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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Caitlin Persis Deighan, et al. 

Defendants. 

No. MJ-17-0340-TUC-BGM 

ORDER 

 Currently pending before the Court is Defendants Caitlin Persis Deighan, Zoe E. 

Anderson, Logan Thomas Hollarsmith, and Rebecca Katie Grossman-Richeimer’s 

(collectively “Defendants”) Motion to Compel (Doc. 54). The Government has filed its 

response, and Defendants have replied. Govt.’s Response in Opp. Defs.’ Mot. to Compel 

(Doc. 60); Defs.’ Reply in Support of Defs.’ Mot. to Compel (Doc. 61). Defendant 

Caitlin Persis Deighan is charged with one (1) count of operating a motor vehicle in a 

wilderness area, and all Defendants are charged with one (1) count of entering a national 

wildlife refuge without a permit. Information (Doc. 1).

 On April 17, 2018, oral argument was held before Magistrate Judge Macdonald 

regarding the motion. Minute Entry 4/17/2018 (Doc. 62). The Court took the matter 

under advisement. Subsequent to the hearing Defendants Caitlin Deighan, Rebecca 

Grossman-Richeimer, and Logan Hollarsmith filed Notices of Declaration in Support of 

Religious Freedom (Docs. 65, 66 & 67). In response, the Government filed a Motion to 
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Strike Defendants’ Notices of Declaration (Doc. 68). Defendant Zoe Anderson also filed 

a Notice of Declaration in Support of Religious Freedom (Doc. 72). The Government 

filed a Motion to Strike Defendant’s Notice of Declaration (Doc. 73) for Defendant 

Anderson, as well. Defendants Deighan, Anderson, Hollarsmith, and GrossmanReichmer responded to the Government’s motion to strike their respective affidavits. 

(Docs. 70 & 76). Accordingly, the motions are ripe for adjudication. 

I. FACTUAL BACKGROUND 

 The Court outlined the relevant factual background in its May 2, 2018 Order (Doc. 

72), but reiterates it here for consistency. 

 On July 19, 2017 Federal Wildlife Officer (“FWO”) Jose Valenzuela received 

information of individuals in an area called Charlie Bell Pass/Well of the Cabeza Prieta 

National Wildlife Refuge. Govt.’s Aff. (Doc. 18) at 2.1

 At approximately 7:30 p.m., 

FWO Valenzuela received a call to investigate trespassing in a designated wilderness area 

of Charlie Bell area which is located on the Cabeza Prieta National Wildlife Refuge. Id.

at 2. While en route to the Charlie Bell area, FWO Valenzuela heard radio traffic 

between Border Patrol dispatch and a Border Patrol agent in the area. Id. At the refuge 

exit, a Border Patrol agent was following a white vehicle when FWO Valenzuela met 

them. Id.

 The driver was identified as Caitlin Persis Deighan, and the three passengers were 

identified as Logan Thomas Hollarsmith, Zoe E. Anderson, and Rebecca Katie 

Grossman-Richeimer. Id. at 2–3. FWO Valenzuela’s affidavit is unclear regarding 

whether the Defendants had visitor permits in their possession; however, the indictment 

is clear that Defendants did not have valid permits. Govt.’s Aff. (Doc. 18) at 3; see

Indictment (Doc. 1). Defendant Deighan admitted driving down to the well past the signs 

saying “government use only.” Govt.’s Aff. (Doc. 18) at 3. Defendants stated that they 

had not noticed any signs. Id. During FWO Valenzuela’s recording of Defendants 

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identification and vehicle information, the Border Patrol agent interviewed the 

individuals about damage to a United States Border Patrol camera. Id. at 3–4. 

 At oral argument, counsel for Defendants confirmed that they had not sought to 

obtain permits prior to the July 19, 2017 incident. See Hr’g Tr. 4/17/2018 (Doc. 69) at 

14:15–15:18, 39:11–41:1. Counsel also noted that in the instant case, the Defendants 

were allegedly actively engaged in a search and rescue operation. Id. at 39:11–41:1. 

II. ANALYSIS

Defendants seek an order compelling the Government to provide discovery that 

they allege is relevant to the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 

U.S.C. § 2000bb-1, their selective prosecution claim, an entrapment by estoppel defense, 

and a necessity defense. Defs.’ Mot. to Compel (Doc. 54) at 4–10. 

A. Federal Rules of Criminal Procedure 16

 Rule 16, Federal Rules of Criminal Procedure provides, “[u]pon a defendant’s 

request, the government must permit the defendant to inspect and to copy or photograph 

books, papers, documents, data, photographs, tangible objects, buildings or places, or 

copies or portions of any of these items, if the item is within the government’s 

possession, custody, or control and . . . the item is material to preparing the defense.” 

Fed. R. Crim. P. 16(a)(1)(E)(i). “Materiality is a necessary prerequisite to discovery.” 

United States v. USDC, Central Dist. of Cal., Los Angeles, Cal., 717 F.2d 478, 480 (9th 

Cir. 1983) (citations omitted). “Materiality is a ‘low threshold; it is satisfied so long as 

the information ... would have helped’ to prepare a defense. United States v. SotoZuniga, 837 F.3d 992, 1003 (9th Cir. 2016) (quoting United States v. Hernandez–Meza, 

720 F.3d 760, 768 (9th Cir. 2013)). However, “[m]ateriality means more than that the 

evidence in question bears some abstract logical relationship to the issues in the case. 

There must be some indication that the pretrial disclosure of the disputed evidence would 

. . enable[] the defendant significantly to alter the quantum of proof in his favor.” United 

States v. Maniktala, 934 F.2d 25, 28 (2d Cir. 1991) (citations omitted). “An abstract 
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logical relationship to the issues in the case is not, however, sufficient to force the 

production of discovery under rule 16.” United States v. George, 786 F.Supp. 56, 58 

(D.D.C. 1992) (quotations and citations omitted). “The documents at issue must play an 

important role in uncovering admissible evidence, aiding witness preparation, 

corroborating testimony or assisting impeachment or rebuttal.” Id. (quotations and 

citations omitted). 

B. Religious Freedom Restoration Act (“RFRA”)

 “RFRA supplies a rule of decision in cases where a person finds himself in the 

unfortunate position of needing to choose between following his faith and following the 

law.” United States v. Christie, 825 F.3d 1048, 1055 (9th Cir. 2016). “The mere fact that 

[a person’s] religious practice is [substantially] burdened by a governmental program 

does not mean that an exemption accommodating his practice must be granted.” Id.

(quoting Thomas v. Review Bd., 450 U.S. 707, 718, 101 S.Ct. 1425, 67 L.Ed.2d 625 

(1981)) (alterations in original). In order for a RFRA defense to prevail, defendants must 

“demonstrate that the beliefs they espouse are actually religious in nature (rather than 

philosophical or political, for example); that they sincerely hold those beliefs, and do not 

simply recite them for the purpose of draping religious garb over [political] activity[.]” 

Christie, 825 F.3d at 1056. Upon such a showing, “the government must demonstrate 

that forcing the religious objector to comply with the law is both ‘in furtherance of a 

compelling governmental interest’ and is ‘the least restrictive means of furthering that 

compelling governmental interest.’” Id. at 1055 (citing 42 U.SC. §2000bb-1(b) & (c)). 

 Subsequent to the hearing Defendants Holcomb, Huse, and Orozco-McCormick 

filed a Notice of Declaration in Support of Religious Freedom (Docs. 55, 57, & 61). In 

response to each of these, the Government filed a Motion to Strike Defendant’s Notice of 

Declaration (Doc. 56, 59, & 63). Each Defendant avers that they have a moral, ethical, 

and spiritual belief to assist humans in need of basic necessities, and that they hold their 

beliefs “with the strength of traditional religious convictions.” The Government seeks to 

strike each declaration as untimely and improper under the local rules of procedure. 
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Although improperly filed, the Court declines to strike Defendants’ declarations. 

 It is undisputed that Defendants did not attempt to obtain permits for access to the 

Cabeza Prieta Wildlife Refuge. Neither did Defendants attempt to obtain a special use 

permit. As such, there was no denial based upon any purported religious belief. 

 Moreover, denial of vehicle access by Defendants to portions of the Cabeza Prieta 

National Wildlife Refuge does not “affirmatively compel[] [the Defendant], under threat 

of criminal sanction, to perform acts undeniably at odds with fundamental tenets of [his] 

religious beliefs.” Wisconsin v. Yoder, 406 U.S. 205, 218, 92 S.Ct. 1526, 1534 (32 

L.Ed.2d 15 (1972) (citations omitted). Nor does the restriction prevent Defendant from 

receiving a governmental benefit. See Navajo Nation v. United States Forest Service, 

535 F.3d 1058, 1070 (9th Cir. 2008) (citing Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 

1790, 10 L.Ed.2d 965 (1963)). 

 Additionally, the Arizona-Mexico international border is approximately 373 miles 

long. See https://www2.census.gov/library/publications/2010/compendia/statab/130ed/ 

tables/11s0359.pdf (last visited May 30, 2018). The Cabeza Prieta National Wildlife 

Refuge shares it southern boundary with Mexico for approximately 50 miles, or 13.4% of 

the total border. See http://cabezaprieta.org/geology.php (last visited May 30, 2018). 

Moreover, portions of the 860,000 acres of the Refuge are open to the public. See

https://www.fws.gov/refuge/Cabeza_Prieta/about.html (last visited May 30, 2018). 

Defendants’ proclaimed moral, ethical, and spiritual belief to assist humans in need of 

basic necessities appears to be a simple recitation “for the purpose of draping religious 

garb over [political or philosophical] activity[.]” Christie, 825 F.3d at 1056. Even if the 

Court accepts that Defendants attestations are truly religious beliefs, there has been no 

showing that the exercise of the same has been substantially burdened by the narrowly 

limited access in the Cabeza Prieta National Wildlife Refuge. See Navajo Nation, 535 

F.3d at 1070 (“Any burden imposed on the exercise of religion short of that described by 

Sherbert and Yoder is not a ‘substantial burden’ within the meaning of RFRA.”). As 

such, Defendants have failed to demonstrate that the information sought is material to 
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their defense. 

C. Selective Prosecution

 Defendants seek to assert a selective prosecution or selective enforcement defense 

at trial. Defendants seek a variety of information allegedly related to this defense, and 

rely on text messages between Fish and Wildlife personnel that suggest that eight (8) 

individuals from no more deaths sought permits, but three (3) were on the “do not issue” 

list. Defs.’ Mot. to Compel (Doc. 54) at 6–8; Hr’g Tr. 4/17/2018 (Doc. 69) at 7:16–

10:17. 

 Defendants argument is fatally flawed, because none of the Defendants in this case 

even sought to obtain permits before the July 19, 2017 incident. See Hr’g Tr. 4/17/2018 

(Doc. 69) at 14:15–15:18, 39:11–41:1. It is purely speculative that Defendants would 

have been denied permits had they applied, or were otherwise targeted by law 

enforcement due to their affiliation with No More Deaths. Furthermore, Fish and 

Wildlife personnel do not decide whether or not to prosecute particular individuals; that 

decision is left to the United States Attorney’s Office. “[S]o long as the prosecutor has 

probable cause to believe that the accused committed an offense defined by statute, the 

decision whether or not to prosecute, and what charge to file or bring before a grand jury, 

generally rests entirely in his [or her] discretion.” Wayte v. United States, 470 U.S. 598, 

607, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985) (quoting Bordenkircher v. Hayes, 434 

U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978)). Furthermore, “the decision to 

prosecute is particularly ill-suited to judicial review.” Id. Finally, “[t]o obtain discovery 

on a selective prosecution claim the defendant[s] must first identify specific facts that 

establish a ‘colorable’ basis for both elements of the claim.”2

 United States v. Bourgeois, 

964 F.2d 935, 938 (9th Cir. 1992). Defendants have not met this burden. As such, the 

Court finds that the discovery sought is not material to their defense. 

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 “To succeed on a selective prosecution claim, the defendant bears the burden of 

showing both ‘that others similarly situated have not been prosecuted and [also] that the 

prosecution is based on an impermissible motive.’” United States v. Bourgeois, 964 F.2d 935, 

938 (9th Cir. 1992). 
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D. Entrapment by Estoppel

 Defendants seek disclosure related to an entrapment by estoppel defense, as well 

as that “related to the unauthorized 2017 amendment of the entrance permit to [the 

Cabeza Prieta National Wildlife Refuge] and other [Fish and Wildlife Service] regulatory 

violations connected to these charges.” Defs.’ Mot. to Compel (Doc. 54) at 8. 

 “Entrapment by estoppel applies when an official tells the defendant that certain 

conduct is legal and the defendant believes the official.” United States v. Tallmadge, 829 

F.2d 767, 773 (9th Cir. 1987) (quotations and citations omitted). In support of this 

defense, it appears that Defendants are relying on an alleged statement from a former 

Assistant United States Attorney that “DOJ does not plan to prosecute [No More Deaths] 

volunteers for citations.” Defs.’ Reply (Doc. 61), Exh. “2” at 1. The discovery that they 

seek, however, is all related to the alleged unauthorized 2017 amendment of the entrance 

permit. Because Defendants never sought permits, any amendments to the regulations 

related to permitting are not material to their defense. 

E. Necessity 

 Defendants seek discovery for a broad range of video and audio recordings, data, 

and materials related to emergency or other calls to law enforcement and Fish and 

Wildlife related to the Cabeza Prieta Wildlife Refuge. Defs.’ Mot. to Compel (Doc. 43) 

at 9–10. 

 “The defense of necessity does not arise from a ‘choice’ of several sources of 

action; it is instead based on a real emergency.” United States v. Dorrell, 756 F.2d 427 

(9th Cir. 1985) (quotations and citations omitted). Defendants have alleged that they 

were on a self-proclaimed “search and rescue operation” at the time of their arrest. Hr’g 

Tr. 4/17/2018 (Doc. 69) at 39:11–41:1. Their broad discovery request reaches far beyond 

any actual or perceived “real emergency,” and is therefore not material to this defense. 
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III. CONCLUSION 

Based upon the foregoing, the Court finds Defendants’ Motion to Compel 

Discovery (Doc. 54) is without merit. Accordingly, IT IS HEREBY ORDERED that the 

Government’s Motions to Strike Defendant’s Notice of Declaration (Doc. 68 & 72) are 

DENIED. IT IS FURTHER ORDERED that Defendants’ motion (Doc. 54) is DENIED. 

 Dated this 1st day of June, 2018.