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MICHAEL BAILEY 

United States Attorney 

ANNA WRIGHT

Assistant U.S. Attorney 

NATHANIEL J. WALTERS 

Assistant U.S. Attorney 

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 (DTF) 

GOVERNMENT’S MOTION IN LIMINE

TO PRECLUDE TESTIMONY 

REGARDING AN 

ADVICE OF COUNSEL DEFENSE 

The United States of America, by and through its undersigned attorneys, hereby 

moves the Court in limine to preclude any evidence related to an advice of counsel defense, 

including evidence about the protocols written by No More Deaths and the organization’s 

training program. Such testimony is irrelevant, improper, and likely to confuse the jury 

about a material issue in this case. 

I. Background 

Prior to the first trial, the defendant requested a jury instruction on the “advice of 

counsel” defense, which the Court declined to give. However, the Court did not restrict the 

defendant’s presentation of the evidence related to the protocols. 

At trial, the defense presented evidence about desert aid protocols written by No 

More Deaths through Professor Andrew Silverman, as well as through various other No 

More Deaths volunteers. See TR 6/4/19 at pp. 41-105. The evidence showed that No More 

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Deaths has a written set of protocols regarding desert aid and that it trains its volunteers 

regarding these protocols. See Exh. 203-A at 4.1 Specifically, the protocols state that, if a 

volunteer wishes to “evacuate” a “patient” at a No More Deaths camp for medical care or 

observation, the volunteer must first consult No More Deaths’ medical and legal teams. 

See id. at 8-9. However, the testimony also showed that volunteers are instructed that the 

protocols are more akin to suggestions than requirements, and volunteers can consult with 

medical and legal personnel as they see fit without violating the protocols. See TR 6/4/19 

at 56:16-57:4, 65:12-16, 76:9-77:14, 82:18-24. 

On direct examination, the defendant testified that he is familiar with the protocols 

and has attended many No More Deaths’ trainings over the years where information about 

the protocols is formally presented. TR 6/5/19 at 195:13-25. He also testified that all of his 

actions with regards to the material witnesses were “wholly consistent with the protocols 

of No More Deaths.” TR 6/6/19 at 98:21-100:12. 

Prior to cross-examination, the government asked defense counsel to disclose 

whether the defendant consulted with the No More Deaths legal team between January 14-

17 because the government did not have access to that information by virtue of having 

employed a filter team to review the results of a forensic search of the defendant’s phone. 

Id. at 89:6-92:22. The government sought this information because it was probative as to 

the defendant’s compliance with the No More Deaths protocols. Id. The defendant 

objected, arguing that he did not “have to give any kind of advance notice of that[.]” Id.

The government proceeded to cross-examination without this information and, as a result, 

did not ask the defendant about whether he complied with the portion of the protocols that 

calls for contacting the legal team. 

 

1 The page numbers refer to the original page numbers for the “2016 No More Deaths 

Volunteer Resource Book,” which are located in the lower right-hand corner of each 

page. 

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During closing argument, the defendant offered no argument regarding the 

defendant’s alleged compliance with the protocols. TR 6/7/19 at 31:23-50:2. 

II. Legal Summary 

Rule 401 provides that evidence is relevant if “(a) it has any tendency to make a fact 

more or less probable than it would be without the evidence; and (b) the fact is of 

consequence in determining the action.” Fed. R. Evid. 401. Irrelevant evidence is not 

admissible. Fed. R. Evid. 402. To be “relevant,” evidence need not be conclusive proof of 

a fact sought to be proved, or even strong evidence of the same. United States v. Curtin, 

489 F.3d 935, 943 (9th Cir. 2007). All that is required is a “tendency” to establish the fact 

at issue. Id. Nonetheless, Rule 403 allows the court to “exclude relevant evidence if its 

probative value is substantially outweighed by a danger of one or more of the following: 

unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or 

needlessly presenting cumulative evidence.” 

III. Discussion 

a. The Court should preclude evidence regarding an advice of counsel 

defense because the defendant cannot make the required showing to 

present this defense. 

In order to qualify for an advice of counsel instruction, a defendant must show that 

there was full disclosure to an unbiased and competent attorney of all material facts, and 

that he relied in good faith on the attorney’s recommended course of conduct. United States 

v. Kenney, 911 F.2d 315, 322 (9th Cir. 1990); United States v. Crooks, 804 F.2d 1441, 1450 

(9th Cir. 1986), opinion modified on denial of reh’g, 826 F.2d 4 (9th Cir. 1987). “Essential 

to the claim of reliance on counsel is a showing that the reliance be in good faith and that 

the advice be obtained after full disclosure of all of the facts to which the advice 

pertains...The defendant must also show that he actually relied on the advice, believing it 

to be correct.” United States v. Conforte, 624 F.2d 869, 877 (9th Cir. 1980) (internal 

citations omitted). A defendant may only raise this defense “against a specific intent crime, 

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but not against a general intent crime.” United States v. Bohn, 622 F.3d 1129, 1138 (9th 

Cir. 2010) (internal citations omitted). 

In this case, after a full trial on the merits, the defendant failed to establish any of 

the elements of an advice of counsel defense. The defendant did not offer any evidence that 

he consulted directly with any attorney and, in fact, objected to disclosing this information 

to the government. See United States v. Ortland, 109 F.3d 539, 550 (9th Cir. 1997) (by 

raising an advice of counsel defense, a defendant waives the attorney-client privilege as to 

the relevant communications). In addition, there was no evidence that the defendant 

disclosed the material facts of the offense to any attorney, including the good health of the 

material witnesses or the length of their stay at the Barn, and there was no evidence that 

the defendant actually followed a specific recommended course of action. 

The defendant’s alleged compliance with the No More Deaths’ protocols also 

cannot satisfy the elements of the advice of counsel defense. First, the protocols were 

written as general guidance to No More Deaths volunteers and do not address the specific 

facts of this case. See Exh. 203-A at 8; TR 6/4/19 at 64:18-65:3. Second, volunteers are not 

required to follow the protocols as written, but may use their best judgement when they see 

fit. This falls far short of recommending a specific course of conduct, since “do whatever 

you think is appropriate” hardly qualifies as legal advice. Third, the protocols are not 

unbiased, since they are authored by members of No More Deaths and there was no 

testimony that the protocols have been approved by an attorney that is not also a volunteer 

with the group. Finally, the defendant could not rely on the protocols in good faith given 

the widely publicized prosecution of No More Deaths volunteers on similar charges in 

2005, as well as the prior conviction of one of the founding members of No More Deaths 

for harboring and/or transporting illegal aliens. See United States v. Strauss, et. al, 05-cr01499-RCC-BPV; United States v. Aguilar, 883 F.2d 662 (9th Cir. 1989). 

The defendant cannot establish any evidence to support an advice of counsel defense 

in this case. Like other affirmative defenses, if the defendant cannot proffer specific 

evidence relating to each element of the defense, then all evidence of the defense should 

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be precluded as irrelevant. See United States v. Wofford, 122 F.3d 787, 789 (9th Cir. 1997). 

Trial courts routinely apply this standard in the context of duress, and the same concerns 

regarding relevance and the Rule 403 factors, discussed below, apply to the “advice of 

counsel” defense. Accordingly, all evidence related to the advice of counsel defense, 

including the protocols, should be precluded as irrelevant. 

b. The Court should preclude evidence regarding an advice of counsel 

defense because it will mislead the jury, invade the province of the Court, 

and confuse the issues. 

Even if evidence regarding the protocols and No More Deaths’ volunteer training

program has some limited relevance, which the government does not concede, the Court 

should preclude its admission as being more prejudicial than probative. Specifically, 

introduction of evidence regarding the organization’s protocols necessarily involves the 

legal opinion that following the established protocols protects No More Deaths from

criminal liability. That is simply not the case. Jurors are not equipped to evaluate the merit 

of this type of legal opinion based on their own experiences, and cross-examination is 

insufficient to demonstrate the errors in the underlying legal reasoning in a manner that 

will suitably assist the jury in determining guilt. Accordingly, evidence about the protocols 

will mislead the jury as to the applicable law. 

In addition, allowing this type of legal opinion into evidence invades the province 

of the Court, since the Court is responsible for instructing the jury on the applicable law at 

issue. To the extent testimony about criminal immigration violations conflicts with or is 

not addressed by the Court’s instruction, jurors will find themselves in the impossible 

situation of trying to reconcile a witness’ testimony about the law with the Court’s 

instructions on the law that applies to the case. 

This very scenario occurred during the first trial. The defendant offered legally 

incorrect or incomplete testimony regarding the elements of harboring. TR 6/4/19 at 81:8-

18. Specifically, the defendant elicited testimony that intent to conceal is a necessary 

element of harboring. Id. As the Ninth Circuit stated in United States v. Tydingco, 909 F.3d 

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297 (9th Cir. 2018), concealment from immigration authorities is one way to prove that a 

defendant intended to violate the law. However, it is not the only way. Id. at 304. The 

defendant also elicited speculative testimony about the consequences that No More Deaths 

might incur if it engaged in illegal actions based on this type of poor legal analysis. See TR 

6/4/19 at 49:17-50:17. Despite the Court’s instruction on the law after closing arguments, 

the questions the jury had during the deliberation phase clearly showed that the jurors were 

clearly confused about the correct law that applied in this case. See Doc. 276. 

Any evidence regarding the protocols and No More Deaths’ volunteer training 

program will mislead the jury, invade the province of the Court as to the appropriate law 

that applies to the case, and will invite improper and inaccurate legal opinions from defense 

witnesses. For these reasons, this evidence should be precluded. 

c. Precluding evidence regarding the protocols will not prevent the 

defendant from presenting his theory of defense. 

This evidence is not material to the defendant’s theory of the case. As the defendant 

asserted during closing argument, his theory of the case is that he did not intend to violate 

the law, because he only “wanted to alleviate human suffering.” TR 6/7/19 at 49:19-21. 

Even with preclusion of the protocols, the defendant can still testify that he harbored the 

material witnesses at the Barn for four days and three nights because he allegedly believed 

they needed medical care. The jury can then decide whether the defendant is credible in 

light of all the evidence and determine what impact, if any, his motive had on his intent to 

violate the law. See Aguilar, 883 F.2d at 687 (distinguishing motive from intent). 

IV. Conclusion 

For the reasons discussed above, the United States respectfully requests that the 

Court preclude the defendant from introducing evidence in support of an advice of counsel 

defense, including evidence pertaining to No More Deaths’ protocols and volunteer 

training. 

/// 

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Respectfully submitted this 30th day of September, 2019. 

 MICHAEL BAILEY 

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 30th day of September, 2019, to: 

All ECF participants 

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