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GARY M. RESTAINO 

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 

KENNETH POLITE 

Assistant Attorney General 

Criminal Division, U.S. Department of Justice 

AUSTIN M. BERRY (Texas Bar No. 24062615, austin.berry2@usdoj.gov) 

U.S. Department of Justice 

Child Exploitation and Obscenity Section 

1301 New York Avenue, NW, 11th Floor 

Washington, D.C. 20005 

Telephone (202) 412-4136 

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. 

CR-18-422-PHX-DJH 

UNITED STATES’ RESPONSE TO 

DEFENDANTS’ MOTION IN LIMINE

TO PRECLUDE REFERENCES TO 

PROSTITUTION MARKETING 

STRATEGIES (Doc. 1591)

 

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Defendants’ motion should be denied. (Doc. 1591.) Defendants’ arguments are far 

from fresh. The Court has repeatedly affirmed the relevance and admissibility of evidence 

related to Defendants’ prostitution marketing strategies. Defendants are correct that this 

motion is governed by the “law of the case,” they simply fail to accurately describe that 

“law.” (Id. at 3.) This Court has rejected Defendants’ argument on numerous occasions.

1. Court’s Order Denying Defendants’ Motion to Dismiss (Doc. 793)

In 2019, the Court first ruled that the prostitution marketing strategies are relevant. 

(Doc. 793 at 14, 19-20.) 

The SI does not allege Defendants are criminally liable because they 

unknowingly and unintentionally operated a website used by third parties to 

post prostitution ads. Rather, it alleges Defendants purposely sought out 

opportunities to increase prostitution advertising on Backpage. The SI 

alleges the Defendants intentionally identified prostitutes, created free 

Backpage ads for them, and used those ads to try to secure future business. . 

. . Defendants also sought to expand their traffic through TER, a “prostitution 

website” where “johns” could rate and review escorts including the “prices 

charged for particular sex acts.” 

(Doc. 793 at 13.) 

Indeed, the Court found that if the United States could prove that Defendants 

engaged in these prostitution marketing strategies that would “establish defendants had the 

specific intent to promote prostitution in violation of the Travel Act.” (Id. at 20.) The Court 

concluded that the SI alleged “Defendants used a website with the intent to facilitate 

prostitution . . . and executed strategies to further and increase that activity.” (Id. at 22.)

The Court’s ruling would be rendered nonsensical if it actually believed—as Defendants 

now claim—that all evidence related to Defendants’ business practices that occurred before 

September 10, 2013 was “inadmissible.” (Doc. 1519 at 3.) 

2. Preliminary Jury Instructions (Doc. 1311)

The Court issued preliminary jury instructions that are consistent with the United 

States introducing evidence related to Defendants’ prostitution marketing strategies. The 

preliminary jury instructions outline the elements for Count 1—conspiracy to violate the 

Travel Act: “First, beginning in or around 2004, and ending on or about April 2018, there 

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was an agreement between two or more persons to commit at least one Travel Act offense 

as charged in the indictment.” (Doc. 1311 at 3.)

3. Defendants’ Motion for Judgment of Acquittal (Doc. 1272)

After the United States’ opening statement, Defendants made the same argument: 

“The Court expressly told the parties that the case is not about whether defendants

promoted prostitution in general, nor about what Backpage did or did not do, but is about 

whether each individual defendant had specific knowledge of each charged ad and 

specifically intended to promote a business of prostitution by that ad.” (Doc. 1272 at 3 

(citing the same language from Doc. 946 as appears in the instant motion).) The United 

States responded to Defendants’ motion (Doc. 1275) and the Court orally denied it. (Doc. 

1342 at 4-11.) 

The Court found that all statements in the opening that related to conduct pre-dating 

the substantive counts (before 2013) were fair game, because they were “all in furtherance 

of the charged conspiracy.” (Doc. 1342 at 7) (“The defendants’ argument that the 

government’s reference to other acts evidence violated Rule 404(b), all uncharged acts 

mentioned in the opening statement as alleged are all in furtherance of the charged 

conspiracy and not subject to Rule 404(b)’s requirement.”) In addition, the Court found 

that evidence related to Defendants’ prostitution marketing strategies was relevant and if 

proved, would “certainly” demonstrate “circumstantial evidence of intent.” (Doc. 1342 at 

9.) 

4. Defendants’ Motion to Limit Testimony of J.S. (Doc. 1295)

Defendants asserted the same argument in their motion to limit testimony filed 

during trial, namely that J.S.’s testimony should not be permitted because it didn’t relate to 

the 50 ads at issue in Counts 2-51. (Doc. 1294 at 4) (“The Court cannot allow this trial to 

become about every bad act associated with Backpage over a 14-year time period. 

Allowing the Government to proceed in that manner would violate Defendants’ rights to a 

fair trial and effectively amend the indictment beyond the 50 ads at issue.”) The Court 

denied Defendants’ motion and permitted the United States to present evidence that preCase 2:18-cr-00422-DJH Document 1603 Filed 06/15/23 Page 3 of 5
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dated 2013. (Doc. 1334 at 65-67.) 

5. Court’s Order Denying Defendants’ Motion to Dismiss (Doc. 946)

Defendants also fail to provide the appropriate context for the Court’s language that 

they cite in support of their instant motion. (Doc. 946 at 13.) The Court, in disagreeing with 

Defendants’ assertion that the SI failed to identify the “unlawful activity” that forms the 

basis for Travel Act charges, wrote: “Based on the allegations here, Defendants are not 

charged with anything related to gambling, narcotics, bribery, extortion or arson. Rather, 

they are clearly charged with intending to facilitate and thereafter facilitating or attempting 

to facilitate businesses involved in prostitution. See 18 U.S.C. § 1952(b)(i)(1).” (Doc. 946 

at 9.) Addressing the individual substantive Travel Act charges in Counts 2-51, the Court 

also observed that “the SI alleges fifty instances where Defendants posted ads on 

Backpage.com to facilitate specific individual prostitutes or pimps involved in the business 

of prostitution” and used language that “almost identically mirrors the Travel Act’s 

text.” (Doc. 946 at 11.) The Court went on to explain that these fifty instances were part 

and parcel of “a continuous course of conduct where Defendants facilitated ‘unlawful 

activity’ [including] numerous pimps, prostitutes and traffickers in violation of the Travel 

Act.” (Doc. 946 at 13-14.) The Court did not rule, as Defendants suggest, that the United 

States’ trial presentation was limited only to evidence related to the 50 Travel Act 

violations. 

6. Court’s Order Denying Defendants’ Motion to Dismiss (Doc. 1444)

Finally, this Court has also had an opportunity to consider and reject Defendants’ 

argument that the United States should be precluded from introducing evidence that predates 2013. “The Government was entitled to provide the jury with a history of 

Backpage.com, which began in 2004, and an explanation of its case as outlined in the SI, 

which spanned through 2018.” (Doc. 1444 at 7.) 

Defendants’ motion should be denied. The law of the case is clear—the United 

States may introduce evidence that relates to Defendants’ prostitution marketing strategies.

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 Respectfully submitted this 15th day of June, 2023.

 GARY M. RESTAINO 

 United States Attorney 

 District of Arizona 

 s/ Andrew C. Stone 

KEVIN M. RAPP 

MARGARET PERLMETER 

PETER S. KOZINETS 

ANDREW C. STONE 

DAN G. BOYLE 

Assistant U.S. Attorneys 

 

KENNETH POLITE 

Assistant Attorney General 

U.S. Department of Justice 

Criminal Division, U.S. Department of Justice AUSTIN M. BERRY 

Trial Attorney 

 

CERTIFICATE OF SERVICE 

I hereby certify that on June 15, 2023, 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/ Daniel Parke

Daniel Parke 

U.S. Attorney’s Office 

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