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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’ RESPONSE TO 

DEFENDANTS’ MOTION TO 

DISMISS COUNT 1 

(Doc. 1744) 

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Defendants’ motion to dismiss Count 1 should be denied. (Doc. 1744.) Defendants’

argument does not square with governing case law, the Model Criminal Jury Instructions, 

or the law of the case.

I. Case Law And The Model Criminal Jury Instructions Support Count 1

As discussed in the United States’ Objections to the Preliminary Jury Instructions 

and Limiting Instruction (Doc. 1743), the object of a criminal conspiracy need not be 

illegal. Indeed, under Ninth Circuit law a “conspiracy is defined as a combination of two 

or more persons to accomplish some unlawful purpose, or some lawful purpose by 

unlawful means.” United States v. Caplan, 633 F.2d 534, 542 (9th Cir. 1980). This 

principle is further supported by the Ninth Circuit Model Criminal Jury Instructions. 

Model Criminal Jury Instruction 11.1 (the word “illegal” is not part of the conspiracy jury 

instructions).

Defendants’ attempt to distinguish Caplan is ineffectual. Defendants argue that 

United States v. Johnson, 44 F. App’x 752, 754 (9th Cir. 2002) overrules Caplan. 

Defendants are wrong. First, Johnson holds no precedential value. It’s an unpublished 

decision from 2002. Under the Ninth Circuit Rules, any unpublished decision issued before 

January 1, 2007, may not be cited to the Court unless certain exceptions apply that aren’t 

present here. Ninth Circuit Rule 36-3. Second, the Johnson Court couldn’t determine 

which “object” of the conspiracy the jury relied on in reaching its guilty verdict, because 

there were four separates “objects” charged. Here, there’s only one. (Doc. 230 at ¶ 197.) 

Further, in Johnson one of the four objects was not a federal offense, which again differs 

from the case at hand. Defendants are charged with conspiracy to violate the Travel Act 

and the United States listed the specific manner and means along with the overt acts

committed by Defendants in furtherance of the conspiracy. (Doc. 230 at ¶¶ 1-194.) There’s 

no ambiguity that Defendants are charged with a criminal conspiracy to violate the Travel 

Act in order to obtain money. Even if Johnson had precedential value, it has no application 

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to the case before this Court.1 Caplan remains good law. 

II. Law Of The Case Bars Defendants’ Motion 

This is Defendants’ eleventh motion to dismiss. (Docs. 456, 561, 746, 782, 783, 

940, 1239, 1250, 1355, 1421, 1557.) Four challenged the Superseding Indictment’s (SI’s) 

sufficiency. (Docs. 561, 746, 783, 1557.) In denying those motions, the Court repeatedly 

determined that the SI properly alleges the essential elements of an indictment for Travel 

Act offenses. (Docs. 793, 840, 946, 1587.) The Court has continually ruled correctly—it 

correctly applied Ninth Circuit law to the detailed 92-page SI, which amply put Defendants 

on notice of the charges against them—including the conspiracy alleged in Count 1. 

III. Conclusion 

The SI has alleged that Defendants violated a federal offense in Count 1—

conspiracy to violate the Travel Act. Defendants’ motion to dismiss should be denied. 

Respectfully submitted this 14th 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/Andrew C. Stone 

 KEVIN M. RAPP 

 MARGARET PERLMETER 

 PETER KOZINETS 

 ANDREW STONE 

DANIEL BOYLE

Assistant U.S. Attorneys 

 AUSTIN M. BERRY 

Trial Attorney 

1 Defendants’ citation to United States v. Manarite, 44 F.3d 1407 (9th Cir. 1995), is 

also unpersuasive. (Mot. at 3.) The Manarite Court found that the evidence at trial couldn’t 

support a conviction for either mail or wire fraud as a matter of law. Id. at 1411. The Court 

then found that defendants could not be found guilty of conspiring to commit either mail 

or wire fraud. Id. And, because the jury used a general verdict form, it was impossible to determine what crime supported the conspiracy conviction so the Court reversed. Id. The 

same issue is not present here—Count 1 only pertains to alleged Travel Act violations committed by Defendants. 

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CERTIFICATE OF SERVICE 

I hereby certify that on September 14, 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/ Andrew C. Stone

Andrew C. Stone 

Assistant U.S. Attorney 

Case 2:18-cr-00422-DJH Document 1788 Filed 09/14/23 Page 4 of 4