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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

NICOLE M. ARGENTIERI

Acting 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 FOR 

CURATIVE INSTRUCTIONS 

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At the July 27, 2023 final pretrial conference, the Court admonished all counsel 

regarding the first trial’s opening statements—and instructed counsel to read United States 

v. Blixt, 548 F.3d 882 (9th Cir. 2008), “so that you understand the boundaries of what you 

can say.” Doc. 1691, 7/27/23 Hr’g Tr. at 29. This motion addresses four parts of 

Defendants’ opening statements that disregarded the Court’s directives. The United States 

requests curative instructions, as in Blixt, before opening statements resume. Without such 

instructions, the United States will continue to be prejudiced by defense counsel’s 

statements, and counsel likely will be emboldened to further overstep the Court’s rulings.

1. Good Faith Reliance on Advice of Counsel

This Court has repeatedly ruled that Defendants are not permitted to invoke an 

advice of counsel defense in opening statements, witness testimony, or closing arguments

unless and until they comply with the four-factor test in United States v. McLennan, 563 

F.2d 943, 946 (9th Cir. 1977). First, granting the United States’ motion in limine on this 

issue, the Court ruled: “Defendants may not suggest in opening statements that they relied 

on advice of counsel until they make a proffer of specific testimony and/or evidence, 

relevant to the alleged charges.” Doc. 1643 at 13.

Second, when defense counsel tried to relitigate that ruling, the Court stated: “[M]y 

order is precisely clear with regard to advice of counsel.” Doc. 1691, 7/27/23 Hr’g Tr. at 

36. Defense counsel persisted, “[I]n terms of opening statement, advising the jury of what 

evidence will come in relating to those factors as they may pertain seems to me it’s 

something that the defense should be able to do. I want to make sure that if the Court is 

precluding the defense from stating that in openings, that we abide by that if that’s the 

ruling.” Doc. 1691, 7/27/23 Hr’g Tr. at 51 (emphasis added). The Court responded that 

“the order speaks for itself and relies upon Ninth Circuit precedent that requires a 

particularized showing.” Doc. 1691, 7/27/23 Hr’g Tr. at 52-53. Defense counsel tried 

again, “[C]an defense counsel in opening statements advise the jurors what we anticipate 

that Carl Ferrer will say in this regard?” Doc. 1691, 7/27/23 Hr’g Tr. at 53. The Court 

responded: “I think you go down a dangerous path when you start to say: Well, he relied 

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on this counsel or that counsel. And . . . the government will raise an objection and the 

Court will then find itself having to admonish counsel because of my order. So I would be

very careful about that.” Doc. 1691, 7/27/23 Hr’g Tr. at 55-56. The Court declined “to 

revisit” its ruling. Doc. 1691, 7/27/23 Hr’g Tr. at 58. 

Third, just before opening statements, the United States objected to a defense 

PowerPoint slide that discussed “good faith.” The United States stated that “good faith . . . 

cannot be argued in the sense of advice of counsel defense,” and cited Doc. 1643. This 

Court stated: “In the context of that, I agree.” When Defense counsel pressed the issue 

again, the Court reiterated: “So long as it does not get into the avenues of reliance on 

attorney advice because, as you even acknowledged at the Final Pretrial Conference, 

you’ve waived that, and you’ve not asserted it.”

Undeterred, counsel for Defendant Lacey’s opening statement violated the Court’s 

rulings regarding advice of counsel on multiple occasions:

• “Mike Lacey was not involved in the day to day operation of Backpage. He had to 

rely on what Carl Ferrer told him and others. What did he know? He knew that Carl 

had hired a bunch of lawyers to advise them.” 

• “And you’ll see Carl Ferrer had a whole cast of attorneys advising him.” 

• “Mr. Lacey’s attorney, local attorney, just dealing with Mr. Lacey and the banks 

on the accounts that they had, they closed the attorney’s account down. And 

nobody’s accused him of doing anything wrong.” 

The latter statement was more circumspect regarding advice of counsel (because 

this Court had sustained the United States’ objection just a few minutes earlier), but it again 

showed Defendants’ eagerness to improperly inject that they sought legal advice and thus 

should not be found guilty. But they want to smuggle this theory into the minds of the 

jurors without following the law or this Court’s unequivocal rulings on this issue.

In Blixt, the district court told the jury that the defense attorney made an incorrect 

statement about the law in closing argument. 548 F.3d at 885-86. On appeal, the defendant 

argued that the court “improperly singled out Defense Counsel’s argument and invalidated 

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it to the jury when it advised the jury that it should disregard counsel’s statements.” Id. at 

890. The Ninth Circuit held that “the district court, exercising considerable restraint in the 

face of blatant jury nullification arguments, properly instructed the jury to disregard 

counsel’s statements.” Id. (citing United States v. Sturgis, 578 F.2d 1296, 1300 (9th Cir. 

1978) (“Not only should a judge interfere with an attorney’s closing argument when it is 

‘legally wrong,’ but he should also limit, for example, attorneys’ remarks outside the record 

or unduly inflammatory.”)).

In Doc. 1643, this Court explained that “[t]o permit Defendants to tell the jury that 

they broadly sought advice on conduct unrelated to the SI’s allegations would present 

irrelevant evidence, could be factually misleading, would result in jury confusion, and 

would prejudice the Government.” Doc. 1643 at 12-13. The United States has now been 

prejudiced, just as this Court predicted. The jury has now heard on at least three occasions 

that there were some lawyers advising Defendants and their co-conspirators. Given the

Court’s rulings and Blixt admonition, the Court should give a curative instruction before

opening statements resume. The United States proposes the following curative instruction:

Ladies and gentlemen of the jury, during his opening statement, counsel for 

Defendant Lacey suggested that lawyers advised one or more of the 

individuals involved with Backpage.com. It was improper for counsel to 

suggest that Defendant Lacey may not be guilty because he may have relied 

on any attorney’s advice. As I instructed you previously, what the lawyers 

say in opening statements is not evidence. I instruct you to disregard any 

suggestion that Defendant Lacey relied in good faith on any advice of any 

attorney.

Anything short of such an instruction, such as a mere admonition outside the presence of 

the jury, would leave the prejudice unaddressed, and would risk emboldening counsel to 

further disregard the Court’s rulings. 

2. Legal Arguments Should Not be Made to Jury

Counsel for Defendant Lacey made the legal argument in his opening statement that 

if a person responds to an ad and engages in “sex for money, the platform isn’t responsible 

for that, unless it was clear on the face of the ad that it was definitely a crime.” Counsel 

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repeatedly (and unsuccessfully) pressed this legal argument in prior pleadings and 

hearings—as summarized in his Objection to the Court’s proposed First Amendment jury 

instruction and the United States’ Response. See Docs. 1657, 1666. On August 18, 2023, 

the Court overruled Defendants’ Objection and “admonished [counsel] that they should 

confine their opening statements to comply with the Court’s First Amendment jury 

instruction, should they intend to raise it at all.” Doc. 1710 at 1. 

This followed the Court’s rulings that Defendants could not suggest that veiled 

prostitution ads were protected by the First Amendment or the Communications Decency 

Act. See Doc. 1643 at 8-9 (“[T]o the extent that Defendants seek to invoke their First 

Amendment rights as a defense to the allegations that they conspired to promote and/or 

facilitate prostitution through veiled ads for prostitution, they are prohibited from doing 

so.”); Doc. 1643 at 10 (“Defendants may not argue that [the CDA] immunizes Defendants 

from . . . violating the Travel Act.”). Notwithstanding these clear rulings, at least one 

Defendant had an entire slide dedicated to the CDA minutes before the opening statements 

began, which this Court had to specifically exclude after the United States objected.

When a defendant moves to suppress evidence alleging a Fourth Amendment 

violation, courts do not permit the defendant to raise the Fourth Amendment as a defense 

in front of the jury because that is a legal question decided by the Court, not the jury. See, 

e.g., United States v. Sanders, 196 F.3d 910, 914 (8th Cir. 1999) (endorsing district court’s 

jury instruction that it had “ruled as a matter of law” the stop and search of the defendant’s 

vehicle were “lawful”; concluding the court “acted within its discretion in making clear to 

the jury the extent of its role.”); United States v. Quattlebaum, 540 F. Supp. 2d 1, 8 (D.D.C. 

2008) (“[I]t is the Court’s role to decide legal questions, such as the lawfulness of a traffic 

stop. . . . [I]t would have been improper to permit the jury to consider whether the stop and 

search in question were lawful during their deliberations.”). Likewise, if a defendant files 

a motion to suppress his confession to police, alleging a Fifth Amendment violation, courts 

do not permit the defendant to argue Miranda or the Fifth Amendment as a defense in front 

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of the jury.1 Again, that’s because those constitutional questions are for the Court, not the 

jury. 

The same should be true here for the First Amendment. This Court has already ruled 

that the First Amendment does not protect criminal activity as alleged in the Superseding 

Indictment, provided the SI’s factual allegations are proven as true. See, e.g., Doc. 793 

passim. Thus, there is no reason for Defendants to be permitted to raise the constitutional 

issue with the jury. It will mislead and confuse the jury about their role and invite a verdict 

based on nullification. For the same reason that arguing Fourth and Fifth Amendment legal 

issues to a jury would be improper, it is equally improper for Defendants to argue the legal 

issue of whether the First Amendment protects their activity. The First Amendment is not 

offended by putting to the jury the factual question of whether Defendants promoted, or 

facilitated the promotion of, business enterprises involving prostitution offenses. If the jury 

answers in the affirmative (guilty), then Defendants engaged in criminal activity—which 

the First Amendment does not protect as a matter of law. If the jury answers in the negative 

(not guilty), then the First Amendment would protect Defendants—again, as a matter of 

law. Either way, the jury’s role does not involve deciding legal issues concerning the First 

Amendment. See also Doc. 1242 at 2-5 (collecting cases).

The United States respectfully requests a curative instruction that reminds the jury 

that the Court will instruct on the law at the end of the case, and that any legal arguments 

made by counsel in opening statements should be disregarded by the jury. Furthermore, 

the United States again re-urges this Court to clearly rule that defense counsel shall make 

no more references to the First Amendment in front of the jury because doing so prejudices 

the United States by invoking a nullification argument based upon generalized appeals to

the First Amendment or “free speech.” 

3. Shutdown of Backpage.com

Counsel for Defendant Lacey separately disregarded this Court’s ruling to not 

1 A defendant may argue voluntarinessto the jury, but not the Fifth Amendment or Miranda

because those are legal arguments. 

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engage in conscience of the community statements designed to inflame the jury. In one 

motion in limine, the United States sought to preclude defense counsel from saying “When 

you have the law and the facts on your side, you go to civil court. When you don’t, you 

take people’s money so that they can’t defend themselves and you bring a criminal

charge.” This Court granted the United States’ motion at the pretrial conference on July 

27, 2023, stating that, “As to that precise statement, it does not tell the jurors what the 

defense theory of the case is. It’s more akin to a statement of personal belief of defense 

counsel’s comment on the legitimacy of a government charge, and it is going to result in 

confusion to the seated jury...I am not going to permit.” Doc. 1691, 7/27/23 Hr’g Tr. at 

28. The Court explained: “[T]hat particular statement . . . is akin to a conscience of the

community statement made to inflame the jurors at the outset. These jurors that we will 

have carefully, carefully screened so that they are sitting there without their mind made 

up, and so it does border on inappropriate conscience of the community statement.” Id. at 

28. The Court then asked all counsel to read Blixt, and held, “So I will grant the 

government’s motion to the extent that anyone is considering making a statement similar 

or akin to this that is here in the motion.” Doc. 1691, 7/27/23 Hr’g Tr.at 29. 

Notwithstanding the Court’s ruling, counsel for Defendant Lacey told the jury:

“Every one of those people lost the ability to do that because the government came in with 

no conviction by a judge, no conviction by a jury, and no conviction by anything or

anybody but they shut it down. . . . [M]illions of people who never abused Backpage were

silenced.” That statement violates the Court’s Order because it “does not tell the jurors 

what the defense theory of the case is,” but is “more akin to a statement of personal belief 

of defense counsel’s comment on the legitimacy of a government charge” or action, “and 

it is going to result in confusion to the seated jury.” Doc. 1691, 7/27/23 Hr’g Tr. at 28. It

is a “conscience of the community statement made to inflame the jurors at the outset.” Doc. 

1691, 7/27/23 Hr’g Tr. at 28. Counsel’s argument is also incorrect. The person Defendants 

claim was the lawful owner of the website at the time, Carl Ferrer, pleaded guilty and 

consented to the shutdown. See Fla. v. Nixon, 543 U.S. 175, 187 (2004) (a guilty plea “is 

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itself a conviction”) (internal quotations and citation omitted).

The United States accordingly requests the following curative instruction:

Ladies and Gentlemen of the jury, counsel for Defendant Lacey suggested 

that the United States illegally shut down Backpage.com. That is incorrect. 

There has been no finding that the United States did anything illegal or 

improper regarding Backpage’s closure. You are instructed to disregard 

defense counsel’s suggestion otherwise. 

4. Reference to Prior Litigation (Backpage.com v. Dart)

The Court instructed Defendants pretrial “not to refer to prior court decisions, 

rulings, opinions or results filed by or against Backpage.com, LLC, unless those prior cases 

were adjudications of 18 U.S.C. § 1952(a)(3)(A) offenses.” Doc. 1643 at 11. The Court 

ruled: “Defendants are precluded from comparing this case to any prior unrelated civil 

cases and/or money judgements in their opening and closing arguments.” Doc. 1643 at 11.

At the final pretrial conference, defense counsel asked this Court about “reference 

to prior litigation in which Backpage was involved,” and whether it was “the Court’s view 

that none of those issues are potentially relevant to the jury’s consideration of the allegation 

in the superseding indictment?” Doc. 1691, 7/27/23 Hr’g Tr. at 58-59. The Court said, 

“I’m sticking to what my order says. I don’t want counsel to come up here and compare 

this case to some other case. . . . If the precise types of allegations under Title 18 were not 

in those previous decisions, don’t mention it because it’s irrelevant.” Doc. 1691, 7/27/23 

Hr’g Tr. at 59. Defense counsel tried again, and the Court replied, “my ruling is what my 

ruling is and you can make that decision.” Doc. 1691, 7/27/23 Hr’g Tr. at 59-60.

Nevertheless, in Defendant Brunst’s opening statement, counsel referenced 

Backpage’s litigation against Sheriff Dart in the Seventh Circuit: “What the evidence will 

show in this case is that all of the issues with Sheriff Dart were resolved in a manner that 

gave comfort to our clients, that in fact Sheriff Dart was the one who was wrong in 

threatening to shut them down.” This was clearly a reference to Backpage.com LLC v. Dart, 

807 F.3d 229, 233-34 (7th Cir. 2015), which involved a preliminary injunction that 

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Backpage sought. 

The reference to Dart violated this Court’s “instruct[ion] not to refer to prior court 

decisions, rulings, opinions or results filed by or against Backpage.Com, LLC, unless those 

prior cases were adjudications of 18 U.S.C. § 1952(a)(3)(A) offenses.” Doc. 1643 at 11. 

The United States does not propose a curative instruction for this, but requests that the 

Court again admonish defense counsel not to refer to other litigation in the remaining 

openings or at any time in the presence of the jury. 

Conclusion

 The United States respectfully requests that this Court take the curative steps 

described above to ensure that the remaining openings comply with the Court’s rulings. 

Respectfully submitted this 7th day of September, 2023.

 GARY M. RESTAINO United States Attorney District of Arizona

 NICOLE M. ARGENTIERI

Acting Assistant Attorney General Criminal Division, U.S. Department of Justice 

s/Austin M. Berry AUSTIN M. BERRY

Trial Attorney

KEVIN M. RAPP

MARGARET PERLMETER

PETER KOZINETS

ANDREW STONE

DANIEL BOYLE

Assistant U.S. Attorneys

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CERTIFICATE OF SERVICE

I hereby certify that on September 7th, 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/ Austin M. Berry Austin M. Berry

Trial Attorney

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