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`Case 2:18-cr-00422-SMB Document 1234 Filed 08/24/21 Page 1 of 5
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`GLENN B. McCORMICK
`Acting United States Attorney
`District of Arizona
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`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
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`KENNETH POLITE
`Assistant Attorney General
`Criminal Division, U.S. Department of Justice
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`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
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`No. CR-18-422-PHX-SMB
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`UNITED STATES’ MOTION TO
`PRECLUDE DEFENDANTS’
`ADVICE OF COUNSEL DEFENSE
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`United States of America,
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`Plaintiff,
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`v.
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`Michael Lacey, et al.,
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`Defendants.
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`Case 2:18-cr-00422-SMB Document 1234 Filed 08/24/21 Page 2 of 5
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`Defendants should be precluded from soliciting testimony or otherwise suggesting
`that they relied upon the advice of their attorneys as a defense to the charged offenses.
`Defendants have not waived any applicable attorney-client privilege. Without such a
`waiver—and a subsequent opportunity for the United States to review the information
`Defendants provided to their attorneys to determine whether counsel knew the full scope
`of Backpage’s business practices—black letter law prohibits Defendants from making an
`advice of counsel defense. This includes any argument that Defendants possessed “good
`faith” based on the advice they may have received from their attorneys.
`Defendants’ Recent Disclosures
`I.
`In a recent disclosure, Defendants produced legal memoranda that—on their face—
`appear to be protected by the attorney-client privilege. (Letter from W. Bernstein dated
`July 2, 2021, attached as Exhibit A.) These memoranda—authored by various attorneys—
`include one titled, “Why Village Voice Media’s Backpage.com Service Does Not Create
`Liability for Promoting Prostitution.”1 This 31-page-memorandum was written by
`attorneys at a law firm in St. Louis, Missouri.
`In response to the government’s inquiry regarding whether the disclosure waived
`Defendants’ privilege as to those particular attorneys, defense counsel claimed that there
`was no waiver because the disclosure tracked the Court’s recent Order (Doc. 1169 at 9-
`11). (Email exchange between A. Stone and W. Bernstein, attached as Exhibit. B.) That
`Order analyzed Defendants’ claims that certain statements made by Carl Ferrer were
`privileged. In that context, the Court found that “Defendants have not satisfied their burden
`of establishing an attorney-client relationship and/or attorney-client communications.”
`(Doc. 1169 at 9.) Here, Defendants produced (seemingly) complete legal memoranda
`prepared by their former attorneys. But when the government inquired as to whether
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`1 This memorandum includes, among others, the following sections: “Section 230
`Immunizes Interactive Computer Service Providers From Liability For Third Party
`Content;” “Village Voice Cannot Be Liable Under Missouri Law For Promoting
`Prostitution;” “Backpage.com Is Engaged In Protected Speech;” and “Even If Section 230
`And The Scienter And Remoteness Doctrines Of Criminal Law Did Not Apply, The First
`Amendment Would Prevent Imposition Of Criminal Liability On Village Voice In This
`Situation.”
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`Case 2:18-cr-00422-SMB Document 1234 Filed 08/24/21 Page 3 of 5
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`Defendants were waiving the privilege, Defendants were adamant that they were not. (Ex.
`B at 1) (“the disclosure . . . is not a waiver of a privilege”.) Instead, Defendants claimed
`that they may use legal memoranda at trial to negate the United States’ evidence of criminal
`intent, by arguing that reliance on their attorneys’ advice demonstrates Defendants’ “good
`faith.” (Exs. A & B.)
`Advice of Counsel Defense Isn’t Available Without a Privilege Waiver
`II.
`A trier of fact may consider advice of counsel as a partial defense to disprove a mens
`rea element, but “only upon the showing that [a defendant] made a full disclosure of all
`relevant and material facts to his attorney.” Bisno v. United States, 299 F.2d 711, 719-20
`(9th Cir. 1961). Accordingly, “[t]o qualify for an advice of counsel instruction, the
`defendant must show that there was full disclosure to his attorney of all material facts, and
`that he relied in good faith on the specific course of conduct recommended by the attorney.”
`United States v. Ibarra-Alcarez, 830 F.2d 968, 973 (9th Cir. 1987). When the evidence
`shows that a defendant failed to make a full disclosure of the underlying facts to his
`attorney, then an advice of counsel defense is not available. See id.
`Here, Defendants are explicit that they have not waived any attorney-client
`privilege. (Exs. A & B.) Without doing so, they are precluded from invoking an advice of
`counsel defense. See, e.g., Hunt v. Blackburn, 128 U.S. 464, 470-71 (1888) (when
`defendant entered into a defense which relied upon what her lawyer told her, she waived
`her right to object to him giving his own account); United States v. Bush, 626 F.3d 527,
`539 (9th Cir. 2010) (an advice-of-counsel instruction requires the defendant to show he
`made a full disclosure of all material facts to his attorney); United States v. Pinson, 584
`F.3d 972, 977 (10th Cir. 2009) (when defendant invoked an advice of counsel defense, he
`waived his attorney-client privilege as to all advice received concerning the same subject
`matter); United States v. Workman, 138 F.3d 1261, 1263 (8th Cir. 1998) (attorney-client
`privilege can be implicitly waived by raising an advice of counsel defense). This includes
`any “good faith” arguments based on attorneys’ advice. Ibarra-Alcarez, 830 F.2d at 974
`(no error when trial court refused to instruct the jury on defendant’s good faith reliance on
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`Case 2:18-cr-00422-SMB Document 1234 Filed 08/24/21 Page 4 of 5
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`the advice of counsel, because defendant failed to disclose all the material facts to his
`attorney).
`Accordingly, at trial, Defendants should be precluded from both (a) soliciting
`testimony suggesting that attorneys made statements to Defendants or that Defendants
`relied upon such statements in an attempt to negate intent; and (b) a formal advice-of-
`counsel defense and the associated jury instruction.2 Defendants’ stated “good faith”
`defense—based on attorneys’ advice—appears an attempt to avoid the affirmative
`obligations an “advice of counsel” defense places upon them. Without adhering to these
`obligations, i.e., waiving the privilege and disclosing all their relevant communications
`with the attorneys offering advice, Defendants should be precluded from eliciting
`testimony in this area or making any arguments related to an attorney’s advice.
`III. Conclusion
`Defendants have not waived any attorney-client privileges. Without such a waiver,
`they are precluded from raising either (a) a “good faith” defense based on advice received
`from attorneys, or (b) a formal advice of counsel defense.
`Respectfully submitted this 24th day of August, 2021.
`
`GLENN B. McCORMICK
`Acting United States Attorney
`District of Arizona
`
`s/ Andrew C. Stone
`KEVIN M. RAPP
`MARGARET PERLMETER
`PETER S. KOZINETS
`ANDREW C. STONE
`Assistant U.S. Attorneys
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`2 The Ninth Circuit Manual of Model Criminal Jury Instruction 5.10 Advice of
`Counsel reads:
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`One element that the government must prove beyond a reasonable doubt is
`that the defendant had the unlawful intent to [specify applicable unlawful
`act]. Evidence that the defendant in good faith followed the advice of counsel
`would be inconsistent with such an unlawful intent. Unlawful intent has not
`been proved if the defendant, before acting, made full disclosure of all
`material facts to an attorney, received the attorney’s advice as to the specific
`course of conduct that was followed, and reasonably followed the attorney’s
`recommended course of conduct or advice in good faith.
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`Case 2:18-cr-00422-SMB Document 1234 Filed 08/24/21 Page 5 of 5
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`DAN G. BOYLE
`Special Assistant U.S. Attorney
`KENNETH POLITE
`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 August 24, 2021, I electronically transmitted the attached
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`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/ Marjorie Dieckman
`U.S. Attorney’s Office
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