Case 2:18-cr-00422-DJH Document 1990 Filed 11/27/23 Page 1 of 19
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`
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`GARY M. RESTAINO
`United States Attorney
`District of Arizona
`
`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
`
`
`
`
`
`United States of America,
`
`
`
`Plaintiff,
`
`
`v.
`
`
`Michael Lacey, et al.,
`
`
`
`Defendants.
`
`
`
`
`CR-18-422-PHX-DJH
`
`UNITED STATES’ RESPONSE TO
`DEFENDANTS’ FIRST
`SUPPLEMENT TO MOTION TO
`DISMISS (Doc. 1972)
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`Case 2:18-cr-00422-DJH Document 1990 Filed 11/27/23 Page 2 of 19
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`SUMMARY OF ARGUMENT
`Defendants’ supplemental motion to dismiss or for other relief should be denied.
`The supplement is based on the United States’ recent disclosure of 18 emails from Carl
`Ferrer relating to the forfeiture phase of this case. The emails date from April to August
`2018, and they all involve Ferrer’s post-plea assistance with the United States’ efforts to
`locate Backpage-related assets for possible seizure and forfeiture. The Ferrer forfeiture
`emails do not concern the subject matter of Ferrer’s testimony during the guilt phase of the
`trial. Moreover, the lion’s share of the information in the emails had previously been
`disclosed to Defendants in other, more detailed documents, and Defendants thoroughly
`cross-examined Ferrer at trial. Although under the United States’ broad disclosure policies
`these emails would have likely been turned over earlier, their disclosure was not required
`under the Jencks Act during the trial phase of this case. Even if otherwise, the United
`States’ earlier non-disclosure of the Ferrer forfeiture emails was due entirely to
`inadvertence, and the United States promptly produced the emails upon learning of them.
`For these and other reasons explained below, the United States has conscientiously
`complied with its discovery and disclosure obligations in this case—and Defendants’
`requests for the extreme sanctions of dismissal or striking testimony should be denied.
`FACTUAL BACKGROUND
`The United States Promptly Disclosed the Ferrer Forfeiture Emails Upon
`Learning They Had Not Been Produced
`
`A.
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`On Thursday, November 9, 2023 Defendant Brunst orally moved to dismiss the case
`
`based on an alleged Jencks violation related to Quoc Thai. (Docs. 1958, 1966, 1967.) The
`Court ordered briefing by Monday, November 13, 2023, at noon. (Doc. 1958.) The United
`States immediately started preparing an exhibit, later filed at Doc. 1966-7, comparing the
`asset tracing document at issue (Doc. 1966-4) to seizure warrant affidavits filed in
`California federal court in 2018 by Postal Inspector Lyndon Versoza (Docs. 1966-1, 1968-
`1, 1968-2.) These affidavits were disclosed in this case in 2018. (Docs. 1966-5, 1966-6.)
`
`In preparing Doc. 1966-7, the United States noticed a reference in one of the 2018
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`Case 2:18-cr-00422-DJH Document 1990 Filed 11/27/23 Page 3 of 19
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`affidavits to email communications between Inspector Versoza and Carl Ferrer. (Doc.
`1968-2 at 59 (“Following [an] in-person interview [on April 17-18, 2018], I also have
`spoken with Ferrer on the phone and communicated via email.”). Because the prosecution
`team did not immediately recall whether the referenced emails had been disclosed as part
`of the several million documents produced in this case since 2018, the prosecution team
`asked Inspector Versoza to search his files for the referenced emails.
`
`On November 9, 2023, Inspector Versoza identified a sub-folder on his laptop titled
`“Emails re Carl” that was contained in his “Forfeiture” folder. Within that sub-folder he
`located another sub-folder titled “Saved.” Within the “Saved” sub-folder there were 18
`emails between Versoza and Ferrer (the “Ferrer forfeiture emails”). The emails were saved
`in a manner indicating to Inspector Versoza they had been previously produced. His emails
`are automatically deleted unless he separately saves them to his computer, so he generally
`only saves emails when he plans on producing them in discovery. Because he had saved
`the Ferrer forfeiture emails, he believed they had been produced.
`
`The prosecution team continued working through the weekend on its response to
`Defendants’ motion to dismiss. On Monday, November 13, prosecutors asked IRS-CI
`Special Agent Richard Robinson to search the Relativity database of discovery to
`determine whether the Ferrer forfeiture emails had been produced. These searches require
`some work due to the sheer size of discovery—over 11 million pages.
`
`That evening, SA Robinson searched Relativity for Inspector Versoza’s email
`address “(laversoza@uspis.gov)” and “Carl.” The search yielded two emails between
`Inspector Versoza and Ferrer relating to the seizure of Backpage’s servers in April 2018.
`
`The next day, Tuesday, November 14, Inspector Versoza shared the Ferrer forfeiture
`emails with the prosecution team, and SA Robinson reported that he couldn’t find these
`emails in the Relativity database. The prosecution team immediately determined that the
`Ferrer forfeiture emails should be disclosed because they were arguably Jencks for the
`then-upcoming forfeiture trial, and the United States wanted to disclose them as soon as
`the trial team became aware of their existence. AUSA Rapp sent an email to defense
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`Case 2:18-cr-00422-DJH Document 1990 Filed 11/27/23 Page 4 of 19
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`counsel at 12:02pm that tried to attach the emails. (Nov. 14, 2023 email from K. Rapp to
`defense counsel, attached as Exhibit 1 at 2.) Due to the size of the attachments, that email
`failed to send. Two hours later, the United States notified the defense that the emails had
`been uploaded to USAfx—an application the United States uses for document productions.
`B. While The Ferrer Forfeiture Emails Did Not Relate To Ferrer’s Trial
`Testimony; The Lack of Prior Disclosure Was Entirely Inadvertent
`Inspector Versoza’s main role in the Backpage investigation concerned asset
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`forfeiture. He was the affiant on multiple seizure warrants (Docs. 1966-1, 1968-1, 1968-2)
`and the verified civil forfeiture complaint (Doc. 166-2) in the Central District of California.
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`The Ferrer forfeiture emails concerned asset forfeiture. In his plea agreement, Ferrer
`agreed to provide forfeiture assistance to the United States:
`b.
`Forfeiture Assistance: The defendant stipulates and agrees that, upon
`entry of his guilty plea, he will take all steps within his power to forfeit to the
`United States all corporate assets and other property owned or controlled by
`Website Technologies, LLC (“Website Technologies”), which owns and
`operates the Backpage website, as well as all corporate assets and other
`property owned or controlled by Backpage.com [and related entities]. Such
`steps shall include, but not be limited to, agreeing to the forfeiture of the . . .
`bank accounts, cryptocurrency, and other financial instruments owned or
`controlled by such entities. . . .
`(United States v. Ferrer, 18-CR-464-DJH, Plea Agreement, Doc. 7-2 at ¶ 3(b).)
`
`The 18 Ferrer forfeiture emails all involve communications concerning assets that
`Inspector Versoza reviewed for possible identification and inclusion in his asset seizure
`warrant affidavits and/or the civil forfeiture complaint that he verified.1
`
`Inspector Versoza intended to disclose these communications. First, he saved the
`emails so that the United States Postal Inspection Service system wouldn’t automatically
`delete them. Second, he segregated these emails into a separate folder, which is consistent
`with how he categorizes emails that will be produced in discovery. Third, he understood
`that all emails exchanged with trial witnesses should at least be provided to the prosecutors
`
`1 Defendant Spear attached all the emails to his Supplemental Motion (Doc. 1972-1). To
`ease the Court’s review, the United States has included all of Ferrer’s actual statements
`from these emails in the attached chart. (Chart attached as Exhibit 2.)
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`Case 2:18-cr-00422-DJH Document 1990 Filed 11/27/23 Page 5 of 19
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`to analyze whether the emails constituted Jencks/Brady/Giglio or otherwise should be
`disclosed. On January 8, 2019, AUSA Rapp sent an email to the prosecution team that
`attached a draft witness list. (Email from K. Rapp to Prosecution Team, attached as Exhibit
`3.) In the email, AUSA Rapp wrote, “We have two pressing deadlines: Jencks statements
`are due to defense by 2/25 and witness list (and preliminary exhibit list) are due on 4/1. We
`will review the witness list on 1/14 to determine if all statements have been forwarded to
`Relativity.” (Id.) Inspector Versoza understood, both through this email and his training
`and experience, that emails with trial witnesses should be disclosed to the prosecutors to
`make a determination about whether the communications should be produced—even when,
`as is the case here, the subject of the emails do not apply to the witness’s trial testimony.
`
`On November 9, 2023, when Inspector Versoza reviewed the sub-folder containing
`the Ferrer forfeiture emails, he believed that those emails had been disclosed. It wasn’t
`until the evening of November 13, 2023, after SA Robinson searched the 11 million plus
`pages of discovery in Relativity that the United States confirmed that the Ferrer forfeiture
`emails had not been produced. When the United States learned this, it moved expeditiously
`to produce the documents, sending the Ferrer forfeiture emails to Defendants the next day.
`The Ferrer Forfeiture Emails Cover Previously Disclosed Subjects
`C.
`The Ferrer forfeiture emails cover subjects that have all been independently
`disclosed to Defendants. First, generally, the emails pertain to Ferrer’s stipulation to “take
`all steps within his power to forfeit to the United States all corporate assets and other
`property owned or controlled by” the entity that owned and operated Backpage, and related
`entities. (United States v. Ferrer, 18-CR-464-DJH, Plea Agreement, Doc. 7-2 at ¶ 3(b).)
`Second, the majority of attachments in the Ferrer forfeiture emails related to
`attorney IOLTA accounts that the United States subsequently seized. This is documented
`in Inspector Versoza’s October 31, 2018 seizure warrant affidavit, which the United States
`filed in the Central District of California in 2018, produced to Defendants in 2018, and
`recently filed as Doc. 1968-1. Paragraphs 10(a)-10(q) outline 17 attorney IOLTA accounts
`that received Backpage proceeds. (Doc. 1968-1 at 10-15.) The affidavit provides more
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`Case 2:18-cr-00422-DJH Document 1990 Filed 11/27/23 Page 6 of 19
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`detailed information about these accounts than the attachments to the Ferrer forfeiture
`emails. (Compare Doc. 1968-1 at 10-15 with Ex. 2.)
`Third, one of the specific issues Defendant Spear argues was prejudicial relates to
`the money paid to Ferrer’s lawyers at the Clarence Dyer & Cohen law firm (“Clarence
`Dyer”). Defendant Spear points to a series of prepayments to lawyers representing a variety
`of entities and individuals associated with Backpage, including $4 million to Clarence
`Dyer. (See Feder Law email to Chambers and counsel dated 11/15/23 attaching Defense
`Exhibit 6273, attached as Exhibit 4.) But that figure does not shed light on the amount of
`money that Ferrer’s lawyers were paid after Ferrer pleaded guilty and agreed to cooperate
`with the United States in April 2018.
`Here are the relevant facts that relate to Ferrer’s representation by Clarence Dyer.
`Between Backpage’s sale to Ferrer in 2015 and Ferrer’s guilty plea in April 2018,
`Backpage paid millions of dollars to over a dozen law firms. (Doc. 1968-1 at ¶¶ 10(a)-
`10(q).) According to Ferrer, Defendant Brunst and Don Bennett Moon would direct Ferrer
`to make these payments. (Ferrer MOI, dated June 11, 2019, at ¶ 2, attached as Exhibit 5.)
`As Ferrer explained, “Early on there would be invoices and they wouldn’t make payments
`without an invoice. Later on payments to law firms were all retainers. Backpage staff would
`be told to send a check to a given law firm.” (Ex. 5 at ¶¶ 2(a)-(b).)
`
`In October 2016, Clarence Dyer began representing Ferrer. (Doc. 193-9, ¶ 8.)
`Backpage paid Clarence Dyer substantial sums well before Ferrer pleaded guilty in April
`2018. A portion of that money is captured by the disclosed bank records:
`Date
`Payee
` Type
` Amount
`Bates No
`
`
`
`
`
`Clarence Dyer &
`DOJ-BP-
`
`Disclosure Date
`
`
`3/20/2017
`
`Cohen LLP
`
`Wire
`
` $ 250,000.00
`
`0004921163
`
`January 13, 2020
`
`Clarence Dyer &
`
`DOJ-BP-
`
`3/20/2017
`
`Cohen LLP
`
`Wire
`
` $ 250,000.00
`
`0004921164
`
`January 13, 2020
`
`3/30/2017
`
`Clarence Dyer & Wire
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` $ 79,733.13 DOJ-BP-
`
`January 13, 2020
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`Case 2:18-cr-00422-DJH Document 1990 Filed 11/27/23 Page 7 of 19
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`Cohen LLP
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`Clarence Dyer &
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`0004921164
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`DOJ-BP-
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`4/27/2017
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`Cohen LLP
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`Wire
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` $ 500,000.00
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`0005036155
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`January 13, 2020
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`Clarence Dyer &
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`DOJ-BP-
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`7/14/2017
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`Cohen LLP
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`Wire
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` $ 143,552.56
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`0005036173
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`January 13, 2020
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`Clarence Dyer &
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`DOJ-BP-
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`0005039710
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`January 13, 2020
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` $ 154,565.23
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` $ 1,377,850.92
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`(Jan. 13, 2020, discovery letter, attached as Exhibit 6.)
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`Ferrer’s plea agreement makes clear that he could use money paid by Backpage to
`Clarence Dyer before his guilty plea, but “any funds remaining in the . . . IOLTA bank
`accounts at the conclusion of the litigation” were subject to forfeiture. (United States v.
`Ferrer, 18-CR-464-DJH, Doc. 7-2 at ¶ 8(a).) Defendants Lacey, Spear, and Brunst all filed
`verified petitions asserting that they each had a “right, title, and interest” in the Clarence
`Dyer IOLTA accounts. (18-CR-464-DJH, Doc. 29 at 12, Doc. 33 at 13-14, Doc. 34 at 12-
`13.)
`The amount of money paid by Backpage to Clarence Dyer before Ferrer pleaded
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`guilty in April 2018 is of no relevance. The key question, as asked by defense attorneys
`during Ferrer’s cross examination, is how much money Ferrer’s attorneys were permitted
`to keep after his agreement to cooperate with the United States.
`At trial, Ferrer was questioned at length about his cooperation with the United States
`and benefits he received. Ferrer testified on direct examination that he pleaded guilty to
`crimes in federal court and Texas and California state courts, and that part of his guilty
`pleas included providing assistance to investigators and prosecutors. (9/22/23 A.M. Daily
`Tr. at 53.) He knew his assistance could be considered at sentencing, but acknowledged
`that no promises had been made regarding what his sentences would be. (Id.)
`On cross-examination, defense counsel highlighted many benefits of Ferrer’s
`
`9/28/2017
`
`
`Cohen LLP
`
`
`Wire
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`Case 2:18-cr-00422-DJH Document 1990 Filed 11/27/23 Page 8 of 19
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`cooperation. Defense counsel questioned Ferrer about whether he knew, when he pled
`guilty in April 2018, about the sentence he’d be facing if he did not plead guilty; in
`response, Ferrer testified “I do have a recollection that it was substantial[.]” (9/26/23 A.M.
`Daily Tr. at 67-68.) Counsel underscored the potential sentencing benefits of cooperation.
`(9/26/23 A.M. Daily Tr. at 70-71; see also 9/28/23 A.M. Daily Tr. at 99-100.) Ferrer
`testified that the prosecutors “have complete discretion to advocate for” him at sentencing.
`(9/26/23 A.M. Daily Tr. at 73; see also 9/28/23 A.M. Daily Tr. at 104-108 (same).)
`Defense counsel questioned Ferrer about assets he had “been allowed to keep” as
`part of his agreement with the government. These assets included Ferrer’s personal
`residence in Frisco, Texas (9/28/23 P.M. Daily Tr. at 10); a “multi-million dollar” residence
`that was purchased in cash for his now ex-wife with Backpage proceeds (9/28/23 P.M. at
`12-14); a Mercedes vehicle that he purchased right before he entered the plea (9/26/23 AM
`Daily Tr. at 74); and a speedboat and another Mercedes vehicle purchased for his ex-wife
`with Backpage proceeds (9/28/23 P.M. Daily Tr. at 12-14).
`Defense counsel also asked whether part of Ferrer’s motivation for pleading guilty
`and cooperating involved “being able to retain money that was from BP to pay the large
`attorneys’ fees that you spoke about . . .?” (9/26/23 P.M. Daily Tr. at 15-16.). Ferrer
`answered, “[I]t is a benefit.” (9/28/23 P.M. Daily Tr. at 16.) Counsel questioned Ferrer
`about how much money Ferrer’s lawyers had been paid since they began talking with
`prosecutors in February 2018, and Ferrer answered that he did not know:
`
`Q. You don’t know if it’s been millions of dollars, hundreds of thousands of
`dollars, $5, no information whatsoever?
`A. Well, obviously I know it’s not; it’s more than $5.
`Q. Okay. Let’s try this out, how about over a $100,000?
`A. Yes.
`Q. How about over a million dollars?
`A. I don’t think so.
`(9/26/23 A.M. Daily Tr. at 8).)
`Defense counsel focused on “the Backpage money that’s being used to pay your
`lawyers for the last five years”—since Ferrer agreed to cooperate in 2018. (9/26/23 A.M.
`Daily Tr. at 18-19.) Ferrer testified that his lawyers were being paid from a “prepaid
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`Case 2:18-cr-00422-DJH Document 1990 Filed 11/27/23 Page 9 of 19
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`account,” and that “the balance that’s being used to pay my lawyers, whatever is left over
`will be forfeited.” (9/26/23 A.M. Daily Tr. at 18-19.) Ferrer testified that he did not know
`how much had been charged against that account, or its remaining balance. (9/26/23 A.M.
`Daily Tr. at 18-19.) Another defense lawyer asked Ferrer about “the amount that was
`deposited into [his] attorney trust account (10/10/23 A.M. Daily Tr. at 105). The question
`did not clarify the time frame involved, and Ferrer testified that he could not recall the
`amount that had been placed in his attorney trust account. (10/10/23 A.M. Daily Tr. at 106.)
`
`Other documents show that, by April 2018, Backpage and Ferrer, had no idea how
`much of the $4 million pre-paid to Clarence Dyer remained. Indeed, one of the attachments
`to the Ferrer forfeiture emails listed Clarence Dyer in a category titled, “other potential
`liabilities bills not received.” (USAO-BP-0038120, attached as Exhibit 7.) In that
`spreadsheet, Clarence Dyer is listed as having “potential work not billed.” (Id.) In the same
`spreadsheet, Davis Wright Tremaine is listed under the Backpage payables section as being
`owed over $380,000. (Id.) This despite Davis Wright Tremaine receiving $6.25 million—
`as documented in the same spreadsheet sent by Website Technologies Controller Stefanie
`Parks, that listed the $4 million sent to Clarence Dyer. (Ex. 4 at 4.)
`
`In short, Defendants knew that a benefit Ferrer received under his plea agreement
`was that his Clarence Dyer attorneys could continue to use the money paid to the firm by
`Backpage. The Ferrer forfeiture emails did not disclose how much money was available to
`that firm as of the time that Ferrer pleaded guilty.
`ARGUMENT
`The Ferrer Forfeiture Emails and Attachments Aren’t Jencks
`A.
`The Emails Are Not Jencks
`The Jencks Act states that, after a government witness has testified at trial, “the
`court shall, on motion of the defendant, order the United States to produce any statement
`(as hereinafter defined) of the witness in the possession of the United States which relates
`to the subject matter as to which the witness has testified.” 18 U.S.C. § 3500(b). As
`pertinent here, the Act narrowly defines a “statement” as “a written statement made by said
`
`I.
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`Case 2:18-cr-00422-DJH Document 1990 Filed 11/27/23 Page 10 of 19
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`witness and signed or otherwise adopted or approved by him[.]” 18 U.S.C. § 3500(e)(1).
`Defendants have the burden “to show that the [materials at issue] qualify . . . as
`witness’s ‘statements’ for purposes of the Jencks Act.” United States v. Michaels, 796 F.2d
`1112, 1117 (9th Cir. 1986). Here, the 18 emails at issue do not qualify as “a written
`statement made by [Ferrer] and signed or otherwise adopted or approved by him” that
`“relates to the subject matter as to which [Ferrer] has testified.” 18 U.S.C. § 3500(b), (e)(1).
`Ferrer’s statements in the emails did not relate to the subject matter of his trial
`testimony. Ferrer’s testimony, particularly on direct examination, involved Defendants’
`activities during Backpage’s existence. It did not address the details of the assistance Ferrer
`rendered to the United States after Backpage shut down—and after he pleaded guilty and
`agreed to assist the United States in identifying Backpage-related assets for possible seizure
`and forfeiture. But that is the exact subject matter of the Ferrer forfeiture emails.
`Notably, the emails fall within a narrow band of time from April to August 2018
`(following Ferrer’s April 5, 2018 guilty plea). All of the emails were aimed at keeping
`Inspector Versoza informed about Backpage’s assets, including their location and amounts,
`so that the assets could be properly identified and/or seized for forfeiture purposes. Many
`of Ferrer’s statements in the emails were questions to Backpage Controller Stefanie Parks
`seeking details about which accounts held what money for forfeiture purposes. In other
`instances, Ferrer’s emails merely transmitted or forwarded the statements of others, e.g.,
`Parks, in response to questions from Inspector Versoza. (Ex. 2 at 1-4, 6 (“See attached info
`you requested”; “See below and attached”; “Here is the info you need.”).)
`The most voluminous email statements by Ferrer are the first email, dated April 20,
`2018. (Ex. 2 at 1.) In that email, Ferrer tried to explain where bank accounts were located
`and their balances for purposes of seizure and forfeiture. Thus, the email relates to Ferrer’s
`anticipated testimony in the forfeiture phase of the case, not the guilt phase. On July 9-10,
`2018, Ferrer sent emails to Parks asking about how much an entity owed Backpage, and
`indicating that the receivables could be something the United States might seek for
`forfeiture. (Ex. 2 at 1-2.) Ferrer then forwarded Parks’s responses to Inspector Versoza.
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`A few days later, on July 13, 2018, Ferrer emailed Parks and directed her to send
`him a document containing “prepayments and prepayments to attorneys,” and a master list
`of monies transferred to the United States, again for purposes of asset forfeiture. (Ex. 2 at
`2-3.) The attachment to this email—from Parks—contains the $4 million prepaid line item
`to Ferrer’s counsel, Clarence Dyer, identified in Defendants’ supplemental motion. (See
`Suppl. at 3; Ex. 4 at 4.) The same day, July 13, 2018, Ferrer also forwarded information to
`Inspector Versoza about a company, Paymitco, that owed Backpage money, again for
`collection and forfeiture purposes. (Id.)
`On July 17, 2018, Ferrer forwarded documents and discussed money transferred
`from CryptoCapital. (Ex. 2 at 3.) On July 19, 2018, he responded to a question from
`Inspector Versoza about Backpage’s payroll in February 2014. (Ex. 2 at 3.) On July 26,
`2018, Ferrer informed Michael Gage that a bank account should be maintained, and
`forwarded the exchange to Inspector Versoza. (Ex. 2 at 3.)
`On August 2, 2018, Ferrer forwarded emails between Versoza and Parks with
`nothing more than a “see below” or “see attached” added to those chains. (Ex. 2 at 3.) On
`August 3, 2018, Ferrer described a conversation with Parks. He tried to explain payments
`made in May that are reflected on an attached spreadsheet. Again, this relates not to his
`testimony at trial, but to the forfeiture phase. (Ex. 2 at 3-4.) Also on August 3, 2018, Ferrer
`sent an email regarding attorneys he had previously hired and funds used to pay them; he
`also forwarded exchanges between Parks and Versoza regarding monies used to pay a
`victim. (Ex. 2 at 4.) On August 6, 2018, Ferrer again discussed accounts and what could be
`done with them for seizure/forfeiture purposes. (Ex. 2 at 4-5.) On August 7, 2018, Ferrer
`directed Parks about instructions from Inspector Versoza relating to a cryptocurrency
`account. (Ex. 2 at 5.) On August 21, 2018, Ferrer inquired of Inspector Versoza what to do
`with about $40,000 in an account. (Ex. 2 at 5.) This too deals with forfeiture issues as it
`relates to the seizure of monies earned by Backpage.
`Because none of these statements related to the subject matter of Ferrer’s trial
`testimony, the United States did not have to disclose them as Jencks during the guilt phase
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`of the trial.
`The Attachments
`B.
`Most of the emails from Ferrer between April and August 2018 contain attachments.
`But the attachments to the emails from Ferrer do not qualify as Jencks statements. “The
`Jencks value of a statement is defined by the identity of the speaker and quality of the
`speech, not the medium for communicating the statement.” United States v. Pac. Gas &
`Elec. Co., 2016 WL 3185008, at *8 (N.D. Cal. June 8, 2016). Indeed, in United States v
`PG&E, the defendant argued that because the United States disclosed certain emails under
`an early Jencks disclosure policy, that “necessarily renders any attached documents Jencks
`materials.” Id. But the district court found “[t]his argument is utterly lacking in merit,”
`ruling that the attachments did not have to be disclosed by the United States. Id.
`The spreadsheet attachments are not “written statements made by” Carl Ferrer. The
`attachments were not authored or made by him, but rather by Backpage’s Controller,
`Stefanie Parks. It is unknown what information she relied upon to prepare the spreadsheets.
`Because Ferrer was not the author of the spreadsheets, nor did he contribute substantively
`to them, they aren’t a “written statement made” or adopted or approved by him.
`Accordingly, they were not Ferrer’s “statements” and do not require production under the
`Jencks Act. See, e.g., United States v. Reed, 575 F.3d 900, 921 (9th Cir. 2009) (no Jencks
`Act violation where there was no evidence that the statements were made, adopted or
`approved by any of the witnesses); United States v. Bettencourt, 614 F.2d 214, 215-16 (9th
`Cir. 1980) (when government witness testified based on the report of another officer, the
`Jencks Act did not cover the report because it “was not ‘made by’ the witness”); United
`States v. Blas, 947 F.2d 1320, 1327 and n.6 (7th Cir. 1991) (reports reviewed by the
`witness—but not authored by him—were not Jencks Act “statements”).
`Even if Ferrer “adopted or approved” the spreadsheets, they aren’t Jencks because
`they didn’t relate to Ferrer’s trial testimony. Importantly, Ferrer was questioned by neither
`the United States nor any defense counsel about his efforts in assisting Inspector Versoza
`in locating assets for forfeiture after he agreed to cooperate in April 2018. Therefore, the
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`18 emails and their attachments did not relate to his testimony and, again, did not constitute
`Jencks. United States. v. Butenko, 384 F.2d 554, 568 (3d Cir. 1967), vacated on other
`grounds, 394 U.S. 165 (1969) (“a defendant is not entitled to statements when they do not
`relate to the subject matter as to which the witness has testified on direct examination, even
`though they relate to the subject matter of the indictment, information or investigation”;
`“Congress was very careful” in so limiting the Jencks Act’s scope); United States v. Bin
`Laden, 397 F. Supp. 2d 465, 501 (S.D.N.Y. 2005) (“[A]s the Jencks Act itself makes clear,
`a statement’s mere relation to the subject matter at issue in a case does not render it
`producible”; “only a statement related to a witness’s testimony is producible.”).
`The United States Acted in Good Faith and Defendants Suffered No Prejudice 2
`II.
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`Even if the Court finds that these materials otherwise qualified as Jencks statements,
`the United States acted in good faith and the recent disclosure did not prejudice Defendants.
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`The Court has discretion not to impose sanctions for noncompliance with the Jencks
`Act. United States v. Echeverry, 759 F.2d 1451, 1456 (9th Cir. 1985). Whether to impose
`a Jencks Act remedy “generally depend[s] on (1) a consideration of the culpability of the
`government, and (2) the injury resulting to the defendants.” Echeverry, 759 F.2d at 1456.
`“[W]hen there is no prejudice, a witness’s testimony need not be stricken.” Reed, 575 F.3d
`at 921 (citation omitted). See, e.g., United States v. Sterling, 742 F.2d 521, 524-25 (9th Cir.
`1984) (no abuse of discretion to decline Jencks sanctions where other available materials
`enabled a vigorous cross-examination).
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`Indeed, no sanctions are required “where the government acted in good faith” and
`an “acceptable substitute or summary” was available. United States v. Cardenas-Mendoza,
`579 F.3d 1024, 1031-32 (9th Cir. 2009). See Echeverry, 759 F.2d at 1456 (upholding denial
`of sanctions where non-disclosure “was inadvertent and not in bad faith,” the United States
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`2 To the extent Defendants attempt to frame their supplement as a Brady issue, the Court
`should resolve the matter under the rubric of Jencks: “When the defense seeks evidence
`which qualifies as both Jencks Act and Brady material, Jencks Act standards control.”
`United States v. Jones, 612 F.2d 453, 455 (9th Cir. 1979); accord United States v. Alvarez,
`358 F.3d 1194, 1211 (9th Cir. 2004); see also United States v. Gomez, 2014 WL 231984,
`at *5 (N.D. Cal. Jan. 21, 2014) (“the Jencks Act trumps Brady”) (citation omitted).
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`produced other Jencks Act material before trial, and the material at issue “[was] generally
`duplicative of information previously disclosed” such that the defense was “not deterred
`from a thorough cross-examination”); Sterling, 742 F.2d at 525 (affirming no sanctions
`where “the government’s failure was totally inadvertent,