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MICHAEL BAILEY

United States Attorney

District of Arizona

KEVIN M. RAPP (Ariz. Bar No. 014249, kevin.rapp@usdoj.gov)

MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov)

PETER S. KOZINETS (Ariz. Bar No. 019856, peter.kozinets@usdoj.gov) 

ANDREW C. STONE (Ariz. Bar No. 026543, andrew.stone@usdoj.gov)

JOHN J. KUCERA (Cal. Bar No. 274184, john.kucera@usdoj.gov) 

Assistant U.S. Attorneys

40 N. Central Avenue, Suite 1800

Phoenix, Arizona 85004-4408

Telephone (602) 514-7500

BRIAN BENCZKOWSKI

Assistant Attorney General

Criminal Division, U.S. Department of Justice

REGINALD E. JONES (Miss. Bar No. 102806, reginald.jones4@usdoj.gov)

Senior Trial Attorney, U.S. Department of Justice

Child Exploitation and Obscenity Section 

950 Pennsylvania Ave N.W., Room 2116

Washington, D.C. 20530

Telephone (202) 616-2807 

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff, 

v. 

6. Andrew Padilla,

Defendant.

CR-18-422-PHX-SMB

UNITED STATES’ RESPONSE TO 

MOTION TO CONTINUE TRIAL

AND DATES FOR COMPLIANCE 

PER SCHEDULING ORDER (Doc. 

628)

INTRODUCTION AND SUMMARY OF ARGUMENT 

Defendant Andrew Padilla’s motion to continue trial and dates for compliance per 

scheduling order is unavailing and should be denied for several reasons. First, defense 

counsel’s recitation of the amount of discovery that he is required to review in preparation 

for a January 2020 trial date is not fully accurate. A considerable amount of discovery 

relevant to Padilla has been available since January 2017 and is detailed in the United States 

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Senate Report1 and the superseding indictment, which clearly identifies the United States’

theory in this case and some of the most important pieces of the government’s evidence.

(See CR 230.) In addition, a large volume (5.9 million pages) of the discovery (primarily 

the discovery known as the “Co-Star” material) has little relevance to Padilla as the 

documents involve Backpage’s international markets. Moreover, the United disclosed to 

Padilla nearly a year ago the approximately 100 pages of Co-Star related material it might 

utilize at trial.

Second, newly appointed counsel has eight months to prepare for trial, is an 

experienced criminal defense attorney, and has the assistance and resources (financial and 

otherwise) of the attorneys representing the co-defendants. As the Court is aware, Padilla’s 

previous counsel and counsel representing the other defendants have already filed 

numerous notices, motions, responses and replies that arguably support Padilla.

Third, Padilla’s role in the offense was limited to his position as the head of 

Backpage’s moderation department. In other words, he was not present during the frequent

management meetings where business practices (e.g., The Erotic Review, Rubmaps and 

other reciprocal link relationships, etc.) were discussed, he was not endorsed on numerous 

emails that involved public relation strategies, did not attend meetings with various 

organizations (i.e. NCMEC, Auburn Theological Seminary, Polaris, etc.) and law 

enforcement agencies (Washington State Attorney General’s Office, Cook County 

Sheriff’s Office, etc.), and did not have a percentage ownership in the company. These 

factors, among others, clearly distinguish him from the four primary defendants. 

Additionally and importantly, Padilla is not charged with money laundering (Counts 52-

100). Simply stated, the evidence (and corresponding discovery) that applies to Padilla is 

not as expansive as the relevant discovery that applies to Defendants Lacey, Larkin, Spear 

and Brunst.

 

1

https://www.hsgac.senate.gov/imo/media/doc/Backpage%20Report%202017.01.10%20F

INAL.pdf

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Fourth, the United States has spent considerable time reviewing the evidence with 

his previous attorney. For example, Padilla’s previous counsel was provided (four months

prior to indictment) “hot” documents that implicate Padilla in the charges related to 

violations of the Travel Act. Moreover, last month, the United States provided Padilla’s 

defense counsel with hot documents – documents specifically related to the allegations 

contained in the superseding indictment to all defendants. Additionally, in the 

government’s May 20, 2019 letter to counsel Eisenberg, the United States labeled each 

“hot doc” that supports the allegations contained in the superseding indictment to Padilla 

to allow counsel to cross-reference these “hot docs” with the information contained in the 

corresponding paragraphs of the superseding indictment. (See Exhibit A.)

Fifth and last, the victims have a right conferred by statute to proceedings free from 

unreasonable delay and oppose a continuance.

ARGUMENT 

Defendant’s argument that the relevant discovery in this case amounts to over 10 

million pages is not entirely accurate. (Mot. at 2.) As noted in previous status memoranda 

filed by the United States, the server data involved in this case contains millions of postings 

of blatant or thinly-veiled solicitations for prostitution services in the United States market 

(involving nearly 394 cities in the United States) and in 94 countries worldwide. Of the 

approximately 10 million pages of documents produced to date by the United States to the 

defense, more than 2.1 million pages consist of documents Backpage had previously 

provided the U.S. Senate Permanent Subcommittee on Investigations (“PSI”) in the fall of 

2016, and documents Backpage had previously produced to the United States in September 

2017 as a result of the district court’s April 7, 2018 order and the Ninth Circuit’s mandate 

compelling Backpage to comply with Grand Jury Subpoena No. 16-04-108. (See CR 444.)

Simply put, many of the documents are Backpage documents that the United States is 

simply reproducing back to Defendants pursuant to its discovery obligations. 

In addition, the 2.1 million documents provided to the PSI were distilled into a 

comprehensive 50-page Senate Report (publicly available since January 2017) that 

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references Padilla nearly sixty times, and that was accompanied by an 840-page appendix 

containing dozens of relevant emails. Padilla should already be very familiar with these 

emails as he either authored or was endorsed on them. In sum, the Senate Report provides 

an in-depth analysis of Padilla’s role as the head of Backpage’s moderation department.

Lastly, Padilla is also familiar with various victims referenced in the indictment

because he was subpoenaed for depositions in certain victims’ civil cases prior to the 

instant federal prosecution. In addition, the 100-page superseding indictment references 

many of the PSI and grand jury documents pertaining to Padilla. In sum, the superseding 

indictment and PSI provide a detailed explanation of Padilla’s role and outline evidence 

the United States will rely upon at trial. 

Moreover, a large volume of discovery is not even relevant to Padilla. More than 

5.9 million pages of documents disclosed to Padilla originated from a source entitled “CoStar materials.” The vast majority of that data involves postings in foreign markets (where 

no moderation was implemented) and is of marginal or no relevance to the crimes 

committed by Padilla in the United States.

Furthermore, for an array of reasons, Padilla is at a substantial advantage in being 

prepared for a January 2020 trial. First, the United States’ pulled the discovery pertinent 

to Padilla into a single, comprehensive, well-organized, and easy-to-understand package

that it shared with his former counsel in late 2017, months before indictment. Second, the 

superseding indictment is comprehensive and identifies numerous emails Padilla authored

or received; in addition, the Senate Report provides a detailed explanation of Padilla’s role 

as the head of Backpage’s moderation department. Third, Padilla’s counsel has been 

provided both a preliminary witness and exhibit list ten months before trial. Typically, in 

this District, the practice is to provide these lists just weeks before trial. Fourth, Padilla 

not only had the witnesses identified well in advance of trial but the United States has 

voluntarily disclosed any available Jencks Act statements for those witnesses. As the Court 

is aware, the United States is not required to disclose these statements until after a witness 

testifies. 18 U.S.C. § 3500. It is the general practice that the United States provide these 

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statements sometime shortly prior to trial (in most cases weeks or days). Fifth, the United 

States also intends to identify and segregate each and every trial exhibit intended for use in 

its case-in-chief and provide those exhibits to the defense in advance of trial in digital 

format. Finally, Padilla is out of custody and is able to effectively assist his counsel in 

reviewing discovery unencumbered by the restrictions of pretrial detention. 

There is more. As noted in previous pleadings, the prosecution team met with 

Padilla’s prior counsel (Michael Piccarreta) four months prior to indictment to review

“hot” documents and a road map of the prosecution theory of Padilla’s role in the criminal 

enterprise. (See CR 444 at 4.) The United States is willing to meet with Padilla’s new 

counsel and provide the same detailed overview of government’s case against his client. 

The United States has also requested counsel contact it with any questions regarding the 

case.

Padilla also benefits from the substantial motion practice that ensued before new 

counsel was appointed. Counsel representing the other defendants (Lacey, Larkin, and 

Brunst have several attorneys) have filed motions for discovery (e.g., motion for Brady

material), a motion to dismiss the indictment based on possible pretrial defenses, and other 

motions. (See, i.e., CR 399, 456, 474, 477, 507, 539, 544, 561.) And, the defense has 

collectively noticed experts and even supplemented that notice. (See CR 500, 538.)

Notably, Padilla’s counsel does not suggest other motions he would file on behalf of Padilla

that have not already been filed by his previous counsel or co-defendants. Lastly, Padilla’s 

counsel joined the Backpage defendants’ 55-page motion to dismiss indictment (See CR 

615.)

Fifth, Padilla’s argument that his appointment less than ten months prior to trial 

would deny Padilla effective assistant of trial to which he is entitled is misplaced. (Mot. at 

4.) In United States v. Cronic, 466 U.S. 648, 659, (1984) , the Supreme Court reversed the 

lower court and found that 25 days was a sufficient amount of time for preparation for a 

complex case, where the attorney was young, inexperienced in criminal law (he was a real 

estate attorney), and it was his first trial. The Court further found that neither the period of 

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time that the United States spent investigating the case, nor the number of documents that 

its agents reviewed during that investigation, were necessarily relevant to the question 

whether a competent lawyer could prepare to defend the case in 25 days. Id.

Here, unlike Cronic, counsel has far more than 25 days to prepare for trial. Again, 

in addition to the advantages of earlier disclosure of evidence, witness and exhibit lists,

and early disclosure of Jencks Act statements, etc., Padilla’s counsel has eight months from 

the date he was appointed to prepare for trial.

Padilla’s new counsel has been practicing law for nearly forty years.

(http://davideisenberglaw.com/attorney/.) He is a former federal prosecutor in Phoenix, 

New York and Washington D.C. (Id.) By his own admission he has “a unique expertise 

in the investigation of defenses and the trial of [like the instant case] complex white collar 

cases.” (Id.) In sum, Padilla’s new attorney is a highly regarded attorney with a background 

relevant to defending this complex case. In addition, Padilla had the advantage of a couple 

of years of representation by another highly-experienced attorney (Mr. Piccarreta 

represented him at least since March 2017) before the case was assigned to current 

counsel.

2

In short, Padilla has an experienced attorney with expertise in complex cases, who 

will not need to litigate the case by himself. Indeed, Padilla’s new attorney will have the 

benefit of numerous other attorneys urging defenses that would apply to Padilla. Further

discovery relevant to Padilla has been in his possession for many months. 

Padilla’s requested continuance should be denied for a further reason: The public 

and the victims have a right conferred by statute to “proceedings free from unreasonable 

delay.” 18 U.S.C. § 3771(a)(7) (the “Crime Victims’ Rights Act”); see also 18 U.S.C. § 

3161(h)(7)(A). The Superseding Indictment contains 17 select victim summaries. (CR 

230, ¶¶ 160-176.) Of these victims, at least five were juveniles when they were trafficked 

on Backpage. (CR 230, ¶¶ 163, 164, 167, 169, 172.) Four of the victims were murdered or 

 

2 https://pd-law.com/

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killed as a result of being trafficked on Backpage, and their surviving family members or 

lawful representatives stand in their shoes for purposes of the Crime Victims’ Rights Act. 

18 U.S.C. § 3771(e)(2)(B); (CR 230, ¶¶ 165, 173, 174, 175.) The victims’ and public’s 

statutory right to a speedy trial—and their need for an expeditious resolution of this 

prosecution—strongly militates against further delay.

CONCLUSION

For these reasons, the United States opposes Padilla’s motion for a continuance.

Respectfully submitted this 17th day of June, 2019.

MICHAEL BAILEY

United States Attorney

District of Arizona

s/ Kevin M. Rapp

KEVIN M. RAPP

MARGARET PERLMETER

PETER S. KOZINETS

ANDREW C. STONE

JOHN J. KUCERA

Assistant U.S. Attorneys

BRIAN BENCZKOWSKI

Assistant Attorney General

Criminal Division, U.S. Department of Justice

REGINALD E. JONES

Senior Trial Attorney

U.S. Department of Justice, Criminal Division

Child Exploitation and Obscenity Section

Certificate of Service

I hereby certify that on this date, June 17, 2019, I transmitted the foregoing document for filing to the Clerk of the United States District Court and sent a copy via electronic mail 

to: David Eisenberg, Esq.

s/ Angela Schuetta_____

Angela Schuetta

U.S. Attorney’s Office

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