NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

 v.

MICHAEL LACEY; JAMES LARKIN;

SCOTT SPEAR; JOHN BRUNST;

ANDREW PADILLA; JOYE VAUGHT, 

Defendants-Appellants.

No. 22-10000

D.C. Nos. 

2:18-cr-00422-DJH-1

2:18-cr-00422-DJH-2

2:18-cr-00422-SMB-3

2:18-cr-00422-SMB-4

2:18-cr-00422-SMB-6

2:18-cr-00422-SMB-7

2:18-cr-00422-SMB

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Diane J. Humetewa, District Judge, Presiding

Argued and Submitted September 2, 2022

San Francisco, California

Before: W. FLETCHER, BYBEE, and VANDYKE, Circuit Judges.

The parties are familiar with the facts and proceedings, which will not be

recited here except as necessary to explain our decision. 

FILED

SEP 21 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

 * This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

Case 2:18-cr-00422-DJH Document 1469-1 Filed 10/13/22 Page 1 of 5
This is an interlocutory appeal of the district court’s denial of Defendants’

motion to dismiss under the Double Jeopardy Clause. Defendants appeal the

denial of the motion to dismiss and the motion judge’s denial of an evidentiary

hearing. We have jurisdiction under 28 U.S.C. § 1291. See Abney v. United

States, 431 U.S. 651, 662 (1977) (for the purposes of appellate review, denial of a

motion to dismiss on double jeopardy grounds constitutes a final decision). We

affirm.

We review the denial of a motion to dismiss on double jeopardy

grounds de novo. United States v. Zone, 403 F.3d 1101, 1104 (9th Cir. 2005).

However, “factual findings, including those on which [the] denial may be based”

are reviewed for clear error. United States v. Lopez-Avila, 678 F.3d 955, 961 (9th

Cir. 2012) (quoting United States v. Ziskin, 360 F.3d 934, 943 (9th Cir. 2003)). 

We afford such deference to the district court’s findings of fact even when they are

based on deductions and inferences from a written record. See Anderson v. City of

Bessemer City, 470 U.S. 564, 574 (1985). We review the denial of a motion for an

evidentiary hearing for abuse of discretion. United States v. Hagege, 437 F.3d

943, 951 (9th Cir. 2006).

A defendant who moves for mistrial may only “raise the bar of double

jeopardy to a second trial” if the mistrial was instigated by prosecutorial conduct

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Case 2:18-cr-00422-DJH Document 1469-1 Filed 10/13/22 Page 2 of 5
that was “intended to ‘goad’ the defendant into moving for a mistrial.” Oregon v.

Kennedy, 456 U.S. 667, 676 (1982). “The only relevant intent is intent to

terminate the trial, not intent to prevail at this trial by impermissible means.” 

United States v. Lopez-Uvula, 678 F.3d 955, 962 (9th Cir. 2012) (quoting United

States v. Perlaza, 439 F.3d 1149, 1173 (9th Cir. 2006)). 

Defendants argue that the government sought a mistrial in order to regroup

and reorganize its case in light of (1) Defendants’ compelling arguments regarding

specific intent and the First Amendment, (2) the trial judge’s pretrial ruling that

escort services are legal, and (3) the government’s poor showing at trial up to that

point. We address each reason in turn. 

1. Defendants’ arguments regarding specific intent and the First

Amendment were of no surprise to the government; Defendants briefed these

issues extensively throughout the motion-to-dismiss stage. In response to these

arguments, the trial judge had held that the indictment alleged facts that, “taken as

true, establish [D]efendants had the specific intent to promote prostitution in

violation of the Travel Act.” United States v. Lacey, 423 F. Supp. 3d 748, 764 (D.

Ariz. 2019). Defendants have failed to show that their arguments in support of

jury instructions on these issues were so convincing as to require the government

to rethink its case.

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Case 2:18-cr-00422-DJH Document 1469-1 Filed 10/13/22 Page 3 of 5
2. The trial judge’s pretrial ruling that escort services are legal would not

reasonably deter the government from trying its case. The indictment recognizes

that escort services are lawful, but goes on to allege that the vast majority of

advertisements for escort services on Backpage were thinly-veiled prostitution ads.

3. As to Defendants’ argument that the government sought mistrial

because the trial had been going poorly, the government’s case-in-chief was still in

its infancy. Of seventy-six government witnesses, only four had testified. At

minimum, the government still had a clear path to prevailing at trial. 

Accordingly, the record supports the motion judge’s conclusion that the

government had no reason to sabotage its own trial.

We also conclude that the government’s misconduct was not so egregious as

to compel a finding of an intent to goad. Though the record shows that the

government did elicit prejudicial evidence in violation of pretrial rulings, the

record also shows that the government generally had good-faith reasons to believe

its questions were within the contours of the trial judge’s rulings. On several

occasions, the government asked questions within the parameters set by the trial

judge, and a witness provided prejudicial testimony that went beyond the scope of

the question. In the few instances where the government asked a question that

clearly violated a pretrial ruling, the government had a cogent reason for doing so. 

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Case 2:18-cr-00422-DJH Document 1469-1 Filed 10/13/22 Page 4 of 5
Lastly, we note that the government vigorously opposed Defendants’

motions for mistrial. Though the government’s opposition is “not conclusive,” it

does “support[] the district court’s finding of a lack of intent.” United States v.

Fowlkes, 804 F.3d 954, 972 (9th Cir. 2015).

For the foregoing reasons, we find that the motion judge did not clearly err

by finding the government did not intend to goad Defendants into moving for a

mistrial. We therefore affirm the motion judge’s denial of the motion to dismiss.

Additionally, we find that the motion judge did not abuse her discretion by

declining to hold an evidentiary hearing on Defendants’ motion to dismiss. 

Defendants claim that the motion judge should have held an evidentiary hearing to

force the government to explain under oath its “repeated and brazen rule breaking

at trial.” However, the record supports the motion judge’s finding that the

government did not act with an intent to goad a mistrial. The motion judge did not

abuse her discretion by refusing to make counsel for the government explain as

much in an evidentiary hearing.

AFFIRMED.

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