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Timothy J. Eckstein, 018321

Joseph N. Roth, 025725

Sarah P. Lawson, 036436

OSBORN MALEDON, P.A.

2929 North Central Avenue, 20th Floor

Phoenix, Arizona 85012-2793

(602) 640-9000

teckstein@omlaw.com

jroth@omlaw.com

slawson@omlaw.com

Attorneys for James Larkin

Additional counsel on following page

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Michael Lacey, et al.,

Defendants.

Case No. 2:18-cr-00422-PHX-DJH

DEFENDANTS’ MOTION IN 

LIMINE TO PRECLUDE 

IRRELEVANT AND PREJUDICIAL 

TESTIMONY1

(Oral Argument Requested)

1 Undersigned counsel certifies that they have conferred with the government in an effort 

to resolve the disputed evidentiary issues that are the subject of these motions.

Case 2:18-cr-00422-DJH Document 1589 Filed 06/08/23 Page 1 of 8
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Paul J. Cambria, Jr. (NY 15873, admitted pro hac vice)

Erin E. McCampbell (NY 4480166, admitted pro hac vice)

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

(716) 849-1333

pcambria@lglaw.com

emccampbell@lglaw.com

Attorneys for Michael Lacey

Bruce S. Feder (AZ 004832)

FEDER LAW OFFICE PA

2930 E. Camelback Rd., Suite 160

Phoenix, Arizona 85016

(602) 257-0135

bf@federlawpa.com

Eric Walter Kessler

KESSLER LAW OFFICE

6720 N. Scottsdale Rd., Suite 210

Scottsdale, Arizona 85253

(480) 644-0093

Eric.kesslerlaw@gmail.com

Attorneys for Defendant Scott Spear

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW P.C.

1875 Century Park E., Suite 2300

Los Angeles, California 90067

(310) 201-2100

glincenberg@birdmarella.com

gpanchapakesan.@birdmarella.com

aneuman@birdmarella.com

Attorneys for John Brunst

David S. Eisenberg

DAVID EISENBERG PLC

3550 N. Central Ave., Ste. 1155

Phoenix, Arizona 85012

(602) 237-5076

david@eisenbergplc.com

Attorneys for Andrew Padilla

Case 2:18-cr-00422-DJH Document 1589 Filed 06/08/23 Page 2 of 8
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Joy Malby Bertrand

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

(480) 656-3919

joyous@mailbag.com

Attorneys for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 1589 Filed 06/08/23 Page 3 of 8
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Defendants move to preclude irrelevant and unfairly prejudicial witness testimony 

about the experiences of persons engaging in prostitution (including as a victim of sex 

trafficking) and crimes committed by or against such persons.

Proposed Order: Evidence about a person engaging in prostitution or being 

trafficked is precluded, unless (1) the evidence relates to one or more of the fifty charged 

ads and (2) one or more defendants knew that the person who was the subject of a charged 

ad was engaged in prostitution or was being trafficked at the time the charged ad was 

posted or while it was published on the website.

Background. Although the Court previously considered a related MIL (Docs. 911, 

1156), this motion is brought due to new facts: namely, the mistrial resulting from the 

government repeatedly eliciting irrelevant and prejudicial trial testimony. Before the first

trial, the Court ruled admissible evidence that “people were trafficked using 

Backpage.com,” including testimony about “how ads were created, drafted, edited, and 

paid for” as long the government did not “linger on the details of the abuse sex trafficking

victims suffered.” Doc. 1156 at 4, 5. This instruction proved insufficient to prevent the 

government from repeatedly eliciting irrelevant, inflammatory testimony regarding crimes 

(including sex trafficking) the defendants did not know about and are not charged with. A 

mistrial resulted when, beginning “in the opening, and with every witness thereafter . . . 

the government [] abused th[e] leeway” given to elicit testimony to show defendants were 

on notice that some people posted adult ads on Backpage.com that were associated with 

illegal activities. Moreover, despite the Court’s order to the contrary, the testimony was 

“not tethered to any communication with the defendants.” Doc. 1347 at 4-5.

The government intends at retrial to press the same case, listing most of the same 

witnesses, and recently saying its case will essentially be a repeat, including the “witnesses 

who are trafficking victims who are going to be testifying to their postings” and “talking 

about how they were involved in a business enterprise.” Doc. 1576, 3/20/23 Tr. at 20. 

The government still lists 15 witnesses who allegedly engaged (or had family members who 

allegedly engaged) in prostitution or were trafficked, as well as multiple law enforcement 

Case 2:18-cr-00422-DJH Document 1589 Filed 06/08/23 Page 4 of 8
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witnesses who investigated cases related to the charged ads, but also unrelated ads.2

Argument. Defendants are “not indicted for facilitating the amorphous notion of 

‘prostitution’” but “for facilitating (via publishing ads) on fifty distinct occasions where 

prostitutes, prostitution-related business, or other groups were involved in the business of 

prostitution.” Doc. 946 at 13. “[T]his case is not about Backpage . . . [t]his case is about 

these individual defendants and whether they had specific knowledge of these ads as 

facilitating illegal activity.” Doc. 1099 at 38. Moreover, “one cannot intend to 

promote/facilitate a business enterprise one does not know exists.” Doc. 946 at 15-16. 

Accordingly, the government must prove, among other things, that defendants knew of 

and intended to facilitate the individual “prostitutes [or] prostitution-related businesses” 

related to the fifty charged ads. A witness’s testimony about a person engaging in 

prostitution or being trafficked could not make the defendants’ intent related to a charged 

ad “more or less probable,” Fed. R. Evid. 401, unless that person’s experience is (1) related 

to a charged ad and (2) defendants knew that person was engaged in prostitution or was 

being trafficked at the time that ad was posted or while it was published on the website. 

Otherwise, the testimony has no bearing on any fact “of consequence in determining the 

action,” id.

For example, Jessika Svendgard testified at trial to running away from home, 

watching a friend performing acts of prostitution, performing acts of prostitution herself, 

her relationship with her pimps, and her role in one pimp’s eventual prosecution. See Doc. 

1334, Trial Tr. Day 6 (A.M.) at 69-89; Doc. 1335, Trial Tr. Day 6 (P.M.) at 11. None of 

this testimony related to any of the fifty charged ads, to whether any defendant had 

contemporaneous knowledge of the facts to which she testified, or to any defendant’s 

knowledge or intent with respect to any of the charged ads. Moreover, the government 

2 The 15 witnesses are Anya Beck, Sara Beck, Astrid Cervantes, Naomi Figueroa, 

Shaniqua Fraizer, Breahannah Leary Hodges, Megan Lundstrom, Destinee Ortiz, and 

Jordan Thurman (each of whom purportedly has some connection to a charged ad) and 

Andrea Benson, Priscilla Harrison, Kubiiki Pride, Arshana Sanders, Jessika Svendgard, 

and Nacole Svendgard (each of whom has no connection to a charged ad). 

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elicited through Ms. Svendgard precisely what the Court had prohibited: “testimony from 

people engaged in prostitution regarding the details of their lifestyles except as it relates to 

their use of Backpage.com.” Doc. 1156 at 6 (emphasis added). 

Put simply, this kind of testimony has no relevance to the elements of the Travel 

Act charges (or the related conspiracy charge) and serves only to provoke the jury’s 

sympathy, inflaming it against defendants for having been associated with the online 

classified ad web platform on which a pimp placed ads. See Doc. 1156 at 5 (holding that 

“[t]estimony from people involved in prostitution is only relevant as it relates to their use 

of Backpage.com and notice to defendants that prostitutes were using their website. 

Testimony concerning the lifestyle and impact that prostitution had on witnesses’ lives is 

irrelevant to the crimes charged”).

Lacking relevance, such testimony is “unfairly prejudicial” because it tends “to 

suggest or encourage a decision on an improper basis, commonly . . . an emotional one.” 

U.S. v. Ellis, 147 F.3d 1131, 1135 (9th Cir. 1998). Therefore, to avoid unfair prejudice, the 

government should be precluded from presenting testimony from or about persons who 

were engaged in prostitution if those acts of prostitution had no connection to the fifty 

charged ads. Even with respect to evidence that might relate to one of the charged ads, 

the Court should not permit the testimony unless the government establishes one or more 

defendants’ contemporaneous knowledge that the subject of a charged ad was engaged in 

prostitution or was being trafficked. In addition, the Court has already held that such

testimony must exclude all “day in the life” testimony and is limited to the use of 

Backpage.com (how ads were created, drafted, edited, and paid for), the association of a 

charged ad to an act or acts of prostitution, and any defendant’s knowledge or intent with 

respect to any such ad(s). See Doc. 1156 at 5.

The inadequate constraints on the government during the first trial, and the 

resulting prejudice to defendants, ultimately required a mistrial. Doc. 1347 at 4-5. The 

order proposed in this Motion will ensure relevant evidence is admitted, while mitigating 

the risk of the repeat of the same prejudice. 

Case 2:18-cr-00422-DJH Document 1589 Filed 06/08/23 Page 6 of 8
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DATED this 8th day of June, 2023.

OSBORN MALEDON, P.A.

By s/ Joseph N. Roth

Timothy J. Eckstein

Joseph N. Roth

Sarah P. Lawson

2929 North Central, 20th Floor

Phoenix, Arizona 85012-2794

Attorneys for James Larkin

LIPSITZ GREEN SCIME CAMBRIA LLP

By s/ Paul J. Cambria, Jr. (w/permission)

Paul J. Cambria, Jr. (pro hac vice)

Erin E. McCampbell (pro hac vice)

42 Delaware Avenue, Suite 120

 Buffalo, New York 14202

Attorneys for Michael Lacey

FEDER LAW OFFICE PA

By s/ Bruce S. Feder (w/permission)

Bruce S. Feder

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

KESSLER LAW OFFICE

By s/ Eric W. Kessler (w/permission)

Eric W. Kessler

6720 N. Scottsdale Rd., Suite 210

Scottsdale, Arizona 85253

Attorneys for Scott Spear

Case 2:18-cr-00422-DJH Document 1589 Filed 06/08/23 Page 7 of 8
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BIRD, MARELLA, BOXER, WOLPERT,

NESSIM, DROOKS, LINCENBERG & 

RHOW P.C.

By s/ Gary S. Lincenberg (w/permission)

Gary S. Lincenberg

Gopi K. Panchapakesan

Ariel A. Neuman

1875 Century Park E., Suite 2300

Los Angeles, California 90067

Attorneys for John Brunst

DAVID EISENBERG PLC

By s/ David S. Eisenberg (w/permission)

David S. Eisenberg

3550 N. Central Ave., Ste. 1155

Phoenix, Arizona 85012

Attorneys for Andrew Padilla

JOY BERTRAND LAW 

By s/ Joy M. Bertrand (w/permission)

Joy M. Bertrand

P.O. Box 2734

Scottsdale, Arizona 85252

Attorneys for Joye Vaught

Case 2:18-cr-00422-DJH Document 1589 Filed 06/08/23 Page 8 of 8