1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3888758.2

DEFENDANT JOHN BRUNST’S RESPONSE TO 

UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS

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)

 gkp@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

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-DJH

DEFENDANT JOHN BRUNST’S 

RESPONSE TO UNITED STATES’

MOTION FOR CURATIVE 

INSTRUCTIONS

I. INTRODUCTION

Defendant John Brunst responds to the portion of the government’s motion 

concerning Sheriff Dart and the Backpage v. Dart opinion. In its opening, the government 

said it will use Visa’s and MasterCard’s terminations of their relationships with Backpage 

to show that Defendants were on notice that Backpage was engaged in illegal conduct. 

Defendants believe the evidence will demonstrate the opposite; namely, that these credit 

card companies instead acted out of concern for their brands and reputations, just days 

after receiving an unconstitutional and threatening letter from a law enforcement official. 

In response to what the government has called “credit card Armageddon,” Defendants are 

entitled to show that they and Carl Ferrer believed: (1) the credit card terminations were 

prompted by unconstitutional cease-and-desist letters and other threats from Sheriff

Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 1 of 10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3888758.2 2

DEFENDANT JOHN BRUNST’S RESPONSE TO 

UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS

Thomas Dart (the Sheriff of Cook County, Illinois, which includes the City of Chicago) to 

Visa and MasterCard; (2) as a consequence, Backpage sued Dart; (3) the Seventh Circuit 

ultimately ruled that Dart acted unconstitutionally and directed the district court to enter an 

injunction against Dart; and (4) Backpage and Ferrer communicated with the credit card 

companies regarding Dart’s actions. 

The government—through its indictment, opening statement, and exhibits—has put 

this factual narrative squarely at issue. Indeed, at least a dozen government exhibits 

reference the Dart saga from soup to nuts, from the June 2015 Dart cease-and-desist letters 

to filings and sworn statements from Carl Ferrer in Dart. Critically, almost all of the 

money laundering charges and about half of the Travel Act charges concern alleged acts 

that took place following the commencement of the Dart saga. Defendants therefore must 

be permitted to cross-examine Ferrer on the post-June 2015 developments that undermine 

the government’s claim that the credit card terminations put Defendants on “notice” that 

Backpage was engaged in illegal conduct. 

For these reasons, Defendants should be permitted to present evidence to the jury of 

(1) Backpage’s direct response to what the government called “credit card Armageddon,”

namely that it sued Dart and (2) Defendants’ and Ferrer’s mental states at the time, which 

were informed by the Seventh Circuit’s holding in Dart that the credit card terminations 

were triggered by Sheriff Dart’s delivery of unconstitutional threats to MasterCard and 

Visa.

II. RELEVANT FACTUAL BACKGROUND

A. The Government Has Directly Put at Issue Sheriff Dart’s Actions and 

Backpage’s Response. 

In the Superseding Indictment, the government alleges that “the three major credit 

card companies stopped doing business with Backpage.” Dkt. 230 at ¶ 182. Specifically, 

in July 2015, Visa and MasterCard terminated their relationships with Backpage. Id. The 

government also alleged those companies informed Backpage that their rules prohibit their 

credit cards “from being used for illegal activities.” Id. In its opening statement, the 

Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 2 of 10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3888758.2 3

DEFENDANT JOHN BRUNST’S RESPONSE TO 

UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS

government claimed that Mr. Brunst was a “key cog, key player in this response to credit 

card Armageddon.” The government then stated, as to Defendants, “So what did they do? 

They had to get creative.” The government asks the jury to believe that (a) the credit card 

terminations put Defendants and Ferrer on “notice” that Backpage was engaging in illegal 

conduct and (b) Defendants and Ferrer responded by engaging in further illegal conduct. 

The government seeks to do this while omitting that Backpage (a) communicated with the 

credit card companies about the wrongful basis for that supposed “notice” (i.e., Dart’s 

threats) and (b) pursued a proper channel – the courts – to test any inferences that could be 

drawn from such notice. Defendants must be allowed to show what they actually did in 

response to the credit card terminations, by presenting evidence of the following:

• The Visa and MasterCard terminations were triggered by identical cease-and-desist 

letters sent by Sheriff Dart on June 29, 2015 (Gov. Exs. 459, 478).

• Dart then threatened to hold a press conference during which he would publicly 

criticize the credit card companies for doing business with Backpage (Exs. 6006, 

6008).

• In a matter of days following the receipt of the Dart letter, Visa and MasterCard 

terminated their relationships with Backpage (Ex. 6011).

• Backpage (acting through its counsel Thomas Brown, a former in-house attorney 

for Visa and then a respected attorney at Paul Hastings) sent Visa and Mastercard 

letters requesting that they reconsider their terminations, explaining how and why

Backpage was operating in compliance with the law, and telling the companies that 

Backpage intended to seek an injunction against Dart (Ex. 6013).

• In response to “credit card Armageddon,” Backpage sued Dart for interfering with 

its credit card relationships. Backpage ultimately prevailed in the Seventh Circuit, 

with Judge Posner holding that Sheriff Dart’s actions were unconstitutional and 

directing the district court to enjoin Dart from taking any actions “to coerce or 

threaten credit card companies . . . with sanctions intended to ban credit card or 

other financial services from being provided to Backpage.com.” (Ex. 5104 at 19). 

Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 3 of 10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3888758.2 4

DEFENDANT JOHN BRUNST’S RESPONSE TO 

UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS

Indeed, the Court need only look at the government’s exhibit list to appreciate the 

relevance of the Sheriff Dart saga, including the ensuing litigation. See Gov. Ex. 186 

(Backpage v. Dart, Seventh Circuit, Appendix to Brief); Gov. Ex. 232 (October 2, 2015 

Google Alert to Backpage staff referencing the status of the case); Gov. Ex. 458 

(August 16, 2015 Affidavit of Martin Elliot, executive at Visa and government witness, 

filed in the Backpage v. Dart case); Gov. Exs. 459, 478 (June 29, 2015 Letters from Dart 

to Visa and MasterCard re: Backpage), Gov. Ex. 477 (June 29, 2015 internal MasterCard 

correspondence regarding Dart letter); Gov. Ex. 663 and 663a (internal Backpage e-mail 

attaching legal memorandum from Samuel Fifer, a partner at Dentons (then SNR Denton), 

summarizing an earlier June 5, 2011 meeting between Backpage and Sheriff Dart); Gov. 

Ex. 794 (July 8, 2016 e-mail from Liz McDougall [Backpage’s General Counsel] to a WSJ 

reporter regarding the Backpage v. Dart case); Gov Ex. 1127 (July 1, 2015 email from 

Ferrer to others at Backpage, stating “[MasterCard] and Sheriff Dart are now deciding 

what is legal and illegal speech. [A]re now arbiters of legal speech. We have our legal 

team on it. We have a good track record on these issues.”); Gov. Ex. 1575 (June 29, 2015 

internal MasterCard email regarding Dart letter); Gov. Ex. 1629 (July 21, 2015 Declaration 

of Carl Ferrer submitted in Dart); Gov. Ex. 1687 (August 18, 2015 deposition transcript of 

Carl Ferrer in Dart).

B. Dart’s Letters to Visa and MasterCard Prompted the Terminations of 

the Backpage Relationship.

As set forth in government exhibits 459 and 478, on June 29, 2015, Sheriff Dart 

sent identical letters to Visa and MasterCard requesting that they “immediately cease and 

desist from allowing [their] credit cards to be used to place ads on websites like 

Backpage.com.” Through his letter, Dart was putting the reputation of Visa and 

MasterCard at stake. Id. at 3 (“For every one of the millions of ads on Backpage.com 

alone, your institution is making money. But at what cost to your image, our society and 

to those thousands of victims?”). Within a matter of days, Visa and MasterCard 

terminated their relationships with Backpage. See, e.g., Ex. 6011 (July 2, 2015 internal 

Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 4 of 10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3888758.2 5

DEFENDANT JOHN BRUNST’S RESPONSE TO 

UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS

Visa email confirming termination of “payment facilities of Backpage.”); see also Gov. 

Ex. 1629 (Ferrer Decl. in Dart) at ¶ 24 (“On July 1 and 2, 2015, Backpage.com received 

notice from its acquiring banks and credit card processors (companies that help facilitate 

credit card payments) that they could no longer process Visa and MasterCard transactions 

and were terminating their agreements with Backpage.com effective immediately.”). Visa 

and MasterCard terminated the Backpage relationship for reputational reasons in response 

to the Dart letter, as internal correspondence at these companies makes clear. See Ex. 6008 

(June 30, 2015 email from Dart’s office to Visa noting that Dart would “be having a press 

conference tomorrow morning . . . Obviously the tone of the press conference will change 

considerably if your executives see fit to sever ties with Backpage. . . .”); Ex. 6010 (July 1, 

2015 internal Visa e-mail where an executive says the “subtle messages [Dart’s office has] 

been sending us . . . could easily be taken for blackmail.”). 

C. Backpage Attempted to Stave off the Credit Card Terminations Pending 

a Lawsuit Against Sheriff Dart.

On July 6, 2015, Backpage sent letters to Visa and MasterCard, requesting that they 

continue to allow their cards to be used on Backpage.com “at least until such time as 

a court has ruled on Sheriff Dart’s actions.” Ex. 6013 at 1. The letter from Backpage 

highlighted the company’s strict Terms of Use, cooperation with law enforcement, and its 

robust moderation process. The letter requested a meeting with Visa’s executives, which 

later took place. Ferrer testified in the Dart case that he had reviewed the letter Backpage 

sent and did not recall disagreeing with any statements made in it. Gov. Ex. 1687 (Ferrer 

Depo. Tr. at 57:10-16).1

1 At the September 8th hearing, the government indicated it intends to object to letters like 

this as “self-serving” and “inaccurate.” But the letter’s accuracy is irrelevant, as the letter 

goes to Backpage’s position vis-à-vis the credit card companies and Defendants’ collective 

state of mind (and directly responds to the government’s “notice” evidence, which also is 

not coming in for the truth). It is not for the government to prejudge whether prior 

statements from Backpage or Ferrer were accurate. That is a question for the jury. This 

anticipated government argument would be particularly specious as to the letter found at 

Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 5 of 10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3888758.2 6

DEFENDANT JOHN BRUNST’S RESPONSE TO 

UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS

D. Backpage Sued Sheriff Dart in Federal Court and Prevailed.

In response to Sheriff Dart’s actions, Backpage sued Sheriff Dart in the Northern 

District of Illinois in July 2015. Later that month, Ferrer e-mailed Trent Voigt, CEO of

JetPay (a payment processor that processed credit card payments tied to Visa and others),

and said: “If we win on Dart, then Visa has cover for protected speech.” Ex. 6025. In 

other words, Ferrer was of the mind that pursuing and winning the Dart case would lead 

Visa to reverse its termination.

Ferrer submitted a sworn declaration in Dart, in which he stated:

• From 2004 through 2015, the major credit card companies allowed their credit cards 

to be used to purchase ads on Backpage.com. Gov. Ex. 1629 at ¶ 6.

• On July 1 and 2, 2015, Backpage was informed of the terminations. Id. at ¶ 24.

• “The practical effect of Sheriff Dart’s and the credit card companies’ actions has 

been to cut off nearly all revenue to Backpage.com. This affects not only adult ads 

but also other ads for dating, housing, services, trade, and sales of goods, among 

others.” Id. at ¶ 27.

• “Sheriff Dart’s actions and the termination of credit card services have also harmed 

Backpage’s efforts to police and preclude improper ads.” Id. at ¶ 29.

After the district court granted a temporary restraining order but refused to issue 

a preliminary injunction, the Seventh Circuit reversed and directed the district court to 

enjoin Sheriff Dart. Ex. 5104. The Seventh Circuit held:

• “Visa and MasterCard bowed to pressure from Sheriff Dart and others by refusing 

to process transactions in which their credit cards are used to purchase any ads on 

Backpage, even those that advertise indisputably legal activities.” Backpage.com,

LLC v. Dart, 807 F.3d 229, 230 (7th Cir. 2015) (emphasis in original).

• “[W]hile [Dart] has a First Amendment right to express his views about Backpage, 

a public official who tries to shut down an avenue of expression of ideas and 

Ex. 6013, as Mr. Ferrer later testified to its accuracy.

Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 6 of 10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3888758.2 7

DEFENDANT JOHN BRUNST’S RESPONSE TO 

UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS

opinions through ‘actual or threatened imposition of government power or sanction’

is violating the First Amendment.” Id. (quoting American Family Association, Inc.

v. City & County of San Francisco, 277 F.3d 1114, 1125 (9th Cir. 2002)).

• Dart “is intimating that two of the world’s largest credit card companies may be 

criminal accomplices” and that “Visa and MasterCard got the message and cut all

their ties to Backpage.” Id. at 232 (emphasis in original).

• The Court also cast doubt on a declaration filed by Martin Elliot, in which

Mr. Elliott, a Visa executive and government witness here, contended that “[a]t no

point did Visa perceive Sheriff Dart to be threatening Visa with prosecution or any

other official state action, nor did Visa base its decision on any such threat.” Gov.

Ex. 458 at ¶ 4. The Court remarked: “But what would one expect an executive of

Visa to say? “I’m afraid of the guy?” More significant than Visa’s denial of having 

succumbed to Sheriff Dart’s pressure tactics is the statement in the affidavit that the 

withdrawal of credit card services from Backpage ‘follow[ed] communication with 

Sheriff Dart’s staff’ and with ‘Visa Legal Department’ personnel. The reference 

was to those follow-up communications from the sheriff’s office promised (which is 

to say threatened) in the letters to Visa and MasterCard. The promise/threat was 

honored.” Id. at 233 (emphasis added).

Further, in a later (unrelated) lawsuit regarding a payment dispute involving one of 

Backpage’s payment processors, Carl Ferrer stated in a sworn declaration that he believed 

Dart waged a campaign against Backpage, attaching the Dart opinion to his declaration. 

Ferrer’s prior statements are directly relevant to impeach any testimony by Ferrer claiming 

that Defendants or Ferrer were operating in bad faith at the time. 

E. Brunst’s Opening Statement

In response to the government’s claims regarding “credit card Armageddon,”

Mr. Lincenberg said in his opening that, in contrast to other law enforcement officials, 

“there was one sheriff in Cook County named Sheriff Dart, who –.” 08/31/23 Tr. at 

205:18-19. The government objected at the mere mention of “Dart”; the objection was 

Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 7 of 10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3888758.2 8

DEFENDANT JOHN BRUNST’S RESPONSE TO 

UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS

overruled. Id. at 20:20-22. Mr. Lincenberg explained that he expected the evidence to 

show that “Sheriff Dart threatened these credit card companies and sent them 

correspondence. Some of this is documented in government exhibits. Sent them 

correspondence to say, you should stop doing business with Backpage.” Id. at 205:23-

206:2. Mr. Lincenberg next stated: “What the evidence will show in this case is that all of 

the issues with Sheriff Dart were resolved in a manner that gave comfort to our clients that, 

in fact, Sheriff Dart was the one who was wrong in threatening to shut them down.” Id. at 

206:8-12. The government objected; the objection was again overruled. Id. at 206:13-17.

F. The Court’s Pre-Trial Ruling Regarding Prior Lawsuits Involving 

Backpage

The Court held that “[t]hough some previously referenced cases alleged 

Backpage.com, LLC, engages in similar acts of posting ads for prostitution, those prior 

cases are distinguishable because they were (1) civil adjudications; (2) brought by different 

parties; and (3) reviewed under differing legal standards. They are irrelevant because they 

bear no relation to this case or the criminal issues to be decided.” Dkt. 1643 at 11. Even if 

the relevance of the Dart litigation was not apparent at the time of this Court’s ruling, the 

government’s opening put the Dart litigation squarely at issue in this case. 

III. ARGUMENT

A. Evidence Relating to Sheriff Dart’s Actions Is Manifestly Relevant.

Sheriff Dart’s June 29, 2015 letters to Visa and MasterCard, those companies’ 

responses to Dart’s letters and threats, Backpage’s decision to sue Sheriff Dart, and the 

ultimate result in that case all are relevant to the government’s claims regarding 

“credit card Armageddon.” Defendants therefore should be permitted to cross-examine 

Carl Ferrer regarding his and Backpage’s understanding of what transpired in the months 

following Sheriff Dart’s threats to Visa and MasterCard. The government should not be

allowed to put at issue in its opening statement the purported basis for why MasterCard 

and Visa terminated their relationships with Backpage and whether those terminations put 

Defendants on “notice” regarding purported illegal activity, without Defendants having the 

Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 8 of 10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3888758.2 9

DEFENDANT JOHN BRUNST’S RESPONSE TO 

UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS

opportunity to show the jury how Backpage responded. Further, Ferrer now claims that he 

(and Backpage) were not acting in good faith at the time of the credit card terminations, 

despite his contemporaneous e-mails, declarations, and testimony to the contrary. 

Defendants therefore must be able to counter that the result in Dart gave Ferrer comfort 

that Backpage had done nothing wrong to trigger the credit card terminations. 

Defendants also should be permitted to cross-examine Martin Elliott, a Visa 

executive and government witness, about the basis for Visa’s termination of Backpage. 

The defense will not be surprised if the government attempts to elicit from Mr. Elliott that 

Visa had long contemplated terminating Backpage, it considered the content on 

Backpage’s site to be illegal, and that Dart’s letter did not precipitate the termination. 

Defendants should be allowed to (1) test these assumptions, (2) show that Visa was simply 

acting to protect its reputation against the threat of bad publicity, (3) inquire as to the effect 

the Dart letter and ensuing litigation had on Visa’s decision-making, and (4) probe Visa’s 

reaction to Mr. Brown’s letter to Visa on behalf of Backpage, which defended the legality 

of Backpage’s operations (Ex. 6013). Indeed, Mr. Elliott was well aware of the Dart case: 

he submitted a declaration in the case (Gov. Ex. 458) and tracked its progress, as internal 

Visa correspondence shows (Exs. 6014, 6015, 6017). 

B. Reference to the Dart Opinion Should Not Be Excluded as a “Prior 

Case” Covered by the Court’s Ruling.

Consistent with this Court’s order, Defendants will not use the Dart opinion to 

argue that it immunizes them from the charges brought here. But the opinion is relevant to 

show the mental states of Ferrer, Backpage, and Defendants at the time—that they 

believed, having prevailed in Dart, that the credit card terminations were the product of 

illegal coercion by a public official, not the result of any illegal conduct on their part.

2

2 The Court held: “The district judge remarked ‘that the majority of the advertisements 

[in Backpage’s adult section] are for sex’—but a majority is not all, and not all

advertisements for sex are advertisements for illegal sex. There is no estimate of how

many ads in Backpage’s adult section promote illegal activity; we just gave examples of

Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 9 of 10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3888758.2 10

DEFENDANT JOHN BRUNST’S RESPONSE TO 

UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS

This opinion was a guiding star for Defendants during the 2015 to 2018 time period—

a large focus of the substantive counts in the indictment.

3

IV. CONCLUSION

For the foregoing reasons, Defendants request that the Court deny the government’s 

motion and permit the defense to introduce the evidence discussed herein, which is 

relevant by virtue of the superseding indictment, the government’s opening statement, and

at least a dozen government exhibits. The proffered evidence specifically rebuts the 

government’s argument that the credit card terminations put Defendants on “notice” 

regarding Backpage’s alleged illegal conduct. 

DATED: September 11, 2023 Respectfully submitted,

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

Bird, Marella, Boxer, Wolpert, Nessim,

Drooks, Lincenberg & Rhow, P.C.

By: /s/ Gopi K. Panchapakesan

Gopi K. Panchapakesan

Attorneys for Defendant John Brunst

some that do not.” Backpage.com, LLC v. Dart, 807 F.3d 229, 234 (7th Cir. 2015). Had 

the Court held the opposite, the government undoubtedly would be clamoring to introduce 

the opinion as “notice” evidence of intent on the part of Defendants.

3

Just last week, in Missouri v. Biden, No. 23-30445, 2023 WL 5821788, at *19, 31 (5th 

Cir. Sept. 8, 2023), the Fifth Circuit Court of Appeals relied heavily on the holding in Dart

and its reasoning to enjoin President Biden and others in the executive branch from 

interfering with the content-moderation decisions of social media platforms. 

Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 10 of 10