Case 2:18-cr-00422-DJH Document 1776 Filed 09/08/23 Page 1 of 8
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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
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`NICOLE M. ARGENTIERI
`Acting Assistant Attorney General
`Criminal Division, U.S. Department of Justice
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`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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`United States of America,
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`Plaintiff,
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`v.
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`Michael Lacey, et al.,
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`Defendants.
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`CR-18-422-PHX-DJH
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`UNITED STATES’ RESPONSE TO
`DEFENDANTS’ OBJECTIONS TO
`EXHIBITS OFFERED THROUGH
`CARL FERRER
`(Doc. 1758)
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`Case 2:18-cr-00422-DJH Document 1776 Filed 09/08/23 Page 2 of 8
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`The Court should overrule Defendants’ objections to the exhibits the United States
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`intends to offer for admission through Carl Ferrer. First, the Court has already ruled that a
`witness need not have personally sent or received an email to satisfy the requirements of
`Rule 901. (Doc. 1212 at 4.) Second, the United States has redacted certain exhibits in an
`effort to comply with the Court’s Orders and eliminate inadmissible evidence.
`Ferrer May Authenticate Emails
`I.
`The Court has already resolved this issue. In Doc. 1212, the Court noted that it
`would permit the United States to admit emails through witnesses “who neither sent nor
`received the emails.” (Doc. 1212 at 4.) Specifically, the Court found, “that the emails
`satisfy the requirements of Rule 901 and the issue at trial will be if the emails are admissible
`under a hearsay exception.” (Doc. 1212 at 4.)
`In that same Order, the Court specifically analyzed Exhibit 1—“a six-page
`document produced by Defendant Lacey’s counsel to the government in compliance with
`[a] Grand Jury Subpoena.” (Doc. 1212 at 18.) The Court held:
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`Defendants do not challenge the authenticity of these documents. Thus,
`authenticity does not appear to be at issue, especially because the documents
`were produced directly by Defendant Lacey’s counsel in response to the
`Court’s order. The email at issue from Defendant Lacey may properly be
`admitted as a statement of a party opponent pursuant to Rule 801(2)(A). . . .
`Accordingly, the Court will allow the government to admit the documents.
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`(Doc. 1212 at 18-19.)
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`Ferrer will testify he’s familiar with the email addresses used by Defendant Lacey
`in Exhibits 1911(b) and 1. Similarly, the United States anticipates Ferrer will testify he’s
`familiar with the email addresses used by Defendant Brunst in Exhibits 500, 1047, 2038,
`2040, 2042, and 2043 (along with James Larkin’s email address used in Exhibit 1047).
`Ferrer will testify that he has exchanged emails with each Defendant at the email addresses
`listed on the exhibits. Ferrer’s knowledge satisfies any authenticity concerns under Rule
`901.
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`Case 2:18-cr-00422-DJH Document 1776 Filed 09/08/23 Page 3 of 8
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`It does not matter whether Carl Ferrer was copied on an email for him to be able to
`authenticate it for purposes of 901(b)(4). Indeed, in other cases, such email evidence is
`often admitted through a case agent, who clearly would not be expected to be a recipient
`of such email, but who can nevertheless testify that in the course of her investigation, she
`learned that “Defendant X” utilized email address “Y,” and often used a unique email
`signature. Carl Ferrer is even better positioned to authenticate these emails because he was
`a contemporary of every Defendant on trial, and had personal communications with each
`of the Defendants using these email addresses over the course of many years.
`Redacted Exhibits Are Admissible
`II.
`Rule 801(d)(2) provides that a statement is not hearsay, and is therefore admissible,
`if the statement is offered against a party and is (A) the party’s own statement, in either an
`individual or a representative capacity, or (B) a statement of which the party has manifested
`an adoption or belief in its truth. Statements made by a Defendant are quintessential
`statements by a party-opponent when offered by the United States. Those very same
`statements, however, are inadmissible hearsay when offered by a Defendant. United States
`v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000) (“The self-inculpatory statements, when
`offered by the government, are admissions by a party-opponent and are therefore not
`hearsay, see Fed.R.Evid. 801(d)(2), but the non-self-inculpatory statements are
`inadmissible hearsay.”) (citing Williamson v. United States, 512 U.S. 594, 599 (1994)
`(finding that “[t]he fact that a person is making a broadly self-inculpatory confession does
`not make more credible the confession’s non-self-inculpatory parts [which are hearsay]”).)
`To ensure fairness, Rule 106 provides an avenue by which a party-opponent may
`admit his own out-of-court statements at trial, which would otherwise be inadmissible
`hearsay. Defendants, however, are not permitted to introduce numerous self-serving
`exculpatory statements made during the same email or related document in which he or she
`makes an inculpatory statement. United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996)
`(“Rule 106 does not compel admission of otherwise inadmissible hearsay evidence.”).
`Rule 106 does not “require the introduction of any unedited writing or statement merely
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`Case 2:18-cr-00422-DJH Document 1776 Filed 09/08/23 Page 4 of 8
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`because an adverse party has introduced an edited version.” United States v. Vallejos, 742
`F.3d 902, 905 (9th Cir. 2014) (emphasis in original). Rather, “it is often perfectly proper
`to admit segments of prior testimony without including everything, and adverse parties are
`not entitled to offer additional segments just because they are there and the proponent has
`not offered them.” Id. (citing Collicott, 92 F.3d at 983).
`Rule 106 requires that the portion sought to be admitted must be relevant to the
`issues and only the parts which qualify or explain the subject matter of the portion offered
`by the opponent need be admitted. United States v. Crosby, 713 F.2d 1066, 1074 (5th Cir.
`1983). The courts of appeals have “consistently held that the rule permits introduction only
`of additional material that is relevant and is necessary to qualify, explain, or place into
`context the portion already introduced.” United States v. Pendas-Martinez, 845 F.2d 938,
`944 (11th Cir. 1988); see also United States v. Branch, 91 F.3d 699, 728 (5th Cir. 1996)
`(“Although different circuits have elaborated Rule 106’s fairness standard in different
`ways, common to all is the requirement that the omitted portion be relevant and necessary
`to qualify, explain, or place into context the portion already introduced.”) (quoting Pendas-
`Martinez, 845 F.2d at 944).
`To the extent any Defendant contends the statements offered against him or her are
`taken out of context, the burden is now on the Defendant to provide an explanation as to
`what additional statements should be offered so as to “qualify, explain, or place into context
`the portion already introduced.” Branch, 91 F.3d at 728. Failure by Defendants to identify
`any specific statements they want admitted should result in this Court’s denial of their
`request to introduce additional portions of emails on the grounds that they have failed to
`carry their burden of demonstrating how the additional statements would “qualify, explain,
`or place into context” any specific statement offered by the United States.
`Defendants raise specific objections to four exhibits based on Rule 106. The United
`States responds to these arguments in turn.
`A. Exhibit 140a (January 5, 2011 letter from Auburn Theological Seminary)
`The United States redacted the following language from the first two pages of the
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`Case 2:18-cr-00422-DJH Document 1776 Filed 09/08/23 Page 5 of 8
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`letter:
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`We are coming at this from a different perspective – not as lawyers,
`government officials, or NGOs, but as moral and religious leaders who have
`a calling and responsibility to protect our children.
`For us, fighting child sex trafficking is a moral imperative. As a Christian, for
`me personally, my commitment to this issue has a Biblical basis. I believe we
`are meant to care for the most vulnerable in our society and to protect all
`people’s human dignity. This view is shared by our broad based clergy
`coalition, which is comprised of Christians, Muslims, Jews, Buddhists, Sikhs
`and Humanists.
`Child sex trafficking is not just an “issue” for us, but a matter of basic justice.
`We feel we need to give a voice to the voiceless, and we are taking action on
`behalf of human beings - our children. Our commitment is rooted in the belief
`that all children are our children, that the person that appears in a Backpage
`ad could be any one of our daughters or sons.
`Interestingly, the text of the week of our meeting was from the Prophet Isaiah.
`It forecasts the coming of a Messiah who would be sent to “bring good news
`to the oppressed, to bind up the brokenhearted, to proclaim liberty to the
`captives, and release to the prisoners...For I the Lord love justice, and I hate
`robbery and wrongdoing.”
`(Compare Ex. 140 with Ex. 140a.)
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`The United States redacted the letter in accordance with the Court’s Order (Doc.
`1159 at 3 (“The Court agrees that the letter from Auburn Seminary is highly prejudicial as
`is, however, it could be redacted to take out the inflammatory language about the clergy’s
`motivation and moral opinion about Backpage.com.”).) If Defendants now want to
`eliminate the redactions—after previously arguing the opposite point (Doc. 907 at 4-5)—
`the United States does not object.
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`Defendants’ more generalized argument that the Court should preclude admission
`of Exhibit 140 or 140a is a rehash of an issue previously resolved by the Court. (Mot. at
`6.) Judge Brnovich ruled that “letters from third parties to Backpage informing them of
`the large number of prostitution ads to their website are relevant to Defendants’ notice and
`thus proving Defendants’ intent to facilitate prostitution under the Travel Act.” (Doc. 1212
`at 10.) The Court made clear that “while the letters may not be admitted to prove that the
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`Case 2:18-cr-00422-DJH Document 1776 Filed 09/08/23 Page 6 of 8
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`accusations in the letters are true, they may be admitted for the non-hearsay purpose of
`showing Defendants’ notice of third parties’ perceptions of unlawful activity occurring on
`their website.” (Doc. 1212 at 10.) The letter should be admitted.
`B. Exhibit 616a (November 12, 2010 email from Scott Spear)
`Defendants argue that Exhibit 616a needs to include the email sent by James Larkin
`that appears at the bottom of the unredacted version (Ex. 616). The United States redacted
`this portion because (a) it introduces topics, including the Communications Decency Act,
`that the Court has ruled aren’t admissible, and (b) it contains inadmissible self-serving
`hearsay. (See Doc. 1643 at 10 (“To date, no party has provided the Court with case
`precedent holding that the CDA immunizes criminal activity like that alleged here. It
`follows that a jury should not be told that the CDA does. To do so is a misstatement of law
`and will lead to jury confusion.”).)
`Defendants cannot introduce self-serving statements made by former-Defendant
`Larkin, including misstatements. For example, Larkin wrote: “As you know we are clearly
`lawful in our operations here and this is a political dance.” (Ex. 616.) That’s a self-serving
`hearsay statement to which no exception applies, and is therefore inadmissible. Fed. R.
`Evid. 801-802. Rule 106 does not change that fact. Collicott, 92 F.3d at 983 (“Rule 106
`does not compel admission of otherwise inadmissible hearsay evidence.”). Defendants
`aren’t permitted to use the rule of completeness to introduce inadmissible evidence. The
`Court should reject their attempt.
`C. Exhibit 1827a (January 31, 2012 email from Michael Lacey)
`The United States redacted parts of Defendant Lacey’s email chain with Scott
`Tobias for three primary reasons: (1) to eliminate any reference to the murders in Detroit
`where the murderer found his victims through Backpage ads; (2) to eliminate references to
`child sex trafficking that was occurring on Backpage; and (3) to remove the inadmissible
`self-serving hearsay in Scott Tobias’s email. With respect to the latter point, Tobias’s
`email covers many of the themes counsel for Defendant Lacey discussed in his opening
`statement. (Ex. 1827.) For example, “Village Voice Media is a first responder, we work
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`Case 2:18-cr-00422-DJH Document 1776 Filed 09/08/23 Page 7 of 8
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`hand in hand with local law enforcement, the FBI and the National Center for Exploited
`and Missing Children [sic] (NCMEC).” (Id.) And, “[Backpage is] on the right side of this
`issue . . . . If Backpage were to exit this business it will only get worse.” (Id.) Those
`statements aren’t admissible and should not be shown to the jury.
`D. Exhibit 933a (September 22, 2010 email from Scott Spear)
`Exhibit 933a is an email drafted by Carl Ferrer. The United States agrees to use an
`unredacted version of the email, should it seek to admit the email at trial.
`III. Conclusion
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`The United States respectfully requests that this Court overrule any objections
`related to (a) authentication of email addresses known and used by Carl Ferrer, and (b)
`exhibits that the United States has redacted to remove inadmissible evidence. Going
`forward, if Defendants believe the United States has omitted some part of an email or
`document, it is incumbent on Defendants to provide the Court and the United States an
`explanation as to what additional portions would explain, qualify, or place into context the
`evidence the United States is seeking to admit. Blanket objections under Rule 106, without
`specific articulation, should be overruled.
`Respectfully submitted this 8th day of September, 2023.
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`GARY M. RESTAINO
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`United States Attorney
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`District of Arizona
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`NICOLE M. ARGENTIERI
`Acting Assistant Attorney General
`Criminal Division, U.S. Department of Justice
` s/Andrew C. Stone
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`KEVIN M. RAPP
`MARGARET PERLMETER
`PETER KOZINETS
`ANDREW STONE
`DANIEL BOYLE
`Assistant U.S. Attorneys
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`AUSTIN M. BERRY
`Trial Attorney
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`Case 2:18-cr-00422-DJH Document 1776 Filed 09/08/23 Page 8 of 8
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`CERTIFICATE OF SERVICE
`I hereby certify that on September 8, 2023, I electronically transmitted the attached
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`document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a
`Notice of Electronic Filing to the CM/ECF registrants who have entered their appearance
`as counsel of record.
`
`
`s/ Andrew C. Stone
`Andrew C. Stone
`Assistant U.S. Attorney
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