Case 2:18-cr-00422-DJH Document 1628 Filed 07/03/23 Page 1 of 19
`
`
`
`GARY M. RESTAINO
`United States Attorney
`District of Arizona
`
`KEVIN M. RAPP (Ariz. Bar No. 014249, kevin.rapp@usdoj.gov)
`MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov)
`PETER S. KOZINETS (Ariz. Bar No. 019856, peter.kozinets@usdoj.gov)
`ANDREW C. STONE (Ariz. Bar No. 026543, andrew.stone@usdoj.gov)
`Assistant U.S. Attorneys
`40 N. Central Avenue, Suite 1800
`Phoenix, Arizona 85004-4408
`Telephone (602) 514-7500
`
`DAN G. BOYLE (N.Y. Bar No. 5216825, daniel.boyle2@usdoj.gov)
`Special Assistant U.S. Attorney
`312 N. Spring Street, Suite 1400
`Los Angeles, CA 90012
`Telephone (213) 894-2426
`
`KENNETH POLITE
`Assistant Attorney General
`Criminal Division, U.S. Department of Justice
`
`AUSTIN M. BERRY (Texas Bar No. 24062615, austin.berry2@usdoj.gov)
`U.S. Department of Justice
`Child Exploitation and Obscenity Section
`1301 New York Avenue, NW, 11th Floor
`Washington, D.C. 20005
`Telephone (202) 412-4136
`Attorneys for Plaintiff
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF ARIZONA
`
`
`
`
`
`United States of America,
`
`
`
`Plaintiff,
`
`
`v.
`
`
`Michael Lacey, et al.,
`
`
`
`Defendants.
`
`
`
`
`CR-18-422-PHX-DJH
`
`UNITED STATES’ RESPONSE TO
`DEFENDANTS’ MOTION FOR
`RECONSIDERATION OF ORDER
`DENYING MOTION TO DISMISS
`SUPERSEDING INDICTMENT
`[Doc. 1622]
`
`
`
`
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Case 2:18-cr-00422-DJH Document 1628 Filed 07/03/23 Page 2 of 19
`
`
`
`Preliminary Statement
`In denying Defendants’ last four motions challenging the sufficiency of the
`
`Superseding Indictment (SI, Doc. 230), the Court correctly determined that the SI properly
`alleges the essential elements of the Travel Act offenses. See Docs. 793, 840, 946, 1587.
`Now, in what is essentially Defendants’ fifth challenge to the SI, Defendants claim that
`United States v. Hansen, --- S.Ct. ---, 2023 WL 4138994 (June 23, 2023), requires that the
`SI expressly allege the generic elements of aiding and abetting. Mot. at 4-6. For several
`reasons, Defendants’ motion should be denied.
`
`Defendants overread Hansen in at least two ways. First, on their view, Hansen has
`upended decades of Supreme Court and Ninth Circuit precedent regarding standards that
`govern the sufficiency of indictments. Yet Hansen is not a sufficiency-of-the-pleadings
`case; it contains no discussion of pleading standards and says nothing about the sufficiency
`of indictments. Second, Defendants assert that Hansen has reduced the entirety of the
`Travel Act to a crime of aiding and abetting. But Hansen involves an entirely different
`immigration statute, and it does not analyze the Travel Act’s unique text and structure. It
`provides no support for the claim that a Travel Act indictment must allege aiding and
`abetting to survive a motion to dismiss.
`
`And even if it did, the notion that the SI is deficient for not alleging aiding and
`abetting is a non-starter because—as this Court has already recognized—such elements are
`read into every federal indictment as a matter of law. Doc. 1587 at 15.
`
`Moreover, even if the SI were required, as Defendants claim, to identify specific
`state crimes and Defendants’ intent to aid their commission, the SI does precisely that. The
`Court has found the SI alleges that the ads in the SI were for prostitution, and advertising
`prostitution is illegal throughout the United States. The SI alleges Defendants intended to
`and did promote their customers’ prostitution ventures by publishing these unlawful ads.
`Nothing more is required.
`
`Hansen is not an intervening change in controlling law on the essential elements
`that must be pled in a Travel Act indictment. The motion should be denied.
`
`- 1 -
`
`

`

`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Case 2:18-cr-00422-DJH Document 1628 Filed 07/03/23 Page 3 of 19
`
`
`
`I.
`
`Background
`The SI’s factual allegations must be taken as true at this stage. United States v.
`
`Boren, 278 F.3d 911, 914 (9th Cir. 2002). The Court has summarized them multiple times.
`Doc. 793 at 1-7, 9-11, 19-20; Doc. 840 at 1-3; Doc. 946 at 1-4; see also Doc. 1577 at 3-5.
`Pertinent allegations are discussed below.
`Argument
`Correctly Applying Ninth Circuit Law, the Court Has Repeatedly Ruled that
`the SI Sufficiently Alleges the Essential Elements of a Travel Act Offense.
`Defendants contend the SI’s Travel Act counts “must allege that each Defendant
`
`had the specific intent to commit each element of each of the underlying prostitution
`offenses and that the prostitution offenses . . . were actually committed.” (Mot. at 6.)
`Defendants have made these arguments—and the Court has rejected them—several times.
`
`First, in its October 24, 2019 Order denying Defendants’ Motion to Dismiss, the
`Court rejected Defendants’ claims that the SI was deficiently pled under the First
`Amendment and the Travel Act. Doc. 793. The Court correctly stated that, as the Ninth
`Circuit has made clear, a Travel Act indictment must allege three essential elements: “(1)
`interstate commerce or use of an interstate facility; (2) with the intent to ‘promote, manage,
`establish, carry on, or facilitate the promotion, management, establishment, or carrying on,
`of any unlawful activity’; and (3) a subsequent overt act in furtherance of that unlawful
`activity.” Doc. 793 at 20-21 (citing 18 U.S.C. § 1952(a) and United States v. Tavelman,
`650 F.2d 1133, 1138 (9th Cir. 1981)). The Court found the SI “contains the elements of the
`offense charged,” “gives Defendants enough facts and circumstances to inform the accused
`of the charged offenses,” and “contains sufficient factual allegations to implicate all
`Defendants.” Doc. 793 at 19, 22. The Court also found, “[a]dditionally, when there is a
`‘continuous conspiracy,’ the ‘overt act[s] of one partner may be the act of all without any
`new agreement specifically directed to that act.’” Doc. 793 at 19 (citation omitted).
`
`Second, in its January 8, 2020 Order denying Defendants’ Motion to Dismiss Based
`on Section 230 of the Communications Decency Act or, Alternatively, as Void for
`
`- 2 -
`
`

`

`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Case 2:18-cr-00422-DJH Document 1628 Filed 07/03/23 Page 4 of 19
`
`
`
`Vagueness, the Court again recognized that Tavelman sets forth the essential elements for
`pleading a Travel Act offense, and found that “[t]he [SI] clears each hurdle. It alleges
`Defendants, with intent to promote or facilitate state law prostitution offenses, performed
`overt acts in furtherance of that unlawful activity.” Doc. 840 at 10-11.
`
`Third, in its May 4, 2020 Order denying Defendants’ Motion to Dismiss Indictment
`on Failure to Allege the Necessary Elements of the Travel Act, the Court recognized, again,
`that “[t]he Travel Act’s text clearly outlines the requisite elements [of stating an offense].”
`Doc. 946 at 8. The Court rejected Defendants’ assertions “that the SI does not allege any
`specific ‘unlawful activity’ or ‘business enterprise(s) involving prostitution offenses.” Doc.
`946 at 8-9. Rather, the SI alleges “unlawful activity” for each Travel Act count “with
`adequate specificity to inform Defendants of their charges” by alleging “fifty instances
`where Defendants posted ads on Backpage.com to facilitate specific individual prostitutes
`or pimps involved in the business of prostitution,” and by using language that “almost
`identically mirrors the Travel Act’s text.” Doc. 946 at 12. Moreover, the Court “[found]
`previously that the SI alleged each Defendant had the requisite specific intent to promote
`an unlawful activity in violation of the Travel Act on fifty occasions”; whether they “in
`fact intended to facilitate prostitution by publishing the ads is a matter for the fact-finder,
`not the Court right now.” Doc. 946 at 15-16.
`
`Fourth, in its June 1, 2023 Order denying Defendants’ Motion to Dismiss
`Superseding Indictment, the Court rejected Defendants’ claim that the SI had to expressly
`state the elements of aiding and abetting, and again found that the SI alleges the essential
`elements of the Travel Act. Doc. 1587 at 6. The Court quoted the Ninth Circuit’s
`established caselaw identifying the three essential elements of a Travel Act indictment:
`
`[T]he Ninth Circuit requires that “[a]n indictment under the Travel Act
`[allege] each of the three elements of the crime: (1) interstate commerce or
`use of an interstate facility (2) with intent to promote an unlawful activity
`and (3) a subsequent overt act in furtherance of that unlawful activity.”
`United States v. Tavelman, 650 F.2d 1133, 1138 (9th Cir. 1981). See also
`United States v. Gordon, 641 F.2d 1281, 1284 (9th Cir. 1981) (stating “it is
`clear that the statutory language embodies all of the essential elements [of a
`Travel Act indictment] and that reference to state law is necessary only to
`identify the type of unlawful activity involved”) (cleaned up).
`
`- 3 -
`
`

`

`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Case 2:18-cr-00422-DJH Document 1628 Filed 07/03/23 Page 5 of 19
`
`
`
`Doc. 1587 at 6. The Court then recognized that the Ninth Circuit has also established
`that the Travel Act does not require the commission of a predicate offense:
`
`The Ninth Circuit has clarified that “[t]he Travel Act does not require the
`commission of the predicate offense; rather, only an ‘attempt[ ] to promote’
`the unlawful activity, 18 U.S.C. § 1952(a), with ‘a subsequent overt act in
`furtherance of that unlawful activity.’” United States v. Stafford, 831 F.2d
`1479, 1482 (9th Cir. 1987) (citing Tavelman, 650 F.2d at 1138).
`Doc. 1587 at 6. The Court also recognized that the Ninth Circuit has already
`answered the question of what intent is required to secure a Travel Act conviction:
`
`The intent required under the Travel Act is the “specific intent to facilitate
`an activity which the accused knew to be unlawful under state law.” United
`States v. Polizzi, 500 F.2d 856, 876–77 (9th Cir. 1974). See also United States
`v. Gibson Specialty Co., 507 F.2d 446, 449 (9th Cir. 1974) (to obtain a
`conviction under the Travel Act, the Government must show Defendants had
`“specific intent to promote, manage, establish, carry on or facilitate one of
`the prohibited activities”). The Travel Act does not contain the words “aid or
`abet.”
`Doc. 1587 at 6.
`
`The Court then found that there was no cause to reconsider its prior rulings regarding
`the sufficiency of the SI. Doc. 1587 at 7. The Court first squarely rejected the notion that
`an essential element of a Travel Act charge requires proof of “commission of an offense
`by someone”:
`
`The Ninth Circuit does not require that an indictment allege someone
`committed the predicate offense to put Defendants on notice that they have
`been charged with facilitating or promoting state law prostitution offense
`under Section 1952(a)(3). See Stafford, 831 F.2d at 1482 (“[t]he Travel Act
`does not require the commission of the predicate offense; rather, only an
`‘attempt[ ] to promote’ the unlawful activity, 18 U.S.C. § 1952(a), with ‘a
`subsequent overt act in furtherance of that unlawful activity.’”) (citing
`Tavelman, 650 F.2d at 1138). Accord McIntosh v. United States, 385 F.2d
`274, 277 (8th Cir. 1967) (“accomplishment of the State substantive offense
`is not a prerequisite to Travel Act conviction.”) (citations omitted); United
`States v. Palfrey, 499 F.Supp.2d 34 (D.C. Cir. 2007) (rejecting insufficiency
`of indictment for failure to alleged the elements of the predicate state offense:
`“The Indictment must allege the essential elements of the offense with which
`Defendant is charged, namely, violations of the Travel Act . . . The elements
`of the predicate state offenses are not essential elements of the Travel Act
`violations.”) (internal citation omitted); United States v. Welch, 327 F.3d
`1081, 1092 (10th Cir. 2003) (“An actual violation of [the Utah Commercial
`Bribery Statute] is not an element of the alleged Travel Act violations in this
`case and need not have occurred to support the Government’s § 1952
`prosecution”); United States v. Montague, 29 F.3d 317, 322 (7th Cir. 1994)
`(“Section 1952 does not require that the state crime ever be completed.”).
`
`- 4 -
`
`

`

`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Case 2:18-cr-00422-DJH Document 1628 Filed 07/03/23 Page 6 of 19
`
`
`
`Doc. 1587 at 8-9.
`
`The Court found that “[a]s Stafford and Tavelman make clear, the Travel Act
`requires only that the indictment allege the essential element of ‘a subsequent overt act in
`furtherance of that unlawful activity,’ not that someone committed the underlying offense.
`Tavelman, 650 F.2d at 1138. And as this Court has already held, “the SI here clears that
`hurdle.” Doc. 1587 at 9.
`
`The Court also rejected Defendants’ assertion that the SI has to allege that, with
`respect to each charged ad, Defendants “‘intended to facilitate the commission of that
`specific [prostitution] offense.’” Doc. 1587 (quoting Doc. 1557 at 10). The Court wrote
`that it “previously rejected” Defendants’ assertion that the SI did not sufficiently link
`Defendants’ knowledge and intent to the charged ads, and noted that it had “identified the
`many specific facts tethering Defendants’ actions to their knowledge that posting the fifty
`ads would facilitate the business of prostitution.” Doc. 1587 at 12.
`
`The Court rejected Defendants’ contention that an SI alleging Travel Act charges
`must plead all the traditional elements of aiding and abetting. Doc. 1587 at 15. The Court
`noted that Defendants had cited no cases holding that a Travel Act indictment must be
`dismissed if it does not contain such language, and found that “[n]either the text of the
`Travel Act nor Ninth Circuit case law require as much.” Doc. 1587 at 15. Moreover, as the
`United States pointed out “and Defendants concede (Doc. 1585 at 7), even if a Travel Act
`charge could be considered an aiding and abetting offense, an aiding and abetting charge
`is implied in every federal indictment for a substantive offense and would also resolve any
`pleading deficiency in that regard.” Doc. 1587 at 15.
`II. Hansen Does Not Require a Different Result.
`
`The crux of Defendants’ current motion is the assertion that Hansen has changed
`the pleading standards for Travel Act indictments. Defendants assert that “[u]nder
`Hansen’s binding precedent,” “the indictment must allege that each Defendant had the
`specific intent to commit each element of each of the underlying prostitution offenses and
`that the prostitution offenses Defendants are alleged to have facilitated actually were
`
`- 5 -
`
`

`

`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Case 2:18-cr-00422-DJH Document 1628 Filed 07/03/23 Page 7 of 19
`
`
`
`committed.” Doc. 1622 at 6. Defendants also assert the SI must allege that each Defendant
`had “full and advance knowledge” that the prostitution offense would be committed. Doc.
`1622 at 6.
`
`Defendants’ latest attack on the SI should be rejected for several reasons.
`
`A. Hansen Doesn’t Upend the Standards Used to Assess Indictments.
`
`The Supreme Court has long recognized that an indictment is sufficient if it meets
`two constitutional requirements: first, it contains the elements of the offense charged in
`sufficient detail to fairly inform the defendant of the crime against which he or she must
`defend; and second, it safeguards the defendant from a subsequent prosecution for the same
`offense. United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007). An indictment that
`tracks the language of the charged statute “is often sufficient.” Id. at 109. If more is
`required, the indictment need only “contain a few basic factual allegations [to] accord[ ]
`defendants adequate notice of the charges.” United States v. Cecil, 608 F.2d 1294, 1296-
`97 (9th Cir. 1979). “While detailed allegations might well have been required under
`common-law pleading rules . . . they surely are not contemplated by Rule 7(c)(1), which
`provides that an indictment ‘shall be a plain, concise, and definite written statement of the
`essential facts constituting the offense charged.’” Resendiz-Ponce, 549 U.S. at 108.
`
`An indictment “should be read in its entirety, construed according to common sense,
`and interpreted to include facts which are necessarily implied.” United States. v.
`O’Donnell, 608 F.3d 546, 555 (9th Cir. 2010). “The Government need not allege its theory
`of the case or supporting evidence, but only the essential facts necessary to apprise a
`defendant of the crime charged.” United States v. Buckley, 689 F.2d 893, 897 (9th Cir.
`1982). See id. at 895 (“a minimally adequate description of the charge” suffices).
`
`Hansen contains no discussion of pleading standards—it isn’t a sufficiency-of-the-
`pleadings decision. Hansen considered whether 8 U.S.C. § 1324(a)(1)(A)(iv)—which
`prohibits “encourag[ing]” or “induc[ing]” a non-citizen to enter or remain in the United
`States—is facially overbroad under the First Amendment for criminalizing immigration
`advocacy and other protected speech. United States v. Hansen, --- S.Ct. ---, 2023 WL
`
`- 6 -
`
`

`

`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Case 2:18-cr-00422-DJH Document 1628 Filed 07/03/23 Page 8 of 19
`
`
`
`4138994, at *3-4 (June 23, 2023). That issue is absent in this case, which involves
`prostitution solicitations—offers categorically excluded from First Amendment protection.
`Doc. 793 at 14 (“Prostitution ads are ads for illegal transactions. . . . The First Amendment
`does not protect ‘offers to engage in illegal transactions.’”) (citations omitted).
`
`In holding that 8 U.S.C. § 1324(a)(1)(A)(iv) is not facially overbroad, the Supreme
`Court said nothing about what essential elements must be alleged in indictment charging a
`defendant with violating that statute’s encourage-or-induce provision. The Court construed
`the statute’s terms “encourage” or “induce” as synonymous with generic concepts of
`“criminal solicitation” and “facilitation.” Id. at *6-10. So construed, the statute was not
`unconstitutionally overbroad. Id. at *11-12. The Court explained that solicitation “is the
`intentional encouragement of an unlawful act,” but “[f]acilitation—also called aiding and
`abetting—is the provision of assistance to a wrongdoer with the intent to further an
`offense’s commission.” Id. at *6.
`
`Hansen is not “binding precedent” on the issue of what elements must be alleged in
`an indictment for violating 8 U.S.C. § 1324(a)(1)(A)(iv)—or any other federal statute,
`including the Travel Act—to survive a motion to dismiss under Rule 7(c)(1). In Hansen,
`the Supreme Court did not discuss or consider whether Hansen’s indictment alleged,
`sufficiently or otherwise, the elements of the crimes of solicitation or facilitation. The
`opinion contains no discussion about the indictment’s sufficiency. It does not hold that, for
`Hansen’s conviction to stand, the indictment must have alleged all evidentiary elements
`that must typically be proven to sustain a conviction for either solicitation or aiding and
`abetting. It contains no language altering the notice pleading standards that apply to
`indictments like the SI in this case.
`
`
`As this Court has repeatedly found, the SI tracks the statutory language of the Travel
`Act and provides detailed statements of the facts and circumstances to inform Defendants
`of the charged offenses. For this reason alone, it far surpasses the minimal requirements of
`notice pleading—a result that remains the same under Hansen.
`
`
`- 7 -
`
`

`

`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Case 2:18-cr-00422-DJH Document 1628 Filed 07/03/23 Page 9 of 19
`
`
`
`B.
`
`Hansen Doesn’t Abrogate Circuit Law Identifying the Three Essential
`Elements of Travel Act Indictments.
`Scores of cases—from the Ninth Circuit and other Circuits—define the essential
`
`elements of a Travel Act offense. In the Ninth Circuit, “[a]n indictment under the Travel
`Act requires allegations of each of the three elements of the crime: (1) interstate commerce
`or use of an interstate facility (2) with intent to promote an unlawful activity and (3) a
`subsequent overt act in furtherance of that unlawful activity.” Tavelman, 650 F.2d at 1138.
`The statutory language of § 1952 “embodies all of the essential elements” of that offense.
`United States v. Gordon, 641 F.2d 1281, 1284 (9th Cir. 1981); United States v. Winslow,
`962 F.2d 845, 852 (9th Cir. 1992); United States v. Stafford, 831 F.2d 1479, 1482 (9th Cir.
`1987). At least five Circuits share this view. See United States v. Welch, 327 F.3d 1081,
`1090 (10th Cir. 2003); United States v. Childress, 58 F.3d 693, 719 (D.C. Cir. 1995);
`United States v. Monu, 782 F.2d 1209, 1211 (4th Cir. 1986); United States v. Muskovsky,
`863 F.2d 1319, 1326 (7th Cir. 1988); United States v. Palfrey, 499 F. Supp. 2d 34, 43
`(D.D.C. 2007) (the Fifth, Seventh, Eighth, Ninth, and D.C. Circuits have upheld Travel
`Act convictions “based on virtually identical indictments”).
`
`And as the United States explained in Doc. 1577 at 9, the SI contains precisely such
`“statute-tracking language” in SI¶201. Palfrey, 499 F. Supp. 2d at 43. Counts 2-51 allege
`Defendants and others “used . . . any facility in interstate . . . commerce with intent to
`otherwise promote, manage, establish, carry on, and facilitate the promotion, management,
`establishment, and carrying on of an unlawful activity, to wit: prostitution offenses in
`violation of the laws of the State in which they are committed and of the United States,
`including but not limited to [Ariz. Rev. Stat.] Section 13-3214, and thereafter performed
`and attempted to perform an act that did promote, manage, establish, carry on, and facilitate
`the promotion, management, establishment, and carrying on of the unlawful activity” by
`publishing the 50 ads identified in Counts 2-51. SI¶201. See 18 U.S. § 1952(a)(3), (b)(i)(1).
`
`If that were not enough, the SI contains pages and pages of allegations describing
`how Defendants built Backpage into the internet’s leading online marketplace for
`
`- 8 -
`
`

`

`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Case 2:18-cr-00422-DJH Document 1628 Filed 07/03/23 Page 10 of 19
`
`
`
`prostitution, conspired together to violate the Travel Act, and committed substantive Travel
`Act violations by publishing prostitution solicitations enumerated in Counts 2-51. SI¶¶1-
`201. Particularly when viewed through notice pleading standards, the SI’s allegations are
`more than enough to inform Defendants of the charges—as this Court has repeatedly held.
`
`Hansen didn’t suddenly overrule decades of Ninth Circuit precedent (and the law of
`several other Circuits) prescribing the essential elements that must be alleged to state a
`Travel Act offense in a notice pleading. Tavelman, Gordon, Stafford, and other authorities
`discussed above remain good law. They apply the well-settled principles that indictments
`that track the language of the charged statute are generally sufficient to put a defendant on
`notice of the crimes charged, and that if more details are needed, the indictment need only
`contain a minimally adequate statement of the nature and circumstances of the charged
`offenses. Hansen says nothing about any of these longstanding principles, and it cannot be
`read to upend the cavalcade of precedent that supports the Court’s four prior orders finding
`the SI sufficient. Hansen is not “clearly irreconcilable” with those decisions. See Miller v.
`Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (a Supreme Court opinion “must have undercut
`the theory or reasoning underlying the prior circuit precedent in such a way that the cases
`are clearly irreconcilable”).
`C.
`Defendants Are Charged as Principals.
`
`
`Aiding and abetting is merely an alternative theory of liability for a substantive
`crime. United States v. Garcia, 400 F.3d 816, 820 (9th Cir. 2005); Doc. 1587 at 16. The
`substantive crime in Counts 2-51 of the SI isn’t state prostitution offenses. Counts 2-51
`charge violations of the Travel Act, a federal offense. SI¶ 201. See Gordon, 641 F.2d at
`1284 and n.6 (“the gravamen of a charge under 18 U.S.C. § 1952 is the violation of federal
`law”; “reference to state law is only necessary to identify the type of illegal activity”)
`(cleaned up).
`
`Defendants’ aid-and-abet theory assumes that Defendants were charged as non-
`principals of others’ crimes. But the SI alleges that Defendants themselves violated the
`Travel Act in each of the 50 substantive Travel Act counts. SI¶201, Counts 2-51. The SI
`
`- 9 -
`
`

`

`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Case 2:18-cr-00422-DJH Document 1628 Filed 07/03/23 Page 11 of 19
`
`
`
`focuses on Defendants’ conduct as the operators and managers of Backpage, and alleges
`that they intended to promote unlawful activity by designing and operating the internet’s
`leading source of prostitution ads. SI¶¶1, 9-11, 34. The SI alleges Defendants used several
`strategies to corner the online market for prostitution ads, including: (1) aggregation, or
`creating free ads for—and enlisting business from—prostitutes who advertised on other
`websites, SI¶¶9, 34-44; (2) reciprocal link partnerships, which involved inserting links or
`allowing references to websites like The Erotic Review that published reviews of the sexual
`services and prices offered by prostitutes advertising on Backpage, SI¶¶10, 34, 45-58; (3)
`affiliate relationships through which Backpage paid fees to secure bulk prostitution
`advertising, SI¶¶59-67; and (4) moderation, or “sanitizing” customers’ ads by removing
`the most overt references to prostitution without blocking the ad itself, SI¶¶11, 34, 68-152.
`
`Pursuant to these practices, which Defendants developed, oversaw, and executed,
`the SI describes several examples of Backpage employees coaching or assisting customers
`regarding ads that promoted or facilitated the customers’ prostitution ventures. For
`example, in February 2011, the Backpage customer “Licks Alot” emailed to complain that
`all the pictures in one of her ads had been deleted. SI¶91. Backpage’s CEO, Carl Ferrer,
`responded by explaining that one of her photos had been removed because “[o]ur crazy
`internet safety experts do not want any genitalia showing up around the thong.” SI¶91. He
`apologized, allowed her prostitution ad to remain on the website and offered a free upgrade.
`SI¶91. Between September 2010 and October 2012, Ferrer became aware that Backpage
`customer P.R. was posting prostitution ads. SI¶132. He repeatedly restored her posting
`privileges and gave her advice on how to conform to Backpage’s publication standards.
`SI¶132. Defendants Padilla and Vaught were also aware of P.R.’s ads. SI¶132. In 2010 and
`2011, Ferrer and Padilla worked on restoring prostitution ads placed by Dollar Bill, and
`Ferrer advised Dollar Bill “on how to wordsmith ads so they wouldn’t be rejected by
`Backpage’s moderators.” SI¶¶59-67. Other Backpage employees coached pimps or victims
`about the ads or edited them. E.g., SI¶¶160, 163-64, 166, 170, 172.
`
`Defendants’ efforts to develop Backpage into the internet’s leading source of
`
`- 10 -
`
`

`

`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Case 2:18-cr-00422-DJH Document 1628 Filed 07/03/23 Page 12 of 19
`
`
`
`prostitution ads were successful: Backpage ultimately “derived the overwhelming majority
`of its revenue”—some $500 million—from prostitution ads. SI¶¶1, 15, 177. As Defendants
`admitted, Backpage’s “adult” section became a hub for prostitution ads. See, e.g. SI¶1, 9,
`¶11 (Defendants “admitted—in internal company documents and during private
`meetings—that, despite [moderation], they knew the overwhelming majority of the
`website’s ads still involved prostitution”); ¶11 (Lacey “bragged about the company’s
`contributions to the prostitution industry”).
`
`These allegations support the SI’s charges against Defendants as principal violators
`of the Travel Act. To be sure, along with the SI alleging sufficient facts to support the
`Travel Act counts against each Defendant, Defendants are also accountable under
`Pinkerton v. United States, 328 U.S. 640 (1946). Pinkerton liability applies because the
`publication of the ads was reasonably foreseeable given the policies Defendants
`implemented as part of the conspiracy charged in Count 1. 9th Cir. Model Crim. J. Instr.
`11.6; Doc. 793 at 19 (discussing Pinkerton doctrine). And because aid-and-abet is read into
`every federal charge as a matter of law, Defendants could be liable under that alternative
`theory. But these theories of alternative liability are a matter for trial, not the pleadings.
`
`The bottom line is that the SI charges Defendants as principal violators of the Travel
`Act in Counts 2-51. Because Defendants are charged as principals, any discussion of aiding
`and abetting is beside the point.
`
`But even if the Defendants are liable under the “facilitate the promotion of” clause
`of the Travel Act, Defendants would—under their own theory—be subject to criminal
`liability as aiders and abettors of someone else’s promotion of unlawful activity under the
`Travel Act, a federal crime. They would not be subject to liability as aiders and abettors of
`a state law crime.
`D.
`Aid and Abet Is Read Into the SI as a Matter of Law.
`Defendants’ insistence that Hansen requires the United States to allege the elements
`
`of aiding and abetting falter for an independent reason. “Aiding and abetting is implied in
`every federal indictment for a substantive offense”; it need not be separately charged or
`
`- 11 -
`
`

`

`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Case 2:18-cr-00422-DJH Document 1628 Filed 07/03/23 Page 13 of 19
`
`
`
`spelled-out in a federal criminal indictment. United States v. Armstrong, 909 F.2d 1238,
`1241 (9th Cir. 1990). Even if the elements of aiding and abetting are required, the SI can
`be read as including them—as this Court has already found. Doc. 1587 at 15 (“[E]ven if a
`Travel Act charge could be considered an aiding and abetting offense, an aiding and
`abetting charge is implied in every federal indictment for a substantive offense and would
`also resolve any pleading deficiency in that regard.”) (citing Armstrong and United States
`v. Vaandering, 50 F.3d 696, 702 (9th Cir. 1995)).
`
`In Doc. 1587, the Court rejected Defendants’ argument that this rule applies only
`when a defendant is indicted as a principal of a substantive federal offense. Doc. 1587 at
`15 (discussing Doc. 1585 at 7). Defendants, the Court observed, cited no relevant case law
`supporting this proposition, and also did not explain why the rule would not apply to other
`participants. Doc. 1587 at 16. Defendants identify no intervening change in law or other
`grounds that could warrant reconsideration of this ruling, and they wisely do not seek
`reconsideration of that ruling here. See LRCiv. 7.2(g)(1) (a motion for reconsideration must
`“point out with specificity the matters that the movant believes were overlooked or
`misapprehended by the Court . . . and any specific modifications being sought in the Court’s
`Order”); LRCrim. 12.1(a).
`E.
`Hansen Does Not Superimpose on the Travel Act the Requirement of
`Pleading a Completed Underlying State Offense.
`Whether the underlying unlawful activity that a defendant is charged with
`
`promoting, or facilitating the promotion of, is ever accomplished is irrelevant under the
`statute. Stafford, 831 F.2d at 1482 (“The Travel Act does not require the commission of
`the predicate offense; rather, only an ‘[intent] to promote’ the unlawful activity, 18 U.S.C.
`§ 1952(a), with ‘a subsequent overt act in furtherance of that unlawful activity.’” (quoting
`Tavelman, 650 F.2d