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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 

REFERENCES TO 

CERTAIN OTHER LITIGATION 

 

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The United States moves in limine to preclude Defendants, counsel, and witnesses 

from making reference in the presence of the jury to any of the following: (1) any reference 

to the previous trial in this matter; and (2) any prior case or legal decision not involving 

Backpage. These references should be excluded under Fed. R. Evid. 401-403 and 802.1

References to the September 2021 trial are irrelevant because they would not tend 

to make the existence of any fact that is of consequence more or less probable. See Fed. R. 

Evid. 401. Trial ended after only a few days of witness testimony, while “the Government’s 

case-in-chief was in its infancy.” United States v. Lacey, 2021 WL 6197907, at *5 (D. Ariz. 

Dec. 29, 2021). “Of [76] government witnesses, only four had testified. At minimum, the 

government still had a clear path to prevailing at trial.” United States v. Lacey, 2022 WL 

4363818, at *2 (9th Cir. Sept. 21, 2022). 

 The earlier, foreshortened trial is not probative of Defendants’ guilt or innocence, 

and discussion of that trial or how it ended is not relevant here. See United States v. Miller, 

2022 WL 17464479, at *1 (E.D. Ky. Dec. 6, 2022) (evidence of the defendant’s previous 

trial “is not probative of the defendant’s guilt or innocence and so is irrelevant”); United 

States v. Arrington, 2022 WL 4077685, at *3 (W.D.N.Y. Sept. 6, 2022) (“the Court cannot 

fathom how mentioning the prior trial or its result would be relevant in the retrial”). Cf. 

United States v. De La Rosa, 171 F.3d 215, 219 (5th Cir. 1999) (“a prior acquittal is not 

relevant because it does not prove innocence but rather merely indicates that the prior 

prosecution failed to meet its burden”) (cleaned up). 

 Alternatively, the Court should preclude discussion of the prior trial under Rule 403. 

Arrington, 2022 WL 4077685, at *3 (“[A]side from relevancy, remarking on the prior trial 

or its outcome would certainly confuse and mislead the new jury, and unfairly prejudice 

the Government”). Any reference to the prior trial would create an undue risk of confusing 

the issues, wasting time, and misleading the jury. If the defense were permitted to reference 

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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the mistrial, the United States would have to explain to the jury the Court’s reasoning in 

granting the mistrial. It may then need to explain how Defendants unsuccessfully sought 

an interlocutory appeal, which further delayed retrial. Again, such discussions would only

take more time, and risk confusing the issues and misleading the jury.

Moreover, the prior trial and the mistrial order are hearsay not admissible under any 

exception. See Fed. R. Evid. 802. Because Defendants’ “first trial did not end in a 

conviction, the hearsay exception related to prior trials is inapplicable here.” United States

v. Thomas, 214 F. Supp. 3d 187, 194 (E.D.N.Y. 2016) (citing Fed. R. Evid. 803(22)).

The United States recognizes that the parties may impeach witnesses with their 

testimony from the first trial, but requests an order that the parties not be allowed to refer 

to the testimony as coming from a “first trial,” “prior trial,” “earlier trial,” or “mistrial,” or 

otherwise reference that trial. In referencing testimony from the first trial, the parties should 

refer to the testimony as being taken at a prior “proceeding” or “hearing,” without 

identifying that proceeding as an earlier trial in this case. See Arrington, 2022 WL 4077685, 

at *3 (approving similar language); United States v. Hicks, 2018 WL 1789932, at *2 

(W.D.N.Y. Apr. 16, 2018) (same); Jelinek v. Am. Natl. Prop. and Cas. Co., 2019 WL 

5425254, at *4 (W.D. Wash. Oct. 23, 2019) (“there is little probative value to referring to 

a prior trial given the potential for unfair prejudice”; approving similar language).

During opening statements in the first trial, defense counsel made multiple, oblique

references to various obscenity cases, and proceeded to explain to the jury the supposed 

difference between the “Playboy standard” the “Penthouse standard” and the “Hustler

standard.” Counsel concluded “there were a lot of people that thought they [the magazines] 

were doing something illegal, let’s stop them. But the First Amendment protected all of 

them just like it protects the internet sites.” (Doc. 1342 at 84:20-85:10); see also id. at 87:5-

11 (“to assert their taste standards . . . to see if it passed muster under the Backpage rule of 

no illegality, and Playboy versus Hustler Magazine standard.”).

It is black letter law that the court instructs on the law, not attorneys. United States 

v. Brodie, 858 F.2d 492, 496 (9th Cir. 1988) (“[r]esolving doubtful questions of law is the 

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distinct and exclusive province of the trial judge,” and “the judge, not counsel, instructs 

the jury on the law”), overruled on other grounds by United States v. Morales, 108 F.3d 

1031 (9th Cir. 1997). For this reason alone, Defendants should be precluded from citing 

legal authority at any stage of the trial. See, e.g., United States v. Zielie, 734 F.2d 1447, 

1455 (11th Cir. 1984) (trial judge did not abuse discretion by preventing defendant from 

making disputed legal arguments during opening statement), abrogated on other grounds 

by United States. v. Chestang, 849 F.2d 528, 531 (11th Cir. 1988)); Davis v. Maggio, 706 

F.2d 568, 571 (5th Cir. 1983) (no error in preventing defendant from making legal 

arguments in opening statements). 

References to these other cases should be precluded because they have no relevance 

to this prosecution, Fed. R. Evid. 401-402, and such discussion would serve only to confuse 

the issues, mislead the jury, and waste time, Fed. R. Evid. 403. If Defendants are permitted 

to discuss the history of obscenity case law in this country through conclusory statements 

about magazines like Playboy, Penthouse, and Hustler, the United States will need to spend 

time explaining to the jury how those cases involved different statutes and very different 

issues from this case such that any notion of inconsistency is reconciled for the jury. This 

would risk devolving the trial into a serious of mini trials about these issues—all of which 

are far afield from the conspiracy, Travel Act, and money laundering charges at issue here.

Conclusion 

 This Court should preclude counsel, defendants, and their witnesses from 

referencing other litigation in front of the jury, including but not limited to the following: 

1. Any reference to the previous trial in this matter, including but not limited to the 

references to the fact that the trial ended in a mistrial; provided, however, that 

witness testimony used to impeach can be described as having been taken at a “prior 

proceeding” or “prior hearing”—without identifying that proceeding as an earlier 

trial or mistrial in this case; and 

2. Any prior case or legal decision not involving Backpage, including, but not limited 

to Playboy, Penthouse, Hustler, etc. 

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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

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 

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