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GARY M. RESTAINO 

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) 

Assistant U.S. Attorneys 

40 N. Central Avenue, Suite 1800 

Phoenix, Arizona 85004-4408 

Telephone (602) 514-7500 

DAN G. BOYLE (N.Y. Bar No. 5216825, daniel.boyle2@usdoj.gov) Special Assistant U.S. Attorney

312 N. Spring Street, Suite 1400 

Los Angeles, CA 90012 

Telephone (213) 894-2426 

NICOLE M. ARGENTIERI 

Acting Assistant Attorney General 

Criminal Division, U.S. Department of Justice 

AUSTIN M. BERRY (Texas Bar No. 24062615, austin.berry2@usdoj.gov) 

U.S. Department of Justice 

Child Exploitation and Obscenity Section 

1301 New York Avenue, NW, 11th Floor 

Washington, D.C. 20005 

Telephone (202) 412-4136 

Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

 v. 

Michael Lacey, et al., 

 Defendants. 

CR-18-422-PHX-DJH 

UNITED STATES’ RESPONSE TO 

DEFENDANTS’ OBJECTIONS TO 

EXHIBITS OFFERED THROUGH 

CARL FERRER 

(Doc. 1758) 

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The Court should overrule Defendants’ objections to the exhibits the United States 

intends to offer for admission through Carl Ferrer. First, the Court has already ruled that a 

witness need not have personally sent or received an email to satisfy the requirements of 

Rule 901. (Doc. 1212 at 4.) Second, the United States has redacted certain exhibits in an 

effort to comply with the Court’s Orders and eliminate inadmissible evidence. 

I. Ferrer May Authenticate Emails 

The Court has already resolved this issue. In Doc. 1212, the Court noted that it 

would permit the United States to admit emails through witnesses “who neither sent nor 

received the emails.” (Doc. 1212 at 4.) Specifically, the Court found, “that the emails 

satisfy the requirements of Rule 901 and the issue at trial will be if the emails are admissible 

under a hearsay exception.” (Doc. 1212 at 4.) 

In that same Order, the Court specifically analyzed Exhibit 1—“a six-page 

document produced by Defendant Lacey’s counsel to the government in compliance with 

[a] Grand Jury Subpoena.” (Doc. 1212 at 18.) The Court held:

Defendants do not challenge the authenticity of these documents. Thus, 

authenticity does not appear to be at issue, especially because the documents 

were produced directly by Defendant Lacey’s counsel in response to the 

Court’s order. The email at issue from Defendant Lacey may properly be 

admitted as a statement of a party opponent pursuant to Rule 801(2)(A). . . . 

Accordingly, the Court will allow the government to admit the documents.

(Doc. 1212 at 18-19.)

Ferrer will testify he’s familiar with the email addresses used by Defendant Lacey 

in Exhibits 1911(b) and 1. Similarly, the United States anticipates Ferrer will testify he’s 

familiar with the email addresses used by Defendant Brunst in Exhibits 500, 1047, 2038, 

2040, 2042, and 2043 (along with James Larkin’s email address used in Exhibit 1047). 

Ferrer will testify that he has exchanged emails with each Defendant at the email addresses 

listed on the exhibits. Ferrer’s knowledge satisfies any authenticity concerns under Rule 

901. 

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It does not matter whether Carl Ferrer was copied on an email for him to be able to 

authenticate it for purposes of 901(b)(4). Indeed, in other cases, such email evidence is 

often admitted through a case agent, who clearly would not be expected to be a recipient 

of such email, but who can nevertheless testify that in the course of her investigation, she 

learned that “Defendant X” utilized email address “Y,” and often used a unique email 

signature. Carl Ferrer is even better positioned to authenticate these emails because he was 

a contemporary of every Defendant on trial, and had personal communications with each 

of the Defendants using these email addresses over the course of many years. 

II. Redacted Exhibits Are Admissible

Rule 801(d)(2) provides that a statement is not hearsay, and is therefore admissible, 

if the statement is offered against a party and is (A) the party’s own statement, in either an 

individual or a representative capacity, or (B) a statement of which the party has manifested 

an adoption or belief in its truth. Statements made by a Defendant are quintessential 

statements by a party-opponent when offered by the United States. Those very same 

statements, however, are inadmissible hearsay when offered by a Defendant. United States 

v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000) (“The self-inculpatory statements, when 

offered by the government, are admissions by a party-opponent and are therefore not 

hearsay, see Fed.R.Evid. 801(d)(2), but the non-self-inculpatory statements are 

inadmissible hearsay.”) (citing Williamson v. United States, 512 U.S. 594, 599 (1994) 

(finding that “[t]he fact that a person is making a broadly self-inculpatory confession does 

not make more credible the confession’s non-self-inculpatory parts [which are hearsay]”).)

To ensure fairness, Rule 106 provides an avenue by which a party-opponent may 

admit his own out-of-court statements at trial, which would otherwise be inadmissible 

hearsay. Defendants, however, are not permitted to introduce numerous self-serving 

exculpatory statements made during the same email or related document in which he or she

makes an inculpatory statement. United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996) 

(“Rule 106 does not compel admission of otherwise inadmissible hearsay evidence.”).

Rule 106 does not “require the introduction of any unedited writing or statement merely 

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because an adverse party has introduced an edited version.” United States v. Vallejos, 742 

F.3d 902, 905 (9th Cir. 2014) (emphasis in original). Rather, “it is often perfectly proper 

to admit segments of prior testimony without including everything, and adverse parties are 

not entitled to offer additional segments just because they are there and the proponent has 

not offered them.” Id. (citing Collicott, 92 F.3d at 983).

Rule 106 requires that the portion sought to be admitted must be relevant to the 

issues and only the parts which qualify or explain the subject matter of the portion offered 

by the opponent need be admitted. United States v. Crosby, 713 F.2d 1066, 1074 (5th Cir. 

1983). The courts of appeals have “consistently held that the rule permits introduction only 

of additional material that is relevant and is necessary to qualify, explain, or place into 

context the portion already introduced.” United States v. Pendas-Martinez, 845 F.2d 938, 

944 (11th Cir. 1988); see also United States v. Branch, 91 F.3d 699, 728 (5th Cir. 1996) 

(“Although different circuits have elaborated Rule 106’s fairness standard in different 

ways, common to all is the requirement that the omitted portion be relevant and necessary 

to qualify, explain, or place into context the portion already introduced.”) (quoting PendasMartinez, 845 F.2d at 944). 

To the extent any Defendant contends the statements offered against him or her are 

taken out of context, the burden is now on the Defendant to provide an explanation as to 

what additional statements should be offered so as to “qualify, explain, or place into context 

the portion already introduced.” Branch, 91 F.3d at 728. Failure by Defendants to identify 

any specific statements they want admitted should result in this Court’s denial of their

request to introduce additional portions of emails on the grounds that they have failed to 

carry their burden of demonstrating how the additional statements would “qualify, explain, 

or place into context” any specific statement offered by the United States. 

Defendants raise specific objections to four exhibits based on Rule 106. The United 

States responds to these arguments in turn.

A. Exhibit 140a (January 5, 2011 letter from Auburn Theological Seminary)

The United States redacted the following language from the first two pages of the 

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letter:

We are coming at this from a different perspective – not as lawyers, 

government officials, or NGOs, but as moral and religious leaders who have 

a calling and responsibility to protect our children.

For us, fighting child sex trafficking is a moral imperative. As a Christian, for 

me personally, my commitment to this issue has a Biblical basis. I believe we 

are meant to care for the most vulnerable in our society and to protect all 

people’s human dignity. This view is shared by our broad based clergy 

coalition, which is comprised of Christians, Muslims, Jews, Buddhists, Sikhs 

and Humanists.

Child sex trafficking is not just an “issue” for us, but a matter of basic justice. 

We feel we need to give a voice to the voiceless, and we are taking action on 

behalf of human beings - our children. Our commitment is rooted in the belief 

that all children are our children, that the person that appears in a Backpage 

ad could be any one of our daughters or sons.

Interestingly, the text of the week of our meeting was from the Prophet Isaiah. 

It forecasts the coming of a Messiah who would be sent to “bring good news 

to the oppressed, to bind up the brokenhearted, to proclaim liberty to the 

captives, and release to the prisoners...For I the Lord love justice, and I hate 

robbery and wrongdoing.”

(Compare Ex. 140 with Ex. 140a.)

The United States redacted the letter in accordance with the Court’s Order (Doc. 

1159 at 3 (“The Court agrees that the letter from Auburn Seminary is highly prejudicial as 

is, however, it could be redacted to take out the inflammatory language about the clergy’s 

motivation and moral opinion about Backpage.com.”).) If Defendants now want to 

eliminate the redactions—after previously arguing the opposite point (Doc. 907 at 4-5)—

the United States does not object.

Defendants’ more generalized argument that the Court should preclude admission 

of Exhibit 140 or 140a is a rehash of an issue previously resolved by the Court. (Mot. at 

6.) Judge Brnovich ruled that “letters from third parties to Backpage informing them of 

the large number of prostitution ads to their website are relevant to Defendants’ notice and 

thus proving Defendants’ intent to facilitate prostitution under the Travel Act.” (Doc. 1212 

at 10.) The Court made clear that “while the letters may not be admitted to prove that the 

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accusations in the letters are true, they may be admitted for the non-hearsay purpose of 

showing Defendants’ notice of third parties’ perceptions of unlawful activity occurring on 

their website.” (Doc. 1212 at 10.) The letter should be admitted.

B. Exhibit 616a (November 12, 2010 email from Scott Spear)

Defendants argue that Exhibit 616a needs to include the email sent by James Larkin 

that appears at the bottom of the unredacted version (Ex. 616). The United States redacted 

this portion because (a) it introduces topics, including the Communications Decency Act, 

that the Court has ruled aren’t admissible, and (b) it contains inadmissible self-serving 

hearsay. (See Doc. 1643 at 10 (“To date, no party has provided the Court with case 

precedent holding that the CDA immunizes criminal activity like that alleged here. It 

follows that a jury should not be told that the CDA does. To do so is a misstatement of law 

and will lead to jury confusion.”).) 

Defendants cannot introduce self-serving statements made by former-Defendant 

Larkin, including misstatements. For example, Larkin wrote: “As you know we are clearly 

lawful in our operations here and this is a political dance.” (Ex. 616.) That’s a self-serving 

hearsay statement to which no exception applies, and is therefore inadmissible. Fed. R. 

Evid. 801-802. Rule 106 does not change that fact. Collicott, 92 F.3d at 983 (“Rule 106 

does not compel admission of otherwise inadmissible hearsay evidence.”). Defendants 

aren’t permitted to use the rule of completeness to introduce inadmissible evidence. The 

Court should reject their attempt.

C. Exhibit 1827a (January 31, 2012 email from Michael Lacey)

The United States redacted parts of Defendant Lacey’s email chain with Scott 

Tobias for three primary reasons: (1) to eliminate any reference to the murders in Detroit 

where the murderer found his victims through Backpage ads; (2) to eliminate references to 

child sex trafficking that was occurring on Backpage; and (3) to remove the inadmissible 

self-serving hearsay in Scott Tobias’s email. With respect to the latter point, Tobias’s 

email covers many of the themes counsel for Defendant Lacey discussed in his opening 

statement. (Ex. 1827.) For example, “Village Voice Media is a first responder, we work 

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hand in hand with local law enforcement, the FBI and the National Center for Exploited 

and Missing Children [sic] (NCMEC).” (Id.) And, “[Backpage is] on the right side of this 

issue . . . . If Backpage were to exit this business it will only get worse.” (Id.) Those 

statements aren’t admissible and should not be shown to the jury. 

D. Exhibit 933a (September 22, 2010 email from Scott Spear) 

Exhibit 933a is an email drafted by Carl Ferrer. The United States agrees to use an 

unredacted version of the email, should it seek to admit the email at trial. 

III. Conclusion 

 The United States respectfully requests that this Court overrule any objections 

related to (a) authentication of email addresses known and used by Carl Ferrer, and (b) 

exhibits that the United States has redacted to remove inadmissible evidence. Going 

forward, if Defendants believe the United States has omitted some part of an email or 

document, it is incumbent on Defendants to provide the Court and the United States an 

explanation as to what additional portions would explain, qualify, or place into context the 

evidence the United States is seeking to admit. Blanket objections under Rule 106, without 

specific articulation, should be overruled. 

Respectfully submitted this 8th day of September, 2023.

 GARY M. RESTAINO 

 United States Attorney 

 District of Arizona 

 NICOLE M. ARGENTIERI 

Acting Assistant Attorney General 

Criminal Division, U.S. Department of Justice 

 s/Andrew C. Stone 

 KEVIN M. RAPP 

 MARGARET PERLMETER 

 PETER KOZINETS 

 ANDREW STONE 

DANIEL BOYLE

 Assistant U.S. Attorneys 

 

 AUSTIN M. BERRY 

Trial Attorney 

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CERTIFICATE OF SERVICE 

 I hereby certify that on September 8, 2023, I electronically transmitted the attached 

document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a 

Notice of Electronic Filing to the CM/ECF registrants who have entered their appearance

as counsel of record. 

s/ Andrew C. Stone

Andrew C. Stone 

Assistant U.S. Attorney 

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