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3744366.1

DEFENDANTS’ JOINT (1) RESPONSE TO GOVERNMENT’S MOTION TO PRECLUDE 

ADVICE OF COUNSEL DEFENSE AND (2) RENEWED MOTION TO DISMISS

Thomas H. Bienert, Jr. (admitted pro hac vice) tbienert@bklwlaw.com

Whitney Z. Bernstein (admitted pro hac vice) wbernstein@bklwlaw.com

BIENERT KATZMAN LITTRELL WILLIAMS LLP

903 Calle Amanecer, Suite 350

San Clemente, CA 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

Attorneys for Defendant James Larkin

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

[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 (1) RESPONSE 

TO GOVERNMENT’S MOTION TO 

PRECLUDE ADVICE OF COUNSEL 

DEFENSE AND (2) RENEWED 

MOTION TO DISMISS FOR 

OUTRAGEOUS GOVERNMENT 

CONDUCT

[PUBLIC VERSION]

[Oral Argument Requested]

Assigned to Hon. Susan M. Brnovich, Courtroom 506

Trial Date: September 1, 2021

Case 2:18-cr-00422-DJH Document 1239 Filed 08/26/21 Page 1 of 13
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3744366.1 2

DEFENDANTS’ JOINT (1) RESPONSE TO GOVERNMENT’S MOTION TO PRECLUDE ADVICE OF 

COUNSEL DEFENSE AND (2) RENEWED MOTION TO DISMISS

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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3744366.1 3

DEFENDANTS’ JOINT (1) RESPONSE TO GOVERNMENT’S MOTION TO PRECLUDE ADVICE OF 

COUNSEL DEFENSE AND (2) RENEWED MOTION TO DISMISS

I. INTRODUCTION

Earlier in the case, in opposing Defendants’ Motion to Dismiss based on the 

government’s invasions of the attorney-client privilege during its interviews of Carl Ferrer, 

the government broadly claimed: “Defendants’ legal defenses to civil and criminal 

liability are no secret. Defendants have publicly disclosed their defense theories regarding 

Backpage’s operations, including reliance on the First Amendment, the CDA, and not 

possessing criminal intent, in a multitude of ways.” Dkt. 998 at 10 (emphasis added). 

The Court agreed. Dkt. 1168. 

Now, in response to the disclosure of materials reflecting the very legal advice that 

the government discussed with Ferrer and that the government asserted (and this Court 

found) was not privileged, the government does an about-face. The government now 

shockingly asserts that these materials “on their face” are protected by the attorney-client 

privilege, a privilege the government previously broadly claimed did not exist. Dkt. 1234 

at 1.

Obviously, the government cannot have it both ways. The 85 pages of legal 

memoranda outlining the legality of Backpage’s operations that Defendants disclosed on 

July 2nd reflect the same legal advice the government asserted (and the Court ruled) was 

“publicly disclosed” and therefore not privileged. Indeed, the specific legal memorandum 

that the government identifies in its motion references Section 230 and the First 

Amendment (Dkt. 1234 at 2 n.1), the very subjects the government previously claimed 

were not privileged because Backpage had disclosed these defenses publicly.1

 Left with 

a Court order rejecting Defendants’ position and finding such legal advice not to be 

privileged, Defendants’ disclosure of these materials did not waive the privilege and the 

government is wrong to assert that Defendants must waive the privilege in order to use this 

evidence at trial. In short, Defendants’ production of these documents cannot waive

a privilege that the government contended (and the Court ruled) did not exist.

 1 The specific memorandum referenced by the government was disclosed to third parties, 

including financial institutions, and, therefore, is not privileged.

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3744366.1 4

DEFENDANTS’ JOINT (1) RESPONSE TO GOVERNMENT’S MOTION TO PRECLUDE ADVICE OF 

COUNSEL DEFENSE AND (2) RENEWED MOTION TO DISMISS

That said, the logical extension of the government’s new position—that legal 

memoranda discussing matters like Section 230 and the First Amendment are “on their 

face” privileged—is that the numerous Ferrer interview memoranda, which “on their face” 

show the government discussed these same subjects with Ferrer, reflect obvious invasions 

of the attorney-client privilege. Defendants accordingly renew their motion to dismiss for 

outrageous government conduct. See Dkt. 942. Notably, the government asserts that 

Defendants should be precluded from “soliciting testimony suggesting that attorneys made 

statements to Defendants or that Defendants relied upon such statements” (Dkt. 1234 at 4),

when that is exactly what the government did in its interviews of Ferrer, with impunity, 

precisely because the government anticipated that Defendants would mount the very 

defense the government now seeks to preclude. As the Court is aware, Defendants firmly 

believe the Court erred in its ruling that the government did not invade the privilege. 

Indeed, if there are convictions, this will be a central issue on appeal. But now that the 

privilege has been invaded, Defendants have to live with the Court’s ruling and intend to 

cross-examine Ferrer on the import of the communications with counsel that he revealed to 

the government. 

Given the Court’s prior ruling on Defendants’ Motion to Dismiss, there are only 

two possible outcomes here—(a) Defendants are permitted to use at trial documents 

relating to the broad subject matter of Ferrer’s communications with corporate counsel, or 

(b) the Court must dismiss the indictment given the government’s now-admitted privilege 

invasions. The outcome proposed by the government—to preclude Defendants at trial 

from relying on legal memoranda, or soliciting any testimony supporting the legality of 

Backpage’s business—is a fiction. The government’s prior position, which the Court 

endorsed, created the very situation about which the government now complains. The 

Court should not entertain the government’s request to punish the defense for a problem of 

the government’s own making. 

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3744366.1 5

DEFENDANTS’ JOINT (1) RESPONSE TO GOVERNMENT’S MOTION TO PRECLUDE ADVICE OF 

COUNSEL DEFENSE AND (2) RENEWED MOTION TO DISMISS

II. RELEVANT BACKGROUND 

A. Defendants’ Motion to Dismiss Based on Outrageous Government 

Misconduct Invading Attorney-Client Privilege 

On May 1, 2020, Defendants moved to dismiss based on the government’s privilege 

invasions during its interviews of Carl Ferrer. Dkt. 942. The motion attached the 

government’s memoranda regarding its interviews of Ferrer, which revealed that the 

government elicited, among other things, the following information from Ferrer: 

•

•

•

•

•

•

•

•

Based on these, and other successive invasions of the privilege, Defendants moved 

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3744366.1 6

DEFENDANTS’ JOINT (1) RESPONSE TO GOVERNMENT’S MOTION TO PRECLUDE ADVICE OF 

COUNSEL DEFENSE AND (2) RENEWED MOTION TO DISMISS

to dismiss the indictment. 

B. Government’s Opposition to Defendants’ Motion to Dismiss

The government opposed Defendants’ motion, primarily based on the argument that 

the communications the government discussed with Ferrer were not privileged. The 

government broadly asserted that:

[T]hese statements cannot be privileged because they have not remained

confidential. Even if Defendants hadn’t publicly asserted the same legal 

theories in scores of cases throughout the country over the last decade, 

Defendants revealed these theories in this case in their earliest filings. (See, 

e.g., Docs. 23 and 26.) Simply put, it was no secret that Defendants would 

rely on First Amendment, mens rea, and CDA arguments to defend their 

operation of a website whose revenue-generating business model was

overwhelmingly based on advertising the sale of adults and children for sex.

Dkt. 998 at 1 (emphasis added).

The government then reiterated this position throughout its opposition, claiming 

there was no privilege waiver because “Defendants’ legal defenses to civil and criminal 

liability are no secret. Defendants have publicly disclosed their defense theories regarding 

Backpage’s operations, including reliance on the First Amendment, the CDA, and not 

possessing criminal intent, in a multitude of ways.” Id. at 10 (“Defendants have repeatedly 

advanced these theories in this case, including in their very first filings in this matter.”). 

As to Don Bennett Moon, one of the attorneys who advised Defendants about Backpage, 

the government contended that “Don Bennett Moon publicly discussed the theories that 

Defendants now label as ‘privileged.’” Id. at 11. The government likewise claimed that 

Backpage’s “ad moderation policy” was publicly disclosed. Id. Further, the government 

unilaterally asserted that certain privileged discussions instead involved non-legal 

“business decision[s].” Id. at 12.

C. Defendants’ Reply in Support of Motion to Dismiss

On reply, the defense observed that, as to the predicate facts necessary to establish 

the existence of the privilege, “the nineteen examples of privilege invasions set forth in 

Defendants’ motion answer these questions on their face. The examples identified the 

attorneys involved, the topics on which legal advice was provided, and the advice given.” 

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3744366.1 7

DEFENDANTS’ JOINT (1) RESPONSE TO GOVERNMENT’S MOTION TO PRECLUDE ADVICE OF 

COUNSEL DEFENSE AND (2) RENEWED MOTION TO DISMISS

Dkt. 1022 3-4 (emphasis added) (citing specific examples). Defendants further stated that 

“[t]he MOIs showed that the government questioned Ferrer about those legal memoranda 

and the substance of the advice Defendants’ counsel gave. The Motion and MOIs showed 

numerous instances where the government interrogated Ferrer about the legal advice 

provided by specific lawyers on topics such as: 

 Id. at 4. This is the very advice 

that Defendants now seek to tell the jury about at trial. 

D. Court’s Order Denying Defendants’ Motion to Dismiss 

The Court denied Defendants’ motion, largely agreeing with the government’s 

characterizations of the underlying materials that the government discussed with Ferrer. 

The Court found that Defendants had not established that any of the materials that the 

government discussed and reviewed with Ferrer were privileged. The Court concluded: 

•

•

•

Critically, in denying Defendants’ motion, the Court agreed with the government 

that 

 Id. at 

17 (emphasis added). 

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3744366.1 8

DEFENDANTS’ JOINT (1) RESPONSE TO GOVERNMENT’S MOTION TO PRECLUDE ADVICE OF 

COUNSEL DEFENSE AND (2) RENEWED MOTION TO DISMISS

III. ARGUMENT

A. Defendants Are Entitled to Put on a Good Faith Defense at Trial.

Defendants’ good faith is squarely at issue in this trial involving various specific 

intent crimes. See United States v. Kimmel, 777 F.2d 290, 293 (5th Cir. 1985) (“In reality,

a criminal defendant’s good faith defense is the affirmative converse of the government’s 

burden of proving his intent to commit a crime.”). Good faith reliance on the advice of 

counsel is merely a subspecies of this defense that applies in the context of specific intent 

crimes. See United States v. Stevens, 771 F. Supp. 2d 556, 560 (D. Md. 2011) (“Good 

faith reliance on the advice of counsel is only relevant to specific intent crimes because 

such reliance demonstrates a defendant’s lack of the requisite intent to violate the law.”). 

Good faith reliance on the advice of counsel is not an affirmative defense that is required 

to be disclosed before trial under Rule 12 of the Federal Rules of Criminal Procedure. Id. 

(“Advice of Counsel is Not an Affirmative Defense, but Rather Negates the Wrongful 

Intent Required to Commit the Crimes Charged.”).

Given the government’s position and the Court’s ruling, Defendants’ anticipated 

good faith defense relies, in part, on the advice they received from attorneys regarding the 

legality of Backpage’s operations, both under the First Amendment and the 

Communications Decency Act (and about which the government questioned Ferrer).

2

 It is 

this very advice that the government has argued, and this Court has held, is not privileged. 

Therefore, no waiver of the privilege is necessary for Defendants to proceed with this 

 2 Any argument by the government that Defendants are only entitled to put on at trial 

evidence relating to advice concerning the First Amendment (as opposed to the CDA) also 

would be wrong. See Cheek v. United States, 498 U.S. 192, 203, 111 S. Ct. 604, 611, 112 

L. Ed. 2d 617 (1991) (“We thus disagree with the Court of Appeals’ requirement that

a claimed good-faith belief must be objectively reasonable if it is to be considered as 

possibly negating the Government’s evidence purporting to show a defendant’s awareness 

of the legal duty at issue. Knowledge and belief are characteristically questions for the 

factfinder, in this case the jury. Characterizing a particular belief as not objectively 

reasonable transforms the inquiry into a legal one and would prevent the jury from 

considering it.”). The Court has preliminarily allowed the government to introduce 

statements from non-lawyer third parties regarding Backpage’s activities, regardless of 

whether those statements concern criminal or civil liability, or liability at all for that 

matter. Defendants are entitled to rebut all of those claims.

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3744366.1 9

DEFENDANTS’ JOINT (1) RESPONSE TO GOVERNMENT’S MOTION TO PRECLUDE ADVICE OF 

COUNSEL DEFENSE AND (2) RENEWED MOTION TO DISMISS

defense or to use the disclosed documents at trial. Nor does the government cite a single 

case supporting the notion that there is a meaningful distinction between Ferrer’s oral 

disclosure of the legal advice contained in numerous legal memoranda in response to 

government inquiries, on the one hand, and the disclosure of such legal memoranda by the 

defense, on the other. Dkt. 1234 at 2-3. The government’s opposition to Defendants’ 

motion to dismiss did not parse the issue this finely—instead, the government broadly 

asserted that Defendants had publicly disclosed “their defense theories regarding 

Backpage’s operations, including reliance on the First Amendment, the CDA, and not 

possessing criminal intent.” Dkt. 998 at 10. In short, there is no legal support for the 

government’s apparent argument that Ferrer’s oral disclosures of the substance of legal 

memoranda were not privileged, but the underlying memoranda themselves are (indeed, 

the government ignores this self-serving distinction in asking the Court to bar Defendants 

from even soliciting testimony regarding “statements” made by attorneys). See Dkt. 1234 

at 4; Dkt. 998 at 1 (confusingly claiming that Ferrer’s communications with attorneys that 

were disclosed to the government did not implicate the privilege in the same way that 

“typical privileged material” like “memoranda” do).

Further, the government cannot fairly argue surprise, as the government previously

recognized that this anticipated defense relied on “the same theories that Backpage 

previously disclosed in courts around the country” for years prior to this indictment. 

Dkt. 998 at 1, 9 (“Indeed, from the earliest days of this case, Defendants have trumpeted 

their previous successes in defending their operation of Backpage based on the First 

Amendment, the CDA and mens rea in briefing before this Court.”). This is a defense the 

government has been well aware of for several years; and that is precisely why it 

repeatedly probed Ferrer regarding his conversations with attorneys, like Don Moon, Sam 

Fifer, and Steve Suskin. The government now seeks to preclude the defense from telling 

the jury about the same subject matters that it openly discussed with Ferrer.3

 3 Additionally, evidence of attorney communications with Defendants that would cause 

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3744366.1 10

DEFENDANTS’ JOINT (1) RESPONSE TO GOVERNMENT’S MOTION TO PRECLUDE ADVICE OF 

COUNSEL DEFENSE AND (2) RENEWED MOTION TO DISMISS

Importantly, the other part of Defendants’ anticipated good faith defense that the 

government does not address is Defendants’ reliance on, among other things, prior orders 

and judgments of other Courts endorsing the view that Backpage’s activities were 

protected by the First Amendment and commendations from law enforcement officers 

praising Backpage’s cooperation. Such evidence is classic “good faith” evidence that 

negates the government’s assertions that Defendants specifically intended to facilitate 

business enterprises involved in prostitution offenses in violation of state laws. This 

evidence also rebuts the government’s anticipated evidence of statements from third 

parties regarding their that the 

Court has preliminarily admitted. Dkt. 1212 at 10. This aspect of Defendants’ anticipated 

good faith defense is unaffected by the government’s motion. 

B. Defendants Need Not Satisfy the Requirements for a Good Faith 

Reliance on Advice of Counsel Defense Before Trial. 

In support of the government’s argument that Defendants must, before trial begins, 

waive a privilege that the government and the Court agree do not exist, the government 

instead cites cases that stand for the uncontroversial proposition that an advice of counsel 

defense requires the defendant to show that he “made a full disclosure of all relevant and 

material facts to his attorney.” Dkt. 1234 at 3. But that is an issue for trial. And it is only 

an issue if Defendants seek to use privileged communications to support a good faith 

defense (a privilege that the government asserted, and the Court ruled, does not apply to 

the subject matters of the communications Defendants seek to introduce). In that instance, 

 

them to reasonably believe they were acting lawfully is directly relevant to rebut the 

government’s intended evidence of third-party “notice” that Backpage was facilitating 

prostitution and should be shut down, which the Court’s recent August 11, 2021 Order 

indicated could be admitted. Defendants believe this ruling was wrong, as the government 

cannot prove specific intent through generalized “notice” but must prove the requisite 

specific intent by competent evidence relating to each count/advertisement charged in the 

indictment. Any ruling giving the government “the sword” of that Order by allowing it to 

put in general intent evidence, while also giving the government “the shield” of an order 

precluding Defendants from introducing evidence that lawyers told them their activities 

were legal, would allow a false narrative to be presented to the jury and would deprive 

Defendants of a fair trial. 

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3744366.1 11

DEFENDANTS’ JOINT (1) RESPONSE TO GOVERNMENT’S MOTION TO PRECLUDE ADVICE OF 

COUNSEL DEFENSE AND (2) RENEWED MOTION TO DISMISS

the government will be free to cross-examine any attorneys Defendants call as witnesses in 

connection with such a defense to test whether the attorneys were provided a full 

disclosure of the relevant facts. Then, at the close of the case, the Court can determine 

whether the predicate facts for a jury instruction regarding an advice of counsel defense 

have been established. As noted above, good faith reliance on advice of counsel (and good 

faith generally) is not an affirmative defense that Defendants are required to disclose, or 

establish an entitlement to, pre-trial.

C. In the Alternative, the Court Should Dismiss the Indictment.

In light of the government’s admission that topics such as Backpage’s liability for 

third-party content, whether Backpage’s publishing of third-party ads is protected speech, 

and the applicability of the First Amendment to criminal liability are, “on their face,” 

privileged subject matters, the Court should grant Defendants’ Motion to Dismiss. 

Dkt. 942. Indeed, it is hard to understand how the government, in a four-page filing, can 

ask the Court with a straight-face to find that a privilege exists, with respect to legal 

memoranda it did not even provide to the Court, when it previously took the position (and 

the Court agreed) that Defendants, despite identifying nineteen specific examples of 

privilege invasions, somehow did not go far enough in identifying the particulars of those 

invasions to establish the existence of a privilege. If it is now the government’s position 

that broad-brush language like “Section 230 Immunizes Interactive Computer Service 

Providers from Liability for Third Party Content” or “Backpage.com is Engaged in 

Protected Speech” alone establish the existence of a privilege (Dkt. 1234 at 2, n.1), then 

the government’s admitted discussions with Ferrer regarding these very same topics 

plainly breached the privilege. Dkt. 1000 at 4-8.

IV. CONCLUSION

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

government’s motion, or, in the alternative, grant Defendant’s Motion to Dismiss Based on 

Outrageous Government Misconduct Invading Attorney-Client Privilege (Dkt. 942).

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3744366.1 12

DEFENDANTS’ JOINT (1) RESPONSE TO GOVERNMENT’S MOTION TO PRECLUDE ADVICE OF 

COUNSEL DEFENSE AND (2) RENEWED MOTION TO DISMISS

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

Procedures Manual (October 2020) § II (C) (3), Gary S. Lincenberg 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.

DATED: August 26, 2021 Respectfully submitted,

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

Bird, Marella, Boxer, Wolpert, Nessim,

Drooks, Lincenberg & Rhow, P.C.

By: /s/ Gary S. Lincenberg

Gary S. Lincenberg

Attorneys for Defendant John Brunst

DATED: August 26, 2021 Thomas H. Bienert Jr.

Whitney Z. Bernstein

Bienert Katzman Littrell Williams LLP

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

Thomas H. Bienert Jr.

Attorneys for Defendant James Larkin

DATED: August 26, 2021 Paul J. Cambria

Erin McCampbell

Lipsitz Green Scime Cambria LLP

By: /s/ Paul J. Cambria

Paul J. Cambria

Attorneys for Defendant Michael Lacey

DATED: August 26, 2021 Feder Law Office, P.A.

By: /s/ Bruce S. Feder

Bruce S. Feder

Attorney for Defendant Scott Spear

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3744366.1 13

DEFENDANTS’ JOINT (1) RESPONSE TO GOVERNMENT’S MOTION TO PRECLUDE ADVICE OF 

COUNSEL DEFENSE AND (2) RENEWED MOTION TO DISMISS

DATED: August 26, 2021 The Law Office of David Eisenberg, PLC

By: /s/ David Eisenberg

David Eisenberg

Attorney for Defendant Andrew Padilla

DATED: August 26, 2021 Joy Bertrand Esq. LLC

By: /s/ Joy Malby Bertrand

Joy Malby Bertrand 

Attorney for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 1239 Filed 08/26/21 Page 13 of 13