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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)

Assistant U.S. Attorneys

40 N. Central Avenue, Suite 1800

Phoenix, Arizona 85004-4408

Telephone (602) 514-7500

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

Special Assistant U.S. Attorney

312 N. Spring Street, Suite 1200

Los Angeles, CA 90012

Telephone (213) 894-3391

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. 

Michael Lacey, et al.,

Defendants.

No. CR-18-422-PHX-SMB

UNITED STATES’ RESPONSE TO 

DEFENDANTS’ MOTION TO 

DISMISS INDICTMENT

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TABLE OF CONTENTS

Table of Contents ................................................................................................................. i

Table of Authorities.............................................................................................................ii

Preliminary Statement ......................................................................................................... 1

Background.......................................................................................................................... 4

A. Overview of Backpage .................................................................................. 4

B. Backpage’s Knowing and Intentional Facilitation of Prostitution................ 5

C. Victim Summaries....................................................................................... 11

D. Money Laundering Operations ................................................................... 11

E. Substantive Counts...................................................................................... 12

Argument........................................................................................................................... 12

I. The Superseding Indictment Far Surpasses the Minimal Constitutional 

Requirements for Sufficiency Under Rules 7 and 12............................................. 12

A. Conspiracy to Violate Travel Act—Facilitate Prostitution – Count 1........ 13

B. Travel Act—Facilitate Prostitution – Counts 2-51 ..................................... 13

C. Money Laundering ...................................................................................... 14

II. Defendants Cannot Pretend that Backpage’s “Adult” Ads Were for Legitimate 

“Escort” Services, Rather than Illegal Prostitution.. .............................................. 16

III. Backpage’s Litigation History Undermines Defendants’ Claim that 

Backpage’s “Adult” Ads Were Protected By the First Amendment...................... 21

IV. Backpage’s Prostitution-Promoting Practices Were Not “Protected Editorial 

Functions.” ............................................................................................................. 26

V. The SI’s Mens Rea Allegations Are Sufficient. ..................................................... 30

A. The SI Alleges the Requisite Elements for a Travel Act Violation, 

Including Mens Rea..................................................................................... 30

B. Defendants’ Constitutional Mens Rea Claims are Unavailing.................... 32

C. The SI Alleges Defendants Each Possessed the Requisite Specific 

Intent............................................................................................................ 38

1. Lacey and Larkin.............................................................................. 38

2. Spear and Brunst .............................................................................. 40

D. Defendants’ Cases Are Inapposite. ............................................................. 41

VI. The Travel Act is Constitutional As Applied......................................................... 43

Conclusion......................................................................................................................... 44

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Table of Authorities

CASES

Anthony v. Yahoo, Inc., 421 F. Supp. 2d 1257 (N.D. Cal. 2006) ..................................... 26

Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986) ........................................................... 35

Backpage.com LLC v. Dart, 807 F.3d 229 (7th Cir. 2015) ..................................... 3, 21-23

Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D. Wash. 2012) ................ 22

Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) .................................................... 27

Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) ................................................................ 27

Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110 (11th Cir. 1992) ................. 17

Coyote Pub., Inc. v. Miller, 598 F.3d 592 (9th Cir. 2010) ...................................... 2, 17, 27

Dart v. Craigslist, 665 F. Supp. 2d 961 (N.D. Ill. 2009) ............................................. 25-26

Doe ex rel. Roe v. Backpage.com, LLC, 104 F. Supp. 3d 149 (D. Mass. 2015) ............... 28

Erotic Service Provider Legal Ed. and Research Project v. Gascon, 

 880 F.3d 450 (9th Cir. 2018) ............................................................................... 2, 17, 29

Hy Cite Corp. v. badbusinessbureau.com, 

 418 F. Supp. 2d 1142 (D. Ariz. 2005) ........................................................................... 26

J.S. v. Village Voice Media Holdings, Inc., 359 P.3d 714 (Wash. 2015) ............... 3, 25, 27

Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016) ................... 25, 35-36

Jane Doe No. 1 v. Backpage.com, LLC, 

 2018 WL 1542056 (D. Mass. 2018) .................................................................... 3, 25, 27

Jones v. Dirty World Ent. Recordings LLC, 755 F.3d 398 (6th Cir. 2014) ...................... 26

M.A. v. Village Voice Media Holdings, LLC, 

 809 F. Supp. 2d 1041 (E.D. Mo. 2011) ................................................................... 21, 28

Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962) .................................................... 35

MCW, Inc. v. badbusinessbureau.com, 

 2004 WL 833595 (N.D. Tex. Apr. 19, 2004) ................................................................ 26

Miller v. California, 413 U.S. 15 (1973) .......................................................................... 32

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Mishkin v. State of New York, 383 U.S. 502 (1966) .................................................... 33-35

Morissette v. United States, 342 U.S. 246 (1952) ............................................................ 38

People v. Ferrer, 2016 WL 7237305 (Cal. Super. Ct. Dec. 16, 2016) ....................... 21, 22

Pinkerton v. United States, 328 U.S. 640 (1946) .............................................................. 14

Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376 (1973) ................... 2, 17

Salinas v. United States, 522 U.S. 52 (1997) .................................................................... 13

Senate Permanent Subcommittee v. Ferrer, 199 F. Supp. 3d 125 (D.D.C. 2016) ............ 22

Smith v. California, 361 U.S. 147 (1959) ......................................................................... 33

Takahashi v. United States, 143 F.2d 118 (9th Cir. 1944) ............................................... 38

Turf Center, Inc. v. United States, 325 F.2d 793 (9th Cir. 1963) ..................................... 32

United States v. Blinder, 10 F.3d 1468 (9th Cir. 1993) ............................................... 28-29

United States v. Boren, 278 F.3d 911 (9th Cir. 2002) ........................................ 2, 4, 12, 28

United States v. Buddenberg, 2010 WL 2735547 (N.D. Cal. July 12, 2010) ............. 16, 41

United States v. Cassidy, 814 F. Supp. 2d 574 (D. Md. 2011) ......................................... 43

United States v. Gibson Specialty Co., 507 F.2d 446 (9th Cir. 1974) ................... 31-32, 38

United States v. Graham, 581 F.2d 789 (9th Cir. 1978) ................................................... 38

United States v. Gray, 2017 WL 3675383 (D. Ariz. Aug. 25, 2017) ............................... 13

United States v. Jackson, 865 F.3d 946 (7th Cir. 2017) .................................... 3, 25, 35-36

United States v. Jensen, 93 F.3d 667 (9th Cir. 1996) ............................................. 1, 12, 27

United States v. Kaiser, 660 F.2d 724 (9th Cir. 1981) ..................................................... 32

United States v. Kilbride, 507 F. Supp. 2d 1051 (D. Ariz. 2007) ..................................... 16

United States v. Landham, 251 F.3d 1072 (6th Cir. 2001) ............................................... 16

United States v. Meredith, 685 F.3d 814 (9th Cir. 2012) ................................................. 17

United States v. Montague, 29 F.3d 317 (7th Cir. 1994) .................................................. 14

United States v. Moreland, 622 F.3d 1147 (9th Cir. 2010) .............................................. 15

United States v. Nukida, 8 F.3d 665 (9th Cir. 1993) ........................................................ 12

United States. v. O’Donnell, 608 F.3d 546 (9th Cir. 2010) ........................................ 13, 32

United States v. P.H.E., Inc., 965 F.2d 848 (10th Cir. 1992) ........................................... 36

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United States v. Palfrey, 499 F. Supp. 2d 34 (D.D.C. 2007) ................................ 14, 30, 32

United States v. Phillips, 367 F.3d 846 (9th Cir. 2004) .................................................... 38

United States v. Polizzi, 500 F.2d 856 (9th Cir. 1974) ............................................... 32, 43

United States v. Resendiz-Ponce, 549 U.S. 102 (2007) ......................................... 12, 14-16

United States v. Rutgard, 116 F.3d 1270 (9th Cir. 1997) ................................................. 15

United States v. Schiff, 379 F.3d 621 (9th Cir. 2004) ....................................................... 17

United States v. Tavelman, 650 F.2d 1133 (9th Cir. 1981) ....................... 13-14, 30, 32, 43

United States v. Ulbricht, 31 F. Supp. 3d 540 (S.D.N.Y. 2014) ................................ passim

United States v. Welch, 327 F.3d 1081 (10th Cir. 2003) ...................................... 30, 32, 43

United States v. White, 610 F.3d 956 (7th Cir. 2010) .................................................. 41-42

United States v. White, 638 F. Supp. 2d 935 (N.D. Ill. 2009) .......................................... 41

United States v. Williams, 553 US. 285 (2008) ................................................ 2, 17, 29, 33

United States v. X-Citement Video, Inc., 513 U.S. 64 (1994) ............................................. 5

Woodhull Freedom Found. v. United States, 

 334 F. Supp. 3d 185 (D.D.C. 2018) ............................................................................... 37

Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997) .................................................. 27

STATUTES

18 U.S.C. § 371 ............................................................................................................. 4, 13

18 U.S.C. § 875(c) ............................................................................................................ 16

18 U.S.C. § 1591 ............................................................................................................... 37

18 U.S.C. § 1952 ...................................................................................................... 4, 14-15

18 U.S.C. § 1952(a)(3)(A) .................................................................................... 13, 20, 30

18 U.S.C. § 1956 ............................................................................................................... 14

18 U.S.C. § 1956(a)(1)(B) ................................................................................................ 15

18 U.S.C. § 1956(a)(2)(A) ................................................................................................ 15

18 U.S.C. § 1956(a)(2)(B) ................................................................................................ 15

18 U.S.C. § 1957(a) .......................................................................................................... 15

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18 U.S.C. § 2421(A)(a) ..................................................................................................... 37

34 U.S.C. § 11293(b)(1)(B) .............................................................................................. 10

47 U.S.C. § 230 ................................................................................................................. 21

47 U.S.C. § 230(e)(1) .............................................................................................. 2, 22, 28

RULES

Fed. R. Crim. P. 7 and 12 ......................................................................................... 1, 12-13

MISCELLANEOUS

9th Cir. Model Crim. J. Instr. 8.25..................................................................................... 14

BACKPAGE.COM’S KNOWING FACILITATION OF ONLINE SEX TRAFFICKING, U.S. Senate 

Permanent Subcommittee on Investigations, Jan. 2017, available at:

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

NAL.pdf ........................................................................................................................... 11

Monica J. DeLateur, FROM CRAIGSLIST TO BACKPAGE.COM: CONSPIRACY AS A STRATEGY 

TO PROSECUTE THIRD-PARTY WEBSITES FOR SEX TRAFFICKING, 

56 Santa Clara L. Rev. 531 (2016) .................................................................................... 33

Lawrence G. Walters, SHOOTING THE MESSENGER: AN ANALYSIS OF THEORIES OF 

CRIMINAL LIABILITY USED AGAINST ADULT-THEMED ONLINE SERVICE PROVIDERS, 23 

Stan. L. & Pol’y Rev. 171 (2012) ..................................................................................... 34

Urban Dictionary, https://www.urbandictionary.com/ ...................................................... 18

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Preliminary Statement

Despite their ownership, oversight and control of the internet’s largest prostitution 

advertising website for more than a decade, Defendants claim that the superseding 

indictment (SI) is an unprecedented attempt to impose “vicarious liability” on website 

operators who did not have the faintest idea that their services were being “misused” by third 

parties to facilitate prostitution. (Doc. 561 (Mot.) at 1, 14.) Defendants make this claim in 

the face of a 92-page, 100-count, 211-paragraph SI alleging Defendants knew the vast 

majority of the “adult” ads on Backpage were prostitution solicitations; intentionally pursued 

numerous business practices to expand Backpage’s volume of prostitution ads and promote 

their customers’ illegal ventures; and generated a half-billion dollars in prostitution ad 

revenue. (See, e.g., SI¶¶1-17, 177.) For several reasons, the SI abundantly puts Defendants 

on notice of the offenses charged and comports with constitutional requirements, and

Defendants’ Motion should be denied.1

First, the SI easily meets the constitutional pleading requirements in Fed. R. Crim. P. 

7 and 12. The SI sets out the elements of the charged statutes and provides dozens of factual 

allegations that illustrate Defendants’ criminal conduct. The SI is nothing like the barebones indictments dismissed in several of Defendants’ cases. (Cf. Mot. at 12-13.) Moreover, 

while Defendants attempt to write-off the SI as a “prolix” statement based on “improper 

presumptions (and mischaracterizations),” and try to minimize their conduct by insisting 

www.Backpage.com (Backpage) operated just like any other general-purpose website (Mot. 

at 15), a motion to dismiss is not the appropriate place for Defendants to contest the facts 

alleged in the SI. See United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996) (defendant

may not challenge indictment on the basis that the allegations are not supported by adequate 

evidence). Defendants will have an opportunity to argue that Backpage operated similarly 

 

1 Michael Lacey, James Larkin, Scott Spear, John “Jed” Brunst, Dan Hyer, Andrew Padilla 

and Joye Vaught were indicted on March 28, 2018. (Doc. 3.) On July 25, 2018, the grand jury returned a Superseding Indictment (SI) (Doc. 230). As used herein, “Defendants” refers 

to the movants—Lacey, Larkin, Spear and Brunst. 

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to other websites and dispute other allegations when they have their day in court—at trial. 

For purposes of this Motion, the Court must accept the truth of all the allegations in the SI. 

United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002). 

Second, Defendants’ assertion that the SI is an undifferentiated attack on “adultoriented” advertising is flatly wrong. (Mot. at 1.) The SI alleges that Backpage was a 

prostitution advertising website, identifies scores of blatant prostitution ads that appeared 

on Backpage, and provides information—including from Backpage’s documents—showing 

that Backpage ads offered the sale of adults (and in many cases children) for sex. Counts 

2-51 of the SI identify 50 such ads by date and description, and additional prostitution ads 

are discussed throughout the SI. (See, e.g., SI¶¶64, 71, 76, 91, 92, 96, 104, 118-119, 120, 

123-126, 132, 148-149, 160-176, 201.) The SI also identifies numerous business practices 

Defendants pursued to expand prostitution advertising. (See, e.g., SI¶¶1, 9-11, 34.) 

The First Amendment “extends no protection” at all to speech that “concerns illegal 

activity or is misleading,” Erotic Service Provider Legal Ed. and Research Project v. 

Gascon, 880 F.3d 450, 459-60 (9th Cir. 2018), and speech proposing an illegal transaction 

is “categorically excluded from First Amendment protection.” United States v. Williams, 

553 US. 285, 297 (2008). This exclusion applies to Backpage’s prostitution ads. See, e.g., 

Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376, 388 (1973) (“We have no 

doubt that a newspaper constitutionally could be forbidden to publish a want ad...soliciting 

prostitutes.”); Coyote Pub., Inc. v. Miller, 598 F.3d 592, 603-04 (9th Cir. 2010) (upholding 

Nevada ban on prostitution advertising); Erotic Service Provider, 880 F.3d at 459-60 

(rejecting First Amendment challenge to ordinance outlawing prostitution solicitations). 

Third, Defendants’ assertion that Backpage’s litigation history supports dismissal is 

unavailing. (See Mot. at 14-25.) Most of the cases Defendants cite were decided under 

Section 230 of the Communications Decency Act—a statute that has no applicability in this 

federal criminal prosecution. See 47 U.S.C. § 230(e)(1). Moreover, Defendants’ cases were 

almost all decided before Backpage was compelled—by the U.S. Senate and the grand jury—

to turn over more than 500,000 internal documents. After these disclosures and related 

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developments, courts imposed some $450,000 in sanctions based on Backpage’s false and 

fraudulent misrepresentations about its operations. One of the cases Defendants cite most, 

Backpage.com LLC v. Dart, 807 F.3d 229 (7th Cir. 2015) (Mot. passim), has taken a 

remarkable U-turn—resulting in dismissal and the imposition of a $250,000 sanction. The 

Seventh Circuit now recognizes that Backpage “contained an adult section advertising 

different categories of sex work,” and other courts have rejected the notion that Backpage’s 

prostitution advertising deserves protection. United States v. Jackson, 865 F.3d 946, 949 

(7th Cir. 2017), cert. granted, judgment vacated on other grounds, 138 S. Ct. 1983 (2018); 

see also, e.g., J.S. v. Village Voice Media Holdings, Inc., 359 P.3d 714, 715-16 (Wash. 2015)

(denying motion to dismiss claim by three minor girls who had been “bought and sold for 

sexual services” on Backpage); Jane Doe No. 1 v. Backpage.com, LLC, 2018 WL 1542056, 

at *1 (D. Mass. 2018) (allowing claim to proceed against Backpage). 

Fourth, Defendants’ assertion that the SI is based on a “novel” legal theory likewise 

misses the mark. (Mot. at 1.) The SI does not allege that Defendants are criminally liable 

because they innocently operated a website that was—unknown to and unplanned by 

them—used to advertise illegal prostitution services. Rather, the SI alleges that Defendants 

knowingly and intentionally operated an expansive illegal online marketplace for 

advertising prostitutes and laundering money. (See SI¶¶12, 16.) This knowing and 

intentional conduct “separates [Defendants] from the mass of others whose websites may—

without their planning or expectation—be used for unlawful purposes.” United States v. 

Ulbricht, 31 F. Supp. 3d 540, 556 (S.D.N.Y. 2014). Several courts have recently recognized 

that prostitution websites operators like Defendants may be prosecuted under federal law.

Fifth, Defendants’ mens rea arguments are unavailing. The SI amply alleges that 

Defendants specifically intended to facilitate illegal activity—namely, prostitution. The 

caselaw and Defendants’ amici both recognize that this is enough to satisfy the scienter 

required under the law. Moreover, intent is fundamentally a jury question, and the SI alleges 

more than enough to permit the jury to decide whether Defendants possessed the requisite 

specific intent for the charged crimes. Defendants’ Motion should be denied.

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Background

The SI’s allegations, which must be taken as true in considering the instant motion, 

Boren, 278 F.3d at 914, include the following:

A. Overview of Backpage

Backpage was, until shut down in April 2018, notorious for being the internet’s 

leading source of prostitution advertisements. (SI¶1.) Backpage derived the overwhelming 

majority of its revenue from such ads, and earned over a half-billion dollars in prostitutionrelated revenue during its 14 years of existence. (SI¶1.)

Lacey and Larkin co-founded Backpage in 2004 with Carl Ferrer2 in response to 

declining revenue experienced by Lacey and Larkin’s alternative newspaper conglomerate. 

(SI¶¶2, 18-21.) From 2004-15, Lacey and Larkin oversaw Backpage’s policies and strategic 

direction. (SI¶2.) Spear served as the Executive Vice President of one of Backpage’s parent 

companies. (SI¶3.) Brunst served as the Chief Financial Officer of Backpage and several 

parent companies. (SI¶4.) Padilla and Vaught served as the Backpage’s Operations Manager 

and Assistant Operations Manager, respectively. (SI¶¶6-7.) Hyer served as Backpage’s 

Sales and Marketing Director. (SI¶5.)3

When Craigslist closed its “adult” section in 2010 after learning that many of the ads 

in that section were for prostitution, Backpage made an aggressive push to capture

Craigslist’s share of this market. (SI¶24.) This push was successful. In internal documents, 

Backpage stated it experienced “explosive growth” by “capitalizing on displaced Craigslist 

ad volume.” (SI¶25.) Backpage’s annual profits skyrocketed to over $26 million in 2010,

over $52 million in 2011, and over $78 million in 2012. (SI¶25.) 

 

2 On April 5, 2018, pursuant to plea agreements, Backpage.com, LLC and four related entities pleaded guilty to one count of money laundering conspiracy. (CR18-00465, Docs. 

4-1, 8, 10.) The same day, Ferrer—Backpage.com, LLC’s CEO and 100% owner—pleaded guilty to a charge of 18 U.S.C. § 371 conspiracy to violate 18 U.S.C. §§ 1952 (Travel Act— Facilitate Prostitution) and 1956-1957 (Money Laundering). (CR18-00464, Doc. 4-1 at 1-2, 

and Doc. 7-1 at 1, 12-14.) 

3 On August 18, 2018, Hyer pleaded guilty to Count 1 of the SI (18 U.S.C. § 371 Conspiracy to Violate 18 U.S.C. § 1952 (Travel Act—Facilitate Prostitution). (Doc. 271.) 

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Backpage became so profitable that in November 2012 its owners decided to spin off 

their publishing business and focus on Backpage’s growth. (SI¶26.) Thereafter, Lacey held 

an ownership interest in Backpage’s new corporate parent, Medalist Holdings, Inc., of 

approximately 45%; Larkin held approximately 43%; Brunst held approximately 6%; and 

Spear held approximately 4%. (SI¶27.) Backpage’s profits climbed from over $112 million 

in 2013 to over $134 million in 2014. (SI¶28.)

In April 2015, Lacey, Larkin, Spear and Brunst purported to sell Backpage and 

related entities for around $600 million to entities controlled by Ferrer. (SI¶29.) Ferrer 

borrowed most of the sales price from entities controlled by the sellers. (SI¶30.) Post-sale, 

Lacey and Larkin retained control over various aspects of Backpage’s business and 

continued receiving tens of millions of dollars of Backpage distributions. (SI¶¶31-32.) 

B. Backpage’s Knowing and Intentional Facilitation of Prostitution

Defendants knew the vast majority of the “adult” ads appearing on Backpage “were 

actually ads for prostitution” and they “took a variety of steps to intentionally facilitate that 

illegal activity” (SI¶34), including the following:

Content Aggregation: In its early years, Backpage’s employees were trained to—

and paid bonuses for—identifying prostitutes who were posting ads on rival websites, 

creating free ads on Backpage for them, and using the resulting Backpage ads (which would 

only remain free for a trial period) in an attempt to secure the prostitutes’ business. (SI¶9.) 

These content-creation efforts, described internally as “content aggregation” or the “Dallas 

Plan,” were vital to the company’s early growth and success. (SI¶9.) In April 2007, for 

example, Spear sent an email to Hyer and Ferrer regarding a “blueprint” for “moving that 

process [from Dallas] to other cities.” (SI¶ 35.) An attachment entitled “Dallas success in 

other markets” explained how Backpage employees would run Google searches to identify 

prostitutes advertising on other websites, then “Call clients. Ask them if they have tried 

backpage.com. If not, post a free ad with an auto repost for free for six weeks.” (SI¶ 36; see 

also SI¶37.) Larkin, Spear, Ferrer, Hyer and other Backpage principals continued to execute 

or monitor expanding these content-creation efforts to other U.S. cities. (SI¶¶ 38-44.)

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Reciprocal Link and Affiliate Programs: Backpage entered formal business 

arrangements with known prostitution services and websites to increase Backpage’s volume 

of prostitution advertising; these efforts “were specifically intended to promote and facilitate 

prostitution.” (SI¶10; see also SI¶ 34.) For years, Backpage had a reciprocal link agreement 

with The Erotic Review, a website on which “johns” posted explicit “reviews” of prostitutes 

they had purchased on websites like Backpage, including descriptions of prices charged for 

specific sex acts. (SI¶10.) Backpage paid The Erotic Review for assistance in getting The 

Erotic Review’s customer base to use Backpage. (SI¶10.) In late 2007, Ferrer provided a 

“2008 Budget and Business Plan” to Larkin and Spear that explained: “[W]e struck a deal 

with TheEroticReview (TER) with reciprocal links. It created huge brand awareness in this 

niche industry and increased page views from TER by 120,000 per day.” (SI¶50.) At this 

point, Backpage was paying nearly $50,000 per year to The Erotic Review. (SI¶51.) In 

December 2008, Ferrer identified Backpage’s top marketing strategy as “TER-high page 

view per referral.” (SI¶52; see also SI¶¶53-56.)

Defendants routinely received or were briefed about “Google Analytics” reports

showing which other websites were referring users to Backpage, and these reports confirmed 

The Erotic Review’s crucial role in driving traffic to Backpage. (SI¶¶57-58.) The January 

2009 monthly report stated The Erotic Review was the #1 outside source of referrals and was 

responsible for over half a million visits that month. (SI¶58.) The daily report for March 

22, 2010 showed The Erotic Review was responsible for referring more than 40,000 daily 

visits to Backpage—more than six times as many as the next-biggest referral source. (SI¶58.) 

The August 2013 monthly report showed The Erotic Review was responsible for nearly 1 

million visits each month. (SI¶58.) The November 2014 report showed The Erotic Review 

was the #1 source of non-search engine referrals. (SI¶58.) Larkin, Spear, Brunst, Ferrer and 

Hyer had ongoing discussions about the importance of Backpage’s relationship with The 

Erotic Review. (See, e.g., SI¶¶45-58.)

Backpage also formed “affiliate” partnerships with other organizations and 

individuals in the prostitution industry. (SI¶59; see also SI¶¶60-67.) One individual, “Dollar 

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Bill,” earned fees in return for arranging for prostitutes and pimps to post ads on Backpage. 

(SI¶59.) In one email, Padilla explained “[t]his is one of our largest adult accounts and the 

restoration [of thousands of Dollar Bill’s ads]...is a high priority for us.” (SI¶61.) 

Moderation: Defendants utilized several intentional measures to help pimps, 

prostitutes and sex traffickers avoid detection by law enforcement when posting ads online 

for commercial sex. (SI¶11.) These strategies included removing terms and pictures 

particularly indicative of adult and child prostitution—and then publishing a revised version 

of the ad without blocking the ad itself. (SI¶ 34.) Such editing did nothing to change the 

purpose of the ad (soliciting prostitution)—it only created a veneer of deniability and helped 

Backpage’s customers evade detection. (SI¶13; see also SI¶¶68-152.) 

In October 2010, for example, Padilla sent an email to a large group of Backpage 

employees (including Hyer and Vaught) with two attachments providing guidance on how 

to “moderate” ads. (SI¶78.) The first was a PowerPoint that displayed 38 nude and partiallynude photographs. (SI¶78.) Next to each picture was an instruction about moderator 

approval. (SI¶78.) These instructions included “Approve. Nude rear shots are okay as long 

the model is not exposing her anus or genitalia.” and “Approve. Rear shot okay. Transparent 

wet panties okay.” (SI¶78.) The second was a spreadsheet with 50 terms (all indicative of 

prostitution) that should be “stripped” from ads before publication. (SI¶78.)

The same month, Padilla sent an email (cc’ing Vaught) threatening to fire any 

Backpage employee who acknowledged in writing that a customer was a prostitute: “Leaving 

notes on our site that imply that we’re aware of prostitution, or in any position to define it, 

is enough to lose your job over...This isn’t open for discussion. If you don’t agree with what 

I’m saying completely, you need to find another job.” (SI¶77.)

In November 2010, Hyer and Padilla received an email acknowledging “Lolita” is 

“code for under aged girl” but explaining the term could simply be stripped from ads (as 

opposed to refusing to publish the ad). (SI¶85.) The email also stated customers should be 

allowed to include their identification numbers from The Erotic Review (“[A]llow users to 

put in TER IDs (just no live links).” (SI¶85.) 

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In February 2011, Padilla sent an Excel spreadsheet that identified over 660 code 

words or phrases indicative of prostitution, including an array of terms that are suggestive of 

child prostitution (e.g., “lolita,” “fresh,” “high school,” “tight,” “young”). (SI¶95.) Most 

such terms were simply to be “filtered” from the ads. (SI¶95.)

On July 28, 2011, Lacey sent Larkin a draft editorial entitled “BackPage understood,”

in which Lacey bragged about Backpage’s contributions to the prostitution industry: 

“Backpage is part of the solution....For the very first time, the oldest profession in the world 

has transparency, record keeping and safeguards.” (SI¶107.) Lacey also acknowledged 

Backpage used an automatic filter to remove particular phrases indicative of prostitution but 

still published the ads after editing. (SI¶107.) Larkin instructed Ferrer to avoid making some 

of Lacey’s statements “public” because “we need to stay away from the very idea of ‘editing’ 

the posts, as you know.” (SI¶¶12, 108.) 

In September 2011, certain Defendants assisted in creating a PowerPoint to describe 

Backpage’s business to potential buyers. The presentation acknowledged the non-adult 

sections of Backpage were simply intended to “allow[] ‘plausible deniability,’” make the 

website more palatable to “regulatory and law enforcement” officials, and otherwise make 

Backpage’s adult section more “defensible.” (SI¶112.) 

In February 2012, Ferrer was forwarded a legal notice claiming that several of 

Backpage’s ads included copyrighted content from two competing websites called 

RubMaps.com and EroticMP.com. (SI¶118.) In one such ad, a customer stated that, in return 

for $45 and a $5 tip, he had received a “Blow Job...w/ condom” from a woman who “had 

nice breasts.” (SI¶118.) In another ad, a customer stated that, in return for $60, he had oral 

and vaginal sex with a prostitute. (SI¶118.) When asked by Backpage staff, Ferrer instructed

that these ads should remain on Backpage for another few weeks. (SI¶118.) A month later, 

Hyer received an email stating the ads shouldn’t be deleted. (SI¶119.)

On July 30, 2015, a training document distributed to Backpage’s moderators

instructed that if the moderators saw a photograph depicting “a person [who] looks 

young/minor,” they should “approve dont delete the ad unless it has a banned term.” 

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(SI¶143.) The document also identified, under the heading “THESE ARE ALL OKAY,” a 

long list of terms that are indicative of prostitution, such as “99% CUM BACK FOR

MORE,” “car service,” and “lollipop special.” (SI¶143.)

In early 2016, Backpage’s moderators were instructed to stop removing ads that 

contained “GFE,” “even gfe with price.” (SI¶148.) Defendants had long known, and had 

repeatedly acknowledged in internal Backpage documents, that GFE was a “coded sex act 

for money” and a “solid sex for money term[].” (SI¶149.) 

The SI also describes several examples of Backpage employees coaching or assisting 

customers regarding ads that promoted or facilitated the customers’ prostitution ventures. 

For example, in February 2011, the Backpage customer “Licks Alot” emailed to complain 

that all of the pictures in one of her ads had been deleted. (SI¶91.) Ferrer responded by 

explaining that one of her photos had been removed because “[o]ur crazy internet safety 

experts do not want any genitalia showing up around the thong.” (SI¶91.) He apologized, 

allowed her prostitution ad to remain on the website and offered a free upgrade. (SI¶91.) 

Between September 2010 and October 2012, Ferrer became aware that Backpage 

customer P.R. was posting prostitution ads. (SI¶132.) Ferrer repeatedly restored her posting 

privileges and gave her advice on how to conform to Backpage’s publication standards. 

(SI¶132.) Padilla and Vaught were also aware of P.R.’s ads. (SI¶132.) From October 2012 

to November 2015, P.R. was allowed to post over a dozen new prostitution ads. (SI¶132.)

In 2010 and 2011, Ferrer and Padilla worked on restoring ads placed by Dollar Bill, 

and Ferrer advised Dollar Bill “on how to wordsmith ads so they wouldn’t be rejected by 

Backpage’s moderators.” (SI¶¶59-67.) Other Backpage employees provided customers 

advice on how to revise ads so that they could be featured on Backpage. (SI¶¶160, 172.)

Notice: Backpage faced widespread criticism as it grew its prostitution advertising 

business. For example, in August 2011, the National Association of Attorneys General stated

that “[n]early naked persons in provocative positions are pictured in nearly every adult 

services advertisement on Backpage.com and the site requires advertisements for escorts, 

and other similar ‘services,’ to include hourly rates. It does not require forensic training to 

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understand that these advertisements are for prostitution.” (SI¶111.) In March 2015, a

California Department of Justice law enforcement officer spoke with a Backpage 

representative concerning the prevalence of blatant prostitution ads on Backpage; the 

representative did not dispute this characterization. (SI¶141.) In August 2015, Backpage 

was served with an affidavit from a Seattle Police Department detective avowing no 

detective in the Department’s Vice/High Risk Victims Unit “ha[d] ever found a legitimate 

‘escort’...or ‘masseuse’...while responding to ads placed in these categories on 

Backpage.com” and “every time the [Unit] has responded to an ad in the adult section of 

Backpage.com, we have found that the ad was a posting for illegal activity.” (SI¶144.) A 

Boston Police Department detective similarly avowed “Backpage.com is the number one site 

in Boston for prostitution and sex trafficking” and “nearly all the cases we find associated 

with [it] involve pimp controlled prostitution.” (SI¶144.)

News organizations, anti-trafficking groups and others similarly reported the

prevalence of prostitution ads on Backpage. For example, in May 2012, CNN ran an expose 

deeming Backpage “a hub for the sex trade.” (SI¶127.) In November 2012, an Arizona State 

University researcher published a study concluding that most of the ads on Backpage’s 

Phoenix page involved prostitution and many depicted juvenile trafficking victims. 

(SI¶131.) In calls and meetings, representatives from the National Center for Missing and 

Exploited Children (NCMEC)—designated by Congress as the “official national resource 

center and information clearinghouse for missing and exploited children,” 34 U.S.C. 

§ 11293(b)(1)(B)—informed Lacey, Larkin and Spear that a large portion of the ads on 

Backpage were blatant prostitution ads, many featuring children. (See, e.g., SI¶¶86, 97.) 

Backpage declined to follow NCMEC’s recommendations to prevent child trafficking. 

(SI¶134.) In 2014, NCMEC filed an amicus brief repudiating any suggestion that Backpage 

was an ally against sex trafficking. (SI¶140.)4

After lengthy investigation, in 2017 the U.S. Senate Subcommittee on Permanent 

 

4 http://www.missingkids.com/content/dam/pdfs/legal-briefs/amicusncmecbackpage.pdf.

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Investigations issued a 50-page report, BACKPAGE.COM’S KNOWING FACILITATION OF 

ONLINE SEX TRAFFICKING. (SI¶151.) The report concluded that virtually all of Backpage’s 

“adult” ads were solicitations for prostitution and “Backpage has maintained a practice of 

altering ads before publication by deleting words, phrases, and images indicative of 

criminality, including child sex trafficking....Those practices served to sanitize the content 

of innumerable advertisements for illegal transactions—even as Backpage represented to the 

public and the courts that it merely hosted content others had created.” (SI¶151.)5

 

C. Victim Summaries

The SI contains 17 victim summaries. (SI¶¶160-173.) Five victims were juveniles 

when trafficked on Backpage. (SI¶¶163, 164, 167, 169, 172.) Many were raped repeatedly; 

one was choked to the point of having seizures and gang-raped. (See SI¶ 164.) Three were 

murdered by Backpage customers; another was killed when, attempting to escape her 

trafficker, she jumped out of a vehicle on a freeway and was hit by several other vehicles 

travelling at high speeds. (SI¶¶165, 173-75.)

D. Money Laundering Operations

By 2015, the major credit card companies stopped processing payments for Backpage 

and some banks closed Backpage’s accounts out of concern they were being used for illegal 

purposes. (SI¶15.) Defendants pursued an array of money laundering strategiesin response, 

including: depositing customer payments in accounts held in the name of entities with no 

apparent connection to Backpage and giving customers a corresponding “credit” to purchase 

new ads; wiring business proceeds to foreign banks and redistributing the funds to certain 

Defendants or redepositing them in other accounts (to conceal the nature of those funds); and 

converting payments into cryptocurrencies. (SI¶15.) Moreover, in July 2016, Lacey sought

assistance “put[ting] some assets in place[s] where...government parties...can not access my 

 

5

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

NAL.pdf (hereinafter SR). The Report’s 840-page Appendix is available at 

https://www.hsgac.senate.gov/imo/media/doc/Final%20Appendix%202017.01.09.pdf.

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accounts.” (SI¶16.) He later asked an Arizona-based bank for advice on how to move assets 

“offshore” to protect them from government seizure. (SI¶16.) Soon after, $16.5 million in 

Backpage-derived cash was wired from Lacey’s U.S. bank accounts to Hungary. (SI¶16.) 

At the time, he was facing criminal charges in California and was aware of the grand jury 

investigation here. (SI¶16; see also SI¶¶177-194.)

E. Substantive Counts

The SI includes 100 substantive counts, detailed below. (SI¶¶195-211.)

Argument

I. The Superseding Indictment Far Surpasses the Minimal Constitutional Requirements for Sufficiency Under Rules 7 and 12. 

In ruling on Defendants’ Rule 12 motion to dismiss for failure to state an offense, this 

Court is bound by the four corners of the indictment. Boren, 278 F.3d at 914. The Court 

must “accept the truth of the allegations in the indictment in analyzing whether a cognizable 

offense has been charged.” Id. (citing Jensen, 93 F.3d at 669). Moreover, Defendants may 

not challenge the indictment on the basis that the allegations are not supported by adequate 

evidence. Jensen, 93 F.3d at 669 (motion to dismiss may not be used as a device for summary 

trial of the evidence). The unavailability of a Rule 12 motion in determining factual guilt or 

innocence helps ensure that the respective provinces of the judge and jury are respected. 

United States v. Nukida, 8 F.3d 665, 670 (9th Cir. 1993). 

An indictment is sufficient if it meets two constitutional requirements: first, it contains

the elements of the offense charged to fairly inform the defendant of the crime against which 

he or she must defend; and second, it safeguards the defendant from a subsequent prosecution 

of the same offense. United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007). Further, 

“[w]hile detailed allegations might well have been required under common-law pleading 

rules...they surely are not contemplated by Rule 7(c)(1), which provides that an indictment 

‘shall be a plain, concise, and definite written statement of the essential facts constituting the 

offense charged.’” Id. In considering sufficiency, the indictment “should be read in its 

entirety, construed according to common sense, and interpreted to include facts which are 

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necessarily implied.” United States. v. O’Donnell, 608 F.3d 546, 555 (9th Cir. 2010). And 

while statutory language in an indictment “‘must be accompanied with such a statement of 

the facts and circumstances as will inform the accused of the specific [offense],’ a ‘defendant 

is not entitled to know all the evidence the government intends to produce[,] but only the 

theory of the government’s case.’” United States v. Gray, 2017 WL 3675383, at *8 (D. Ariz. 

Aug. 25, 2017) (citations omitted). 

As shown below, the SI sets forth the applicable statutory language and provides 

dozens of statements “of the facts and circumstances [to] inform the accused of the specific 

[offenses]” with which they are charged. Gray, 2017 WL 3675383, at *8. Accordingly, the 

SI far surpasses the minimal pleading requirements of Rules 7 and 12.

A. Conspiracy to Violate Travel Act—Facilitate Prostitution – Count 1

The SI provides the statutory elements for Count 1 along with the time-period for 

when the conspiracy occurred. (SI¶¶195-99.) It cites both applicable criminal statutes—18 

U.S.C. §§ 1952(a)(3)(A) and 371—and alleges that the conspiracy began in or around 2004 

and continued through April 2018. (Id.) It informs Defendants of the object of the 

conspiracy (to make money), and notifies them that the manner and means of the conspiracy, 

and the overt acts in furtherance thereof, are described in paragraphs 1-194. (SI¶¶197-98.) 

A conspiracy charge can be proved even if Defendants did not commit the underlying 

substantive crime. Salinas v. United States, 522 U.S. 52, 64 (1997). The SI’s allegations are 

sufficient to support Count 1 under Rules 7 and 12.

B. Travel Act—Facilitate Prostitution – Counts 2-51

The SI provides the statutory elements for the violations charged in Counts 2-51. For 

each count, Defendants are charged with violating the Travel Act, 18 U.S.C. § 1952(a)(3)(A)

(i.e., intentionally facilitating a state-law prostitution offense) by publishing the prostitution 

ads identified in paragraph 201 of the SI. The SI’s factual allegations, incorporated into 

Counts 2-51, show that Defendants worked together to facilitate prostitution by publishing 

these and similar ads. (E.g., SI¶¶34, 195-201.) These allegations track the language of the 

statute and are sufficient under Rules 7 and 12. See, e.g., United States v. Tavelman, 650 

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F.2d 1133, 1138 (9th Cir. 1981) (Travel Act indictment sufficient when it alleged: “[O]n July 

20, 1979: (1) the defendants traveled interstate...(2) with the intent to promote a violation of 

21 U.S.C. § 841(a)...and (3) thereafter knowingly performed acts facilitating that unlawful 

activity”); United States v. Palfrey, 499 F. Supp. 2d 34, 43 (D.D.C. 2007) (denying motion 

to dismiss; holding that “an indictment that tracks the language of the Travel Act is sufficient 

because the Act itself clearly sets out the essential elements of the offense”). The sufficiency 

of these allegations is discussed more fully in Part V.A, infra.

6

 

In addition to the SI alleging sufficient facts to support the Travel Act counts against 

each Defendant, Defendants are also accountable under Pinkerton v. United States, 328 U.S. 

640 (1946). At trial, the government will establish that even if a Defendant may not have 

personally been aware of the specifics of each ad or may not have been personally involved 

in that ad’s publication process (Backpage employed dozens of low-level moderators to 

individually review ads before publication) (see, e.g., SI¶¶78, 84, 93, 99, 117), it was 

reasonably foreseeable—in light of the policies Defendants implemented as part of the 

conspiracy charged in Count 1—that such violations would be committed in furtherance of 

the conspiracy. See 9th Cir. Model Crim. J. Instr. 8.25 (“Each member of the conspiracy is 

responsible for the actions of the other conspirators performed during the course and in 

furtherance of the conspiracy. If one member of a conspiracy commits a crime in furtherance 

of a conspiracy, the other members have also, under the law, committed that crime.”). 

C. Money Laundering 

Count 52 charges Lacey, Larkin, Spear, Brunst and Hyer with conspiracy under 18 

U.S.C. § 1956 to commit several different money laundering crimes. (SI¶¶202-03.) The 

count is constitutionally sufficient because it provides the applicable statutory language and 

fairly informs Defendants of the alleged crime. Resendiz-Ponce, 549 U.S. at 108.

 

6 Whether the state law offense used to support the Travel Act charge is ever accomplished is irrelevant to a prosecution for violating the Act. See, e.g., United States v. Montague, 29 

F.3d 317, 322 (7th Cir. 1994) (“[T]he federal crime to be proved in Section 1952 is use of 

the interstate facilitates in furtherance of the unlawful activity, not the violation of the state law; therefore Section 1952 does not require that the state crime ever be completed.”).

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Counts 53-62 charge the same five Defendants with Concealment Money Laundering 

in violation of 18 U.S.C. § 1956(a)(1)(B). (SI¶¶204-05.) The SI alleges (1) these Defendants 

knew the revenues Backpage earned from publishing prostitution-related ads (over $500 

million since 2004) (see SI¶177) constituted the proceeds of a specified unlawful activity 

(i.e., violations of 18 U.S.C. § 1952), and (2) they thereafter took steps to conceal the true 

source of money by routing it through a web of domestic bank accounts held in the name of 

seemingly-unrelated entities. (SI¶¶184-190.) 

In Counts 63-68, the same five Defendants are also charged with International 

Promotional Money Laundering in violation of 18 U.S.C. § 1956(a)(2)(A). (SI¶¶206-07.) 

This crime occurs when money from any source is transmitted to or from an overseas account 

with the intent of promoting a specified unlawful activity. United States v. Moreland, 622 

F.3d 1147, 1167 (9th Cir. 2010). Count 63 identifies a wire transfer from one of Backpage’s 

domestic bank accounts to a web developer in India who was helping refine Backpage’s 

website—and therefore promoting the alleged conspiracy to violate 18 U.S.C. § 1952. 

Counts 64-68 allege transfers from Backpage overseas accounts to Cereus Properties, which

then “funneled” millions of dollars to Lacey and Larkin. (SI¶¶190-192, 207.)

Various Defendants are charged in Counts 69-99 with Transactional Money 

Laundering in violation of 18 U.S.C. § 1957(a). (SI¶¶208-09.) For this crime, it doesn’t 

matter why the money was transferred, so long as Defendants knew the money was derived 

from an unlawful activity and the transaction involved at least $10,000 in such funds. See, 

e.g., United States v. Rutgard, 116 F.3d 1270, 1291 (9th Cir. 1997) (“the proceeds cannot 

enter the banking system without a new crime being committed”). Counts 69-99 represent 

instances where various Defendants used Arizona-based banks to engage in financial 

transactions involving more than $10,000 in Backpage-derived money. 

Lacey is charged with a single count of International Concealment Money Laundering 

in violation of 18 U.S.C. § 1956(a)(2)(B), which criminalizes transporting money from a 

place within the United States to a place outside the United States with knowledge that (a)

the funds represent the proceeds of some unlawful activity, and (b) the transportation is 

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designed in whole or in part to conceal or disguise the nature, location, source, ownership, 

or control of the proceeds of the specified unlawful activity. United States v. Kilbride, 507 

F. Supp. 2d 1051, 1071 (D. Ariz. 2007). The SI alleges these elements and describes the 

underlying transaction by the date, amount, and banks involved. (SI¶211.) 

In sum, these counts are sufficient under Rules 7 and 12 because they provide the 

applicable statutory language and fairly inform Defendants of the alleged crimes. ResendizPonce, 549 U.S. at 108.

II. Defendants Cannot Pretend that Backpage’s “Adult” Ads Were for Legitimate “Escort” Services, Rather than Illegal Prostitution.

While Defendants argue that the First Amendment imposes additional pleading 

requirements, the cases they cite involve indictments that were insufficient to satisfy even 

the minimal standards described above. See Mot. at 13; United States v. Buddenberg, 2010 

WL 2735547, at *3, *9 (N.D. Cal. July 12, 2010) (dismissing “generic” indictment lacking

“a statement of facts and circumstances that will inform the defendants of the specific 

[charged] offense”); United States v. Landham, 251 F.3d 1072, 1080, 1082 (6th Cir. 2001) 

(indictment failed to allege conduct constituting a criminal threat; one of the charges was 

“missing two of the three essential elements”).7

 The SI, in contrast, is nothing like the barebones indictments dismissed in Defendants’ cases. It contains more than 200 paragraphs of 

allegations showing how Defendants worked together to facilitate prostitution and launder 

money, and provides more than 50 examples of prostitution ads published on Backpage. 

These solicitations for illegal activity are entirely excluded from First Amendment 

protection—they are no different than ads offering to sell heroin or other illegal goods or

services. 

 7 Several of Defendants’ cases involve prosecutions for making threats in violation of 18 

U.S.C. § 875(c). (Mot. at 13.) These cases involve unique contextual considerations of the relationship between the parties involved. See, e.g., United States v. Landham, 251 F.3d 

1072, 1080 (6th Cir. 2001) (“[T]he alleged threatening statement must be viewed from the 

objective perspective of the recipient, which frequently involves the context of the parties’ 

relationship. For this reason, it is incumbent on the Government to make that context clear 

in such an indictment, unless the alleged threat is direct.”). Because this is not a threats case 

under § 875(c), these unique challenges are not involved here. 

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It is black-letter law that the First Amendment “extends no protection” to speech that 

“concerns illegal activity or is misleading.” Erotic Service Provider, 880 F.3d at 459-60 

(citing Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 564-

64 (1980)). Thus, speech proposing an illegal transaction is “categorically excluded from 

First Amendment protection.” Williams, 553 US. at 297. This exclusion applies to 

prostitution advertising. See, e.g., Pittsburgh Press, 413 U.S. at 388; Coyote Pub., 598 F.3d 

at 603-04 (9th Cir. 2010); Erotic Service Provider, 880 F.3d at 459-60. Accordingly, 

advertising the sale of adults for sex is illegal in every jurisdiction in the United States except 

parts of Nevada; child prostitution advertising is illegal throughout the country. See Coyote 

Pub., 598 F.3d at 603-04 (The Thirteenth Amendment “enshrines the principle that people 

may not be bought and sold as commodities.”).

8

Despite this settled law, Defendants claim the SI “impermissibly assum[es]” the great 

majority of Backpage’s “adult” and “escort” ads were for prostitution and “does not allege 

that any specific ads...were facially illegal.” (Mot. at 16.) Not so. The SI alleges Backpage 

was a prostitution advertising website, identifies scores of blatant prostitution ads that 

appeared on Backpage, and provides information—including from Backpage’s documents—

showing Backpage’s ads offered the sale of adults (and in many cases children) for sex. 

Counts 2-51 identify 50 such ads by date and description. (SI¶201.) The 50 ads fall 

into three categories. First, 15 of the 50 depict specific victims. (SI Counts 2, 4-5, 12-17, 

19-24.) The narratives associated with these victims are set forth in ¶¶160-176 of the SI. 

Second, 10 of the 50 ads were posted by a particular prostitute named P.R. who had extensive 

communications with Ferrer, a co-conspirator. (SI Counts 3, 6-11, 18, 25-26; SI¶132.) The 

allegations in the SI—accepted as true for the purposes of this motion—demonstrate that 

Backpage became aware as early as 2010 that P.R. was a prostitute, and nevertheless assisted 

 

8 Speech integral to other types of illegal activity, such as tax fraud and murder-for-hire, is 

likewise excluded from First Amendment protection. See also, e.g., United States v. 

Meredith, 685 F.3d 814, 819-20 (9th Cir. 2012) (First Amendment inapplicable to defendants who coached others on defrauding IRS); United States v. Schiff, 379 F.3d 621, 625 (9th Cir. 

2004) (same); Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110, 1119 (11th Cir. 

1992) (murder-for-hire ads unprotected by First Amendment).

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her in posting ads. (SI¶132.) Third, the remaining 25 ads involve instances in which 

Backpage allowed ads containing “GFE” (shorthand for “girlfriend experience”) to be 

published. (SI Counts 27-51.) By way of example, these ads include the following:

• Victim 15 ad, “GORGEOUS ebony PLAYMATE Perfect Curves...Skills to 

make ur TOES CURL – 19”; “you agree . . . you are not affiliated with any law enforcement agency” and “Incalls & Outcall!!!” (Count 19);

• Victim 13 ad, “Young SEXY PUERTO RICAN – 19”; “I do half hour 

sessions that vary in donation prices, 80 for head, 120 for hooking up 

without head and 150 for hooking up with head” (Count 23);

• P.R. ad, “50 Red R*O*S*E*S S*P*E*C*I*A*L – DON’T MISS OUT!!!!!" (Count 26);

• “Sometimes It’s All About The Journey, And The Destination.....Erectile 

Dysfunctional G F E Provider – 44”; “You can find a few current reviews 

at T3R [The Erotic Review] xxxxxx#” (Count 31);

• “OMG Sexy Sensual 36DD-24-36 Stacked College Coed With The Best Mouth Ever! BOOK NOW! -24”; “I do ALL the things YOU Wish Your Wife Did!!” and “(G).(F).(E) 30 min/$180” (Count 35);

• “WANNA HANG OUT NOW UpScale New In Town! Call ME now for an 

unforgettable visit – 20”; “100% GFE with 100% no Pimps” (Count 39).

(SI¶201.) The SI describes several other obvious prostitution ads featured on Backpage, 

including ads describing specific sex acts (e.g., “blow jobs”) with prices. (SI¶118.)

As Defendants knew, these ads explicitly offered or readily implied sex for hire. 

Defendants repeatedly acknowledged in internal emails that “GFE” (“girlfriend experience”) 

is synonymous with prostitution, variously referring to it as a “coded sex act for money” 

term and one of several “solid sex for money terms” or “sex phrases and coded terms.” 

(SI¶49.) Defendants were informed that “New In Town” often indicates a trafficked child 

shuttled to different locations; it appears in numerous ads in the SI. (SI¶¶13, 100, 169, 171, 

201.) “Roses” is a common prostitution synonym for money. (SI¶¶132, 160-61, 164, 167, 

201.) “Incalls” (the customer goes to the prostitution’s location) and “outcalls” (prostitute 

goes to customer) are also common prostitution terms.9

 

 

9 Urban Dictionary, https://www.urbandictionary.com/, also defines many of these terms.

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While legitimate escort services may be licensed and regulated in some jurisdictions 

(cf. Mot. at 17), one would be hard-pressed to find a legitimate escort ad that offers prices 

for “hooking up” with or without “head”; references “current reviews” on The Erotic 

Review, where johns rate sex acts performed by specific prostitutes; requires customers to 

affirm they are not law enforcement; contains known prostitution slang like “GFE,” “Roses,” 

“Incalls,” or “Outcalls,” and “New in Town”; states “with 100% no Pimps”; or contains other 

references to prostitution. These were not offers for legitimate services.

More fundamentally, the SI describes Backpage’s entire “adult” section as a hub for 

prostitution ads. (See, e.g. SI¶1 (Backpage was “notorious for being the internet’s leading 

source of prostitution advertisements”), ¶9 (Defendants “were aware that the vast majority 

of the ‘adult’ and ‘escort’ ads appearing on Backpage were actually ads for prostitution and 

took steps to intentionally facilitate that illegal activity”); ¶11 (Defendants “admitted—in 

internal company documents and during private meetings—that, despite [moderation], they 

knew the overwhelming majority of the website’s ads still involved prostitution”); ¶11 

(Lacey even “bragged about the company’s contributions to the prostitution industry”).) The 

SI alleges “Backpage derived the overwhelming majority of its revenue” from prostitution 

ads. (SI¶¶1, 15, 177.) The SI also alleges the rest of the website served as a falselylegitimate cover for Backpage’s “adult” ads. (SI¶112.) 

The SI also contains a litany of allegations demonstrating that law enforcement, the 

national news media, anti-trafficking organizations, Senate investigators and others similarly

concluded—and informed Defendants—that the vast majority of Backpage’s “adult” ads 

were for prostitution. (See SI¶¶74, 86, 97, 105,109, 111, 127, 131, 134, 140, 141, 144, 146, 

151.) While Defendants attempt to discount these allegations as merely “recycling” 

“politicians’ denunciations” (Mot. at 18-19), Defendants cannot deny that Backpage and its 

principals were repeatedly notified that Backpage was the internet’s leading place to shop 

for adult and child prostitutes. (See, e.g., SI¶¶144). 

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Moreover, these notifications mirrored Backpage’s internal admissions. (See, e.g.,

SI¶¶11, 36, 54, 59, 68, 69, 75, 81, 82, 85, 92, 94-96, 98, 107-108, 112, 114, 116, 118-119, 

128, 132, 138, 139, 143, 145, 148-149.)

Website operators like Defendants have been prosecuted for facilitating and 

promoting the sale of other types of illegal goods and services. For example, Ross Ulbricht, 

the founder of the website “Silk Road,” was prosecuted for creating an online advertising 

marketplace for illegal narcotics and malicious software. Rejecting a motion to dismiss, the 

court found Ulbricht was “alleged to have knowingly and intentionally constructed and 

operated an expansive black market for selling and purchasing narcotics and malicious 

software,” separating his alleged conduct “from the mass of others whose websites may—

without their planning or expectation—be used for unlawful purposes.” United States v. 

Ulbricht, 31 F. Supp. 3d 540, 556 (S.D.N.Y. 2014). Like Ulbricht, the SI alleges Defendants 

knowingly and intentionally operated (and aggressively expanded) a massive online 

marketplace where willing buyers could easily find offers to sell adults and children for sex.

Moreover, at least three federal district courts have recognized that prostitution 

website operators may be prosecuted under the Travel Act. First, in United States v. Omuro, 

the Northern District of California accepted the guilty plea and convicted the founder of 

www.myRedBook.com, Eric Omuro, under the Travel Act, 18 U.S.C. § 1952(a)(3)(A). (See

N.D. Cal. No. 14-CR-336, Doc. 70 at 1-2.) Omuro’s website hosted thousands of ads posted 

by prostitutes in the western United States and Canada, and Omuro generated some $5 

million in profits from fees paid by “escorts” to post their ads more prominently and 

“membership” fees. (N.D. Cal. No. 14-CR-336, Doc. 70 at 2-3.) 

Second, in United States v. Hurant, the Eastern District of New York accepted the 

guilty plea and convicted the founder of www.Rentboy.com, Jeffrey Hurant, for violating 

the Travel Act. (E.D.N.Y. No. 16-CR-45, Doc. 117 at 1, 13-14.) Hurant admitted he “was 

well aware...that the escort ads he posted...were thinly-veiled proposals of sexual services 

in exchange for money.” (E.D.N.Y. No. 16-CR-45, Doc. 117 at 6.) Like Backpage, his

employees often rejected ads with explicit offers of sex for money “but allow[ed] the ad to 

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be resubmitted with different language. In many cases, Rentboy.com employees would just 

edit the advertisement’s language and approve it.” (E.D.N.Y. No. 16-CR-45, Doc. 125 at 2.)

Third, during grand jury proceedings in this case, Senior District Judge David 

Campbell recognized that federal law “criminalize[s] the knowing publication of an 

advertisement for illegal prostitution or other illegal activity.” (Doc. 194-1 at 66.) Even 

Defendants’ attorney agreed with Judge Campbell about when Defendants could be held 

criminally liable. (Doc. 446-1 at 39 (“[I]f there is actual knowledge, say through 

participation in a venture, you’re conspiring with somebody, you know they posted an ad, 

you know the person involved is underage, that’s a prosecutable crime, Your Honor.”).)

In sum, the SI doesn’t “presume” anything; it provides ample allegations 

demonstrating that Defendants knowingly promoted and facilitated prostitution in its “adult”

section by publishing blatant prostitution ads like those described above.

III. Backpage’s Litigation History Undermines Defendants’ Claim that Backpage’s “Adult” Ads Were Protected By the First Amendment.

Citing a string of cases—starting with Backpage.com LLC v. Dart, 807 F.3d 229 (7th 

Cir. 2015)—Defendants erroneously assert “courts have uniformly held that escort and other 

adults ads on Backpage.com were protected under the First Amendment” and “providing a 

forum for such ads is likewise protected.” (Mot. at 18.) Defendants fail to mention that they 

misled courts across the United States in these cases, and that recent subpoenas have 

unlocked hundreds of thousands of internal documents undermining their claims. 

In most of these cases, Backpage invoked Section 230 of the Communications 

Decency Act of 1996, 47 U.S.C. § 230 (CDA), which courts have construed to provide 

immunity from civil and state criminal claims for websites that publish content created by 

third-parties. See, e.g., M.A. v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 

1058 (E.D. Mo. 2011) (dismissing trafficking victim’s civil case against Backpage’s thenparent; “Congress has declared such websites to be immune from suits arising from such 

injuries.”); People v. Ferrer, 2016 WL 7237305, at *11 (Cal. Super. Ct. Dec. 16, 2016) 

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(dismissing state law criminal charges against Lacey, Larkin and Ferrer; recognizing “it is 

for Congress, not this Court, to revisit” the CDA); People v. Ferrer, No. 16FE024013 (Cal. 

Super. Ct. Aug. 23, 2017) (after Lacey, Larkin and Ferrer were indicted on new counts, the 

court again found itself compelled to dismiss pimping-related charges “until Congress sees 

fit to amend...the broad reach of section 230”) (Doc. 561-1 at 19).

Many of these cases—including the Seventh Circuit’s opinion in Dart—were based 

on the notion that Backpage was merely a passive “intermediary between the advertisers of 

adult services and visitors to Backpage’s website.” Dart, 807 F.3d at 233-34; see also, e.g.,

Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D. Wash. 2012) (using similar 

First Amendment and CDA rationales to invalidate state law that attempted to regulate the 

online advertising of minors for sex); (Mot. at 4-7, 14, 17-19, 37).

These cases are thoroughly inapposite. First, nearly all involved the CDA’s broad 

immunity provision, which does not apply to the federal criminal prosecutions of Backpage 

and its operators—including this case. 47 U.S.C. § 230(e)(1) (“Nothing in this section shall 

be construed to impair the enforcement of...[any] Federal criminal statute.”). 

Second, since these cases were decided, there has been a sea-change in the availability 

of evidence concerning Backpage. In April 2015, the U.S. Senate Permanent Subcommittee 

on Investigations issued a subpoena to Backpage for documents concerning Backpage’s 

“screening and reviewing [of] advertisements to avoid posting illegal ads, such as ads for sex 

trafficking.” Senate Permanent Subcommittee v. Ferrer, 199 F. Supp. 3d 125, 129 (D.D.C.

2016). After Backpage objected on First Amendment grounds, the Senate—by a 96-0 vote—

authorized legal action to enforce the subpoena. (SR 12 and nn.61-62.) In 2016, the district 

court ordered compliance. Ferrer, 199 F. Supp. 3d at 140. Backpage ultimately produced 

552,983 documents to the Subcommittee, which formed the basis of the January 2017 Senate 

Report. (See SI¶151; SR 16.)10 Meanwhile, in 2016, the grand jury investigated whether 

 

10 The Subcommittee obtained testimony from current and former Backpage moderators. 

(SR 31-37.) One testified that all of the employee-moderators knew that the ads they reviewed offered sex for money, and that moderators “‘went through the motions of putting 

lipstick on a pig, because when it came down to it, it was what the business was about.” (SR 

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Backpage knowingly published advertisements for prostitution or otherwise intentionally 

facilitated its customers’ crimes. Senior Judge Campbell and a unanimous three-judge panel 

of the Ninth Circuit rejected Backpage’s First Amendment challenges to the government’s 

investigation and theory of the case, resulting in the disclosure of still more documents. (See

Doc. 194 at 7-8; Doc. 194-1, Exs. A-D.) 

As alleged in the SI, evidence obtained pursuant to the Senate and grand jury 

investigations reveals that Backpage misrepresented itself in the above-referenced cases as 

merely a passive “conduit” for third-party content, cf. Dart, 807 F.3d 229, 233-34, and 

exposed its supposed efforts to police unlawful ads on its site as a fiction, cf. McKenna, 881 

F. Supp. 2d at 1266-67. Rather, the evidence shows Backpage facilitated its customers’ 

prostitution ventures through “moderation” practices that edited or shaped pimps’ ads to 

reduce the risk of detection while still conveying the illegal message; business relationships 

with prostitution websites (e.g., The Erotic Review) and “super-affiliates” (e.g., Dollar Bill) 

calculated to increase the volume of prostitution ads on Backpage; “aggregation” practices 

that involved creating prostitution ads and soliciting pimps and prostitutes to advertise on 

Backpage; and money laundering. (See generally SI¶¶9-11, 34-159.) Defendants failed to 

disclose this evidence to the courts that previously ruled in Backpage’s favor.

Third, Defendants’ cases were decided before Backpage and its CEO pleaded guilty 

in April 2018 and admitted the “great majority” of Backpage’s revenue-generating ads were 

“for prostitution services.” (18-CR-464, Doc. 7-2 at 12-13; 18-CR-465, Doc. 8-2 at 11.) 

Ferrer further admitted that he “conspired with other Backpage principals (including but not 

limited to M.L, J.L, S.S., D.H., A.P, and J.V.)” “to create ‘moderation’ processes through 

which Backpage would remove terms and pictures that were particularly indicative of 

prostitution and then publish a revised version of the ad. Such editing did not, of course, 

change the essential nature of the illegal service being offered in the ad—it was merely 

intended to create a veneer of deniability for Backpage.” (18-CR-464, Doc. 7-2 at 13.) 

 36-37.) Another testified “everyone” knew that Backpage’s adult advertisements were for prostitution, and “[a]nyone who says [they] w[ere]n’t, that’s bullshit.” (SR 37.)

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Ferrer also admitted to conspiring with Defendants to engage in money laundering, including 

“fool[ing] credit card companies into believing that Backpage-associated charges were being 

incurred on different websites....” (18-CR-464, Doc. 7-2 at 13-14.) 

Sales and Marketing Director Hyer corroborated Ferrer’s account of Backpage’s 

“moderation” practices, as follows:

I also became involved (along with Ferrer, Andrew Padilla, and Joye Vaught) 

in Backpage’s efforts to “moderate” the content of the website’s escort and 

adult ads. Once again, I knew that the great majority of the ads being 

“moderated” were actually offering illegal prostitution services—our removal 

of explicit words and pictures did nothing to change the services being offered. 

In fact, Padilla and I agreed that I and other Backpage sales and marketing employees use the term “models” in intra-company emails when referring to persons in Backpage ads who appeared to be underage. The use of this 

term was to avoid looking bad in a lawsuit.

(Doc. 271 at 10.) 

Following these developments, the Northern District of Illinois dismissed Dart and

sanctioned Backpage. (Doc. 516-1 at 2-9; see also Doc. 446-1 at 14-35.) The court held 

Backpage and Ferrer’s admissions provide “incontrovertible” proof that Backpage misled 

the Seventh Circuit about whether “speech on the site was protected, whether Backpage.com 

policed, rather than promoted, unlawful solicitations, and otherwise merely published, rather 

than authored, content on its site.” (Doc. 516-1 at 4-5; see id. at 8 (“Backpage knowingly 

and repeatedly made false representations of fact concerning relevant aspects of its 

operations.”). The court attempted to rewrite Backpage’s complaint truthfully, as follows:

The Sheriff has infringed Backpage’s First Amendment rights by accurately 

advising credit card companies...that the great majority of ads on Backpage’s 

adult services web site are for prostitution and that Backpage routinely doctors 

those ads to conceal their unlawful nature. When told about these facts by Sheriff Dart, those credit card providers decided that they did not want to be 

publicly linked to...Backpage and stopped accepting payments for ads placed on Backpage.com. Or at least they thought they had stopped accepting such payments. In reality, however, Backpage.com devised ways to deceive the 

card companies about its continued use of their cards as payment for access to 

its adult services advertising.... 

(Doc. 516-1 at 6.)11 

 

11 See also Doc. 207-1, attaching R.O. and K.M. v. Medalist Holdings, Inc., et al, Wash. 

Super. Ct., Pierce County, No. 17-2-04897-1, June 28, 2018 Order at 7-12 (imposing 

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The Seventh Circuit now recognizes Backpage’s website “contained an adult section 

advertising different categories of sex work.” Jackson, 865 F.3d at 949. Other courts have 

reached similar conclusions. In 2015, for example, the Washington Supreme Court denied 

Backpage’s motion to dismiss a civil lawsuit brought by three minor girls who had been 

“bought and sold for sexual services” on Backpage. See J.S., 359 P.3d at 715-16. The court 

held that, because the plaintiffs had plausibly alleged that Backpage does “more than just 

provide a forum for illegal content” and affirmatively shapes the content of users’ ads 

through “posting rules [that are] ‘designed to help pimps develop advertisements that can 

evade the unwanted attention of law enforcement, while still conveying the illegal 

message,’” the plaintiffs should be permitted to conduct discovery “to ascertain whether in 

fact Backpage designed its posting rules to induce sex trafficking.” Id. at 718.12 See also

Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 17, 29 (1st Cir. 2016) (three minor girls 

who had been raped more than 1,900 times as a result of being trafficked via Backpage “made 

a persuasive case” that “Backpage has tailored its website to make sex trafficking easier”; 

nevertheless dismissing case under CDA, which does not a apply here); Jane Doe No. 1, 

2018 WL 1542056, at *1 (D. Mass. 2018) (allowing claim where victim plausibly alleged 

Backpage “redrafted [her] advertisement...to suggest she was an adult”). 

Dart v. Craigslist, 665 F. Supp. 2d 961 (N.D. Ill. 2009), provides an instructive 

counterexample. (Mot. at 17 n.19.) The court found Craigslist protected by the CDA 

because it operated as merely a passive host for ads created and posted by third parties, and 

did not create, solicit or cause or induce anyone to create or post illegal ads. 665 F. Supp. at 

969 and n.9. The allegations in the SI, in contrast, demonstrate that the Backpage created 

prostitution ads by copying them from other prostitution websites and soliciting pimps and 

prostitutes with free trial offers; solicited business from and included cross-references to 

prostitution websites like The Erotic Review; solicited bulk prostitution advertising from 

 $200,000 sanction on Lacey, Larkin and others for perpetuating a fraud on the court). 

12 In 2017, the trial judge in the J.S. case denied Backpage’s motion for summary judgment. Afterward, Backpage entered a confidential settlement with the plaintiffs.

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super-affiliates like “Dollar Bill”; and helped edit and redraft, or “doctored,” its customers’ 

ads to conceal their unlawful nature. (See, e.g., SI¶¶9-11, 33-152; see also Doc. 516-1 at 6.) 

These facts far surpass anything considered in Craigslist.

13

IV. Backpage’s Prostitution-Promoting Practices Were Not “Protected Editorial 

Functions.”

Moderation: Defendants’ assertion that moderation at Backpage was a “protected 

publisher function” is based on several false premises. (Mot. at 20-24.) First, Defendants

claim Backpage was merely a passive “intermediary” for content created by third parties,

and suggest the SI is based on allegations regarding those third parties’ “misuse” of 

Backpage. (Mot. at 20, 23-24.) This fundamentally misapprehends the SI’s allegations. 

Among other things, the SI alleges Defendants used moderation to remove terms or images 

most-obviously indicative of adult or child prostitution, and then published the revised ads

with full knowledge that the ads still offered the sale of adults or children for sex. (SI¶¶11, 

13, 34, 68-152.) Through this process, Defendants helped customers conceal illegality while 

facilitating their illegal ventures. (E.g., SI¶¶11, 13, 34, 82, 85, 68, 95, 104, 116, 128.) Ferrer 

and others also coached customers on how to wordsmith their ads so they would be accepted 

by Backpage moderators. (E.g., SI¶¶67, 91, 132, 160, 172.) Moreover, through moderation, 

Backpage edited and posted revised versions of many of the ads associated with the victims 

described in the SI. (E.g., SI¶¶163, 164, 166, 170.) Defendants engaged in a series of other 

business practices—including aggregation, reciprocal links and affiliate agreements—

calculated to expand Backpage’s volume of prostitution advertising. (See, e.g., SI¶34.)

 

13 Defendants’ conduct evokes several cases distinguished in footnote 9 of Dart v. Craigslist, 665 F. Supp.2d 961, 969 (N.D. Ill. 2009), including Anthony v. Yahoo, Inc., 421 F. Supp. 2d 1257, 1262-63 (N.D. Cal. 2006) (CDA did not apply where plaintiff alleged defendant created fake user profiles to persuade users to renew their subscriptions to defendant’s online 

dating service); Hy Cite Corp. v. badbusinessbureau.com, 418 F. Supp. 2d 1142, 1148-49 

(D. Ariz. 2005) (CDA not applicable where plaintiff alleged defendant created allegedly 

defamatory content); MCW, Inc. v. badbusinessbureau.com, 2004 WL 833595, at *10 (N.D. 

Tex. Apr. 19, 2004) (defendant could be held liable for actively soliciting defamatory content). Cf. Jones v. Dirty World Ent. Recordings LLC, 755 F.3d 398, 414 (6th Cir. 2014) 

(where “website operators provided a forum for user posts [but] did not compensate for the 

posting of actionable speech [or] post actionable content themselves,” CDA applied).

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These practices are nothing like the protected editorial functions in Defendants’ cases. 

(See Mot. at 20-22.) For example, unlike the newsletter editor in Batzel v. Smith, 333 F.3d 

1018, 1035 (9th Cir. 2003), Backpage went far beyond merely making changes to the length 

and spelling of third-party content. Nor is this case like Barnes v. Yahoo!, Inc., 570 F.3d 

1096, 1103-09 (9th Cir. 2009), and Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 

1997), where websites failed to remove or screen defamatory content posted by third parties. 

There was no allegation in those cases of any affirmative conduct by the websites to conceal 

and otherwise facilitate its users’ illegal conduct, let alone to solicit illegal postings or create 

illegal content directly. 

Second, advertising sex for money is not protected speech. See, e.g., Coyote Pub., 

598 F.3d at 603-04. Backpage’s efforts to modify or rewrite ads proposing illegal sex-forhire transactions is just as undeserving of protection as the original content—particularly 

where, as here, Backpage’s moderation efforts were pursued to conceal the ads’ illegality 

and thereby facilitate its customers’ illegal ventures. E.g., SI¶¶11, 13, 34; see also J.S., 359 

P.3d at 715-16 (plaintiffs plausibly alleged Backpage affirmatively shapes the content of 

users’ illegal ads); Jane Doe No. 1, 2018 WL 1542056, at *1 (Backpage allegedly redrafted 

ad to suggest minor victim was an adult).

Third, Defendants’ assertions regarding supporting facts alleged in the SI are incorrect

and beside the point. (Mot. at 22.) Defendants assert that an April 3, 2008 email from Ferrer 

should not be construed as discussing prostitution ads or terms “indicative of prostitution.”

(Mot. at 22 n.26; SI¶68.) Defendants’ opinions are irrelevant; at this stage, the SI’s factual

allegations must be taken as true. See Jensen, 93 F.3d at 669. Defendants also assert the 

SI’s allegations “about Backpage.com editing ads...concern only a period of months at the 

end of 2010, see SI¶¶72-87.” (Mot. at 22 n.26.) This ignores several SI paragraphs alleging 

that Backpage continued to edit ads and/or coach users about how to wordsmith their 

prostitution ads for several years (e.g., SI¶¶95, 104, 128, 139, 145, 148)—and it again 

wrongly seeks to contest factual allegations. 

Fourth, citing M.A., Doe, and People v. Ferrer, Defendants argue “courts have 

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expressly rejected the government’s theory.” (Mot. at 23-24.) But the cited cases were 

dismissed pursuant to the CDA’s immunity provision, which does not apply to this federal 

criminal prosecution. 47 U.S.C. § 230(e)(1); M.A., 809 F. Supp. 2d at 1058 (“Congress has 

declared such websites to be immune”); Doe ex rel. Roe v. Backpage.com, LLC, 104 F. Supp. 

3d 149, 165 (D. Mass. 2015) (“this court has no choice but to adhere to the law that Congress 

has seen fit to enact”); Ferrer, 2016 WL 7237305, at *11 (“Congress has spoken on this 

matter”). Moreover, these cases predate Backpage’s compelled disclosure of hundreds of 

thousands of internal documents, the Senate Report, more recent decisions, the Backpage, 

Ferrer and Hyer guilty pleas—and the recent dismissal and imposition of sanctions in Dart. 

(See Part III, supra.) These cases provide no support for Defendants’ Motion.

Aggregation: Defendants assert “[t]here is nothing illegal” about “offering free ads 

to users” or “reposting third-party content.” (Mot. at 24-25.) These assertions are based on 

the false premise that these practices didn’t involve prostitution ads. Defendants do not 

argue—nor can they—that prostitution advertising is lawful and constitutionally protected. 

The SI expressly alleges that Backpage’s aggregation practices were calculated to 

increase Backpage’s volume of prostitution advertising: “[D]uring Backpage’s early years 

of operation, the company’s employees were actually trained to—and paid bonuses for—

identifying prostitutes who were posting ads on rival websites, creating free ads on Backpage 

for them, and using the resulting Backpage ads (which would only remain free for a trial 

period) in an attempt to secure the prostitutes’ future business. These affirmative contentcreation efforts, which were described internally as ‘content aggregation’ or the ‘Dallas 

Plan,’ were vital to Backpage’s early growth and success.” (SI¶9.) The SI further alleges 

that Backpage employees ran “Google searches to identify prostitutes advertising on other 

websites,” and then solicited their advertising business with free ad offers. (SI¶ 36.) These 

allegations are taken as true here. Boren, 278 F.3d at 914.

While the SI discusses supporting evidence, it does not—and need not—serve as a 

compendium of all evidence the government intends to present at trial. United States v. 

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Blinder, 10 F.3d 1468, 1476 (9th Cir. 1993).14 In view of the SI’s allegations that Backpage’s 

aggregation involved deliberately targeting prostitutes for advertising solicitations on 

Backpage, and creating free ads for such “users,” Defendants’ assertion that Backpage 

employees were not involved in illegal activity cannot bear scrutiny. 

Reciprocal Links: As alleged in the SI, Defendants knew that The Erotic Review is 

a website on which customers posted explicit “reviews” of their encounters with prostitutes, 

including descriptions of prices charged for particular sex acts. (SI¶10; see also SI¶¶ 34, 

54.) Backpage’s involvement with The Erotic Review was not limited to “banner ads.” (Cf.

Mot. at 25.) Rather, around 2007, Backpage recognized that inserting reciprocal links to The 

Erotic Review in Backpage postings would increase ad revenue. (SI¶¶49-50.) Larkin, Spear, 

Brunst, Hyer and Ferrer were forwarded or briefed about “Google Analytics” reports 

consistently showing, even through November 2014, that The Erotic Review was the #1 

outside source of non-search engine referrals for Backpage. (SI¶¶57-58.)15

Publishing prostitution ads with links or cross-references to prostitution reviews is 

not a “traditionally protected editorial function.” (Cf. Mot. at 25); see, e.g., Williams, 553 

U.S. at 297 (speech proposing an illegal transaction is “categorically excluded from First 

Amendment protection”); Erotic Service Provider, 880 F.3d at 459-60 (prostitution 

solicitations not protected). By establishing an ongoing business relationship with The 

Erotic Review, inserting The Erotic Review links into Backpage ads, and creating ads based 

on content from websites like The Erotic Review, Backpage was facilitating prostitution.

 

14 At trial, the government will present additional evidence and testimony. For example, in his plea agreement, Hyer confirmed that “the majority of the ads that I and others at Backpage were creating through the aggregation process were actually offering illegal prostitution 

services,” and they “sometimes used ads containing links to The Erotic Review (a website where customers would post ‘reviews’ of their encounters with prostitutes, including descriptions of prices charged for particular sex acts) as the source of the content for the new 

Backpage ads we were creating.” (Doc. 271 at 8-9.)

15 In 2011, Larkin, Lacey, Spear and other Backpage representatives met with NCMEC and were advised that a large portion of the ads on Backpage were for prostitution. (See SI¶97.) During the meeting, NCMEC provided a PowerPoint detailing how The Erotic Review links 

were inserted into Backpage ads. (Doc. 446 at 12; Doc. 446-1 at 40-62.) 

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V. The SI’s Mens Rea Allegations Are Sufficient.

The SI alleges that Defendants intentionally facilitated prostitution through a number 

of deliberate acts. (E.g., SI¶¶1, 9-11, 34.) Defendants read these allegations and somehow

conclude the government’s charges rest on Defendants’ “general awareness” that Backpage

was used for criminal purposes. (Mot. at 26.) Defendants are wrong. The SI’s allegations

clearly distinguish Backpage—whose revenue-generating business model was based on the 

sale of prostitution ads—from other websites that may unknowingly be utilized for criminal 

purposes. At trial, Defendants can argue to the jury how creating free ads for prostitutes, 

linkage and referral relationships with The Erotic Review, bulk prostitution ad buying from 

“super-affiliates” like Dollar Bill, and publication of ads with known coded prostitution

terms didn’t promote or facilitate prostitution. Cf. United States v. Welch, 327 F.3d 1081, 

1097 (10th Cir. 2003) (“At trial, Defendants will be free to argue before the jury that they 

facilitated [wire] transfers...absent the requisite intent to promote bribery.”). But at this 

stage, the SI’s allegations provide more than sufficient facts to support specific intent.

A. The SI Alleges the Requisite Elements for a Travel Act Violation, Including Mens Rea.

The SI alleges that Defendants used an interstate facility with intent to promote and 

facilitate the carrying on of prostitution. (SI¶201); 18 U.S.C. § 1952(a)(3)(A). This is 

sufficient. “An indictment under the Travel Act requires allegations of each of the three 

elements of the crime: (1) interstate commerce or use of an interstate facility (2) with intent 

to promote an unlawful activity and (3) a subsequent overt act in furtherance of that unlawful 

activity.” Tavelman, 650 F.2d at 1138. Tavelman found the government’s indictment 

sufficiently stated Travel Act violations when it alleged: “[O]n July 20, 1979: (1) the 

defendants traveled interstate...(2) with the intent to promote a violation of 21 U.S.C. 

§ 841(a)...and (3) thereafter knowingly performed acts facilitating that unlawful activity.” 

Id. The SI’s allegations are similarly sufficient. See also Palfrey, 499 F. Supp. 2d at 43 (“an 

indictment that tracks the language of the Travel Act is sufficient because the Act itself 

clearly sets out the essential elements of the offense”). 

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Defendants’ reliance on United States v. Gibson Specialty Co., 507 F.2d 446 (9th 

Cir. 1974), is misplaced. (Mot. at 26-27.) Gibson involved Chicago manufacturers of 

punchboards and pulltabs charged with Travel Act violations for selling the products to 

distributors in Montana. 507 F.2d at 448-49. The punchboards and pulltabs were gambling 

paraphernalia that was not federally prohibited, but violated Montana law. Id. The extent 

of the non-Montana manufacturers’ conduct included (a) producing catalogues, (b) filling 

orders for punchboards and pulltabs from Montana companies, (c) billing the buyers, and (d) 

receiving payment. Id. at 450. The Chicago manufacturers had no financial interest or 

control over the Montana distributorships to which their products were sold. Id. Gibson

concluded “[t]here is no evidence in the record, direct or circumstantial, from which one 

could infer that the defendants associated with, participated in or sought to make succeed the 

Montana operations.” Id. 

Contrary to Gibson’s assessment, the SI provides ample allegations, taken as facts for 

the purpose of this motion, to support Defendants’ association, participation in, promotion,

and facilitation of prostitution. (See, e.g., SI¶34.) Perhaps if the Chicago manufacturers had 

engaged in any of the following the Ninth Circuit would have reached a different conclusion: 

(a) giving away free products to known illegal gambling businesses in order to induce them 

to purchase from the manufacturers; (b) entering into formal business arrangements with 

known illegal gambling outfits in Montana in order to increase sales; or (c) attempting to 

sanitize their products to make it harder for law enforcement to detect the illegality, without 

actually changing the nature of the products.

In their motion, Defendants discuss “specific intent” as if it’s some extraordinary 

hurdle for the government to overcome. It isn’t. Gibson defined the standard as a showing 

that defendant “in some significant manner associated himself with the purchaser’s criminal 

venture for the purpose of its advancement.” 507 F.2d at 449. This definition tracks the 

statutory language. The Ninth Circuit has also described the intent required to prove a Travel 

Act violation as “specific intent to facilitate an activity which the accused knew to be 

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unlawful under state law.”16 United States v. Polizzi, 500 F.2d 856, 876-77 (9th Cir. 1974); 

see also Turf Center, Inc. v. United States, 325 F.2d 793, 797 n.5 (9th Cir. 1963) (court found 

no error in jury instruction about a Travel Act count after defendants claimed district court 

erred “in refusing to give and in giving of certain instructions on specific intent” when 

instruction largely tracked the statutory language); Welch, 327 F.3d at 1095 (“the Travel Act 

requires a defendant act not only with knowledge of what he is doing, but also with the 

objective of promoting some unlawful activity”). Seven years after Gibson, the Ninth Circuit 

found that an indictment alleging a Travel Act count was sufficient if it merely alleged 

defendant had an “intent to promote an unlawful activity.” Tavelman, 650 F.2d at 1138. The 

SI’s allegations demonstrate Defendants acted with the required intent. Id.; see also Palfrey, 

499 F. Supp. 2d at 43 (indictment that tracks language of the Travel Act is sufficient); Welch, 

327 F.3d at 1097 (trial court went beyond four corners of indictment when it didn’t accept 

allegations that international wire transfers were made with intent to promote bribery).17

B. Defendants’ Constitutional Mens Rea Claims Are Unavailing.

For several reasons, Defendants mistakenly rely on obscenity cases for the position 

that the First Amendment requires “that a defendant knew the specific speech that is the basis 

for criminal charges was illegal.” (Mot. at 28.) First, obscenity prosecutions call for a 

delicate assessment of several factors. See, e.g., Miller v. California, 413 U.S. 15, 24 (1973) 

(“obscenity” requires assessing whether the work (a) under “contemporary community 

standards...appeals to the prurient interest”; (b) depicts sexual conduct “in a patently 

offensive way”; and (c) “lacks serious literary, artistic, political, or scientific value”). Here, 

 16 “[F]acilitate” means “to make easy or less difficult.” Gibson, 507 F.3d at 450. 

17 The SI also alleges facts sufficient to show that Defendants’ actions facilitated or promoted the ongoing prostitution enterprises of Backpage’s customers. (Cf. Mot. at 27 n.33.) See, 

e.g., United States v. Kaiser, 660 F.2d 724, 731 (9th Cir. 1981) (The Travel Act “requires only that the [promoted or facilitated] business enterprise be continuous....Here, the evidence of repeated sales of heroin was sufficient to establish a continuous course of 

criminal conduct.”). The SI includes allegations of Defendants’ involvement with prostitutes and pimps who posted multiple ads, including P.R. (SI¶132) and Dollar Bill (SI¶61). The 

identified victims were sold through multiple ads. (SI¶¶160-176.) Even single ads identified in the SI did not advertise one-time services; rather, each ad was meant to generate many “sales” of the featured prostitute. See SI¶201; see also United States. v. O’Donnell, 608 F.3d 

546, 555 (9th Cir. 2010) (indictment must be “construed according to common sense”).

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in contrast, Defendants are charged with advertising sex-for-hire solicitations—speech that 

is absolutely excluded from First Amendment protection without any need to evaluate

“community standards,” “offensive[ness]” or “value.” See, e.g., Williams, 553 US. at 297. 

Defendant’s obscenity-based mens rea cases thus are of limited value here.

Second, Defendants’ cases provide a more generous mens rea standard than 

Defendants suggest. In Smith v. California, the Supreme Court invalidated an obscenity 

ordinance that contained no mens rea standard whatsoever; the ordinance imposed criminal 

sanctions on a bookseller “if in fact there is to be found in his shop an obscene book,” “even 

though [he] had not the slightest notice of the character of the books [that he] sold.” 361 

U.S. 147, 152 (1959). In requiring some mens rea requirement, Smith expressly did not 

adopt a specific standard: “We need not and most definitely do not pass today on what sort 

of mental element is requisite to a constitutionally permissible prosecution of a bookseller 

for carrying an obscene book in stock; [including] whether there might be circumstances 

under which the State constitutionally might require that a bookseller investigate further, or 

might put on him the burden of explaining why he did not, and what such circumstances 

might be.” Id. at 154. Smith accordingly contemplates that mens rea may be satisfied by 

something other than knowledge of the contents of a specific book (or ad), especially where, 

as here, Defendants knew the vast majority of their “adult” ads were for prostitution and

engaged in practices specifically intended to increase such advertising.

18

Mishkin v. State of New York, similarly recognizes a broader scienter standard. In 

Mishkin, the Court noted the constitution requires proof of scienter to “avoid the hazard of 

self-censorship of constitutionally protected material and to compensate for the ambiguities 

inherent in the definition of obscenity.” 383 U.S. 502, 511 (1966). The Court declined to 

set a firm rule on what mens rea was required under Smith, and found more than sufficient 

the scienter required by the New York Court of Appeals in interpreting the state law at issue: 

 

18 See Monica J. DeLateur, From Craigslist to Backpage.com: Conspiracy as a Strategy to Prosecute Third-Party Websites for Sex Trafficking, 56 Santa Clara L. Rev. 531, 581 (2016) 

(intent can be proven by showing “the illegal activity was a high proportion of the business, 

the presence of a stake in the venture, or deliberate ignorance”).

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namely, that defendants were “in some manner aware of the character of the material they 

attempt to distribute” such that the punished behavior was a “calculated purveyance of filth” 

and not innocent behavior. Id. at 510-11.

19 Mishkin then rejected the defendant’s argument 

that the evidence was insufficient to show such awareness, where the evidence included that 

the defendant had instructed artists and writers regarding the contents of most of the 50 books 

at issue, his efforts to conceal his role in the enterprise, and “the massive number of obscene 

books [he] published, hired others to prepare, and possessed for sale.” Id. at 504, 511-12. 

Here, the SI’s allegations likewise demonstrate that Defendants were “in some 

manner aware of the character of the material” they distributed such that their conduct 

involved the “calculated purveyance of filth” and not innocent behavior. Id. at 510-11. The 

SI alleges Defendants and their co-conspirators coached users, including P.R. and Victim 13, 

regarding the contents of their ads, including many of the 50 ads identified in SI¶ 201 (see, 

e.g., SI¶132, 172); concealed their roles in facilitating prostitution (see, e.g., SI¶16 

(Defendants misled the public, regulators and law enforcement), ¶77 (Padilla threatened to 

fire any employee who acknowledged in writing that a customer was a prostitute), ¶¶107-08 

(Larkin warned Ferrer about making “public” Lacey’s statements lauding Backpage’s 

contributions to the prostitution industry); knew the vast majority of their “adult” ads were 

for prostitution (SI¶¶1, 9, 11, 15, 34); and sold massive numbers of such ads by operating 

the internet’s leading website for prostitution advertising and collecting approximately $500 

million in fees from such sales (see SI¶¶1, 177). Combined with Defendants’ intentional 

efforts to expand Backpage’s prostitution advertising, and the repeated notices Defendants

received from law enforcement, anti-trafficking organizations, the news media and other 

sources concerning the predominance of prostitution ads in Backpage’s “adult” section (see

 

19 The article cited by the ACLU similarly states: “[T]he government is not required, in an obscenity case, to prove that the defendant knew the material being transmitted or received 

was ‘obscene.’ The government need only show that the defendant was aware of the nature 

and character of the materials; i.e., that they involved sexually-explicit subject matter.” Lawrence G. Walters, Shooting the Messenger: An Analysis of Theories of Criminal Liability Used Against Adult-Themed Online Service Providers, 23 Stan. L. & Pol’y Rev. 171, 204 and n.174 (2012); id. at 206 (referring to “the generous standard...for proving intent”).

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generally SI¶¶9-11, 34-159), the SI demonstrates Defendants were well “aware of the 

character” of Backpage’s “adult” ads such that their activity was “not [the] innocent but 

calculated purveyance of” prostitution solicitations. Mishkin, 383 U.S. at 512. 

Third, Defendants’ reliance on United States v. X-Citement Video, Inc., 513 U.S. 64 

(1994), is misplaced. (Mot. at 28.) In that case, the Supreme Court rejected a reading of a 

child pornography statute that would have imposed criminal liability regardless of whether 

the defendant knew the age of persons shown. 513 U.S. at 78. This commonsense holding 

does not mean that the operator of a website designed to facilitate unlawful prostitution must 

know that each and every item posted on the website concerns illegal activity. If the 

website’s revenue is based almost entirely on speech integral to illegal conduct, and the 

website is knowingly operated to promote such conduct, the Constitution does not impose 

the near-impossible burden of proving that every single ad sold on the website proposed an 

illegal transaction. Under that interpretation, posting even one licit ad—among millions of 

illicit ones—would immunize the website from prosecution. 

That is not the law. Rather, just as “[b]ookselling in an establishment used for 

prostitution does not confer First Amendment coverage to defeat a valid statute aimed at 

penalizing and terminating illegal uses of premises,” Arcara v. Cloud Books, Inc., 478 U.S. 

697, 707 (1986), so too may the government seek to prosecute a website whose revenuegenerating business model consisted of operating a massive online marketplace for illegal 

prostitution—even if the website also gave away free ads for legal goods and services for the 

sake of “plausible deniability.” (SI¶112); see Ulbricht, 31 F. Supp. 3d at 556 (unlike other 

online businesses, defendant “knowingly and intentionally constructed and operated an 

expansive black market for selling and purchasing narcotics and malicious software”); 

Jackson, 865 F.3d at 949 (Backpage “advertis[ed]...sex work”); Jane Doe, 817 F.3d at 28 

(“Backpage has tailored its website to make sex trafficking easier”); SI¶109 (Backpage is “a 

direct vehicle for prostitution”).

Fourth, nor does Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962), assist 

Defendants. According to the ACLU, Manual Enterprises held that the president of a 

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company that distributed magazines with allegedly illegal advertisements “could not be 

liable...where there was ‘no evidence that any of this material was shown to him.’” (ACLU 

Br. at 3.) However, the quoted “holding” was endorsed only by two members of the Court; 

none of the other six justices who participated in the case signed on to this view. See Manual 

Enterprises, 370 U.S. at 479-529. Moreover, the two judges who did agree characterized the 

scienter standard as having “knowledge of the character of the advertisements included in 

the magazine.” Id. at 492. They did not hold that knowledge of the specific contents of the 

specific advertisements was the only way of establishing scienter. 

Perhaps for this reason, the ACLU and DKT recognize scienter can be established by 

showing Defendants either “specifically intended to further unlawful activity or knew the 

content of each allegedly illegal post.” (ACLU Br. at 2 (emphasis added); DKT Br. at 10 

(arguing SI didn’t allege “Defendants intended to further any illegality”).) Here, the SI 

alleges Defendants “specifically intended to promote and facilitate prostitution” (SI¶10), 

“intentionally solicit[ed] prostitution-related business” (SI¶11), conspired to facilitate illegal 

prostitution (SI Count 1), and used the internet “with intent” to “promote...and facilitate” 

the “promotion...and carrying on of an unlawful activity, to wit: prostitution” by publishing 

each of the 50 ads in Counts 2-51 (SI¶201). For these and other reasons discussed above, 

the SI amply satisfies the mens rea standards articulated by amici.

20 

Fifth, Defendants assert that the DOJ’s statements in other contexts somehow support 

their arguments here. (See Mot. at 28.) They cite a 2010 statement by a DOJ official at a 

Congressional hearing about what laws might make providers like Craigslist criminally 

liable for postings. The DOJ representative stated “neglect” isn’t the standard; rather, the 

government would need evidence that Craigslist “knowingly conspired” with “those who 

 

20 This is not a case “motivated by the improper purpose of interfering with...constitutionally protected speech.” (DKT Br. at 11-12, citing United States v. P.H.E., Inc., 965 F.2d 848, 

849 (10th Cir. 1992).) As alleged throughout the SI, and as numerous courts have recognized, Backpage trafficked in prostitution ads. Jackson, 865 F.3d at 949 (Backpage “advertis[ed]...sex work”); Jane Doe, 817 F.3d at 28 (“Backpage has tailored its website to make sex trafficking easier”); Dart Order at 6 (“the great majority of ads on Backpage’s adult services web site are for prostitution and...Backpage routinely doctor[ed] those ads to 

conceal their unlawful nature”) (Doc. 516-1 at 6). 

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were misusing their site...to violate laws....” (Mot. at 29.) That is what the SI alleges. (See, 

e.g., SI¶¶91, 132, 196-97, 201); see also Ulbricht, 31 F. Supp. 3d at 555 (design and 

operation of website can result in legally-cognizable conspiracy). Defendants next discuss 

cases and testimony involving 18 U.S.C. § 1591, which criminalizes the sex trafficking of a 

minor or a victim of force, fraud, or coercion—and requires knowledge of the age or coerced 

status of the victim. (Mot. at 30.) Section 1591 is not charged in the SI, and the cited cases 

and testimony do not apply. 

Defendants also cite Woodhull Freedom Found. v. United States, 334 F. Supp. 3d 185 

(D.D.C. 2018) (Mot. at 30-31, 35, 45), which dismissed on standing grounds a facial 

challenge by sex worker advocacy groups to the Allow States and Victims to Fight Online 

Sex Trafficking Act of 2017 (FOSTA). FOSTA created a new federal offense for operating 

“an interactive computer service...with the intent to promote or facilitate the prostitution of 

another person.” 18 U.S.C. § 2421(A)(a) (emphasis added). The court held the plaintiffs 

lacked a credible threat of prosecution because “key textual indications...make clear that 

FOSTA targets specific acts of illegal prostitution,” not abstract advocacy. 334 F. Supp. 3d 

at 200. These “textual indications” include FOSTA’s reference to the “‘prostitution of 

another person,’ which denotes specific unlawful acts.” Id. at 199-200. While the court 

found the plaintiffs’ standing arguments flawed for the “additional reason []” that § 2421A 

“mirrors” the Travel Act, which had never been used to prosecute advocacy, id. at 199-200,

the Travel Act contains no text specifically referencing “the prostitution of another person.” 

Even if it did, the SI identifies numerous Backpage ads that promoted prostitution of specific

individuals. SI¶201 (Counts 2-51), SI¶ 91 (Licks Alot), ¶¶120, 123-26 (ads with minors), 

¶132 (P.R.’s ads), ¶¶160-76 (ads for Victims 1-17).21

 

21 Defendants also assert the “DOJ repeated [in the Woodhull appeal] that in a prosecution under the Travel Act, the government must allege that the defendant acted to intentionally 

promote or facilitate a ‘specific, unlawful instance of prostitution.’” (Mot. at 31.) However, 

the quoted text refers not to the government’s discussion of the Travel Act, but to § 2421A. 

(Gov’t Br., Woodhull Freedom Found. v. United States, No. 18-5298 (D.C. Cir. Apr. 15, 2019) (Doc.#1782997) at 20-21.) To be sure, the government went on to characterize § 2421A as “substantially similar” to the Travel Act in that both statutes “prohibit[ ] using the internet ‘with intent to’ ‘promote...or facilitate the promotion’ of illegal ‘prostitution 

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C. The SI Alleges Defendants Each Possessed the Requisite Specific Intent.

Particularly at this motion to dismiss stage, Defendants’ mens rea arguments are 

unavailing. Whether a defendant had the requisite intent to commit the alleged crime “is a 

question of fact which must be submitted to the jury.” Morissette v. United States, 342 U.S. 

246, 274 (1952). The “intent can never be ruled as a question of law, but must always be 

submitted to the jury.” Id.; see also Takahashi v. United States, 143 F.2d 118, 122 (9th Cir. 

1944) (“[q]uestions of knowledge and intent are always questions of fact for the jury”). This 

maxim applies to Travel Act cases. United States v. Graham, 581 F.2d 789, 790 (9th Cir. 

1978) (intent in Travel Act prosecution was a question of fact for the jury).22

To defeat the Motion to Dismiss, the government need not detail all the evidence 

supporting Defendants’ specific intent to promote prostitution. Nevertheless, the SI includes 

numerous intent allegations about the individual Defendants, including the following:23 

1. Lacey and Larkin

Defendants Lacey and Larkin are alleged to have overseen Backpage’s policies and 

strategic direction (SI¶2), which included oversight of Backpage’s aggregation and 

moderation practices and the company’s relationship with The Erotic Review. (SI¶¶33-152.) 

These allegations alone provide more than sufficient facts supporting specific intent to 

facilitate prostitution. Still more allegations in the SI add to the weight of the evidence. 

For example, the SI alleges Lacey did the following:

• Hid $16.5 million in an overseas bank account so “government parties” couldn’t 

access the funds (SI¶16);

• Told NCMEC that adult prostitution was “none of their business” (SI¶89);

 offenses.’” Id. The SI alleges Defendants did just that. (See, e.g., SI Counts 1-52.)

22 Gibson only reached intent at the motion to dismiss stage because the parties had stipulated to all facts. 507 F.2d at 449 n.5; see also United States v. Phillips, 367 F.3d 846, 855 n.25 

(9th Cir. 2004) (only when facts are essentially undisputed may a district court dismiss an 

indictment for insufficient evidence).

23 At trial, the government will present additional evidence of Defendants’ guilt, including, without limitation, testimony from Backpage’s CEO Ferrer and Sales and Marketing Director Hyer, evidence about the “Detroit Backpage murders,” Lacey’s acknowledgements that child sex trafficking occurred on Backpage, and Lacey’s statements equating trafficking victims to underage children who sneak into bars. (Doc. 516 at 9-11.) 

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• Received an email from Ferrer acknowledging the possibility of using software to ensure children weren’t posting ads on Backpage, but ultimately the company didn’t adopt the software because it would cut into Backpage’s profits (SI¶106); 

• Bragged that, because of Backpage, “[f]or the very first time, the oldest profession in the world has transparency, record keeping and safeguards” (SI¶107);

• Acknowledged Backpage used an automatic filter to remove particular phrases 

from ads indicative of prostitution but still published the ads (SI¶107);

• Stated “jim [Larkin] and I believe in legalized prostitution” (SI¶121);

• Reviewed a published study concluding that most of Backpage’s Phoenix page ads involved prostitution, including juvenile trafficking victims (SI¶131);

• Received a Sex Worker’s Outreach Project letter thanking Backpage for continuing to permit sex workers to “advertise in the ‘Adult’ area” (SI¶142);

• Received, with his family members, over $30.3 million in distributions funneled through Cereus Properties between January 2016 and January 2017 (SI¶192).

Larkin is alleged to have taken many of the same actions as Lacey, and also to have 

engaged in, among others, the following:

• Instructed Ferrer to prevent information related to Backpage’s contributions to the 

prostitution industry and editing practices from being made public (SI¶12);

• Commented that because Craigslist stopped hosting “adult content ads” it would 

likely mean a deluge of such ads for Backpage (SI¶24);

• Met regularly with Ferrer after selling Backpage to discuss and direct the operation of the company’s business (SI¶32);

• Exerted post-sale control over Backpage’s banking relationships, among other things (id.);

• Strategized about implementing the Dallas Plan (SI¶¶40-43);

• Discussed strategic development of Backpage’s “reciprocal link relationships” with The Erotic Review, a website he knew rated prostitutes, and assisted in 

expanding relationship with The Erotic Review (SI¶¶47-50, SI¶¶54, 56);

• Understood and discussed that The Erotic Review was the number one referral 

source for Backpage (SI¶¶57-58);

• Participated in meetings where NCMEC stated a large portion of Backpage’s ads

were blatant prostitution ads, many featuring children (SI¶86, 97);

• Received an email with a list of recommended “action items” to pursue to decrease 

human trafficking; Larkin disregarded the suggestions (SI¶¶100-01);

• Received an email discussing whether Backpage should include a warning 

message on its website concerning the prostitution of children (SI¶115);

• Received notice that “Chase [Bank] was no longer accepting transactions from 

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Backpage.com, due to their involvement in human trafficking” (SI¶135);

• Strategized about reconfiguring Backpage.com to fool credit card companies into 

believing charges were incurred on a different website (SI¶178-80);

• Received over $21 million funneled through Cereus Properties (SI¶192).

These allegations demonstrate Lacey and Larkin’s specific intent both to facilitate 

prostitution and engage in the money laundering offenses alleged against them. 

2. Spear and Brunst

The SI includes numerous allegations identifying Spear’s and Brunst’s specific intent 

to facilitate prostitution. First, both were involved in Backpage’s aggregation efforts and 

business relationship with The Erotic Review. Second, Spear was heavily involved with 

Backpage’s moderation practices. And third, both Brunst and Spear were integral to

Backpage’s efforts to fool credit card companies into processing Backpage-related funds. 

Spear and Brunst specifically understood Backpage’s aggregation efforts. (SI¶42.) 

As company executives, they helped implement the process of identifying prostitutes 

advertising on rival websites who were then contacted and given free advertising on 

Backpage. (Id; see also ¶¶35-36, 40-41, 44.) In addition, both were involved in strategizing 

about efforts to expand Backpage’s relationship with The Erotic Review and attempts to find 

similar business relationships. (SI¶49.) They endorsed Backpage’s growth through 

reciprocal links like those embedded on The Erotic Review. (Id.) They met with Ferrer to 

discuss Google Analytics reports that demonstrated that The Erotic Review was the number 

one outside source of referrals to Backpage. (SI¶¶57-58.) Spear also was involved in 

Backpage’s decision to maintain a relationship with “Dollar Bill,” an individual who earned 

fees for arranging for prostitutes and pimps to post ads on Backpage. (SI¶¶59-67.) 

Spear was also heavily involved in Backpage’s moderation efforts. (SI¶¶70,73,80-

81.) He understood that Backpage’s moderators were removing sex act pictures and coded 

terms, but then posting the ad. (Id.) Indeed, he instructed Ferrer to inform moderators to 

concentrate on coded terms and “lighten up on the images moderation.” (SI¶80.)

Finally, both Brunst and Spear played a direct role in Backpage’s efforts to fool 

financial companies into accepting payments directed to Backpage. For example they:

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• Received notice that Chase Bank would “no longer accept[] transactions from Backpage.com, due to their involvement in human trafficking” (SI¶135);

• Strategized with Larkin and Ferrer about reconfiguring Backpage’s website to 

“fool credit card companies into believing the charges were being incurred on a 

different website” (SI¶178);

• Discussed a proposal to set up shell companies without any apparent connection to Backpage and use these companies’ accounts to accept payment (SI¶¶179-80);

• Strategized about using an ostensibly independent entity—Website Technologies, LLC—to process Backpage-related funds (SI¶187); and

• Were the two authorized signers on bank accounts held by Cereus Properties LLC, 

which received wire transfers totaling over $47 million from Website 

Technologies accounts between December 2015 and October 2016 (SI¶190).

The SI’s allegations detail Defendants’ specific intent to promote prostitution, which 

provides the requisite mens rea for all crimes alleged against them.

24

D. Defendants’ Cases Are Inapposite.

Defendants cite Buddenberg in arguing for dismissal, but it lends no support. (Mot 

at 35.) Buddenberg dismissed a two-count indictment that wholly failed to “allege what the 

[threatening] statements [at issue] were or course of conduct was that involved or constituted 

the alleged threats, harassment or intimidation, thus precluding any meaningful review of the 

legal sufficiency of the charged conduct.” 2010 WL 2735547 at *4. In the Buddenberg

indictment: “[N]o specific dates are given. No target person is identified. No specific threat, 

act of vandalism, property damage, criminal trespass, harassment, or act of intimidation is 

identified.” Id. at *8. As an example of a sufficient indictment, the court pointed to United 

States v. White, 638 F. Supp. 2d 935, 937-41 (N.D. Ill. 2009), where the solicitations at issue 

“were postings on the defendant’s website and the indictment identified the website, the 

specific date of postings, and the specific content of the posts which were alleged to 

constitute the proscribed solicitations.” Id. at *7. The SI contains precisely the type of detail 

 24 Padilla and Vaught were not originally part of the Motion to Dismiss but have since filed Notices of Joinder. (Docs. 615, 617.) The SI includes copious factual allegations showing 

their mens rea. (SI¶¶6-7,12, 60, 72, 77-85, 87-88, 93-96, 99, 102, 104, 106, 110, 115-117, 

120, 123, 128-129, 132, 133, 137, 139, 145, 148-150, 157, 185, 188.)

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that the White indictment possessed. (See, e.g., SI¶ 201.)25

Defendants cannot fit the square-peg of the SI’s allegations into the round-hole of 

previous cases involving other websites. For example, Defendants argue that the SI is similar 

to a civil complaint filed by Sheriff Dart against Craigslist, where the trial court characterized 

the complaint’s allegations as demonstrating that Craigslist engaged in “negligent 

publishing.” (Mot. at 36 (citing Craigslist, 665 F. Supp. 2d at 967).) No fair reading of the 

SI can lead to a similar conclusion. (See also Part III, supra.) 

Citing Doe v. GTE Corp, 347 F.3d 655 (7th Cir. 2003) (Mot. at 36), Defendants again 

liken their website to a newspaper that unknowingly carried an advertisement for “escort 

services,” or a company like Verizon whose cellphones were used by drug dealers. (Id.) The

analogy doesn’t work. The SI paints a starkly different picture of Backpage than that of an 

unknowing third party. At trial, Defendants can attempt to persuade the jury that their 

partnerships with The Erotic Review and “Dollar Bill,” their aggregation and moderation 

practices, and their deliberate publication of prostitution ads is the same as Verizon selling 

cell phones to the general public; for now, the SI’s allegations must be accepted as facts. 

Finally, Defendants’ reliance on the Seventh Circuit’s Dart decision is unavailing. 

(Mot. at 37.) Following Backpage’s compelled disclosures of documents detailing its 

internal operations, Dart was dismissed and a $250,000 sanction imposed based on 

Backpage’s false and fraudulent misrepresentations. Defendants’ Motion expresses a strong 

desire to return to a world where the facts about Backpage’s business practices remain 

unknown. That world no longer exists. 

 

25 While the district court in White dismissed the indictment on First Amendment grounds, the Seventh Circuit reversed and remanded for trial, holding that: (1) the indictment 

sufficiently alleged the elements of criminal solicitation and supporting facts; (2) criminal 

solicitations—invitations to engage in illegal conduct—are categorically outside First Amendment protection; and (3) whether the solicitation was made with intent to further illegal activity must be submitted to the jury. United States v. White, 610 F.3d 956, 960-962 

(7th Cir. 2010); see id. at 962 (“The government has laid out the elements of the crime and the statute that White is accused of violating, along with some specific factual allegations for 

support, and that is all it is required to do. The question of White’s intent and the inferences 

that can be drawn from the facts are for a jury to decide.”).

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VI. The Travel Act Is Constitutional As Applied.

Defendants’ final argument is that the Travel Act is unconstitutional as applied in the 

SI. (Mot. at 37-42.) This argument, which is based on the same faulty premises as 

Defendants’ other arguments, is easily dispatched. 

First, as detailed above, the SI is premised on Defendants’ specific conduct and intent 

to facilitate prostitution, not their “general knowledge that Backpage.com was used by third 

parties to advertise prostitution.” (Mot. at 38.) 

Second, the SI’s allegations conform to the requisite elements to prove a Travel Act 

violation. The allegations demonstrate Defendants had a “specific intent to facilitate an 

activity which the accused knew to be unlawful under state law.” Polizzi, 500 F.2d at 876-

77. At the motion to dismiss stage, simply alleging Defendants had an “intent to promote an 

unlawful activity” is sufficient, though the SI alleges Defendants’ specific intent in far 

greater detail. See Tavelman, 650 F.2d at 1138. 

Third, because SI’s allegations support the requisite mens rea for Travel Act crimes, 

there’s no concern that the indictment conflicts with the First Amendment. Defendants were 

not just “any website operator[s].” (Mot. at 39.) Rather, they were much more like the 

operator of Silk Road—who knew “his facilities would be used for illicit purposes and, in 

fact...operated them for that purpose.” Ulbricht, 31 F. Supp. 3d at 561.

Fourth, the Travel Act is not “unconstitutionally vague as applied.” (Mot. at 40.) The 

government has alleged Defendants acted with specific intent, and a vagueness challenge 

“rarely succeeds where the requisite mental state is one of purpose or specific intent”—as is 

the case with the Travel Act. Welch, 327 F.3d at 1096; see also Tavelman, 650 F.2d at 1138.

Fifth, for all the reasons stated above, and unlike United States v. Cassidy, 814 F. 

Supp. 2d 574, 583 (D. Md. 2011) (Mot. at 42), the SI is squarely directed at “speech integral 

to criminal conduct”—including Defendants’ deliberate operation of the internet’s leading 

marketplace for illegal offers to sell adults and children for sex. 

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Conclusion

For the foregoing reasons, Defendants’ Motion to Dismiss should be denied.

Respectfully submitted this 12th day of June, 2019.

MICHAEL BAILEY

United States Attorney

District of Arizona

s/ Peter S. Kozinets

KEVIN M. RAPP

MARGARET PERLMETER

PETER S. KOZINETS

ANDREW C. STONE

Assistant U.S. Attorneys

JOHN J. KUCERA

Special Assistant U.S. Attorney

BRIAN BENCZKOWSKI 

Assistant Attorney General 

U.S. Department of Justice 

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

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CERTIFICATE OF SERVICE

I hereby certify that on June 12, 2019, 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/ Angela Schuetta

Angela Schuetta

U.S. Attorney’s Office

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