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`Case 2:18-cr-00422-DJH Document 1603 Filed 06/15/23 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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`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’ RESPONSE TO
`DEFENDANTS’ MOTION IN LIMINE
`TO PRECLUDE REFERENCES TO
`PROSTITUTION MARKETING
`STRATEGIES (Doc. 1591)
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`Case 2:18-cr-00422-DJH Document 1603 Filed 06/15/23 Page 2 of 5
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`Defendants’ motion should be denied. (Doc. 1591.) Defendants’ arguments are far
`from fresh. The Court has repeatedly affirmed the relevance and admissibility of evidence
`related to Defendants’ prostitution marketing strategies. Defendants are correct that this
`motion is governed by the “law of the case,” they simply fail to accurately describe that
`“law.” (Id. at 3.) This Court has rejected Defendants’ argument on numerous occasions.
`1. Court’s Order Denying Defendants’ Motion to Dismiss (Doc. 793)
`In 2019, the Court first ruled that the prostitution marketing strategies are relevant.
`(Doc. 793 at 14, 19-20.)
`The SI does not allege Defendants are criminally liable because they
`unknowingly and unintentionally operated a website used by third parties to
`post prostitution ads. Rather, it alleges Defendants purposely sought out
`opportunities to increase prostitution advertising on Backpage. The SI
`alleges the Defendants intentionally identified prostitutes, created free
`Backpage ads for them, and used those ads to try to secure future business. .
`. . Defendants also sought to expand their traffic through TER, a “prostitution
`website” where “johns” could rate and review escorts including the “prices
`charged for particular sex acts.”
`(Doc. 793 at 13.)
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`Indeed, the Court found that if the United States could prove that Defendants
`engaged in these prostitution marketing strategies that would “establish defendants had the
`specific intent to promote prostitution in violation of the Travel Act.” (Id. at 20.) The Court
`concluded that the SI alleged “Defendants used a website with the intent to facilitate
`prostitution . . . and executed strategies to further and increase that activity.” (Id. at 22.)
`The Court’s ruling would be rendered nonsensical if it actually believed—as Defendants
`now claim—that all evidence related to Defendants’ business practices that occurred before
`September 10, 2013 was “inadmissible.” (Doc. 1519 at 3.)
`2. Preliminary Jury Instructions (Doc. 1311)
`The Court issued preliminary jury instructions that are consistent with the United
`States introducing evidence related to Defendants’ prostitution marketing strategies. The
`preliminary jury instructions outline the elements for Count 1—conspiracy to violate the
`Travel Act: “First, beginning in or around 2004, and ending on or about April 2018, there
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`Case 2:18-cr-00422-DJH Document 1603 Filed 06/15/23 Page 3 of 5
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`was an agreement between two or more persons to commit at least one Travel Act offense
`as charged in the indictment.” (Doc. 1311 at 3.)
`3. Defendants’ Motion for Judgment of Acquittal (Doc. 1272)
`After the United States’ opening statement, Defendants made the same argument:
`“The Court expressly told the parties that the case is not about whether defendants
`promoted prostitution in general, nor about what Backpage did or did not do, but is about
`whether each individual defendant had specific knowledge of each charged ad and
`specifically intended to promote a business of prostitution by that ad.” (Doc. 1272 at 3
`(citing the same language from Doc. 946 as appears in the instant motion).) The United
`States responded to Defendants’ motion (Doc. 1275) and the Court orally denied it. (Doc.
`1342 at 4-11.)
`The Court found that all statements in the opening that related to conduct pre-dating
`the substantive counts (before 2013) were fair game, because they were “all in furtherance
`of the charged conspiracy.” (Doc. 1342 at 7) (“The defendants’ argument that the
`government’s reference to other acts evidence violated Rule 404(b), all uncharged acts
`mentioned in the opening statement as alleged are all in furtherance of the charged
`conspiracy and not subject to Rule 404(b)’s requirement.”) In addition, the Court found
`that evidence related to Defendants’ prostitution marketing strategies was relevant and if
`proved, would “certainly” demonstrate “circumstantial evidence of intent.” (Doc. 1342 at
`9.)
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`4. Defendants’ Motion to Limit Testimony of J.S. (Doc. 1295)
`Defendants asserted the same argument in their motion to limit testimony filed
`during trial, namely that J.S.’s testimony should not be permitted because it didn’t relate to
`the 50 ads at issue in Counts 2-51. (Doc. 1294 at 4) (“The Court cannot allow this trial to
`become about every bad act associated with Backpage over a 14-year time period.
`Allowing the Government to proceed in that manner would violate Defendants’ rights to a
`fair trial and effectively amend the indictment beyond the 50 ads at issue.”) The Court
`denied Defendants’ motion and permitted the United States to present evidence that pre-
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`Case 2:18-cr-00422-DJH Document 1603 Filed 06/15/23 Page 4 of 5
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`dated 2013. (Doc. 1334 at 65-67.)
`5. Court’s Order Denying Defendants’ Motion to Dismiss (Doc. 946)
`Defendants also fail to provide the appropriate context for the Court’s language that
`they cite in support of their instant motion. (Doc. 946 at 13.) The Court, in disagreeing with
`Defendants’ assertion that the SI failed to identify the “unlawful activity” that forms the
`basis for Travel Act charges, wrote: “Based on the allegations here, Defendants are not
`charged with anything related to gambling, narcotics, bribery, extortion or arson. Rather,
`they are clearly charged with intending to facilitate and thereafter facilitating or attempting
`to facilitate businesses involved in prostitution. See 18 U.S.C. § 1952(b)(i)(1).” (Doc. 946
`at 9.) Addressing the individual substantive Travel Act charges in Counts 2-51, the Court
`also observed that “the SI alleges fifty instances where Defendants posted ads on
`Backpage.com to facilitate specific individual prostitutes or pimps involved in the business
`of prostitution” and used language that “almost identically mirrors the Travel Act’s
`text.” (Doc. 946 at 11.) The Court went on to explain that these fifty instances were part
`and parcel of “a continuous course of conduct where Defendants facilitated ‘unlawful
`activity’ [including] numerous pimps, prostitutes and traffickers in violation of the Travel
`Act.” (Doc. 946 at 13-14.) The Court did not rule, as Defendants suggest, that the United
`States’ trial presentation was limited only to evidence related to the 50 Travel Act
`violations.
`6. Court’s Order Denying Defendants’ Motion to Dismiss (Doc. 1444)
`Finally, this Court has also had an opportunity to consider and reject Defendants’
`argument that the United States should be precluded from introducing evidence that pre-
`dates 2013. “The Government was entitled to provide the jury with a history of
`Backpage.com, which began in 2004, and an explanation of its case as outlined in the SI,
`which spanned through 2018.” (Doc. 1444 at 7.)
`Defendants’ motion should be denied. The law of the case is clear—the United
`States may introduce evidence that relates to Defendants’ prostitution marketing strategies.
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`Case 2:18-cr-00422-DJH Document 1603 Filed 06/15/23 Page 5 of 5
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`Respectfully submitted this 15th day of June, 2023.
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`GARY M. RESTAINO
`United States Attorney
`District of Arizona
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`s/ Andrew C. Stone
`KEVIN M. RAPP
`MARGARET PERLMETER
`PETER S. KOZINETS
`ANDREW C. STONE
`DAN G. BOYLE
`Assistant U.S. Attorneys
`KENNETH POLITE
`Assistant Attorney General
`U.S. Department of Justice
`Criminal Division, U.S. Department of Justice
`AUSTIN M. BERRY
`Trial Attorney
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`I hereby certify that on June 15, 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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