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`Case 2:18-cr-00422-SMB Document 1176 Filed 06/23/21 Page 1 of 18
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`
`
`GLENN B. McCORMICK
`Acting United States Attorney
`District of Arizona
`
`KEVIN M. RAPP (Ariz. Bar No. 014249, kevin.rapp@usdoj.gov)
`MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov)
`PETER S. KOZINETS (Ariz. Bar No. 019856, peter.kozinets@usdoj.gov)
`ANDREW C. STONE (Ariz. Bar No. 026543, andrew.stone@usdoj.gov)
`Assistant U.S. Attorneys
`40 N. Central Avenue, Suite 1800
`Phoenix, Arizona 85004-4408
`Telephone (602) 514-7500
`
`DAN G. BOYLE (N.Y. Bar No. 5216825, daniel.boyle2@usdoj.gov)
`Special Assistant U.S. Attorney
`312 N. Spring Street, Suite 1400
`Los Angeles, CA 90012
`Telephone (213) 894-2426
`
`NICHOLAS L. MCQUAID
`Acting 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 IN
`OPPOSITION TO DEFENDANTS’
`MOTION TO DISCLOSE GRAND
`JURY INSTRUCTIONS ON
`PROSTITUTION (Doc. 1171)
`
`Preliminary Statement
`In June 2020, the United States sent proposed jury instructions to Defendants so the
`parties could confer before presenting them to the Court. After sitting on the instructions
`for 12 months, and without first providing comments to the government, Defendants filed
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`Case 2:18-cr-00422-SMB Document 1176 Filed 06/23/21 Page 2 of 18
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`the instant “Motion to Disclose Grand Jury Instructions on Prostitution” in which they
`assert the United States’ draft instructions “do not include the elements of a prostitution
`offense or offenses under state law,” speculate “the government did not properly advise the
`grand jury on the law,” and seek disclosure of grand jury’s legal instructions regarding the
`Travel Act, 18 U.S.C. § 1952. (Doc. 1171, Mot. at 1.)1
`This is déjà vu all over again. In their Motion, Defendants seek to relitigate their
`repeated and unsuccessful efforts to obtain the grand jury’s legal instructions. In October
`2019, Defendants sought disclosure of the grand jury transcripts, including legal
`instructions, in their “Joint Motion to Dismiss Indictment for Grand Jury Abuse or, in the
`Alternative, for Disclosure of Grand Jury Transcripts” (Doc. 782). After detailed briefing,
`the Court denied the motion in an 11-page Order. (Doc. 844; see also Docs. 812, 826.)
`Later, in connection with Defendants’ “Motion to Dismiss Indictment Based on Failure to
`Allege Necessary Elements of the Travel Act” (Doc. 746), the Court ordered the United
`States to disclose the Travel Act grand jury legal instructions in camera in February 2020,
`and the United States complied. (Docs. 879, 892.) For a second time, Defendants
`unsuccessfully sought the same instructions (see Docs. 881, 887), and the Court denied the
`Travel Act motion to dismiss (Doc. 946).
`Defendants now look to litigate this issue for a third time. To the extent the instant
`Motion seeks to relitigate issues previously decided by this Court in this case, including
`the sufficiency of the Travel Act-related counts in the Superseding Indictment (Doc. 230,
`SI), the Motion is barred by the law of the case doctrine. See Cross v. Commr. of Soc. Sec.
`Administration, CV-19-01801-PHX-SMB, 2021 WL 1711832, at *4 (D. Ariz. Apr. 30,
`2021) (“The law of the case doctrine precludes courts from reexamining issues previously
`decided by the same court in the same litigation.”). Defendants’ Motion fails to offer any
`genuinely new or meritorious grounds for relief, and it should be denied.
`
`
`
`1 The proposed jury instructions have not been finalized; Defendants sought multiple
`extensions from the government to provide comments to the United States’ draft, and the
`parties anticipate submitting a joint set of proposed instructions before trial.
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`Case 2:18-cr-00422-SMB Document 1176 Filed 06/23/21 Page 3 of 18
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`First, grand jury proceedings are secret, and Fed. R. Crim. P. 6(e)(3)(E) permits in
`camera review in certain limited circumstances “at a time, in a manner, and subject to any
`other conditions that [the Court] directs.” Here, the Court previously ordered a discrete,
`limited, and narrow in camera production of the grand jury Travel Act instructions. (Doc.
`879 at 2.) The limited nature of that review was appropriate because—especially in the
`context of a defense demand to review legal instructions to the grand jury—there is no
`requirement to even instruct the grand jury on the law. Moreover, that limited review was
`appropriate because Defendants failed to meet their heavy burden of demonstrating the
`particularized, specific need for grand jury materials that the law requires. Douglas Oil
`Co. of Cal. v. Petrol Stops Northwest, 441 U.S. 211, 222 (1979); (Doc. 844, Order at 10).
`Second, in their instant Motion, Defendants once again fail to clear this high hurdle.
`“Mere ‘unsubstantiated, speculative assertions of improprieties in the proceedings’ do not
`supply the ‘particular need’ required to outweigh the policy of grand jury secrecy.” United
`States v. Ferrebouef, 632 F.2d 832, 835 (9th Cir. 1980) (quoted in Doc. 844, Order at 5).
`Defendants’ assertion that the grand jury instructions were required to include “the
`elements of the State statutes alleged to have been violated by the purported business
`enterprise(s) facilitated by Defendants” (Mot. at 4) is incorrect and contrary to this Court’s
`Orders regarding the sufficiency of the SI. Moreover, as before, Defendants suggest that
`if the grand jury instructions were inadequate then any affected counts and/or the entire
`indictment should be dismissed. (Mot. at 6; see also Doc. 798 at 4, 7 and Doc. 780 at 14-
`15.) Established law does not support that claim, and any mistakes in the instructions (or
`failure to instruct for that matter) can be readily cured by the petit jury at trial. To that end,
`Defendants have only now begun to comment on the proposed jury instructions that the
`United States sent them a year ago. Defendants’ Motion should be denied.
`Argument
`The Grand Jury Operates with a Presumption of Regularity, and Defendants
`Bear a Heavy Burden in Overcoming the Presumption.
`The scope of judicial review of grand jury matters has been narrowly circumscribed
`
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`by the Supreme Court. Grand jury proceedings are invested with a presumption of
`regularity. United States v. R. Enters., Inc., 498 U.S. 292, 301 (1991). (See also Doc. 844
`at 2-3.) Applying this deferential standard to grand jury matters, the Supreme Court has
`long been reluctant to permit challenges to indictments based on alleged errors in grand
`jury proceedings. Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988); Costello
`v. United States, 350 U.S. 359, 363 (1956) (“[a]n indictment returned by a legally
`constituted and unbiased grand jury . . . if valid on its face is enough to call for trial of the
`charge on the merits”).
`In United States v. Williams, 504 U.S. 36 (1992), the Supreme Court further
`restricted the ability of federal courts to invoke the supervisory power for creating
`prosecutorial standards before the grand jury. The Court stated that precedent regarding
`the supervisory authority of the judiciary applied “strictly with the court’s power to control
`their own procedures.” 504 U.S. at 45. The Court then stated:
`
`We did not hold in Bank of Nova Scotia, however, that the courts’
`supervisory power could be used, not merely as a means of enforcing or
`vindicating legally compelled standards of prosecutorial conduct before the
`grand jury, but as a means of prescribing those standards of prosecutorial
`conduct in the first instance just as it may be used as a means of establishing
`standards of prosecutorial conduct before the courts themselves…. Because
`the grand jury is an institution separate from the courts, over whose
`functioning the courts do not preside, we think it clear that, as a general
`matter at least, no such “supervisory” judicial authority exists.
`Id. at 46-47.
`The combined effect of these Supreme Court cases is to limit a defendant’s ability
`to attack the validity of an indictment to those instances where the alleged misconduct
`seriously undermined the grand jury’s independence and unfairly prejudiced the defendant.
`In exercising these supervisory powers, however, cases caution that the courts must not
`encroach on the legitimate prerogatives and independence of the grand jury and the
`prosecutor. United States v. Chanen, 549 F.2d 1306, 1313 (9th Cir. 1977).
`To that end, transcripts of witness testimony, statements made by government
`attorneys, and any other statements made by or before the grand jury, while in session,
`clearly constitute “matters occurring before the grand jury” or “grand-jury matters” and
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`may not be disclosed, except in conformity with one of the exceptions to Rule 6(e). See
`Douglas Oil, 441 U.S. at 218 (proper functioning of grand jury system depends upon
`secrecy of grand jury proceedings); United States v. Proctor & Gamble, 356 U.S. 677, 682
`(1958); United States v. Diaz, 236 F.R.D. 470 (N.D. Ca. 2006) (exchanges between grand
`jurors and prosecutors are “matters occurring before the grand jury”). As this Court has
`recognized, Rule 6(e)’s considerations and the reasoning of Douglas Oil remain
`informative and relevant here. (Doc. 844 at 9.) In camera review is an appropriate means
`of implementing Rule 6(e)’s provision for discrete and limited review.
`II.
`An Even Higher Standard Applies to Motions to Dismiss Based on Alleged
`Failure to Properly Instruct the Grand Jury.
`Defendants’ request is based on the flawed premise that the government is under a
`strict obligation to instruct the grand jury on the law as it relates to an indictment. In fact,
`the Ninth Circuit has long held that the government has no obligation to provide legal
`instructions to a grand jury. United States v. Larrazolo, 869 F.2d 1354, 1359 (9th Cir.
`1989) (the prosecutor has no duty to outline the elements of the crime as long as the
`elements are at least implied and the instructions are not flagrantly misleading), overruled
`on other grounds by Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989); United
`States v. Kenny, 645 F.2d 1323, 1347 (9th Cir. 1981) (rejecting argument that grand jury
`should receive jury instructions similar to those given at the end of trial; “[w]e are not
`persuaded that the Constitution imposes the additional requirement that grand jurors
`receive legal instructions”).
`As noted in previous pleadings, Defendants’ argument that an indictment may be
`dismissed due to speculative claims that the grand jury was not correctly instructed does
`not comport with long established law. Under the Bank of Nova Scotia standard, “dismissal
`of the indictment is appropriate only if it is established that the violation substantially
`influenced the grand jury’s decision to indict, or if there is grave doubt that the decision to
`indict was free from the substantial influence of such violations.” 487 U.S. at 256. As the
`Northern District of California recently noted in denying a motion to dismiss for erroneous
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`legal instructions, “[t]he Ninth Circuit has held in no uncertain terms that the Bank of Nova
`Scotia standard sets a high bar for dismissal”:
`
`Only in a flagrant case, and perhaps only where knowing perjury, relating to
`a material matter, has been presented to the grand jury should the trial judge
`dismiss an otherwise valid indictment returned by an apparently unbiased
`grand jury. To hold otherwise would allow a minitrial as to each presented
`indictment contrary to the teaching [of the Supreme Court].
`United States v. Pacific Gas and Electric Co., 2015 WL 9460313, at *2 (N.D. Cal. Dec.
`23, 2015) (PG&E) (quoting United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir.
`1977)). Even “extensive prosecutorial misconduct” before the grand jury may not justify
`dismissal of an indictment. United States v. Navarro, 608 F.3d 529, 539 (9th Cir. 2010)
`(citing Bank of Nova Scotia, 487 U.S. at 263).
`Given this high standard, the Ninth Circuit has held that “[e]rroneous grand jury
`instructions do not automatically invalidate an otherwise proper grand jury indictment.”
`United States v. Wright, 667 F.2d 793, 796 (9th Cir. 1982). Rather, dismissal for improper
`instructions is warranted only where “the conduct of the prosecutor was so ‘flagrant’ it
`deceived the grand jury in a significant way infringing on their ability to exercise
`independent judgment.” Larrazolo, 869 F.2d at 1359. The movant “must show that the
`grand jury’s independence was so undermined that it could not make an informed and
`unbiased determination of probable cause.” Id. And again, the Ninth Circuit has held that
`the government need not even instruct the grand jury on the law, recognizing that “the
`giving of such instructions portends protracted review of their adequacy and correctness
`by the trial court during motions to dismiss, not to mention later appellate review.” Kenny,
`645 F.2d at 1347.
`In Larrazolo, for example, defendants contended that the definition of conspiracy
`offered to the grand jury “neglected to include the requirements of criminal intent and
`knowledge” and therefore “misled the grand jury in [the] explanations of conspiracy law.”
`Larrazolo, 869 F.2d at 1359. Specifically, the prosecutor “characterized the acts of
`[defendants] in loading bales of marijuana as [both] the overt act and evidence of the mens
`rea requirement of conspiracy [,] without finding specific knowledge of the agreement.”
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`Id. Defendants argued that “if complete and proper jury instruction had been given, the
`grand jurors would have found evidence of the mens rea element missing.” Id. But the
`Ninth Circuit held that the erroneous instructions did not require dismissal because
`defendants had not “shown the erroneous instructions influenced the decision to indict or
`created a ‘grave doubt’ that the decision to indict was free from the substantial influence
`of such a violation.” Id.
`Similarly, in PG&E, the court found that the prosecutor’s alleged failure to instruct
`the grand jury on causation, gain or loss and other issues relating to the Alternative Fines
`Act did not meet the high standard for dismissal set forth in Bank of Nova Scotia. 2015
`WL 9460313, at *5-6. Even assuming the defendant was correct, the alleged errors were
`not “‘so flagrant [that they] deceived the grand jury in a significant way infringing their
`ability to exercise independent judgment.’” Id. at *6 (quoting Larrazolo, 869 F.2d at 1359).
`The court reiterated that “the prosecutor need not provide legal instructions to the grand
`jury at all,” and the proceedings did not give the court “grave doubt” that the grand jury’s
`probable cause determination was made with anything other than “independent judgment.”
`Id. See also, e.g., United States v. Dufau, 2017 WL 5349541, at *2 (D. Idaho Nov. 13,
`2017) (following Larrazolo, Wright and Kenny; denying motion to dismiss based on failure
`to instruct grand jury on two essential elements of harboring charge); United States v.
`Chavez, 2002 WL 35649603, at *3 (D.N.M. Nov. 14, 2002) (“a prosecutor is not required
`to provide elements instructions to a grand jury, particularly instructions like those given
`to a petit jury”).
`Larrazolo, PG&E and similar cases demonstrate that erroneous or incomplete legal
`instructions will rarely, if ever, rise to the level of flagrant misconduct sufficient to meet
`the Bank of Nova Scotia’s demanding standard. This has long been the law in other Circuits
`as well. In United States v. Buchanan, 787 F.2d 477, 487 (10th Cir. 1986), for example,
`the court wrote:
`
`Attempt[s] to prevent trial by attacking alleged legal errors in the grand jury
`proceedings [are] generally rejected. An indictment returned by a legally
`constituted and unbiased grand jury, if valid on its face, is enough to call for
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`Case 2:18-cr-00422-SMB Document 1176 Filed 06/23/21 Page 8 of 18
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`trial of the charge on the merits. . . . An indictment may be dismissed for
`prosecutorial misconduct so flagrant that there is some significant
`infringement on
`the grand
`jury’s ability
`to exercise
`independent
`judgment. [¶] Challenges going only to the instructions given to the grand
`jury as to the elements of the offenses are not grounds for dismissal of an
`indictment that is valid on its face.2
`Furthermore, courts have repeatedly held that a conviction at trial, which reflects a
`petit jury’s determination of guilt beyond a reasonable doubt, renders harmless any alleged
`errors that occurred before the grand jury. See, e.g., United States v. Mechanik, 475 U.S.
`66, 67-73 (1986); Navarro, 608 F.3d at 538 (“The petit jury’s verdict establishes that
`probable cause existed.”); United States v. Morgan, 384 F.3d 439, 443 (7th Cir. 2004);
`United States v. Reyes-Echevarria, 345 F.3d 1, 4 (1st Cir. 2003).
` Moreover, as previously argued, the instructions to the grand jury are secret. (Doc.
`812). In United States v. Chambers, 2019 WL 1014850, at *3 (D. Conn. Mar. 4, 2019),
`the court responded to another district court decision allowing for the disclosure of
`instructions to the grand jury, finding:
`
`The Court is not persuaded that such a relaxed approach adequately protects
`the long-recognized goals of grand jury secrecy. . . .[3] Indeed, “[legal]
`instructions [given to the Grand Jury] ..., or the existence of such instructions
`goes to the substance of the charge being laid before the Grand Jury as well
`as how the Grand Jury is to proceed regarding the type and manner of
`produced evidence before the panel.” United States v. Larson, 2012 WL
`4112026, at *5 (W.D.N.Y. Sept. 18, 2012). Accordingly, affording these
`instructions the same level of secrecy as other grand jury materials is, in this
`Court’s view, appropriate.
`Other courts—including those within the Ninth Circuit—have taken a similar view. See,
`e.g., United States v. Stepanyan, 2016 WL 4398281, at *2 (N.D. Cal. Aug. 18, 2016)
`(“courts have uniformly rejected the argument that the government’s instructions or
`remarks to the grand jury are not entitled to secrecy”); United States v. Morales, 2007 WL
`628678, at *4 (E.D. Cal. Feb. 28, 2007) (denying request for release of the grand jury
`instructions).
`
`
`2 United States v. Peralta, 763 F. Supp. 14, 19-21 (S.D.N.Y. 1991), cited by Defendants
`(Mot. at 6), involved the government’s presentation of concededly inaccurate hearsay
`testimony to the grand jury, which was compounded by instructions and responses to grand
`jurors’ questions that “seriously misstated the applicable law” of constructive possession.
` Citing In re Grand Jury Subpoena, 103 F.3d 234, 237 (2d Cir. 1996).
`
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`While Defendants cite three pre-Stepanyan district court cases from California that,
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`with little analysis, take a contrary view (see Mot. at 6), numerous courts around the
`country have concluded that grand jury instructions are subject to traditional presumptions
`of grand jury secrecy. See, e.g., United States v. Barry, 71 F.3d 1269, 1274 (7th Cir. 1995)
`(the “defendant must show particularized need” to obtain grand jury instructions);
`Chambers, 2019 WL 1014850, at *2 (“Although the Second Circuit Court of Appeals has
`not squarely addressed the issue, courts within the Second Circuit Court of Appeals have
`consistently held that obtaining grand jury instructions requires a showing of particularized
`need.”) (citation and quotation marks omitted); United States v. Welch, 201 F.R.D. 521,
`523 (D. Utah 2001) (“The instructions to the grand jury are intimately associated with the
`deliberation and judgement [sic] aspects of the grand jury function. Therefore, the
`instructions are matters occurring before the grand jury and require meeting standards for
`release of grand jury information.”). As this Court previously found, the particularized
`need standard applies to such requests (Doc. 844 at 10)—and Defendants offer nothing
`genuinely new or meritorious in the instant Motion capable of meeting that standard here.
`III. Defendants’ Motion Fails to Overcome the Strong Presumption of Grand Jury
`Regularity.
`Defendants have repeatedly, without success, challenged the SI’s conspiracy and
`Travel Act counts concerning Defendants’ facilitation of prostitution. In October 2019,
`after extensive briefing and oral argument, the Court issued a 23-page Order denying
`Defendants’ Motion to Dismiss the Indictment. (Doc. 793). The Court identified the
`required Travel Act elements and ruled that the SI adequately pleaded those elements:
`
`The [Travel Act] requires [1] use of an interstate facility, [2] with the intent
`to facilitate an unlawful activity, and [3] a subsequent act in furtherance of
`that unlawful activity. Here, the SI alleges Defendants used a website with
`the intent to facilitate prostitution (a criminal activity) and executed
`strategies to further and increase that activity….[¶] …. [The SI] contains the
`elements of the offense charged and fairly informs Defendants of the charges
`against which they must defend.
`(Doc. 793 at 22.) More specifically, the Court found:
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`To obtain a conviction under the Travel Act, the Government must show
`defendants had “specific intent to promote, manage, establish, carry on or
`facilitate one of the prohibited activities.” United States v. Gibson Specialty
`Co., 507 F.2d 446, 449 (9th Cir. 1974); accord United States v. Tavelman,
`650 F.2d 1133, 1138 (9th Cir. 1981) (“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.”); United States v. Polizzi, 500 F.2d 856, 876–77 (9th Cir.
`1974) (Required intent under the Travel Act is “specific intent to facilitate an
`activity which the accused knew to be unlawful under state law.”).
`(Doc. 793 at 15.) After canvassing the SI’s detailed allegations, which span 92 pages, the
`Court concluded that “[t]he alleged facts in the SI, taken as true, establish defendants had
`the specific intent to promote prostitution in violation of the Travel Act. They conspired
`together to do so. The conspiracy was successful and resulted in the fifty ads for
`prostitution that now make up fifty counts of violating the Travel Act.” (Doc. 793 at 20;
`see id. at 21 (according to the SI, Defendants “intended to facilitate prostitution, which is
`a crime. See A.R.S. § 13-3214.”).)
`
`In May 2020, the Court denied Defendants’ follow-on Motion to Dismiss
`Indictment Based on Failure to Allege Necessary Elements of the Travel Act. (Doc. 946.)
`In an 18-page Order, the Court found that “the SI alleges ‘unlawful activity’ for each Travel
`Act Count with adequate specificity to inform Defendants of their charges.” (Doc. 946 at
`11.) The Court wrote that “the SI alleges fifty instances where Defendants posted ads on
`Backpage.com to facilitate specific individual prostitutes or pimps involved in the business
`of prostitution. (SI ¶¶ 200-201.)” (Doc. 946 at 11.) The Court observed that the allegations
`in the SI “almost identically mirror[ ] the Travel Act’s text,” and quoted Paragraph 201 of
`the SI as follows:
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`On or about the dates set forth below, each instance constituting a separate
`count of this Superseding Indictment, in the District of Arizona and
`elsewhere, [Defendants], and others known and unknown to the grand jury,
`use the mail and any facility in interstate and foreign commerce with intent
`to otherwise promote, manage, establish, carry on, and facilitate the
`promotion, management, establishment, and carrying on of an unlawful
`activity, to wit: prostitution offenses in violation of the laws of the State in
`which they are committed and of the United States, including but not limited
`to Title 13, Arizona Revised Statutes, Section 13-3214, and thereafter
`performed and attempted to perform an act that did promote, manage,
`establish, carry on, and facilitate the promotion, management, establishment,
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`and carrying on of the unlawful activity, as follows: [describing instances
`that Defendants published prostitution ads in support of specific individuals,
`businesses, and other groups involved in prostitution]. In violation of 18
`U.S.C. § 1952(a)(3)(A).
`(Doc. 946 at 11.)4
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`The Court then found that the SI contained “the requisite Travel Act elements
`adequately alleged to provide Defendants with notice of the charges against them.” (Doc.
`946 at 12.) The Court readily found that “[t]he 92 detailed pages of allegations directly
`bearing on Defendants’ Travel Act violations surely place them on notice of their
`association with individuals and groups engaged in the business of prostitution.” (Doc.
`946 at 13.) Moreover, the Court again found the SI adequately alleged Defendants had the
`requisite intent to promote or facilitate unlawful activity. (Doc. 946 at 14-16.)
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`The Court’s analysis fit comfortably within settled Ninth Circuit caselaw. As the
`Court noted, SI ¶ 201 “almost identically mirrors the Travel Act’s text.” (Doc. 946 at 11.)
`Numerous decisions in the Ninth Circuit and elsewhere have approved of substantially
`similar Travel Act counts. Tavelman found sufficient a Travel Act indictment that 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.” 650 F.2d at 1138. The court held these allegations “are sufficient
`to state violations of 18 U.S.C. § 1952(a)(3).” Id. See also Turf Center, Inc. v. United
`States, 325 F.2d 793, 794 n.2 (9th Cir. 1963) (affirming conviction in case where Travel
`Act count contained language nearly identical to SI ¶ 201).
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`At least five other Circuits share this view. See, e.g., United States v. Welch, 327
`F.3d 1081, 1090 (10th Cir. 2003) (“As set forth by the Act’s plain language, the elements
`necessary to sustain a Travel Act conviction are (1) travel in interstate or foreign commerce
`or use of the mail or any facility in interstate or foreign commerce, (2) with the intent to
`promote, manage, establish, carry on, or facilitate the promotion, management,
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`4 The cited Arizona statute provides “[i]t is unlawful for a person to knowingly engage in
`prostitution.” A.R.S. § 13-3214(A). A.R.S. § 13-3211(5) defines “prostitution” as
`“engaging in or agreeing or offering to engage in sexual conduct under a fee arrangement
`with any person for money or any other valuable consideration.” The SI made clear that
`“[p]rostitution is illegal in 49 states and in most of Nevada.” (Doc. 230, SI ¶ 33.)
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`establishment, or carrying on of the enumerated unlawful activity, and (3) performance of
`or an attempt to perform an act of promotion, management, establishment, or carrying on
`of the enumerated unlawful activity.”); United States v. Childress, 58 F.3d 693, 719 (D.C.
`Cir. 1995) (essential elements of a Travel Act charge are: “(1) interstate travel or use of a
`facility in commerce (2) with the intent to promote an unlawful activity and (3) that the
`defendant thereafter performed or facilitated the performance of an overt act in furtherance
`of the unlawful activity”); United States v. Muskovsky, 863 F.2d 1319, 1326 (7th Cir. 1988)
`(“A Travel Act violation occurs when a person uses any facility in interstate commerce
`with intent to promote or facilitate an unlawful activity and thereafter promotes or
`facilitates the illegal activity”); United States v. Palfrey, 499 F. Supp. 2d 34, 43 (D.D.C.
`2007) (the Fifth, Seventh, Eighth, Ninth and D.C. Circuits have upheld Travel Act
`convictions “based on virtually identical indictments”).
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`In the instant Motion, Defendants attempt to take another run at this issue. They
`now assert that the indictment must also allege that Defendants committed or intended to
`commit the state law prostitution offenses referenced in the SI. (Mot. at 3-6.) This
`assertion is based on a misreading of the SI and the cases Defendants cite in support.
`First, the SI alleges that Defendants, with an intent to promote or facilitate state law
`prostitution offenses, performed one or more overt acts in furtherance of that unlawful
`activity. (See SI ¶ 201.) That is all that the indictment need allege. Tavelman, 650 F.2d
`at 1138; see also Welch, 327 F.3d at 1092 (“The Travel Act proscribes not the unlawful
`activity per se, but the use of interstate facilities with the requisite intent to promote such
`unlawful activity. An actual violation of [the Utah Commercial Bribery Statute] is not an
`element of the alleged Travel Act violations in this case and need not have occurred to
`support the Government’s § 1952 prosecution.”); 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 . . . Section 1952 does not require
`that the state crime ever be completed.”); United States v. Campione, 942 F.2d 429, 433-
`34 (7th Cir. 1991) (The Travel Act “does not incorporate state law as part of the federal
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`offense” and thus “violation of the Act does not require proof of a violation of state law.”);
`Palfrey, 499 F. Supp. 2d at 43 (“To the extent Defendant is arguing that the Government
`must prove each element of the predicate state offenses, it is well-settled that the
`Government bears no such burden in Travel Act cases. . . . The statute requires only that
`a defendant ‘inten[ded] to . . . promote . . .any unlawful activity,’ not that the defendant
`have completed such unlawful activity.”); id. (“The Indictment must allege the essential
`elements of the offense with which Defenda