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Timothy J. Eckstein, 018321

Joseph N. Roth, 025725

Sarah P. Lawson, 036436

OSBORN MALEDON, P.A.

2929 North Central Avenue, 20th Floor

Phoenix, Arizona 85012-2793

(602) 640-9000

teckstein@omlaw.com

jroth@omlaw.com

slawson@omlaw.com

Attorneys for James Larkin

Additional counsel on following page

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Michael Lacey, et al.,

Defendants.

Case No. 2:18-cr-00422-PHX-DJH

DEFENDANTS’ RESPONSE TO 

GOVERNMENT’S MOTION IN 

LIMINE TO PRECLUDE 

DEFENSE FROM INTRODUCING 

NON-WITNESSES OR NONEVIDENCE

(DOC. 1596)

(Oral Argument Requested)

Case 2:18-cr-00422-DJH Document 1610 Filed 06/15/23 Page 1 of 7
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Paul J. Cambria, Jr. (NY 15873, admitted pro hac vice)

Erin E. McCampbell (NY 4480166, admitted pro hac vice)

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

(716) 849-1333

pcambria@lglaw.com

emccampbell@lglaw.com

Attorneys for Michael Lacey

Bruce S. Feder (AZ 004832)

FEDER LAW OFFICE PA

2930 E. Camelback Rd., Suite 160

Phoenix, Arizona 85016

(602) 257-0135

bf@federlawpa.com

Eric Walter Kessler

KESSLER LAW OFFICE

6720 N. Scottsdale Rd., Suite 210

Scottsdale, Arizona 85253

(480) 644-0093

Eric.kesslerlaw@gmail.com

Attorneys for Scott Spear

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW P.C.

1875 Century Park E., Suite 2300

Los Angeles, California 90067

(310) 201-2100

glincenberg@birdmarella.com

gpanchapakesan.@birdmarella.com

aneuman@birdmarella.com

Attorneys for John Brunst

David S. Eisenberg

DAVID EISENBERG PLC

3550 N. Central Ave., Ste. 1155

Phoenix, Arizona 85012

(602) 237-5076

david@eisenbergplc.com

Attorneys for Andrew Padilla

Case 2:18-cr-00422-DJH Document 1610 Filed 06/15/23 Page 2 of 7
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Joy Malby Bertrand

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

(480) 656-3919

joyous@mailbag.com

Attorneys for Joye Vaught

Case 2:18-cr-00422-DJH Document 1610 Filed 06/15/23 Page 3 of 7
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Without any basis in fact or law, citing to moments in defense openings in the first 

trial to which it did not then object, the government now seeks to prevent defense counsel 

from (1) portraying their clients as human beings by noting the presence of family members

and (2) informing the jury of relevant facts and evidence that will be adduced at trial relating 

to defendants’ decades of professional experience in defending the First Amendment. 

Doc. 1596. The Court should deny this motion.

Commenting During Opening Statements or Closing Argument. The 

government first asks the court to preclude “Defendants, their counsel and their witnesses 

from commenting during opening statements or closing argument, on any facts or 

evidence or individuals that are not anticipated to be introduced into evidence at the trial.” 

Id. at 2. Neither Defendants, their witnesses, nor anyone other than counsel can comment 

during opening statements or closing argument, and the government has cited neither an 

example of that occurring or a rule that would allow that. Counsel has no intention to 

comment on facts not anticipated to be introduced as evidence. Should it do so, we have 

no doubt the government will point it out to the jury during closing argument, as is a 

regular trial practice in our adversarial system.

Introducing Family or Friends. During the first trial, Defendant Larkin’s 

counsel briefly noted the presence of Larkin’s family members and asked them to stand. 

The government did not object. The government now seeks an order precluding during 

opening statements or closing argument any introduction of any defendant’s family or 

friends. Id. at 2-3. The government does not cite, nor has defense counsel ever heard of,

a request or order precluding this common practice, that, in the most innocuous and brief 

way, responds to the government’s depiction of defendants as greedy sex traffickers. 

Moreover, it is reasonable to anticipate that as part of the defense’s case, the jury would 

hear testimony about the existence of a defendant’s family.

Referencing Awards. The government is offended by counsel’s statement (to 

which it did not object) that defendants Lacey and Larkin “won over 3,800 awards,” 

including a “Pulitzer Prize,” and that they are “real newspaper people”. Id. at 2. Counsel 

Case 2:18-cr-00422-DJH Document 1610 Filed 06/15/23 Page 4 of 7
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are well aware of the risks associated with facts cited during opening statement that are not 

supported by evidence adduced during the trial, and the government’s ability to challenge 

the same. This evidence—Defendants’ decades of serious journalism and a deep

commitment to the First Amendment—is further relevant to explain Defendants’ 

publication of adult classified ads, and their motivation in keeping adult content on 

Backpage.com, despite third-party demands that they shutter that portion of the site. The 

government has further made Defendants’ motive an issue by telling the jury that 

“defendants’ main concern was making money,” and that Defendants were motivated 

solely by “greed,” a word the government used at least eleven times during its opening 

statement. Doc. 1341 at 6:7-9; 12:15-18; 28:4-11; 31:6-8; 37:21-24; 39:23-40:4; 40:21-24; 

42:4-10; 45:11-23; 46:16-20; 50:16-19.

Stating Facts or Opinions Not Anticipated to Be Introduced at Trial. As 

noted above, defense counsel does not intend to cite to any fact—including as to personal 

history, religious affiliation, or family members—that it does not intend to get admitted as 

evidence, and runs the risk of its failure to do so.

Referencing Prior Cases Involving Defendants. Finally, the government seeks 

preclusion of any reference to Defendant Larkin’s and Lacey’s wrongful arrests by and 

subsequent civil suit against then-sheriff Joseph Arpaio, as irrelevant, potentially confusing 

and misleading, and a waste of time. Doc. 1596 at 2-3. The government further expresses 

concern that, should the Court admit evidence of this incident, the government will “have 

to explain the difference between the publishing of an article critical of an elected public 

official and the range of criminal conduct alleged in the 100-count Superseding 

Indictment.” Id.

To the extent the government is seeking preclusion to reference of this matter in 

opening statements, the Court should reject that request for the reasons stated above. In 

addition, it is hard to see how approximately 30 seconds constitutes a “waste of time” in 

the government’s three-month case, or how a brief reference to this other event would 

Case 2:18-cr-00422-DJH Document 1610 Filed 06/15/23 Page 5 of 7
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necessitate the government provide a full explanation of the difference between that act 

and the charges here.

Counsel will not further address the potential preclusion of the evidence related to 

this incident, as the government’s proposed order only relates to “references” by defense 

counsel, and not the evidence on which those references rely.

DATED this 15th day of June, 2023.

OSBORN MALEDON, P.A.

By s/ Joseph N. Roth

Timothy J. Eckstein

Joseph N. Roth

Sarah P. Lawson

2929 North Central, 20th Floor

Phoenix, Arizona 85012-2794

Attorneys for James Larkin

LIPSITZ GREEN SCIME CAMBRIA LLP

By s/ Paul J. Cambria, Jr. (w/permission)

Paul J. Cambria, Jr. (pro hac vice)

Erin E. McCampbell (pro hac vice)

42 Delaware Avenue, Suite 120

 Buffalo, New York 14202

Attorneys for Michael Lacey

FEDER LAW OFFICE PA

By s/ Bruce S. Feder (w/permission)

Bruce S. Feder

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

Case 2:18-cr-00422-DJH Document 1610 Filed 06/15/23 Page 6 of 7
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KESSLER LAW OFFICE

By s/ Eric W. Kessler (w/permission)

Eric W. Kessler

6720 N. Scottsdale Rd., Suite 210

Scottsdale, Arizona 85253

Attorneys for Scott Spear

BIRD, MARELLA, BOXER, WOLPERT,

NESSIM, DROOKS, LINCENBERG & 

RHOW P.C.

By s/ Gary S. Lincenberg (w/permission)

Gary S. Lincenberg

Gopi K. Panchapakesan

Ariel A. Neuman

1875 Century Park E., Suite 2300

Los Angeles, California 90067

Attorneys for John Brunst

DAVID EISENBERG PLC

By s/ David S. Eisenberg (w/permission)

David S. Eisenberg

3550 N. Central Ave., Ste. 1155

Phoenix, Arizona 85012

Attorneys for Andrew Padilla

JOY BERTRAND LAW 

By s/ Joy M. Bertrand (w/permission)

Joy M. Bertrand

P.O. Box 2734

Scottsdale, Arizona 85252

Attorneys for Joye Vaught

Case 2:18-cr-00422-DJH Document 1610 Filed 06/15/23 Page 7 of 7