website operator “may be prosecuted under federal law for 

knowingly facilitating prostitution” hardly proves its point. (Doc. 476 p. 10). This is just an example of 

a credulous prosecutor who is convinced by his own pleadings and press releases, as none of those 

cases resulted in rulings relevant to the First Amendment issues here.

Two of the government’s citations are to nothing more than plea agreements,8 and the third 

 7 Also, Pittsburgh Press predates both the commercial speech doctrine and the Internet, and subsequent 

decisions illustrate the shallowness of the government’s analysis. Two years after Pittsburgh Press, the 

Supreme Court held the First Amendment protected a publisher in Virginia that ran an advertisement 

for an abortion clinic in New York even though abortions were illegal in Virginia at that time. Bigelow v. 

Virginia, 421 U.S. 809 (1975). The Court held that if the publisher were held responsible for the 

potentially illegal conduct, “[t]he burdens thereby imposed on publications would impair, perhaps 

severely, their proper functioning.” Id. at 829.

8 In Omuro, No. 14-CR-336-WHO (N.D.Cal.), for example, the defendants pled guilty to charges of 

promoting prostitution for their own speech that included reviews of prostitutes and providing advice on 

avoiding law enforcement stings. See Gov’t Sentencing Mem. at 4, Supporting Declaration ¶ 3 (Dkt. 

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actually undermines the government’s position in this case. In Ulbricht, the court denied a motion to 

dismiss an indictment against Ross Ulbricht, the creator of Silk Road, for participating in conspiracies 

for narcotics trafficking, computer hacking and other crimes. 31 F.Supp.3d at 546. The case concerned 

the purchase and sale of “thousands of kilograms of heroin and cocaine” and “malicious software 

designed for computer hacking.” Id. at 549-50. According to the government’s Complaint, the 

defendant “pursued violent means, including the murder-for-hire of several individuals he believed 

posed a threat to [his] enterprise.” Id. at 550. The court specifically noted that the indictment did not 

allege Ulbricht was criminally liable for launching a website that others misused for illicit transactions, 

because “[i]f that were ultimately the case, he would lack the mens rea for criminal liability.”Id. at 556 (emphasis 

added).9 The fact is, the government can cite no decisions to support its novel vicarious liability theory

seeking to hold Backpage liable for third-party content.10

2. The Government Erroneously Conflates Allegations with Judicial Findings.

The government’s claim that this case raises no First Amendment issues (based on allegations 

 

70, 70-1). No First Amendment issue was raised or decided. United States v. Hurant, No. CR 16-45 

(E.D.N.Y.), also involved a plea agreement in which the defendant pled guilty to structuring a website 

with categories for users to list what sex acts they were willing to perform. Again, no First Amendment 

defense was raised, and no ruling issued.

9 Unlike Backpage: the Silk Road website had categories that, on their face, invited ads for unlawful 

activity (e.g., categories for the sale of “cannabis” and “opioids”); users posted thousands of ads that, 

on their face, proposed unlawful transactions (e.g., the sale of “HIGH QUALITY #4 HEROIN ALL 

ROCK” and “5gr UNCUT Crystal Cocaine!!”), with such ads being immediately and prominently 

visible on the site’s homepage; Silk Road did not sell classified ads for a small fee, but rather collected 

a commission of 8% to 15% from every sale; and Silk Road was involved in each sale by escrowing 

payments pending the completion of each transaction. United States v. Ulbricht, 13-mj-02328 (S.D.N.Y.), 

Sealed Complaint, Dkt. 1 (attached as Exhibit 3).

10 Indeed, in previous proceedings in this district before Judge Campbell (that the government had 

unsealed, Doc. 197 p. 11 n. 3), the government conceded that these “cases where website operators 

have been recently criminally prosecuted successfully...aren’t on all fours....” TR, In Re Grand Jury 16-

4, February 22, 2017, p. 10.

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that Backpage hosted onlyspeech relating to unlawful activities) is wrong for multiple reasons, not the 

least of which is that it assumeswhat the government has the burden to prove. While certain narrowlyframed and specifically-defined categories of speech are considered outside the First Amendment’s 

protection, United States v. Sineneng-Smith, 910 F.3d 461, 470 (9th Cir. 2018), speech is presumed to be 

protected and must be treated as such until the government has proved its case. Ashcroft v. ACLU, 535 

U.S. 564, 573 (2002). The burden of proof is on the government and these limits are strictly enforced.11

“The government may not suppress lawful speech as a means to suppress unlawful speech. Protected 

speech does not become unprotected merely because it resembles the latter. The Constitution requires 

the reverse.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002).12 The government’s assumption 

that adult oriented ads can be equated with or assumed to be ads for illegal transactions also betrays a 

profound ignorance of First Amendment principles.

Of particular relevance here, the First Amendment prohibits the government from declaring 

that online classified ads for adult services or escorts are unprotected simply because a government 

investigator (or a prosecutor) believes they “look like” ads for illegal prostitution.13 Backpage.com, LLC 

 11 This is true for every category of “unprotected” speech. E.g., New York Times Co. v. Sullivan, 376 U.S. 

254, 279-80 (1964) (public officials must prove falsity of speech and actual malice to recover damages 

for defamation); Miller v. California, 413 U.S. 15, 23-25 (1973) (government must show that work, taken 

as a whole, meets three-part test to be considered obscene); Brandenburg v. Ohio, 395 U.S. 444, 447-49 

(1969) (government must prove that speaker intended to provoke commission of crime and that 

speech was likely to produce imminent crime to be considered incitement).

12 See United States v. Playboy Entm’t. Group, Inc., 529 U.S. 803, 816 (2000) (“When the Government 

restricts speech, the Government bears the burden of proving the constitutionality of its actions.”); id. 

at 818 (“When First Amendment compliance is the point to be proved, the risk of 

nonpersuasion...must rest with the Government, not with the citizen.”); Bd. of Trustees v. State Univ. of 

N.J. v. Fox, 492 U.S. 469, 480 (1989) (“the State bears the burden of justifying its restrictions”).

13 The government doubles down on this error by also claiming Backpage violated the law by 

publishing ads copied from “other prostitution websites” (the government does not identify any such 

sites in its response, but has identified Craigslist.org as one such website) and by paying a fee to advertise 

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v. Dart, 807 F.3d 229, 234 (7th Cir. 2015). Yet that is the mistaken premise of the government’s case, 

despite the fact that every court to address this question has held that it cannot presume such ads are 

unprotected.14 The government tries to explain away these cases with a blanket assertion (without

citation or explanation) that the holdings only related to state civil cases that addressed the question of 

statutory immunity under Section 230 of the Communications Decency Act. (Doc. 476 p. 11). This is 

wrong both as a matter of fact and law for several reasons:

• First, cases holding that the First Amendment prohibits equating escort or other adultoriented ads with prostitution have included state criminal laws, threats of law 

enforcement action, and actual prosecutions. E.g., McKenna, 881 F.Supp. at 1282;

Cooper, 939 F.Supp. at 816, 833-34; Hoffman, 2013 WL 4502097 at *9-11; Dart, 807 

F.3d at 234; Ferrer II, slip op. at 13.

• Second, even where this issue was addressed in civil cases, courts were addressing the 

constitutional issue that prohibits the government (or a private litigant) from assuming 

that adult or escort ads are unprotected by the First Amendment. E.g., Doe v. 

Backpage.com LLC, 104 F.Supp.3d at 156-157; M.A. v. Village Voice Media Holdings, 809 

F.Supp.2d at 1049-50; Dart v. Craigslist, Inc., 665 F.Supp.2d at 968.

• Third, this is nothing but a strawman argument – the government is responding to a 

point that was not made. The defendants cited these cases because of their First 

Amendment holdings and analysis, not because of any conclusions regarding Section 

230.

The government also seeks to distinguish the First Amendment cases by asserting that “nearly 

all” of the case law cited was from a time before the release of the U.S. Senate’s Permanent 

 

on The Erotic Review – presuming the content on those other websites was also unlawful.

14 See, e.g., Doe v. Backpage.com LLC, 104 F.Supp.3d 149, 156-157 (D.Mass. 2015), aff’d, 817 F.3d 12 (1st 

Cir. 2016) (“The existence of an escorts section in a classified ad service, whatever its social merits, is 

not illegal”); McKenna, 881 F.Supp. at 1282 (escort ads have long been permitted and escort services are 

licensed and regulated in many states); Cooper, 939 F.Supp. at 816, 833-34 (ads on Backpage are 

protected speech under the First Amendment); Hoffman, 2013 WL 4502097, at *9-11 (rejecting 

argument that escort ads on the website are unprotected speech); M.A. v. Village Voice Media Holdings, 

LLC, 809 F.Supp.2d 1041, 1049-50 (E.D.Mo. 2011). See also Dart v. Craigslist, Inc., 665 F.Supp.2d at 

968 (“We disagree...that the ‘adult services’ section is a special case. The phrase ‘adult,’ even in 

conjunction with ‘services,’ is not unlawful in itself nor does it necessarily call for unlawful content”).

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Subcommittee on Investigations report on Backpage (“PSI Report”). (Doc. 476 p. 11). Apart from the 

fact that a congressional report cannot trump judicial holdings based on constitutional principles, it 

overlooks the decision in Ferrer II, issued August 23, 2017 --months after the PSI Report--in which the 

court dismissed claims that defendants “conspired to create and organize a website that facilitates sex 

trafficking.” Ferrer II, slip op. 1. The court rejected charges based on Backpage’s alleged “editing” of 

ads on the site through “a moderation system where terms would be deleted or blocked...but the user 

would still be allowed to post [to]...and compensate” the site, holding that “such actions generally fall 

within the scope of protected editorial functions.” Id. 13-14. Although the court applied Section 230 

to dismiss the indictment, it explained that this “broad” immunity derives directly from Congress’

intent to protect the First Amendment rights of online publishers, to relieve them of liability for 

publishing third-party speech. Id. at 11.15

Without getting into any specifics, the government claims that the PSI Report supports its 

conclusions, and that “incriminating Backpage documents” were produced in the report’s Appendix. 

(Doc. 476 p. 11). However, as shown in the pending Ninth Circuit appeal, the documents the 

government cites are more exculpatory than “incriminating.”16 All of this is beside the point in any 

event, because a congressional report cannot be used as a proxy for a judicial finding of guilt.17

 15 The Ferrer II court also held that deleting terms to “sanitize” ads is not a “material contribution to 

the offensive content.” Id. 14 (“[D]elet[ing] or block[ing] words that were code of underage girls, but 

allow[ing] the ad[] to be posted for a fee” does not “constitute[] ‘material contribution’ to [] offensive 

material”). Additionally, it held Section 230 immunity could not be lost based on “overall course of 

conduct,” especially where Backpage did nothing to “require” offensive content, or based on 

allegations that the site “‘manipulated’ advertisements to evade law enforcement detection.” Id. 16-17. 16 See AOB, pp. 12-13, 42 n. 29. The government misrepresented the contents of the documents and 

deleted references that showed Backpage’s policy was to delete ads that included clear references to 

prostitution.

17 The government also cites the now vacated district court ruling to enforce the PSI subpoena, (Doc. 

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Moreover, congressional “findings” can hardly establish whether a publishing venture is 

constitutionally protected, particularly where, as here, there has been no adversary proceeding and no 

judicial findings. See, e.g., Blount v. Rizzi, 400 U.S. 410, 416-22 (1971) (burden is on the government to 

initiate prompt adversarial proceeding and prove material at issue is unprotected expression).

The question for congressional materials like the PSI Report is not whether they could ever be 

sufficient to establish guilt or determine the First Amendment status of a publisher, but whether they 

are even relevant or admissible in a judicial proceeding. Such reports are commonly excluded from 

judicial consideration, as they represent “heated conclusions of a politically motivated hearing.” Baker 

v. Firestone Tire & Rubber Co., 793 F.2d 1196, 1199 (11th Cir. 1986). Courts generally do not consider 

whether such a congressional document can be incorporated into pleadings—they examine whether 

it should be considered at all, and when they are not trustworthy, they are rejected. E.g., Pearce v. E.F. 

Hutton Grp., Inc., 653 F.Supp. 810, 813-16 (D.D.C. 1987) (“Given the obviously political nature ..., it 

is questionable whether any report by a committee or subcommittee of [Congress] could be 

admitted...against a private party”); Bright v. Firestone Tire & Rubber Co., 756 F.2d 19, 22-23 (6th Cir. 

1984) (per curiam) (excluding House subcommittee report as inadmissible).

The same goes for the government’s attempt to rely on Carl Ferrer’s plea agreement to support 

its assumption that it has proven its case. (Doc. 476 pp. 2-3, 13). As a matter of black letter law, the 

guilty plea or conviction of a codefendant “may not be used by the government and received over 

objection as substantive evidence of the guilt of those on trial.” U.S. v. Halbert, 640 F.2d 1000, 1004 

 

476 p. 11), but that case dealt only with congressional authority to conduct an investigation and reached 

no findings on the ultimate question of Backpage’s First Amendment status (as the government 

misleadingly suggests).

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(9th Cir. 1981). While the government may try to rely on Ferrer’s statements if there is ever an adversary 

hearing on the constitutional status of Backpage as a publishing platform, the fact that no such hearing 

has been held is fatal to the government’s First Amendment argument. E.g., Blount, 400 U.S. at 416-22. 

Even if such a hearing had been convened, the government would be unable to overcome the 

presumption of constitutional protection merely by pointing to Ferrer’s plea deal, because such 

statements are “presumptively unreliable,” “presumptively suspect,” and “less credible than ordinary 

hearsay.”Lee v. Illinois, 476 U.S. 530. 541 (1986). This is because “plea agreement[s] may adopt facts the 

government wants to hear in exchange for some benefit.” United States v. Vera, 893 F.3d 689, 692-93 

(9th Cir. 2018). Cf. Bruton v. United States, 391 U.S. 123 (1968) (admission of co-defendant’s confession 

inculpating defendant constitutes reversible error, despite limiting jury instruction). Moreover, just as 

the government cannot declare online classified ads for adult services or escorts as unprotected because 

a government investigator (or a prosecutor) believes they “look like” ads for illegal prostitution, it also 

cannot prove that such ads are unprotected through testimony from Ferrer about his assumptions 

about the undisclosed intentions of the users who posted millions of ads on Backpage.

3. Mens Rea

The government’s attempt to rely on plea agreements underscores another basic flaw both in 

its indictment of these defendants but also in its approach to the First Amendment issues raised by this 

prosecution --it fails to allege the mens rea necessary to establish a criminal act. The government alleges 

the defendants knew that Backpage was used by third parties for purposes of prostitution, (Doc. 476 

p. 12), but this hardly suffices. Doe v. GTE Corp., 347 F.3d 655, 659 (7th Cir. 2003) (“Even entities that 

knowthe information’s content do not become liable for the sponsor’s deeds. Does a newspaper that 

carries an advertisement for “escort services” or “massage parlors” aid and abet...prostitution, if it 

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turns out that some (or many) of the advertisers make money from that activity? How about Verizon, 

which furnishes pagers and cell phones to drug dealers...?”); In re Aimster Copyright Litig., 334 F.3d 643, 

651 (7th Cir. 2003) (“A retailer of slinky dresses is not guilty of aiding and abetting prostitution even if 

he knows that some of his customers are prostitutes....”); Dart v. Craigslist, 665 F.Supp.2d at 967 

(providing a platform for the speech of someone who might commit illegal acts “does not satisfy the 

ordinary understanding of culpable assistance to a wrongdoer”).

The essential premise of the indictment is that Backpage “facilitated” prostitution generally 

through its overall editorial policies, but it fails even to allege the necessary mens rea as to any specific 

acts. As the government has admitted in other cases, it has the obligation to prove not just that the 

defendants knew that particular adswere for prostitution, but also that the defendants had the specific intent 

to facilitate those particular actsof prostitution. In Woodhull Freedom Foundation v. United States, the government 

argued that, for prosecutions under the Travel Act, the prosecutor must prove “not simply that the 

defendant was aware of a potential result of the criminal offense, but instead that the defendant 

intended to ‘explicitly further[]’ a specified unlawful act.”Woodhull Freedom Foundation v. United States, 334 

F.Supp.3d 185, 199-201 (D.D.C. 2018). The court agreed with the government and held that the law 

applies only to “specific unlawful acts with respect to a particular individual, not the broad subjectmatter of prostitution.” Id.

18

 18 Likewise, in Backpage.com, LLC v. Lynch, 216 F.Supp.3d 96 (D.D.C. 2106), the Justice Department 

argued that for a conviction under 18 U.S.C. § 1591, “[e]ven if an advertisement for illegal sex trafficking 

appeared on [its] website, an operator could not be convicted under [the law] without proving that [it] knew

that the advertisement at issue related to illegal sex trafficking of a minor or of a victim of force, fraud, 

or coercion.” DOJ’s Reply in Support of Motion to Dismiss at 7-8, Backpage.com, LLC v. Lynch, No. 

1:15-2155 (RBW), ECF No. 13 (emphasis added). Once again, the district court accepted the 

government’s interpretation of the statute. 216 F.Supp.3d at 107.

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This issue of mens rea goes to the heart of the government’s erroneous First Amendment 

assumptions. Not only is specific intent an essential element of a criminal prosecution in any Travel 

Act prosecution, it is particularly important where the government is seeking to prosecute a publisher 

for hosting third party speech. In this case, however, the government has argued that it may prosecute 

based on a theory of generalized knowledge. See, e.g., Statement of AUSA Andrew Stone, Oct. 5, 2108 

Tr. 102:9-14 (“[W]hat’s at issue in this case [is] [d]id they know that the vast majority of these 

advertisements that went up on this Web site were for prostitution?”).19 This does not come close 

even to alleging the necessary mens rea, particularly in this First Amendment context.

The government’s theory is equivalent to asserting it may assume the guilt of a bookstore 

owner under obscenity law because the store stocks adult publications. But such an assumption is never

permissible. It is a basic proposition of First Amendment law that the government cannot criminally 

punish publishers or distributors of speech without sufficient proof of scienter, i.e.,that a defendant knew 

the specificspeech that is the basis for criminal charges was unlawful and had specific intent to violate the 

law. Smith v. California 361 U.S. 147, 153-154 (1959) (striking down ordinance imposing criminal 

sanctions on the sale of obscene books without any required scienter, because absentproof that a seller 

had knowledge, “he will tend to restrict the books he sells” and the law would “impose a severe 

limitation on the public’s access to constitutionally protected matter”).20 Astonishingly, the 

 19 See also Doc. 456, Ex 7. AUSA Kevin Rapp letter to Michael Piccarreta, 11/29/18, p. 3 (“Here, 

because of the aggregation, affiliation, and reciprocal link ventures and other conduct summarized 

above, Backpage knew that every ad had the potential for facilitating prostitution services, including child 

sex trafficking”).

20 See also Mishkin v. New York 383 U.S. 502, 511 (1966) (“[t]he Constitution requires proof of scienter 

to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the 

ambiguities inherent in the definition of obscenity”); United States v. X-Citement Video, Inc. 513 U.S. 64, 

78 (1994) (Court interpreted a federal statute prohibiting interstate transfer of child pornography to 

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government fails even to allege a single instance involving any advertisement where the standard for 

mens reawould be satisfied.

4. The First Amendment and “Proceeds of Crime.”

The government’s argument that defendants have no right to the “proceeds of crime” begins 

with the same false assumption that it may assume in advance that all of the postings on Backpage 

were for illegal transactions. Not only does this assumption lack any legal basis, but the government is 

asking this Court to prejudge the very issue currently pending in the Ninth Circuit. SeeAOB at 28-40. 

As set forth in the defendants’ brief on appeal, mere probable cause is insufficient to justify pretrial 

seizures of publishing assets or proceeds. See, e.g., Fort Wayne Books, Inc. v. Indiana, 489 U.S. 63 (1989); 

Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105 (1991); American 

Library Ass’n v. Thornburgh, 713 F.Supp. 469, 484 n.19 (D.D.C. 1989) (“pre-trial seizure of nonexpressive material [including printing presses, bank accounts, etc.] ex partefrom a business engaged in 

distributing expressive material also is unconstitutional”), rev’d on standing grounds sub nom. American Library 

Ass’n v. Barr, 956 F.2d 1178, 1194-96 (D.C. Cir. 1992).

The government asserts that these cases do not apply because they relate only to seizures of 

expressive materials or to assets of “an ongoing business,” and that “Backpage has effectively ceased 

operations and is no longer in the publishing business.” (Doc. 476 p. 13). Not only is this wrong on 

the law, as the cases make clear that seizing the proceeds of publishing is independently 

unconstitutional, it blunders into conceding the government has engaged in prior restraint by seizing 

 

require that the government prove a defendant had knowledge of “both...the sexually explicit nature 

of the material and...the age of the performers,” because a lack of such scienter requirements “would 

raise serious constitutional doubts”).

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and closing down the second largest classified ad website on the Internet. The government argues that 

Backpage had “already” closed down, (Doc. 476 p. 13 n. 19),

21 but it did so only because the government 

seized all its assets.

22 Its claim that defendants have not identified cases holding it is improper to “seize 

the proceeds of a business that constituted a criminal enterprise,” (Doc. 476 p. 13 n. 19), is false. See, 

e.g., Vance v. Universal Amusement Co., 445 U.S. 308, 315-16 (1980) (invalidating nuisance abatement law 

authorizing business closure prior to final adjudication); Spokane Arcades, Inc. v. Brockett, 631 F.2d 135, 

138-39 (9th Cir. 1980), aff’d mem., 454 U.S. 1022 (1981) (same). Once again, the government tries to 

justify its actions by assuming the very thing it must prove at trial.

III. If this Court Does Not Dismiss the Indictment Against these Defendants, Counsel 

for Defendants Request this Court to Issue Its Order Permitting Them to Withdraw.

The government’s conduct in seizing attorney IOLTA trust accounts has rendered defendants 

Padilla and Vaught indigent and unable to continue to fund their counsel. The government’s conduct 

is the direct cause of defendants being without funds to continue to retain counsel and constitutes 

changed circumstances in the case necessitating counsel’s withdrawal. If the Court denies the present 

motion, undersigned counsel respectfully request this Court to its issue its order allowing them to 

withdraw from the case and appointmentof the Federal Public Defender or experienced counsel from 

the Criminal Justice Act panel for the District Court in Phoenix.23

 21 This assertion is belied by the first paragraph of the indictment which states that Backpage was “shut 

down by federal law enforcement authorities in April 2018....” (Doc. 230 ¶ 1).

22 Disposition of the website and related assets remains a live issue because the corporate entities of 

the co-defendants in this case hold a lien on all the assets of Backpage and its affiliates. The First 

Amendment issue is not moot where resumption of a closed business is possible once the cloud over 

the assets is lifted. See City of Erie v. Pap’s A.M., 529 U.S. 277, 288 (2000).

23 Defendants Padilla and Vaught will submit evidence of their indigency to the Court under seal, 

signed consents to withdraw as attorney of record, and applications and proposed orders in compliance 

with LRCrim 57.14 and LRCiv 83.3.

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IV. CONCLUSION

The government has engaged in a very successful litigation strategy, the results of which have 

impacted and violated defendants’ Sixth Amendment right to counsel and Fifth Amendment due 

process of law. The strategy includes: 1) seizing company First Amendment proceed assets without 

holding an adversary hearing or tracing of the assets at the initiation of the case; 2) permitting 

defendants who would give up their constitutional rights to maintain company assets to pay their 

counsel of choice while seizing the same assets from presumed-innocent defendants who decline to 

resolve the case and choose to exercise their constitutional rights; 3) the unsuccessful filing of conflict 

motions to remove First Amendment counsel and then seizing of their trust accounts in the midst of 

litigation; and 4) the seizure seven months post-indictment of attorney trust account funds that were 

advanced to defendants Vaught and Padilla to defend this case, leaving them without the necessary 

funds to defend themselves. Accordingly, the indictment must be dismissed.

RESPECTFULLY SUBMITTED this 20th day of March, 2019.

PICCARRETA DAVIS KEENAN FIDEL PC

By: /s/ Michael L. Piccarreta

Michael L. Piccarreta

Attorney for Defendant Andrew Padilla

KARP & WEISS, P.C.

By: /s/ Stephen M. Weiss

Stephen M. Weiss

Attorney for Defendant Joye Vaught

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CERTIFICATE OF SERVICE

I hereby certify that on the 20th day of March, 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:

Reginald Jones: Reginald.Jones@usdoj.gov

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

John Kucera: John.Kucera@usdoj.gov

Margaret Perlmeter: Margaret.Perlmeter@usdoj.gov

Kevin Rapp: Kevin.Rapp@usdoj.gov

Andrew Stone: Andrew.Stone@usdoj.gov

Thomas Bienert: tbienert@bmkattorneys.com

Paul Cambria: pcambira@lglaw.com

Robert Corn-Revere: bobcornrevere@dwt.com

Bruce Feder: bfeder@federlaw.com

James Grant: jimgrant@dwt.com

Michael D. Kimerer, mdk@kimerer.com

Gary Lincenberg: glincenberg@birdmarella.com

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