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`FILED
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`SEP 21 2022
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`UNITED STATES COURT OF APPEALS
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`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
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` FOR THE NINTH CIRCUIT
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`UNITED STATES OF AMERICA,
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`No. 22-10000
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`Plaintiff-Appellee,
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` v.
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`MICHAEL LACEY; JAMES LARKIN;
`SCOTT SPEAR; JOHN BRUNST;
`ANDREW PADILLA; JOYE VAUGHT,
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`Defendants-Appellants.
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`D.C. Nos.
`2:18-cr-00422-DJH-1
`2:18-cr-00422-DJH-2
`2:18-cr-00422-SMB-3
`2:18-cr-00422-SMB-4
`2:18-cr-00422-SMB-6
`2:18-cr-00422-SMB-7
`2:18-cr-00422-SMB
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`MEMORANDUM*
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`Appeal from the United States District Court
`for the District of Arizona
`Diane J. Humetewa, District Judge, Presiding
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`Argued and Submitted September 2, 2022
`San Francisco, California
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`Before: W. FLETCHER, BYBEE, and VANDYKE, Circuit Judges.
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`The parties are familiar with the facts and proceedings, which will not be
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`recited here except as necessary to explain our decision.
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`This disposition is not appropriate for publication and is not precedent
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`except as provided by Ninth Circuit Rule 36-3.
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`This is an interlocutory appeal of the district court’s denial of Defendants’
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`motion to dismiss under the Double Jeopardy Clause. Defendants appeal the
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`denial of the motion to dismiss and the motion judge’s denial of an evidentiary
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`hearing. We have jurisdiction under 28 U.S.C. § 1291. See Abney v. United
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`States, 431 U.S. 651, 662 (1977) (for the purposes of appellate review, denial of a
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`motion to dismiss on double jeopardy grounds constitutes a final decision). We
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`affirm.
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`We review the denial of a motion to dismiss on double jeopardy
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`grounds de novo. United States v. Zone, 403 F.3d 1101, 1104 (9th Cir. 2005).
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`However, “factual findings, including those on which [the] denial may be based”
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`are reviewed for clear error. United States v. Lopez-Avila, 678 F.3d 955, 961 (9th
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`Cir. 2012) (quoting United States v. Ziskin, 360 F.3d 934, 943 (9th Cir. 2003)).
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`We afford such deference to the district court’s findings of fact even when they are
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`based on deductions and inferences from a written record. See Anderson v. City of
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`Bessemer City, 470 U.S. 564, 574 (1985). We review the denial of a motion for an
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`evidentiary hearing for abuse of discretion. United States v. Hagege, 437 F.3d
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`943, 951 (9th Cir. 2006).
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`A defendant who moves for mistrial may only “raise the bar of double
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`jeopardy to a second trial” if the mistrial was instigated by prosecutorial conduct
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`2
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`that was “intended to ‘goad’ the defendant into moving for a mistrial.” Oregon v.
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`Kennedy, 456 U.S. 667, 676 (1982). “The only relevant intent is intent to
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`terminate the trial, not intent to prevail at this trial by impermissible means.”
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`United States v. Lopez-Uvula, 678 F.3d 955, 962 (9th Cir. 2012) (quoting United
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`States v. Perlaza, 439 F.3d 1149, 1173 (9th Cir. 2006)).
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`Defendants argue that the government sought a mistrial in order to regroup
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`and reorganize its case in light of (1) Defendants’ compelling arguments regarding
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`specific intent and the First Amendment, (2) the trial judge’s pretrial ruling that
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`escort services are legal, and (3) the government’s poor showing at trial up to that
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`point. We address each reason in turn.
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`1.
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`Defendants’ arguments regarding specific intent and the First
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`Amendment were of no surprise to the government; Defendants briefed these
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`issues extensively throughout the motion-to-dismiss stage. In response to these
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`arguments, the trial judge had held that the indictment alleged facts that, “taken as
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`true, establish [D]efendants had the specific intent to promote prostitution in
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`violation of the Travel Act.” United States v. Lacey, 423 F. Supp. 3d 748, 764 (D.
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`Ariz. 2019). Defendants have failed to show that their arguments in support of
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`jury instructions on these issues were so convincing as to require the government
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`to rethink its case.
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`3
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`2.
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`The trial judge’s pretrial ruling that escort services are legal would not
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`reasonably deter the government from trying its case. The indictment recognizes
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`that escort services are lawful, but goes on to allege that the vast majority of
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`advertisements for escort services on Backpage were thinly-veiled prostitution ads.
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`3.
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`As to Defendants’ argument that the government sought mistrial
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`because the trial had been going poorly, the government’s case-in-chief was still in
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`its infancy. Of seventy-six government witnesses, only four had testified. At
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`minimum, the government still had a clear path to prevailing at trial.
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`Accordingly, the record supports the motion judge’s conclusion that the
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`government had no reason to sabotage its own trial.
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`We also conclude that the government’s misconduct was not so egregious as
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`to compel a finding of an intent to goad. Though the record shows that the
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`government did elicit prejudicial evidence in violation of pretrial rulings, the
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`record also shows that the government generally had good-faith reasons to believe
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`its questions were within the contours of the trial judge’s rulings. On several
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`occasions, the government asked questions within the parameters set by the trial
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`judge, and a witness provided prejudicial testimony that went beyond the scope of
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`the question. In the few instances where the government asked a question that
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`clearly violated a pretrial ruling, the government had a cogent reason for doing so.
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`4
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`Lastly, we note that the government vigorously opposed Defendants’
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`motions for mistrial. Though the government’s opposition is “not conclusive,” it
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`does “support[] the district court’s finding of a lack of intent.” United States v.
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`Fowlkes, 804 F.3d 954, 972 (9th Cir. 2015).
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`For the foregoing reasons, we find that the motion judge did not clearly err
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`by finding the government did not intend to goad Defendants into moving for a
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`mistrial. We therefore affirm the motion judge’s denial of the motion to dismiss.
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`Additionally, we find that the motion judge did not abuse her discretion by
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`declining to hold an evidentiary hearing on Defendants’ motion to dismiss.
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`Defendants claim that the motion judge should have held an evidentiary hearing to
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`force the government to explain under oath its “repeated and brazen rule breaking
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`at trial.” However, the record supports the motion judge’s finding that the
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`government did not act with an intent to goad a mistrial. The motion judge did not
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`abuse her discretion by refusing to make counsel for the government explain as
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`much in an evidentiary hearing.
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`AFFIRMED.
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`5
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