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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 COMMENTING 

ON LEGITIMACY OF 

PROSECUTION 

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The United States moves in limine to preclude the defense from commenting, in the 

presence of the jury, on the legitimacy of this prosecution and lawful tactics employed in 

the course of the prosecution.1 Specifically, in opening statements on September 8, 2021, 

defense counsel declared to the jury, “When you have the law and the facts on your side, 

you go to civil court, when you don’t, you take people’s money so that they can’t defend 

themselves and you bring a criminal charge.” (Doc. 1342 at 94:17-20.) 

This was clearly a comment on the fact that the United States has lawfully seized 

some of Defendants’ assets to preserve them for restitution and forfeiture should this Court 

decide to order such. Likewise, it was an attempt to comment on the legitimacy of the 

prosecution by suggesting that civil litigation is somehow fairer, and, further, that this 

prosecution is inherently unfair simply by virtue of the fact that it is a criminal action. Such 

statements are highly inflammatory and unfairly prejudicial, and should be precluded under 

Rule 403. 

If Defendants are able to make such comments, then they would essentially be 

arguing for nullification, which is not allowed. Jury nullification arguments ask the jury to 

violate its oath to return a verdict based solely on the evidence and the court’s instructions, 

and instead acquit the defendants for improper reasons such as sympathy, bias, prejudice, 

or disagreement with the law. “Nullification . . . is ‘a violation of a juror’s sworn duty to 

follow the law as instructed by the court,’ and ‘trial courts have the duty to forestall or 

prevent’ it, including ‘by firm instruction or admonition.’” United States v. Lewis, No. 21-

50229, 2023 WL 1990544, at *2 (9th Cir. Feb. 14, 2023) (quoting Merced v. McGrath, 426 

F.3d 1076, 1079-80 (9th Cir. 2005). 

While a jury has the right to nullify, a defendant does not have the right to argue for 

nullification. If defense counsel were to make the same arguments in the upcoming trial as 

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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they did in the first one, this Court should intervene and admonish the jury that such 

arguments are improper. But now that we know that defense counsel has made such 

arguments in the past and will likely make them again, this Court should affirmatively 

preclude them from doing so at the outset. See United States v. Blixt, 548 F.3d 882, 890 

(9th Cir. 2008); United States v. Sturgis, 578 F.2d 1296, 1300 (9th Cir.1978) (“Not only 

should a judge interfere with an attorney’s closing argument when it is ‘legally wrong,’ but 

he should also limit, for example, attorneys’ remarks outside the record or unduly 

inflammatory.”); United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993) (“A trial 

judge, therefore, may block defense attorneys’ attempts to serenade a jury with the siren 

song of nullification, and, indeed, may instruct the jury on the dimensions of their duty to 

the exclusion of jury nullification.”). 

Conclusion 

 The defense should be precluded from: 

1. commenting on the legitimacy of a criminal action versus a civil action; and 

2. commenting on the seizure of assets that was legally authorized in this matter. 

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 

Case 2:18-cr-00422-DJH Document 1598 Filed 06/08/23 Page 4 of 4