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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’ MOTION 

IN LIMINE TO PRECLUDE 

REFERENCES TO COURT 

DECISIONS, RULINGS, OPINIONS, 

OR RESULTS FROM PRIOR 

LITIGATION FILED BY OR 

AGAINST BACKPAGE.COM, LLC 

OR ITS OWNER(S) 

 

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The United States moves in limine to preclude all counsel, parties, and witnesses

from referring in the jury’s presence to the decisions, rulings, or opinions issued in, or the 

outcomes of, any prior litigation in which Backpage.com, LLC (Backpage) or any of its

then-owners or parent companies was a plaintiff or defendant. During their opening 

statements on September 8, 2021, defense counsel discussed six such cases. None involved

the conspiracy, Travel Act, and money laundering violations charged here. Rather, they 

concerned other statutes, including Section 230 of the Communications Decency Act, 47 

U.S.C. § 230 (Section 230). Nearly all were litigated before Backpage’s compelled 

disclosure of hundreds of thousands of internal documents, which caused a sea-change in 

the availability of evidence about the website. And all predated the guilty pleas of 

Backpage and several related entities, its CEO, and its Sales and Marketing Director. The 

Court should preclude discussion of these decisions under Fed. R. Evid. 401-403 and 802.1

Factual Background 

On September 8, 2021, Defendant Larkin’s then-attorney declared in his opening 

statement: “They [Defendants] went to court to make sure that courts agreed that they were 

acting legally. Every single year from 2011 through 2016 my client and the others at 

Backpage had at least one court look at an actual case involving Backpage, and the kind of 

pictures that the government is showing you here, and say this is protected activity, this is 

legal, and throw the case out.” (Doc. 1342 at 54:24 -55:5). Larkin’s counsel then spent over 

nine transcript pages—and showed corresponding exhibits—discussing several judicial 

decisions in which Backpage successfully avoided accountability under Section 230 and 

other grounds not involved here. Other attorneys referenced those decisions. (See Doc. 

1342 at 86:5-9 (Defendant Spear’s attorney discussing “those cases that Mr. Bienert 

showed you”); see also Doc. 1342 at 93:19-94:16; Doc. 1343 at 33:24-34:3 (Defendant 

Lacey’s attorney: “You saw today Mr. Bienert referenced a number of court decisions that 

1 Certification: On June 5, 2023, counsel for the United States met and conferred in good faith with Defendants’ counsel regarding the relief requested in this motion, and the parties 

could not reach agreement. The Court has not previously considered or ruled on the motion.

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you’ll hear about[.]”).)2

Defendants failed to mention that they had misled courts across the United States in 

these cases. (See, e.g., Doc. 649, Resp. at 21-26.) Not only did many of the cases involve 

challenges to state laws not at issue here, but they all relied on the broad immunity of 

Section 230—which does not apply at all in this federal criminal proceeding, as this Court 

has recognized. Compare n.2 with United States v. Lacey, 423 F. Supp. 3d 748, 760 (D. 

Ariz. 2019) and Doc. 840 at 7. Moreover, the cases were all premised on the notion that 

Backpage was merely a passive “intermediary between the advertisers of adult services and 

visitors to Backpage’s website.” Backpage.com LLC v. Dart, 807 F.3d 229, 233-34 (7th 

Cir. 2015). Yet, after these cases were decided, Backpage disclosed evidence in response 

to U.S. Senate and grand jury subpoena that belied this premise. (Doc. 649, Resp. at 22-

24.) Backpage and its CEO then pleaded guilty in 2018 and admitted that the “great 

majority” of Backpage’s revenue-generating ads were “for prostitution services.” (18-CR464, Doc. 7-2 at 12-13; 18-CR-465, Doc. 8-2 at 11; see Doc. 271 at 9-10.) Following these 

developments, the Northern District of Illinois dismissed Dart and imposed $250,000 in 

sanctions on Backpage for perpetuating a fraud on the court. (See Doc. 516-1 at 2-9.)

During the prior trial, the Court wanted to address “the admissibility of all these 

other cases” (Doc. 1343 at 103:3-5), and had “issues with the way some of those rulings 

were portrayed.” (Doc. 1343 at 103:25-104:1.) The Court observed that cases discussing

Section 230—i.e., all of the cases referenced in the defense openings—are “misleading” 

and “not applicable” here. (Doc. 1334 at 12:25, 13:9.)

2 See Doc. 1342 at 55:6-63:18, 70:4-9, 75:17-76:8, referencing these Section 230 cases:

M.A. v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 1047-59 (E.D. Mo. 2011); Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1271-75 (W.D. Wash. 2012); Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805, 821-28 (M.D. Tenn. 2013); Backpage.com, LLC v. Hoffman, 2013 WL 4502097, at *5-7(D.N.J. Aug. 20, 2013), Doe 

ex rel. Roe v. Backpage.com, LLC, 104 F. Supp. 3d 149, 155-65 (D. Mass. 2015), aff’d sub 

nom. Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 18-24, 29 (1st Cir. 2016); 

Backpage.com LLC v. Dart, 807 F.3d 229, 233-34 (7th Cir. 2015). 

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Argument

The judicial decisions referenced in the defense openings all involved Section 230

and far less information about Backpage than is currently known. (See supra at 2 and n.2.) 

The decisions are “not applicable” to this case, as this Court has already found. (See id. at 

2.) Accordingly, they should be excluded as irrelevant under Rule 401-402. 

They also should be excluded under Rule 403. Discussing these decisions will create 

serious risks of confusing the issues, misleading the jury, and wasting time. The United 

States would have to explain that these cases involved different statutes, standards, parties, 

and facts. It would have to spend time articulating how numerous exhibits in this case were 

unknown to opposing litigants in earlier cases, and thus how the outcomes in those cases 

involved Backpage’s lack of transparency. This trial would devolve into a series of mini 

trials about those earlier cases. In addition, the United States faces the substantial, highly 

prejudicial risk that jurors could misconstrue these prior decisions as probative, or conclude 

that they should reach the same or similar results. See Engquist v. Oregon Dept. of Agric., 

478 F.3d 985, 1009-10 (9th Cir. 2007) (“[M]ost courts forbid the mention of [related] 

verdicts” because “[a] jury is likely to give” them “more weight” than warranted); States. 

v. Kealoha, 2019 WL 2620004, at *5-6 (D. Haw. June 26, 2019) (same); Marez v. Bassett, 

2011 WL 13213813, at *3 (C.D. Cal. Oct. 3, 2011) (barring discussion of results of related 

lawsuits because they “would likely . . . unduly sway[ ]” jurors and “give rise to timeconsuming tangents” about the other cases’ merits). 

Moreover, because the court instructs on the law, Defendants should be precluded 

from arguing legal authority to the jury at any stage of the trial. And, the cited decisions 

are inadmissible hearsay under Rule 802 and are not subject to admission under Rule 

803(22)—which only applies to prior criminal judgments. 

Conclusion 

 The Court should preclude all counsel, parties, and witnesses from referring at trial 

to the decisions, rulings, or opinions issued in, or the outcomes of, any prior litigation in 

which Backpage or any of its then-owners or parent companies was a plaintiff or defendant.

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Respectfully submitted this 8th day of June, 2023.

 GARY M. RESTAINO 

 United States Attorney 

 District of Arizona 

 KENNETH POLITE 

 Assistant Attorney General Criminal Division, U.S. Department of Justice 

 s/Kevin M. Rapp 

KEVIN M. RAPP 

 MARGARET PERLMETER 

 PETER KOZINETS 

 ANDREW STONE 

DANIEL BOYLE

 Assistant U.S. Attorneys 

 AUSTIN M. BERRY 

 Trial Attorney 

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CERTIFICATE OF SERVICE 

I hereby certify that on June 8, 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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