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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-SMB

ORDER 

Pending before the Court is Defendants’ Motion in Limine to Preclude Certain 

References to Witnesses, Defendants, and Defense Counsel. (Doc. 904.) The Government 

filed a Response. (Doc. 962.)

Defendants seek relief on two separate issues. First, they seek an order precluding 

the Government from referring to Defendants as the “Backpage Defendants” and 

Defendants’ counsel as “Backpage Lawyers.” Second, they seek an order precluding the 

Government and/or witnesses from referring to any individuals as “victims” in front of the 

jury. In response, counsel for the Government agree not to refer to defense counsel as the 

Backpage Lawyers, and the Court will hold them to that agreement. Thus, the Court will 

not address that issue in this Order. 

Defendants argue that referring to Defendants as “Backpage Defendants” 

inappropriately suggests guilt because the corporate defendant Backpage has pled guilty. 

They also argue that the reference is factually incorrect because the remaining Defendants 

no longer held an ownership interest in the company at the time the business stopped 

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operating. They argue that this reference should not be allowed because “‘[t]hat one is 

married to, associated with, or in the company of a criminal does not support the inference 

that that person is a criminal or shares the criminal's guilty knowledge.’” United States v. 

Polasek, 162 F.3d 878, 883 (5th Cir. 1998) (quoting United States v. Forrest, 620 F.2d 446, 

451 (5th Cir.1980)). The Government responds by arguing that during victim or law 

enforcement testimony, there may be a need to distinguish between a pimp/trafficker 

defendant and the Defendants in this case (the Backpage Defendants). Since there are no 

defendants in this case that are charged as pimps/traffickers, the Court sees no need to make 

this distinction. The Government also anticipates the need to refer to the Defendants as a 

collective group to shorten the questions posed to witnesses. The Government can do so 

by referring to the Defendants without qualifying the group with the title “Backpage.” The 

Court will grant Defendants’ motion to preclude the Government from referring to the

Defendants as the “Backpage Defendants.” 

Defendants next argue that “allowing the Government or its witnesses to use the 

term ‘victim’ in front of the jury would turn the presumption of innocence on its head.” 

(Doc. 904 p. 6.) They argue that the use of the term victim eviscerates that presumption. 

The Court disagrees. The “victims” referred to in the indictment, and potentially at trial,

are indeed victims. A crime was committed against them, and it’s the Government’s 

burden to prove who committed the crime. A person need not be found guilty beyond a 

reasonable doubt before there can be a crime victim. Victim’s rights attach well before a 

determination of guilt. See In re: Dean, 527 F.3d 391, 395 (5th Cir. 2008) (holding the 

CVRA was violated when the government failed to confer with victims prior to entering 

into a plea agreement and before charges were filed); U.S. v. Turner, 367 F.Supp.2d 319, 

335 (E.D.N.Y. 2005) (crime victims must be given notice of a defendant’s initial 

appearance). Additionally, reference to a witness as a victim does not impact the 

Government’s burden to prove each Defendant guilty beyond a reasonable doubt. See 

United States v. Huynh, No. 4-CR-14-275, 2016 WL 7411529, at *7 (M.D. Pa. Dec. 22, 

2016) (“Simply because a person or entity involved in this case is accurately referred to as 

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a ‘victim,’ in no way furthers the governments burden to prove beyond a reasonable doubt 

that Huynh is, in fact, guilty of a crime.”). “No authority establishes that for the prosecutor 

to refer to the alleged victim as the ‘victim’ at trial is impermissible.” Holt v. Sec'y, Fla. 

Dep't of Corr., 489 F.Appx. 336, 338 (11th Cir. 2012).

Defendants also argue that because victims in this case don’t qualify as “victims” 

under the Crime Victims’ Rights Act (“CVRA”), the term should be precluded. A crime 

victim is defined as a person directly and proximately harmed as a result of the commission 

of a federal offense. 18 U.S.C. § 3771(e)(2)(A). The CVRA gives certain rights to victims 

of federal offenses. The purpose of this motion in limine is not to restrict a victim’s rights 

under the CVRA or to preclude a victim from asserting rights under the CVRA. Therefore,

while the Act’s definition of “victim” may be useful in some cases, it is not controlling in 

the context of this motion in limine. Nevertheless, the victims identified in the Superseding 

Indictment would qualify as victims under the CVRA. “A person is directly harmed by the 

commission of a federal offense where that offense is a but-for cause of the harm. A person 

is proximately harmed when the harm is a reasonably foreseeable consequence of the 

criminal conduct.” In re Fisher, 640 F.3d 645, 648 (5th Cir. 2011). Here, Defendants are 

charged in Count 1 of the Superseding Indictment with Conspiracy to commit a violation 

of the Travel Act by facilitating business enterprises involving prostitution. The victims 

listed in the Superseding Indictment have all been harmed as a result of solicitations 

published on www.backpage.com during the time of the conspiracy.

Defendants also argue that the use of the term “victim” should be precluded under 

Fed. R. Evid. 403. Pursuant to the rule, “The court may exclude relevant evidence if its 

probative value is substantially outweighed by a danger of one or more of the following: 

unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or 

needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Defendants argue that use 

of the term would be unfairly prejudicial. Evidence is not unfairly prejudicial simply 

because it tends to prove guilt, it must tend to encourage a jury to find guilt from improper 

reasoning. See U.S. v. Farrington, 499 F.3d 854, 859 (8th Cir. 2007). “Evidence is unfairly 

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prejudicial only if it has ‘an undue tendency to suggest decision on an improper basis, 

commonly, though not necessarily, an emotional one.’” Carter v. Hewitt, 617 F.2d 961, 

972 (3d Cir. 1980) (quoting Advisory Committee’s Note, Fed. R. Evid. 403). The Court 

finds that use of the term “victim” would not be unfairly prejudicial considering the facts 

of this case.

IT IS ORDERED granting in part and denying in part Defendants’ Motion in 

Limine To Preclude Certain References to Witnesses, Defendants, and Defense Counsel.

(Doc. 904.) The motion is granted as to the requests to preclude the Government from 

referring to Defendants as the “Backpage Defendants” and Defendants’ counsel as 

“Backpage Lawyers.” The motion is denied as to the request to preclude the term “victim” 

in front of the jury.

Dated this 26th day of October, 2020.

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