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Gregory J. Kuykendall, Bar # 012508

Amy P. Knight, Bar # 031374

KUYKENDALL & ASSOCIATES

531 S Convent Avenue

Tucson, AZ 85701

(520) 792-8033

greg@kuykendall-law.com

amyknight@kuykendall-law.com

Pro Bono Attorneys for Defendant Scott Daniel Warren

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

SCOTT DANIEL WARREN,

Defendant.

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No. 17-mj-00341

MOTION TO COMPEL 

DISCOVERY RESPONSES

The defendant, Dr. Scott Warren, by and through his undersigned attorneys, 

hereby respectfully requests this Court, pursuant to Rule 16 of the Federal Rules of 

Criminal Procedure, to order the government to provide adequate responses to 

Defendant’s Fourth Discovery Requests. This motion is supported by the attached 

Memorandum of Points and Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES

BACKGROUND
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Dr. Scott Warren stands charged in a two-count information alleging 

operation of a motor vehicle in a wilderness area and abandonment of property, both 

alleged to have occurred in the Cabeza Prieta National Wildlife Refuge, a remote 

desert area that extends to the US-Mexico border. Dr. Warren volunteers with the 

humanitarian organization No More Deaths, which works to end death and suffering 

on the border by, among other things, conducting search and rescue/recovery 

operations, and placing emergency water and food in the desert for imperiled 

travelers. The humanitarian crisis they address is well-documented. According to the 

nonprofit Humane Borders, which works closely with the Pima County Office of the 

Medical Examiner to track and report migrant deaths, in Arizona alone, 169 sets of 

human remains were recovered from the desert in the border region in 2016, 128 in 

2017, and 127 in 2018; the vast majority are unidentified. See Arizona OpenGIS 

Initiative for Deceased Migrants, http://www.humaneborders.info/app/map.asp. 

And these are only the known deaths. Migrants also die without being recorded; 

Border Patrol agents and humanitarian groups continue to find human remains in 

remote desert areas, some of which have been there a long time. 

On January 18, 2019, Dr. Warren submitted to the government Defendant’s 

Fourth Discovery Requests, seeking a very specific, circumscribed set of 

information: “Any and all data, reports, correspondence, or other documents 

concerning the activation of the rescue beacons in Cabeza Prieta and any response, 

or lack thereof, including response times and results, for the years 2014-2018.” See 
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Exhibit 1. The government responded on January 21, 2019: “As it stands right now, 

the disclosure request is overly broad, not related to a legal defense, based on 

speculation, irrelevant and/or does not otherwise implicate the government’s 

disclosure obligations. Therefore, the government will not disclose the requested 

items, if they exist, at this time.” See Exhibit 2.

ARGUMENT

I. The Rule 16 “Materiality” Standard 

Federal Rule of Criminal Procedure 16(a)(1)(E) requires that, upon a defendant’s 

request, the government must “disclose any documents or other objects within its 

possession, custody or control” that are “material to preparing the defense.” Notably, 

this standard does not require that the discovery be related to a particular identified 

affirmative defense, or to a defense that has already been asserted in pretrial 

litigation. Sometimes, the defense team may not be able to fully identify every 

possible angle for defending the case without some additional disclosure; the rule 

thus provides for disclosure broadly material to “preparing the defense.” Nor should 

a defendant be forced to specify the precise details of the defense he is considering 

simply to obtain material necessary for evaluating the prospects of that defense; to 

do so would be to condition his access to discovery on a willingness to provide the 

prosecution with a detailed road map of his case. 

“[T]o obtain discovery under Rule 16, a defendant must make a prima facie 

showing of materiality.” United States v. Zone, 403 F.3d 1101, 1107 (9th Cir. 2005) 
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(quoting United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990)). This “low 

threshold” is satisfied if the information requested would “help[]” the defendant 

prepare a defense. United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 

2013). Evidence is discoverable under Rule 16 “even if the evidence is not 

admissible so long as it is reasonably likely to lead to admissible evidence.” United 

States v. Price, 566 F.3d 900, 913 n.14 (9th Cir. 2009) (internal quotation marks 

omitted).

II. The Information Sought Is Clearly Material to “Preparing the 

Defense” in Dr. Warren’s Case.

A core issue in this case has always been whether the placement of emergency 

supplies in the refuge, including in remote areas not accessible by public road, is a 

necessary response to a real need. As the Court may recall from the recent trial on 

the same two charges that Dr. Warren is facing (plus an additional charge not 

leveled against Dr. Warren), Case No. 17-mj-339, the defense litigated a number of 

possible defenses in pretrial motions, including selective enforcement, violation of 

international law, and the Religious Freedom Restoration Act; their Notice of 

Defenses, filed after the conclusion of all that litigation approximately one month 

before trial began, included the additional defense of necessity. See Exhibit 3. The 

necessity defense was then asserted at trial, where federal officers gave sworn 

testimony about the efficacy of the beacons, including Juliette Fernández, who is 

the U.S. Fish and Wildlife Service Refuge Supervisor for all of Arizona and New 
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Mexico. In addition, the prosecutors repeatedly invoked the efficacy of rescue 

beacons to explain why water drops were not necessary. 

Of course, a defendant need not show that a defense would be successful to 

trigger the government’s Rule 16 obligations; indeed, that would be a classic 

Catch-22, wherein the defendant needs the evidence to prove the defense, but he 

must prove the defense to get the evidence. Cf. United States v. Dorrell, 758 F.2d 

427 (9th Cir. 1985) (government moved in limine to exclude necessity defense; 

defendant was required to make an in camera offer of proof, based on which the 

Court would decide if the evidence was sufficient as a matter of law). Thus, in 

Dorrell, the question of whether the defendant could establish the defense in a 

legally sufficient manner was decided not in the attempt to procure evidence 

supporting it, but rather in an assessment of that evidence when offered in support 

of the claim. The Court articulated the law under which it assessed the proffered 

evidence: “Asserting the defense requires a showing that the defendant ‘act[ed] to 

prevent “an imminent harm which no available options could similarly prevent.’”

In addition, the defendant must establish that he reasonably anticipated the 

existence of a direct causal relationship between his conduct and the harm to be 

averted.” Dorrell, 758 F.2d at 430-31 (internal citations omitted). Both of those 

requirements could potentially be met here, although the “no available options” 

requirement will require evidence about the efficacy vel non of other possible 

responses. Hence, information about the actual response to the activation of rescue 
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beacons is absolutely material to the preparation of the defense. This materiality is 

confirmed by the fact that the government has already disclosed in this case a 

document created by FWS in which Sid Slone, the Cabeza Prieta Refuge Manager, 

argues, albeit with a paucity of evidence to support his argument, that the rescue 

beacons are a better method for saving more lives than the distribution of water 

(Bates no. 49). 

The rescue beacon data may additionally be material to the RFRA defense, 

which this Court has ordered may be asserted at trial. Doc. 79 at 3. Specifically, the 

rescue beacon evidence may bear on whether a prosecution for driving on a 

restricted road, or for leaving emergency supplies in the refuge, places a 

“substantial burden” on the defendant’s exercise of his religious beliefs. If the 

defendant’s beliefs require him to attempt to help those in dire need and save lives, 

evidence about the failure of non-prohibited methods of doing that is highly 

relevant to whether the prosecution substantially burdens his exercise of religion.

Further individuals have submitted FOIA requests to CBP and received no 

response for many months. Similarly, a publicly available document released by 

CBP on June 30, 2016 reports national data on rescue beacons, but glaringly omits 

any data about the activation of beacons anywhere in the Tucson Sector, which 

includes Cabeza Prieta. Indeed, this is the only sector with beacons that neglected 

to disclose how often they had been activated, along with the numbers of rescues 

and deaths. See Exhibit 4 at 3. The neighboring Yuma Sector, tellingly, reports 
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1,161 activations and only two individuals rescued. Id. Accordingly, this discovery 

request is not a shot in the dark; existing information reveals substantial reason to

believe that the response may not be what the government claims. 

Defendant has clearly established that the information sought, which the 

government has, is material to the preparation of the defense. It “behooves the 

government to interpret the disclosure requirement broadly and turn over whatever 

evidence it has pertaining to the case.” United States v. Hernandez-Meza, 720 F.3d 

760, 768 (9th Cir. 2013). 

Finally, should the Government continue to refuse to provide this basic 

information about its operations in this crucial area, and should this Court refuse to 

order the obviously material information disclosed, the Government must at the very 

least be precluded from introducing any evidence or making any argument regarding 

the use of rescue beacons.

RESPECTFULLY SUBMITTED this 22nd day of January, 2019.

KUYKENDALL & ASSOCIATES

By /s/ Amy P. Knight

Gregory J. Kuykendall

Amy P. Knight

531 S Convent Avenue

Tucson, AZ 85701

Attorneys for Defendant Scott 

Daniel Warren
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CERTIFICATE OF SERVICE

I certify that on January 22nd, 2019, I electronically transmitted a PDF 

version of this document to the Clerk of Court using the CM/ECF System for filing 

and for transmittal of a Notice of Electronic Filing to the following CM/ECF 

registrants: 

Nathaniel J. Walters, Esq. (email: Nathaniel.walters@usdoj.gov) 

Anna R. Wright, Esq. (email: anna.wright@usdoj.gov) 

United States Attorney’s Office 

405 W. Congress, Suite 4800 

Tucson, AZ 85701