Case 2:18-cr-00422-DJH Document 1524 Filed 02/17/23 Page 1 of 9
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`United States of America,
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`Plaintiff,
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`v.
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`Michael Lacey, et al.,
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`Defendants.
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`No. CR-18-00422-001-PHX-DJH
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`ORDER SETTING FINAL
`PRETRIAL CONFERENCE
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`On July 25, 2018, a federal grand jury returned a 100-count Superseding Indictment
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`(“SI”) against Defendants Michael Lacey, James Larkin, Scott Spear, John “Jed” Brunst,
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`Dan Hyer, Andrew Padiliia, Joye Vaught (collectively, “Defendants”). (Doc. 230). The
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`SI alleges that Defendants are former owners and operators of Backpage.com, LLC
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`(“Backpage”), which was created in 2004 and shut down by federal law enforcement
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`authorities in 2018. (Id.) The SI further alleges that the Defendants engaged in criminal
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`acts while operating Backpage, including conspiracy, facilitating prostitution, and money
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`laundering. (Id.) These acts are alleged to have occurred beginning on or about September
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`10, 2013, and continuing through April 2018. (Id.)
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`A Jury Trial is scheduled to commence on June 20, 2023. Trial will be held
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`Tuesdays through Fridays beginning on June 20, 2023, and through August 31, 2023, or
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`until the conclusion of trial. The Court will adjourn each Friday at noon. Trial will be in
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`recess on July 4–5, 2023, July 31–August 2, 2023, and September 1 and 5, 2023.
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`Pursuant to Federal Rule of Criminal Procedure 17.1, a Final Pretrial Conference is
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`Case 2:18-cr-00422-DJH Document 1524 Filed 02/17/23 Page 2 of 9
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`set for June 14, 2023, at 1:00 p.m. before the Honorable Diane J. Humetewa in Courtroom
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`605 of the Sandra Day O’Connor United States Courthouse, 401 W. Washington St.,
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`Phoenix, AZ, 85003.
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`In preparation for the Final Pretrial Conference, IT IS ORDERED AS
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`FOLLOWS:
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`1.
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`Attendance Required. Counsel who will be responsible for the trial of the
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`case must attend the Final Pretrial Conference. No substitutions of counsel or remote
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`appearances are permitted without good cause. The attendees must bring their calendars
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`so trial scheduling can be discussed.
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`2.
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`Joint Pretrial Memorandum. The parties must jointly develop and file with
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`the Clerk of Court, no later than May 12, 2023, a Joint Pretrial Memorandum. The Joint
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`Pretrial Memorandum must contain the following in separate paragraphs:
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`a.
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`Counts. Identify (1) all counts contained in the superseding
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`indictment that will be tried by jury; (2) all counts, if any, in the SI
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`that have been dismissed; and (3) all counts, if any, the government
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`intends to dismiss before trial.
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`b.
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`Forfeiture Allegations. Identify any forfeiture allegation contained
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`in the SI, whether any forfeiture allegation in the SI has been
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`dismissed, or whether the government intends to dismiss any
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`forfeiture allegation before trial. Also identify, where applicable, the
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`status of any pending related civil forfeiture proceeding, and whether
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`the issue of forfeiture shall be determined by jury verdict or by the
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`Court if a guilty verdict is returned by the jury.
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`c.
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`Notices. Identify all Notices of the Government’s Intent to Use
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`Evidence.
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`d. Motions in Limine. Identify all pending motions in limine.1
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`1 Each Motion will include a certification by the proponent stating that the prior trial court
`has not considered or ruled on the proposed Motion. If an aspect of the Motion has been
`considered, the proponent shall refer to the relevant document number(s).
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`- 2 -
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`Case 2:18-cr-00422-DJH Document 1524 Filed 02/17/23 Page 3 of 9
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`e.
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`Other Motions. Identify all pending motions (other than motions in
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`limine).
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`f.
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`Stipulations. Identify and describe any joint stipulation that may be
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`read or otherwise presented to the jury and treated as having been
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`proved at trial. For example: “Stipulation of Fact: The drugs found in
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`Defendant’s vehicle weighed approximately one pound.” Or:
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`“Stipulation of Evidence: Bundles of drugs will be introduced as
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`evidence at trial. There have been no breaks in the chain of custody
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`between when the drugs were seized by law enforcement in this case
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`and the date of trial.” Or: Stipulation of Evidence: The parties waive
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`any objections relating to authenticity of the photos.
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`g.
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`Numbers of Witnesses and Exhibits. Identify the approximate
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`number of witnesses to be called and exhibits to be offered at trial.
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`h.
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`Estimated Length of Trial. Propose the estimated amount of time to
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`be allocated for each stage of trial as follows:
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`___ hours: Jury Selection
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`___ hours: Opening Statements (per Defendant)
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`___ hours: Government’s Case (including rebuttal)
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`___ hours: Defendants’ Case
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`___ hours: Closing Arguments (per Defendant)
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`___ hours: Total
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`i.
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`Interpreter. State whether there will be a need for an interpreter at
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`trial.
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`j.
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`Procedures for Expediting Trial. Discuss and report on all available
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`procedures that might be used to expedite trial, including but not
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`limited to: (1) using summary exhibits in place of voluminous
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`documentary evidence;
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`(2) stipulations on authenticity and
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`foundation; (3) presenting direct expert testimony through summary
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`Case 2:18-cr-00422-DJH Document 1524 Filed 02/17/23 Page 4 of 9
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`or written reports; and (4) using the courtroom technology to expedite
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`the presentation of evidence.
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`3.
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`Notices Of Intent. All Notices of the Government’s Intent to Use Evidence
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`must be filed and served at least seven (7) days before the Final Pretrial Conference.
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`Untimely notices are subject to being summarily denied or stricken by the Court.
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`4. Motions In Limine. All motions in limine must be filed by April 21, 2023.
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`Responses must be filed by April 28, 2023. No replies are permitted. Each motion must
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`include proposed language for the order being sought from the Court, and state with
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`precision the evidence that is subject to the proposed order and the limitation or exclusion
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`placed on the evidence. Additionally, each motion must contain a certification that the
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`movant’s counsel met and conferred in good faith with opposing counsel and the parties
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`could not reach agreement. The motions and responses must be concise and must not
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`exceed three pages in length. Counsel shall be prepared to argue the merits of such motions
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`at the Final Pretrial Conference. The Court reminds the parties that it will not accept
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`any new motions unless based on new law or facts.2
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`5.
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`Case-Related Documents. The parties must, by May 12, 2023, file the
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`following documents (and submit copies of these documents in Word format to the
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`2 Under the doctrine of law of the case, “a court is generally precluded from
`reconsidering an issue that has already been decided by the same court, or a higher court
`in the identical case,” absent a material change in circumstances. See Thomas v. Bible, 983
`F.2d 152, 154 (9th Cir. 1993). “The doctrine encourages the conservation of limited
`judicial resources and promotes consistency by allowing court decisions to govern the same
`issues in subsequent stages of the same case.” East Bay Sanctuary Covenant v. Trump, 950
`F.3d 1242, 1262 (9th Cir. 2020) (citing Am. Civil Liberties Union v. F.C.C., 523 F.2d 1344,
`1346 (9th Cir. 1975)). “For the doctrine to apply, the issue in question must have been
`decided either expressly or by necessary implication in the previous disposition.” Thomas,
`983 at 154 (internal quotations and alterations omitted). If the issue in question has already
`been decided, then reconsideration of the order is generally only permitted if “the prior
`decision is ‘clearly erroneous’ and enforcing it would create ‘manifest injustice’;
`intervening, controlling authority encourages reconsideration; or substantially different
`evidence is produced at a later merits trial.” East Bay Sanctuary Covenant, 950 F.3d at
`1262.
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`Case 2:18-cr-00422-DJH Document 1524 Filed 02/17/23 Page 5 of 9
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`chambers email address at humetewa_chambers@azd.uscourts.gov, as well as sending to
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`chambers a paper courtesy copy of any document exceeding ten pages):
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`a.
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`Stipulated Joint Statement of The Case.3 This will be read to the
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`jury. If the parties have any disagreement about the statement, the
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`party objecting shall state the reason for its objection below the
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`statement and offer an alternative statement.
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`b.
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`Joint Proposed Verdict Forms. These should include any proposed
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`special verdict forms or juror interrogatories. Upon filing their
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`proposed verdict forms, the parties shall submit by email a copy in
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`Microsoft Word format to humetewa_chambers@azd.uscourts.gov.
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`c.
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`Joint Proposed Jury Instructions. The joint list must contain the
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`following four sections:
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`(1) A list of all applicable Ninth Circuit Model Criminal
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`Instructions, by title (do not include the text of the instruction),
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`which
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`are
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`at
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`http://www3.ce9.uscourts.gov/jury-
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`instructions/model-criminal.
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` If a model
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`instruction
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`is
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`requested by both parties, the instruction shall be preceded by
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`“ST” (stipulated-to). If the instruction is requested by only one
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`party, the instruction shall be preceded by either “PL”
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`(Plaintiff) or “DF” (Defendant) (if only certain Defendants,
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`specify by surname).
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`(2) Any non-model instructions to which the parties have
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`stipulated, with only one instruction per page.
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`(3) Any non-model instructions requested by Plaintiff (numbered
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`consecutively), with only one instruction per page. Plaintiff
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`shall include citation to authority to support the requested
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`instruction. Defendants shall state all objections to such
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`3 The proposed summary should not substantially vary from the joint statement in the
`proposed juror pre-screening questionnaire.
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`Case 2:18-cr-00422-DJH Document 1524 Filed 02/17/23 Page 6 of 9
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`instruction
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`immediately
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`following
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`the
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`instruction and
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`Plaintiff’s authority. Defendants shall support any objection
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`with citation to authority. If Defendants offer an alternative
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`instruction, such alternative instruction shall immediately
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`follow Defendants’ objection.
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`(4) Any non-model
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`instructions
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`requested by Defendants
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`(numbered consecutively), with only one instruction per page.
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`Defendants shall include citation to authority to support the
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`requested instruction. Plaintiff shall state all objections to such
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`instruction
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`immediately
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`following
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`the
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`instruction and
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`Defendants’ authority. Plaintiff shall support any objection
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`with citation to authority. If Plaintiff offers an alternative
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`instruction, such alternative instruction shall immediately
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`follow Plaintiff’s objection.
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`(5) Upon filing the joint proposed jury instructions, counsel shall
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`email a copy of the proposed jury instructions in Microsoft
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`Word format to humetewa_chambers@azd.uscourts.gov.
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`6.
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`Exhibits. The parties must meet in person to exchange marked copies of all
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`exhibits to be used at trial (excluding impeachment evidence not subject to early disclosure)
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`no later than seven (7) days before the Final Pretrial Conference. During this meeting, the
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`parties also must eliminate any duplicate exhibits.4
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`Exhibits shall be delivered to the Courtroom Deputy no later than 48 hours prior
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`to trial. The parties shall mark and deliver exhibits as described in Attachment A. The
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`parties may agree to the admission of exhibits before trial. Stipulated exhibits shall be
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`4
`During the in-person meeting, the exhibits must be in the exact physical form that
`will be used at trial. In other words, if a party intends to offer a paper exhibit at trial, that
`party must have a marked paper copy at the in-person meeting, not an electronic copy.
`Also, the parties should mark their exhibits exactly as they intend to offer them at trial.
`During trial, exhibits will be admitted or rejected in their entirety. Thus, if any part of an
`exhibit is objectionable, it will be excluded in its entirety. Ordinarily, the parties will not
`be permitted to break offered exhibits into admissible sub-parts if an objection is sustained.
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`Case 2:18-cr-00422-DJH Document 1524 Filed 02/17/23 Page 7 of 9
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`noted as “Stipulated” on the exhibit list of the offering party under the column entitled
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`“Admitted in Evidence.” If all parties intend to refer to the exhibit at trial, the exhibit shall
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`be included on the government’s exhibit list.
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`During trial, the parties must advise the Courtroom Deputy in advance of each
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`witness’s appearance which exhibits will be needed for each witness. All exhibits must be
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`shown to opposing counsel before being offered.
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`7. Witness List. The parties shall deliver one (1) original and two (2) copies
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`of the witness and exhibit lists, using the forms located on the court's website at
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`http://www.azd.uscourts.gov/judges/judges-orders, to the Courtroom Deputy no later
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`than 48 hours prior to trial.
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`8.
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`Information for Court Reporter. To facilitate the creation of an accurate
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`record, please prepare a “Notice to Court Reporter” one week before the Final Pretrial
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`Conference containing the following information:
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`a.
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`b.
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`c.
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`d.
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`e.
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`f.
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`Proper names, including those of witnesses.
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`Acronyms.
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`Geographic locations.
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`Technical (including medical) terms, names, or jargon.
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`Case names and citations.
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`Pronunciation of unusual or difficult words or names.
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`This notice need not be filed but must be provided via e-mail to Hilda Lopez at
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`hilda_lopez@azd.uscourts.gov. Her contact number is 602-322-7256. Counsel also must
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`advise the court reporter as soon as possible, but no later than two weeks before trial, if
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`they would like to receive a real-time feed or daily turnaround transcript of the proceedings.
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`9.
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`Subpoenas. If any subpoenas were previously issued and served in this
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`matter, that they remain in effect and are answerable at the new trial date and the party who
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`served the subpoena should advise the witnesses of the trial date.
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`10. Courtroom Technology. To facilitate the parties’ presentation at trial, the
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`Court will direct the parties to meet with AV Support staff on June 14, 2023. Plaintiff’s
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`- 7 -
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`Case 2:18-cr-00422-DJH Document 1524 Filed 02/17/23 Page 8 of 9
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`counsel shall meet with AV Support on the day of the Final Pretrial Conference, on June
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`14, 2023, at 10:30 a.m. in Courtroom 605. Defendants’ counsel shall meet with AV
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`Support immediately following the Final Pretrial Conference, on June 14, 2023, at 3:00
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`p.m. in Courtroom 605. Should the parties wish to conduct any further testing of
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`courtroom technology and equipment or have related questions, they may contact AV
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`Support at av_support@azd.uscourts.gov or 602-322-7160, no later than one week prior to
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`trial. See details on the Court’s website at http://www.azd.uscourts.gov/judges/judges-
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`orders at the Electronic/Video Courtroom Equipment Information link.
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`Defendants shall have reasonable time necessary for effective preparation when
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`taking into account the exercise of due diligence. 18 U.S.C. § 3161(h)(7)(A). The Court
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`therefore finds that the ends of justice outweigh the best interests of the public and the
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`Defendants in a speedy trial. The Court finds excludable delay under Title 18 U.S.C.
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`§3161(h)(7)(A) through June 20, 2023.
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`Dated this 16th day of February, 2023.
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`Honorable Diane J. Humetewa
`United States District Judge
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`- 8 -
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`Case 2:18-cr-00422-DJH Document 1524 Filed 02/17/23 Page 9 of 9
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`1.
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`ATTACHMENT A
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`EXHIBIT AND TRIAL MATERIAL INSTRUCTIONS
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`Exhibits
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`No later than 48 hours prior to trial, the parties shall mark and list the trial
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`exhibits and deliver one (1) original and one (1) copy of the trial exhibits to:
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`Courtroom Deputy: Liliana Figueroa
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`Email: liliana_figueroa@azd.uscourts.gov
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`Telephone: (602) 322-7212
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`2.
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`Lists of Witnesses and Exhibits
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`No later than 48 hours prior to trial, the parties shall deliver one (1) original and
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`two (2) copies of the witness and exhibit lists, using the forms located on the court's website
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`at http://www.azd.uscourts.gov/judges/judges-orders, to:
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`
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`Courtroom Deputy: Liliana Figueroa
`Email: liliana_figueroa@azd.uscourts.gov
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`Telephone: (602) 322-7212
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`3.
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`Depositions
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`No later than 48 hours prior to trial, original transcripts of depositions to be used
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`at trial shall be delivered to:
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`Courtroom Deputy: Liliana Figueroa
`Email: liliana_figueroa@azd.uscourts.gov
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`Telephone: (602) 322-7212
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`The party offering a deposition or portions thereof shall provide a certified copy of the
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`transcript in accordance with the federal rules. A courtesy copy or portions of the
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`deposition to be used at trial shall be provided to the Judge.
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`- 9 -
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