Case 2:18-cr-00422-DJH Document 1594 Filed 06/08/23 Page 1 of 6
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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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`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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`CR-18-422-PHX-DJH
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`UNITED STATES’ MOTION
`IN LIMINE TO PRECLUDE
`REFERENCES TO SECTION 230 OF
`THE COMMUNICATIONS
`DECENCY ACT
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`Case 2:18-cr-00422-DJH Document 1594 Filed 06/08/23 Page 2 of 6
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`The United States moves in limine to preclude Defendants’ counsel, Defendants,
`and their witnesses from introducing evidence or argument at trial about Section 230 of the
`Communications Decency Act of 1996, 47 U.S.C. § 230 (Section 230 or the CDA),
`including that Defendants’ actions were protected or immunized by Section 230.1 Courts
`have construed Section 230 to provide immunity from civil claims for websites that publish
`content created by third parties. (See Doc. 649 at 21-22 (citing cases).) It does not apply to
`the federal criminal prosecutions of Backpage.com, LLC (Backpage) and its operators,
`including Defendants. United States v. Lacey, 423 F. Supp. 3d 748, 760 (D. Ariz. 2019)
`(“This case, however, does not concern civil liability, and the CDA has ‘no effect’ on ‘any
`other Federal criminal statute.’”) (quoting 47 U.S.C. § 230(e)(1)); Doc. 840 at 7 (denying
`“Motion to Dismiss Indictment Based on Section 230 of the Communications Decency
`Act”). These rulings are law of the case. See Doc. 1524 at 4 n.2.
`Yet, in their September 8, 2021 opening statements, counsel repeatedly referred to
`Section 230, telling the jury that “Section 230 . . . gives immunity to website hosts like
`Backpage.” (Doc. 1342 at 56:12-13, Bienert; see also id. at 56:19-20 (“this is legal under
`the First Amendment and Section 230”), 59:1-2 (the court ruled that a Tennessee state law
`“is preempted, both by this statute Section 230, and it also likely violates the First
`Amendment”), 61:1-2 (“these are legal practices and it stays that way unless Congress
`changes it”), 61:14-17, 61:18-21 (“Congress did not sound an uncertain trumpet when it
`enacted this act that involved Section 230, and it chose to give broad protection to internet
`publishers,” and the proper remedy for plaintiffs “is through legislation not litigation”);
`75:20-76:8 (referring to choice made by “Congress”); Doc. 1343 at 16:22-17:2 (“these
`attorneys who had preceded me have made a great point about what it means to be able to
`publish in accordance with First Amendment and Section 230 of the statute that was quoted
`quite thoroughly by counsel. [Defendants] had the right to do this.”).)
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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.
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`Case 2:18-cr-00422-DJH Document 1594 Filed 06/08/23 Page 3 of 6
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`Evidence is relevant if “(a) it has any tendency to make a fact more or less probable
`than it would be without the evidence; and (b) the fact is of consequence in determining
`the action.” Fed. R. Evid. 401. Irrelevant evidence is not admissible, Fed. R. Evid. 402, and
`even relevant evidence may be excluded if “its probative value is substantially outweighed
`by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay,
`wasting time, or needlessly presenting cumulative evidence,” Fed. R. Evid. 403.
`Section 230 is not relevant: It does not apply to this federal criminal prosecution.
`(Doc. 840 at 7). It is merely a safe harbor for providers to avoid civil liability, which
`Backpage or its owners effectively used in multiple cases for several years around the
`country. See, e.g., Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 23 (1st Cir. 2016)
`(“Congress made pellucid that it sought to ensure vigorous enforcement of Federal criminal
`laws to deter and punish illicit activities online,” while providing civil tort immunity);
`Backpage.com, LLC v. Dart, 807 F.3d 229, 233-34 (7th Cir. 2015) (“[Under] section
`230(c), ‘an intermediary . . . normally is indifferent to the content of what it transmits[.’]
`Sounds like our case.”); Doe ex rel. Roe v. Backpage.com, LLC, 104 F. Supp. 3d 149, 165
`(D. Mass. 2015) (“this court has no choice but to adhere to the law that Congress has seen
`fit to enact”); M.A. v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 1058
`(E.D. Mo. 2011) (“Congress has declared such websites” immune in civil cases).
`But this is a federal criminal prosecution, and thus Section 230 provides none of the
`immunity that it provided in the civil cases discussed at the first trial. If this Court has
`already ruled that Section 230 does not preclude this prosecution, it should similarly
`conclude that Section 230 cannot be argued to the jury. Defendants should be precluded
`from referencing the CDA because Section 230 itself expressly declares that it does not
`apply to federal criminal prosecutions. 47 U.S.C. § 230(e)(1) (“Nothing in this section shall
`be construed to impair the enforcement of . . . any other Federal criminal statute.”).
`Further, this Court should preclude references to Section 230 because any probative
`value it may have would be substantially outweighed by risks of misleading the jury,
`confusing the issues, and wasting time. Fed. R. Evid. 403. Section 230 has been widely
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`Case 2:18-cr-00422-DJH Document 1594 Filed 06/08/23 Page 4 of 6
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`discussed by public officials and the media, and there is a real chance that the jury has
`some familiarity with “Section 230” and what they believe it means. Allowing Defendants
`to reference Section 230 poses a serious risk of misleading the jury about whether the
`statute protects Defendants here. Further, referring to Section 230 would risk confusing the
`issues, because it might reasonably lead jurors to believe that the CDA has some bearing
`on whether Defendants committed the crimes charged beyond a reasonable doubt. Finally,
`permitting references to Section 230 would risk wasting time, because the United States
`would be forced to spend time explaining to the jury why Section 230 has no bearing on
`this federal criminal case.
`If Defendants are permitted to make Section 230 arguments at trial, they will
`essentially be arguing for nullification—which is not allowed. Nullification asks jurors to
`violate their oath to return a verdict based solely on the evidence and the court’s
`instructions, and acquit for improper reasons like sympathy, bias, prejudice, or
`disagreement with the law. It “is ‘a violation of a juror’s sworn duty to follow the law as
`instructed by the court,’ and ‘trial courts have the duty to forestall or prevent’ it, including
`‘by firm instruction or admonition.’” United States v. Lewis, 2023 WL 1990544, at *2 (9th
`Cir. Feb. 14, 2023) (citation omitted).
`While a jury may nullify, Defendants do not have a right to argue for nullification.
`Rather than wait for counsel to make these arguments at a second trial (as they did before),
`this Court should preclude them at the outset. Cf. United States v. Blixt, 548 F.3d 882, 890
`(9th Cir. 2008) (court properly instructed jury to disregard jury nullification arguments);
`United States v. Sturgis, 578 F.2d 1296, 1300 (9th Cir.1978) (a judge should “interfere with
`an attorney’s closing argument when it is ‘legally wrong’” or “unduly inflammatory”);
`United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993) (the court “may block
`defense attorneys’ attempts to serenade a jury with the siren song of nullification”).
`Conclusion
`This Court should preclude Defendants’ counsel, Defendants, and their witnesses
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`from referring to Section 230 or the CDA at any time in front of the jury.
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`Case 2:18-cr-00422-DJH Document 1594 Filed 06/08/23 Page 5 of 6
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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
`s/Kevin M. Rapp_______
`KEVIN M. RAPP
`MARGARET PERLMETER
`PETER KOZINETS
`ANDREW STONE
`DANIEL BOYLE
`Assistant U.S. Attorneys
`AUSTIN M. BERRY
`Trial Attorney
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`Case 2:18-cr-00422-DJH Document 1594 Filed 06/08/23 Page 6 of 6
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`CERTIFICATE OF SERVICE
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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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