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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,

Defendants. 

No. MJ-17-0341-TUC-BPV 

ORDER 

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

Dismiss Charges Pursuant to the Religious Freedom Restoration Act (Doc. 58) ; Motion to 

Dismiss Charges for Violation of International Law (Doc. 59); and Motion for Discovery 

into Selective Enforcement (Docs. 47 & 60). The Government has responded to each 

motion, and Defendant replied. Govt.’s Response to Def.’s Mot. to Dismiss Charges 

Pursuant to the Religious Freedom Restoration Act (Doc. 65); Def.’s Reply in Support of 

Mot. to Dismiss Charges Pursuant to the Religous [sic] Freedom Restoration Act (Doc. 

72); Govt.’s Response to Def.’s Mot. to Dismiss Charges for Violation of Int’l Law (Doc. 

67); Def.’s Reply in Support of Mot. to Dismiss Charges for Violation of Int’l Law (Doc. 

70); Govt.’s Response to Def.’s Mot. for Discovery into Selective Enforcement (Doc. 66); 

Def.’s Reply to Govt.’s Response to Mot. for Discovery into Selective Enforcement (Doc. 

71). 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).
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 The Court was recently reassigned to preside over these cases. These cases raise 

issues similar to those previously considered by this Court in United States v. Warren, Case 

Number CR-18-00223-TUC-RCC (BPV). The Parties have adequately presented the facts 

and legal arguments in their briefs and supporting documents, and the decisional process 

would not be significantly aided by oral argument. 

I. FACTUAL BACKGROUND 

 The Court has previously outlined the relevant factual background in the May 29, 

2018 Order (Doc. 35). Those recitations are adopted herein by reference. 

II. ANALYSIS

A. Federal Rules of Criminal Procedure 12

 Rule 12, Federal Rules of Criminal Procedure provides that “[a] party may raise by 

pretrial motion any defense, objection, or request that the court can determine without a 

trial on the merits.” Fed. R. Crim. P. 12(b)(1). “A pretrial motion is generally capable of 

determination before trial if it involves questions of law rather than fact.” United States v. 

Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986) (citations and quotations 

omitted). “[A] district court may make preliminary findings of fact necessary to decide the 

questions of law presented by pre-trial motions so long as the court’s findings on the motion 

do not invade the province of the ultimate finder of fact.” Id. (citations omitted). “As the 

ultimate finder of fact is concerned with the general issue of guilt, a motion requiring 

factual determinations may be decided before trial if trial of the facts surrounding the 

commission of the alleged offense would be no assistance in determining the validity of 

the defense.” Id. (citations omitted); see also United States v. Schafer, 625 F.3d 629, 635 

(9th Cir. 2010). Accordingly, “the district court must decide the issue raised in the pretrial 

motion before trial if it is ‘entirely segregable’ from the evidence to be presented at trial.” 

Schortt Accountancy Corp., 785 F.2d at 1452 (citations omitted). “If the pretrial claim is 

substantially founded upon and intertwined with evidence concerning the alleged offense, 
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the motion falls within the province of the ultimate finder of fact and must be deferred.” 

Id. (quotations and citations omitted). As such, “a Rule 12(b) motion to dismiss is not the 

proper way to raise a factual defense.” United States v. Nukida, 8 F.3d 665, 669 (9th Cir. 

1993) (citations omitted). “[T]he unavailability of Rule 12 in determination of general 

issues of guilt or innocence . . . helps ensure that the respective provinces of the judge and 

jury are respected, . . . and that the facts are fully developed before disposition of the case.” 

Id. at 670 (citations omitted). 

B. Religious Freedom Restoration Act (“RFRA”) 

 Defendants seek dismissal of the Information “because the Government may not 

prosecute him for exercising his sincerely held religious beliefs in the necessity to provide 

humanitarian aid to fellow human beings in need and recover and honor the dead.” Def.’s 

Mot. to Dismiss Charges Pursuant to RFRA (Doc. 58) at 5. 

 This Court presided over the May 11, 2018 evidentiary hearing in United States v. 

Warren, Case Number CR-18-223-TUC-RCC (BPV), the transcript of which Defendant 

provided with his motion. See Def.’s Mot. to Dismiss Pursuant to RFRA (Doc. 58), 

Exhibit “1.” As the Court observed in that case “No testimony was presented that the 

statutes at issue compelled the Defendant to do anything in violation of his religious 

beliefs.” United States v. Warren, Case No. CR-18-223-TUC-RCC (BPV), Report & 

Recommendation 5/31/2018 (Doc. 81) at 3, adopted by Order 9/17/2018 (Doc. 127). 

Moreover, “[t]he laws at issue are of a general nature that apply to all and do not single 

him or any identifiable group into acting in conflict with their religious beliefs.” Id. “The 

Defendant is at best told not to violate the laws that apply equally to all.” Id. The Court is 

inclined to deny Defendant’s motion in its entirety; however, because Defendant has not 

had the opportunity to testify in this case, this denial will be without prejudice to re-assert 

the defense at trial. 

C. International Law

 Defendant seeks dismissal of the indictment, alleging that the “Protocol Against 

Smuggling of Migrants by Land, Sea, and Air renders their conduct non-criminal. Defs.’ 
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Mot. to Dismiss Charges for Violation of International Law (Doc. 59) at 5–11. 

 The stated purpose of the Protocol Against the Smuggling of Migrants by Land, Sea 

and Air, Supplementing the United Nations’ Convention Against Transnational Organized 

Crime (“the Protocol) is “to prevent and combat the smuggling of migrants, as well as to 

promote cooperation among States Parties to that end, while protecting the rights of 

smuggled migrants.” Def.’s Mot. to Dismiss Charges for Violation of International Law 

(Doc. 59), The Protocol (Exh. “1”), Art. 2. “Smuggling of migrants” is defined as “the 

procurement in order to obtain, directly or indirectly, a financial or other material benefit, 

of the illegal entry of a person into a State Party of which the person is not a national or a 

permanent resident.” Id., Exh. “1” at Art. 3, subsec. (a). “Th[e] Protocol shall apply, 

except as otherwise stated herein, to the prevention, investigation and prosecution of the 

offences established in accordance with article 6 of this Protocol, where the offences are 

transnational in nature and involve an organized criminal group, as well as to the protection 

of the rights of persons who have been the object of such offences.” Id., Exh. “1” at Art. 

4. The Protocol mandates “[e]ach State Party” to “adopt such legislative and other 

measures as may be necessary to establish as criminal offences, when committed 

intentionally and in order to obtain, directly or indirectly, a financial or other material 

benefit” various activities related to the smuggling of migrants, including providing false 

documents; acting as an accomplice; and acts which endanger or degrade migrants.1

 Id., 

Exh. “1” at Art. 6, subsecs. 1–3. Article 6 concludes with the following admonition: 

“Nothing in this Protocol shall prevent a State Party from taking measures against a person 

whose conduct constitutes an offence under its domestic law.” Id., Exh. “1” at Art. 6, 

subsec. 4. The Protocol also provides for the return of smuggled migrants, and directs that 

it shall not be construed to “affect the other rights obligations and responsibilities of States 

and individuals under international law, including international humanitarian law and 

international human rights law” prior to the Protocol’s authorization. Def.’s Mot. to 

 

1

 The Court is broadly summarizing the contents, and nothing herein shall be construed as a limitation on the contents of Article 6. 
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Dismiss Charges for Violation of International Law (Doc. 59), Exh. “1” at Arts. 18 & 19. 

As this Court noted in Defendant’s felony matter, “Article 20 of the Treaty, which provides 

the enforcement mechanism for violations of the Treaty, was not adopted.” United States 

v. Warren, Case No. CR-18-00223-TUC-RCC (BGM), Report & Recommendation 

11/7/2018 (Doc. 134). 

 “[T]reaties are construed more liberally than private agreements, and to ascertain 

their meaning we may look beyond the written words to the history of the treaty, the 

negotiations, and the practical construction adopted by the parties.” Air France v. Saks, 

470 U.S. 392, 396, 109 S.Ct. 1338, 1341, 84 L.Ed.2d 289 (1985) (quoting Choctaw Nation 

of Indians v. United States, 318 U.S. 423, 431–32, 63 S.Ct. 672, 677–78, 87 L.Ed. 877 

(1943)) (alterations in original). “The analysis must begin, however, with the text of the 

treaty and the context in which the written words are used.” Id. (citations omitted).

 Defendant asserts that he is a humanitarian aid worker who is entitled to protection 

from domestic criminal prosecution based on the Protocol. As an initial matter, nothing in 

Defendant’s factual basis suggests that any migrants were smuggled. Moreover, nothing 

in the plain language of the Protocol can be read to suggest that humanitarian aid work is 

a defense to a signatory State Party’s ability to enforce its own domestic law. In fact, the 

Protocol’s plain language reinforces the ability of signatories to enforce their own criminal 

laws. See Defs.’ Mot. to Dismiss Charges for Violation of International Law (Doc. 72), 

Exh. “1” at Art. 6, subsec. 4. Furthermore, the text of the Protocol demonstrates that it is 

not self-executing—the terms of the Protocol anticipate further action, and as such is 

“merely [an] executory agreement[] . . . and ha[s] no effect on domestic law absent 

additional governmental action.” Islamic Republic of Iran v. Boeing Co., 771 F.2d 1279, 

1283 (9th Cir. 1985). Finally, there is nothing in the Protocol to support a private right of 

action by Defendants. See Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 

26 (1975) (delineating four-part test to determine a private right of action including whether 

the Protocol created a federal right in favor of Defendants). 

 Defendant additionally seeks dismissal based upon the Government’s alleged 
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“outrageous conduct.” Defendant alleges a due process violation, because “[i]n bringing 

this case, the Government has flagrantly disregarded its obligations in truly outrageous 

ways.” Def.’s Mot. to Dismiss Charges for Violation of International Law (Doc. 59) at 13. 

As noted, supra, the Protocol is neither self-executing nor does it provide a private right of 

action for Defendant. Moreover, the Government enforcing its own domestic laws 

regarding permits for entrance into a wildlife preserve can hardly be considered 

“outrageous.” Accordingly, Defendant’s motion to dismiss (Doc. 59) is denied. 

D. Selective Enforcement

 Defendant seeks discovery relevant to selective enforcement. See Def.’s Mot. for 

Discovery Into Selective Enforcement (Doc. 60) at 1. Defendant seeks the following 

discovery: 

(1) Any and all information and documentation, including internal communications 

of the United States Fish and Wildlife Service (“FWS”) and communications 

between FWS and any other law enforcement agency, whether oral or written, 

concerning the agency’s investigation of Dr. Warren or other No More Deaths 

volunteers for their humanitarian work in the Cabeza Prieta National Wildlife 

Refuge; 

(2) Any and all internal FWS communications and communications between FWS 

and any other law enforcement agency, including but not limited to the U.S. 

Attorney’s Office and U.S. Border Patrol, whether oral or written, concerning 

the decision to refer Dr. Warren and other NMD volunteers for criminal 

prosecution based on their humanitarian aid work in the Cabeza Prieta refuge; 

(3) Any and all information or documentation, including any communications, 

whether oral or written, concerning any FWS interactions with or investigations 

of any humanitarian aid workers in the Cabeza Prieta refuge, including 

information regarding any verbal warnings, written citations, or prosecution 

referrals involving such individuals; 

(4) All investigative, incident, and/or arrest reports relating to potential or actual 
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enforcement action taken against any person for allegedly driving a motor 

vehicle off a designated public roadway within the Cabeza Prieta National 

Wildlife Refuge between 2014 and 2018, including but not limited to all notes 

and interviews concerning the citation, arrest, and/or referral of such cases for 

prosecution; 

(5) All investigative, incident, and/or arrest reports relating to potential or actual 

enforcement action taken against any person for allegedly abandoning property 

within the Cabeza Prieta National Wildlife Refuge between 2014 and 2018, 

including, but not limited to all notes and interviews concerning the citation, 

arrest, and/or referral of such cases for prosecution; 

(6) All materials related to FWS’s amendment of the Acknowledgement of Danger 

and Release and Hold Harmless Agreement and Permit to Access Barry M. 

Goldwater Range; Cabeza Prieta National Wildlife Refuge; Area A Portion of 

Sonoran Desert National Monument, Sec. 13; 

(7) A copy of all agreements between any government agency and any group or 

individual, including but not limited to the Samaritans, Humane Borders, 

Aguilas del Desierto, and others, governing activities in the Cabeza Prieta refuge 

and/or Barry M. Goldwater Range for any purpose for the past 5 years (including 

special use permits); 

(8) Any materials of any sort relating to policies or practices permitting 

humanitarian aid or search and rescue operations in the Cabeza Prieta refuge 

and/or Barry M. Goldwater Range; and 

(9) Any and all materials related to agreements and/or protocols between 

government agencies and No More Deaths related to access to other government 

managed land areas. 

Def.’s Mot. for Discovery Into Selective Enforcement (Doc. 60) at 1–3. 

“A government entity has discretion in prosecuting its criminal laws, but 

enforcement is subject to constitutional constraints.” Rosenbaum v. City and County of 
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San Francisco, 484 F.3d 1142, 1152 (9th Cir. 2007) (citing Wayte v. United States, 470 

U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). “To prevail on its claim under the 

equal protection clause of the Fourteenth Amendment, a plaintiff must demonstrate that 

enforcement had a discriminatory effect and the police were motivated by a discriminatory 

purpose.” Id. (citations omitted). “To establish a discriminatory effect . . . , the claimant 

must show that similarly situated individuals . . . were not prosecuted.” Id. at 1153 

(quotations and citations omitted) (alterations in original). “To show discriminatory 

purpose, a plaintiff must establish that the decision maker . . . selected or reaffirmed a 

particular course of action at least in part ‘because of,’ not merely ‘in spite of’ its adverse 

effects upon an identifiable group.” Id. (quotations and citations omitted) (alterations in 

original). 

Defendant submitted supplemental authority in support of his motion, urging that 

United States v. Sellers, 906 F.3d 848 (9th Cir. 2018), urging the Court to allow further 

discovery regarding selective enforcement. As an initial matter, in Sellers, the Court was 

concerned that the prosecution of drug dealers was focused on black dealers to the 

exclusion of all others so that there was selective prosecution. In the case before the Court, 

the only people exceeding the scope of their permits and abandoning property are 

associated in some way with “humanitarian groups.” Consequently, the enforcement is not 

selective, but rather against all individuals engaged in this behavior rather than their 

association with any group. Defendant seeks broad discovery that is unwarranted in this 

case. Accordingly, Defendant’s Motion for Discovery Into Selective Enforcement (Doc. 

60) shall be denied. 

 . . . 

III. CONCLUSION 

Based upon the foregoing, the Court finds it appropriate to allow Defendants to urge 

a RFRA defense at the time of trial, but denies all other motions in their entirety. 

Accordingly, IT IS HEREBY ORDERED that: 

1) Defendant’s Motion to Dismiss Charges Pursuant to the Religious Freedom 
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Restoration Act (Doc. 58) is DENIED WITHOUT PREJUDICE; 

2) Defendant’s Motion to Dismiss Charges for Violation of International Law 

(Doc. 59) is DENIED; and 

3) Defendant’s Motion for Discovery into Selective Enforcement (Doc. 60) is 

DENIED. 

 Dated this 27th day of December, 2018.