Case 2:18-cr-00422-DJH Document 1840 Filed 10/05/23 Page 1 of 35
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`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
`
`Paul J. Cambria, Jr. (admitted pro hac vice)
` pcambria@lglaw.com
`Erin McCampbell Paris (admitted pro hac vice)
` eparis@lglaw.com
`LIPSITZ GREEN SCIME CAMBRIA LLP
`42 Delaware Avenue, Suite 120
`Buffalo, New York 14202
`Telephone: (716) 849-1333
`Facsimile: (716) 855-1580
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`Attorneys for Defendant Michael Lacey
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`[Additional counsel listed on next page]
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`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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`vs.
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`Michael Lacey, et al.,
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`Defendants.
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` CASE NO. 2:18-cr-00422-PHX-DJH
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`DEFENDANTS’ BRIEF IN SUPPORT
`OF OBJECTIONS TO COURT
`RULINGS DURING FERRER
`TESTIMONY
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`3893354.2
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`DEFENDANTS’ BRIEF IN SUPPORT OF OBJECTIONS
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`Case 2:18-cr-00422-DJH Document 1840 Filed 10/05/23 Page 2 of 35
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`Eric W. Kessler, 009158
` eric.kesslerlaw@gmail.com
`Kessler Law Group
`6720 N. Scottsdale Rd., Suite 210
`Scottsdale, AZ 85253
`Telephone: (480) 644-0093
`Facsimile: (480) 644-0095
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`Bruce S. Feder, 004832
` bf@federlawpa.com
`FEDER LAW OFFICE, P.A.
`2930 E. Camelback Road, Suite 160
`Phoenix, Arizona 85016
`Telephone: (602) 257-0135
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`Attorney for Defendant Scott Spear
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`David Eisenberg, 017218
` david@deisenbergplc.com
`DAVID EISENBERG PLC
`3550 N. Central Ave., Suite 1155
`Phoenix, Arizona 85012
`Telephone: (602) 237-5076
`Facsimile: (602) 314-6273
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`Attorney for Defendant Andrew Padilla
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`Joy Malby Bertrand, 024181
` joy.bertrand@gmail.com
`JOY BERTRAND ESQ LLC
`PO Box 2734
`Scottsdale, Arizona 85252
`Telephone: (602) 374-5321
`Facsimile: (480) 361-4694
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`Attorney for Defendant Joye Vaught
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`3893354.2
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`DEFENDANTS’ BRIEF IN SUPPORT OF OBJECTIONS
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`Case 2:18-cr-00422-DJH Document 1840 Filed 10/05/23 Page 3 of 35
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`I.
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`TABLE OF CONTENTS
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`Page
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`Admission of Exhibits Under the Rule of Completeness That Establish
`Defendants’ Good Faith.............................................................................................. 5
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`A.
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`B.
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`C.
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`Exhibit 616 (November 2010 Correspondence Between Jim Larkin,
`Steve Suskin, and Representatives of BMO) .................................................. 7
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`Responses to the State AG Letters .................................................................. 9
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`Exhibit 836 (July 2016 Correspondence Between Liz McDougall and
`The Wall Street Journal) ............................................................................... 10
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`II.
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`Ferrer’s Prior Statements Regarding the California Criminal Complaints Are
`Classic Impeachment. ............................................................................................... 11
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`A.
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`Ferrer Personally Waived the Attorney-Client Privilege as to the
`Impeachment Material. .................................................................................. 14
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`B.
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`The Format of the Prior Inconsistent Statements Is Irrelevant. ..................... 15
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`III.
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`Reference to Attorney Advice and Prior Litigation ................................................. 16
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`IV. CONCLUSION ........................................................................................................ 18
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`3893354.2
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`Case 2:18-cr-00422-DJH Document 1840 Filed 10/05/23 Page 4 of 35
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`Cases
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`TABLE OF AUTHORITIES
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` Page(s)
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`Arthur v. Gallagher Bassett Servs., Inc.,
`No. CV 09-4882 SVW (CWX), 2010 WL 11596468, at *6 (C.D. Cal.
`June 1, 2010) .................................................................................................................. 8
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`Beech Aircraft Corp. v. Rainey
`488 U.S. 153, 109 S. Ct. 439 (1988) .......................................................................... 5, 6
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`United States v. Cedeno-Cedeno
`No. 14CR3305, 2016 WL 4376845 (S.D. Cal. Aug. 17, 2016) ..................................... 8
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`United States v. Collicott
`92 F.3d 973 (9th Cir. 1996) ............................................................................................ 6
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`United States v. Monroe
`943 F.2d 1007 (9th Cir. 1991) ...................................................................................... 15
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`United States v. Morgan
`555 F.2d 238 (9th Cir. 1977) ........................................................................................ 13
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`United States v. Ortega
`203 F.3d 675 (9th Cir. 2000) .......................................................................................... 6
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`Statutes
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`47 U.S.C.A. § 230 ...................................................................................................... 7, 8, 11
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`18 U.S.C. § 1952 .................................................................................................................. 9
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`Other Authorities
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`Fed. R. Evid.
`106 ...................................................................................................................... 5, 6, 7, 9
`401 .................................................................................................................................. 5
`402 .................................................................................................................................. 5
`801(d)(1)(A) ........................................................................................................... 15, 16
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`U.S. Const. amend. I .......................................................................................................... 11
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`3893354.2
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`Case 2:18-cr-00422-DJH Document 1840 Filed 10/05/23 Page 5 of 35
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`Defendants file this brief to address certain rulings that restricted defense counsel’s
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`ability to let the jury hear the truth and impeach Ferrer.
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`I.
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`Admission of Exhibits Under the Rule of Completeness That Establish
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`Defendants’ Good Faith
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`Federal Rule of Evidence 106 states: “If a party introduces all or part of a writing or
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`recorded statement, an adverse party may require the introduction, at that time, of any
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`other part—or any other writing or recorded statement—that in fairness ought to be
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`considered at the same time.” (emphasis added). Because different courts have exercised
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`judgment differently in this respect, Rule 106 has been amended to clarify that the rule
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`should not be construed narrowly. Effective December 1, 2023, the clarifying amendment
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`states: “If a party introduces all or part of a statement, an adverse party may require the
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`introduction, at that time, of any other part—or any other statement—that in fairness ought
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`to be considered at the same time. The adverse party may do so over a hearsay objection.”
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`(emphasis added). The Advisory Committee Notes regarding the amendment state:
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`[T]he amendment provides that if the existing fairness standard requires
`completion, then that completing statement is admissible over a hearsay
`objection. Courts have been in conflict over whether completing evidence
`properly required for completion under Rule 106 can be admitted over a
`hearsay objection. The Committee has determined that the rule of
`completeness, grounded in fairness, cannot fulfill its function if the party
`that creates a misimpression about the meaning of a proffered statement
`can then object on hearsay grounds and exclude a statement that would
`correct the misimpression. (emphasis added.)
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`In other words, an email cannot selectively be redacted to omit necessary context on
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`the basis that the redacted, exculpatory portion of the email is hearsay.
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`Under Rule 106, “when one party has made use of a portion of a document, such
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`that misunderstanding or distortion can be averted only through presentation of another
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`portion, the material required for completeness is ipso facto relevant and therefore
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`admissible under Rules 401 and 402.” Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172,
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`109 S. Ct. 439, 451 (1988). In Rainey, a case involving the crash of a Navy training
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`aircraft, one of the plaintiffs (both of whom were surviving spouses of the pilots) was
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`called as an adverse witness during the defendant’s case. The Supreme Court held that the
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`Case 2:18-cr-00422-DJH Document 1840 Filed 10/05/23 Page 6 of 35
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`trial court abused its discretion in restricting the cross-examination of plaintiff (by his own
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`counsel) by precluding questioning regarding certain aspects of a letter the plaintiff wrote
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`to the Navy that were not covered on direct examination. Id. at 170. Specifically, “read in
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`its entirety,” the letter was “fully consistent” with plaintiff’s theory that the accident was
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`caused by a power failure. Id. By not permitting plaintiffs’ counsel to delve into the entire
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`letter, “[i]t is plausible that a jury would have concluded from this information that
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`[plaintiff] did not believe in his theory of power failure and had developed it only later for
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`purposes of litigation.” Id. at 171. The Supreme Court affirmed the Court of Appeals’
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`ruling that it was “reversible error for the trial court to have prohibited cross-examination
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`about additional portions of [plaintiff’s] letter which would have put in context the
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`admissions elicited from him on direct.” Id. at 160-161, 175 (emphasis added).
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`At Dkt. 1776, the government relies on several cases for its objection to the
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`admission of purported “self-serving” hearsay. Those cases are readily distinguishable.
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`United States v. Ortega, 203 F.3d 675, 679 (9th Cir. 2000) involved a post-crime
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`confession to the government. The Ninth Circuit held that a defendant cannot introduce
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`self-serving statements through a government interviewer by mixing in mitigating
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`circumstances to an inculpatory confession. Id. at 682. Further, the defendant’s statement
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`was an “unrecorded oral confession,” and therefore not subject to Rule 106, which “applies
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`only to written and recorded statements.” Id.
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`Likewise, in United States v. Collicott, 92 F.3d 973, 977 (9th Cir. 1996), the Court
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`held that Rule 106 did not apply to certain statements made by a witness to law
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`enforcement because (1) “no writing or recorded statement was introduced by a party,”
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`(2) the statements made by the witness to law enforcement were otherwise inadmissible
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`hearsay, and (3) “the complete statement did not serve to correct a misleading impression
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`of a prior statement created by taking [the witness’] comments out of context.” Id. at 983.
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`None of these cases apply to an email that has been selectively redacted by the
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`Government to exclude admissible hearsay. And the Government ignores the clarifying
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`amendment to Rule 106, which makes clear the impropriety of its redactions.
`3893354.2
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`Case 2:18-cr-00422-DJH Document 1840 Filed 10/05/23 Page 7 of 35
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`Exhibit 616 (November 2010 Correspondence Between Jim Larkin,
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`Steve Suskin, and Representatives of BMO)
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`On September 15, 2023, Exhibit 616a was admitted during the direct examination
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`of Carl Ferrer over Brunst’s FRE 106 objection. 09/15/23 Tr. at 12-13. The Government
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`introduced certain portions of Exhibit 616a to show that Brunst was involved with, and on
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`notice of, certain issues being raised by Bank of Montreal (BMO). The Court denied the
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`defense request to admit the entire exhibit during direct examination. The Court told
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`defense counsel, “you can discuss it in your examination of the witness.” Id. at 12:25-
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`13:2.
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`Under the rule of completeness, the unredacted email (set forth at Exhibit 616)
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`should have been admitted on direct examination. During cross, Brunst’s counsel was not
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`permitted to introduce the redacted portion and was not permitted to ask about key
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`portions—including Larkin’s statement to his subordinates and the bank that Backpage’s
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`operations were lawful. See 09/27/23 PM Tr. at 123:18-21, 124:20-126:13 (severely
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`limiting what counsel could reference in his cross-examination of Ferrer).
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`Exhibit 616a is a series of back-and-forth emails between Spear, Larkin, and Mary
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`Latta of BMO, copying Brunst. In connection with Brunst, the Government used the e-
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`mail to highlight that the content was shared with Brunst. The government elicited
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`testimony from Ferrer that Backpage’s communications with BMO merely “created the
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`impression that we’re shutting down these [adult] categories . . . . So the whole thing is
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`a sham.” 09/15/23 Tr. at 14:5-16. The unredacted email makes clear that the
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`communications to BMO started with an email from Larkin to BMO, and then, in response
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`to a question from BMO, Spear added more detail.
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`The redacted portion of the e-mail thread—Larkin’s email to BMO that was part of
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`the email chain copied to Brunst—tells BMO, inter alia, about moderation steps, that
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`Backpage’s operations are lawful, and that Connecticut AG Blumenthal is attacking
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`Backpage as part of an attack on the Communications Decency Act (CDA) in a “political
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`dance” to help him get elected to the Senate. By redacting Exhibit 616a to present an
`3893354.2
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`Case 2:18-cr-00422-DJH Document 1840 Filed 10/05/23 Page 8 of 35
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`incomplete email to the jury, the Government successfully left the jury with the false
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`impression that Brunst was made aware of the site being used for illegal purposes, while
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`hiding the underlying email from Larkin advising Brunst and others that Backpage’s
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`operations were “clearly lawful.”
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`The redacted portion of the email gives critical context to the notice provided to
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`Brunst. This notice provided by the redacted portion of the email, which is relevant to
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`Brunst’s mental state, is a non-hearsay purpose. See Arthur v. Gallagher Bassett Servs.,
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`Inc., No. CV 09-4882 SVW (CWX), 2010 WL 11596468, at *6 (C.D. Cal. June 1, 2010)
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`(“An out-of-court statement offered for any purpose other than to prove its truth - i.e., to
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`prove the defendant’s state of mind or the effect on the listener - is not hearsay”). Further,
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`Defendants should have been permitted to cross-examine Ferrer regarding any impression
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`he formed about Larkin’s email to BMO, i.e., the same basis for the Government’s
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`admission of the unredacted portion of the communication. See id.; see also United States
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`v. Cedeno-Cedeno, No. 14CR3305, 2016 WL 4376845, at *8 (S.D. Cal. Aug. 17, 2016)
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`(“Out-of-court statements introduced to show the effect on the listener are not hearsay.”);
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`09/15/23 Tr. at 15:6-8, 17:10-11 (regarding Mr. Spear’s e-mail to Ms. Latta, the
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`Government asked Mr. Ferrer what he understood “that statement to mean”).
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`The exhibit also highlights why precluding references to the CDA—a defense to
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`state civil and criminal cases—also leads to a completely misleading presentation of
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`evidence. As the Court has now seen, the Government has relied heavily on State
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`Attorneys General communications with Backpage. The government has squarely put at
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`issue what Backpage’s responses to these AGs actually were. 08/31/23 Tr. at 169:9-13
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`(“These defendants also received letters from the National Association of Attorneys
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`General. They received a number of those letters. And one of their responses was, look at
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`our moderation program. Look at how we’re reducing prostitution on our website.”);
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`09/12/23 PM Tr. at 48:18-25; 09/13/23 AM Tr. at 69:7-13; 09/13/23 PM Tr. at 76:6-79:3,
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`82:5-85:4 (Ferrer testifying that the response to the AGs was “deceptive, highly
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`misleading”), 93:9-94:4; 09/14/23 AM Tr. at 17:2-17, 31:24-32:2, 53:5-59:20, 86:12-15.
`3893354.2
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`Case 2:18-cr-00422-DJH Document 1840 Filed 10/05/23 Page 9 of 35
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`The AG letters plainly are not notice of a Federal Travel Act violation; at most, they are
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`notice of a potential prosecution under state law as to which the CDA was a defense.
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`Any rational juror would wonder (1) why Backpage was never charged by an AG at
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`the time the letters were sent (it was only in late 2016 when the State of California brought
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`charges against Larkin, Lacey, and Ferrer) and (2) whether Backpage had any viable
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`defenses to the AG’s accusations at the time, and if so, what Backpage said in response.
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`The government therefore should not be allowed to create the misimpression for the jury
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`that Backpage (1) did nothing in response to the AG letters or (2) lacked legal recourse
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`against the State AGs, when they had a complete defense under the CDA.
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`B.
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`Responses to the State AG Letters
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`As noted above, the government put in several letters from State Attorneys General
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`regarding the content on the Backpage site. See Exhs. 52, 119, 902. Over objections
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`under Rule 106, the Court allowed the AG letters in, without admitting the corresponding
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`responses from Backpage’s attorney, Samuel Fifer. In ruling on the objection (Mr. Feder
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`stated, “I would also ask under Rule 106 for the other letters responsive to this to be shown
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`to the jury”), the Court stated, “You can do that when it’s your turn, so overruled.”
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`09/13/24 PM Tr. at 82:16-19. But the defense was not permitted to put into evidence the
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`responsive letters from Backpage at Exhibits 487 and 5019. 09/26/23 PM Tr. at 15-18.
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`Under Rule 106, and because the government has “opened the door,” there are
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`several bases for the admission of Backpage’s responses to the AG letters. First, the
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`government put the responses at issue by eliciting testimony from Ferrer regarding the fact
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`that there were responses, that the “owners” (i.e., certain of the Defendants) provided the
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`responses, and that the responses were purportedly “deceptive” and “highly misleading.”
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`09/13/23 PM Tr. at 84:15-19. Therefore, at a minimum, defense counsel should have been
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`permitted to admit the responses and ask Ferrer point-by-point as to what portions he
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`considered to be deceptive.
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`Second, the AG letters themselves reference Backpage’s responses and therefore
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`put them at issue. See Exh. 52 at 1 (“Thank you for your recent letter notifying us of
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`Case 2:18-cr-00422-DJH Document 1840 Filed 10/05/23 Page 10 of 35
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`additional changes backpage has implemented in order to respond to our concerns . . . .”),
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`(“As you indicated in your recent letter to us, you found that once you began charging for
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`ads in the adult services section of the site . . . .”); Exh. 119 at 1 (“This letter is in response
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`to Backpage.com’s assurances . . . ), id. at 3-4 (addressing Backpage’s “representations”
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`made in prior responsive letters).
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`Third, the Court held that the AG letters are “being offered for the knowledge of
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`certain defendants as to what was going on at Backpage as alleged in the indictment.”
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`09/14/23 AM at 66:21-67:1. But the indictment merely alleges the Government’s side of
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`the story. The defense is entitled to respond to the indictment’s charges and what
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`purportedly was in their “knowledge” by putting in the responsive letters. This is
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`particularly the case as to Brunst. Ferrer testified that he did not consult with Brunst on the
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`responses to the AG letters. 09/27/13 AM Tr. at 92:21-93:5. The responses themselves
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`are therefore critical to show Brunst’s state of mind as to Backpage’s position vis-à-vis the
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`AGs and the steps he understood Backpage to be taking to address the AG’s concerns.
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`There is no testimony that Ferrer told Brunst the responses were deceptive or misleading.
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`Therefore, Brunst’s reliance on the responsive letters would not amount to “self-serving”
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`hearsay—the letters instead go to his understanding as the CFO of the holding company
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`that outside counsel had been retained to engage in a cooperative dialogue with the State
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`AGs, which provided him comfort that any legal issues posed by the AG letters were being
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`sufficiently addressed.
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`C.
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`Exhibit 836 (July 2016 Correspondence Between Liz McDougall and
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`The Wall Street Journal)
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`Over objection by the defense, the Court admitted Exhibit 836a, a heavily redacted
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`version of Exhibit 836, for the purpose of showing that WSJ was communicating with
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`Backpage’s General Counsel regarding The Erotic Review. 09/22/23 AM Tr. at 42-44. In
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`the redacted portion of the email, which prompts the WSJ response that was admitted,
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`Ms. McDougall says to the WSJ reporter, for example, “[Y]our questions and observations
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`about TER numbers are concerning because they suggest you may not have a good
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`understanding of the complexities of moderating third-party content online.” The
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`government should not be permitted to cherry-pick what it unilaterally deems to be
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`admissible hearsay and keep out exculpatory hearsay that provides necessary context. As
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`Mr. Ferrer is later copied into the e-mail exchange, defense counsel should have been
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`permitted to ask him about his reaction to Ms. McDougall’s redacted comments to WSJ.
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`II.
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`Ferrer’s Prior Statements Regarding the California Criminal Complaints Are
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`Classic Impeachment.
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`The Court did not permit Mr. Lincenberg to use GL-CF-36 (May 18, 2017 email
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`from Ferrer to James Grant and Daniel Quigley1) and GL-CF-37 (Ferrer’s prior
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`inconsistent statements) to impeach Ferrer. On September 26, 2016, the California
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`Attorney General filed a criminal complaint against Lacey, Larkin, and Ferrer charging
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`pimping and related crimes. Exh. 5917. After the court dismissed the complaint,2
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`California then came back on December 23, 2016, and charged these same individuals
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`with the same pimping and related crimes, while adding money laundering charges.
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`Exh. 5919. California subsequently amended its complaint to include additional money
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`laundering charges premised on bank fraud, after which the court dismissed the pimping
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`and related charges and the money laundering charges based on pimping, leaving just the
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`money laundering charges premised on bank fraud. (Those charges were pending at the
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`time of the federal indictment and are currently stayed.).
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`The money laundering charges in the California case are based on the same
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`1 Mr. Quigley, an attorney, represented Medalist Holdings, Inc. (f/k/a New Times, Inc.)
`and its subsidiaries—the companies owned by Larkin and defendants Lacey, Brunst, and
`Spear. Mr. Quigley did not represent Ferrer in the California criminal cases.
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`2 In dismissing the complaint, the California court expressly stated that the prosecution
`implicated the First Amendment, even though the court resolved the case on statutory
`grounds under the CDA and did not need to reach the constitutional issue presented. Exh.
`5324 at 4 (stating that “The First Amendment is implicated” and “Indeed, the protections
`afforded by the First Amendment were the motivating factors behind the enactment of the
`CDA. Congress expressly intended to relieve online publishers from liability for
`publishing third-party speech”).
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`Case 2:18-cr-00422-DJH Document 1840 Filed 10/05/23 Page 12 of 35
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`allegations as those made by the Government here. For example, the California criminal
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`complaint alleges:
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`• The creation of Classified Solutions, Website Technologies, and PostFastr. Id.
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`at 2.
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`• “Ferrer applied for a merchant account with the payment processor Stripe for the
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`classified site Postfastr.com. He omitted any reference to Backpage.com, but
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`planned to use the account to process Backpage transactions.” Id. at 3.
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`• “In early 2015, Defendant Ferrer received notice from American Express that
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`the company would not process Backpage transactions after May 1, 2015.
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`Defendant Ferrer directed Backpage personnel to ‘bury’ a message notifying
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`users that American Express would not be accepted, but to process any
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`American Express payments that Backpage users attempted.” Id. (also
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`discussing the use of “credits”).
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`As part of Ferrer’s Plea Agreement here, he pled guilty to money laundering in the
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`California state criminal case. Exh. 5994-2 at 3. On April 12, 2018, Ferrer pled guilty in
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`California to conspiracy to commit money laundering and three substantive money
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`laundering counts. Exh. A at ¶ 1. In the California plea agreement, Ferrer stipulated that
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`“Because of the nature of the revenue stream, several financial institutions refused to
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`process payments for advertisements on Backpage.com. However, Defendant created new
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`merchant accounts, manipulated billing descriptors, misled financial institutions, and
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`created shell companies in order to circumvent the financial institutions’ unwillingness to
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`process Backpage.com’s commercial sex and other transactions.” Id. at ¶ 2.
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`These allegations are precisely what the Government has tried to demonstrate in the
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`instant case. For example, Ferrer has testified here as follows:
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`
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`• Regarding banking, “Q. Did you do anything to try to conceal the fact that
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`Backpage was the ultimate recipient of the credit card transactions, the revenue?
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`THE WITNESS: Yes. We created holding companies.” 09/12/23 PM Tr. at
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`71:15-20.
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`• “Posting Solutions was another shell company similar to, like, Website
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`Technologies, very generic sounding company that we could open bank
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`accounts with.” 09/21/23 PM Tr. at 89:8-10.
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`• Referring to the use of “credits”: “[W]e can direct them to PostFaster and there
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`they can buy credits and the credits they buy in PostFaster will automatically
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`appear under Backpage so we can manage their ad through PostFaster.”
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`09/20/23 PM Tr. at 99:21-100:8.
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`• Ferrer testified that Backpage changed “billing descriptors” so “Chase won’t
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`know or Chase won’t figure it out for a while and the transaction will go
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`through.” 09/20/23 PM Tr. at 21:14-22:8.
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`But in response to the allegations in the California case, Ferrer made
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`contemporaneous statements completely at odds with his testimony on direct examination.
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`Counsel attempted to impeach Ferrer with three of those statements: (1) that when
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`a payment processing contract is filled out and months are spent vetting the contract, there
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`is no disguising of the transaction; (2) there is no evidence of fraudulent merchant bank
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`applications; and (3) a money laundering charge is an attempt to “legislate by prosecution”
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`regarding government pressure to cut off unpopular speech. GL-CF-37 at 1. The
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`document notes “CARL COMMENT,” followed by the prior inconsistent statements.
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`Because counsel was cut off from using GL-CF-37, counsel never even got to use the other
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`impeachment material from the document.3 For example, there are further prior
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`inconsistent statements at the end of the document regarding the purpose of Website
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`Technologies and “standard practice” regarding payment processing. Id. at 44. These
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`statements are plainly inconsistent with Ferrer’s trial testimony. See United States v.
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`Morgan, 555 F.2d 238, 242 (9th Cir. 1977) (prior inconsistent statement admissible
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`“whenever a reasonable man could infer on comparing the whole effect of the two
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`3 Moreover, in addition to GL-CF-37, there are other documents of a similar nature which
`Ferrer prepared, in the same time frame, that also contain statements directly at odds with
`his trial testimony in this case.
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`statements that they had been produced by inconsistent beliefs.”) (quoting 4 Weinstein’s
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`Evidence, Matthew Bender, P. 801-76 801-76.1 (1976)).
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`Sustaining the Government’s objections, the Court precluded this impeachment,
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`reasoning that the statements may be privileged, it is unclear who authored the statements,
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`the document had strike-outs, the notes may have been a draft, and the statements were not
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`under oath. 09/27/23 PM Tr. at 59-65; 09/28/23 AM Tr. at 65-71. But the Court refused
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`to allow counsel to address some of these questions through examination of Ferrer, and
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`none of these are proper reasons to keep out the impeachment.
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`A.
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`Ferrer Personally Waived the Attorney-Client Privilege as to the
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`Impeachment Material.
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`First, as part of his Proffer/Interview Agreement with the Government, Ferrer
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`waived any privileges applicable to the impeachment material:
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`Mr. Ferrer voluntarily waives all claims of attorney-client privilege,
`whether in his personal or official capacity as the Chief Executive Officer
`of Backpage.com, LLC as to communications with any attorney or law
`firm that represented Backpage.com, or any related entity, where such
`communications concerned or related to Backpage.com or any related
`entity. This waiver does not apply to Mr. Ferrer’s current attorneys, Nanci
`Clarence, Jonathan Baum and anyone working on their behalf. Mr. Ferrer
`voluntarily agrees to provide all documents and other material that may be
`relevant to the investigation and that are in his possession or control.
`However, Mr. Ferrer shall not disclose any documents or information
`protected by the Joint Defense Agreement in this matter. Mr. Ferrer
`understands that his proffer/interview and any benefit he may receive from
`information he provides to the prosecution does