Case 2:18-cr-00422-DJH Document 1648 Filed 07/25/23 Page 1 of 19
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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 pages
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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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`Case No. 2:18-cr-00422-PHX-DJH
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`DEFENDANTS’ RESPONSE TO
`UNITED STATES’ TRIAL BRIEF
`(DOC. 1642)
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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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`Plaintiff,
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`Defendants.
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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
`
`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
`
`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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`Case 2:18-cr-00422-DJH Document 1648 Filed 07/25/23 Page 3 of 19
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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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`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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`The United States filed a 25-page motion in limine disguised as a “Trial Brief” late
`Friday, July 21, seeking substantive evidentiary rulings on multiple topics about which the
`government did not bother to meet and confer with defendants. The deadline for the
`filing of three-page motions in limine, however, was June 8, 46 days ago. The government
`has filed an untimely, overlong, omnibus motion in limine in violation of this Court’s
`Order Setting Final Pretrial Conference (Doc. 1524). The government seeks with this last-
`minute filing an unfair advantage, forcing defendants to review, research and respond
`substantively to a lengthy brief covering six different factual and legal arguments, all while
`defendants are preparing for the July 27 final pretrial conference and the August 8 trial.
`As the motion runs afoul of the Court’s pre-trial order, the Court should summarily
`deny it. Should the Court address the merits, the government’s requests fail as set forth
`below.
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`I.
`
`The “Trial Brief” is an Untimely, Overlong Omnibus Motion in Limine
`Filed in Violation of this Court’s Clear Orders
`
`The Court gave clear requirements for the filing of a motion in limine: they must
`(i) “include proposed language for the order being sought by the Court,” (ii) “state with
`precision the evidence that is subject to the proposed order and the limitation or exclusion
`placed on the evidence,” (iii) “contain a certification that the movant’s counsel met and
`conferred in good faith with opposing counsel and the parties could not reach agreement”
`and (iv) “be concise and must not exceed three pages in length.” Doc. 1524 at 4. In
`addition, under the doctrine of the law of the case, the Court reminded “the parties that it
`will not accept any new motions unless based on new law or facts.” Id.
`The Trial Brief violates the Court’s order, both in letter and spirit.
`Other than Trial Brief § I (asking to allow the jury to have a photograph of each
`witness), § II (asking for an order forcing defendants to raise objections to admissibility
`outside the presence of the jury), and § VII (requesting a Frye/Cooper hearing), the Trial
`Brief seeks pre-trial rulings on the admissibility of evidence which is a motion in limine,
`no matter how it is styled. Doc. 1642 at 4-24. See Hammonds v. Yeager, No. EDCV 15-1036
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`SS, 2017 WL 10560471, at *1 (C.D. Cal. Aug. 9, 2017) (submissions styled as “trial briefs”
`that “seek preliminary evidentiary rulings” “shall be construed as motions in limine”).
`The Court should therefore deny the requested relief on that basis alone. See
`Arrington v. City of Los Angeles, No. CV1503759, 2017 WL 10543403, at *4 (C.D. Cal. June
`30, 2017) (“[I]t is unclear to the Court what purpose a trial brief serves. It is not a motion,
`for example, that requires a court ruling.”).
`II.
`The Government’s Requests Lack Merit
`A.
`Photographs of Trial Witnesses
`The government asks the Court to compel each witness to be photographed so that
`the jury may have these non-evidentiary photos. Doc. 1642 at 2. Defendants previously
`objected to this as prejudicial to them and potentially intimidating to some witnesses, not
`all of whom are appearing because they want to assist the government. Doc. 1432 at 92:12-
`20, 99:17-101:22.
`Defendants renew those objections here. First, the proposal is unfairly prejudicial.
`The government seeks to elicit sympathetic testimony from many women who were on
`the Backpage.com website. It is prejudicial to provide jurors with photos of these
`witnesses when their appearance has nothing to do with the jury’s deliberations. Second,
`the photos are not evidence and should not be used during deliberations. See United States
`v. Chadwell, 798 F.3d 910, 914 (9th Cir. 2015) (While a jury “generally may examine all or
`part of any exhibit received into evidence and determine the weight to give that evidence
`during deliberations in the privacy of the jury room,” the government cites to no authority
`allowing a juror to view photographs not admitted into evidence during their deliberation.).
`Third, the Court should not compel witnesses to have their photographs taken and
`compiled for the jury, as witnesses are likely to be intimidated by such an imposition,
`potentially impacting their testimony.
`B. Notice of Witnesses and Exhibits
`At the first trial, the Court ordered the parties to give 48-hours’ notice of when a
`witness was expected to testify. Doc. 1432 at 20:2-8. In their discussions regarding the
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`Case 2:18-cr-00422-DJH Document 1648 Filed 07/25/23 Page 6 of 19
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`Joint Pretrial Memorandum, Defendants asked the government to extend that to one week
`given the large number of witnesses and exhibits and given the coordination required by
`out-of-state counsel traveling to and from Phoenix on a weekly basis. Defendants were
`willing to provide the same one-week notice to the government as to witnesses in their
`case-in-chief. The government responded that it would do so only if Defendants agreed
`that any objections to admissibility be raised solely outside the presence of the jury and, if
`no objections were asserted, the government could freely publish the exhibits to the jury.
`Defendants did not agree. The government asks now for the Court to impose that which
`it could not get though agreement.
`Defendants object to this condition as objections to exhibits often depend on the
`nature of the testimony laying the foundation, relevance, and other bases for admissibility
`that cannot be determined in the abstract. See Matsuura v. E.I. du Pont DeNemours & Co.,
`No. 96-01180 SOM-LEK, 2006 WL 5249743, at *2 (D. Haw. July 10, 2006) (“[R]elevance
`cannot be determined in a vacuum but is dictated by the issues and circumstances in each
`particular case.”); Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence Manual
`§ 6.01[1] (2006) (“Relevancy, as the Advisory Committee notes, is not an inherent
`characteristic of any item of evidence but exists only as a relationship between an item of
`evidence and a matter properly provable in the case.”). Thus, the Court should not require
`Defendants to resolve objections outside the presence of the jury before a witness testifies.
`See Doc. 1162 at 2 (denying government’s motion in limine to admit evidence because it
`lacked “the specific circumstances and content” necessary to evaluate that evidence).
`Rather than streamline the trial, such a rule may result in lengthy mini-trials on multiple
`categories of exhibits before each witness testifies.
`Defendants further object to this proposal, as it unfairly favors the government,
`which bears the burden of proof.
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`Case 2:18-cr-00422-DJH Document 1648 Filed 07/25/23 Page 7 of 19
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`C.
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`Preliminary Instruction that “Trafficking” and “Prostitution” are
`Synonymous
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`As the government notes, the Court previously found that, because, in the abstract,
`“[s]ex trafficking and child sex trafficking are, by definition, both forms of prostitution
`[and] a subset of the crime,” the government would be allowed to present evidence of
`those things “to show notice to Defendants that the website was being used for illegal
`purposes . . . subject to specific objections from Defendants.” Doc. 1156 at 4. The Court
`further ruled that the government could elicit from witnesses involved in prostitution
`testimony as to “how ads were created, drafted, edited and paid for,” but not “[t]estimony
`concerning the lifestyle and impact that prostitution had on witnesses’ lives” “or other
`details of their time working as prostitutes.” Id. at 5.
`In ordering a mistrial, the Court found that the government “abused [that] leeway.”
`Doc. 1347 at 4:10-11. Among other things, the Court found that the government
`overreached during the following instances:
`
`• The government’s opening statement;
`• The government’s questioning of Dr. Cooper “solely on child sex
`trafficking”;
`• The government’s solicitation from Jessika Svengard of testimony regarding
`“the abuse by her trafficker”;
`• The government’s emphasis “over, and over, and over again” that Ms.
`Svengard had been trafficked for 105 days;
`• Ms. Svengard’s multiple statements that she had been raped; and
`• “[o]ther witnesses also [testifying] about the reputation of Backpage
`untethered from any communications with the defendants.” Id. at 4-5.
`Supposedly seeking to avoid another mistral, the government proposes “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
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`substantially outweighs the evidence’s probative value.” Doc. 1642 at 6. In fact, these
`proposed “safeguards” exacerbate the very risk the government purports to avoid.
`Observing that many of its exhibits include the words “sex trafficking,” “human
`sex trafficking” or “child sex trafficking,” the government argues that each term “signifies
`a form of prostitution” and that it “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 testimony about why they were communicating
`with Backpage representatives” or that “these terms will be integral to evidence and
`testimony about Defendants’ notice, knowledge, or
`intent regarding prostitution
`conducted via their website.” Doc. 1642 at 6-7. The government then cites to several
`exhibits in which one or more of those terms is used. Id. at 7-10. What the government
`fails to consider is the most obvious solution: establish notice through exhibits that do not
`contain the terms “sex trafficking” or “child sex trafficking.”
`The terms “sex trafficking” and “child sex trafficking” are highly loaded, prejudicial
`terms that are highly likely to influence jurors who are particularly triggered by such claims.
`Sex trafficking of children by force, fraud, or coercion is a distinct crime, not one charged
`here. 18 U.S.C. § 1591. Rather, the government chose more than five years ago to indict
`Defendants under the Travel Act for the facilitation of business enterprises in violation of
`state law “prostitution” offenses. Having made this decision, and having forced a mistrial
`nearly two years ago, the government should have taken every reasonable step to confine
`its evidence to the crime charged. Instead, on the eve of trial, it throws up its hands,
`declares such a task impossible, and seeks to put on the Court the responsibility to prevent
`it from eliciting a second mistrial.
`1.
`Limiting Jury Instruction
`The government’s first proposed solution is a limiting jury instruction that
`effectively directs the jury to understand that “child sex trafficking,” “sex trafficking” and
`“prostitution” are synonymous. Doc. 1642 at 10. The Court should reject such an
`instruction as incorrect and highly prejudicial.
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`These terms are not synonymous. Each has a particularized meaning in the law
`and, more importantly, in the common understanding. There is wide disagreement among
`people whether consenting adults should be able to sell sex for money, generally
`understood to be “prostitution.” There is near unanimous revulsion for a person being
`forced to engage in sex acts for money, otherwise known as “sex trafficking” and utter and
`abject hatred for anyone accused of such conduct involving a child. To suggest, in any
`way, that these terms functionally mean the same thing is to invite the jurors to substitute
`“child sex trafficking” every time they hear “prostitution.”
`The use of these terms should be limited as suggested in Defendants’ Motion in
`Limine to Preclude Irrelevant and Prejudicial Testimony (Doc. 1589). That is, evidence of
`a person engaging in prostitution or being trafficked should be precluded “unless (1) the
`evidence relates to one or more of the fifty charged ads and (2) one or more Defendants
`knew that the person who was the subject of a charged ad was engaged in prostitution or
`was being trafficked at the time the charged ad was posted or while it was published on
`the website.” Id. at 4. At a minimum, the terms “sex trafficking” and “child sex trafficking”
`should not be mentioned during the trial.
`
`2.
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`Limiting “Day in the Life” and Child Sex Trafficking
`Testimony
`
`The government also asserts that it will “avoid[] a detailed discussion about the
`daily life of a prostitute,” but then goes on to list a litany of topics it intends to cover that
`involve just that. See Doc. 1642 at 11. The government intends to cover with each witness
`“how she was posted on Backpage,” “the details of her ads,” “how the ads were created,”
`“the language used,” “the number or frequency of their ads,” “where the photos were
`taken,” “what they were to be used for,” “who told them how to pose or what to wear,”
`“how the ads were paid for,” “that the phone would start ringing almost immediately after
`the ads were posted,” “that they engaged in acts of commercial sex,” “that they seldom
`kept the money earned during ‘dates,’” that “their pimp or trafficker” would “pay certain
`expenses,” “how long they worked for their pimps or traffickers,” and “the number of
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`‘dates’ they conducted as part of their participation in the prostitution enterprise.” Doc.
`1642 at 11. The government would be hard-pressed to create a more thorough list of
`details to elicit to describe the day in the life of a prostitute.
`The government’s proposed list is largely irrelevant, wildly inflammatory and
`unfairly prejudicial; will likely result in another mistrial; and is barred by the law of the case.
`Defendants do not dispute that narrow testimony limited to an advertiser’s use of
`Backpage.com, including how the ad was created, drafted, edited, and paid for, may be
`relevant. The government’s remaining proposed testimony, including about how pimps
`made individuals take photographs, picked what they had to wear, and what poses to do is
`not relevant to Defendants’ knowledge or intent and is unfairly prejudicial. What the
`government has described is “day-in-the-life” of a prostitute testimony without reference
`to anything that any Defendant knew or could have known.
`As Defendants explained in their motion in limine on this subject, Defendants are
`“not indicted for facilitating the amorphous notion of ‘prostitution’” but “for facilitating
`(via publishing ads) on fifty distinct occasions where prostitutes, prostitution-related
`business, or other groups were involved in the business of prostitution.” Doc. 946 at 13.
`“[T]his case is not about Backpage . . . [t]his case is about these individual defendants and
`whether they had specific knowledge of these ads as facilitating illegal activity.” Doc. 1099
`at 38. Moreover, “one cannot intend to promote/facilitate a business enterprise one does
`not know exists.” Doc. 946 at 15-16. Accordingly, the government must prove, among
`other things, that Defendants knew of and intended to facilitate the individual “prostitutes
`[or] prostitution-related businesses” related to the fifty charged ads. A witness’s testimony
`about a person engaging in prostitution or being trafficked could not make the Defendants’
`intent related to a charged ad “more or less probable,” Fed. R. Evid. 401, unless (1) that
`person’s experience is related to a charged ad and (2) Defendants knew that person was
`engaged in prostitution at the time that ad was posted or while it was published on the
`website. Otherwise, the testimony has no bearing on any fact “of consequence in
`determining the action,” id. And where the government elicits testimony that is “not
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`tethered to any communication with the defendants,” a mistrial will result. Doc. 1347 at
`4-5; Doc. 1156 at 5 (holding that “[t]estimony 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”).
`
`D.
`
`The Multiple, Late Motions in Limine Seeking to Admit Various
`Categories of Exhibits also Fail
`
`Section IV, V and VI of the government’s trial brief are merely late, improper
`motions in limine seeking admission of many of the government’s exhibits as non-hearsay.
`The government’s trial brief makes clear that it intends to prove its case through irrelevant,
`prejudicial evidence that it asserts is “not for the truth” but is instead offered to prove
`Defendants’ alleged criminal intent. But merely articulating a purported non-hearsay use
`for evidence is not sufficient to justify its admission. United States v. Reyes, 18 F.3d 65, 70
`(2d Cir. 1994) (“[C]ontrary to the government’s contention, the mere identification of a
`relevant non-hearsay use of such evidence is insufficient to justify its admission if the jury
`is likely to consider the statement for the truth of what was stated with significant resultant
`prejudice.”). Moreover, such evidence is unnecessarily cumulative. The government
`intends to call numerous live witnesses to provide the very same “notice” evidence that
`the government seeks to introduce in its Trial Brief.
`1.
`Admissibility of Non-Testifying Witness Statements
`The government’s proffered “non-testifying witness statements” are not only
`barred as hearsay without an exception, but they are irrelevant, cumulative, and wasteful.
`First, the government’s trial brief ignores the law of the case as stated in Doc. 1156.
`In that order, the Court determined that certain statements of non-testifying witnesses
`“may” be admitted as non-hearsay, but made no final determination as to the whether the
`evidence has the requisite foundation or meets other requirements for admission. Id.
`(emphasis added). In fact, the Court has already declined to admit third-party statements
`before trial because “[t]he Court cannot analyze the admissibility of statements without
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`looking at the specific circumstances and content surrounding them.” Doc. 1162 at 2.
`That is, the fact that the government can articulate a potential non-hearsay use for certain
`evidence begins rather than ends the analysis. For instance, to admit a New York Times
`column (Doc. 1642 at 13-14), the government must lay the proper foundation to show
`that Defendants were aware of that column and read it during the relevant period. The
`same is true for the CNN documentary and the Anderson Cooper 360 segment (id. at 14-
`15). Without first proving that Defendants knew about these statements and their content,
`the government cannot seek their admission. 1
`The government fails to make the requisite evidentiary showing, instead asserting
`that Defendants must have known about the contents of these publications because they
`were aware of their existence. (Trial Br., Doc. 1642 at 14-15). That is not the same as
`showing that Defendants actually read the NYT column or watched the CNN program.
`Likewise, as to the statements by PR firms, the government seeks to shortcut its
`foundational obligations. Once again, the Court cannot determine their admissibility in a
`vacuum, but must make the determination based on the circumstances of the case. See
`Matsuura, 2006 WL 5249743, at *2.
`Moreover, many of these exhibits are replete with information falling under the
`Court’s previous ruling precluding “day-in-the-life” evidence. See Part (C)(2), supra. The
`Court has already ordered that “[t]estimony concerning the lifestyle and impact that
`prostitution had on witnesses’ lives is irrelevant to the crimes charged and may unduly
`
`
`1 Further, in light of the Court’s rulings on the parties’ motions in limine (Doc. 1643) that
`appear to take a narrow view of relevance, i.e., that (1) prior litigation involving Backpage
`is not relevant because – while those cases concerned similar allegations – they were not
`Travel Act cases and (2) attorney advice is relevant to the extent it concerns the ads charged
`in Counts 2-51 or a “similar ad described in the SI,” Defendants’ are hard-pressed to
`understand how, for example, a CNN documentary, NYT op-ed, and other so-called
`“notice” evidence is admissible. That “evidence” has nothing to do with the fifty charged
`ads or any specific ads – these hearsay statements at best establish a third party’s perception
`of the general content on the Backpage website. While Defendants intend to persuade
`the Court that its rulings in Doc. 1643 should be modified, if those rulings hold, then the
`government should be held to the same standard of relevance.
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`prejudice Defendants.” Doc. 1156 at 5. But the government’s proffered evidence is
`replete with such irrelevant, prejudicial evidence. For example, the NYT article says: “In
`November, a terrified 13-year-old girl pounded on an apartment door in Brooklyn . . . The
`girl, whom I’ll call Baby Face because of her looks . . . said she hurt too much to endure
`yet another rape by a john. She told prosecutors later that she was bleeding vaginally and
`that her pimp had recently kicked her down a stairwell for trying to flee.” Gov’t Ex. 1032A.
`The government should not be permitted to evade the Court’s clear orders by introducing
`such evidence through hearsay-filled exhibits.
`Second, the risk that the jury considers these media pieces regarding the ills of
`Backpage for their truth—rather than a non-hearsay purpose—is manifest. That is because
`the government seeks to admit these statements not as hearsay, but to show Defendants
`“had knowledge or notice of those statements, and not as proof of truth of the matters
`asserted.” Doc. 1642 at 12. The government’s proposed evidence could be relevant only
`to show notice of prostitution offenses if the third-party statements were true. A third-
`party’s accusation does not give the accused notice of anything if the accusation is untrue.
`The government does not consider the New York Times piece (or the CNN reporting and
`the like) relevant because Defendants knew the journalist wrote about Backpage.com;
`rather, the government’s theory is that Defendants had notice of prostitution offenses
`because the article asserted that alleged fact. The article’s relevance thus turns on whether
`the assertion true or not, rendering such an out-of-court statement hearsay. United States
`v. Hubbard, 26 F.3d 134, *2 (9th Cir. 1994) (refusing to admit an out-of-court statement
`because “it was relevant . . . only if offered for its truth”); accord United States v. Love, 521
`F.3d 1007, 1009 (8th Cir. 2008) (because the limited purpose for which an out-of-court
`statement was offered assumed the statement was true, it was “being offered for the truth
`of the matter asserted”); State v. Hill, 387 P.3d 112, 116 (Idaho 2016) (‘To show that a
`statement is not offered for the truth of the matter asserted, the party arguing for the
`admission must show that the statement will be relevant to an issue in the case without regard
`for its truthfulness.”) (emphasis added).
`
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`Case 2:18-cr-00422-DJH Document 1648 Filed 07/25/23 Page 14 of 19
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`The government seeks to use these non-witness statements to show Defendants’
`criminal intent. Doc. 1642 at 14 (“As with the New York Times column, the CNN
`documentary is offered not for the truth of the allegations, but to show Defendants’ intent
`and actions in maintaining the website.”), 19 (“This evidence will help the jury determine
`each Defendant’s intent.”). Because these statements “would only have [their] desired
`effect if in fact the statements were true,” the evidence is being offered for the truth of the
`matter asserted. United States v. Sadler, 234 F.3d 368, 372 (8th Cir. 2000) (affirming exclusion
`of testimony on the basis of hearsay because it was offered for the truth of the matter
`asserted). The government asserts the statements will be offered to show Defendants
`“were hearing a steady drumbeat from many public and private sources that their site was
`engaging in promoting, or facilitating the promotion of, prostitution activities.” Doc. 1642
`at 18. But this “steady drumbeat” is only relevant to Defendants’ criminal intent if the
`underlying statement is true. Plus, none of these statements have any relation to the fifty
`charged ads, and pre-date the charged ads by a significant margin. Thus, the government’s
`proffered third-party statements are inadmissible hearsay.
`
`2.
`
`Recordings of March 2015 User Phone Calls Responding to
`Undercover Sting Ads
`
`The government’s argument at Section V is another untimely and inappropriate
`motion in limine. See Doc. 1642 at 19. Beyond its procedural impropriety, the
`government’s proposed admission of recorded phone calls would violate the
`Confrontation Clause and the rules against hearsay.
`The government asserts (at 20) that the recorded calls will not be offered for the
`truth of the matter asserted. If that is the case, the recorded calls are plainly irrelevant and
`highly prejudicial. A caller’s statements to California Department of Justice Special Agent
`Mackey are not relevant to any of the charged advertisements, Defendants’ knowledge as
`to the charged advertisements, or any other fact “of consequence in determining the
`action.” Fed. R. Evid. 401. Moreover, the Court has determined that a statement from a
`non-percipient witness is only relevant if it relates to “Defendants’ notice and knowledge
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`of ads being used to facilitate any business enterprise involving prostitution.” Doc. 1079
`at 2. But Defendants had no knowledge of these phone calls and have never heard the
`recordings, so in no way can the recordings go to Defendants’ notice. Ultimately, the
`recorded calls have no probative value and are hugely prejudicial. Nor are the phone calls
`even about Defendants. As the Court has held, “this case is not about Backpage . . . [t]his
`case is about these individual defendants and whether they had specific knowledge of these
`ads as facilitating illegal activity.” Doc. 1099 at 38.
`The government contends that these out-of-court statements are not hearsay
`because they “are being introduced to show the effect on the listener, Special Agent
`Mackey” which caused the California DOJ “to continue forward with its investigation into
`Backpage.” Doc. 1624 at 20. This tired strategy is an invitation to err because of its
`“breathtaking potential for abuse.” Wright & Miller, Fed. Prac. & Proc. Evid. § 6720 (2023
`ed.); United States v. Sharp, 6 F.4th 573, 582 (5th Cir. 2021) (“[C]ourts must be vigilant in
`ensuring that these attempts to explain the officer's actions with out-of-court statements
`do not allow the backdoor introduction of highly inculpatory statements that the jury may
`also consider for their truth.”) (internal citation and quotation marks omitted); United States
`v. Marchan, 935 F.3d 540, 546 (7th Cir. 2019) (“[W]e are reluctant to permit course of the
`investigation rationale for fear of its abuse or misuse.”) (quotation marks omitted).
`Where, as here, the out of court statements have no probative value and carry a
`considerable risk of prejudice, their admission “cannot be justified simply to set forth the
`background of the investigation.” U.S. v. Mancillas, 580 F.2d 1301, 1310 (7th Cir. 1978).
`Even the government recognizes the prejudicial nature of the recorded calls, though it
`argues that by only admitting “four calls out of hundreds of calls and text messages” makes
`the four it selected “not be unduly prejudicial.” Doc. 1642 at 20. “Only in circumstances
`where there is real import to understanding why the police acted in a certain manner will
`the out-of-court statement have significant non-hearsay probative value.” Wright & Miller,
`supra, § 6720. Defendants do not challenge why Special Agent Mackey acted the way she
`did, so there is no reason for the statements to be introduced. And even if the Court finds
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