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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’ MOTION 

IN LIMINE TO PRECLUDE 

DEFENDANTS’ PURPORTED GOOD 

FAITH RELIANCE ON ADVICE OF 

COUNSEL 

 

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The United States renews its previous motion to preclude Defendants from soliciting 

testimony or otherwise suggesting that they relied upon the advice of their attorneys as a 

defense to the charged offenses.1 (Doc. 1234.) Reliance on attorneys’ advice is only 

relevant after “showing that [a defendant] made a full disclosure of all relevant and material 

facts to his attorney.” Bisno v. United States, 299 F.2d 711, 719-20 (9th Cir. 1961). Here, 

Defendants have failed to waive the attorney-client privilege to permit the United States 

and the Court to determine whether “a full disclosure of all relevant and material facts” 

were provided to the attorneys before they provided any “advice.” Accordingly, 

Defendants should be precluded from raising any advice of counsel defense. 

Procedural History 

The Court ordered that each motion in limine include “a certification by the 

proponent stating that the prior trial court has not considered or ruled on the proposed 

Motion. If an aspect of the Motion has been considered, the proponent shall refer to the 

relevant document number(s).” (Doc. 1524 at n.1.) The United States certifies that this

particular motion was previously raised, but not ruled upon. 

Before the first trial, the United States moved to preclude Defendants’ advice of 

counsel defense. (Doc. 1234.) Defendants responded, but devoted most of their filing to 

renewing a previously denied motion to dismiss for outrageous government conduct. (Doc. 

1250; see Doc. 1168 (Order denying motion to dismiss).) The United States replied (Doc. 

1258), and several weeks later Defendants filed a reply regarding their renewed motion to 

dismiss (Doc. 1321). On December 2, 2021, the Court denied the United States’ motion, 

along with Defendants’ renewed motion to dismiss, “as redundant and moot and without 

prejudice to renew should the Court’s rulings on the Motion to Dismiss . . . or Defendants’ 

Motion to Compel . . . not address any issue raised therein.” (Doc. 1421.) 

On December 29, 2021, the Court issued its ruling on Defendants’ Motion to 

Dismiss (Doc. 1355) and Defendants’ Motion to Compel (Doc. 1281). (Doc. 1444.) In that 

1

 Certification: On June 5, 2023, the United States’ counsel met and conferred in good faith with Defendants’ counsel regarding the relief sought here, and the parties could not agree.

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Order, the Court addressed Defendants’ renewed motion to dismiss (Doc. 1250). (Doc. 

1444 at 15.) The Court wrote that “the trial court previously issued a Sealed Order [Doc. 

1168] addressing these very same allegations,” and found that the United States had neither 

“invaded the Defendants’ attorney-client privilege” nor engaged in outrageous conduct.

(Doc. 1444 at 15.) The Court did not, however, address the United States’ motion to 

preclude Defendants’ advice of counsel defense. Accordingly, the United States certifies 

that while the prior trial court may have considered the motion, no ruling has yet issued. 

Argument

Defendants may not raise an advice of counsel defense without first showing that 

they disclosed all relevant and material facts to their attorneys. Bisno, 299 F.2d at 719-20. 

Defendants agree. In their earlier response, they referred to the “uncontroversial 

proposition that an advice of counsel defense requires the defendant to show that he ‘made 

a full disclosure of all relevant and material facts to his attorney.’” (Doc. 1250 at 10.) 

Despite this understanding, however, Defendants invoked an advice of counsel defense no 

less than five times during their opening statements—without first demonstrating that they 

had made the required full disclosures to their attorneys: 

• “So, if Mr. Padilla needed advice, he didn’t rely on himself. He relied on the 

attorneys and he relied on Mr. Ferrer.” (Doc. 1343, Trial. Tr. 9/8/21, at 7:2-4.) 

• “Not pornography, not sex for money, but legal ads predicated upon standard 

that he learned, not that he developed, but that he learned. And so, as a worker, 

as an operational person, [Padilla’s] goal was to follow the standard that had 

been set for him principally by Mr. Ferrer and by the attorneys.” (Doc. 1343 at 

8:5-10.) 

• “And they were advised by their attorneys and others that, if you shut down the 

adult section, like Craigslist, they’re just going to move to something else.”

(Doc. 1343 at 30:19-21.) 

• “However, [Lacey] was told repeatedly by Carl Ferrer and a number of attorneys 

that Carl and others had hired to advise them as to how to – how do you preserve 

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the First Amendment for all the people that have now been deprived of that when 

the government shut them down?” (Doc. 1343 at 33:16-20.)

• “And a number of attorneys advised them.” (Doc. 1343 at 33:23.)

By making these arguments without first satisfying Bisno, Defendants attempted to

circumvent the threshold requirement of showing that they had made a full and complete 

disclosure of all relevant and material facts to their counsel. Without such a showing, 

however, evidence of their reliance on advice of counsel isn’t reliable and shouldn’t be 

presented to the jury. See Fed. R. Evid. 403.

In the Holmes matter, the Northern District of California recently articulated what 

must occur before a defendant may present evidence related to advice of counsel:

Prior to invoking an advice-of-counsel defense, however, Holmes must 

establish the foundational prerequisites for the advice-of-counsel defense, 

namely: (1) waiver of the applicable attorney-client privilege, (2) 

demonstrating that there was a full disclosure to her attorney of all material 

facts, (3) and that she relied in good faith on the specific course of conduct 

the attorney recommended.

United States v. Holmes, No. 5:18-CR-00258-EJD-1, 2021 WL 2044470, at *51 (N.D. Cal. 

May 22, 2021). 

Unless and until Defendants establish these “foundational prerequisites,” the Court 

should preclude Defendants from invoking an advice of counsel defense, which would 

include any references in their opening statements (like those quoted above) to Defendants’ 

purported reliance on attorneys’ advice.

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 Respectfully submitted this 8th day of June, 2023.

 GARY M. RESTAINO 

 United States Attorney 

 District of Arizona 

 s/ Andrew C. Stone 

KEVIN M. RAPP 

MARGARET PERLMETER 

PETER S. KOZINETS 

ANDREW C. STONE 

DAN G. BOYLE 

Assistant U.S. Attorneys 

 

KENNETH POLITE 

Assistant Attorney General 

U.S. Department of Justice 

Criminal Division, U.S. Department of Justice AUSTIN M. BERRY 

Trial Attorney 

 

CERTIFICATE OF SERVICE 

I hereby certify that on June 8, 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/ Daniel Parke

Daniel Parke 

U.S. Attorney’s Office 

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