With about a month to go before jury selection is set to begin in the retrial of veteran journalists Michael Lacey and Jim Larkin, defense attorneys have filed a new motion arguing that a June 23 decision by the U.S. Supreme Court in U.S. v. Hansen backs up their arguments from a March 30 motion to dismiss, recently denied by federal Judge Diane Humetewa.

The new defense “motion for reconsideration” asks Humetewa to revisit her order denying the motion to dismiss. At issue is the correct interpretation of the U.S. Travel Act, the legal meaning of the words “promote” and  “facilitate,” and whether the government can use a watered-down definition of these words to prosecute Lacey and Larkin.

Lacey and Larkin face 50 counts of “facilitating” prostitution in violation of the Travel Act, which makes it illegal to use “the mail or any facility in interstate or foreign commerce” to promote or facilitate “a business enterprise involving” gambling, illegal liquor, narcotics, or misdemeanor state “prostitution offenses.” Another 50 counts consist of related conspiracy and money-laundering allegations.

The 50 Travel Act counts hinge on 50 specific ads posted to the classified listings site, Backpage.com, which Lacey and Larkin owned from 2004 to 2015. Backpage was a Craigslist knockoff, where users could post ads for an array of goods and services — everything from car sales and apartment rentals to legal, adult-themed ads for escorts, dating, and striptease.

Government attorneys cannot show that Lacey and Larkin ever saw these ads or knew the people who posted them. Before the FBI seized and took down the site in 2018, Backpage hosted millions of ads in 900 cities worldwide.

The 50 ads in question are not connected to specific crimes. And only one of them proposes a direct money-for-sex act proposition, which eluded Backpage’s moderation efforts since such language was verboten on the site.

Instead of linking the 50 ads to the defendants and to specific crimes, the government has pursued a novel theory of prosecution, never before tested at trial: that Lacey, Larkin, and their four co-defendants are vicariously responsible for the crimes of third parties who once posted adult-themed ads on Backpage.

The prosecution alleges Lacey and Larkin were generally aware that some adult-themed ads on the website might be associated with acts of prostitution, and so, the government contends, Backpage’s continued publication of adult ads allegedly shows an intent to facilitate prostitution.

Of course, this theory ignores the fact that a slew of federal and state courts have held Backpage’s publication of such ads to be protected both by the First Amendment and federal law.

The Gates of Janus

This is where the debate over the legal definition of “promote” and “facilitate” in the Travel Act comes in.

In Arizona’s federal court, prosecutors have maintained that “facilitate” has “its ordinary meaning, ‘to make easy or less difficult.'”

But the defense argues that “promote” and “facilitate” are “terms of art,” which have a special meaning in the law as opposed to common parlance. Defense lawyers claim these terms mean “aid and abet” — i.e., intentionally assisting the commission of a specific crime.

The motion to reconsider insists that the prosecution should be made to prove that each defendant “knew about and intended to commit each element of the underlying offenses and proof of a violation of the underlying state law.”

As Front Page Confidential pointed out in January and as defense counsel argued in its March motion to dismiss, the U.S. Department of Justice has been playing a double game.

Contrary to the DOJ’s prosecutorial stance in Arizona, DOJ attorneys recently argued in a federal appellate court in D.C. for a narrower definition of promote and facilitate: this, while defending the anti-prostitution law, the Fight Online Sex Trafficking Act (FOSTA), from a constitutional challenge from the Woodhull Freedom Foundation.

In D.C., the government argued that FOSTA and the Travel Act are essentially the same and that “To act with ‘the intent to promote or facilitate the prostitution of another person,’ is to aid and abet a crime.”

Ironically, that statement parallels the arguments of Lacey and Larkin’s attorneys concerning the words “promote” and “facilitate.”

The appellate court in D.C. has yet to rule on the FOSTA challenge.

Humetewa was unconvinced by the defense’s motion to dismiss, finding that the government’s statements in D.C. were not relevant.

But the recent SCOTUS decision in Hansen further challenges the prosecution’s assumptions in Arizona about the meaning of the Travel Act.

In its Hansen ruling, the high court declared — in relation to an immigration law — that the word “facilitate” has the same meaning as “aid and abet,” a narrower standard that would make it much harder for the government to convict Lacey and Larkin.

SCOTUS Defines ‘Facilitate’ as ‘Aid and Abet’

In U.S. v. Hansen, the Supreme Court assessed a constitutional challenge to a law that forbids “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such [activity] is or will be in violation of law.”

Attorneys for Helaman Hansen, a con artist who scammed hundreds of noncitizens out of close to $2 million with a bogus “adult adoption” scheme, argued that the immigration law violated the First Amendment because the words “induce” and “encourage” have the same meaning as in the law as in everyday speech, a broad definition that could chill speech that’s otherwise protected by the U.S. Constitution.

But in a 7-2 decision written by Justice Amy Coney Barrett, the Court found that the law was not unconstitutional on its face because the verbs “encourage” and “induce” were “terms of art,” referring to “criminal solicitation and facilitation,” which makes the law narrower in scope.

Barrett wrote that “Criminal solicitation is the intentional encouragement of an unlawful act . . . Facilitating — also called aiding and abetting — is the provision of assistance to a wrongdoer with the intent to further an offense’s commission.”

She later added that “liability for aiding and abetting requires that a wrongful act be carried out,” and both solicitation and facilitation “require an intent to bring about a particular unlawful act.”

In light of Hansen, it’s easy to see why the Lacey/Larkin defense is asking Judge Humetewa to reconsider her June 1 ruling in favor of the prosecution concerning the terms “promote” and “facilitate.”

The defense’s motion to reconsider states,

In denying the motion, the Court ruled that “specific intent to promote or facilitate prostitution” is all the indictment is required to allege and that the indictment need not “allege the underlying offense has been committed.” Further, this Court rejected Defendants’ argument that the “intent element go to the specific and entire crime charged, as it must in an aiding and abetting charge.”

The motion, written by Larkin’s attorney Joseph Roth of the Phoenix firm Osborn Maledon, adds,

“As recognized in Hansen, it is black letter law that `liability for aiding and abetting requires that a wrongful act be carried out.”

In conclusion, Roth writes,

The superseding indictment alleges that some of the people who posted the advertisements in Counts 2-51 engaged in prostitution (and alleges nothing at all about some of the advertisements, other than citing language from the ads that the government claims is suggestive of prostitution).

But that is not enough—without an allegation that each Defendant, with full and advance knowledge, aided and abetted (i.e., facilitated) the prostitution offenses of specific business enterprises and intended that those particular offenses occur, the indictment fails to state offenses for facilitation of business enterprises involving prostitution offenses in violation of state law.  

Humetewa set an expedited briefing schedule on the motion, with the government’s response due today, July 3, and the defense’s reply due July 6.

Meanwhile, the parties are awaiting the judge’s rulings on numerous pre-trial motions, known as “motions in limine.”

The government’s motions in limine made a number of outrageous requests: from forbidding any mention of the First Amendment and free speech at trial to preventing the defense from informing the jury that Lacey and Larkin have families and are lifelong newspapermen.

Scheduled for Aug. 8, the retrial is a do-over of the abortive 2021 trial of Lacey, Larkin, et al., which ended in a mistrial after just three days of testimony due to egregious prosecutorial misconduct wherein the government repeatedly violated the trial judge’s orders and introduced inflammatory material, poisoning the jury against the accused.

The government recently signaled that in August it will be presenting the same case against Lacey and Larkin as in 2021, albeit with fewer witnesses.

Will prosecutors commit the same misconduct as before, leading to yet another costly mistrial?

That remains a distinct possibility.

Please also read:
Lacey/Larkin Blast Feds’ Bid To Ban First Amendment and Free Speech
and
U.S. Attorney’s Office Wants to Ban First Amendment in Free Speech Case