Case 2:18-cr-00422-DJH Document 2008-1 Filed 12/04/23 Page 1 of 23
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`
`
`
`Paul J. Cambria, Jr. (NY Bar No.1430909, admitted pro hac vice)
`Erin McCampbell Paris (NY Bar No. 4480166, admitted pro hac vice)
`LIPSITZ GREEN SCIME CAMBRIA LLP
`42 Delaware Avenue, Suite 120
`Buffalo, New York 14202
`Telephone: (716) 849-1333
`Facsimile: (716) 855-1580
`pcambria@lglaw.com
`emccampbell@lglaw.com
`Attorneys for Michael Lacey
`
`Gary S. Lincenberg (CA Bar No. 123058, admitted pro hac vice)
`Ariel A. Neuman (CA Bar No. 241594, admitted pro hac vice)
`Gopi K. Panchapakesan (CA Bar No. 279856, admitted pro hac vice)
`BIRD, MARELLA, BOXER, WOLPERT, NESSIM,
`DROOKS, LINCENBERG & RHOW PC
`1875 Century Park East, 23rd Floor
`Los Angeles, California 90067-2561
`Telephone: (310) 201-2100
`Facsimile: (310) 201-2110
`glincenberg@birdmarella.com
`aneuman@birdmarella.com
`gpanchapakesan@birdmarella.com
`Attorneys for John Brunst
`
`Additional counsel listed on next page
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`
`NO. CR-18-00422-PHX-DJH
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`DEFENDANTS’ MOTION FOR A NEW
`TRIAL
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`
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`United States of America,
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` Plaintiff,
`vs.
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`Michael Lacey, et al.,
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` Defendants.
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`Case 2:18-cr-00422-DJH Document 2008-1 Filed 12/04/23 Page 2 of 23
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`Eric Kessler
`KESSLER LAW GROUP
`6720 N. Scottsdale Rd., Suite 210
`Scottsdale, AZ 85253
`Telephone: (480) 644-0093
`eric@kesslerlawgroup.com
`Attorney for Scott Spear
`
`Bruce Feder (AZ Bar No. 004832)
`FEDER LAW OFFICE PA
`2930 E. Camelback Road, Suite 160
`Phoenix, Arizona 85016
`Telephone: (602) 257-0135
`bf@federlawpa.com
`Attorney for Scott Spear
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`Case 2:18-cr-00422-DJH Document 2008-1 Filed 12/04/23 Page 3 of 23
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`Defendants Michael Lacey, Scott Spear, and John Brunst move, under Fed. R. Crim.
`P. 33, for the Court to vacate their convictions and grant a new trial if the Court does not
`grant their motions for a judgment of acquittal on all counts. For the reasons set forth
`below, the interests of justice require a new trial.
`
`1.
`
`The Court Should Grant a New Trial Based on the Grounds Advanced in
`Defendants’ Rule 29 Motions If Those Motions Are Not Granted.
`Defendants incorporate by reference the factual and legal bases for relief advanced in
`their Motions for Judgments of Acquittal, as if set forth here in full. If the Court does not
`grant those motions, the bases asserted in them also justify the granting of a new trial.
`
`2.
`
`The Court Should Grant a New Trial (or Dismiss) Based on the Government’s
`Failure to Make Disclosures Required by the Jencks Act and by Brady.
`Defendants seek a new trial based on multiple failures by the government to timely
`disclose materials to the defense as required both by the Jencks Act, 18 U.S.C. § 3500, and
`by the requirements of Brady v. Maryland, 373 U.S. 83 (1963). Defendants focus on two
`discrete failures: 1) the government’s failure to timely disclose Carl Ferrer’s emails with its
`case agent, Lyndon Versoza, which the government disclosed to the defense only after the
`jury in this case was deliberating; and 2) the government’s failure to disclose the factual
`information the government developed during its investigation of Backpage.com in the
`Western District of Washington in 2012-2013 (the “WDWA Investigation”), which, among
`other things, undermines, if not contradicts, the government’s trial positions that “anyone
`could tell” from looking at the adult ads that ran on Backpage.com that those ads were
`associated with illegal conduct and that Backpage’s moderation practices showed criminal
`intent.
`With respect to the first failure, Defendants incorporate by reference the factual and
`legal bases for relief advanced in the Supplement to Defendants’ Motion to Dismiss or to
`Strike Testimony, and Request for a Hearing Due to the Government’s Jencks and Brady
`Violations (Doc. 1972), and the reply. To the extent that the indictment is not dismissed,
`those same arguments support this request for a new trial.
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`With respect to the second failure, throughout the presentation of its case, the
`government advanced the narrative that “anyone could tell” that most adult ads on Backpage
`related to prostitution, just by looking at the ads. The government presented significant
`testimony and other evidence to that effect, such as exhibit 52 (expressing the opinion that
`“blatant prostitution ads are rampant” on Backpage) and exhibit 119 (“[i]t does not require
`forensic training to understand that these advertisements are for prostitution”), as well as so-
`called not-for-the-truth “notice” evidence from financial institutions, credit card companies,
`and non-profit organizations. From its opening1 to both of its closings,2 the government
`repeatedly exhorted the jury to conclude that all Backpage adult ads related to prostitution
`because they look like they do.
`The government has steadfastly refused, despite repeated requests from and motions
`by the defense, to produce nearly all the factual information developed during the WDWA
`Investigation, a federal investigation that took place right in the middle of the alleged
`conspiracy and did not result in a prosecution of Backpage or its owners. The government
`has claimed that the WDWA Investigation is irrelevant to this case, but the government
`elicited testimony from its cooperating witness at trial that Backpage.com was under
`“pressure” from the WDWA Investigation, so used the investigation as a sword at trial while
`
`1 08/31/23 p.m. Tr. at 147:10-11 (“the evidence is going to show that the Adult section was
`for prostitution ads”).
`2 11/01/23 a.m. Tr. at 45:9-15 (“Mr. Eisenberg talked about in his closing argument about
`Grant Snyder saying that the ads did not provide direct evidence of prostitution. You may
`remember him talking about that. Well, remember he said it was suggestive, and so did their
`expert. That is essentially circumstantial evidence. They are saying, ‘Yeah, it looks like
`prostitution.’ It is circumstantial evidence of prostitution.”); 11/01/23 a.m. Tr. at 61:3-8
`(“And then don’t forget the expert Dr. Mehlman-Orozco, the person who can’t answer a
`straight yes or no question…. She cannot be taken seriously, ladies and gentlemen. She says
`she doesn’t know whether they were real ads or not, but you know.”); 10/27/23 a.m. Tr. at
`10:21-11:2 (“And you can look at her postings. Look at a few – at least one of them. You
`will see all the indicators of prostitution… [T]hey have this term that you see in a lot of these
`things because this is trying to give them, you know, some type of plausible deniability and
`smoke out law enforcement. This is not an offer for prostitution. All donations are for my
`time and companionship only. We saw that in some form in a lot of the postings. It’s
`nonsense, though; right? This is really for prostitution.”).
`2
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`seeking to shield disclosures relating to that investigation.3 Defendants believe the WDWA
`Investigation determined that, even though many people who saw Backpage.com adult ads
`might conclude the ads related to prostitution, their conclusions would be unsound because
`so many activities involving sex and money are lawful, even if those activities might look like
`prostitution to an average person. That determination seriously undermined one of the core
`tenets of the government’s case and would have been both exculpatory and impeaching at
`trial. Defendants also believe the WDWA Investigation determined that Backpage.com’s
`moderation practices were consistent with industry standards. That determination
`undermines another core tenet of the government’s case, that Backpage.com’s moderation
`program was designed to facilitate prostitution, and would have been both exculpatory and
`impeaching at trial.
`When the Court first stepped into this case, it declined to dismiss this case based on
`the government’s failure to produce these materials, saying that the government’s case was
`“in its infancy” when the issue arose in the previous trial, and that the “materiality of the
`documents ha[d] not been established.” Doc. 1444 at 14:8-16. The Court “decline[d] to
`make a ruling as to the relevancy or materiality of the WDWA documents at th[at] juncture.”
`Id. (emphasis added). Having now seen the entirety of the government’s case, the Court
`should have little difficulty seeing how the information the government has withheld from
`the defense would be both relevant and material to the defense, particularly given the low
`bar for materiality under Brady: “materiality is a low threshold; it is satisfied so long as the
`information . . . would have helped to prepare a defense.” United States v. Soto-Zuniga, 837 F.3d 992,
`1003 (9th Cir. 2016) (emphasis added). The government’s refusal to produce to the defense
`these plainly exculpatory and impeaching materials warrants, at a minimum, at new trial, if
`not the granting of the defense’s previous motion to dismiss with prejudice based on the
`government’s failure to provide these materials before the first trial. (Docs. 1355, 1410).
`
`3 “Q. And in 2012, if you know, were you experiencing any pressure regarding the website?
`A. Yes, there was another prostitution investigation of the site.” 09/13/23 am Tr. at 80:5-8.
`3
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`Case 2:18-cr-00422-DJH Document 2008-1 Filed 12/04/23 Page 6 of 23
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`3.
`
`The Court Should Grant a New Trial Because the Government Elicited False
`or Misleading Testimony from Carl Ferrer.
`If a prosecutor elicits false or misleading testimony from a trial witness about a
`material fact, the defendant has been denied due process of law, requiring reversal of his
`conviction. Alcorta v. Texas, 355 U.S. 28, 31 (1957) (a prosecutor’s elicitation of testimony
`that “gave the jury the false impression” about a material fact “was not accorded due process
`of law,” requiring the reversal of the conviction). “A lie is a lie, no matter what its subject,
`and, if it is in any way relevant to the case, the [prosecutor] has the responsibility and duty to
`correct what he knows to be false and elicit the truth….That the prosecutor’s silence was not
`the result of guile or a desire to prejudice matters little, for its impact was the same,
`preventing, as it did, a trial that could in any real sense be termed fair.” Napue v. Illinois, 360
`U.S. 264, 269-270 (1959); accord Brown v. Borg, 951 F.2d 1011, 1015 (9th Cir. 1991)
`(“prosecutor had a duty not to mislead the jury” by presenting testimony “in such a way as
`to suggest the opposite of what she alone knew to be true;” by violating this duty, she
`“pervert[ed] the adversarial system and endanger[ed] its ability to produce just results,”
`which required the conviction to “be overturned unless the misconduct can be proven to be
`harmless beyond a reasonable doubt”).
`
`To establish a constitutional violation requiring reversal under Napue:
`a defendant must show: (1) testimony or evidence presented at trial was
`actually false or misleading; (2) the government knew or should have known
`that it was false; and (3) the testimony was material, meaning there is a
`reasonable likelihood that the false testimony could have affected the judgment
`of the jury.
`United States v. Kabov, 2023 U.S. App. LEXIS 18214, at *2 (9th Cir. July 18, 2023) (emphasis
`in original; internal quote marks omitted). “Mere speculation is insufficient to establish a
`claim under Napue. There must be something in the prosecutor’s questioning, or the
`answers given, that may be construed to reflect an intention by the prosecutor to mislead the
`jury.” United States v. Renzi, 2013 U.S. Dist. LEXIS 202881, at *13 (D. Ariz. Oct. 25, 2013)
`(cleaned up; internal citation omitted). “Although Napue does not create a per se rule of
`reversal, [the Ninth Circuit] has gone so far as to say that if it is established that the
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`Case 2:18-cr-00422-DJH Document 2008-1 Filed 12/04/23 Page 7 of 23
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`government knowingly permitted the introduction of false testimony reversal is virtually
`automatic.” Sivak v. Hardison, 658 F.3d 898, 912 (9th Cir. 2011) (cleaned up).
`One thing that was glaringly absent from the government’s case was evidence that
`Messrs. Lacey, Spear, or Brunst had any contemporaneous knowledge about any of the
`charged ads or took any action connected to the publication of any charged ad. The only
`evidence that the government presented to try to connect any Defendant or even any
`purported co-conspirator to any of charged ads or the persons posting them related to
`Pamela Robinson—notably the testimony the government elicited from Carl Ferrer about
`“his” emails with Ms. Robinson. 09/14/23 p.m. Tr. at 79:7-102:8. The prosecution asked
`Mr. Ferrer: “did you have e-mail exchanges with somebody by the name of Pamela
`Robinson?” Mr. Ferrer answered: “Yes.” Id. at 79:7-9. The government then asked Mr.
`Ferrer numerous questions about exhibits 162, 162-a, 163-165, and 168, which were a series
`of emails between Pamela Robinson and “Carl” or “carl@backpage.com.” Those questions
`were intended to convey the false impression that Carl Ferrer was one of the parties to these
`emails, while both the prosecutor and the witness knew that he was not and, therefore,
`generally referred in their questions and answers to emails to and from an email address—
`carl@backpage.com—rather than by referring to emails to and from Mr. Ferrer. The
`following examples are illustrative:
`
`Q. So looking at Page 2 of 162, what question is Pamela Robinson asking Carl
`at carl@backpage.com?
`A. She’s asking, “can i use the promo code to get a discount on my escort
`ads?”
`Q. And what do you respond? What does carl@backpage.com respond?
`A. “Yes. It will work in any category. Carl.”
`09/14/23 p.m. Tr. at 80:24-81:5.
`
`Q. All right. Then let’s go to Exhibit 164 for the witness’ eyes only. Now,
`Exhibit 164, is this also a continuation of an exchange between you and
`Pam—or carl@backpage and Pamela Robinson?
`A. Yes.
`09/14/23 p.m. Tr. at 88:19-23.
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`Q. What is this? Can you tell us what -- what is this in effort -- or what are
`you saying here to Pamela Robinson?
`A. So Pamela Robinson, she received a marketing e-mail from
`carl@backpage.com and it had her last post on 2010 March 27th in the
`category of biz ops.
`09/14/23 p.m. Tr. at 89:4-8.
`
`Q. Now, what does carl@backpage.com tell her?
`A. “Hi, you should be able to edit now. Please let us know if you are still
`having trouble.”
`Q. All right. What is she—what is she talking about here in this e-mail
`exchange? We’re now—we started in 2010. Now we’re in 2012, right?
`A. Yes.
`Q. All right. What is -- what is she saying here to you?
`A. She’s concerned about an article that broke in Seattle about the possible
`addition of—
`09/14/23 p.m. Tr. at 90:15-24.
`After the government left the jury with the impression for nearly a month that Mr.
`Ferrer had been directly exchanging emails in 2010, 2011, and 2012 with Pamela Robison,
`whose ads accounted for ten of the fifty charged ads, Mr. Ferrer was confronted about his
`testimony on cross-examination and admitted: “It really wasn’t my email address.”
`10/10/23 a.m. Tr. at 104:10. Mr. Ferrer then admitted that emails to the
`carl@backpage.com address went to his staff and that the emails from that address to Ms.
`Robinson could have been written by any of several members of his staff. 10/10/23 a.m.
`Tr. at 104:11-24.
`There can be no doubt that Mr. Ferrer’s testimony was false (or at least highly
`misleading), that the prosecutor knew it was false (or at least highly misleading), and that the
`testimony was material. As to the first point, Mr. Ferrer admitted on cross-examination that
`the emails to and from the carl@backpage.com email address were received by and
`responded to by his staff, not by him, contrary to his testimony on direct examination. As to
`the second point, this is a textbook case of there being “something in the prosecutor’s
`questioning, or the answers given, that may be construed to reflect an intention by the
`prosecutor to mislead the jury.” Renzi, 2013 U.S. Dist. LEXIS 202881, at *13.4
`
`4 The prosecutor’s questions to Mr. Ferrer were so far from norm, and forced, that the
`prosecutor kept saying “you,” and then quickly correcting himself to say
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`Case 2:18-cr-00422-DJH Document 2008-1 Filed 12/04/23 Page 9 of 23
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`As to materiality, there can be no question that the false or misleading testimony the
`prosecutor elicited from Mr. Ferrer could have affected the judgment of the jury. First,
`Pamela Robinson’s ads were ten of the fifty charged ads (eight of the seventeen substantive
`Travel Act convictions). Second, Mr. Ferrer’s false testimony about emails with Pamela
`Robinson was the principal means the government used to try to link the Defendants to any
`of the charged ads, if only through Mr. Ferrer, their purported co-conspirator. Finally, the
`same prosecutor who elicited the false testimony from Mr. Ferrer on direct went on to
`exploit Ferrer’s false testimony in his closing argument, as if Ferrer had never recanted:
`
`You remember this bit of testimony with Mr. Ferrer. He talked about this
`email exchange. There’s a number of email exchanges between a woman by
`the name of Pamela Robinson. Her email address is clprovider@yahoo.com.
`This is one of the emails. This is Exhibit 164. She says: I don’t do this
`because I want to. I do it because I have to…. You also know from the email
`exchange she had problems with them deleting her posts -- her picture.
`10/27/23 a.m. Tr. at 10:5-14. Given the weakness of the government’s case and the lack of
`evidence to tie any defendant or any purported co-conspirator to any charged ad, Mr.
`Ferrer’s false testimony unquestionably could have affected the judgment of the jury.
`Because the government purposely elicited false or misleading testimony at trial, on a
`material point, reversal is warranted as “virtually automatic.” Sivak, 658 F.3d at 912.
`
`4.
`
`The Court Should Grant a New Trial Because the Government Repeatedly
`Made Improper Arguments in its Opening and Closings.
`
`A.
`
`The Government Improperly Urged the Jury to Convict Defendants of
`Conspiracy Based on a Legally Insufficient Object.
`As discussed in Mr. Brunst’s Rule 29 motion, the government exhorted the jury to
`convict on conspiracy under Count 1 arguing the object of the conspiracy was to “make
`money,” which is not a federal crime:
`
`“carl@backpage.com.” On one occasion, the prosecutor failed to use
`“carl@backpage.com,” but the witness then used the email address in his response in an
`apparent attempt to cover for the prosecutor.
`7
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`Defendant [sic] became members of the conspiracy knowing of at least one of
`its objects and intending to help accomplishment -- accomplish it. What is the
`object in this case? Well, one of the object [sic] is to make money. And they
`did.
`10/27/23 a.m. Tr. at 6:22-23. Because there is no way to know now whether the jury
`followed the prosecutor’s exhortation and convicted Spear and Brunst based on this legally
`insufficient object, at a minimum a new trial is warranted if the Court does not acquit.
`Because Defendants’ motion to dismiss Count 1 for stating the same legally insufficient
`object remains pending (Doc. 1744), a more appropriate outcome would be to dismiss
`Count 1 for the reasons set forth in the motion to dismiss, as a sanction for the government
`urging the jury to convict Defendants on patently legally insufficient grounds, or both.
`
`B.
`
`The Government Improperly Urged the Jury to Convict Defendants of
`Conspiracy Based on an Impermissible Boundless Conspiracy.
`In 2019, Defendants moved to dismiss Count 1 because it improperly charged a
`boundless conspiracy to promote prostitution in general. See, e.g., Doc. 798 at 3-6. The
`Court denied Defendants’ motion, holding:
`
`Defendants’ suggestion that the SI improperly indicts a ‘boundless conspiracy
`to facilitate prostitution in general,’ (Reply at 4), however, mischaracterizes the
`charges against them. Such a claim is simply untrue. They were not indicted
`for facilitating the amorphous notion of ‘prostitution.’ They were indicted for
`facilitating (via publishing ads) on fifty distinct occasions where prostitutes,
`prostitution-related businesses, or other groups were involved in the business
`of prostitution.
`Doc. 946 at 13:17-22.
`Moreover, Defendants repeatedly objected to the government’s proposed jury
`instructions on related grounds—that the government’s instructions suggested that any
`person who posted an ad on Backpage.com could be a member of the conspiracy, but such a
`boundless conspiracy was legally impermissible because it necessarily would amount to
`multiple conspiracies, not one conspiracy:
`
`Such a boundless conspiracy also would be a classic hub and spoke conspiracy
`lacking a rim, which the Supreme Court held impermissible in Kotteakos v.
`United States, 328 U.S. 750, 754–55 (1946) (“[T]he pattern was ‘that of separate
`spokes meeting at a common center,’ though we may add without the rim of
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`Case 2:18-cr-00422-DJH Document 2008-1 Filed 12/04/23 Page 11 of 23
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`the wheel to enclose the spokes.”); Dickson v. Microsoft Corp., 309 F.3d 193, 203
`(4th Cir. 2002) (“A rimless wheel conspiracy is one in which various
`defendants enter into separate agreements with a common defendant, but
`where the defendants have no connection with one another, other than the
`common defendant’s involvement in each transaction . . . . In Kotteakos, the
`Supreme Court made clear that a rimless wheel conspiracy is not a single,
`general conspiracy but instead amounts to multiple conspiracies between the
`common defendant and each of the other defendants.”).
`Doc. 1626-3 at 64-65, 72, 77.
`In its closing, the government ignored both this Court’s ruling on Defendants’
`motion to dismiss and the law cited in Defendants’ objections to the government’s proposed
`jury instructions, and told the jury it could convict Defendants of the boundless conspiracy
`the Court previously held had not been charged:
`
`Three elements to conspiracy. There was an agreement between two or more
`persons to commit violations of the Travel Act. That’s all we need, is two
`people. But you know from the testimony and the evidence that there were
`more than two. There’s [sic] these five defendants. There’s Mr. Ferrer. Mr.
`Hyer. There’s Mr. Adams. There’s even Dollar Bill, Mr. Mersey. There’s
`David Elms, who was running The Erotic Review. Those were the
`conspirators. Then every pimp who posted on Backpage.com and used the
`money to run their criminal—their—their small criminal enterprise of
`prostitution, they are your conspirators.
`10/27/23 a.m. Tr. at 6:8-18.
`Because the government asked the jury to convict the Defendants in its closing based
`on a legally impermissible boundless conspiracy, the Court should reconsider its denial of
`Defendants’ prior motion to dismiss Count 1, dismiss Count 1, and vacate the convictions
`for violating Count 1. Alternatively, because there is no way to know now whether the jury
`followed the prosecutor’s exhortation and convicted Messrs. Spear and Brunst based on the
`legally impermissible boundless conspiracy, at a minimum a new trial is warranted if the
`Court does not dismiss or acquit on Count 1.
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`C.
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`The Government Improperly Urged the Jury to Convict Defendants of
`“Promoting Prostitution.”
`From the start of its opening statement to the end of its rebuttal closing, the
`government repeatedly conflated promoting a specific business enterprise involving
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`Case 2:18-cr-00422-DJH Document 2008-1 Filed 12/04/23 Page 12 of 23
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`prostitution offenses with “promoting prostitution,” telling the jury repeatedly that the
`Defendants could be convicted for “promoting prostitution.”5 For example:
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`“The evidence at trial will show how defendants used three different strategies
`to market and promote prostitution…” 08/31/23 p.m. Tr. at 146:18-19.
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`“The charges for these five defendants, they’re all charged with promoting
`prostitution…”. 08/31/23 p.m. Tr. at 147:24-25.
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`“At the end of the trial, you will be asked to deliberate on whether or not
`these five individual defendants are guilty or not guilty of promoting
`prostitution. Three of the defendants are also charged with money laundering
`offenses, money laundering meaning when they get the proceeds from the
`promotions of—from the promoting prostitution, what they did with it.”
`08/31/23 p.m. Tr. at 148:6-13.
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`“These defendants promoted prostitution when they built up the website…”.
`08/31/23 p.m. Tr. at 173:12-13.
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`“What’s the evidence in this case? What is the evidence that Backpage
`promoted prostitution? Well, who did you hear from? You heard the
`testimony of Carl Ferrer and Dan Hyer and Jess Adams, all insiders of
`Backpage.” 10/26/23 p.m. Tr. at 52:24-53:2.
`
`“The defendants’ own words in the form of their own internal emails
`demonstrate that three knew they were running a prostitution website and
`they were promoting prostitution.” 10/26/23 p.m. Tr. at 53:18-20.
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`“Mr. Ferrer…estimated that they received 20,000 subpoenas…Isn’t that just
`evidence enough, frankly, that they were running a criminal enterprise that was
`facilitating and promoting prostitution, just the mere fact that they are getting
`these subpoenas?” 10/26/23 p.m. Tr. at 83:9-15.
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`“There is a lot of evidence in the charges, but the case is actually quite simple.
`There are 51 counts focused on how the defendants promoted prostitution,
`and there are 49 counts focused on how the defendants engaged in money
`laundering of the illegal profits they made from promoting prostitution.”
`11/01/23 p.m. Tr. at 38:12-17.
`
`5 The government’s repeated claims in its opening and each closing could not have been
`inadvertent, given the Court’s ruling that Defendants: “were not indicted for facilitating the
`amorphous notion of ‘prostitution.’ They were indicted for facilitating (via publishing ads)
`on fifty distinct occasions where prostitutes, prostitution-related businesses, or other groups
`were involved in the business of prostitution.” Doc. 946 at 13:17-22.
`10
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`Case 2:18-cr-00422-DJH Document 2008-1 Filed 12/04/23 Page 13 of 23
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`“What else do you have, though, to show that those laws were violated and
`that they were in fact promoting prostitution? We brought before you
`multiple witnesses.” 11/01/23 p.m. Tr. at 49:13-15.
`“Promoting prostitution” is not a federal crime, but the prosecutors told the jury repeatedly
`that they could convict Defendants for “promoting prostitution.”
`The government also told the jury in the rebuttal closing that promoting prostitution
`“means helping someone commit a prostitution offense, and that’s what Backpage did”
`(11/01/23 p.m. Tr. at 51:12-13), but the law plainly does not permit Defendants to be
`convicted of either substantive Travel Act offenses or conspiracy to violate the Travel Act
`simply because the Backpage.com website helped someone commit a prostitution offense.
`Because the government presented absolutely no evidence that any Defendant knew
`anything about any of the charged ads, or knew anything about any person who posted or
`who was featured in any of the charged ads, or took any action connected to the publication
`of any of the charged ads, Mr. Spear’s substantive Travel Act convictions and Messrs.
`Spear’s and Brunst’s conspiracy convictions are far more likely to have resulted from the
`government repeatedly telling the jury that they could be convicted if Backpage.com
`“promoted prostitution” rather than the jury having found that either Messrs. Spear or
`Brunst did something to help publish an ad with the specific intent to facilitate a business
`enterprise they knew to be involved in prostitution offenses. Indeed, there was no such
`evidence even as to Mr. Ferrer with respect to the fifty charged ads—except for the false
`testimony the government elicited from him regarding Pamela Robinson.
`
`D.
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`The Government Improperly and Repeatedly Told the Jury It Could Convict
`Defendants Without a Showing of Specific Intent.
`In its closing, the government repeatedly implied that the jury could convict
`Defendants without need to find the specific intent required for violations of the statutes. It
`did not do so using those words, but by repeatedly telling the jury that it could convict on
`grounds that were utterly lacking in specific intent.
`For example, the government told the jury that Carl Ferrer’s testimony that Backpage
`received thousands of subpoenas over the years was, standing alone, sufficient for the jury to
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`convict the Defendants of the fifty-one charges relating to the Travel Act: “Isn’t that just
`evidence enough, frankly, that they were running a criminal enterprise that was facilitating
`and promoting prostitution, just the mere fact that they are getting these subpoenas?” 10/26/23 p.m.
`Tr. at 83:9-15 (emphasis added). There was absolutely no basis in fact or in law to support
`that outlandish and outrageous claim, which not only bypassed any requirement to prove
`specific intent, but also required no subsequent overt act.
`In the rebuttal closing, the government doubled down—telling the jury it had
`absolutely no obligation to prove that any Defendant had any knowledge of any of the
`charged ads:
`
`Next, the defendants argue, well, they had [no] knowledge of these specific 50
`ads. Ladies and gentlemen, these ads are just a sample. We’re not going to
`charge them with a million counts based upon the millions of ads. That’s why
`there’s a conspiracy charge covering the statute, covering the 14-year life of
`the conspiracy. What I’m not -- what I’m not going to show you is a jury
`instruction says we must prove that any defendant had specific knowledge of
`these particular ads because it isn’t in there. We don’t have to do that.
`11/01/23 a.m. Tr. at 50:6-14. Here, the government not only told the jury that it did not
`need to find specific intent, but the government gratuitously added the highly inflammatory
`and prejudicial suggestion that it could have charged Defendants with “a million counts,”
`but only was asking the jury to convict them of a modest fifty counts—which by itself
`justifies a new trial. See United States v. Ballard, 727 F. App’x 6, 10 (2d Cir. 2018) (vacating
`convictions because trial court should have granted a new trial under Fed. R. Crim. P. 33 due
`to improper prosecutorial summation comments suggesting that incriminating evidence had
`not been put before the jury). As the government introduced no eviden