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August 21, 2024
Lots of notable front page sentencing issues in next week's sentencing of Backpage
I have not closely followed the legal sagas that have surrounded the website Backpage, which was the huge classified advertising website shut down and seized by federal law enforcement in April 2018. But next week the Backpage saga has a federal sentencing stage, and this Law360 piece provides a flavor for just some of the issues raised:
Prosecutors asked an Arizona federal judge Monday to sentence two former executives of the defunct classifieds service Backpage.com and the site's co-founder to 20 years in prison after they were found guilty of several counts over an alleged $500 million prostitution scheme.
In a sentencing memorandum, prosecutors said the crimes former executives Scott Spear and John Brunst and Backpage co-founder Michael Lacey were convicted of caused extraordinary harm and amounted to "one of the internet's largest and longest-running criminal empires."
Prosecutors say the website facilitated prostitution through ads. Spear and Brunst were convicted of multiple counts after a 28-day trial in November while two other executives were acquitted. Lacey was found guilty of one count of money laundering; the jury was deadlocked on dozens of other charges against him. The mixed verdict ended a sprawling case that saw its first trial end in a mistrial in 2021....
In April, U.S. District Judge Diane J. Humetewa rejected some of the jury's findings, tossing nearly three dozen transactional money laundering charges, as well as Travel Act charges against Lacey, but kept the rest of the verdict intact. Sentencing is scheduled for Aug. 27 and 28. Prosecutors said Monday they were "unaware of any mitigating circumstances" for the purposes of sentencing. Spear, Brunst and Lacey showed no remorse following their convictions, prosecutors said.... The prosecutors argued that victim impact statements submitted to the court don't fully encapsulate the harm Backpage inflicted, saying some trafficking victims were killed by perpetrators who found them on the site.
Lacey, Spear and Brunst all requested probation in their own sentencing memorandums filed Monday, arguing that they never intentionally broke the law. Lacey claimed that his only felony conviction was for a "financial crime that he purportedly committed upon the idea and advice of two credentialed lawyers, wherein all reporting rules were followed."....
Spear similarly said in his memorandum that his actions were in line with a law-abiding life.... Brunst said he was never employed by Backpage, but rather worked for Village Voice Media Holdings starting in 1992 and later at Medalist Holdings, a successor entity after VVMH sold its newspapers.
Over at Reason, the arguments surrounding one defendant get extra attention in a piece here headlined "Feds Seek 20-Year Sentence for Backpage Co-Founder Michael Lacey; It's an insane ask for someone convicted of just one nonviolent offense." Here is an excerpt:
Lacey was charged — along with other former Backpage executives — of using Backpage to knowingly facilitate prostitution, in violation of the U.S. Travel Act. Two of the defendants were acquitted of all such offenses and two of the defendants were found guilty of some of them. But the jury could not reach a conclusion when it came to Lacey. U.S. District Judge Diane Humetewa found there was insufficient evidence to sustain most of the remaining 84 counts against him.
Now, prosecutors want the judge to simply act, for sentencing purposes, as if those charges are all true. Federal prosecutors are also putting Lacey on trial for these charges again — which means that if he is eventually convicted, he could wind up being sentenced twice for the same conduct.
This case and these defendants have many more notable elements, and I found reviewing some of the sentencing memoranda fascinating — eg, the government's memo reports that the PSR recommended 1080 months (90 years) for Spear, who is 73 years old. Here, thanks to Law360, are the sentencing submissions:
August 21, 2024 at 06:05 PM | Permalink
Comments
The predecessor case to this was yet another example of Kamala ruining people's lives to advance her own career.
Posted by: Respondent | Aug 21, 2024 7:56:43 PM
oh please elucidate
Posted by: schemderalist | Aug 22, 2024 7:31:45 AM
I assume Respondent's comment was meant to flag Kamala Harris's history when Attorney General of California going after Backpage. Here is the start of a press release from Oct 2016:
"Attorney General Kamala D. Harris today announced the arrest of Carl Ferrer, the Chief Executive Officer of online advertising website Backpage.com, on felony charges of pimping a minor, pimping, and conspiracy to commit pimping. Michael Lacey and James Larkin, controlling shareholders of Backpage, have also been criminally charged with conspiracy to commit pimping, a felony. Backpage hosts ads for “escort services”, essentially operating as an online brothel and generating millions of dollars off the illegal sex trade."
https://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-announces-criminal-charges-against-senior
Posted by: Doug B | Aug 22, 2024 8:26:30 AM
I think the following two links will give more of the story. Harris threw a bunch of people under the bus even after a federal judge had ruled Backpage wasn't in danger of prosecution because they were cooperating. See here: https://reason.com/video/2020/08/20/kamala-harris-dishonest-campaign-to-destroy-backpage-com/ and here: https://reason.com/2018/08/21/backpage-founders-larkin-and-lacey-speak/
Posted by: Respondent | Aug 22, 2024 11:38:42 AM
About trafficking victims being killed by perpetrators who found them on the site. Obviously that is horrific. But it does also happen with street-corner prosecution. I have to wonder if the fact that it is online makes it safer, as the perps would have left an electronic trail.
Posted by: William Jockusch | Aug 22, 2024 12:13:00 PM
I don't see why a website allowing people to advertise perfectly legal-to-sell services should have to shut down just because it is known that a certain percentage of people are secretly advertising illegal-to-sell services. That turns the First Amendment on its head. Should an email provider have to shut down because some people send threatening emails, or emails selling drugs?
Posted by: Respondent | Aug 22, 2024 12:46:17 PM
The government's sentencing memo, Respondent, asserts that Backpage "generated nearly all of its revenue from female prostitution" and that defendants knew of this reality and also about "Backpage ads that advertised sex-trafficked minors." I cannot speak to the accuracy of these claims, but I surmise the government would dispute that the illegal activity on Backpage was secret or only a limited percentage of the activity on the site.
Posted by: Doug B | Aug 22, 2024 12:56:55 PM
Doug,
It should also be mentioned that The Cackler’s cases were thrown out at least twice.
It’s also noteworthy that they referred to the defendants as “sex traffickers” and “child sex traffickers” but were never charged as such.
She never had a case and the charges were laughed out of court. It was in retribution for not folding to strong arm of the government sooner. Craigslist folded and survived. Backpage fought it and was punished by the process.
Posted by: TarlsQtr | Aug 22, 2024 1:45:38 PM
Doug,
I'm making a broader point when I refer to secret advertising. It certainly was no secret that a certain percentage of the ads on this site were for illegal prostitution, child or otherwise. But whether that percentage was 10%, 70%, or 90%, why should Backpage be required to shut down perfectly legal, first-amendment protected ads as a prophylactic against all the illegal conduct? Like I said, that turns the First Amendment on its head. As long as a specific ad is "secret" insofar as Backpage doesn't know for sure whether it is one of the illegal ads, Backpage shouldn't be required to exercise a prior restraint and remove it just in case. It is the job of law enforcement to investigate the poster if they want (a few stings can be helpful), but no one had the right to use he known existence of illegal ads to chill the legal ones.
I don't think it's a great exaggeration to say that Kamala et al's conduct in this case opened the door to the slippery slope that has led to the widespread, often government pressured censorship of social media that we have seen ever since. The courts should have come down hard on the government here, and "weaponized" the first amendment in a broad ruling that would have put an end to the government threatening or taking down sites that are being abused by some users.
Posted by: Respondent | Aug 22, 2024 2:36:23 PM
Respondent: this is not my area of expertise at all, and I am not aware of the details on any side of all the litigation or whether there was any effort (or obligation) for Backpage to try to "police" illegal activity on its site. I just sought to note that the government seems to be asserting that nothing was secret about the illegal use of the site. Again, I do not know the allegations or the actual facts for what seems like a long legal fight, but I am still struggling to get the "secret" point in the context -- eg, if someone said they sincerely believed prostitution and narcotics should all be legal and these activities were less harmful when transacted/facilitated online and then runs a for-profit site to that end, do you think the government can go after that site? Would it be a defense if/when the operator of that site made sure some legal drug middle-men and Nevada escort companies used it?
Again, I am not defending anything in the specifics on either side, I am trying to undersand where the the "secret" (ie. lack of knowledge) fits in. This is an issue in a lot of off-line matters --- eg, doctors who heavily prescribe opioids aware some get diverted or people who make straw purchases of guns not knowing how they will be used. These are always hard topics in all areas criminal law where we think mens rea matters a lot.
Posted by: Doug B | Aug 22, 2024 2:59:50 PM
I think the line should be at a minimum, that unless Backpage has actual knowledge (not fake, so-called "constructive" knowledge) that a specific ad is actually soliciting prostitution, there would be no obligation to take it down. But beyond that, if abuse of their system meant that there were too many ads that they would have to take down, which would make the system too onerous, chilling keeping up the board at all (like happened with Craigslist), there shouldn't be an obligation on them to do that at all. This would hold true regardless of the owners' political beliefs or statements of whether a site devoted to prostitution or drugs should be legal to keep up. As long as the site does not directly encourage the illegal activity and takes down illegal ads they have actual knowledge of when not to onerous, their political beliefs and preferences should not make any difference. The First Amendment demands no less as far as I'm concerned.
Posted by: Respondent | Aug 22, 2024 3:39:02 PM
*too onerous
Posted by: Respondent | Aug 22, 2024 3:40:28 PM
