Case 2:18-cr-00422-DJH Document 1781 Filed 09/11/23 Page 1 of 6
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`Paul J. Cambria, Jr. (NY Bar No.1430909, admitted pro hac vice)
`Erin McCampbell Paris (NY Bar No. 4480166, admitted pro hac vice)
`LIPSITZ GREEN SCIME CAMBRIA LLP
`42 Delaware Avenue, Suite 120
`Buffalo, New York 14202
`Telephone: (716) 849-1333
`Facsimile: (716) 855-1580
`pcambria@lglaw.com
`emccampbell@lglaw.com
`Attorneys for Michael Lacey
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
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`United States of America,
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` Plaintiff,
`vs.
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`Michael Lacey, et al.,
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` Defendants.
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`NO. CR-18-00422-PHX-DJH
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`DEFENDANT’S OPPOSITION TO
`GOVERNMENT’S MOTION FOR A
`CURATIVE INSTRUCTION (Dkt. 1763)
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`Defendant Michael Lacey, by and through his undersigned counsel, submits the instant
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`opposition to the government’s Motion for Curative Instructions (“Motion,” Dkt. 1738). The
`government’s Motion should be denied. None of the government’s claims about defense
`counsel’s opening statements have any merit whatsoever.
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`Case 2:18-cr-00422-DJH Document 1781 Filed 09/11/23 Page 2 of 6
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`I.
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`There is no basis to rebuke defense counsel in front of the jury because defense
`counsel told the jury that Ferrer had attorneys.
`Days after the jury heard opening arguments, the government asks this Court to rebuke
`defense counsel in the jury’s presence because the government now takes issue with the
`following statements: (1) Ferrer had “a bunch of lawyers to advise” him (8.31.23 Tr. at 182;
`(2) “Ferrer had a whole cast of attorneys advising him.” (Id. at 192); and (3) Michael Lacey’s
`attorney for personal matters had his banking relationship terminated even though the
`attorney and his law firm did no work for Backpage (id. at 192). The government’s request
`should be denied for several reasons.
`First, the government has waived its argument with respect to statements (1) and (3).
`The government had the opportunity to object to these statements and, instead, did nothing.
`(8.31.23 Tr. at 182, 192.) The government’s failure to object is a waiver of the request for the
`highly prejudicial remedy it now seeks, nearly a week after the jury heard opening statements.
`See United States v. Felix, 561 F.3d 1036, 1041 (9th Cir. 2009) (concluding that the government
`“waived its waiver argument” because “the sentencing judge on two occasions told [the
`defendant] that he could appeal his sentence and the government failed to object”). However,
`even with respect to the one contemporaneous objection the government did make, defense
`counsel immediately changed topics (8.31.23 Tr. at 192), and did not discuss the existence of
`attorneys advising Ferrer on Backpage again.
`Second, even if the government had objected, there is no merit to their request. The
`statements at issue – counsel’s indication of the existence of lawyers advising Ferrer on
`Backpage and Lacey on personal matters unrelated to Backpage – are factual matters that the
`government has said it intends to introduce in the course of presenting its case. These
`statements in no way can be conflated with the assertion of an advice-of-counsel defense or
`even the “smuggling” in of such a defense, as the government claims, because there was no
`discussion whatsoever of advice sought or received. This apples to oranges argument should
`be rejected.
`Third, the government opened the door for the statements concerning the existence
`of attorneys advising Ferrer on Backpage. The government told the jury that: “These
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`Case 2:18-cr-00422-DJH Document 1781 Filed 09/11/23 Page 3 of 6
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`defendants also received letters from the National Association of Attorneys General
`[“NAAG”]. They received a number of those letters. And one of their responses was, look
`at our moderation program. Look at how we’re reducing prostitution on our website.”
`(8.31.23 Tr. at 169.) The response letters from Backpage to NAAG were, of course, written
`by attorneys. The particular letter the prosecution mentioned in their opening was authored
`by attorney Samuel Fifer, of the international law firm Dentons (then SNR Denton). In fact,
`the government intends to introduce at least four letters from NAAG to counsel for Backpage,
`and at least two letters from counsel from Backpage to NAAG. (See Exhs. 119, 486, 487, 681,
`1906/1906a.) Additionally, the government seeks to introduce scores of documents, if not
`hundreds of documents, sent to or from numerous attorneys for Backpage, even if not
`specifically identified as such in the government’s exhibit list. At a minimum, even a cursory
`review of the government’s exhibit list reveals dozens of exhibits involving various Backpage
`attorneys. The two comments about Ferrer’s lawyers to which the government now objects
`are nothing more than accurate statements about what the government’s evidence will show.
`The same is true with respect to the existence of an attorney-client relationship between
`Lacey and his attorney for personal matters, John Becker. The government referred to a
`portion of Exhibit 1 in its opening (8.31.23 Tr. at 172-73), which is an email exchange between
`Lacey and Becker. Further, the government put the issue of the closure of bank accounts
`squarely in front of the jury—implying that account closures are notice of illegal activity. (Id.
`at 171-73.) Defense counsel’s statement that banks terminate accounts for reasons other than
`illegal activity, as happened to Becker, whose law firm was merely associated with a non-
`Backpage, personal transaction, is something that will be established at trial and is in response
`to the government’s claims about banking.
`Thus, the government is asking this Court to rebuke defense counsel for stating what
`the government’s own proof will show.
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`Case 2:18-cr-00422-DJH Document 1781 Filed 09/11/23 Page 4 of 6
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`II.
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`There is no basis to rebuke defense counsel in front of the jury for telling the
`jury that a website cannot be held responsible for the bad acts of people who
`have misused their website “unless it was clear on the face of the ad that it was
`definitely a crime.”
`There is no basis to rebuke defense counsel in front of the jury for this statement. First,
`as discussed above, the government had the opportunity to object to this statement and,
`instead, did nothing. (8.31.23 Tr. at 180.) As a result, the government has waived the ability
`to seek this far more prejudicial remedy. See Felix, 561 F.3d at 1041.
`Second, with respect to the facially lawful/unlawful distinction, the government’s own
`law enforcement witness, Special Agent Brian Fichtner, will testify that (i) it generally is not
`possible to tell from the face of an ad whether the person posting the ad is engaging in lawful
`or unlawful conduct, (ii) it is not possible to make an arrest for prostitution based solely on
`the information contained in an ad, and (iii) he knows of no law enforcement officer who ever
`made such an arrest because ads that propose facially lawful transactions, or propose
`transactions that could be completed lawfully, do not provide a basis to make an arrest for
`prostitution. (Doc. 1335, 9.10.21 P.M. Trial Tr. at 116-118 (indicating that an ad for a
`dominatrix is not an illegal ad and that the only way law enforcement would know if the person
`who posted the ad intended to engage in illegal conduct would be if law enforcement contacted
`the person who posted the ad and he/she offered to and then engaged in an exchange of sex
`acts for money); Doc. 1345, 9.13.21 A.M. Trial Tr. at 56-61 (indicating, among other things,
`that an ad for a stripper, an ad for an adult woman displaying a sex toy and her desire to put
`on a show while using the sex toy on herself, and an ad for an escort wherein she offers to go
`to someone’s house and do various non-sex acts naked, such as cleaning the home, or
`providing a massage that does not involve touching genitals, are not ads for illegal transactions
`or ads for prostitution).
`Third, the statement at issue is counsel’s theory that the proof will show that the
`website operated in compliance with the law and/or that the Defendants had a good faith
`basis to believe that the website was operating lawfully.
`Finally, the government opened the door to statements such as this one when it
`repeatedly told the jury that every ad on the website for an escort was an ad for a prostitute
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`Case 2:18-cr-00422-DJH Document 1781 Filed 09/11/23 Page 5 of 6
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`II.
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`(see, e.g., Tr. at 147, 150), knowing full well that the government has no ability to prove that
`every escort ad was a prostitution ad, and that the government’s own witness, Special Agent
`Fichtner, previously testified that it was not possible to know that based on the content of ads.
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`There is no basis to rebuke defense counsel in front of the jury for telling the
`jury that the government shut down the website without a conviction or ruling
`from a judge.
`There is no basis to rebuke defense counsel in front of the jury for telling the jury that
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`the government shut down the website without a finding of guilt by a judge or jury. First, the
`government had the opportunity to object and did nothing (8.31.23 Tr. at 183), thereby
`waiving the ability to seek this far more prejudicial remedy. See Felix, 561 F.3d at 1041.
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`Second, the government opened the door to this statement in its opening. In particular,
`government counsel told the jury that Backpage “was shut down by the federal government
`in April of 2018.” (Tr. 148.) The government did not give the jury any caveats and the jury
`easily could have believed that another jury had already convicted Backpage. Counsel’s
`statement is factually correct – no judge or jury convicted Backpage – and was necessary to
`negate the suggestion that a judge or jury had. Indeed, the government’s statement, left
`unaddressed, could have infected the entire trial with jurors wondering, what is the point of
`this trial if the website already was found guilty?
`CONCLUSION
`For all these reasons, Lacey respectfully request that this Court decline to rebuke
`defense counsel in the presence of the jury, or to provide any curative instruction. This Court
`has already informed the jury that openings are not evidence, and that the Court will explain
`the law in the case to the jury, principles that defense counsel, too, reaffirmed in the opening.
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`Case 2:18-cr-00422-DJH Document 1781 Filed 09/11/23 Page 6 of 6
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`RESPECTFULLY SUBMITTED this 11th day of September, 2023,
`Paul J. Cambria, Jr.
`Erin McCampbell Paris
`LIPSITZ GREEN SCIME CAMBRIA LLP
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`By:
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`/s/ Paul J. Cambria, Jr.
`Paul J. Cambria, Jr.
`Attorneys for Michael Lacey
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`On September 11, 2023, a PDF version of this document was
`filed with Clerk of the Court using the CM/ECF System
`for filing and for Transmittal of a Notice of Electronic
`Filing to the to the CM/ECF registrants who have
`entered their appearance as counsel of record
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