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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 

DEFENSE FROM ARGUING 

LEGALITY OF ADS 

 

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The United States moves in limine to preclude the Defendants, their counsel, or 

witnesses from declaring legal judgments about the legality or illegality of any 

advertisement, either charged or uncharged. Fed. R. Evid. 403.1

 

In opening statements in the first trial, defense counsel repeatedly proclaimed to the 

jury that ads were “legal.” For example, one attorney stated: “They’re all, every ad he [the 

prosecutor] showed you, they’re all legal escort ads.” (Doc. 1342 at 20:15-16.) Counsel 

made scores of similar statements about the legality of Backpage’s ads, including: 

• “[The prosecutor] talked for two hours, he never showed you a single ad that was 

an illegal ad on its face.” (Doc. 1342 at 30:23-24.) 

• “If an ad said $50 for intercourse, oral sex, manipulating your privates, that’s an 

illegal ad, but you’re not going to see that. When the ad doesn’t say that, it’s not

illegal.” (Id. at 43:9-12.)

• “And things that fall short of this . . . are not illegal ads.” (Id. at 44:21-22.) 

• “But the ad itself . . . is a legal ad. All of them are.” (Id. at 47:16-18.) 

• “It’s a legal ad.” (Id. at 48:9.) 

• “[Y]ou’re not seeing illegal ads because Backpage monitored for them.” (Id. at 

48:10-11.) 

• “These I’m putting up because these actually are ads in the indictment. . . . This is a 

legal ad. Nothing illegal here.” (Id. at 69:5-9.) 

• “This is another ad, perfectly legal. It has that GFE term in it. . . . [A]s the case law 

said to you, these terms mean nothing. It’s a legal ad.” (Id. at 69:16-19.) 

• “Same thing here. They showed you this one. It’s another legal ad.” (Id. at 69:20-

21.) 

• “You can look at the ads. . . . They’re legal ads. There is nothing illegal about the 

ads on their face.” (Id. at 70:11-13.) 

1

 Certification: On June 5, 2023, counsel for the United States met and conferred in good faith with Defendants’ counsel regarding the relief requested in this motion, and the parties 

could not reach agreement. The Court has not previously considered or ruled on the motion. 

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• “[E]very ad you saw put up by the government was a legal ad.” (Id. at 85:12-13.)

• “First of all, they were legal ads[.]” (Id. at 90:9.)

Such arguments are improper in an opening statement precisely because they are 

arguments, not previews of the evidence anticipated to be introduced to the jury. United 

States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J., concurring) (“An opening 

statement has a narrow purpose and scope. It is to state what evidence will be presented, to 

make it easier for the jurors to understand what is to follow, and to relate parts of the 

evidence and testimony to the whole; it is not an occasion for argument.”). But they are 

also improper because they are conclusory statements about the law, which is the province 

of the Court, not the attorneys. United States v. Brodie, 858 F.2d 492, 496 (9th Cir. 1988), 

overruled on other grounds by United States v. Morales, 108 F.3d 1031 (9th Cir. 1997). 

Defense counsel might permissibly tell jurors that he or she anticipates the Court will 

instruct them that the law says “X”—but they cannot proclaim that an ad is legal or illegal. 

Moreover, proclamations of legality about specific ads also mislead the jury into 

thinking this case is about whether an advertisement, in and of itself, is “legal” or “illegal.”

But that is not the question for this jury. Instead, the jury will be tasked with determining, 

inter alia, whether Defendants used the mail or any facility in interstate commerce with 

intent to promote, or facilitate the promotion of, business enterprises involving prostitution 

offenses, and then performed or attempted to perform an act that did promote, or facilitate 

the promotion of, any such enterprises. (See Doc. 1340 at 48:11-24.) That is, the jury will 

not be asked to determine whether 50 specific ads are “legal” or “illegal,” but instead 

whether the Defendants did an act with the requisite intent. In other words, allowing 

defense counsel to pontificate on whether a particular ad is “legal,” rather than Defendants’ 

intent and actions, will confuse the issues, mislead the jury, and waste time. Accordingly, 

such comments and arguments should be precluded by this Court. See Fed. R. Evid. 403. 

In addition to making conclusory arguments in opening statement about the legality 

of ads, defense counsel presented uncharged ads having nothing to do with Backpage. For 

example, counsel discussed an ad for a billiards parlor offer to get two beers and play all 

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the pool you want for $20. (See Doc. 1342 at 85:14-19.) And counsel, discussing an ad for 

a gun store, declared that the ad itself was not illegal simply because of the store’s logo 

displayed “illegal” “machine guns.” (Doc. 1342 at 86:12-18; see Doc. 1343 at 40:17-22.) 2

Yet, defense counsel cannot declare the legality of an advertisement for a 

completely different business, such as billiards or firearms. Indeed, it might very well be 

that such ads for other business are indicative of illegal activity, but that is not for counsel 

in this case to opine or declare in this matter. Such declarations of legality by counsel 

carries the imprimatur of authority for the jury because they come from a lawyer who has 

been permitted by the judge to say such to the jury, and they also risk confusing the issues, 

wasting time, and misleading the jury. They are irrelevant and misleading, and should be 

precluded under Fed. R. Evid. 401-403. 

Conclusion 

 This Court should preclude the defense from making any argument in the presence 

of the jury that specific ads, either related to Backpage or otherwise, are legal or illegal. 

Respectfully submitted this 8th day of June, 2023.

 GARY M. RESTAINO 

 United States Attorney 

 District of Arizona KENNETH POLITE 

 Assistant Attorney General Criminal Division, U.S. Department of Justice 

 s/Kevin M. Rapp KEVIN M. RAPP 

 MARGARET PERLMETER 

 PETER KOZINETS 

 ANDREW STONE 

DANIEL BOYLE

2 Another problem with defense counsel’s attempt to argue by comparison is the vernacular 

used. Machine gun has a specific legal definition. 26 U.S.C. § 5845(b). And it is impossible 

to determine from a photograph, much less business logo, whether a firearm qualifies as a machine gun or a semi-automatic firearm. Such careless comparisons invoking conclusory statements such as legal or illegal will require the United States to spend time educating 

the jury on nuances defense counsel conveniently ignores. 

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Assistant U.S. Attorneys

AUSTIN M. BERRY

Trial Attorney

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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 

Case 2:18-cr-00422-DJH Document 1592 Filed 06/08/23 Page 6 of 6