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GLENN B. McCORMICK

Acting 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

REGINALD E. JONES (Miss. Bar No. 102806, reginald.jones4@usdoj.gov) Senior Trial Attorney, U.S. Department of Justice

Child Exploitation and Obscenity Section

950 Pennsylvania Ave N.W., Room 2116

Washington, D.C. 20530

Telephone (202) 616-2807 

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.

No. CR-18-422-PHX-SMB

UNITED STATES’ OBJECTIONS TO 

DEFENDANTS’ PROPOSED 

PRELIMINARY JURY 

INSTRUCTION(S) (Doc. 1236)

The United States objects to Defendants’ Proposed Preliminary Jury Instruction(s) 

(Doc. 1236) for the following reasons1

:

1 The United States incorporates by this reference its further arguments in response to Defendants’ proposed non-model jury instructions, set forth in Doc. 1216-3 at 157-202. 

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1. Defendants cite no case requiring a preliminary jury instruction on any 

defense theory invoking the First Amendment, and the United States has located none. As

then-Judge Anthony Kennedy wrote for the Ninth Circuit in United States v. Freeman, 761 

F.2d 549, 552, 552 (9th Cir. 1985), “[a] defendant does not have a First Amendment 

defense simply for the asking.” Rather, where the trial evidence “disclose[s] no grounds 

for a legitimate free speech defense,” there is no requirement to instruct on that defense. 

Id. at 551. The Second Circuit likewise recognizes that where the trial evidence shows the 

First Amendment does not protect the defendants’ statements, no First Amendment jury 

instructions need be given. United States v. Rowlee, 899 F.2d 1275, 1280 (2d Cir. 1990). 

In Rowlee, the court wrote that if the government met its burden of proving that the 

defendants engaged in the charged offenses (counseling or assisting in filing false tax 

returns), then no First Amendment protection applied—and no corresponding instruction 

was required. Id. Conversely, if the government did not meet its burden, then the 

defendants would be acquitted regardless of any First Amendment defense:

If the defendants did not violate [26 U.S.C. §] 7206(2), the restrictions 

imposed by that statute did not violate their First Amendment rights. If they did violate section 7206(2), they were not protected by the First Amendment. 

Insofar as Rowlee commented generally on the tax laws during his seminars 

without aiding, assisting, procuring, counseling or advising the preparation 

or presentation of the alleged false or fraudulent tax documents, he did not 

violate section 7206(2). Accordingly, as to those comments, the question of 

First Amendment protection was redundant and irrelevant. . . . The district 

court’s charge on this point simply complicated the case by requiring the jury to consider a duplicative and unnecessary issue and would better have been 

omitted.

Id. So too, here: Defendants are charged with conspiracy, Travel Act and money laundering 

crimes. If the United States proves Defendants’ guilt at trial beyond a reasonable doubt, 

the First Amendment will be beside the point, because the evidence will have established 

that Defendants intentionally facilitated business enterprises involving prostitution 

offenses, and engaged in an intricate web of money laundering—conduct far afield from 

any First Amendment protection. 

In United States v. White, 610 F.3d 956, 962 (7th Cir. 2010), the Seventh Circuit 

similarly recognized that a district court generally should await the development of a full 

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trial record before deciding whether to instruct the jury on First Amendment defenses. The 

court reversed the dismissal of an indictment for soliciting a crime of violence in violation 

of 18 U.S.C. § 373. The district court had held that the solicitation—which consisted of an 

internet posting—was speech protected by the First Amendment. 610 F.3d at 959. As the 

Seventh Circuit held, “this potential First Amendment concern is addressed by the 

requirement of proof beyond a reasonable doubt at trial, not by a dismissal at the indictment 

stage.” Id. This was particularly true in speech-related cases that (like the instant case)

involve proof of intent: if a defendant’s intent is to engage in abstract advocacy, for 

example, then he would not have the requisite intent for the charged crime. Id. at 961.

The Seventh Circuit then wrote:

White’s argument boils down to this: his posting was not a solicitation and 

because it is not a solicitation, it is speech deserving of First Amendment 

protection. The government sees the posting in the opposite light: the posting 

and website constitute a solicitation and as such, fall outside the parameters of First Amendment protection. This dispute turns out not to be an argument 

about the validity of the indictment in light of the First Amendment, but is 

instead a dispute over the meaning and inferences that can be drawn from the facts. . . . The existence of strongly corroborating circumstances evincing White’s intent is a jury question.

Id. at 962 (emphasis added). The court went on to explain that the defendant’s First 

Amendment theory may be considered “[b]ased on a full factual record”:

[T]he First Amendment may still have a role to play at trial. Based on the full 

factual record, the court may decide to instruct the jury on the distinction 

between solicitation and advocacy, and the legal requirements imposed by the First Amendment. . . . After the prosecution presents its case, the court may decide that a reasonable juror could not conclude that White’s intent 

was for harm to befall Juror A, and not merely electronic or verbal 

harassment. But, this is not a question to be decided now. We have no idea what evidence or testimony will be produced at trial. 

Id. 

The bottom line, from all of these cases, is that the proper time to consider whether 

and to what extent any First Amendment instructions should be given is at the close of the 

evidence. The United States cited Freeman, Rowlee and White in its prior briefing (see

Doc. 1216-3 at 164), and discussed them during the August 20, 2021 oral argument on jury 

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instructions. Despite having submitted two court filings in response to the United States’ 

proposed instructions (Docs. 1222-2 and 1236), and having argued the issue at length, 

Defendants have still not come to terms with Freeman, Rowlee and White. Defendants’

requested preliminary instruction(s) should be denied for this reason alone.

2. Defendants’ Proposed Preliminary Instruction No. 1 is unnecessary, 

confusing, and misleading, and it does not fit the facts of this case. The speech at issue in 

this case is commercial speech (i.e., advertising), which—as the Supreme Court recognized 

in caselaw decided after the Ninth Circuit’s decision in Bursey v. United States, 446 F.2d 

1059, 1082 (9th Cir. 1972) (Doc. 1236 at 3)—is subject to lower degree of protection than 

other forms of speech. Central Hudson Gas & Elec. Corp. v. Pub. Serv. Commn. of New 

York, 447 U.S. 557, 563-64 (1980); Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 818 (9th 

Cir. 2013). Indeed, such speech “must concern lawful activity” to merit any First 

Amendment protection at all. Erotic Service Provider Legal Ed. and Research Project v. 

Gascon, 880 F.3d 450, amended, 881 F.3d 792, 792 (9th Cir. 2018) (“[f]or commercial 

speech to receive First Amendment protection[,] the speech must concern lawful activity”); 

see also Whiting, 709 F.3d at 820-21 (“if the communication is neither misleading nor 

related to unlawful activity, then it merits First Amendment scrutiny as a threshold matter”) 

(quotation and citation omitted).

Moreover, prostitution advertising and soliciting are categorically excluded from 

First Amendment protection. See Doc. 793 at 14; Central Hudson, 447 U.S. at 563-64 

(“commercial speech related to illegal activity” is not protected by the First Amendment); 

United States v. Williams, 553 U.S. 285, 297 (2008) (“Offers to engage in illegal 

transactions are categorically excluded from First Amendment protection.”); Pittsburgh 

Press Co. v. Human Relations Comm’n, 413 U.S. 376, 388 (1973) (“a newspaper 

constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or 

soliciting prostitutes”); Erotic Service Provider, 880 F.3d at 459-60 (rejecting First 

Amendment challenge to ordinance outlawing prostitution solicitations); Coyote Pub., Inc. 

v. Miller, 598 F.3d 592, 600-04 (9th Cir. 2010) (explaining that prostitution is illegal nearly 

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everywhere in the United States, and upholding Nevada ban on prostitution advertising).

Defendants’ proposed instruction that “[t]he speech at issue in this case—

advertisements—are legally protected speech under the First Amendment” gives the 

fundamentally misleading impression that Backpage’s ads were perfectly legal. (Doc. 1236 

at 3, Defendants’ Proposed Preliminary Instruction No. 1.) Particularly when viewed 

through the prism of the Superseding Indictment (see Doc. 793), the speech at issue here 

did not consist of “advertisements [that] are legally protected under the First Amendment.” 

This part of the proposed instruction should not be read to the jury, and given the Court’s 

imprimatur, at either the start or the end of trial.

At bottom, and as in Freeman, Rowlee and White, whether the speech in this case is 

subject to any First Amendment protection is dependent on the trial evidence. The Ninth, 

Second and Seventh Circuits all recognize that the appropriate time to assess whether any 

jury instructions are warranted based on these fact-specific defenses is at the close of the 

evidence. This approach avoids any risk of confusion that might otherwise occur if a First 

Amendment instruction is provided with the preliminary instructions, but is no longer 

warranted at the end of the case. The requested preliminary instructions should not be given

now.

3. Defendants’ Proposed Preliminary Instruction No. 2 is substantively 

identical to Defendants’ Proposed [Non-Model] Instruction regarding Examples of Legal 

“Adult” Services. The United States incorporates by this reference its objections to that 

instruction set forth in Doc. 1216-3 at 172-176.

4. Defendants’ suggestion that Pittsburg Press involves only advertisements 

that “on their face” propose illegal transactions isn’t even supported by Pittsburg Press. 

(Cf. Doc. 1222-2 at 5-10.) As the United States has explained elsewhere, Pittsburg Press

recognizes that context matters as much as content. (See Doc. 1216-3 at 185-187.) None of 

the Ninth Circuit cases Defendants cite are to the contrary. For example, in IMDb.com Inc. 

v. Becerra, 962 F.3d 1111, 1123 (9th Cir. 2020), the court distinguished Pittsburg Press

from situations involving the publication of truthful, fact-based information that was 

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lawfully obtained. The court said nothing about whether the legality of a proposed 

transaction (and hence whether the ad proposing that transaction merits First Amendment 

protection) must be determined solely from language expressly set forth in the ad. Valle 

Del Sol Inc. v. Whiting, 709 F.3d 808, 822-23 (9th Cir. 2013), likewise contains nothing 

that might limit Defendants’ liability here. (See Doc. 1216-3 at 186-87.) In Metro Lights, 

L.L.C. v. City of Los Angeles, 551 F.3d 898, 904 (9th Cir. 2009), the parties never disputed 

whether advertising in that case warranted First Amendment protection. The footnote 

Defendants cite from that case merely states that “in the context of advertising, one must 

ask whether the goods or services the party advertises are illegal.” Id. at 904 n.7. This 

language does not “narrowly construe” Pittsburg Press in any way. (Doc. 1222-2 at 7.)

Defendants’ proposed preliminary instructions should be not be given.

Respectfully submitted this 26th day of August, 2021.

GLENN B. McCORMICK

Acting United States Attorney District of Arizona

s/ Peter S. Kozinets

KEVIN M. RAPP

MARGARET PERLMETER

PETER S. KOZINETS

ANDREW C. STONE

Assistant U.S. Attorneys

DAN G. BOYLE

Special Assistant U.S. Attorney

KENNETH POLITE

Assistant Attorney General 

U.S. Department of Justice 

Criminal Division, U.S. Department of Justice

REGINALD E. JONES

Senior Trial Attorney

U.S. Department of Justice, Criminal Division

Child Exploitation and Obscenity Section

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CERTIFICATE OF SERVICE

I hereby certify that on August 26, 2021, 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/ Marjorie Dieckman U.S. Attorney’s Office

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