Case 2:18-cr-00422-DJH Document 1585 Filed 05/12/23 Page 1 of 15
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`Timothy J. Eckstein, 018321
`Joseph N. Roth, 025725
`Sarah P. Lawson, 036436
`OSBORN MALEDON, P.A.
`2929 North Central Avenue, 20th Floor
`Phoenix, Arizona 85012-2793
`(602) 640-9000
`teckstein@omlaw.com
`jroth@omlaw.com
`slawson@omlaw.com
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`Attorneys for James Larkin
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`Additional counsel on following page
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`Case No. 2:18-cr-00422-PHX-DJH
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`DEFENDANTS’ REPLY IN
`SUPPORT OF MOTION TO
`DISMISS SUPERSEDING
`INDICTMENT
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`United States of America,
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`vs.
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`Michael Lacey, et al.,
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`Plaintiff,
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`Defendants.
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`Case 2:18-cr-00422-DJH Document 1585 Filed 05/12/23 Page 2 of 15
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`Paul J. Cambria, Jr. (NY 15873, admitted pro hac vice)
`Erin E. McCampbell (NY 4480166, admitted pro hac vice)
`LIPSITZ GREEN SCIME CAMBRIA LLP
`42 Delaware Avenue, Suite 120
`Buffalo, New York 14202
`(716) 849-1333
`pcambria@lglaw.com
`emccampbell@lglaw.com
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`Attorneys for Michael Lacey
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`Bruce S. Feder (AZ 004832)
`FEDER LAW OFFICE PA
`2930 E. Camelback Rd., Suite 160
`Phoenix, Arizona 85016
`(602) 257-0135
`bf@federlawpa.com
`
`Eric Walter Kessler
`KESSLER LAW OFFICE
`6720 N. Scottsdale Rd., Suite 210
`Scottsdale, Arizona 85253
`(480) 644-0093
`Eric.kesslerlaw@gmail.com
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`Attorneys for Scott Spear
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`Gary S. Lincenberg
`Ariel A. Neuman
`Gopi K. Panchapakesan
`BIRD, MARELLA, BOXER, WOLPERT, NESSIM,
`DROOKS, LINCENBERG & RHOW P.C.
`1875 Century Park E., Suite 2300
`Los Angeles, California 90067
`(310) 201-2100
`glincenberg@birdmarella.com
`gpanchapakesan.@birdmarella.com
`aneuman@birdmarella.com
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`Attorneys for John Brunst
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`David S. Eisenberg
`DAVID EISENBERG PLC
`3550 N. Central Ave., Ste. 1155
`Phoenix, Arizona 85012
`(602) 237-5076
`david@eisenbergplc.com
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`Attorneys for Andrew Padilla
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`Case 2:18-cr-00422-DJH Document 1585 Filed 05/12/23 Page 3 of 15
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`Joy Malby Bertrand
`JOY BERTRAND ESQ LLC
`P.O. Box 2734
`Scottsdale, Arizona 85252
`(480) 656-3919
`joyous@mailbag.com
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`Attorneys for Joye Vaught
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`Case 2:18-cr-00422-DJH Document 1585 Filed 05/12/23 Page 4 of 15
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`In its Response, the government does not contest the key premises of Defendants’
`Motion: (1) “[t]he phrase ‘promote or facilitate,’ as used in the Travel Act, is equivalent to
`‘aid or abet,’” Doc. 1557 at 4, Doc. 1557-1 at 45–46; and (2) aiding and abetting requires
`both the commission of an offense and that a defendant “intend[ed] to facilitate that
`offense’s commission.” Rosemond v. United States, 572 U.S. 65, 76 (2014). The Response does
`not identify any allegation in the Superseding Indictment (Doc. 230, “SI”) from which the
`grand jury could have determined that any Defendant’s actions constituted aiding and
`abetting a prostitution offense associated with any of the 50 charged ads. Because all the
`allegations in the indictment that purport to show Defendants’ knowledge and intent are
`untethered to the publication of the ads forming the basis of the Travel Act charges, or any
`associated prostitution offenses, the indictment alleges, at most, that Defendants agreed to
`facilitate “a ‘possibility,’ or a criminal wish[,] which simply isn’t a crime.” United States v.
`Superior Growers Supply, Inc., 982 F.2d 173, 178 (6th Cir. 1992).
`No prior order has decided the narrow issues presented here. The arguments raised
`are new and are prompted by the government’s recent assertions in the Woodhull appeal.
`Deferring these issues until trial only invites error.
`A.
`The government does not dispute that “promote” and “facilitate” as
`used in the Travel Act equate to aiding and abetting, and cannot evade
`alleging the elements of aiding and abetting.
`The government does not dispute that, for a non-principal, a charge of “promoting”
`or “facilitating” under the Travel Act is an aiding and abetting offense. See Doc. 1557-1 at
`45–46. Nor does the government dispute the elements of aiding and abetting: someone else
`committed an offense, the defendant acted with intent “to facilitate that offense’s
`commission,” and the defendant’s intent went “to the specific and entire crime charged.”
`Rosemond, 572 U.S. at 75–76; Doc. 1557 at 10. Seeking to salvage its defective indictment,
`the government contends (at 9) that the elements of aiding and abetting are not “essential
`elements” required in the indictment and that “whether an underlying state offense is ever
`accomplished is irrelevant under the Travel Act.” These arguments fail.
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`Case 2:18-cr-00422-DJH Document 1585 Filed 05/12/23 Page 5 of 15
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`First, the elements of aiding and abetting are “essential elements.” The Superseding
`Indictment does not charge Defendants with violating the Travel Act as principals, but with
`“the crime[] of facilitating prostitution.” SI ¶¶ 17; 196a (count 1, conspiracy to violate “18
`U.S.C. § 1952(a)(3)(A) (Travel Act – Facilitate Prostitution”); SI ¶ 200 (describing Counts 2-
`51 as “Travel Act – Facilitate Prostitution”). Regardless of what would be required for a
`principal, for these charges, the government cannot merely parrot the Travel Act to state an
`offense because the words “promote” and “facilitate” by themselves do not “fully, directly,
`and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to
`constitute the offence intended to be punished,” Hamling v. United States, 418 U.S. 113, 117
`(1974) (citation omitted). The government admits as much in Woodhull, when it explains that
`“whatever meaning ‘promote’ or ‘facilitate’ might have in everyday speech,” they are “terms
`of art” that “invoke[] traditional principles of accomplice liability” and “denote aiding-and-
`abetting liability under traditional principles of criminal law,” and, as such, “bring[] the old
`soil with it.” Doc. 1557-1 at 46, 58.
`A valid indictment for promoting or facilitating another’s violation of state law under
`the Travel Act must therefore “assert facts which in law constitute” the essential elements of
`aiding and abetting, Superior Growers, 982 F.2d at 177. See also United States v. Omer, 395 F.3d
`1087, 1088–89 (9th Cir. 2005) (failure to allege materiality was a “fatal flaw requiring
`dismissal,” as materiality was an essential element because bank fraud statute “incorporates
`the well-settled common-law meaning of fraud”).
`None of the cases the government cites here (Doc. 1577 at 9 (collecting cases))
`involves defendants alleged only to have “facilitated” the unlawful activity of others. In
`United States v. Tavelman, 650 F.2d 1133, 1138 (9th Cir. 1981), for example, the defendant was
`charged as a principal drug trafficker, not as a facilitator of another’s trafficking offense.
`Second, contrary to the government’s assertion that the commission of a state-law
`offense is irrelevant, the Ninth Circuit “require[s] that the specific elements of the underlying
`law that constitute the unlawful activity be found as elements of the Travel Act offense.”
`Myers v. Sessions, 904 F.3d 1101, 1110 (9th Cir. 2018). See also United States v. Hiatt, 527 F.2d
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`Case 2:18-cr-00422-DJH Document 1585 Filed 05/12/23 Page 6 of 15
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`1048, 1051 (9th Cir. 1975). As discussed in the Motion (Doc. 1557 at 13), these cases are
`consistent with the government’s Woodhull concession.
`The government contends (at 10) that Hiatt is distinguishable because it does not hold
`that a state law violation “must be alleged” to “survive a motion to dismiss,” and that Myers
`can be ignored because it does not discuss directly “the pleading requirements for Travel Act
`indictments.” But in each case, the Ninth Circuit unequivocally states that the Travel Act
`requires, as an element, an actual state law violation. That the permissible scope of Travel
`Act liability was addressed in contexts other than a pre-trial motion to dismiss does not alter
`their Travel Act holdings or their application to an argument for pre-trial dismissal.
`Moreover, the cases the government cites (at 9–10) shed little light on the question at
`hand, as each involved Travel Act (or related) charges against principal offenders who either
`committed (or attempted) the underlying state law offenses.1 As they concern only principal
`liability, those cases do not support the argument that a non-principal could be indicted for
`facilitating “unlawful activity” without alleging aiding and abetting elements.
`More fundamentally, the Response fails to explain how the government can square
`its contention here that a state law violation is “irrelevant” with its position in Woodhull that
`“promote” or “facilitate” means aiding and abetting, as aiding and abetting (1) aligns with
`the text of the Travel Act, and (2) requires as “an essential element . . . the occurrence of the
`underlying crime.” Superior Growers, 982 F.2d at 178.
`B.
`The government fails to show that the Superseding Indictment alleges
`the elements of aiding and abetting.
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`The government cannot credibly contend that the indictment alleges the key elements
`of aiding and abetting as it fails to allege, for any of the Travel Act counts, that someone
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`1 See, e.g., United States v. Gordon, 641 F.2d 1281, 1283–85 (9th Cir. 1981) (defendants used
`phones to bribe Nevada Gaming Commissioners); United States v. Stafford, 831 F.2d 1479,
`1480 (9th Cir. 1987) (defendant traveled to bribe a witness to prevent him “from informing
`the FBI” of federal crimes); United States v. Welch, 327 F.3d 1081, 1086 (10th Cir. 2003)
`(alleging defendants orchestrated scheme to bribe Olympics Committee officials in violation
`of state law); United States v. Montague, 29 F.3d 317, 318 (7th Cir. 1994) (charges against
`operator of escort businesses engaged in prostitution); United States v. Palfrey, 499 F. Supp. 2d
`34, 37–38 (D.D.C. 2007) (same).
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`committed a prostitution offense, that each Defendant acted with intent “to facilitate that
`offense’s commission,” or that each Defendant’s intent went “to the specific and entire crime
`charged.” Rosemond, 572 U.S. at 75–76. Instead, the Response argues: (1) aiding and abetting
`is always implied; (2) the indictment alleges the state law offense of “offering” or “soliciting”
`prostitution; and (3) the indictment alleges intent by asserting “Defendants knew the vast
`majority of” Backpage’s “‘adult’ ads were for prostitution.” Each of these arguments fails.
`1.
`Although aiding and abetting is implied in indictments alleging
`substantive offenses, a valid indictment must still allege an
`offense in the first place.
`This motion does not dispute that the elements of aiding and abetting are implied
`when a defendant is indicted as a principal of a substantive federal offense. However, where,
`as here, a defendant is charged as a promoter of someone else’s offense, the indictment must
`“assert facts which in law constitute” the essential elements of aiding and abetting. Superior
`Growers, 982 F.2d at 177.
`2.
`The indictment does not allege any underlying prostitution
`offenses.
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`The government argues (at 11) that it adequately alleges prostitution offenses, if one
`accepts that each charged ad actually was associated with illegal prostitution.
`That is not so. The mere placement or publication of a facially lawful ad could not
`violate, for instance, Arizona’s statute making it a crime to knowingly “offer[] to engage in
`sexual conduct under a fee arrangement with any person for money or any other valuable
`consideration,” A.R.S. § 13-3214(A).
`Only one of the 50 charged ads contains anything close to an “offer[] to engage in
`sexual conduct.” See SI ¶ 201 (Count 23) (listing prices for specific sex acts). “Sexual
`conduct” does not mean “sexual” activity in general, but rather specific sex acts: “fondling”
`or “manipulating” the “genitals, anus or female breast,” “sexual intercourse, oral sexual
`contact or sadomasochistic abuse.” A.R.S. § 13-3211(8), (9). At the same time, advertising
`for a wide range of sexual services, including for escort/dating services, stripping, live adult
`shows, or other adult services, is lawful and First Amendment protected. See A.R.S. § 13-
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`1422 (defining lawful “adult oriented businesses”); A.R.S. § 9-500.10 (expressly allowing
`escort and escort agency ads). An ad stating “girlfriend experience” or “GFE” (see Counts
`27-51) is not an “offer” to exchange money for “fondling” or “sexual intercourse.”2
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`3.
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`The indictment does not allege that Defendants knew about or
`intended any specific prostitution offense.
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`Glaringly absent from the Superseding Indictment is any allegation that any
`Defendant knew of any charged ad, knew of any exchange for “sexual conduct under a fee
`arrangement” associated with any charged ad, or knowingly acted to facilitate such an act of
`prostitution. Instead, the government (Doc. 1577 at 12) falls back on its global allegations
`that “Defendants knew the vast majority of [Backpage’s] ‘adult’ ads were for prostitution.”
`The indictment does not allege which of these fifty are among the “vast majority,” or with
`respect to any of the charged ads, that any Defendant had a “state of mind” that “extend[s]
`to the entire crime,” or an intent “to facilitate that offense’s commission,” or even knew
`about an offense’s commission. Rosemond, 572 U.S. at 75–76. The indictment’s failure to
`allege the “essential elements” of “knowledge of the underlying crime and intent to further
`it” compel dismissal. Superior Growers, 982 F.2d at 179-80.
`The government’s reliance (Doc. 1577 at 12) the willful ignorance doctrine is utterly
`misplaced. The classic application of that doctrine is in a drug smuggling case where a
`defendant “was aware of a high probability that [e.g., drugs were in the defendant’s
`automobile]” See Ninth Circuit Model Criminal Jury Instructions at 4.9; United States v. Jewell,
`532 F.2d 697, 702 (9th Cir. 1976) (involving drugs sealed in a secret compartment of a
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`2 The government does not cite a single case where a person has been charged, must less
`convicted, of solicitation based only on an ad (even one proposing a necessarily unlawful
`act). Instead, the government cites (at 11) two cases for the proposition that ads for “the
`sale of adults for sex” and “soliciting” are illegal. See Coyote Pub., Inc. v. Miller, 598 F.3d 592
`(9th Cir. 2010) (rejecting legal brothels’ challenge to restrictions on prostitution advertising);
`Erotic Serv. Provider Legal Educ. & Research Project v. Gascon, 881 F.3d 792 (9th Cir. 2018)
`(rejecting constitutional right to solicit and perform “sex for hire”). Those cases concern
`whether a state may restrict explicit prostitution ads, not whether someone could commit
`“solicitation” with a facially lawful advertisement of sexual, adult-oriented services.
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`car). But a Travel Act charge is a specific intent crime that requires more than mere
`knowledge. United States v. Gibson Specialty Co., 507 F.2d 446, 449 (9th Cir. 1974).
`Even if the willful ignorance doctrine applied, it would apply only as to the 50 ads,
`as this Court has already ruled that “[Defendants] were not indicted for facilitating the
`amorphous notion of ‘prostitution.’ They were indicted for facilitating (via publishing ads)
`on fifty distinct occasions where prostitutes, prostitution-related businesses, or other groups
`were involved in the business of prostitution.” Doc. 946 at 13. There is no allegation
`(implied or otherwise) that Defendants ignored these particular 50 ads. Rather, the
`government’s theory is that Defendants’ knowledge of any particular ad is irrelevant because
`these are 50 instances among millions, and Defendants knew the “vast majority” were for
`prostitution—a theory directly contrary to the traditional concepts of accomplice liability.
`The doctrine of willful ignorance cannot cure the failure to allege an essential element of the
`offense and the government does not cite any case to the contrary.
`The government’s assertion that knowledge can be imputed to all Defendants because
`Backpage’s business practices made “the publication of ads…reasonably foreseeable”
`likewise cannot save its deficient indictment. First, whatever benefit Pinkerton liability may
`afford the government with respect to its conspiracy charge, it has absolutely no application
`to the Travel Act charges nor can it substitute for alleging the essential Travel Act elements.
`Second, as to the conspiracy charge, although, under Pinkerton, a conspirator may be liable
`for a co-conspirator’s reasonably foreseeable substantive crimes committed in furtherance
`of the conspiracy, the indictment does not allege that any “co-conspirator” (i.e., any of the
`six defendants, Carl Ferrer, or Dan Hyer) was the principal here -- the person who posted
`any of the fifty charged ads. Thus, whether as to one of the Defendants or a co-conspirator,
`there is no allegation of “knowledge of all elements of the underlying crime.” United States v.
`McDowell, 498 F.3d 308, 315–16 (5th Cir. 2007) (reversing aiding-and-abetting conviction that
`relied on “patently insufficient” “inference upon inference”).
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`4.
`The government cannot distinguish Superior Growers.
`At bottom, the Superseding Indictment fails for the same reasons the indictment in
`Superior Growers was dismissed—it “pil[ed] inference upon inference” to fashion “a dragnet
`to draw in all substantive crimes.” 982 F.2d at 179. See Doc. 1557 at 15–16. The government
`is simply wrong when it claims (at 12–13) that the cases “could not be more different”
`because Defendants, unlike those in Superior Growers, “purposefully developed their website
`into a massive online marketplace for prostitution ads,” “assisted prostitutes and pimps” in
`placing ads, and had reason to believe the “adult ads were overwhelmingly for prostitution.”
`The indictments in both cases allege broad aiding-and-abetting conspiracy to use
`business practices (the sale of ads here; the sale of hydroponic and other growing equipment
`there) to make money by facilitating others’ illegal acts (prostitution here; marijuana growing
`there). In Superior Growers, the government alleged that defendants advertised in marijuana-
`related publications, marketed their growing equipment for the cultivation of marijuana,
`educated customers about marijuana cultivation, sold that equipment to customers who used
`it to grow marijuana, knew that their customers would use it to grow marijuana, and
`sometimes took payment in the form of illegal marijuana. See 982 F.2d at 175. The
`indictment thus contained numerous allegations that the defendants knew that some (if not
`the vast majority) of their customers would use their products for illegal purposes, yet the
`Sixth Circuit affirmed the dismissal of the indictment. Id. at 176–78.
`Critically, the Superior Growers indictment did not allege that defendants knew that their
`cultivation instructions “were given with defendants’ knowledge that a particular customer
`was planning to grow marijuana, and with defendants’ intent to assist that customer in
`the endeavor.” Id. at 178 (emphasis added). In other words, the government’s allegations
`that defendants knew the sale of their products would help some (even the “vast majority”)
`of their customers violate the law were insufficient. The government had to allege both that
`defendants knew that particular customers intended to violate the law and that defendants
`intended to assist those customers do so. Failing that, the indictment alleged only a
`conspiracy “to aid and abet a ‘possibility’ or a ‘criminal wish[,]’ which simply isn’t a crime.”
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`Id.3 Superior Growers is the only case identified in which the government asserted a theory like
`the Travel Act charges in this case, the S.I. has the same failures as in Superior Growers, and
`Superior Growers compels dismissal.
`Tellingly, the government leans on United States v. Ulbricht, 31 F. Supp. 3d 540, 556
`(S.D.N.Y. 2014), the prosecution against the creator and operator of the dark-web Silk Road
`marketplace. Doc. 1557 at 13. That case demonstrates exactly what is missing here:
`defendant’s direct involvement in criminal transactions by taking commissions on explicit
`narcotics sales, and even hiring hitmen to further his control over Silk Road. Ulbricht 31 F.
`Supp. 3d at 549. The government also points to guilty pleas for prosecutions against
`myRedBook.com and RentBoy.com. Those untested guilty pleas do no more than the guilty
`plea against Backpage to validate the government’s unprecedented Travel Act theory. See
`Doc. 1099, 12/4/2020 Tr. at 38 (“And I think one of the key things in my reason for denying
`the recusal is that this case is not about Backpage. Backpage was prosecuted in a separate
`case, entered a plea in a separate case. This case is about these individual defendants and
`whether they had specific knowledge of these ads as facilitating illegal activity.”).
`C.
`The Court should not defer until trial dealing with the issues raised here.
`1.
`The issue presently before the Court has not been decided.
`Relying on Docs. 793, 840, and 946, the government (at 7–8) contends that prior
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`orders act as a “law of the case” bar to the pending motion to dismiss, but those orders don’t
`address the pending issue: given the government’s recently adopted position that “promote”
`and “facilitate” under the Travel Act mean “aid” and “abet,” whether the indictment
`sufficiently alleges that Defendants aided and abetted specific state law prostitution offenses.
`
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`3 Cf., e.g., United States v. Sliwo, 620 F.3d 630, 636–37 (6th Cir. 2010) (reversing conviction
`when evidence “arguably shows that Defendant was engaged in a scheme with some sort of
`criminal purpose” but “fails to demonstrate that Defendant knew that this conspiracy”
`involved the specific crime charged); United States v. Perez-Melendez, 599 F.3d 31, 43–44 (1st
`Cir. 2010) (same).
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`2.
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`The government created a legal issue that this Court must
`address by taking in Woodhull and Hansen a position opposite
`to the one it had taken in this case.
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`The government created the need for this motion when it argued in November 2022
`that “promote or facilitate” under the Travel Act means “aid and abet.” Doc. 1557-1 at 45.
`The government reasserted at the January 11, 2023, oral argument before the D.C. Circuit
`that the terms promote or facilitate “invoke core concepts of aiding and abetting liability,
`and one of those core concepts, of course, is taking an actus reus that would in fact facilitate
`or promote the commission of the crime.” Doc. 1557-1 at 147, 150. The government
`reconfirmed this framing in a March 2023 oral argument before the Supreme Court in United
`States v. Hansen.4 Ex. A, Hansen Transcript, at 7:13-20 (asserting that a statue criminalizing
`the encouragement of an offense uses words that—like promote or facilitate here—“connote
`aiding . . . and abetting” which “bring the old soil with them.”)5
`The government’s positions in Woodhull and Hansen are irreconcilable with what it has
`repeatedly argued here -- that it need not prove “the intent to violate the state prostitution
`offense before [Defendants are] found guilty.” Doc. 1216-3 at 147; see also, e.g., Doc. 1216-3
`at 104 (asserting that there is no need for Defendants to have intended to violate the state
`prostitution offense). Indeed, the government still insists (at 12) it is enough that
`“Defendants knew the vast majority of their ‘adult’ ads were for prostitution and took steps
`to intentionally facilitate that activity.” As explained above, § B.3, the government’s view of
`the required intent here does not suffice under the traditional concepts of aiding and abetting.
`The government urges (at 15–16) the Court to disregard its statements in Woodhull
`because the statute at issue there (FOSTA) is not identical to the Travel Act, despite its
`explicit argument that “the phrase ‘promote or facilitate,’ as used in the Travel Act, is
`equivalent to ‘aid or abet,’” and that “FOSTA uses the phrase ‘promote or facilitate’ in the
`same way . . . to denote aiding-and-abetting liability under traditional principles of criminal
`law.” Doc. 1577-1 at 45–46 (emphasis added).
`
`4 The Court heard argument on March 27, 2023. The Court’s decision is pending.
`5 A transcript of the oral argument before the Supreme Court is attached as Exhibit A.
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`Case 2:18-cr-00422-DJH Document 1585 Filed 05/12/23 Page 13 of 15
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`The different procedural postures of this case and Woodhull are of no significance.
`The government has stridently argued in Woodhull what “promote” and “facilitate” mean for
`non-principals under the Travel Act. Under the Fifth Amendment, that principle -- that a
`non-principal defendant must have facilitated a particular principal’s commission of a
`particular state law offense -- applies with equal force to an indictment or a facial challenge
`to a statute like FOSTA. See also New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (noting
`possible consequences for party taking “clearly inconsistent” positions in litigation).
`Finally, this is the “proper vehicle for determining . . . the definitions of ‘promote,’
`‘facilitate,’ or other Travel Act terms.” Doc. 1577 at 15. In Hansen, the government argued
`at trial and before the Ninth Circuit that intent should be broadly defined, see United States v.
`Hansen, No., 17-10548, 2022 WL 424827, at *2 (9th Cir. Feb. 10, 2022), only to reverse course
`before the Supreme Court, conceding that the jury instructions it requested failed to
`incorporate “the same old soil [that] comes with” a “traditional aiding-and abetting statute,”
`causing error requiring remand and retrial. Ex. A, Hansen Transcript, at 10:19-23, 11:6-13.
`The government invites the Court to make a similar error here.
`
`3.
`The Government’s Remaining Arguments are Non-Responsive.
`Double Jeopardy. Although the government posits (at 16-17) that it cannot re-indict
`Defendants using 50 more “distinct occasions,” it fails to cite to a single point of law or court
`order that actually supports this position, effectively conceding that, on the government’s
`theory of the case, Defendants have no protection against being tried for 50 different ads.
`Money Laundering. The pleas of Carl Ferrer, Dan Hyer, and Backpage to various
`conspiracy offenses are of no consequence, as those pleas do not establish that the specific
`funds the government alleges were laundered were proceeds. Likewise, even though
`Defendants could, theoretically, be convicted of money laundering without having
`committed the offense that generated the subject proceeds (Doc. 1577 at 17), Defendants
`cannot have laundered money without either engaging in an offense or knowing that the
`subject monies resulted from a criminal offense.
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`Case 2:18-cr-00422-DJH Document 1585 Filed 05/12/23 Page 14 of 15
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`Grand Jury. The government seeks (at 18) to obfuscate, arguing about the disclosure
`of transcripts, but Defendants have not asked for transcripts to be disclosed—only that the
`Court review the instructions previously produced for in camera review to confirm the
`deficiencies in the government’s instructions to the grand jury. And, putting aside the dicta
`the government cites from United States v. Kenny, 645, 1323, 1347 (9th Cir. 1981), as to whether
`it must instruct a grand jury, there is no question that, once instructions are provided, they
`must correctly state the law. United States v. Navarro, 608 F.3d 529, 539 (9th Cir. 2010).
`DATED this 12th day of May, 2023.
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`OSBORN MALEDON, P.A.
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`By
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`s/ Joseph N. Roth
`Timothy J. Eckstein
`Joseph N. Roth
`Sarah P. Lawson
`2929 North Central, 20th Floor
`Phoenix, Arizona 85012-2794
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`Attorneys for James Larkin
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`LIPSITZ GREEN SCIME CAMBRIA LLP
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`By
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`s/ Paul J. Cambria, Jr. (w/permission)
`Paul J. Cambria, Jr. (pro hac vice)
`Erin E. McCampbell (pro hac vice)
`42 Delaware Avenue, Suite 120
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` Buffalo, New York 14202
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`Attorneys for Michael Lacey
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`FEDER LAW OFFICE PA
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`By
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`
`
`s/ Bruce S. Feder (w/permission)
`Bruce S. Feder
`2930 E. Camelback Road, Suite 160
`Phoenix, Arizona 85016
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`s/ Eric W. Kessler (w/permission)
`Eric W. Kessler
`6720 N. Scottsdale Rd., Suite 210
`Scottsdale, Arizona 85253
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`KESSLER LAW OFFICE
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`By
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`
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`Attorneys for Scott Spear
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`BIRD, MARELLA, BOXER, WOLPERT,
`NESSIM, DROOKS, LINCENBERG &
`RHOW P.C.
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`By
`
`
`s/ Gary S. Lincenberg (w/permission)
`Gary S. Lincenberg
`Gopi K. Panchapakesan
`Ariel A. Neuman
`1875 Century Park E., Suite 2300
`Los Angeles, California 90067
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`Attorneys for John Brunst
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`DAVID EISENBERG PLC
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`By
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`
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`s/ David S. Eisenberg (w/permission)
`David S. Eisenberg
`3550 N. Central Ave., Ste. 1155
`Phoenix, Arizona 85012
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`Attorneys for Andrew Padilla
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`JOY BERTRAND LAW
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`By
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`Attorneys for Joye Vaught
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`s/ Joy M. Bertrand (w/permission)
`Joy M. Bertrand
`P.O. Box 2734
`Scottsdale, Arizona 85252
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