1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MICHAEL BAILEY

United States Attorney

District of Arizona

KEVIN M. RAPP (Ariz. Bar No. 014249, kevin.rapp@usdoj.gov)

MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov)

PETER S. KOZINETS (Ariz. Bar No. 019856, peter.kozinets@usdoj.gov) 

ANDREW C. STONE (Ariz. Bar No. 026543, andrew.stone@usdoj.gov)

Assistant U.S. Attorneys

40 N. Central Avenue, Suite 1800

Phoenix, Arizona 85004-4408

Telephone (602) 514-7500

DAN G. BOYLE (N.Y. Bar No. 5216825, daniel.boyle2@usdoj.gov) 

Special Assistant U.S. Attorney

312 N. Spring Street, Suite 1400

Los Angeles, CA 90012

Telephone (213) 894-2426

BRIAN C. RABBITT 

Assistant Attorney General 

Criminal Division, U.S. Department of Justice

REGINALD E. JONES (Miss. Bar No. 102806, reginald.jones4@usdoj.gov) 

Senior Trial Attorney, U.S. Department of Justice

Child Exploitation and Obscenity Section 

950 Pennsylvania Ave N.W., Room 2116

Washington, D.C. 20530

Telephone (202) 616-2807 

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff, 

v. 

Michael Lacey, et al.,

Defendants.

No. CR-18-00422-PHX-SMB

RESPONSE TO DEFENDANTS’ 

MOTION FOR ISSUANCE OF 

SUBPOENAS (Doc. 1083)

SUMMARY OF ARGUMENT

Defendants’ sequel motion seeking issuance of subpoenas fares no better than the 

original. This time, Defendants’ two proposed subpoenas seek broad, unspecified 

communications and documents from the National Center for Missing and Exploited 

Case 2:18-cr-00422-DJH Document 1091 Filed 11/18/20 Page 1 of 7
- 2 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Children (“NCMEC”) (again) and the Office of the Attorney General of Arizona (“AZ 

AG”). Defendants seek these materials based on the mere hope that the documents will 

produce favorable evidence. More is required. 

As the Court’s recent Order denying Defendant Spear’s Amended Motion for 

Issuance of Rule 17(c) Subpoenas makes clear, a proponent of a subpoena under Rule 17(c) 

must clear three hurdles: (1) relevancy; (2) admissibility; and (3) specificity. (Doc. 1084 

(“Order”) at 3.) In addition, a court may properly deny a Rule 17(c) subpoena that 

constitutes a mere “fishing expedition.” (Order at 4.) Defendants’ latest request again 

stumbles over these hurdles. First, Defendants fail to articulate the relevance of the 

requested materials, and similar to their first request, the only discernible relevance would 

be for impeachment purposes, which is improper. Second, nowhere do Defendants provide 

any specifics about what the requested materials would actually reveal. Third, Defendants’ 

assertion that the requested materials would be admissible as business records or public 

records is dubious. Finally, Defendants’ claim that communications from NCMEC and the 

AZ AG to the “investigators in this case” will show the organizations “were influenced by 

political concerns” is the definition of a “fishing expedition.” 

Defendants are again improperly attempting to use the Rule 17(c) subpoena as a 

discovery tool. This motion, like the first, should be denied. 

RELEVANT FACTS

On October 23, 2020, this Court issued a 14-page Order denying Defendants’

Motion for Recusal. (Doc. 1075.) Thereafter, on November 4, 2020, Defendants filed the 

instant Motion for Issuance of Subpoenas seeking expedited authorization for Rule 17(c)

subpoenas to NCMEC and the AZ AG’s Office. (Doc. 1083.) Defendant Spear (later 

joined by the other Defendants) previously filed a substantially similar motion seeking 

authorization for Rule 17(c) subpoenas to NCMEC, among other third parties. (Compare 

Doc. 1083 with Doc 1019.) On November 5, 2020, this Court issued an Order denying 

Defendants’ original motion. (Doc. 1084.) On November 16, 2020, Defendants filed a

notice of appeal of the Order denying recusal. (Doc. 1089.) 

Case 2:18-cr-00422-DJH Document 1091 Filed 11/18/20 Page 2 of 7
- 3 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

LAW AND ARGUMENT

The Court is well-versed in the legal standard governing Defendants’ request. As 

noted by the Court in its most recent Order, a proponent of a subpoena under Rule 17(c) 

must clear three hurdles: (1) relevancy; (2) admissibility; and (3) specificity. United States 

v. Reed, 726 F.2d 570, 577 (9th Cir. 1984) (citing United States v. Nixon, 418 U.S. 683, 

700 (1974)). Rule 17(c) “‘was not intended to provide an additional means of discovery.’” 

United States v. Hang, 75 F.3d 1275, 1283 (8th Cir. 1996) (quoting Bowman Dairy Co. v. 

United States, 341 U.S. 214, 220 (1951)). If the information sought under Rule 17(c) is 

sought merely for impeachment purposes, it is generally insufficient to justify the pretrial 

production of documents. Nixon, 418 U.S. at 701 (“Generally, the need for evidence to 

impeach witnesses is insufficient to require its production in advance of trial.”); see also 

United States v. Fields, 663 F.2d 880, 881 (9th Cir. 1981) (“The only evidentiary use that 

defendants have been able to advance is that the statements and transcribed interviews of 

witnesses could be used for impeachment purposes. This use is generally insufficient to 

justify the pretrial production of documents.”) (citations omitted). 

A Rule 17(c) subpoena cannot be issued on “‘mere hope’ that the desired documents 

[will] produce favorable evidence.” Hang, 75 F.3d at 1283. Indeed, a court may properly 

deny a Rule 17(c) subpoena that constitutes a mere “‘fishing expedition.’” Id. at 1283-84. 

When a proponent of a subpoena merely states why he or she wants to look into materials, 

but fails to set forth what they contain, a court may properly quash a subpoena for lack of 

specificity or relevance. See United States v. Arditti, 955 F.2d 331, 346 (5th Cir. 1992) 

(“he has not set forth what the subpoena’s materials contain, forcing the court to speculate 

as to the specific nature of their contents and its relevance.”).1

A. The Court Has Already Rejected Defendants’ NCMEC Subpoena.

Defendants’ request to subpoena NCMEC is simply a rehash of their initial 

request—which the Court has already rejected. The original subpoena sought: “All digital 

 1 Rule 17(h) contains a further limitation on the types of materials that may be sought under the rule as discussed in the government’s response to Defendants’ original 

motion seeking issuance of subpoenas. (Doc. 1027 at 5, 8-10.)

Case 2:18-cr-00422-DJH Document 1091 Filed 11/18/20 Page 3 of 7
- 4 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

and written correspondence, memoranda and other communications . . . regarding NCMEC 

efforts, suggestions, discussions, and requests to have Backpage and/or its principals or 

employees . . . prosecuted by the United States.” (Doc. 1019-1 at 21.) The second NCMEC 

subpoena seeks, inter alia: “All correspondence or documents . . . referencing the 

investigation or prosecution of Backpage.com and/or any of its principals and employees.” 

(Doc. 1083-1 at 9.) 

The Court found the original subpoena sought “large swaths of communications and 

internal documents regarding conversations between NCMEC and prosecutors and/or law 

enforcement with no explanation about how they could be relevant.” (Doc. 1084 at 5-6.) 

If anything, Defendants’ subpoena redux appears to cast an even wider net than the 

original. (1083-1 at 9.) Increasing the fishing expedition’s size does not cure the 

subpoena’s deficiencies. 

B. Defendants Fail to Demonstrate Their Proposed Subpoenas Seek Relevant Information.

Defendants again fail to show how the requested materials would be relevant. 

Defendants’ entire argument supporting the relevance of these materials is that NCMEC 

and the AZ AG were “influenced by political concerns” and “moral or ethical concerns.” 

(Doc. 1083 at 4.) This attempt at demonstrating relevance fails. 

First, even if these statements were true, it is unclear why they would be relevant. 

Defendants are on trial for federal conspiracy, Travel Act, and money laundering felonies. 

The undisputed facts are that NCMEC and various states’ attorneys general repeatedly 

encouraged Defendants to curb their prostitution advertisements that led to child sex 

trafficking, among other criminal acts. Defendants fail to explain how any “political” or 

“moral” motivation behind these communications would affect the jury’s decision of 

whether Defendants are guilty of the 100 counts alleged against them.

Second, despite voluminous discovery involving millions of documents and the 

government’s disclosures of extensive witness and exhibit lists months before trial,

Defendants provide no further support to substantiate their claims beyond mere statements. 

Case 2:18-cr-00422-DJH Document 1091 Filed 11/18/20 Page 4 of 7
- 5 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

This is insufficient. “When a proponent of a subpoena merely states why he or she wants 

to look into materials, but fails to set forth what they contain, a court may properly quash 

a subpoena for lack of specificity or relevance.” (Doc. 1084 (citing United States v. Arditti, 

955 F.2d 331, 346 (5th Cir. 1992)).) In Nixon, for example, the special prosecutor 

supported his Rule 17(c) request for President Nixon’s audiotapes through “sworn 

testimony or statements of one or more of the participants in the conversations as to what 

was said at the time.” 418 U.S. at 700. Here, Defendants support their request through 

self-serving statements. Not enough.

Third, all the materials requested by the two subpoenas would only be relevant for 

impeachment purposes. (Doc. 1084 at 6.) Specifically, Defendants would use the 

requested materials, if they existed, to impeach any NCMEC witnesses. This is improper. 

(Id.) Moreover, the government will not be calling any witnesses from the AZ AG’s office. 

This raises the issue of how any of the requested materials from that office would be 

introduced at trial—or could otherwise be relevant at all.

2

 

C. Defendants Again Fail to Provide the Requisite Specificity Under Rule 17(c).

This Court denied Defendants’ original motion finding a “Rule 17(c) subpoena 

cannot be issued on ‘mere hope’ that the desired documents will produce favorable 

evidence.” (Doc. 1084 at 4.) A “mere hope” is all Defendants have expressed in their 

latest request. Defendants have failed to set forth what the subpoenas’ materials contain, 

 2 Defendants make the bewildering claim that communications between NCMEC 

and the AZ AG’s office are relevant because they will “show that NCMEC’s and the AZ 

AG’s views of Backpage.com and the Defendants in this case were influenced by political concerns as much if not more than legal concerns, and that public statements by NCMEC, the NAAG and others (to which the AZ AG signed on) were not supported by legal 

analysis.” (Doc. 1083 at 4.) But again, Defendants provide no basis for this incoherent assertion. Moreover, it is unclear why the requested 17(c) subpoenas focus on the AZ 

AG’s office’s communications with NCMEC, as opposed to the National Association of 

Attorneys’ General (NAAG), the AG’s office that has actually prosecuted some of the same Defendants (i.e., the California AG’s Office), or the many state AG offices with which 

Defendants or entities they previously controlled have litigated on various other issues. At 

most, the instant Motion appears to be nothing more than a meritless last-ditch effort to 

manufacture a new rationale for seeking the Court’s recusal, based purely on self-serving speculation. This is improper.

Case 2:18-cr-00422-DJH Document 1091 Filed 11/18/20 Page 5 of 7
- 6 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

which forces the government—and the Court—to speculate as to the specific nature of their 

contents. Arditti, 955 F.2d at 346. Defendants’ broad and open-ended requests again fail 

to meet the specificity requirement. United States v. Johnson, 2008 WL 62281, at *4 (N.D. 

Cal. Jan. 4, 2008) (relying on Nixon’s “specificity” requirement to prevent improper use of 

Rule 17(c) as a discovery tool; “[T]his is not merely an improper fishing expedition, this a 

net cast blindly from an ocean troller in the mere hope of dredging some speculative 

treasure from the bottom of the sea.”).3

CONCLUSION

Based on the foregoing, and consistent with the Court’s Order denying Defendants’ 

previous request for subpoenas to issue, Defendants’ motion should be denied.

Respectfully submitted this 18th day of November, 2020.

MICHAEL BAILEY

United States Attorney

District of Arizona

s/ Kevin M. Rapp

KEVIN M. RAPP

MARGARET PERLMETER

PETER S. KOZINETS

ANDREW C. STONE

Assistant U.S. Attorneys

DANIEL BOYLE

Special Assistant U.S. Attorney

BRIAN C. RABBITT

Assistant Attorney General 

Criminal Division, U.S. Department of Justice

REGINALD E. JONES

Senior Trial Attorney

U.S. Department of Justice, Criminal Division

Child Exploitation and Obscenity Section

 3 Defendants also appear to fail the admissibility requirement. It’s unlikely that correspondence from NCMEC or the AZ AG’s office that actually showed a “political” or “moral” concern about Defendants’ conduct would be considered regularly conducted activity, which is a necessary element to qualify for the business records exception to the hearsay rule. Fed. R. Evid. 803(6).

Case 2:18-cr-00422-DJH Document 1091 Filed 11/18/20 Page 6 of 7
- 7 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CERTIFICATE OF SERVICE

I hereby certify that on this same date, November 18, 2020, I electronically 

transmitted the attached document to the Clerk’s Office using the CM/ECF System for 

filing and transmittal of a Notice of Electronic Filing to the CM/ECF registrants who have 

entered their appearance as counsel of record.

s/ Joy Faraj . U.S. Attorney’s Office

Case 2:18-cr-00422-DJH Document 1091 Filed 11/18/20 Page 7 of 7