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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

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(DTF)

MOTION TO ADMIT PRIOR 

TESTIMONY

Dr. Warren hereby requests this Court’s permission to present at trial the 

testimony of Dr. Edgar McCullough from the first trial on this matter, give on June 

4, 2019 (pp. 14-40) because Dr. McCullough is not available to testify during the 

retrial now scheduled for November 12 through 22, 2019. 

Dr. McCullough, who is a retired professor, testified not only in the previous 

trial of this matter, but also in the misdemeanor trial against Dr. Warren held in May, 

2019 (17-mj-341). His testimony concerns the data that had been made available to 

Dr. Warren and No More Deaths prior to Dr. Warren’s arrest in January, 2018. It 

does not concern anything that occurred after January, 2018, and accordingly does 

not include anything that could have changed since the first trial. 
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The defense has recently learned that Dr. McCullough will be out of town and 

unavailable to come to court to testify between mid-October 2019 and January, 2020.

Because he has provided testimony identical to that the defense wishes to present in 

the first trial of this matter, where the government had the opportunity to crossexamine him with identical incentives, and did in fact cross-examine him without 

limitation, the defense requests permission to introduce this prior testimony under 

Federal Rule of Evidence 804(b)(1). 

In the alternative, the defense would like to preserve his testimony via a 

deposition under Federal Rule of Criminal Procedure 15(a)(1), although given the 

availability of his prior trial testimony, this should not be necessary, as the deposition 

testimony would be the same as the testimony already preserved in the record of the 

first trial.

Defense counsel requested the government’s position on the use of Dr. 

McCullough’s prior testimony and/or the arrangement of a deposition, but the 

Government has declined to provide its position on the matter. Accordingly, Dr. 

Warren requests that this Court rule that Dr. McCullough’s prior testimony from the 

first trial of this case may be admitted. 

RESPECTFULLY SUBMITTED this 4th day of October, 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
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CERTIFICATE OF SERVICE

I certify that on October 4, 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