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 

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 TESTIMONY, 

STATEMENTS, OR ARGUMENTS 

THAT ESCORT SERVICES, DATING 

ADS, MASSAGE SERVICES AND 

ADULT ADVERTISING ARE 

UNLAWFUL OR PRESUMED TO 

INVOLVE PROSTITUTION 

(Doc. 1588) 

 

Case 2:18-cr-00422-DJH Document 1604 Filed 06/15/23 Page 1 of 6
- 1 -

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

Re-urging arguments this Court has rejected, Defendants seek to preclude evidence 

that Backpage’s “escort” ads involved prostitution. (Doc. 1588.) Defendants’ logic goes 

like this: because “[l]icensed escort services,” “[d]ating services that comply with Arizona 

law regarding same,” and “[l]icensed massage services” are regulated as lawful activities

in Arizona, advertisements labeled as “escort,” “massage,” or “dating” necessarily offered

lawful services. (Doc. 1588 at 4-5.) But merely labeling an ad as one for an ostensibly 

lawful service does not make it so. Rather, the trial evidence will show that Defendants 

intentionally worked for years to build Backpage into the internet’s leading source of 

prostitution ads—and that, as used on Backpage, the label “escorts” functioned as a widely

understood euphemism for prostitution. For many reasons, Defendants’ motion to preclude 

evidence or argument on this critical topic should be denied.

Defendants’ “Presumption” Argument Lacks Merit. This Court has repeatedly 

rejected Defendants’ suggestion that the United States has merely “presumed” that 

Backpage’s “escort” ads were for illegal services. (Cf. Doc. 1588 at 4-5.) In October 2019, 

the Court rejected Defendants’ argument that the Superseding Indictment (SI, Doc. 230) 

“is based entirely on the assumption that the advertisements are for illegal activity. . . .

Defendants ignore [the SI],” which “is replete with specific facts that support finding that 

the conspirators knew the ads were for prostitution.” United States v. Lacey, 423 F. Supp. 

3d 748, 757 (D. Ariz. 2019). The SI’s 92-pages of detailed factual allegations, taken as 

true, “establish defendants had the specific intent to promote prostitution” and “conspired 

together to do so.” Id. at 764.

The Court also found that the SI’s allegations, if proven, show that the ads in Counts 

2-51 “are for prostitution.” Id. at 757-58. In support, the Court canvassed allegations that 

the ads included terms like “50 red roses special,” “GFE” or “girlfriend experience” (which 

several Defendants discussed is a “code word” or “solid sex for money term[ ]”), 

“disclaimers” that “customers agreed they were not affiliated with law enforcement,” 

pricing for short time periods (e.g., “I do half hour sessions that vary in donation prices, 80 

for head, 120 for hooking up without head”), and similar prostitution terms. Id. at 758-59. 

Case 2:18-cr-00422-DJH Document 1604 Filed 06/15/23 Page 2 of 6
- 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

In June 2021, Defendants again argued that the government had simply assumed

that prostitution offenses “include[] legal escort services.” (Doc. 1171 at 3-4.) The United 

States responded that “Defendants were aware that the overwhelming majority of ads in 

[Backpage’s ‘adult-escorts’ section] were for prostitution” and “deliberately pursued a 

number of business strategies specifically designed to attract more prostitution advertising 

customers and increase its prostitution-related revenues.” (Doc. 1176 at 15-16.) The United 

States summarized an array of supporting facts, including the guilty pleas and admissions 

of Backpage.com, LLC, Backpage’s then-CEO, and Backpage’s Sales and Marketing 

Director. (Doc. 1176 at 16-17.) The Court denied Defendants’ motion. (Doc. 1179.) 

And after the United States’ opening statement in the first trial, Defendants moved 

for a mistrial on September 6, 2021, arguing—in terms nearly identical to those here—that

the United States had “conflat[ed] escorts and prostitutes” by “substitut[ing] the word 

‘prostitute’ or ‘prostitution’ in place of the word ‘escort,’ which is a legal activity.” (Doc. 

1272, Mot. at 6.) In response, the United States argued it relied on no such “presumptions”; 

instead, “the evidence at trial will demonstrate that the 50 ads associated with the 

substantive Travel Act counts, along with the other Backpage ads discussed in the 

superseding indictment, were not advertisements for sale of an ‘escort,’ rather they were 

prostitution solicitations.” (Doc. 1275, Resp. at 16.)

The Court agreed: “The argument that the government has conflated or confused 

escorts versus prostitutes, one is legal and one is not, the government didn’t confuse them, 

they simply said that it is their belief that the evidence will show that the escort ads are 

really for prostitution. . . . [I]t’s their statement of what they believe the evidence will show, 

which is not an issue for a mistrial.” (Doc. 1342 at 9:5-11.) These rulings—which are law 

of the case—show the United States is not relying on a mere “presumption” that 

Backpage’s escort ads were for prostitution. 

Jurors May Properly Consider Both the Text and Context of the Ads, and Not 

Merely the Ads’ Labels. The United States does not quarrel with the general proposition 

that Arizona law defines certain lawful escort, dating, and massage services. (See Doc. 

Case 2:18-cr-00422-DJH Document 1604 Filed 06/15/23 Page 3 of 6
- 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

1588 at 4-5.) But it does not follow that “[s]ince each of the above services are legal in 

Arizona, any testimony or suggestion . . . that any of these services are really just fronts 

for prostitution . . . is legally and factually incorrect.” (Doc. 1588 at 5.) In support, 

Defendants cite 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), for the general 

proposition that the First Amendment “protects truthful commercial speech . . . about 

lawful products.” (Doc. 1588 at 5.) But “commercial speech related to illegal activity” is 

not protected by the First Amendment. Central Hudson Gas & Elec. Corp. v. Pub. Serv. 

Commn. of New York, 447 U.S. 557, 563 (1980). And Defendants cite no authority holding 

that an ad must explicitly propose an illegal transaction to fall outside the First Amendment.

Rather, the law is clear that jurors may consider both text and context in assessing 

these ads and Defendants’ intent to facilitate prostitution. The jury may properly consider 

the ads’ use of coded prostitution terms (e.g., “GFE,” “quickie, “incall/outcall,” 

“independent,” “no pimps”), cross-references to reviews on prostitution websites, prices 

tied to 15-, 30-, or 60-minute increments, explicit photos, disclaimers that customers must 

agree they are not affiliated with law enforcement, and similar evidence. See Lacey, 423 F. 

Supp. 3d at 757-58 (discussing similar indicia of prostitution ads); Pittsburgh Press Co. v. 

Human Relations Comm’n, 413 U.S. 376, 388 (1973) (employment ads were unlawful, and 

excluded from First Amendment protection, based on their text and context); United States 

v. White, 610 F.3d 956, 960 (7th Cir. 2010) (“that a request for criminal action is coded or 

implicit does not change its character as [unprotected] solicitation”); (Doc. 1216-3 at 185-

87; Doc. 1242 at 4-6).

In sum, the evidence referenced above is relevant to establishing the offenses 

charged in the SI, and its probative value is not substantially outweighed by any risk of 

undue prejudice. See United States v. LeMay, 260 F.3d 1018, 1026 (9th Cir. 2001) (all 

relevant evidence “might be said to be prejudicial if it tends to prove the prosecution’s 

case,” but that alone doesn’t support preclusion). Defendants’ motion (Doc. 1588) should 

be denied.

Case 2:18-cr-00422-DJH Document 1604 Filed 06/15/23 Page 4 of 6
- 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 

Respectfully submitted this 15th 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/Peter S. Kozinets 

KEVIN M. RAPP 

 MARGARET PERLMETER 

 PETER KOZINETS 

 ANDREW STONE 

DANIEL BOYLE

 Assistant U.S. Attorneys 

 AUSTIN M. BERRY 

 Trial Attorney 

Case 2:18-cr-00422-DJH Document 1604 Filed 06/15/23 Page 5 of 6
- 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 

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 

Case 2:18-cr-00422-DJH Document 1604 Filed 06/15/23 Page 6 of 6