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Paul J. Cambria, Jr. (NY Bar No.1430909, admitted pro hac vice) 

Erin McCampbell Paris (NY Bar No. 4480166, admitted pro hac vice) 

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

pcambria@lglaw.com

emccampbell@lglaw.com

Attorneys for Michael Lacey

Gary S. Lincenberg (CA Bar No. 123058, admitted pro hac vice)

Ariel A. Neuman (CA Bar No. 241594, admitted pro hac vice)

Gopi K. Panchapakesan (CA Bar No. 279856, admitted pro hac vice)

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW PC

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: (310) 201-2100

Facsimile: (310) 201-2110

glincenberg@birdmarella.com

aneuman@birdmarella.com

gpanchapakesan@birdmarella.com

Attorneys for John Brunst

Additional counsel listed on next page

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

 Plaintiff,

vs.

Michael Lacey, et al., 

 

 Defendants.

NO. CR-18-00422-PHX-DJH

DEFENDANTS’ MOTION FOR A NEW 

TRIAL

 

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Eric Kessler

KESSLER LAW GROUP

6720 N. Scottsdale Rd., Suite 210

Scottsdale, AZ 85253

Telephone: (480) 644-0093

eric@kesslerlawgroup.com

Attorney for Scott Spear

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

Attorney for Scott Spear

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Defendants Michael Lacey, Scott Spear, and John Brunst move, under Fed. R. Crim. 

P. 33, for the Court to vacate their convictions and grant a new trial if the Court does not

grant their motions for a judgment of acquittal on all counts. For the reasons set forth

below, the interests of justice require a new trial.

1. The Court Should Grant a New Trial Based on the Grounds Advanced in

Defendants’ Rule 29 Motions If Those Motions Are Not Granted.

Defendants incorporate by reference the factual and legal bases for relief advanced in

their Motions for Judgments of Acquittal, as if set forth here in full. If the Court does not 

grant those motions, the bases asserted in them also justify the granting of a new trial. 

2. The Court Should Grant a New Trial (or Dismiss) Based on the Government’s

Failure to Make Disclosures Required by the Jencks Act and by Brady.

Defendants seek a new trial based on multiple failures by the government to timely

disclose materials to the defense as required both by the Jencks Act, 18 U.S.C. § 3500, and 

by the requirements of Brady v. Maryland, 373 U.S. 83 (1963). Defendants focus on two 

discrete failures: 1) the government’s failure to timely disclose Carl Ferrer’s emails with its 

case agent, Lyndon Versoza, which the government disclosed to the defense only after the 

jury in this case was deliberating; and 2) the government’s failure to disclose the factual 

information the government developed during its investigation of Backpage.com in the 

Western District of Washington in 2012-2013 (the “WDWA Investigation”), which, among 

other things, undermines, if not contradicts, the government’s trial positions that “anyone 

could tell” from looking at the adult ads that ran on Backpage.com that those ads were 

associated with illegal conduct and that Backpage’s moderation practices showed criminal 

intent. 

With respect to the first failure, Defendants incorporate by reference the factual and 

legal bases for relief advanced in the Supplement to Defendants’ Motion to Dismiss or to 

Strike Testimony, and Request for a Hearing Due to the Government’s Jencks and Brady 

Violations (Doc. 1972), and the reply. To the extent that the indictment is not dismissed, 

those same arguments support this request for a new trial. 

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With respect to the second failure, throughout the presentation of its case, the 

government advanced the narrative that “anyone could tell” that most adult ads on Backpage 

related to prostitution, just by looking at the ads. The government presented significant 

testimony and other evidence to that effect, such as exhibit 52 (expressing the opinion that 

“blatant prostitution ads are rampant” on Backpage) and exhibit 119 (“[i]t does not require 

forensic training to understand that these advertisements are for prostitution”), as well as socalled not-for-the-truth “notice” evidence from financial institutions, credit card companies, 

and non-profit organizations. From its opening1 to both of its closings,2 the government 

repeatedly exhorted the jury to conclude that all Backpage adult ads related to prostitution 

because they look like they do. 

The government has steadfastly refused, despite repeated requests from and motions 

by the defense, to produce nearly all the factual information developed during the WDWA 

Investigation, a federal investigation that took place right in the middle of the alleged 

conspiracy and did not result in a prosecution of Backpage or its owners. The government 

has claimed that the WDWA Investigation is irrelevant to this case, but the government 

elicited testimony from its cooperating witness at trial that Backpage.com was under 

“pressure” from the WDWA Investigation, so used the investigation as a sword at trial while 

1 08/31/23 p.m. Tr. at 147:10-11 (“the evidence is going to show that the Adult section was 

for prostitution ads”).

2 11/01/23 a.m. Tr. at 45:9-15 (“Mr. Eisenberg talked about in his closing argument about 

Grant Snyder saying that the ads did not provide direct evidence of prostitution. You may 

remember him talking about that. Well, remember he said it was suggestive, and so did their 

expert. That is essentially circumstantial evidence. They are saying, ‘Yeah, it looks like 

prostitution.’ It is circumstantial evidence of prostitution.”); 11/01/23 a.m. Tr. at 61:3-8 

(“And then don’t forget the expert Dr. Mehlman-Orozco, the person who can’t answer a 

straight yes or no question.... She cannot be taken seriously, ladies and gentlemen. She says 

she doesn’t know whether they were real ads or not, but you know.”); 10/27/23 a.m. Tr. at 

10:21-11:2 (“And you can look at her postings. Look at a few – at least one of them. You 

will see all the indicators of prostitution... [T]hey have this term that you see in a lot of these 

things because this is trying to give them, you know, some type of plausible deniability and 

smoke out law enforcement. This is not an offer for prostitution. All donations are for my 

time and companionship only. We saw that in some form in a lot of the postings. It’s 

nonsense, though; right? This is really for prostitution.”). 

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seeking to shield disclosures relating to that investigation.3 Defendants believe the WDWA 

Investigation determined that, even though many people who saw Backpage.com adult ads 

might conclude the ads related to prostitution, their conclusions would be unsound because 

so many activities involving sex and money are lawful, even if those activities might look like 

prostitution to an average person. That determination seriously undermined one of the core 

tenets of the government’s case and would have been both exculpatory and impeaching at 

trial. Defendants also believe the WDWA Investigation determined that Backpage.com’s 

moderation practices were consistent with industry standards. That determination 

undermines another core tenet of the government’s case, that Backpage.com’s moderation 

program was designed to facilitate prostitution, and would have been both exculpatory and 

impeaching at trial. 

When the Court first stepped into this case, it declined to dismiss this case based on 

the government’s failure to produce these materials, saying that the government’s case was 

“in its infancy” when the issue arose in the previous trial, and that the “materiality of the 

documents ha[d] not been established.” Doc. 1444 at 14:8-16. The Court “decline[d] to 

make a ruling as to the relevancy or materiality of the WDWA documents at th[at] juncture.” 

Id. (emphasis added). Having now seen the entirety of the government’s case, the Court 

should have little difficulty seeing how the information the government has withheld from 

the defense would be both relevant and material to the defense, particularly given the low 

bar for materiality under Brady: “materiality is a low threshold; it is satisfied so long as the 

information . . . would have helped to prepare a defense.” United States v. Soto-Zuniga, 837 F.3d 992, 

1003 (9th Cir. 2016) (emphasis added). The government’s refusal to produce to the defense 

these plainly exculpatory and impeaching materials warrants, at a minimum, at new trial, if 

not the granting of the defense’s previous motion to dismiss with prejudice based on the 

government’s failure to provide these materials before the first trial. (Docs. 1355, 1410). 

3 “Q. And in 2012, if you know, were you experiencing any pressure regarding the website? 

A. Yes, there was another prostitution investigation of the site.” 09/13/23 am Tr. at 80:5-8.

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3. The Court Should Grant a New Trial Because the Government Elicited False

or Misleading Testimony from Carl Ferrer.

If a prosecutor elicits false or misleading testimony from a trial witness about a

material fact, the defendant has been denied due process of law, requiring reversal of his 

conviction. Alcorta v. Texas, 355 U.S. 28, 31 (1957) (a prosecutor’s elicitation of testimony 

that “gave the jury the false impression” about a material fact “was not accorded due process 

of law,” requiring the reversal of the conviction). “A lie is a lie, no matter what its subject, 

and, if it is in any way relevant to the case, the [prosecutor] has the responsibility and duty to 

correct what he knows to be false and elicit the truth....That the prosecutor’s silence was not 

the result of guile or a desire to prejudice matters little, for its impact was the same, 

preventing, as it did, a trial that could in any real sense be termed fair.” Napue v. Illinois, 360 

U.S. 264, 269-270 (1959); accord Brown v. Borg, 951 F.2d 1011, 1015 (9th Cir. 1991) 

(“prosecutor had a duty not to mislead the jury” by presenting testimony “in such a way as 

to suggest the opposite of what she alone knew to be true;” by violating this duty, she 

“pervert[ed] the adversarial system and endanger[ed] its ability to produce just results,” 

which required the conviction to “be overturned unless the misconduct can be proven to be 

harmless beyond a reasonable doubt”). 

To establish a constitutional violation requiring reversal under Napue: 

a defendant must show: (1) testimony or evidence presented at trial was 

actually false or misleading; (2) the government knew or should have known 

that it was false; and (3) the testimony was material, meaning there is a 

reasonable likelihood that the false testimony could have affected the judgment 

of the jury.

United States v. Kabov, 2023 U.S. App. LEXIS 18214, at *2 (9th Cir. July 18, 2023) (emphasis 

in original; internal quote marks omitted). “Mere speculation is insufficient to establish a 

claim under Napue. There must be something in the prosecutor’s questioning, or the 

answers given, that may be construed to reflect an intention by the prosecutor to mislead the 

jury.” United States v. Renzi, 2013 U.S. Dist. LEXIS 202881, at *13 (D. Ariz. Oct. 25, 2013) 

(cleaned up; internal citation omitted). “Although Napue does not create a per se rule of 

reversal, [the Ninth Circuit] has gone so far as to say that if it is established that the 

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government knowingly permitted the introduction of false testimony reversal is virtually 

automatic.” Sivak v. Hardison, 658 F.3d 898, 912 (9th Cir. 2011) (cleaned up). 

One thing that was glaringly absent from the government’s case was evidence that 

Messrs. Lacey, Spear, or Brunst had any contemporaneous knowledge about any of the 

charged ads or took any action connected to the publication of any charged ad. The only 

evidence that the government presented to try to connect any Defendant or even any 

purported co-conspirator to any of charged ads or the persons posting them related to 

Pamela Robinson—notably the testimony the government elicited from Carl Ferrer about 

“his” emails with Ms. Robinson. 09/14/23 p.m. Tr. at 79:7-102:8. The prosecution asked 

Mr. Ferrer: “did you have e-mail exchanges with somebody by the name of Pamela 

Robinson?” Mr. Ferrer answered: “Yes.” Id. at 79:7-9. The government then asked Mr. 

Ferrer numerous questions about exhibits 162, 162-a, 163-165, and 168, which were a series 

of emails between Pamela Robinson and “Carl” or “carl@backpage.com.” Those questions 

were intended to convey the false impression that Carl Ferrer was one of the parties to these 

emails, while both the prosecutor and the witness knew that he was not and, therefore, 

generally referred in their questions and answers to emails to and from an email address—

carl@backpage.com—rather than by referring to emails to and from Mr. Ferrer. The 

following examples are illustrative: 

Q. So looking at Page 2 of 162, what question is Pamela Robinson asking Carl

at carl@backpage.com?

A. She’s asking, “can i use the promo code to get a discount on my escort

ads?”

Q. And what do you respond? What does carl@backpage.com respond?

A. “Yes. It will work in any category. Carl.”

09/14/23 p.m. Tr. at 80:24-81:5.

Q. All right. Then let’s go to Exhibit 164 for the witness’ eyes only. Now,

Exhibit 164, is this also a continuation of an exchange between you and

Pam—or carl@backpage and Pamela Robinson?

A. Yes.

09/14/23 p.m. Tr. at 88:19-23.

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Q. What is this? Can you tell us what -- what is this in effort -- or what are

you saying here to Pamela Robinson?

A. So Pamela Robinson, she received a marketing e-mail from

carl@backpage.com and it had her last post on 2010 March 27th in the

category of biz ops.

09/14/23 p.m. Tr. at 89:4-8.

Q. Now, what does carl@backpage.com tell her?

A. “Hi, you should be able to edit now. Please let us know if you are still

having trouble.”

Q. All right. What is she—what is she talking about here in this e-mail

exchange? We’re now—we started in 2010. Now we’re in 2012, right?

A. Yes.

Q. All right. What is -- what is she saying here to you?

A. She’s concerned about an article that broke in Seattle about the possible

addition of—

09/14/23 p.m. Tr. at 90:15-24.

After the government left the jury with the impression for nearly a month that Mr. 

Ferrer had been directly exchanging emails in 2010, 2011, and 2012 with Pamela Robison, 

whose ads accounted for ten of the fifty charged ads, Mr. Ferrer was confronted about his 

testimony on cross-examination and admitted: “It really wasn’t my email address.” 

10/10/23 a.m. Tr. at 104:10. Mr. Ferrer then admitted that emails to the 

carl@backpage.com address went to his staff and that the emails from that address to Ms. 

Robinson could have been written by any of several members of his staff. 10/10/23 a.m. 

Tr. at 104:11-24.

There can be no doubt that Mr. Ferrer’s testimony was false (or at least highly 

misleading), that the prosecutor knew it was false (or at least highly misleading), and that the 

testimony was material. As to the first point, Mr. Ferrer admitted on cross-examination that 

the emails to and from the carl@backpage.com email address were received by and 

responded to by his staff, not by him, contrary to his testimony on direct examination. As to 

the second point, this is a textbook case of there being “something in the prosecutor’s 

questioning, or the answers given, that may be construed to reflect an intention by the 

prosecutor to mislead the jury.” Renzi, 2013 U.S. Dist. LEXIS 202881, at *13.4

4 The prosecutor’s questions to Mr. Ferrer were so far from norm, and forced, that the 

prosecutor kept saying “you,” and then quickly correcting himself to say 

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As to materiality, there can be no question that the false or misleading testimony the 

prosecutor elicited from Mr. Ferrer could have affected the judgment of the jury. First, 

Pamela Robinson’s ads were ten of the fifty charged ads (eight of the seventeen substantive 

Travel Act convictions). Second, Mr. Ferrer’s false testimony about emails with Pamela 

Robinson was the principal means the government used to try to link the Defendants to any 

of the charged ads, if only through Mr. Ferrer, their purported co-conspirator. Finally, the 

same prosecutor who elicited the false testimony from Mr. Ferrer on direct went on to 

exploit Ferrer’s false testimony in his closing argument, as if Ferrer had never recanted: 

You remember this bit of testimony with Mr. Ferrer. He talked about this 

email exchange. There’s a number of email exchanges between a woman by 

the name of Pamela Robinson. Her email address is clprovider@yahoo.com. 

This is one of the emails. This is Exhibit 164. She says: I don’t do this 

because I want to. I do it because I have to.... You also know from the email 

exchange she had problems with them deleting her posts -- her picture.

10/27/23 a.m. Tr. at 10:5-14. Given the weakness of the government’s case and the lack of 

evidence to tie any defendant or any purported co-conspirator to any charged ad, Mr. 

Ferrer’s false testimony unquestionably could have affected the judgment of the jury. 

Because the government purposely elicited false or misleading testimony at trial, on a 

material point, reversal is warranted as “virtually automatic.” Sivak, 658 F.3d at 912. 

4. The Court Should Grant a New Trial Because the Government Repeatedly

Made Improper Arguments in its Opening and Closings.

A. The Government Improperly Urged the Jury to Convict Defendants of

Conspiracy Based on a Legally Insufficient Object.

As discussed in Mr. Brunst’s Rule 29 motion, the government exhorted the jury to 

convict on conspiracy under Count 1 arguing the object of the conspiracy was to “make 

money,” which is not a federal crime:

“carl@backpage.com.” On one occasion, the prosecutor failed to use 

“carl@backpage.com,” but the witness then used the email address in his response in an 

apparent attempt to cover for the prosecutor. 

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Defendant [sic] became members of the conspiracy knowing of at least one of 

its objects and intending to help accomplishment -- accomplish it. What is the 

object in this case? Well, one of the object [sic] is to make money. And they 

did.

10/27/23 a.m. Tr. at 6:22-23. Because there is no way to know now whether the jury 

followed the prosecutor’s exhortation and convicted Spear and Brunst based on this legally 

insufficient object, at a minimum a new trial is warranted if the Court does not acquit. 

Because Defendants’ motion to dismiss Count 1 for stating the same legally insufficient 

object remains pending (Doc. 1744), a more appropriate outcome would be to dismiss 

Count 1 for the reasons set forth in the motion to dismiss, as a sanction for the government 

urging the jury to convict Defendants on patently legally insufficient grounds, or both.

B. The Government Improperly Urged the Jury to Convict Defendants of

Conspiracy Based on an Impermissible Boundless Conspiracy.

In 2019, Defendants moved to dismiss Count 1 because it improperly charged a 

boundless conspiracy to promote prostitution in general. See, e.g., Doc. 798 at 3-6. The 

Court denied Defendants’ motion, holding:

Defendants’ suggestion that the SI improperly indicts a ‘boundless conspiracy 

to facilitate prostitution in general,’ (Reply at 4), however, mischaracterizes the 

charges against them. Such a claim is simply untrue. They were not indicted 

for facilitating the amorphous notion of ‘prostitution.’ They were indicted for 

facilitating (via publishing ads) on fifty distinct occasions where prostitutes, 

prostitution-related businesses, or other groups were involved in the business 

of prostitution. 

Doc. 946 at 13:17-22. 

Moreover, Defendants repeatedly objected to the government’s proposed jury 

instructions on related grounds—that the government’s instructions suggested that any 

person who posted an ad on Backpage.com could be a member of the conspiracy, but such a 

boundless conspiracy was legally impermissible because it necessarily would amount to 

multiple conspiracies, not one conspiracy: 

Such a boundless conspiracy also would be a classic hub and spoke conspiracy 

lacking a rim, which the Supreme Court held impermissible in Kotteakos v. 

United States, 328 U.S. 750, 754–55 (1946) (“[T]he pattern was ‘that of separate 

spokes meeting at a common center,’ though we may add without the rim of 

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the wheel to enclose the spokes.”); Dickson v. Microsoft Corp., 309 F.3d 193, 203 

(4th Cir. 2002) (“A rimless wheel conspiracy is one in which various 

defendants enter into separate agreements with a common defendant, but 

where the defendants have no connection with one another, other than the 

common defendant’s involvement in each transaction . . . . In Kotteakos, the 

Supreme Court made clear that a rimless wheel conspiracy is not a single, 

general conspiracy but instead amounts to multiple conspiracies between the 

common defendant and each of the other defendants.”).

Doc. 1626-3 at 64-65, 72, 77. 

In its closing, the government ignored both this Court’s ruling on Defendants’ 

motion to dismiss and the law cited in Defendants’ objections to the government’s proposed 

jury instructions, and told the jury it could convict Defendants of the boundless conspiracy 

the Court previously held had not been charged:

Three elements to conspiracy. There was an agreement between two or more 

persons to commit violations of the Travel Act. That’s all we need, is two 

people. But you know from the testimony and the evidence that there were 

more than two. There’s [sic] these five defendants. There’s Mr. Ferrer. Mr. 

Hyer. There’s Mr. Adams. There’s even Dollar Bill, Mr. Mersey. There’s 

David Elms, who was running The Erotic Review. Those were the 

conspirators. Then every pimp who posted on Backpage.com and used the 

money to run their criminal—their—their small criminal enterprise of 

prostitution, they are your conspirators.

10/27/23 a.m. Tr. at 6:8-18. 

Because the government asked the jury to convict the Defendants in its closing based 

on a legally impermissible boundless conspiracy, the Court should reconsider its denial of 

Defendants’ prior motion to dismiss Count 1, dismiss Count 1, and vacate the convictions 

for violating Count 1. Alternatively, because there is no way to know now whether the jury 

followed the prosecutor’s exhortation and convicted Messrs. Spear and Brunst based on the 

legally impermissible boundless conspiracy, at a minimum a new trial is warranted if the 

Court does not dismiss or acquit on Count 1. 

C. The Government Improperly Urged the Jury to Convict Defendants of

“Promoting Prostitution.”

From the start of its opening statement to the end of its rebuttal closing, the

government repeatedly conflated promoting a specific business enterprise involving 

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prostitution offenses with “promoting prostitution,” telling the jury repeatedly that the 

Defendants could be convicted for “promoting prostitution.”5 For example: 

“The evidence at trial will show how defendants used three different strategies 

to market and promote prostitution...” 08/31/23 p.m. Tr. at 146:18-19.

“The charges for these five defendants, they’re all charged with promoting 

prostitution...”. 08/31/23 p.m. Tr. at 147:24-25.

“At the end of the trial, you will be asked to deliberate on whether or not 

these five individual defendants are guilty or not guilty of promoting 

prostitution. Three of the defendants are also charged with money laundering 

offenses, money laundering meaning when they get the proceeds from the 

promotions of—from the promoting prostitution, what they did with it.” 

08/31/23 p.m. Tr. at 148:6-13.

“These defendants promoted prostitution when they built up the website...”. 

08/31/23 p.m. Tr. at 173:12-13. 

“What’s the evidence in this case? What is the evidence that Backpage 

promoted prostitution? Well, who did you hear from? You heard the 

testimony of Carl Ferrer and Dan Hyer and Jess Adams, all insiders of 

Backpage.” 10/26/23 p.m. Tr. at 52:24-53:2.

“The defendants’ own words in the form of their own internal emails 

demonstrate that three knew they were running a prostitution website and 

they were promoting prostitution.” 10/26/23 p.m. Tr. at 53:18-20.

“Mr. Ferrer...estimated that they received 20,000 subpoenas...Isn’t that just 

evidence enough, frankly, that they were running a criminal enterprise that was 

facilitating and promoting prostitution, just the mere fact that they are getting 

these subpoenas?” 10/26/23 p.m. Tr. at 83:9-15.

“There is a lot of evidence in the charges, but the case is actually quite simple. 

There are 51 counts focused on how the defendants promoted prostitution, 

and there are 49 counts focused on how the defendants engaged in money 

laundering of the illegal profits they made from promoting prostitution.” 

11/01/23 p.m. Tr. at 38:12-17.

5 The government’s repeated claims in its opening and each closing could not have been 

inadvertent, given the Court’s ruling that Defendants: “were not indicted for facilitating the 

amorphous notion of ‘prostitution.’ They were indicted for facilitating (via publishing ads) 

on fifty distinct occasions where prostitutes, prostitution-related businesses, or other groups 

were involved in the business of prostitution.” Doc. 946 at 13:17-22. 

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“What else do you have, though, to show that those laws were violated and 

that they were in fact promoting prostitution? We brought before you 

multiple witnesses.” 11/01/23 p.m. Tr. at 49:13-15.

“Promoting prostitution” is not a federal crime, but the prosecutors told the jury repeatedly 

that they could convict Defendants for “promoting prostitution.” 

The government also told the jury in the rebuttal closing that promoting prostitution 

“means helping someone commit a prostitution offense, and that’s what Backpage did” 

(11/01/23 p.m. Tr. at 51:12-13), but the law plainly does not permit Defendants to be 

convicted of either substantive Travel Act offenses or conspiracy to violate the Travel Act 

simply because the Backpage.com website helped someone commit a prostitution offense. 

Because the government presented absolutely no evidence that any Defendant knew 

anything about any of the charged ads, or knew anything about any person who posted or 

who was featured in any of the charged ads, or took any action connected to the publication 

of any of the charged ads, Mr. Spear’s substantive Travel Act convictions and Messrs. 

Spear’s and Brunst’s conspiracy convictions are far more likely to have resulted from the 

government repeatedly telling the jury that they could be convicted if Backpage.com 

“promoted prostitution” rather than the jury having found that either Messrs. Spear or 

Brunst did something to help publish an ad with the specific intent to facilitate a business 

enterprise they knew to be involved in prostitution offenses. Indeed, there was no such 

evidence even as to Mr. Ferrer with respect to the fifty charged ads—except for the false 

testimony the government elicited from him regarding Pamela Robinson. 

D. The Government Improperly and Repeatedly Told the Jury It Could Convict

Defendants Without a Showing of Specific Intent.

In its closing, the government repeatedly implied that the jury could convict

Defendants without need to find the specific intent required for violations of the statutes. It 

did not do so using those words, but by repeatedly telling the jury that it could convict on 

grounds that were utterly lacking in specific intent. 

For example, the government told the jury that Carl Ferrer’s testimony that Backpage 

received thousands of subpoenas over the years was, standing alone, sufficient for the jury to 

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convict the Defendants of the fifty-one charges relating to the Travel Act: “Isn’t that just 

evidence enough, frankly, that they were running a criminal enterprise that was facilitating 

and promoting prostitution, just the mere fact that they are getting these subpoenas?” 10/26/23 p.m. 

Tr. at 83:9-15 (emphasis added). There was absolutely no basis in fact or in law to support 

that outlandish and outrageous claim, which not only bypassed any requirement to prove 

specific intent, but also required no subsequent overt act. 

In the rebuttal closing, the government doubled down—telling the jury it had 

absolutely no obligation to prove that any Defendant had any knowledge of any of the 

charged ads:

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

ads. Ladies and gentlemen, these ads are just a sample. We’re not going to 

charge them with a million counts based upon the millions of ads. That’s why 

there’s a conspiracy charge covering the statute, covering the 14-year life of 

the conspiracy. What I’m not -- 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. Here, the government not only told the jury that it did not 

need to find specific intent, but the government gratuitously added the highly inflammatory 

and prejudicial suggestion that it could have charged Defendants with “a million counts,” 

but only was asking the jury to convict them of a modest fifty counts—which by itself

justifies a new trial. See United States v. Ballard, 727 F. App’x 6, 10 (2d Cir. 2018) (vacating 

convictions because trial court should have granted a new trial under Fed. R. Crim. P. 33 due 

to improper prosecutorial summation comments suggesting that incriminating evidence had 

not been put before the jury). As the government introduced no evidence that any of those 

millions of ads proposed an illegal transaction, and thus the jury was obligated to presume 

that Backpage.com’s publication of those ads was protected by the First Amendment, the 

government’s suggestion to the jury that Defendants could have been charged with a 

“million counts” was highly improper.

Responding to the argument of Mr. Brunst’s counsel that Brunst was not involved in 

the operations of Backpage.com (and thus could not have had the specific intent to violate 

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the Travel Act), the government told the jury that what mattered was not what Mr. Brunst’s 

role was, but that he made a lot of money—again telling the jury to ignore the need to find 

specific intent: 

You heard some back and forth essentially between Mr. Rapp, Mr. Lincenberg 

about what Mr. Brunst’s role was. You heard Mr. Lincenberg refer to him as a 

nonoperational CFO, whatever that means. You’ve heard him refer to as a bill 

collector, a bag man. Ladies and gentlemen, I am telling you, you can call him 

bananas. It doesn’t matter what you call him. What matters is that he made 

millions off of Backpage. 

11/01/23 a.m. Tr. at 47:1-8. 

It is no wonder that the jurors were confused about how to apply the Court’s 

instructions, since the government repeatedly told the jury that it should convict Defendants 

on grounds that the instructions did not allow, like making money, receiving subpoenas, or 

the millions of purported counts that the government did not charge. These are just a few 

examples of the government trying to induce the jury to disregard the Court’s instructions 

and convict the Defendants regardless of the law, which it appears the jury ultimately did. 

The government’s repeated statements to the jury that it could convict Defendants on 

factually and legally insufficient grounds was highly prejudicial and warrants a new trial. 

E. The Government Improperly Exhorted The Jury To Convict Defendants

Based On Backpage.com’s Publication of Ads Protected by the First

Amendment.

Defendants incorporate by reference the First Amendment argument set forth in Mr.

Spear’s Rule 29 motion as a basis for a new trial and supplement that argument with the 

following. Throughout the trial, the government elicited evidence, most of which was 

admitted under the not for the truth hearsay exception, of politicians, clergy, representatives 

of non-governmental organizations, and reporters claiming that Backpage.com adult 

advertisements were associated with illegal activity and calling for Backpage.com to either 

cease publishing adult advertisements or to shut down the website altogether. But those 

calls for Backpage.com to stop publishing were made on political, religious, moral, and other 

grounds—not legal grounds. The government told the jury in the closing that “[t]hey know 

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about the Attorney Generals letters, and they know they are not on solid ground” 

(11//01/23 a.m. Tr. at 54:13-14), but that was not true, as the National Association of 

Attorneys’ General letters admitted at trial claimed that many Backpage.com ads related to 

illegal activity but the N.A.A.G. letters never claimed that Backpage was engaged in unlawful 

conduct for publishing such ads. Nor did the N.A.A.G. letters claim that Backpage.com’s 

publication of those ads was unprotected by the First Amendment.6 To the contrary, in its 

letter calling on Backpage.com to shut down its adult services section, N.A.A.G. justified its 

call on moral, not legal, grounds, saying: “We too, call on backpage to listen, to care, and 

respond now by shutting down the adult services section of its website. It is the right thing 

to do to protect innocent women and children.” Exhibit 52. The government’s 

introduction of prodigious amounts of evidence, both testimonial and documentary, of calls 

for the shutdown of Backpage.com on political, religious, moral, and other grounds—not 

because Backpage.com’s publication of adult advertising was unprotected by the First 

Amendment and subject to criminal sanction—was highly prejudicial to Defendants and of 

no relevance to the jury’s determination under the Court’s jury instructions of whether “an 

ad propose[d] an illegal transaction” and, therefore, was “not protected by the First 

Amendment.” Doc. 1998 at 48. Instead, the government’s evidence and its argument to the 

jury in closing that the jury could convict Defendants because they did not shut down the 

website was yet another call for the jury to ignore the Court’s jury instructions, by failing to 

apply the presumption that Backpage’s publication of adult ads was protected by the First 

Amendment unless the government proved that “an ad propose[d] an illegal transaction.” 

Id. 

5. The Court Should Grant a New Trial Because the Government Used Evidence

Admitted Under the Not for the Truth Hearsay Exception For Its Truth,

Making That Evidence Impermissible Hearsay.

6 Moreover, as the government well knows, Backpage.com’s response letters to N.A.A.G. 

expressly asserted that its publication of such ads was First Amendment protected and

N.A.A.G. never responded asserting a contrary opinion. See the government’s exhibits 487 

and 820a, which the government did not move into evidence, attached hereto as Ex. A, B. 

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During the trial, the Court, at the government’s request, admitted a large amount of 

evidence as non-hearsay because the government said it was offering the evidence not for its 

truth, but only to prove notice. The government then proceeded to use that evidence for its 

truth throughout the trial, including in its closing arguments. For example, in its closing the 

government told the jury that the Defendants “know about the Attorney Generals letters, 

and they know they are not on solid ground.” 11//01/23 a.m. Tr. at 54:13-14. This is just 

one of many examples of “not for the truth” evidence being argued for the truth, i.e., as the 

government claimed that Defendants were not on “solid ground” meant the N.A.A.G. 

letters were evidence of legal wrongdoing. As another example, the government argued in 

its closing that the clip from the CNN documentary showed that Backpage.com had 

“cornered the market on prostitution advertisement” and “all you had to do was go to 

Backpage” and post an ad and the “phone started ringing in minutes.” Id. at 49:21-50:1. 

The government’s repeated claims that all the adult ads on Backpage.com were prostitution 

ads, and that nearly all of Backpage.com’s revenues were from prostitution ads, were 

backstopped with not for the truth evidence that was used for the truth—which was just

inadmissible hearsay. 

5. The Court Should Grant a New Trial Because the Significant Changes in the

Jury Instructions Just Before Closing Arguments Commenced Were Highly

Prejudicial to the Defense.

In advance of the trial, the government and the defense submitted their proposed

jury instructions, with the defense requesting instructions that the First Amendment 

protected Backpage.com’s publication of adult speech “unless the transaction proposed in 

the ad necessarily would be an illegal act” (Doc. 1626-3 at 161), citing, among other 

authorities, Valle Del Sol Inc. v. Whiting, 709 F3d 808, 822 (9th Cir. 2013). Defendants also 

requested an instruction that, “to satisfy the specific intent requirements of the Travel Act, 

the government must prove beyond a reasonable doubt, for each Count, that each defendant 

in some significant manner associated himself or herself with a particular business enterprise 

associated with the ad charged in that Count with the intent to promote, or facilitate the 

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promotion of, the prostitution offenses committed by that business enterprise” (Doc. 1626-3 

at 47), citing, among other authorities, United States v. Hansen, 599 U.S. 762 (2023). Before 

the trial commenced, the Court provided the parties with its proposed jury instructions, 

which rejected these two instructions proposed by Defendants, but included a First 

Amendment instruction saying, among other things, that: “the First Amendment does not 

protect speech relating to illegal activity.” 

While disagreeing with the Court’s decisions regarding these instructions, Defendants 

nonetheless prepared to try their case in accordance with them. Given these instructions, 

Defendants were effectively precluded from mounting a First Amendment defense, which 

was mentioned only in passing in one defense opening and in the presentation of evidence 

during the trial. Defendants likewise were unable to mount the specific intent defense they 

had intended—an aiding and abetting defense—whether in their openings or through 

eliciting evidence during the trial. 

On the morning before closing arguments commenced, the Court made material 

alterations to the jury instructions, including changing the First Amendment jury instruction 

so that it no longer read “the First Amendment does not protect speech relating to illegal 

activity” but instead said “the First Amendment does not protect speech that proposes an 

illegal transaction.” Doc. 1998 at 48. The Court also modified the Travel Act jury 

instruction to include language saying: “To prove specific intent, the government must 

establish that each defendant in some significant manner associated himself or herself with 

the purpose of promoting or facilitating the promotion of any business enterprise involving 

prostitution offenses that the defendant knew to be unlawful under state law.” Each of 

these changes was dramatic from the standpoint of the defense case. 

While the defense welcomed these modifications to the jury instructions (while still 

believing they were legally insufficient), these last-minute changes nonetheless severely 

prejudiced the defense for three reasons. First, the defense was unable make use of the 

instructions in their openings, in shaping the testimony that was elicited on crossexamination, or in assessing the witnesses they would call in the defense case. The Court’s 

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original First Amendment instruction, for example, would have dramatically undermined the 

effectiveness of an advice of counsel defense, while the instruction ultimately given would 

have allowed for a viable advice of counsel defense. Second, because the defense learned of 

these instructions on the cusp of closings, some defense counsel had no ability to adjust their 

closing arguments to account for the changes, particularly Mr. Cambria. But even those 

counsel who had a few days to adjust could not comb through 4,500 pages of transcripts to 

look for testimony that was not helpful under the original instructions but would have been 

helpful under the final instructions. Third, and critically, during the trial the Court admitted 

large quantities of evidence that was highly prejudicial to the defense that arguably could 

have been relevant under a “speech relating to illegal activity” standard, but which would not 

have been relevant under the “speech that proposes an illegal transaction” standard. The 

defense objected to all this evidence, but its objections were overruled. If the defense had 

known the case would go to the jury under the “speech that proposes an illegal transaction” 

standard, the defense would have had much stronger arguments to exclude most, if not all, 

of the “notice” evidence, which could have dramatically altered the evidence admitted. 

6. The Court Should Grant a New Trial Because the Jury Instructions Provided

Inadequate Guidance to the Jury and Allowed the Jury to Convict on Legally

Invalid Grounds—Which the Government Repeatedly Urged the Jury to Do.

Even with the Court’s modifications to the jury instructions after the close of

evidence, the instructions still suffered from three significant flaws. 

First, the Court’s First Amendment instruction included the correct legal standard—

“the First Amendment does not protect speech that proposes an illegal transaction”—but 

the instruction failed to tell the jury how those words have been interpreted by the Ninth 

Circuit and other courts. As set forth in Mr. Spear’s Rule 29 motion and in the authorities 

supporting Defendants’ proposed jury instructions (Doc. 1626-3 at 161-164), whether a 

particular instance of speech is protected must be evaluated from the content of the speech 

alone and speech is presumptively protected unless it proposes a transaction would necessarily

constitute an illegal act. The failure to provide such guidance to the jury resulted in the jury 

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convicting Mr. Spear on numerous Travel Act counts, even though the publication of the 

ads underlying those counts were protected by the First Amendment because, as a matter of 

law, the ads did not propose transactions that would necessarily constitute an illegal act (and 

nine of the ads expressly disclaimed being solicitations of prostitution—exhibits 216-a, 504-

511). Moreover, the lack of guidance also allowed the government to turn the law on its 

head, telling the jury that it could determine that a facially lawful ad saying “this is not an 

offer of prostitution” “is really for prostitution” and that contrary claims were “nonsense.” 

10/27/23 a.m. Tr. at 10:21-11:2. 

Second, although the Court added language looking somewhat like an aiding and 

abetting instruction to the Travel Act instruction, that language not only varied materially 

from the pertinent Ninth Circuit law, but it greatly eroded what was required for the jury to 

find specific intent, as it required the jury to find not that a defendant associated himself 

with a specific criminal enterprise with the intent of promoting it, but with the “purpose” of 

promoting “any business enterprise involving prostitution offenses.” In United States v. 

Gibson Specialty Co., 507 F.2d 446, 449 (9th Cir. 1974), the Ninth Circuit held that a 

conviction under the Travel Act requires the prosecutor to “show that the [defendant] in 

some significant manner associated himself with the purchaser’s criminal venture for the purpose 

of its advancement”) (emphasis added). The Court’s instruction only required the 

prosecution to show that Defendants “in some significant manner associated himself or 

herself with the purpose of promoting or facilitating the promotion of any business 

enterprise involving prostitution offenses that the defendant knew to be unlawful under state 

law” (Doc. 1998 at 30), which would allow conviction based on an intent to promote “the 

amorphous notion of ‘prostitution’” (Doc. 946 at 13:17-22) and based on an intent “to 

promote/facilitate a business enterprise one does not know exists” (Id. at 15:26-16:1), both 

of which are inconsistent with this Court’s prior rulings, as well as with the holding of the 

Ninth Circuit in Gibson and the Supreme Court in Hansen. 

Finally, the Court overruled Defendants’ objection to having just one Travel Act 

instruction for fifty separate Travel Act counts and also rejected Defendants’ proposed 

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Travel Act jury instruction that made clear that the government had to prove that each 

Defendant had the specific intent to facilitate the prostitution offenses of the specific 

business enterprise associated with the charged ad for that count. The instruction given to 

the jury improperly allowed it to mix and match the elements among all the Travel Act 

counts, to find that an intent to promote “any” business enterprise, even if unconnected to a 

count, allowed the jury to convict as to that count, and to find specific intent through proof 

of general intent. And that is exactly what the government told the jury it could do in its 

closing: “But what this instruction makes clear is that the if the defendant associated himself 

with the purpose of promoting any business enterprise involving prostitution, then he is 

guilty.” 11/01/23 a.m. Tr. at 51:4-7. 

Because of these flaws in the jury instructions, the jury could have (and likely did) 

convict Defendants for crimes based on Backpage’s publication of ads that were protected 

by the First Amendment and without finding every required element of the applicable 

offense. Because it is not possible to determine whether the jury convicted on a legally valid 

or a legally invalid basis, the verdict cannot stand. Keating v. Hood, 191 F.3d 1053, 1062 (9th 

Cir. 1999) (“The fundamental rule that applies when a jury delivers a general verdict that may 

rest either on a legally valid or legally invalid ground is clear: the verdict may not stand when 

there is no way to determine its basis.”). Because the jury instructions allowed the jury 

verdicts in this case to rest on legally invalid bases, the Court should order a new trial. 

RESPECTFULLY SUBMITTED this 4th day of December, 2023, 

Paul J. Cambria, Jr.

Erin McCampbell Paris

LIPSITZ GREEN SCIME CAMBRIA LLP

By: /s/ Paul J. Cambria, Jr.

Paul J. Cambria, Jr.

Attorneys for Michael Lacey

Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual (Jan. 

2020) § II (C) (3), Paul J. Cambria hereby attests that all other signatories listed, and on whose behalf this 

filing is submitted, concur in the filing’s content, and have authorized its filing.

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Gary S. Lincenberg

Gopi K. Panchapakesan

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW, P.C.

By: /s/ Gary Lincenberg

Gary Lincenberg

Attorneys for John Brunst

Eric W. Kessler

KESSLER LAW OFFICE

By: /s/ Eric W. Kessler

Eric W. Kessler

Attorneys for Scott Spear

Bruce Feder

FEDER LAW OFFICE, P.A.

By: /s/ Bruce Feder

Bruce Feder

Attorneys for Scott Spear

On December 4, 2023, a PDF version of this document was 

filed with Clerk of the Court using the CM/ECF System 

for filing and for Transmittal of a Notice of Electronic 

Filing to the to the CM/ECF registrants who have 

entered their appearance as counsel of record

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