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`Case 2:18-cr-00422-SMB Document 1275 Filed 09/07/21 Page 1 of 19
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`
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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
`
`KENNETH POLITE
`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
`
`
`No. CR-18-422-PHX-SMB
`
`
`UNITED STATES’ RESPONSE TO
`DEFENDANTS’ MOTION FOR
`ACQUITAL OR MISTRIAL
`(Doc. 1272)
`
`
`
`
`United States of America,
`
`
`
`Plaintiff,
`
`
`v.
`
`
`Michael Lacey, et al.,
`
`
`
`Defendants.
`
`
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`Case 2:18-cr-00422-SMB Document 1275 Filed 09/07/21 Page 2 of 19
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`Preliminary Statement
`Defendants seek an acquittal or mistrial based on an opening statement that largely
`previewed the trial evidence that supports the allegations in the Superseding Indictment
`(Doc. 230, SI). Allegations that Defendants have known for over three years. Allegations
`that this Court has already found “show Defendants had a specific intent to promote
`prostitution.” (Doc. 793 at 19.) The question before the jury will be whether the evidence
`supports the United States’ allegations and proves guilt beyond a reasonable doubt.
`In response to the United States’ preview of the evidence, Defendants argue they
`can’t “un-ring this bell.” (Sept. 3, 2021 Trial Transcript (Tr.) at 59:19.) But that “bell”
`will be continually rung throughout the United States’ case-in-chief. Indeed, that “bell”
`summarizes several significant pieces of evidence against Defendants—including
`Defendants’ deliberate execution of several prostitution-marketing strategies purposefully
`designed to increase their website’s revenues and facilitate their customers’ prostitution
`businesses. These strategies, all detailed in the opening statement, included content
`aggregation (publishing free prostitution ads in attempt to capture new business), reciprocal
`link agreements (including a longstanding relationship with the explicit prostitution review
`website The Erotic Review, which for years served as the number one source of outside
`referrals for Backpage), paying commissions or offering discounts to high-volume
`prostitution advertisers (super-posters or super-affiliates like Dollar Bill, New York
`Platinum, and Sean Kim), “moderation” (which sanitized overly-blatant prostitution ads
`without changing the true meaning of what they offered for sale), and money laundering
`schemes designed to conceal the true source of Backpage’s revenues and fool financial
`institutions. (See generally Tr. at 13-55.)
`Throughout the last three years of intense pretrial litigation, Defendants never
`seriously addressed any evidence concerning their prostitution-marketing strategies. In the
`instant motion, Defendants studiously avoid discussing this evidence. Rather, Defendants
`continue to take the exceedingly narrow view that they can only be liable if they had
`specific knowledge of each individual ad. (See, e.g., Mot. at 1.) Defendants are wrong.
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`The trial evidence will show that Defendants worked together (and conspired with others)
`to facilitate prostitution by publishing the ads in Counts 2-51 and similar ads. And if a
`Defendant may not have personally been aware of the specifics of each ad or may not have
`been personally involved in the ad’s publication process (Backpage employed dozens of
`low-level moderators to individually review ads before publication), it was reasonably
`foreseeable—in light of the policies and strategies Defendants deliberately implemented as
`part of the conspiracy charged in Count 1—that such violations would be committed in
`furtherance of the conspiracy. The Court’s prior Orders—and its Preliminary Jury
`Instructions—recognize that Defendants can be found guilty under precisely this theory.
`(See Doc. 793 at 14-20; Doc. 946 at 11-16; Preliminary Jury Instructions at 3-4.)
`Defendants may not like the evidence, but that doesn’t change the testimony and
`exhibits that will be presented over the next two months. Defendants know this. That’s
`one of the reasons why the docket includes over 1200 pretrial filings. The Court has made
`rulings on the admissible evidence. Both sides had motions granted and denied on a variety
`of evidentiary issues. Neither side is permitted to introduce all the evidence it, he, or she,
`believes to be helpful to their respective cases. All parties now must try this case under
`these rulings. Relitigating every previous issue is neither permitted nor practical.
`As explained below, Defendants’ various grounds for seeking an acquittal or
`mistrial lack merit, and Defendants’ motion should be denied.
`Argument
`An Opening Statement Does Not Require a Comprehensive Count-by-Count
`Summary of Anticipated Evidence.
`Defendants assert that if the opening statement does not relate the evidence to each
`
`and every charge in the SI, the United States has waived its right to proceed and an acquittal
`or mistrial should result. (Tr. 82 at 4-10, 17-20; Tr. 84 at 3-4; Mot. at 13-14.) Particularly
`in a case like this—which involves a 92-page SI charging 100 counts concerning a multi-
`defendant conspiracy that spanned 14 years—Defendants are wrong. In a case of this
`
`I.
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`magnitude, summarizing the evidence on all charged counts in a two-hour opening
`statement is neither practical nor required.
`
`The Federal Rules of Criminal Procedure do not require or even mention opening
`statements. Compare Fed. R. Crim. P. 29.1 (addressing closing arguments); see LRCiv.
`39.1(b) (any party may decline to make an opening statement). The purpose of the opening
`statement “is to state what evidence will be presented and to make it easier for jurors to
`understand what is to follow, and to relate parts of the evidence and testimony to the
`whole.” Testa v. Village of Mundelein, III., 89 F.3d 443, 446 (7th Cir. 1996) (citing United
`States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J., concurring)); see United States v.
`Stanfield, 521 F.2d 1221, 1225 (9th Cir. 1975) (opening statement “has the practical
`purpose of directing the attention of the jurors to the nuances of the proposed evidence in
`such a way as to make the usual piecemeal presentation of the testimony more
`understandable as it is received”).
`
`The prosecutor is not required in an opening statement to recite the evidence he
`intends to offer to establish every element of each offense that a defendant is charged with
`in the indictment. United States v. Graham, 146 F.3d 6, 10 (1st Cir. 1998); see also United
`States v. Ingraldi, 793 F.2d 408, 414 (1st Cir. 1986) (“[A] defendant has no right to have
`the government outline in detail in its opening all the evidence it intends to introduce. An
`opening statement is not evidence and it is usually left to the prosecutor to decide how
`elaborate it will be. Indeed, there is no obligation on the part of the government to make
`an opening statement at all . . . .”). Cf. Rose v. United States, 149 F.2d 755, 758 (9th Cir.
`1945) (affirming the denial of motion to dismiss based on allegedly insufficient evidence
`summarized in an opening statement; such a motion may be granted only when the opening
`statement affirmatively shows the government has no cause of action, and only after the
`prosecutor is given an opportunity to correct or supplement). The Court should reject
`Defendants’ broad claim that an acquittal or mistrial should be declared simply because the
`opening statement did not provide an outline sufficiently acceptable to Defendants.
`
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`Case 2:18-cr-00422-SMB Document 1275 Filed 09/07/21 Page 5 of 19
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`II.
`
`Defendants’ Argument on Specific Intent Is Unavailing.
`Defendants claim “the single biggest issue” with the United States’ opening
`statement relates to mens rea. (Tr. 78 at 1-7; see also Mot. at 1, 8-9, 11-12.) Defendant
`Larkin’s counsel stated:
`But [the United States] never said, and I’m going to show you that they had
`specific knowledge and intent of this ad right here, it’s count 22 in the
`indictment, and they purposefully let it be published so they could help this
`prostitute’s business venture. That’s what you have said the case should be.
`(Tr. 78 at 12-16.)
`This misstates the law. This is an issue the parties have litigated, and the Court has
`decided. In one of Defendants’ motions to dismiss, they made the same claim, arguing that
`“[e]ven if the defendants knew of any particular business enterprise engaged in prostitution
`offenses in violation of state law, they could not have specifically intended to promote such
`a business enterprise . . . without knowing about a particular ad and having some role in
`the publication of the ad—and the Superseding Indictment contains no such allegation with
`respect to Mr. Brunst or any of the other defendants.” (Doc. 746 at 15.)
`The Court denied Defendants’ motion and specifically found that—based on the
`SI’s allegations—“each Defendant had the requisite specific intent to promote an unlawful
`activity in violation of the Travel Act on fifty occasions.” (Doc. 946 at 15, citing Doc. 793
`at 15.) In a previous Order, the Court held: “The alleged facts in the SI, taken as true,
`establish defendants had the specific intent to promote prostitution in violation of the
`Travel Act.” (Doc. 793 at 20.) In that Order, the Court walked Defendants through all the
`allegations in the SI, finding Defendants’ “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 19-20; see also Doc. 946 at 16 (“The SI plainly alleges Defendants specifically
`intended to facilitate prostitution businesses by publishing the ads.”).)
`The Court has now, on several occasions, informed Defendants that—if proven
`true—the allegations in the SI are sufficient to prove Defendants’ guilt of the crimes
`charged. (Doc. 793 at 19-20; Doc. 946 at 15-16.) These allegations relate to prostitution-
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`marketing “strategies Backpage used to attract more prostitution ads.” (Doc. 793 at 4.)
`The United States focused on these “strategies” in its opening statement. First, the
`prosecution discussed “content aggregation.” (Tr. at 13:16-15:20; see Tr. at 14:23-25
`(“[C]reating prostitution ads on Backpage with the content aggregation process was
`successful in generating revenue for the company.”).) Next, the United States outlined
`Defendants’ reciprocal link agreement with The Erotic Review. (Tr. at 16:15-19:6.)
`“Evidence will show that The Erotic Review is the prostitution review site where buyers
`of sex could rate their experiences with prostitutes, including their sexual encounters with
`them.” (Tr. at 16:20-23.) “[F]or the month of January 2009, evidence will show that The
`Erotic Review was responsible for more than 500,000 visits to Backpage.” (Tr. at 18:15-
`17.) The United States then discussed Defendants’ relationships with super affiliates. (Tr.
`at 19:7-20:10.) “Evidence will show that a super poster or a super affiliate were individuals
`who owned local prostitution businesses, and in some cases, evidence will show, paid
`hundreds of thousands of dollars in order to promote their prostitution businesses in the
`adult services section Backpage.com.” (Tr. at 19:14-19.) Finally, the United States
`discussed Defendants’ moderation practices. (Tr. at 20:11-27:19.) “[L]et’s look at a few
`e-mails and documents, internal documents that show that instead of preventing these ads
`from being posted on Backpage.com, they were instructed by these defendants to conceal
`the fact that prostitution ads were rampant on Backpage.” (Tr. at 20:23-21:2.)
`These are all “strategies Backpage used to attract more prostitution ads.” (Doc. 793
`at 4.) This Court has found that if the government can produce evidence proving these
`prostitution-marketing strategies beyond a reasonable doubt, then it will have proven
`“Defendants specifically intended to facilitate prostitution business by publishing the ads.”
`(Doc. 946 at 16.) The United States recognizes that it must demonstrate each of the six
`Defendants had specific intent to facilitate the promotion of the prostitution business
`enterprises1 listed in Counts 2-51, but, as the Court has ruled, it may do so through evidence
`
`1 Defendants, yet again, focus too narrowly on the phrase “business enterprises.”
`The Court has already ruled that “business enterprises” simply means “showing ‘a
`continuous course of criminal conduct.’” (Doc. 946 at 10) (citations omitted.) And proving
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`related to Defendants’ participation in planning and/or carrying out these internal
`strategies. (Doc. 793 at 19-20; Doc. 946 at 15-16.)
`Moreover, specific intent can be inferred from numerous additional facts the
`prosecution highlighted for the jury in the opening statement.2 These include, inter alia:
`
`
`a “continuous course of conduct” isn’t a high bar. (Doc. 946 at 11, n.1) (citing United
`States v. Monu, 782 F.2d 1209, 1211 (4th Cir. 1986) (reasoning that a “triple beam balance
`scale” was sufficient to “indicate[] that [the defendant’s] receipt of the heroin as part of an
`ongoing enterprise, rather than an isolated instance of criminal conduct”); United States v.
`Tavelman, 650 F.2d 1133, 1140 (9th Cir. 1981) (“Considering the quantity of cocaine
`involved in the prior transaction proved at trial, the jury could reasonably find a continuous
`course of criminal activity.”).) “Neither evidence of large-scale operations nor long-term
`duration is required to support a Travel Act conviction. Instead, what must be shown is
`evidence of a continuous enterprise and one act in interstate commerce in furtherance of
`that enterprise.” Tavelman, 650 F.2d at 1140.
`2 As the United States has explained elsewhere:
`[T]here are many independent ways of proving that a seller of goods or
`services (including a website operator) intended to facilitate unlawful
`activity. See, e.g., People v. Lauria, 59 Cal. Rptr. 628, 632-33 (Cal. Ct. App.
`1967) (a seller’s intent to facilitate prostitution may be inferred from, inter
`alia: (1) “proof . . . of inflated charges” for goods or services used for
`prostitution; (2) “evidence of any unusual volume of business with
`prostitutes,” such as where “sales for illegal use amount to a high proportion
`of the seller’s total business”; or (3) sales that “serve no other purpose than
`to advertise the professional services of the prostitutes”); Wayne R. LaFave,
`2 Substantive Criminal Law (SUBCRL) § 12.2(c)(3), Providing goods or
`services, (3d ed., Oct. 2020 update) (intent may also be inferred from “the
`fact that the seller has made inflated charges, that he has supplied goods or
`services which have no legitimate use, [] that the sales to the illegal operation
`have become the dominant proportion of the seller’s business,” or the seller’s
`use of deceptive or “secretive” tactics). . . . Moreover, no inference of intent
`is needed in cases involving “[d]irect evidence of participation, such as
`advice from the supplier of legal goods or services to the user of those goods
`or services on their use for illegal purposes.” Lauria, 59 Cal. Rptr. at 632.
`Furthermore, a website operator may be found to have the requisite intent
`when the defendant’s website was designed or tailored to further illegal
`activity. See, e.g., United States v. Ulbricht, 31 F. Supp. 3d 540, 556
`(S.D.N.Y. 2014) (“The Indictment does not allege that Ulbricht is criminally
`liable simply because he is alleged to have launched a website that was—
`unknown to and unplanned by him—used for illicit transactions. . . . Rather,
`Ulbricht is alleged to have knowingly and intentionally constructed and
`operated an expansive black market for selling and purchasing narcotics and
`malicious software and for laundering money. This separates Ulbricht’s
`alleged conduct from the mass of others whose websites may—without their
`planning or expectation—be used for unlawful purposes.”)[.]
`(Doc. 1216-3 at 200-201.)
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`Case 2:18-cr-00422-SMB Document 1275 Filed 09/07/21 Page 8 of 19
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`• Defendants’ website generated the overwhelming majority of its revenue—
`approximately 94%—from the sale of prostitution ads, including fees charged for
`upgrades that increased the ads’ visibility (e.g., Tr. at 9:8-10:1; Tr. at 12:11-23;
`24:5-10; Tr. at 30:9-20).
`• Defendants devised a number of deceptive business strategies, including moderation
`(Tr. at 20:18-18 (moderation was designed “to conceal the fact that prostitution ads
`were rampant all over the website” without changing the true nature of what was
`being offered)), hiding facts about their prostitution-facilitation business practices
`from third parties like NCMEC and the media (e.g., Tr. at 33:22-24, 35:22-36:2),
`and money laundering and other strategies that concealed the source of their
`revenues or were calculated to fool financial institutions (e.g., Tr. at 47:16-48:4).
`• Defendants allowed a known prostitute, Licks Alot, to continue to advertise on
`Backpage, and gave her free upgrades after she complained that certain images and
`text had been deleted from her ads. (Tr. at 34:15-35:5.)
`• Defendants published numerous “GFE” (Girlfriend Experience) ads, which they
`knew advertised sex-for-money. (Tr. at 10:9-18, 27:20-28:11.)3
`In addition, there is another available path for this jury to find each individual
`Defendant guilty—Pinkerton liability. This Court has already instructed the jury that it
`may find a given defendant guilty of the Travel Act as charged in Counts 2-51 if the United
`States has proved each of the following elements beyond a reasonable doubt:
`First, a member of the conspiracy committed the Travel Act offense
`as alleged in that count;
`Second, the person was a member of the conspiracy charged in Count
`1 of the indictment;
`Third, the person committed the Travel Act offense alleged in
`furtherance of the conspiracy;
`
`
`3 Counts 27-51 of the SI all involve GFE ads. (Doc. 230 at 53-55.)
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`Fourth, the defendant was a member of the same conspiracy at the
`time the offense charged in Counts 2-51 was committed; and
`Fifth, the offense fell within the scope of the unlawful agreement and
`could reasonably have been foreseen to be a necessary or natural
`consequence of the unlawful agreement.
`(Preliminary Jury Instructions at 4.)
`As this Court has recognized, the SI “alleges Defendants conspired with third
`parties, such as P.R. and Dollar Bill, to promote prostitution and edited other prostitution
`ads to ‘conceal their true nature.’” (Doc. 793 at 18.) The government anticipates the
`evidence will show, and it will argue during its closing, that each Defendant is guilty of all
`fifty Travel Act counts because they were conspiring with the pimps and prostitutes who
`posted the ads referenced in Counts 2-51. Moreover, the evidence will show that
`Defendants conspired with other Backpage officers and employees, including Carl Ferrer
`and Dan Hyer, and with Backpage (a co-conspirator in its own right), in publishing the
`subject ads. (Cf. Doc. 1212 at 3 (“[T]he Court finds that there is sufficient evidence to
`conclude that the government will be able to prove the existence of a conspiracy between
`Backpage, Carl Ferrer, Dan Hyer and each of the individual Defendants in this case at
`trial.”).) The jury will have an opportunity to determine if the United States carried its
`burden on these charges. Defendants’ attempted re-argument of these issues, which have
`already been extensively litigated in this case, is without merit.
`III. Defendants’ Rule 404(b) Assertions Miss the Mark.
`
`Defendants assert that evidence presented during the United States’ opening
`statement involved ads and other images of “uncharged conduct” subject to Fed. R. Evid.
`404(b)(3). (See Mot. at 10-11.) This assertion is unavailing for several reasons.
`
`First, the United States disclosed all of the exhibits featured in its opening statement
`PowerPoint to the Defendants 24 hours in advance, as the Court directed. The PowerPoint
`included screen shots and images from the video of the Sacramento portion of the
`Backpage website created by California Department of Justice Special Agent Supervisor
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`•
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`Brian Fichtner on March 6, 2015 (Exhibit 489-a). Defendants and the Court have seen this
`recording, and the Court has already deemed the video relevant and admissible. (Doc.
`1212 at 18 (“The Court finds that the video may be admitted at trial if Agent Fichtner is
`able to lay the proper foundation at trial. The video is highly relevant to the charged
`crimes.”).) In addition to screen shots from that video, the opening statement included,
`inter alia, the following previously-disclosed exhibits:
`
`
` Ads associated with the following charged counts in the SI, or ads otherwise
`discussed in the SI, including:
`
`o Exhibit 1632 (Count 2 ad)
`o Exhibit 214-a (Count 5 ad)
`o Exhibit 1735 (Count 31 ad)
`o Exhibit 1724 (Count 34 ad)
`o Exhibit 1725 (Count 35 ad)
`o Exhibit 93-a (Licks Alot ad referenced in SI ¶ 91).
`• Other images (Exhibits 58-a and 103-a) consisting of attachments to emails that
`Defendants sent and received during the conspiracy.
`These exhibits may be admitted at trial as proof related to the charged Travel Act
`
`conspiracy and/or to the individual Travel Act counts referenced above, and the United
`States had a good faith basis for using these exhibits during its opening statement. The
`Ninth Circuit has recognized that two categories of evidence can be “inextricably
`intertwined” with charges such that a Rule 404(b) analysis is not necessary: “First,
`evidence of prior acts may be admitted if the evidence ‘constitutes a part of the transaction
`that serves as the basis for the criminal charge.’ Second, prior act evidence may be
`admitted ‘when it was necessary to do so in order to permit the prosecutor to offer a
`coherent and comprehensible story regarding the commission of the crime.’” United States
`v. DeGeorge, 380 F.3d 1203, 1220 (9th Cir. 2004) (citations omitted).
`
`Regarding the first category, “‘[t]he policies underlying rule 404(b) are inapplicable
`when offenses committed as part of a single criminal episode become other acts simply
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`because the defendant ‘is indicted for less than all of his actions.’” United States v.
`Vizcarra–Martinez, 66 F.3d 1006, 1012 (9th Cir. 1995) (citation omitted); see also United
`States v. Williams, 989 F.2d 1061, 1070 (9th Cir. 1993) (“Evidence should not be
`considered ‘other crimes’ evidence when the evidence concerning the other act and the
`evidence concerning the crime charged are inextricably intertwined.”); United States v.
`Gilmore, 811 F. App’x 997, 999 (9th Cir. 2020) (“the district court did not abuse its
`discretion in refusing to suppress as trial evidence the methamphetamine found in
`appellant’s pocket, finding that it was inextricably intertwined with the methamphetamine
`in the spare tire”). Regarding the second category, the Ninth Circuit has long recognized
`“it is obviously necessary in certain cases for the government to explain either the
`circumstances under which particular evidence was obtained or the events surrounding the
`commission of the crime.” Vizcarra–Martinez, 66 F.3d at 1012.
`
`Here, the ads and other images at issue all constitute intrinsic evidence of the crimes
`charged, and thus Rule 404(b) doesn’t apply. The ads referenced above correlate to specific
`charged counts, are discussed in the SI in connection with Defendants’ efforts to facilitate
`their customers’ prostitution enterprises, or appear in the Fichtner video showing how the
`Sacramento section of the Backpage website appeared in March 2015. These ads were
`published on Defendants’ website during the course of the charged conspiracy from 2004
`to 2018. The images are part of the scheme to facilitate prostitution charged under the
`Travel Act and are decidedly relevant to the charged conspiracy. The ads that correspond
`to specific counts are likewise relevant, probative evidence of the charged conduct. The
`emails and attachments that detail aspects of Defendants’ “moderation” practices likewise
`show that Defendants’ publicly-touted efforts to filter out illegal content was a fiction. (See
`Doc. 516-1.) They do not relate to “other acts.”
`
`And even if these images, emails and attachments do not qualify for admission as
`intrinsic evidence, their admission is necessary to permit the prosecution to offer a coherent
`and comprehensible story regarding Defendants’ commission of the charged offenses.
`These materials are part and parcel of the narrative showing that Defendants deliberately
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`pursued numerous business strategies in an attempt to corner the market for online
`prostitution ads in the United States. That narrative that counters Defendants’ assertion
`(made to courts, public safety organizations, governmental bodies, media entities and
`others over the last decade) that Backpage merely served as a passive host of third-party
`content, and that the use of Backpage for criminal purposes occurred by pure happenstance.
`
` In short, these materials are relevant, referenced in the SI, and included on the
`United States’ exhibit list, and they were disclosed to Defendants in discovery. The United
`States intends to seek their admission at trial. For all these reasons, Defendants’ Rule
`404(b) objections are misplaced.
`IV. Defendants’ Arguments re Defendant Lacey’s Statement Are Unavailing.
`On Friday afternoon, Defendants complained that the United States failed to
`disclose witness Nacole Svendgard’s statement about Defendant Michael Lacey as
`“something they planned to use.” (Tr. 72:23-25.) The United States produced the
`statement. (Doc. 1267 at Exs. C, D, G.) Nothing more is required. This issue, like many
`of Defendants’ other complaints, has already been litigated. Judge Logan denied
`Defendants’ Motion for Itemization of Brady/Giglio Material. (Motion at Doc. 273; Order
`at Doc. 339.) In that motion, Defendants made the exact argument they repeat here—
`specifically, that the United States was obligated to provide an itemized list of Brady
`material, because without it “Defendants will not have equal access to discovery.” (Doc.
`339 at 2.) The Court denied the motion, finding that “the Government is under no general
`obligation to identify Brady or Giglio material within voluminous discovery.” (Id. at 5.)
`Here, Ms. Svendgard’s statement is neither Brady nor Giglio, but was disclosed in
`accordance with Rule 16.4
`
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`4 After losing their request for the United States to itemize Brady and Giglio
`materials, Defendants now want to expand this (non-existent) duty for the United States to
`itemize Rule 16 discovery. Rule 16(a)(1)(B) obligates the United States to “disclose . . .
`any relevant statement by the defendant.” That’s what the United States did. (Doc. 1267
`at Exs. C, D, G.) Any argument that the prosecution needed to itemize this statement or
`somehow call it to Defendants’ attention beyond disclosure isn’t supported by the Rule or
`the law of the case.
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` After reviewing the United States’ recent filing, Defendants now change their
`argument to complain that the government distorted the evidence. Defendants rely on the
`302 to suggest that Lacey’s statement was actually directed to reporters, rather than Ms.
`Svendgard. (Mot. at 16.) The United States believes in good faith that Ms. Svendgard will
`testify consistently with how it characterized Lacey’s statement in the opening. Of course,
`Defendants are free to cross examine Ms. Svendgard on this issue.5
`V.
`The Prosecution Did Not Comment on Defendants’ Right to Remain Silent.
`
`Defendants’ assertion that the prosecution’s reference to the June 2011 meeting
`between Backpage representatives and the Washington Attorney General’s Office
`improperly commented on their right to remain silent lacks merit. (See Mot. at 5-6, 16-
`17.) “It is well established that the privilege against self-incrimination prohibits a
`prosecutor
`from
`commenting
`on
`a
`defendant’s
`failure
`to
`testify.” United States v. Castillo, 866 F.2d 1071, 1083 (9th Cir. 1988) (citing Griffin v.
`California, 380 U.S. 609, 615 (1965)). While a prosecutor’s direct comment about the
`defendant’s failure to testify always violates Griffin, a prosecutor’s indirect comment
`violates Griffin only “if it is manifestly intended to call attention to the defendant’s failure
`to testify, or is of such a character that the jury would naturally and necessarily take it to
`be a comment on the failure to testify.” Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987).
`And, even where a Griffin error is established, the error is harmless unless the offending
`comments are “extensive, [ ] an inference of guilt from silence is stressed to the jury as a
`basis for the conviction, and [ ] there is evidence that could have supported
`acquittal.” Hovey v. Ayers, 458 F.3d 892, 912 (9th Cir. 2006).
`
`
`5 Defendants also complain about a late disclosure. (Mot. at 16.) First, Defendants
`received this disclosure on June 25, 2021—over two months before trial commenced.
`(Doc. 1267-7.) Second, as Defendants noted, the United States discovery in this case
`involved millions of pages (Tr. 83:20-24), and only a tiny percentage of that discovery was
`produced in the months leading up to trial. Third, since July 1, 2021, Defendants have
`disclosed nearly 18,000 pages of discovery to the government—a number that far exceeds
`the United States’ di