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

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(BPV)

REPLY BRIEF IN SUPPORT OF 

MOTION FOR BILL OF 

PARTICULARS

The government argues that it should not be required to identify with whom 

it alleges Dr. Warren has conspired. Its argument contains a number of legal and 

factual problems, and fails to address key aspects of Dr. Warren’s motion. 

Accordingly, this Court should grant the Motion for Bill of Particulars.

LEGAL ISSUES

The fundamental problem with the government’s position is the fact that a 

defendant could attempt to guess what the government is alleging, based on

Case 4:18-cr-00223-RCC-DTF Document 48 Filed 04/05/18 Page 1 of 9
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

discovery containing the names of “possible” co-conspirators, does not satisfy the 

stated goal of allowing him to prepare his defense. Guessing necessarily involves a 

significant risk of guessing the wrong answer. Indeed, the very purpose of the bill of 

particulars to begin with is to make it so that defendants are not required to guess 

about the government’s allegations against them. See United States v. LorenzanaCordon, 130 F. Supp. 3d 172, 179 (D.D.C. 2015) (“Defendants therefore should not 

have to ‘guess’ at what they are facing at trial.”). But identifying only “possible” coconspirators requires just that.

Any defendant in any case could hazard a guess about what the government’s 

allegations mean, but this does not give him solid footing on which to prepare his 

defense. Indeed, if the ability to guess obviated the need for a bill of particulars, one 

would never be required, and Rule 7(f) would be a nullity. Notably, innocent 

defendants are especially at risk here; where a guilty defendant may know what the 

government is driving at because he did in fact conspire, an innocent defendant is 

likely to be genuinely in the dark about what is alleged. Since our entire system of 

justice is predicated on the presumption of innocence, the government’s position 

must fail.

In addition to basing its resistance on a faulty legal premise, the government

plays fast and loose with precedent. First, it misrepresents the holding in United 

States v. DiCesare, 765 F.2d 890, 897 (9th Cir. 1985), citing it for the proposition 

Case 4:18-cr-00223-RCC-DTF Document 48 Filed 04/05/18 Page 2 of 9
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

that “failure to name a co-conspirator in an indictment is not a sufficient basis for a 

bill of particulars.” That is not the holding of the case. In DiCesare, the defendants 

already had notice of the names of several identified co-conspirators. Specifically, 

the indictment charged five individuals with conspiracy to possess and distribute 

cocaine. 765 F.2d at 890. Thus, the defendants knew that they were alleged to have 

conspired with one another. Two of the defendants requested a bill of particulars “to 

obtain the names of any unknown coconspirators.” Id. at 897 (emphasis added). In 

other words, they wanted the government not to identify co-conspirators in the first 

instance, but to add the names of any additional individuals, thereby locking itself 

into a finite list; the Ninth Circuit, relying on Fifth Circuit precedent, ruled the 

“names of all coconspirators” were not required. 765 F.2d at 898 (emphasis added).

DiCesare does not hold that the government cannot be required to specify the names

of primary co-conspirators in the first instance. This is a single-defendant case, and 

Count 1 is a bare-bones recitation of the elements of conspiracy. The indictment

identifies the subject and end date of the alleged conspiracy, but it does not identify 

even a single co-conspirator. DiCesare is thus inapposite.

The Government also misrepresents the content of two other cases it cites. It 

cites United States v. Ayers, 924 F.2d 1468 (9th Cir. 1991), and United States v. 

Mitchell, Jr, 744 F.2d 701, 705 (9th Cir. 1984), to support its argument that “it is 

clear through the disclosure and counsel for the defendant’s own communications 

Case 4:18-cr-00223-RCC-DTF Document 48 Filed 04/05/18 Page 3 of 9
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

that the defendant is aware of the identities of several possible co-conspirators.” In 

both cases, however, the Court relied on discovery only as a supplement to a detailed 

indictment. The Ayers Court observed that “Count One of the indictment specifies 

five separate means and methods used to carry out the conspiracy. The indictment 

also details fifteen overt acts committed to further the conspiracy.” 924 F.2d at 1483. 

Only then did the Court note the addition of discovery in aiding the defendant’s 

preparation for trial. And in Mitchell, the Court relied not only on the “full 

discovery” provided, but also on the fact that “[t]he indictment in [that] case [was] 

reasonably detailed.” 744 F.2d at 705. These two cases thus absolutely do not stand 

for the proposition that discovery alone will suffice. 

Finally, the government has ignored the substantial double jeopardy problem. 

Given what appears to be an ongoing investigation of No More Deaths, a realistic 

possibility exists that the government may seek to initiate further prosecutions in 

connection with these humanitarian activities. Should Dr. Warren be indicted again 

on a future conspiracy charge for his work with No More Deaths, it will be 

impossible, based on this indictment, to determine whether the charge is duplicative 

of this one.

FACTUAL ISSUES

The government’s response is confusing as a factual matter. The government 

claims that “the defendant is aware of the identities of several possible coCase 4:18-cr-00223-RCC-DTF Document 48 Filed 04/05/18 Page 4 of 9
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

conspirators,” and then specifies that a witness’s cell phone “contained text 

messages with an individual identified as ‘Ireneo’ related to arranging transportation 

within the United States on January 14, 2018.” The Government also notes that an 

individual named Irineo Mujica appears on the defense’s initial witness list. That is

the sum total of the government’s arguments concerning the available information

supposedly sufficient to permit him to prepare a defense.

Multiple problems exist with this argument. First, the government’s stance is 

unclear. Is the government affirmatively specifying that Mr. Mujica is indeed an

alleged co-conspirator? Or merely arguing that because there are some grounds on 

which the defense could guess that he might be, there is no need for the government 

to specify? This Court must require the government to clarify, preferably through a 

bill of particulars, whether it is actually alleging that Dr. Warren conspired with Mr. 

Mujica.

Second, the government has now identified only one individual, not “several 

possible co-conspirators” as it claims. If indeed Mr. Mujica is one, who are the 

others? There must be more than one, as the indictment references “various other 

persons known and unknown.” The government’s response that Dr. Warren might 

guess Mr. Mujica is one such person fails to address the fact that Dr. Warren must 

be prepared to defend a claim that he conspired with various other people. 

Moreover, the evidence is nowhere near as clear-cut as the government 

Case 4:18-cr-00223-RCC-DTF Document 48 Filed 04/05/18 Page 5 of 9
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

suggests it is. There are indeed some messages, in an app known as WhatsApp,

between “Ireneo” and Kristian Perez-Villanueva. Even assuming “Ireneo” is Irineo 

Mujica, the government asserts that these messages are “related to arranging 

transportation within the United States on January 14, 2018.” This is far from clear; 

the conversation is fragmented and cryptic, and does not actually reference any sort 

of transportation arrangements. The messages thus do little to confirm that “Ireneo” 

is the alleged co-conspirator.

Additionally, the fact that “Ireneo,” who might be Irineo Mujica, exchanged 

text messages with one of the material witnesses does nothing to suggest this 

individual had any kind of agreement with Dr. Warren, or anyone else for that matter. 

The messages were not sent to or by Dr. Warren, nor do they make any mention of 

him. The leap the government suggests the defense take here is simply not warranted 

by this evidence; it would be foolish to assume that this constitutes the alleged 

conspiracy based only upon those messages. Indeed, the cell phone in question 

contains text messages with dozens of individuals, many of them on or around 

January 14, and a number of them discussing travel plans. On the government’s 

theory, all of these individuals are “possible” co-conspirators. The existence of text 

messages is thus of no help in Dr. Warren’s quest to narrow down the possibilities.

Finally, the discovery provided so far is not “complete.” The defense 

requested additional discovery, including any information taken from Dr. Warren’s 

Case 4:18-cr-00223-RCC-DTF Document 48 Filed 04/05/18 Page 6 of 9
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

cell phone, two weeks ago, on March 22, 2018, and has received no response. If the 

government is going to rely on its open provision of all the necessary information, it 

must actually provide that information.

In short, the discovery produced to date provides only the vaguest of hints as 

to the possible identity of just one of multiple alleged co-conspirators. It is certainly 

nothing on which Dr. Warren or any other defendant could reasonably rely in 

preparing his defense. A federal prosecution is not intended to be a guessing game, 

but unless the government specifies with whom it alleges Dr. Warren conspired, that 

is exactly what it has become. 

TIMELINESS

The government complains that “the defendant has failed to provide a 

reasonable explanation for his delay in moving for a bill of particulars.” As an initial 

matter, no explanation is required; this Court has complete discretion to permit the 

motion at any time, whether within 14 days of arraignment or not. There is no “good 

cause” requirement or anything of that nature. And the government has not even 

attempted to show that it has in any way been prejudiced by this slight delay.

In any event, there is a perfectly good reason for the delay. The government 

relies heavily on its provision of discovery to argue that no bill of particulars is 

necessary. But that discovery—which, as discussed above, does not provide the 

necessary specificity or certainty—has come piecemeal; indeed, to date, the 

Case 4:18-cr-00223-RCC-DTF Document 48 Filed 04/05/18 Page 7 of 9
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

government has made eight separate disclosures in this case, most recently on April 

3, 2018. As discovery continued to dribble in following the arraignment, it remained 

possible that information sufficient to obviate the need for a bill of particulars would 

arrive, and the defense would not need to impose on the Court’s time and resources. 

Unfortunately, that has not occurred, and eventually, a motion became necessary. 

The brief delay was thus in an attempt to resolve the issue without this Court’s 

intervention. As this delay has in no way prejudiced the government, this Court

should permit the motion now, as Rule 7(f) gives it the complete authority to do. 

Accordingly, Dr. Warren respectfully requests this Court to direct the 

government to file a bill of particulars that identifies the alleged co-conspirators for 

the conspiracy charged in Count 1 of the indictment.

RESPECTFULLY SUBMITTED this 5th day of April, 2018.

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

Case 4:18-cr-00223-RCC-DTF Document 48 Filed 04/05/18 Page 8 of 9
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

CERTIFICATE OF SERVICE

I certify that on April 5th, 2018, 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

Case 4:18-cr-00223-RCC-DTF Document 48 Filed 04/05/18 Page 9 of 9