Case 2:18-cr-00422-DJH Document 1851 Filed 10/11/23 Page 1 of 18
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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
`
`NICOLE M. ARGENTIERI
`Acting Assistant Attorney General
`Criminal Division, U.S. Department of Justice
`
`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
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF ARIZONA
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`
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`
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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.
`
`
`CR-18-422-PHX-DJH
`
`
`UNITED STATES’ RESPONSE TO
`DEFENDANTS’ BRIEF IN SUPPORT
`OF OBJECTIONS TO COURT
`RULINGS DURING FERRER
`TESTIMONY (Doc. 1840)
`AND
`DEFENDANT SPEAR’S JOINDER
`(Doc. 1841)
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`Case 2:18-cr-00422-DJH Document 1851 Filed 10/11/23 Page 2 of 18
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`Defendants’ Brief in Support of Objections to Court Rulings During Ferrer
`Testimony (Doc. 1840) seeks reconsideration of several rulings. LRCiv 7.2(g)(1) states:
`The Court will ordinarily deny a motion for reconsideration of an Order
`absent a showing of manifest error or a showing of new facts or legal
`authority that could not have been brought to its attention earlier with
`reasonable diligence. Any such motion shall point out with specificity the
`matters that the movant believes were overlooked or misapprehended by the
`Court, any new matters being brought to the Court’s attention for the first
`time and the reasons they were not presented earlier, and any specific
`modifications being sought
`in
`the Court’s Order. No motion for
`reconsideration of an Order may repeat any oral or written argument made
`by the movant in support of or in opposition to the motion that resulted in the
`Order. Failure to comply with this subsection may be grounds for denial of
`the motion.
`See also LRCrim 12.1(a). Defendants’ brief does not show “manifest error” or “new facts
`or legal authority that could not have been brought to [the Court’s] attention earlier with
`reasonable diligence.” LRCiv 7.2(g)(1). For several reasons, Defendants’ brief does not
`warrant reconsideration of any prior rulings.
`
`I.
`Fed. R. Evid. 106 Applies to Specific Statements—Not Entire Categories of
`Evidence—and Defendants Cannot Use It to Litigate Their “Good Faith”
`Defense.
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`Fed. R. Evid. 106 provides that “[i]f a party introduces all or part of a writing or
`recorded statement, an adverse party may require the introduction, at that time, of any other
`part—or any other writing or recorded statement—that in fairness ought to be considered
`at the same time.” Rule 106 has a singular purpose: to prevent a party from distorting the
`meaning of a proffered statement by introducing only part of the statement, while omitting
`other part(s) necessary to demonstrate the statement’s truthful meaning. United States v.
`Vallejos, 742 F.3d 902, 905 (9th Cir. 2014) (Rule 106 “codified the common law Rule of
`Completeness, which exists to avert ‘misunderstanding or distortion’ caused by
`introduction of only part of a document”) (quoting Beech Aircraft Corp. v. Rainey, 488
`U.S. 153, 172 (1988)). The Rule does not require introducing “any unedited writing or
`statement merely because an adverse party has introduced an edited version.” Id. If a
`complete statement doesn’t “serve to correct a misleading impression” in the edited
`statement, Rule 106 “will not be applied[.]” Id.
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`Case 2:18-cr-00422-DJH Document 1851 Filed 10/11/23 Page 3 of 18
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`Rainey illustrates the Rule’s purpose. (Cf. Doc. 1840 at 5-6.) In Rainey, a plaintiff
`wasn’t permitted to testify about the central thrust of a letter he had written about the plane
`crash at issue—namely, that the crash was caused by catastrophic power failure. 488 U.S.
`at 170-71. When examined by opposing counsel as an adverse witness, the plaintiff testified
`about misleadingly quoted snippets from the letter that discussed other potential causes.
`But when examined by his counsel, the court wouldn’t allow him to be questioned about
`the main topic of his letter. Id. The Supreme Court held that “when one party has made use
`of a portion of a document, such that misunderstanding or distortion can be averted only
`through presentation of another portion, the material required for completeness is ipso facto
`relevant and therefore admissible[.]” Id. at 172.
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`Courts evaluate application of Rule 106 on a statement-by-statement basis; the Rule
`is not meant to be used in a generalized, broad-brush fashion to determine that entire
`categories of evidence must be introduced whenever an adverse party asserts that such
`evidence is needed to bolster that party’s theory or defense. To that end, the Ninth Circuit
`has consistently held that Rule 106 should not be construed broadly to require the
`admission of an entire, complete writing or statement simply because an edited version is
`admitted. Vallejos, 742 F.3d at 905 (the district court correctly explained that “[j]ust
`because somebody is putting in part of a transcript . . . does not mean for the sake of
`completeness, everything comes in”); United States v. Liera-Morales, 759 F.3d 1105, 1111
`(9th Cir. 2014) (affirming exclusion of defendant’s exculpatory statements because the
`admitted portions were neither taken out of context nor misleading: “The district court
`carefully and thoroughly considered the government’s proffered statements from the post-
`arrest interview and correctly determined that those statements were neither misleading nor
`taken out of context.”); United States v. Lopez-Figueroa, 316 F. App’x 548, 549-50 (9th
`Cir. 2008) (affirming the exclusion of defendant’s statements because they weren’t
`necessary to explain the admitted portions); United States v. Collicott, 92 F.3d 973, 983
`(9th Cir. 1996) (affirming exclusion of defendant’s statements under Rule 106 because they
`did not serve to correct an out-of-context prior statement: “[I]t is often perfectly proper to
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`Case 2:18-cr-00422-DJH Document 1851 Filed 10/11/23 Page 4 of 18
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`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.”) (citation omitted); United States v. Dorrell, 758 F.2d 427, 434-35 (9th
`Cir. 1985) (no Rule of Completeness violation where an edited version of a confession did
`not “distort[ ] the meaning of the statement”) (internal quotation marks omitted); United
`States v. Burreson, 643 F.3d 1344, 1349 (9th Cir. 1981) (affirming exclusion of the entirety
`of prior testimony because the portions appellants wished to admit were irrelevant).
`Other Circuits have similarly held that Rule 106 “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). Further, just because an excluded portion is relevant, does not necessarily mean
`that it is necessary to qualify, explain or place into context. United States v. Branch, 91
`F.3d 699, 728 (5th Cir. 1996) (affirming exclusion of statements as self-serving
`exculpatory statements by the defendant that did not explain or qualify the rest of the
`statement originally offered by the United States), abrogated on other grounds as
`recognized in United States v. Mojica-Baez, 229 F.3d 292, 310 n.12 (1st Cir. 2000); United
`States v. Langford, 647 F.3d 1309, 1331 (11th Cir. 2011) (affirming exclusion of transcript
`of defendant’s testimony in SEC hearing because defendant failed to identify what specific
`portions would qualify, explain or place into context the portions that were introduced by
`the United States). To the extent Defendants contend that any statements offered against
`them are taken out of context, the burden is on them to provide an explanation regarding
`what specific additional statements should be introduced so as to “qualify, explain, or place
`into context the portion already introduced.” Branch, 91 F.3d at 728.
`
`Defendants’ reference to the Rule 106 amendment that takes effect on December 1,
`2023 (absent contrary Congressional action) does not change this calculus. (See Doc. 1840
`at 5.) The amended rule states: “If a party introduces all or part of a statement, an adverse
`party may require the introduction, at that time, of any other part—or any other statement—
`that in fairness ought to be considered at the same time. The adverse party may do so over
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`Case 2:18-cr-00422-DJH Document 1851 Filed 10/11/23 Page 5 of 18
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`a hearsay objection.” Fed. R. Evid. 106 (amended). As the Advisory Committee explains,
`allowing an adverse party to introduce a completing statement “over a hearsay objection”
`is rooted in the Rule’s core purpose of allowing correction of “a misimpression about the
`meaning of a proffered statement[.]” Fed. R. Evid. 106, Advisory Committee Notes. The
`Committee offered this example to illustrate what the amendment is designed to address:
`[A]ssume the defendant in a murder case admits that he owned the murder
`weapon, but also simultaneously states that he sold it months before the
`murder. . . . [A]dmitting only the statement of ownership creates a
`misimpression because it suggests that the defendant implied that he owned
`the weapon at the time of the crime—when that is not what he said.
`Fed. R. Evid. 106, Advisory Committee Notes.
`
`Critically, however:
`The amendment does not give a green light of admissibility to all excised
`portions of statements. It does not change the basic rule, which applies
`only to the narrow circumstances in which a party has created a
`misimpression about the statement, and the adverse party proffers a
`statement that in fact corrects the misimpression. The mere fact that a
`statement is probative and contradicts a statement offered by the opponent is
`not enough to justify completion under Rule 106. So, for example, the mere
`fact that a defendant denies guilt before later admitting it does not, without
`more, mandate the admission of his previous denial. See United States v.
`Williams, 930 F.3d 44 (2d Cir. 2019).
`Fed. R. Evid. 106, Advisory Committee Notes (emphasis added). It is not clear that the
`amended language reflects any change in Ninth Circuit law. See, e.g., United States v.
`Lopez, 4 F.4th 706, 715 (9th Cir. 2021) (recognizing that “[p]ortions of a document or
`recording are admissible under Rule 106 notwithstanding the bar on hearsay evidence when
`offered “to correct a misleading impression in the edited statement” introduced by an
`opposing party) (quoting Vallejos, 742 F.3d at 905).
`
`Doc. 1776 provides additional briefing and caselaw (beyond those discussed in Doc.
`1840 at 6) demonstrating why Defendants’ self-serving statements are not admissible under
`Rule 106—particularly where they are not required to clarify a misimpression caused by
`using only part of a statement or document. (See Doc. 1776 at 3-4 (collecting cases).) The
`United States incorporates that briefing and caselaw here.1
`
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`1 Defendants can’t distinguish United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996),
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`Case 2:18-cr-00422-DJH Document 1851 Filed 10/11/23 Page 6 of 18
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`Exhibit 616a (November 2010 Correspondence with BMO)
`A.
`
`In September 2023, the parties litigated the redactions reflected in Exhibit 616a—
`
`particularly regarding a portion of the email thread written by James Larkin. (See, e.g.,
`Doc. 1776 at 6.) As the United States argued:
`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. . . .
`
`(Doc. 1776 at 6.) While Defendants now argue they should have been able to introduce and
`ask the government’s first witness about the Larkin portion of the email chain, Defendants
`do not show “manifest error” or “new facts or legal authority that could not have been
`brought to [the Court’s] attention earlier with reasonable diligence.” LRCiv 7.2(g)(1).
`None of the authorities Defendants cite were decided since September 2023. (Cf. Doc. 1840
`at 5-8.) The Court’s findings regarding the CDA remain law of the case—and Defendants
`have failed, as before, to show how that statute immunizes them from federal criminal
`liability. (See, e.g., Doc. 840 at 4-12; Doc. 1643 at 9-10.)
`
`Defendants’ assertion that Larkin’s blanket statement that Backpage’s operations
`were “clearly lawful” left the jury with an incomplete picture of Defendant Brunst’s mental
`state also fails. (Cf. Doc. 1840 at 8.) The United States introduced Exhibit 616a to show
`that Brunst and others were aware of questions raised by BMO about Backpage.com’s
`activities. Admission of Larkin’s self-serving statements wasn’t necessary to correct any
`misimpression on that score. And Defendants’ apparent argument that they weren’t
`
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`or United States v. Ortega, 203 F.3d 675, 679 (9th Cir. 2000), on the basis that they discuss
`statements or transcripts, not emails. (Cf. Doc. 1840 at 6.) Rule 106 applies to all
`“writing[s] and recorded statement[s],” and the amended Rule will “cover all statements,”
`including unrecorded ones. Fed. R. Evid. 106, Advisory Committee Notes.
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`Case 2:18-cr-00422-DJH Document 1851 Filed 10/11/23 Page 7 of 18
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`allowed to introduce (or question Mr. Ferrer about) the unredacted exhibit, Exhibit 616,
`isn’t supported by the transcript of the September 27, 2023 proceedings. The daily
`transcripts show that Defendant Brunst’s counsel didn’t seek to move Exhibit 616 into
`evidence, and didn’t seek to ask follow-up questions after the Court permitted preliminary
`yes-or-no questions relating to certain statements that counsel asked about. See 09/27/23
`PM Daily Tr. at 119-121.
`
`Defendants’ related claim that the state attorneys general (AG) letters “are notice of
`a potential prosecution under state law as to which the CDA was a defense” misses the
`mark. (Doc. 1840 at 8-9.) The United States introduced the letters to show that
`Backpage.com and Defendants were put on notice of the AGs’ observation that prostitution
`ads were rampant on Backpage’s adult-escorts section. Admission of the letters, by
`themselves, did not “open the door” to any discussion by Backpage or its representatives
`about the CDA—a statute that this Court has repeatedly found has no application to this
`federal criminal prosecution. (See, e.g., Doc. 840 at 4-12; Doc. 1643 at 9-10.)
`B.
`Responses to the State AG Letters
`
`
`The Court informed Defendants that they could seek to have Backpage’s responses
`to the AG letters admitted “when it’s your turn[.]” (Doc. 1840 at 9; 09/13/23 PM Daily Tr.
`at 74.) But this was not a pre-ruling on the responses’ admissibility—rather, it was an
`invitation for the defense to seek to have the letters admitted. When Defendant Spear’s
`counsel offered Exhibits 487 and 5019 into evidence, the Court sustained the United States’
`hearsay objections to each exhibit. (09/26/23 PM Daily Tr. at 12-15.) Defense counsel did
`not indicate that the letters weren’t being offered for the truth; nor did counsel identify any
`possible hearsay exceptions. (09/26/23 PM Daily Tr. at 12-15.)
`
`Defendants’ present assertion—that the letters should have come in under Rule
`106—lacks merit. (Cf. Doc. 1840 at 9-10.) For one thing, Defendants fail to identify any
`specific, allegedly misleading statements in the AGs’ letters that would justify admitting
`Backpage’s responses. If Defendants contend that any statements offered against them are
`taken out of context, the burden is on them to provide an explanation regarding what
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`Case 2:18-cr-00422-DJH Document 1851 Filed 10/11/23 Page 8 of 18
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`specific additional statements should be introduced so as to “qualify, explain, or place into
`context the portion already introduced.” Branch, 91 F.3d at 728. See also Vallejos, 742
`F.3d at 905 (“[I]f the ‘complete statement [does] not serve to correct a misleading
`impression’ in the edited statement that is created by taking something out of context, the
`Rule of Completeness will not be applied to admit the full statement.”). Yet Defendants
`have not identified any specific statements in the AG letters that are incomplete or
`distorting; nor have they explained how the response letters would correct any specific
`misimpressions in the AG letters.
`
`Rather, Defendants are trying to use Rule 106 as a vehicle for litigating their state-
`of-mind defenses. Defendants assert, for example, that the response letters are “critical to
`show Brunst’s state of mind as to Backpage’s position vis-à-vis the AGs and the steps he
`understood Backpage to be taking to address the AG’s concerns.” (Doc. 1840 at 10.) But
`if Brunst wants to establish good faith reliance on lawyer advice or some other state-of-
`mind defense, he will have to do far more than simply point out that Backpage hired
`counsel to write responses to the AG letters. (See, e.g., Doc. 1643 at 12-13.) For now, the
`record contains no testimony that Brunst relied on the responses in any way. (Cf. Doc. 1840
`at 10 (simply asserting, without pointing to any evidence, “Brunst’s reliance on the
`responsive letters”).) Brunst thus has no basis to assert the letters “go to his understanding
`. . . that outside counsel had been retained . . . which provided him comfort that any legal
`issues posed by the AG letters were being sufficiently addressed.” (Doc. 1840 at 10.)
`
`Defendants’ assertions that the United States or the AGs “put [Backpage’s
`responses] at issue” is likewise insufficient to trigger Rule 106. (Cf. Doc. 1840 at 9-10.)
`These assertions don’t show how any specific statements in the AGs’ letters were false,
`incomplete, or misleading. Nor do they show how admission of the responsive letters
`would “serve to correct,” Vallejos, 742 F.3d at 905, or “qualify, explain, or place into
`context,” any such specific statements. Branch, 91 F.3d at 728. And at least one of the
`letters, Exhibit 487, contains a lengthy discussion of the CDA and prior litigation—topics
`precluded by Doc. 1643 and other rulings. (See, e.g., Doc. 1643 at 8-11.)
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`Case 2:18-cr-00422-DJH Document 1851 Filed 10/11/23 Page 9 of 18
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` C. Exhibit 836 (July 2016 Wall Street Journal Correspondence)
`
`The redacted version of this July 11, 2016 email chain—Exhibit 836a—consists of
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`a request from a Wall Street Journal reporter to a Backpage representative for a response
`from the company about the presence of TER (The Erotic Review) numbers in Backpage
`ads. In the redacted exhibit, the reporter asks: “Hi Liz. We do need to get an answer on the
`TER numbers pretty soon.” (See Ex. 836a.) Defendants’ brief does not show how this
`request for comment, in itself, is misleading in any way, or how the use of an unredacted
`(or less redacted) version of Exhibit 836a would correct any misimpression caused by the
`reporter’s simple request for comment. Defendants seem to want to introduce their theory
`of the case by offering Liz McDougal’s hearsay response to the reporter, packaged as a
`Rule 106 explanation. But Defendants don’t articulate how McDougal’s response would
`(or even could) correct a misleading impression from the reporter’s mere request for
`comment. And Defendants’ suggestion is rife with the kinds of “double hearsay” or
`“hearsay within hearsay” problems that Defendants have raised in other circumstances.
`II.
`Defendants Should Be Barred from Using Carl Ferrer’s Attorney-Client
`Privileged Communications About the California State Prosecution for
`Impeachment in this Federal Criminal Trial.
`A.
`The Proposed Impeachment Material Is Protected by Ferrer’s Attorney-
`Client Privilege, and Ferrer Hasn’t Waived the Privilege.
`During Ferrer’s cross-examination, Brunst’s counsel sought to use a privileged
`
`attorney-client communication for impeachment purposes, designated GL-CF 36 and 37.
`As described in Doc. 1844, the communication is an email dated May 18, 2017 from Ferrer
`to two of his lawyers at the time, James Grant of Davis Wright Tremaine LLP and Dan
`Quigley of Rusing Lopez & Lizardi, PLLC. The subject line of the email is “Comments on
`California – Attorney Client Privileged.” The email contains two attachments, including a
`document containing Ferrer’s comments on the amended Criminal Complaint in the
`California criminal case, People of the State of California v. Carl Ferrer, Michael Lacey,
`and James Larkin, Case No. 16FE019224 (Cal. Super. Ct.). (Doc. 1844 at 2.) When Ferrer
`sent the email, Grant personally represented him in that California criminal case (see Doc.
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`Case 2:18-cr-00422-DJH Document 1851 Filed 10/11/23 Page 10 of 18
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`1827 at 5), and Mr. Quigley personally represented him in a civil case in this court,
`Sojourner Center v. Backpage.com LLC, et al., Case No. 2:17-cv-00399-GMS. (Doc. 1844
`at 2.) As Ferrer has explained, Quigley appeared for Ferrer personally in that case, and
`Ferrer considered him to be his lawyer. (Doc. 1844 at 2.)
`
`Defendants do not explain how they came into possession of this privileged
`material. Nor do they seriously dispute that it meets all requisites needed to qualify as a
`privileged attorney-client communication. (See Doc. 1840 at 14-16); United States v.
`Christensen, 828 F.3d 763, 802 (9th Cir. 2016). Instead, Defendants assert that Ferrer
`waived the privilege over this communication by signing a Proffer/Interview Agreement
`(the Proffer Agreement) and a Joint Defense Agreement (JDA). (Doc. 1840 at 14-16.) Yet
`neither agreement operated to waive Ferrer’s privilege over this communication—and it
`certainly did not authorize any of Ferrer’s personal attorneys to violate their duties of
`confidentiality and loyalty to him by handing over these materials to Defendants.2
`1.
`This Court Has Already Recognized that Ferrer’s Confidences as
`a Former Client Should Be Preserved.
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`First, this is not the first time that the parties have litigated these issues in this case.
`
`In October 2018, Judge Logan carefully reviewed the Proffer Agreement, the Joint Defense
`Agreement and other agreements relating to the United States’ motion to disqualify Grant
`and his law firm, Davis Wright Tremaine (DWT), from representing Defendants Lacey and
`Larkin in this case. (See Doc. 338 at 6, 10.) The motion was based, among other things, on
`Grant’s former representation of Ferrer in the California criminal case. (Doc. 118 at 3.)
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`In the Court’s October 12, 2018 Order denying disqualification, Judge Logan
`emphasized “it has been made clear that neither HCM [another law firm that personally
`represented Ferrer] nor DWT will participate as trial counsel in this matter, and both firms
`have stated that neither firm will participate in cross-examining Ferrer.” (Doc. 338
`at 9-10 (emphasis added).) The Court then stated:
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`2 The United States has standing to address these arguments, as explained in Doc. 1842.
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`Moving forward, the Court will rely on the representations of HCM,
`DWT, and their respective counsel that the firms will continue to
`preserve the confidences of Ferrer as a former client, create ethical walls
`where necessary, refrain from engaging in trial preparation or participating
`as trial counsel, and only participate in the limited capacity set forth in the
`pleadings, without an order from the Court.
`(Doc. 338 at 10 (emphasis added).) Cross-examining Ferrer on his attorney-client
`communications with DWT is flatly contrary to this directive—and underscores the grave
`ethical and professional concerns posed by the attempted use of such material here.
`2.
`The Proffer Agreement Did Not Waive Privilege Over Ferrer’s
`Personal Attorney-Client Communications.
`Ferrer’s Proffer Agreement, executed on April 5, 2018, did not waive his personal
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`privilege over the May 18, 2017 email and attachments. (Cf. Doc. 1840 at 14-15.)
`Defendants point to the agreement’s second paragraph, which states:
`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 not depend on his waiver of the attorney-
`client privilege.
`(Doc. 174-2 at 2 ¶ 2 (emphasis added).)
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`The parties intended for the above language to track the approach in a formal
`“Waiver of Attorney Client Privilege” that Ferrer contemporaneously signed (Doc. 174-2
`at 5-6; Doc. 195-3)—that is, it would only waive Backpage’s corporate attorney-client
`privilege but not Ferrer’s personal privilege. (See Doc 193-9 at 8 ¶ 45.) On April 5, 2018,
`Ferrer executed a two-page “Waiver of Attorney Client Privilege.” In the last paragraph of
`that document, Ferrer made clear that he was only waiving Backpage’s corporate attorney-
`client privilege and was not waiving his personal attorney-client privilege, either with his
`current attorneys or with any attorneys who previously represented him on an individual
`basis: “I further state that this waiver does not apply to any aspect . . . of my personal
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`attorney-client relationship with attorneys who have represented me in the past or who
`currently represent me in an individual capacity . . . .” (Doc. 195-3 at 3.)
`
`The Proffer Agreement waiver was meant to effectuate the same waiver. (Doc 193-
`9 at 8 ¶ 45.) That’s why it only applied to “communications with any attorney or law firm
`that represented Backpage.com, or any related entity.” (Doc. 174-2 at 2 ¶ 2.) It was not
`meant to apply to communications to attorneys and law firms that represented Ferrer in a
`personal capacity. (Doc. 1844 at 2; see also Doc. 192 at 7-8.)
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`Alternatively, Defendants cannot be heard to argue that any waiver in the Proffer
`Agreement applies to material that they claim is covered by the JDA. The waiver language
`in the Proffer Agreement states: “However, Mr. Ferrer shall not disclose any documents or
`information protected by the Joint Defense Agreement in this matter.” (Doc. 174-2 at 2
`¶ 2.) So, if the JDA applies to the impeachment material (it does not, as explained below),
`the Proffer Agreement does not waive privilege over that material. Or, in other words, if
`the Proffer Agreement effectuated a waiver, that waiver did not apply to materials covered
`by the JDA.
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`The JDA Does Not Apply to the Proposed Impeachment Material.
`3.
`Defendants assert that, by signing the JDA, Ferrer agreed that if he were to testify
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`as a witness in any proceeding “arising from the Case,” then any other signatory may “us[e]
`for defense purposes any information or material contributed by [him] or by his . . .
`attorney. This specifically permits use of contributed information or material in cross-
`examining the witness[.]” (Doc. 1840 at 15.) As Defendants’ heavily redacted version of
`the JDA attached to their brief shows, Ferrer executed the JDA on June 14, 2017. (Doc.
`1840 at 35.) But Ferrer sent the impeachment material at issue to his personal counsel on
`May 18, 2017—before the JDA existed. (See Doc. 1844 at 2.) And nothing in the publicly
`disclosed, redacted JDA indicates that the May 2017 communication falls within the JDA’s
`temporal scope, or that the JDA applies retroactively in any way.
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`Nor does anything show that the May 2017 communication falls within the JDA’s
`substantive scope. According to Defendants, “[t]he JDA defines ‘Case’ as ‘all matters
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`relating to the case of the Arizona federal grand jury investigation and any related
`proceedings.’” (Doc. 1840 at 15 n.4.) Ferrer wrote the May 2017 email in response to the
`amended criminal complaint in the California state court prosecution that had been filed
`against him in Sacramento, California, by the California Department of Justice. (See Doc.
`1844 at 2; Doc. 1827 at 2, 5; see also Doc. 118 at 3.) That criminal complaint alleged
`violations of California state laws; there is no indication that that prosecution charged the
`federal criminal law violations alleged here. (See Doc. 1840 at 11; cf. Doc. 230.)
`
`And, in all events, Judge Logan carefully reviewed the complete, unredacted JDA
`and concluded in no uncertain terms that Ferrer’s former lawyers remain bound by their
`duties to “continue to preserve the confidences of Ferrer as a former client, create ethical
`walls where necessary, refrain from engaging in trial preparation or participating as trial
`counsel, and only participate in the limited capacity set forth in the pleadings”—i.e., as
`“auxiliary counsel” who “will not participate at trial counsel [nor] participate in cross-
`examining Ferrer.” (Doc. 338 at 9-10.)
`
`Moreover, the Court correctly noted that the attachment to the May 2017 email (GL-
`CF-37) raised serious questions about the nature and authenticity of that document,
`including multiple strikeouts, redlines, alterations, and comments. (See 09/27/23 PM Daily
`Tr. at 55-62.) Combined with the overwhelming indicia of privilege surro