Case: 22-10000, 04/14/2022, ID: 12422032, DktEntry: 25, Page 1 of 62
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`C.A. No. 22-10000
`D. Ct. No. CR-18-00422-PHX-DJH
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`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
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`UNITED STATES OF AMERICA,
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`Plaintiff-Appellee,
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`MICHAEL LACEY, ET AL.,
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`Defendants-Appellants.
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`ON INTERLOCUTORY APPEAL FROM AN ORDER OF THE
`UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
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`BRIEF OF APPELLEE
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`PETER S. KOZINETS
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`GARY M. RESTAINO
`Assistant U.S. Attorney
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`United States Attorney
`Two Renaissance Square
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`District of Arizona
`40 N. Central Avenue, Suite 1800
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`Phoenix, Arizona 85004-4449
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`KRISSA M. LANHAM
`Telephone: (602) 514-7500
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`Appellate Division Chief
`Attorneys for Appellee
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`Date Submitted via ECF: April 14, 2022
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`Case: 22-10000, 04/14/2022, ID: 12422032, DktEntry: 25, Page 2 of 62
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`I. TABLE OF CONTENTS
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`Page
`I. 
`Table of Contents ............................................................................................. i 
`Table of Authorities ........................................................................................ ii 
`II. 
`Introduction and Summary of Argument ........................................................ 1 
`III. 
`IV.  Statement of Jurisdiction 
`A.  District Court Jurisdiction ..................................................................... 4 
`B. 
`Appellate Court Jurisdiction .................................................................. 4 
`C. 
`Timeliness of Appeal ............................................................................ 5 
`D. 
`Bail Status .............................................................................................. 5 
`Issues Presented ............................................................................................... 6 
`V. 
`VI.  Statement of the Case 
`A.  Nature of the Case; Course of Proceedings ........................................... 7 
`B. 
`Statement of Facts ................................................................................. 8 
`VII.  Arguments 
`  Defendants Cannot Make the Extraordinary Showing Required
`to Bar Retrial Under Oregon v. Kennedy. ........................................... 33 
`The District Court Properly Exercised Its Discretion to Decide
`the Motion Without an Evidentiary Hearing. ...................................... 49 
`VIII.  Conclusion ..................................................................................................... 54 
`IX.  Statement of Related Cases ........................................................................... 55 
`X. 
`Certificate of Comliance ................................................................................ 56 
`XI.  Certificate of Service ..................................................................................... 57
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`II. TABLE OF AUTHORITIES
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` PAGE(S)
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`CASES
`Abney v. United States,
`431 U.S. 651 (1977) ............................................................................................ 4
`Anderson v. City of Bessemer City, N.C.,
`470 U.S. 564 (1985) .................................................................................... 33, 53
`Barker v. Wingo,
`407 U.S. 514 (1972) .......................................................................................... 48
`Cobbledick v. United States,
`309 U.S. 323 (1940) .......................................................................................... 47
`Currier v. Virginia,
`138 S. Ct. 2144 (2018) ....................................................................................... 33
`Flanagan v. United States,
`465 U.S. 259 (1984) .......................................................................................... 47
`Green v. Hall,
`8 F.3d 695 (9th Cir. 1993) ................................................................................. 53
`J.S. v. Village Voice Media Holdings, Inc.,
`359 P.3d 714 (Wash. 2015) ......................................................................... 20, 23
`Morissette v. United States,
`342 U.S. 246 (1952) .......................................................................................... 46
`Oregon v. Kennedy,
`456 U.S. 667 (1982) .................................................................................. passim
`Takahashi v. United States,
`143 F.2d 118 (9th Cir. 1944) ............................................................................. 46
`United States v. Curtis,
`683 F.2d 769 (3rd Cir. 1982) ............................................................................. 40
`United States v. Fowlkes,
`804 F.3d 954 (9th Cir. 2015) ............................................................................. 35
`United States v. Garner,
`632 F.2d 758 (9th Cir. 1980) ............................................................................... 4
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`ii
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` PAGE(S)
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`CASES (Continued)
`United States v. Hagege,
`437 F.3d 943 (9th Cir. 2006) ....................................................................... 49-50
`United States v. Hale,
`448 F.3d 971 (7th Cir. 2006) ............................................................................. 43
`United States v. Henderson,
`241 F.3d 638 (9th Cir. 2000) ............................................................................. 38
`United States v. Hoang,
`486 F.3d 1156 (9th Cir. 2007) ........................................................................... 51
`United States v. Howell,
`231 F.3d 615 (9th Cir. 2000) ............................................................................. 51
`United States v. Lacey,
`423 F. Supp. 3d 748 (D. Ariz. 2019) ........................................................... 14, 46
`United States v. Lewis,
`368 F.3d 1102 (9th Cir. 2004) ....................................................................... 4, 32
`United States v. Lopez-Avila,
`678 F.3d 955 (9th Cir. 2012) ..................................................................... passim
`United States v. Lun,
`944 F.2d 642 (9th Cir. 1991) ........................................................... 35-36, 40, 47
`United States v. Martin,
`561 F.2d 135 (8th Cir. 1977) ............................................................................. 48
`United States v. McCarty,
`648 F.3d 820 (9th Cir. 2011) ............................................................................. 33
`United States v. McKoy,
`78 F.3d 446 (9th Cir. 1996) ............................................................................... 35
`United States v. Padua,
`2021 WL 5860653 (W.D.N.Y. Dec. 9, 2021) ................................................... 48
`United States v. Rodriguez,
`229 F. App’x 547 ............................................................................................... 51
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`iii
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` PAGE(S)
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`CASES (Continued)
`United States v. Singleterry,
`683 F.2d 122 (5th Cir. 1982) ............................................................................. 48
`United States v. Sterba,
`22 F. Supp. 2d 1333 (M.D. Fla. 1998) .............................................................. 48
`United States v. Walter-Eze,
`869 F.3d 891 (9th Cir. 2017) ............................................................................. 33
`United States v. Zone,
`403 F.3d 1101 (9th Cir. 2005) ........................................................................... 51
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`STATUTES
`18 U.S.C. § 371 ........................................................................................................ 7
`18 U.S.C. § 1952 ...................................................................................................... 7
`18 U.S.C. § 1956 ...................................................................................................... 7
`18 U.S.C. § 1957 ...................................................................................................... 7
`18 U.S.C. § 3231 ...................................................................................................... 4
`18 U.S.C. § 3771(a)(7) ........................................................................................... 47
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`RULES
`Fed. R. App. P. 4(b)(1)(A) ....................................................................................... 5
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`MISCELLANEOUS
`U.S. Senate Permanent Subcommittee on Investigations’ January 2017 report,
`BACKPAGE.COM’S KNOWING FACILITATION OF ONLINE SEX TRAFFICKING, available
`at
`https://www.hsgac.senate.gov/imo/media/doc/Backpage%20Report%202017.01.10
`%20FINAL.pdf and https://www.courthousenews.com/wp-
`content/uploads/2017/02/Backpage-Report.pdf ................................................ 8, 11
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`iv
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`III.
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`INTRODUCTION AND SUMMARY OF ARGUMENT
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`This interlocutory appeal presents a narrow question: Did the district court
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`clearly err by finding the United States did not intend to cause the mistrial below?
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`In Oregon v. Kennedy, 456 U.S. 667, 676 (1982), the Supreme Court held that
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`where—as here—Defendants obtain a mistrial on their own motion, only intentional
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`prosecutorial misconduct aimed at sabotaging the trial warrants dismissal on double
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`jeopardy grounds. “The only relevant intent is intent to terminate the trial, not intent
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`to prevail at this trial by impermissible means.” United States v. Lopez-Avila, 678
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`F.3d 955, 962 (9th Cir. 2012). This standard “is rarely met,” id.; neither the Supreme
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`Court nor this Court has ever applied it to bar retrial. Here, Judge Diane J. Humetewa
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`found no evidence of government intent to cause a mistrial and denied Defendants’
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`Kennedy motion. (1-ER-3–19.) For several reasons, Defendants cannot demonstrate
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`that the court’s findings were clearly erroneous—and its decision should be
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`affirmed.
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`First, the district court found that the government did not engage in intentional
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`misconduct—and that finding alone is fatal to Defendants’ claim. The mistrial was
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`based mainly on concerns about the “cumulative effect” of references to child sex
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`trafficking. The trial judge ruled pretrial that this topic could be discussed; twice
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`determined the government’s opening statement did not “cross the line” on this
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`issue; and overruled most of Defendants’ objections when witnesses touched on the
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`subject. Moreover, when granting the mistrial, the trial judge expressly found: “I
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`don’t see any of these [reasons for the mistrial] as intentional misconduct.” (23-ER-
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`4815.) Judge Humetewa, to whom the case was later reassigned, independently
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`examined the record, considered the parties’ briefs, heard oral argument, directly
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`questioned the prosecutors, and made the same factual finding. On this record, Judge
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`Humetewa’s finding of no intentional misconduct was not clearly erroneous.
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`Second, both the trial judge and Judge Humetewa correctly rejected the
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`notion—central to Defendants’ appeal—that the government’s case was “faltering.”
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`When Defendants made that argument in connection with moving for a mistrial, the
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`trial judge rejected it as “way too early.” (23-ER-4784–85.) Judge Humetewa
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`adopted the same analysis and recognized additional record-based reasons for
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`finding the United States had no cause to sink the trial. (1-ER-10.) These findings
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`are accorded great deference on appeal. See, e.g., Lopez-Avila, 678 F.3d at 959-62
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`(affirming denial of motion to dismiss where district court found no evidence of a
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`“strategy decision . . . to abort the trial”). Defendants’ contrary attempts to draw a
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`causal connection between the government’s case and any alleged intent to sabotage
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`the trial are not supported by the record—and do not establish clear error.
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`Third, the United States faced severe prejudice from a mistrial, including
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`substantial costs and delays, and it opposed Defendants’ mistrial motions at every
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`turn. On this record, the court’s findings were correct and far from clearly erroneous.
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`Nor was the district court required to hold an evidentiary hearing. Rather,
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`district courts have broad discretion in deciding whether to hold evidentiary
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`hearings, and the court properly exercised its discretion here. In addition to
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`examining the voluminous record and hearing argument, the court probed the
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`prosecutors who examined the two witnesses identified in the mistrial order and
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`elicited their on-the-record explanations. Defendants never articulated why the court
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`should have required the prosecutors to make their avowals to the court at an
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`evidentiary hearing rather than a motions hearing. The district court did not abuse
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`its broad discretion.
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`Defendants’ Brief far exceeds the narrow scope of this appeal and seemingly
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`tries to relitigate a waterfront of other issues. But in this limited-jurisdiction
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`interlocutory appeal, the only order properly before this Court is Judge Humetewa’s
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`December 29, 2021 order denying the double jeopardy claim. Defendants cannot
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`establish that the factual findings underlying that order were clearly erroneous. The
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`Court should affirm.
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`IV. STATEMENT OF JURISDICTION
`A. District Court Jurisdiction
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`The district court has subject matter jurisdiction under 18 U.S.C. § 3231
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`because Defendants are charged with federal crimes. (2-ER-95–186.)1
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`B. Appellate Court Jurisdiction
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`The Court has interlocutory appellate jurisdiction, at most, only over
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`Defendants’ appeal from the district court’s denial of their double-jeopardy claim.
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`Abney v. United States, 431 U.S. 651, 662-63 (1977). The Court has no interlocutory
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`jurisdiction over the district court’s denial of any other claims addressed in its
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`December 29, 2021 order (1-ER-3–19). See, e.g., United States v. Garner, 632 F.2d
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`758, 762 n.2 (9th Cir. 1980) (Abney “expressly precluded the possibility of a court
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`of appeals exercising pendent appellate jurisdiction” in interlocutory double-
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`jeopardy cases); United States v. Lewis, 368 F.3d 1102, 1107 (9th Cir. 2004) (no
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`interlocutory jurisdiction over alleged Brady violations); DktEntry 2 at 11-12.
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`1 CR refers to the Clerk’s Record, followed by the document number(s). ER refers
`to the Excerpts of Record, and SER refers to the Supplemental Excerpts of Record.
`Citations to the ER or SER and will be preceded by the volume number, when
`applicable, and followed by the relevant page number(s).
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`C. Timeliness of Appeal
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`The district court denied Defendants’ double-jeopardy claim on December 29,
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`2021. (1-ER-3.) Defendants timely appealed on January 3, 2022. (23-ER-4820–24.)
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`See Fed. R. App. P. 4(b)(1)(A).
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`D. Bail Status
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`Defendants are out of custody.
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`V.
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`ISSUES PRESENTED
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`A. Whether the district court’s factual finding that the prosecutors did not intend
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`to cause the mistrial was clearly erroneous, where: (1) the United States opposed
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`Defendants’ mistrial requests; (2) after examining the record, hearing argument, and
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`questioning the prosecutors, the court found no evidence of intentional misconduct;
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`(3) the court determined that the United States had no cause to abort trial, and
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`Defendants’ contrary assertions lack record support; and (4) the United States faced
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`substantial prejudice from a mistrial.
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`B. Whether the district court properly exercised its broad discretion in declining
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`to conduct an evidentiary hearing, where: (1) the court had an ample record on which
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`to base its double jeopardy decision, including more than 1,800 pages of briefs,
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`supplements and exhibits; and (2) the court queried the prosecutors and assessed
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`there was no strategic reason to abandon the trial.
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`VI. STATEMENT OF THE CASE
`A. Nature of the Case; Course of Proceedings
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`On July 25, 2018, the grand jury returned a 100-count Superseding Indictment
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`(SI, 2-ER-95–186) charging Michael Lacey, James Larkin, John Brunst, Scott Spear,
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`Andrew Padilla and Joye Vaught (Defendants) with conspiracy to violate the Travel
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`Act/facilitate prostitution, in violation of 18 U.S.C. § 371 (Count 1), and with fifty
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`specific violations of the Travel Act, 18 U.S.C. § 1952 (Counts 2-51). The SI also
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`charged various Defendants with money laundering under 18 U.S.C. §§ 1956 and
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`1957 (Counts 52-100). On September 14, 2021, after just two days of testimony at a
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`jury trial scheduled to span three months, the district court declared a mistrial. (23-
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`ER-4811–15.) The court set a new trial for February 9, 2022. (1-SER-290.)
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`On December 29, 2021, the district court denied Defendants’ double-jeopardy
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`motion to dismiss. (1-ER-3–19.) Defendants timely appealed. (23-ER-4820–24.)
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`The court then vacated the February 9, 2022 trial, to be reset following resolution of
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`this appeal. (CR 1449.) This Court expedited briefing and ordered that the matter be
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`placed on the next available calendar upon completion of briefing. (DktEntry 9.)
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`B.
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`Statement of Facts
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`Overview of Backpage
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`1.
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`Backpage was, until shut down in April 2018, notorious for being the
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`internet’s leading source of prostitution advertisements. (2-ER-96.) Backpage
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`derived the overwhelming majority of its revenue from such ads and earned over a
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`half-billion dollars in prostitution-related revenue during its 14 years of existence.
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`(See 2-ER-96, 99, 103, 138; SR 44.)2
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`Lacey and Larkin co-founded Backpage in 2004 with Carl Ferrer. (2-ER-96,
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`100–01.) Lacey and Larkin oversaw Backpage’s policies and strategic direction
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`from 2004-15. (2-ER-96.) Spear served as Executive Vice President of a parent
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`company. (2-ER-96.) Brunst served as Chief Financial Officer of Backpage. (2-ER-
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`96.) Padilla and Vaught served as Backpage’s Operations Manager and Assistant
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`Operations Manager, respectively. (2-ER-96–97.)
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`When Craigslist closed its “adult” section in 2010 after learning many ads in
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`that section were for prostitution, Backpage quickly moved to capture Craigslist’s
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`2 SR or Senate Report refers to the Senate Permanent Subcommittee on
`Investigations’ January 2017 report, BACKPAGE.COM’S KNOWING FACILITATION OF
`ONLINE SEX TRAFFICKING, available at
`https://www.hsgac.senate.gov/imo/media/doc/Backpage%20Report%202017.01.10
`%20FINAL.pdf
`and
`https://www.courthousenews.com/wp-
`content/uploads/2017/02/Backpage-Report.pdf
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`share of this market. (2-ER-101.) Backpage’s profits then skyrocketed to over $26
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`million in 2010, $52 million in 2011, and $78 million in 2012. (2-ER-101.)
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`Backpage became so profitable that in 2012 its owners spun off their
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`conglomerate of alternative weekly publications to focus on Backpage. (2-ER-102.)
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`Backpage’s profits climbed from over $112 million in 2013 to $134 million in 2014.
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`(2-ER-102.)
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`In April 2015, Lacey, Larkin, Spear and Brunst purported to sell Backpage for
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`around $600 million to entities controlled by Ferrer, who simply “borrowed” most
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`of the purchase price from the sellers. (2-ER-102.) Post-sale, the sellers retained
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`significant operational control over Backpage, and Lacey and Larkin continued
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`receiving tens of millions of dollars in Backpage distributions. (2-ER-102–03.)
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`Defendants knew the vast majority of “adult” ads on their website were
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`actually ads for prostitution, and they oversaw or executed several prostitution
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`marketing strategies to intentionally facilitate that illegal activity. (2-ER-103.) First,
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`Backpage’s employees systematically identified prostitutes on rival websites and
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`created free Backpage ads for them to secure their business. (2-ER-97, 104–05.)
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`Larkin, Spear, Ferrer, and others executed or monitored these “aggregation” efforts
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`in several U.S. cities. (2-ER-104–05; 1-SER-115–17.)
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`Second, Backpage’s management oversaw the company’s pursuit of business
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`arrangements with known prostitution services to increase its volume of prostitution
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`advertising. (2-ER-97, 103.) For example, Backpage had a reciprocal link agreement
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`with The Erotic Review, a site where “Johns” posted reviews of prostitutes they
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`purchased on Backpage, including descriptions of prices and specific sex acts. (2-
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`ER-97.) Backpage paid The Erotic Review, which became a leading source of
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`referrals. (See 2-ER-97, 105–08.) Backpage formed “affiliate” relationships with
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`other prostitution industry organizations and individuals, including bulk advertisers
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`like “Dollar Bill” to whom Backpage offered fees or commissions. (2-ER-108–110.)
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`Third, Backpage helped pimps and prostitutes avoid detection by law
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`enforcement, most notably by utilizing “moderation” measures to remove terms and
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`pictures particularly indicative of prostitution—and then publishing a revised
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`version of the ad without blocking the ad itself. (2-ER-97–98) This editing did not
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`change the purpose of the ad (soliciting prostitution)—it only created a veneer of
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`deniability for Backpage and its customers. (2-ER-98, 110–31.) Ferrer and other
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`Backpage employees also advised known prostitution advertisers like Dollar Bill,
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`“Licks A Lot,” and “P.R.” on how to revise ads so that they could be featured on
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`Backpage. (See, e.g., 2-ER-108–110, 114, 124–25, 134, 136–37.)
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`As Defendants successfully pursued these prostitution marketing strategies,
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`they faced withering criticism from law enforcement, the National Center for
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`Missing and Exploited Children (NCMEC) and other anti-trafficking organizations,
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`the U.S. Senate, and others who concluded—and notified Defendants—that the vast
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`majority of Backpage’s “adult” ads were for prostitution; these notifications
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`mirrored Defendants’ internal admissions. (2-ER-95–186, passim.)
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`For example, after lengthy investigation, in January 2017 the U.S. Senate
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`Subcommittee on Permanent
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`Investigations
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`issued a 50-page
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`report,
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`BACKPAGE.COM’S KNOWING FACILITATION OF ONLINE SEX TRAFFICKING. The report
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`found that virtually all of Backpage’s “adult” ads were prostitution solicitations and
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`“Backpage has maintained a practice of altering ads before publication by deleting
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`words, phrases, and images indicative of criminality, including child sex trafficking
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`. . . . Those practices served to sanitize the content of innumerable advertisements
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`for illegal transactions—even as Backpage represented to the public and the courts
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`that it merely hosted content others had created.” (2-ER-131.) One former Backpage
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`moderator testified that all the moderators knew the ads they reviewed offered sex
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`for money; another testified “everyone” knew Backpage’s adult ads were for
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`prostitution and “[a]nyone who says [they] w[ere]n’t, that’s bullshit.” (SR 36–37.)
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`2.
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`The Superseding Indictment
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`Count 1 of the SI charges Defendants with a 14-year conspiracy to violate the
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`Travel Act by facilitating prostitution. (2-ER-143.) Counts 2-51 charge substantive
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`Travel Act violations and identify 50 examples of prostitution ads Defendants
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`published in the course of that conspiracy. (2-ER-143–49.) The ads marketed the
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`sale of women or minors using well-understood but coded references to prostitution.
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`(2-ER-143–49). The allegations incorporated into Counts 2-51 show Defendants
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`worked together to facilitate prostitution by publishing these and similar ads. (E.g.,
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`2-ER-103, 143–49.) Even if a Defendant may not have personally been aware of the
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`specifics of each ad (Backpage employed dozens of low-level moderators to review
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`and revise ads) (see, e.g., 2-ER-112–17, 121), it was reasonably foreseeable in light
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`of the policies Defendants implemented as part of their conspiracy that such
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`violations would be committed in furtherance of the conspiracy.
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`The 50 ads identified in Counts 2-51 fall into three categories. First, 15 depict
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`specific victims. (2-ER-143–47.) Backpage employees coached many of these
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`victims or their pimps regarding their ads and/or edited the ads. (See, e.g., 2-ER-
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`134–37.) Second, 10 of the ads were posted by P.R., a prostitute whom Ferrer
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`assisted in posting prostitution ads on Backpage. (2-ER-124–26, 144–47.) Third,
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`the remaining 25 ads contain “GFE” or “girlfriend experience,” (2-ER-147–49),
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`which Defendants acknowledged was a “coded sex act for money” term. (2-ER-130–
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`31.) The SI describes other prostitution ads on Backpage, including ads describing
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`specific sex acts (e.g., “blow jobs”) with prices. (See, e.g., 2-ER-121.)
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`Counts 52-100 charge various Defendants with conspiracy and money
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`laundering counts to conceal the source of Backpage’s revenues. (2-ER-138–43,
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`149–56.) For example, in 2017, to evade government seizure, Lacey transferred
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`$16.5 million in Backpage-derived cash to Hungary. (2-ER-100, 156; 3-ER-482.)
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`Case: 22-10000, 04/14/2022, ID: 12422032, DktEntry: 25, Page 18 of 62
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`The United States Worked for Years to Prepare for Trial
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`3.
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`From April 2018 to August 2021, the parties engaged in extensive pretrial
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`litigation. (See 23-ER-4825–4935.) Defendants filed six motions to dismiss that the
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`United States opposed and the district court denied. (See CRs 559, 793, 840, 844,
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`946, 1168.) By January 2019, the United States produced approximately 7.8 million
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`documents in discovery. (CR 444.) Defendants sought several trial continuances.
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`(See, e.g., CRs 862, 990, 1058, 1113.) Trial finally began September 1, 2021, and
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`the United States scheduled more than 70 witnesses from around the country to
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`testify over the next three months. (See 22-ER-4480 (“90 percent of [the United
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`States’] witnesses are from out of state that we’re flying in”); CR 1314.)
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`The United States’ anticipated trial witnesses included two high-level
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`Backpage insiders, Carl Ferrer and Dan Hyer. In April 2018, several Backpage
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`operating entities and Backpage’s then-CEO, Ferrer, pleaded guilty and admitted
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`that the “great majority” of Backpage’s revenue-generating ads were “for
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`prostitution services.” (1-SER-15–16; 1-SER-31.) Ferrer further admitted that he
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`“conspired with other Backpage principals,” including Defendants, “to create
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`‘moderation’ processes through which Backpage would remove terms and pictures
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`that were particularly indicative of prostitution and then publish a revised version of
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`the ad.” (1-SER-16.) He also admitted to conspiring with Defendants to engage in
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`money laundering, including “fool[ing] credit card companies[.]” (1-SER-16–17.)
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`Case: 22-10000, 04/14/2022, ID: 12422032, DktEntry: 25, Page 19 of 62
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`Backpage’s Sales and Marketing Director Hyer later pleaded guilty to Count 1 of
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`the SI, corroborated Ferrer’s account of Backpage’s “moderation,” and confirmed
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`that Backpage created and modified prostitution ads. (1-SER-115–17.)3
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`4.
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`The Trial Court Anticipated and Approved of Some Discussion of Sex
`Trafficking and Child Sex Trafficking at Trial.
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`a.
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`The Court Ruled In Limine that the United States Could Refer to
`Sex Trafficking and Child Sex Trafficking at Trial.
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`In advance of trial, and as most relevant here, the district court decided three
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`motions in limine regarding types of evidence the United States was entitled to
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`present. In October 2020, the court ruled the United States could introduce expert
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`testimony on the following sex trafficking topics: (1) “[h]ow human/sex trafficking
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`occurs through online media”; (2) “[h]ow law enforcement conducts trafficking
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`investigations, with a focus on how investigations shifted from craigslist.com to
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`backpage.com”; and (3) an “[e]xplanation of terminology often used in [the]
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`trafficking and prostitution industry.” (4-ER-818–20.)
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`3 Defendants’ Brief contains an outdated account of Backpage’s litigation history
`predating these guilty pleas, the Senate Report and other significant developments,
`to which the United States has responded in numerous court filings. (Compare Op.
`Br. at 11-19 with 2-ER-83–88; 3-ER-283–84, 301–07, 317–18, 323; 7-ER-1328–30,
`1335–37; 1-SER-196–202; 1-SER-234–35, 242–45.) Rather than repeat here, the
`United States stands on these filings. Moreover, many of Defendants’ points have
`been rejected at other stages of these proceedings in the district court. See, e.g.,
`United States v. Lacey, 423 F. Supp. 3d 748, 760-63 (D. Ariz. 2019); 1-SER-71–72,
`100–03.) In all events, Defendants cannot to use this narrow interlocutory appeal as
`a backdoor means of re-litigating all of this here. See Part IV.B, supra (citing cases).
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`Case: 22-10000, 04/14/2022, ID: 12422032, DktEntry: 25, Page 20 of 62
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`In May 2021, the court ruled the United States could introduce evidence
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`concerning sex trafficking and child sex trafficking at trial. (5-ER-877–82.) The
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`court agreed “both [are] forms of prostitution. Both are simply a subset of the crime.
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`Sex trafficking and child sex trafficking require victims to engage in sex in exchange
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`for payment, and the Government must prove that Defendants intended to facilitate
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`prostitution through Backpage.com.” (5-ER-879.) The court ruled “[e]vidence that
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`tends to prove that Defendants were aware that Backpage.com was being used to
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`facilitate sex trafficking and child sex trafficking [is] extremely probative to show
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`notice to Defendants that the website was being used for illegal purposes.” (5-ER-
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`879.) The United States could not “linger on the details of” victims’ abuse or
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`“introduce lengthy testimony . . . about their lives, lifestyles, or other details of their
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`time working as prostitutes.” (5-ER-880–81.) The government could introduce
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`testimony involving victims’ use of Backpage, including “how ads were created,
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`drafted, edited, and paid for.” (5-ER-881.)
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`In June 2021, the court ruled that evidence of Backpage’s reputation as a
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`leading source of illegal sexual service advertisements could be admitted, provided
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`that it was connected to communications with Backpage or Defendants. (5-ER-889.)
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`b.
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`The Court Twice Denied Defendants’ Mistrial Motions
`Regarding Trafficking References in the Opening Statement.
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`Before opening statements, the district court stated “they [the United States]
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`aren’t prohibited from using the word trafficking,” but cautioned the government not
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`Case: 22-10000, 04/14/2022, ID: 12422032, DktEntry: 25, Page 21 of 62
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`to focus its “whole opening” on that topic. (20-ER-4028.) On September 3, 2021,
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`the United States delivered its opening statement. (20-ER-4060–4116.) Defendants
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`asserted six objections to portions that referenced trafficking, four of which were
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`overruled. (20-ER-4064, 4087, 4088, 4092, 4103–04, 4115–16.) After the
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`prosecutor concluded, Defendants orally moved for a mistrial, and the government
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`opposed the motion. (See 20-ER-4117–31.) The court responded: “[W]ith respect to
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`comments about children trafficking, I’ve already ruled on that. And the government
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`didn’t cross the line on that issue, in my mind, because they didn’t go into any of the
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`details. It was merely the fact that this happened.” (20-ER-4129.)
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`On September 6, 2021, Defendants filed a written mistrial motion raising the
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`same objections. (9-ER-1472–92.) The next day, the United States filed a 17-page
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`opposition. (1-SER-271–89.) On September 8, 2021, the