The Ninth Circuit denied a prosecution request to dismiss an appeal for double jeopardy in the Lacey/Larkin case, setting an expedited briefing schedule for the coming months.
Editor’s note: Since this piece was written, the court granted a brief extension to the government, allowing it to file a response to the defense on April 14.
In a two-page order filed earlier this month, the Ninth Circuit Court of Appeals created an expedited briefing schedule for a defense appeal in the Lacey/Larkin case on the issue of double jeopardy, denying a motion from federal prosecutors to dismiss the appeal or summarily affirm a lower court’s ruling on the matter.
The Ninth’s order made March 14 the deadline for the opening brief from attorneys for storied newspapermen Michael Lacey and Jim Larkin, former owners of the classified listings site, Backpage.com. The government’s response is due
April 13 April 14, and an optional reply brief from the defense is due 21 days after the answering brief.
A new trial of Lacey, Larkin and their four co-defendants remains on hold pending the outcome of this appeal, which regards the Fifth Amendment’s prohibition on trying someone twice for the same offense. Lacey and Larkin contend that the Constitution’s double jeopardy rule applies to their Sept. 2021 trial on 100 counts facilitating misdemeanor state prostitution offenses in violation of the U.S. Travel Act, conspiracy and money laundering.
On Sept. 14, after eight days of proceedings, U. S. District Court Judge Susan Brnovich granted a defense motion for a mistrial, ruling that the prosecution repeatedly prejudiced the jury with references to heinous acts that Lacey, Larkin, et al. are not charged with: i.e., sex trafficking and child sex trafficking, which involve adults coerced into the sex trade, or minors, who by law cannot consent.
“Mistrial was the natural and foreseeable consequence of the government’s course of conduct.” — from a recent defense pleading in the Lacey/Larkin case
In direct violation of the First Amendment, the federal government seeks to hold Lacey and Larkin vicariously liable for speech posted by Backpage’s users to the massage, escort and dating sections of Backpage, a Craigslist-like classified listings site that the FBI seized on April 6, 2018, the same day Lacey and Larkin were arrested, their homes raided at gunpoint and their assets seized in an effort to crush their defense.
Despite this overkill, the feds’ case has problems aplenty. Federal and state courts have consistently found the ambiguous language of adult-themed advertising on Backpage and elsewhere to be protected by the First Amendment and Section 230 of the Communications Decency Act, the federal statute that largely holds users responsible for what they post on interactive websites.
In fact, one of the government’s own witnesses, California special agent Brian Fichtner, admitted at trial that Backpage’s escort ads were, on their face, legal and by themselves could not serve as probable cause for a prostitution arrest.
Regardless, the feds chose to smear Lacey and Larkin and doubled down on that smear, despite Judge Brnovich’s admonitions not to emphasize sex trafficking and child sex trafficking. In declaring a mistrial, Brnovich said she had given prosecutors “some leeway,” because she had previously ruled that sex trafficking and child sex trafficking were subsets of prostitution.
“Yet in the opening, and with every witness thereafter, it seems, the government has abused that leeway,” she explained.
Brnovich said she did not believe the government had committed “intentional misconduct,” but the “cumulative effect” of the government’s misdeeds was something she could not overlook. The judge later scheduled a new trial to begin Feb. 9.
Then on Oct. 29, Brnovich recused herself without explanation. Federal Judge Diane Humetewa was assigned by lot to take Brnovich’s place. Meanwhile, the defense filed a motion for dismissal with the district court on the grounds of double jeopardy.
For double jeopardy to apply in a case where the defense sought and obtained a mistrial from the court, the defense must show that the prosecution intended to “goad” the defense into calling for a mistrial.
The U.S. Supreme Court established this rule in its 1982 decision in Oregon v. Kennedy, which found that a defendant “may invoke the bar of double jeopardy in a second effort to try him only if the conduct giving rise to the successful motion for a mistrial was prosecutorial or judicial conduct intended to provoke the defendant into moving for a mistrial.”
In pleadings and oral arguments before Judge Humetewa, the defense argued that the prosecution deliberately and repeatedly ignored Judge Brnovich’s instructions to avoid discussing prejudicial material before the jury, knowing that this would force defense attorneys to move for a mistrial.
The defense so moved on three occasions due to the outrageous conduct of the prosecutors, and Brnovich granted it the third time. The judge noted that the government’s inflammatory opening statement, delivered by U.S. Department of Justice trial attorney Reggie Jones, “was close to causing a mistrial” on its own.
Not only did Jones conflate legal sex work with illegal sex work and consensual prostitution with sex trafficking, Jones mentioned children and child sex trafficking around 40 times during his opening. He even showed the jury X-rated images that never appeared on Backpage.
The prosecution compounded the damage by eliciting testimony from two witnesses that delved into accounts of rape and allegations regarding child sex trafficking that had nothing to do with the defendants. But the prosecution denied any effort to force a mistrial, citing Brnovich’s statement that she did not believe the prosecution’s misconduct was “intentional.”
Ultimately, Judge Humetewa sided with the prosecution.
In an opinion published at the end of December, Humetewa ruled the defense’s contention that the government “sought to infect the trial with irrelevant and prejudicial material” was “not borne out by the record.” In her view, the prosecution had not committed misconduct, nor could the defense demonstrate that the Government “deliberately presented its case in a way to bring about a mistrial.”
In early January, the defense filed a notice that it was appealing Humetewa’s ruling to the Ninth Circuit, which subsequently scheduled the defense’s initial filing to be due by April 4, and the government’s response by May 4.
Shortly thereafter, Humetewa vacated the trial date, while the appeal was ongoing.
On Jan. 14, the prosecution filed a motion asking the Ninth to “dismiss this interlocutory criminal appeal and summarily affirm the district court’s order, or alternatively, to expedite” the appeal.
Prosecutors argued that the court lacked jurisdiction because the appeal “has no chance of success.” Nor, according to the government, did the Ninth have jurisdiction to address other claims of misconduct raised by the defense before Humetewa.
Naturally, the defense demurred, arguing in its response that the court has the jurisdiction to consider the double jeopardy claim and perhaps other issues addressed in Humetewa’s order, such as the government’s suppression of potentially exculpatory evidence and the prosecution’s repeated, willful invasion of the defendants’ attorney-client privilege.
As for the prosecution’s assertion that a double jeopardy appeal has “no chance” of succeeding, the defense contends there is “objective proof of the prosecution’s intent to goad appellants” into a calling for a mistrial.
“This was not a case of isolated or occasional misconduct by the government,” reads the defense pleading.
“Instead, a seasoned prosecutorial team repeatedly and plainly violated the trial judge’s pretrial orders and trial rulings. Mistrial was the natural and foreseeable consequence of the government’s course of conduct.”
In its Feb. 4 ruling, the Ninth denied the government’s “motion to dismiss or summarily affirm” without prejudice, allowing the government to renew its motion “following the submission of appellants’ opening brief.”
The court also granted the government’s motion to expedite “in part,” choosing to speed up the process, but not to the extent the government wanted.
Regarding the government’s filings in this appeal, it’s difficult to imagine a more disingenuous collection of cavils. The government brought this prosecution in bad faith and chose to ignore the actual charges against Lacey and Larkin in favor of a campaign of falsehoods, half-truths and calumny that would make Joe McCarthy’s corpse blush.
The inevitable result of such dissembling? Mistrial. It remains to be seen if recent history will repeat itself in the near future.