Case 2:18-cr-00422-SMB Document 1247 Filed 08/30/21 Page 1 of 5
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`Gary S. Lincenberg (admitted pro hac vice)
` glincenberg@birdmarella.com
`Ariel A. Neuman (admitted pro hac vice)
` aneuman@birdmarella.com
`Gopi K. Panchapakesan (admitted pro hac vice)
` gpanchapakesan@birdmarella.com
`BIRD, MARELLA, BOXER, WOLPERT, NESSIM,
`DROOKS, LINCENBERG & RHOW, P.C.
`1875 Century Park East, 23rd Floor
`Los Angeles, California 90067-2561
`Telephone: (310) 201-2100
`Facsimile: (310) 201-2110
`
`Attorneys for Defendant John Brunst
`
`
`
`September 1, 2021
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`
` CASE NO. 2:18-cr-00422-PHX-SMB
`
`DEFENDANT JOHN BRUNST’S
`MOTION FOR A LIMITING
`INSTRUCTION RE: THIRD-PARTY
`EVIDENCE ADDRESSED IN THE
`COURT’S AUGUST 11, 2021 ORDER
`ON THE GOVERNMENT’S MOTION
`IN LIMINE TO DETERMINE
`ADMISSIBILITY OF EVIDENCE
`
`[Oral Argument Requested]
`
`Assigned to Hon. Susan M. Brnovich,
`Courtroom 506
`
`Trial Date:
`
`
`United States of America,
`
`Plaintiff,
`
`vs.
`
`Michael Lacey, et al.,
`
`Defendants.
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` 3744218.2
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`DEFENDANT JOHN BRUNST’S MOTION FOR A LIMITING INSTRUCTION RE THIRD-PARTY EVIDENCE
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`Case 2:18-cr-00422-SMB Document 1247 Filed 08/30/21 Page 2 of 5
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`INTRODUCTION
`Defendant John Brunst (“Brunst”) respectfully moves, pursuant to Federal Rule of
`Evidence 105, for a limiting instruction with respect to certain evidence that the Court
`deemed relevant and admissible in its August 11, 2021 Order (Dkt. 1212, the “Order”) on
`the Government’s Motion in Limine to Determine Admissibility of Evidence (Dkt. 931, the
`“Motion”). The Order provides that certain third-party letters, which purportedly informed
`Defendants that prostitution ads were being posted on the Backpage website, “may be
`admitted for the non-hearsay purpose of showing Defendants’ notice of third parties’
`perceptions of unlawful activity occurring on their website.” Dkt. 1212 at 10. However,
`the Order does not state that the letters are admissible only as to those defendants (if any)
`who received them, nor does it distinguish among the various defendants (or their
`knowledge of the letters) on an individual basis.
`Under controlling Ninth Circuit law, it is “plain error” to permit the jury to impute
`one defendant’s knowledge to another defendant. See Jefferson v. United States, 340 F.2d
`193 (9th Cir. 1965). Accordingly, Brunst seeks a limiting instruction that the third-party
`correspondence is not admissible as to Brunst unless the Government offers proof that
`Brunst received and read any of the third-party letters the Government seeks to admit. See
`Fed. R. Evid. 105 (“If the court admits evidence that is admissible against a party or for
`a purpose—but not against another party or for another purpose—the court, on timely
`request, must restrict the evidence to its proper scope and instruct the jury accordingly.”).
`THE COURT’S RULING ON THE THIRD-PARTY LETTERS AT ISSUE IN
`II.
`THIS MOTION
`The relevant portion of the Order addressing the third-party letters on which Brunst
`seeks a limiting instruction is as follows:
`[L]etters from third parties to Backpage informing them of the large number
`of prostitution ads on their website are relevant to Defendants’ notice and
`thus prove Defendants’ intent to facilitate prostitution under the Travel Act.
`Further, while the letters may not be admitted to prove that the accusations in
`the letters are true, they may be admitted for the non-hearsay purpose of
`showing Defendants’ notice of third parties’ perceptions of unlawful activity
`occurring on their website. The fact numerous third parties informed the
` 3744218.2
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`DEFENDANT JOHN BRUNST’S MOTION FOR A LIMITING INSTRUCTION RE THIRD-PARTY EVIDENCE
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`I.
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`Case 2:18-cr-00422-SMB Document 1247 Filed 08/30/21 Page 3 of 5
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`Defendants of the prostitution ads present on Defendants’ website may be
`validly used to prove that the Defendants had knowledge of the ads’
`existence. Given the Government’s burden to prove that Defendants acted
`‘knowingly,’ the issue of Defendant’s knowledge is a ‘consequential fact.’
`
`Dkt. 1212 at 10.
`III. ARGUMENT
`“It is hornbook law that when knowledge of a fact is required to convict for
`a substantive offense, knowledge is also required to convict for conspiracy to commit the
`substantive offense.” United States v. Dahlstrom, 713 F.2d 1423, 1429 (9th Cir. 1983).
`The Ninth Circuit has reiterated the principle that knowledge cannot be “imputed” to
`co-defendants or alleged co-conspirators on numerous occasions.1
`For example, in Jefferson v. United States, 340 F.2d 193 (9th Cir. 1965), the
`charged offense was the importation of “narcotic drugs . . . or to conspire to deal with such
`drugs knowing that they have been illegally imported.” Id. at 197 (emphasis added). In
`overturning the conviction, the court ruled that “[s]ince [the] substantive offense of dealing
`with such drugs under [18 U.S.C.] Section 174 requires proof of specific knowledge by the
`defendant that the drug was illegally imported, the same specific knowledge is also an
`essential element of the conspiracy to commit such substantive offenses.” Id. (emphasis
`added). Thus, it was “plain error” and “prejudicial to the substantive rights” of the
`defendant for the court to instruct the jury that “the knowledge of one member of the
`conspiracy that the heroin or cocaine had been imported into the United States contrary to
`law was to be imputed to all members of the conspiracy without proof of possession, either
`
`
`1 As Defendants note in their objections to the Government’s proposed jury instructions,
`the Government’s proposed “knowingly” and “deliberate ignorance” instructions would be
`inappropriate here given that the charges involve specific intent crimes. Dkt 1216 at 59,
`63-65. But to the extent the Court allows the Government to put on “general intent”
`evidence (a ruling Defendants believe is erroneous), like letters and statements from third
`parties purportedly apprising them of Backpage’s unlawful and illicit activities, there is no
`basis for such evidence to be admissible against Brunst.
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`DEFENDANT JOHN BRUNST’S MOTION FOR A LIMITING INSTRUCTION RE THIRD-PARTY EVIDENCE
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`Case 2:18-cr-00422-SMB Document 1247 Filed 08/30/21 Page 4 of 5
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`actual or constructive.” Id.2 Other Circuits agree that it is, “an erroneous statement of
`legal principle” to hold that “if any one defendant had the requisite knowledge, it could be
`imputed to the other defendants for purposes of the conspiracy count.” See, e.g., United
`States v. Tavoularis, 515 F.2d 1070, 1074–77 (2d Cir. 1975) (where it was “an essential
`element of a crime under that statute that the defendant had knowledge that the property he
`possessed was stolen from a bank,” the “requisite knowledge cannot be imputed from one
`aider and abettor or conspirator to another”).
`Here, the third-party correspondence addressed to Backpage that the Court has
`preliminarily allowed in as evidence is not admissible against Brunst, given there is no
`evidence that Brunst received, read, or was even told the content of the letters. Therefore,
`Brunst is entitled to a limiting instruction that the third-party letters addressed in the Order
`are inadmissible as to him unless the Government proves his knowledge of them at trial. It
`would be prejudicial and reversible error to permit the jury to “impute” to Brunst whatever
`knowledge (if any) others had of this correspondence.
`IV. CONCLUSION
`For the foregoing reasons, Brunst respectfully requests a limiting instruction that the
`third-party correspondence the Court has preliminary admitted in the Order is not
`
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`2 See also Dahlstrom, 713 F.2d at 1429 (“The government’s failure to present evidence
`as to the appellants specific intent to violate the underlying substantive count [for
`impeding the IRS in the collection of income taxes] requires us to set aside the convictions
`premised upon 18 U.S.C. § 371.”); Hernandez v. United States, 300 F.2d 114, 120 (9th Cir.
`1962) (“Clearly, the defendant could not be found to have the knowledge necessary to
`make him a part of the conspiracy to violate [18 U.S.C.] Section 174 on the basis of
`a presumption from possession by [co-defendant], which possession, in turn, would be
`imputed to the defendant because he had entered into a conspiracy with [co-defendant] to
`violate Section 174. Obviously such an argument would be circular.”); United States v.
`Bagby, 451 F.2d 920, 929 (9th Cir. 1971) (“[I]nferences [of knowledge] can be drawn only
`against those particular defendants who are found by the jury to have had possession,
`either actual or constructive.”); see also United States v. Eaglin, 571 F.2d 1069, 1074 (9th
`Cir. 1977) (for purposes of criminal statute requiring that defendant “‘willfully’ harbored
`or concealed an escaped federal prisoner,” trial court properly instructed that a defendant
`could not be convicted unless it was shown beyond a reasonable doubt that “such
`defendant knew” that [the individual in question] was an escaped prisoner”).
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`DEFENDANT JOHN BRUNST’S MOTION FOR A LIMITING INSTRUCTION RE THIRD-PARTY EVIDENCE
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`Case 2:18-cr-00422-SMB Document 1247 Filed 08/30/21 Page 5 of 5
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`admissible as to Brunst absent proof that he had actual knowledge of the letters.
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`DATED: August 30, 2021
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`Respectfully submitted,
`
`Gary S. Lincenberg
`Ariel A. Neuman
`Gopi K. Panchapakesan
`Bird, Marella, Boxer, Wolpert, Nessim,
`Drooks, Lincenberg & Rhow, P.C.
`
`By:
`
`/s/ Gary S. Lincenberg
`Gary S. Lincenberg
`
`Attorneys for Defendant John Brunst
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` 3744218.2
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`DEFENDANT JOHN BRUNST’S MOTION FOR A LIMITING INSTRUCTION RE THIRD-PARTY EVIDENCE
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