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ELIZABETH A. STRANGE 

First Assistant United States Attorney 

ANNA WRIGHT

Assistant U.S. Attorney 

Colorado State Bar No. 41722 

NATHANIEL J. WALTERS 

Assistant U.S. Attorney 

Arizona State Bar No. 029708 

405 West Congress, Suite 4800 

Tucson, Arizona 85701-5040 

Telephone: (520) 620-7300 

E-mail: anna.wright@usdoj.gov 

 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 (BPV) 

GOVERNMENT’S RESPONSE TO 

DEFENDANT’S OBJECTION TO 

REPORT AND RECOMMENDATION 

REGARDING MOTION TO DISMISS 

INDICTMENT FOR VIOLATIONS OF 

INTERNATIONAL LAW 

 The defendant’s Objection to United States Magistrate Judge Bernardo P. Velasco’s 

Report and Recommendation regarding the defendant’s Motion to Dismiss Indictment for 

Violation of International Law (Doc. 136) is without basis in fact or law. The illegal aliens 

were not in distress; the defendant was not engaged in humanitarian aid; and international 

law does not require dismissal of the Indictment. For the reasons discussed below, the 

government respectfully requests that the Court overrule the defendant’s objection and 

deny the motion in its entirety. 

The defendant filed his Motion to Dismiss Indictment for Violation of International 

Law in August 2018. Doc. 115. The parties fully briefed the issues, and after hearing the 

parties’ arguments, Magistrate Judge Velasco recommended that the District Court deny 

the motions in its entirety. Docs. 125, 128, 130, 134. The defendant then filed timely his 

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Objection to the Report and Recommendation, as well as a Notice of Supplemental 

Authority. Docs. 136, 137. 

I. Discussion 

The defendant argues in his Objection that the Report and Recommendation is based 

on an erroneous interpretation of the government’s treaty obligations under the 2005 

“Protocol Against Smuggling of Migrants by Land, Sea, and Air” (Protocol). Doc. 136. 

The defendant further argues that, based on his interpretation of the Protocol, the 

Indictment fails to state an offense because the Protocol makes his conduct in this case 

non-criminal because he was engaged in humanitarian aid. Id. The defendant’s arguments 

have no basis in fact or law. The Protocol did not repeal, rewrite or replace 18 U.S.C. 

§ 1324, and the illegal aliens in this case were not in need of any humanitarian aid.

Accordingly, the government is free to prosecute the defendant as charged without 

violating its international obligations. 

a. The defendant was not engaged in humanitarian aid. 

The entirety of the defendant’s arguments rest on the faulty premise that the 

defendant was engaged in humanitarian aid at the time of his offense. The testimony and 

evidence already taken in this matter clearly demonstrate that the defendant’s goal was not 

to provide humanitarian aid, but to help the illegal aliens avoid Border Patrol. In addition, 

the evidence and testimony also make clear that the illegal aliens were not in need of any 

humanitarian aid. 

The defendant gave the two illegal aliens directions on how to travel further north 

into the United States along routes commonly used by illegal aliens to avoid a Border Patrol 

checkpoint and navigate north to a major highway. See Doc. 125 at 3; Doc. 26. In addition, 

in the hours prior to the illegal aliens’ arrival at the Barn, the two illegal aliens took multiple 

smiling “selfies” of themselves, sometimes posing with breakfast burritos and PowerAde 

drinks. See id. at 4. Sacaria-Goday felt well enough that he decided to let Perez-Villanueva 

eat more of the breakfast burrito because “those beans didn’t taste very good.” See id. Once 

the illegal aliens reached the Barn, they continued to take smiling “selfies” of themselves 

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cooking food, posing with other people, and posing shirtless in front of a bathroom mirror. 

See Government’s Exhibits 34-47. No one at the Barn, including the defendant, offered the 

illegal aliens medical assistance of any kind. See Doc. 125 at 5. 

The evidence is clear that the defendant was not engaged in humanitarian aid at the 

time of the offense. The defendant was focused, instead, on helping the two illegal aliens 

avoid Border Patrol and remain in the United States illegally. 

b. The United States’ obligations under the Protocol do not prevent it from 

criminally prosecuting the defendant in this matter. 

Whatever the defendant’s motive, the Report and Recommendation correctly found 

that, nothing in the Protocol invalidated pre-existing United States laws, such as 18 U.S.C. 

§ 1324. The Protocol applies only to the “prevention, investigation and prosecution” and 

“the protection of the rights of persons who have been the object” of the transnational 

offenses described in Article 6. See Air France v. Saks, 470 U.S. 392, 396–97 (1985). 

Article 6 requires the signatories to criminalize several offenses, but does not prevent them 

from criminalizing other offenses. In fact, Article 6 explicitly states in Paragraph 4 that 

“[n]othing in this Protocol shall prevent a State Party from taking measures against a person 

whose conduct constitutes an offence under its domestic law.” Therefore, the United States 

can maintain its laws criminalizing alien smuggling while complying with its obligations 

under the Protocol. 

The defendant attempts to avoid the clear language of Paragraph 4 to Article 6 by 

inviting the Court to give undue weight to the Protocol’s drafting history, including the 

travaux preparatoires. Doc. 136 at 4-5. However, “[t]he interpretation of a treaty, like the 

interpretation of a statute, begins with its text.” Medellin v. Texas, 552 U.S. 491, 506 (2008) 

(citing Air France, 470 U.S. at 396-97). The text of the Protocol is unambiguous, and the 

travaux preparatoires should not serve to contradict the Protocol’s clear language. 

The United States’ obligations under the Protocol do not limit or invalidate its 

domestic criminal laws addressing alien smuggling, and the government may prosecute the 

defendant without violating its obligations under the Protocol. 

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c. The government did not violate the defendant’s substantive Due Process 

rights or engage in prosecutorial misconduct. 

The defendant also argued in his motion that the government violated his

substantive Due Process rights and engaged in prosecutorial based on the Protocol and the 

International Covenant on Civil and Political Rights (Covenant). Doc. 115 at 12-17. While 

the defendant does not address these arguments in his Objection, he offers a letter from 

United Nations Special Rapporteurs as “persuasive authority” in support of his arguments 

that the Protocol and Covenant apply to this case. Doc. 137 at 3. However, the letter simply 

“expresses concern” and asks for a response from the United States. Doc. 137-1 at 2-3. The 

letter makes no findings, and the United States was not obligated to respond. Therefore, 

the letter offers no support to the defendant’s arguments. 

II. Conclusion 

The government is free to prosecute the defendant as charged without violating its 

international obligations, offending Due Process, or committing prosecutorial misconduct. 

Therefore, the government respectfully requests that the Court overrule the defendant’s 

objections and deny his motion in its entirety. 

Respectfully submitted this 12th day of December, 2018. 

 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 12th day of December, 2018, to: 

All ECF participants 

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