Case 2:18-cr-00422-DJH Document 1589 Filed 06/08/23 Page 1 of 8
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`Timothy J. Eckstein, 018321
`Joseph N. Roth, 025725
`Sarah P. Lawson, 036436
`OSBORN MALEDON, P.A.
`2929 North Central Avenue, 20th Floor
`Phoenix, Arizona 85012-2793
`(602) 640-9000
`teckstein@omlaw.com
`jroth@omlaw.com
`slawson@omlaw.com
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`Attorneys for James Larkin
`Additional counsel on following page
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`Plaintiff,
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`United States of America,
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`vs.
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`Michael Lacey, et al.,
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`Defendants.
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`Case No. 2:18-cr-00422-PHX-DJH
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`DEFENDANTS’ MOTION IN
`LIMINE TO PRECLUDE
`IRRELEVANT AND PREJUDICIAL
`TESTIMONY1
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`(Oral Argument Requested)
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`1 Undersigned counsel certifies that they have conferred with the government in an effort
`to resolve the disputed evidentiary issues that are the subject of these motions.
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`

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`Case 2:18-cr-00422-DJH Document 1589 Filed 06/08/23 Page 2 of 8
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`Paul J. Cambria, Jr. (NY 15873, admitted pro hac vice)
`Erin E. McCampbell (NY 4480166, admitted pro hac vice)
`LIPSITZ GREEN SCIME CAMBRIA LLP
`42 Delaware Avenue, Suite 120
`Buffalo, New York 14202
`(716) 849-1333
`pcambria@lglaw.com
`emccampbell@lglaw.com
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`Attorneys for Michael Lacey
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`Bruce S. Feder (AZ 004832)
`FEDER LAW OFFICE PA
`2930 E. Camelback Rd., Suite 160
`Phoenix, Arizona 85016
`(602) 257-0135
`bf@federlawpa.com
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`Eric Walter Kessler
`KESSLER LAW OFFICE
`6720 N. Scottsdale Rd., Suite 210
`Scottsdale, Arizona 85253
`(480) 644-0093
`Eric.kesslerlaw@gmail.com
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`Attorneys for Defendant Scott Spear
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`Gary S. Lincenberg
`Ariel A. Neuman
`Gopi K. Panchapakesan
`BIRD, MARELLA, BOXER, WOLPERT, NESSIM,
`DROOKS, LINCENBERG & RHOW P.C.
`1875 Century Park E., Suite 2300
`Los Angeles, California 90067
`(310) 201-2100
`glincenberg@birdmarella.com
`gpanchapakesan.@birdmarella.com
`aneuman@birdmarella.com
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`Attorneys for John Brunst
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`David S. Eisenberg
`DAVID EISENBERG PLC
`3550 N. Central Ave., Ste. 1155
`Phoenix, Arizona 85012
`(602) 237-5076
`david@eisenbergplc.com
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`Attorneys for Andrew Padilla
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`Case 2:18-cr-00422-DJH Document 1589 Filed 06/08/23 Page 3 of 8
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`Joy Malby Bertrand
`JOY BERTRAND ESQ LLC
`P.O. Box 2734
`Scottsdale, Arizona 85252
`(480) 656-3919
`joyous@mailbag.com
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`Attorneys for Defendant Joye Vaught
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`Case 2:18-cr-00422-DJH Document 1589 Filed 06/08/23 Page 4 of 8
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`Defendants move to preclude irrelevant and unfairly prejudicial witness testimony
`about the experiences of persons engaging in prostitution (including as a victim of sex
`trafficking) and crimes committed by or against such persons.
`Proposed Order: Evidence about a person engaging in prostitution or being
`trafficked is precluded, unless (1) the evidence relates to one or more of the fifty charged
`ads and (2) one or more defendants knew that the person who was the subject of a charged
`ad was engaged in prostitution or was being trafficked at the time the charged ad was
`posted or while it was published on the website.
`Background. Although the Court previously considered a related MIL (Docs. 911,
`1156), this motion is brought due to new facts: namely, the mistrial resulting from the
`government repeatedly eliciting irrelevant and prejudicial trial testimony. Before the first
`trial, the Court ruled admissible evidence that “people were trafficked using
`Backpage.com,” including testimony about “how ads were created, drafted, edited, and
`paid for” as long the government did not “linger on the details of the abuse sex trafficking
`victims suffered.” Doc. 1156 at 4, 5. This instruction proved insufficient to prevent the
`government from repeatedly eliciting irrelevant, inflammatory testimony regarding crimes
`(including sex trafficking) the defendants did not know about and are not charged with. A
`mistrial resulted when, beginning “in the opening, and with every witness thereafter . . .
`the government [] abused th[e] leeway” given to elicit testimony to show defendants were
`on notice that some people posted adult ads on Backpage.com that were associated with
`illegal activities. Moreover, despite the Court’s order to the contrary, the testimony was
`“not tethered to any communication with the defendants.” Doc. 1347 at 4-5.
`The government intends at retrial to press the same case, listing most of the same
`witnesses, and recently saying its case will essentially be a repeat, including the “witnesses
`who are trafficking victims who are going to be testifying to their postings” and “talking
`about how they were involved in a business enterprise.” Doc. 1576, 3/20/23 Tr. at 20.
`The government still lists 15 witnesses who allegedly engaged (or had family members who
`allegedly engaged) in prostitution or were trafficked, as well as multiple law enforcement
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`4
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`Case 2:18-cr-00422-DJH Document 1589 Filed 06/08/23 Page 5 of 8
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`witnesses who investigated cases related to the charged ads, but also unrelated ads.2
`Argument. Defendants are “not indicted for facilitating the amorphous notion of
`‘prostitution’” but “for facilitating (via publishing ads) on fifty distinct occasions where
`prostitutes, prostitution-related business, or other groups were involved in the business of
`prostitution.” Doc. 946 at 13. “[T]his case is not about Backpage . . . [t]his case is about
`these individual defendants and whether they had specific knowledge of these ads as
`facilitating illegal activity.” Doc. 1099 at 38. Moreover, “one cannot intend to
`promote/facilitate a business enterprise one does not know exists.” Doc. 946 at 15-16.
`Accordingly, the government must prove, among other things, that defendants knew of
`and intended to facilitate the individual “prostitutes [or] prostitution-related businesses”
`related to the fifty charged ads. A witness’s testimony about a person engaging in
`prostitution or being trafficked could not make the defendants’ intent related to a charged
`ad “more or less probable,” Fed. R. Evid. 401, unless that person’s experience is (1) related
`to a charged ad and (2) defendants knew that person was engaged in prostitution or was
`being trafficked at the time that ad was posted or while it was published on the website.
`Otherwise, the testimony has no bearing on any fact “of consequence in determining the
`action,” id.
`For example, Jessika Svendgard testified at trial to running away from home,
`watching a friend performing acts of prostitution, performing acts of prostitution herself,
`her relationship with her pimps, and her role in one pimp’s eventual prosecution. See Doc.
`1334, Trial Tr. Day 6 (A.M.) at 69-89; Doc. 1335, Trial Tr. Day 6 (P.M.) at 11. None of
`this testimony related to any of the fifty charged ads, to whether any defendant had
`contemporaneous knowledge of the facts to which she testified, or to any defendant’s
`knowledge or intent with respect to any of the charged ads. Moreover, the government
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`2 The 15 witnesses are Anya Beck, Sara Beck, Astrid Cervantes, Naomi Figueroa,
`Shaniqua Fraizer, Breahannah Leary Hodges, Megan Lundstrom, Destinee Ortiz, and
`Jordan Thurman (each of whom purportedly has some connection to a charged ad) and
`Andrea Benson, Priscilla Harrison, Kubiiki Pride, Arshana Sanders, Jessika Svendgard,
`and Nacole Svendgard (each of whom has no connection to a charged ad).
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`5
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`Case 2:18-cr-00422-DJH Document 1589 Filed 06/08/23 Page 6 of 8
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`elicited through Ms. Svendgard precisely what the Court had prohibited: “testimony from
`people engaged in prostitution regarding the details of their lifestyles except as it relates to
`their use of Backpage.com.” Doc. 1156 at 6 (emphasis added).
`Put simply, this kind of testimony has no relevance to the elements of the Travel
`Act charges (or the related conspiracy charge) and serves only to provoke the jury’s
`sympathy, inflaming it against defendants for having been associated with the online
`classified ad web platform on which a pimp placed ads. See Doc. 1156 at 5 (holding that
`“[t]estimony from people involved in prostitution is only relevant as it relates to their use
`of Backpage.com and notice to defendants that prostitutes were using their website.
`Testimony concerning the lifestyle and impact that prostitution had on witnesses’ lives is
`irrelevant to the crimes charged”).
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`Lacking relevance, such testimony is “unfairly prejudicial” because it tends “to
`suggest or encourage a decision on an improper basis, commonly . . . an emotional one.”
`U.S. v. Ellis, 147 F.3d 1131, 1135 (9th Cir. 1998). Therefore, to avoid unfair prejudice, the
`government should be precluded from presenting testimony from or about persons who
`were engaged in prostitution if those acts of prostitution had no connection to the fifty
`charged ads. Even with respect to evidence that might relate to one of the charged ads,
`the Court should not permit the testimony unless the government establishes one or more
`defendants’ contemporaneous knowledge that the subject of a charged ad was engaged in
`prostitution or was being trafficked. In addition, the Court has already held that such
`testimony must exclude all “day in the life” testimony and is limited to the use of
`Backpage.com (how ads were created, drafted, edited, and paid for), the association of a
`charged ad to an act or acts of prostitution, and any defendant’s knowledge or intent with
`respect to any such ad(s). See Doc. 1156 at 5.
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`The inadequate constraints on the government during the first trial, and the
`resulting prejudice to defendants, ultimately required a mistrial. Doc. 1347 at 4-5. The
`order proposed in this Motion will ensure relevant evidence is admitted, while mitigating
`the risk of the repeat of the same prejudice.
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`6
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`Case 2:18-cr-00422-DJH Document 1589 Filed 06/08/23 Page 7 of 8
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`DATED this 8th day of June, 2023.
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`OSBORN MALEDON, P.A.
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`By
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`s/ Joseph N. Roth
`Timothy J. Eckstein
`Joseph N. Roth
`Sarah P. Lawson
`2929 North Central, 20th Floor
`Phoenix, Arizona 85012-2794
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`Attorneys for James Larkin
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`LIPSITZ GREEN SCIME CAMBRIA LLP
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`By
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`s/ Bruce S. Feder (w/permission)
`Bruce S. Feder
`2930 E. Camelback Road, Suite 160
`Phoenix, Arizona 85016
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`s/ Eric W. Kessler (w/permission)
`Eric W. Kessler
`6720 N. Scottsdale Rd., Suite 210
`Scottsdale, Arizona 85253
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`s/ Paul J. Cambria, Jr. (w/permission)
`Paul J. Cambria, Jr. (pro hac vice)
`Erin E. McCampbell (pro hac vice)
`42 Delaware Avenue, Suite 120
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` Buffalo, New York 14202
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`Attorneys for Michael Lacey
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`FEDER LAW OFFICE PA
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`By
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`KESSLER LAW OFFICE
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`By
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`Attorneys for Scott Spear
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`Case 2:18-cr-00422-DJH Document 1589 Filed 06/08/23 Page 8 of 8
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`BIRD, MARELLA, BOXER, WOLPERT,
`NESSIM, DROOKS, LINCENBERG &
`RHOW P.C.
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`By
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`s/ Gary S. Lincenberg (w/permission)
`Gary S. Lincenberg
`Gopi K. Panchapakesan
`Ariel A. Neuman
`1875 Century Park E., Suite 2300
`Los Angeles, California 90067
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`Attorneys for John Brunst
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`DAVID EISENBERG PLC
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`By
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`s/ David S. Eisenberg (w/permission)
`David S. Eisenberg
`3550 N. Central Ave., Ste. 1155
`Phoenix, Arizona 85012
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`Attorneys for Andrew Padilla
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`JOY BERTRAND LAW
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`By
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`Attorneys for Joye Vaught
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`s/ Joy M. Bertrand (w/permission)
`Joy M. Bertrand
`P.O. Box 2734
`Scottsdale, Arizona 85252
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