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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’ RESPONSE TO 

DEFENDANTS’ MOTION IN LIMINE 

TO PRECLUDE IRRELEVANT AND 

PREJUDICIAL TESTIMONY

(Doc. 1589) 

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The Court should deny Defendants’ motion in limine to preclude testimony that a 

victim was engaging in prostitution or being trafficked unless (1) the testimony is tied to 

one of the fifty ads charged in the superseding indictment (SI) and (2) known by one or 

more defendants that the victim was engaging in acts of prosecution or being trafficked at 

the time the ad was posted. (Doc. 1589.) As Defendants concede, this issue was previously 

decided by the Court. (Docs. 908, 911, 961, 1156.) The Court ruled that the United States 

could present evidence concerning prostitutes or trafficking victims who were advertised 

on Backpage, so long as the United States did not linger on the details of abuse these 

persons suffered. (Doc. 1156.) And, as argued in Doc. 1603, the Court has already 

determined that acts that furthered the 14-year conspiracy are admissible even if they 

occurred before 2013. Defendants’ motion in limine is barred by law of the case. 

Procedural History 

In April 2020, Defendants moved in limine to preclude under Fed. R. Evid. 401-403 

evidence of sex trafficking and child sex trafficking that did not directly prove an element 

of a charged offense. (Docs. 908, 911.) The United States responded, explaining the 

evidence was relevant to show Defendants knew and intended to promote or facilitate 

prostitution, and that sex trafficking and child sex trafficking are both subsets of 

prostitution. (Doc. 961 at 4.) The Court agreed. “Evidence that tends to prove that 

Defendants were aware that Backpage.com was being used to facilitate sex trafficking and 

child sex trafficking are extremely probative to show notice to defendants that the website 

was being used for illegal purposes.” (Doc. 1156 at 3.) While the Court held the United 

States could not linger on the details of the abuse, it would “allow evidence of the fact that 

people were trafficked using Backpage.com[.]” (Doc. 1156 at 4.) Additionally, the United 

States explained the victims would testify about how Backpage made it easy for them to 

engage in acts of prostitution and how their ads were created, paid for, and posted on 

Backpage. (Doc. 1156 at 5.) The Court found this evidence relevant and admissible, but 

cautioned that the United States would not be permitted to introduce lengthy testimony of 

a victim’s time as a prostitute. (Doc. 1156 at 5.) In support, the Court cited the “well 

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established [rule] that the government in a conspiracy case may submit proof on the full 

scope of the conspiracy; it is not limited in its proof to the overt acts alleged in the 

indictment.” United States v. Rizk, 660 F.3d 1125, 1131 (9th Cir. 2011); (Doc. 1156 at 3.) 

Mid-trial, Defendants filed a Motion to Limit Testimony of J.S. (Doc. 1295), 

seeking an order to limit J.S.’s testimony unless there was a nexus between Defendants and 

the pimps who posted ads of J.S. on Backpage. The Court held J.S. could “testify that she 

was trafficked by her pimp through Backpage and that she filed [a law]suit.” (Doc. 1334

at 65.) Additionally, the Court stated J.S. could testify about how she was posted on 

Backpage, the people that paid money to post her ad, the hotel, and for her clothes, as part 

of the business enterprise, if the United States established foundation for this testimony. 

(Doc. 1334 at 65-67.) Notably, the Court did not require the United States to tie each 

specific, individual piece of evidence to one or more Defendants.1

 

Argument

 Defendants’ motion attempts to litigate an issue that has been litigated twice before. 

It is not based on new facts, as Defendants claim, or law, but is merely an attempt to ask 

the Court to restrict the United States’ presentation of the evidence. Conspiracy law does 

not require proof that a defendant know his fellow co-conspirators. As such, the United 

States need not show that one or more of Defendants here had knowledge that an individual 

in a charged ad was engaged in prostitution or being trafficked contemporaneous with when 

the ad was published on Backpage. (Cf. Doc. 1589 at 5.) Under the Pinkerton theory of 

conspiracy liability, each conspirator is responsible for the acts of the others pursuant to 

and in furtherance of the conspiracy. United States v. Roselli, 432 F.2d 879, 894 (9th Cir. 

1970) (citing Pinkerton v. United States, 328 U.S. 640, 646-647 (1946)). “It is well settled 

that [a defendant] is liable for the acts of his co-conspirators though he was not aware of 

1

 Defendants’ reference to testimony not tethered to communications with Defendants in 

Doc. 1347 at 4-5 is taken out of context. (Doc. 1589 at 4.) There, the Court discusses how 

Dr. Cooper’s testimony emphasized child sex trafficking and how it was not tied to any communication with Defendants. (Doc. 1347 at 5.) The Court did not intend for this to 

apply to each, singular piece of evidence. 

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the performance of those acts, nor even of the existence of the actors.” Roselli, 432 F.2d

at 894. The United States has proposed jury instructions incorporating Pinkerton (Doc. 

1216-3 at 108), and the Court adopted Pinkerton instructions in its preliminary jury 

instructions (Doc. 1311 at 3). 

Defendants’ concern that the United States intends at the retrial “to press the same 

case” and that “its case will essentially be a repeat” is misplaced. (Doc. 1589.) Since the 

mistrial, the United States has taken to heart the Court’s mistrial ruling, and has worked to 

streamline its case-in-chief2

 and ensure that victim testimony “stay[s] away from the day 

in the life of a prostitute or victim.” (Doc. 1347 at 4-5.) The United States is developing 

a line of questioning for victim-witnesses that explains (without getting into details about 

their abuse) (1) how their pimps, traffickers, or the victims themselves engaged in 

prostitution by placing ads on Backpage, and (2) how the Backpage ads that resulted in 

their prostitution activities were created, drafted, developed, and paid for. This evidence 

has been deemed admissible by the Court, is necessary and relevant to prove the elements 

of the SI’s conspiracy and Travel Act counts, and is not unduly prejudicial. 

Conclusion 

The Court should deny Defendants’ motion and affirm the law of the case allowing 

the United States to present evidence that individuals were trafficked by pimps or 

traffickers or engaged in prostitution on Backpage and the steps they took to draft, create, 

develop, and pay for the ads that resulted in their prostitution activities on the website. 

2 To date, the United States has reduced its witness list by approximately 20 percent and 

Dr. Cooper has been removed. Priscilla Harrison and Kubiiki Pride will also be removed. 

Defendants list Megan Lundstrom (Victim 3 in the SI) as being connected to a charged ad. (Doc. 1589 at 5 n.2.) She is not. Arshana Sanders is related to Victim 16, Cynthia Worthy. Ms. Sanders is expected to testify about how she observed Ms. Worthy purchase vanilla 

Visa cards, post an ad on Backpage, and meet with a Backpage customer. 

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Respectfully submitted this 15th 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/Margaret Perlmeter 

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 15, 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/ Margaret Perlmeter

Margaret Perlmeter 

U.S. Attorney’s Office 

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