Case 2:18-cr-00422-DJH Document 1612 Filed 06/15/23 Page 1 of 7
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`DAVID EISENBERG
`DAVID EISENBERG, P.L.C.
`3550 N. Central Avenue, Ste. 1155
`Phoenix, Arizona 85012
`Arizona State Bar No. 017218
`Telephone: 602.237.5076
`Email: david@deisenbergplc.com
`Attorney for Defendant Andrew Padilla
`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF ARIZONA
`
`United States of America,
`
`NO. CR-18-00422-PHX-DJH
`
` Plaintiff,
`vs.
`
`Michael Lacey, et al.,
`
` Defendants.
`
`DEFENDANTS’ RESPONSE TO
`GOVERNMENT’S MOTION IN
`LIMINE TO PRECLUDE DEFENSE
`FROM ARGUING LEGALITY OF ADS
`(Doc. 1592)
`
`(Oral argument requested)
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`Case 2:18-cr-00422-DJH Document 1612 Filed 06/15/23 Page 2 of 7
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` The Court should deny the government’s request to preclude Defendants from
`characterizing “any advertisement, charged or uncharged” as being legal or illegal, or eliciting
`such testimony from witnesses, for several reasons. First, the government is wrong that the
`jury will never assess whether any of the charged ads are “legal” or “illegal,” as the jury will
`need to determine whether each of the charged ads, on its face, proposes a transaction that
`necessarily would constitute an illegal act. The government’s characterization of the issues to
`be decided by the jury ignores the fact that the government cannot prosecute Defendants,
`under the Travel Act or otherwise, for publishing the charged ads if the publication of those
`ads was protected by the First Amendment. The Travel Act is a statute of general application
`that does not directly target speech, but that does not mean that the government’s proposed
`application of the statute escapes First Amendment scrutiny. To the contrary, the government:
`
`may not harness generally applicable laws to abridge speech
`without first ensuring the First Amendment would allow
`it.…Laws cast in broad terms can restrict speech as much as laws
`that single it out.…General or not, the First Amendment applies
`when [a law] is used to silence protected speech.
`People for the Ethical Treatment of Animals, Inc. v. N. Carolina Farm Bureau Fed’n, Inc., 60 F.4th 815,
`827-28 (4th Cir. 2023). Further, the question of whether the First Amendment protected
`Backpage’s publication of each charged ad will not depend on whether the government can
`prove an ad was “associated with unlawful activity,” but whether it can prove the ad on its
`face “propose[d] an illegal transaction.” Valle Del Sol Inc. v. Whiting, 709 F3d 808, 822 (9th Cir
`2013). And that means proving the “consummation of th[e] transaction” proposed in an ad
`“would necessarily constitute an illegal act.” Centro de la Comunidad Hispana de Locust Valley v.
`Town of Oyster Bay, 868 F.3d 104, 114 (2d Cir. 2017) (emphasis in original). For this reason, the
`government’s discussion of ads for firearms and billiards widely misses the mark, as whether
`such ads would be protected by the First Amendment turns not on the definition of a machine
`gun or whether a billiards ad is “indicative of illegal activity,” but whether the ads proposed
`necessarily unlawful transactions—and they plainly did not.1
`
`1 Additionally, as the government contends Defendants violated the Travel Act, the
`government must prove, for each charged ad, that each Defendant specifically intended to
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`Case 2:18-cr-00422-DJH Document 1612 Filed 06/15/23 Page 3 of 7
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`Second, in its indictment, throughout its opening statement, and through testimony
`
`elicited from its witnesses at the first trial, the government repeatedly characterized ads on
`Backpage.com as being “legal” or “illegal,” whether directly or indirectly. During its opening
`statement, the government claimed:
`
`“How could these defendants create and run this website for nearly 14 years knowing
`that they were facilitating this illegal conduct?” Doc. 1341 at 6:3-5.
`“[B]ecause of the vast array of prostitution ads on Backpage, individuals could pay
`extra to have their ads moved to the top.” Id. at 9:11-13.
`“Backpage generated a large amount of their revenue based on charging these
`individuals to post their prostitution ads…” Id. at 9:24-10:1.
`“You looked at the vast amount of prostitution ads in the Sacramento escort section
`of Backpage.” Id. at 11:4-6.
`“[A] moderator was [] a former Backpage employee whose job was supposed to be
`preventing illegal ads, preventing prostitution ads from being posted on
`Backpage.com…” Id. at 20:20-23.
`“But while they were asserting to NCMEC and others that they were doing all they
`could to prevent the illegal ads from being posted on the website, evidence will show
`that these defendants’ main concern was making money.” Id. at 30:9-12.
`“And the evidence will show that these defendants…sent CNN a quote that Backpage
`is steadfast in its opposition of its website being used for criminal activity, and they
`also included…safety measures that they had implemented to ensure or attempt to
`prevent illegal ads from being posted on the website…” Id. at 31:16-21.
`“[T]he ads on Backpage.com were nothing less than prostitution ads. And knowing
`this, they took steps to facilitate the prostitution crimes being committed by folks
`who were posting these ads on the website…” Id. at 40:19-24.
`
`promote or facilitate the “business enterprise” allegedly associated with the ad and allegedly
`involved in “prostitution offenses in violation of the laws of the State in which they [we]re
`committed.” 18. U.S.C. § 1952(b). As the government does not allege, nor could it prove,
`that any Defendant knew about any charged ad, or knew anything about the persons
`associated with any ad or their activities, the jury will have only the ads themselves to assess,
`so whether the ads propose facially lawful or facially unlawful transactions plainly will be
`relevant. See IMDB.com Inc. v. Becerra, 962 F.3d 1111, 1123 (9th Cir. 2020) (rejecting
`interpretation of “Pittsburgh Press [that] would require this court to permit the restriction not
`only of speech that proposes an illegal activity but also facially inoffensive speech that a
`third-party might use to facilitate its own illegal conduct…[N]othing in the First
`Amendment nor our precedent permits th[at] drastic step…”).
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`Case 2:18-cr-00422-DJH Document 1612 Filed 06/15/23 Page 4 of 7
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`Calling ads “prostitution ads” is, of course, tantamount to calling them “illegal ads.”
`Moreover, during the examination of its first witness, Special Agent Supervisor Fichtner, the
`government and Fichtner continued to characterize Backpage.com ads as legal or illegal:
`
`Q. And what did you do next? A. Then I placed a phone call to Carl Ferrer… And he
`said he also identified another advertisement that was linked to that escort ad, but it
`didn’t appear to be illegal because it was a sofa for sale. Doc. 1334. at 46:2-3;
`46:20-22.
`Q. Did you again raise the issue of prostitution ads with her during your call? A. I
`did. I pointed out that, you know, a number of, gosh, almost all these advertisements
`just looked like blatant prostitution ads. Id. at 48:23-49:2.
`Q. [] Did Ms. McDougall ever call you to alert you to any prostitution ads on
`Backpage?
`A. She did not. Id. at 49:12-14.
`Q. Did anybody from Backpage ever call you to alert you to any prostitution ads on
`Backpage? A. No. Id. at 49:17-19.
`The government’s motion ignores that its opening and, indeed, its entire case, hinges on
`
`the government and its witnesses characterizing Backpage.com ads that propose facially lawful
`transactions (dating, massage, or escorts) as “illegal ads” or “prostitution ads” (despite the
`absence of sex for money language). As such, the portions of Defendants’ opening statements
`to which the government now objects simply were rebutting the government’s contrary claims.
`If the government is permitted to characterize the ads as it did, Defendants certainly must be
`permitted to defend by asserting the opposite.
` Third, although the government complains about defense references to legal or illegal
`ads during opening statements, the government fails to mention it never objected to those
`references during the openings. Moreover, when the government later objected to questions
`posed to Special Agent Supervisor Fichtner on cross-examination regarding the Backpage.com
`ads he reviewed, the Court overruled its objections to questions about whether those ads were
`legal or illegal. Doc. 1335. at 117:16-25; Doc. 1345 at 67:19-68:11. The government presents
`no new facts or law to justify the Court reversing course and barring references to ads as being
`legal or illegal.
`Finally, United States v. Brodie, 858 F.2d 492, 496 (9th Cir. 1988) addresses the scope of
`expert testimony and is inapposite to the issues posed by the government’s motion.
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`Case 2:18-cr-00422-DJH Document 1612 Filed 06/15/23 Page 5 of 7
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`RESPECTFULLY SUBMITTED this 15th day of June, 2023,
`
`David Eisenberg.
`David Eisenberg, PLC
`
`By:
`
`/s/ David Eisenberg
`David Eisenberg
`Attorneys for Andrew Padilla
`
`Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual (May 2018)
`§ II (C) (3), Paul J. Cambria, Jr. hereby attests that all other signatories listed, and on whose behalf this filing
`is submitted, concur in the filing’s content and have authorized its filing.
`
`LIPSITZ GREEN SCIME CAMBRIA LLP
`
`Paul J. Cambria, Jr.
`Erin McCampbell Paris
`LIPSITZ GREEN SCIME CAMBRIA LLP
`
`By:
`
`/s/ Paul J. Cambria, Jr.
`Paul J. Cambria, Jr.
`
`Attorneys for Michael Lacey
`
`OSBORN MALEDON, P.A.
`
`By
`
`s/ Joseph N. Roth
`Timothy J. Eckstein
`Joseph N. Roth
`Sarah P. Lawson
`2929 North Central, 20th Floor
`Phoenix, Arizona 85012-2794
`
`Attorneys for James Larkin
`
`FEDER LAW OFFICE PA
`
`By
`
`s/ Bruce S. Feder (w/permission)
`Bruce S. Feder
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`Case 2:18-cr-00422-DJH Document 1612 Filed 06/15/23 Page 6 of 7
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`2930 E. Camelback Road, Suite 160
`Phoenix, Arizona 85016
`
`KESSLER LAW OFFICE
`
`By
`
`s/ Eric W. Kessler (w/permission)
`Eric W. Kessler
`6720 N. Scottsdale Rd., Suite 210
`Scottsdale, Arizona 85253
`
`Attorneys for Scott Spear
`
`BIRD, MARELLA, BOXER, WOLPERT,
`NESSIM, DROOKS, LINCENBERG &
`RHOW P.C.
`
`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
`
`Attorneys for John Brunst
`
`JOY BERTRAND LAW
`
`By
`
`s/ Joy M. Bertrand (w/permission)
`Joy M. Bertrand
`P.O. Box 2734
`Scottsdale, Arizona 85252
`
`Attorneys for Joye Vaught
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`Case 2:18-cr-00422-DJH Document 1612 Filed 06/15/23 Page 7 of 7
`
`On June 15, 2023, a PDF version
`of this document was filed with
`Clerk of the Court using the CM/ECF
`System for filing and for Transmittal
`Of a Notice of Electronic Filing to the
`Following CM/ECF registrants:
`
`Kevin Rapp, kevin.rapp@usdoj.gov
`Peter Kozinets, peter.kozinets@usdoj.gov
`Margaret Perlmeter, margaret.perlmeter@usdoj.gov
`Andrew Stone, andrew.stone@usdoj.gov
`Daniel Boyle, Daniel.boyle2@usdoj.gov
`Austin Berry, austin.berry2@usdoj.gov
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