Case 2:18-cr-00422-DJH Document 1642 Filed 07/21/23 Page 1 of 25
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`GARY M. RESTAINO
`United States Attorney
`District of Arizona
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`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
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`
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`United States of America,
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`
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`Plaintiff,
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`v.
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`
`Michael Lacey, et al.,
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`
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`Defendants.
`
`
`
`
`CR-18-422-PHX-DJH
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`UNITED STATES’ TRIAL BRIEF
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`In an effort to assist the Court and expedite the trial, the United States respectfully
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`submits this trial brief to address procedural, legal, and evidentiary issues that the
`government anticipates will arise at trial, but that are not appropriate for a motion in limine.
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`Case 2:18-cr-00422-DJH Document 1642 Filed 07/21/23 Page 2 of 25
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`Photographs of Trial Witnesses for the Jury
`I.
`At the September 2021 trial, the United States asked that photos be taken of
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`testifying witnesses (including Defendants’ witnesses) and then be provided to the jurors
`in a notebook. Doc. 1432 at 92. The purpose is obvious: In a long trial, a juror can identify
`and recall each witness and make notes, if appropriate, regarding their testimony.
`Defendants objected to this process. Doc. 1432 at 99-101. The Court took the request under
`advisement, but never ruled on it. See Doc. 1432 at 101.
`
`The Court should adopt this procedure here. Providing jurors photographs of
`witnesses has been routinely allowed in many complex trials in this District in the last 25
`years.1 This practice has been favored by courts to help jurors digest and recall evidence.
`See Judicial Conference Second Judicial Circuit of the United States, 178 F.R.D. 210, 229
`(1997) (Hon. Jack B. Weinstein: “Anything that will help these good people who come
`into court, who want to do a good job, and who do their work effectively should be utilized.
`That includes . . . giving [jurors] photos of witnesses[.]”). Furthermore, psychological
`research shows that visual cues, such as photos of the witnesses, will substantially improve
`the jury’s recall of that witness’s testimony by the encoding-specificity principle that says
`that context cues enhance memory recall. See Rebecca L. Wheeler and Fiona Gabbert,
`“Using Self-Generated Cues to Facilitate Recall: A Narrative Review,” Frontiers in
`Psychology, Oct. 27, 2017, at 6 (“The relationship between memory and context is a natural
`extension of the encoding-specificity principle of memory.”).2 This long-standing
`procedure should be used here.
`
`
`
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`1 E.g., United States v. Sinclair, CR-01-486-PHX-MHM; United States v. Slade, et al., 09-
`1492-PHX-ROS; United States v. Maximov, CR-10-00822-PHX-DCG; United States v.
`Anderson, CR-12-01606-PHX-SRB; United States v. Hinkelday, CR-15-1118-PHX-SPL;
`United States v. Harbour, CR-19-00898-PHX-DLR.
`2 Available at https://www.frontiersin.org/articles/10.3389/fpsyg.2017.01830/full (last
`visited July 17, 2023).
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`Case 2:18-cr-00422-DJH Document 1642 Filed 07/21/23 Page 3 of 25
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`Protocol Regarding Witnesses and Exhibits
`II.
`To expedite trial, the United States proposed a stipulation where the parties would
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`identify witnesses and their corresponding exhibits one week before the witness’s expected
`testimony, in exchange for handling any objections to the exhibits outside the jury’s
`presence. Doc. 1625 at 3, n.1. Defendants rejected this. This Court should nevertheless
`impose this condition to avoid waste of time and expedite this jury trial. The Court has
`ample power to do so. Fed. R. Evid. 611(a) states that “[t]he court shall exercise reasonable
`control over the mode and order of interrogating witnesses and presenting evidence so as
`to: (1) make those procedures effective for determining the truth; (2) avoid wasting time;
`and (3) protect witnesses from harassment or undue embarrassment.”
`
`The United States’ suggested protocol is particularly warranted here. The parties’
`exhibit lists identify about 3,000 exhibits. The vast majority are emails that were authored
`or received by a Defendant, a co-conspirator, or an agent of a Defendant. Defendants have
`had access to nearly all these exhibits for years, so they cannot claim surprise if the United
`States indicates it intends to use any of these.
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`The parties have also disclosed about 100 trial witnesses, and the pace of trial could
`slow to a crawl if the parties wait until each exhibit is presented to a witness before they
`raise (and if permitted, litigate) their individual objections to each exhibit.
`
`And, in similar cases, courts in this District have adopted the United States’
`proposed procedure. For example, in United States v. Slade, et al., 09-1492-PHX-ROS—a
`six-week trial involving 3,500 exhibits and 40 witnesses—the court adopted the same
`protocol, which required the opposing party to state any objections to specific exhibits
`before the jury was seated. As the court summarized:
`
`THE COURT: . . . . You have had an opportunity to look at each other’s
`exhibits for the most part. . . . [Y]ou are going to let me know ahead of time
`those exhibits to which you were going to have an objection. . . .
`
` .
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` . . . If you have an objection to an exhibit that you believe is upcoming, give
`me a heads-up. We will take care of that objection outside the presence of
`the jury. Now, I understand sometimes you may not know if you’re going to
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`Case 2:18-cr-00422-DJH Document 1642 Filed 07/21/23 Page 4 of 25
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`object because you don’t know what the witness is going to say, and I
`understand that. And for those limited situations, we will take care of that at
`sidebar. Admission of exhibits for the most part, will be done by counsel and
`Court personnel without me in the courtroom and without the jury in the
`courtroom because you’re merely going to read into the record those exhibits
`to which there is no objection and you don’t need me. If there are arguments
`on certain exhibits, please [inform the Court]. We will set aside time during
`the course of any day to handle those objections and admissions or exclusions
`outside the presence of the jury. I want to maximize the use of court time
`while the jury is here. I don’t want them to be bogged down with our
`administrative issues.
`CR 09-1492-PHX-ROS, RT, 1/3/13, at 177-179, transcript attached as Exhibit A.
`
`To expedite this multi-week, multi-party trial, the Court should adopt the same
`approach here.
`III. Prostitution Synonyms: Drawing Clear Boundaries for the Use of Terms Like
`“Sex Trafficking,” “Child Sex Trafficking,” and “Human Trafficking.”
`Relevant Procedural History
`A.
`In its May 7, 2021 Order (Doc. 1156), the Court granted in part and denied in part
`
`Defendants’ motion in limine to preclude the United States from presenting evidence of
`“sex trafficking or child-sex trafficking.” Doc. 1156 at 2, 6. The Court “agree[d] with the
`Government’s position” that “[s]ex trafficking and child sex trafficking are, by definition,
`both forms of prostitution. Both are simply a subset of the crime.” Doc. 1156 at 3. Both
`“require victims to engage in sex in exchange for payment, and the Government must prove
`that Defendants intended to facilitate prostitution through Backpage.com.” Doc. 1156 at 3.
`The Court ruled: “Evidence that tends to prove that Defendants were aware that
`Backpage.com was being used to facilitate sex trafficking and child sex trafficking are
`extremely probative to show notice to Defendants that the website was being used for
`illegal purposes.” Doc. 1156 at 3. While the prejudicial value of that evidence to
`Defendants “is high, it does not substantially outweigh the probative value of the evidence
`which is also very high.” Doc. 1156 at 3-4.
`
`The Court was careful to rule, however, that it would “not allow the Government to
`linger on the details of the abuse sex trafficking victims suffered as a result of being
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`Case 2:18-cr-00422-DJH Document 1642 Filed 07/21/23 Page 5 of 25
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`trafficked.” Doc. 1156 at 4. However, “the Court will allow evidence of the fact that people
`were trafficked using Backpage.com at trial subject to specific objections from
`Defendants.” Doc. 1156 at 4. The Court also stated that it would “not allow the Government
`to introduce lengthy testimony from witnesses who were engaged in prostitution about their
`lives, lifestyles, or other details of their time working as prostitutes. Testimony from people
`involved in prostitution is only relevant as it relates to their use of Backpage.com and notice
`to Defendants that prostitutes were using their website. Testimony concerning the lifestyle
`and impact that prostitution had on witnesses’ lives is irrelevant to the crimes charged and
`may unduly prejudice Defendants.” Doc. 1156 at 5. But the United States could explore
`“how ads were created, drafted, edited, and paid for.” Doc. 1156 at 5.
`
`In its Order, the Court specifically ruled:
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`Defendants’ Motion in Limine to Preclude Presentation of Certain Evidence
`is granted in part and denied in part. (Doc. 908.) The motion is granted to
`preclude testimony from people engaged in prostitution regarding the details
`of their lifestyle except as it relates to their use of Backpage.com. The motion
`is also granted to preclude evidence related to details of crimes committed
`by third parties . . . The rest of Defendants’ motion is denied.
`Doc. 1156 at 6.
`
`After the government presented testimony from only four of its 76 anticipated
`witnesses, the Court declared a mistrial based on what it determined was “abuse[ ]” of the
`“leeway” that Doc. 1156 afforded to introduce evidence about child sex trafficking and sex
`trafficking. Doc. 1347 at 4. The Court found that one of the witnesses, Dr. Cooper, had
`“emphasiz[ed] child sex trafficking,” and that another, J.S., had talked about her experience
`as a trafficking victim. Doc. 1347 at 4-5. While the Court found “I don’t see any of these
`as intentional misconduct,” it concluded that a mistrial was warranted based on their
`“cumulative effect.” Doc. 1347 at 5.3
`
`
`3 After the case was reassigned, this Court denied Defendants’ motion to dismiss under the
`double jeopardy clause, based in part on the trial court’s finding of no intentional
`misconduct. Doc. 1444 at 1-17. The Ninth Circuit affirmed, finding that “the government
`generally had good-faith reasons to believe its questions were within the contours of the
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`Case 2:18-cr-00422-DJH Document 1642 Filed 07/21/23 Page 6 of 25
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`The United States has no desire to see the next trial end the same way. It respectfully
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`submits this memorandum to preview related issues and suggest safeguards that would
`permit introduction of relevant evidence about Backpage’s operations and Defendants’
`knowledge and intent—without creating a risk of unfair prejudice that substantially
`outweighs the evidence’s probative value. See Fed. R. Evid. 403.
`
`The core of the Court’s May 7, 2021 Order remains valid—namely, that the terms
`“prostitution,” “sex trafficking,” and “child sex trafficking” involve a single common
`denominator: the exchange of sex for money. While they may indicate the different labels
`for persons whose sexual services were offered for sale, they all describe conduct that
`comes under the general umbrella of prostitution.
` Prevalence of Prostitution Synonyms
`B.
`As before, the United States anticipates that a primary issue will involve the terms
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`that attorneys and witnesses use when discussing the subject matter of prostitution. Many
`exhibits contain the terms “sex trafficking,” “human trafficking,” or “child sex trafficking.”
`Each term, as used in the evidence, signifies a form of prostitution. “Sex trafficking” is
`sometimes used to describe instances where a pimp is selling one of his prostitutes for sex;
`“child sex trafficking” is a subset of sex trafficking that involves minor victims. But these
`terms all involve prostitution—the statutory term used in the Travel Act, 18 U.S.C. § 1952.
`
`The United States anticipates that Defendants will object—or even seek a mistrial—
`whenever any of these terms are used instead of “prostitution.” Or, they may demand that
`“sex trafficking,” “child sex trafficking,” or “human trafficking” be redacted wherever they
`appear in the more than 3,000 trial exhibits. In many instances, the United States will not
`be able to avoid these terms because they are contained in exhibits created by other people
`before the indictment and are essential to understanding the exhibit and the witness’s
`
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`trial judge’s rulings” or had “cogent reason[s]” for its questions. United States v. Lacey,
`2022 WL 4363818, at *2 (9th Cir. Sept. 21, 2022).
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`Case 2:18-cr-00422-DJH Document 1642 Filed 07/21/23 Page 7 of 25
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`testimony about why they were communicating with Backpage representatives. In other
`instances, these terms will be integral to evidence and testimony about Defendants’ notice,
`knowledge, or intent regarding prostitution conducted via their website.
`
`Examples abound. On April 28, 2010, Defendant Lacey emailed Defendant Spear
`asking, “is there any evidence of child trafficing [sic] anywhere?”, to which Spear replied,
`“We have had subpoenas that deal with this exact issue. . . We get a ton of subpoenas that
`we comply with on a daily basis.” Exh. 804.4 In other words, Lacey asked about a subset
`of prostitution involving children, and was informed by a co-defendant that, yes, there is
`lots of evidence of that type of prostitution being linked to Backpage, namely “a ton of
`subpoenas” notifying Backpage “daily” of such activity.
`
`In another example, a minor sued “Village Voice Media Holdings, d/b/a
`backpage.com,” alleging, and placing Defendants on notice, that she was “sexually
`trafficked as a paid escort for sex” by another person who ultimately pleaded guilty to
`certain crimes. Exh. 906a. That person, in turn, admitted in the guilty plea that she had
`“post[ed] this child pornography on defendant’s website, backpage.com in advertisements
`seeking sex from paying customers; pa[id] backpage.com for these postings; transport[ed]
`minor M.A. for the purpose of sexual liaisons for money with adult male customers
`obtained through defendant’s website; collect[ed] money for minor M.A.’s sexual services
`from these customers; and purchas[ed] goods to facilitate these sexual services.” Exh. 906a.
`
`Defendants understood the interchangeability of terms regarding commercial sex in
`M.A.’s suit. This is shown by an email from co-conspirator Carl Ferrer, which Defendant
`Larkin forwarded to Defendant Lacey, and which stated, in part, “there is NO sex act for
`money language in the [M.A.] posting.” Exh. 906. In other words, the conspirators read the
`M.A. pleadings, which used the terms “sexually trafficked as a paid escort for sex,” and
`understood that language was synonymous with “sex act for money,” i.e., prostitution.
`
`
`4 “Exh.” refers to the trial exhibits that the United States has disclosed to Defendants on its
`list of exhibits. The United States is not attaching the cited exhibits here, but it stands ready
`to provide the Court with copies if requested.
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`Case 2:18-cr-00422-DJH Document 1642 Filed 07/21/23 Page 8 of 25
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`Another example involves a March 2011 meeting between the National Center for
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`Missing and Exploited Children (NCMEC) and Defendants Lacey, Larkin, and Spear, and
`Carl Ferrer. This meeting, along with the participants’ preparation for it, will be the subject
`of testimony for several witnesses, including Ferrer, John Shehan, and Staca Shehan. At
`the meeting on March 1, 2011, NCMEC showed Defendants Lacey, Larkin, and Spear a
`PowerPoint presentation that detailed case studies of trafficked children on Backpage. Exh.
`652. These studies highlighted the reciprocal link relationship between Backpage and The
`Erotic Review (TER). Unbeknownst to NCMEC at the time, Backpage had a robust
`relationship with TER. Lacey, Larkin, and Spear remained silent at the meeting about that
`relationship.
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`Ferrer is expected to testify that Lacey, Larkin, and Spear, and others, held several
`internal meetings to prepare for the March 2011 meeting with NCMEC. Their primary goal
`was to persuade NCMEC that Backpage was part of the solution for child sex trafficking,
`rather than the problem. At the meeting, however, NCMEC confronted these Defendants
`with presentations showing how Backpage advertised minor prostitutes.
`This is critical evidence. It will not be offered for the truth of whether children were
`actually trafficked on Backpage, but to demonstrate what these individual Defendants were
`told about their website’s content. It will help refute Defendants’ argument that they knew
`nothing about prostitution advertisements being posted on their website. Doc. 1212 at 10
`(“The fact numerous third parties informed the Defendants of the prostitution ads present
`on Defendants’ website may be validly used to prove that the Defendants had knowledge
`of the ads’ existence.”).
`
`In another example, on January 26, 2012, Defendant Larkin forwarded to co-
`conspirator Carl Ferrer a link to a column in the New York Times by Nicholas Kristof titled
`“How Pimps Use the Web to Sell Girls.” Exh. 1032. The column focused on Backpage as
`a marketplace for commercial sex. Exh. 1032a. Kristof quoted a prosecutor in Brooklyn,
`who headed the “sex trafficking unit,” saying that most of her cases that year involved girls
`who were marketed on Backpage. Kristof further wrote that Attorneys General from 48
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`Case 2:18-cr-00422-DJH Document 1642 Filed 07/21/23 Page 9 of 25
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`states wrote to Backpage and called it a hub for “sex trafficking.” Kristof then quoted the
`Brooklyn prosecutor discussing the average age in which girls are “forced into
`prostitution.” In the next paragraph, Kristof acknowledged that statistics on “human
`trafficking” are hard to come by. Kristof finished with a rhetorical flourish saying that the
`minor who ran away from her pimp and pounded on the door of a Brooklyn resident “was
`also in effect pounding on the executive suite of Backpage and Village Voice Media.”
`Thus, in one exhibit, the terms “sex trafficking,” “prostitution,” and “human
`trafficking” were used interchangeably to discuss Backpage’s core issue: It teemed with
`prostitution ads. Sometimes the prostitution involved minors, sometimes adults; sometimes
`it involved prostitution offered by an individual posting her own ad voluntarily, sometimes
`by a pimp who forced a person to engage in prostitution.
`
`These are but a few examples from the many others that exist in the United States’
`evidence that it plans to introduce in its case-in-chief.5
`As noted above, the Court has already held that evidence showing Defendants’
`knowledge of sex trafficking and child sex trafficking is admissible and not unfairly
`prejudicial. Doc. 1156 at 3-4. Nevertheless, the United States proposes several safeguards
`to further address any potential risk of unfair prejudice to Defendants from the use of
`exhibits and testimony that reference terms like “sex trafficking,” “child sex trafficking,”
`or “human trafficking” when discussing Defendants’ notice, knowledge, or intent
`
`
`5 Another example is the United States Senate Permanent Subcommittee on Investigation’s
`January 2017 report, BACKPAGE.COM’S KNOWING FACILITATION OF ONLINE SEX
`TRAFFICKING. Exh. 1587. The report—which contains “sex trafficking” in its title—is
`discussed in ¶¶ 151-152 of the Superseding Indictment (Doc. 230), and represents a critical
`piece of notice evidence that caused Backpage to alter its websites. Still another example
`is a June 29, 2015 letter from Cook County (Illinois) Sheriff Dart to the CEO of VISA
`regarding Backpage, which discusses prostitution and sex trafficking together in several
`paragraphs. Ex. 459. The United States anticipates introducing testimony showing that the
`letter caused Visa to scrutinize Defendants’ website—and ultimately terminate Backpage
`from its network. Scores of other exhibits contain similar discussions of prostitution and
`sex trafficking. For a non-exhaustive list, see, e.g., Exhs. 73, 104, 104a, 111, 112, 112a,
`116, 119, 124a, 593, 593b, 594, 619, 628, 628a, 628b, 631, 633, 634, 635, 637, 638, 643,
`644, 644a, 651, 652, 653, 658, 660, 661, 662, 670, 670a, 670b, 670c, 681, 683, 683a, 689,
`692b, 694, 699, 720, 722, 804, 805, 814, 826, 827a, 842, 843, 844, 846, 846a, 864, 864a ,
`901, 906, 906a, 906b, 912, 926, 929, 937, 1021, 1032, 1043, 1051, 1161, 1162, 1163,
`1032a.
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`Case 2:18-cr-00422-DJH Document 1642 Filed 07/21/23 Page 10 of 25
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`concerning prostitution.
`Limiting Jury Instruction
`C.
`The Court could provide the jury with a limiting instruction that makes clear that
`Defendants are not charged with the crimes of sex trafficking, child sex trafficking, or
`human trafficking. Such an instruction could read as follows:
`Jurors: The evidence and testimony that you will receive at trial will
`occasionally involve terms such as “sex trafficking,” “child sex trafficking,”
`or “human trafficking.” As used in this case, those terms should be
`understood as referring to the exchange of sex for money—what is
`commonly known as “prostitution.” Any use of those terms is not meant to
`imply that any Defendant has been charged with, or may be guilty of, any
`other crimes. Instead, Defendants are charged only with the crimes of
`conspiracy to violate the Travel Act; individual Travel Act crimes; and
`money laundering.
`This instruction could be given at the outset of the case; it could be repeated the first time
`that a Defendant objects to the use of one of these terms; and it could be repeated with the
`final jury instructions.
`Limiting “Day in the Life” and Child Sex Trafficking Testimony
`D.
`The United States will focus its questioning of victims in a way that avoids a detailed
`discussion about the daily life of a prostitute. Although the Court has not explicitly defined
`what “day in the life of a prostitute” means, the United States understands the Court does
`not want the United States to “linger on the details of the abuse sex trafficking victims
`suffered as a result of being trafficked.” Doc. 1156 at 4. Thus, the United States will not
`ask the victims about any physical, emotional, and mental abuse they suffered from their
`pimps and Johns.6 But the United States does need to establish that prostitution business
`
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`6 The United States reserves the right to discuss the abuse a victim suffered because of
`being advertised on Backpage if Defendants raise any issues with respect to the victims’
`credibility. See Doc. 1345 at 6-7, 10-11. For example, some of the victims were directed
`or controlled by their pimps through physical, verbal, or emotional abuse or provided
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`enterprises existed and how the enterprise operated. To do so, the United States will ask
`the victims questions about the prostitution business.
`The United States will begin by asking the victim if they were advertised on
`Backpage. The United States will not ask questions about the victim’s life circumstances
`before they were marketed on Backpage. The United States will ask the victim how she
`was posted on Backpage and go over the details of her ads, including how the ads were
`created and the language used, and the number or frequency of their ads. Regarding the
`photos in the ads, the victims will testify about where the photos were taken, what they
`were to be used for, who told them how to pose, or what to wear for the photos. During the
`course of this testimony, some victims will testify that they were directed to do this by a
`pimp or trafficker. Nevertheless, the United States will not elicit from such victims any
`details about how they may have been forced, e.g, threats of violence, actual violence.
`The victims are expected to testify about how the ads were paid for and that the
`phone would start ringing almost immediately after the ad was posted. It is anticipated the
`victims will testify that they engaged in acts of commercial sex, a.k.a. “dates” with Johns
`(the sex customers who responded to Backpage ads featuring them). To establish the nature
`of the prostitution business enterprise, the victims are expected to testify that they seldom
`kept the money earned during “dates” and that the money almost always went to their pimp
`or trafficker, who would, in turn, pay certain expenses for the victims. The victims are also
`expected to testify about how long they worked for their pimps or traffickers, and the
`number of “dates” they conducted as part of their participation in the prostitution
`enterprise.7
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`drugs, while engaging in acts of prostitution for their pimps. If Defendants challenge the
`victims’ credibility, memory, or ability to recall or perceive an event, the United States
`reserves the right to ask more specific questions.
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`7 The United States acknowledges the Court’s concern, at the end of the September 2021
`trial, about testimony on the length of time that victim J.S. worked for a pimp who
`advertised her on Backpage. Doc. 1347 at 5. The duration or frequency of the trafficking
`is relevant to establishing the prostitution business enterprise. See Doc. 946 at 10 (“[W]hat
`must be alleged for the ‘unlawful activity’ element under section 1952(b)(i) are allegations
`showing ‘a continuous course of criminal conduct.’”); United States v. Kaiser, 660 F.2d.
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`In addition, some victims are expected to testify that the final version of their
`Backpage ads were sometimes different from the ad that was submitted, for example,
`certain photos would be removed from the ads. Finally, the victims will testify about how
`their pimp or trafficker’s prostitution business enterprise was disrupted by law
`enforcement, including prosecutions and convictions.
`Similar to avoiding “day in the life” type testimony with victims, the United States
`will avoid excessive and unnecessary testimony related to child sex trafficking. For law
`enforcement officers, the United States will not mention child sex trafficking during their
`testimony. When a law enforcement officer’s work experience involves child sex
`trafficking, the United States will instead refer to “prostitution crimes.”8
`IV. Admissibility of Non-Testifying Witness Statements
`This Court has already ruled that evidence of third party statements may be admitted
`as non-hearsay to show that Defendants had knowledge or notice of those statements, and
`not as proof of truth of the matters asserted. In its June 2, 2021 Order (Doc. 1165), the
`Court denied Defendants’ motion to preclude evidence, testimony, and argument of
`Backpage’s alleged reputation as a leading source of illegal sexual services. While the
`Court found such evidence not admissible under Fed. R. Evid. 803(3)’s state-of-mind
`exception to the hearsay rule, the Court ruled the evidence admissible as non-hearsay:
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`[T]he Court finds that the evidence the government intends to offer to trial is
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`724, 731 (9th Cir. 1981) (“The words ‘business enterprise’ refer to a continuous course of
`criminal conduct rather than the sporadic or casual involvement in a proscribed activity.”).
`In the case of J.S., it also established the fact that J.S. was trafficked by two separate pimps,
`Baruti Hopson and a person who responded to J.S.’s Backpage ad posing as a John. Doc.
`1334 at 85. In the retrial, the United States simply plans to establish the time factor and
`will move on, unless necessary to clarify or connect a fact or event.
`8 The United States reserves the right to discuss a witness’s experience and qualifications
`in more detail if Defendants raise any issues with respect to the witness’s qualifications.
`For example, retired Detective Christi Decoufle has been noticed as an expert for the
`United States and will testify about the three areas outlined in the amended notice. (Doc.
`1627.) If Defendants raise any issues related to Detective Decoufle’s qualifications and
`experience, the United States reserves the right to ask more specific questions about, for
`example, her work on the FBI Human Trafficking Task Force and the scores of forensic
`interviews of child sex trafficking victims, among others.
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`admissible as non-hearsay. If statements which would otherwise constitute
`hearsay are offered to show notice, not for their truth, they may be admitted
`as non-hearsay. See MacDonald v. Ford Motor Co., 142 F. Supp. 3d 884,
`898 (N.D. Cal. 2015) (allowing statements to be admitted to show “Ford had
`knowledge of the events, not that the events were true.”). Here, the evidence
`the government desires to offer may be admitted to show that Defendants had
`knowledge of Backpage’s reputation with third parties, which is relevant to
`Defendants’ intent to facilitate an unlawful activity under the Travel Act.
`Doc. 1165 at 5. The Court reiterated and expanded on this ruling in its August 11, 2021
`Order, applying this reasoning to letters from third parties informing Backpage of allegedly
`unlawful activity being conducted via Defendants’ website. Doc. 1212 at 10-11 (sealed).
`Consistent with these rulings, which are the law of the case, the United States plans
`to introduce many exhibits containing statements by witnesses who will not be testifying
`at trial. The statements contained within those exhibits typically involve a person
`condemning Backpage and its principals for permitting prostitution ads to be published.
`Sometimes the condemnation is in a public forum, such as a documentary (e.g., CNN) or
`newspaper column (e.g., New York Times); sometimes it is in a private email or letter. In
`a related example, Backpage hired public relations firms to help combat the negative press
`the website was receiving, which resulted in presentations that also placed many of the
`individual Defendants on notice about their website’s content.
`In each instance, the United States submits that the exhibit is admissible as non-
`he