Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 1 of 19
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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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`United States of America,
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`
`
`Plaintiff,
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`v.
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`
`Michael Lacey, et al.,
`
`
`
`Defendants.
`
`
`
`
`CR-18-422-PHX-DJH
`
`UNITED STATES’ RESPONSE TO
`DEFENDANTS’ MOTION FOR A
`NEW TRIAL (Doc. 2009)
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`Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 2 of 19
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`In “exceptional cases” where “the evidence preponderates heavily against the
`verdict,” courts may grant a new trial under Fed. R. Crim. P. 33(a). United States v. Rush,
`749 F.2d 1369, 1371 (9th Cir. 1984). The evidence comes nowhere close to meeting this
`standard—and Defendants’ Motion should be denied.
`I.
`The Rule 29 Grounds Do Not Support Defendants’ Rule 33 Motion
`In two conclusory sentences, Defendants “incorporate by reference” and assert that
`the bases of their Rule 29 motions support granting a new trial under Rule 33. Mot. at 1.
`This argument fails for the same reasons Defendants’ Rule 29 arguments fail. The jury
`heard 21 government witnesses and received over 400 government exhibits during the 34-
`day trial. Docs. 1993, 1994. The witnesses included Backpage insiders Carl Ferrer, Dan
`Hyer, and Jess Adams; John Shehan from NCMEC; Brad Myles from the Polaris Project;
`Isaac Luria from the Auburn Theological Seminary; Mickey Hansen from American
`Express; Lin Howard from Arizona Bank and Trust; numerous police officers (Det.
`Murray, Lt. Griffin, Det. Fritze) and victims (B.L., A.B., J.S., N.F., A.C., A.B., A.S.W.
`(sister of a victim), J.T., M.L.); and former IRS-Criminal Investigation Special Agent
`Quoc Thai. Doc. 1994. The evidence showed that Defendants deliberately built Backpage
`into a massive prostitution advertising website, generated hundreds of millions of dollars
`from selling ads for illegal prostitution, and then laundered the proceeds through a complex
`web of domestic and foreign accounts. See generally United States’ Responses to the Rule
`29 Motions filed by Lacey, Spear, and Brunst. This evidence does not warrant the
`extraordinary remedy of a new trial under Rule 33. Rush, 749 F.2d at 1371.
`II.
`Defendants’ Discovery Arguments Do Not Support Dismissal or a New Trial
`
`The United States incorporates by reference its response (Doc. 1990) to Defendants’
`supplement regarding Ferrer’s emails with U.S. Postal Inspector Lyndon Versoza
`concerning the forfeiture phase of the trial. Doc. 1972.
`
`Defendants next assert that the United States “refused . . . to produce nearly all the
`factual information developed during” a separate investigation of Backpage conducted by
`the U.S. Attorney’s Office for the Western District of Washington (WDWA) in 2012-13.
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`Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 3 of 19
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`Mot. at 2. Defendants speculate about what that investigation “determined” and assert,
`without support, that unspecified materials from the investigation are “plainly exculpatory
`and impeaching.” Mot. at 3. Defendants have already litigated this issue—and lost.
`
`In 2019, in granting a motion to compel destruction of inadvertently disclosed
`documents, Judge Logan found that the WDWA investigation was “wholly separate” from
`this criminal case. Doc. 1454, 12/3/2021 Hr’g Tr. at 56:11-16 (quoting Doc. 449-1 at 4).
`And in 2021, this Court denied Defendants’ motion to compel regarding the WDWA
`investigation. Doc. 1444 at 14-15. In responding to Defendants’ motion (Doc. 1281), the
`United States explained that WDWA investigation materials are neither exculpatory nor
`material for many reasons. Doc. 1326 at 3, 9-13. These reasons include the avalanche of
`evidence that emerged after that investigation, including Backpage’s compelled disclosure
`of hundreds of thousands of internal documents in 2015-15, the U.S. Senate’s investigation
`and its resulting report BACKPAGE.COM’S KNOWING FACILITATION OF ONLINE SEX
`TRAFFICKING in 2017, and the guilty pleas of Backpage’s CEO, Carl Ferrer, Dan Hyer, and
`the Backpage operating entities in 2018. Doc. 1326 at 9-13. As shown by the plea
`agreements and a raft of additional evidence, Backpage promoted prostitution by, among
`other things, aggregating prostitution ads from competing websites, forming relationships
`with bulk prostitution advertisers or “super posters,” and developing a reciprocal link and
`cross-marketing business relationship with The Erotic Review—a prostitution review site
`that left no doubt about Defendants’ intent to promote prostitution. See Doc. 1326 at 9-13.
`The Court found no reason to reconsider previous orders that addressed the Brady and
`Giglio issues raised by Defendants (Docs. 339, 449, and 1028), refused to dismiss the case,
`and declined to find that the United States had intentionally concealed or refused to
`produced exculpatory materials. Doc. 1444 at 15.
`
`Defendants offer nothing new, other than to assert that “the entirety of the
`government’s case” now requires a different result. Mot. at 5. But the United States put on
`the same case at trial that it had laid out in its Superseding Indictment and the briefing that
`the Court considered when issuing its prior Orders. See, e.g., Doc. 230 passim; Doc. 649,
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`Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 4 of 19
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`passim; Doc. 1326 at 5-9. Defendants also ignore that the United States in fact searched its
`files and disclosed factual materials relating to the WDWA investigation to Defendants,
`including grand jury testimony, interview memoranda, hand written notes of interviews,
`and additional reports and documents. See, e.g., Doc. 1281 at 5-6; Doc. 1326 at 3, 13. The
`notion that the United States “steadfastly refused” (Mot. at 2) to produce these materials is
`incorrect. Nor does Defendants’ suggestion that the United States used the investigation
`“as a sword”— based on one vague sentence from Ferrer’s 11 days of testimony—support
`the “exceptional” relief Defendants seek. Rush, 749 F.2d at 1371; cf. Mot. at 2-3 and n.3.
`III. The United States Did Not Elicit “False or Misleading Testimony” from Ferrer
`A.
`Ferrer Truthfully Testified that He Corresponded with P.R.
`Defendants’ assertion that Ferrer’s testimony conveyed the “false impression” that
`he emailed directly with P.R. is a non-starter. Mot. at 4-7. As Defendants concede, Ferrer
`testified that he corresponded with P.R. via email. Mot. at 5, quoting 9/14/23 P.M. Tr. at
`79:7-9 (“Q. [D]id you have e-mail exchanges with somebody by the name of [P.R.]? A.
`Yes.”). He had an independent recollection of those exchanges, which occurred from 2010
`to 2018. Id.; see also id. at 79:10-12 (“Q. [O]ver what time period approximately did those
`e-mail exchanges take place? A. Approximately 2010 to 2018. There’s a lot of e-mails.”).
`From his interactions with her, Ferrer concluded that P.R. “was engaged in
`prostitution.” 9/14/23 p.m. Tr. at 80:6. Like other prostitutes who advertised on Backpage,
`P.R. kept violating the site’s posting rules, but “we would let her back in,” “much like we
`had done with all of the other advertisers in Female Escort sections. They would get a pass.
`They wouldn’t be banned if they posted ads violating the rules. They would get to try
`again.” 9/15 a.m. Tr. at 7:14-21. And to reward her for past business, P.R. received “promo
`codes” for free or discounted ads. See Exs. 162, 164.
`This approach illustrated the moderation strategy that Backpage developed in
`response to outside criticism. Larkin and Spear directed Ferrer to “not throw the baby out
`with the bathwater,” 9/14/23 p.m. Tr. at 25:20-26:7, leading to “cosmetic changes” that
`didn’t impact revenue. 9/15/23 a.m. Tr. at 9:1-10:23. While the company adopted various
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`Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 5 of 19
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`moderation policies, users were continually given additional chances to post. They weren’t
`blocked; “[t]hey could just post again.” 9/12/23 p.m. Tr. at 60:7.
`Ferrer testified about several emails he exchanged with P.R. In Ex. 162, P.R.
`complained about the removal of an image from one of her ads, and Ferrer testified that
`she provided him that image as an email attachment. 9/14/23 p.m. Tr. at 84:24-85:11; Exs.
`162, 162a. Ferrer confirmed that Ex. 163 was an email exchange between himself and P.R.
`9/14/23 p.m. Tr. at 86:3-15. He testified that Ex. 164 was a marketing email that he “would
`write up and then have Scott Spear approve before I sent it out.” 9/14/23 p.m. Tr. at 89:19-
`90:5. Ex. 165 was another marketing email that Ferrer drafted, sent to Spear for approval,
`and “remember[ed] sending.” 9/14/23 p.m. Tr. at 94:12- 96:23. Ferrer testified that Ex. 168
`was an email that he received from P.R. 9/14/23 p.m. Tr. at 99:23-100:4.
`Defendants note that Ferrer testified on cross-examination that the address
`appearing on these emails, Carl@backpage.com, was a marketing email address that others
`at Backpage could access and respond from. Mot. at 6; 10/10/23 a.m. Tr. at 104:3-23. But
`Ferrer never testified that the emails with P.R. that he discussed at trial (Exs. 162-165 and
`168) reflected communications with anyone other than himself. And even if his testimony
`indicates any conflict in the evidence (it does not), neither Rule 29 nor Rule 33 would
`justify the relief Defendants seek. United States v. Renzi, 2013 WL 12216505, at *4 (D.
`Ariz. Oct. 25, 2013) (“[T]hat witnesses gave inconsistent or conflicting testimony does not
`establish that such testimony was false.”) (citing United States v. Croft, 124 F.3d 1109,
`1119 (9th Cir. 1997)); United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en
`banc) (under Rule 29, conflicts in the evidence are resolved in favor of the verdicts).
`The notion that the government’s questioning suggested that the prosecutor knew
`Ferrer’s testimony was false is also incorrect. Mot. at 6. In several questions, the prosecutor
`queried Ferrer about what P.R. asked him, and what he wrote, said, or did. See, e.g., 9/14/23
`P.M. Tr. at 81:10 (“can you read what she’s asking you here?”); id. at 81:20 (“What does
`she say to you here…?”); id. at 82:9-11 (“So what are you doing in response to [P.R.’s]
`issues? What are you trying to do to assist her in any respect?”); id. at 85:5-6 (“Does she
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`Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 6 of 19
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`provide you as an attachment the image that got removed? A. Yes, she does.”); id. at 86:13-
`15 (“So 163, is this also an e-mail exchange between you and [P.R.]? A. Yes, it is.”); id. at
`88:5 (“what are you saying here to [P.R.] [referencing Ex. 164]?”); id. at 90:22 (what is
`she saying here to you?”). While the prosecutor sometimes referenced the email address
`used in the emails, this record doesn’t show the prosecutor elicited false testimony about
`Ferrer’s correspondence with P.R. Cf. Mot. at 5-7.
`Defendants’ claim that the prosecutor improperly referenced P.R.’s emails in
`closing argument lacks merit. The excerpt Defendants cite accurately paraphrases P.R.
`statements. Compare Mot. at 7, citing 10/27/31 a.m. Tr. at 10:5-14, with Exs. 162, 164.
`B.
`Defendants’ “Materiality” Assertions Miss the Mark
`Alternatively, Defendants can’t show that the allegedly false suggestion that Ferrer
`corresponded with P.R. “could have affected the judgment of the jury.” Mot. at 7. Ferrer
`ran the website’s daily operations, including marketing and moderation. See 9/12/23 p.m.
`Tr. at 16:10-12; id. at 12:21-11, 14:24-9. Even if an employee other than Ferrer responded
`to P.R.’s complaints by repeatedly restoring her posting privileges and giving her
`discounts, the employee would have simply been implementing the policies and procedures
`that Larkin, Spear, and Ferrer had developed to give Backpage’s adult ads a veneer of
`legality without harming the bottom line. See Resp. to Spear’s Rule 29 Mot. at 3-6.
`
`More broadly, Defendants’ “materiality” argument reasserts their claim that if they
`didn’t know about or take any action regarding any particular charged ads, they can’t be
`found guilty. See Mot. at 5. That’s not the law of the case. Rather, Defendants’ policies and
`procedures, and their implementation of those policies and procedures, show they had the
`requisite mens rea and actus reus to be found guilty of conspiring to violate the Travel Act
`and of violating the Travel Act as charged in Counts 2-51.
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`In Doc. 793, for example, the Court reviewed the allegations in the Superseding
`Indictment, which laid out the same evidence that the United States presented to the jury—
`including evidence showing the strategies that Defendants intentionally pursued to build
`and maintain their website as the internet’s leading source of prostitution ads. The Court
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`Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 7 of 19
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`ruled that Defendants’ specific knowledge of each of the 50 ads charged in Counts 2-51 is
`unnecessary. Rather, the Court found that if the SI’s allegations are proven, then
`Defendants could be found guilty of promoting prostitution business enterprises—
`notwithstanding their individualized knowledge of any particular ads. Doc. 793 at 15-20.
`
`The Court analyzed several cases, including Smith v. California, 361 U.S. 147
`(1959), Mishkin v. New York, 383 U.S. 502, 511 (1966), and United States v. Gibson
`Specialty Co., 507 F.2d 446, 449 (9th Cir. 1974), “conclude[d] none of these cases mandate
`the mens rea requirement described by Defendants,” and instead “agree[d] with the
`Government that intent to promote or facilitate prostitution is sufficient.” Doc. 793 at 15.
`See id. at 15 (“Defendants argue the First Amendment requires the Government to prove
`that each Defendant was aware of each ad that make up the fifty Travel Act counts and
`knew that each ad proposed illegal transactions. The Court is not persuaded that the First
`Amendment demands such a standard.”). The Court also ruled: “The alleged facts in the
`SI, taken as true, establish Defendants had the specific intent to promote prostitution in
`violation of the Travel Act. They conspired together to do so. The conspiracy was
`successful and resulted in the 50 ads for prostitution that now make up 50 counts of
`violating the Travel Act.” Doc. 793 at 20. The Court reaffirmed these findings in June
`2023, in Doc. 1587 at 12-13. See also Doc. 649, Resp. at 30-44.
`In Doc. 946, the Court similarly recognized that the SI’s “allegations certainly
`describe a course of conduct where Defendants facilitated ‘unlawful activity,’ including
`numerous pimps, prostitutes and traffickers in violation of the Travel Act.” Doc. 946 at 13.
`See id. at 14 (the SI “alleges a continuous course of criminal conduct”).
`And in Doc. 1643, the Court determined that evidence of the prostitution marketing
`strategies that Defendants used to grow Backpage was highly relevant to showing
`Defendants’ knowledge and intent regarding the ads at issue. Defendants had moved in
`Doc. 1591 to preclude “evidence of alleged strategies to increase purported ‘prostitution’
`ads on the site not specific to these fifty ads”—including evidence of (1) moderation, (2)
`Backpage’s reciprocal link partnership with the Erotic Review (TER), and (3) content
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`Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 8 of 19
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`aggregation. Doc. 1591 at 3. Denying the motion, the Court found:
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`Given the nature of the SI’s allegations, these categories of evidence are
`relevant to show Defendants knowledge of the ads, how and why they were
`created and their intended purposes. Further, it is relevant to show whether
`Defendants “intended to promote a business of prostitution” by posting the
`ads. (See Doc. 1272 at 3). Finally, the Court already found that facts that pre-
`date the 2013 allegations were relevant as evidence demonstrating
`“furtherance of the charged conspiracy.” Therefore, evidence of ad
`moderation, Backpage’s “reciprocal” advertising/link program with the
`Erotic Review, and content “aggregation’ to secure future advertising
`revenues will not be precluded to the extent that (1) the SI provides notice to
`Defendants of these acts, and (2) the acts demonstrate Defendants’
`knowledge, intent and conduct in furtherance of the conspiracy’s objective[.]
`Doc. 1643 at 6.
`Defendants also ignore the Court’s Pinkerton instructions, which show that each
`Defendant need not have been personally aware of the specifics of each ad or personally
`involved in that ad’s publication, if it was reasonably foreseeable—under the policies
`Defendants implemented as part of the conspiracy charged in Count 1—that such violations
`would be committed in furtherance of the conspiracy. Doc. 1998 at 27; Doc. 649, Resp. at
`14. The Court has long approved of Pinkerton’s applicability here. Doc. 793 at 19.
`The evidence shows how the website’s owners, including Lacey, Brunst, and Spear,
`each played vital roles in developing Backpage into the internet’s leading source of
`prostitution ads, and then worked to maintain the website’s preeminence in that “niche”
`market. See Doc. 2019 at 1-7; Doc. 2020 at 14-17; Doc. 2021 at 1-9; Ex. 23 at 3. Consistent
`with the Court’s Orders, that evidence shows the actions they took to perpetuate
`Backpage’s publication of these and other prostitution ads.
`IV. The United States Did Not Make Improper Opening and Closing Arguments
`A.
`Defendants’ “Object of the Conspiracy” Argument Lacks Merit
`The United States incorporates by reference its discussion of this argument in its
`Response to Brunst’s Rule 29 Motion, Doc. 2019 at 9-10.
`B.
`This Case Does Not Involve an “Impermissible Boundless Conspiracy”
`Citing a single passage from Doc. 946 at 13, Defendants assert the conspiracy in
`Count 1 is cabined by the 50 ads charged in the substantive Travel Act counts, Counts 2-
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`Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 9 of 19
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`51. See Mot. at 8-9. Not so. The United States could have charged Count 1 without charging
`any substantive Travel Act counts; Counts 2-51 merely reflect examples of the scores of
`such violations the resulted for Defendants’ operation of Backpage. As the Court has
`repeatedly recognized, Count 1 alleges a 14-year conspiracy spanning 2004 to 2018, and
`conduct before 2013 is clearly relevant to the charge. Doc. 1643 at 4 (“[T]he Court has
`already clarified that the Government may introduce proof of the entirety of the scope of
`the conspiracy.”); Doc. 1643 at 6 (“[T]he Court already found that facts that pre-date the
`2013 allegations were relevant as evidence demonstrating ‘furtherance of the charged
`conspiracy.’”); 10/26/23 a.m. Tr. at 24:25-25:1.
`At trial, the United States argued, and presented evidence showing, that Defendants
`were engaged in a conspiracy with others to make Backpage successful as a prostitution
`advertising website. This evidence showed a “chain,” not a “hub-and-spoke,” conspiracy.
`Cf. Mot. at 9. “A chain conspiracy refers to a situation in which there are numerous
`conspiring individuals, each of whom has a role in a ‘chain’ that serves the conspiracy’s
`object. . . . The success of each ‘link’ in the chain depends on the success of the others,
`even though each individual conspirator may play a role that is separated by great distance
`and time from the other individuals involved.” United States v. Ulbricht, 31 F. Supp. 3d
`540, 553 (S.D.N.Y. 2014). In a wheel or hub-and-spoke conspiracy, in contrast, “one
`person typically acts as a central point while others act as ‘spokes’ by virtue of their
`agreement with the central actor. Id. at 554. Here, the Defendants, Ferrer, Hyer, and others
`performed different roles and relied on each to develop, and profit from, Backpage’s
`growth into the internet’s leading source of prostitution ads. This was a chain conspiracy,
`not a “rimless wheel conspiracy.” Mot. at 9.
`The pimps who paid and used Backpage’s services to promote and carry on their
`own criminal enterprises provided revenues that powered Backpage’s continued success,
`and can also be fairly considered part of the conspiracy. Cf. Ulbricht, 31 F. Supp. 3d at 556
`(“Silk Road was nothing more than code unless and until third parties agreed to use it.
`When third parties engaged in unlawful narcotics transactions on the site, however,
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`Case 2:18-cr-00422-DJH Document 2022 Filed 12/22/23 Page 10 of 19
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`Ulbricht’s design and operation gave rise to potential conspiratorial conduct.”).
`In all events, “the form of the conspiracy is not as important as a determination that
`at least one other person joined in the alleged conspiratorial agreement with [the
`defendant].” Ulbricht, 31 F. Supp. 3d at 557. And the proof at trial established that Spear
`and Brunst conspired with Ferrer and others to promote, or facilitate the promotion of,
`prostitution enterprises in violation of the Travel Act. See generally Responses to Spear’s
`and Brunst’s Rule 29 Motions. For all these reasons, Defendants’ untimely request for
`reconsideration of the Court’s denial of their prior motion to dismiss Count 1 and their
`other requests for relief regarding that count should be denied.
`C.
`Trial References to “Promoting Prostitution” Do Not Warrant Relief
`Contrary to the law of the case—and common sense—Defendants assert that the
`United States should have been prohibited from telling the jury that Defendants used many
`business strategies to market and promote prostitution. Mot. at 9-11. Defendants litigated
`this issue before, and lost. For years, the United States has alleged that Defendants’ pursued
`several strategies to establish Backpage as the internet’s leading source of prostitution ads.
`See, e.g., Doc. 230, SI¶¶ 9-11, 34. The Court has long recognized that these and other facts
`alleged in the SI, taken as true, “establish defendants had the specific intent to promote
`prostitution in violation of the Travel Act. They conspired together to do so. The conspiracy
`was successful and resulted in the fifty ads for prostitution that now make up fifty counts
`of violating the Travel Act.” Doc. 793 at 20. See also Doc. 1643 at 6.
`The statements about which Defendants complain (Mot. at 9-11) fit well within the
`contours of the Court’s Orders. For example, Defendants complain about references in the
`prosecution’s opening statement to Defendants’ use of “three different strategies to market
`and promote prostitution” (Mot. at 10)—evidence the Court found relevant in its pretrial
`rulings (Doc. 1643 at 6). Defendants also complain about references to the Travel Act
`charges, which concern promoting, or facilitating the promotion of, prostitution business
`enterprises. Mot. at 10-11. Defendants are not entitled to a new trial simply because
`prosecutors did not repeat the Act’s text verbatim each time they referenced the charges.
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`Defendants’ related assertion that the evidence did not sufficiently tie Ferrer to
`Backpage’s prostitution advertising, including the charged 50 ads, also lacks merit. (Mot.
`at 11.) The jury heard extensive evidence about Ferrer’s involvement in Backpage’s
`prostitution advertising; he testified for nearly 11 days about his management of the site’s
`publication of millions of prostitution ads. Not only did he communicate directly with P.R.,
`the prostitute who posted several of the charged ads, but he managed and ran the day-to-
`day operations of the website throughout its 14-year lifespan.
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`The Government Didn’t Repeatedly Tell the Jury It Could Convict
`Without Specific Intent
`The Court instructed the jury that it would inform the jury about the law as it applies
`here. See, e.g., Doc. 1998 at 2 (“It is also your duty to apply the law as I give it to you[.]”).
`Accordingly, the jury—which is presumed to follow the Court’s instructions—knew to
`look to the Court, and not the lawyers, about what the law required. United States v. Reyes,
`660 F.3d 454, 468 (9th Cir. 2011).1 The instructions required proof of specific intent and
`provided relevant definitions. Doc. 1998 at 30. The Court also directed the jury to consider
`“both direct and circumstantial evidence,” and left it to the jury “to decide how much
`weight to give any evidence.” Doc. 1998 at 8.
`Because direct evidence of wrongful intent is “rarely available,” “intent may be
`inferred from circumstantial evidence.” United States v. Kirst, 54 F.4th 610, 623 (9th Cir.
`2022) (cleaned up). A defendant’s specific intent to facilitate unlawful activity may be
`inferred from knowledge in any one of several circumstances, including “evidence of any
`unusual volume of business with prostitutes,” such as where “sales for illegal use amount
`to a high proportion of the seller’s total business.” People v. Lauria, 59 Cal. Rptr. 628, 632-
`33 (Cal. Ct. App. 1967).
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`1 Moreover, the Court instructed the jury that “statements” and “arguments” by the lawyers
`“are not evidence”: “[W]hat the lawyers have said in their opening statements, will say in
`their closing arguments, and have said at other times is intended to help you interpret the
`evidence, but it is not evidence. If the facts as you remember them differ from the way the
`lawyers state them, your memory of them controls.” Doc. 1998 at 7.
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`Furthermore, a website operator may be found to have the requisite intent when the
`defendant’s website was designed or tailored to further illegal activity. See, e.g., United
`States v. Ulbricht, 31 F. Supp. 3d 540, 556 (S.D.N.Y. 2014) (“The Indictment does not
`allege that Ulbricht is criminally liable simply because he is alleged to have launched a
`website that was—unknown to and unplanned by him—used for illicit transactions. If that
`were ultimately the case, he would lack the mens rea for criminal liability. Rather, Ulbricht
`is alleged to have knowingly and intentionally constructed and operated an expansive black
`market for selling and purchasing narcotics and malicious software and for laundering
`money. This separates Ulbricht’s alleged conduct from the mass of others whose websites
`may—without their planning or expectation—be used for unlawful purposes.”); United
`States v. Omuro, N.D. Cal. No. 14-CR-336, Doc. 70 at 1-3 (court accepted guilty plea and
`convicted www.myRedBook.com founder Eric Omuro under the Travel Act, 18 U.S.C.
`§ 1952(a)(3)(A); his website hosted thousands of ads posted by prostitutes in the western
`United States); United States v. Hurant, E.D.N.Y. No. 16-CR-45, Doc. 117 at 1, 6 13-14
`(court accepted guilty plea and convicted www.Rentboy.com founder Jeffrey Hurant for
`violating the Travel Act; Hurant admitted he “was well aware…that the escort ads he
`posted…were thinly-veiled proposals of sexual services in exchange for money”; id. Doc.
`125 at 2 (like Backpage, Hurant’s employees often rejected ads with explicit offers of sex
`for money “but allow[ed] the ad to be resubmitted with different language. In many cases,
`Rentboy.com employees would just edit the advertisement’s language and approve it.”).
`The evidence here showed, among other things, that Backpage managers and
`employees helped customers craft their ads to reduce the risk of law enforcement detection
`without changing the underlying message (moderation); created ads for prostitutes and
`pimps and offered to publish them for a trial period for no or reduced fees (aggregation);
`entered into affiliation agreements with bulk prostitution advertisers like Dollar Bill (super
`posters); paid thousands of dollars to The Erotic Review, a Yelp-like website for buyers
`and sellers of commercial sex, in a cross-referral/cross-linkage business arrangement;
`purchased and published “feeds” of legitimate ads to falsely portray Backpage as a general
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`classified advertising website for the sake of “plausible deniability”; tried to suppress
`negative news coverage; and laundered Backpage proceeds through domestic and overseas
`accounts. See, e.g., Doc. 2021 at 1-9. Simply put, the proof at trial gave the jury abundant
`evidence from which to infer Defendants’ intent.
`Against this backdrop, Defendants’ complaints about the prosecutor’s references to
`Defendants’ sources of knowledge that their website was promoting prostitution businesses
`falls flat. Mot. at 11-13. Defendants’ cherry-pick the prosecutor’s reference to Backpage’s
`receipt of thousands subpoenas in closing argument, but the United States’ opening and
`rebuttal closing arguments focused on far more evidence of knowledge and intent than that
`single data point. Compare Mot. at 11-12 with 10/26/23 p.m. Tr. at 52:17-88:7, 10/27/23
`a.m. Tr. at 6:4-35:1, and 11/1/23 a.m. Tr. at 37:21-70:12. Prosecutors have “wide latitude
`in closing arguments,” and “considerable leeway to strike hard blows based on the evidence
`and all reasonable inferences from the evidence.” United States v. Wilkes, 662 F.3d 524,
`538 (9th Cir. 2011). Oratorical flourish and argumentative characterizations are allowed.
`United States v. Chavez, 895 F.2d 1418 (9th Cir. 1990); United States v. Sayetsitty, 107
`F.3d 1405, 1409 (9th Cir. 1997). Taken in context, the reference to the “thousands of
`subpoenas” Backpage received was well within the bounds of acceptable argument, and
`hardly rises to the level of entitling Defendants to a new trial under Rule 33.
`Nor did the prosecutor’s rebuttal closing argument mischaracterize the law or the
`jury instructions about whether any Defendant knew about any specific charged ad. See
`Mot. at 12. As discussed supra at 5-7, the Court has repeatedly held that the United States
`may prove the charges against Defendants without necessarily showing a defendant’s
`personal, direct knowledge of individual ads.
`The prosecutor did not mischaracterize the 50 substantive Travel Acts as “just a
`sample.” Mot. at 12. The jury heard testimony from many witnesses showing prostitution
`advertising was rampant on Backp