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Bruce Feder (AZ Bar No. 004832)

FEDER LAW OFFICE PA

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

DEFENDANT SCOTT SPEAR’S SUPPLEMENT 

TO HIS RULE 29 MOTION CONCERNING 

ALL COUNTS OF CONVICTION, AND 

JOINDER IN RULE 29 SUPPLEMENTS OF 

MICHAEL LACEY AND JOHN BRUNST

 

(Assigned to the Hon. Diane J. Humetewa)

Defendant Scott Spear, by and through his attorneys undersigned, and pursuant to

Rule 29 of the Federal Rules of Criminal Procedure, hereby supplements his verbal 

motions challenging the sufficiency of the evidence as to all counts of the indictment 

and specifically regarding all counts of conviction (Counts 1-18, 52-62, 71-78, 85 & 93), 

and files this supplement to further explain some of the challenged issues. He also joins 

in the supplements filed by defendants Michael Lacey and John Brunst.

 This supplement and the joinders are based on the attached memorandum of 

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points and authorities, the file in this matter and such other arguments and evidence as 

may be presented.

RESPECTFULLY SUBMITTED this 4th day of December, 2023. 

FEDER LAW OFFICE, P.A. 

s/ Bruce Feder 

Bruce Feder

Knapp Counsel for Scott Spear

KESSLER LAW GROUP

s/ Eric Kessler 

Eric Kessler

Attorneys for Scott Spear

MEMORANDUM OF POINTS AND AUTHORITIES 

I. FACTUAL BACKGROUND. 

 The defendants were originally indicted 3/28/2018 and a superseding indictment 

was filed 7/25/2018. Although the alleged Travel Act conspiracy asserts a beginning/end 

date of 2004-2018, the 50 specific ads in counts 2-51 are dated beginning 9/10/2013, 

and within the applicable five year Statute of Limitations allowed by 18 U.S.C. § 3282. 

Of these 50 ads, Mr. Spear was convicted of counts 2-18, which ads are dated from 

9/10/2013 to immediately before the sale of Backpage to Carl Ferrer in April, 2015

(attached as Exhibits 1A-R). A review of these ads indicates: none contain GFE or PSE. 

Two contain the words ’In call’. Eight others contain the words ’50 or 75 roses’. Four

others contain the words ‘new in town’. None of these ads contain any sex act terms or 

acronyms, nor do they propose any illegal sex act. All ads state an age for the 

advertiser/poster of 18 years or older. 

 A review of the trial transcripts and exhibits indicates there was no testimony or 

exhibit which asserts or demonstrates that any defendant, including Mr. Spear, or even 

cooperators Carl Ferrer or Dan Hyer, ever had any contact with any of the advertisers in 

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these counts or any other counts. There was no testimony or exhibit that indicates any 

of the defendants, or Ferrer or Hyer, ever saw any of these ads, or knew their content. 

Also, there was no testimony or exhibit that indicated any of these ads were ever 

moderated in any fashion, were the result of aggregation, were posted by or otherwise 

associated with an alleged ‘super poster’ or ‘affiliate’. There was no testimony or exhibit 

that indicates these ads were in any way associated with The Erotic Review (‘TER’), or 

any number associated with TER. This absence is consistent with the testimony of Ferrer 

and Hyer that moderation was completely controlled by Elizabeth McDougal as of April 

2012, and that aggregation, super posters, and affiliates was no longer existent as of 

2012. Although the allowance of TER numbers was apparently allowed in ads after 

Ferrer’s purchase of Backpage in 2015, there was no ad that Mr. Spear was convicted of 

that has any reference to TER or a TER number. There was no testimony, admitted 

exhibit, or, most importantly, expert testimony that moderation, aggregation, super 

posters, affiliate programs, or TER was an illegal program, practice, or organization. 

 A review of the admitted exhibits indicates no internal budget or other type of 

meeting or itinerary where Mr. Spear was present after 1/1/2013 nor any external 

meetings with state prosecutors, non-profits(NCMEC, etc.), or the media after 1/1/2013. 

 Although it was clear from the nature and extent of Ferrer’s and Hyer’s testimony that 

they were willing to assert almost anything to substantiate the prosecution theory or 

requests, there was no testimony that either Ferrer, Hyer or both ever discussed between 

themselves, or with any defendant, the overt agreement to violate the charged travel act 

or the money laundering statutes. There were no emails or other written 

exhibits discussing the same. 

 In regard to the money laundering counts of conviction against Mr. Spear (Counts 

52-62,71-78, 85 & 93), the only testimony or admitted exhibit indicates Mr. Spear was 

paid from the Cereus account directly to his and his spouse’s (Ellon Spear) National 

Bank of Arizona accounts existing in their names, and that any transfers from this 

account was to accounts also in their names(to an interest bearing account in their names 

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or for a Section 529 education account for their daughter). There was no evidence of any 

action or effort to hide or obscure in any way the receipt of payments from any account 

associated with Backpage or Ferrer. 

Following the conclusion of the government’s case, Defendant Scott Spear orally 

moved for a judgment of acquittal on all counts. The Court reserved decision on the 

motion and has not yet ruled. Meanwhile, the jury acquitted Spear on thirty-three of 

fifty counts of violating the Travel Act (Counts 19-51) and six counts of International 

Promotional Money Laundering (Counts 63-68), while convicting him of conspiracy to 

violate the Travel Act (Count 1), seventeen counts of violating the Travel Act, conspiracy

to commit money laundering (Count 52), and Transactional Money Laundering (Counts 

53-62, 71-78, and 93). Spear’s convictions are legally unsupportable and based on 

insufficient evidence. This brief supplements Spear’s previous arguments considering 

the government’s closing argument and the verdict.

II. THE LAW.

 

a. There Was Insufficient Evidence Admitted Against Mr. Spear To 

Support Any Conviction. 

 A review of the evidence admitted, both from testimony and exhibits 

demonstrates there was virtually no evidence indicative of criminality submitted against 

Mr. Spear to justify the convictions. There is no better demonstration of this evidentiary 

absence than reviewing the exhibits the prosecution referenced in its rebuttal closing 

argument as being its best evidence. Mr. Berry referenced exhibits 19, 23, 652A, 684A 

and 804 for Mr. Spear (RT 11/1/2023, pgs. 38:20-25 and 39:1-19). A review of these 

exhibits, attached as exhibits 2A-E, indicates: all are dated before 2012, none 

demonstrate any actions taken by Mr. Spear, none demonstrate any statements made by 

Mr. Spear that is inculpatory or indicates any specific intent to commit a travel act 

conspiracy or substantive act or a money laundering conspiracy or substantive act, and 

none indicate the commission of any crime by any of the defendants or anyone else. 

 In Jackson v. Virginia, 443 U.S. 307, 318-19 (1079), the Supreme Court asserted 

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that the issue determined by a Rule 29 motion is whether” ...after viewing the evidence 

in the light most favorable to the prosecution, any rational trier of fact could have found 

the essential elements of the crime beyond a reasonable doubt.” As discussed below in 

the subsection on the preclusive effect of the applicable statute of limitation, there was 

virtually no evidence against Mr. Spear concerning the operation of Backpage after he 

was relieved of any responsibility for the legitimate moderation efforts of Backpage after 

Ms. McDougal and Mr. Moon assumed these responsibilities in late 2011/early 2012. 

Since the government appears to assert that the ads posted on Backpage are the basis of 

its travel act charges, and the proceeds from these ads are the basis of the money 

laundering charges, the evidence of any criminality is lacking.

b. The Government Failed, As A Matter Of Law, To Establish That 

Backpage.com’s Publication Of The Ads Underlying Counts 2-18 Was Unprotected 

By The First Amendment. 

All speech, including the publication of adult advertisements, is presumptively 

protected by the First Amendment to the United States Constitution and the government 

has the burden to prove that particular expressions of speech are outside the protection 

of the First Amendment. Bursey v. United States, 466 F.2d 1059, 1082 (9th Cir. 1972) 

(“All speech, press, and associational relationships are presumptively protected by the 

First Amendment; the burden rests on the Government to establish that the particular 

expressions or relationships are outside its reach.”). “From 1791 to the present, the First 

Amendment has permitted restrictions upon the content of speech in a few limited areas, 

and has never included a freedom to disregard these traditional limitations.” Brown v. 

Entm’t Merchs. Ass’n, 564 U.S. 786, 791 (2011) (cleaned up). Those limited areas, 

which represent “well-defined and narrowly limited classes of speech, the prevention 

and punishment of which have never been thought to raise any Constitutional problem,” 

include obscenity, incitement to violence, and fighting words. Id. (emphasis added). 

Those narrowly limited areas also include speech that “proposes an illegal transaction.” 

Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 821 (9th Cir. 2013).

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When addressing exceptions to the First Amendment, the watchword is “narrowly 

limited.” Yet, from the start of its opening statement to the final seconds of its rebuttal 

closing, the government ignored that watchword, encouraging the jury to convict 

defendants because they did not stop publishing adult-oriented classified advertising on 

Backpage.com even though they knew some of the millions of ads Backpage.com 

published would be associated with unlawful activity and also knew that numerous third 

parties claimed that many or most of the adult-oriented classified ads on Backpage.com 

were associated with unlawful activity. Virtually all the evidence the government 

presented at trial was aimed at supporting these claims of the government—not whether 

the specific classified ads at issue “proposed illegal transactions,” as that phrase has been 

“narrowly limited” by the Ninth Circuit and other courts. Because the government failed 

to prove that the classified ads underpinning Counts 2-18 “proposed illegal 

transactions,” the government failed to overcome the presumption that Backpage’s 

publication of those ads was protected by the First Amendment and, therefore, could not 

be the basis for a criminal prosecution or conviction.1

 

In presenting its case and arguing it to the jury, the government treated the 

exception for speech that “proposes an illegal transaction” as if it could be satisfied by 

the government showing that speech might lead to, or be associated with, illegal activity, 

but the exception for speech that proposes an illegal transaction is far more constrained, 

1

 Of course, even if the government had proved that one of the charged ads proposed an 

illegal transaction and, therefore, was outside of the protection of the First Amendment, 

that only would mean that the government could then seek to prove all the elements of 

a Travel Act offense, including that a defendant took some action relating to an ad with 

the specific intent to facilitate an illegal prostitution enterprise associated with the ad—

something the government failed to prove as to any ad at issue in this case as to any 

defendant. To the contrary, the government, in its rebuttal closing, disclaimed any 

obligation to show that any defendant had any knowledge about any of the charged ads. 

(“Next, the defendants argue, well, they had [no] knowledge of these specific 50 

ads....what I’m not going to show you is a jury instruction says we must prove that any 

defendant had specific knowledge of these particular ads because it isn’t in there. We 

don’t have to do that.”) 11/01/23 a.m. Tr. at 50:6-14. 

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encompassing only speech that itself proposes an illegal transaction, not speech that 

might lead to unlawful activity. In Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. 

Comm’n of N.Y., 447 U.S. 557, 566 (1980), the Supreme Court said that the First 

Amendment did not protect speech “related to unlawful activity.” The Ninth Circuit, 

like most courts, has construed that exception quite narrowly. In Valle Del Sol, the Ninth 

Circuit said that “Central Hudson’s legality requirement...has traditionally focused on 

the content of affected speech—i.e., whether the speech proposes an illegal 

transaction—instead of whether the speech is associated with unlawful activity.” 709 

F.3d at 821 (emphasis added). The Ninth Circuit further said that “[n]othing in 

Pittsburgh Press2

...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.” Id. at 822. The Ninth Circuit subsequently put an even 

sharper edge on its holding in Valle del Sol, saying: “Pittsburgh Press implicates only 

those instances when the state restricts speech that itself proposes an illegal 

transaction.” IMDb.com Inc. v. Bacerra, 962 F.3d 1111, 1123 (9th Cir. 2020) (emphasis 

added). “When the legality of a proposed commercial transaction depends on 

circumstances outside the content of the speech, the activity is lawful and the speech is 

entitled to protection under Central Hudson.” Centro de la Comunidad Hispana de 

Locust Valley v. Town of Oyster Bay, 128 F. Supp. 3d 597, 614-15 (E.D.N.Y. 2015), aff’d. 

868 F.3d 104, 114 (2d Cir. 2017). 

The government also inaccurately told the jury that the exception for speech that 

“proposes an illegal transaction” could be applied to classified ads on Backpage.com ads 

even if they did not expressly propose facially illegal transactions, either because ads on 

Backpage.com had to be read in “context, ” “because context matters,”3 or because ads 

on Backpage.com included “code words” that some might interpret as proposing illegal 

2

 Pitt. Press Co. v. Pitt. Comm. on Human Relations, 413 U.S. 376, 377-80 (1973).

3

 11/01/23 a.m. Tr. at 42:1-14.

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activity.4 But that position, too, is directly at odds with the narrow manner in which the 

courts have construed the exception for speech that proposes an illegal transaction, 

because ambiguous speech which might, or might not, propose an illegal transaction is 

protected by the First Amendment. Centro de la Comunidad, 868 F.3d at 114 (“[T]he 

First Amendment offers no protection to speech that proposes a commercial transaction 

if consummation of that transaction would necessarily constitute an illegal act. 

However, if, as here, there are plausible ways to complete a proposed transaction 

lawfully, speech proposing that transaction ‘concerns lawful activity’ and is therefore 

protected commercial speech.”) (emphasis in original); Greater Phila. Chamber of 

Comm. v. City of Phila., 949 F.3d 116, 142 & n.170 (3d Cir. 2020) (rejecting city’s 

argument that speech “concern[ed] unlawful activity,” where the speech might relate to 

unlawful activity, because “commercial speech should not lose the protection of the First 

Amendment simply because a legislature has prohibited one of many uses of the 

regulated speech,” unlike restricting “advertising of the sale of cocaine, for example, 

[which] would present a speech restriction that always and only related to illegal activity 

because there are no other legal uses/purposes behind the sale of cocaine”) (emphasis in 

original)).5

4

 See, e.g., 08/31/23 p.m. Tr. at 150:14-16 (“The biggest coded term of all was 

“escort.” Because when “escort” was used on Backpage, it meant prostitution.”). 

5

 Accord Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1279 (W.D. Wash. 

2012) (striking down state statute as unconstitutionally vague under the First 

Amendment, saying “what does it mean for the website operator to ‘know’ that an 

advertisement ‘implicitly’ offers sex?... [W]here an online service provider publishes 

advertisements that employ coded language, a reasonable person could believe that facts 

exist that do not in fact exist: an advertisement for escort services may be just that.”); 

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

4502097 (D.N.J. Aug. 20, 2013) (striking down, under First Amendment, state statute 

criminalizing the publication of advertisements “that would appear to a reasonable 

person to be for the purpose of engaging in what would be a commercial sex act...with 

a minor” and rejecting state’s claim that the statute “regulates illegal 

advertisements...not protected by the First Amendment” because, among other things, 

“[d]escribing criminal conduct as anything that is ‘implicit’ is inherently vague, because 

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The government’s opening statement provides two textbook examples of why the 

courts narrowly construe the exception for speech that proposes an illegal transaction to 

encompass only speech that necessarily proposes an illegal transaction. During its 

opening, the government said: “[T]here is such a thing as a legal escort, someone who 

is paid for companionship. You think of going to your high school reunion. You don’t 

have a date, so you pay someone to be your date.” 08/31/23 p.m. Tr. at 149:25-150:3. 

Only moments later, the government contrasted “legal escorts” with escorts advertising 

on Backpage.com, claiming that, when the term “‘escort’ was used on Backpage, it 

meant prostitution.” Id. at 150:14-16. Just after that, the government claimed that, on 

Backpage.com, escorts offering to act as your “girlfriend” were not proposing to act like 

your girlfriend at a high school reunion, because on Backpage.com “Girlfriend 

Experience” “means sex” and other “things that a girlfriend might do: open-mouth 

kissing, or closed-mouth kissing.” Id. at 151:6-11. 

Over just three transcript pages, the government said that escorts were lawful, 

except if they advertised on Backpage.com, and that it was legal for an escort to act like 

your girlfriend except for girlfriend experiences. If the government could prosecute

publishers for publishing speech that might propose an illegal transaction, but also might 

not, a publisher of third-party adult-oriented speech would only be able to avoid criminal 

liability by refusing to publish any such content, because the publisher has no means to 

determine whether a person wishing to post an escort (or massage or dating) ad intends 

to engage in legal or illegal activity, or whether an escort (or masseuse or potential date) 

who proposes to act like your girlfriend means doing so legally or illegally. But the First 

Amendment simply does not allow the government to suppress protected speech as the 

means to suppress unlawful speech. Packingham v. North Carolina, 137 S. Ct. 1730, 

1738 (2017) (“the Government ‘may not suppress lawful speech as the means to 

suppress unlawful speech’”); Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 

it means ‘[n]ot directly expressed [and] existing [only] inferentially’ and ‘fails to clearly 

mark the boundary between what is permissible and impermissible’”). 

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(2002) (“The government may not suppress lawful speech as the means to suppress 

unlawful speech.”); Centro de la Comunidad, 868 F.3d at114; Greater Phila. Chamber 

of Comm., 949 F.3d at 142 & n.170; McKenna, 881 F. Supp. 2d at 1277 (“a speaker may 

not be put at complete peril in distinguishing between protected and unprotected 

speech,” “[o]therwise, he could only be certain of avoiding liability by holding his 

tongue, causing him ‘to make only statements which ‘steer far wide [ ] of the unlawful 

zone.’’”) (quoting United States v. United States Dist. Ct. for the Cen. Dist. of Cal., 858 

F.2d 534, 539 (9th Cir. 1988). Here, the Court need not wonder whether the 

government’s aim in this prosecution has been to unconstitutionally punish the 

defendants for refusing to accede to demands that Backpage.com stop publishing what 

numerous courts previously held was First Amendment protected speech as the means 

to suppress any ads that might be related to prostitution on Backpage.com, because the 

government expressly said so in its rebuttal closing argument urging the jury to convict 

the defendants.6

The jury convicted Mr. Spear of violating the Travel Act based on 

Backpage.com’s publication of seventeen ads. The government told the jury in its 

rebuttal closing that it was “clear and obvious” that those ads were for prostitution, but 

not only is that simply untrue, it also is irrelevant. Nine of those seventeen ads expressly 

disclaimed being solicitations of prostitution and, therefore, plainly did not propose 

transactions that necessarily would have been illegal. Exhs. 216-a, 504-511. Moreover, 

whatever the government or the jury may have surmised about the intended activities of 

the persons posting or responding to those ads (and regardless of whether the persons 

6

 11/01/23 a.m. Tr. at 43:16-24 (“They knew that this site was replete with these ads, 

and they used coded language like GFE, which is in this one, Greek, boococky [sic]. It’s 

the name of the game, the coded language. They knew the codes were sex for money 

and they knew the codes were endless. They knew the only way to actually prevent the 

promotion of prostitution enterprises was to do one thing, shut the site down, but they 

didn’t want to do that because of the object of the conspiracy, which was to make 

money.”)

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posting or responding to those ads intended to engage in illegal activity), not one of those 

ads necessarily proposed an illegal transaction. The government repeatedly urged the 

jury in its closings to convict the defendants based on Backpage.com’s publication of 

those ads, but, as a matter of law, the government failed to establish that the publication 

of those ads was outside the protection of the First Amendment.7

 Therefore, the jury’s 

verdict against Mr. Spear on Counts 2-18 cannot stand. 

c. The Government Failed, As A Matter Of Law, To Establish That Any 

Of The Defendants Conspired For Backpage.com To Publish Any Adult Ads That 

Were Unprotected By The First Amendment.

The government likewise failed to prove that any defendant, including Mr. Spear, 

agreed to have Backpage.com publish any classified ads that proposed illegal 

transactions. The government, therefore, failed to establish that any defendant conspired 

to publish one or more classified ads whose publication by Backpage.com was not 

protected by the First Amendment. 

Of all the ads that the government introduced into evidence at trial, just two 

proposed what, at least arguably, were illegal transactions. Those were exhibit 218, 

relating to Count 23 (as to which both Messrs. Spear and Brunst were found not guilty) 

and exhibit 1602. Both exhibits related to trial witness Anya Beck. The government 

presented absolutely no evidence that any defendant, or any purported co-conspirator 

(including the government’s cooperators), (a) had any knowledge of those ads or of Ms. 

Beck or her pimp, (b) had any knowledge that Anya Beck or her pimp were engaged in 

an illegal prostitution enterprise, (c) was involved in any manner with the publication of 

7

 The government also failed to prove that Mr. Spear (a) had any knowledge of the ads 

or the persons posting them, (b) had any knowledge that the persons who posted those 

ads were engaged in an illegal prostitution enterprise, or (c) was involved in any manner 

with the publication of those ads. Therefore, the government has no basis to contend 

that First Amendment’s presumptive protections would not apply to Counts 2-18, on the 

grounds that Mr. Spear had actual knowledge that those ads were associated with 

prostitution and took some action to publish the ads with the intent to facilitate the crimes 

of those posting the ads. 

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those ads, or (d) agreed in any manner that those ads should be published. To the 

contrary, the evidence at trial clearly established that, after Backpage.com started 

moderating ads, ads like those in exhibits 218 and 1602 were never permitted on 

Backpage.com. In the absence of any evidence of a conspiracy to publish exhibits 218 

or 1602, even if Backpage.com’s publication of those ads was outside of the protection, 

those ads cannot support the convictions of Messrs. Spear or Brunst under Count 1. 

As the remaining ads the government introduced into evidence at trial did not 

propose illegal transactions, Backpage.com’s publication of those ads was 

presumptively protected the First Amendment (as was Backpage.com’s publication of 

the millions of adult ads to which the government merely alluded during the trial). 

The only evidence that the government presented in an attempt to show that Ferrer 

had contemporaneous knowledge of the charged ads, took any action to cause the 

publication of the charged ads, or had the specific intent to facilitate any of the business 

enterprises associated with any of the charged ads was Ferrer’s testimony relating to 

emails with “P.R.” 9/14/23 PM Tr. at 80:4-104:19. See, exhibits 504-513. Although the 

government sought to convey the impression during its examination these emails were 

exchanged between Ferrer and P.R., the government’s questions and Ferrer’s responses 

were carefully phrased to characterize the communications as being between 

carl@backpage.com (an email address) and P.R. On subsequent cross-examination, 

Ferrer admitted that carl@backpage.com was not his email address, but was an email 

address used by his staff. 10/10/23 AM Tr. at 104:3-23 (“It really wasn't my email 

address.”). Moreover, the government presented no evidence to tie any charged ad to 

those emails, which were exchanged from October 2010 to September 2012, one to three 

years before the first charged ad was published on September 10, 2013. 

d. The Mere Presence of Spear At Backpage Was Insufficient To Convict 

On Any Count.

Given the lack of any role played by Mr. Spear in any alleged conspiracy or 

substantiative charge from March 28, 2013 to March 28, 2018, he must be acquitted 

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pursuant to Rule 29. The Defense requested that the jury be instructed on mere presence 

but this instruction was rejected. Even if the Court found Mr. Spear knew there were 

travel act and/or money laundering conspiracies, or the substantiative counts of 

conviction, there was no action of Mr. Spear demonstrated in the testimony or admitted 

exhibits to show the necessary participation element of these crimes. There was further 

insufficient evidence of the required specific intent needed to convict. The Ninth Circuit 

mere presence instruction submitted, 5.12, requires participation. However, from March 

23, 2013 to March 28, 2018, Mr. Spear did not participate. See, Dennis v. United States, 

302 F.2d 5, 12-13 (10th Cir. 1962); United States v. Lee, 991 F.2d 343,348 (6th Cir. 1993).

e. The Applicable Statute Of Limitation Precludes Conviction Because 

The Primary Basis Of Conviction Are Allegations And Evidence Of Events And 

Conversations That Occurred Before March 28, 2013. 

Over defense objection, the substantial majority of the evidence presented by the 

prosecution occurred before March 28, 2013. This includes, but is not limited to: 1) the 

alleged marketing strategy that included aggregation of ads from Craigslist, Google and 

other sources, reciprocal link relationship with The Erotic Review, discounts to the Super 

Posters (William Mercer “Dolla Bill”, SOMAD, etc.) and affiliate programs, 2) 

moderation (as allowed and encouraged by Communications Decency Act, section 230), 

and 3) the alleged non-disclosure of these actions to NAAG, NCMEC, and other groups. 

An overt act in furtherance of the conspiracy must occur within the applicable period of 

limitation. Grunewald v. U.S., 353 U.S. 391, 396-397 (1957). The jury must have found

an overt act that occurred after March 28, 2013. U.S. v. Fuchs, 218 F.3d 957, 961 (9th

Cir. 2000). The acts occurring after this date were the ads constituting Counts 2-18, the 

sale of Backpage to Ferrer in April of 2015, and the loan re-payments of the sellerfinanced sale. Any alleged conspiracy involving the pre-2013 actions had ended by the 

cessation of aggregation, etc. Mr. Spear’s role in moderation ended with the publicized 

transfer of responsibility for/substantial charge in moderation by Ms. McDougal and Mr. 

Moon in 2011-2012. See, U.S. v. Koonin, 361 F.3d 1250, 1251, 1253 (9th Cir. 2004). 

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There can be no liability from a pre-2013 conspiracy. See, United States v. Kotteakos, 

328 U.S. 750 (1946). 

RESPECTFULLY submitted this 4th day of December, 2023. 

FEDER LAW OFFICE, P.A. 

s/ Bruce Feder 

Bruce Feder

Knapp Counsel for Scott Spear

KESSLER LAW GROUP

s/ Eric Kessler 

Eric Kessler

Attorneys for Scott Spear

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CERTIFICATE OF SERVICE 

I hereby certify that on December 4, 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 

Erin E. McCampbell, emccampbell@lglaw.com

Paul J. Cambria, pcambria@lglaw.com

Gary S. Lincenberg, glincenberg@birdmarella.com

Gopi K. Panchapakesan, gpanchapakesan@birdmarella.com

Attorneys for Defendants

Andrew Stone Andrew.Stone@usdoj.gov

Daniel Boyle Daniel.Boyle2@usdoj.gov

Peter Kozinets Peter.Kozinets@usdoj.gov

Joseph Bozdech Joseph.Bozdech@usdoj.gov

Margaret Perlmeter Margaret.Perlmeter@usdoj.gov

Kevin Rapp Kevin.Rapp@usdoj.gov

Austin Berry berry2.austin@usdoj.gov 

Attorneys for United States of America

By: /s/ M. Evans 

Case 2:18-cr-00422-DJH Document 2006 Filed 12/04/23 Page 15 of 15