The government claims the U.S. Travel Act means one thing in the Woodhull case, another in the Lacey/Larkin case; a new defense motion argues the feds can't have it both ways.
Should the U.S. Department of Justice get to decide that a federal law means one thing in the five-year-old criminal case in Arizona against veteran newspapermen and ex-Backpage owners Jim Larkin and Michael Lacey, while, at the same time, arguing that the law means something else entirely before the U.S. Court of Appeals for the District of Columbia Circuit?
In other words, do the feds get to argue that the world is round in D.C., while asserting that it’s as flat as a pancake in Arizona?
Such is the situation described by Lacey and Larkin’s attorneys in a new defense motion to dismiss filed last week in federal court in Phoenix. The brief argues that the DOJ’s indictment and prosecution of Lacey, Larkin and four others in Arizona for “promoting” or “facilitating” misdemeanor state prostitution offenses in violation of the U.S. Travel Act is fatally flawed and should be dismissed.
The motion points to the government’s stance before the D.C. Appeals Court in Woodhull vs. U.S., the Woodhull Freedom Foundation’s constitutional challenge to the Fight Online Sex Trafficking Act (FOSTA), which makes it illegal to own, manage, or operate an interactive computer service — or conspire or attempt to do so — “with the intent to promote or facilitate the prostitution of another person.”
As I described in a January post, the Woodhull plaintiffs argue that FOSTA is impermissibly broad and violates the First Amendment rights of groups advocating for sex worker rights or the decriminalization of prostitution, as well as a host of others.
To thwart this overbreadth argument by the plaintiffs, the feds argue in Woodhull that when it comes to the verbs “promote” and “facilitate,” FOSTA is the same as the Travel Act, in that the words are legal “terms of art” and do not have the same meanings as in everyday speech.
In the Woodhull case, the government argues that, “To act with the ‘intent to promote or facilitate the prostitution of another person,’ is to aid and abet a crime.” But in the Lacey/Larkin case, federal prosecutors demand a far broader interpretation of “promote or facilitate.”
Instead, DOJ attorneys assert that the phrase “promote or facilitate” is the same as “aid and abet,” which requires proof that the defendant intended to facilitate the commission of a specific underlying criminal act — in this case, prostitution.
Meanwhile, 3,000 miles away in Arizona in the Lacey/Larkin case, prosecutors have consistently fought such an interpretation, arguing that “promote” and “facilitate” are much broader and open to various meanings. By contrast, the Lacey/Larkin defense has pushed for the court to use a narrower standard, akin to what the government wants in Woodhull.
Significantly, that higher “aid and abet” standard would make it much more difficult for the federal government to convict Lacey and Larkin and send the two septuagenarians to prison for the rest of their lives.
The defense’s motion to dismiss argues that the government should not be allowed to railroad Lacey and Larkin, using a broader legal standard for the Travel Act in Arizona; especially, since the DOJ is simultaneously attempting to thwart a constitutional challenge on the other side of the country by insisting that the Travel Act should adhere to a far more stringent standard.
Doing so, the motion states, violates Lacey and Larkin’s Fifth Amendment right to due process.
Courts have held that due process requires that an indictment contain the elements of the charged offenses, informing the accused of what allegations he or she must defend against, something the government has failed to do for Lacey and Larkin.
Mistrial and Retrial
Notably, the DOJ seeks to hold Lacey, Larkin, et al. vicariously liable for criminal acts allegedly connected to ads posted on Backpage by its users for dating, massage, and escorts — adult-themed ads that ran alongside millions of ads for mundane goods and services, like yard sales and apartments for rent.
The government alleges both men knew, in general, that the “adult” ads on Backpage could result in criminal acts of prostitution. However, the government cannot show that Lacey and Larkin ever saw the ads mentioned in the indictment, much less knew the individuals posting them or any offenses they may have committed.
It’s a ludicrous theory on its face — like prosecuting Seagrams for facilitating manslaughter because the company is generally aware people might drink its products to excess, then drive and crash into others. Or charging a gun manufacturer with promoting murder because it generally knows its firearms have been used to commit homicides.
But in the lead-up to Lacey and Larkin’s first trial in September 2021 — which ended in a mistrial after just three days of testimony due to prosecutorial misconduct — it is this broad, generalized standard of guilt that prosecutors insisted on and still insist on, as the case is scheduled to be retried on August 8.
As the dismissal motion explains, prior to the 2021 trial, the defense proposed a jury instruction saying that the prosecution must prove that each defendant “knowingly did an act which the law forbids, purposely and intending to violate the law.”
During an oral argument in Woodhull, a DOJ attorney admitted that the government didn’t need FOSTA to go after Backpage, saying, “Everything that’s prosecutable under [FOSTA] was already prosecutable under the Travel Act.”
But the government objected, responding that under the Travel Act, it did not have to prove a violation of a state law (in this case, prostitution) and that “facilitate” has “its ordinary meaning, ‘to make easy or less difficult.'”
The defense references the Ninth Circuit’s Model Jury Instructions, which offers a three-part requirement for a finding of guilt in an aiding and abetting statute: “(1) ‘someone else committed’ an offense, (2) the defendant aided at least one element of the offense, and (3) the defendant acted ‘with the intent to facilitate’ the criminal offense.”
Further, defendant’s state of mind, or mens rea, “must go to the specific and entire crime charged.”
The prosecutors in the Lacey/Larkin case cannot satisfy these conditions.
Yet, in the Woodhull challenge in D.C., the government argues that FOSTA and the Travel Act each require that this strict “aiding and abetting” standard be met.
The Woodhull Rule
In its brief before the appellate court in D.C., the government states: “To act with the ‘intent to promote or facilitate the prostitution of another person,’ is to aid and abet a crime.”
The D.C. appeals court has yet to issue a decision on the Woodhull appeal, but the government in the Lacey/Larkin case has taken the opposite tack from their colleagues back east when it comes to the meaning of the Travel Act.
Railroading Lacey and Larkin for the acts of third-parties requires that the law be more pliable, allowing prosecutors to extend criminal liability to absurd lengths.
For instance, the indictment cites 50 ads out of the millions that once ran on Backpage before the government took it down in April 2018. But the prosecution does not link these 50 ads to specific acts of prostitution, as would be required under an “aiding and abetting” standard.
Nor can the government connect the ads to Lacey, Larkin, et al.
The defense’s motion to dismiss states:
” . . the Superseding Indictment fails to allege the elements of aiding and abetting as required. Rather, it charges 50 separate substantive Travel Act offenses based on Backpage’s publication of 50 ads, contending that each ad was likely for prostitution, regardless of whether the text proposes an unlawful transaction. The indictment fails to allege that any ad was linked to a specific prostitution offense, that any Defendant was aware of that specific offense, or that any Defendant ‘intend[ed] to facilitate that offense’s commission.’
“A person (even a known prostitute) could not be prosecuted solely on the allegation that she posted an ad stating, for example: ‘HOTTEST in town!!!!!- 26’ . . . Nor should the ad allow prosecution of Defendants, who were several steps removed as alleged operators and owners of the web platform where the ad was one among millions posted by third parties.”
The motion also observes that the indictment “makes no distinction between illegal and legal ads.”
For instance, the escort industry is legal and regulated in Arizona, where anyone “can place an ad for lawful services, including lawful sexual services.” This could include paying someone to “privately model lingerie or to privately perform a striptease.”
This issue came up in the first trial during the testimony of a prosecution witness, a supervisory special agent with the California Attorney General’s Office, who admitted under cross-examination that the content of the ads he reviewed were legal and that he would practically have to be in the room with an escort and a client to know if an encounter crossed the line into prostitution.
If a law enforcement officer trained to spot illicit activity could not look at the ambiguously-worded content of an adult-themed ad on Backpage and determine if it was illegal on its face, how can the government expect Backpage’s ex-owners and execs to have done so?
While it was in existence, Backpage racked up a number of wins in federal and state courts, which ruled the site was protected by federal law and the First Amendment. Backpage’s owners and administrators had every reason to believe they were operating legally. Now the government wants to rig the game to increase its already unfair advantage.
It’s part of a pattern and practice of prosecutorial misconduct in this case that includes: impoverishing the defense through asset seizures; destroying the website and a massive amount of exculpatory evidence with it; and causing a mistrial by repeatedly mentioning or eliciting testimony regarding inflammatory subjects, such as trafficking and child sex trafficking, with which the defendants are not charged.
Should we be surprised? At the oral argument in D.C. in the Woodhull appeal, DOJ attorney Joseph Busa told the court, “Everything that’s prosecutable under [FOSTA] was already prosecutable under the Travel Act.”
Contrary to the pronouncements of numerous members of Congress, FOSTA was not needed to “take down” Backpage. Politicians of both parties overwhelming passed it anyway, with President Trump signing it into law five days after Lacey and Larkin were arrested.
The double whammy of Backpage’s eradication and FOSTA’s passage was catastrophic, with a number of websites self-censoring out of fear.
Adult-themed ads fled overseas, leaving law enforcement without the tools it possessed when it partnered with Backpage to rescue vulnerable women and children.
Is the federal government ever held accountable for its mendacity and misbehavior?
Rarely, it seems, if ever.
And yet, the harm and the havoc it causes is immense and done with near-universal impunity.
Which is why so few people accused of crimes in federal court — a mere two percent — take their cases to trial.
They cannot all be guilty.
Lacey, Larkin, et al. certainly are not.