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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.CR-18-00223-001-TUC-RCC(BPV)

MOTION TO ESTOP GOVERNMENT 

FROM ARGUING DIRECTLY 

CONTRARY POSITIONS FOR 

STRATEGIC GAIN

Defendant Scott Daniel Warren, through his pro bono attorneys Gregory J. 

Kuykendall and Amy P. Knight, hereby moves this Court to preclude the Government 

from taking the position that as a factual matter, Dr. Warren had exclusive or significant 

authority or control over the building in Ajo, Arizona known as The Barn, having 

strategically relied on the opposite position in successfully opposing a crucial substantive 

motion already litigated in this case. In support thereof, he states as follows:

I. Introduction

Judicial estoppel prevents a party from taking contradictory positions at different 

junctures in a case to gain unfair advantages. Weighty considerations underlie this rule; 
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as the Supreme Court has recognized, it serves “to protect the integrity of the judicial 

process . . . by prohibiting parties from deliberately changing positions according to the 

exigencies of the moment,” and it “prevents parties from playing fast and loose with the 

courts.” New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (internal citations and 

quotation marks omitted). 

On April 19, 2018, Dr. Warren filed a motion to suppress evidence (Doc. 53), 

asserting that Border Patrol agents had entered The Barn in contravention of his direct 

and specific request that they leave the property. The agents themselves, at the time of 

their entry, asserted a right to disregard Dr. Warren’s request because he was not the 

owner of the property. See Report and Recommendation, Doc. 110, at 4 (“When Agent 

Burns asked if the owner was present, Defendant Warren responded he was not going to 

answer and that Burns (and company) had no right to be there. Agent Burns asserted he 

wanted to talk to the owner and had a right to walk up and ask.”). The Government then 

repeatedly argued to this Court that Dr. Warren lacked standing to challenge the search 

because, as it succinctly put it, “the defendant has shown he has minimal, frankly surfacelevel ties to the barn in this case,” Tr. 7/13/18 (Doc. 107) at 117, and because he “shared 

the space with visiting groups of volunteers and illegal aliens.” Doc. 121 at 8.

After an evidentiary hearing, the Magistrate Judge recommended denial of the Motion 

to Suppress on August 7, 2018, agreeing with the Government that Dr. Warren lacked 

standing to challenge the search due to his limited relationship to the property and the 

shared nature of the space (Doc. 110), and the District Court adopted the Report and 

Recommendation on December 21, 2018 (Doc. 151). This Court must preclude the 
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Government from now asserting a directly contrary position—that Dr. Warren 

maintained any exclusive or significant authority or control over The Barn.

II. The Government Repeatedly Asserted that Dr. Warren Lacked Authority and 

Control Over The Barn. 

The Government argued in its response to the Motion to Suppress that Dr. Warren 

lacked a reasonable expectation of privacy in The Barn and thus had no standing to 

challenge the search. Doc. 63 at 4-6. In support of this claim, it specifically argued, “the 

defendant is nothing more than a caretaker of the barn. There was evidence that his 

responsibilities there were to keep it clean, that he is to supervise people who are there, to 

take the trash out when it’s needed, and to perform maintenance on minor jobs around the 

barn.” Tr. 7/13/18 (Doc. 107) at 111. The Government continued to emphasize, “It is 

somewhere where he doesn’t even live.” Id. at 116. The Government further relied on the 

fact that it “specifically asked the defendant if he kept his personal property locked in a 

safe, and he said that, no, anybody was free to take it, use it, possess it, whatever it may 

be, and for all we know that actually happened.” Id. at 117. It concluded by summarizing 

its position: “the defendant has shown he has minimal, frankly surface-level ties to the 

barn in this case.” Id. 

Subsequently, in its response to Defendant’s objection to the magistrate’s Report 

and Recommendation (Doc. 121), the Government explained that it had successfully 

convinced the Court that “the defendant is merely a caretaker at the Barn who must share 

his ‘most private space’ at the property ‘with any humanitarian that wants clothing for 

undocumented migrants.’” Doc. 121 at 8-9. It asserted that “[t]he defendant is not the 

owner, tenant or occupant of the Barn. Rather, he was a guest and agent with limited 
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authority from the owner who shared the space with visiting groups of volunteers and 

illegal aliens.” Id. at 9 (emphasis added).

III. The Court Accepted the Government’s Position.

The Government successfully relied on its position regarding Dr. Warren’s limited 

authority over The Barn to defeat the Motion to Suppress. In the Report and 

Recommendation (Doc. 110), the Magistrate Judge agreed with the Government that 

“Defendant Warren has no expectation of privacy and no standing to challenge the 

warrantless entry into the Johnson property on Snyder Road in Ajo, Arizona.” Doc. 110 

at 7. Accepting the Government’s characterizations of the Defendant, the Court stated Dr. 

Warren was “A liaison; A caretaker; A handyman; An agent with restricted authority 

from the owner; Someone who keeps his personal property locked away in the Barnlet 

until he needs access to it; and A guest with limited access to the property,” and 

concluded that none of that would “give him anything more than access.” Id. Thus, the 

Court clearly accepted the Government’s characterization of Dr. Warren’s relationship to 

The Barn as being tightly limited, and this formed the basis for the Government’s victory

on this crucial motion. 

IV. The Law of Judicial Estoppel

“[T]he doctrine of judicial estoppel precludes parties from taking inconsistent 

positions in the same litigation.” Milgard Tempering v. Selas Corp. of Am., 902 F.2d 703, 

716 (9th Cir. 1990). The Supreme Court has identified three flexible factors for 

identifying when the doctrine should apply:

“First, a party’s later position must be ‘clearly inconsistent’ with its earlier 

position. Second, courts regularly inquire whether the party has succeeded 
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in persuading a court to accept that party’s earlier position, so that judicial 

acceptance of an inconsistent position in a later proceeding would create 

‘the perception that either the first or the second court was misled.’ . . . A 

third consideration is whether the party seeking to assert an inconsistent 

position would derive an unfair advantage or impose an unfair detriment on 

the opposing party if not estopped. . . . In enumerating these factors, we do 

not establish inflexible prerequisites or an exhaustive formula for 

determining the applicability of judicial estoppel. Additional considerations 

may inform the doctrine’s application in specific factual contexts.” 

New Hampshire 532 U.S. at 750 (internal citations omitted).

The Ninth Circuit has referred to judicial estoppel as embodying “a federal court’s 

ability to protect itself from manipulation by litigants.” Rissetto v. Plumbers & 

Steamfitters Local 343, 94 F.3d 597, 602 (9th Cir. 1996). The doctrine “precludes a party 

from gaining an unfair advantage by taking one position, and then seeking a second 

advantage by taking an incompatible position.” Hocker v. Wells Fargo Home Mortg., 

Inc., 2019 U.S. Dist. LEXIS 33961 at *8 (D. Ariz. March 4, 2019) (citing Hamilton v. 

State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001) (dismissing case based on 

judicial estoppel)). 

“Judicial estoppel applies to a party’s stated position whether it is an expression of 

intention, a statement of fact, or a legal assertion,” because “[t]he integrity of the judicial 

process is threatened when a litigant is permitted to gain an advantage by the 

manipulative assertion of inconsistent positions, factual or legal.” Wagner v. Prof’l 

Eng’rs in Cal. Gov’t, 354 F.3d 1036, 1044 (9th Cir. 2004). Thus, it applies not just to a 

stated position on how the law should apply in a given situation, but also to any particular 

asserted version of facts. 
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Finally, although parties are of course bound by the assertions in their pleadings, the 

doctrine also applies to positions taken during a hearing; what matters is that the party 

made a representation to the Court, and the Court relied on it. Helfand v. Gerson, 105 

F.3d 530, 534 (9th Cir. 1997). That a party may later learn additional facts not known 

when it took the first position does not preclude the application of the doctrine. Helfand, 

105 F.3d at 536. 

V. Judicial Estoppel Applies Here.

All three factors supporting judicial estoppel are clearly satisfied here. Regarding 

the first factor, Defendant is seeking to preclude the Government from now claiming that 

he had exclusive or significant control or authority over The Barn. This position would be 

directly contrary to the one the Government explicitly and repeatedly asserted from the 

agents’ entry onto the property throughout the litigation of the motion to suppress: that 

Dr. Warren lacked authority over the property and he widely shared access with other 

humanitarian workers. Having relied on that position to win a major motion, the 

Government is now committed to its argument that Dr. Warren had “minimal, frankly 

surface-level ties to the barn in this case,” Tr. 7/13/18 at 117, and that access to and 

control of the space was widely shared among humanitarian volunteers.1

Moreover, the Government indisputably “succeeded in persuading a court to 

accept [its] earlier position.” New Hampshire, 532 U.S. at 750. The Magistrate explicitly 

 1 The position at issue in this motion is not the legal conclusion that Dr. Warren had no reasonable expectation of privacy in The Barn. Rather, it is the Government’s argument about the facts that it made in convincing the Court to accept that legal conclusion: that Dr. 

Warren’s relationship to The Barn was, as a factual matter, tightly limited and widely shared.
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found a lack of standing based on precisely the things the Government emphasized: his 

“restricted” and “limited” authority and access, and the shared nature of the space. Thus, 

if the Government were later to take the position in motions or at trial that in fact Dr. 

Warren had significant access and control and/or that it was in some way exclusive, the 

conclusion that the “court was misled” would be inescapable. 

Finally, allowing the assertion of inconsistent positions on this front would be 

grossly unfair. The evidence gained from the search is essential to the Government’s

case, and thus only in prevailing on the motion to suppress—which entailed an argument 

that Dr. Warren had very little authority or control over The Barn—could the 

Government realistically maintain this prosecution. Yet the Ninth Circuit has recognized 

that evidence a defendant “was in control of the residence support[s] a finding of 

harboring aliens.” United States v. Chavez-Amaro, 228 F. App'x 648, 649 (mem.) (9th 

Cir. 2007) (unpublished). Thus, the position opposite to the one the Government took in 

the motion to suppress would support its case now, on the merits of the charge. Allowing 

any party to litigation to talk out of both sides of its mouth is a threat to the judicial 

process, but when it is the Government using its sovereign power to potentially deprive 

citizens of their liberty, the concern is especially great and takes on tones of due process. 

Prosecutors are duty-bound to seek truth and justice; refusing to commit to one version of 

the facts is incompatible with this duty.

The Government has committed to a version of the facts, which it needed to do to 

win a crucial pretrial motion. It is now stuck with that version, and this Court should not 
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allow it to switch to a contradictory version that might now better suit its case, having 

accepted its first version as the basis for an important ruling in the Government’s favor.

RESPECTFULLY SUBMITTED this 14th day of March, 2019.

By /s/ Amy P. Knight

Gregory J. Kuykendall

Amy P. Knight

531 S Convent Avenue

Tucson, AZ 85701

Attorneys for Defendant Scott 

Daniel Warren

CERTIFICATE OF SERVICE

I certify that on March 14th, 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