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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

v. 

Michael Lacey, et al.

Defendant.

No. CR-18-00422-001-PHX-DJH

ORDER 

Before the Court are four Motions in Limine filed by Defendants Michael Lacey, 

James Larkin, Scott Spear, John Brunst, Dan Hyer, Andrew Padilla, and Joye Vaught 

(collectively “Defendants”) (Docs. 1588; 1589; 1591; 1593). Plaintiff United States of 

America (the “Government”) has filed Responses in Opposition (Docs. 1604; 1613; 1603; 

1607). Additionally, the Government has filed nine Motions in Limine (Docs. 1590; 1592; 

1594; 1595; 1596; 1597; 1598; 1599; 1600). Defendants have filed Responses in 

Opposition (Docs. 1602; 1612; 1615; 1609; 1610; 1616; 1614; 1608; 1611). The Court 

will address each Motion in turn.1

I. Legal Standard 

Motions in limine “allow parties to resolve evidentiary disputes ahead of trial, 

without first having to present potentially prejudicial evidence in front of a jury.” Brodit 

1

In this Order, the Court will resolve all of Defendants’ Motions in Limine (Docs. 1588; 

1589; 1591; 1593) and seven of the Government’s Motions in Limine (Docs. 1590; 1594; 

1595; 1596; 1597; 1599). The Court will address the Government’s remaining Motions in 

Limine (Docs. 1592; 1598; 1600) at the Final Pretrial Conference.

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v. Cabra, 350 F.3d 985, 1004–05 (9th Cir. 2003) (citations omitted). Orders on motions in 

limine are “entirely within the discretion of the Court.” Jaynes Corp. v. American Safety 

Indem. Co., 2014 WL 1154180, at *1 (D. Nev. March 20, 2014) (citing Luce v. United 

States, 469 U.S. 38, 41–42 (1984)). Moreover, “[a] motion in limine is not the proper 

vehicle for seeking a dispositive ruling on a claim, particularly after the deadline for filing 

such motions has pass.” Hana Fin., Inc. v. Hana Bank, 735 F.3d 1158, 1162 (9th Cir. 

2013), aff’d, 135 S. Ct. 907, 190 L. Ed. 2d 800 (2015) (citing Dubner v. City & Cnty. of

San Francisco, 266 F.3d 959, 968 (9th Cir. 2001)). 

Some of the parties’ Motions argue certain evidence should be excluded as 

irrelevant or unfairly prejudicial. Federal Rule of Evidence 401 provides that “[e]vidence 

is relevant if it has any tendency to make a fact more or less probable than it would be 

without the evidence and the fact is of consequence in determining the action.” Fed. R. 

Evid. 401. Under Rule 402,2relevant evidence is admissible unless otherwise provided. 

Fed. R. Evid. 402. However, all relevant evidence is subject to the balancing test set forth 

by Rule 403. That is, a court “may exclude relevant evidence if its probative value is 

substantially outweighed by a danger of one or more of the following: unfair prejudice, 

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly 

presenting cumulative evidence.” Fed. R. Evid. 403. 

Although styled as “Motions in Limine,” certain Motions by the parties’ object to 

words or phrases used in opening statements not yet made. (See Docs. 1588; 1590; 1592;

1598). But opening statements are not evidence, see United States v. Maurice, 416 F.2d

234, 236 (9th Cir.1969), and the Court will advise the jury accordingly. See Crim. Jury 

Instruction 1.4; 6.7.3 

With these principles in mind, the Court rules as follows:

2 Unless otherwise noted, all Rule references are to the Federal Rules of Evidence.

3 A cursory review of the prior opening statements show exhaustive and confusing 

statements—certainly not concise roadmaps, of what the evidence will or will not show. 

The Court will address the aforementioned Motions at the final pretrial conference but 

cautions the parties that misstating the law or promising evidence and testimony that they 

cannot later produce will result in juror confusion and potential prejudice to a party.

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II. Discussion

A. Defendants’ Motions in Limine

1. Defendants’ Motion to Preclude Testimony Statements or 

Arguments that Escort Services Dating Ads, Massage Services 

and Adult Advertising Are Unlawful or Presumed to Involve 

Prostitution (Doc. 1588); the Government’s Response (Doc. 1604).

In this Motion, Defendants seek an Order precluding the Government from making 

statements or arguments that escort services, online dating services, massage services, and 

adult advertising of such services are unlawful or presumed to involve prostitution because 

escort, massage, and online dating services are legal under Arizona law. (Doc. 1588 at 4–

5). The Government counters that in upholding the sufficiency of the Superseding 

Indictment (“SI”) (Doc. 230), the Court has already found that its alleged facts are 

sufficient to show the ads were for prostitution. (Doc. 793 at 10). 

But at trial, it is the Government’s burden to convince the fact finder, beyond a 

reasonable doubt, that the SI’s allegations are true and that Defendants conspired to commit 

the acts alleged. The Government’s obvious theory is that the specific ads noted in the SI 

were really ads for prostitution, and not for lawfully sanctioned escort, massage, or online 

dating services. The Government is therefore tasked with convincing a jury of that 

distinction, and that the ads at issue were illegal. The Government is not precluded from 

stating that they intend to prove that the ads at issue are illegal. 

Accordingly,

IT IS ORDERED denying Defendants’ Motion in Limine (Doc. 1588).

2. Defendants’ Motion to Preclude Irrelevant and Prejudicial 

Testimony (Doc. 1589); the Government’s Response (Doc. 1613).

“[D]ue to new facts,” Defendants’ seek an order from this Court to “preclude 

irrelevant and unfairly prejudicial witness testimony about the experiences of person 

engaging in prostitution (including as a victim of sex trafficking) and crimes committed by 

or against such persons.” (Doc. 1589 at 4). Defendants explain that the new facts arose 

from the mistrial that occurred when the Government elicited irrelevant and prejudicial 

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testimony. (Id.) So, they state that such evidence should be precluded as irrelevant and 

prejudicial unless “it relates to one or more of the fifty charged ads and 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[.]” (Id.)

The Government responds that the there are no new facts, and the law of the case 

permits them to show that Defendants knew about and intended to promote or facilitate 

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

prostitution. (Doc. 1613 at 2). They further argue that “[c]onspiracy law does not require 

proof that a defendant know his fellow co-conspirators . . . [or] 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.” (Id. at 3). The Court agrees with the Government.

First, in the prior Court’s May 7, 2021, Order observed that ‘[s]ex trafficking and 

child sex trafficking are, by definition, both forms of prostitution” and the Government 

“must prove that Defendants intended to facilitate prostitution through Backpage.com.” 

(Doc. 1156 at 3). The Court noted that “[e]vidence that tends to prove the 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.” (Id.) Though it is necessary for the Government to show that,

based on the ads, the sex trafficking and child trafficking victims engaged in sex in 

exchange for money, the Court cautioned that it “will not allow the Government to linger 

on the details of the abuse sex trafficking victims suffered as a result of being trafficked.” 

(Id. at 4). The Court reasserts that admonishment. 

Second, though not clearly stated, Defendants seem to argue that the Government is 

prohibited from offering testimony or evidence about acts unrelated to a posted ad or 

witnesses who are not connected to a charged ad. Yet, the Court has already clarified that 

the Government may introduce proof of the entirety of the scope of the conspiracy. Proof 

of a conspiracy requires showing that each conspirator is responsible for the acts of the 

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others pursuant to and in furtherance of the conspiracy, and that “he is liable for the acts of 

his co-conspirators though he was not aware of the performance of those acts, nor even of 

the actors involved. Hernandez v. United States, 300 F.2d 114, 122 (9th Cir. 1962); see 

also Pinkerton v. United States, 328 U.S. 640 (1946). As Defendants assert, the 

Government need not show that each defendant 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.” (Doc. 1589 at 4). The Government need only prove that Defendants were 

aware of the conspiracies objectives and participated in achieving those objectives. 

Among the alleged objectives were to “promote, manage, establish, carry on and 

facilitate the promotion, management, establishment, and carrying on of an unlawful 

activity, to wit: prostitution offenses in violation of the laws of the State in which they are 

committed and of the United States . . . and thereafter performed and attempted to perform 

an act that did promote, manage, establish, carry on, and facilitate the promotions, 

management establishment, and carrying of the unlawful activity” as described in Counts 

2–51. (Doc. 230 at 50). As the prior court observed, testimony about how the Backpage 

ads were created, paid for, and posted, as well as how those ads made it easier for 

individuals to engage in prostitution is relevant to the allegations charged. As the Court 

previously cautioned, however, lingering on the details about acts of prostitution or 

victimization of the individuals who were trafficked or prostituted, though probative of the 

conspiracy’s objective, can become irrelevant and prejudicial to Defendants. 

Accordingly, 

IT IS ORDERED denying Defendants’ Motion in Limine (Doc. 1589).

IT IS FURTHER ORDERED reiterating the prior court’s Order (Doc. 1156) that 

the Government may not illicit irrelevant and cumulative testimony about the abuse sex 

trafficking victims suffered as it may result in prejudice to Defendants. 

/ / /

/ / /

/ / /

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3. Defendants Motion to Preclude References to Alleged Former 

“Prostitution” Marketing Strategies (Doc. 1591); the 

Government’s Response (Doc. 1603).

In this Motion, Defendants seek an order precluding the Government from 

introducing “evidence of alleged strategies to increase purported ‘prostitution’ ads on the 

site not specific to these fifty ads” because they are not relevant.4(Doc. 1591 at 3). The 

evidence of concern include ads that involve “(1) ad moderation (allowing moderators to 

modify the wording of ads and then allowing the ads to run); (2) Backpage’s alleged 

“reciprocal” advertising/link program with the Erotic Review (TER) (a different website 

with adult content)5; and (3) content “aggregation’ alleged to be the provision of free ads 

‘in an attempt to secure future advertising revenues.” (Id.) 

Given the nature of the SI’s allegations, these categories of evidence are relevant to 

show Defendants knowledge of the ads, how and why they were created and their intended 

purposes. Further, it is relevant to show whether Defendants “intended to promote a 

business of prostitution” by posting the ads. (See Doc. 1272 at 3). Finally, the Court 

already found that facts that pre-date the 2013 allegations were relevant as evidence 

demonstrating “furtherance of the charged conspiracy.” Therefore, evidence of ad 

moderation, Backpage’s “reciprocal” advertising/link program with the Erotic Review, 

and content “aggregation’ to secure future advertising revenues will not be precluded to 

the extent that (1) the SI provides notice to Defendants of these acts, and (2) the acts

demonstrate Defendants’ knowledge, intent and conduct in furtherance of the conspiracy’s 

objective,

Accordingly,

IT IS ORDERED denying Defendants’ Motion in Limine (Doc. 1591). 

/ / /

/ / /

4 Defendants’ supporting exhibit is irrelevant to the Court’s determination as it is related 

to a Motion to Recuse considered by the previously assigned court. 

5 See Doc.1593, Defendants related motion to preclude evidence of a prior relationship 

between the owner of TER and Backpage.com, LLC.

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4. Defendants’ Motion to Preclude Irrelevant and Inadmissible 

Evidence Re Mersey and Elms (Doc. 1593); the Government’s 

Response (Doc. 1607).

In this Motion, Defendants seek an order precluding the Government from 

introducing statements of William Mersey and David Elms under the co-conspiracy 

hearsay exception for three reasons: (1) neither Elms nor Mersey are connected to the fifty 

charged ads; (2) there is no evidence of any conspiracy involving Mersey or Elms and 

Defendants; and (3) introducing such statements would be prejudicial to Defendants. 

(Doc. 1593 at 5). The Government states it intends to prove that the conspiracy “lasted 

from 2004 through April 2018.” (Doc. 1607 at 2). The Government alleges that 

Defendants had relationships with Mersey and Elms during this time, which “played in 

Backpage’s development as a source of online prostitution ads . . . . [including] how to 

increase referral traffic.” (Id. at 3). The Government further asserts that during the relevant 

time, “Mersey received discounts and commissions on thousands of Backpage prostitution 

ads . . . . [and] Larkin directed Ferrer to develop partners, including Mersey for Backpage’s 

adult section.” (Id.) The Government proffers that evidence of communications with 

Mersey and Elms “shows that Defendants knew that their website was in the business of 

publishing prostitution solicitations.” (Id. at 4).

Though the Court is not aware of the precise testimony or evidence to be offered, it 

does find the proffer that Defendants’ relationships with Elms and Mersey “were critical 

to prostitution marketing strategies during the early years of the conspiracy.” (Id. at 3–4). 

Whether Defendants had knowledge that either Elms or Mersey were involved in the 

business of prostitution when they posted their ads and information is relevant to the 

existence of a conspiracy and acts done in furtherance of the conspiracy. Nonetheless, the 

Court will withhold ruling on the Motion until the Government lays the proper foundation 

and explains its relevance. 

Accordingly,

IT IS ORDERED denying Defendants’ Motion in Limine (Doc. 1593).

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B. The Government’s Motions in Limine

1. The Government’s Motion to Preclude References to First 

Amendment and Free Speech (Doc. 1590); the Defendants’

Response (Doc. 1602)

The Government seeks an order precluding Defendants from referring to “the First 

Amendment and ‘free speech’ at any time in the presence of the jury” because they 

repeatedly referenced exercising their First Amendment in this case. (Doc. 1590 at 2). One 

example offered is Defendants’ statement that “[t]his whole case is about the First 

Amendment.” (Id. quoting Doc. 1342 at 76). Defendants oppose, stating “the evidence 

will show Defendants intended to facilitate the First Amendment rights of Backpage.com 

and its users – not criminal offenses.” (Doc. 1602 at 2).

The Court has previously stated that “[t]he First Amendment does not protect ‘offers 

to engage in illegal transaction.’” (Doc. 793 at 14). And “[a]s alleged, Backpages’ efforts 

to promote its website facilitated prostitution and were not protected business practices.” 

(Id. at 14–15). The Government will bear the burden of showing as much at trial. 

Defendants certainly may defend these allegations on the grounds that the ads were for 

lawful business practices, and thus their publication of lawful ads were protected under the 

First Amendment. They may not, however, assert that their facilitation of unlawful 

business practices, i.e., publishing ads for prostitution, is activity that is protected by the 

First Amendment. It plainly is not and the Court is not aware of any precedent declaring 

the Travel Act statute at issue violative of the First Amendment on such a basis. A statute 

may be facially invalid if it prohibits protected speech because the threat of enforcement 

of an overbroad law deters individuals from engaging in constitutionally protected speech

and inhibitsthe free exchange of ideas. But a law that in some of its applications is perfectly 

constitutional—particularly a law directed at conduct so antisocial that it has been made 

criminal—has obvious harmful effects. See Virginia v. Hicks, 539 U.S. 113, 119–120

(2003). Accordingly, to 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 

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prostitution through veiled ads for prostitution, they are prohibited from doing so.

Moreover, should Defendants intend to rely upon “advice of counsel” to assert they 

were within their First Amendment rights to produce and post the alleged ads, they must 

set forth the requisite criteria as further discussed below. Notwithstanding this fine 

distinction, Defendants are not precluded from referring to their general business of 

publishing articles and information on Backpage.com, LLC to promote their First 

Amendment rights.

Accordingly, 

IT IS ORDERED granting, in part, the Government’s Motion (Doc. 1590). The 

Motion is granted to the extent that Defendants may not claim they were advised by counsel 

that they were permitted to post advertisements like those described in the SI under the 

First Amendment unless they make the requisite production. The Motion is otherwise 

denied. 

2. The Government’s Motion to Preclude References to Section 230

of the Communications Decency Act (Doc 1594); Defendants’

Response (Doc. 1615)

In this Motion, Government seeks an order precluding Defendants’ from 

“introducing evidence or argument at trial about Section 230 of the Communications 

Decency Act of 1996” (“CDA”) because courts have “construed Section 230 to provide 

immunity from civil claims for websites that publish content created by third parties.” 

(Doc. 1594 at 2). Defendants counter that they “must be permitted to present evidence 

tending to negate unlawful intent, including by showing that Backpage.com’s moderation 

and aggregation processes were driven by factors other than facilitating crime.” (Doc. 1615 

at 4). They assert that “[the Court] cannot bar Defendants from presenting evidence about 

their contemporaneous understanding of Section 230 and the First Amendment values and 

interest it advanced[.]” (Id. at 4). So, Defendants say to prohibit them from doing so would 

be a violation of their Fifth and Sixth Amendment rights to due process and a fair trial. 

(Id. at 5).

 Defendants’ reliance on Section 230 of the CDA for their immunity argument is a 

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misstatement of the law. The trial court has previously analyzed whether the CDA applies 

to this case and found that the facts in the SI are “qualitatively different” than the 

Defendants’ cited CDA cases. (Doc. 793 at 13). In so doing, the court opined that “[t]his 

case . . . does not concern civil liability, and the CDA has ‘no effect’ on ‘any other Federal 

criminal statute.’” (Id. citing 47 U.S.C. § 230(e)(1) (emphasis added)). To date, no party 

has provided this Court with case precedent holding that the CDA immunizes criminal 

activity like that alleged here. It follows that a jury should not be told that the CDA does. 

To do so is a misstatement of law and will lead to jury confusion. 

Accordingly, 

IT IS ORDERED granting the Government’s Motion in Limine (Doc. 1594). 

Defendants may not argue that Section 230 of the CDA immunizes Defendants from 

Counts 2–51 of the SI for violating the Travel Act.

3. The Government’s Motion Regarding Introduction of Details of 

Defendants’ family, background, and prior lawsuits (Docs. 1595; 

1596; 1597); Defendants’ Responses (Doc. 1609; 1610; 1616).

Three of the Government’s Motions seek to preclude Defendants from referring to 

other litigation outside the present matter. First, the Government seeks an order precluding 

“Defendants, their counsel, and their witnesses from commenting, during opening 

statements or closing argument, on any fact or evidence or individuals that are not 

anticipated to be introduced into evidence at the trial.” (Doc. 1596 at 2). As an example, 

the Government represents that introduction of details regarding a Defendant’s family, 

background, and relief obtained in prior lawsuits are improper during opening arguments.

(Id. at 2–3). Second, the Government seeks to preclude Defendants from referring to “any 

prior case or legal decision not involving Backpage” because they are inadmissible under 

Rules 401–403 and 802 (Doc. 1595 at 2). Third, the Government seeks to preclude 

Defendants referring to “decisions, rulings, or opinions issued in, or the outcomes of any 

prior litigation in which Backpage.com, LLC (Backpage) or any of its then-owners or 

parent companies was a plaintiff or defendant[.]” (Doc. 1597 at 2). These Motions will be 

discussed together because they seek virtually identical rulings for essentially the same 

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issue.

Though introduction of a Defendant’s family and details of their background are 

irrelevant to the allegations in the SI, such introductions are not prohibited. So, the Court 

will not preclude Defendants from so doing in a limited and resourceful way. However, 

statements about prior unrelated civil cases and money judgments are irrelevant to the 

specific Travel Act violations and will only mislead and confuse the jury. 

Relatedly, and as previously discussed, CDA Section 230 does not immunize 

Defendants from prosecution of Counts 2–51 for Travel Act crimes. Similarly, it follows 

that Defendants are instructed 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. Though some previously referenced cases alleged 

Backpage.com, LLC, engages in similar acts of posting ads for prostitution, those prior 

cases are distinguishable because they were (1) civil adjudications; (2) brought by different 

parties; and (3) reviewed under differing legal standards. Therefore, they are irrelevant 

because they bear no relation to this case or the criminal issues to be decided. To refer to 

any prior court case as legally controlling the issues here is are misstatements of the law,

would confuse the jury, and would prejudice the Government. 

Accordingly,

IT IS ORDERED granting, in part, the Government’s Motion in Limine to 

preclude defense from introducing non-witnesses or non-evidence (Doc. 1596). 

Defendants are precluded from comparing this case to any prior unrelated civil cases and/or 

money judgements in their opening and closing arguments. The Motion is otherwise 

denied.

IT IS FURTHER ORDERED granting the Governments’ Motions in Limine to 

preclude references to certain other litigation, court decisions, rulings, opinions, or results 

from prior litigation (Docs. 1595; 1597).

/ / /

/ / /

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4. The Government’s Motion to Preclude Defendants Good Faith 

Reliance on Advice of Counsel The Advice of Counsel (Doc. 1599); 

the Defendants’ Response (Doc. 1608).

In this Motion, the Government seeks to preclude Defendants from making 

statements that they relied upon the advice of counsel in their opening argument. 

Defendants state that the law of the case, evident by the Court’s overruling the 

Government’s objections to their opening statements that they relied upon advice of 

counsel, forecloses their argument. The Court disagrees. Nowhere in the record is it 

apparent that this or any prior Court issued a definitive ruling on whether Defendants may 

rely on an advice of counsel defense. 

It is true that Defendants may assert they relied upon the advice of counsel to negate 

the scienter requirement of the alleged charge, but only if they first meet the following 

factors: (1) they made a complete disclosure to counsel; (2) they requested counsel’s advice 

as to the legality of the contemplated action; (3) they received advice that it was legal; and 

(4) they relied in good faith on the advice. See United States v. McLennan, 563 F.2d 943, 

946 (9th Cir. 1977). None of the prior Orders described by Defendants definitively ruled 

that they could rely upon this argument because so far, no Defendant has waived the 

attorney/client privilege as it relates to the allegations in the SI. So, to the extent that 

Defendants intend to raise this argument, whether in opening statement, closing argument, 

or their case in chief, they must first proffer a showing of all four factors. 

For example, the Court will permit Defendants to argue an advice of counsel defense

if they show they provided “complete disclosure[s]” about the advice they sought on an ad 

listed in Counts 2–51 (or similar ad described in the SI); sought advice relating to the

legality of the ad; received advice that the contemplated conduct was legal; and relied on 

that advice. (See Doc. 1626-3 at 31) (“[u]nlawful intent has not been proved if a defendant, 

before acting, made full disclosure of all material facts to an attorney . . .”). However, if 

none of the four factors has been disclosed or produced prior to opening statements, 

Defendants are precluded from making such early pronouncements. To permit Defendants 

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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. 

Accordingly, 

IT IS ORDERED granting the Government’s Motion in Limine (Doc. 1599). 

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.

Dated this 24th day of July, 2023.

Honorable Diane J. Humetewa

United States District Judge

 

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