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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Scott Daniel Warren,

Defendant. 

No. MJ-17-0341-TUC-BGM 

ORDER 

 Currently pending before the Court is Defendant Scott Daniel Warren’s Second 

Motion to Compel Discovery Responses (Doc. 34). The Government has filed its 

response, and Defendant has replied. Govt.’s Response to Def.’s 2d Mot. to Compel 

Discovery Responses (Doc. 37); Def.’s Reply Br. In Support of 2d Mot. to Compel Disc. 

Responses (Doc. 38). Defendant Scott Daniel Warren is charged with one (1) count of 

operating a motor vehicle in a wilderness area, and one (1) count of abandoning property 

in a national wildlife refuge. Information (Doc. 1).

 On June 28, 2018, oral argument was held before Magistrate Judge Macdonald 

regarding the motion. Minute Entry 6/28/2018 (Doc. 39). The Court took the matter 

under advisement, and it is ripe for adjudication. 

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I. FACTUAL BACKGROUND 

 In its May 29, 2018 Order (Doc. 35) regarding Defendant’s initial Motion to 

Compel Discovery Responses, the Court outlined the factual background. As such, the 

Court finds it unnecessary to reiterate those facts here. 

II. ANALYSIS

Defendant seeks an order compelling the Government to provide discovery that he 

alleges is essential to his defense. See Def.’s 2d Mot. to Compel (Doc. 34). Currently, 

Defendant seeks disclosure of (1) “notes, minutes, agendas and other documents 

pertaining to any meetings between representatives of the U.S. government . . . and 

representatives of No More Deaths from 2014 to the present, [] includ[ing] documents 

pertaining to a 2015 meeting between Margo Cowan, Larry Lee, and land managers in 

the Tucson region”; (2) “[a]ll correspondence, including text messages, between 

government agents, including Border Patrol and the Fish and Wildlife Service, 

referencing No More Deaths volunteers, along with the identities of the senders and 

receivers of any such correspondence”; and (3) “[a]ny and all documents pertaining to the 

revision of the Cabeza Prieta National Wildlife Refuge permit application that occurred 

in 2017 or 2018.” Def.’s 2d Mot. to Compel (Doc. 34) at 2–3. Defendant asserts he is 

entitled to such information based upon Rule 16, Federal Rules of Criminal Procedure. 

See id.

A. Federal Rules of Criminal Procedure 16

 Rule 16, Federal Rules of Criminal Procedure, provides: “Upon 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 
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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 

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. Meeting Notes, Minutes, and Agendas

 “Entrapment by estoppel is the unintentional entrapment by an official who 

mistakenly misleads a person into a violation of the law.” United States v. Batterjee, 361 

F.3d 1210, 1216 (9th Cir. 2004) (citations omitted). “In order to establish entrapment by 

estoppel, a defendant must show that (1) an authorized government official, empowered 

to render the claimed erroneous advice, . . . (2) who has been made aware of all the 

relevant historical facts, . . . (3) affirmatively told him the proscribed conduct was 

permissible, . . . (4) that he relied on the false information, . . . and (5) that his reliance 

was reasonable.” Id. (quotations and citations omitted). 

 Defendant asserts that the Government has previously “produced a document 

dated April 28, 2017 that appears to be notes from a meeting between Sid Slone and 

Mary Kralovec, CPNWR personnel, and four representatives of No More Deaths[,] . . . 

[which] describes a conversation about the use of administrative roads by No More 

Deaths to carry out their humanitarian work.” Def.’s 2d Mot. to Compel Discovery 
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Responses (Doc. 34) at 5. Defendant further asserts that “[t]he document also states that 

one of the No More Deaths representatives ‘stated that she had met 2 years ago with 

Larry Lee (DOJ Assistant U.S. Attorney (AUSA)) and the various land managers in the 

Tucson region to talk about the missions of NMD and the land managers and work 

through a method where NMD could complete their mission on public lands.” Id. The 

Government argues that “[t]he defendant has failed to allege or show any facts having 

any tendency to support his claim of entrapment by estoppel.” Govt.’s Response (Doc. 

37) at 5. The Government further asserts that Defendant “has failed to allege that he 

personally relied on any of the statements made at those meetings.” Id. As such, the 

Government asserts that any such meeting notes are immaterial. Id. at 5–6. 

 The Court finds that Defendant’s vague assertion that because there were meetings 

between members of No More Deaths and various governmental representatives, he was 

acting under a belief that his permit violation was legal, insufficient to support the 

discovery he seeks. Defendant has failed to put forth any facts to support his contention 

that a government agent informed No More Deaths that any actions violating their 

permits would be legal. As such, the information sought is not material to his defense. 

C. Text Messages

 At the time of the hearing, the Court directed the Government to disclose all text 

messages that have been previously disclosed in both Defendant’s felony case, as well as 

the currently pending United States v. Deighan, Case No. MJ-17-0340-TUC-BGM. This 

disclosure may be subject to a protective order; however, the parties are directed to 

finalize the scope of any such order. 

 To the extent that there may be additional undisclosed text messages, the Court 

finds that the Defendant has not met his burden to demonstrate materiality of the same. 

“To obtain discovery on a selective prosecution claim the defendant must first identify 

specific facts that establish a ‘colorable’ basis for both elements of the claim.”1

 United 

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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, 
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States v. Bourgeois, 964 F.2d 935, 938 (9th Cir. 1992). Defendant has not made any 

showing that “other similarly situated have not been prosecuted[.]” Id. Moreover, 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. As such, 

Defendant’s request will be denied. 

D. Permit Revision

 Defendant seeks “documents pertaining to a revision to the CPNWR permit 

application.” Def.’s 2d Mot. to Compel Discovery Responses (Doc. 34) at 9. Defendant 

speculates that “such documents are likely to reflect the government’s views concerning 

whether the previous permit—the one issued to Dr. Warren—was sufficiently specific to 

clearly prohibit the conduct No More Deaths volunteers were known to engage in.” Id. at 

10. Defendant suggests that this information is relevant to his entrapment by estoppel 

defense. Id.

 Defendant’s mere speculation is insufficient to support his discovery request. 

Moreover, the Government’s revision of the permit application bears no relationship to 

Defendant’s assertion that he was acting under a belief that the alleged violation of his 

previously issued permit was legal. As such, Defendant’s request will be denied. 

III. CONCLUSION 

Based upon the foregoing, the Court finds it appropriate Defendant’s Second 

Motion to Compel Discovery Responses (Doc. 34) for the Government to disclose the 

 

938 (9th Cir. 1992). 
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text messages disclosed in Defendant’s felony case, as well as the Deighan matter; 

however, the remainder of Defendant’s requests will be denied. Accordingly, IT IS 

HEREBY ORDERED that Defendant’s motion (Doc. 34) is GRANTED in part and 

DENIED in part. 

 Dated this 19th day of July, 2018.