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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 

NICOLE M. ARGENTIERI 

Acting 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’ OBJECTIONS TO 

THE PRELIMINARY JURY 

INSTRUCTIONS AND LIMITING 

INSTRUCTION 

The United States respectfully requests the following changes to the Court’s 

Preliminary Jury Instructions and Limiting Instruction. 

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PRELIMINARY JURY INSTRUCTIONS (8/30/23 Version) 

1.2 THE CHARGE—PRESUMPTION OF INNOCENCE 

Count I: Conspiracy 

1. The first line under Count 1 describes the charge as “conspiring to facilitate 

prostitution[.]” (Preliminary Jury Instructions, page 3.) This is an incomplete description 

of the Travel Act crime. As the Court instructs in the first paragraph of the substantive 

Travel Act violations, the statutory charge reads: “to promote, manage, establish, carry on, 

or facilitate the promotion, management, establishment, or carrying on of a business 

enterprise involving prostitution offenses.” (Preliminary Jury Instructions, page 4.) 

Consistent with that language, a more accurate way to describe Count 1 would be: “Count 

1 of the indictment is for conspiring to promote or facilitate the promotion of prostitution 

in violation of the Travel Act under Section 1952(a)(3)(A).” 

2. The second element in Count 1 contains the word “illegal” before “objects.” 

(Preliminary Jury Instructions, page 3.) This is incorrect. First, the word “illegal” isn’t in 

the Model Criminal Jury Instructions. (Model Instructions 11.1.) Second, it wasn’t in the 

Preliminary Jury Instructions for the first trial, so it’s contrary to law of the case. (Doc. 

1311 at 3.) And third, it’s contrary to Ninth Circuit law. United States v. Caplan, 633 F.2d 

534, 542 (9th Cir. 1980) (“A conspiracy is defined as a combination of two or more persons 

to accomplish some unlawful purpose, or some lawful purpose by unlawful means.”). Here 

the Superseding Indictment described the object as “to obtain money.” (Doc. 230 at 49.) 

That’s permissible as long as Defendants used unlawful means when obtaining the money, 

i.e., promoting business enterprises involved in prostitution offenses. 

3. The Pinkerton instruction in the middle of page four is inaccurate. 

(Preliminary Jury Instructions, page 4.) In the first element, the instruction improperly 

states that a “defendant” must have committed the charged Travel Act offense, rather than 

a “member” of the conspiracy. The Court’s Draft Jury Instructions contain the appropriate 

instruction (Doc. 1656 at 37), as did the Court’s Preliminary Instructions in the first trial. 

(Doc. 1311 at 4.) 

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Based on those instructions, the first three elements of the Pinkerton instruction 

should read as follows: 

o First, a member of the conspiracy committed the Travel Act offense alleged 

in that count; 

o Second, the person was a member of the conspiracy charged in Count 1 of 

the indictment; 

o Third, the person committed the Travel Act offense in furtherance of the 

conspiracy. 

That’s how the Court drafted the elements in the Draft Jury Instructions. (Doc. 1656 

at 37.) Under Pinkerton, if the jury found that Carl Ferrer, Dan Hyer, or James Larkin 

committed the Travel Act offense, Defendants could be found guilty if the other Pinkerton

elements are satisfied. This applies with equal force to other co-conspirators even if they 

aren’t defendants in this trial. 

LIMITING INSTRUCTION 

1. The instruction should not identify the state charges as misdemeanors. This 

serves no legitimate purpose, especially because Defendants are charged with felonies. 

There is no reason to list the state crimes as misdemeanors other than to permit Defendants 

to make some sort of nullification argument about how violating the Travel Act isn’t really 

a big deal, because the underlying state crimes are just misdemeanor crimes. The Court 

will not instruct that the statutory maximum of the Travel Act is five years, or concealment 

money laundering is 20 years. There is no legitimate reason to include the term 

“misdemeanor” in the instruction. 

2. Same objection as number one above: “facilitating state-law prostitution 

offenses” should read “promoting or facilitating the promotion of state-law prostitution 

offenses.”

 

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 Respectfully submitted this 30th day of August, 2023.

 GARY M. RESTAINO 

 United States Attorney 

 District of Arizona NICOLE M. ARGENTIERI 

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

 s/ Andrew C. Stone 

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 August 30, 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/ Andrew C. Stone

U.S. Attorney’s Office 

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