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`Case 2:18-cr-00422-SMB Document 1326 Filed 09/23/21 Page 1 of 15
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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 TO
`COMPEL BRADY (CR 1281)
`
`[REDACTED FOR PUBLIC
`DISCLOSURE]
`
`
`
`
`United States of America,
`
`
`
`Plaintiff,
`
`
`v.
`
`
`Michael Lacey, et al.,
`
`
`
`Defendants.
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`
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`Case 2:18-cr-00422-SMB Document 1326 Filed 09/23/21 Page 2 of 15
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`Preliminary Statement
`In a thirteenth-hour attempt to relitigate issues squarely decided by Judge Logan
`years ago, Defendants have filed a Motion to Compel Brady (CR 1281) that asks the Court
`to conduct a second in camera review of two inadvertently-disclosed work-product
`memoranda. [REDACTED THROUGH LINE 12]]
`
`
`
`
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`
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`In an effort to circumvent the Court’s ruling, Defendants now assert that the
`government’s case has “evolved.” As explained below, that assertion lacks merit. The
`92-page Superseding Indictment (Doc. 230, “SI”) lays out the basis for the United States’
`case. The United States’ recent opening statement and pleadings are based on exactly the
`same factual allegations and legal theories set forth in the SI, and there is no reason to
`reconsider Judge Logan’s order, which remains law of the case.1
`Defendants’ motion more broadly seeks “all materials” or “all evidence” that “the
`government obtained in the WDWA proceeding” (Mot. at 1, 4), notwithstanding Judge
`Logan’s finding that [REDACTED]. On
`
`
`is
`the United States’ case
`1 Moreover, Defendants’ characterization of
`fundamentally incorrect. (Mot. at 1.) As the United States has stated elsewhere, the jury
`is entitled to consider both the text and context of Backpage’s ads in determining the nature
`of the services offered, including the use of coded prostitution terms (e.g., “incall,”
`“outcall,” “quickie,” “car service,” “roses,” “GFE,” and references to being “new in town”
`or “in town” only briefly), prices tied to short time increments, nude or semi-nude images,
`references to well-known prostitution review websites like The Erotic Review, and other
`evidence. (See, e.g., CR 1216-3 at 185-87.) The United States likewise does not advance
`a “strict liability” theory; rather, its legal theories are described in its proposed jury
`instructions, which are based on the allegations and charges contained in the SI, including
`the SI’s conspiracy, Travel Act and Money Laundering counts. (See generally CR 1216-
`3; CR 230.)
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`Case 2:18-cr-00422-SMB Document 1326 Filed 09/23/21 Page 3 of 15
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`July 22, 2021, Defendants asked the United States to produce those materials pursuant to
`Brady and Giglio, and the United States responded on August 2, 2021. (See Mot., Ex. I.)
`As explained by the United States, the WDWA Investigation materials are neither
`exculpatory nor material for numerous reasons—not the least because of significant
`evidentiary developments that have transpired in the nearly 10 years since that
`investigation concluded, and that form the basis of this case. (See Mot., Ex. I at 2-5.)
`Notwithstanding Defendants’ failure to establish the relevance and materiality of
`the WDWA Investigation, the United States previously provided Defendants with
`numerous factual materials from that investigation, including the documents identified in
`correspondence dated October 4, 2018 (Ex. A, filed herewith), and grand jury testimony
`(see Mot., Ex. I at 5 (referencing DOJ-BP-0004719710 - DOJ-BP-0004720536)).
`Moreover, after receiving Defendants’ July 22, 2021 letter, the United States searched its
`files for any additional factual material related to the WDWA Investigation that had not
`previously been disclosed, and located memoranda of interviews (“MOIs”) of witnesses,
`handwritten notes of moderator interviews, and additional reports or statements relating to
`that investigation. (See Mot., Ex. I at 4-5 and nn. 3-4; see also Ex. B, filed herewith.)2 The
`United States does not believe that these materials reveal exculpatory or impeaching
`information in this criminal case. However, out of an abundance of caution, and in effort
`to exceed its discovery obligations, the United States provided all of these documents to
`the defense. For these and other reasons explained below, Defendants’ third Brady motion
`should be denied.3
`
`
`2 Bates-numbered versions of these documents were produced on August 6, 2021,
`at USAO-BP-0033331 - USAO-BP-0033340 (reports and statements of FBI Special Agent
`Steven Vienneau from 2012); USAO-BP-0033341 - USAO-BP-0033362 (handwritten
`notes of agent interviews with former Backpage moderators Ezekiel Finley, Brian Alstadt,
`LaTamara Barlow, Justin Dew, Brian Paterge, and David Roberts); and USAO-BP-
`0033367 - USAO-BP-0033389 (MOIs of Ayesha Johnson, Bill Egan, David
`Schneiderman, and Scott Lebovitz).
`
`3 On January 28, 2019, Judge Logan issued an Order (CR 339) denying Defendants’
`attempt to compel the government to sift through voluminous, previously disclosed
`discovery, and furnish them with an itemized list of exculpatory documents pursuant to
`Brady. Further, on June 26, 2020, this Court issued an Order (CR 1028) denying
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`Case 2:18-cr-00422-SMB Document 1326 Filed 09/23/21 Page 4 of 15
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`
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`I.
`
`Argument
`Defendants’ Attempt to Re-Litigate Judge Logan’s Order (CR 449-1) Should
`Be Denied
`On the afternoon of Wednesday, September 8, 2021, this Court asked Defendants if
`Judge Logan had already resolved the issue of whether any alleged underlying facts
`contained in the inadvertently-disclosed WDWA memos contained Brady material
`concerning this case. In response, Defendants stated that this issue had not been litigated
`and decided by Judge Logan. That statement was incorrect. In fact, Defendants argued
`that exact issue in their Response to the United States’ Motion to Compel Destruction of
`Inadvertently Disclosed Documents. (See CR 407 at 2, Defendants’ Response
`[REDACTED]
`; CR 407 at 8 [REDACTED].)
`
`
`What’s more, after considering the parties’ briefs, the attached exhibits, and relevant
`case law (CR 352, 407, 432), Judge Logan rejected Defendants’ argument in his Order
`granting the United States’ Motion to Compel Destruction of Inadvertently Disclosed
`Documents, finding:
`
`[REDACTED THROUGH PAGE 5, LINE 3].
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`Defendants’ attempt to compel the government to produce approximately forty-two
`separate categories of alleged Brady material.
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`Case 2:18-cr-00422-SMB Document 1326 Filed 09/23/21 Page 5 of 15
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`(CR 449-1 at 2-3.)
`
`Defendants now attempt to walk back their September 8, 2021 statement to the
`
`Court by asserting this Court should redetermine the issue because the United States’ case
`has “evolved significantly” since Judge Logan issued CR 449-1. (Mot. at 1.) That’s simply
`not true—the government’s case today is based on exactly the same factual allegations and
`legal theories as its July 2018 Superseding Indictment.
`
`The Superseding Indictment (CR 230, SI) alleged, inter alia, that 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.”
`(SI¶9; see also id ¶34.) These steps consisted of several highly-successful prostitution-
`marketing strategies that Defendants deliberately authorized, oversaw and implemented,
`including:
`
`
`. . . . [D]uring Backpage’s early years of operation, the
`9.
`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 content-creation efforts,
`which were described internally as “content aggregation” or the “Dallas
`Plan,” were vital to Backpage’s early growth and success.
`
`10. Backpage also employed other business strategies that were
`specifically intended to promote and facilitate prostitution. For example, for
`several years, Backpage had a reciprocal link agreement with The Erotic
`Review (“TER”), a website that permitted customers to post explicit
`“reviews” of their encounters with prostitutes, including descriptions of
`prices charged for particular sex acts. Backpage paid tens of thousands of
`dollars to TER in return for assistance in getting TER’s customer base to start
`using Backpage.
`
`In addition to affirmatively creating prostitution-related
`11.
`content and intentionally soliciting prostitution-related business, Backpage
`also utilized a variety of strategies to conceal the true nature of the ads being
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`Case 2:18-cr-00422-SMB Document 1326 Filed 09/23/21 Page 6 of 15
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`
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`posted on its website. Most notably, Backpage periodically used
`computerized filters and human “moderators” to edit the wording of (or
`block) ads that explicitly offered sexual services in return for money. The
`BACKPAGE DEFENDANTS admitted—in internal company documents
`and during private meetings—that, despite these editing practices, they knew
`the overwhelming majority of the website’s ads still involved prostitution.
`
`(SI¶¶9-12; see also ¶¶34-176.) “Backpage also formed ‘affiliate’ partnerships with other
`organizations and individuals who were known to be involved in the prostitution industry.
`One such individual, known as ‘Dollar Bill,’ earned fees in return for arranging for
`prostitutes and pimps to post ads on Backpage.” (SI¶59.)
`
`The SI also identifies scores of blatant or thinly-veiled Backpage prostitution ads.
`Counts 2-51 identify 50 specific prostitution ads that fall into three categories. First, 10 of
`the 50 ads were posted by P.R. (SI Counts 3, 6-11, 18, 25-26; SI¶132.) Between September
`2010 and October 2012, Ferrer became aware that 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.) Defendants 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.)
`
`Second, 15 of the 50 ads depict specific victims who were repeatedly sold for sex
`via Backpage. (See SI Counts 2, 4-5, 12-17, 19-24.) The narratives associated with these
`victims are included in ¶¶160-176 of the SI.
` In many instances, Backpage
`representatives—who were implementing policies that Defendants authorized, oversaw or
`executed—coached users on how to fix their ads so they could be published, or otherwise
`edited the ads before publication. (See, e.g., SI¶¶ 160, 163, 164, 166, 170, 172 and SI
`Counts 4-5, 12-13, 15-17, 19-20.) Third, the remaining 25 ads involve Backpage ads
`containing “GFE” (shorthand for “girlfriend experience”). (SI Counts 27-51.) Internal
`emails show that Defendants Spear, Padilla and Vaught, co-conspirators Ferrer and Hyer,
`and others at Backpage knew “GFE” is a “coded sex act for money” term or one of several
`“solid sex for money terms.” (SI¶149.)
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`Case 2:18-cr-00422-SMB Document 1326 Filed 09/23/21 Page 7 of 15
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`The ads highlighted in the SI 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.)
`Defendants were informed “New In Town” often indicates a trafficked victim 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” (customer goes to prostitution’s location), “outcalls” (prostitute goes to
`customer), and “100% no pimps” are also common prostitution terms.
`
`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”), ¶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
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`Case 2:18-cr-00422-SMB Document 1326 Filed 09/23/21 Page 8 of 15
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`“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 falsely-legitimate
`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.) Backpage and its principals were repeatedly notified that Backpage
`was the internet’s leading place to shop for prostitutes. (See, e.g., SI¶¶144). 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.) In short, the SI alleges Defendants intentionally operated (and
`aggressively expanded) a massive online marketplace for prostitution solicitations.
`
`The United States’ September 3, 2021 opening statement, and its other trial
`pleadings, are entirely consistent with the SI. As the United States recently pointed out:
`
`
`[The opening statement detailed] 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 . . . 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.)[4]
`
`4 “Tr.” refers to the reporter’s transcript of the afternoon portion of the proceedings
`on September 3, 2021.
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`Case 2:18-cr-00422-SMB Document 1326 Filed 09/23/21 Page 9 of 15
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`(CR 1275 at 1; see also id. at 4-8.) The opening statement further discussed Backpage’s
`“moderation” practices, including that Backpage’s moderators were “instructed by these
`defendants to conceal the fact that prostitution ads were rampant on Backpage.” (Tr. at 20-
`21.) It also explained that “the vast majority of these folks visiting Backpage.com weren’t
`looking to buy themselves a sofa. Backpage.com was the internet’s leading hub, leading
`website for prostitution.” (Tr. at 6.) The opening statement then discussed several of the
`specific ads that are also highlighted in the SI, including “Sometimes it’s all about the
`journey and the destination,” and “Stacked college co-ed with the best mouth ever” (Tr. at
`27-28), and discussed ads including known prostitution terms like “incall,” “outcall,”
`“GFE,” and “New in Town.” (Tr. at 8, 10, 30.) The opening statement also canvassed
`much of the notice that Defendants received from NCMEC, law enforcement, media
`organizations, various non-governmental organizations, law enforcement, and internet
`safety experts. (Tr. at 28-43.) The opening statement underscored that Defendants’
`website generated the overwhelming majority of its revenue—some 94%—from selling
`prostitution solicitations. (Tr. at 24.)
`
`The United States’ recent filings, including its proposed jury instructions and
`statement of the case (CR 1216-1, 1216-3), and its response to the mistrial motion regarding
`the opening statement (CR 1272), are likewise based on the same facts and legal theories
`contained in the SI. Defendants’ asserted defenses aren’t new either (see Mot. at 1)—
`rather, Defendants have been asserting the same constitutional, statutory and mens rea
`arguments since this case began. (See, e.g., CR 23 at 2-4, 7, 11-12, and n.2; CR 26 at 10-
`11.) Simply put, the United States’ case has not “evolved”—and the Court should decline
`Defendants’ request to relitigate Judge Logan’s Order (CR 449-1).
`II. Materials from the WDWA Investigation Do Not Reveal Exculpatory or
`Impeaching Information in This Case
`As the Ninth Circuit has recognized, to “challenge the government’s representation
`that it lacks Brady information, [a defendant] must either make a showing of materiality
`under Rule 16 or otherwise demonstrate that the government improperly withheld
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`favorable evidence.” United States v. Lucas, 841 F.3d 796, 808 (9th Cir. 2016). The test
`for materiality is whether the requested evidence might affect the outcome of the trial.
`United States v. Alvarez, 358 F.3d 1194, 1211-12 (9th Cir. 2004). Moreover, the Ninth
`Circuit has rejected the premise that a defendant may compel production of notes so that
`he could search through them for anything useful. United States v. Mincoff, 574 F.3d 1186,
`1200 (9th Cir. 2009) (“Mere speculation about materials in the governments’ files’ [does]
`not require the district court to make those materials available, or mandate an in camera
`inspection.”); see also Kyles v. Whitley, 514 U.S. 419, 433 (1995) (“[w]e never held that
`the Constitution demands an open file policy”) (citing United States v. Agurs, 427 U.S. 97,
`108 (1976)); United States v. Michaels, 796 F.2d 1112, 1116 (9th Cir. 1986) (“Brady does
`not “provide defense counsel with unlimited discovery of everything known by a
`prosecutor”).
`As the Supreme Court held in Whitley, 514 U.S. at 439, and the Court in this case
`noted in its Order Denying Defendants’ Motion to Compel Production of Brady Material,
`“the prosecutor, not a defendant, ‘make[s] judgment calls about what would count as
`favorable evidence’ and that ‘the character of a piece of evidence as favorable will often
`turn on the context of the existing or potential evidentiary record.’” (CR 1028 at 20); see
`also Lucas, 841 F.3d at 807 (“It is the government, not the defendant or the trial court, that
`decides prospectively what information, if any, is material and must be disclosed under
`Brady.”).
`Here, context is key. As the government expressed in its reply in support of Motion
`to Compel Destruction of Inadvertently Disclosed Documents (CR 432) and in subsequent
`correspondence with Defendants (see, e.g., Mot., Ex. I), materials from the WDWA
`Investigation are not Brady or Giglio for purposes of this case. In the years since the
`WDWA Investigation, a tidal wave of evidence has emerged regarding Defendants’
`knowledge and intent to facilitate business enterprises involved in prostitution. The
`government’s Motion in Limine to Admit Certain Evidence (CR 931) highlights a great
`deal of this evidence, which shows that Defendants were well-aware that prostitution ads
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`were rampant on Backpage and took numerous steps to facilitate prostitution through their
`operation of the website. A non-exhaustive list of this evidence includes the following:
`First, during the WDWA Investigation, Backpage was ostensibly working with the
`National Center for Missing and Exploited Children (“NCMEC”) to combat prostitution
`on its website. However, in 2014 NCMEC publicly denounced Backpage and repudiated
`any suggestion that Backpage was somehow an ally. NCMEC joined several other non-
`profits and the Washington State Attorney General’s Office by filing amicus briefs urging
`that state’s Supreme Court to allow civil claims against Backpage to proceed. (See
`SI¶140.) The Washington State Supreme Court subsequently ruled against Backpage and
`in favor of three victims who had been “bought and sold for sexual services online on
`Backpage.com.” J.S. v. Village Voice Media Holdings, Inc., 359 P.3d 714,715 (Wash.
`2015). The Court—in ruling that Backpage’s motion to dismiss should be denied—found
`that discovery should be conducted “to ascertain whether in fact Backpage designed its
`posting rules to induce sex trafficking.” Id. at718.
`Second, the WDWA Investigation occurred years before the United States Senate’s
`Subcommittee on Permanent Investigations Report issued its January 2017 report,
`BACKPAGE.COM’S KNOWING FACILITATION OF ONLINE SEX TRAFFICKING (“PSI
`Report”).5 The PSI Report found, among other things, that Backpage knowingly facilitated
`prostitution and sex trafficking. The PSI also released an 840-page Appendix.6 Many of
`these documents did not come to light until after the Senate successfully pursued legal
`action to enforce its subpoena for internal Backpage records in 2016—long after the
`WDWA’s 2012-13 Investigation. See Senate Permanent Subcommittee on Investigations
`v. Ferrer, 199 F. Supp. 3d 125 (D.D.C. 2016). That litigation led to Backpage’s compelled
`disclosure of more than 550,000 documents, comprising 1,112,826 pages—materials that
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`5https://www.hsgac.senate.gov/imo/media/doc/Backpage%20Report%202017.01.1
`0%20FINAL.pdf.
`6https://www.hsgac.senate.gov/imo/media/doc/Final%20Appendix%202017.01.09
`.pdf
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`Senate investigators analyzed in preparing the PSI Report. (PSI Report at 16.) The PSI
`also obtained testimony from current and former Backpage moderators who confirmed that
`Backpage was engaging in the facilitation of prostitution. One of the moderators testified
`that all of the Backpage 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.” (PSI Report at 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.” (PSI Report at 37.)
`
`Third, the WDWA Investigation predated compliance with still more subpoenas
`(including District of Arizona Grand Jury Subpoenas 108 and 359) that produced additional
`evidence demonstrating Backpage’s facilitation of prostitution on its website.
`Lastly and importantly, the WDWA did not have the benefit of two cooperating
`witnesses—Backpage’s CEO Carl Ferrer, and Backpage’s Sales and Marketing Director
`Daniel Hyer. Years after the WDWA Investigation concluded, several corporate entities
`that operated Backpage.com, and Backpage’s CEO, pleaded guilty in April 2018 in the
`District of Arizona and admitted that the “great majority” of Backpage’s revenue-
`generating ads were “for prostitution services.” (See, e.g., 18-CR-464, CR 7-2 at 12-13;
`18-CR-465, CR 8-2 at 11.) Subsequently, Backpage’s Sales and Marketing Director
`pleaded guilty to Count 1 of the SI (conspiracy to violate the Travel Act/facilitate
`prostitution), and he admitted the majority of the “escort” ads he and others at Backpage
`had created as part of the “aggregation” process were actually offering illegal prostitution
`services. (CR 271 at 9.) As shown by these plea agreements and additional evidence,
`Backpage was facilitating prostitution and engaging in considerable content creation that
`included, among other things, domestically aggregating ads from competing websites,
`forming affiliated relationships with individuals who packaged thousands of prostitution
`ads for sale to Backpage, and forming a business relationship with the prostitution review
`site The Erotic Review.
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`Based on these and other developments (summarized in CR 649 at 23-26), the
`WDWA Investigation occurred in an evidentiary context far different from that of the
`current case. Materials from the Western District of Washington’s 2012-2013
`investigation of Backpage do not reveal exculpatory or impeaching information pertinent
`to this criminal case, which charges 100 counts of conspiracy, Travel Act and money
`laundering offenses. (See generally SI.)
`III. The Government Has Fully Complied with Its Discovery Obligations Pursuant
`to Brady, Rule 16, and 18 U.S.C. § 3500
`While Defendants have neither shown materiality under Rule 16 nor demonstrated
`that the United States has withheld favorable or impeaching evidence, the United States
`previously produced grand jury testimony and numerous other materials from the WDWA
`Investigation to Defendants in this case. (See Ex. A, filed herewith; Mot., Ex. I at 5
`(referencing DOJ-BP-0004719710 - DOJ-BP-0004720536).) Moreover, after receiving
`Defendants’ July 22, 2021 letter, the United States searched its files for any additional
`factual material related to the WDWA Investigation that had not previously been disclosed,
`and located memoranda of interviews MOIs of witnesses, handwritten notes of moderator
`interviews, and additional reports or statements relating to that investigation. Those
`materials were promptly produced. (See supra at 3 and n.2; Mot., Ex. I at 4-5 and nn. 3-4;
`Ex. B, filed herewith.)
`Defendants nevertheless assert that “the government conducted numerous
`interviews of Backpage personnel [in 2012-13] yet has produced no summaries or notes or
`any other records.” (Mot. at 3-4.) More specifically, they claim that they “are aware of at
`least four Backpage moderators (La Tamara Barlow, Justin Dew, Brian Paterge, and Brian
`Alstadt) who were interviewed by the IRS” and speculate that the government is
`withholding Brady and Giglio concerning these employees. (Mot. at 5.) On August 6,
`2021, the United States produced agents’ notes of their interviews with these moderators.
`(See Ex. B.)7
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`7 The government responded to Defendants’ request for production of an attorney
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`In sum, the United States has provided Defendants transcripts from grand jury
`testimony, reports of interviews, and—although not the prosecutors’ usual practice—out
`of an abundance of caution, even produced agents’ interview notes from the Western
`District of Washington’s nearly decade-old investigation into Backpage. (See supra at 3.)
`Defendants’ motion should be denied.
`Conclusion
`For the foregoing reasons, the Motion to Compel Brady (CR 1281) should be denied.
`Respectfully submitted this 23rd day of September, 2021.
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`KENNETH POLITE
`Assistant Attorney General
`U.S. Department of Justice
`Criminal Division, U.S. Department of Justice
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`s/ Reginald E. Jones
`REGINALD E. JONES
`Senior Trial Attorney
`U.S. Department of Justice, Criminal Division
`Child Exploitation and Obscenity Section
`GLENN B. McCORMICK
`Acting United States Attorney
`District of Arizona
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`KEVIN M. RAPP
`MARGARET PERLMETER
`PETER S. KOZINETS
`ANDREW C. STONE
`Assistant U.S. Attorneys
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`DAN G. BOYLE
`Special Assistant U.S. Attorney
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`opinion that purported to advise a potential buyer of Backpage.com about possible criminal
`or civil exposure in an email attached to Defendants’ Motion. (Mot., Ex. J (“In the final
`analysis, you are demanding an email that was based on a flawed legal analysis due to
`incomplete information for a non-testifying witness.”).)
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`CERTIFICATE OF SERVICE
`I hereby certify that on September 23, 2021, 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/Marjorie Dieckman
`U.S. Attorney’s Office