Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 1 of 10
`
`
`
`Gary S. Lincenberg (admitted pro hac vice)
` glincenberg@birdmarella.com
`Ariel A. Neuman (admitted pro hac vice)
` aneuman@birdmarella.com
`Gopi K. Panchapakesan (admitted pro hac vice)
` gkp@birdmarella.com
`BIRD, MARELLA, BOXER, WOLPERT, NESSIM,
`DROOKS, LINCENBERG & RHOW, P.C.
`1875 Century Park East, 23rd Floor
`Los Angeles, California 90067-2561
`Telephone: (310) 201-2100
`Facsimile: (310) 201-2110
`
`Attorneys for Defendant John Brunst
`
`
`
`UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF ARIZONA
`
`United States of America,
`
`
`Plaintiff,
`
`
`
`vs.
`
`
`Michael Lacey, et al.,
`
`
`Defendants.
`
`
`
`
`
`
`
` CASE NO. 2:18-cr-00422-PHX-DJH
`
`DEFENDANT JOHN BRUNST’S
`RESPONSE TO UNITED STATES’
`MOTION FOR CURATIVE
`INSTRUCTIONS
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`I.
`
`INTRODUCTION
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Defendant John Brunst responds to the portion of the government’s motion
`
`concerning Sheriff Dart and the Backpage v. Dart opinion. In its opening, the government
`
`said it will use Visa’s and MasterCard’s terminations of their relationships with Backpage
`
`to show that Defendants were on notice that Backpage was engaged in illegal conduct.
`
`Defendants believe the evidence will demonstrate the opposite; namely, that these credit
`
`card companies instead acted out of concern for their brands and reputations, just days
`
`after receiving an unconstitutional and threatening letter from a law enforcement official.
`
`In response to what the government has called “credit card Armageddon,” Defendants are
`
`entitled to show that they and Carl Ferrer believed: (1) the credit card terminations were
`
`prompted by unconstitutional cease-and-desist letters and other threats from Sheriff
`3888758.2
`
`
`DEFENDANT JOHN BRUNST’S RESPONSE TO
`UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS
`
`
`
`
`
`

`

`Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 2 of 10
`
`
`
`1
`
`Thomas Dart (the Sheriff of Cook County, Illinois, which includes the City of Chicago) to
`
`2
`
`Visa and MasterCard; (2) as a consequence, Backpage sued Dart; (3) the Seventh Circuit
`
`3
`
`ultimately ruled that Dart acted unconstitutionally and directed the district court to enter an
`
`4
`
`injunction against Dart; and (4) Backpage and Ferrer communicated with the credit card
`
`5
`
`companies regarding Dart’s actions.
`
`6
`
`The government—through its indictment, opening statement, and exhibits—has put
`
`7
`
`this factual narrative squarely at issue. Indeed, at least a dozen government exhibits
`
`8
`
`reference the Dart saga from soup to nuts, from the June 2015 Dart cease-and-desist letters
`
`9
`
`to filings and sworn statements from Carl Ferrer in Dart. Critically, almost all of the
`
`10
`
`money laundering charges and about half of the Travel Act charges concern alleged acts
`
`11
`
`that took place following the commencement of the Dart saga. Defendants therefore must
`
`12
`
`be permitted to cross-examine Ferrer on the post-June 2015 developments that undermine
`
`13
`
`the government’s claim that the credit card terminations put Defendants on “notice” that
`
`14
`
`Backpage was engaged in illegal conduct.
`
`15
`
`For these reasons, Defendants should be permitted to present evidence to the jury of
`
`16
`
`(1) Backpage’s direct response to what the government called “credit card Armageddon,”
`
`17
`
`namely that it sued Dart and (2) Defendants’ and Ferrer’s mental states at the time, which
`
`18
`
`were informed by the Seventh Circuit’s holding in Dart that the credit card terminations
`
`19
`
`were triggered by Sheriff Dart’s delivery of unconstitutional threats to MasterCard and
`
`20
`
`Visa.
`
`21
`
`II.
`
`RELEVANT FACTUAL BACKGROUND
`
`22
`
`23
`
`24
`
`A.
`
`The Government Has Directly Put at Issue Sheriff Dart’s Actions and
`
`Backpage’s Response.
`
`In the Superseding Indictment, the government alleges that “the three major credit
`
`25
`
`card companies stopped doing business with Backpage.” Dkt. 230 at ¶ 182. Specifically,
`
`26
`
`in July 2015, Visa and MasterCard terminated their relationships with Backpage. Id. The
`
`27
`
`government also alleged those companies informed Backpage that their rules prohibit their
`
`28
`
`
`
`credit cards “from being used for illegal activities.” Id. In its opening statement, the
`3888758.2
`
`2
`DEFENDANT JOHN BRUNST’S RESPONSE TO
`UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS
`
`
`
`
`
`

`

`Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 3 of 10
`
`
`
`1
`
`government claimed that Mr. Brunst was a “key cog, key player in this response to credit
`
`2
`
`card Armageddon.” The government then stated, as to Defendants, “So what did they do?
`
`3
`
`They had to get creative.” The government asks the jury to believe that (a) the credit card
`
`4
`
`terminations put Defendants and Ferrer on “notice” that Backpage was engaging in illegal
`
`5
`
`conduct and (b) Defendants and Ferrer responded by engaging in further illegal conduct.
`
`6
`
`The government seeks to do this while omitting that Backpage (a) communicated with the
`
`7
`
`credit card companies about the wrongful basis for that supposed “notice” (i.e., Dart’s
`
`8
`
`threats) and (b) pursued a proper channel – the courts – to test any inferences that could be
`
`9
`
`drawn from such notice. Defendants must be allowed to show what they actually did in
`
`10
`
`response to the credit card terminations, by presenting evidence of the following:
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`• The Visa and MasterCard terminations were triggered by identical cease-and-desist
`
`letters sent by Sheriff Dart on June 29, 2015 (Gov. Exs. 459, 478).
`
`• Dart then threatened to hold a press conference during which he would publicly
`
`criticize the credit card companies for doing business with Backpage (Exs. 6006,
`
`6008).
`
`• In a matter of days following the receipt of the Dart letter, Visa and MasterCard
`
`terminated their relationships with Backpage (Ex. 6011).
`
`• Backpage (acting through its counsel Thomas Brown, a former in-house attorney
`
`for Visa and then a respected attorney at Paul Hastings) sent Visa and Mastercard
`
`letters requesting that they reconsider their terminations, explaining how and why
`
`Backpage was operating in compliance with the law, and telling the companies that
`
`Backpage intended to seek an injunction against Dart (Ex. 6013).
`
`• In response to “credit card Armageddon,” Backpage sued Dart for interfering with
`
`its credit card relationships. Backpage ultimately prevailed in the Seventh Circuit,
`
`with Judge Posner holding that Sheriff Dart’s actions were unconstitutional and
`
`directing the district court to enjoin Dart from taking any actions “to coerce or
`
`threaten credit card companies . . . with sanctions intended to ban credit card or
`
`other financial services from being provided to Backpage.com.” (Ex. 5104 at 19).
`3888758.2
`
`3
`DEFENDANT JOHN BRUNST’S RESPONSE TO
`UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS
`
`
`
`
`
`

`

`Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 4 of 10
`
`
`
`1
`
`Indeed, the Court need only look at the government’s exhibit list to appreciate the
`
`2
`
`relevance of the Sheriff Dart saga, including the ensuing litigation. See Gov. Ex. 186
`
`3
`
`(Backpage v. Dart, Seventh Circuit, Appendix to Brief); Gov. Ex. 232 (October 2, 2015
`
`4
`
`Google Alert to Backpage staff referencing the status of the case); Gov. Ex. 458
`
`5
`
`(August 16, 2015 Affidavit of Martin Elliot, executive at Visa and government witness,
`
`6
`
`filed in the Backpage v. Dart case); Gov. Exs. 459, 478 (June 29, 2015 Letters from Dart
`
`7
`
`to Visa and MasterCard re: Backpage), Gov. Ex. 477 (June 29, 2015 internal MasterCard
`
`8
`
`correspondence regarding Dart letter); Gov. Ex. 663 and 663a (internal Backpage e-mail
`
`9
`
`attaching legal memorandum from Samuel Fifer, a partner at Dentons (then SNR Denton),
`
`10
`
`summarizing an earlier June 5, 2011 meeting between Backpage and Sheriff Dart); Gov.
`
`11
`
`Ex. 794 (July 8, 2016 e-mail from Liz McDougall [Backpage’s General Counsel] to a WSJ
`
`12
`
`reporter regarding the Backpage v. Dart case); Gov Ex. 1127 (July 1, 2015 email from
`
`13
`
`Ferrer to others at Backpage, stating “[MasterCard] and Sheriff Dart are now deciding
`
`14
`
`what is legal and illegal speech. [A]re now arbiters of legal speech. We have our legal
`
`15
`
`team on it. We have a good track record on these issues.”); Gov. Ex. 1575 (June 29, 2015
`
`16
`
`internal MasterCard email regarding Dart letter); Gov. Ex. 1629 (July 21, 2015 Declaration
`
`17
`
`of Carl Ferrer submitted in Dart); Gov. Ex. 1687 (August 18, 2015 deposition transcript of
`
`18
`
`Carl Ferrer in Dart).
`
`19
`
`20
`
`21
`
`B.
`
`Dart’s Letters to Visa and MasterCard Prompted the Terminations of
`
`the Backpage Relationship.
`
`As set forth in government exhibits 459 and 478, on June 29, 2015, Sheriff Dart
`
`22
`
`sent identical letters to Visa and MasterCard requesting that they “immediately cease and
`
`23
`
`desist from allowing [their] credit cards to be used to place ads on websites like
`
`24
`
`Backpage.com.” Through his letter, Dart was putting the reputation of Visa and
`
`25
`
`MasterCard at stake. Id. at 3 (“For every one of the millions of ads on Backpage.com
`
`26
`
`alone, your institution is making money. But at what cost to your image, our society and
`
`27
`
`to those thousands of victims?”). Within a matter of days, Visa and MasterCard
`
`28
`
`
`
`terminated their relationships with Backpage. See, e.g., Ex. 6011 (July 2, 2015 internal
`3888758.2
`
`4
`DEFENDANT JOHN BRUNST’S RESPONSE TO
`UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS
`
`
`
`
`
`

`

`Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 5 of 10
`
`
`
`1
`
`Visa email confirming termination of “payment facilities of Backpage.”); see also Gov.
`
`2
`
`Ex. 1629 (Ferrer Decl. in Dart) at ¶ 24 (“On July 1 and 2, 2015, Backpage.com received
`
`3
`
`notice from its acquiring banks and credit card processors (companies that help facilitate
`
`4
`
`credit card payments) that they could no longer process Visa and MasterCard transactions
`
`5
`
`and were terminating their agreements with Backpage.com effective immediately.”). Visa
`
`6
`
`and MasterCard terminated the Backpage relationship for reputational reasons in response
`
`7
`
`to the Dart letter, as internal correspondence at these companies makes clear. See Ex. 6008
`
`8
`
`(June 30, 2015 email from Dart’s office to Visa noting that Dart would “be having a press
`
`9
`
`conference tomorrow morning . . . Obviously the tone of the press conference will change
`
`10
`
`considerably if your executives see fit to sever ties with Backpage. . . .”); Ex. 6010 (July 1,
`
`11
`
`2015 internal Visa e-mail where an executive says the “subtle messages [Dart’s office has]
`
`12
`
`been sending us . . . could easily be taken for blackmail.”).
`
`13
`
`14
`
`15
`
`C.
`
`Backpage Attempted to Stave off the Credit Card Terminations Pending
`
`a Lawsuit Against Sheriff Dart.
`
`On July 6, 2015, Backpage sent letters to Visa and MasterCard, requesting that they
`
`16
`
`continue to allow their cards to be used on Backpage.com “at least until such time as
`
`17
`
`a court has ruled on Sheriff Dart’s actions.” Ex. 6013 at 1. The letter from Backpage
`
`18
`
`highlighted the company’s strict Terms of Use, cooperation with law enforcement, and its
`
`19
`
`robust moderation process. The letter requested a meeting with Visa’s executives, which
`
`20
`
`later took place. Ferrer testified in the Dart case that he had reviewed the letter Backpage
`
`21
`
`sent and did not recall disagreeing with any statements made in it. Gov. Ex. 1687 (Ferrer
`
`22
`
`Depo. Tr. at 57:10-16).1
`
`
`1 At the September 8th hearing, the government indicated it intends to object to letters like
`this as “self-serving” and “inaccurate.” But the letter’s accuracy is irrelevant, as the letter
`goes to Backpage’s position vis-à-vis the credit card companies and Defendants’ collective
`state of mind (and directly responds to the government’s “notice” evidence, which also is
`not coming in for the truth). It is not for the government to prejudge whether prior
`statements from Backpage or Ferrer were accurate. That is a question for the jury. This
`anticipated government argument would be particularly specious as to the letter found at
`
`3888758.2
`
`
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`5
`DEFENDANT JOHN BRUNST’S RESPONSE TO
`UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS
`
`

`

`Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 6 of 10
`
`
`
`1
`
`2
`
`D.
`
`Backpage Sued Sheriff Dart in Federal Court and Prevailed.
`
`In response to Sheriff Dart’s actions, Backpage sued Sheriff Dart in the Northern
`
`3
`
`District of Illinois in July 2015. Later that month, Ferrer e-mailed Trent Voigt, CEO of
`
`4
`
`JetPay (a payment processor that processed credit card payments tied to Visa and others),
`
`5
`
`and said: “If we win on Dart, then Visa has cover for protected speech.” Ex. 6025. In
`
`6
`
`other words, Ferrer was of the mind that pursuing and winning the Dart case would lead
`
`7
`
`Visa to reverse its termination.
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`Ferrer submitted a sworn declaration in Dart, in which he stated:
`
`• From 2004 through 2015, the major credit card companies allowed their credit cards
`
`to be used to purchase ads on Backpage.com. Gov. Ex. 1629 at ¶ 6.
`
`• On July 1 and 2, 2015, Backpage was informed of the terminations. Id. at ¶ 24.
`
`• “The practical effect of Sheriff Dart’s and the credit card companies’ actions has
`
`been to cut off nearly all revenue to Backpage.com. This affects not only adult ads
`
`but also other ads for dating, housing, services, trade, and sales of goods, among
`
`others.” Id. at ¶ 27.
`
`• “Sheriff Dart’s actions and the termination of credit card services have also harmed
`
`Backpage’s efforts to police and preclude improper ads.” Id. at ¶ 29.
`
`After the district court granted a temporary restraining order but refused to issue
`
`19
`
`a preliminary injunction, the Seventh Circuit reversed and directed the district court to
`
`20
`
`enjoin Sheriff Dart. Ex. 5104. The Seventh Circuit held:
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`• “Visa and MasterCard bowed to pressure from Sheriff Dart and others by refusing
`
`to process transactions in which their credit cards are used to purchase any ads on
`
`Backpage, even those that advertise indisputably legal activities.” Backpage.com,
`
`LLC v. Dart, 807 F.3d 229, 230 (7th Cir. 2015) (emphasis in original).
`
`• “[W]hile [Dart] has a First Amendment right to express his views about Backpage,
`
`a public official who tries to shut down an avenue of expression of ideas and
`
`
`Ex. 6013, as Mr. Ferrer later testified to its accuracy.
`
`3888758.2
`
`
`
`6
`DEFENDANT JOHN BRUNST’S RESPONSE TO
`UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS
`
`
`
`

`

`Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 7 of 10
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`opinions through ‘actual or threatened imposition of government power or sanction’
`
`is violating the First Amendment.” Id. (quoting American Family Association, Inc.
`
`v. City & County of San Francisco, 277 F.3d 1114, 1125 (9th Cir. 2002)).
`
`• Dart “is intimating that two of the world’s largest credit card companies may be
`
`criminal accomplices” and that “Visa and MasterCard got the message and cut all
`
`their ties to Backpage.” Id. at 232 (emphasis in original).
`
`• The Court also cast doubt on a declaration filed by Martin Elliot, in which
`
`Mr. Elliott, a Visa executive and government witness here, contended that “[a]t no
`
`point did Visa perceive Sheriff Dart to be threatening Visa with prosecution or any
`
`other official state action, nor did Visa base its decision on any such threat.” Gov.
`
`Ex. 458 at ¶ 4. The Court remarked: “But what would one expect an executive of
`
`Visa to say? “I’m afraid of the guy?” More significant than Visa’s denial of having
`
`succumbed to Sheriff Dart’s pressure tactics is the statement in the affidavit that the
`
`withdrawal of credit card services from Backpage ‘follow[ed] communication with
`
`Sheriff Dart’s staff’ and with ‘Visa Legal Department’ personnel. The reference
`
`was to those follow-up communications from the sheriff’s office promised (which is
`
`to say threatened) in the letters to Visa and MasterCard. The promise/threat was
`
`honored.” Id. at 233 (emphasis added).
`
`Further, in a later (unrelated) lawsuit regarding a payment dispute involving one of
`
`20
`
`Backpage’s payment processors, Carl Ferrer stated in a sworn declaration that he believed
`
`21
`
`Dart waged a campaign against Backpage, attaching the Dart opinion to his declaration.
`
`22
`
`Ferrer’s prior statements are directly relevant to impeach any testimony by Ferrer claiming
`
`23
`
`that Defendants or Ferrer were operating in bad faith at the time.
`
`24
`
`25
`
`E.
`
`Brunst’s Opening Statement
`
`In response to the government’s claims regarding “credit card Armageddon,”
`
`26
`
`Mr. Lincenberg said in his opening that, in contrast to other law enforcement officials,
`
`27
`
`“there was one sheriff in Cook County named Sheriff Dart, who –.” 08/31/23 Tr. at
`
`28
`
`
`
`205:18-19. The government objected at the mere mention of “Dart”; the objection was
`3888758.2
`
`7
`DEFENDANT JOHN BRUNST’S RESPONSE TO
`UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS
`
`
`
`
`
`

`

`Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 8 of 10
`
`
`
`1
`
`overruled. Id. at 20:20-22. Mr. Lincenberg explained that he expected the evidence to
`
`2
`
`show that “Sheriff Dart threatened these credit card companies and sent them
`
`3
`
`correspondence. Some of this is documented in government exhibits. Sent them
`
`4
`
`correspondence to say, you should stop doing business with Backpage.” Id. at 205:23-
`
`5
`
`206:2. Mr. Lincenberg next stated: “What the evidence will show in this case is that all of
`
`6
`
`the issues with Sheriff Dart were resolved in a manner that gave comfort to our clients that,
`
`7
`
`in fact, Sheriff Dart was the one who was wrong in threatening to shut them down.” Id. at
`
`8
`
`206:8-12. The government objected; the objection was again overruled. Id. at 206:13-17.
`
`9
`
`10
`
`11
`
`F.
`
`The Court’s Pre-Trial Ruling Regarding Prior Lawsuits Involving
`
`Backpage
`
`The Court held that “[t]hough some previously referenced cases alleged
`
`12
`
`Backpage.com, LLC, engages in similar acts of posting ads for prostitution, those prior
`
`13
`
`cases are distinguishable because they were (1) civil adjudications; (2) brought by different
`
`14
`
`parties; and (3) reviewed under differing legal standards. They are irrelevant because they
`
`15
`
`bear no relation to this case or the criminal issues to be decided.” Dkt. 1643 at 11. Even if
`
`16
`
`the relevance of the Dart litigation was not apparent at the time of this Court’s ruling, the
`
`17
`
`government’s opening put the Dart litigation squarely at issue in this case.
`
`18
`
`III. ARGUMENT
`
`19
`
`20
`
`A.
`
`Evidence Relating to Sheriff Dart’s Actions Is Manifestly Relevant.
`
`Sheriff Dart’s June 29, 2015 letters to Visa and MasterCard, those companies’
`
`21
`
`responses to Dart’s letters and threats, Backpage’s decision to sue Sheriff Dart, and the
`
`22
`
`ultimate result in that case all are relevant to the government’s claims regarding
`
`23
`
`“credit card Armageddon.” Defendants therefore should be permitted to cross-examine
`
`24
`
`Carl Ferrer regarding his and Backpage’s understanding of what transpired in the months
`
`25
`
`following Sheriff Dart’s threats to Visa and MasterCard. The government should not be
`
`26
`
`allowed to put at issue in its opening statement the purported basis for why MasterCard
`
`27
`
`and Visa terminated their relationships with Backpage and whether those terminations put
`
`Defendants on “notice” regarding purported illegal activity, without Defendants having the
`3888758.2
`
`
`
`28
`
`
`
`
`
`8
`DEFENDANT JOHN BRUNST’S RESPONSE TO
`UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS
`
`

`

`Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 9 of 10
`
`
`
`1
`
`opportunity to show the jury how Backpage responded. Further, Ferrer now claims that he
`
`2
`
`(and Backpage) were not acting in good faith at the time of the credit card terminations,
`
`3
`
`despite his contemporaneous e-mails, declarations, and testimony to the contrary.
`
`4
`
`Defendants therefore must be able to counter that the result in Dart gave Ferrer comfort
`
`5
`
`that Backpage had done nothing wrong to trigger the credit card terminations.
`
`6
`
`Defendants also should be permitted to cross-examine Martin Elliott, a Visa
`
`7
`
`executive and government witness, about the basis for Visa’s termination of Backpage.
`
`8
`
`The defense will not be surprised if the government attempts to elicit from Mr. Elliott that
`
`9
`
`Visa had long contemplated terminating Backpage, it considered the content on
`
`10
`
`Backpage’s site to be illegal, and that Dart’s letter did not precipitate the termination.
`
`11
`
`Defendants should be allowed to (1) test these assumptions, (2) show that Visa was simply
`
`12
`
`acting to protect its reputation against the threat of bad publicity, (3) inquire as to the effect
`
`13
`
`the Dart letter and ensuing litigation had on Visa’s decision-making, and (4) probe Visa’s
`
`14
`
`reaction to Mr. Brown’s letter to Visa on behalf of Backpage, which defended the legality
`
`15
`
`of Backpage’s operations (Ex. 6013). Indeed, Mr. Elliott was well aware of the Dart case:
`
`16
`
`he submitted a declaration in the case (Gov. Ex. 458) and tracked its progress, as internal
`
`17
`
`Visa correspondence shows (Exs. 6014, 6015, 6017).
`
`18
`
`19
`
`20
`
`B.
`
`Reference to the Dart Opinion Should Not Be Excluded as a “Prior
`
`Case” Covered by the Court’s Ruling.
`
`Consistent with this Court’s order, Defendants will not use the Dart opinion to
`
`21
`
`argue that it immunizes them from the charges brought here. But the opinion is relevant to
`
`22
`
`show the mental states of Ferrer, Backpage, and Defendants at the time—that they
`
`23
`
`believed, having prevailed in Dart, that the credit card terminations were the product of
`
`24
`
`illegal coercion by a public official, not the result of any illegal conduct on their part.2
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`2 The Court held: “The district judge remarked ‘that the majority of the advertisements
`[in Backpage’s adult section] are for sex’—but a majority is not all, and not all
`advertisements for sex are advertisements for illegal sex. There is no estimate of how
`many ads in Backpage’s adult section promote illegal activity; we just gave examples of
`
`3888758.2
`
`9
`DEFENDANT JOHN BRUNST’S RESPONSE TO
`UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS
`
`
`
`
`
`

`

`Case 2:18-cr-00422-DJH Document 1780 Filed 09/11/23 Page 10 of 10
`
`
`
`1
`
`This opinion was a guiding star for Defendants during the 2015 to 2018 time period—
`
`2
`
`a large focus of the substantive counts in the indictment.3
`
`3
`
`IV. CONCLUSION
`
`4
`
`For the foregoing reasons, Defendants request that the Court deny the government’s
`
`5
`
`motion and permit the defense to introduce the evidence discussed herein, which is
`
`6
`
`relevant by virtue of the superseding indictment, the government’s opening statement, and
`
`7
`
`at least a dozen government exhibits. The proffered evidence specifically rebuts the
`
`8
`
`government’s argument that the credit card terminations put Defendants on “notice”
`
`9
`
`regarding Backpage’s alleged illegal conduct.
`
`10
`
`
`
`11
`
`DATED: September 11, 2023
`
`Respectfully submitted,
`
`Gary S. Lincenberg
`Ariel A. Neuman
`Gopi K. Panchapakesan
`Bird, Marella, Boxer, Wolpert, Nessim,
`Drooks, Lincenberg & Rhow, P.C.
`
`By:
`
`/s/ Gopi K. Panchapakesan
`Gopi K. Panchapakesan
`
`Attorneys for Defendant John Brunst
`
`
`
`
`
`
`
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`some that do not.” Backpage.com, LLC v. Dart, 807 F.3d 229, 234 (7th Cir. 2015). Had
`the Court held the opposite, the government undoubtedly would be clamoring to introduce
`the opinion as “notice” evidence of intent on the part of Defendants.
`
`3
`Just last week, in Missouri v. Biden, No. 23-30445, 2023 WL 5821788, at *19, 31 (5th
`Cir. Sept. 8, 2023), the Fifth Circuit Court of Appeals relied heavily on the holding in Dart
`and its reasoning to enjoin President Biden and others in the executive branch from
`interfering with the content-moderation decisions of social media platforms.
`
`3888758.2
`
`
`
`10
`DEFENDANT JOHN BRUNST’S RESPONSE TO
`UNITED STATES’ MOTION FOR CURATIVE INSTRUCTIONS
`
`
`
`