1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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

Pro Bono Attorneys for Defendant Scott Daniel Warren

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

SCOTT DANIEL WARREN,

Defendant.

)

)

)

)

)

)

)

)

)

)

)

No.CR-18-00223-001-TUC-RCC

MOTION FOR SANCTIONS DUE 

TO SERIOUS ETHICAL 

VIOLATIONS

Defendant Scott Daniel Warren, through his pro bono attorneys Gregory J. 

Kuykendall and Amy P. Knight, hereby moves this Court to impose sanctions on 

Assistant United States Attorneys Anna Wright and Nathaniel Walters for their 

improper, unethical, and prejudicial conduct in engaging in ex parte 

communications with Magistrate Judge Velasco. Specifically, he requests that the 

Court dismiss the indictment or, at the very least, disqualify the U.S. Attorney’s 

Office for the District of Arizona. In support thereof, he states as follows:

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 1 of 26
2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

I. Introduction

The Supreme Court directs that “[f]ederal courts have an independent 

interest in ensuring that criminal trials are conducted within the ethical standards of 

the profession and that legal proceedings appear fair to all who observe them.” 

Wheat v. United States, 486 U.S. 153, 160 (1988). It has also long recognized that 

“[t]he United States Attorney is the representative not of an ordinary party to a 

controversy, but of a sovereignty whose obligation to govern impartially is as 

compelling as its obligation to govern at all; and whose interest, therefore, in a 

criminal prosecution is not that it shall win a case, but that justice shall be done.” 

Berger v. United States, 295 U.S. 78, 88 (1935). In combination, these principles 

demand that federal prosecutors scrupulously observe the rules of ethics, not only 

for the sake of defendants, but also for the sake of the criminal justice system.

Here, the Assistant U.S. Attorneys undeniably broke a basic ethical rule: 

they approached the judge ex parte and pitched their argument for relief from a 

prior ruling that favored the defense. The judge gave them that relief. Only after 

this exchange was complete did the defense learn that it had occurred, and only a 

week after that was the defense informed of the content of the ex parte 

communications, not by the prosecutors who had improperly initiated them, but by 

the judge who received—and relied upon—them. Especially because this 

misconduct occurred in the context of a claim that government agents had acted 

illegally in targeting Dr. Warren for arrest—something prosecutors would have an 

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 2 of 26
3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

obvious motive to cover up—this case cannot proceed with the fact and appearance 

of strict impartiality necessary to maintain public confidence in our justice system.

II. Factual Background

On January 17, 2018, No More Deaths, a local humanitarian organization, 

issued a report entitled “Death & Disappearance on the US-Mexico Border: 

Interference with Humanitarian Aid.” The report, along with accompanying video 

footage, was highly critical of the Border Patrol’s actions in destroying emergency 

supplies left in the desert for travelers in distress. The organization held a press 

conference that morning, distributed the report and videos widely, and emailed a 

copy of the report directly to a Border Patrol official, who forwarded it to the agent 

in charge at the Ajo station. That same morning, the Ajo agent forwarded it to the 

Pima County Sheriff’s Office and the National Park Service. Doc. 131-2. 

Around 2:00 that afternoon, Border Patrol agents set up surveillance on a No 

More Deaths facility in Ajo known as The Barn. When defendant Scott Warren 

arrived there later that afternoon, the agents immediately recognized him. They 

continued to watch the property, apparently with the goal of trying to catch No 

More Deaths volunteers doing something illegal, and when they eventually saw 

two men they assumed were undocumented, they assembled a large convoy and 

entered the property. Dr. Warren asked them to leave, but they proceeded toward 

the door anyway, where they located and arrested two migrants. They then arrested 

Dr. Warren, who was charged by complaint the following day with harboring

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 3 of 26
4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(Doc. 1). The Government subsequently obtained an indictment for two counts of 

harboring and one count of conspiracy to transport and harbor (Doc. 26). 

On August 23, 2018, Dr. Warren filed a Motion for Discovery into Selective 

Enforcement (Doc. 113), outlining his claim that the Border Patrol surveilled and 

arrested him in retaliation for protected First Amendment speech and association. 

In addition to the unavoidable inference from the timing of his arrest in relation to 

the report, he pointed to the Government’s failure ever to prosecute anyone else for 

harboring based solely on provision of food, water, and shelter for humanitarian 

reasons. He highlighted an incident approximately six months earlier when Border 

Patrol agents raided a camp where volunteers were providing medical care to 

migrants; in that incident, which did not follow the release of a scathing report, 

four migrants were arrested, but Border Patrol did not arrest the volunteers who 

were providing food, water, shelter, and medical care. In other words, Dr. Warren 

had evidence that similarly situated individuals were not arrested when they had 

not just vocally criticized the government.

The Government responded on September 6, 2018 (Doc. 123), and Dr. 

Warren replied on September 13, 2018 (Doc. 126). Judge Velasco held oral 

argument on October 16, 2018 (Doc. 130). Dr. Warren filed a Notice of 

Supplemental Authority the following day, alerting the Court to the Ninth Circuit’s 

new opinion clarifying that the heightened selective prosecution discovery 

standard does not apply to claims of selective enforcement (Doc. 131). Judge

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 4 of 26
5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Velasco issued an Order on November 7, 2018, finding that Dr. Warren’s 

“suspicion should be explored,” and directing “that the Government disclose any 

emails or texts sent to the two agents surveilling The Barn from 8:00 a.m. until 

these two agents went off duty on January 17, 2018” (Doc. 135).

Defense counsel contacted the prosecutors two days later, on January 19, 

inquiring about their plans for compliance with the Court’s order. AUSA Anna 

Wright responded that “I am working to identify and gather responsive materials, 

and I hope to have a timeline for disclosure sometime next week.” See Doc. 138-1.

That week passed with no response, as did the following week. On November 27, 

2018—nearly three weeks after the order and 18 days after their first inquiry—

defense counsel again emailed the prosecutors, asking “Could you please provide 

us with the promised timeline for this compliance as soon as possible?” Id. The 

prosecutors did not answer, but they did send an email asking for an extension on 

their response to an unrelated motion. Defense counsel responded to that request 

immediately and again requested information about the ordered disclosure. Having 

received no response by December 3, and certainly no notification of the 

prosecutors’ plan to secretly object to the magistrate’s order, the defense filed a 

motion to compel (Doc. 138). 

The following day, the prosecutors nearly simultaneously filed a response to 

the motion to compel (Doc. 139) and notified the defense that disclosure was 

available for pickup. The response stated that the Government “provided all of the 

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 5 of 26
6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

responsive materials to the Court in camera with a plan for disclosure,” and that 

the Court then “issued a letter approving of the government’s disclosure plan,” and 

the government provided disclosure in accordance with that plan. Doc. 139, para. 

8. The prosecutors neither included their private correspondence with Judge 

Velasco in their response nor otherwise provided defense counsel with a copy of 

what they had secretly argued to Judge Velasco. The defense filed a reply on 

December 6, 2018 (Doc. 138), objecting strenuously to the apparent ex parte 

communications between the prosecutors and Judge Velasco concerning what 

subset of the ordered materials they would disclose, and explaining, based on the 

materials that were disclosed, that additional responsive documents had to exist. 

The defense explained that if the Government believed the order was too broad, it 

should have filed—and served on the defense—a motion for reconsideration.

Judge Velasco denied the motion to compel on December 12, 2018 (Doc. 

144), insisting that the Government had complied with the November 7 disclosure 

order because it had disclosed “the information the Court determined was in 

compliance with the Court’s Order,” and that “[t]he defendant’s suggestion that he 

is being denied discoverable evidence is unfounded,” because the Government’s in 

camera submission was broad, and “[t]he Court reviewed it and found nothing 

helpful to the Defendant’s case or theories of the case.” Judge Velasco attached to 

the order his ex parte correspondence with the prosecutors. 

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 6 of 26
7

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

This ex parte correspondence, disclosed for the first time over a week after it 

occurred, consists of a two-page letter from the prosecutors to Judge Velasco, 

dated December 3, 2018 (the same day defense counsel filed their motion to 

compel), and a one-line response from Judge Velasco the following day. The 

prosecutors’ letter explicitly recognized that the Court’s order was broad, and then 

argued that “upon further review, many of the texts and emails sent or received 

during the relevant time period do not fall within the government’s disclosure 

obligations.” Doc. 144 at 3. The prosecutors asked Judge Velasco for “permission 

to disclose only those materials that implicate the government’s disclosure 

obligations under Federal Rules of Criminal Procedure 16 and 26.2, Federal Rules 

of Evidence 404(b) and 609, 18 U.S.C. § 3500 (Jencks Act), Brady v. Maryland, or 

Giglio v. United States” (citations omitted). Id. In other words, the prosecutors 

asked, in private, for the Court to rescind its order requiring additional disclosure 

for the selective enforcement claim not covered by pre-existing disclosure 

obligations. The prosecutors then outlined 18 categories of documents apparently 

provided to the Court in camera with the letter, and delineated which ones they

would be disclosing. Crucially, under the heading “Materials Not Subject to 

Disclosure,” they listed materials that “relate to other unrelated criminal 

investigations,” as well as materials that “relate to this matter but do not implicate 

the government’s disclosure obligations.” The prosecutors then repeated their

argument that they should only be required to produce materials covered by other 

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 7 of 26
8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

pre-existing disclosure obligations. Judge Velasco’s written response said only that 

he would “confirm your proposed disclosure as being in compliance with [his] 

previous Order.” Doc. 144 at 2. 

III. Governing Law

Attorneys practicing before this Court must abide by the Arizona Rules of 

Professional Conduct. LRCiv 83.2(e); see also Roosevelt Irrigation Dist. V. Salt 

River Project Agric. Improvement & Power Dist., 810 F.Supp.2d 929 (D. Ariz. 

2011). Other sources confirm that the Assistant U.S. Attorneys must follow the 

rules of ethical conduct that apply in this Court. For instance, the Justice Manual 

requires, in Section 1-4.010, that “Department attorneys also must comply with 

applicable rules of professional conduct.” Regulations also confirm this obligation: 

“A government attorney shall, in all cases, comply with the rules of ethical conduct 

of the court before which a particular case is pending.” 28 C.F.R. 77.4. 

Ethical Rule 3.5 provides, in relevant part, that “A lawyer shall not. . . 

communicate ex parte with [a judge] during the proceeding unless authorized to do 

so by law or court order.” The Comments also note that many forms of improper 

influence “are specified in the ABA Model Code of Judicial Conduct, with which 

an advocate should be familiar. A lawyer is required to avoid contributing to a 

violation of such provisions.” (Cmt. 1). The comments further provide: “During a 

proceeding a lawyer may not communicate ex parte with persons serving in an 

official capacity in the proceeding, such as judges. . . unless authorized to do so by 

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 8 of 26
9

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

law or court order. Lawyers should refer to the Code of Judicial Conduct, Rule 2.9 

for authorized ex parte communications.” 

The Code of Conduct for United States Judges provides, in Cannon 3(4):

A judge should accord to every person who has a legal interest in a 

proceeding, and that person’s lawyer, the full right to be heard 

according to law. Except as set out below, a judge should not initiate, 

permit, or consider ex parte communications or consider other 

communications concerning a pending or impending matter that are 

made outside the presence of the parties or their lawyers. If a judge 

receives an unauthorized ex parte communication bearing on the 

substance of a matter, the judge should promptly notify the parties of 

the subject matter of the communication and allow the parties an 

opportunity to respond, if requested.”

Attorneys have an ethical obligation to refrain from facilitating violations of these 

judicial obligations, in addition to committing ethical violations themselves.

Formal Ethics Opinions by the Arizona State Bar provide further guidance 

about the very limited circumstances in which attorneys may engage in ex parte 

communications with a judge. Opinion 87-02 observes that in addition to ER 

3.5(b), “the provisions of ER 8.4(d) define professional misconduct to include 

conduct that is prejudicial to the administration of justice. Finally, ER 8.4(f) states 

that it is professional misconduct for a lawyer to ‘knowingly assist a judge or 

judicial officer in conduct that is a violation of applicable rules of judicial conduct. 

. . .” The State Bar then explained it was unethical for lawyers to engage in ex 

parte communications even if they were initiated by the judge. Later that year, the 

State Bar issued Opinion 87-17, again interpreting ER 3.5(b). A lawyer had 

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 9 of 26
10

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

inquired about the propriety of ex parte communications “for purposes of resolving 

procedural matters, so long as the merits of any case are not discussed.” The State 

Bar determined that even administrative matters may not be addressed ex parte, 

although for a purely procedural matter, a judge could “apprise the other party of 

any ex parte communication, allowing the other party time to be heard, and thus 

lifting the communication out of the realm of ex parte communications.” The State 

Bar emphasized that this exception only applied to purely logistical discussions.

IV. The Prosecutors Engaged in Impermissible Ex Parte Communications with 

Judge Velasco

A. The Prosecutors Argued to the Court Ex Parte Regarding Disclosure 

Obligations, and the Defense Was Not Given Notice or Any Opportunity to 

Respond Before the Judge Decided the Issue.

No dispute exists that the prosecutors sent a letter to the magistrate judge about 

their disclosure obligations without copying defense counsel. Indeed, the 

prosecutors admitted this in their response to Defendant’s motion to compel: “On 

December 4. . . the government provided all of the responsive materials to the 

Court in camera with a plan for disclosure.” Doc. 139 at 2. Crucially, the 

correspondence was only filed as an attachment to the order denying the motion to 

compel—meaning that by the time the defense was informed of the substance of 

the arguments, Judge Velasco had already made a decision about the extent to 

which he was going to enforce his November 7 order. Defense counsel thus had no 

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 10 of 26
11

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

opportunity to respond to the prosecutors’ ex parte submission while the judge was 

still considering the issue. 

B. The Prosecutors’ Ex Parte Communication Presented a Substantive Legal 

Argument.

The prosecutors’ ex parte communications were not merely administrative. The 

ex parte communications constituted an argument for reconsideration. In their ex 

parte letter, they acknowledged what the Court’s order required—“disclosure of all 

texts or emails”—and argued that they should not have to abide by those terms. 

Doc. 144 at 3. Specifically, they asked for permission to limit their disclosure to 

“only those materials that implicate the government’s disclosure obligations under 

Federal Rules of Criminal Procedure 16 and 26.2, Federal Rules of Evidence 

404(b) and 609, 18 U.S.C. § 3500 (Jencks Act), Brady v. Maryland, 373 U.S. 83 

(1963), or Giglio v. United States, 405 U.S. 150 (1972). In other words, the 

prosecutors asked the Judge to revoke his order that they disclose materials 

pursuant to a different obligation: to provide discovery for a selective enforcement 

claim upon a threshold showing, pursuant to United States v. Armstrong, 517 U.S. 

456 (1996) and United States v. Sellers, 906 F.3d 848 (9th Cir. 2018). 

In so doing, the prosecutors were arguing a substantive position on the law: that 

despite the Court’s order after full briefing and argument that they provide 

materials specifically relevant to selective enforcement, they were actually only 

required to disclose information that was covered by some other separate preCase 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 11 of 26
12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

existing disclosure obligation. They argued, in essence, that the Court had been 

wrong to order any additional disclosure, despite its finding that Dr. Warren had 

met the threshold showing required by Sellers, and they therefore should not have 

to comply. The letter was thus not even arguably administrative or procedural in 

nature; it took issue with the fundamental premise of the Court’s existing order, 

and asked to be relieved of an obligation based on a legal argument, and a 

demonstrably wrong argument, at that. That is precisely the type of 

communication—one that seeks to influence the Court’s decision on a substantive 

issue—that absolutely may not be made ex parte. 

C. Any Security or Other Concerns Cannot Justify Exclusion of the Defense 

from these Communications.

To be sure, situations exist where a party—often the Government—has 

compelling reasons for keeping certain narrow pieces of information secret. Thus, 

the Ninth Circuit has recognized that an ex parte proceeding may be necessary 

“[i]n a case involving classified documents” where the government “explained the 

specific damage to national defense if information were disclosed.” United States 

v. Klimavicius-Viloria, 144 F.3d 1249, 1261 (9th Cir. 1998). The prosecutors here

made no argument that disclosure of the ordered materials would be harmful to the 

public interest. And where their redactions are concerned, they provided no 

explanation at all—they simply stated that “the government will redact certain 

information.” Doc. 144 at 4. The absence of any articulated concern about the 

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 12 of 26
13

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

effect of disclosing the ordered documents confirms that the prosecutors had no 

purpose that was even arguably proper; they simply did not want to disclose the 

documents, and rather than arguing the point in open court, they convinced the 

judge in private. This is flatly contrary to the requirements of ER 3.5(b). 

In any event, where real concerns about the disclosure of harmful information 

in criminal proceedings exist, the law provides narrow exceptions to the general 

ban on ex parte submissions. For instance, in the Classified Information Procedures 

Act, Congress provided a procedure for federal prosecutors to obtain judicial 

approval to withhold certain classified information from defendants on an ex parte 

basis. See 18 USC Appx § 4 (“The court, upon a sufficient showing, may authorize 

the United States to delete specified items of classified information from 

documents to be made available to the defendant. . . The court may permit the 

United States to make a request for such authorization in the form of a written 

statement to be inspected by the court alone. . . .”). This prosecution implicates no 

classified information and these prosecutors do not even purport to be proceeding 

under this authorization. Likewise, Fed. R. Crim. P. 16(d)(1) contemplates that a 

party may secure some restriction on required disclosure “for good cause” based 

on a written statement submitted ex parte.1 But again, these prosecutors’ 

 1The advisory committee notes explain that this provision does not entitle parties to simply 

approach the court in private. Rather, “if a party requests a protective or modifying order and asks to make its showing ex parte, the court has two separate determinations to make. 

First, it must determine whether an ex parte proceeding is appropriate, bearing in mind that 

ex parte proceedings are disfavored and not to be encouraged. . . . Second, it must determine whether a protective or modifying order shall issue.” This very clearly contemplates an 

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 13 of 26
14

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

communication did not invoke this provision or make a “good cause” showing; it 

simply argued they were not obligated to disclose all the ordered materials. 

The fact that the law specifically carves out situations where attorneys may 

make ex parte submissions confirms that they otherwise may not. ER 3.5 accounts 

for this reality by exempting communications that are “authorized. . . by law or 

court order.” The prosecutors here invoked no legal authorization for their private 

correspondence with the judge, nor can they now. Accordingly, neither the law nor 

ER 3.5 permits what anything approximating what they did. 

If the Government had good cause to withhold some of the information it was 

ordered to produce, the appropriate and ethical action would have been to file a 

motion to reconsider the disclosure order or a motion for a protective or modifying 

order under Rule 16(d)(1), along with a request to make its good cause showing in 

an ex parte written statement. By instead addressing the judge in private with a

legally unsupportable proposal for disclosure far narrower than what had properly 

been ordered, the prosecutors gained an unfair advantage: the ability to present 

their specious legal argument without opposition. That is blatantly unethical.

D. Disclosure Pertaining to Selective Enforcement is an Essential Component

of a Substantive Constitutional Claim.

Lest there be any doubt the prosecutors’ ex parte letter was substantive in 

nature, this was no run-of-the-mill discovery dispute. This is a claim of selective 

 open, public request for the protective or modifying order, with an accompanying request 

to make the required good cause showing ex parte. 

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 14 of 26
15

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

enforcement—a claim that government agents exerted their power in an improper 

and unconstitutional manner, in violation of the defendant’s equal protection and 

due process rights. The Ninth Circuit recently articulated the obvious concern that 

makes selective enforcement so pernicious: defendants are “unlikely to meet this 

demanding standard without information that only the government has.” Sellers, 

906 F.3d at 850. Indeed, the Court noted that “[a]sking a defendant claiming 

selective enforcement to prove who could have been targeted” by law enforcement 

but was not, “is asking him to prove a negative; there is simply no statistical record 

for a defendant to point to.” Id. at 853. Thus, selective enforcement is serious 

government misconduct, but the government controls the information necessary to 

prove it. Without court intervention, government agents could consistently get 

away with illegal discriminatory and retaliatory practices simply by refusing to 

hand over the information a defendant would need to prove what occurred. For this 

reason, when a defendant makes a credible showing based on information he can 

access, courts must order the government to provide the necessary information to 

investigate and prove the claim. Selective enforcement, if proven, can yield

dismissal of charges. See United States v. Mumphrey, 193 F. Supp. 3d 1040, 1059 

(N.D. Cal. 2016). Thus, selective enforcement discovery motions have high stakes. 

These prosecutors’ resistance to disclosing information about the agents’ 

actions, and the fact that their attempts to limit what they must disclose were made 

in secret, is deeply troubling. The defense has raised a credible claim that Border 

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 15 of 26
16

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Patrol agents targeted Dr. Warren in direct retaliation for his exercising his First 

Amendment rights; the Court agreed that they had sufficiently established a claim 

that disclosure was necessary. Rather than comply with the Order, the prosecutors 

then secretly convinced the judge to let them withhold information they 

exclusively control that would have allowed full exploration of the claim that 

agents acted improperly. That casts a pall of impropriety over this prosecution and 

the U.S. Attorney’s Office, and if allowed to go unpunished, over the U.S. District 

Court for the District of Arizona.

V. This Court Must Fashion an Appropriate Sanction.

This Court may use its inherent supervisory powers as “an appropriate 

means of policing ethical misconduct by prosecutors.” United States v. Lopez, 4 

F.3d 1455, 1463 (9th Cir. 1993). The Arizona Supreme Court regards attempted ex 

parte communications with judicial officers following an adverse ruling to be a 

very serious matter. See In re Bemis, 189 Ariz. 119, 122 (1997) (imposing formal

censure and one year of supervised probation on attorney for negligently

attempting to contact judges ex parte following adverse rulings). It has relied on a 

leading treatise on legal ethics:

The purpose of the prohibition against ex parte communications is to 

prevent the communicating side from gaining an unfair advantage in 

the litigation. The advantage is created, of course, because the 

communication may influence the judge on an important decision 

without the absent party being able to rebut or qualify the 

communication as it is being made and with knowledge of the exact 

form in which it is made. Such contacts violate the right of every party 

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 16 of 26
17

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

to a fair hearing, a corollary of which is the right to hear all evidence 

and argument offered by an adversary. The violation is particularly 

acute because the calculated secretiveness of such communications 

strongly suggests their inaccuracy.

In re Evans, 162 Ariz. 197, 204-05 (quoting C. Wolfram, Modern Legal Ethics, at 

604 (1986). Here, too, the secret argument ignored the governing law.

A. This Court Should Dismiss the Indictment. 

Prosecutors, even more than other attorneys, are required to “stay[] well within 

the rules.” United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993). In United 

States v. Lopez, 4 F.3d 1455 (9th Cir. 1993), an Assistant United States Attorney

negotiated directly with defendant, bypassing his attorney, in violation of ethical 

rules. The Court explained, “We have no doubt but that federal courts are 

empowered to deal with such threats to the integrity of the judicial process,” 

which, in appropriate cases, could extend to the dismissal of an indictment. Id. at 

1464. The Ninth Circuit has actually reversed criminal convictions where 

prosecutors acted unethically. For instance, in Koyjayan, 8 F.3d 1315, the Court 

overturned a conviction where the prosecutor did not give the defense all the 

information it had about one of his witnesses whose testimony he presented by way 

of hearsay, rather than live. It explained the basis for its outrage at the prosecutor’s 

behavior: “The government has never articulated why it withheld this information, 

saying only that ‘the government . . . is not required to be defendant's investigator.’ 

Such hard-bitten litigation tactics are unbecoming a prosecutor.” Id. at 1323 (citing 

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 17 of 26
18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Monroe H. Freedman, Understanding Lawyers' Ethics (1990)). The Court then 

explained that the District Court would be well within its rights, on remand, to 

forbid the Government from retrying the defendant, explaining, “[q]uite as 

important as assuring a fair trial to the defendants now before us is assuring that 

the circumstances that gave rise to the misconduct won't be repeated in other

cases.” Id. at 1324. The Court explained that serious sanctions were necessary 

because “[m]uch of what the United States Attorney’s Office does isn’t open to 

public scrutiny or judicial review. It is therefore particularly important that the 

government discharge its responsibilities fairly, consistent with due process.” Id. 

The Court was especially concerned about “the great danger in ‘untrained lawyers 

wielding public power.’ . . . What we find most troubling about this case is not 

[the prosecutor’s] initial transgression, but that he seemed to be totally unaware 

he'd done anything at all wrong, and that there was no one in the United States 

Attorney's office to set him straight.” Id. The Ninth Circuit saw its role as making 

sure that “this kind of thing won’t happen again.” Id. 

Dismissal is warranted because the ethical violation was blatant and 

intentional, and the prosecutors apparently saw nothing wrong with having argued 

their position privately to the judge. Indeed, they relied on their having submitted 

this private letter as a reason why they should not be sanctioned. Doc. 139. Now 

that they have been caught, they do not argue that they had some legal basis for 

arguing their opposition ex parte; rather, they attempt to redirect the Court’s 

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 18 of 26
19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

attention to the propriety of in camera review in certain circumstances. Doc. 152-1.

They either have not grasped the fundamental wrongness of their behavior, as they 

were not trained by their office to avoid this kind of lapse, or they are attempting to 

create a smoke screen with their irrelevant argument about the propriety of in 

camera review in order to avoid repercussions. Only a serious sanction can ensure 

that the U.S. Attorney’s Office grasps the importance of ensuring their prosecutors 

behave fairly and ethically when wielding governmental power. 

Significantly, the prosecutors’ ethical violations have caused substantial 

prejudice to Dr. Warren in multiple ways. First, because of their successful ex 

parte lobbying of the magistrate judge, Dr. Warren is now unable a priori to 

establish either his right to additional discovery vis-à-vis his selective enforcement 

claim, or his right to have the case dismissed because of selective enforcement. In 

other words, the prosecutors’ actions have prevented him from discovering the 

information to which he is entitled and consequently put him in the untenable 

position of being unable to establish the prejudicial impact of their actions. (How 

can he prove that the withheld material would have helped him if it remains 

withheld?) Second, the prosecutors’ blithe refusal to acknowledge that they have 

done anything wrong creates an environment in which Dr. Warren cannot 

reasonably rely on them to follow any of the myriad disclosure requirements —

Brady, Giglio, Jenks, Sellers, Armstrong, to name a few — for which the 

government and the government alone is aware of its compliance. And finally, the 

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 19 of 26
20

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

abject obviousness of the impropriety that has occurred, combined with both the 

prosecution’s and the magistrate’s refusal to even acknowledge that the ex parte 

communication was wrong, creates a litigation environment of the absurd, where 

impartiality cannot be perceived or achieved. Following these violations, he no 

longer stands on equal footing with the Government before an impartial 

decisionmaker.

Finally, the prosecutors and the judge having communicated privately about a 

crucial substantive issue—and one concerning disclosure of evidence pertaining to 

potential government misconduct, at that—these proceedings no longer maintain 

any appearance of the strict impartiality necessary for the integrity and proper 

functioning of our judicial system. To allow this tainted case to proceed would 

undermine public confidence in the fairness of criminal proceedings. 

B. At the Very Least, the Court Must Disqualify the U.S. Attorney’s Office. 

Courts have also recognized that “[t]he disqualification of counsel because

of an ethical violation is a discretionary exercise of the trial court's inherent

powers.” Crenshaw v. Mony Life Ins. Co., 318 F. Supp. 2d 1015, 1020 (S.D. Cal. 

2004) (citing United States v. Wunsch, 84 F.3d 1110, 1114 (9th Cir. 1996). In this 

case, disqualification is necessary both to protect the integrity of the judicial 

process and to deter further prosecutorial misconduct. 

This misconduct is not the type of slip that can occur in the heat of a 

moment, as when a prosecutor makes an improper comment in court. This ethical 

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 20 of 26
21

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

lapse involved actively ignoring defense counsel’s request for updates over the 

course of several weeks, reviewing and sorting out 18 distinct categories of 

documents, implementing redactions, drafting a two-page letter, and handdelivering it to a judge. It was obviously deliberate, it was unethical, and it resulted 

in the prosecutors obtaining the relief they sought by successfully convincing the 

magistrate judge to walk back a previous order that was both legally correct and 

favorable to the defense. This Court must not allow attorneys who have openly 

flouted such a basic ethical rule to continue to wield the sovereign power of our 

federal government in prosecuting this defendant.

Nor can these prosecutors’ actions be attributed to youthful inexperience; 

according to the State Bar, both were educated in Arizona and admitted to the bar 

here in 2012; Ms. Wright was previously admitted in another state in 2010. They 

should thus both be very familiar with the ethical rules. And of course, the 

prohibition on ex parte communications is not an oddity of Arizona practice or an 

obscure rule that is easily overlooked; it is the foundational principle of our 

adversary system.

In assessing these ethical violations, this Court should note that this is not

the first instance of untrustworthy behavior by these prosecutors in this case. As 

the Court may recall, early in the case, the Government scheduled video 

depositions of its two material witnesses. In their initial disclosure, the prosecutors

provided video recordings of interviews of those two witnesses by Border Patrol 

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 21 of 26
22

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

agents. Less than a week later, and more than two weeks before the scheduled 

depositions, defense counsel made a specific request for “any and all additional 

material witness interview recordings that may exist.” See Emergency Motion to 

Postpone Depositions (Doc. 30) at 2. After a four-day delay, AUSA Anna Wright 

averred in writing that no additional recordings existed. 

That assurance was not true—an additional, undisclosed video recording of 

approximately 25 minutes of further interview with one of the two witnesses did 

exist. After intensive work by defense counsel to prove it must exist, the 

prosecutors finally produced it, despite the fact that they had previously denied 

having any such video.

2 Id. The withheld video turned out to include discussion of 

issues central to the Government’s accusations, including how the two migrants 

got to The Barn. If the defense had relied on the prosecutor’s word, as the ethical 

rules ought to permit them to do, they never would have received this crucial 

evidence. The prosecutors’ denial that the video existed, when the reports 

generated by their own agents demonstrated that it did, violates ER 3.4(a) (Fairness 

to Opposing Party and Counsel), which forbids attorneys from concealing material 

 2 Prosecutors cannot excuse nondisclosure or misrepresentations about the evidence simply 

by claiming they personally did not know about it. A prosecutor is “deemed to have 

knowledge of and access to anything in the custody or control of any federal agency 

participating in the same investigation of the defendant.” United States v. Zuno-Arce, 44 

F.3d 1420, 1427 (9th Cir. 1995). And in any event, the documents the defense ultimately 

used to force the prosecutors to acknowledge the existence of the additional video were 

obviously in the prosecutors’ possession, as they were the ones who provided them to the 

defense. If AUSA Wright was unsure about the number of separate video recordings, she 

had an obligation to look into it before averring to defense counsel that no more existed.

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 22 of 26
23

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

with potential evidentiary value. It also implicates ER 8.4(c) and (d), which forbid 

dishonesty, fraud, deceit, or misrepresentation, and conduct prejudicial to the 

administration of justice. 

Moreover, this withholding of selected portions of crucial evidence was not 

confined to a single incident. Just over two weeks before the scheduled 

depositions, the prosecutors disclosed video surveillance footage from two gas 

stations where the material witnesses had been, consisting of multiple camera 

angles from each station. Then, at 3:40 pm the afternoon before the scheduled 

depositions, they provided additional disclosure, including an updated version of

the report of the agent who had reviewed the surveillance footage. See Doc. 30 at 

3. The report explained that the agent had seen the material witnesses on five 

different camera angles—none of which were among those the prosecutors had 

provided to the defense.3 Id. In other words, the prosecutors had many more 

camera angles than they disclosed—and the ones they withheld were those where 

the material witnesses primarily appeared. Having discovered that the prosecutors

had made a deeply misleading disclosure, the defense was forced to file an 

emergency motion to postpone the depositions—a motion which this Court 

 3 The first batch of videos disclosed included cameras labeled “Register 1” through 

“Register 7.” It was thus not obvious that anything had been omitted. The complete footage 

the Government had collected, however, included “Register 1” all the way up through 

“Register 19.” The provision of incomplete information in this fashion is far more 

dangerous and misleading than disclosing non-consecutive numbers, or starting 

somewhere other than one, because it was not readily apparent to the defense that they had 

been given fewer than half of the videos the Government had.

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 23 of 26
24

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

granted. The prosecutors eventually produced the additional surveillance video 

footage—but again only after defense counsel meticulously compared the 

disclosure to the written reports and identified solid proof that the prosecutors must 

have had materials they had withheld. It is difficult to imagine how, through simple 

coincidence or negligence, the prosecutors would have excluded from their 

disclosure the particular camera angles that actually depicted their witnesses.

Finally, the Office of the U.S. Attorney appears to be complicit in these 

prosecutors’ approach to this case and three others involving humanitarian aid 

volunteers. Revealingly, undersigned counsel understands that when a large 

number of community members began calling the U.S. Attorney’s Office to 

express their views about prosecutions of humanitarian aid volunteers, the office 

set up a special voice mailbox to receive those comments; that line played a 

recorded message referring to “United States vs. No More Deaths.” Neither this 

case nor any of the three misdemeanor matters currently pending before Judge 

Velasco (17-mj-339, 17-mj-340, and 17-mj-341) is a prosecution of the 

organization; they are separate cases brought against individuals for particular 

actions. But the phone message the U.S. Attorney’s Office recorded betrayed the 

viewpoint of that office on an institutional level that it is pursuing not particular 

individuals it believes it can readily prove have violated the law, but an 

organization—one whose views it does not like. Because these troubling attitudes 

and actions are not confined to these two individual prosecutors, this Court must 

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 24 of 26
25

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

either put an end to the prosecution, or at the very least require that an entirely 

different office take over. 

Finally, counsel undersigned do not level these accusations of misconduct 

without proof or without misgivings. But this is not a situation of bumping into a 

judge at a social event or on a street corner and responding to the judge’s inquiry 

about the case. The record is unmistakably clear that the government prosecutors 

intentionally engaged in written ex parte communication expressly to argue for 

reconsideration of an order that did not benefit their litigation strategy. Dismissal 

of the indictment not only provides the appropriate remedy to this aggrieved 

defendant, it sends an appropriate message that this District will not tolerate 

grievous executive conduct.

RESPECTFULLY SUBMITTED this 9th day of January, 2019.

By /s/ Gregory J. Kuykendall

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 January 9th, 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) 

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 25 of 26
26

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States Attorney’s Office 

405 W. Congress, Suite 4800 

Tucson, AZ 85701

Case 4:18-cr-00223-RCC-DTF Document 155 Filed 01/09/19 Page 26 of 26