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 

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

REGARDING EVIDENCE RELATED TO 

RFRA DEFENSE 

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

moves the Court in limine to preclude any evidence related to the defendant’s asserted 

RFRA defense absent a sufficient proffer outside the presence of the jury. In addition, 

should the defendant chose to testify, the government respectfully requests that the Court 

preclude the defendant from improperly invoking his Fifth Amendment rights during crossexamination. 

a. Before presenting any evidence as to a RFRA defense, the defendant must 

proffer evidence sufficient to meet all elements of this affirmative defense. 

If a defendant cannot proffer legally sufficient evidence of each element of an 

affirmative defense, then he is not entitled to present evidence in support of that defense at 

trial. United States v. Bailey, 444 U.S. 394, 415 (1980); see also United States v. Shapiro, 

669 F.2d 593, 596 (9th Cir. 1982). Stated another way, if a defendant’s offer of proof is 

Case 4:18-cr-00223-RCC-DTF Document 214 Filed 05/21/19 Page 1 of 5
- 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 

insufficient as a matter of law to support a proffered affirmative defense, “then the trial 

court should exclude the defense and the evidence offered in support.” United States v. 

Dorrell, 758 F.2d 427, 430 (9th Cir. 1985) 

When asserted by a defendant in a criminal prosecution, RFRA is an affirmative 

defense. United States v. Christie, 825 F.3d 1048, 1065 (9th Cir. 2016); see also Doc. 127 

at 9. Therefore, before presenting any evidence as to his RFRA defense, a defendant must 

proffer to the Court evidence sufficient to show that his conduct was an “exercise of 

religion,” and the government action “substantially burdened” his exercise of religion. See

42 U.S.C. § 2000bb-1(a); Navajo Nation v. United States Forest Serv., 535 F.3d 1058, 

1068-69 (9th Cir. 2008). To do this he must first articulate the scope of his beliefs, and then 

show that his beliefs are religious in nature, that they are sincerely held, and that the 

exercise of his sincerely held beliefs is substantially burdened by a government action. 

United States v. Zimmerman, 514 F.3d 851, 853 (9th Cir. 2007). 

In this case, the parties have already litigated the defendant’s RFRA claim as to 

Counts 2 and 3, including an evidentiary hearing at which the defendant testified at length 

about his spiritual beliefs. Notably, at that pretrial hearing, the defendant refused to testify 

regarding the second prong of his prima facie case, that is, how his conduct related to 

Counts 2 and 3 was an exercise of his proffered beliefs. See RT 5/11/18 at 82:18-84:10; 

see also Doc. 81 at 4. In addition, he has yet to proffer any evidence regarding his prima 

facie burden as to Count 1. To date, the defendant has failed to proffer legally sufficient 

evidence of each element of his RFRA defense. As such, the government respectfully 

requests that the Court preclude the defendant from presenting any evidence at trial in 

support of this defense. 

In the alternative, the government respectfully requests that the Court require the 

defendant to proffer sufficient evidence outside the presence of the jury before presenting

any evidence in support of this defense. Requiring the defendant to make a proffer prior to 

presenting evidence is particularly appropriate where, as here, there is reason to believe 

that such evidence would otherwise be inadmissible. See Fed. R. Evid. 610 (“Evidence of 

Case 4:18-cr-00223-RCC-DTF Document 214 Filed 05/21/19 Page 2 of 5
- 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 

a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s 

credibility.”); see also United States v. Warren, 17-MJ-341-RCC-DTF (Bench Trial, Day 

2). For example, the defendant has given notice that he intends to call, Dr. Edward 

McCullough, Dr. Gregory Hess, Dr. Robin Reineke to testify about human remains found 

in the West Desert and “the crisis of death and disappearance on the U.S.-Mexico border.” 

Defendant’s Witness List at ¶¶ 3-5. These matters are irrelevant to charges regarding the 

defendant’s actions to aid Kristian Perez-Villanueva and Jose Sacaria-Godoy in January 

2018. Similarly, the defendant has given notice that Rev. Bethany Russell-Lowe to testify 

about “may testify about the [Unitarian Universalist Church of Tucson]’s adoption as No 

More Deaths as a ministry and the denomination’s broader support for their work.” Id. at 

¶ 16. Whether or not the UUCT supports No More Deaths is irrelevant to the defendant’s 

prima facie RFRA case and is certainly inadmissible under Rule 610 as evidence proffered 

only to bolster defense witnesses’ testimony. 

For the reasons discussed above, the government respectfully requests that the Court 

exclude any evidence related to the defendant’s asserted RFRA defense unless and until 

the defendant has made a legally sufficient proffer as to all elements of his prima facie

case.

b. If the defendant chooses to testify, he should be precluded from improperly 

invoking his Fifth Amendment rights during cross-examination. 

When a defendant exercises his right to testify in his own defense, he necessarily 

forfeits his right under the Fifth Amendment to not incriminate himself. “The Constitution 

does not give a defendant a right to testify without subjecting himself to cross-examination 

which might tend to incriminate him.” Williams v. Borg, 139 F.3d 737, 740 (9th Cir. 1998); 

see also United States v. Martinez, 883 F.2d 750, 754 (9th Cir. 1989) (“[T]he right to testify 

carries with it the obligation to submit to cross-examination.”). A court may strike the 

testimony of a defendant who refuses to answer questions on cross-examination. Borg, 139 

F.3d at 741. Such a sanction is appropriate where it is supported by a “basis in reason and 

law” and is proportionate to the purpose. Id. 

Case 4:18-cr-00223-RCC-DTF Document 214 Filed 05/21/19 Page 3 of 5
- 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 

In this case, should the defendant choose to testify in support of his asserted RFRA 

defense, he must submit fully to cross-examination about his beliefs and how his conduct 

in this case is an exercise of those beliefs. Cross-examination about the defendant’s conduct 

in this case should be allowed because, by raising a RFRA defense and testifying about his 

beliefs, the defendant is asking the jury to find that there is a connection between his beliefs 

and his conduct. The government is entitled to test that claim through cross-examination. 

The government is also entitled to probe the defendant’s credibility by cross-examining 

him about his conduct in this case. “Whether a witness is telling the truth or lying is as 

important as what the witness says, and there is no better way than cross-examination under 

oath to help a jury decide whether it is being lied to[.]” Id. 

Should the defendant refuse to answer questions about his conduct on crossexamination, then his testimony should be struck and the jury instructed to disregard it. 

This is a particularly appropriate remedy where, as here, the defendant has previously 

refused to be subject to cross-examination on this same subject and has been placed on 

notice in advance of testifying about the possible consequences of improperly invoking the 

Fifth Amendment. See id. at 740-41. 

c. Conclusion 

For the reasons discussed above, the government respectfully requests that the Court 

either preclude the defendant’s RFRA defense based on his insufficient proffers to date, or 

require the defendant to make a legally sufficient proffer as to all elements before 

presenting any evidence related to this defense. In addition, should the defendant chose to 

testify in his own defense, the government respectfully requests that the Court instruct the 

defendant that he is required to submit to cross-examination regarding his conduct in this 

case, and, that if he refuses to submit to cross-examination, his testimony will be struck 

and the jury instructed to disregard it. 

/// 

Case 4:18-cr-00223-RCC-DTF Document 214 Filed 05/21/19 Page 4 of 5
- 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 

Respectfully submitted this 21st day of May, 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 21st day of May, 2019, to: 

All ECF participants 

Case 4:18-cr-00223-RCC-DTF Document 214 Filed 05/21/19 Page 5 of 5