Case 2:18-cr-00422-DJH Document 1590 Filed 06/08/23 Page 1 of 5
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`GARY M. RESTAINO
`United States Attorney
`District of Arizona
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`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
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`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
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`KENNETH POLITE
`Assistant Attorney General
`Criminal Division, U.S. Department of Justice
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`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
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`CR-18-422-PHX-DJH
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`UNITED STATES’ MOTION
`IN LIMINE TO PRECLUDE
`REFERENCES TO FIRST
`AMENDMENT AND FREE SPEECH
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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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`Case 2:18-cr-00422-DJH Document 1590 Filed 06/08/23 Page 2 of 5
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`The United States moves in limine to preclude defense counsel, Defendants, and
`their witnesses from referencing the First Amendment and “free speech” at any time in the
`presence of the jury.1 In their September 8, 2021 opening statements, defense counsel
`repeatedly framed this case as “about free speech and the limits on the government to
`prosecute those who provide a location, a platform for other people to place legal speech.”
`(Doc. 1342 at 18:9-11). Other examples include:
`• “This whole case is about the First Amendment.” (Doc. 1342 at 76:10-11.)
`• “They’ve done nothing wrong except maintain our First Amendment[.]” (Doc. 1342
`at 77-:10.)
`• “It’s also my privilege to be a part of this group to represent all of these folks in the
`defense of their First Amendment rights.” (Doc. 1342 at 78:2-3.)
`• “The danger of not having a clear standard . . . is what undermines our First
`Amendment. A slippery slope. Once we go past an illegal ad, sex for money, to
`anything other than that, kiss it good-bye.” (Doc. 1342 at 85:20-24.)
`• “[T]his is [a] prosecution against a First Amendment provider.” (Doc. 1342 at 94:8-
`9.)
`• “[Defendants] believe in the First Amendment and the proof will show that they're
`the real deal.” (Doc. 1343 at 28:8-10.)
`Counsel trumpeted the First Amendment or free speech over 50 times in their openings.2
`Yet, before opening statements began, this Court had already ruled that the
`allegations in the Superseding Indictment (SI, Doc. 230), if proven at trial, show that the
`First Amendment has no application to this case. Defendants are charged with conspiracy,
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`1 Certification: On June 5, 2023, counsel for the United States met and conferred in good
`faith with Defendants’ counsel regarding the relief requested in this motion, and the parties
`could not reach agreement. The Court has not previously considered or ruled on the motion.
`2 See also Doc. 1342 at 19:8, 24:12, 24:20, 26:17, 26:20, 30:3, 34:10, 41:3, 41:8, 41:12,
`50:6, 51:25, 54:6, 54:21, 56:13, 56:20, 57:3, 58:15, 58:16, 58:18, 59:3, 60:7, 60:24-25,
`61:19, 62:11, 62:15, 62:19, 66:2, 70:6, 73:7, 73:12, 73:16, 75:21,76:2, 76:11, 76:22, 77:10,
`78:4, 80:5, 81:15, 81:19, 85:9, 85:22, 86:1, 86:3, 86:8, 86:9, 89:18, 94:9; Doc. 1343 at
`16:25, 28:7-10, 28:21, 33:19, 34:1, 36:1, 39:24, 41:15.
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`Case 2:18-cr-00422-DJH Document 1590 Filed 06/08/23 Page 3 of 5
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`Travel Act violations, and money laundering offenses arising from their oversight or
`operation of Backpage.com, LLC. (See generally SI.) This Court ruled that “taking the
`allegations in the SI as true, as the Court must, the Government has met its burden of
`showing the fifty ads in the SI are for prostitution.” United States v. Lacey, 423 F. Supp.
`3d 748, 757 (D. Ariz. 2019). Such solicitations are “categorically excluded” from First
`Amendment or “free speech” protection. United States v. Williams, 553 U.S. 285, 297
`(2008). Moreover, this Court found that Defendants’ conduct, as charged in the SI, falls
`outside “traditional, editorial functions” protected by the First Amendment. Lacey, 423 F.
`Supp. 3d. at 760 (finding the SI alleges conduct “qualitatively different” from the protected
`activities in the cases Defendants cited). The Court also ruled that the SI’s Travel Act
`charges, as applied here, do not violate the First Amendment. Id. at 764-66.
`Moreover, the Court had considered, and rejected, Defendants’ request for
`preliminary jury instructions on the First Amendment. Ruling from the bench, just before
`the opening statements, the Court announced that it had emailed the parties “a corrected
`draft of the preliminary jury instructions” that “on purpose doesn’t include a First
`Amendment instruction.” (Doc. 1340 at 25:10-12.) The parties had briefed this issue (see,
`e.g., Doc. 1216-3 at 164; Doc. 1236; Doc.1242), and argued it. (Doc. 1432 at 36:14-66:12).
`The Court stated “I have done the research, considered the arguments that were previously
`presented, the new information [defense counsel] presented, and have declined to include
`that in the preliminary jury instructions.” (Doc. 1340 at 25:14-17.)3
`Notwithstanding these rulings, defense counsel repeatedly portrayed the First
`Amendment as an absolute defense in their opening statements. (See supra at 1.) But the
`Court instructs on the law, not attorneys. United States v. Brodie, 858 F.2d 492, 496 (9th
`Cir. 1988) (“[r]esolving doubtful questions of law is the distinct and exclusive province of
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`3 The Court’s ruling was supported by ample authority recognizing that the time to consider
`whether any First Amendment instructions should be given is at the close of the evidence.
`(See Doc. 1242 at 2-4 (citing United States v. Freeman, 761 F.2d 549, 552, 552 (9th Cir.
`1985; United States v. Rowlee, 899 F.2d 1275, 1280 (2d Cir. 1990); United States v. White,
`610 F.3d 956, 962 (7th Cir. 2010).)
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`Case 2:18-cr-00422-DJH Document 1590 Filed 06/08/23 Page 4 of 5
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`the trial judge,” and “the judge, not counsel, instructs the jury on the law”), overruled on
`other grounds by United States v. Morales, 108 F.3d 1031 (9th Cir. 1997). For this reason
`alone, Defendants should be precluded from citing the First Amendment or arguing
`constitutional law before the jury. See, e.g., United States v. Zielie, 734 F.2d 1447, 1455
`(11th Cir. 1984) (judge did not abuse discretion by preventing defendant from making
`disputed legal arguments during opening statement), abrogated on other grounds
`by United States. v. Chestang, 849 F.2d 528, 531 (11th Cir. 1988)). Defendants should not
`be allowed to circumvent the Court’s rulings—and confuse the issues, mislead the jury,
`and waste time—by making inapplicable legal arguments. See Fed. R. Evid. 401-403.
`Further, if Defendants make arguments to the jury about what the First Amendment
`means and how it should apply here, they would essentially be arguing for nullification—
`which is not allowed. United States v. Lewis, 2023 WL 1990544, at *2 (9th Cir. Feb. 14,
`2023) (“[T]rial courts have the duty to forestall or prevent [jury nullification], including by
`firm
`instruction or admonition.”)
`(internal quotations and citation omitted).
`Jury nullification arguments ask the jury to violate its oath to return a verdict based solely
`on the evidence and the court’s instructions, and instead acquit the defendants for improper
`reasons such as sympathy, bias, prejudice, or disagreement with the law. Because defense
`counsel made such arguments in the prior trial, this Court should affirmatively preclude
`them from doing so again.4
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`Conclusion
`The Court should preclude counsel, Defendants, and their witnesses from
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`referencing the First Amendment and “free speech” in front of the jury.
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`4 See United States v. Blixt, 548 F.3d 882, 890 (9th Cir. 2008) (citing United States v.
`Sturgis, 578 F.2d 1296, 1300 (9th Cir. 1978) (the court should “interfere with an attorney’s
`closing argument when it is ‘legally wrong’” or “unduly inflammatory”)); United States v.
`Khan, No. 11-20331-CR, 2012 WL 4168820, at *1 (S.D. Fla. Sept. 19, 2012) (granting
`government’s motion to preclude argument that defendants’ unlawful conduct is protected
`by the First Amendment); United States v. Mohamud, 941 F. Supp. 2d 1303, 1321 (D. Or.
`2013) (denying motion for new trial and holding that First Amendment arguments were
`properly excluded because they were irrelevant and confusing to the jury).
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`Case 2:18-cr-00422-DJH Document 1590 Filed 06/08/23 Page 5 of 5
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`Respectfully submitted this 8th day of June, 2023.
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`GARY M. RESTAINO
`United States Attorney
`District of Arizona
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`KENNETH POLITE
`Assistant Attorney General
`Criminal Division, U.S. Department of Justice
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` s/Kevin M. Rapp
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`KEVIN M. RAPP
`MARGARET PERLMETER
`PETER KOZINETS
`ANDREW STONE
`DANIEL BOYLE
`Assistant U.S. Attorneys
`AUSTIN M. BERRY
`Trial Attorney
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`I hereby certify that on June 8, 2023, I electronically transmitted the attached
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`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.
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`s/ Daniel Parke
`Daniel Parke
`U.S. Attorney’s Office
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`CERTIFICATE OF SERVICE
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