United States v. Lacey, 2:18-cr-00422

Background

Defendants (former Backpage principals) moved in limine to bar the Government from referring to them as the “Backpage Defendants,” to bar reference to defense counsel as “Backpage Lawyers,” and to preclude use of the term “victim” before the jury.
The Government conceded it would not call defense counsel “Backpage Lawyers”; the Court accepted that concession and did not address it further.
Defendants argued the label “Backpage Defendants” improperly suggests guilt because the corporate entity Backpage pleaded guilty and some individual defendants no longer owned the company when it ceased operating.
The Government said it might need a concise collective label during testimony and sometimes to distinguish defendants from alleged pimps/traffickers; the Court found no such distinction necessary and required the Government to avoid the “Backpage” qualifier.
Defendants argued use of the word “victim” would undermine the presumption of innocence and be unfairly prejudicial under Rule 403; the Government and the Court responded that (1) persons can be crime victims before a defendant is convicted, (2) CVRA rights attach pre-conviction, and (3) referring to a witness as a “victim” does not relieve the Government of its burden to prove guilt beyond a reasonable doubt.
The Court granted in part and denied in part the motion: it barred use of the phrase “Backpage Defendants” (and “Backpage Lawyers”) and denied the request to preclude the term “victim.”

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Use of the label “Backpage Defendants” / “Backpage Lawyers”	Gov: needs concise collective label for questioning; may need to distinguish from pimp/trafficker defendants	Defs: label implies guilt by association with corporate guilty plea; factually inaccurate for some defendants	Court: Grant — Government may not use the “Backpage” qualifier for defendants or counsel
Use of the term “victim” in front of the jury	Gov: witnesses who were harmed may be accurately described as victims; term does not lessen Gov’s burden	Defs: term prejudicial, flips presumption of innocence, should be excluded under Fed. R. Evid. 403 and because CVRA definition allegedly inapplicable	Court: Deny — referring to witnesses as “victims” is permissible; CVRA rights can attach pre-conviction and Rule 403 does not bar the term

Key Cases Cited

United States v. Polasek, 162 F.3d 878 (5th Cir. 1998) (association with a criminal does not itself establish guilt)
United States v. Forrest, 620 F.2d 446 (5th Cir. 1980) (same principle regarding guilt by association)
In re Dean, 527 F.3d 391 (5th Cir. 2008) (CVRA rights attach before plea and can be violated pre-charging/plea)
United States v. Turner, 367 F. Supp. 2d 319 (E.D.N.Y. 2005) (victims must be given notice of initial proceedings)
Holt v. Secretary, Florida Department of Corrections, [citation="489 F. App'x 336"] (11th Cir. 2012) (no authority broadly forbids calling an alleged victim a “victim” at trial)
In re Fisher, 640 F.3d 645 (5th Cir. 2011) (explaining but-for and proximate causation for CVRA victim status)
United States v. Farrington, 499 F.3d 854 (8th Cir. 2007) (evidence is unfairly prejudicial only if it encourages verdict on improper/emotional grounds)
Carter v. Hewitt, 617 F.2d 961 (3d Cir. 1980) (describing the unfair prejudice standard under Rule 403)