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ELIZABETH A. STRANGE 

First Assistant United States Attorney 

ANNA WRIGHT

Assistant U.S. Attorney 

NATHANIEL J. WALTERS 

Assistant U.S. Attorney 

State Bar No.: 029708 

405 West Congress, Suite 4800 

Tucson, Arizona 85701-5040 

Telephone: (520) 620-7300 

E-mail: anna.wright@usdoj.gov 

E-mail: nathaniel.walters@usdoj.gov 

Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

 vs. 

Scott Daniel Warren, 

 Defendant.

18-CR-223-TUC-RCC (DTF) 

GOVERNMENT’S RESPONSE TO 

DEFENDANT’S MOTION TO ESTOP 

GOVERNMENT FROM ARGUING 

DIRECTLY CONTRARY POSITIONS 

FOR STRATEGIC GAIN 

The United States of America, by and through its undersigned attorneys, hereby

responds to the defendant’s Motion to Estop Government from Arguing Directly Contrary 

Positions for Strategic Gain. Doc. 170. In essence, having failed to meet his burden to show 

that he had standing to challenge Border Patrol’s search of the Barn, the defendant now 

seeks to limit the evidence and argument the government may present to the jury at trial by 

invoking judicial estoppel. As discussed below, this equitable doctrine is inapplicable in 

this matter, and the Court should deny the defendant’s motion in its entirety because it has 

no basis in fact or law. 

I. Background 

The defendant previously filed a motion to suppress evidence found as a result of a 

search of The Barn in Ajo, Arizona. Doc. 53. In response, the government asserted that the 

defendant did not have standing to challenge any search of the Barn and that, in the 

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alternative, no constitutional violation occurred. Doc. 63. After full briefing, Magistrate 

Judge Bernardo P. Velasco presided over a two-day evidentiary hearing. Docs. 83, 102. 

The evidentiary hearing began with the defendant presenting testimony to meet his burden 

to demonstrate standing, and the government later presented testimony in support of its 

other arguments. Id. At the close of the second day, the parties presented oral arguments, 

and Magistrate Judge Velasco took the motions under advisement. Doc. 102. 

The Report and Recommendation recommending denial of the defendant’s motion 

issued later. Doc. 110. As an initial matter, Magistrate Judge Velasco found that the 

defendant did not have standing to challenge the search of the Barn and then went on to 

find that, even if the defendant did have standing to challenge the search of the Barn, the 

government obtained all of the evidence from the Barn lawfully. Id. 

The defendant objected to the Report and Recommendation, and the government 

responded, again asserting alternative arguments including the defendant’s lack of 

standing. Docs. 120, 121. Having reviewed the objection and response, this Court then 

adopted the Report and Recommendation without further analysis. Doc. 151. 

II. Law of Judicial Estoppel 

“Judicial estoppel ‘is an equitable doctrine invoked by a court at its discretion.’” 

New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting Russell v. Rolfs, 893 F.2d

1033, 1037 (9th Cir. 1990)); see also Ah Quin v. County of Kauai Dep’t of Transp., 733 

F.3d 267, 272 (9th Cir. 2013). The doctrine “precludes a party from gaining an advantage 

by taking one position, and then seeking a second advantage by taking an incompatible 

position.” Whaley v. Belleque, 520 F.3d 997, 1002 (9th Cir. 2008) (internal quotations 

omitted). 

Courts typically consider four factors in determining whether to apply judicial 

estoppel. First, whether the party’s positions are “clearly inconsistent.” United States v. 

Ibrahim, 522 F.3d 1003, 1009 (9th Cir. 2008) (quoting New Hampshire v. Maine, 532 U.S. 

at 750–51). Second, whether the party successfully persuaded the court of its earlier 

position. Id. Third, whether allowing the inconsistent position would give the party “an 

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unfair advantage or impose an unfair detriment on the opposing party.” Id. Fourth, whether 

the party engaged in “chicanery or knowing misrepresentation.” Milton H. Greene 

Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 995 (9th Cir. 2012). 

III. Discussion 

Contrary to the defendant’s arguments, there is no basis for applying judicial 

estoppel in this matter. At its core, the defendant argues that, having failed to meet his 

burden to show standing at the Barn, he should now be allowed to assert at trial that he did 

not have “exclusive or significant authority or control over” the Barn without opposition. 

Doc. 170 at 1. This is absurd and turns the doctrine of judicial estoppel on its head. 

The defendant premises his entire argument on the dubious assertion that he is only 

trying to hold the government to its “argument about the facts” related to standing, “not the 

legal conclusion that [the defendant] had no [standing] at the Barn.” Id. at 6, n. 1. In 

furtherance of that argument, the defendant claims that the government “is now committed 

to its argument that [the defendant] had ‘minimal, frankly surface-level ties to the [B]arn 

in this case.’” Id., quoting RT 7/13/181 at 117:17-18. However, this quotation is incomplete 

and taken out of context. The record clearly shows that the government framed its argument 

in terms of the defendant’s failure to meet his burden and that it was discussing those ties 

necessary to establish standing. See RT 7/13/18 at 117:17-18 (“All in all, the defendant has 

shown he has minimal, frankly surface-level ties to the [B]arn in this case.”). 

In any event, the government’s position regarding the facts related to standing is 

consistent with an assertion that the defendant had “exclusive or significant authority or 

control over the Barn.” Doc. 170 at 3. The government maintained throughout the 

suppression litigation that the defendant failed to show that he was anything more than a 

caretaker of the Barn. See Doc. 63 at 5-6; Doc. 121 at 7-9; RT 7/13/18 at 111:7-9. Whatever 

the defendant means by “exclusive or significant,” a caretaker may exert authority or 

 

1 The transcript of the evidentiary hearing on July 13, 2018, is docketed at Document 107 

in CM/ECF. 

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control without establishing a reasonable expectation of privacy. See United States v.

Reyes-Bosque, 463 F.Supp.2d 1138 (S.D. Cal. 2006), aff’d 596 F.3d 1017 (9th Cir. 2010). 

Thus, the government may consistently argue that the defendant lacked standing to 

challenge the search of the Barn and that he exerted authority or control over the Barn. 

In addition, throughout the suppression litigation the government also argued that, 

even if the defendant had standing, the search of the Barn was constitutional. See Doc. 63 

at 6-13; Doc. 121 at 10-13; RT 7/13/18 at 117:24-118:1, 122:25-123:1, 124:1-24. The 

government prevailed on this argument as well, both in the Report and Recommendation 

and the Court’s Order. See Docs. 110, 151. Thus, the defendant’s claim that the 

government’s argument about the facts related to standing was necessary “to win a crucial 

pretrial motion” is flatly contradicted by the record in this case. 

Judicial estoppel is appropriate only where a party’s change in position creates the 

perception that a court was misled and risks inconsistent court determinations. See New 

Hampshire v. Maine, 532 U.S. at 750-51. Here, there is no risk of inconsistent 

determinations since the Court clearly found that, even if the defendant met his burden as 

to standing, his motion to suppress would still fail. As such, the defendant cannot show 

that allowing the government to argue that he exerted authority or control over the Barn 

would give the government an unfair advantage. In fact, applying judicial estoppel in the 

manner requested by the defendant would unfairly work to the advantage of the defendant 

and the detriment of the government, because the defendant has already testified 

inconsistently about his ties to the Barn. See RT 6/14/182 at 36:18-22, 38:21-23; contra RT 

6/14/18 at 70:9-15, RT 5/11/183

 at 56:23-57:4, 74:20-25, 77:8-17. 

/// 

 

2 The transcript of the evidentiary hearing on June 14, 2018, is docketed at Document 86 

in CM/ECF. 

3 The transcript of the evidentiary hearing on May 11, 2018, is docketed at Document 74 

in CM/ECF. 

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IV. Conclusion 

For the reasons discussed above, judicial estoppel is inapplicable and inappropriate 

in this matter. Accordingly, the government respectfully requests that the Court deny the 

defendant’s motion in its entirety. 

Respectfully submitted this 4th day of April, 2019. 

 ELIZABETH A. STRANGE

First Assistant United States Attorney 

 District of Arizona 

 /s/ Anna R. Wright & Nathaniel J. Walters

 ANNA WRIGHT &

 NATHANIEL J. WALTERS 

 Assistant U.S. Attorneys 

Copy of the foregoing served electronically or by 

other means this 4th day of April, 2019, to: 

All ECF participants 

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