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Note: Please see below for an update to this post. 

Specific Intent

During a brief hearing before Judge Diane Humetewa on Monday in Phoenix’s federal court, defense attorneys again raised an objection to statements made last week by prosecutor Austin Berry in his rebuttal to the defense’s closing statements on Wed., Nov. 1.

An attorney from the U.S. Department of Justice’s obscenity section, Berry’s ferocity and willingness to twist the facts to his purposes reminds me of that famous line sometimes attributed to Stalin’s prosecutor general, Andrey Vyshinsky: “Show me the man, and I’ll show you the crime.”

Taken as a whole, Berry’s rebuttal presumed the guilt of the defendants and pretty much anyone who ever advertised on the now-defunct classified listings site, Backpage.com. He portrayed standard online industry practices — like moderation, aggregation, and reciprocal links — as evidence of knowledge of wrongdoing.

Berry’s interpretation of the U.S. Travel Act should scare the bejeesus out of any and all social media sites because it holds that generalized knowledge of possible misuse of an interactive website by its users is enough to convict a site’s owners, operators, and employees.

The five defendants in this case, which includes Backpage’s former owner, veteran newspaperman Michael Lacey, are charged with 50 counts of violating the Travel Act through 50 ads for escorts, dating, and massage that once ran on Backpage, as well as one count of conspiracy to violate the Travel Act. Lacey and two former executives face additional money laundering and conspiracy counts.

The Travel Act is a Kennedy-era law that was passed to go after the mafia, not newspaper owners and publishers. It makes it illegal for someone to use “the mail or any facility in interstate or foreign commerce, with intent to . . . promote  . . . or facilitate . . . any unlawful activity,” which can include “any business enterprise” involving certain illicit activities, such as prostitution.

The defense argues that case law defines the Travel Act as a “specific intent” crime. That is, the defendants must have specifically intended to facilitate the business enterprises at hand  — those connected to the 50 charged ads.

It’s tough to facilitate a business enterprise that you have no knowledge of, and the prosecution cannot show that any of the five defendants on trial ever saw these 50 ads.

But Berry presented a solution to that problem in his rebuttal, one the defense insists misstates the law of the case. Berry told the jurors that “the defendants argue they had no knowledge” of these specific 50 ads, claiming that “these ads are just a sample.”

He added, “We’re not going to charge them with a million counts based upon the millions of ads” that appeared on Backpage. “That’s why there’s a conspiracy charge covering the statute, covering the 14-year life of the conspiracy . . . I’m not going to show you a jury instruction saying we must prove that any defendant had specific knowledge of these particular ads because it isn’t in there. We don’t have to do that.”

Keep in mind, that’s not just millions of felonies charged against the Backpage defendants. It’s also millions of co-conspirators. Everyone who posted an ad to the site.

Following Berry’s rebuttal, defense attorney Bruce Feder noted that Berry had tried to “disconnect” the 50 charged ads from the requirements of the conspiracy charge.

Feder raised the issue again on Thursday, Nov. 2, during a brief hearing before Humetewa. Prosecutor Andrew Stone countered, unconvincingly, that “that’s been our position the entire five years of this case,” adding, “It’s not whether these defendants know these ads, [it’s about] the maintenance of the site.”

Moderation a “Game”

On Monday, with most of the attorneys appearing via Zoom and all of their clients listening via phone, David Eisenberg, one of two defense counsels present in the flesh, joined Feder’s objection, telling the judge that “specific intent” should apply here.

Eisenberg pointed to the final jury instructions concerning the conspiracy and Travel Act charges, observing that Berry’s position seemed to contradict the court’s instructions.

“The government must prove each count,” he said.

Then he read the jury instructions on conspiracy to violate the Travel Act, which states, in part, that:

” . . . you may find a defendant guilty of committing a Travel Act crime as charged in Counts 2-51 of the indictment if the United States has proved each of the following elements beyond a reasonable doubt: First, a member of the conspiracy committed a Travel Act offense alleged in one of the Counts; Second, that person was a member of the conspiracy charged in Count 1 of the indictment; Third, that person committed the Travel Act offense in furtherance of the conspiracy . . .”

Defense attorneys Joy Bertrand and Paul Cambria joined in Eisenberg’s objection, asking the judge to inform the jury that Berry’s assertion was incorrect.

This issue of how the Travel Act is being applied in this case has been an ongoing one. In May 2020, the previous jurist in this case, Judge Susan Brnovich, denied a defense motion to dismiss based on the misapplication of the Travel Act.  The defense, at that time, complained that the 50 counts were unconnected to any “business enterprise,” as required by the law.

Brnovich wrote that this concern was premature, but she made an important observation:

“[O]ne cannot intend to promote/facilitate a business enterprise one does not know exists. But this factual hypothesis has no bearing on whether defendants are alleged to have intended to promote unlawful activity by illicit prostitution businesses, which is clearly alleged here.”

Brnovich could not dismiss the case, because the indictment was, in her opinion, adequate on its face. But the question of knowledge remains.

The government’s case is based on two assumptions: 1) that all the ads on Backpage were blatant prostitution ads; and 2) that the defendants had general knowledge that prostitution resulted from ads on the site.

If this theory prevails — that you can assume criminality, despite law enforcement stating, repeatedly that the content of the ads did not give them probable cause to make an arrest, and that general knowledge is enough to gain a conviction with federal laws — then all speech on interactive websites is at risk, because everyone who works for, helps operate, or co-owns those sites, is a possible target of federal prosecution.

Berry addressed the fact that other interactive sites deal with unwanted content in the same way as Backpage by likening it to what he called the “but, Mom,” defense. If a kid is doing something wrong, and you tell them to “knock it off,” the kid says, “But, mom, he’s doing it, too.”

Berry said: “That’s the defense here, right? You’ve all heard them talk about it, Facebook, Google, TikTok, these other things. That’s not what you’re here to evaluate about and decide.”

Do Facebook, Google, and TikTok have general knowledge that bad content is posted to their sites? You betcha. That’s why they moderate. But guess what? Prosecutor Berry doesn’t think much of moderation.

“They’re bringing people together,” Berry told the jury. “The marketplace has been created by them . . . Moderation is a game. It’s a joke. It’s not good faith.”

So is responding to subpoenas quickly according to Berry. So is cooperating with law enforcement. So is testifying against pimps. So is answering phone calls from cops looking for help concerning missing children in the middle of the night.

Not even the “little people” escape Berry’s wide, gaping net of guilt. Defendants Joye Vaught and Andrew Padilla were salaried employees and did not make company policy. But still, according to Berry, they’re as guilty as the Nazis at Nuremberg.

Berry told the jury:

“When you’re thinking about that, just because they might appear minor compared to one person or another doesn’t mean that you can’t find them guilty.”

What a mindset. Everyone is guilty. Crush them all, take their money, put them in prison. Such is the view of federal prosecutors.

Remember, the defendants are not accused have having hurt anyone.  Backpage sold ad space. And yet, the government wants to bury them in concrete and steel tombs because of acts that occurred by third parties untethered to the defendants.

All that stands between the government and the defendants is the jury. And we can only hope that jurors see past the prosecution’s duplicity.

Update: During a hearing before  Judge Humetewa on Tuesday, Nov. 7, regarding the issue of the prosecution’s misstatement of the law during its rebuttal, the defense asked the court to read a corrective statement to the jury about prosecutor Berry’s misstatement of the law, arguing that it was essentially a call for jury nullification — asking jurors to ignore the evidence and the law and find the defendants guilty. But Humetewa declined the request, saying her previous admonition to jurors that closing arguments are not evidence was enough. 

Please also see:
Parties in Backpage Trial Prepare to Battle over Seized Assets
and
Defense Counsel Joy Bertrand Belts It Out of the Park in Backpage Trial