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`Case 2:18-cr-00422-DJH Document 1587 Filed 06/01/23 Page 1 of 18
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`WO
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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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`Defendants.
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`
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`No. CR-18-00422-001-PHX-DJH
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`ORDER
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`
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`Defendants Michael Lacey, James Larkin, Scott Spear, John Brunst, Andrew
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`Padilla, and Joye Vaught (“Defendants”) have filed a Motion to Dismiss the Superseding
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`Indictment (Doc. 1557). The United States (“the Government”) has filed a Response
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`(Doc. 1577) and the Defendants have filed their Reply (Doc. 1585). Upon consideration
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`of the same, and for the reasons stated herein, the Court denies Defendants’ Motion. 1
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`I.
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`Background
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`On July 25, 2018, a federal grand jury returned a 100-count Superseding Indictment
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`(“SI”) against Defendants, alleging they engaged in various criminal acts while operating
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`the website Backpage.com (“Backpage”). (Doc. 230). Count 1 of the SI charges
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`Defendants with conspiracy to facilitate prostitution under the Travel Act, 18 U.S.C.
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`§ 1952(a)(3)(A) and Counts 2–51 charges them with fifty violations of facilitating
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`prostitution under the Travel Act, 18 U.S.C. § 1952(a)(3)(A). Each of the fifty violations
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`are based on fifty separate ads that were posted on Backpage (SI ¶¶ 195–201). Tracking
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`1 The Court finds this matter can be resolved adequately on the parties’ briefing and denies
`Defendants’ request for oral argument. See LRCrim 12.1(a); LRCiv. 7.2(f); United States
`v. Howell, 231 F.3d 615 (9th Cir. 2000).
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`Case 2:18-cr-00422-DJH Document 1587 Filed 06/01/23 Page 2 of 18
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`the language of the Travel Act, the SI alleges in part that Defendants:
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`used the mail and any facility in interstate and foreign 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, including but not
`limited to Title 13, Arizona Revised Statutes, Section 13-32142, 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. . .
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`(SI ¶ 201). The SI then identifies the fifty specific ads by date and description. (Id.) Fifteen
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`of the ads depict specific victims that are alleged to have been women who were sold for
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`sex on Backpage (SI ¶ 201, Counts 2, 4–5, 12–17, 19–24); ten of the ads were posted by
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`P.R, a prostitute who had extensive communications with one of the creators of Backpage,
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`C.F (SI ¶ 201, Counts 3, 6–11, 18, 25–26); and twenty-five ads contain the phrase “GFE,”
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`which the SI alleges is code for prostitution or underage prostitution. (SI ¶ 201, Counts
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`27–51). The SI further alleges that Defendants “were aware that the overwhelming
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`majority of the website’s ‘adult’ and ‘escort’ ads were actually ads for prostitution” and
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`makes various allegations that Defendants knew their marketing efforts to prostitution
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`advertisers were successful. (See e.g., SI ¶¶ 34, 70, 71, 73, 76, 81, 107, 132, 135). It
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`describes three specific strategies Backpage and Defendants used to attract more
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`prostitution ads: content aggregation (SI ¶¶ 35–44), reciprocal link and affiliate programs
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`(SI ¶¶ 45–67), and moderating ads to “sanitiz[e]” them. (SI ¶¶ 68–70, 72–73, 75, 77–96,
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`98–104, 108, 110, 112, 116–26, 128–30, 132–34, 136, 139, 143, 145, and 148). The SI
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`also includes “victim summaries” of women who were sold for sex on Backpage and
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`describes how Backpage handled ads submitted by these victims and/or their pimps. (SI
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`¶¶ 160–176).
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`The remaining offenses in the SI allege counts for money laundering and forfeiture.
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`(SI ¶¶ 202–11).3 The Court has gone into even more detail about the allegations of the SI
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`2 A.R.S. § 13-3214 makes it “unlawful for a person to knowingly engage in prostitution.”
`3 Defendant Hyer has pled guilty to Count 1, conspiracy to violate the Travel Act, and
`awaits sentencing.
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`Case 2:18-cr-00422-DJH Document 1587 Filed 06/01/23 Page 3 of 18
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`in several previous Orders and will adopt the remaining description provided in its October
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`24, 2019, Order denying Defendants’ Motion to Dismiss. (See Doc. 793 at 1–7; see also
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`Doc. 561 at 3–11).
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`Since their indictment, Defendants have sought dismissal of the SI on sufficiency
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`grounds no less than three times. (See Docs. 561, 746, 783). Following a mistrial in
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`September 2021 (Doc. 1308), Defendants moved to dismiss the SI on double jeopardy
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`grounds (Doc. 1355). This Court denied the motion in December 2021 (Doc. 1444), and
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`Defendants appealed (Doc. 1445). The Ninth Circuit affirmed the Court’s denial and
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`remanded the case for trial, which is currently set for August 8, 2023. (Docs. 1469; 1546).
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`Given this case’s protracted procedural history and many past rulings on the sufficiency of
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`the SI, in the Court’s February 17, 2023, Order Setting a Final Pretrial Conference
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`(“FPTO”), the parties were informed that the law of the case doctrine would preclude the
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`Court from accepting new motions that were not based on new law or facts.
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`(Doc. 1524 at 4).
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`II.
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`Legal Standards
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`An indictment must contain a “plain, concise, and definite written statement of the
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`essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). “An indictment
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`is sufficient if it, first, contains the essential elements of the offense charged and fairly
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`informs a defendant of the charge against which he must defend, and, second, enables him
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`to plead acquittal or conviction in bar of future prosecutions for the same offense.” Hamling
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`v. United States, 418 U.S. 87, 117 (1974). Accord United States v. Cecil, 608 F.2d 1294,
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`1297 (9th Cir. 1979). A defendant may move to dismiss an indictment for failure to state
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`an offense under Federal Rule of Criminal Procedure 12. Fed. R. Crim. P. 12(b)(3)(B)(v).
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`When a count charged by an indictment fails to recite an essential element of the offense,
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`that count is facially defective and must be dismissed. United States v. Pernillo-Fuentes,
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`252 F.3d 1030, 1032 (9th Cir. 2001). In assessing such a motion, a court must accept the
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`allegations in the indictment as true and “analyz[e] whether a cognizable offense has been
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`Case 2:18-cr-00422-DJH Document 1587 Filed 06/01/23 Page 4 of 18
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`charged.” United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002). The court “is bound
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`by the four corners of the indictment” and may not consider evidence that does not appear
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`on its face. Id.
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`The law of the case doctrine “generally provides that when a court decides upon a
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`rule of law, that decision should continue to govern the same issues in subsequent stages
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`in the same case.” Askins v. U.S. Dep’t of Homeland Sec., 899 F.3d 1035, 1042 (9th Cir.
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`2018) (cleaned up). Under the doctrine, “‘a court is generally precluded from reconsidering
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`an issue that has already been decided by the same court, or a higher court in the identical
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`case,’ absent a material change in circumstances.” Thomas v. Bible, 983 F.2d 152, 154
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`(9th Cir. 1993). “For the doctrine to apply, the issue in question must have been decided
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`either expressly or by necessary implication in the previous disposition.” Id. (internal
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`quotations and alterations omitted). If the issue in question has already been decided, then
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`reconsideration of the order is generally only permitted if “the prior decision is ‘clearly
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`erroneous’ and enforcing it would create ‘manifest injustice’; intervening, controlling
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`authority encourages reconsideration; or substantially different evidence is produced at a
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`later merits trial.” East Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1262 (9th Cir.
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`2020). “The doctrine encourages the conservation of limited judicial resources and
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`promotes consistency by allowing court decisions to govern the same issues in subsequent
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`stages of the same case.” Id. at 1261.
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`III. Defendants’ Motion to Dismiss
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`On March 30, 2023, Defendants filed a Motion to Dismiss that again challenged the
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`sufficiency of the SI. (Doc. 1557). In their Motion, Defendants primarily argue that the
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`Travel Act charges in the SI are aiding and abetting offenses and as a result, the SI is fatally
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`defective because it does not allege “with respect to each charged ad, both that someone
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`committed a prostitution offense and that Defendants intended to facilitate the commission
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`of that specific prostitution offense.” (Id. at 9–10). Defendants say the Court should adopt
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`this interpretation of the Travel Act because (1) the Court should hold the Government to
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`Case 2:18-cr-00422-DJH Document 1587 Filed 06/01/23 Page 5 of 18
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`its position in Woodhull4 that the terms “promote” and “facilitate” in the Allow States and
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`Victims to Fight Online Sex Trafficking Act (“FOSTA”) are equivalent to “aid and abet”;
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`(2) the text of the Travel Act “maps neatly on the universal aiding-and-abetting elements
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`reflected in the Ninth Circuit Model Criminal Jury Instructions;” (3) Ninth Circuit law
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`requires that the Government prove, as elements of a Travel Act offense, all the elements
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`of the underlying law that constitutes the unlawful activity Defendants allegedly violated;
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`and (4) if the Travel Act did not require the Government to establish that Defendants were
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`guilty of aiding and abetting an underlying criminal offense, the Act would be
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`unconstitutional as applied. (Doc. 1557 at 13–14). Defendants also argue dismissal of the
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`money laundering counts, and seek dismissal of the entire SI on double jeopardy grounds
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`and on the assumption that the grand jury was not properly instructed on aiding and
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`abetting. (Doc. 1557 at 18–21).
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`The Government argues that Defendants are simply restyling old arguments they
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`have already presented to this Court. It asserts that “Defendants have made these
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`arguments before, and the Court has found them insufficient to require dismissal.
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`Defendants cite no intervening change in the law, and no new facts about this case to
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`warrant reconsideration.” (Doc. 1577 at 7). The Government also disagrees that to
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`sufficiently allege Travel Act charges the Government must plead traditional elements of
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`aiding and abetting offenses, but that even if such were required, the SI sufficiently alleges
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`as much, either explicitly—or, as allowed under Ninth Circuit law—implicitly. (Id. at 14).
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`In its Reply, Defendants argue that “[n]o prior order has decided the narrow issues
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`presented here. The arguments raised are new and are prompted by the government’s
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`recent assertions in the Woodhull appeal. Deferring these issues until trial only invites
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`error.” (Doc. 1585 at 4).
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`IV. Analysis
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`The Travel Act makes it a federal offense for a person to “travel[] in interstate or
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`foreign commerce or use[] the mail or any facility in interstate or foreign commerce, with
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`4 Woodhull Freedom Found’n v. United States, No. 22-5105 (D.C. Cir. argued Jan. 11,
`2023).
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`intent to. . . promote, manage, establish, carry on, or facilitate the promotion, management,
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`establishment, or carrying on, of any unlawful activity.” 18 U.S.C. § 1952(a)(3). Broken
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`into its textual pieces, the Ninth Circuit requires that “[a]n indictment under the Travel Act
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`[allege] each of the three elements of the crime: (1) interstate commerce or use of an
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`interstate facility (2) with intent to promote an unlawful activity and (3) a subsequent overt
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`act in furtherance of that unlawful activity.” United States v. Tavelman, 650 F.2d 1133,
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`1138 (9th Cir. 1981). See also United States v. Gordon, 641 F.2d 1281, 1284 (9th Cir.
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`1981) (stating “it is clear that the statutory language embodies all of the essential elements
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`[of a Travel Act indictment] and that reference to state law is necessary only to identify the
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`type of unlawful activity involved”) (cleaned up).
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`The Ninth Circuit has clarified that “[t]he Travel Act does not require the
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`commission of the predicate offense; rather, only an ‘attempt[ ] to promote’ the unlawful
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`activity, 18 U.S.C. § 1952(a), with ‘a subsequent overt act in furtherance of that unlawful
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`activity.’” United States v. Stafford, 831 F.2d 1479, 1482 (9th Cir. 1987) (citing Tavelman,
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`650 F.2d at 1138). The intent required under the Travel Act is the “specific intent to
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`facilitate an activity which the accused knew to be unlawful under state law.” United States
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`v. Polizzi, 500 F.2d 856, 876–77 (9th Cir. 1974). See also United States v. Gibson Specialty
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`Co., 507 F.2d 446, 449 (9th Cir. 1974) (to obtain a conviction under the Travel Act, the
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`Government must show Defendants had “specific intent to promote, manage, establish,
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`carry on or facilitate one of the prohibited activities”). The Travel Act does not contain
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`the words “aid or abet.”
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`The SI does not charge Defendants with the federal offense of aiding and abetting,
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`but for purposes of comparison, the Court finds it helpful to look at what is required of that
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`offense. The federal aiding and abetting statute, 18 U.S.C. § 2 derives from common-law
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`standards for accomplice liability and states that a person who “aids, abets, counsels,
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`commands, induces or procures” in the commission of a federal offense “is punishable as
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`a principal.” 18 U.S.C. § 2; Rosemond v. U.S., 572 U.S. 65, 70 (2014). “As at common
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`law, a person is liable under § 2 for aiding and abetting a crime if (and only if) he (1) takes
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`an affirmative act in furtherance of that offense, (2) with the intent of facilitating the
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`Case 2:18-cr-00422-DJH Document 1587 Filed 06/01/23 Page 7 of 18
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`offense’s commission.” Rosemond, 572 U.S. at 71. “In proscribing aiding and abetting,
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`Congress used language that ‘comprehends all assistance rendered by words, acts,
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`encouragement, support, or presence’ . . . —even if that aid relates to only one (or some)
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`of a crime’s phases or elements.” Id. at 73. At trial, the Government must prove that the
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`offense has been committed but need not establish that the principal offender be convicted
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`or even identified. Feldstein v. United States, 429 F.2d 1092, 1095 (9th Cir. 1979). The
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`intent required to aid and abet “must go to the specific and entire crime charged.” Id. at
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`76. “An intent to advance some different or lesser offense is not, or at least not usually,
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`sufficient.” Id. The Court has clarified, however, that “a person who actively participates
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`in a criminal scheme knowing its extent and character intends that scheme’s commission.”
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`Id. at 77 (citing with approval United States v. Easter, 66 F.3d 1018, 1024 (9th Cir. 1995)
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`(correctly finding that unarmed driver of a getaway car had the requisite intent to aid and
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`abet an armed bank robbery if he “knew” his cohorts would use weapons in carrying out
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`the crime)). See also United States v. Goldtooth, 754 F.3d 763, 769 (9th Cir. 2014)
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`(reversing defendants’ convictions for aiding and abetting robbery on Indian reservation
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`because there was no evidence that defendants had foreknowledge that robbery was to
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`occur).
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`The Court finds that its prior rulings have addressed and rejected the reasons
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`Defendants offer as support for why the Court should find the SI deficient for failure to
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`allege the elements of aiding and abetting. Defendants have not shown these rulings are
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`“clearly erroneous,” that enforcing them would create manifest injustice, or that
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`intervening, controlling authority encourages reconsideration. East Bay Sanctuary
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`Covenant, 950 F.3d at 1262. The Court also finds, however, that the SI is also not deficient
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`for insufficiently alleging elements of aiding and abetting. Finally, the Court declines to
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`reconsider its prior rulings and dismiss the SI due to double jeopardy concerns, the
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`independent-standing money laundering counts, or on assumptions that the grand jury was
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`erroneously instructed.
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`A.
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`There is No Cause to Reconsider the Court’s Prior Rulings Regarding
`the Alleged Deficiencies of the Travel Act Counts
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`This Court has previously held, after extensive reviews of the allegations in the SI,
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`that the SI sufficiently alleges the necessary elements of Travel Act offenses and
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`constitutionally puts Defendants on notice of how to defend against the Travel Act crimes
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`alleged against them. The Court rejects Defendants’ premise that the Travel Act offenses
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`require the Government to allege the elements of aiding and abetting to satisfy Federal
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`Rule of Criminal Procedure 7. Finding no cause in Defendants’ Motion to change its prior
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`findings, these rulings will continue to govern.
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`1.
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`The SI sufficiently alleges specific “unlawful activity”
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`The Court has already found “that the SI alleges ‘unlawful activity’ for each Travel
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`Act Count with adequate specificity to inform Defendants of their charges.” (Doc. 946 at
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`9) (specifically finding that “the SI alleges fifty instances where Defendants posted ads on
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`Backpage.com to facilitate specific individual prostitutes or pimps involved in the business
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`of prostitution. (SI ¶¶ 200-201.)”). In their Motion, Defendants now argue that the Travel
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`Act charges are deficient in part because they do not allege that someone committed the
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`underlying offense (or in the context of the Travel Act language, the “unlawful activity”).
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`(Doc. 1557 at 10). Defendants say that “‘settled legal concepts’ of ‘aiding and abetting’
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`and the ‘traditional principles of accomplice liability’ definitively require, as elements of
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`the charge, proof of (1) commission of an offense by someone . . .” (Id. at 11 citing
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`Rosemond, 572 U.S. at 76).
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`The Court disagrees, again. (See Doc. 840 at 10–11 (rejecting argument that SI must
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`allege that Defendants or anyone commit the predicate offense). The Ninth Circuit does
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`not require that an indictment allege someone committed the predicate offense to put
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`Defendants on notice that they have been charged with facilitating or promoting state law
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`prostitution offense under Section 1952(a)(3). See Stafford, 831 F.2d at 1482 (“[t]he Travel
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`Act does not require the commission of the predicate offense; rather, only an ‘attempt[ ] to
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`promote’ the unlawful activity, 18 U.S.C. § 1952(a), with ‘a subsequent overt act in
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`furtherance of that unlawful activity.’”) (citing Tavelman, 650 F.2d at 1138). Accord
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`McIntosh v. United States, 385 F.2d 274, 277 (8th Cir. 1967) (“accomplishment of the State
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`substantive offense is not a prerequisite to Travel Act conviction.”) (citations omitted);
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`United States v. Palfrey, 499 F.Supp.2d 34 (D.C. Cir. 2007) (rejecting insufficiency of
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`indictment for failure to alleged the elements of the predicate state offense: “The
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`Indictment must allege the essential elements of the offense with which Defendant is
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`charged, namely, violations of the Travel Act . . . The elements of the predicate state
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`offenses are not essential elements of the Travel Act violations.”) (internal citation
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`omitted); United States v. Welch, 327 F.3d 1081, 1092 (10th Cir. 2003) (“An actual
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`violation of [the Utah Commercial Bribery Statute] is not an element of the alleged Travel
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`Act violations in this case and need not have occurred to support the Government’s § 1952
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`prosecution”); United States v. Montague, 29 F.3d 317, 322 (7th Cir. 1994) (“Section 1952
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`does not require that the state crime ever be completed.”). As Stafford and Tavelman make
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`clear, the Travel Act requires only that the indictment allege the essential element of “a
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`subsequent overt act in furtherance of that unlawful activity,” not that someone committed
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`the underlying offense. Tavelman, 650 F.2d at 1138. And as this Court has informed the
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`parties before, the SI here clears that hurdle. (Doc. 840 at 10–11).
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`Moreover, the Ninth Circuit cases cited by Defendants do not require that a Travel
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`Act indictment allege the underlying offense has been committed. (See Doc. 1557 at 13
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`citing Myers v. Sessions, 904 F.3d 1101 (9th Cir. 2018), United States v. Hiatt, 527 F.2d
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`1048 (9th Cir. 1975), and United States v. Bertman, 686 F.2d 772 (9th Cir. 1982)). Myers
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`stated that “a specific ‘unlawful activity’ is an element of a Travel Act offense” in finding
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`a defendant was removable for a controlled substance offense. 904 F.3d at 1107–08. The
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`focus of the inquiry in Myers was whether, under the Taylor-Descamps framework for
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`determining whether a specific conviction is a predicate offense mandating removal under
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`the Immigration and Nationality Act (“INA”), the Travel Act was “divisible,” which in
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`turn depended on “whether a statute’s ‘listed items are elements or means.’” Id. at 1107.5
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`The court phrased the specific issue as: “whether it is necessary to identify a specific
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`unlawful act to obtain a conviction under the Travel Act, or whether it would be sufficient
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`to conclude that the defendant committed one or more of the crimes listed in § 1952(b)
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`5 Taylor v. United States, 495 U.S. 575 (1990) and Descamps v. United States, 570 U.S.
`254 (2013).
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`without specifying or reaching agreement on which crime.” Id. It concluded that “a
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`specific ‘unlawful activity’ [was] an element of a Travel Act offense” under that
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`framework. Id. at 1108. Myers, quite simply, did not discuss the essential elements
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`required for a Travel Act indictment, or purport to overrule or modify the elements required
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`Stafford or Tavelman, neither of which the Myers decision mentioned. Instead, in using
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`the language of the divisibility test under Taylor-Descamps, the court characterized the
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`specific unlawful activity that defendant was charged with as an “element” and not a
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`“means” for purposes of finding him removable. Id.
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`United States v. Hiatt, which predates Tavelman, also does not redefine the required
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`essential elements for a Travel Act indictment. 527 F.2d at 1050. The defendant there
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`argued that his conviction was a constitutional impossibility because the Alaska
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`prostitution statute on which his Travel Act conviction was based had been found to be
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`unconstitutional by some lower courts. Id. In assessing the defense, the court stated that
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`“[i]t is correct that the existence of a state law violation is an element of the violation of
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`the Travel Act and that the court must make a determination of whether the underlying
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`state law has been or could have been violated.” Id. at 1051 (emphasis added). The court
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`therefore determined that if the alleged “unlawful activity” underlying a Travel Act
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`violation was not unlawful, because, for example, the statute criminalizing the conduct was
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`unconstitutional, a defendant could be not convicted for promoting or facilitating in the
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`promotion of such activity. Id. Accord Bertman, 686 F.2d at 774 (finding that when the
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`unlawful activity is the violation of state law, “[t]he government [] must prove as part of
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`the Travel Act charge that the defendant has or could violated the underlying state law, and
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`the defendant may assert any relevant substantive state law defense”). Neither Hiatt or
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`Bertman stand for the proposition that an indictment’s failure to allege that the underlying
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`offense has been committed by someone renders an indictment defective.6 Both cases
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`instead stand for the proposition that defendants indicted for unlawful activity under state
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`law are entitled to present defenses to those state law offenses at trial.
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`6 Notably, here, the SI alleges the existence of a specific state law violation. (See SI ¶ 201).
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`Indeed, even if the Court were to assume that the evidentiary burdens of an aiding
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`and abetting offense govern the SI’s Travel Act charges, whether the Government has
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`offered sufficient proof of the commission of an offense by another is an issue that goes to
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`the Government’s burden at trial, not whether the SI sufficiently alleges a Travel Act
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`charge under Section 1952(a)(3). The Court has already told Defendants that determining
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`whether specific conduct alleged in the SI in fact qualifies as “unlawful activity” on a
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`motion to dismiss is improper:
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`Defendants’ concern that each ad is not in fact connected to a business
`enterprise involving prostitution is premature at this stage.[] When
`considering the totality of the allegations, the Court finds that publishing an
`online ad in support of individuals seeking to repeatedly market themselves
`or others for sex could constitute a violation under the Act for facilitating a
`“business enterprise involving prostitution.” But whether these allegations
`in fact constitute a violation is not the question before the Court. Rather,
`the question right now is whether the Travel Act elements are sufficiently
`alleged to fairly inform Defendants of their charges, not whether the
`Government has proven its case. Buckley, 689 F.2d at 897. The other
`question of whether facts support a finding of a “business enterprise
`involving prostitution” is reserved for the fact-finder, and jumping to pre-
`trial evidentiary conclusions concerning whether specific conduct in fact
`qualifies as “unlawful activity” is improper. Jensen, 93 F.3d at 669. Here, the
`Court merely concludes that the SI adequately alleges the necessary Travel
`Act elements and cannot be dismissed.
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`(Doc. 946 at 12–13) (emphasis added). Defendants encourage the Court not to defer on
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`this question until trial. But it is improper for Defendants to “challenge an indictment,
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`sufficient on its face, on the ground that the allegations are not supported by adequate
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`evidence.” United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996) (quoting United States
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`v. Mann, 517 F.2d 259, 267 (5th Cir. 1975)). The proper forum for challenging whether
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`there is adequate evidence is at trial. See id. (“By basing its decision on evidence that
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`should only have been presented at trial, the district court in effect granted summary
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`judgment for the defendants. This it may not do.”); see also United States v. Critzer, 951
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`F.2d 306, 307 (11th Cir. 1992) (“Nor do the [criminal] rules provide for a pre-trial
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`determination of sufficiency of the evidence.”). And to the extent Defendants are asking
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`the Court to rule on the properness of a proposed jury instruction, it also finds the request
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`premature. The Court has ordered the parties to submit their proposed jury instructions
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`and it will consider those arguments in due course. For purposes of this Motion, the Court
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`reaffirms the sufficiency of the Travel Act charges in the SI.
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`2.
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`The SI alleges sufficient mens rea for the Travel Act charges
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`In arguing that the Travel Act charges should be pled as aiding and abetting charges,
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`Defendants also seek to impose the requirement that the Government “prove, with respect
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`to each charged ad . . . that Defendants intended to facilitate the commission of that specific
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`[prostitution] offense.” (Doc. 1557 at 10). The Court has already confirmed the appropriate
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`mens rea standard under the Travel Act:
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`[t]he Government’s proposed mens rea standard, specific intent to promote
`or facilitate prostitution, is consistent with Gibson, Tavelman, and Polizzi—
`the Ninth Circuit cases discussing intent requirements of the Travel Act. The
`SI alleges the Defendants intentionally identified prostitutes, created free
`Backpage ads for them, and used those ads to try to secure future business.
`(SI ¶¶ 9, 36). They also helped known prostitution advertisers (Dollar Bill
`and P.R.) avoid their decency filters and attempted to “conceal the true nature
`of the ads being posted on” Backpage. (SI ¶¶ 11, 59–67, 132). Unlike the
`defendants in Gibson, where there was “no evidence . . . from which one
`could infer that the defendants associated with, participated in or sought to
`make succeed” the criminal venture, the SI meets Gibson’s test of requiring
`Defendants to in “some significant manner associate[]” themselves with the
`“criminal venture for the purpose of its advancement.”
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`(Doc. 793 at 18). Relatedly, in their Reply, Defendants argue that Defendants’ knowledge
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`and intent of the prostitution offenses is “untethered” to the ads that form the basis of the
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`charges, and that this “possibility” or “wish” of unlawful activity is simply not a crime.
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`(Doc. 1585 at 4). The Court has also previously rejected this assertion and identified the
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`many specific facts tethering Defendants’ actions to their knowledge that posting the fifty
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`ads would facilitate the business of prostitution. In its October 24, 2019, Order, the Court
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`explained:
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`Larkin regularly met with C.F. after the purported sale to discuss and direct
`the operation of Backpage. (SI ¶ 32). Larkin, Spear, Hyer, and C.F. attended
`meetings where the Dallas aggregation plan or the business relationship with
`TER was on the agenda. (SI ¶¶ 38–42, 47–48). Lacey sent Larkin a draft
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`editorial arguing Backpage brought “the oldest profession in the world . . .
`transparency.” (SI ¶ 137). Larkin reviewed the editorial, forwarded it to C.F.,
`and instructed him to remove any references to editing posts. (SI ¶¶ 107–08).
`Padilla helped supervise Backpage’s moderators. (SI ¶ 12). Larkin, Spear,
`and C.F. met to discuss trade with TER. (SI ¶ 47). C.F. sent Larkin, Spear,
`and Brunst a “Backpage strategic plan” that included “expand relationship
`with TER.” (SI ¶ 49). Padilla emailed (with Vaught cc’d or as a recipient)
`Backpage’s India-based moderators to tell them to be “more lenient.” (SI. ¶¶
`93, 99). Padilla and Vaught were sent an email informing them that their
`credit card processing company expressed concern about prostitution ads.
`Vaught directed a moderator to not remove “sex for money” links from ads.
`(SI ¶ 139). Vaught received an email from a moderato