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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

v. 

Michael Lacey, et al.,

Defendants.

No. CR-18-00422-001-PHX-SMB

ORDER 

Pending before the Court is Defendants’ Motion in Limine to Preclude Presentation 

of Certain Evidence Related to Other Classified Websites, Morality of Adult Classified 

Ads, and Third-Party Opinions on Legal Issues. (Doc. 907.) The Court has also read and 

considered the Government’s Response. (Doc. 954.) Defendants requested oral argument, 

but the Court declines to hold oral argument finding that it is unnecessary to resolve the 

motion. 

Defendants move in limine for an order precluding the Government from presenting 

evidence or testimony concerning: (1) the decision of a different classified advertising 

website, Craigslist.org, to capitulate to political pressure and stop accepting classified ads 

for “erotic services”; (2) the morality or ethics of allowing website users to post classified 

ads for adult services, massages, or dating; and (3) claims made by third-parties that 

operation of the Backpage website was “illegal.” (Doc. 907 at 3). Defendants argue this 

evidence is not relevant, is prejudicial, and should be precluded under Rules 401 and 403, 

Fed. R. Evid. 

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I. LEGAL STANDARD

“Evidence may not be admitted at trial unless it is relevant, as defined by Rule 401 

of the Federal Rules of Evidence.” United States v. Vellejo, 237 F.3d 1008, 1015 (9th Cir. 

2001). “Evidence is relevant if it has ‘any tendency to make the existence of any fact that 

is of consequence to the determination of the action more probable or less probable than it 

would be without the evidence.’” Id. (citing Fed. R. Evid. 401). “The court may exclude 

relevant evidence if its probative value is substantially outweighed by a danger of one or 

more of the following: unfair prejudice, confusing the issues, misleading the jury, undue 

delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. 

When evidence is minimally relevant, it is likely to be minimally probative as well. United 

States v. Wiggan, 700 F.3d 1204, 1213 (9th Cir. 2012). Excluding otherwise relevant 

evidence under Rule 403 is “an extraordinary remedy to be used sparingly.” United States 

v. Mende, 43 F.3d 1298, 1302 (9th Cir. 1995) (quotation marks and citations omitted). 

“The rule is well established that the government in a conspiracy case may submit 

proof on the full scope of the conspiracy; it is not limited in its proof to the overt acts 

alleged in the indictment.” United States v. Rizk, 660 F.3d 1125, 1131 (9th Cir. 2011).

II. ANALYSIS

A. Craigslist.org Evidence

First, Defendants argue that the action(s) of Craigslist.org are not relevant as they 

do not tend to prove or disprove any element of the charged offenses and that the evidence 

is unduly prejudicial because Craigslist’s decision to shut down its erotic services section 

may cause the jury to decide that Backpage.com should have done the same. They also 

argue that this evidence would lead to a “trial within a trial” because Defendants would 

have to then introduce evidence about what they knew about Craigslist’s decision. The 

Government, conversely, argues that evidence relating to Craigslist is highly relevant and

gives examples of how such evidence is relevant including: (1) Craigslist was a motivating 

factor for the creation of Backpage and is therefore relevant background information; (2)

later, Backpage worked to capitalize on the absence of Craigslist’ adult section and 

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successfully did so; and (3) Backpage studied the way Craigslist dealt with backlash to its 

adult ads and this informed how Backpage responded to similar complaints. The Court 

agrees that evidence related to how Defendants competed with, profited off the absence of, 

and studied Craigslist is relevant. However, general information about Craigslist outside 

of Defendants’ knowledge is irrelevant. For example, why Craigslist shut down its adult 

section is not relevant and will be precluded. The fact that Craigslist shut down its adult 

section is relevant and admissible because it is an important part of the story, especially as 

it relates to Defendants’ attempts to take over the void created in the market. The probative 

value of the evidence is not substantially outweighed by its low prejudicial effect. 

Therefore, Defendants’ request will be denied subject to the limitations described as to 

Craigslist’s motivations for shutting down its adult classified section outside of 

Defendants’ knowledge.

B. Morality Evidence

Second, Defendants argue the Government should not be allowed to introduce 

testimony of individuals or organizations that have asked Backpage to stop publishing adult 

service ads because it is morally wrong. The Government agrees that the issue is not 

whether the ads posted were immoral or unethical but whether they were for prostitution. 

The Government argues that the letters and emails cited by Defendants are relevant to 

Defendants’ knowledge about whether the vast majority of Backpage’s ads were for 

prostitution. The Court agrees with both sides. The two examples provided by Defendants 

both have relevant information to the issue of Defendants’ knowledge while the first 

example is much more prejudicial. The Court agrees that the letter from Auburn Seminary 

is highly prejudicial as is, however, it could be redacted to take out the inflammatory 

language about the clergy’s motivation and moral opinion about Backpage.com. The 

second example is not so prejudicial as it is a string of emails discussing problems 

customers are having using Chase credit cards to purchase ads on Backpage.com. There is 

only one phrase that creates concern. The words “for ethical reasons” (Doc. 902-2 p. 4) 

are not relevant and should be redacted. However, the fact that Chase was not allowing 

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transactions for Backpage.com is relevant and admissible. General testimony or exhibits 

related to “morality” evidence will be precluded. Exhibits that include relevant information 

should be redacted as necessary.

C. Evidence that Third Parties Claimed Operations of Backpage were 

Illegal

Finally, Defendants ask for an order precluding the Government from introducing 

evidence that third parties informed Backpage its operations were “illegal”, arguing that 

this evidence does not tend to prove any elements of the charged offenses. Further, 

Defendants contend that this testimony usurps the role of the jury and goes to the ultimate 

issue. The Government argues that the evidence is relevant “because it tends to prove that 

Defendants had the requisite mental state to violate the Travel Act., i.e., specific intent.” 

The evidence that the Government intends to introduce are communications from various 

third parties telling Defendants that prostitution is illegal. The Government also intends to 

introduce evidence of communications between third parties and Backpage revealing that 

banks and payment processors refused to process payments for Backpage ads because the 

website was involved in illegal activities. The Government argues that the communications

put Defendants on notice of their illegal behavior. After a review of the evidence attached 

to Defendants’ motion, the Court agrees with the Government. The evidence cited appears 

to be relevant to Defendants’ knowledge that the advertisements were for illegal activities,

and the Court cannot conclude that the probative value of the evidence is substantially 

outweighed by any prejudicial effect it may have. While the evidence is not probative to 

show that Defendants’ business activities were actually illegal, it is relevant to Defendants’ 

knowledge of the legality of their operation and what was being advertised was in question.

The Court will not categorically exclude the evidence at this time. 

III. CONCLUSION

For the reasons discussed above, 

IT IS ORDERED granting in part and denying in part Defendants’ Motion in 

Limine to Preclude Presentation of Certain Evidence Related to Other Classified Websites, 

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Morality of Adult Classified Ads, and Third-Party Opinions on Legal Issues. (Doc. 907.)

Evidence related to Craigslist will be restricted only as it relates to Craigslist’s motivation 

for shutting down its adult classified section. Morality evidence as described above will be 

precluded. The motion is otherwise denied. 

Dated this 17th day of May, 2021.

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