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UNITED STATES DISTRICT COURT

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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America, )

)

Plaintiff, ) 18-mj-1455-N/A(BPV)

)

vs. )

) Tucson, Arizona

Scott Daniel Warren, ) January 18, 2018

) 2:20 p.m.

______________Defendant. __)

TRANSCRIPT OF PROCEEDINGS

INITIAL APPEARANCE/DETENTION HEARING

BEFORE THE HONORABLE BRUCE G. MACDONALD

UNITED STATES MAGISTRATE JUDGE

APPEARANCES:

For the Plaintiff:

Matthew Eltringham

U.S. Attorney's Office

405 West Congress Street, Suite 4800

Tucson, AZ 85701

For the Defendant:

William G. Walker

William G. Walker, PC

177 N. Church Avenue, Suite 807

Tucson, AZ 85701

Transcribed by:

Cindy J. Shearman

405 West Congress Street, Suite 1500

Tucson, AZ 85701

520-205-4286

Proceedings were digitally recorded

Transcript prepared by transcriptionist
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UNITED STATES DISTRICT COURT

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P R O C E E D I N G S

(Call to order of court, 2:20 p.m.)

CLERK: Judge, the initial appearances are going to

start before you.

And if counsel for the government could please state your

appearance.

MR. ELTRINGHAM: Good afternoon, Your Honor. Matthew

Eltringham on behalf of the United States for the entire

initial appearance calendar.

THE COURT: Thank you. Good afternoon,

Mr. Eltringham.

(Matters not pertaining to SCOTT DANIEL WARREN were not

transcribed.)

THE COURT: And I also have case number -- and,

finally, I've got case number 18-1455, Scott Daniel Warren.

Mr. Warren is present with his attorney, Mr. Walker.

Thank you, we did get your notice of appearance, so thank

you very much.

And, Mr. Warren, that is your true name?

THE DEFENDANT: Yes.

THE COURT: And you are an English speaker obviously?

THE DEFENDANT: Yes.

THE COURT: Thank you.

Addressing myself to all of you, good afternoon. My name

is Bruce Macdonald. I'm a magistrate judge and this is your
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UNITED STATES DISTRICT COURT

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initial appearance. Your initial appearance is to formally

advise you that you have been charged with violating one of the

laws of the United States.

Because you have been charged with a criminal offense, you

have certain rights. You have the right to remain silent and

say nothing about your case. If you choose to make a

statement, that can later be used against you in the

prosecution of your case. If you've already made a statement,

you need not say any more.

You also have the right to be represented by an attorney.

(Matters not pertaining to SCOTT DANIEL WARREN were not

transcribed.)

THE COURT: And, Mr. Warren, obviously you have

retained Mr. Walker to represent you in your case.

(Matters not pertaining to SCOTT DANIEL WARREN were not

transcribed.)

THE COURT: For all seven of you, each of you is also

entitled to have a preliminary hearing where the government

will have to establish probable cause to believe that you

committed the offense.

Each of you is also entitled to a detention hearing where

the government will have to establish by the requisite proof

that you're a danger to the community or a flight risk and that

there are no conditions that can be set to reasonably ensure

the safety of the community or that you will make future court
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UNITED STATES DISTRICT COURT

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appearances.

(Matters not pertaining to SCOTT DANIEL WARREN were not

transcribed.)

THE COURT: Mr. Cruz and Mr. Warren, we're going to

deal with your detention issues in just a moment.

And, finally, all of you are entitled to be advised, have a

right to be advised of the charges pending against you.

(Matters not pertaining to SCOTT DANIEL WARREN were not

transcribed.)

THE COURT: And, Mr. Warren, you are charged with the

felony offense of alien smuggling.

Mr. Walker, the videotaped depositions of the material

witnesses in Mr. Warren's case have been scheduled. I'll give

you the dates.

MR. WALKER: I do have a couple of requests to be

heard, Your Honor.

THE COURT: Okay. Let me give you the date and then

I'll let you -- we'll deal with detention and then we'll come

back.

The videotaped deposition of the two material witnesses

have been scheduled to take place on Friday, February 9th,

2018, beginning at 8:30 a.m. in the grand jury room.

And then, with regard to detention, we did receive a

recommendation from pretrial services for Mr. Warren. The

recommendation is that he be released under certain conditions.
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UNITED STATES DISTRICT COURT

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The charges do not invoke the presumption. I'll come back to

you.

Mr. Eltringham, what is the government's position?

MR. ELTRINGHAM: Your Honor, in speaking with the

assigned AUSA, it's my understanding the government is not

objecting to release on the conditions as provided for in the

pretrial services report. One additional condition that the

government is going to request is that since the defendant is

being released most likely, that he be informed that he

actually has to be ordered to show up for February 9th for the

mat wit depositions.

THE COURT: Right.

MR. ELTRINGHAM: And that be a part of his pretrial

conditions. He also needs to understand that if he fails to

appear, that a warrant may issue for his arrest, and the

pretrial -- I'm sorry -- and the material witness depositions

will proceed without him.

THE COURT: Okay. Thank you.

MR. WALKER: And we have no objection to the addition

of that requirement, Your Honor.

THE COURT: And you wanted to go over some other

issues, Mr. Walker?

MR. WALKER: I do, Your Honor. I would like to make

an oral motion to dismiss at this time.

THE COURT: All right.
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UNITED STATES DISTRICT COURT

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MR. WALKER: Because I think the complaint is

inadequate. If you look at the complaint, there is no

signature of the complainant anywhere, nor is there any name of

the complainant anywhere. All that is here is an authorized by

AUSA A.R.W., A. Wright, who is -- I talked to this morning.

But she's not authorized to actually file the complaint. And

this complaint is totally devoid of any complainant so I move

to have the case dismissed against my client.

THE COURT: Okay. Thank you.

Mr. Eltringham?

MR. ELTRINGHAM: Your Honor, two things. First, it's

my understanding is that the complaints are sworn to at I

believe it's 1:00 o'clock in the afternoon, that these copies

are made prior to the swearing of any of the complaints. The

court made probable cause finding or else the defendant would

not have been here and, therefore, based on that alone, the

government asks that the motion be denied.

Additionally, it's my understanding that the government's

attorneys are authorized to actually file criminal complaints

if we find that there's sufficient probable cause. So I

believe that there's two grounds for which the motion to be

denied. Thank you.

MR. WALKER: May I reply, Your Honor?

THE COURT: Of course, of course.

MR. WALKER: If there is one that's signed by the
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UNITED STATES DISTRICT COURT

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complainant, then that's a different issue but I picked this up

at five minutes to 2:00. It was sitting on the table and I was

instructed that it was there for me. And it has nothing.

THE COURT: Let me -- there is a copy, I believe. Why

don't we get copies for everyone?

MR. WALKER: Is it signed?

THE COURT: Yeah, but I'll give you a copy,

Mr. Walker, just so you have it.

MR. WALKER: I have another matter as well.

THE COURT: Thank you. Let's get you a copy.

Mr. Eltringham, I'll get you a copy as well.

MR. ELTRINGHAM: Okay.

THE COURT: And while we're doing that, Mr. Walker,

I'm going to deny the oral motion to dismiss with leave to

refile if you feel that's appropriate.

We also have -- we're going to address Mr. Warren's

detention because I am going to order him released under

certain conditions but we still have a preliminary hearing on

for Monday. I don't know if you want to keep it on for

preliminary hearing or if you're actually going to have a

preliminary. We can set it for a later date.

MR. WALKER: Judge, I don't do that many of these

criminal ones anymore.

THE COURT: Right, right.

MR. WALKER: And my understanding of the process
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UNITED STATES DISTRICT COURT

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generally is that there can be a waiver of the preliminary

hearing in exchange for discovery and other things, and I

haven't made such an arrangement. It's not that I want to

insist on a preliminary hearing --

THE COURT: No, I know.

MR. WALKER: -- but I do want to persist on a deal.

THE COURT: Right. And the government, as I

understand it, I don't want to speak for Mr. Eltringham, I'll

let him speak, but it's my understanding that the government

will -- that you waive the preliminary hearing in exchange for

early Jencks Act disclosure. That's my understanding.

MR. WALKER: If that's good, then we'll waive it.

MR. ELTRINGHAM: Your Honor, that's the government's

practice, yes.

THE COURT: Okay. So --

MR. WALKER: Just to be clear, that will be the

practice in this case?

THE COURT: That is correct.

MR. ELTRINGHAM: Yes, Your Honor.

THE COURT: And so I don't forget, I'm going to go

ahead and vacate the detention hearing and the preliminary

hearing that was scheduled in Mr. Warren's case for Monday,

January 22nd at 10:30 a.m. for Magistrate Judge Leslie Bowman,

just so I don't forget. And I'm going to get to the conditions

of release.
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UNITED STATES DISTRICT COURT

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Mr. Walker, you had another issue that you wanted to

address the court?

MR. WALKER: I do have another issue.

THE COURT: Please.

MR. WALKER: Actually, I have two more now.

THE COURT: Sure, sure.

MR. WALKER: Because now there's a complainant who has

scribbled on this and I have no idea who it is.

THE COURT: Okay.

MR. WALKER: I think I have a right to know who the

complainant is. I'm not objecting anymore that the case should

be dismissed because there isn't a complainant but I do think I

have at right to know who it is.

THE COURT: And I think that the government will

provide you with the name of the Border Patrol agent who is, I

believe, talking to Mr. Eltringham.

MR. WALKER: When?

THE COURT: Or at least -- right now.

MR. ELTRINGHAM: Your Honor, it's my understanding

that Aaron Kiracofe signed it. He's a Border Patrol agent here

in Tucson.

THE COURT: Okay.

MR. WALKER: And that's acceptable, Your Honor.

THE COURT: And we'll get you the spelling, the

correct spelling, before you leave.
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UNITED STATES DISTRICT COURT

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MR. WALKER: I have it.

THE COURT: You have it?

MR. WALKER: Yes.

THE COURT: Okay, great. And your second -- you had

one other issue, Mr. Walker?

MR. WALKER: Yes, sir. My final one is that there is

an affidavit for detention of material witness.

THE COURT: Yes.

MR. WALKER: But it names no affiant, it's not signed,

and it doesn't say who this Border Patrol agent is. Now, if

there has been one signed, then my objection is moot. But I

don't think that they have the authority to hold these people

as material witnesses if they don't have a named Border Patrol

agent that's signed as an affiant.

THE COURT: And they do. Let me find -- get a copy of

that as well. I think probably, and it may not be the greatest

practice, we give these earlier to try to move things along.

MR. WALKER: I understand that. I just want to be

careful, that's all.

THE COURT: And I appreciate that. So I'm going to

give you a copy of that affidavit that's signed by the agent

and also by me.

MR. WALKER: And may I know if that's just the same

agent since I -- it is, it is. I'm sorry.

THE COURT: It is.
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UNITED STATES DISTRICT COURT

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MR. WALKER: It is. And it's printed out at the top

so I'll withdraw my objection --

THE COURT: Okay.

MR. WALKER: -- based on that.

THE COURT: Thank you.

Mr. Walker, any other issues before I get to the

conditions?

MR. WALKER: Nothing, unless Your Honor in some way

decides that I need to be heard on release.

THE COURT: No, I do not.

And so, Mr. Warren, I am going to release you under certain

conditions. I'm going to go through these with you in a

moment. You need to understand that do you need to abide by

the conditions of release. If you fail to abide by the

conditions of release, you could be brought back into custody

and detained.

Also, it's very important you stay in close contact with

your pretrial services officer and with Mr. Walker and that you

attend all your future court appearances. If you fail to

attend your future court appearances, you could be charged with

the additional crime of bail jumping and that's a crime you

could be charged with in addition to the charges you're already

facing.

And so, Mr. Warren, you are going to be released under the

following conditions:
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UNITED STATES DISTRICT COURT

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That you promise to appear at all proceedings as required

and to surrender for service of any sentence imposed.

You are not to commit any federal, state, or local crime.

You are to cooperate in the collection of a DNA sample if

that's authorized by law.

You are to immediately advise Mr. Walker and pretrial

services in writing before any change to your residence

address, your mailing address, or your telephone number.

As Mr. Eltringham noted, it will be in your conditions, the

videotaped depositions of the material witnesses in your case

have been scheduled to take place on February 9th, 2018,

beginning at 8:30 a.m. Mr. Walker will attend those with you

but you do need to attend those videotaped depositions. If you

fail to attend the videotaped depositions, then the depositions

are going to take place in your absence and a warrant could

issue for your arrest.

You are also not to travel out of the state of Arizona

unless express prior court permission is granted to travel

elsewhere. All that means, Mr. Warren, is that if you need to

leave the state for any reason, you need to come to court first

and get permission to do so.

You are to surrender all travel documents to pretrial

services by January 25th, 2018. You're not to obtain a

passport or other travel document during the pendency of these

proceedings.
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And you are to participate in a mental health treatment

program as directed by pretrial services and comply with all

treatment requirements, including taking all medication

prescribed by the mental health care provider and make

copayment toward the cost of that if directed by pretrial

services.

Mr. Warren, do you have any questions about those

conditions?

MR. WALKER: He has none that he would address to the

court at this time.

THE COURT: Okay.

MR. WALKER: I've told him he should not speak to the

court unless authorized by me.

THE COURT: That is correct.

MR. WALKER: And I don't authorize him to make

statements at this proceeding.

THE COURT: That is correct. And I just wanted to

make sure you understood.

MR. WALKER: I appreciate that.

THE COURT: Okay. Mr. Eltringham, anything further

for Mr. Warren?

MR. ELTRINGHAM: No, Your Honor. Thank you.

THE COURT: Mr. Walker, anything further from your

standpoint?

MR. WALKER: No, sir.
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THE COURT: I'll give you the conditions of release to

go over with Mr. Warren.

MR. WALKER: Thank you, Judge.

THE COURT: Good to see you, Mr. Walker.

MR. WALKER: Nice to see you, Your Honor.

THE COURT: Thank you for your time.

MR. WALKER: Oh, I do have one question.

THE COURT: Sure.

MR. WALKER: And it can be off the record.

THE COURT: No, we'll keep it on the record.

MR. WALKER: He has to do something with pretrial

services.

THE COURT: Yes.

MR. WALKER: And he lives in Ajo. Is it okay for him

to call pretrial services or does he need to go right now and

do something? What's the best way to do this for him?

PRETRIAL SERVICES: Once he's released, that he report

to the pretrial office.

MR. WALKER: Right now, as soon as he gets released?

Okay, good.

THE COURT: Yes, and then they will work --

MR. WALKER: Yeah.

THE COURT: -- regarding his residence --

MR. WALKER: Yes, yes. I just wasn't quite sure

how --
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THE COURT: Yeah.

MR. WALKER: -- how it should be done from Ajo.

THE COURT: Yeah. So what will happen, Mr. Warren,

after you're released, you'll report to pretrial services on

the second floor. Mr. Scott, Ian Scott, is here for pretrial

services. He can help you out.

MR. WALKER: Thank you.

THE COURT: Thank you, appreciate your time.

(Whereupon, the matter was concluded at 3:05 p.m.)
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UNITED STATES DISTRICT COURT

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C E R T I F I C A T E

I, Cindy J. Shearman, court-approved transcriber,

certify that the foregoing is a correct transcript from the

official digital sound recording of the proceedings in the

above-entitled matter to the best of my ability.

s/Cindy J. Shearman___________ February 1, 2018

Cindy J. Shearman, RDR, CRR, CRC Date