Jury's still out in the Backpage trial. Meanwhile, the government makes a last-minute disclosure, and a defense attorney moves for dismissal.
This post repurposes recent Twitter/X reports from the #BackpageTrial in Phoenix’s Sandra Day O’Connor U.S. Courthouse. For regular updates, please follow the writer @stephenlemons.
Nothing to See Here, Move Along
At the Backpage trial in federal court in Phoenix, a bit of a bombshell occurred on Thursday, Nov. 9, with the jury still in deliberations.
Defense attorney Gary Lincenberg asked the court to dismiss the case based on the late revelation of a lengthy document that should have been disclosed to the defense as “Jencks material,” which refers to prior statements or documents used by government witnesses that should be turned over to the defense after direct examination.
The rule is enshrined in federal law as the Jencks Act, named for famed labor organizer Clinton Jencks, whose false federal prosecution was overturned by the U.S. Supreme Court’s 1957 decision in Jencks v. United States.
This recently-revealed Jencks material consists of a 91-page document created in part by former IRS agent Quoc Thai, who testified during the trial as to the money laundering counts.
Three of the five defendants face various money laundering accusations: veteran newspaperman and former Backpage co-owner, Michael Lacey; and two former executives, Jed Brunst and Scott Spear. Meanwhile, all five defendants, including former Backpage employees, Andrew Padilla and Joye Vaught, are charged with facilitating misdemeanor/petty state prostitution offenses in violation of the U.S. Travel Act.
Lincenberg, who is Brunst’s attorney, argued that this 91-page report could have been used to impeach both Thai and the government’s star witness, Carl Ferrer.
Lincenberg told Judge Diane Humetewa that the document is relevant and should have been disclosed previously, though it had just been emailed to the defense the night before.
The judge looked seriously pissed.
Assistant U.S. Attorney Andy Stone tried a save, telling the judge that the document simply contained information that had been previously disclosed to the defense. The report related only to the money laundering counts, he said, and only to Quoc Thai’s testimony, not to Ferrer’s.
Lincenberg countered that the report recounts how Ferrer helped the feds trace funds, saying that part of it referred to the creation of holding companies and why there are different reasons why holding companies are made.
The defense attorney called it “a clear Jencks Act violation,” and at a minimum, he said, the judge should strike Quoc Thai’s testimony and any of Ferrer’s testimony concerning money laundering. Doing so would result in “the dismissal of the money laundering counts.”
Prosecutor Stone said the document was sent to the government in October by Thai shortly after he testified. Stone said the government is disclosing it now because it relates to possible forfeiture proceedings in the case of a guilty verdict.
Stone claimed it was a draft, and that there was “nothing new here.”
Lincenberg pointed out that Quoc Thai said in his email to the prosecution that he and another federal agent put the document together “years ago.” But it was no less a statement from the witness than if it were “an updated version.” Lincenberg asked the judge for “a remedy with some teeth,” and moved that the government produce all emails associated with this document.
Humetewa said she was not going to compel further production from the government “at this juncture.” She ordered both sides to brief her on the matter by noon on Monday. She then complained that “no one adheres to deadlines or my orders.” So “this doesn’t come as a surprise,” she said before recessing.
This latest, alleged blunder is in fact part of a persistent pattern of prosecutorial misconduct in this case, including the broad destruction of evidence (i.e., the Backpage website itself), the seizure of assets as a means of impoverishing the defense, the trampling of the First Amendment, the government’s blocking of exculpatory evidence, and the 2021 mistrial itself, which the prosecution caused.
The government is not interested in justice but in crushing dissidents, anyone who speaks out, exposes corruption, or simply will not kowtow, people such as Michael Lacey, who has opposed governmental abuses of power all his life, and Lacey’s lifelong business partner, Jim Larkin, who took his own life rather than kneel before Zod.