1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30

31

1

Bruce Feder (AZ Bar No. 004832)

FEDER LAW OFFICE, P.A.

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

Telephone: 602.257.0135

bf@federlawpa.com

Knapp Counsel for Scott Spear

Eric W. Kessler, Esq. (AZ Bar No. 009158)

KESSLER LAW GROUP

9237 E. Via De Ventura

Suite 230

Scottsdale, AZ 85258

Telephone: 480.644.0093

Eric@kesslerlawgroup.net

Attorneys for Scott Spear

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA 

United States of America,

Plaintiff,

vs.

Scott Spear, et al., 

 

Defendants.

Case No. CR18-00422-PHX-DJH-003

DEFENDANT SPEAR’S RESPONSE 

TO GOVERNMENT’S MOTION FOR 

PROTECTIVE ORDER (DKT. 1948)

(ORAL ARGUMENT REQUESTED)

(Assigned to the Hon. Diane J. Humetewa)

The Court should deny the government’s motion for a protective order because: 

1) the government has failed to provide an evidentiary basis to support any of 

substantive requirements to bar public access to documents from a criminal 

proceeding; 

2) the government’s post-trial request to seal exhibits that were displayed to all in 

the courtroom during the trial is untimely; and 3) the protective order the 

Case 2:18-cr-00422-DJH Document 1982 Filed 11/19/23 Page 1 of 12
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30

31

2

government seeks is not narrowly tailored to protect any legitimate privacy 

interests and there are far less restrictive alternatives that would adequately protect 

any compelling interest the government could possibly demonstrate. 

I. This Country Has a Historic Tradition of Open Trials. 

From the very founding of this country, trials have been free and open, to promote 

both the fairness of the proceedings and confidence in the system: 

The open trial thus plays as important a role in the 

administration of justice today as it did for centuries before 

our separation from England. The value of openness lies in 

the fact that people not actually attending trials can have 

confidence that standards of fairness are being observed; the 

sure knowledge that anyone is free to attend gives assurance 

that established procedures are being followed and that 

deviations will become known. Openness thus enhances both 

the basic fairness of the criminal trial and the appearance of 

fairness so essential to public confidence in the system.

Press-Enterprise Co. v. Sup. Ct. of Calif., 464 U.S. 501, 508 (1984) (“Press-Ent. I”). 

Despite the historic tradition, not until its decision in Richmond Newspapers, Inc. v. 

Virginia, 448 U.S. 555 (1980), did the Supreme Court “firmly establish[] for the first 

time that the press and general public have a constitutional right of access to criminal 

trials.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603 (1982) (emphasis 

added).

That constitutional right of access is grounded in part in the First Amendment. In 

Globe Newspaper, the Supreme Court said:

Two features of the criminal justice system, emphasized in the 

various opinions in Richmond Newspapers, together serve to 

explain why a right of access to criminal trials in particular is 

properly afforded protection by the First Amendment. First, 

the criminal trial historically has been open to the press and 

general public. ... Second, the right of access to criminal trials 

plays a particularly significant role in the functioning of the 

judicial process and the government as a whole. Public 

scrutiny of a criminal trial enhances the quality and safeguards 

Case 2:18-cr-00422-DJH Document 1982 Filed 11/19/23 Page 2 of 12
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30

31

3

the integrity of the factfinding process, with benefits to both 

the defendant and to society as a whole.

Globe Newspaper, 457 U.S. at 604. 

The constitutional right of access also is grounded in part in the Sixth 

Amendment, which provides: “In all criminal prosecutions, the accused shall enjoy the 

right to a speedy and public trial...” Press-Enterprise Co. v. Superior Court, 478 U.S. 

1, 7 (1986) (“Press-Ent. II”) (“[T]he explicit Sixth Amendment right of the accused is 

no less protective of a public trial than the implicit First Amendment right of the press 

and public. When the defendant objects to the closure of a suppression hearing, 

therefore, the hearing must be open unless the party seeking to close the hearing 

advances an overriding interest that is likely to be prejudiced.”) (internal citation and 

quotation marks omitted). 

The constitutional right of access extends not only to access to proceedings, but 

also to exhibits introduced at trial. In re Bard IVC Filters Products Liability Litigation, 

No. MDL 15-02641-PHX DGC, 2019 U.S. Dist. LEXIS 6124 at *267-68, 273-74 (D. 

Ariz. Jan. 11, 2019) (denying post-trial motion to seal trial exhibits, holding: 

“Historically, courts have recognized a ‘general right to inspect and copy public records 

and documents, including judicial records and documents.’ ... Case law clearly 

recognizes that transcripts of court proceedings and exhibits presented in open court 

constitute judicial records for purposes of the public right of access. ...”).1

1

 Accord Littlejohn v. BIC Corp., 851 F.2d 673, 678-679 (3rd Cir. 1988) (“[T]he public’s 

common law right of access to judicial proceedings and records ... ‘is beyond dispute.’ 

Access means more than the ability to attend open court proceedings; it also 

encompasses the right of the public to inspect and to copy judicial records. The right, 

which antedates the Constitution based upon both ‘historical experience and societal 

utility.’ The public’s exercise of its common law access right in civil cases promotes 

public confidence in the judicial system by enhancing testimonial trustworthiness and 

the quality of justice dispensed by the court. As with other branches of government, the 

bright light cast upon the judicial process by public observation diminishes possibilities 

for injustice, incompetence, perjury, and fraud.”) (internal citations omitted).

Case 2:18-cr-00422-DJH Document 1982 Filed 11/19/23 Page 3 of 12
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30

31

4

II. The Presumption of Openness Can Be Overcome Only Based on a 

Compelling Governmental Interest and Only With Narrowly Tailored 

Restrictions.

Closed court proceedings “must be rare and only for cause shown that outweighs 

the value of openness.” Press-Ent. I at 509. “Under the first amendment, the press and 

the public have a presumed right of access to court proceedings and documents.” 

Oregonian Publ. Co. v. United States Dist. Ct., 920 F.2d 1462, 1465 (9th Cir. 1990). 

To overcome the presumption of openness, a party seeking to restrict access must 

prove an “overriding interest based on findings that closure is essential to preserve 

higher values and is narrowly tailored to serve that interest.” Press-Ent. I, at 509.

General claims of harm will not suffice; the movant must articulate the harm with 

specificity and the court must make “findings specific enough that a reviewing court can 

determine whether the closure order was properly entered.” Id. In Globe Newspaper, 

the Supreme Court held:

“[T]he circumstances under which the press and public can be 

barred from a criminal trial are limited; the State’s justification 

in denying access must be a weighty one. Where ... the State 

attempts to deny the right of access in order to inhibit the 

disclosure of sensitive information, it must be shown that the 

denial is necessitated by a compelling governmental interest, 

and is narrowly tailored to serve that interest.”

Globe Newspaper, 457 U.S. at 606-07.

Procedurally, before a court may close a criminal proceeding, it must first provide 

those excluded a reasonable opportunity to state their objections and the reasons 

supporting closure must be articulated in findings. Oregonian Publ., 920 F.2d at 1466. 

Substantively, the “Supreme Court has made clear that criminal proceedings and 

documents may be closed to the public without violating the first amendment only if 

three substantive requirements are satisfied: (1) closure serves a compelling interest; (2) 

there is a substantial probability that, in the absence of closure, this compelling interest 

Case 2:18-cr-00422-DJH Document 1982 Filed 11/19/23 Page 4 of 12
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30

31

5

would be harmed; and (3) there are no alternatives to closure that would adequately 

protect the compelling interest.” Id. A court cannot “base its decision on conclusory 

assertions alone, but must make specific factual findings.” Id. “The party seeking access 

is entitled to a presumption of entitlement to disclosure,” while the party seeking to block 

access has the burden “to present facts supporting closure and to demonstrate that

available alternatives will not protect his rights.” Id. at 1467. 

In Oregonian Publishing, the district court granted a motion to seal a plea 

agreement on drug trafficking charges, over the objection of the newspaper, after 

concluding that disclosure of the plea agreement and related documents would place the 

defendant and his family at a risk of harm, because the defendant was cooperating with 

the government. The newspaper petitioned the Ninth Circuit for a writ of mandamus to 

compel access to the plea agreement. The Ninth Circuit granted the writ, holding that 

the district court “clearly erred as a matter of law in making its closure orders” because 

there “was no evidentiary support for” the district court’s conclusion, which “was not 

supported by any factual finding.” Id. at 1467-68. 

The federal statutory bases the government cites to justify the relief it seeks do 

not allow the government to evade its burdens under the First and Sixth Amendments. 

See Globe Newspaper, 457 U.S. at 610-11 (striking down as violative of the First 

Amendment the Massachusetts statute allowing courts to exclude the press and general 

public from the courtroom during the testimony of a victim under the age of 18 of 

specified sexual offenses). 

III. The Government Has Failed to Provide an Evidentiary Basis to Support Any 

of Substantive Requirements to Close Public Access to Documents from a 

Criminal Proceeding.

The government’s motion for a protective order makes various allegations of

interests requiring protection and of the need to protect privacy and to prevent “trauma 

and repeated harm to the victims,” but the government’s allegations all are conclusory 

and are unsupported by any competent evidence. In the absence of evidentiary support 

Case 2:18-cr-00422-DJH Document 1982 Filed 11/19/23 Page 5 of 12
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30

31

6

for the government’s claims, the Court would have no basis on which to make factual 

findings to support any of the three findings it would have to make to restrict access to 

trial exhibits: (1) closure serves a compelling interest; (2) there is a substantial

probability that, in the absence of closure, this compelling interest would be harmed; 

and (3) there are no alternatives to closure that would adequately protect the compelling 

interest. Oregonian Publ., 920 F.2d at 1466.

First, with respect to most of the ads the government seeks to seal, the government 

presented absolutely no evidence at trial that the subjects of the ads were engaged in 

criminal conduct or were the victims of crimes. 

Second, although the Court might reasonably assume from the motion that the 

government is acting the behest of the advertisers whose ads it seeks to seal, that 

assumption would be unwarranted. The defense believes government did not even 

contact many of the advertisers associated with the ads it seeks to seal, as some of them

were shocked when they were contacted by the defense and learned that their ads were 

the basis of the criminal charges in this action. Perhaps the government has standing to 

assert the rights of witnesses who testified at trial and asked the government to do so, 

but the government cannot anoint itself as protector of the rights of anyone who ever 

placed an ad on Backpage.com. 

Third, while the government now identifies each advertiser as a “victim,” during 

the trial the government was characterizing some of those whom it now calls victims as 

criminals with whom Carl Ferrer was conspiring—such as “P.R.” who was 

communicating by email with the carl@backpage.com email address. 

Fourth, the government’s motion seems to presume that the ads it seeks to seal all 

contain personally identifying information, including names, social security numbers, 

addresses, telephone numbers, and images of individuals, but the government failed to 

identify with any particularity any specific information it contends should be protected

(i.e. the specific information in each ad for which there might be a compelling interest 

to preclude access). The testimony at trial established that most advertisers did not use 

Case 2:18-cr-00422-DJH Document 1982 Filed 11/19/23 Page 6 of 12
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30

31

7

their actual names in their ads. The government’s motion did not identify a single ad 

that had the actual name of the person to whom the ad pertained, nor did it provide 

evidence that a fake name used in any ad would be identifying as to a person who might 

qualify as a crime victim. Although the trial testimony of several advertisers established 

that their photos were used in their ads, the trial testimony also established that the 

photos in ads often were not of the person to whom the ad pertained. Redacting a photo 

that did not depict the advertiser would do nothing to protect the identity of the 

advertiser. Most ads contained telephone numbers, but the government provided no 

evidence that the phone numbers in any of the ads it seeks to seal remain valid or that 

those numbers would be identifying as to anyone who might qualify as a crime victim. 

The same is true for email addresses. 

Fifth, the government cannot establish that sealing the numerous trial exhibits it 

obtained from the Internet Archive’s “Wayback Machine” would serve a compelling 

interest, as those ads would remain freely available for anyone to download from the 

Wayback Machine. 

Sixth, the motion presumes that each advertiser desires privacy and needs 

protection, but some former advertisers on Backpage.com have actively sought public 

attention, such as by appearing in a widely distributed movie, agreeing to be the subject 

of a feature article in a national magazine, and by appearing as a paid speaker at 

conferences (with the conferences touting her as having testified “testified in the 

Backpage trial”). The Court cannot simply assume that each advertiser desires privacy 

or that a protective order would be justified for each advertiser. 

Seventh, the government’s motion provided no evidence that any advertiser seeks 

privacy, that any advertiser would be harmed in the absence of a protective order, or that 

the proposed protective order would be the least restrictive means to protect any 

compelling interest the government might show to exist. The fact that each advertiser 

who testified at trial did so in open court, using her actual name, suggests an order 

protecting the names of those advertisers is not needed (or, alternatively, that an order 

Case 2:18-cr-00422-DJH Document 1982 Filed 11/19/23 Page 7 of 12
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30

31

8

targeting names in ads would be either unnecessary or ineffective, or both). 

Finally, it bears noting that the government repeatedly introduced into evidence 

very graphic nude images that never appeared on the Backpage.com website, with no 

apparent concern for the persons depicted in those images. Now the government seeks 

to seal ads with no nudity (e.g., Exs. 212, 212a, 504-509, 511, and 1718-1720) or with 

“Playboy standard” nudity (e.g., Exs. 510, 512, 513), expressing concern for the persons 

depicted in those images. The exhibits with very graphic nude images have marginal, if 

any, relevance to the merits of the government’s charges; the exhibits with no nudity or 

with “Playboy standard” nudity are central to the public’s ability to assess the validity 

of the government’s charges, including its claims that the ads on Backpage.com were 

obvious prostitution ads and that those ads proposed illegal transactions. The striking 

dissonance certainly begs the question of whether the government’s real concern is 

protecting the people in the images or protecting its prosecution from the scrutiny of the 

press and the public. 

IV. The Government’s Post-Trial Motion is Untimely and the Government 

Waived Its Right to Seek Relief.

If the government had wished to restrict public access to certain testimony or 

exhibits that would be presented at trial, the time to do that would have been before 

trial—or at least before the presentation of the evidence to which it sought to restrict 

access. In re Bard IVC Filters Products Liability Litigation, No. MDL 15-02641-PHX 

DGC, 2019 U.S. Dist. LEXIS 6124 at *267-68, 273-74 (D. Ariz. Jan. 11, 2019) (denying 

post-trial motion to seal trial exhibits, holding: “[B]y permitting the exhibits to become 

public judicial records through their admission into evidence at trial, Defendants waived 

their right to have the exhibits sealed now”); TriQuint Semiconductor, Inc. v. Avago 

Techs. Ltd., CV-09-1531-PHX-JAT, 2012 U.S. Dist. LEXIS 58227 at *21-22 (D. Ariz. 

Apr. 25, 2012) (denying post-trial motions to seal hearing transcripts, holding: “In sum, 

the Court will deny the parties’ backdoor attempts to seal the courtroom ....[N]either 

party made any request prior to the proceeding to restrict public access to the proceeding. 

Case 2:18-cr-00422-DJH Document 1982 Filed 11/19/23 Page 8 of 12
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30

31

9

Nor did the parties take any steps to limit or object to the public disclosure of this 

information at the proceeding. Thus, the parties have already voluntarily ‘let the cat out 

of the bag,’ and this Court is unwilling, let alone able, to undo what is already done. The 

information disclosed at oral argument on January 30, 2012 became public when the 

parties placed it on the record in open court, and it will remain public.”) (cleaned up; 

internal citation omitted).

2

The government provides absolutely no explanation for its untimely request to 

2

 Accord Littlejohn, 851 F.2d at 680 (“It is well established that the release of 

information in open court ‘is a publication of that information and, if no effort is made 

to limit its disclosure, operates as a waiver of any rights a party had to restrict its future 

use.’ ... [W]e hold that BIC’s failure to object to the admission into evidence of the 

documents, absent a sealing of the record, constituted a waiver of whatever

confidentiality interests might have been preserved under the PO.”); Warner Chilcott 

Co., LLC v. Mylan Inc., Civil Action No. 11-6844 (JAP)(DEA), 2014 U.S. Dist. LEXIS 

181576, at *2 (D.N.J. Dec. 10, 2014) (denying post-trial motion to seal portions of trial 

transcript, noting that “[c]ourts have generally denied requests seeking after-the-fact 

sealing of a transcript of a proceeding that was held in open court”); Carnegie Mellon 

Univ. v. Marvell Tech. Group, Ltd., No. 09-290, 2013 U.S. Dist. LEXIS 45050 at *16-

17, 19-20 (W.D. Pa. Mar. 29, 2013) (denying post-trial motion to seal trial exhibits, 

saying: “Previous public disclosure of information in open court, and even outside of 

court, operates to waive any right to seal judicial records containing such information. 

Indeed, with respect to materials used at trial, ‘it is well established that the release of 

information in open court is a publication of that information and, if no effort is made to 

limit its disclosure, operates as a waiver of any rights a party had to restrict its future 

use.’ Once the information has been used at trial, the private interest in secrecy is not to 

be weighed heavily by the Court in its determination of disclosure.... Members of the 

press, attorneys from both parties, witnesses, jury consultants, shadow jurors, and 

numerous interested bystanders, including judges, law clerks, and business lawyers, as 

well as local patent practitioners, attended all or part of this trial, were free to see these 

slides, listen to the relevant testimony, and record any and all information contained 

therein.”) (internal citations omitted); Fleming v. Escort, Inc., No. CV 09-105-S-BLW, 

2013 U.S. Dist. LEXIS 45102 at *10-11 (denying Escort’s post-trial motion to seal 

portions of the trial transcript, holding that ‘judicial records are public documents almost 

by definition, and the public is entitled to access by default” and that ‘Escort purposely 

introduced the financial information as part of its trial strategy’ and the ‘matters were 

discussed on the record during the public trial, and no attempt was made by Escort at 

that time to seal the proceedings or otherwise protect the information from disclosure’).

Case 2:18-cr-00422-DJH Document 1982 Filed 11/19/23 Page 9 of 12
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30

31

10

restrict access to evidence presented at trial. Reporter David Morgan’s request to obtain 

copies of presumptively public records, after they were admitted into evidence and after 

the government “let the cat out of the bag,” hardly justifies the government’s “backdoor 

attempt to seal the courtroom.” TriQuint Semiconductor, 2012 U.S. Dist. LEXIS at 

58227. 

V. The Protective Order the Government Seeks is Not Narrowly Tailored to 

Protect Legitimate Privacy Interests.

If the government sought narrowly tailored relief, such as a) redacting some letters 

or digits from a still active email address or telephone number or b) blurring a face, but 

only in those ads where that information would be identifying and where the evidence 

at trial established the person to be a victim, the government’s motion still would be 

untimely but would present a more plausible case for relief. The government’s motion, 

however, seeks a judicial broadaxe where, at most, a scalpel might be appropriate. 

If the Court is inclined to grant the government any relief, it not only should 

narrow the relief to those exhibits where the government proved the advertiser was a 

crime victim, but the relief should be narrowly tailored to remove only personally 

identifying information (e.g., minor redactions of phone numbers or email addresses, if 

personally identifying, or blurring of images, if personally identifying) and that 

personally identifying information should be specified for each document. With respect 

to the defense or defendants, any relief also should be expressly limited to a) specific 

documents the defense obtained from the government in discovery and b) the trial 

exhibits, such that the relief would not apply to any other documents the defense or 

defendants have from other sources (and there are many such documents). With respect 

to specific documents obtained from the government in discovery, any relief also should 

be limited to a set list of documents that the government has identified by Bates number, 

particularly since many of the documents the government produced in this action are not 

searchable, such that endeavoring to comply with the sweeping order the government 

has proposed could require the manual review of thousands or millions of documents. 

Case 2:18-cr-00422-DJH Document 1982 Filed 11/19/23 Page 10 of 12
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30

31

11

Moreover, as the Court may know, there are pending civil forfeiture actions in the 

Central District of California, there is a pending criminal action in the California 

Superior Court, and there are numerous pending civil actions involving some of or all 

the defendants—including civil actions brought by some of the government’s trial 

witnesses or persons it identified as witnesses but later dropped from its witness list. 

Not only do the constitutional constraints discussed above compel narrowly tailored 

relief, but, if any relief is to be granted, the Court also should narrowly tailor any relief 

to avoid interference with other pending litigation. 

Conclusion

The Court should deny the government’s motion because it has failed to meet its 

burden to obtain the relief and because its request for relief is untimely. If the Court is 

inclined to grant any relief, that relief should be narrowly tailored, as discussed above, 

not the sweeping relief requested by the government. 

RESPECTFULLY SUBMITTED this 19

th day of November, 2023.

FEDER LAW OFFICE, P.A.

s/ Bruce Feder

Bruce Feder

Attorneys for Scott Spear

Case 2:18-cr-00422-DJH Document 1982 Filed 11/19/23 Page 11 of 12
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30

31

4

CERTIFICATE OF SERVICE 

I hereby certify that on November 19, 2023, I electronically transmitted the 

attached document to the Clerk’s Office using the CM/ECF System for filing and 

transmittal of a Notice of Electronic Filing to the CM/ECF registrants who have entered 

their appearance as counsel of record. 

Clerk of the Court

United States District Court

Sandra Day O’Connor U.S. Courthouse

401 W. Washington Street

Phoenix, AZ 85003

Efiling: https://ecf.azd.uscourts.gov/cgi-bin/login.pl

THE HONORABLE DIANE J. HUMETEWA

United States District Court

Email: Humetewa_chambers@azd.uscourts.gov

Kevin Rapp Kevin.Rapp@usdoj.gov

Andrew Stone Andrew.Stone@usdoj.gov

Margaret Perlmeter Margaret.Perlmeter@usdoj.gov

Austin Berry berry2.austin@usdoj.gov

Peter Kozinets Peter.Kozinets@usdoj.gov

Daniel Boyle Daniel.Boyle2@usdoj.gov

Attorneys for United States of America

Gary Lincenberg glincenbrg@birdmarella.com

Gopi Panchapakesan gpanchapakesan@birdmarella.com

Paul Cambria pcambria@lglaw.com

Erin MCCampbell Paris emccampbell@lglaw.com

Joy Malby Bertrand joy.bertrand@gmail.com

David Eisenberg david@deisenbergplc.com

Attorneys for Defendants

By: /s/ M. Evans 

Case 2:18-cr-00422-DJH Document 1982 Filed 11/19/23 Page 12 of 12