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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 

KENNETH POLITE 

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’ NOTICE OF 

SUPPLEMENTAL AUTHORITY 

[Doc. 1632] 

 

Case 2:18-cr-00422-DJH Document 1633 Filed 07/12/23 Page 1 of 4
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 Defendants’ Notice of Supplemental Authority does not support reconsideration of 

the June 1, 2023 Order (Doc. 1587) for several reasons: 

 1. Woodhull Freedom Found. v. United States, --- F.4th ---, 2023 WL 4376244 

(D.C. Cir. July 7, 2023), involved a pre-enforcement, facial overbreadth challenge to 18 

U.S.C. § 2421A(a), a provision of the Allow States and Victims to Fight Online Sex 

Trafficking Act (FOSTA) that makes it a felony to [1] own, manage, or operate an online 

platform [2] “with the intent to promote or facilitate the prostitution of another person.” 

The parties did not litigate—and the D.C. Circuit did not address—what a FOSTA 

indictment must allege to survive a motion to dismiss at the pleading stage. The court did 

not address the essential elements of a Travel Act indictment—and the D.C. Circuit did not 

(and could not) overrule Ninth Circuit precedent on that point. E.g., United States v. 

Tavelman, 650 F.2d 1133, 1138 (9th Cir. 1981). 

 2. Woodhull focused on the narrow question of whether the second prong of 

§ 2421A(a)—the mens rea requirement—reaches general advocacy and health and safety 

information. 2023 WL 4376244, at *6-7. The court considered traditional criminal law 

meanings and the context of the statute, which has “a very specific criminal object”—“the 

prostitution of another person”—and held “that Section 2421A(a)’s mental state 

requirement” “reaches a person’s intent to aid or abet the prostitution of another person.” 

Id. at *7-10. But the court did not hold, and the United States never argued, that FOSTA 

requires proof of all elements of a traditional claim of aiding and abetting. See id. at *10; 

Doc. 1577 at 15-16. For example, the opinion nowhere holds that FOSTA requires a 

completed, underlying act of prostitution. Judge Katsas made the same point in an earlier 

appeal, as the United States emphasized. Woodhull Freedom Found. v. United States, 948 

F.3d 363, 375 (D.C. Cir. 2020) (Katsas, J., concurring); Doc. 1577 at 15-16. 

 3. Woodhull referred to the Travel Act in passing, but did not analyze it. 2023 

WL 4376244, at *9. At most, the panel noted that the Act contains an intent requirement 

that uses the terms “promote . . . or facilitate the promotion of,” and followed that 

observation with a “cf.” citation to Urena-Ramirez v. Ashcroft, 341 F.3d 51, 54 (1st Cir. 

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2003). Id. at *9. Urena-Ramirez, in turn, concerned whether a Travel Act conviction was 

sufficiently related to “a controlled substance offense” to support a non-citizen’s removal 

under 8 U.S.C. § 1227(a)(2)(B)(i); it nowhere discusses the Travel Act’s pleading or proof 

requirements. 

 4. If anything, Woodhull reflects how the Travel Act’s mens rea element 

operates differently than FOSTA’s. FOSTA criminalizes operating an online platform with 

“intent to promote or facilitate the prostitution of another person”; in contrast, the Travel 

Act prohibits using any facility of interstate commerce with intent to promote, or facilitate 

the promotion of, an “unlawful activity”—here, “any business enterprise involving 

prostitution offenses in violation of the laws of the State in which they are committed or of 

the United States[.]” Compare 18 U.S.C. § 2421A(a) (emphasis added) with 18 U.S.C. 

§ 1952(a)(3), (b)(i)(1) (emphasis added). The Travel Act’s focus on unlawful business 

enterprises, rather than the prostitution of any individual person, shows that the statutes’ 

intent requirements have different “criminal object[s].” Woodhull, 2023 WL 4376244, at 

*10. Woodhull also emphasizes the importance of reading a statute’s terms in context, with 

each word drawing meaning from the other words of the statute, viewing each word “in 

light of its context and placement in the statutory scheme.” Id. at *6-7. 

 5. Defendants’ judicial estoppel argument misses the mark, because the United 

States did not argue in Woodhull—and the D.C. Circuit did not hold—that the use of words 

“promote or facilitate” in FOSTA’s mental state requirement requires the government to 

plead, let alone prove, all elements of a traditional aiding and abetting charge to convict a 

defendant of violating 18 U.S.C. § 2421. See Doc. 1577 at 16-17. And, of course, Woodhull

contains no similar holdings about the Travel Act—a statute that was not at issue. 

 

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 Respectfully submitted this 12th day of July, 2023.

 GARY M. RESTAINO 

 United States Attorney 

 District of Arizona 

 

 KENNETH POLITE 

 Assistant Attorney General 

 Criminal Division, U.S. Department of Justice 

 s/Peter S. Kozinets 

 KEVIN M. RAPP 

 MARGARET PERLMETER 

 PETER KOZINETS 

 ANDREW STONE 

 DANIEL BOYLE 

 Assistant U.S. Attorneys 

 AUSTIN M. BERRY 

 Trial Attorney 

CERTIFICATE OF SERVICE 

 I hereby certify that on July 12, 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/ Tammie Holm

 Tammie Holm 

 Paralegal Specialist U.S. Attorney’s Office 

Case 2:18-cr-00422-DJH Document 1633 Filed 07/12/23 Page 4 of 4