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Gregory J. Kuykendall, Bar #12508

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 TO RECONSIDER ORDER 

DENYING MOTION TO DISMISS 

UNDER THE RELIGIOUS FREEDOM 

RESTORATION ACT

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

Kuykendall and Amy P. Knight, hereby moves this Court to reconsider its September 17, 

2018 Order denying his Motion to Dismiss (Doc. 127). This motion is supported by and 

specifically incorporates the accompanying Memorandum of Points and Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES

This Court should reconsider its order denying Defendant’s motion to dismiss for 

two reasons: (1) it fails to appreciate the binding nature of the Government’s factual 

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allegations on a motion to dismiss and (2) it mistakenly relies on a single court’s use of the 

term “affirmative defense” in reference to RFRA to erroneously conclude that the Court 

may not resolve disputed facts in a pretrial motion. 

First, this Court states it would be “ inappropriate” to assume the government’s 

factual allegations are true for purposes of this motion. Doc. 127 at 5. But assuming the 

truth of alleged facts and thereby resolving a legal issue about the application of a federal 

statute is a basic and routine task when considering a motion to dismiss. For instance, in 

United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc), the Government charged 

the defendant with violating the Computer Fraud and Abuse Act (CFAA). The Government 

alleged that the defendant “convinced some of his former colleagues” to log in to company 

computers and “download source lists, names and contact information from a confidential 

database,” and then share it with him, which violated company policy. Nosal, 676 F.3d at 

856. This, the indictment alleged, “exceeded authorized access.” The statutory charging 

provision punishes anyone who “knowingly and with intent to defraud, accesses a protected 

computer without authorization, or exceeds authorized access, and by means of such 

conduct furthers the intended fraud and obtains anything of value.” 18 U.S.C. § 1030(a)(4). 

The defendant believed that the statute did not cover his conduct, and moved to dismiss the 

CFAA charges. The district court, relying on the facts as alleged in the indictment, 

concluded that “such conduct does not violate section 1030(a)(4)” and dismissed those 

counts. United States v. Nosal, 2010 U.S. Dist. LEXIS 24359 at *22-23 (N.D. Cal. 2010). 

The Government filed an interlocutory appeal, and the Ninth Circuit, sitting en banc, 

agreed with the district court that even if the Government proved the facts in the indictment, 

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it could not secure a CFAA conviction. Nosal, 676 F.3d at 864.1 For the purposes of the 

motion, the Court assumed the Government’s alleged facts were true, exactly as Defendant 

has asked this Court to do here.

Moreover, simply reciting the elements of a crime in an indictment does not thereby 

immunize the indictment from a successful motion to dismiss which argues the defendant’s 

actual conduct was fundamentally legal. Rather, a court considering a motion to dismiss 

must consider whether the defendant’s conduct as alleged actually constitutes the crime 

charged, even where the indictment faithfully recites all of the elements. Again, Nosal is 

illustrative. The Nosal indictment alleged that the defendants “did knowingly and with 

intent to defraud access a protected computer belonging to [the employer,] without 

authorization and by exceeding authorized access, and by means of such conduct did 

further the intended fraud and obtain something of value, to wit, source lists and other 

information belonging to [the employer].” N.D. Cal. Case No. 3:08-cr-00237, Doc. 42. 

Thus, the indictment alleged that all the elements were satisfied. But that faithful recitation 

did not preclude the district court from considering whether the facts the Government 

alleged actually constituted the crime in question. Simply regurgitating the statutory 

elements is insufficient to defeat a pretrial claim that the conduct itself is not prohibited.

Here, the Government’s rote tracking of the harboring statute that Dr. Warren “did 

 1 The en banc court also expressed concern that criminalizing the alleged conduct could turn vast numbers of ordinary, well-meaning people into “federal criminal[s]” who could be vulnerable to “an aggressive prosecutor.” Nosal, 676 F.3d at 860 n.7. It rejected the Government’s promise that a narrower construction was unnecessary because it wouldn’t “prosecute minor violations,” declaring “we shouldn’t have to live at the mercy of our local 

prosecutor,” and explaining that without careful statutory interpretation, “[t]he difference 

between puffery and prosecution may depend on whether you happen to be someone an 

AUSA has reason to go after.” Id. at 862.

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knowingly conceal, harbor and shield from detection said alien in any place, including any 

building or any means of transportation to avoid said aliens’ detection by immigration 

authorities” no more insulates the indictment from pretrial attack than did the 

Government’s recitation of the elements of the CFAA violation in its Nosal indictment.2

As Nosal illustrates, a district court is compelled to compare the defendant’s alleged actions 

against the elements of the crime, and determine whether those alleged actions are in fact 

criminal. The indictment the Government obtained here contains no factual allegations, 

simply reciting the elements of the crimes with the alleged dates, locations, and names.3

Thus, the Defendant necessarily looked to the facts the Government previously alleged in 

its complaint;

4 indeed, given the tight-lipped indictment, the complaint is the only factual 

notice the Government has provided. The Government cannot defend the legitimacy of its 

indictment through the prosecuting attorneys’ bald insistence that Defendant also took 

other actions, which it neither alleged in its complaint nor presented to the grand jury.

 2 See Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995) (“General, 

conclusory allegations need not be credited, however, when they are belied by more specific allegations of the complaint. See Jenkins v. S & A Chaissan & Sons, Inc., 449 F. 

Supp. 216, 227 (S.D.N.Y. 1978); 5A Charles A. Wright & Arthur R. Miller, Federal 

Practice and Procedure § 1363, at 464-65 (2d ed. 1990); cf. In re American Express Co. Shareholder Litig. (Lewis v. Robinson), 39 F.3d 395, 400-01 n.3 (2d Cir. 1994) (“Conclusory allegations of the legal status of the defendants’ acts need not be accepted as true for the purposes of ruling on a motion to dismiss.”) (collecting cases).”). 3 To the extent the language of the indictment differs slightly from the language of the 

statute, this is a result of the Ninth Circuit’s interpretation of what § 1324 requires. See 

Ninth Circuit Model Criminal Jury Instructions 9.1 (2010). 4 The Court cites Milstein v. Cooley, 257 F.3d 1004 (9th Cir. 2001) for the proposition that “the usual function of a criminal complaint is, solely and simply, to recount facts, produced 

by an investigation, that provide probable cause to arrest.” Doc. 127 at 5-6. But Milstein 

was simply explaining that a California state court criminal complaint was an act subject 

to absolute prosecutorial immunity—not saying anything about the role of those alleged facts in the prosecution as it proceeds. And in any event, the complaint in this case was not filed until the day after the Border Patrol arrested Dr. Warren, and thus clearly was not simply for that purpose. Indeed, Fed. R. Crim. P. 3 states that “[t]he complaint is a written 

statement of the essential facts constituting the offense charged.” 

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In sum, courts must assume the truth of the government’s factual allegations when 

deciding if the alleged conduct constitutes the charged crime—and the only facts this Court 

can properly assume are those the Government alleged to a presumptively neutral third 

party–to a grand jury, or in a sworn complaint that constitutes the “essential facts” of the 

case. 

Second, this Court asserts that RFRA is an “affirmative defense,” and mistakenly 

equates the term “affirmative defense” with “trial only.” Doc. 127 at 7. But that is not the 

law. As an initial matter, the statute itself says nothing about “affirmative” or that a RFRA 

claimant is limited in its presentation to a jury; only that RFRA is “a claim or defense.” 42 

U.S.C. § 2000bb(b)(2). Moreover, simply categorizing something as an “affirmative 

defense” neither signifies nor implies that it cannot be determined by pretrial motion. See, 

e.g., United States v. Smith, 866 F.2d 1092, 1095 (9th Cir. 1989) (government 

noncompliance with Paperwork Reduction Act “is in the nature of an affirmative defense . 

. . that ‘is capable of determination without the trial of the general issue,’ Fed. R. Crim. P. 

12(b). As such, it is a defense that ‘may be raised before trial by motion. . .’”). The case 

the Court relies on, United States v. Sotelo-Murillo, 887 F.2dd 176, 182 (9th Cir. 1989), 

never states that a claim labeled an “affirmative defense” cannot be decided pretrial; it 

explains only that the question of whether outrageous government conduct violates due 

process is for the court, not for the jury. Thus, at best, Sotelo-Murillo says affirmative 

defenses may be determined by juries; not that in every instance by definition they must 

be. Further, Black’s Law Dictionary defines “Affirmative defense” as “In pleading, matter 

constituting a defense; new matter which, assuming the complaint to be true, constitutes a 

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defense to it.” (5th Ed. 1983). None of this limits an affirmative defense to something 

proven at trial. 

Most significantly, Christie—on which this Court relies for the proposition that the 

Ninth Circuit considers RFRA to be an “affirmative defense”—never held that RFRA 

claims must be determined at trial. In Christie, the defendants moved to allow evidence on 

a RFRA defense at trial. United States v. Christie, No. 10-00384(01) LEK, 2013 U.S. Dist. 

LEXIS 181090, at *10 (D. Haw. Dec. 27, 2013). Before the district court, the United States 

argued that a RFRA claim “does not differ from other pretrial motions, such as suppression 

motions, and should be decided before trial.” Id. The district court agreed with the 

Government, and resolved the RFRA claim with a pretrial evidentiary hearing. Id at *12. 

In so doing, the Court specifically noted that “[w]hile the Government raises strong 

arguments” against the defendants’ claims in their prima facie case, “it provides no 

contradictory factual evidence.” Id. at *15. The Court ultimately ruled that the prosecution 

was the least restrictive means of furthering a compelling government interest.

On appeal, the defendants argued that RFRA rendered the substantive criminal law 

unconstitutionally vague, giving rise to a Fifth Amendment violation. United States v. 

Christie, 825 F.3d 1048, 1064 (9th Cir. 2016). It was in this Fifth Amendment context that 

the court categorized RFRA as an “affirmative defense”—in contrast to a provision that 

would “define the elements of an offense, fix any mandatory penalty, or threaten people 

with punishment if they violate its terms.” Id. at 1065. But given that the Ninth Circuit

made this comment in an opinion affirming the district court’s pretrial resolution of the 

RFRA claim, it was obviously not ruling that RFRA defenses could only be raised at trial. 

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Thus, while of course Jeffs and Lundquist, as district court decisions, are not binding, their 

persuasive value should not be discounted for failure to apply Christie. Christie’s use of 

the term “affirmative defense,” in the context of a Fifth Amendment claim, and in an 

opinion that actually affirmed a district court’s pretrial RFRA ruling, does not justify this 

Court’s reliance for the novel proposition that RFRA claims may not be decided pretrial.

From its first-ever encounter with RFRA, the Ninth Circuit presumed the claim 

would be resolved pretrial. RFRA was passed during the pendency of United States v. 

Bauer, 84 F.3d 1549 (9th Cir. 1996), after the district court had already denied a free 

exercise motion. On appeal, the Ninth Circuit reversed and directed that “[t]he court may 

conduct a preliminary hearing in which the defendants will have the obligation of showing 

that they are in fact Rastafarians and that the use of marijuana is a part of the religious 

practice of Rastafarians.” Id. at 1559. 

A review of the Ninth Circuit’s RFRA cases confirms that it has never understood 

RFRA to require a jury determination instead of being decided pretrial. In United States v. 

Top Sky, a pre-RFRA First Amendment case that the Ninth Circuit has since imported into 

the RFRA context,5 two defendants moved to dismiss their indictments on free exercise 

grounds; the court held an evidentiary hearing and denied the motions on the merits, having 

determined that the actual conduct of which the defendants were accused—selling eagle 

parts—was not only not an exercise of, but “deplored by the Indian religion.” United States 

v. Top Sky, 547 F.2d 486, 488 (9th Cir. 1976). Notably, the Court relied on the “activities”

 5 See United States v. Hugs, 109 F.3d 1375, 1378 (9th Cir. 1997).

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for which the defendants were being prosecuted—not simply the elements of the crime of 

indictment—and resolved the motion to dismiss based on what “the evidence shows.” Id. 

In Guam v. Guerrero, 290 F.3d 1210, 1212 (9th Cir. 2002), a defendant moved to 

dismiss his indictment on RFRA grounds. The Ninth Circuit explained that “[w]hether a 

prosecution for importation of marijuana substantially burdens one’s religion is a legal 

question for courts to decide.” Id. at 1222 n.20. In United States v. Antoine, 318 F.3d 919, 

920-21 (9th Cir. 2003), the court considered a motion to dismiss a prosecution for dealing 

in eagle parts under RFRA.6 The Court considered, pretrial, whether the alleged conduct 

was RFRA-protected, and concluded that the government satisfied RFRA’s strict scrutiny 

test; the Ninth Circuit affirmed. Id. In United States v. Vasquez-Ramos, 531 F.3d 987, 990 

(9th Cir. 2008), the defendants moved to dismiss the information under RFRA; the court 

relied on Antoine and denied the motion on the merits, again finding that the government 

had met its burden. The Ninth Circuit explained, in affirming, that “[w]hether application 

of a federal law violates RFRA is a question of statutory construction for the court, not a 

question of fact.” Id. 

Other judges in this district have followed all this precedent and considered RFRAbased motions to dismiss on the merits even where factual disputes exist. In United States 

v. Tawahongva, 456 F. Supp. 2d 1120 (D. Ariz. 2006), the defendant moved to dismiss 

charges under RFRA, claiming his possession of eagle fathers was only for religious 

 6 The Court specifically noted that the Government had accused the defendant “of dealing 

in eagle parts, not just using them in traditional Native ceremonies.” Id. at 921 n.2. But the 

Court held that “[t]his fact does not defeat his RFRA claim.” Id.

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reasons, and denying, as a factual matter, that he “ever traded or bartered for eagle 

feathers.” Id. at 1126-27. The Court held an evidentiary hearing and specifically noted that 

the government apparently disputed that the use was only for religious reasons, but “the 

government did not present witness testimony or other evidence at the evidentiary hearing 

that would establish Defendant possessed the eagles in question for other than his personal 

religious use.” Id. at 1127. The Court considered extensive evidence and ultimately 

concluded that the burden on the defendant’s exercise of religion imposed by a federal 

permit requirement existed, but was not substantial. Id. at 1132. 

Finally, the Supreme Court has made it clear that actual proof of specific conduct is 

not necessary to establish entitlement to RFRA protection. In Gonzales v. O Centro 

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006), the Court upheld a lower 

court’s grant of a preliminary injunction preventing the federal government from even 

instituting criminal proceedings against parties engaged in a particular religious practice. 

Obviously, those religious individuals were not required to submit to federal prosecution 

based on the Government’s unilateral decisions about statutes it could accuse them of 

violating without specific factual allegations. Moreover, the district court—whose ruling 

the Supreme Court affirmed—explained that “violations of the religious exercise rights 

protected under RFRA represent irreparable injuries.” O Centro Espirita Beneficente 

Uniao Do Vegetal v. Ashcroft, 282 F. Supp. 2d 1236, 1269-70 (D.N.M. 2002).

In enjoining the Government from bringing charges, the Court recognized that 

RFRA does more than provide a defense at trial; RFRA entitles religious adherents to be 

free from prosecution for their practice altogether. Giving full consideration to a motion 

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to dismiss pretrial is the only mechanism that gives full effect to that requirement. 

Requiring a defendant to go through a federal criminal trial before a court will determine 

whether he is entitled to protection simply because the Government has brought charges—

especially where it has done so without any supporting factual allegations—is not 

consistent with the Supreme Court’s explicit interpretation of RFRA’s broad protection 

from harm to religious interests. Indeed, the Ninth Circuit recognized this in Christie, 

explaining: 

RFRA is explicit that such right may be invoked against the government as 

either a ‘claim or defense,’ id. § 2000bb-1(c), a sword or a shield. If a person 

has a sufficiently realistic fear that the government is going to punish him for 

exercising his religious beliefs in defiance of the law, he may unsheathe 

RFRA and file a preemptive strike in an effort to subdue the government 

before it treads further. . . .Alternatively, if the government strikes first—for 

example, by indicting a person for engaging in activities that form a part of 

his religious exercise but are prohibited by law—the person may raise RFRA 

as a shield in the hopes of beating back the government's charge. . .In either 

scenario, a religious objection may have the effect of immunizing the 

objector’s past conduct from official sanction.

Christie, 825 F.3d at 1055 (citations omitted).

No procedural mechanism interferes with this Court’s ability to provide the 

“immunity” to which Dr. Warren is entitled under RFRA. Tellingly, the Ninth Circuit’s 

chose the word “immunizing,” indicating it understood this to be a pretrial issue. See 

Advisory Committee Note, Fed. R. Crim. P. 12, note to subdivision b(1) and (2) (“In the 

other group of objections and defenses, which the defendant at his option may raise by 

motion before trial, are included . . . such matters as . . . immunity. . . .”). 

Critically, the facts the Court correctly notes it would have to determine before 

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ruling—that Dr. Warren “provided emergency aid” and that the recipients were “in need” 

(Doc. 127 at 6)—bear only on the question of whether, assuming he took the actions the 

Government has alleged, his conduct is shielded from criminality by RFRA. And that is 

precisely the question the Supreme Court and the Ninth Circuit have both recognized bears 

determination before a religious adherent is put through the full ordeal of a trial.

For these reasons, this Court should reconsider its Order that it cannot dismiss the 

charges under RFRA due to unresolved issues of fact. This Court must assume the truth of 

the Government’s factual allegations as presented in its charging documents, consider the 

evidence that Dr. Warren is immune from prosecution for the actions the Government 

alleged in those documents because he was exercising his sincerely held religious beliefs, 

and dismiss the harboring charges. 

RESPECTFULLY SUBMITTED this 26th day of September, 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

CERTIFICATE OF SERVICE

I certify that on September 26th, 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: 

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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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