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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 

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’ MOTION 

IN LIMINE TO PRECLUDE 

REFERENCES TO FIRST 

AMENDMENT AND FREE SPEECH 

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The United States moves in limine to preclude defense counsel, Defendants, and 

their witnesses from referencing the First Amendment and “free speech” at any time in the 

presence of the jury.

1 In their September 8, 2021 opening statements, defense counsel 

repeatedly framed this case as “about free speech and the limits on the government to 

prosecute those who provide a location, a platform for other people to place legal speech.” 

(Doc. 1342 at 18:9-11). Other examples include: 

• “This whole case is about the First Amendment.” (Doc. 1342 at 76:10-11.) 

• “They’ve done nothing wrong except maintain our First Amendment[.]” (Doc. 1342

at 77-:10.) 

• “It’s also my privilege to be a part of this group to represent all of these folks in the 

defense of their First Amendment rights.” (Doc. 1342 at 78:2-3.) 

• “The danger of not having a clear standard . . . is what undermines our First 

Amendment. A slippery slope. Once we go past an illegal ad, sex for money, to 

anything other than that, kiss it good-bye.” (Doc. 1342 at 85:20-24.) 

• “[T]his is [a] prosecution against a First Amendment provider.” (Doc. 1342 at 94:8-

9.) 

• “[Defendants] believe in the First Amendment and the proof will show that they're 

the real deal.” (Doc. 1343 at 28:8-10.) 

Counsel trumpeted the First Amendment or free speech over 50 times in their openings.2

 

Yet, before opening statements began, this Court had already ruled that the 

allegations in the Superseding Indictment (SI, Doc. 230), if proven at trial, show that the 

First Amendment has no application to this case. Defendants are charged with conspiracy, 

1 Certification: On June 5, 2023, counsel for the United States met and conferred in good faith with Defendants’ counsel regarding the relief requested in this motion, and the parties 

could not reach agreement. The Court has not previously considered or ruled on the motion. 

2 See also Doc. 1342 at 19:8, 24:12, 24:20, 26:17, 26:20, 30:3, 34:10, 41:3, 41:8, 41:12, 

50:6, 51:25, 54:6, 54:21, 56:13, 56:20, 57:3, 58:15, 58:16, 58:18, 59:3, 60:7, 60:24-25, 

61:19, 62:11, 62:15, 62:19, 66:2, 70:6, 73:7, 73:12, 73:16, 75:21,76:2, 76:11, 76:22, 77:10, 

78:4, 80:5, 81:15, 81:19, 85:9, 85:22, 86:1, 86:3, 86:8, 86:9, 89:18, 94:9; Doc. 1343 at

16:25, 28:7-10, 28:21, 33:19, 34:1, 36:1, 39:24, 41:15. 

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Travel Act violations, and money laundering offenses arising from their oversight or 

operation of Backpage.com, LLC. (See generally SI.) This Court ruled that “taking the 

allegations in the SI as true, as the Court must, the Government has met its burden of 

showing the fifty ads in the SI are for prostitution.” United States v. Lacey, 423 F. Supp. 

3d 748, 757 (D. Ariz. 2019). Such solicitations are “categorically excluded” from First 

Amendment or “free speech” protection. United States v. Williams, 553 U.S. 285, 297 

(2008). Moreover, this Court found that Defendants’ conduct, as charged in the SI, falls

outside “traditional, editorial functions” protected by the First Amendment. Lacey, 423 F. 

Supp. 3d. at 760 (finding the SI alleges conduct “qualitatively different” from the protected 

activities in the cases Defendants cited). The Court also ruled that the SI’s Travel Act 

charges, as applied here, do not violate the First Amendment. Id. at 764-66.

Moreover, the Court had considered, and rejected, Defendants’ request for 

preliminary jury instructions on the First Amendment. Ruling from the bench, just before

the opening statements, the Court announced that it had emailed the parties “a corrected 

draft of the preliminary jury instructions” that “on purpose doesn’t include a First 

Amendment instruction.” (Doc. 1340 at 25:10-12.) The parties had briefed this issue (see, 

e.g., Doc. 1216-3 at 164; Doc. 1236; Doc.1242), and argued it. (Doc. 1432 at 36:14-66:12). 

The Court stated “I have done the research, considered the arguments that were previously 

presented, the new information [defense counsel] presented, and have declined to include

that in the preliminary jury instructions.” (Doc. 1340 at 25:14-17.)3

Notwithstanding these rulings, defense counsel repeatedly portrayed the First 

Amendment as an absolute defense in their opening statements. (See supra at 1.) But the 

Court instructs on the law, not attorneys. United States v. Brodie, 858 F.2d 492, 496 (9th 

Cir. 1988) (“[r]esolving doubtful questions of law is the distinct and exclusive province of 

3 The Court’s ruling was supported by ample authority recognizing that the time to consider

whether any First Amendment instructions should be given is at the close of the evidence. (See Doc. 1242 at 2-4 (citing United States v. Freeman, 761 F.2d 549, 552, 552 (9th Cir. 

1985; United States v. Rowlee, 899 F.2d 1275, 1280 (2d Cir. 1990); United States v. White, 610 F.3d 956, 962 (7th Cir. 2010).)

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the trial judge,” and “the judge, not counsel, instructs the jury on the law”), overruled on 

other grounds by United States v. Morales, 108 F.3d 1031 (9th Cir. 1997). For this reason 

alone, Defendants should be precluded from citing the First Amendment or arguing 

constitutional law before the jury. See, e.g., United States v. Zielie, 734 F.2d 1447, 1455 

(11th Cir. 1984) (judge did not abuse discretion by preventing defendant from making 

disputed legal arguments during opening statement), abrogated on other grounds 

by United States. v. Chestang, 849 F.2d 528, 531 (11th Cir. 1988)). Defendants should not 

be allowed to circumvent the Court’s rulings—and confuse the issues, mislead the jury, 

and waste time—by making inapplicable legal arguments. See Fed. R. Evid. 401-403. 

Further, if Defendants make arguments to the jury about what the First Amendment

means and how it should apply here, they would essentially be arguing for nullification—

which is not allowed. United States v. Lewis, 2023 WL 1990544, at *2 (9th Cir. Feb. 14, 

2023) (“[T]rial courts have the duty to forestall or prevent [jury nullification], including by 

firm instruction or admonition.”) (internal quotations and citation omitted). 

Jury nullification arguments ask the jury to violate its oath to return a verdict based solely 

on the evidence and the court’s instructions, and instead acquit the defendants for improper 

reasons such as sympathy, bias, prejudice, or disagreement with the law. Because defense 

counsel made such arguments in the prior trial, this Court should affirmatively preclude 

them from doing so again.

4

 

Conclusion 

 The Court should preclude counsel, Defendants, and their witnesses from 

referencing the First Amendment and “free speech” in front of the jury. 

4 See United States v. Blixt, 548 F.3d 882, 890 (9th Cir. 2008) (citing United States v. 

Sturgis, 578 F.2d 1296, 1300 (9th Cir. 1978) (the court should “interfere with an attorney’s 

closing argument when it is ‘legally wrong’” or “unduly inflammatory”)); United States v. 

Khan, No. 11-20331-CR, 2012 WL 4168820, at *1 (S.D. Fla. Sept. 19, 2012) (granting 

government’s motion to preclude argument that defendants’ unlawful conduct is protected 

by the First Amendment); United States v. Mohamud, 941 F. Supp. 2d 1303, 1321 (D. Or. 

2013) (denying motion for new trial and holding that First Amendment arguments were

properly excluded because they were irrelevant and confusing to the jury). 

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Respectfully submitted this 8th 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/Kevin M. Rapp 

KEVIN M. RAPP 

 MARGARET PERLMETER 

 PETER KOZINETS 

 ANDREW STONE 

DANIEL BOYLE

 Assistant U.S. Attorneys 

 AUSTIN M. BERRY 

 Trial Attorney

CERTIFICATE OF SERVICE 

I hereby certify that on June 8, 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 1590 Filed 06/08/23 Page 5 of 5