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Timothy J. Eckstein, 018321

Joseph N. Roth, 025725

Sarah P. Lawson, 036436

OSBORN MALEDON, P.A.

2929 North Central Avenue, 20th Floor

Phoenix, Arizona 85012-2793

(602) 640-9000

teckstein@omlaw.com

jroth@omlaw.com

slawson@omlaw.com

Attorneys for James Larkin

Additional counsel on following page

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Michael Lacey, et al.,

Defendants.

Case No. 2:18-cr-00422-PHX-DJH

DEFENDANTS’ MOTION IN 

LIMINE TO PRECLUDE 

IRRELEVANT AND 

INADMISSIBLE EVIDENCE RE 

MERSEY AND ELMS1

(Oral Argument Requested)

1 Undersigned counsel certifies that they have conferred with the government in an effort 

to resolve the disputed evidentiary issues that are the subject of this motion.

Case 2:18-cr-00422-DJH Document 1593 Filed 06/08/23 Page 1 of 8
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Paul J. Cambria, Jr. (NY 15873, admitted pro hac vice)

Erin E. McCampbell (NY 4480166, admitted pro hac vice)

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

(716) 849-1333

pcambria@lglaw.com

emccampbell@lglaw.com

Attorneys for Michael Lacey

Bruce S. Feder (AZ 004832)

FEDER LAW OFFICE PA

2930 E. Camelback Rd., Suite 160

Phoenix, Arizona 85016

(602) 257-0135

bf@federlawpa.com

Eric Walter Kessler

KESSLER LAW OFFICE

6720 N. Scottsdale Rd., Suite 210

Scottsdale, Arizona 85253

(480) 644-0093

Eric.kesslerlaw@gmail.com

Attorneys for Defendant Scott Spear

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW P.C.

1875 Century Park E., Suite 2300

Los Angeles, California 90067

(310) 201-2100

glincenberg@birdmarella.com

gpanchapakesan.@birdmarella.com

aneuman@birdmarella.com

Attorneys for John Brunst

David S. Eisenberg

DAVID EISENBERG PLC

3550 N. Central Ave., Ste. 1155

Phoenix, Arizona 85012

(602) 237-5076

david@eisenbergplc.com

Attorneys for Andrew Padilla

Case 2:18-cr-00422-DJH Document 1593 Filed 06/08/23 Page 2 of 8
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Joy Malby Bertrand

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

(480) 656-3919

joyous@mailbag.com

Attorneys for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 1593 Filed 06/08/23 Page 3 of 8
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Defendants move in limine for an order precluding testimony, statements, or 

evidence related to William “Dollar Bill” Mersey and David Elms.

Proposed Order. Evidence relating to Mersey and Elms is precluded as not 

relevant to any of the fifty charged ads in the indictment. Even if it had some relevance, 

it would be substantially outweighed by the danger of unfair prejudice. Further, statements 

from Mersey and Elms are not admissible as statements of co-conspirators under Rule 

801(d)(2)(E).

Background. Defendants are charged in Count 1 with participating in a conspiracy 

to violate the Travel Act by facilitating prostitution. As the Court previously ruled, 

Defendants are not charged with a “boundless conspiracy to facilitate prostitution in 

general,” but “for facilitating (via publishing ads) on fifty distinct occasions where 

prostitutes, prostitution-related businesses, or other groups were involved in the business 

of prostitution.” Doc. 946 at 13 (emphasis added). As such, evidence may be relevant if 

it tends to make more likely Defendants’ intentional facilitation of “fifty distinct” state law 

prostitution offenses or a conspiracy to facilitate those fifty offenses. Evidence 

disconnected from those “fifty distinct occasions” is relevant neither to the Travel Act 

counts, nor can it be admitted under the co-conspirator hearsay exception. Rule 

801(d)(2)(E).

David Elms, the founder of the Erotic Review (“TER”), oversaw TER’s reciprocal 

link business relationship with Backpage in 2008 and 2009. Gov’t Trial Ex. 568, Gov’t 

Trial Ex. 577. Elms pled guilty to conspiracy to commit aggravated assault in 2010 and 

was sentenced to 4.5 years in prison. Gov’t Trial Ex. 591, attached as Ex. A. William 

Mersey placed a large number of advertisements on Backpage.com from 2008 until 2012, 

when Backpage.com terminated Mersey’s account. Gov’t Trial Ex. 555; Gov’t Trial Ex. 

739, attached as Ex. B. Four years later, in 2016, the government charged Mersey with 

three counts of willfully filing a false tax return under 26 U.S.C. § 7206(1); Mersey pled 

guilty later that year to one of the tax fraud counts. Gov’t Trial Ex. 786. 

Case 2:18-cr-00422-DJH Document 1593 Filed 06/08/23 Page 4 of 8
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Before trial, the government moved in limine to admit statements of Elms and 

Mersey under the co-conspirator hearsay exception, Rule 801(d)(2)(E). Doc. 929. Lacking 

“the content of the specific statements” the Court rejected the government’s request, 

deferring until trial whether any individual statement was subject to the co-conspirator 

exception. Doc. 1162 at 3. Defendants now move to preclude the admission of any 

statements or evidence connected with Elms or Mersey, as (1) neither Elms nor Mersey 

have any connection to the fifty charged ads, (2) there is no evidence of any conspiracy 

involving Elms, Mersey, and Defendants relating to the fifty charged ads, and (3) the unfair 

prejudice to Defendants would outweigh whatever minimal relevance there could be to 

the admission of any evidence concerning Elms or Mersey. 

There is no Relevance to Any Evidence Concerning Mersey or Elms. No 

evidence ties Elms or Mersey to any of the fifty charged ads charged or to a conspiracy 

related to the publication of those ads. Indeed, Backpage terminated its relationship with 

Elms in 2009 and Mersey in 2012, while the earliest charged ad was posted in September 

2013. (SI ¶ 201, Count 2.) Any statement from or evidence relating to Elms or Mersey 

would be of no “consequence in determining the action,” nor would it make any fact 

relating to the fifty charged ads (or a related conspiracy) “more or less probable.” Fed. R. 

Evid. 401.

There is no Evidence of Conspiracy Between Mersey, Elms, and 

Defendants. To admit the statements of co-conspirators, the government must establish 

preliminarily that the accused knew of and participated in a conspiracy “with the putative 

co-conspirator.” U.S. v. Castaneda, 16 F.3d 1504, 1507 (9th Cir. 1994). The conspiracy 

alleged in the indictment relates to the publication of the fifty charged ads and the 

indictment has no allegations of any conspiracy involving Mersey, Elms, and Defendants.

The Court correctly held that the conspiracy alleged is bound by the charged ads—

“fifty distinct occasions where prostitutes, prostitution-related businesses, or other groups 

were involved in the business of prostitution,” lest it be a “boundless conspiracy to 

facilitate prostitution in general . . . .” Doc. 946 at 13. Were the conspiracy not so limited, 

Case 2:18-cr-00422-DJH Document 1593 Filed 06/08/23 Page 5 of 8
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it would be boundless, running from 2004 to 2018, and including every Backpage 

employee, most every person who posted an adult ad, and the third parties with whom 

Backpage did business over that time, given the government’s claim that it was “general 

knowledge” that most adult ads were associated with prostitution. The indictment does 

not allege such a conspiracy, nor could it without violating basic principles of due process 

and the Double Jeopardy clause.2

The Minimal Probative Value is Substantially Outweighed by Unfair 

Prejudice. The only seeming probative value of evidence or statements related to Elms 

or Mersey is that of notice that third parties alleged that Elms and Mersey were involved 

in prostitution. As noted above, that is not relevant to the single conspiracy charged. 

Moreover, the government presumably has other witnesses and evidence through which it 

will attempt to prove notice as it related to the charged ads (as Elms and Mersey are 

strangers to those ads), rendering evidence about notice as to Elms and Mersey cumulative. 

Fed. R. Evid. 403. Further, the admission of evidence or statements about business 

relationships that Backpage terminated well before the publication of the first charged ad 

or about criminal convictions long after Backpage terminated its relationships with Elms 

and Mersey and unrelated to ads on Backpage would be highly prejudicial, inviting the jury 

to make its decision on “an improper basis, [namely] an emotional one.” U.S. v. Ellis, 147 

F.3d 1131, 1135 (9th Cir. 1998); Fed. R. Evid. 403.

2 Such a boundless conspiracy also would be a classic hub and spoke conspiracy lacking a 

rim, which the Supreme Court held impermissible in Kotteakos v. United States, 328 U.S. 750, 

754–55 (1946) (“the pattern was ‘that of separate spokes meeting at a common center,’ 

though we may add without the rim of the wheel to enclose the spokes”). Dickson v. 

Microsoft Corp., 309 F.3d 193, 203 (4th Cir. 2002) (“A rimless wheel conspiracy is one in 

which various defendants enter into separate agreements with a common defendant, but 

where the defendants have no connection with one another, other than the common 

defendant’s involvement in each transaction....In Kotteakos, the Supreme Court made clear 

that a rimless wheel conspiracy is not a single, general conspiracy but instead amounts to 

multiple conspiracies between the common defendant and each of the other defendants.”).

Case 2:18-cr-00422-DJH Document 1593 Filed 06/08/23 Page 6 of 8
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Conclusion. The Court should exclude as irrelevant, improper hearsay, and unduly 

prejudicial any evidence related to, or statements made by, Elms or Mersey. Doc. 946 at 

13.

DATED this 8th day of June, 2023.

OSBORN MALEDON, P.A.

By s/ Joseph N. Roth

Timothy J. Eckstein

Joseph N. Roth

Sarah P. Lawson

2929 North Central, 20th Floor

Phoenix, Arizona 85012-2794

Attorneys for James Larkin

LIPSITZ GREEN SCIME CAMBRIA LLP

By s/ Paul J. Cambria, Jr. (w/permission)

Paul J. Cambria, Jr. (pro hac vice)

Erin E. McCampbell (pro hac vice)

42 Delaware Avenue, Suite 120

 Buffalo, New York 14202

Attorneys for Michael Lacey

FEDER LAW OFFICE PA

By s/ Bruce S. Feder (w/permission)

Bruce S. Feder

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

KESSLER LAW OFFICE

By s/ Eric W. Kessler (w/permission)

Eric W. Kessler

6720 N. Scottsdale Rd., Suite 210

Scottsdale, Arizona 85253

Attorneys for Scott Spear

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BIRD, MARELLA, BOXER, WOLPERT,

NESSIM, DROOKS, LINCENBERG & 

RHOW P.C.

By s/ Gary S. Lincenberg (w/permission)

Gary S. Lincenberg

Gopi K. Panchapakesan

Ariel A. Neuman

1875 Century Park E., Suite 2300

Los Angeles, California 90067

Attorneys for John Brunst

DAVID EISENBERG PLC

By s/ David S. Eisenberg (w/permission)

David S. Eisenberg

3550 N. Central Ave., Ste. 1155

Phoenix, Arizona 85012

Attorneys for Andrew Padilla

JOY BERTRAND LAW 

By s/ Joy M. Bertrand (w/permission)

Joy M. Bertrand

P.O. Box 2734

Scottsdale, Arizona 85252

Attorneys for Joye Vaught

Case 2:18-cr-00422-DJH Document 1593 Filed 06/08/23 Page 8 of 8