Government lawyers claim defense attorneys should never see their instructions to the grand jury in the Lacey/Larkin case, even if their instructions were wrong.
In a fascinating and frankly frightening admission made as part of a recent government filing in the prosecution of veteran journalists Michael Lacey and Jim Larkin, federal prosecutors in Phoenix claim they are not required to inform grand juries about the laws at issue in an indictment.
Even if prosecutors mislead a grand jury on the law, defense attorneys should not be allowed to view a partial transcript of the grand jury proceedings, lawyers for the Department of Justice also contend.
“[T]here is no requirement to even instruct the grand jury,” writes U.S. Attorney Kevin Rapp in the pleading. “Moreover, any mistakes in the instructions (or failure to instruct for that matter) can readily be cured by the petit jury at trial.”
Not only can a prosecutor get a grand jury to indict a ham sandwich, if they screw up in doing so, it’s no big deal, because a trial will put the issue to rest, goes the argument.
So why bother letting the defense eyeball a tiny portion of the grand jury record?
Rapp’s stance is reminiscent of South Park‘s clueless town constable, Officer Barbrady, known for such lines as, “Okay, move along people, there’s nothing to see here,” and, “Cows turn themselves inside out all the time.”
The prosecutor’s Kafkaesque commentary came after the judge in the case, U.S. District Court Judge Susan Brnovich, issued a February 11 order, telling the prosecution to make the grand jury’s instructions available to her in camera, meaning she would review them on her own, in her chambers, to suss out the nature of what she called “the specter of inadequate grand jury instruction” concerning the U.S. Travel Act.
Lacey and Larkin and four other co-defendants have been indicted on 100 counts of conspiracy, money laundering, and the facilitation of prostitution across state lines under the 1961 act, which was originally designed to go after mobsters, not newspapermen.
But the feds argue that the alt-newspaper pioneers are vicariously responsible for illicit acts that allegedly occurred as a result of adult ads posted by users to the online listings colossus, Backpage.com, which Lacey and Larkin sold in 2015.
The vast majority of all of Backpage’s listings were for ordinary commercial offers, such as yard sales and apartments for rent. A minority were for dating and legal adult services such as massage, phone sex, strippers, escorts and the like. The government broadly asserts that all of these adult ads — millions in toto — were, on their face, obviously illegal, and not protected by the First Amendment.
“Once the grand jury returns the indictment, there’s really no need for secrecy anymore, except in limited circumstances . . . none of which apply to Backpage.” — Tucson defense attorney and former Arizona State Bar President, Michael Piccarreta
In order to advance this specious claim, the government has engaged in a number of egregious violations of civil liberties, including the destruction of the website and the epic seizure of all of the defendants’ assets, including millions of dollars that had nothing to do with Backpage.
(Note: Lacey and Larkin once owned a chain of newsweeklies that they operated for more than 40 years before selling their interests in the business to company executives in 2012.)
In addition, using a federal grand jury as its mace, the DOJ brought charges against Lacey and Larkin that, amazingly, do not track the actual language in the U.S. Travel Act.
The pertinent portion of the law makes it illegal to use “the mail or any facility in interstate or foreign commerce” with intent to “promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any . . . any business enterprise” involving a various crimes, such as, “prostitution offenses in violation of the laws of the State in which they are committed or of the United States.”
But as Ariel Neuman, an attorney for one of Lacey and Larkin’s co-defendants, explained in a motion filed September of last year, the government’s 92-page superseding indictment alleges that the defendants “facilitated prostitution in general,” instead of “any specific, identifiable `business enterprise’ that violated specific state laws.”
Neuman points out that, therefore, the indictment fails on its most basic level, which is, “to contain the elements of the offense and advise the defendants how they allegedly violated them.”
Nowhere in the indictment does the prosecution identify the business enterprise or enterprises that the defendants knowingly and specifically intended to facilitate.
Nor is Backpage itself the “business enterprise” involved.
From Neuman’s motion:
To be clear, the Superseding Indictment does not allege that Backpage.com was a “business enterprise involving . . . prostitution offenses” . . . nor could it. The government does not contend that Backpage.com, a general-purpose classified advertising website, was a prostitution business, masquerading, for example, as a legal escort service. It was not a prostitute, it was not a “pimp,” and it was not a brothel. The government’s theory in the Superseding Indictment is clear: Backpage.com provided a forum for others to post advertisements, including advertisements posted by persons involved in prostitution, thereby “facilitating” prostitution . . .
Rather than identify the requisite “business enterprise,” the indictment alleges that the “unlawful activity” here was “prostitution” in general, conducted by unknown, unaffiliated, and diffuse persons spread across 49 states and parts of Nevada (and elsewhere) – not an “enterprise” as defined in 18 U.S.C. § 1961(4), and certainly not a particular “business enterprise” as required by the Travel Act.
Asserting that the indictment is fatally flawed, Neuman asked the judge to dismiss the indictment.
Rapp’s Hoof-in-Mouth Routine
During a hearing before Judge Brnovich on January 29, DOJ lawyer Peter Kozinets told the judge that every allusion to a pimp or sex worker in the indictment described a “continuous criminal activity,” which constituted a “business enterprise,” though the government never bothered to define these alleged business enterprises in the indictment.
Brnovich indicated that she needed more than Kozinets’ avowals. Noting the use of the phrase “promoting prostitution” throughout the indictment, she said the defense motion “raises a particularized need for disclosure of the instructions to the grand jury.”
Kozinets deferred to prosecutor Rapp, whom Kozinets said “kind of handled” the “briefing regarding the grand jury issue.”
Rapp then inserted a wingtip into his oral cavity and told Brnovich that it “was presumed the grand jury was read the statute and they understood the issue.” He added, “as the court knows, we never transcribe those instructions.”
Neuman shot back that he may have misunderstood Rapp, but, he’d be surprised if the jury instructions had not been transcribed, as is necessitated by rules of federal court. If they weren’t, “then we have a much bigger problem.”
Rapp clarified: there was a court reporter present, and of course the instructions were transcribed, but prosecutors never request a transcript, “because it’s never asked for.”
A little over a week later, Brnovich ordered the grand jury’s instructions produced for her review. The defense quickly filed a request for a gander as well, resulting in Rapp’s response, as described above.
The prosecution has since made the instructions available to Brnovich, who has yet to rule on whether or not the defense can eyeball them. In January, Brnovich denied a similar request by the defense to review the entire grand jury transcript, made on different grounds.
Tucson attorney Michael Piccarreta, a former president of the State Bar of Arizona, told Front Page Confidential that he finds the government’s attempt to keep the defense from seeing the jury instructions to be “suspicious” and one of a number of troubling aspects of the case.
Piccarreta represented one of Lacey and Larkin’s co-defendants for nearly a year, but he and another attorney were forced to withdraw from the case after the government seized assets set aside for their clients’ defense.
He observed that though grand juries operate in secret, the need for secrecy dissipates after the indictment is made public.
“Once the grand jury returns the indictment, there’s really no need for secrecy anymore, except in limited circumstances,” he says. “And there are those — none of which apply to Backpage.”
What Is the Prosecution Hiding?
On the state level, grand jury transcripts are “produced virtually in every case without incident,” and both sides can examine such transcripts and raise issues with the court, Piccarreta says. On the federal level, it’s discretionary and up to the court.
“And in most courts, if you’re not going to get it, there should be a good reason why not,” he explains.
A good reason would not be that it’s harmful to the prosecution’s case, but instead, that there are “secret witnesses or the need to protect some person.” But those issues are not in play in the Lacey and Larkin case.
Asked about Rapp’s assertion that prosecutors have no obligation to instruct the grand jury on the law, Piccarreta called it a “ridiculous” statement.
“And they’ll probably have to defend those statements if the case goes up to the Ninth Circuit [on appeal],” he says. “But right now, there must be something in there they don’t want people to see.”
The remedy for a flawed grand jury presentation could depend on the seriousness of the mistake. And, if there are flaws in the indictment, “that’s a pretty good assumption that there were some problems with the presentation.”
For Piccarreta, it’s just one of many irregularities with the case.
For instance, while still involved with the defense, he sent a notice to the government to preserve the server evidence, which was not done. During a three day hearing last year, FBI agents conceded that they could have preserved the website by taking it offline and making it “read only,” but chose not to.
Instead, the FBI haphazardly dismantled the site’s servers without bothering to make a record of how they interacted, making it highly unlikely that the site could be reassembled for defense purposes.
As for the seizure of attorneys’ fees nine months into a case, from a business that had been operating legally until it was seized, Piccarreta says he’d never seen it in his 45 years as an attorney.
He believes the government’s plan from jump was to tie up money for the defense, seriously handicapping efforts to counter the prosecution.
“The government’s actions are really over the top,” says Piccarreta. “Someone needs to call them on it.”
Meanwhile, serious questions about how the prosecution unfolded remain unanswered, including why Lacey and Larkin have been targeted by the feds.
“I think there’s a lot bubbling below the surface,” Piccarreta says. ” And I don’t know whether it will ever get to the surface or not or whether it will just be, you know, kept in the bowels of the Barr Justice Department.”