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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

v. 

Michael Lacey, et al.,

Defendants.

No. CR-18-00422-001-PHX-DJH

ORDER 

Defendants ask this Court to reconsider its recent denial of their Motion to Dismiss 

the Superseding Indictment. (Doc. 1622). In that Order, the Court rejected Defendants’

argument that the Superseding Indictment (“SI”) was deficient for failing to allege the 

elements of aiding and abetting when it charged Defendants with Travel Act violations. 

(Doc. 1587). Defendants argue that the United States Supreme Court’s June 23, 2023, 

decision in United States v. Hansen, -- S.Ct. --, 2023 WL 4138994 (2023) (“Hansen”)

requires reconsideration of that determination. (Id.) The Court allowed the parties to brief 

the issue, which they have done. (See Docs. 1628, 1630). Following the briefing, 

Defendants filed a Notice of Supplemental Authority (Doc. 1632), alerting the Court to the 

D.C. Circuit Court of Appeals decision in Woodhull Freedom Foundation v. United States, 

__ F.4th __, 2023 WL 4376244 (D.C. Cir. July 7, 2023) (“Woodhull”). The Government 

then filed a Notice of Response to the Notice of Supplemental Authority (Doc. 1633).1

 

1 Defendant Lacey then filed a “Supplemental Citation of Authorities in Support of Defndants’ [sic] Motion for Reconsideration of Order Denying Defendants’ Motion to 

Dismiss the Superseding Indictment” (Doc. 1639). Unlike Defendants’ Notice of 

Supplemental Authority, this filing does not alert the Court to new, arguably, intervening 

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The issue before the Court is whether either of these cases render the SI deficient 

for failing to allege the essential elements of aiding and abetting. The answer is no. 

I. Reconsideration Standards

Local Rule of Civil Procedure 7.2(g) sets forth the standard under which a Court 

reviews a Motion for Reconsideration. See also LRCrim 12.1 (noting applicability of 

LRCiv 7.1 and 7.2 to motions filed in criminal matters). Rule 7.2(g) states:

The Court will ordinarily deny a motion for reconsideration of an Order 

absent a showing of manifest error or a showing of new facts or legal 

authority that could not have been brought to its attention earlier with reasonable diligence. Any such motion shall point out with specificity the 

matters that the movant believes were overlooked or misapprehended by the 

Court, any new matters being brought to the Court’s attention for the first 

time and the reasons they were not presented earlier, and any specific 

modifications being sought in the Court's Order. No motion for 

reconsideration of an Order may repeat any oral or written argument made 

by the movant in support of or in opposition to the motion that resulted in the 

Order. Failure to comply with this subsection may be grounds for denial of 

the motion.

LRCiv 7.2(g). See also School Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 

1255, 1263 (9th Cir. 1993) (a motion for reconsideration is appropriate where the district 

court “(1) is presented with newly discovered evidence, (2) committed clear error or the 

initial decision was manifestly unjust, or (3) if there is an intervening change in controlling 

law”). Accord Navajo Nation v. Confederated Tribes & Bands of the Yakama Indian 

Nation, 331 F.3d 1041, 1046 (9th Cir. 2003) (“Reconsideration is indicated in the face of 

the existence of new evidence, an intervening change in the law, or as necessary to prevent 

manifest injustice.”); Motorola, Inc. v. J.B. Rodgers Mech. Contractors, 215 F.R.D. 581, 

586 (D. Ariz. 2003) (motions for reconsideration in this district will be granted when there 

law. Instead, it cites two Ninth Circuit cases issued years before this Court’s June 1, 2023, Order that stand for the proposition that when a defendant unsuccessfully challenges an 

indictment before trial, the issue is reviewed de novo on appeal, and if the appeals court determines that the indictment omitted an essential element, automatic dismissal is required 

regardless of whether the omission prejudiced the defendant. See United States v. Du Bo, 186 F.3d 1177 (9th Cir. 1999) and United States v. Qazi, 975 F.3d 989 (9th Cir. 2020). Defendant Lacey does not explain why these cases are appropriate for consideration with 

the Defendants’ Motion for Reconsideration. “Reconsideration may not be used to re- litigate old matters or to raise arguments or present evidence that could have been raised” 

in the initial motion movants are asking the Court to reconsider. See e.g., Ramsey v. Arizona, 2006 WO 2711490, at *1 (D. Ariz. 2006). “Such disagreements should be dealt with in the normal appellate process.” Id. The Court therefore deems the filing improper. 

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has been a change in the law that was decided or enacted after the Court’s decision). 

Motions for reconsideration should be granted only in rare circumstances and such a 

decision is within the sound discretion of the trial court. Navajo Nation, 331 at 1046; 

Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995); Kona Enters.,

Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir. 2000) (noting a denial of a motion for 

reconsideration is reviewed for abuse of discretion). 

II. Discussion 

Section 1952(a) of the Travel Act provides:

Whoever travels in interstate or foreign commerce or uses the mail or any 

facility in interstate or foreign commerce, with intent to . . . otherwise 

promote, manage, establish, carry on, or facilitate the promotion, 

management, establishment, or carrying on, of any unlawful activity . . . and 

thereafter performs or attempts to perform any of the acts specified in 

subparagraphs (1), (2), and (3), shall be fined not more than $ 10,000 or 

imprisoned for not more than five years, or both.

“Unlawful activity” is defined to include, in relevant part, “any business enterprise 

involving . . . prostitution offenses in violation of the laws of the State in which they are 

committed.” 18 U.S.C. § 1952(b)(1). The SI alleges fifty Travel Act violations against 

Defendants, violations that are listed as facilitating the promotion of “prostitution offenses 

in violation of the laws of the State in which they are committed and of the United States, 

including but not limited to Title 13, Arizona Revised Statutes, Section 13-3214.” 

(SI ¶ 200-01). The SI tracks the language of the Travel Act and alleges that Defendants 

used the mail and any facility in interstate and foreign commerce with intent 

to otherwise promote, manage, establish, carry on, and facilitate the 

promotion, management, establishment, and carrying on of an unlawful 

activity, to wit: prostitution offenses in violation of the laws of the State in 

which they are committed and of the United States, including but not limited 

to Title 13, Arizona Revised Statutes, Section 13-3214, and thereafter 

performed and attempted to perform an act that did promote, manage, 

establish, carry on, and facilitate the promotion, management, establishment, 

and carrying on of the unlawful activity. . . 

(Id. ¶ 201). The SI goes on to reference fifty specific ads published on Backpage between 

September 10, 2013, and February 6, 2018, that constitute the acts promoting or facilitating 

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the promotion of the unlawful business enterprise. (Id.) Elsewhere, the SI alleges that

Defendants “were aware that the overwhelming majority of Backpage’s ‘adult’ and ‘escort’

ads were actually ads for prostitution” and makes various allegations that Defendants knew

its various marketing efforts to prostitution advertisers helped them accomplish their

transactions. (See e.g., SI ¶¶ 34, 70, 71, 73, 76, 81, 107, 132, 135).

In their Motion to Dismiss (Doc. 1557), Defendants argued the SI’s Travel Act 

allegations were insufficient because it did not allege the elements of criminal aiding and 

abetting, and specifically that the SI did not allege Defendants acted “with the intent of 

facilitating the offense’s commission” or that the underlying offense had been committed. 

(Id. citing Rosemond v. United States, 572 U.S. 65, 70 (2014)). The Court disagreed and 

concluded that Ninth Circuit law did not require the SI to allege the elements of aiding and 

abetting in bringing Travel Act charges, but even if it did, the SI sufficiently alleged 

Defendants’ intent to aid or facilitate the commission of identified state crimes of 

prostitution, and that as a matter of law, elements of aiding and abetting would be read into 

a federal indictment anyway. (Doc. 1587). 

In their Motion for Reconsideration, Defendants argue that the Supreme Court’s 

recent decision in Hansen and the D.C. Circuit Court of Appeals’ decision in Woodhull

warrant reconsideration of those conclusions. In both cases, federal statutes were 

challenged on overbreadth grounds, and in both cases, the courts narrowly construed the 

statutes to uphold their constitutional reach. Defendants’ argument begs the limited 

question as to whether either of these cases altered the Ninth Circuit pleading requirements 

in alleging Travel Act charges.2

 They clearly do not. 

2 As they have done in their past motions, Defendants conflate burden of proof issues with 

pleading requirements. For example, in their Motion for Reconsideration, Defendants 

argue “like any aiding and abetting offense, a violation of the Travel Act requires proof that each Defendant knew about and intended to commit each element of the underlying 

offenses and proof of a violation of the underlying state law.” (Doc. 1622 at 4) (emphasis added). When assessing the sufficiency of an indictment, however, a court must only determine whether the indictment contains a “plain, concise, and definite written statement 

of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1); Hamling v. United States, 418 U.S. 87, 117 (1974). Assessing the sufficiency of the proof at this stage is entirely inappropriate and may constitute reversal error. United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996).

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The question before the Supreme Court in Hansen was whether a federal law that 

criminalizes “encouraging or inducing” an immigrant to come or remain in the United 

States unlawfully violated First Amendment freedom of speech guarantees. 2023 WL 

4138994, at *3. The defendant in Hansen conceded that the statute was constitutional as 

applied to him but that the statute’s terms encompassed a substantial amount of protected 

speech and therefore was unconstitutionally overbroad. Id. at *5. The Supreme Court 

disagreed. In so finding, the Court interpreted “encourage or induce” to be terms of art that 

Congress used in a specialized, criminal-law sense and explained that these terms “carry 

the usual attributes of solicitation and facilitation—including [], the traditional mens rea”

required of those offenses. Id. at *10. By interpreting “encouraging or inducing” to 

implicitly include the mens rea requirement of intent to bring about a particular unlawful 

act (as required for criminal solicitation and facilitation), the scope of the statute captured 

only a narrow band of speech not protected by the First Amendment. Id. 

The D.C. Circuit Court issued the Woodhull opinion a few weeks after the Hansen

decision. Woodhull, 2023 WL 4376244 (D.C. Cir. July 7, 2023). There, the court 

concluded that section 2421A(a) of the Allow States and Victims to Fight Online Sex 

Trafficking Act of 2017 (“FOSTA”) also was not unconstitutionally overbroad. Id.

FOSTA makes it a felony to “own[], manage[], or operate[] an interactive computer 

service, . . . or conspire[] or attempt[] to do so” if done “with the intent to promote or 

facilitate the prostitution of another person.” 18 U.S.C. § 2421A(a). The court rejected 

Woodhull’s argument that the terms “promote” and “facilitate” could be interpreted to 

broadly encompass activities such as generally advocating about prostitution or giving 

advice to sex workers to protect them from abuse. Id. at 7. The court first explained that

both verbs have specialized meaning when used in a criminal law context. Id. at 8. In that

context, the court found that “promoting prostitution” proscribes “owning, managing, or 

operating an online platform with the intent to recruit, solicit, or find a place of business 

for a sex worker—that is, to aid and abet prostitution.” Id. Noting that “facilitating 

prostitution” had not been similarly defined in criminal law, the court, invoking the 

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Supreme Court’s recent decision in Hansen, found that “‘facilitate’ is a synonym for aiding 

and abetting when that word is used in the context of criminal statutes.” Id. at *9. The court 

then reasoned “[s]o it seems clear that, in this statute, ‘facilitate prostitution’ is most 

naturally read to mean aiding and abetting prostitution,” in ways that reach “additional 

forms of aiding and abetting that go beyond the recruitment, solicitation, or finding of a 

place of business, which ‘promote’ already covers.” Id. Moreover, the court held, the

reach of what “facilitate” encompassed was limited by the “very specific criminal object” 

of the statute—namely, “of another person.” Id. at *10. 

What neither of these cases discuss, much less opine on, are pleading standards 

related to Travel Act indictments for promoting or facilitating the promotion of

prostitution. Their focus was instead on the constitutional reach of the respective statutes, 

or what conduct was encompassed and thus criminalized when Congress used statutory 

terms such as “encourage,” “induce,” “promote,” or “facilitate.” Both courts 

acknowledged that when read outside their statutory context, all could reach 

constitutionally protected speech. But the courts chose to limit the reach of these terms by 

invoking well-established traditional aiding and abetting law and proscribing only those 

actions done with the intent to bring about a particular unlawful act. They did not say that 

for indictments to stand under these statutes (neither of which was the Travel Act), the 

indictment must allege the essential elements of criminal aiding and abetting. 

In short, neither Hansen nor Woodhull changes the law on pleading standards for 

indictments nor overturns Ninth Circuit precedent that identifies the essential elements of 

a Travel Act violation. An indictment under the Travel Act requires allegations of each 

of the three elements of the crime: (1) interstate commerce or use of an interstate facility 

(2) with intent to promote an unlawful activity and (3) a subsequent overt act in furtherance 

of that unlawful activity. United States v. Tavelman, 650 F.2d 1133, 1138 (9th Cir. 1981). 

Here, the SI alleges that between 2004 and April 2018 (1) Defendants ran an interstate 

online website; (2) with the intent to promote or facilitate the promotion of prostitution; 

and (3) thereafter, between September 10, 2013, and February 6, 2018, Defendants 

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published 50 ads facilitating that unlawful activity. The SI is not deficient, and these cases 

do not provide the Court a reason to reconsider its prior order determining as much.

3

 

Accordingly, 

IT IS ORDERED that Defendants’ Motion for Reconsideration (Doc. 1622) is 

denied. 

Dated this 20th day of July, 2023.

Honorable Diane J. Humetewa

United States District Judge

3 Indeed, absent controlling law stating otherwise, the Court agrees with the Government 

that Defendants’ argument that the SI is deficient due to its failure to allege the elements 

of aiding and abetting “is a non-starter.” “Aiding and abetting is a lesser-included offense 

that need not be separately charged.” United States v. Palfrey, 499 F.Supp.2d 34, 42 

(D.D.C. 2007). 

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