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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 

NICOLE M. ARGENTIERI 

Acting 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’ OBJECTIONS TO 

JURY INSTRUCTIONS DRAFT 

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The United States files this short objection to identify discrete issues with the 

Court’s Jury Instructions Draft, which was emailed in Word format to the parties on 

October 20, 2023.

TABLE OF CONTENTS

If the Court distributes hardcopies of the Jury Instructions to the jury, the United 

States respectfully requests that the Table of Contents be revised to exclude references to 

any instructions that will not be given.

1.2 THE CHARGE—PRESUMPTION OF INNOCENCE

The wording of this instruction contains several variations from the wording that 

the Court used when it read the corresponding Preliminary Instructions to the jury. (See

8/31/23 PM Daily Tr. at 15-22.) If the Court plans to again read this summary of the charges 

in Counts 1-100 to the jury, the United States respectfully requests that the Court make the 

following changes.

1. Counts 2-51: Travel Act Violations: The description of the charge includes 

a third element—“the defendant did something that was a substantial step toward 

committing the crime and that strongly corroborated the defendant’s intent to commit the 

crime.” This third element is not set forth in the corresponding Preliminary Jury 

Instructions. Moreover, it’s only appropriate if the government is charging an attempted 

Travel Act violation—which it is not doing here. This third element should be stricken.

2. Counts 2-51: Pinkerton elements: The Pinkerton instruction on page 7 is 

inaccurate. In the first element, the instruction improperly states that a “defendant” must 

have committed the charged Travel Act offense, rather than a “member” of the conspiracy.

Page 35 of the Court’s Jury Instructions Draft contain the appropriate instruction, as did 

the Court’s Preliminary Instructions in this trial (8/31/23 PM Daily Tr.) and in the first 

trial. (Doc. 1311 at 4.) ]

Based on those instructions, the first three elements of the Pinkerton instruction 

should read as follows: 

o First, a member of the conspiracy committed the Travel Act offense alleged 

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in that count; 

o Second, the person was a member of the conspiracy charged in Count 1 of 

the indictment; 

o Third, the person committed the Travel Act offense in furtherance of the 

conspiracy. 

(See, e.g., Doc. 1656 at 37.) Under Pinkerton, if the jury found that Carl Ferrer, Dan Hyer, 

or James Larkin committed the Travel Act offense, Defendants could be found guilty if the

other Pinkerton elements are satisfied. This applies with equal force to other coconspirators even if they aren’t defendants in this trial. 

 3. Money Laundering Counts: The first line(s) of each of these counts should 

be revised to identify the names of the Defendants who are charged with the various counts. 

See below (with additions in underscore): 

Count 52: Conspiracy to Commit Money Laundering: “Defendants Lacey, Spear, 

and Brunst are charged in Count 52 of the indictment with money laundering conspiracy 

in violation of Section 1956(h) of Title 18 of the United States Code.” 

Count 53–62: Concealment Money Laundering: “Defendants Lacey, Spear, and 

Brunst are charged in Counts 53–62 of the indictment with concealment money laundering 

in violation of Section 1956(a)(1)(B) of Title 18 of the United States Code.” 

Count 63–68: International Promotional Money Laundering: “Defendants Lacey, 

Spear, and Brunst are charged in Count 63–68 of the indictment with transporting funds to 

promote unlawful activity in violation of Section 1956(a)(2)(A) of Title 18 of the United 

States Code.” 

Moreover, the first element of Counts 63-68 should be changed as follows to 

conform to the instruction on Page 52: “First, the defendant transported money from a 

place in the United States to or through a place outside the United States or to a place in 

the United States from or through a place outside of the United States. . . .” 

Count 69–99: Transactional Money Laundering: “Defendant Lacey is charged in 

Counts 69-70, 81, 83-84, 86, 88-92, and 94-99; Defendant Spear is charged in Counts 71-

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78, 85, and 93; and Defendant Brunst is charged in Counts 69-70, 78-84, and 86-93, of the 

indictment with transactional money laundering in violation of Section 1957 of Title 18 of 

the United States Code. Defendants are charged in Counts 69-99 of the indictment with 

transactional money laundering in violation of Section 1957 of Title 18 of the United States 

Code.” 

 Count 100: International Concealment Money Laundering: “Defendants Lacey is 

are charged in Count 100 of the indictment with transporting money for the purpose of 

laundering in violation of Section 1956(a)(2)(B) of Title 18 of the United States Code. For 

each the defendant to be found guilty of that charge 

11.1 CONSPIRACY—ELEMENTS 

1. In the second element of the Conspiracy charge (Jury Instructions Draft at 

27), the Court should remove the word “illegal.” The Court did so in the Preliminary Jury 

Instructions, for all the reasons set forth in Doc. 1743. (See also Doc. 1788.) 

2. The Court should remove the section titled “Unanimity Requirements.” 

(Jury Instructions Draft at 29.) A specific unanimity instruction may be required when there 

are multiple conspiracies at issue. See United States v. Echeverry, 719 F.2d 974, 975 (9th 

Cir. 1983). Here, however, the United States has only alleged one conspiracy—conspiracy 

to violate 18 U.S.C. § 1952(a)(3)(A). Doc. 230 at 49. This instruction isn’t needed. 

3. If, however, the Court is inclined to include the “Unanimity Requirements” 

section within the Conspiracy instruction, then the language needs to be reworked. First, 

the word “illegal” should be removed. Second, the language should be modified to track 

the language in the first element of the instruction. Namely, everything after “object of the 

alleged conspiracy” on page 29 should be changed to read: “promoting or facilitating the 

promotion of any business enterprise involving prostitution offenses.” This would make 

the jury instruction internally consistent. The language currently in the “Unanimity 

Requirements” misstates the applicable law. The United States need not prove that a 

particular business enterprise committed a prostitution offense. United States v. Winslow, 

962 F.2d 845, 852 (9th Cir. 1992) (“Section 1952(a)(3) requires the government to prove 

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only that a defendant committed a subsequent overt act in furtherance of the unlawful 

activity. . . . Unlike the crime of attempt, the Travel Act does not require that the 

government establish that the accused took a substantial step in furtherance of the intended 

unlawful activity.”) (internal quotations and citations omitted); Order (Doc. 1587) at 6 

(“The Ninth Circuit has clarified that the Travel Act does not require the commission of 

the predicate offense; rather, only an attempt to promote the unlawful activity with a 

subsequent overt act in furtherance of that unlawful activity.”) (cleaned up). Even if that 

weren’t the law, conspiracy is an inchoate offense that doesn’t require a crime to have 

actually been completed. See United States v. Castillo, 69 F.4th 648, 652 (9th Cir. 2023) 

(“Conspiracy is an inchoate offense that is separate and independent from the crime that is 

the subject of the conspiracy.”); United States v. Iribe, 564 F.3d 1155, 1160 (9th Cir. 2009) 

(“Conspiracy to commit a crime is not equivalent to the completion of that crime.”). 

11.4 CONSPIRACY – KNOWLEDGE OF AND ASSOCIATION WITH OTHER 

CONSPIRATORS 

The first element of this instruction, on page 34 of the Jury Instructions Draft, has 

the word “illegal” before “objects.” The word “illegal” should be stricken for the reasons 

discussed in Docs. 1743 and 1788. 

18.1 TRAVEL ACT—INTERSTATE OR FOREIGN TRAVEL IN AID OF 

RACKETEERINGENTERPRISE (18 U.S.C. § 1952(a)(3)) 

On page 38, the Travel Act instruction includes a third element regarding a 

“substantial step.” Because the United States is not proceeding on an attempt theory here, 

and to make this instruction consistent with the Preliminary Jury Instructions delivered on 

August 31, 2023, this third element should be stricken, as follows: 

Third, the defendant did something that was a substantial step toward 

committing the crime and that strongly corroborated the defendant's intent to 

commit the crime. Mere preparation is not a substantial step toward committing the 

crime. To constitute a substantial step, a defendant's act or actions must demonstrate 

that the crime will take place unless interrupted by independent circumstances. 

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Jurors do not need to agree unanimously as to which particular act or actions 

constituted a substantial step toward the commission of a crime. 

(Jury Instructions Draft at 38.) 

18.4 LAUNDERING MONETARY INSTRUMENTS 

(18 U.S.C. § 1956(a)(1)(B)) 

The first line of this instruction (Jury Instructions Draft at 51) should be revised as 

follows: “Defendants Lacey, Larkin, Spear, and Brunst are charged in Counts 53-62 . . . .”

18.5 TRANSPORTING FUNDS TO PROMOTE 

UNLAWFUL ACTIVITY

(18 U.S.C. § 1956(a)(2)(A)) 

The first line of this instruction (Jury Instructions Draft at 52) should be revised as 

follows: “Defendants Lacey, Larkin, Spear, and Brunst are charged in Counts 63-68 . . . .”

18.6 TRANSPORTING MONETARY INSTRUMENTS FOR THE 

PURPOSE OF LAUNDERING 

(18 U.S.C. § 1956(a)(2)(B)) 

The “substantial step”/fourth element in this jury instruction should be omitted, 

because the United States is not proceeding on an attempt theory for Count 100. 

Accordingly, all of the following language on page 53 should be struck: 

Fourth, the defendant did something that was a substantial step toward 

committing the crime. 

A “substantial step” is conduct that strongly corroborated the 

defendant’s intent to commit the crime. To constitute a substantial step, a 

defendant’s act or actions must unequivocally demonstrate that the crime will 

take place unless interrupted by independent circumstances. Mere 

preparation is not a substantial step toward committing the crime of 

transporting money for the purposes of laundering. 

Jurors do not need to agree unanimously as to which particular act or 

actions constituted a substantial step toward the commission of a crime. 

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18.7 MONEY LAUNDERING 

(18 U.S.C. § 1957) 

The portion of the first sentence pertaining to Mr. Larkin should be stricken. (Jury 

Instructions Draft at 54) (“Defendant Larkin is charged in Counts 80 and 87.”) 

To conform to the preliminary or introductory instruction on page 10, the fourth 

element should be revised as follows: “Fourth, the property was, in fact, derived from 

specified unlawful activity, that is promoting or facilitating the promotion of any business 

enterprise involving prostitution offenses; and. . . . Fourth, the property was, in fact, derived 

from violations of the Travel Act. . . .” 

18.7A MONEY LAUNDERING CONSPIRACY 

(18 U.S.C. § 1956(h)) 

The first sentence should be revised as follows: “Defendants Lacey, Larkin, Spear, 

and Brunst are charged in Count 52. . . .” (Jury Instructions Draft at 56.) 

Respectfully submitted this 23rd day of October, 2023.

 GARY M. RESTAINO 

 United States Attorney 

 District of Arizona 

 NICOLE M. ARGENTIERI 

Acting Assistant Attorney General 

Criminal Division, U.S. Department of Justice 

 s/Andrew C. Stone 

 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 October 23rd, 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 

Legal Assistant 

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