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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

REGINALD E. JONES (D.C. Bar No. 1620183, reginald.jones4@usdoj.gov) 

Senior Trial Attorney Criminal Division, U.S. Department of Justice

1400 New York Ave N.W., Suite 1200

Washington, D.C. 20005

Telephone (202) 616-2807 

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.

No. CR-18-422-PHX-DJH

UNITED STATES’

RESPONSE TO DEFENDANTS’ 

SUPPLEMENTAL CITATION OF 

AUTHORITY IN SUPPORT OF 

MOTION TO DISMISS

(Doc. 1437)

Case 2:18-cr-00422-DJH Document 1439 Filed 12/13/21 Page 1 of 4
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Defendants’ new citation does not support the “truly extraordinary” relief they seek

in Doc. 1355, for several reasons. (See Doc. 1347, Ex. A (United States v. Padua, 20-CR191-LJV-MJR-1, W.D.N.Y., Dec. 9, 2021 Dec. & Order, Doc. 187) (“Padua”), at 1.) 

First, Padua states that, because “cases are to be decided on their merits absent truly 

extraordinary circumstances,” “a mistrial based on prosecutorial misconduct should be 

granted with prejudice only when that misconduct is intentional.” (Padua at 6-7, citing 

Oregon v. Kennedy, 456 U.S. 667, 679 (1982).) As Judge Brnovich found, none of the 

reasons for the mistrial ruling in this case involved intentional misconduct. (Doc. 1355, Ex. 

M at 5:20-21 (“I don’t see any of these as intentional misconduct”). For this threshold 

reason, Defendants’ motion should be denied. (See Doc. 1395, Resp. at 1, 15-21.)

Second, Padua was prompted by “extraordinary” circumstances: The prosecutor 

stated in rebuttal closing that defense counsel “know that their client is guilty”; when the 

court struck that comment, the prosecutor told the jury that he “knew that the defendant 

was guilty . . . ‘beyond a reasonable doubt.’” (Padua at 10, 12-13.) This “egregious[ ]” 

misconduct violated the “fundamental” rule that “a prosecutor cannot tell the jury that she 

knows the defendant to be guilty.” (Id. at 8-9.) The instant case involves nothing remotely 

close. For example, while Defendants assert the United States “elicited inflammatory 

testimony from Dr. Cooper” regarding underage victims (Doc. 1413, Reply at 12:5-7), her 

references to minors predominantly occurred during her foundational testimony—which

Judge Brnovich allowed, over defense objections. (Doc. 1355, Ex. L at 5:18 - 17:14.) Later, 

after the Court stated questioning about “sex trafficking” was permissible, but directed the 

prosecutor to “stay away from the child sex trafficking” (id., Ex. L at 29:2-7), the 

prosecutor asked several questions about “adult content” (id., Ex. L at 37:4-38:25). When 

the witness referenced minors in response to one of those questions, the prosecutor turned 

to asking about terminology in the prostitution industry—and carefully avoided terms

involving minors. (See id., Ex. L at 38:19-48:24.) This was not misconduct, “egregious” or 

otherwise—particularly considering the Court’s repeated approvals of Dr. Cooper as an 

expert for this case. (See id., Ex. K at 5:2-10:19, Ex. L at 17:5-14; Doc. 1081 at 16:10-26.)

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Third, Padua drew a connection between what it found “was an excellent and 

persuasive summation by defense counsel” and the prosecutor’s improper rebuttal. (Padua

at 10-11.) There is no similar connection here. Defendants assert the United States decided 

to call Dr. Cooper for the purpose of instigating a mistrial in reaction to Defendants’ crossexamination of Agent Fichtner—the lion’s share of which occurred on September 13, 2021. 

(See Doc. 1355, Mot. at 6:5-8 & Ex. K at 14:1-95:17.) Yet, three days before, the United 

States informed Defendants that Dr. Cooper’s testimony would follow Agent Fichtner. (See

Exhibit A hereto, Sept. 10, 2021 email from A. Stone to E. Garcia, cc: all counsel; Doc. 

1300; Doc. 1355, Ex. K at 5:2-10:19.) For these and other reasons (see Doc. 1395 at 7:10-

9:22, 18:25-20:20), Defendants’ causation theory lacks merit.

Fourth, Defendants’ references to other trial conduct—presumably including the 

presentation of testimony from Jessika and Nacole Svendgard (cf. Doc. 1437 at 1-2)—

stands outside of their proffered causation timeline. The Svendgards both testified during 

a break in Agent Fichtner’s direct examination; he was not cross-examined until after those 

witnesses had testified. (See Doc. 1355, Ex. I at 67:2-Ex. J at 78:10.) Also, Defendants 

never sought a mistrial based on Jessika or Nacole’s testimony. These are not “strong 

factual parallels” to Padua. (Cf. Doc. 1437 at 1:16.)

Finally, the United States wishes to correct a footnote in Doc. 1395, and a related 

statement at the December 3, 2021 argument, indicating Defendants made no objections to 

questions that included references to the 105-day period Jessika was posted on Backpage. 

(See Doc. 1395 at 11 n.3.) Upon re-reviewing the transcript, the defense objected to three

such questions. (Ex. I at 80:15-21, 82:16-20; Ex. J at 51:19-23.) The Court sustained only 

one of the objections, for relevance; however, it is not clear if that objection concerned the 

105-day reference. (Ex. I at 82:16-20.) One of the other objections was a “continuing” one

that the Court “overruled but noted.” (Ex. I at 80:15-21.) The United States apologizes for 

this error, which was entirely inadvertent.

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Respectfully submitted this 13th day of December, 2021.

GARY M. RESTAINO

United States Attorney

District of Arizona

s/Peter S. Kozinets

PETER S. KOZINETS

Assistant U.S. Attorney

KEVIN M. RAPP

MARGARET PERLMETER

PETER S. KOZINETS

ANDREW C. STONE

DAN G. BOYLE

Assistant U.S. Attorneys

KENNETH POLITE

Assistant Attorney General 

U.S. Department of Justice 

Criminal Division, U.S. Department of Justice

REGINALD E. JONES

Senior Trial Attorney

U.S. Department of Justice, Criminal Division

CERTIFICATE OF SERVICE

I hereby certify that on this same date, 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/Marjorie Dieckman

U.S. Attorney’s Office

Case 2:18-cr-00422-DJH Document 1439 Filed 12/13/21 Page 4 of 4