Case 2:18-cr-00422-DJH Document 2034 Filed 01/19/24 Page 1 of 7
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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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`No. CR-18-00422-PHX-DJH
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`ORDER
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`The United States (the “Government”) has filed a “Motion for Protective Order
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`Containing Sensitive Victim Information” (Doc. 1948) (“Motion for Protective Order” or
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`“Motion”). Defendant Spear filed a Response (Doc. 1982).1 Non-party David M. Morgan
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`(“Mr. Morgan”) filed an Intervenor’s Notice of Joinder to Defendant Spear’s Response
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`(Doc. 1985). Upon consideration of the same, the Court will grant the Government’s
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`Motion.
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`I.
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`Background and Procedure2
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`From August 29–November 16, 2023, the parties proceeded to a public jury trial in
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`a case involving allegations relating to Travel Act offenses and multiple money laundering
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`accounts. The Travel Act offenses alleged that Defendants conspired to operate a for-profit
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`1 At the close of trial, the Court reminded the parties of the Government’s Motion for
`Protective Order Containing Sensitive Victim Information, noting that it had not received
`any response thereto. So, the Court extended the response filing time. Only Defendant
`Spear filed a Response.
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` The Court’s docket is replete with the facts of the case so they need not be fully recited
`here.
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`Case 2:18-cr-00422-DJH Document 2034 Filed 01/19/24 Page 2 of 7
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`webpage, Backpage.com, as a marketing platform for advertisers of sex for money in
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`violation of multiple state statutes. During trial, the Government introduced exhibits of
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`screenshotted advertisements that were listed on Backpage.com and allegedly offered sex
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`for money. The exhibits included partially clothed females—the alleged victims—in
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`various provocative poses. Some exhibits pictured the alleged victims while underage. All
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`alleged victims testified at trial as adults and each identified themselves in the exhibits.
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`Each admitted exhibit was published to the jury and the attending public. Upon return of
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`the jury’s verdict, all admitted and non-admitted trial exhibits were returned to the
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`Government.
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`The Government filed its Motion for Protective Order after non-party Mr. Morgan,
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`who operates a webpage offering court documents for a fee, sought access to “admitted
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`and non-admitted” trial exhibits. (Docs. 1948 at 2; 1948-3). Mr. Morgan’s request was
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`not made in any court filing. Rather, they were made in email communications with the
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`Clerk of the Court. (Docs. 1948-3; 1948-4).
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`II.
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`Discussion
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`The Government’s Motion for Protective Order is based on two grounds: (1) to
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`invoke the Court’s discretionary and supervisory power over its own record under Federal
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`Rule of Criminal Procedure 16(d) (Doc. 1948 at 7–9); and (2) to protect the victims’ rights
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`to privacy and dignity under the Crime Victims’ Rights Act, 18 U.S.C. § 3771, and the
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`Child Victims’ and Child Witnesses’ Rights Act, 18 U.S.C. § 3509 (“Child Victims’ Act”)
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`(Doc. 1948 at 9–13). The Government seeks a Protective Order that would require Defense
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`Counsel to securely maintain and not disseminate the “identifying information” including
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`the victims’ names, social security numbers, addresses, telephone numbers, and images of
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`individuals contained in the discovery and exhibits. (Doc. 1948-1). The Government
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`further seeks protection of exhibits not introduced in trial. (Id.)
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`Defendant Spear asserts, among other arguments, that the Government’s Motion
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`lacks any evidentiary basis, violates the First and Sixth Amendments, is untimely, and is
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`not narrowly tailored to protect any legitimate privacy interest. (Doc. 1982). The Court
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`Case 2:18-cr-00422-DJH Document 2034 Filed 01/19/24 Page 3 of 7
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`disagrees.
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`A.
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`The Court’s Discretionary & Supervisory Powers Over its Own Records
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`Because the impetus for the Government’s Motion was a reporter’s inquiry for
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`exhibits, the Court will first address its associated arguments. The press has a
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`constitutional interest in access to the courts and the judicial process described as “a right
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`to gather information.” Richmond Newspapers v. Virginia, 448 U.S, 555, 576 (1980). But
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`that right is to sit, listen, watch and report. Id.
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`The United States Supreme Court’s precedent Nixon v. Warner Commc’n Inc. is
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`highly instructive for the Court’s purposes. 435 U.S. 589 (1978).3 In Nixon, the Court
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`stated that a common-law right of access to judicial records is not absolute; rather, whether
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`to permit access is best left to the discretion of the trial court considering the relevant facts
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`and circumstances of the particular case. Id. at 598–99. The Court further instructed that
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`the First Amendment does not provide members of the press with a right to evidence “about
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`a trial superior to that of the general public.” Id. at 609. So, Nixon disposes of any need
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`to analyze a reporter’s request, such as Mr. Morgan’s, to access evidence not introduced or
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`admitted during trial. Finally, Nixon stated that the release of trial evidence is not required
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`by the Sixth Amendment because the guarantee of a public trial “confers no special benefit
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`on the press” but such guarantee is satisfied by the public and the press’ ability to attend
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`the trial and report on what they observed. Id. at 610; see also KPNX Broadcasting Co., v.
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`Superior Court, 678 P.2d 431, 441 (Ariz. 1984) (en banc); United States v. Hastings, 695
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`F.2d 1278, 1280 (11th Cir. 1983) (holding the press’ right of access is a right to attend, not
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`to televise, a criminal trial).
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`The Court notes that during all unsealed pretrial and trial proceedings, the press,
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`including Mr. Morgan, were present. Indeed, Mr. Morgan was present for what appeared
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`to be the entirety of the trial. The Court was equipped with large video screens adjacent to
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`the public viewing area on which the admitted trial exhibits were published. Mr. Morgan,
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`the public, and all members of the press were able to view each admitted exhibit
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`3 Of course, the congressional statute at issue in Nixon is not relevant here.
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`Case 2:18-cr-00422-DJH Document 2034 Filed 01/19/24 Page 4 of 7
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`simultaneously with the jury. So, the Court is not convinced that this case presents some
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`unique circumstance which would lead it to stray from Nixon’s guidance.4 Based on Nixon
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`and its progeny, the Court finds a Protective Order would not violate a First or Sixth
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`Amendment right. Still, it finds further reason to protect the admitted and non-admitted
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`exhibits of victim advertisements on Backpage.com.
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`B.
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`The Victims’ Rights Act & the Child Victims’ and Child Witnesses’
`Rights Act
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`As noted, though the exhibits are not within the Court’s custody, they remain a part
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`of the Court’s judicial record. Thus, there is an ongoing need to ensure that the Court’s
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`records are not accessed or distributed for some purely prurient interests, especially when
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`involving minors identifying information.
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`The Crime Victims’ Rights Act provides that a crime victim has “the right to be
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`treated with fairness and with respect for the victim’s dignity and privacy.”
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`18 U.S.C. § 3771(a)(8). Furthermore, “the court shall ensure that the crime victim is
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`afforded the rights described. Id. § 3771(b). The statute provides that either the
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`Government or a crime victim may seek to enforce its proscribed rights. Id. § 3771(d).
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`The Court observes that, when viewing the evidence in a light most favorable to the
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`Government, each subject victim, with rare exception, was under the control of a third
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`person who photographed them, housed them, clothed them, advertised them, often
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`transported them, and them paid them part of the proceeds accrued from a sex act. Thus,
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`they are entitled to the protections of the Crime Victims’ Rights Act because they meet the
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`definition of crime victim. Id. § 3771(b)(2)(D).5
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`Similarly, the Child Victims’ Rights Act provides protections for a “child”—that is,
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`4 Nor is the Court convinced by the First or Sixth Amendment right arguments advanced
`by Defendant Spear. Indeed, it is difficult to determine whether Defendant Spear has
`standing to assert the rights of Mr. Morgan or any third party, including the “Wayback
`Machine,” “advertisers” on Backpage.com, or any media outlet. (See Doc. 1982 at 7).
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` The Victims’ Rights Act defines the term “crime victim” to mean “the person against
`whom the State offense is committed or, if that person is killed or incapacitated, that
`person’s family member or other lawful representative.” 18 U.S.C. § 3771(b)(2)(D).
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`Case 2:18-cr-00422-DJH Document 2034 Filed 01/19/24 Page 5 of 7
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`“a person who is under the age of 18 [and] who is or is alleged to be a victim of a crime of
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`physical abuse, sexual abuse, or exploitation[.]” Id. § 3509(a)(2). The statute further
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`instructs that the Government, members of the jury, and defense attorneys “shall keep all
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`documents that disclose the name or any other information concerning a child in a secure
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`place to which no person who does not have reason to know their contents has access.”
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`Id. § 3509(d)(1). The protections established by the Child Victims’ Rights Act apply even
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`after the child becomes an adult. See United States v. Gardner, 2016 WL 5404207 at *2
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`(E.D. Mich. Sept. 28, 2016) (rejecting as disingenuous the argument that “[the victim]
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`‘[was] not truly underage’ because she was 17 at the time of the alleged offense and will
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`be 18 at time of trial” because the victim was a minor when the alleged sexual misconduct
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`occurred).
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`These statutes, taken together, indicate a Congressional intent to protect a crime
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`victim, particularly children, from needless invasion of privacy that may impair his or her
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`dignity or further psychological harm to him or her. See United States v. Graham, 2015
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`WL 6161292 at *10 (S.D.N.Y Oct. 20, 2015) (finding a “‘legitimate and substantial’
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`interest in protecting the victim and the uncharged victims from ‘likely adverse personal,
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`professional and psychological consequences for publicly linking their identities’ to their
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`prior prostitution activity warrants protection of their personal identifying information”).
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`In Graham, the district court observed that withholding such information would not impair
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`the defendant’s right to cross-examination. Id. The difference here is that the
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`Government’s Motion for Protective Order was filed after the victims testified. So, it begs
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`the question: what purpose is served by permitting a defense counsel or defendant from
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`now reproducing or sharing a victim’s personal identifying information? The Court sees
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`none.6 See United States v. Paris, 2007 WL 1484974 at *2 (D. Conn. May 8, 2007).
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`III. Conclusion
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`The Government’s Motion for Protective Order Containing Sensitive Victim
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`Information is substantially supported. Access to non-admitted and admitted exhibits,
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`6 This of course would not preclude any defendant from using the exhibits in this case or
`any other resulting judicial proceeding.
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`Case 2:18-cr-00422-DJH Document 2034 Filed 01/19/24 Page 6 of 7
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`including identifying information, by the press for commercial purposes or a defendant for
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`unspecified reasons does not amount to a protected constitutional right. Furthermore,
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`Congress has indeed sought to protect victims, including minors, from unwarranted
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`invasions of privacy through the Crime Victims’ Rights Act and the Child Victims’ and
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`Witnesses’ Rights Act.
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`Accordingly, and with good cause appearing,
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`IT IS ORDERED that the United States’ Motion for Protective Order Containing
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`Sensitive Victim Information (Doc. 1948) is GRANTED.
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`IT IS FURTHER ORDERED as follows:
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`1.
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`Defense counsel shall securely maintain in their custody any and all “identifying
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`information” including victims’ names, social security numbers, addresses, telephone
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`numbers, and images of individuals contained in the discovery and designated exhibits in
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`this matter, namely advertisements that were posted on Backpage, including but not limited
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`to the trial exhibits listed in Attachment A to this Order.
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`2.
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`Reproduction and dissemination of such “identifying information” and images shall
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`be limited to defense counsel and defense experts, as necessary, for purposes of this matter,
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`with any such reproduced copies being returned to defense counsel at the conclusion of the
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`case.
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`3.
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`Defendants shall not possess the aforementioned “identifying information” and
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`images outside of defense counsel’s presence, and shall not maintain any such images in
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`his or her custody.
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`4.
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`The “identifying information” and images of the individuals depicted in the ads and
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`exhibits are for use only in this case by counsel and the defendant, and may not be
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`disseminated or used for any other purpose; and
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`5.
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`All “identifying information” and images of the individuals depicted in the ads and
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`exhibits shall be returned to the United States or destroyed at the conclusion of this case.
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`If defense counsel chooses to destroy rather than return, each counsel shall provide a sworn
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`statement to the United States stating the date on which the documents were destroyed and
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`Case 2:18-cr-00422-DJH Document 2034 Filed 01/19/24 Page 7 of 7
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`the Bates numbers and/or Exhibit numbers of the documents destroyed.
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`6.
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`This Order shall be presented to any individual to whom, under the terms of this
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`Order, defense counsel discloses images covered by this Order. By accepting the covered
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`images, such persons agree to submit to the jurisdiction of the United States District Court
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`for the District of Arizona for the sole purpose of enforcing the terms of this Order.
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`Dated this 18th day of January, 2024.
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`Honorable Diane J. Humetewa
`United States District Judge
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