PHOENIX (CN) — After a 10-week battle between federal prosecutors and defense attorneys, the trial against former owners and operators of Backpage.com is finally nearing its conclusion.
Attorneys representing those accused of facilitating prostitution and money laundering through their involvement in the now-defunct classified advertising website focused their closing arguments less on the evidence presented to the jury and more on what the government elected not to share.
Bruce Feder, representing former Backpage executive vice president Scott Spear, compared the prosecution to "The Wizard of Oz,” and himself to Toto, “pulling back the curtain” to reveal what the government didn’t want the jury to see.
“You’ve been misled,” he told the jury Tuesday morning. “All of the evidence has not been presented.”
Feder pointed to an exhibit first introduced by the government: a letter from the National Center for Missing and Exploited Children accusing Backpage of promoting sex trafficking and asking its owners to shut the site down.
But prosecutors erred in entering the exhibit, accidentally including a 15-page response from Backpage attorney Don Moon. The response makes direct reference to protections supposedly given to Backpage by Section 230 of the Communications Decency Act, as well as multiple examples of prior litigation in which Backpage was found without liability for either the ads on the site or the actions of advertisers and customers outside of it.
“He talked about why (Backpage) is protected by the First Amendment,” Feder told the jury.
U.S. District Judge Diane Humetewa, a Barack Obama appointee, has already ruled against admitting evidence referencing those topics.
Paul Cambria, representing former Backpage owner Michael Lacey, first brought up the response letter in his closing argument Friday, to the surprise of both Humetewa and prosecutor Kevin Rapp, who had just finished his own closing. But Cambria didn’t mention Section 230 or prior litigation, as Humetewa cut him off early, asking him not to waste time reading the entire document.
Rapp asked Humetewa Tuesday morning to strike the response letter from evidence in order to remain consistent with her previous rulings. Humetewa declined.
“The government has had several years to perfect these exhibits,” she said. “This one got through.”
Humetewa kept the exhibit in evidence, but did not allow attorneys to discuss Section 230 or prior litigation. Both Feder and Cambria urged the jury to read the response in its entirety.
Gary Lincenberg, representing former Backpage chief financial officer John Brunst, said the government failed to connect his client to any of the charged counts.
Prosecutors showed evidence of 50 payments made from Backpage to a multitude of overseas holding corporations and again back to the owners. But no connection was made between any of the adult ads and any of the wire payments, he said.
“They’re not concealed,” Lincenberg added.
Both Lincenberg and Feder insisted that the government failed to prove that any of the 50 charged ads in the indictment were illegal on their face, let alone whether any of the defendants even saw those 50 ads out of the hundreds of thousands of ads posted on the site each day for more than a decade.
Lincenberg acknowledged that prostitution occurred on the site but said that the Backpage team did its best to moderate it.
“Only one witness said anything bad about Mr. Brunst,” he said, referencing former CEO Carl Ferrer, who testified against defendants as part of his plea deal. “And that man is a liar.”
He spent a chunk of his two-hour closing argument running through examples of Ferrer’s testimony contradicting past statements he’s made about the company
Feder said both Ferrer and Dan Hyer, a former sales manager who also testified for the government in return for a lenient sentence, were “singing for their supper.”
The closing argument as to former Backpage operations manager Andrew Padilla was simple.
“His intent was not to do anything other than his job,” David Eisenberg said on Padilla’s behalf.
Eisenberg told the jury that Padilla simply moderated posts — always by removing content, never adding — in accordance with directions from his bosses. He didn’t engage in aggregation of posts or recruitment of any advertisers, Eisenberg said. Padilla even asked his superiors for more funding for the moderation department to better do his job.
Joye Bertrand, representing Padilla’s assistant Joy Vaught, will give her closing argument tomorrow. After prosecutors are given a chance for rebuttal, Humetewa will read final instructions to the jury and place the fates of the five defendants in its hands.
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