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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-BGM

MOTION FOR DISCOVERY INTO 

SELECTIVE ENFORCEMENT

Defendant Scott Daniel Warren, through his pro bono counsel, requests this Court 

to order the Government to disclose any and all information related to his claim that the 

United States Fish and Wildlife Service selectively enforced the law by referring his case 

for prosecution in response to Dr. Warren’s exercise of his First Amendment right to freely 

associate with the humanitarian organization No More Deaths. Defendant seeks all 

discovery relevant to his selective enforcement claim within the Government’s knowledge 

and control, including but not limited to the following: 

(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,

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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 

enforcement action taken against any person for allegedly driving a motor 

vehicle off of 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, 

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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.

Following the Government’s disclosure of the above items, and after Defendant has 

had a reasonable opportunity to review the materials, Defendant reserves the right to seek 

additional disclosure to develop his claim of selective enforcement. This motion is 

supported by and specifically incorporates the accompanying Memorandum of Points and 

Authorities.

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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

On June 1, 2017, an officer of the U.S. Fish and Wildlife Service (“FWS”) stopped 

Dr. Warren while he was conducting humanitarian work in the Cabeza Prieta National 

Wildlife Refuge, on behalf of the organization No More Deaths (“NMD”). Dr. Warren 

received a verbal warning for unauthorized driving in the wilderness, but FWS did not take 

any further action against Dr. Warren at that time. Over the next several months, however, 

FWS coordinated with Border Patrol agents to actively target NMD volunteers and 

interfere with their humanitarian operations. FWS and Border Patrol officials (1) regularly 

communicated about NMD’s presence in the refuge, (2) exchanged text messages referring 

to NMD volunteers as “bean droppers” and (3) celebrated the arrest of one volunteer. The 

escalating tensions between NMD on the one hand, and FWS and Border Patrol on the 

other, culminated in FWS’s decision to refer Dr. Warren and other NMD volunteers for 

criminal prosecution. 

Over six months later, on December 6, 2017, the Government charged Dr. Warren 

with Operating a Motor Vehicle in a Wilderness Area under 50 C.F.R. § 35.5 and

Abandonment of Property under 50 C.F.R. § 27.93, based on the June 1, 2017 incident. 

Information received through a Freedom of Information Act request indicates that over the 

past three years, FWS has not referred any individuals for criminal prosecution who 

violated refuge regulations in Cabeza Prieta, except for NMD volunteers. In light of the 

available information concerning FWS’s enforcement practices, together with the evidence 

that FWS actively coordinated with Border Patrol to target NMD volunteers and interfere 

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with their humanitarian mission, Defendant has made an initial showing that his treatment 

by FWS (1) had a discriminatory effect, and (2) was motivated by discriminatory intent. 

Accordingly, this Court should order disclosure of the items listed above and any other 

materials relevant to Defendant’s selective enforcement claim.

II. STATEMENT OF FACTS

NMD is a humanitarian aid organization formed by a coalition of groups dedicated 

to ending death and suffering of migrants in Mexico-US borderlands. See “About No More 

Deaths,” http://forms.nomoredeaths.org/about-no-more-deaths/. Dr. Warren is an active 

volunteer with NMD, working with the organization to prevent migrants from dying during 

their journey. Often, this work takes the form of venturing into remote desert areas to place 

emergency water and food in areas migrants frequently traverse. Humanitarian volunteers 

also search for migrants who are lost in the area and, more often, recover the bodies of 

people who have died on the journey. 

Much of the lifesaving work of NMD volunteers must of necessity be carried out in 

the Cabeza Prieta National Wildlife Refuge. Over the past several years, the bodies of 

scores of people who died after crossing the border have been recovered in the refuge. In 

2017 alone, some thirty-two sets of human remains were found there, according to the Pima 

County Office of the Medical Examiner.1

 1 Rory Caroll, Eight activists helping migrants cross brutal desert charged by U.S. 

government, THE GUARDIAN, Jan. 24, 2018, at https://www.theguardian.com/usnews/2018/jan/24/us-immigration-activists-arizona-no-more-deaths-charged.

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Much of the Cabeza Prieta refuge consists of a designated “Wilderness Area.” While 

the public is permitted to hike in these areas, environmental regulations strictly limit the 

use of motor vehicles. 50 C.F.R. § 35.5. In the refuge, a road, known as the Charlie Bell 

Road, runs west from Ajo to the Growler Mountains, where, at an area known as Charlie 

Bell Pass, it enters the designated “Wilderness Area” and becomes an “administrative 

road,” or road generally authorized for vehicle travel only by government agents.

On April 28, 2017, NMD representatives met with officials from FWS to discuss 

the mutual goal of saving lives within Cabeza Prieta. (Exhibit 1 [filed under seal], FWS

Memo re Meeting with NMD). According to a memo authored by an FWS official, NMD 

requested permission from FWS to drive on administrative roads for the purpose of 

conducting search and rescue operations, recovering human remains, and placing 

humanitarian supplies within the refuge. FWS denied the requests. (Exhibit 1, at 2).

A little over one month later, and despite the ongoing discussions between FWS and 

NMD, FWS actively interfered with NMD’s humanitarian relief efforts in Cabeza Prieta. 

On June 1, 2017, FWS officer Jose Luis Valenzuela located a pickup truck along the 

Charlie Bell Road, 2.32 miles into the “Wilderness Area” in the Growler Valley. He also 

observed jugs of water and canned food both near the truck and elsewhere in the refuge. 

The truck, which the officer quickly learned was registered to the Unitarian Universalist 

Church of Tucson, was claimed by a group of four individuals, including Dr. Warren. They 

identified themselves as NMD volunteers and explained that they were there performing 

humanitarian efforts. All of the volunteers had valid visitor permits for the refuge, which 

they showed to the FWS officer upon request. When Dr. Warren admitted to driving the 

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pickup truck, the officer informed him he had violated the regulations prohibiting 

unauthorized vehicles in the wilderness, and that he “may be receiving a violation citation 

in the mail, pending further investigation[.]” (Exhibit 2, FWS Report for Incident 95732)

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Over the course of summer 2017, both FWS and the Border Patrol ramped up their 

efforts to crack down on NMD’s relief work. On June 15, 2017, just two weeks after Dr. 

Warren’s interaction with FWS in Cabeza Prieta, NMD’s humanitarian operations were 

further disrupted when Border Patrol raided an NMD campsite providing medical care to 

migrants in distress, resulting in the arrest of four suspected undocumented immigrants. 

See Fernanda Santos, Border Patrol Raids Humanitarian Aid Group Camp in Arizona, NY

TIMES, June 16, 2017. When asked about the raid, one Border Patrol agent was angry and 

defensive, indicating that NMD had “gone too far” by generating negative press against 

the law enforcement agency. (Exhibit 3, Declaration of Robin Reineke, at 3, ¶ 9).

Two weeks later, on July 1, 2017, FWS changed the permit requirements for access 

to the Cabeza Prieta refuge to specifically prohibit the “abandonment of personal property 

or possessions,” including but not limited to “water bottles, water containers, food, food 

items, food containers[sic] blankets, clothing, footwear, [and] medical supplies”—in other 

words, the very type of humanitarian supplies that FWS knew NMD regularly places in the 

refuge for use by individuals in distress. (Exhibit 4, Acknowledgement of Danger and 

 2 Although this report, obtained via FOIA request, redacts the defendant’s name, a 

comparison with the affidavit filed by the Government (Doc. 6) clearly establishes that it 

describes the incident at issue in this case.

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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, at 2, Sec. 13). 

Approximately two weeks after that, on July 19, 2017, FWS officer Valenzuela 

coordinated with Border Patrol to intercept a group of four NMD volunteers who were 

performing a search and rescue operation in the Cabeza Prieta refuge. (Exhibit 5, FWS

Report for Incident 97720, at 1-2). Upon investigation by the Pima County Sheriff’s Office, 

one volunteer was arrested and charged for damaging a Department of Homeland Security 

camera. (Id. at 2). FWS gave the volunteers verbal warnings for entering the refuge without 

permits and operating a motor vehicle in a designated wilderness area, but FWS took no 

further action against the volunteers at that time. (Id., at 2-4). 

FWS and Border Patrol continued to coordinate their efforts to target NMD 

volunteers and interfere with their humanitarian work. On July 28, 2017, FWS official 

Margo Bissel and Border Patrol agent John Marquez exchanged text messages about their 

agencies’ actions against NMD. Bissel wrote to Marquez that NMD has “been very quiet

since we started action against them . . . Until last week.” (Exhibit 6 [filed under seal], Text

messages between Bissel and Marquez, at 1). Referring to the July 19 incident, Bissel 

asked, “Did you hear about the group at Charlie Bell Well?” Agent Marquez responded, 

“Oh yeah. That really sparked everything back up.” (Id., at 1-2). Bissel replied, “Love it. 

One lady was arrested, trying to tear the camera off! Oh my gosh!!” (Id., at 2).

On July 31, 2017, three days later, Agent Marquez sent Bissel a text message asking 

her to let him know if any more NMD volunteers came to the Cabeza Prieta refuge, 

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referring to the volunteers as “bean droppers.” (Exhibit 6, at 3). Bissel responded that eight 

volunteers had come the previous week to obtain permits for the refuge, but three of them

were on the “do-not-issue list.” (Id., at 3-4). “They acted so surprised,” she wrote, followed 

by an unamused face emoji.3 “Oh sweet,” Agent Marquez replied. (Id., at 4). Bissel then 

wrote, “Heard we are pressing charges against Scott Warren,” to which Marquez 

responded, “Yeah I heard that about Scott Warren too I think.” (Id.).

Two more weeks passed, and on August 13, 2017, an FWS officer stopped four 

more NMD volunteers in Cabeza Prieta while they were conducting a humanitarian 

supplies drop. (Exhibit 7, FWS Report for Incident 98844, at 1-2). While the FWS officer 

did not issue any citations against the volunteers at that time, he indicated in his written 

report concerning the incident that the Assistant United States Attorney would be contacted 

for “further guidance.” (Id., at 2).

On October 13, 2017, Bissel wrote to Agent Marquez, “They’re baaaack....! A ton 

of No More Deaths last two days in here getting permits.” (Exhibit 6, at 7). “Sweet,” 

Marquez responded, and asked for the volunteers’ names. (Id.).

On December 6, 2017, the Government filed an Information (Doc. 1) charging Dr. 

Warren, pursuant to 16 U.S.C. § 668dd(c) and (f)(2) (the National Wildlife Refuge 

Administration Act), with two misdemeanor violations: 50 C.F.R. § 35.5, Operating a 

Motor Vehicle in a Wilderness Area, and 50 C.F.R. § 27.93, Abandonment of Property. 

All of the charges stem from Defendant’s humanitarian aid activities on behalf of NMD in 

 3 See https://emojipedia.org/unamused-face/.

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the Cabeza Prieta refuge on June 1, 2017. On the same day the Government filed charges 

against Dr. Warren, it also filed charges against eight other NMD volunteers in relation to 

the incidents that occurred in Cabeza Prieta on July 19, 2017 and August 13, 2017.

The decision by FWS, in concert with Border Patrol, to actively target and pursue 

criminal charges against Dr. Warren and other NMD volunteers breaks from years of 

precedent in which individuals violating refuge regulations were simply given verbal 

warnings or issued written citations, but were not referred for criminal prosecution. 

Information obtained through the Freedom of Information Act (“FOIA”) reveals that 

between 2015 and March 2018, there were fourteen incidents in which FWS encountered 

individuals in Cabeza Prieta and issued verbal warnings for conduct ranging from 

unauthorized driving in the wilderness to the unauthorized discharge of a firearm in the 

refuge. (Exhibit 8, FWS Reports for Incidents 64539, 64560, 67397, 61029, 80952, 85500, 

97809, 98844, 105669, 105814, 106441, 106815). During this period, the only individuals 

who were referred for prosecution by FWS were NMD volunteers. No hunters, bird 

watchers, hikers or any other class of persons were referred for prosecution besides NMD 

volunteers. Significantly, volunteers with another humanitarian organization, Aguilas Del 

Desierto, were issued written citations for unauthorized driving on an administrative road 

while searching for migrants, but FWS did not refer those individuals for criminal 

prosecution. (Exhibit 9, FWS Report for Incident 80952). 

II. RELEVANT LEGAL STANDARDS

A. Selective enforcement of criminal laws violates the Equal Protection

Clause of the Fifth Amendment.

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The Equal Protection Clause of the Fifth Amendment prohibits the federal 

government from selectively enforcing criminal laws based on a discriminatory motive. 

United States v. Armstrong, 517 U.S. 456, 464-65 (1996). This prohibition applies both to 

a prosecutor’s charging decisions and to the activities of law enforcement agencies. 

Armstrong, 517 U.S. at 464-65; Whren v. United States, 517 U.S. 806 (1996) (“the 

Constitution prohibits selective enforcement of the law based on considerations such as 

race”); United States v. Davis, 793 F.3d 712, 720 (7th Cir. 2015) (selecting targets for sting 

operations based on race would violate the Constitution).

“Substantive claims of selective prosecution and selective enforcement are 

generally evaluated under the same two-part test,” requiring a showing of discriminatory 

effect and discriminatory intent. United States v. Washington, 869 F.3d 193, 214 (3d Cir. 

2017) (emphasis in original); Armstrong, 517 U.S. at 465-66; Lacey v. Maricopa County, 

693 F.3d 896, 920 (9th Cir. 2012). To demonstrate discriminatory effect, a “claimant must 

show that similarly situated individuals [] were not prosecuted” for the same conduct. 

Armstrong, 517 U.S. at 465. To establish discriminatory intent, he must demonstrate that 

“the government undertook a particular course of action ‘at least in part because of’ its 

adverse effects upon a particular group or person.” United States v. Turner, 104 F.3d 1180, 

1184 (9th Cir. 1997) (quoting Wayte v. United States, 470 U.S. 598, 610 (1985)).

A selective enforcement claim may be based on the defendant’s membership in a 

suspect class, or the exercise of protected statutory or constitutional rights. Wayte, 470 U.S. 

at 608; United States v. Kidder, 869 F.2d 1328, 1336 (9th Cir.1989). There is no question 

that the doctrine extends to government retaliation for the exercise of a First Amendment 

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right. Wayte, 470 U.S. at 604-610; Hartman v. Moore, 547 U.S. 250, 256 (2006) (“the law 

is settled that as a general matter the First Amendment prohibits government officials from 

subjecting an individual to retaliatory actions, including criminal prosecutions, for 

speaking out”); United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972) (“Steele is 

entitled to an acquittal if his evidence proved that the authorities purposefully discriminated 

against those who chose to exercise their First Amendment Rights.”); Fedorov v. United 

States, 600 A.2d 370, 382 (D.C. 1991) (“The government—absent an adequate 

explanation—is not free to punish more severely those . . . who are political demonstrators, 

while excusing those who . . . are not making a political statement.”).

Discrimination based on the exercise of protected First Amendment activities is 

unlawful, regardless of whether the activities are conducted “as an individual, or . . . as a 

member of a group unpopular with the government.” United States v. Falk, 479 F.2d 616, 

620 (7th Cir. 1973). Thus, the government may not pursue enforcement actions as a means 

to chill protected speech or curb an individual’s right to freely associate with others. C.E. 

Carlson, Inc. v. Sec. Exch. Comm'n, 859 F.2d 1429, 1437 (10th Cir. 1988) (“To move 

forward on their selective prosecution theory, petitioners were required to show that . . . 

their selection for enforcement was deliberately based on an unjustifiable consideration, in 

this case the exercise of first amendment rights to freedom of speech and association”); 

United States v. Steele, 461 F.2d at 1152 (“An enforcement procedure that focuses upon 

the vocal offender is inherently suspect, since it is vulnerable to the charge that those 

chosen for prosecution are being punished for their expression of ideas, a constitutionally 

protected right.”). See also Boy Scouts of Am. v. Dale, 530 U.S. 640, 647 (2000) (“implicit 

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in the right to engage in activities protected by the First Amendment is a corresponding 

right to associate with others in pursuit of a wide variety of political, social, economic, 

educational, religious, and cultural ends”) (quoting Roberts v. United States Jaycees, 468 

U.S. 609, 622 (1984)).

B. Discovery standard for selective enforcement claims

Because Defendant asserts a claim of selective enforcement, based on the conduct 

of FWS, he need not satisfy the heightened standard for discovery applicable to selective 

prosecution claims. Rather, under the framework applied in the Seventh Circuit, the Court 

may authorize initial discovery to develop a selective enforcement claim based solely on a 

showing of disparity in the prosecution of similar offenses. Davis, 793 F.3d at 722. 

Alternatively, under the test recently established by the Third Circuit, the Court may order

discovery upon a showing of (1) “some evidence of discriminatory effect,” including 

statistical evidence or its equivalent, and (2) a “reasonable inference of discriminatory 

intent.” Washington, 869 F.3d at 220-2.

In Armstrong, the Supreme Court held that to obtain discovery for a selective 

prosecution claim, a defendant must produce “some evidence tending to show the existence 

of the essential elements” of the claim—discriminatory effect and discriminatory intent. 

517 U.S. at 468 (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2nd Cir. 1974)).

To demonstrate discriminatory effect at this initial stage, the defendant must make “a 

credible showing of different treatment of similarly situated persons.” Id. at 470. This 

rigorous standard reflects the “presumption that a prosecutor has not violated equal 

protection,” a presumption that flows from the special role that United States Attorneys 

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play helping the President to “discharge his constitutional responsibility to ‘take Care that 

the Law be faithfully executed.’” Id. at 464-65. 

As recognized by the Third and Seventh Circuits, the distinction between selective 

prosecution and selective enforcement claims is crucial. In Davis, an en banc panel of the 

Seventh Circuit held that Armstrong’s demanding standard does not apply to discovery

requests for selective enforcement claims. 793 F.3d at 721. The Court explained that “the 

sort of considerations that led to the outcome in Armstrong do not apply to a contention” 

of selective enforcement because law enforcement agents “are not protected by a powerful 

privilege or covered by a presumption of constitutional behavior.” Id. at 720-21.

Unlike prosecutors, agents regularly testify in criminal cases, and their 

credibility may be relentlessly attacked by defense counsel. They also may 

have to testify in pretrial proceedings, such as hearings on motions to 

suppress evidence, and again their honesty is open to challenge. Statements 

that agents make in affidavits for search or arrest warrants may be contest, 

and the court may need their testimony to decide whether if shorn of 

untruthful statements the affidavits would have establish probable cause. 

Agents may be personally liable for withholding evidence from prosecutors 

and thus causing violations of the constitutional requirement defendants have 

access to material, exculpatory evidence.

Id. 

While the Seventh Circuit did not specify a discovery standard for selective 

enforcement claims, it found the district court had a “legitimate reason” for ordering

discovery based solely on evidence of racial disparity in the prosecution of phony stash 

house cases. 793 F.3d at 722. Specifically, in the 20 stash-house stings prosecuted in the 

district, 75 out of 94 defendants were black. Id. at 715. In light of this information, the 

Seventh Circuit directed the district court to proceed with discovery in “measured steps,”

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first by inquiring “whether there is any reason to believe that race played a role in the 

investigation[.]” Id. at 722 (emphasis added). The Court instructed the judge to “make 

limited inquiries, perhaps including affidavits or testimony of the case agents, to determine 

whether forbidden selectivity occurred or plausibly could have occurred.” Id. at 723

(emphasis added). “If the initial inquiry gives the judge reason to think” that selective 

enforcement occurred, the court could then require disclosure of additional information, 

including the targeting criteria for criminal investigations. Id. at 722-723.

In Washington, the Third Circuit adopted the “core rationale” of Davis, observing 

that “the law supports greater flexibility when the discretionary decisions of law 

enforcement, rather than those of prosecutors, are targeted by a defendant’s request for 

discovery.” 869 F.3d at 197. The Court held that “a district court may exercise its discretion 

to grant limited discovery” on a selective enforcement claim even if the defendant “has not 

otherwise met his or her full burden under Armstrong/Bass.” Id. As to the standard, the 

Court explained that although a defendant must present “some evidence” of discriminatory 

effect, the proffer may consist of statistical evidence “or its equivalent,” and “may be based 

in part on patterns of prosecutorial decisions (as was the case in Davis) even if the 

underlying challenge is to law enforcement decisions.” Id., at 220-221 (emphasis in 

original). Distinct from the Armstrong standard, a defendant need not show that “similarly 

situated persons of a different race or equal protection classification were not arrested or 

investigated by law enforcement.” Id., at 221. Nor must the defendant provide “some 

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evidence” of discriminatory intent. Id. Rather, “the proffer must be strong enough to 

support a reasonable inference of discriminatory intent and non-enforcement.” Id.

Other courts have approved of Davis’s distinction between selective enforcement 

and selective prosecution, particularly in the context of discovery requests. See United 

States v. Hare, 820 F.3d 93, 101 (4th Cir. 2016) (noting the “cogent” reasoning of Davis

but not reaching issue); United States v. Mumphrey, 193 F. Supp 3d 1040, 1048 (N.D. Cal. 

2016) (“[a]lthough the Court agrees with the reasoning in Davis, it need not resolve [in this 

case] this issue whether Armstrong applies with full force to claims of selective 

enforcement.”). Others have criticized the application of Armstrong requirements to 

selective enforcement claims, “noting their seeming impossibility.” United States v. 

Jackson, No. 16cr2362 MCA, 2018 U.S. Dist. LEXIS 21067, at *14 (D.N.M. Feb. 7, 2018)

(citing cases); United States v. Mesa-Roche, 288 F. Supp. 2d 1172, 1185 (D. Kan. 2003) 

(“[I]mposing the similarly situated requirement makes the selective enforcement claim 

impossible to prove. . . How could a defendant, without discovery, ever make such a 

showing?”); United States v. Paxton, No. 13 CR 103, 2014 U.S. Dist. LEXIS 56857, 2014 

WL 1648746, at *4 (N.D. Ill. Apr. 17, 2014) (“In selective enforcement cases . . . 

identifying the class of [similarly situated] individuals is a much more burdensome 

endeavor, and one that may prove insurmountable.”); United States v. Laneham, No. CIV 

16-2930 JB, 2017 U.S. Dist. LEXIS 176486, at *78, n.14 (D.N.M. Oct. 25, 2017) 

(following binding Tenth Circuit precedent applying Armstrong to selective enforcement 

claims but noting “[i]n practice, however, Armstrong’s discovery standard may be most 

appropriate for selective prosecution cases than for selective enforcement cases.”)

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The Ninth Circuit has not addressed whether Armstrong applies to selective 

enforcement claims. However, given the “cogent” reasoning of Davis and Washington, this 

Court should follow the Seventh and Third Circuits and find that Armstrong does not apply 

to Defendant’s discovery request. Accordingly, the Court should authorize discovery if Dr. 

Warren makes an initial showing of disparity in the criminal prosecution of refuge 

regulation violations, Davis, 793 F.3d at 722, or alternatively, if he shows (1) “some 

evidence of discriminatory effect,” which may be based on charging decisions, and (2) a 

“reasonable inference of discriminatory intent.” Washington, 869 F.3d at 220-22.

III. DEFENDANT HAS SATISFIED THE DISCOVERY STANDARD FOR 

SELECTIVE ENFORCEMENT CLAIMS UNDER DAVIS AND 

WASHINGTON.

A. Defendant has provided “some evidence” of discriminatory effect.

To obtain discovery under Davis, all that is required is a preliminary showing of 

disparity in prosecutorial charging decisions, even when the claim is selective enforcement

rather than prosecution. Davis, 793 F.3d at 722. This requirement is essentially the same 

as the first prong of the Third Circuit’s discovery standard under Washington, 869 F.3d at 

220-21—“some evidence” of discriminatory effect—which may be based on patterns of 

prosecutorial decisions. Furthermore, at this initial stage, a defendant need not show that 

similarly situated persons were not arrested or investigated. Id.

Dr. Warren has easily met this requirement. Between 2015 and March 2018, there 

were fourteen incidents in Cabeza Prieta in which FWS issued verbal warnings or written 

citations to individuals for violating refuge regulations. (Exhibits 2, 7, 8). The only 

individuals referred for prosecution by FWS were NMD volunteers. Under Davis and 

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Washington, this is sufficient to establish “some evidence” of discriminatory effect, as it 

demonstrates that the only persons targeted for enforcement are members of the protected 

class. Davis, 793 F.3d at 719 (permitting discovery where “the overwhelming majority of 

the defendants named [were] individuals of color”); Mumphrey, 193 F. Supp. 3d at 1059 

(explaining that to obtain discovery under Davis, “the defendant can simply rely on 

statistics showing, e.g., that a significant majority of persons targeted by law enforcement 

is made up of members of a protected class”). 

Furthermore, although Defendant is not required to demonstrate the preferential 

treatment of similarly situated individuals at this initial stage, it is highly significant that 

FWS did not seek criminal charges against members of another humanitarian organization, 

Aguilas Del Desierto, who received written citations for unauthorized driving on 

administrative roads while conducting humanitarian work. (Exhibit 9). These individuals 

are similarly situated to Dr. Warren because they were engaging in similar conduct under 

similar circumstances, but they were not part of the organization being actively targeted by 

FWS. Thus, even under the more rigorous Armstrong standard, Defendant has 

demonstrated “some evidence” of discriminatory effect by showing the preferential 

treatment of similarly situated individuals. Armstrong, 517 U.S. at 468.

B. Defendant has demonstrated a “reasonable inference” of 

discriminatory intent.

Dr. Warren also easily satisfies the second prong of the Washington discovery

standard—a “reasonable inference of discriminatory intent.” 869 F.3d at 221. The fact that 

the only individuals FWS referred for criminal prosecution for violating refuge regulations 

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are NMD volunteers is itself sufficient to raise a reasonable inference of discriminatory 

intent. Murphey, 193 F. Supp at 1063 (“As an initial matter, the fact that 100% of all the 

OSS defendants are African American is probative of discriminatory intent, particularly 

when the relevant population is not 100% African American.”); United States v. Tuitt, 68 

F. Supp. 2d 4, 10 (D. Mass. 1999) (under Armstrong, a “[a] discriminatory effect which is 

severe enough can provide sufficient evidence of discriminatory purpose”). See also United 

States v. Aguilar, 883 F.2d 662, 706 (9th Cir. 1989) (“If all other things are equal, the 

prosecution of only those persons exercising their constitutional rights gives rise to an 

inference of discrimination.”).

Discriminatory intent may also be inferred from the sequence of events beginning 

with the meeting between NMD and FWS officials on April 28, 2017 and culminating in 

the extraordinary decision to file criminal charges against Dr. Warren on December 6, 

2017. Dr. Warren was not stopped by FWS and prevented from conducting his 

humanitarian work in Cabeza Prieta until after the April 2017 meeting where FWS refused 

to grant NMD access to administrative roads. Over the following months, FWS, in 

coordination with Border Patrol, ramped up its efforts against NMD, interrupting the 

humanitarian work of two groups of volunteers in July and August 2018. During this 

period, an FWS official regularly contacted a Border Patrol agent about NMD’s presence 

in Cabeza Prieta, and the two celebrated and joked about the arrest of an NMD volunteer 

and the denial of permits to volunteers. (Exhibit 6). Cf. United States v. Mumphrey, 193 F. 

Supp. 3d 1040, 1064 (N.D. Cal. 2016) (race-based comments and conduct by law 

enforcement probative of discriminatory intent); Busby v. City of Orlando, 931 F.2d 764, 

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781-82 (11th Cir. 1991) (in employment discrimination case, concluding that 

racially derogatory jokes are evidence of discriminatory intent). This information strongly 

suggests that FWS referred Dr. Warren’s case for prosecution “at least in part” because of 

his association with NMD. United States v. Turner, 104 F.3d at 1184. Accordingly, 

Defendant is entitled to discovery further develop his selective enforcement claim.

CONCLUSION

The available information indicates that FWS has never taken criminal enforcement 

action against anyone for violating refuge regulations in Cabeza Prieta, except for those 

associated with NMD. FWS’s decision to refer Dr. Warren and other NMD volunteers for 

criminal prosecution was precipitated by escalating tensions between NMD, FWS, and 

Border Patrol, demonstrated not only by the series of targeted enforcement actions that 

occurred in the summer of 2017, but also by the disparaging text messages exchanged 

between FWS and Border Patrol officials involved in the enforcement actions. Based on 

all the relevant circumstances and available information, Dr. Warren has made a 

preliminary showing that FWS referred his case for criminal prosecution in response to the 

exercise of his First Amendment right to freely associate with NMD to carry out the 

mission of saving migrant lives in the desert. Accordingly, Defendant requests this Court 

to issue an order requiring the Government to disclose any and all information related to 

his selective enforcement claim, including but not limited to Items (1) through (9) above.

RESPECTFULLY SUBMITTED this 14th day of September, 2018.

By /s/ Amy P. Knight

Gregory J. Kuykendall

Amy P. Knight

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531 S Convent Avenue

Tucson, AZ 85701

Attorneys for Defendant Scott 

Daniel Warren

CERTIFICATE OF SERVICE

I certify that on September 14th, 2018, 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

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