PHOENIX (CN) — After four days of deliberation, it seems a jury is no closer to a verdict on the 100 felony counts stacked against former owners and operators of Backpage.com
A juror sent a note to the presiding judge in the federal case Tuesday afternoon indicating that the 12-person jury has come to a unanimous decision on only one of the 100 counts.
“I feel that personal feelings, emotions and what-if opinions have brought us to a standstill,” a juror wrote in the note. "I feel this has become a hung jury.”
Two jurors signed the note. Last week, jurors asked the judge what happens if they can’t agree on every count.
If a jury can’t come to a decision on one or more counts, the jury is considered hung. Often this leads to a retrial on whichever counts weren’t decided.
This case is already in its second trial. The first was declared a mistrial in 2021.
The jury was tasked with deliberating charges against Michael Lacey, co-founder and former owner of the classified advertising website Backpage, two former executives and two former employees, who are collectively accused of facilitating prostitution in violation of the U.S. Travel Act and money laundering through their operation of Backpage.
Federal prosecutors say the website’s adult section ran rampant with prostitution ads disguised as legal adult services like escorts and sensual body rubs. Fifty of the 100 counts in the federal indictment apply to 50 specific ads that ran on the site before the FBI shut it down in 2018.
The first count, applied to all defendants, is conspiracy to facilitate prostitution. Counts 52 through 100 are money laundering charges brought against Lacey and the two other executives: former chief financial officer John Brunst and former executive vice president Scott Spear.
The jury also asked the judge for a definition of the term “concealment,” indicating disagreement over the money laundering charges. U.S. District Judge Diane Humetewa, a Barack Obama appointee, gave the jury a definition, and called jurors into the courtroom to reiterate previous instructions, telling them to take their time, consider all the evidence, and to reevaluate their own opinions to reach a unanimous decision.
Earlier in the day, the jury asked the judge whether a defendant can be convicted on one or more of the specific prostitution charges if they’re found innocent of the underlying conspiracy charge.
“The obvious answer is yes,” Humetewa said to the parties, who had gathered to discuss what answer to submit back to the jury.
The government agreed, reasoning that each count in the indictment should be considered individually.
Defense attorneys differed. They told Humetewa that a defendant must be found to be part of a conspiracy to be found guilty of any actions taken in support of that conspiracy.
Ultimately, Humetewa told the jury “yes.”
Defense attorneys lodged their sixth motion for mistrial last week, this time claiming that prosecutors failed to disclose a document that should have been provided in discovery.
The document is a 90-page draft of an “asset tracing report” prepared by an IRS investigator in anticipation of a civil forfeiture proceeding, assuming a guilty verdict on the money laundering counts. The government sent defense attorneys the document Wednesday.
Gary Lincenberg, representing Brunst, told Humetewa Tuesday that the information in the draft contradicts statements made by IRS investigator Quoc Thai during his testimony in trial, and that the defense could have used the document to impeach both Thai and Carl Ferrer, former Backpage CEO who took a plea deal and testified against the defendants.
But the government pointed out that all the information included in the draft was copied into civil forfeiture affidavits that were already disclosed to defendants in discovery. So, the document didn’t contain any information that defendants didn’t already possess at time of trial.
Prosecutors clarified that neither Thai nor Ferrer had hands in writing or approving the document, so it doesn’t qualify as a witness statement that should have been disclosed.
The evidentiary hearing barely got off the ground before Lincenberg struck a nerve with Humetewa in suggesting that her regard of the document “goes against common sense.”
“Mr. Lincenberg, you try my patience on numerous occasions,” she chastised. “Never in my time on the bench have I been accused of going against common sense.”
Humetewa threatened to ask Lincenberg’s co-counsel to take over for him, to which Lacey muttered “Jesus Christ,” under his breath, just audible enough to be heard by the whole courtroom.
“And I will have silence in the courtroom,” Humetewa chided.
“I didn’t say anything,” Lacey’s attorney Paul Cambria replied. “I didn’t say anything.”
The evidentiary hearing to decide whether the draft document should have been disclosed will continue at 11 a.m. on Wednesday.
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