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3611176.1 

DEFENDANTS’ JOINT MOTION TO DISMISS FOR GRAND JURY ABUSE 

Gary S. Lincenberg (admitted pro hac vice)

 glincenberg@birdmarella.com 

Ariel A. Neuman (admitted pro hac vice)

 aneuman@birdmarella.com 

Gopi K. Panchapakesan (admitted pro hac vice)

 gpanchapakesan@birdmarella.com 

BIRD, MARELLA, BOXER, WOLPERT, NESSIM, 

DROOKS, LINCENBERG & RHOW, P.C. 

1875 Century Park East, 23rd Floor 

Los Angeles, California 90067-2561 

Telephone: (310) 201-2100 

Facsimile: (310) 201-2110 

Attorneys for Defendant John Brunst 

Thomas H. Bienert, Jr. (admitted pro hac vice)

 tbienert@bmkattorneys.com 

Whitney Z. Bernstein (admitted pro hac vice)

 wbernstein@bmkattorneys.com 

BIENERT KATZMAN, PLC 

903 Calle Amanecer, Suite 350 

San Clemente, CA 92673 

Telephone: (949) 369-3700 

Facsimile: (949) 369-3701 

Attorneys for Defendant James Larkin 

[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. 

 CASE NO. 2:18-cr-00422-PHX-SMB 

DEFENDANTS’ JOINT MOTION TO 

DISMISS INDICTMENT FOR GRAND 

JURY ABUSE OR, IN THE 

ALTERNATIVE, FOR DISCLOSURE 

OF GRAND JURY TRANSCRIPTS

ORAL ARGUMENT REQUESTED 

Assigned to Hon. Susan M. Brnovich, 

Courtroom 506 

PUBLICLY FILED VERSION 

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3611176.1 

DEFENDANTS’ JOINT MOTION TO DISMISS FOR GRAND JURY ABUSE 

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

 pcambria@lglaw.com 

Erin McCampbell (admitted pro hac vice)

 emccampbell@lglaw.com 

LIPSITZ GREEN SCIME CAMBRIA LLP 

42 Delaware Avenue, Suite 120 

Buffalo, New York 14202 

Telephone: (716) 849-1333 

Facsimile: (716) 855-1580 

Attorneys for Defendant Michael Lacey 

Bruce Feder (AZ Bar No. 004832) 

 bf@federlawpa.com 

FEDER LAW OFFICE, P.A. 

2930 E. Camelback Road, Suite 160 

Phoenix, Arizona 85016 

Telephone: (602) 257-0135 

Attorney for Defendant Scott Spear 

David Eisenberg (AZ Bar No. 017218) 

 david@deisenbergplc.com 

DAVID EISENBERG PLC 

3550 N. Central Ave., Suite 1155 

Phoenix, Arizona 85012 

Telephone: (602) 237-5076 

Facsimile: (602) 314-6273 

Attorney for Defendant Andrew Padilla 

Joy Malby Bertrand (AZ Bar No. 024181) 

 joy.bertrand@gmail.com 

JOY BERTRAND ESQ LLC 

P.O. Box 2734 

Scottsdale, Arizona 85252 

Telephone: (602)374-5321 

Facsimile: (480)361-4694 

Attorney for Defendant Joye Vaught

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3611176.1 i 

DEFENDANTS’ JOINT MOTION TO DISMISS FOR GRAND JURY ABUSE 

TABLE OF CONTENTS 

Page 

I. INTRODUCTION ...................................................................................................... 1

II. ARGUMENT .............................................................................................................. 3

A. The Indictment’s Allegations Reveal That the Government Grossly

Abused the Grand Jury Process. ...................................................................... 3

1. The Indictment Must Be Dismissed to the Extent Any 

Government Misconduct Substantially Influenced the Grand 

Jury and Prejudiced Defendants. .......................................................... 3

2. The Indictment’s Slanderous Allegations That Defendants 

Engaged in Child Sex Trafficking Are Wrong and Highly 

Prejudicial. ............................................................................................ 4

3. The Indictment Grossly Misrepresents the Purported Evidence 

on Which Its Central Allegations Are Based. ...................................... 7

4. The Indictment Repeatedly Misstates the Law Applicable to 

the Charges Against Defendants. ....................................................... 11

a. The Government Ignores the First Amendment and 

Misstates the Requisite Mens Rea. .......................................... 12

b. The Indictment’s Travel Act Charge Is Incomplete. ............... 14

B. Alternatively, the Court Should Order the Disclosure of the Grand 

Jury Transcripts. ............................................................................................ 15

1. Disclosure of Grand Jury Transcripts Is Appropriate Where 

Conduct Occurring Before the Grand Jury May Warrant 

Dismissal of the Indictment. ............................................................... 15

2. Disclosure of the Grand Jury Transcripts Is Appropriate Here 

Given the Government’s Abuse of the Grand Jury Process. .............. 16

III. CONCLUSION ........................................................................................................ 17

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3611176.1 ii 

DEFENDANTS’ JOINT MOTION TO DISMISS FOR GRAND JURY ABUSE 

TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Mishkin v. New York, 

383 U.S. 502 (1966) ..................................................................................................... 13 

Smith v. California, 

361 U.S. 147 (1959) ..................................................................................................... 13 

United States v. Belton, 

2015 WL 1815273 (N.D. Cal. Apr. 21, 2015) ............................................................. 16 

United States v. Bravo-Fernandez, 

239 F. Supp. 3d 411 (D.P.R. 2017) ........................................................................ 15, 16 

United States v. Cerullo, 

2007 WL 2683799 (S.D. Cal. Sept. 7, 2007) ............................................................... 12 

United States v. Cwibeker, 

2015 WL 459315 (E.D.N.Y. Feb. 2, 2015) .................................................................... 4 

United States v. Donaway, 

447 F.2d 940 (9th Cir. 1971) ........................................................................................ 14 

United States v. FedEx Corp., 

2016 U.S. Dist. LEXIS 6155 (N.D. Cal. Jan. 19, 2016) .............................................. 16 

United States v. Fuentes, 

2008 WL 2557949 (E.D. Cal. June 24, 2008).............................................................. 16 

United States v. Gibson Specialty Co., 

507 F.2d 446 (9th Cir. 1974) ........................................................................................ 13 

United States v. Ho, 

2009 WL 2591345 (D. Haw. Aug. 20, 2009) ........................................................ 15, 16 

United States v. Hoey, 

2014 WL 2998523 (S.D.N.Y. July 2, 2014) ................................................................ 12 

United States v. Hogan, 

712 F.2d 757 (2d Cir. 1983) ......................................................................................... 11 

United States v. Navarro, 

608 F.3d 529 (9th Cir. 2010) ................................................................................ 3, 4, 11 

Case 2:18-cr-00422-DJH Document 782 Filed 10/18/19 Page 4 of 25
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3611176.1 iii 

DEFENDANTS’ JOINT MOTION TO DISMISS FOR GRAND JURY ABUSE 

United States v. Peralta, 

763 F. Supp. 14 (S.D.N.Y. 1991) ................................................................................... 7 

United States v. Plummer, 

941 F.2d 799 (9th Cir. 1991) ........................................................................................ 15 

United States v. Rogers, 

389 F. Supp. 3d 774 (C.D. Cal. 2019) ......................................................................... 14 

United States v. Stevens, 

771 F. Supp. 2d 556 (D. Md. 2011) ............................................................................. 12 

United States v. Vetere, 

663 F. Supp. 381 (S.D.N.Y. 1987) ........................................................................... 7, 11 

United States v. Walczak, 

783 F.2d 852 (9th Cir. 1986) ........................................................................................ 15 

United States v. Williams, 

504 U.S. 36 (1992) ......................................................................................................... 3

United States v. X-Citement Video, Inc., 

513 U.S. 64 (1994) ....................................................................................................... 13 

Statutes 

18 U.S.C. 

§ 1952(a)(3) .................................................................................................................. 14 

§ 2252 ........................................................................................................................... 13 

Other Authorities 

Fed. R. Crim. P. 6(e)(3)(E)(ii) ........................................................................................... 15

U.S. Const. amend. I ................................................................................................ 2, 12, 13 

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3611176.1 1 

DEFENDANTS’ JOINT MOTION TO DISMISS FOR GRAND JURY ABUSE 

I. INTRODUCTION 

The superseding indictment (“Indictment”) should be dismissed for gross abuse of 

the grand jury process. The Indictment contains explosive and prejudicial allegations of 

child sex trafficking that have nothing to do with the charges in the case (alleged 

facilitation of prostitution), that unfairly and unduly tainted the grand jury proceedings, 

and that were directly contradicted by the government’s key cooperating witness prior to 

the government asking the grand jury to vote on the Indictment. The Indictment further 

contains false summaries of documentary evidence that was in the government’s hands, 

but was apparently misrepresented to the grand jury. Moreover, the Indictment’s 

allegations reflect the government’s erroneous analysis of the law applicable to the charges 

against Defendants, strongly suggesting that the government incorrectly or incompletely 

advised the grand jury on the law. Each of these instances of government misconduct 

separately warrants dismissal of the Indictment. Collectively, this misconduct inexorably 

leads to the conclusion that the government grossly abused the grand jury process, 

requiring dismissal of the Indictment.1

 

The government’s factual misrepresentations and misstatements of law are 

far-reaching and affect every aspect of the Indictment. First, the Indictment falsely, 

repeatedly, and irrelevantly alleges that Defendants engaged in child sex trafficking and 

knowingly published ads for sex with underage children, when, in fact, Carl Ferrer—

Backpage’s former CEO and the government’s star cooperating witness—contradicted 

these allegations in statements made to the government prior to the issuance of the 

Indictment. Not only that, but the government does not even charge Defendants with sex 

trafficking (let alone child sex trafficking), yet asked the grand jury to return an Indictment 

 

1

 This Motion refers to various memoranda of interview and other documents subject to 

the Protective Order. See Dkts. 730, 731. Therefore, this publicly filed version contains 

redactions. An unredacted copy has been filed under seal. Defendants reserve their rights 

to object to the existence and scope of the Protective Order. See Dkt. 740 (Brunst’s 

Motion to Compel Government Compliance). 

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3611176.1 2 

DEFENDANTS’ JOINT MOTION TO DISMISS FOR GRAND JURY ABUSE 

replete with references to such acts. These scurrilous allegations had no place in front of 

the grand jury, and there can be no doubt that they unfairly prejudiced Defendants. They 

simply have nothing to do with the Indictment’s charges and unfairly tarred Defendants in 

the eyes of the grand jury. At a minimum, there is grave doubt that the grand jury would 

have returned an indictment absent the government’s incendiary and false allegations. 

Second, the Indictment’s allegations regarding its central theories—that, inter alia, 

Defendants engaged in the aggregation of prostitution ads from other sites, created shell 

companies to facilitate money laundering activities, and continued to assert operational 

control over Backpage after its sale in April 2015—are predicated on blatantly inaccurate 

summaries of key documents and also are contradicted by witness statements given to the 

government prior to the issuance of the Indictment, including by Ferrer. The allegations in 

the Indictment, when compared to the underlying documents, demonstrate a pattern of 

conduct by the government in which it misrepresented the evidence to the grand jurors in 

order to secure the Indictment. 

Third, the Indictment evinces that the government misled the grand jury on the law 

applicable to the charges against Defendants. As has been briefed by Defendants in their 

prior motions to dismiss, the government ignores the applicability of the First Amendment 

to Defendants’ publishing activities and impermissibly seeks to prosecute them for 

a specific intent crime based on their purported general awareness that some users posted 

prostitution ads on Backpage.com. See Dkt. 561. Additionally, the Indictment fails to 

identify the “business enterprise” that forms the basis for its Travel Act charges, fails to 

allege that Defendants had the specific intent to facilitate that business enterprise’s 

prostitution offenses, and fails to allege that Defendants knowingly and willfully 

committed an act or acts to facilitate that unlawful activity, but instead insufficiently 

alleges only that Defendants facilitated or promoted “prostitution.” See Dkt. 746. Each of 

these failures demonstrates that the government erroneously and/or incompletely instructed 

the grand jury on the law applicable to the charges presented to them. 

In sum, the government’s presentation to the grand jury—as reflected by the 

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3611176.1 3

DEFENDANTS’ JOINT MOTION TO DISMISS FOR GRAND JURY ABUSE 

Indictment the prosecutors drafted and had the grand jury return—contained egregious 

misrepresentations of both the facts and the law, as well as inflammatory, false, and 

irrelevant allegations of child sex trafficking. As a result, the grand jury process was 

unconstitutionally tainted. The prejudice resulting from these misrepresentations is 

overwhelming and casts grave doubt over the integrity of the grand jury proceedings. The 

Court should therefore dismiss the Indictment. 

Alternatively, Defendants request that the Court order the disclosure of the grand 

jury transcripts so that the Defendants and the Court can examine the government’s actions 

before the grand jury firsthand. The policy justifications for maintaining the secrecy of 

such material no longer exist given that the case has been charged, discovery produced, 

and preliminary witness lists shared.2

II. ARGUMENT 

A. The Indictment’s Allegations Reveal That the Government Grossly

Abused the Grand Jury Process. 

1. The Indictment Must Be Dismissed to the Extent Any 

Government Misconduct Substantially Influenced the Grand Jury 

and Prejudiced Defendants. 

The purpose of grand jury review is to provide a buffer between overreaching 

government prosecutors and the citizenry. United States v. Williams, 504 U.S. 36, 47 

(1992).3

 A district court may dismiss an indictment for errors made by the government in 

grand jury proceedings that “prejudice” the defendant. United States v. Navarro, 608 F.3d 

529, 538-39 (9th Cir. 2010). “[F]or errors brought to the district court’s attention ‘prior to 

the conclusion of the trial,’ dismissal of the indictment ‘is appropriate only if it is 

 

2

 Moreover, in light of the facts presented in this Motion, there is every reason to believe 

that the transcripts contain Jencks, Giglio, or impeachment material, including regarding 

its key cooperating witness, Carl Ferrer. 

3

 Unless otherwise noted, internal citations and quotation marks have been omitted. 

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established that the violation substantially influenced the grand jury’s decision to indict or 

if there is grave doubt that the decision to indict was free from the substantial influence of 

such violations.’” Id. at 539 (quoting Bank of Nova Scotia v. United States, 487 U.S. 250, 

256 (1988). Under this standard, “an indictment may be dismissed where the 

Government’s instruction on the applicable law was false or misleading.” United States v. 

Cwibeker, 2015 WL 459315, at *5 (E.D.N.Y. Feb. 2, 2015). 

Here, as explained below, the Indictment reveals three separate ways in which the 

government abused the grand jury process, each of which requires dismissal of the 

Indictment. First, the Indictment recklessly, explosively, and irrelevantly accuses 

Defendants of engaging in child sex trafficking. Second, the Indictment materially 

misrepresents key documentary evidence in support of its central claims against 

Defendants. Third, the Indictment makes clear that the government incorrectly and/or 

incompletely instructed the grand jury regarding the applicable law. The totality of these 

misrepresentations of fact and law leaves no doubt that the government abused the grand 

jury process in a manner that “substantially influenced the grand jury’s decision to indict,” 

and at the very least leaves “grave doubt that the decision to indict was free from the 

substantial influence of such violations.” Navarro, 608 F.3d at 539. 

2. The Indictment’s Slanderous Allegations That Defendants 

Engaged in Child Sex Trafficking Are Wrong and Highly 

Prejudicial. 

The Indictment outrageously, without one iota of evidentiary support, and despite 

the government’s knowledge at the time of presentment that such allegations were false, 

repeatedly accuses Defendants of engaging in child sex trafficking. The Indictment lobs 

these scurrilous and highly prejudicial allegations over 20 times, contending baselessly that 

Defendants knowingly allowed ads involving child sex trafficking to be published on 

Backpage.com and feigned cooperation with law enforcement by underreporting ads 

involving underage individuals. See, e.g., Dkt. 230 (Indictment) at ¶ 14 (“Backpage . . . 

contributed to the proliferation of ads featuring prostitution of children.”); ¶ 140 (“In 

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practice, Backpage’s stated interest in doing something meaningful to stop child sex 

trafficking ads on its site is apparently overridden by the enormous revenue it generates 

from its escort ads, including ads selling children for sex.”), ¶¶ 13, 74, 86, 95, 100, 104, 

111, 115, 121, 123, 131, 133, 134, 135, 136, 140, 144, 146, 151. 

Critically, these allegations were expressly disavowed by Ferrer—Backpage’s 

former CEO and the government’s key cooperating witness—in statements he made 

directly to the government preceding the filing of the Indictment. They also are 

contradicted by the very organization to which Backpage referred all potential child sex 

trafficking advertisements. Indeed, the government does not charge Defendants with 

any sex trafficking offense (let alone child sex trafficking), suggesting that the only 

reason the government presented these falsehoods to the grand jury was to inflame the 

jurors and secure the return of an indictment on unrelated charges. 

For example, the Indictment falsely contends that: 

Many of the ads published on Backpage depicted children who 

were victims of sex trafficking. Once again, although 

Backpage sought to create the perception that it was diligently

attempting to prevent the publication of such ads, the reality is 

that Backpage allowed such ads to be published while 

declining—for financial reasons—to take necessary steps to 

address the problem. 

Indictment at ¶ 13 (also alleging that “[F]or several years, Backpage’s official policy, 

when presented with an ad featuring the prostitution of a child, was to delete the particular 

words in the ad denoting the child’s age and then publish a revised version of the ad.”). 

Ferrer directly contradicted this assertion in an April 5, 2018 interview with the 

government—an interview at which the lead prosecutors were present—stating that his 

 and that 

 Exh. 1 (Revised version of April 5, 2018 Memorandum of 

Interview [“MOI”] of Carl Ferrer) at ¶ 70) (emphasis added). 

The Indictment is riddled with these contradictions. Another astonishing example is 

the Indictment’s allegation that Backpage “artificially limit[ed]” its referrals of ads to the 

National Center for Missing and Exploited Children (“NCMEC”). Indictment at ¶ 14. 

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3611176.1 6

DEFENDANTS’ JOINT MOTION TO DISMISS FOR GRAND JURY ABUSE 

That is not what Ferrer told the government. In fact, he told the government the opposite 

in no uncertain terms, explaining that: 







Significantly, Ferrer told the government that Backpage was once 

 Id. at ¶ 12 

 (emphasis added). 

Further, internal NCMEC emails reflect the fact that Backpage was vigilant in 

cooperating with law enforcement and reporting ads potentially involving children to 

NCMEC and directly contradict the Indictment’s allegations, including those noted above. 

Those emails recount meetings between NCMEC and Backpage and state the following: 

 A July 11, 2011 email outlines Backpage’s policy regarding the reporting of 

ads to NCMEC’s CyberTipline: “If . . . Backpage receives a report from the 

public or one of their users about an ad involving a minor and the moderator 

feels it is valid, then they ghost the ad and remove it from the list of ads 

available in that area. They then report it to the CyberTipline and archive all 

of the data waiting for a subpoena from law enforcement.” Exh. 17 (July 11, 

2011 email from J. Shehan to E. Allen) at 2. 

 A September 9, 2011 email notes that Backpage had reported over 200 ads 

per month to NCMEC’s CyberTipline in recent months. Exh. 18 

(September 9, 2011 email from S. Urie to E. Allen) at 1. 

 That same email notes that Ferrer felt that, in his experience, law

enforcement either “love the reports they are receiving from Backpage” or 

“feel they are getting too many reports.” Id. There also were instances in 

which Backpage unknowingly removed law enforcement “sting” ads for 

child trafficking because the ads violated the company’s terms of service. Id. at 2. 

 An October 13, 2011 email notes that Backpage’s website contained a “User

Safety” section that provided users guidance on reporting ads to NCMEC. 

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3611176.1 7

DEFENDANTS’ JOINT MOTION TO DISMISS FOR GRAND JURY ABUSE 

Ferrer also sought input from NCMEC to improve the section. Exh. 19 

(October 13, 2011 e-mail from S. Urie to E. Allen) at 1-2. 

In short, the evidence is overwhelming that the Indictment falsely accuses 

Defendants of engaging in child sex trafficking and grossly distorts Backpage’s proactive 

and voluntary efforts to cooperate with law enforcement and NCMEC. 

In United States v. Vetere, 663 F. Supp. 381, 383 (S.D.N.Y. 1987), the court 

dismissed the indictment where the prosecutor’s presentation to the grand jury involved 

“non-relevant, highly prejudicial, and erroneous information about the defendant’s 

criminal record, and possibly erroneous and misleading instructions on the law.” United 

States v. Peralta, 763 F. Supp. 14, 21 (S.D.N.Y. 1991) (citing Vetere). Here too, the 

government presented to the grand jury irrelevant, highly prejudicial, and false evidence 

regarding Defendants’ purported involvement in child sex trafficking, particularly 

egregious conduct considering that the Indictment does not charge Defendants with any 

sex trafficking offense. 

So why include these untrue allegations before the grand jury and in the 

Indictment? These are not minor details that the government got wrong; these are 

explosive allegations that had no place in the Indictment or in the presentation to the grand 

jury. These are the types of allegations that can overwhelm reason, overwhelm logic, and 

lead to decisions out of anger and disgust, regardless of what else is presented. The 

government’s conduct amounts to “prosecutorial impairment of the grand jury’s 

independent role” and warrants dismissal of the Indictment. Vetere, 663 F. Supp. at 386 

(quoting United States v. Hogan, 712 F.2d 757, 761 (2d Cir. 1983)). Indeed, these are the 

types of allegations that would “substantially influence” a grand jury’s decision to indict, 

and at the very least leave a “grave doubt” that the decision was free of such influence. 

3. The Indictment Grossly Misrepresents the Purported Evidence on 

Which Its Central Allegations Are Based. 

The Indictment also distorts and twists the evidence on which the government’s 

central theories are based—that, inter alia, Defendants engaged in the aggregation of 

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the law, all but ensure that the grand jury was similarly mis-instructed. Dismissal of an 

indictment on this basis is appropriate. For example, in United States v. Cerullo, 2007 WL 

2683799, at *3 (S.D. Cal. Sept. 7, 2007), a tax fraud case, the court dismissed the 

indictment where the prosecutor repeatedly failed to properly instruct the grand jury on 

how to distinguish a gift from earnings. In United States v. Stevens, 771 F. Supp. 2d 556, 

568 (D. Md. 2011), the district court dismissed the indictment due to “grave doubts as to 

whether the decision to indict was free from substantial influence of the improper advice of 

[the prosecutor’s] instruction.” See also United States v. Hoey, 2014 WL 2998523, at *3 

(S.D.N.Y. July 2, 2014) (“courts have found error where the government incompletely or 

erroneously provides legal instruction to the grand jury”). 

Here, the Indictment reveals that the government either incorrectly or incompletely 

instructed the grand jury regarding: (1) the applicability of the First Amendment to 

Defendants’ publishing activities and the requisite mens rea applicable to its charges, and 

(2) the Travel Act’s requirement that a defendant act with the specific intent to facilitate or 

promote the unlawful prostitution offenses of a “business enterprise.” The government’s 

misstatements of the law to the grand jury further require dismissal of the Indictment. 

a. The Government Ignores the First Amendment and 

Misstates the Requisite Mens Rea. 

As is explained at length in Defendants’ Motion to Dismiss (Dkt. 561), the 

Indictment erroneously contends that the First Amendment has no application to 

Defendants’ publishing activities because the underlying ads allegedly were for 

prostitution. Indeed, the Indictment that the grand jury returned explicitly misstates the 

law on this issue, improperly reasoning that because “[p]rostitution is illegal in 49 states 

and in most of Nevada” that “[a]dvertisements for prostitution services in those locations 

are, therefore, not protected by the First Amendment.” Indictment at ¶ 33. But it is the 

publishing of those ads, posted by third parties, for which Defendants have been indicted. 

The Indictment therefore falsely equates the publishing of ads that might relate to 

prostitution with the criminal act of prostitution itself. That clearly is not the law, as there 

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are certain well-established constitutional protections and presumptions that apply to the 

publishing of third-party content, even if that content relates to allegedly illegal activities. 

See Dkt. 561 at 13-14. 

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

criminally punish publishers or distributors of speech without sufficient proof of scienter, 

i.e., that a defendant knew the specific speech that is the basis for criminal charges was 

illegal. See Dkt. 561 at 28; Smith v. California, 361 U.S. 147, 153-54 (1959); see also

Mishkin v. New York, 383 U.S. 502, 511 (1966) (“The Constitution requires proof of

scienter to avoid the hazard of self-censorship of constitutionally protected material . . . .”); 

United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994) (interpreting 18 U.S.C. 

§ 2252 to require proof that defendant knew that one or more specific performers in video 

were under 18, because a statute “bereft of [such] a scienter requirement . . . would raise 

serious constitutional doubts”). 

Further, the Travel Act is a specific intent crime. Therefore, one who provides 

a service or product ultimately used for criminal purposes is liable only if the prosecution 

shows the defendant “associated himself with the purchaser’s criminal venture for the 

purpose of its advancement.” United States v. Gibson Specialty Co., 507 F.2d 446, 449 

(9th Cir. 1974). As a result, “[t]he presumption that one intends the natural and probable 

consequences of his actions is insufficient in this context to establish intent to facilitate 

criminal activity.” Id. at 450, n.8; see also Dkt. 561 at 38-39.

In other words, the government is required to prove that Defendants knowingly and 

willfully published a given ad, with the specific intent to facilitate the unlawful prostitution 

activities of a business enterprise associated with that ad (i.e., knowing that the ad in 

question was for prostitution and with the intent to facilitate that prostitution). The 

Indictment turns this basic legal proposition on its head—instead alleging that Defendants 

generally were aware that prostitution ads existed on the Backpage site—which strongly 

suggests that the grand jury was misled regarding the essential nature of the charges 

against Defendants. If there was any doubt that the government misadvised the grand jury 

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on these issues, the statements it has made to the Court and Defendants following the 

issuance of the Indictment only bolster the concerns that the government’s presentation to 

the grand jury and the grand jury’s decision were constitutionally infirm. See Exh. 11 

(October 5, 2018 Hearing Tr.) at 102:9-14 (“[W]hat’s at issue in this case [is] [d]id they 

know that the vast majority of these advertisements that went up on this Web site were for 

prostitution?”); Exh. 12 (January 10, 2019 letter from R. Jones to M. Piccarreta) at 3 

(“Here, because of the aggregation, affiliation, and reciprocal link ventures and other 

conduct summarized above, Backpage knew that every ad had the potential for facilitating 

prostitution services, including child sex trafficking”) (emphasis added). 

b. The Indictment’s Travel Act Charge Is Incomplete. 

The Travel Act requires that the government identify the specific “business 

enterprise” at issue and that Defendants knowingly and willfully sought to promote or 

facilitate the unlawful aims of that enterprise. 18 U.S.C. § 1952(a)(3). As is discussed in 

Mr. Brunst’s pending motion to dismiss (Dkt. 746), the Indictment fails to do either of 

these things, alleging only that Defendants facilitated certain unspecified prostitution 

offenses throughout the country. Indictment at ¶ 201. The Indictment’s allegations 

demonstrate that the government improperly instructed the grand jury that Defendants’ 

involvement in a website that published alleged prostitution ads was sufficient to establish 

probable cause that they violated the Travel Act, when in fact the Travel Act was never 

intended to address facilitation or promotion of criminal activity in general, or sporadic 

criminal activity by disconnected individuals, such as what the government has alleged 

here and presented to the grand jury. See United States v. Donaway, 447 F.2d 940, 944 

(9th Cir. 1971) (“The words ‘business enterprise’ as used in § 1952 refer to a continuous 

course of criminal conduct rather than sporadic casual involvement in a proscribed 

activity.”); United States v. Rogers, 389 F. Supp. 3d 774, 786 (C.D. Cal. 2019) (“The 

Travel Act targets activities taken in connection with organizations involving . . . 

prostitution.”). This critical error in the government’s presentation to the grand jury also 

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requires dismissal of the Indictment.5

B. Alternatively, the Court Should Order the Disclosure of the Grand Jury 

Transcripts. 

1. Disclosure of Grand Jury Transcripts Is Appropriate Where 

Conduct Occurring Before the Grand Jury May Warrant 

Dismissal of the Indictment. 

Pursuant to Federal Rule of Criminal Procedure 6(e)(3)(E)(ii), a “court may 

authorize disclosure—at a time, in a manner, and subject to any other conditions that it 

directs—of a grand jury matter . . . at the request of a defendant who shows that a ground 

may exist to dismiss the indictment because of a matter that occurred before the grand 

jury.” Generally, “[m]aterial within Rule 6(e)’s scope . . . may be disclosed when 

‘a particularized need exists which outweighs the policy of grand jury secrecy.’” United 

States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986) (quoting Pittsburgh Plate Glass Co. 

v. United States, 360 U.S. 395, 400 (1959)). Disclosure under Rule 6(e) is within the 

“sound discretion of the trial court.” Id. The interests protected by the secrecy of grand 

jury proceedings include: “encouraging witnesses to come forth voluntarily and to testify 

fully and frankly, reducing the possibility that those under investigation will flee or attempt 

to influence grand jurors’ votes, and protecting accused, but exonerated individuals from 

public ridicule.” United States v. Plummer, 941 F.2d 799, 806 n.4 (9th Cir. 1991) (citing 

Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979)).

Disclosure is appropriate where the government, “on-the-record,” has expressed an 

incorrect understanding of the law, which could have resulted in “possible misleading of 

the grand jury.” United States v. Ho, 2009 WL 2591345, at *4 (D. Haw. Aug. 20, 2009). 

The Indictment itself also can “suggest[ ] the government misunderstood the law.” United 

States v. Bravo-Fernandez, 239 F. Supp. 3d 411, 416 n.8 (D.P.R. 2017) (citing United 

 

5

 The government’s misstatements of law regarding the Travel Act charges are also fatal 

to the money laundering and conspiracy charges, as the predicate for those charges is 

a violation of, or agreement to violate, the Travel Act. 

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DEFENDANTS’ JOINT MOTION TO DISMISS FOR GRAND JURY ABUSE 

States v. FedEx Corp., No. C14–00380, 2016 U.S. Dist. LEXIS 6155, at *3 (N.D. Cal. Jan. 

19, 2016)). 

2. Disclosure of the Grand Jury Transcripts Is Appropriate Here 

Given the Government’s Abuse of the Grand Jury Process. 

The government’s abuse of the grand jury process outlined above warrants 

disclosure of the underlying transcripts. First, the government’s repeated “on-the-record” 

misrepresentations of law, standing alone, afford the Court discretion to order disclosure of 

the transcripts. See Ho, 2009 WL at *4; Bravo-Fernandez, 239 F. Supp. 3d at 416 n.8; 

FedEx, 2016 U.S. Dist. LEXIS 6155 at *3. 

Second, the government’s pervasive factual misrepresentations also justify the 

disclosure of the transcripts. Defendants admittedly do not know who testified in front of 

the grand jury or what they said, but if the government presented witnesses to the grand 

jury that it intends to call at trial, including Ferrer, then these transcripts may constitute 

Jencks, Giglio, or impeachment material.6

 

Further, disclosure is appropriate where the interests protected by the secrecy of the 

grand jury proceedings no longer apply, e.g., where witnesses have testified, where those 

under investigation are charged, and where the witnesses have been identified to the 

defendants. Such disclosure routinely occurs if the grand jury transcripts contain Jencks, 

Giglio, or Brady material. Indeed, none of the rationales that justify the policy of grand 

 

6

 At a minimum, Defendants are entitled to the legal instructions provided to the grand 

jury and any colloquy between the grand jurors and the prosecutors regarding the 

applicable law. Defendants need not make a showing of particularized need in order to 

gain access to this material. Courts in this Circuit have repeatedly concluded that 

defendants are “entitled to disclosure of . . . [t]he legal instructions given to the grand jury 

regarding the charges on which they are deliberating . . . even without a showing of 

particularized need.” United States v. Belton, 2015 WL 1815273, at *3 (N.D. Cal. Apr. 21, 

2015); see also United States v. Fuentes, 2008 WL 2557949, at *4 (E.D. Cal. June 24, 

2008) (“The government opposes this request on the grounds that the defendants have not 

made a showing of particularized need. The argument is unpersuasive. The defendants are 

entitled to the transcript of the instructions and charges to the grand jury.”). 

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DEFENDANTS’ JOINT MOTION TO DISMISS FOR GRAND JURY ABUSE 

jury secrecy apply here. First, as the grand jury proceedings have long since concluded, 

there is no risk that disclosure of the transcripts will discourage witnesses from testifying. 

Second, there is no risk that Defendants, who already have been indicted, will flee or 

otherwise improperly seek to influence any of the grand jurors. In short, there is no 

conceivable harm that can result from the disclosure of the transcripts.7

 Indeed, although 

the government recently refused to disclose the relevant transcripts without offering 

a reason,8

 Exh. 13

 at 6-7; see also Exh. 14 

 at 1. 

III. CONCLUSION 

For the foregoing reasons, Defendants respectfully request that the Court dismiss 

the Indictment for grand jury abuse. Alternatively, the Court should disclose the grand 

jury transcripts to the defense so that the parties and the Court can examine the transcripts 

firsthand and determine what occurred before the grand jury. 

 

7

 To the extent the government is concerned about public disclosure of the transcripts, 

Defendants will stipulate to a protective order. 

8

 After refusing early in the case to disclose the grand jury transcripts in response to 

a request from counsel for Mr. Padilla, counsel for Mr. Brunst followed up on 

September 5, 2019, to renew the request. See Exh. 15 (Email from A. Neuman to 

K. Rapp). In addition to summarizing the bases for the disclosure of the transcripts 

identified in this motion, counsel stated that, “[n]ow that the case has been charged, Jencks 

Act material and preliminary witness and exhibit lists have been disclosed, and the case is 

set for trial, the need for grand jury secrecy has passed.” Id. The government rejected the 

request. Id. 

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3611176.1 18

DEFENDANTS’ JOINT MOTION TO DISMISS FOR GRAND JURY ABUSE 

DATED: October 18, 2019 Gary S. Lincenberg 

Ariel A. Neuman 

Gopi K. Panchapakesan 

BIRD, MARELLA, BOXER, WOLPERT, 

NESSIM, DROOKS, LINCENBERG & 

RHOW, P.C. 

By: /s/ Ariel A. Neuman 

 Ariel A. Neuman 

Attorneys for Defendant John Brunst 

Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures 

Manual (May 2018) § II (C) (3), Ariel A. Neuman herby 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. 

DATED: October 18, 2019 Thomas H. Bienert, Jr. 

Whitney Z. Bernstein 

BIENERT KATZMAN PC 

By: /s/ Thomas H. Bienert, Jr. 

 Thomas H. Bienert, Jr. 

Attorneys for Defendant James Larkin 

DATED: October 18, 2019 Paul J. Cambria, Jr. 

Erin McCampbell 

LIPSITZ GREEN SCIME CAMBRIA LLP 

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

 Paul J. Cambria, Jr. 

Attorneys for Defendant Michael Lacey 

DATED: October 18, 2019 FEDER LAW OFFICE, P.A. 

By: /s/ Bruce Feder 

 Bruce Feder 

Attorney for Defendant Scott Spear 

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3611176.1 19

DEFENDANTS’ JOINT MOTION TO DISMISS FOR GRAND JURY ABUSE 

DATED: October 18, 2019 DAVID EISENBERG PLC 

By: /s/ David Eisenberg 

 David Eisenberg 

Attorney for Defendant Andrew Padilla 

DATED: October 18, 2019 JOY BERTRAND ESQ LLC 

By: /s/ Joy Malby Bertrand 

 Joy Malby Bertrand 

Attorney for Defendant Joye Vaught 

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3611176.1 20

CERTIFICATE OF SERVICE 

CERTIFICATE OF SERVICE 

I hereby certify that on October 18, 2019, I served the attached document by email 

on the following, who are registered participants of the CM/ECF System: 

Andrew C. Stone andrew.stone@usdoj.gov

Anthony Ray Bisconti tbisconti@bmkattorneys.com 

Bruce S. Feder bf@federlawpa.com

David S. Eisenberg david@deisenbergplc.com 

Erin E. McCampbell emccampbell@lglaw.com 

James C. Grant jimgrant@dwt.com

John Jacob Kucera john.kucera@usdoj.gov

John Lewis Littrell jlittrell@bmkattorneys.com 

Joy Malby Bertrand joyous@mailbag.com 

Kevin M. Rapp kevin.rapp@usdoj.gov

Margaret Wu Perlmeter margaret.perlmeter@usdoj.gov

Michael D. Kimerer mdk@kimerer.com 

Paul John Cambria, Jr. pcambria@lglaw.com 

Peter Shawn Kozinets peter.kozinets@usdoj.gov

Reginald E. Jones reginald.jones4@usdoj.gov

Rhonda Elaine Neff rneff@kimerer.com 

Robert Corn-Revere bobcornrevere@dwt.com 

Ronald Gary London ronnielondon@dwt.com 

Seetha Ramachandran sramachandran@proskauer.com

Thomas Henry Bienert, Jr. tbienert@bienertkatzman.com 

Whitney Z. Bernstein wbernstein@bienertkatzman.com

/s/ Gopi K. Panchapakesan 

 Gopi K. Panchapakesan 

Case 2:18-cr-00422-DJH Document 782 Filed 10/18/19 Page 25 of 25