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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. 18-cr-00223-RCC(DTF)

DEFENDANT’S MOTION IN LIMINE 

TO PRECLUDE GOVERNMENT 

FROM ARGUING THAT NOT 

CALLING THE BORDER PATROL 

CONSTITUTES CONCEALMENT

During opening statement and its questioning of witnesses so far, the government 

has clearly indicated its intention to rely on the fact that Dr. Warren did not affirmatively 

report the presence of known or suspected undocumented people to the Border Patrol to 

prove that he “harbored, concealed, or shielded from detection.” In fact, no legal obligation

whatsoever exists for members of the general public to affirmatively alert authorities to

any unlawful activity, including crimes and the presence of undocumented people. 

Accordingly, any argument to the jury suggesting that not affirmatively alerting authorities 

to the presence of undocumented people constitutes concealment would mislead them 

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about the law, misinform them about the citizenry’s obligations, and deprive Dr. Warren 

of a fair trial. Consequently, the Court must preclude the government from making that 

argument. In addition, the Court should instruct the jury on the lack of any duty to make 

such reports, as requested in Defendant’s Proposed Jury Instructions.

1. NO GENERAL OBLIGATION EXISTS TO REPORT CRIMINAL ACTIVITY. 

“It has long been settled that there are no federal common law crimes; if Congress has 

not by statute made certain conduct criminal, it is not a federal crime.” Wayne R. LaFave 

& Austin W. Scott, Jr., Substantive Criminal Law, West 1986, at § 2.1. The United States 

Code does not spell out what actions are permissible; it specifies which acts are prohibited.

In some situations, the prohibition may take the form of punishing the failure to take an 

action for which the law imposes an affirmative duty. But neither an act nor an omission is 

criminal unless a law specifically says it is. For this reason, statutes generally do not exist 

that state that the public does not have any legal duty to undertake particular actions, nor 

that particular actions are not prohibited; absent a statute to the contrary, acts or omissions 

are presumptively legal.

Congress has spoken clearly both about what is prohibited in the area of interacting 

with undocumented people and what is prohibited regarding knowledge of illegal activity 

and alerting, or declining to alert, authorities. Neither area imposes or recognizes any 

obligation to alert law enforcement to the presence of known or suspected undocumented 

people.

A. Immigration-Specific Provisions

Although most immigration laws address rights, obligations, and procedures for nonCase 4:18-cr-00223-RCC-DTF Document 235 Filed 05/31/19 Page 2 of 9
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citizens, several sections of Title 8 address the obligations of the public in interacting with 

non-citizens. For instance, § 1321 provides that “It shall be the duty of every person. . . 

bringing an alien to, or providing a means for an alien to come to, the United States. . . to 

prevent the landing of such alien in the United States at a port of entry other than as 

designated by the Attorney General or at any time or place other than as designated by the 

immigration officers.” Sections 1322 and 1323 prohibit bringing people into the United 

States without proper documentation. Section 1324, the provision under which Dr. Warren 

is charged, also prohibits “bringing in” at any place other than a designated port of entry; 

transporting; concealing, harboring, or shielding from detection; encouraging or inducing 

to come to, enter, or reside in the United States;

1 and certain employment actions.

Subsequent provisions provide additional employment-related prohibitions and 

requirements, including creating an entirely voluntary system “for individuals and entities

to file written, signed complaints respecting potential violations” (1324a(e)(1)(A)), and 

forbid assisting with various types of illegal entry or importation (§§ 1327, 1328). Nowhere 

does the United States Code create an affirmative obligation on anyone to alert authorities 

to the presence of undocumented people.

Indeed, as scholars have noted, even Judges, who obviously have particular 

responsibility to uphold the law, have no duty to report the presence of undocumented 

people. See David P. Weber, “(Unfair) Advantage: Damocles’ Sword and the Coercive Use 

 

1 The Ninth Circuit recently ruled this provision unconstitutionally overbroad. United 

States v. Sineneng-Smith, 910 F.3d 461 (9th Cir. 2018). 

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of Immigration Status in a Civil Society,” 94 Marq. L. Rev. 613, 664 (2010) (collecting 

Judicial Ethics opinions). In 2004, a House of Representatives bill that would have required 

emergency medical providers to alert immigration authorities when they provided care to 

undocumented people failed in the House, largely over concerns that such a requirement 

would deter people from seeking desperately needed medical care. See Summary, H.R. 

3722 (108th Congress 2003-2004).2 If the law already included a reporting requirement

applicable to the general public—or to people providing medical care—no such bill would 

have been proposed, and its overwhelming defeat (88 to 331) highlights the fact that no 

such requirement exists. Neither the general public nor hospitals and clinics have any legal 

obligation whatsoever to call the Border Patrol upon treating undocumented people.

B. General Provisions Regarding Reporting Criminal Activity

For nearly 200 years, the law in this country has recognized that whatever anyone may 

believe would constitute exemplary citizenship, citizens are not legally obligated to report 

crimes. Marbury v. Brooks, 20 U.S. (7 Wheat.) 556, 575-76 (1822). As scholars have 

explained, in the days before professional police forces existed, “the citizens had to perform 

the function of the police,” but in the modern era, “it is now the duty of law officials to 

pursue and punish criminals, and it is the duty of citizens to refrain from interfering.” See, 

e.g., John V. Hurt, “Case Comment: Criminal Law – First Circuit Allows Guilty Plea for 

Misprision to Stand Under Plain Error Review,” 41 Suffolk U. L. Rev. 387, 393 (2008). 

The federal law that comes closest to requiring the reporting of unlawful activity is 18 

 2 Summary available at https://www.congress.gov/bill/108th-congress/housebill/3722?q=%7B%22search%22%3A%5B%22H.R.+3722%22%5D%7D&s=3&r=1.

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U.S.C. § 4, Misprision of a Felony. This law, however, limits is reach to felonies, and 

improper entry by an alien (8 U.S.C. § 1325) is a misdemeanor. Moreover, the misprision 

statute does not penalize a simple failure to affirmatively report; it only penalizes active

concealment. See United States v. Olson, 856 F.3d 1216 (9th Cir. 2017); Lancey v. United 

States, 356 F.2d 407, 410 (9th Cir. 1966) (“Mere silence, without some affirmative act, is 

insufficient evidence. . .”); United States v. Ciambrone, 750 F.2d 1416, 1418 (9th Cir. 

1984) (“A person who witnesses a crime does not violate 18 U.S.C. § 4 if he simply 

remains silent.”); United States v. Phillips, 827 F.3d 1171, 1175 (9th Cir. 2016) (misprision 

not a “purely passive” offense because it has “long been interpreted to contain some 

element of active concealment”) (emphasis original). Similarly, while 18 U.S.C. § 1001, 

punishes one who “falsifies, conceals, or covers up by any trick, scheme, or device a 

material fact” on “any matter within the jurisdiction of the executive, legislative, or judicial 

branch of the Government of the United States,” it only applies to simple silence where an 

affirmative legal duty to disclose exists. See United States v. White Eagle, 721 F.3dd 1108, 

1116 (9th Cir. 2013); United States v. Varbel, 780 F.2d 758, 762 (“Since appellants were 

under no duty to report their currency transactions to or through the bank, there can be no 

concealment in violation of 18 U.S.C. § 1001.”). 

Last year, a federal appeals court recognized that even prisoners, who have abridged 

constitutional rights (Pell v. Procunier, 417 U.S. 817, 822 (1974)), have an absolute First 

Amendment right to refuse to serve as informants for law enforcement. Burns v. 

Martuscello, 890 F.3d 77, 89 (2d. Cir. 2018) (recognizing explicit “right not to snitch” and 

long-recognized Fourth Amendment right “to walk away from police questioning. When 

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an individual, unsuspected of wrongdoing, is approached by a law enforcement officer, the 

individual need not answer any question put to him; indeed, he may decline to listen to the 

questions at all and may go on his way.”) (internal quotation marks and citation omitted). 

C. “Conceal, Harbor, or Shield from Detection”

The government may not argue to the jury that § 1324(a)(1)(A)(iii) itself tacitly creates 

a reporting obligation through its prohibition on “concealing, harboring, or shielding from 

detection.” The law cited above clearly establishes that simply remaining silent about the 

presence of undocumented people is not unlawful, and no one has an obligation to call the 

Border Patrol, even if they know for a fact that individuals are undocumented. Moreover, 

the law is now crystal clear in the Ninth Circuit that harboring “require[s] a finding that 

Defendants intended to violate the law.” United States v. Tydingco, 909 F.3d 297, 303 (9th

Cir. 2018). Knowing about the presence of undocumented people without calling the 

Border Patrol does not violate the law, and thus cannot be done with the requisite intent. 

Because the law does not require anyone to notify the Border Patrol, choosing not to 

affirmatively call them cannot render an otherwise legal act criminal. Accordingly, the 

government may not argue to the jury that mere passive silence converted Dr. Warren’s 

otherwise-legal provision of humanitarian aid and hospitality into a crime. 

Nor could any reasonable construction of “conceal, harbor, or shield from detection” 

create a reporting obligation, even leaving aside the criminal intent requirement. The use 

of the word “conceal” in other similar statutes confirms that it requires an affirmative act

of hiding. Thus, the misprision statute, 18 U.S.C. § 4, refers to one who “conceals and 

does not as soon as possible make known” the commission of a felony (emphasis added); 

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if non-reporting constituted concealment, the statute would not need both. Courts have 

uniformly interpreted this provision to require an affirmative act of concealment. See 

cases cited supra; see also United States v. Izarraga-Ponce, 2009 U.S. Dist. LEXIS 

28540 (D. Id. 2009) (dismissing indictment because the only “concealment” alleged was

failure to report).

An affirmative act of concealment must be something beyond simply allowing someone 

inside, even to spend the night(s). One is not “concealing” houseguests simply by inviting 

them to sleep over; a homeless shelter is not “concealing” its clients by providing food and 

beds. For instance, in Lancey, the bank robber spent the night at the defendant’s home, but 

that was not an affirmative act of concealment; rather, for this element, the Court relied on 

the fact that the defendant had hidden a number of crucial items of evidence in the house 

including the proceeds from the robbery, the demand note, a loaded gun, and license plates, 

in various drawers, bags, and boxes around his property, including in a nightstand and in 

the garage. 356 F.2d at 411. Lying to authorities also qualifies as an affirmative act of 

concealment. United States v. Hodges, 566 F.2d 674, 675 (9th Cir. 1977). In contrast, in

United States v. King, 402 F.2d 694 (9th Cir. 1968), the Court reversed a conviction, finding 

that riding (or possibly driving) in a car with two people the defendant knew to have robbed 

a bank while they were driven to a place from which they might escape, as well as receiving 

some unspecified amount of the proceeds of the robbery, was not concealment. Id. at 697-

98. 

In Ciambrone, 750 F.2d at 1418, the Ninth Circuit focused its analysis on whether the 

defendant’s acts ultimately “result[ed] in any greater concealment of the crime” (ultimately 

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determining that making a partial disclosure to police while withholding important facts 

did not constitute concealing). Here, the government cannot reasonably argue that simply 

allowing two migrants to remain in the No More Deaths facility for medical monitoring 

without calling the Border Patrol made it more difficult for agents to apprehend them—

indeed, it appears to actually have made it easier. The two men were observed standing 

outside in the open, and agents quickly arrested them—something which would have been 

much more difficult and dangerous to accomplish if the migrants had instead remained in 

the vast and remote desert wilderness, much of it without roads. 

In sum, concealing indisputably requires an affirmative action of something beyond 

simply allowing a person to be inside—such as physically hiding them, or providing false 

information about them—and requires some showing that the action actually made it more 

difficult for law enforcement to locate the concealed people. 

Conclusion

The Government has not charged Dr. Warren with any crime relating to failure to 

inform the Border Patrol of the presence of known or suspected illegal aliens, much less 

the knowledge of a felony. If it had, this Court would unquestionably be obligated to 

instruct the jury that “Mere failure to report a federal felony is not a crime.” (9th Circuit 

Model Instruction 8.0A). The fact that the Government has not actually charged this crime 

does not mean it is entitled to argue for to the jury that it should convict Dr. Warren of 

harboring based his failure to do something he had absolutely no obligation to do. 

Accordingly, this Court should preclude the government from arguing for a conviction 

based on failure to affirmatively inform the Border Patrol of the presence of known or 

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suspected undocumented people.

Dated this 31st day of May, 2019

KUYKENDALL & ASSOCIATES

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 May 31st, 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

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