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`Case 2:18-cr-00422-DJH Document 1604 Filed 06/15/23 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
`
`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 TESTIMONY,
`STATEMENTS, OR ARGUMENTS
`THAT ESCORT SERVICES, DATING
`ADS, MASSAGE SERVICES AND
`ADULT ADVERTISING ARE
`UNLAWFUL OR PRESUMED TO
`INVOLVE PROSTITUTION
`(Doc. 1588)
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`Case 2:18-cr-00422-DJH Document 1604 Filed 06/15/23 Page 2 of 6
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`Re-urging arguments this Court has rejected, Defendants seek to preclude evidence
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`that Backpage’s “escort” ads involved prostitution. (Doc. 1588.) Defendants’ logic goes
`like this: because “[l]icensed escort services,” “[d]ating services that comply with Arizona
`law regarding same,” and “[l]icensed massage services” are regulated as lawful activities
`in Arizona, advertisements labeled as “escort,” “massage,” or “dating” necessarily offered
`lawful services. (Doc. 1588 at 4-5.) But merely labeling an ad as one for an ostensibly
`lawful service does not make it so. Rather, the trial evidence will show that Defendants
`intentionally worked for years to build Backpage into the internet’s leading source of
`prostitution ads—and that, as used on Backpage, the label “escorts” functioned as a widely
`understood euphemism for prostitution. For many reasons, Defendants’ motion to preclude
`evidence or argument on this critical topic should be denied.
`Defendants’ “Presumption” Argument Lacks Merit. This Court has repeatedly
`rejected Defendants’ suggestion that the United States has merely “presumed” that
`Backpage’s “escort” ads were for illegal services. (Cf. Doc. 1588 at 4-5.) In October 2019,
`the Court rejected Defendants’ argument that the Superseding Indictment (SI, Doc. 230)
`“is based entirely on the assumption that the advertisements are for illegal activity. . . .
`Defendants ignore [the SI],” which “is replete with specific facts that support finding that
`the conspirators knew the ads were for prostitution.” United States v. Lacey, 423 F. Supp.
`3d 748, 757 (D. Ariz. 2019). The SI’s 92-pages of detailed factual allegations, taken as
`true, “establish defendants had the specific intent to promote prostitution” and “conspired
`together to do so.” Id. at 764.
`The Court also found that the SI’s allegations, if proven, show that the ads in Counts
`2-51 “are for prostitution.” Id. at 757-58. In support, the Court canvassed allegations that
`the ads included terms like “50 red roses special,” “GFE” or “girlfriend experience” (which
`several Defendants discussed is a “code word” or “solid sex for money term[ ]”),
`“disclaimers” that “customers agreed they were not affiliated with law enforcement,”
`pricing for short time periods (e.g., “I do half hour sessions that vary in donation prices, 80
`for head, 120 for hooking up without head”), and similar prostitution terms. Id. at 758-59.
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`Case 2:18-cr-00422-DJH Document 1604 Filed 06/15/23 Page 3 of 6
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`In June 2021, Defendants again argued that the government had simply assumed
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`that prostitution offenses “include[] legal escort services.” (Doc. 1171 at 3-4.) The United
`States responded that “Defendants were aware that the overwhelming majority of ads in
`[Backpage’s ‘adult-escorts’ section] were for prostitution” and “deliberately pursued a
`number of business strategies specifically designed to attract more prostitution advertising
`customers and increase its prostitution-related revenues.” (Doc. 1176 at 15-16.) The United
`States summarized an array of supporting facts, including the guilty pleas and admissions
`of Backpage.com, LLC, Backpage’s then-CEO, and Backpage’s Sales and Marketing
`Director. (Doc. 1176 at 16-17.) The Court denied Defendants’ motion. (Doc. 1179.)
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`And after the United States’ opening statement in the first trial, Defendants moved
`for a mistrial on September 6, 2021, arguing—in terms nearly identical to those here—that
`the United States had “conflat[ed] escorts and prostitutes” by “substitut[ing] the word
`‘prostitute’ or ‘prostitution’ in place of the word ‘escort,’ which is a legal activity.” (Doc.
`1272, Mot. at 6.) In response, the United States argued it relied on no such “presumptions”;
`instead, “the evidence at trial will demonstrate that the 50 ads associated with the
`substantive Travel Act counts, along with the other Backpage ads discussed in the
`superseding indictment, were not advertisements for sale of an ‘escort,’ rather they were
`prostitution solicitations.” (Doc. 1275, Resp. at 16.)
`
`The Court agreed: “The argument that the government has conflated or confused
`escorts versus prostitutes, one is legal and one is not, the government didn’t confuse them,
`they simply said that it is their belief that the evidence will show that the escort ads are
`really for prostitution. . . . [I]t’s their statement of what they believe the evidence will show,
`which is not an issue for a mistrial.” (Doc. 1342 at 9:5-11.) These rulings—which are law
`of the case—show the United States is not relying on a mere “presumption” that
`Backpage’s escort ads were for prostitution.
`Jurors May Properly Consider Both the Text and Context of the Ads, and Not
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`Merely the Ads’ Labels. The United States does not quarrel with the general proposition
`that Arizona law defines certain lawful escort, dating, and massage services. (See Doc.
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`Case 2:18-cr-00422-DJH Document 1604 Filed 06/15/23 Page 4 of 6
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`1588 at 4-5.) But it does not follow that “[s]ince each of the above services are legal in
`Arizona, any testimony or suggestion . . . that any of these services are really just fronts
`for prostitution . . . is legally and factually incorrect.” (Doc. 1588 at 5.) In support,
`Defendants cite 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), for the general
`proposition that the First Amendment “protects truthful commercial speech . . . about
`lawful products.” (Doc. 1588 at 5.) But “commercial speech related to illegal activity” is
`not protected by the First Amendment. Central Hudson Gas & Elec. Corp. v. Pub. Serv.
`Commn. of New York, 447 U.S. 557, 563 (1980). And Defendants cite no authority holding
`that an ad must explicitly propose an illegal transaction to fall outside the First Amendment.
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`Rather, the law is clear that jurors may consider both text and context in assessing
`these ads and Defendants’ intent to facilitate prostitution. The jury may properly consider
`the ads’ use of coded prostitution terms (e.g., “GFE,” “quickie, “incall/outcall,”
`“independent,” “no pimps”), cross-references to reviews on prostitution websites, prices
`tied to 15-, 30-, or 60-minute increments, explicit photos, disclaimers that customers must
`agree they are not affiliated with law enforcement, and similar evidence. See Lacey, 423 F.
`Supp. 3d at 757-58 (discussing similar indicia of prostitution ads); Pittsburgh Press Co. v.
`Human Relations Comm’n, 413 U.S. 376, 388 (1973) (employment ads were unlawful, and
`excluded from First Amendment protection, based on their text and context); United States
`v. White, 610 F.3d 956, 960 (7th Cir. 2010) (“that a request for criminal action is coded or
`implicit does not change its character as [unprotected] solicitation”); (Doc. 1216-3 at 185-
`87; Doc. 1242 at 4-6).
`
`In sum, the evidence referenced above is relevant to establishing the offenses
`charged in the SI, and its probative value is not substantially outweighed by any risk of
`undue prejudice. See United States v. LeMay, 260 F.3d 1018, 1026 (9th Cir. 2001) (all
`relevant evidence “might be said to be prejudicial if it tends to prove the prosecution’s
`case,” but that alone doesn’t support preclusion). Defendants’ motion (Doc. 1588) should
`be denied.
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`Case 2:18-cr-00422-DJH Document 1604 Filed 06/15/23 Page 5 of 6
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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
`
`KENNETH POLITE
`Assistant Attorney General
`Criminal Division, U.S. Department of Justice
`
` s/Peter S. Kozinets
`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 1604 Filed 06/15/23 Page 6 of 6
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`CERTIFICATE OF SERVICE
`
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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.
`
`
`s/ Daniel Parke
`Daniel Parke
`U.S. Attorney’s Office
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