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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.

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No.CR-18-00223-001-TUC-RCC(DTF)

RESPONSE TO GOVERNMENT’S 

MOTION TO RECONSIDER 

PRIOR RULING REGARDING USE 

OF DEFENDANT’S PRIOR 

TESTIMONY FOR 

IMPEACHMENT

Defendant, Scott Daniel Warren, Ph.D., by and through his attorneys, Gregory 

J. Kuykendall, and Amy P. Knight, responds to the Government’s Motion to 

Reconsider Prior Ruling Regarding Use of Defendant’s Prior Testimony for 

Impeachment. Because the Court has correctly precluded the use of Dr. Warren’s 

testimony in the still-pending separate misdemeanor case, this motion should be 

denied.

The reasons for the Court’s prior ruling remain as strong as they were at the 

time. Introducing, or questioning the defendant about, this particular prior testimony 

would necessarily inform the jury that Dr. Warren was facing other charges in 

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another case, which, in the words of the prosecutor, “would be clearly 

inappropriate.” RT 6/6/19 at 87. The Court agreed that even the one limited question 

it allowed was “treacherous ground.” Id. at 88. None of that has changed; it would 

be just as prejudicial for the jury to learn of those charges in the second trial as it 

would have been in the first. The government offers no explanation for why this 

undisputed severe prejudice would be acceptable now.

Nor is the misdemeanor testimony actually inconsistent with Dr. Warren’s 

testimony in this case. The government ignores a crucial fact about the misdemeanor 

testimony: in every instance the government identifies, Dr. Warren specifically 

limited his testimony to the particular prohibitions at issue in that case—Fish and 

Wildlife Service (FWS) regulations:

Q: So what happens if you face a choice, a choice between neglecting 

an area of the greatest need, which violates your beliefs, or breaking the 

law by violating the regulations out on the – on the Cabeza?

A: If I were faced with that choice, I would go to those areas of greatest 

need to deliver those supplies and risk violating those laws, yes.

RT 5/6/19 (Warren testimony only1) at 42 (emphasis added).

Q: Would it comport with your beliefs, your beliefs relative to either 

searching for human remains or your beliefs relative to putting out 

supplies for migrants, would I comport with your religious beliefs to 

turn around at the wilderness boundary?

A: Turn around because?

Q: Because you don’t have permission to be on the wilderness road.

A: No. I mean, my beliefs in that sense really compel me to go further.

Q: Even if you know that it’s a violation of Forest Service, I’m sorry, 

Fish and Wildlife Service regulations?

A: Yes.

RT 5/6/19 (Warren testimony only) at 39 (emphasis added).

1 The government’s page number citations appear to correspond to a separate transcript 

only of Dr. Warren’s testimony, rather than the complete trial transcript for the date cited.

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Q: And as I understood your testimony in responding to Judge Collins’ 

questions, did you have to choose between doing what your spiritual 

beliefs entail or doing what the regulations dictate?

A: Yes. I felt that was a choice I had to make.

RT 5/7/19 (Warren testimony only) at 13 (emphasis added). Thus, Dr. Warren 

testified only that he was willing to violate these particular agency regulations to 

exercise his religious beliefs. That is not at all inconsistent with a commitment to 

abide by United States immigration laws and criminal prohibitions. “The law” is not 

some monolithic thing that one either follows precisely to the letter at all times or 

disregards entirely. Nearly everyone who drives a car at least occasionally speeds, 

but many would—correctly—still claim that they intend to follow “the law” and 

don’t want to “break the law.” If the government is allowed to bring in this testimony 

to imply that Dr. Warren’s position has been inconsistent, Dr. Warren would be 

forced either to allow this false implication to stand, or to recount the details of the 

misdemeanor charges and the context of his prior statements in order to explain

this—a situation nobody involved wishes to face. 

Nor is Dr. Warren’s testimony that the No More Deaths protocol requires 

operation within the law inconsistent with the misdemeanor testimony. The protocol 

that Dr. Warren testified about (Exhibit 203A, “Desert Aid Protocol”) does not 

address putting out water and emergency supplies or search and rescue operations. 

See Exhibit 203A. It addresses interactions with patients who may need their 

assistance—the only situation at issue in this case—and is concerned with 

compliance with federal immigration laws. Whether some volunteers might 

disregard particular administrative regulations in choosing where to place 

emergency supplies or search for human remains really has nothing to do with the 

protocol’s legal guidance on what kind of aid volunteers may offer to migrants. 

No matter what the impeachment value, this Court must always exercise its 

judgment in determining whether probative value is substantially outweigh by the 

risks of unfair prejudice, confusing the issues, misleading the jury, undue delay, 

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wasting time, or needlessly presenting cumulative evidence. Fed. R. Evid. 403. Here, 

everyone agrees that the risk of unfair prejudice is extremely high, and given the 

lack of actual conflict between Dr. Warren’s misdemeanor and felony testimony, the 

probative value is very limited. Accordingly, this Court should maintain its prior 

ruling and deny the government’s motion.

RESPECTFULLY SUBMITTED this 11th day of October, 2019.

By /s/ Amy P. Knight

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 October 11, 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) 

United States Attorney’s Office 

405 W. Congress, Suite 4800 

Tucson, AZ 85701

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