Case 2:18-cr-00422-DJH Document 1577 Filed 04/28/23 Page 1 of 19
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`GARY M. RESTAINO
`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
`
`KENNETH POLITE
`Assistant Attorney General
`Criminal Division, U.S. Department of Justice
`
`AUSTIN M. BERRY (Texas Bar No. 24062615, austin.berry2@usdoj.gov)
`U.S. Department of Justice
`Child Exploitation and Obscenity Section
`1301 New York Avenue, NW, 11th Floor
`Washington, D.C. 20005
`Telephone (202) 412-4136
`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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`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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`
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`Defendants.
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`
`
`CR-18-422-PHX-DJH
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`UNITED STATES’ RESPONSE TO
`DEFENDANTS’ MOTION TO
`DISMISS SUPERSEDING
`INDICTMENT
`[Doc. 1557]
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`Case 2:18-cr-00422-DJH Document 1577 Filed 04/28/23 Page 2 of 19
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`Preliminary Statement
`Recycling arguments from several motions to dismiss that the Court rejected,
`
`Defendants now challenge—for the fourth time—whether the July 2018 Superseding
`Indictment (SI or Doc. 230) states an offense. For several reasons, Defendants’ motion
`should be denied.
`
`First, the motion is barred by law of the case. This is Defendants’ tenth motion to
`dismiss. (Docs. 456, 561, 746, 782, 783, 940, 1239, 1250, 1355, 1421, 1557.) Three
`challenged the SI’s sufficiency. (Docs. 561, 746, 783.) In denying those motions, the Court
`repeatedly determined that the SI properly alleges the essential elements of an indictment
`for Travel Act offenses. (Docs. 793, 840, 946.) The Court got it right—it correctly applied
`Ninth Circuit law to the detailed 92-page SI, which amply put Defendants on notice of the
`charges against them.
`
`Defendants’ latest motion is not based on new facts or law, but merely repackages
`the same arguments that this Court has rejected. It should be denied for this reason alone.
`(See Doc. 1524 at 4 and n.2.) Defendants’ cited cases don’t hold that the SI must allege
`any extra elements to survive a motion to dismiss. At most, they concern jury instructions
`and trial evidence—issues irrelevant to determining the sufficiency of the SI.
`
`Second, Defendants have been recycling the same Woodhull-based arguments for
`the last four years. Those arguments involve a different statute (FOSTA) in a different
`lawsuit, and this Court has already found them irrelevant here. Moreover, the notion that
`the SI is deficient for not alleging aiding-and-abetting is a non-starter, because such
`elements are read into every federal indictment as a matter of law.
`
`Third, even if the SI were required, as Defendants claim, to identify specific state
`crimes and Defendants’ intent to aid their commission, the SI does precisely that. The Court
`has found the SI alleges that the ads in the SI were for prostitution, and advertising
`prostitution is illegal throughout the United States. The SI alleges Defendants intended to
`promote, and did promote, their customers’ prostitution ventures by publishing these
`unlawful ads. Nothing more is required. This tenth motion to dismiss should be denied.
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`Case 2:18-cr-00422-DJH Document 1577 Filed 04/28/23 Page 3 of 19
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`Factual Background
` The SI’s factual allegations must be taken as true at this stage. United States v.
`
`Boren, 278 F.3d 911, 914 (9th Cir. 2002). The Court has summarized them multiple times.
`United States v. Lacey, 423 F. Supp. 3d 748, 752-57, 763-64; Doc. 840 at 1-3; Doc. 946 at
`1-4. In brief, the SI alleges that www.Backpage.com (Backpage) was, until shut down in
`April 2018, notorious for being the internet’s leading source of prostitution ads. (SI¶1.)
`Defendants Michael Lacey and James Larkin co-founded Backpage in 2004 with Carl
`Ferrer.1 (SI¶¶2, 18-21.) Lacey and Larkin oversaw Backpage’s policies and strategic
`direction from 2004-15. (SI¶2.) Defendant Scott Spear served as Executive Vice President
`of one of Backpage’s parent companies. (SI¶3.) Defendant John Brunst served as
`Backpage’s Chief Financial Officer. (SI¶4.) In 2015, they purported to sell Backpage for
`around $600 million, yet “retained a significant financial interest in” and “significant
`operational control over Backpage following these transactions.” (SI¶¶30-31.) Defendants
`Andrew Padilla and Joye Vaught served as Backpage’s Operations Manager and Assistant
`Operations Manager, respectively. (SI¶¶6-7.)2
`
`The SI—consisting of 92 pages, 100 counts, and 211 paragraphs—alleges
`Defendants knew the vast majority of the “adult” ads on Backpage were for prostitution,
`and generated a half-billion dollars in prostitution ad revenue. (See SI¶¶ 1-17, 177.)
`Defendants used several strategies to corner the online market for prostitution ads,
`including: (1) aggregation, or creating free ads for—and enlisting business from—
`prostitutes who advertised on other websites (SI¶¶9, 34-44); (2) reciprocal link
`partnerships, which involved inserting links or allowing references to websites like The
`Erotic Review that published reviews of the sexual services and prices offered by
`
`
`1 On April 5, 2018, Backpage.com, LLC and four related entities pleaded guilty to money
`laundering conspiracy (CR18-00465, Docs. 4-1, 8, 10), and Ferrer—Backpage.com, LLC’s
`CEO—pleaded guilty to conspiracy to violate 18 U.S.C. §§ 1952 (Travel Act) and 1956-
`1957 (Money Laundering). (CR18-00464, Doc. 4-1 at 1-2, and Doc. 7-1 at 1, 12-14.)
`2 Defendant Dan Hyer served as Backpage’s Sales and Marketing Director. (SI¶5.) On
`August 18, 2018, Hyer pleaded guilty to Count 1 of the SI (18 U.S.C. § 371 Conspiracy to
`Violate 18 U.S.C. § 1952 (Travel Act). (Doc. 271.)
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`Case 2:18-cr-00422-DJH Document 1577 Filed 04/28/23 Page 4 of 19
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`prostitutes advertising on Backpage (SI¶¶10, 34, 45-58); (3) affiliate relationships, through
`which Backpage paid fees to secure bulk prostitution advertising (SI¶¶59-67); and (4)
`moderation, the process of “sanitizing” customers’ ads by removing the most overt
`references to prostitution without blocking the ad itself (SI¶¶11, 34, 68-152).
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`The SI alleges “Backpage derived the overwhelming majority of its revenue” from
`prostitution ads (SI¶¶1, 15, 177), while the rest of the website served as a cover. (SI¶112.)
`As Defendants admitted, Backpage’s “adult” section became a hub for prostitution ads.
`(See, e.g. SI¶1, 9, ¶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 “bragged about the company’s
`contributions to the prostitution industry”).)
`
`The SI contains scores of allegations that law enforcement, news organizations, anti-
`trafficking groups, the U.S. Senate, and others notified Defendants that the vast majority
`of Backpage’s “adult” ads were for prostitution. (See SI¶¶74, 86, 97, 105, 109, 111, 127,
`131, 134, 140-41, 144, 146, 151.) 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.)
`
`The SI includes 100 substantive counts. (SI¶¶195-211.) Count 1 alleges Lacey,
`Larkin, Spear, Brunst, Padilla, and Vaught, and others known and unknown, “knowingly
`and intentionally” entered into a conspiracy with others to commit Travel Act offenses and
`that “overt acts were committed in furtherance of the conspiracy,” including those
`described in SI paragraphs 1-194. (SI¶¶195-99.) The count sets forth the statutory elements
`and the time-period when the conspiracy occurred. (SI¶¶195-99.)
`
`Counts 2-51 allege Lacey, Larkin, Spear, Brunst, Padilla, and Vaught, and others
`known and unknown, “used . . . any facility in interstate . . . 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,
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`Case 2:18-cr-00422-DJH Document 1577 Filed 04/28/23 Page 5 of 19
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`including but not limited to [Ariz. Rev. Stat.] 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, and carrying on of the unlawful activity” by
`publishing the 50 ads identified in Counts 2-51. (SI¶201.)
`
`The 50 ads fall into three categories. First, 15 of the 50 depict specific victims who
`were repeatedly sold for sex through Backpage ads. (SI Counts 2, 4-5, 12-17, 19-24.)
`Backpage employees coached pimps or victims about the ads or edited them. (E.g.,
`SI¶¶ 160, 163-64, 166, 170, 172.)
`
`Second, 10 of the 50 ads were posted by P.R., who communicated extensively with
`Ferrer, a co-conspirator. (SI Counts 3, 6-11, 18, 25-26.) Her ads used coded prostitution
`terms such as “50 Red Roses Special” to show per-session pricing of $50. (SI¶ 132; see
`also SI¶¶160-61, 201.) She corresponded with Ferrer about Backpage’s removal of explicit
`photos from her ads; he restored her posting privileges and advised her on how to get her
`ads published on Backpage. (SI¶ 132.) Padilla and Vaught instructed another employee to
`“dig into” her difficulty posting nude pictures. (SI¶ 132.) P.R. posted over a dozen ads from
`2012 to 2015. (SI¶132.) The SI shows Backpage knew since 2010 that P.R. was a prostitute,
`and affirmatively helped her post ads. (SI¶132.)
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`Third, the remaining 25 ads contain “GFE” (shorthand for “girlfriend experience”).
`(SI Counts 27-51.) Defendants, including Spear, Padilla, and Vaught, acknowledged
`“GFE” is a “coded sex act for money” term and one of several “solid sex for money
`terms.”” (SI¶¶148-149.) Several reference reviews on websites like The Erotic Review or
`include per session pricing. (SI Counts 29, 31, 32, 35-36, 47.)
`
`By 2015, the credit card companies stopped processing payments for Backpage and
`some banks closed Backpage’s accounts out of concern they were being used for illegal
`purposes. (SI¶15.) Defendants pursued an array of money laundering strategies in response.
`(SI¶¶15-16, 177-194.) Counts 52-100 charge money laundering conspiracy, concealment
`money laundering, and related offenses. (SI¶¶202-211.)
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`Case 2:18-cr-00422-DJH Document 1577 Filed 04/28/23 Page 6 of 19
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`I.
`
`Argument
`The SI Sufficiently Alleges the Essential Elements of a Travel Act Offense—as
`this Court Has Repeatedly Determined.
`
`A.
`Notice Pleading Is All that Is Required.
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`An indictment is sufficient if it meets two constitutional requirements: first, it
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`contains the elements of the offense charged in sufficient detail to fairly inform the
`defendant of the crime against which he or she must defend; and second, it safeguards the
`defendant from a subsequent prosecution of the same offense. United States v. Resendiz-
`Ponce, 549 U.S. 102, 108 (2007). While a “complete failure to recite an essential element
`of the charged offense” requires dismissal, United States v. Omer, 395 F.3d 1087, 1088
`(9th Cir. 2005), an indictment that tracks the language of the charged statute “is often
`sufficient,” Resendiz-Ponce, 549 U.S. at 109. If more is required, the indictment need only
`“contain a few basic factual allegations [to] accord[ ] defendants adequate notice of the
`charges.” United States v. Cecil, 608 F.2d 1294, 1296-97 (9th Cir. 1979) (dismissing a
`“rather barren” indictment that provided almost no factual context). “While detailed
`allegations might well have been required under common-law pleading rules . . . they surely
`are not contemplated by Rule 7(c)(1), which provides that an indictment ‘shall be a plain,
`concise, and definite written statement of the essential facts constituting the offense
`charged.’” Resendiz-Ponce, 549 U.S. at 108.
`
`The indictment “should be read in its entirety, construed according to common
`sense, and interpreted to include facts which are necessarily implied.” United States. v.
`O’Donnell, 608 F.3d 546, 555 (9th Cir. 2010). At this stage, “[t]he Government need not
`allege its theory of the case or supporting evidence, but only the essential facts necessary
`to apprise a defendant of the crime charged.” United States v. Buckley, 689 F.2d 893, 897
`(9th Cir. 1982).
`
`As this Court has repeatedly found, the SI sets forth the statutory language and
`provides detailed statements of the facts and circumstances to inform Defendants of the
`charged offenses. It far surpasses the minimal requirements of notice pleading.
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`Case 2:18-cr-00422-DJH Document 1577 Filed 04/28/23 Page 7 of 19
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`B.
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`This Court Has Thrice Found that the SI States an Offense, and Those
`Decisions Are Law of the Case.
`The issue presented in Defendants’ motion to dismiss is, essentially, this: does the
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`SI properly state an offense under the Travel Act? Relying on their view of arguments
`made in separate civil case (Woodhull) about a different statute (FOSTA), Defendants
`contend that Travel Act charges here must allege “with respect to each charged ad, both
`that someone committed a prostitution offense and that Defendants intended to facilitate
`the commission of that specific prostitution offense.” (Mot. at 9.) Defendants have made
`these arguments before, and the Court has found them insufficient to require dismissal.
`Defendants cite no intervening change in the law, and no new facts about this case, to
`warrant reconsideration. (See Doc. 1524 at 4 (“The Court reminds the parties that it will
`not accept any new motions unless based on new law or facts.”).)
`
`This Court has denied three motions to dismiss the SI that raised the same
`arguments. First, in its October 24, 2019 Order denying Defendants’ Motion to Dismiss,
`the Court rejected Defendants’ claims that the SI was deficiently pled under the First
`Amendment and the Travel Act. United States v. Lacey, 423 F. Supp. 3d 748 (D. Ariz.
`2019); Doc. 793. The Court found that “taking the allegations in the SI as true, as the Court
`must, the Government has met its burden of showing the fifty ads [in Counts 2-51] are for
`prostitution.” Lacey, 423 F. Supp. 3d at 757. The Court then correctly stated that, in the
`Ninth Circuit, a Travel Act indictment must allege three essential elements: “(1) interstate
`commerce or use of an interstate facility; (2) with the intent to ‘promote, manage, establish,
`carry on, or facilitate the promotion, management, establishment, or carrying on, of any
`unlawful activity’; and (3) a subsequent overt act in furtherance of that unlawful activity.”
`Lacey, 423 F. Supp. 3d at 765 (citing 18 U.S.C. § 1952(a) and United States v. Tavelman,
`650 F.2d 1133, 1138 (9th Cir. 1981)).
`
`The Court found the SI “contains the elements of the offense charged” and “gives
`Defendants enough facts and circumstances to inform the accused of the charged offenses.”
`Id. at 766. Also, “[t]he SI contains sufficient factual allegations to implicate all Defendants.
`Additionally, when there is a ‘continuous conspiracy,’ the ‘overt act[s] of one partner may
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`Case 2:18-cr-00422-DJH Document 1577 Filed 04/28/23 Page 8 of 19
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`be the act of all without any new agreement specifically directed to that act.’” Id. at 763
`(citing Pinkerton v. United States, 328 U.S. 640, 646-47 (1946)).
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`Second, in its January 8, 2020 Order denying Defendants’ Motion to Dismiss Based
`on Section 230 of the Communications Decency Act or, Alternatively, as Void for
`Vagueness, the Court again recognized that Tavelman sets forth the essential elements for
`a Travel Act offense in an indictment, and found that “[t]he [SI] clears each hurdle. It
`alleges Defendants, with intent to promote or facilitate state law prostitution offenses,
`performed overt acts in furtherance of that unlawful activity.” (Doc. 840 at 10-11.)
`
`Third, in its May 4, 2020 Order denying Defendants’ Motion to Dismiss Indictment
`on Failure to Allege the Necessary Elements of the Travel Act, the Court recognized, again,
`that “[t]he Travel Act’s text clearly outlines the requisite elements [of stating an offense].”
`(Doc. 946 at 8.) The Court rejected Defendants’ assertions—repeated here (Mot. at 15)—
`“that the SI does not allege any specific ‘unlawful activity’ or ‘business enterprise(s)
`involving prostitution offenses,” and that Defendants “cannot have an ‘intent to promote
`an unlawful activity’ because they do not know what or who the business enterprise
`involving prostitution offenses for each violation is.” (Doc. 946 at 8-9.) The Court found
`that the SI alleges “unlawful activity” for each Travel Act count “with adequate specificity
`to inform Defendants of their charges” by alleging “fifty instances where Defendants
`posted ads on Backpage.com to facilitate specific individual prostitutes or pimps involved
`in the business of prostitution,” and by using language that “almost identically mirrors the
`Travel Act’s text.” (Doc. 946 at 12.)
`
`The Court “[found] previously that the SI alleged each Defendant had the requisite
`specific intent to promote an unlawful activity in violation of the Travel Act on fifty
`occasions”; whether they “in fact intended to facilitate prostitution by publishing the ads is
`a matter for the fact-finder, not the Court right now.” (Doc. 946 at 15-16.)
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`C.
`The Court’s Rulings Are Correct.
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`In the Ninth Circuit, “[a]n indictment under the Travel Act requires allegations of
`each of the three elements of the crime: (1) interstate commerce or use of an interstate
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`facility (2) with intent to promote an unlawful activity and (3) a subsequent overt act in
`furtherance of that unlawful activity.” Tavelman, 650 F.2d at 1138. The statutory language
`of § 1952 “embodies all of the essential elements” of that offense. United States v. Gordon,
`641 F.2d 1281, 1284 (9th Cir. 1981); United States v. Winslow, 962 F.2d 845, 852 (9th Cir.
`1992); United States v. Stafford, 831 F.2d 1479, 1482 (9th Cir. 1987).
`
`At least five Circuits share this view. See United States v. Welch, 327 F.3d 1081,
`1090 (10th Cir. 2003); United States v. Childress, 58 F.3d 693, 719 (D.C. Cir. 1995);
`United States v. Monu, 782 F.2d 1209, 1211 (4th Cir. 1986); United States v. Muskovsky,
`863 F.2d 1319, 1326 (7th Cir. 1988); 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”).
`
`The SI contains precisely such “statute-tracking language” in SI¶201. Palfrey, 499
`F. Supp. 2d at 43. If that were not enough, the SI contains pages and pages of allegations
`describing how Defendants built Backpage into the internet’s leading online marketplace
`for prostitution (SI¶¶1-194), alleges that Defendants conspired together to violate the
`Travel Act, and alleges that Defendants committed substantive Travel Act violations by
`publishing each of the enumerated prostitution solicitations in Counts 2-51. (SI¶¶195-
`201.) Particularly when viewed through notice pleading standards, the SI’s allegations are
`more than enough to inform Defendants of the charges.
`
`Contrary to Defendants’ suggestions, whether an underlying state offense is ever
`accomplished is irrelevant under the Travel Act. Stafford, 831 F.2d at 1482 (“[t]he Travel
`Act does not require the commission of the predicate offense”). Rather, “the gravamen of
`a charge under 18 U.S.C. § 1952 is the violation of federal law (use of an interstate facility
`with intent to violate state or federal law),” and “reference to state law is only necessary to
`identify the type of illegal activity.” Gordon, 641 F.2d at 1284 and n.6 (cleaned up). The
`SI need not even cite the particular state or federal statute on which the “unlawful activity”
`is based. Id. at 1284-85 and n.6. 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
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`requisite intent to promote such unlawful activity. An actual violation of [state law] is not
`an element . . . and need not have occurred[.]”); United States v. Montague, 29 F.3d 317,
`322 (7th Cir. 1994) (“Section 1952 does not require that the state crime ever be
`completed.”); 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. [The Act] requires only that a defendant ‘inten[ded]
`to . . . promote . . . any unlawful activity[.]’”).
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`Defendants’ cases do not establish that more is required to survive a motion to
`dismiss. (Mot. at 12-13.) United States v. Hiatt, 527 F.2d 1048 (9th Cir. 1975), did not
`involve a challenge to the sufficiency of a Travel Act indictment and contains no holding
`that an actual state law violation must be alleged in a notice pleading to survive a motion
`to dismiss. And it predated Tavelman, Gordon, and other Ninth Circuit cases recognizing
`that § 1952’s language states the essential elements of a Travel Act offense.
`Myers v. Sessions, 904 F.3d 1101 (9th Cir. 2018), addressed a noncitizen’s
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`removability under 8 U.S.C. § 1227(a)(2)(B)(i); it likewise contains no discussion of the
`pleading requirements for Travel Act indictments. United States v. Bertman, 686 F.2d 772,
`772-75 (9th Cir. 1982), also didn’t address an indictment’s sufficiency, and it concerned a
`different subsection of the Travel Act, § 1952(b)(2), not involved here. United States v.
`Jones, 909 F.2d 533, 537-39 (D.C. Cir. 1990), considered jury instructions, but did not
`address the elements that must be alleged in a Travel Act indictment. See Palfrey, 499 F.
`Supp. 2d at 44 (distinguishing Jones on this basis, and finding sufficient a Travel Act
`indictment that tracked § 1952’s statutory language). United States v. Goldfarb, 643 F.2d
`422, 426-32 (6th Cir. 1981), and United States v. Kahn, 472 F.2d 272, 277 (2d Cir. 1973),
`were jury instruction cases—and Goldfarb, 643 F.2d at 426, recognizes that “unlawful
`activity” need not be accomplished.
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`Defendants’ reference to overbreadth and vagueness fails to mention that this Court
`previously rejected their as-applied overbreadth and vagueness claims. (See Mot. at 13-
`14.) See Lacey, 423 F. Supp. 3d at 765-66; Doc. 840 at 13. If Defendants seek to re-litigate
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`these issues, they cite no new facts or law. United States v. Hansen, 25 F.4th 1103, 1107
`(9th Cir. 2022), cert. granted, 143 S. Ct. 555 (2022) (Mot. at 14), involves the same
`immigration law and reasoning of United States v. Sineneng-Smith, 910 F.3d 461 (9th Cir.
`2018), vacated and remanded, 140 S. Ct. 1575 (2020), which this Court has already found
`“not relevant here.” Lacey, 423 F. Supp. 3d at 765-66.
`D.
`The SI Alleges State Law Offenses and Defendants’ Intent.
`Alternatively, even if the SI needed to allege (1) the actual (or attempted)
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`commission of a state law violation and (2) intent to accomplish that violation (Mot. at 14-
`15), the SI does so—as this Court has already found. (Doc. 946 at 9-14 (“Specific Instances
`of ‘Unlawful Activity’ Are Alleged”); Doc. 946 at 14-16 (“Intent is Adequately Alleged
`for Each Travel Act Count”); Lacey, 423 F. Supp. 3d at 761-64.
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`First, Defendants claim that “no allegation links any of the fifty ads to a specific
`prostitution offense,” but the SI does precisely that. (Mot. at 14.) Defendants allow, as they
`must at this stage, that “the charged ads were really for illegal prostitution transactions.”
`(Mot. at 14.) Arizona law—and similar state laws that apply to Counts 2-51— generally
`define 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.”
`A.R.S. § 13-3211(5) (emphasis added); Doc. 1216-3 at 91-100. Under these definitions,
`there is no requirement that any prohibited sex act ever be completed—rather, each charged
`ad is unlawful. (Doc. 776 at 12-13); Coyote Pub., Inc. v. Miller, 598 F.3d 592, 603-04 (9th
`Cir. 2010) (advertising the sale of adults for sex is illegal throughout the U.S. except parts
`of Nevada); Erotic Serv. Provider Legal Ed. and Research Project v. Gascon, 880 F.3d
`450, 459-60 (9th Cir. 2018) (soliciting is illegal).
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`Second, Defendants assert that “the SI does not allege that any Defendant knew
`about these charged ads, much less knew of any exchange for ‘sexual conduct under a fee
`arrangement’ tied to any such ad.” (Mot. at 15.) In Doc. 746, Defendants similarly asserted
`the SI fails to allege any Defendant “had any knowledge of any specific ad relating to a
`business enterprise engaged in prostitution offenses or any role in Backpage.com’s
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`publication of any such ad.” (Doc. 746 at 10-11.) This Court disagreed, and found the SI’s
`intent allegations sufficient. (Doc. 946 at 14-16.) Counts 2-51 allege that each Defendant
`violated the Travel Act by publishing the 50 identified ads with the intent to promote, or
`facilitate the promotion of, unlawful prostitution. (SI¶201.) The SI is replete with
`allegations that Defendants knew the vast majority of their “adult” ads were for prostitution
`and took steps to intentionally facilitate that activity. (Doc. 946 at 15); see also Lacey, 423
`F. Supp. 3d at 763-64 (“[t]he SI contains sufficient factual allegations to implicate all
`Defendants”). And whether a defendant had the requisite criminal intent is a question of
`fact for the jury. Morissette v. United States, 342 U.S. 246, 274 (1952).
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`If any Defendant deliberately ignored the prostitution ads on Backpage’s website,
`knowledge can be inferred from such willful ignorance. 9th Cir. Model Crim. J. Instr. 4.9.
`And even if any Defendant were not personally aware of each ad or involved in that ad’s
`publication process, publication of the ads was reasonably foreseeable given the policies
`Defendants implemented as part of the conspiracy charged in Count 1. 9th Cir. Model
`Crim. J. Instr. 11.6; Lacey, 423 F. Supp. 3d at 763-64 (discussing the Pinkerton doctrine).
`But the use of these jury instructions is for trial; at this stage, all that is required is “a
`minimally adequate description” of the crime charged. Buckley, 689 F.2d at 899.
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`Defendants’ related assertion that the SI “makes no distinction between illegal and
`legal ads” is also an argument for trial. (Mot. at 15.) Defendants can argue to the jury that
`the ads were for legal services like “model[ing] lingerie” or “perform[ing] a striptease.”
`(Cf. Mot. at 15.) But the SI sufficiently alleges that the ads are for prostitution. Lacey, 423
`F. Supp. 3d at 757-58. “[A]t this stage of the proceeding, the Court cannot consider the
`adequacy of the evidence; that job is reserved for the fact finder.” Id. at 758.
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`United States v. Superior Growers Supply, Inc., 982 F.2d 173 (6th Cir. 1992), is
`instructive—but not for the reasons Defendants claim. (Cf. Mot. at 15-16.) Growers
`affirmed the dismissal of indictment that charged a garden-supply store with conspiracy to
`aid and abet the manufacture of marijuana, because critically missing from the indictment
`was “defendants’ knowledge that their customers were manufacturing marijuana or
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`intended to manufacture marijuana.” Id. at 175. The SI here could not be more different. It
`alleges Defendants knowingly published prostitution solicitations that are illegal
`throughout the United States. (SI¶¶9-11; 33-152, 160-76, 201). Defendants purposefully
`developed their website into a massive online marketplace for prostitution ads. (See SI ¶¶9-
`11, 34, 177.) Backpage employees assisted prostitutes and pimps in connection with the
`sale and posting of these unlawful solicitations. (See, e.g., SI¶¶ 59-67, 91, 132, 160, 163,
`164, 166, 170, 172.) Defendants received a drumbeat of notice that Backpage’s “adult” ads
`were overwhelmingly for prostitution; this mirrored their internal admissions. (See
`generally SI¶¶1-194.) Growers has none of this.
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`Defendants’ reference to cases that they cited in their prior unsuccessful motions to
`dismiss also misses the mark. (See Mot. at 16-17.) Those cases largely involved Section
`230 of the Communications Decency Act of 1996, 47 U.S.C. § 230 (CDA). See, e.g., M.A.
`v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 1058 (E.D. Mo. 2011) (Mot.
`at 17) (dismissing civil case against Backpage’s then-parent; “Congress has declared such
`websites to be immune from suits arising from such injuries.”). Yet Section 230 has no
`application to this federal criminal prosecution. Lacey, 423 F. Supp. 3d at 760.
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`Website operators have been prosecuted for promoting or facilitating the sale of
`other types of illegal goods and services. (See Doc. 649, Resp. at 20-21, discussing United
`States v. Ulbricht, 31 F. Supp. 3d 540, 556 (S.D.N.Y. 2014), and the Travel Act
`prosecutions of the operators of the prostitution advertising websites myRedBook.com and
`Rentboy.com.) During grand jury proceedings in this case, Judge Campbell recognized that
`federal law “criminalize[s] the knowing publication of an advertisement for illegal
`prostitution or other illegal activity.” (Doc. 194-1 at 66.) The SI alleges that Defendants
`did just that.
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`II.
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`Defendants’ Motion Is Not Based on Any Intervening Change in the Law or
`Any New Evidence Concerning this Case.
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`Defendants’ motion is not based on any intervening change in governing law, or
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`new trial evidence. Instead, Defendants assert the United States’ arguments about a
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`different statute, the Allow States and Victims to Fight Online Sex Trafficking Act
`(FOSTA), asserted in a pending appeal in a different case, Woodhull Freedom Found v.
`United States, D.C. Cir. Case No. 22-5105, have somehow altered the pleading standards
`in this case. (See Mot. at 4-6, 9, 11-12, 19.) Not so