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Thomas H. Bienert, Jr. (CA 135311, admitted pro hac vice)

Whitney Z. Bernstein (CA 304917, admitted pro hac vice)

BIENERT | KATZMAN PC

903 Calle Amanecer, Suite 350

San Clemente, California 92673

Telephone: (949) 369-3700

Facsimile: (949)369-3701

tbienert@bienertkatzman.com

wbernstein@bienartkatzman.com

Attorneys for James Larkin

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

DEFENDANT JAMES LARKIN’S 

MOTION TO SUPPRESS

(Oral argument requested)

Defendant James Larkin, by and through his undersigned attorney, moves to suppress 

evidence obtained from the search of his home and his electronic devices because the warrants 

leading to these searches were facially invalid under the Fourth Amendment. 

This Motion is based on the attached Memorandum of Points and Authorities, the Court’s 

file, and any evidence or argument presented at the hearing on this matter. This is Mr. Larkin’s first 

motion to suppress related to a search of his home and electronic devices. 

Excludable delay under 18 U.S.C. § 3161(h)(1) may occur as a result of this Motion or of an 

order based on this Motion.

DATED: October 18, 2019 BIENERT | KATZMAN PC

/s/ Whitney Z. Bernstein

Whitney Z. Bernstein

Thomas H. Bienert, Jr.

Attorneys for James Larkin

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MEMORANDUM OF POINTS AND AUTHORITIES

James Larkin moves for an order suppressing evidence obtained from the search of his home

and his electronic devices. The search warrants at issue were facially invalid for the reasons set forth 

below. 

BACKGROUND

The government sought and obtained several search warrants in this District and elsewhere. 

At issue in this motion are two search warrants, both of which violate the Fourth Amendment. 

I. The Home Search Warrant

On April 5, 2018, the government obtained a search warrant authorizing a search of 

Mr. Larkin’s home and two of his co-defendant Michel Lacey’s homes along with a safety deposit 

box that belonged to co-defendant Scott Spears and his wife (“Home Search Warrant”)1. The 

Home Search Warrant authorized the government to enter Mr. Larkin’s home to search for evidence 

identified in Attachment B,2 which included, among other categories of evidence:

• “Evidence of wealth, assets, and real estate obtained from the illicit activity to include; notes, 

correspondence, and news articles related to prostitution, sex trafficking and/or Backpage 

and related entities.”

• “Documentation of any funds received from Backpage or other related companies and 

disposition of those funds.”

• “Any property or proceeds resulting from money laundering or international money 

laundering scheme to include computers, currencies, coins, precious metals, artwork, jewelry, 

home furnishings and vehicles.”

Id. The Home Search Warrant authorized the government to seize this evidence if “stored on 

magnetic or electronic media including hard drive, portable devices such as thumb drives or any 

other media capable of storing information in a form readable by a computer” as well as “external 

hard drives, CDs, DVDs, digital tape, and other forms of backup media.” Id. 

1 A true and correct copy of the Home Search Warrant, issued under Arizona Docket No. 18-

9126 MB, is attached as Exhibit A.

2 The warrant covered the time period January 1, 2010 to the present.

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The government’s application for the Home Search Warrant included an affidavit from 

F.B.I. Special Agent Amy L. Fryberger.3 The operative indictment at the time of the government’s 

warrant application (since superseded) was attached to the affidavit and summarized but not 

incorporated by reference. See id. Fryberger noted that the indictment charged Mr. Larkin with 

violations of 18 U.S.C. §§ 371 (Conspiracy), 1952 (Travel Act), 1956 (Money Laundering), and 1957 

(International Money Laundering). Further, Fryberger claimed that Mr. Larkin and his coconspirators “knowingly facilitated the commission of prostitution” and money laundering. Id. at ¶ 

II.2. 

In an effort to establish probable cause, Fryberger said that a grand jury found that

Mr. Larkin and his co-conspirators “were involved in a conspiracy to commit several different forms 

of money laundering.” Id. at ¶ IV.1. Fryberger alleged that Mr. Larkin purchased an apartment in 

Paris, France in 2016 and spent approximately $100,000 remodeling it. Id. at ¶ IV.1.a.x.

The warrant return receipts4 show that the government seized several items of personal 

property from Mr. Larkin’s Arizona home, including documents, jewelry, vehicles, and electronic 

devices, but does not indicate whether and how any of it fell within the authorized search. 

II. The Device Search Warrant

On August 31, 2018 the government obtained another warrant to search the electronic 

devices it had seized from Mr. Lacey and Mr. Larkin during execution of the Home Search Warrant 

and their arrest. (“Device Search Warrant”)5. 

Attachment A2 to the Device Search Warrant identifies the digital devices that the 

government seized from Mr. Larkin’s home (three DVDs, three computers, a monitor, an iPad, two

hard drives, and a back-up drive) and person upon his arrest (laptop and iPhone). Id. Attachment 

B indicates that the government was authorized to search for “[a]ll information that constitutes 

fruits, evidence and instrumentalities of violations of 18 United States Code Section 371 

3 See Fryberger Affidavit in Support of Search and Seizure Warrant, a true and correct copy of which 

is attached hereto as Ex. B.

4 True and correct copies of receipts for items seized from Mr. Larkin are attached as Exhibit C. 

5 A true and correct copy of the Device Search Warrant, issued under Arizona Docket No. 18-

8365 MB, is attached hereto as Ex. D.

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(Conspiracy), 1952 (Travel Act), and/or 1956 and 1957 (Money Laundering) spanning the period 

of the indicted conspiracies to commit any [of] these offenses from 2004-2008.” That evidence 

included “correspondence” with co-Defendants and Carl Ferrer concerning Backpage, “[b]ank 

statements and financial records for Michael Lacey . . . covering a period from 2012 through 2018,” 

“[r]ecords of purchase and ownership of assets” for an unspecified period of time, and “[r]ecords 

of banking transactions from 2012 through April 2018.” Id. Attachment B sets forth required search

procedures, including use of a Filter Team to conduct the first review of the data seized from the 

Defendants’ devices. See id. 

The government’s application for the Device Search Warrant was supported by an affidavit 

from I.R.S. Special Agent-Computer Information Specialist Richard Robinson.6 The superseding 

indictment, which was the operative indictment at that time (and now), was attached and 

incorporated by reference. Id., ¶ III.2. Robinson noted that the superseding indictment charged 

Mr. Larkin with violations of 18 U.S.C. §§ 371 (Conspiracy), 1952 (Travel Act), 1956 (Money 

Laundering), and 1957 (International Money Laundering). Id., ¶ III.1.

With respect to probable cause, Robinson alleged that Mr. Larkin and his co-conspirators 

“were knowingly involved in the facilitation of prostitution and were engaged in money laundering 

activities.” See Robinson Aff., Ex. E ¶ IV.1. Robinson’s affidavit quotes from cooperator Carl 

Ferrer and Daniel Hyer’s plea agreements where they claim that the “great majority” or “majority” 

of advertisements posted to Backpage were for prostitution services. Id. at ¶¶ IV.2, 3. 

ARGUMENT

The Fourth Amendment mandates that “no warrants shall issue, but upon probable cause, 

supported by oath or affirmation, and particularly describing the place to be searched, and the 

persons or things to be seized.” U.S. Const. amend. IV. To be valid, a reviewing court must find 

that the warrant meets four separate requirements: (1) it must be based on probable cause; (2) 

supported by a sworn affidavit; (3) particularly describe the place to be searched; and (4) particularly 

describe the persons or things to be seized. See Groh v. Ramirez, 540 U.S. 551, 557 (2004). A failure 

6 A true and correct copy of the Robinson Affidavit in Support of Application of Seizure Warrant 

is attached as Exhibit E.

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to satisfy even one of these requirements renders a warrant facially invalid. See id. In addition to 

these requirements, in Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court recognized that 

a search conducted pursuant to a warrant is invalid if the supporting affidavit contains material 

misstatements of fact or omissions. 

Under these standards, both the Home and Device Search Warrants are facially invalid. 

First, the warrants fail the probable-cause requirement because the underlying affidavits contain no 

factual information that would enable the issuing magistrate to make a neutral and detached 

probable-cause determination. Second, the Home Search Warrant fails the particularity 

requirement, both in terms of specificity and breadth. Finally, Mr. Larkin is entitled to a Franks

hearing because the Home and Device Search Warrants contain material omissions and 

misrepresentations. 

I. The Home and Device Search Warrants violate the probable cause requirement. 

A. The Fourth Amendment requires that an issuing judge independently 

assess facts before finding probable cause to search. 

For a search warrant to be valid, it must describe the place to be searched and things to 

be seized with sufficient particularity and “be no broader than the probable cause on which it is 

based.” United States v. Weber, 923 F.2d 1338, 1342 (9th Cir. 1990). A search warrant is supported 

by probable cause if the issuing judge finds that “given all the circumstances set forth in the 

affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a 

particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). A search is invalid where “the issuing 

judge lacked a substantial basis for concluding that probable cause existed.” United States v. 

Underwood, 725 F.3d 1076, 1081 (9th Cir. 2013) (quotations and alterations omitted). 

When an affiant’s statements lack factual support, a warrant lacks probable cause. Id.; 

accord Gates, 462 U.S. at 239 (“wholly conclusory” statements of officers insufficient to establish 

probable cause); United States v. Cervantes, 703 F.3d 1135, 1139 (9th Cir. 2012) (conclusory 

allegations lack factual support are “entitled to little weight”). If an affidavit fails to provide 

foundational facts, an issuing judge cannot fulfill his or her duty to complete an independent 

review of the warrant See United States v. Leon, 468 U.S. 897, 914 (1984) (lack of neutral and 

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detached review renders a reviewing judge “a rubber stamp for the police.”); United States v. 

Ventresca, 380 U.S. 102, 108-09 (1965) (magistrate must be provided foundational facts). 

The basis for probable cause must be contained within the application without reference 

to outside information. United States v. Rubio, 727 F.2d 786, 795 (9th Cir. 1984). A grand jury’s 

probable cause finding cannot serve as a proxy for a probable cause determination by a magistrate 

issuing a warrant. See id. at 794-95 (“Fourth Amendment requires that warrants may issue only 

upon a determination of probable cause by a neutral and detached magistrate.”). 

Although the Ninth Circuit allows a magistrate to consider an indictment, it cannot be a 

substitute for facts in a warrant affidavit. Id. at 795. That is, a magistrate’s probable-cause finding 

must be independent and cannot simply ratify an affiant’s conclusions. See Gates, 462 U.S. at 238; 

see also Rubio, 727 F.2d at 795 (“[W]arrant affidavit’s mere recitation of the indictment is precisely 

that—the conclusion of another body, and a body whose function differs substantially from the 

magistrate’s constitutional duty to assess probable cause.”). If the government contends that the 

magistrate should consider evidence presented to the grand jury in assessing probable cause, the 

government must present that evidence in its warrant application. Cf. Rubio, 727 F.2d at 795 

(“The facts upon which the magistrate bases his probable cause determination must appear 

within the four corners of the warrant affidavit; the warrant cannot be supported by outside 

information.”).

B. The Home and Device Search Warrant applications were not supported by 

probable cause, so the magistrate erred in approving them.

The magistrate lacked a substantial basis to find probable cause because the affidavits 

underlying the warrants provided no facts supporting the crimes allegedly committed by the 

Defendants. Rather than outlining facts known to the affiants as is required, the affidavits 

summarize and incorporate the indictment. See Rubio, 727 F.2d at 795 (reversing convictions 

where affidavit that referred to the indictment “furnished no basis whatsoever for believing the 

defendants” had engaged in a pattern of racketeering); United States v. Bailey, 327 F. Supp. 802, 

806 (N.D. Ill. 1979) (denying order to compel defendants to provide handwriting exemplars 

because government failed to establish probable cause and recognizing that “the finding of 

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probable cause for arrest of an individual that accrues from his being indicted does not . . . 

become the equivalent of a finding of probable cause for a warrant to search that person’s home, 

his car, or his business office”).

In addition to improperly relying on the indictments, the search warrant affidavits do not 

include any facts establishing that Mr. Larkin had the heightened scienter required to establish 

probable cause that he engaged in any Travel Act (or money laundering) violations. See Defs.’ 

Mot. to Dismiss, Doc. 561 at 37-48 (incorporated herein by reference and explaining why the 

indictment is facially insufficient because it fails to provide any allegations on the requisite scienter 

for the charged crimes). Because the warrant applications contain conclusory statements about 

generalized intent rather than facts establishing Mr. Larkin’s knowledge and intent to engage in 

unlawful activity, the search warrants are facially invalid. See United States v. Weber, 923 F.2d 1338, 

1345-46 (9th Cir. 1990) (reversing conviction and ruling that suppression was warranted where 

affidavit in support contained only generalized conclusions about the behavior of child 

pornographers rather than particular evidence suggesting that the defendant was a child 

pornographer); Underwood, 725 F.3d at 1082-84 (affirming suppression where affidavit contained 

only expert opinion and conclusory statements that defendant trafficked ecstasy); Cervantes, 703 

F.3d at 1139-40 (reversing denial of suppression due to affiant’s failure to offer facts establishing 

probable cause to believe that defendant’s home was a “narcotics stash location”). 

Finally, the affidavits are void of any facts that establish probable cause to believe that 

Defendants knowingly and intentionally promoted/facilitated a “business enterprise” involving 

prostitution.7 Critically, the government must provide facts to the issuing magistrate indicating 

that the targets of the warrants knowingly and intentionally engaged in “unlawful activity.” 18 

U.S.C. §1952(a)(3). The plain text of the Travel Act defines “unlawful activity” as “any business 

enterprise involving ... prostitution offenses.” 18 U.S.C. §1952(b). The affidavits contain no 

fact concerning a specific criminal “business enterprise” or that the targets of the warrants 

7 See Mr. Brunst’s Motion to Dismiss Indictment Based on Failure to Allege Necessary Elements 

of the Travel Act (Doc. 746), and Mr. Larkin’s Joinder to the same (Doc. 754), incorporated 

herein by reference. 

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knowingly and specifically intended to facilitate or promote a particular “business enterprise.” 

As a result, the magistrate erred in authorizing the warrants.

II. In addition to lacking probable cause, the Home Search Warrant violated 

Mr. Larkin’s Fourth Amendment rights by failing to specify the items sought with 

particularity and because it was overbroad.

In addition to establishing probable cause, a warrant must be sufficiently particular. See 

United States v. SDI Future Health, Inc., 568 F.3d 684, 702 (9th Cir. 2009). To be particular, a 

“warrant must clearly state what is sought.” Id. Further, a warrant that is broader in scope than 

the probable cause upon which it is based is defective. Id. The particularity and breadth 

requirements protect a citizen’s Fourth Amendment’s privacy rights by preventing the 

government from conducting “general, exploratory rummaging in a person’s belongings.” Weber, 

923 F.2d at 1342. The Home Search Warrant violates the particularity requirement because it 

does not sufficiently specify the items sought and is overbroad. 

A. The Home Search Warrant did not sufficiently describe the particular

items sought.

The description of the items to be seized “must be specific enough to enable the person 

conducting the search reasonably to identify the things authorized to be seized.” United States v. 

Spilotro, 800 F.2d 959, 963 (9th Cir. 1986); see also United States v. Bridges, 344 F.3d 1010, 1017 (9th 

Cir. 2003) (“The executing officer must be able to identify from the face of the warrant, as well 

as any attached or expressly incorporated documents, what it is that they are being asked to search 

for and seize from the targeted property.”). The following search terms, limited to the period 

2010 to the time of execution of the Home Search Warrant, fail to provide adequate specificity:

• “Evidence of wealth, assets, and real estate obtained from the illicit activity to include; notes, 

correspondence, and news articles related to prostitution, sex trafficking and/or Backpage 

and related entities.”

• “Documentation of any funds received from Backpage or other related companies and 

disposition of those funds.”

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• “Any property or proceeds resulting from money laundering or international money laundering scheme to 

include computers, currencies, coins, precious metals, artwork, jewelry, home furnishings 

and vehicles.”

See Ex. A. 

These broad descriptions gave the searching agents unfettered discretion to decide what 

to seize and examine in violation of the Fourth Amendment. For example, it is unclear what 

items constitute “[e]vidence of wealth.” Although the search term provides examples, those 

examples are not exclusive. Cash, antiques, jewelry, and any other unlimited number of objects 

could qualify as “[e]vidence of wealth” but in who’s opinion? How much money constitutes 

wealth? How valuable is an item and according to what standard? This insufficiently particular 

term renders the warrant invalid. See United States v. Washington, 797 F.2d 1461, 1472-73 (9th 

Cir. 1986) (search warrant permitting seizure of articles of personal property tending to 

establish the wealth and financial status of defendant impermissibly overbroad). 

Moreover, the warrant does not describe what companies are “related” to Backpage. 

Without a list of Backpage’s subsidiaries and affiliates, the searching agents had no information 

from the warrant setting forth what items involved funds received from companies “related” to 

Backpage. 

Also, the warrant does not distinguish what is meant by “property or proceeds” of money 

laundering (as opposed to any other household goods unrelated to money laundering). When a

warrant covered items that are purportedly related to unlawful conduct, “the warrant must 

contain some guidelines to aid the determination of what may or may not be seized.” United 

States v. Cardwell, 680 F.2d 75, 78 (9th Cir. 1982) (reversing conviction and holding that “limiting 

the search to only records that are evidence of the violation of a certain statute is generally not 

enough” (quotations omitted). 

The Home Search Warrant does not describe how searching agents can distinguish 

between goods purchased with funds derived from the publishing of alleged illicit Backpage ads 

from items bought with money derived from Defendants’ lawful publishing activities, including 

money earned from Mr. Larkin’s decades of work publishing print newspapers. Any items 

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acquired before the alleged unlawful conduct could not possibly be funds from Backpage and 

“related” companies. 

Because the Home Search Warrant permits the “wholesale seizures of entire categories of 

items not generally evidence of criminal activity, and provide no guidelines to distinguish items 

used lawfully from those the government had probable cause to seize,” Sprilotro, 800 F.2d at 964 

(affirming suppression of evidence), the Home Search Warrant is facially invalid. 

b. The Home Search Warrant is unconstitutionally overbroad.

The finding of probable cause must support the seizure of each of the particular items 

named in the warrant. See, e.g., SDI Future Health, Inc., 568 F.3d at 702. That is, even if the 

affidavit for the Home Search Warrant satisfied the probable-cause requirement (which it did 

not), the search of items vastly exceeded the scope of probable cause. 

The scope of probable cause is limited to the operation of Backpage and expenditure or 

use of funds derived from Backpage’s alleged unlawful activities for an unspecified time period.8 

The time period is unspecified because the search warrant allows the searching agents to search 

for the identified categories of evidence from 2010 through the time of execution (see Ex. A). But 

the affidavit does not set forth probable cause for this identified time period; instead, it identifies 

isolated dates when purportedly unlawful transactions occurred without any indication that the 

period for which there is probable cause is 2010 through the time of search (see Ex. B). As a 

result of this discrepancy, the Home Search Warrant allowed the search of evidence that fell 

outside of the time period in which the affidavit provided probable cause to believe a crime 

occurred, rendering the search warrant overbroad. See Center Art Galleries-Hawaii, Inc. v. United 

States, 875 F.2d 747, 750-51 (9th Cir. 1989) (affirming suppression and concluding that “the broad 

scope of the warrants,” which allowed the seizure of items unrelated to the forged Dali artwork 

“despite the total absence of any evidence of criminal activity unrelated to Dali” was “not 

justified” by the scope of probable cause); see also SDI Future Health, 568 F.3d at 704-05 (search 

term that authorized search for all “rolodexes, address books, and calendars” overbroad because 

8 Although the affidavit mentions various and isolated dates of financial transactions, it does 

not identify any time period for the purported criminal conduct.

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it allowed the government to obtain contact information for anyone who had ever dealt with the 

corporate-defendant rather than limiting the search to information related to the “consultants, 

physicians, and health insurance companies” purportedly involved with the conspiracy).

III. Mr. Larkin is entitled to a Franks hearing because the Home and Device Search 

Warrants contain material misstatements and omissions. 

Because the affidavits omitted significant information material to the issuing magistrate’s 

probable-cause determination, Mr. Larkin is entitled to a hearing on the validity of the affidavits 

under Franks v. Delaware, 438 U.S. 154 (1978). There, the Supreme Court held that a defendant 

is entitled to an evidentiary hearing where there is evidence that a search conducted pursuant to 

a warrant was based on a supporting affidavit that contains intentional or reckless material 

misstatements of fact or omissions. See Franks, 438 U.S. at 171-72.

Since Franks, the Ninth Circuit held that a defendant is entitled to an evidentiary hearing 

to challenge the veracity of an affidavit when the defendant preliminarily demonstrates that an 

affidavit contains “intentionally or recklessly false statements” and that without those falsities the 

government cannot support a probable cause finding sufficient to issue a search warrant. United 

States v. Stanert, 762 F.2d 775, 780 (9th Cir. 1985) (quotations omitted). Clear proof of deliberate 

or reckless falsity is not required. See United States v. Gonzalez, Inc., 412 F.3d 1102, 1111 (9th Cir. 

2005). Instead, to trigger a hearing a defendant must offer evidence supporting “a finding of 

intent or recklessness.” Id. Once a defendant makes that preliminary showing, the district court 

“must hold a hearing to determine if any false statements deliberately or recklessly included in 

the affidavit were material to the magistrate’s finding of probable cause.” United States v. Johns, 

851 F.2d 1131, 1133 (9th Cir. 1988).

Half-truths like those in the affidavits offered in support of the Home and Device Search 

Warrants improperly allow a search warrant affiant to manipulate the magistrate’s inferences. 

Stanert, 762 F.2d at 781; see also Chism v. Washington State, 661 F.3d 380, 388 (9th Cir. 2011) (an 

officer acts recklessly when affidavit does not report important factual information within the 

officer’s knowledge at the time affidavit was prepared). When an omission is essential to the 

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finding of probable cause, recklessness may be inferred from the omission itself. See Madiwale v. 

Savaiko, 117 F.3d 1321, 1327 (11th Cir. 1994). 

A defendant is entitled to Franks hearing even if the misstatements or omissions are 

not the affiant’s fault. See United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992); accord Johns, 

851 F.2d at 1134 n.1. If a defendant prevails on a Franks challenge, the evidence seized must be 

suppressed without application of the “good faith” rule. See United States v. Leon, 468 U.S. 897, 

922 (1984); accord United States v. DeLeon, 979 F.2d 761, 763 (9th Cir. 1992).

Here, Mr. Larkin is entitled to a Franks hearing challenging the veracity of the affidavits 

underlying both the Home and Device Search Warrants because they contain material 

misrepresentations and omissions. The most serious omission is that the affidavits selectively 

ignore cases holding that the First Amendment protects online classified advertising sites 

generally, and Backpage in particular. This omission is critical because all allegations of unlawful 

conduct hinge on claims that advertisements posted to Backpage violated state prostitution laws. 

If publishing third-party advertisements for purported illegal activities cannot be unlawful, there 

is no predicate for the affiants’ claims that resulting financial transactions violated federal money 

laundering laws or the Travel Act. 

At the time the affidavits were written, the government knew that courts in California had 

twice rejected the specific theory on which all of the allegations in the affidavits are based; that is, 

that publishing classified ads for adult services violates state law prohibiting prostitution.9 See 

People v. Ferrer, 2016 WL 7237305, at *3 (Sup. Ct. Sacramento Cnty. Dec. 9, 2016) (“Ferrer I”) 

(recognizing that “the relevant question in this case is whether, and to what extent, Defendants’ 

activities entitle them to protection of their First Amendment rights through the immunity provision 

of the CDA” (emphasis added)); People v. Ferrer, No. 16FE024013 (Sup. Ct. Sacramento Cnty. 

Aug. 23, 2017) (“Ferrer II”) (holding the First Amendment and Communications Decency Act 

9 Indeed, the government has stated that it “partner[ed]” with the California Attorney 

General’s Office in their efforts to shut down Backpage. See April 9, 2018 DOJ Press Release, 

available at https://www.justice.gov/opa/pr/justice-department-leads-effort-seizebackpagecom-internet-s-leading-forum-prostitution-ads (last visited on Oct. 17, 2019).

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(“CDA”) foreclose suit “against an online publisher when the suit is based on speech provided 

by a third party”).

The affidavits disingenuously claim that Defendants’ purported handling of the ads 

establishes probable cause that Backpage facilitated prostitution in violation of state law. (Ex. B 

at ¶ IV.1.a.vi; Ex. E at ¶¶ IV.8.a-f.) However, the government knows that the editing of ads is 

protected under the First Amendment. Indeed, moderation falls under “traditional editorial 

functions,” and constitutes protected speech, even when terms or images are deleted, and the 

remaining portion of an advertisement is published. See Ferrer II, No. 16FE024013, slip op. at 

13-14 (“[E]ven if Backpage knew of the unlawfulness of the content of the ads, knowledge is 

insufficient to render Defendants liable. This is true regardless of whether Backpage even 

exercised its editorial discretion and deleted or blocked certain terms from ads.”). 

The search warrant affidavits also intentionally fail to disclose that numerous courts have 

rejected claims that adult advertisements are synonymous with prostitution or trafficking. See 

Backpage.com, LLC v. Dart, 807 F.3d 229, 234 (7th Cir. 2015) (“[N]ot all advertisements for sex 

are advertisements for illegal sex.”).10 The government’s suppression of this information, which 

should have been weighed by the judge considering probable cause for the warrants, renders the 

warrants materially misleading. Indeed, the government knew and should have advised the 

10 Accord Doe v. Backpage.com LLC, 104 F Supp. 3d 149, 156-57 (D. Mass. 2015), aff’d, 817 F.3d 

12 (1st Cir. 2016) (“existence of an escorts section in a classified ad service, whatever its

social merits, is not illegal.”); Backpage.com, LLC v. McKenna, 881 F. Supp. 1262, 1282 (W.D.

Wash. 2012) (escort ads have long been permitted and escort services are licensed and 

regulated in many states); Backpage. com, LLC v.Cooper, 939 F. Supp. 805, 816, 833-34 (D. Tenn. 

2013) (ads on Backpage.com are protected speech under the First Amendment); Backpage.com, 

LLC v. Hoffman, 2013 WL 4502097, at *9-11 (D.N.J. 2013) (rejecting argument that escort ads 

on the website are unprotected speech); M.A. v. Village Voice Media Holdings, LLC, 809 F.

Supp. 2d 1041, 1049-50 (E.D. Mo. 2011); see also Dart v. Craigslist, Inc., 665 F. Supp. 2d 

961, 968 (N.D. Ill. 2009) (“We disagree . . . that the ‘adult services’ section is a special case. 

The phrase ‘adult,’ even in conjunction with ‘services,’ is not unlawful in itself nor does it 

necessarily call for unlawful content.”); Cohen v. Bd. of Supervisors, 707 P.2d 840, 852 (Cal. 1985) 

(“An escort service may very well involve lawful activities relating to sex.” (internal 

quotations omitted)).

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issuing magistrate that under the First Amendment special rules apply when the government 

seeks to hold a party accountable for third-party speech.

Similarly, the affidavits allege that Mr. Larkin and his co-conspirators knowingly facilitated 

prostitution. (See Ex. B at ¶ II.2; Ex. E at ¶ III.2.) This assertion ignores the long line of cases 

requiring a heightened proof of scienter when the government seeks to hold a publisher liable 

for publishing the speech of a third party and cases indicating that a heightened proof of scienter 

is required for Travel Act violations. (See Defs.’ Mot. to Dismiss, Doc. 561 at 37-42.) These 

omissions are also materially misleading.

Finally, the indictments are riddled with material misstatements as set forth in greater 

detail in the concurrently filed Motion to Dismiss Indictment for Grand Jury Abuse or, in the 

Alternative, for Disclosure of Grand Jury Transcripts, incorporated herein by reference. 

Due to the government’s material misstatements and omissions in affidavits supporting 

its request for the search warrants, Mr. Larkin is entitled to a Franks hearing. This hearing will 

establish the veracity of the affidavits underlying the Home and Device Search Warrants and 

show that the government’s material omissions would have undermined the magistrate’s 

probable-cause finding. See United States v. Perkins, 583 F. App’x 796, 797 (9th Cir. 2014) (vacating 

conviction and remanding for Franks hearing where affidavit to search home for child 

pornography omitted information that Canadian officials had indicated that the images “had no 

obvious sexual purpose” and failed to provide that magistrate with the images). 

CONCLUSION

For all these reasons, this Court should: (1) suppress the evidence obtained from 

execution of the Home and Device Search Warrants and any evidence derived from them; and, 

to the extent required, (2) hold a Franks hearing for Mr. Larkin to demonstrate that the Home 

and Device Warrants contain material misstatements and omissions in violation of the Fourth 

Amendment. 

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DATED: October 18, 2019 BIENERT | KATZMAN PC

/s/ Whitney Z. Bernstein

Whitney Z. Bernstein

Thomas H. Bienert, Jr.

Attorneys for James Larkin

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CERTIFICATE OF SERVICE

I certify that on this 18th day of October, 2019, I electronically transmitted a PDF 

version of this document to the Clerk of the Court, using the CM/ECF System, for filing and 

for transmittal of a Notice of Electronic Filing to the following CM/ECF registrants listed 

below. 

s/ Toni Thomas

Toni Thomas

Anne Michelle Chapman, anne@mscclaw.com 

Erin E. McCampbell, emccampbell@lglaw.com 

Anthony R. Bisconti, tbisconti@bienertkatzman.com 

Ariel A. Neuman, aan@birdmarella.com 

Bruce S. Feder, bf@federlawpa.com 

James C. Grant, jimgrant@dwt.com 

Lee David Stein, lee@mscclaw.com 

Paul J. Cambria, pcambria@lglaw.com 

Robert Corn-Revere, bobcornever@dwt.com 

Ronald Gary London, ronnielondon@dwt.com 

Janey Henze Cook, janey@henzecookmurphy.com 

John Lewis Littrell, jlittrell@bmkattorneys.com 

Seetha Ramachandran, Seetha.Ramachandran@srz.com 

Thomas H. Bienert, Jr. tbienert@bienertkatzman.com 

Whitney Z. Bernstein, wbernstein@bienertkatzman.com 

Gary S. Lincenberg, glincenberg@birdmarella.com 

Gopi K. Panchapakesan, gpanchapakesan@birdmarella.com 

Michael D. Kimerer, mdk@kimerer.com 

Rhonda Elaine Neff, rneff@kimerer.com 

David S. Eisenberg, david@deisenbergplc.com 

Joy Malby Bertrand, joyous@mailbag.com 

John Jacob Kucera, john.kucera@usdoj.gov 

Kevin M. Rapp, Kevin.Rapp@usdoj.com 

Margaret Wu Perlmeter, Margaret.perlmeter@usdoj.gov 

Reginald E. Jones, reginald.jones4@usdoj.gov 

Peter Shawn Kozinets, Peter.Kozinets@usdoj.gov 

Andrew C. Stone, andrew.stone@usdoj.gov

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