Case 2:18-cr-00422-DJH Document 1616 Filed 06/15/23 Page 1 of 8
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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
`
`Attorneys for James Larkin
`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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`Plaintiff,
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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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`Defendants.
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`Case No. 2:18-cr-00422-PHX-DJH
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`DEFENDANTS’ RESPONSE TO
`GOVERNMENT’S MOTION IN
`LIMINE TO PRECLUDE
`REFERENCES TO COURT
`DECISIONS, RULINGS,
`OPINIONS, OR RESULTS FROM
`PRIOR LITIGATION FILED BY OR
`AGAINST BACKPAGE.COM, LLC
`OR ITS OWNER(S)
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`(Oral Argument Requested)
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`Case 2:18-cr-00422-DJH Document 1616 Filed 06/15/23 Page 2 of 8
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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
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`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 1616 Filed 06/15/23 Page 3 of 8
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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 1616 Filed 06/15/23 Page 4 of 8
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`The government moves to preclude all references to any past litigation involving
`Backpage.com, its affiliates, or its owners, claiming they are irrelevant and “everything is
`different now.” The government is incorrect, and the Court should deny the motion.
`First, the government identified six cases, claiming each is irrelevant because it
`“concerned other statutes, including Section 230.” The government’s characterization of
`those six cases is, at best, inaccurate. In three of the cases, federal district courts struck
`down, on First Amendment grounds, state statutes that would have authorized the
`prosecution of Backpage.com for publishing adult-oriented ads that either contained an
`explicit or implicit offer for a commercial sex act involving a minor or would have appeared
`to a reasonable person to be for the purpose of engaging in what would be a commercial
`sex act involving a minor.1 In another case, the Seventh Circuit Court of Appeals reversed
`a district court’s decision refusing a preliminary injunction against a law enforcement
`officer, holding that he violated Backpage.com’s First Amendment rights by threatening
`credit card companies with criminal prosecution for being accomplices to purported illegal
`activity on Backpage.com.2 Two cases involved the dismissal of civil suits, in part on
`Section 230 grounds, but each decision also rejected claims premised on allegations that
`Backpage’s website and moderation practices violated federal criminal law, including the
`18 U.S.C. § 2, 18 U.S.C. §§ 1591 & 1595, and 18 U.S.C. § 2255.3
`The government failed to mention a seventh case in which Backpage.com
`challenged the constitutionality of 18 U.S.C. § 1591, after Congress added “advertising” as
`a predicate act for sex trafficking. In seeking to dismiss on standing grounds, the
`government insisted:
`“Even if an advertisement for illegal sex trafficking appeared on Plaintiff’s
`website, Plaintiff could not be convicted under either § 1591(a)(1) or (a)(2)
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`1 Backpage.com, LLC v. Hoffman, Case No. 13–cv–03952 (DMC)(JAD), 2013 WL 4502097
`(D.N.J. Aug. 20, 2013); Backpage.com, LLC v. Cooper, 939 F.Supp.2d 805 (M.D. Tenn.
`2013); Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D. Wash. 2012).
`Additionally, each court held the state statute at issue to be preempted by Section 230.
`2 Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015).
`3 Doe ex rel. Roe v. Backpage.com, LLC, 104 F. Supp. 3d 149, 157 (D. Mass. 2015), aff’d sub
`nom. Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016); M.A. ex rel. P.K. v.
`Village Voice Media Holdings, LLC, 809 F.Supp.2d 1041 (E.D. Mo. 2011)
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`Case 2:18-cr-00422-DJH Document 1616 Filed 06/15/23 Page 5 of 8
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`without proving that Plaintiff knew that the advertisement at issue related to
`illegal sex trafficking of a minor or of a victim of force, fraud, or coercion.”
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`Backpage.com, LLC v. Lynch, No. 1:15-2155-RBW (D.D.C. Apr. 15, 2016) (ECF No. 13 at
`7-8, ) (emphasis added). The district court agreed with the government’s interpretation of
`the statute. Backpage.com, LLC v. Lynch, 216 F. Supp. 3d 96, 108-09 (D.D.C. 2016).
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`The government claims “Defendants…misled courts across the United States,” but
`Defendants were not parties to these suits, nor did they submit anything to the courts, much
`less mislead the courts. The government claims “the cases all were premised on the notion
`that Backpage merely was a passive ‘intermediary,’” citing Dart, but that decision does not
`even include the word “passive,” much less the phrase “passive intermediary.” The
`government claims the district court dismissed Dart and imposed sanctions, but fails to
`disclose that a) the case was dismissed on mootness grounds only after the government
`seized and shutdown the website and Backpage failed to respond to a motion to dismiss
`and b) sanctions were awarded only after Backpage also failed to respond to a sanctions
`motion. Backpage.com, LLC v. Dart, No. 1:15-cv-06340 (N.D. Ill. 2018) (ECF Nos. 244 &
`253). Moreover, the Seventh Circuit just confirmed the continuing vitality of Dart, citing
`it in Webber v. Armslist, LLC, __ F.4th __, 2023 WL 3945516 (7th Cir. June 12, 2023):
`[I]n Backpage.com v. Dart, this court considered whether a county sheriff
`violated the First Amendment by threatening credit card companies with
`criminal prosecution as accomplices to illegal activity being advertised on an
`online forum. This court…not[ed] that under ordinary understandings of
`culpable assistance of wrongdoers, entities that know the information’s
`content do not become liable for the poster’s words. We therefore
`expressed doubt that the online forum could be held liable for aiding and
`abetting a crime just because they were aware that users had posted ads for
`illegal conduct. We acknowledged, however, that the CDA did not
`immunize the online forum from federal criminal liability.
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`(internal citations omitted) .
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`As the government notes, at the first trial the Court did say “all of those cases are
`misleading” (Doc. 1334 at 12) and there would need to be “some discussion about the
`admissibility of all these other cases” (Doc. 1434 at 103). The government failed to
`disclose, however, that the Court made each of those comments after the government elicited
`testimony about a different civil suit that Backpage settled and after the defense objected.
`While the Court’s comments seem to have been directed at both sides, the Court said it
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`Case 2:18-cr-00422-DJH Document 1616 Filed 06/15/23 Page 6 of 8
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`would “probably…reread the [cases] again a couple of other times” (Doc. 1334 at 13), but
`made no decisions before the mistrial.
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`The government claims the decisions are “not applicable,” but the trilogy of cases,
`brought by Backpage, resulting in three different federal courts each striking down, as
`inconsistent with the First Amendment, a statute purporting to criminalize the publication
`of adult ads because they look like they might be associated with prostitution, plainly are
`relevant to Defendants’ state of mind and the issue of specific intent. So too the Seventh
`Circuit’s opinion holding that a sheriff’s threats to prosecute credit card companies for
`facilitating illegal activity being advertised on Backpage.com violated Backpage’s First
`Amendment rights. For the reasons discussed in Defendants’ response to the
`government’s motion addressing Section 230 (Doc. 1615), the decisions in the two civil
`suits also are relevant as to Backpage’s moderation practices and for their rejection of the
`criminal theories advanced and how those affected Defendants’ state of mind.
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`Moreover, these civil actions are relevant for the independent reasons that
`numerous government witnesses had connections with one or more of the actions and
`Defendants must be permitted to cross-examine the government’s witnesses about the
`actions. For example, cooperator Carl Ferrer submitted declarations under oath in many
`of the actions—and those declarations contradict statements in his plea agreement. The
`government also intends to elicit testimony from Paula Selis about Washington’s demands
`of Backpage.com and statements made in response in a meeting, but Ms. Selis provided
`the same testimony in defense of a state law that was struck down as facially
`unconstitutional. The government also intends to elicit testimony from various NCMEC
`representatives about demands they made of Backpage, but NCMEC said similar things in
`amicus filings in some of these actions and the courts rejected NCMEC’s positions. If the
`Court permits the government to elicit testimony suggesting that these witnesses put
`Backpage on “notice” or that Backpage should have followed their demands, Defendants
`need to be able to rebut that testimony by showing that the courts rejected those positions.
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`The government complains about complexity at trial if its motion is not granted,
`but the government brought this prosecution knowing of these cases, and that Defendants
`would rely on them, so any complexity is of its own making. The motion should be denied.
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`Case 2:18-cr-00422-DJH Document 1616 Filed 06/15/23 Page 7 of 8
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`DATED this 15th day of June, 2023.
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`OSBORN MALEDON, P.A.
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`By
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`
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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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`KESSLER LAW OFFICE
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`By
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`Attorneys for Scott Spear
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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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`Case 2:18-cr-00422-DJH Document 1616 Filed 06/15/23 Page 8 of 8
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`BIRD, MARELLA, BOXER, WOLPERT,
`NESSIM, DROOKS, LINCENBERG &
`RHOW P.C.
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`By
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`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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`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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