Backpage creator Michael Lacey dodges prostitution conviction

The federal government indicted Lacey, Larkin, Ferrer and five others, accusing them of facilitating prostitution through the site’s adult section, from which Backpage made the vast majority of its money. 

Ferrer and former sales director Dan Hyer pleaded guilty in 2018, and testified for the government as part of their deals. The rest pleaded not guilty. 

Prosecutors told the jury over the course of a two-month trial that the ads listed in the adult section, which advertised services like escorts and sensual body rubs, were prostitution ads disguised as legitimate adult business enterprises. 

The defendants insisted that the website’s moderation team worked diligently to remove prostitution from its site, pointing to numerous law enforcement agencies that used Backpage to catch pimps and prostitutes and thanked the team for its help in busting illegal activity. 

Multiple police witnesses said they couldn’t make prostitution arrests based on the content in the ads on their face, as they didn’t make explicit offers of sex for money. The defendants argued this proved their actions were legal, as they can’t be held responsible for anything users do outside the website. 

The government countered the defendants knew of and encouraged the use of coded language in ads to avoid detection by law enforcement.

The case went to trial first in 2021, but the judge declared a mistrial because the government repeatedly mentioned child sex trafficking. While critics accused the website of promoting child trafficking, defendants never faced such criminal charges.

The second trial, refereed by U.S. District Judge Diane Humetewa — the fourth federal judge to helm the case — began the last week of August, with closing arguments ending Oct. 31. The jury began deliberating on Nov. 7, after taking five days off following a Covid-19 scare.

The second trial moved slowly. Larkin’s death pushed the trial back three weeks, and a defendant caught Covid-19 during opening arguments, delaying it by another week.

Defense attorneys made six motions for mistrial over the nine-week period, claiming that the government’s transgression outshined what constituted mistrial the first time around.

The defense complained three times of references to child sex trafficking, invoking the same issue that raised its head in 2021. Another motion was made in mid-October after a court security officer told two jurors about Larkin’s death. Two others came regarding the disclosure of documents between parties. 

Humetewa, a Barack Obama appointee, denied five of the six, pushing the trial forward to its conclusion. The final motion is still pending.

The case brought salient questions regarding free speech and internet communications laws, namely whether an internet service provider can be held liable for third-party speech posted on its platform. Humetewa barred the defense from telling the jury about Section 230 of the Communications Decency Act — the law that would hypothetically protect the defendants’ actions — because the section applies only to state crimes, not federal crimes. 

The government also argued that Backpage lost its Section 230 protections by seeking to attract pimps and prostitutes to the site. U.S. District Judge Susan Brnovich, a Donald Trump appointee who declared the first mistrial and then recused herself from the case, agreed. 

While a verdict has been returned, there are a few outstanding issues for the court to address.

Two late disclosures by the government in the past week have raised issues for defense attorneys, who say information contained in the belatedly-shared documents could have been used to cross examine multiple government witnesses, including Carl Ferrer. One such document is a 90-page asset-tracing report prepared by an IRS investigator looking into the money laundering claims. Another is a set of emails between Ferrer and that investigator.

Humetewa still hasn't ruled on whether the documents include exculpatory information.

Also active are the Rule 29 motions for acquittal pertaining to Lacey, Spear and Brunst. Humetewa told the defendants to submit a supplement to their oral motions by Nov. 29. She will likely schedule a hearing in the first week of December.

Finally, the judge still hasn't ruled on the government's motion to issue a protective order over some of the exhibits, which came after a local reporter asked the court how to access them. Trial exhibits are public record and subject to disclosure, but the government told Humetewa that because many of the exhibits are sexual ads containing images of minors, they should be held from disclosure to protect the identity of the women in them. It's unclear when she will rule on that motion.

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