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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. 18-cr-00223-RCC(DTF)

DEFENDANT’S PROPOSED JURY 

INSTRUCTIONS

Defendant Scott Daniel Warren requests that the Court provide the following 

instructions to the jury. Numbers and titles refer to the Manual of Model Criminal Jury 

Instructions for the District Courts of the Ninth Circuit, 2010 Edition, updated 4/2019. The 

text of instructions is only included for instructions that are modified from, or in addition 

to, the model instructions. Where standard model instructions are requested, their number 

and title are listed, but the text of the instruction is not included.

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REQUESTED OPENING INSTRUCTIONS

1.1 Duty of Jury

1.2 The Charge – Presumption of Innocence [modified]

1.3 What is Evidence

1.4 What is Not Evidence

1.5 Direct and Circumstantial Evidence

1.6 Ruling on Objections

1.7 Credibility of Witnesses

1.8 Conduct of the Jury 

1.9 No transcript available to jury

1.10 Taking Notes

1.11 Outline of trial

1.12 Jury to be Guided by Official English Interpretation

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1.2 The Charge – Presumption of Innocence [modified]

This is a criminal case brought by the United States government. The government 

charges the defendant with harboring two young men who had entered the United States 

without permission, and conspiracy to transport and harbor these same two individuals. 

The charges against the defendant are contained in the indictment. The indictment simply 

describes the charges the government brings against the defendant. The indictment is not 

evidence and does not prove anything. The defendant has pleaded not guilty to the charges 

and is presumed innocent unless and until the government proves the defendant guilty 

beyond a reasonable doubt. In addition, the defendant has the right to remain silent and 

never has to prove innocence or to present any evidence. 

In order to help you follow the evidence, I will now give you a brief summary of 

the elements of the crimes which the government must prove to make its case: 

The defendant is charged in the indictment with conspiracy to transport and 

harbor Kristian Perez Villanueva and Jose Sacaria Goday, and with harboring those 

same two individuals, in violation of Section 1324 of Title 8 of the United States 

Code. 

In order for the defendant to be found guilty of conspiracy, the government 

must prove each of the following elements beyond a reasonable doubt:

First, beginning on a date unknown, and ending on or about January 17, 2018, 

there was an agreement between two or more persons to commit at least one 

crime as charged in the indictment (transporting and harboring Kristian Perez 

Villanueva and/or Jose Sacaria Goday); 

Second, the defendant became a member of the conspiracy knowing of at 

least one of its objects and intending to help accomplish it; and

Third, one of the members of the conspiracy performed at least one overt act 

for the purpose of carrying out the conspiracy, with all of you agreeing on a 

particular overt act that you find was committed.

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In order for the defendant to be found guilty of harboring, the government must 

prove each of the following elements beyond a reasonable doubt:

First, Kristian Perez Villanueva and/or Jose Sacaria Goday was an alien;

Second, Kristian Perez Villanueva and/or Jose Sacaria Goday was not 

lawfully in the United States;

Third, the defendant knew or acted in reckless disregard of the fact that 

Kristian Perez Villanueva and/or Jose Sacaria Goday was not lawfully in the 

United States; and 

Fourth, the defendant harbored, concealed, or shielded from detection 

Kristian Perez Villanueva and/or Jose Sacaria Goday with intent to violate 

the law.

The crime of transporting (which the government has alleged the defendant agreed 

with at least one other person to commit) requires the same first three elements as 

harboring, and also requires knowingly transporting or moving Kristian Perez 

Villanueva and/or Jose Sacaria Goday in order to help him remain in the United 

States illegally.

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REQUESTED INSTRUCTIONS IN THE COURSE OF TRIAL

2.1 Cautionary Instruction – First Recess

2.2 Bench Conferences and Recesses

2.6 Deposition as Substantive Evidence

2.7 Transcript of Recording 

2.9 Foreign Language Testimony

2.11 Evidence for Limited Purpose

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REQUESTED INSTRUCTIONS AT END OF CASE

3.1 Duties of Jury to Find Facts and Follow Law

3.2 Charge Against Defendant Not Evidence—Presumption of Innocence 

—Burden of Proof

3.3 or 3.4 Defendant’s Decision to Testify or Not to Testify

3.5 Reasonable Doubt – Defined

3.6 What is Evidence

3.7 What is Not Evidence

3.8 Direct and Circumstantial Evidence

3.9 Credibility of Witnesses

3.10 Activities Not Charged

3.11 Separate Consideration of Multiple Counts

3.19 Jury to be Guided by Official English Translation/Interpretation

4.9 Testimony of Witnesses Involving Special Circumstances –

Immunity, Benefits, Accomplice, Plea [modified]

4.13 Deported Material Witness (formerly Missing Witness) 

4.15 Summaries Not Received in Evidence

Alien – Definition 

8.20 Conspiracy – Elements [modified]

Mere Association

8.22 Multiple Conspiracies

7.9 Specific Issue Unanimity

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Conspiracy to Commit Illegal Transportation 

9.3 Harboring [modified]

6.10 Mere Presence

5.9 Advice of Counsel

No Obligation to Report

Religious Freedom: Substantial Burden

Religious Freedom: Least Restrictive Means of Advancing Compelling 

Interest

7.1 Duty to Deliberate

7.2 Consideration of Evidence – Conduct of the Jury

7.3 Use of Notes

7.5 Verdict Form

7.6 Communication with Court

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4.9 Testimony of Witnesses Involving Special Circumstances – Immunity, Benefits, 

Accomplice, Plea [modified]

You have heard testimony from Kristian Perez Villanueva and Jose Sacaria Goday, 

witnesses who received immunity. That testimony was given in exchange for a 

promise by the government that they would not be criminally prosecuted for their 

illegal entry into the United States. For this reason, in evaluating the testimony of 

Kristian Perez Villanueva and Jose Sacaria Goday, you should consider the extent 

to which their testimony may have been influenced by this factor. In addition, you 

should examine the testimony of Kristian Perez Villanueva and Jose Sacaria Goday 

with greater caution than that of other witnesses. 

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Alien – Definition 

An alien is a person who is not a natural-born or naturalized citizen of the United States. 

An alien is not lawfully in this country if the person was not duly admitted by an 

Immigration Officer.

Authority: Adapted from Model Instruction 9.3

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8.20 Conspiracy – Elements [modified]

The defendant is charged in Count 1 of the indictment with conspiring to transport and 

harbor Kristian Perez-Villanueva and Jose Sacaria-Goday, in violation of Section 1324 of 

the United States Code. In order for the defendant to be found guilty of that charge, the 

government must prove each of the following elements beyond a reasonable doubt:

First, beginning on a date unknown, and ending on or about January 17, 2018, there 

was an agreement between two or more persons to commit at least one crime as charged in 

the indictment; 

Second, the defendant became a member of the conspiracy knowing of at least one 

of its objects and intending to help accomplish it; and

Third, one of the members of the conspiracy performed at least one overt act for the 

purpose of carrying out the conspiracy, with all of you agreeing on a particular overt act 

that you find was committed.

You must find that there was a plan to commit at least one of the crimes alleged in

the indictment as an object of the conspiracy with all of you agreeing as to the particular 

crime which the conspirators agreed to commit.

One becomes a member of a conspiracy by willfully participating in the unlawful 

plan with the intent to advance or further some object or purpose of the conspiracy, even 

though the person does not have full knowledge of all the details of the conspiracy. 

Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the 

originators. 

On the other hand, one who has no knowledge of a conspiracy, but happens to act 

in a way which furthers some object or purpose of the conspiracy, does not thereby become 

a conspirator. Similarly, a person does not become a conspirator merely by associating with 

one or more persons who are conspirators, nor merely by knowing that a conspiracy exists.

Authority: United States v. Hernandez-Orellana, 539 F.3d 994 (9th Cir. 2008) (1324 

conspiracy requires an overt act)

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Mere Association

Mere association with members of a conspiracy, or simple knowledge, approval, or 

acquiescence in the object or purpose of the conspiracy, without intention and agreement 

to accomplish a specific illegal objective, is not sufficient to make one a conspirator.

Authority: United States v. Melchor-Lopez, 627 F.2d 886, 891 (9th Cir. 1980); see also

United States v. Noah, 475 F.2d 688, 697 (9th Cir. 1973); United States v. Kenny, 645 F.2d 

1323, 1337 (9th Cir. 1981)

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Conspiracy to Commit Illegal Transportation 

One of the crimes the defendant is charged with conspiring to commit is illegal 

transportation of an alien in violation of Section 1324(a)(1)(A)(ii) of Title 8 of the United 

States Code. To prove conspiracy to commit illegal transportation, the government must 

prove beyond a reasonable doubt that the defendant agreed with at least one other person 

to transport Kristian Perez Villanueva and/or Jose Sacaria-Goday, knowing or acting in 

reckless disregard of the fact that they were not lawfully in the United States, in order to 

help them remain in the United States illegally, and that defendant became a member of 

the conspiracy knowing of this object and intending to help accomplish it.

Authority: Adapted from Model Instruction 9.2

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9.3 Harboring [modified]

The other crime defendant is charged with conspiring to commit is harboring of an alien in 

violation of Section 1324 (a)(1)(A)(iii) of Title 8 of the United States Code. 

Defendant is also charged in Count 2 of the indictment with harboring of Kristian 

Perez Villanueva and in Count 3 of the indictment with harboring Jose Sacaria Goday. 

In order for the defendant to be found guilty of conspiracy to harbor, the government 

must prove beyond a reasonable doubt that he agreed with at least one person to commit 

harboring of Kristian Perez Villanueva and/or Jose Sacaria Goday and that he became a 

member of the conspiracy knowing of this object and intending to help accomplish it.

In order for defendant to be found guilty of harboring of an alien, the government 

must prove each of the following elements beyond a reasonable doubt: 

First, Kristian Perez Villanueva and/or Jose Sacaria Goday was an alien;

Second, Kristian Perez Villanueva and/or Jose Sacaria Goday was not 

lawfully in the United States;

Third, the defendant knew or acted in reckless disregard of the fact that 

Kristian Perez Villanueva and/or Jose Sacaria Goday was not lawfully in the United 

States; 

Fourth, the defendant harbored, concealed, or shielded from detection 

Kristian Perez Villanueva and/or Jose Sacaria Goday with intent to violate the law.

Authority: United States v. Tydingco, 909 F.3d 297, 304 (9th Cir. 2018) (harboring 

“requires only an instruction that the defendant intended to violate the law. One way 

to demonstrate such an intention is to prove that the defendant sought to prevent 

immigration authorities from detecting an illegal alien’s presence. But that is not the 

only way.”).

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No Obligation to Report

The law does not impose any general affirmative obligation on citizens to report suspected 

or known violations of law to authorities. 

Authority: Model Instruction 8.0A (“Mere failure to report a federal felony is not a

crime.”); United States v. Hodges, 566 F.2d 674 (9th Cir. 1977) (crime of misprison of a

felony, 18 U.S.C. § 4, requires affirmative step to conceal crime); United States v. Olson,

856 F.3d 1216, 1220 (9th Cir. 2017) (same); Burns v. Martuscello, 89- F.3d 77, 88-89 (2d

Cir. 2018) (recognizing even in prisoners, who have reduced constitutional rights, a “right

not to snitch”); Ferguson v. South Carolina, 532 U.S. 67, 90 (2001) (recognizing existence

of limited mandatory reporting laws only for particular professionals to report specific

identified crimes).

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Religious Freedom: Substantial Burden

The law forbids the government from substantially burdening the exercise of sincerely held 

religious beliefs. A criminal prosecution constitutes a substantial burden as a matter of law. 

This Court has already determined, before this trial began, that the defendant’s religious 

beliefs require him to help those in immediate need by providing basic aid such as food, 

water, shelter, and medical care. 

If you determine that his conduct was limited only to actions that constituted an exercise 

of these religious beliefs, you must find that this prosecution imposes a substantial burden 

on defendant’s exercise of his religious beliefs.

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Religious Freedom: Least Restrictive Means of Advancing Compelling Interest

If you find that this prosecution imposes a substantial burden on defendant’s exercise of 

his religious beliefs, you must determine whether this prosecution is nonetheless necessary 

because it is the least restrictive means of advancing a compelling government interest.

For you to so find, the government must prove the following things:

First, that it has a particular interest that is of the highest order;

Second, that enforcing the law against this defendant in this instance (as opposed to 

enforcing the law generally) meaningfully advances that interest, such that allowing him 

an exception would undermine the interest; and

Third, that the government has no other available way of advancing that interest 

without burdening the defendant’s exercise of religion. 

If the government does not prove these three things, you must find that the 

defendant’s conduct is a protected exercise of his religion.

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Dated this 23rd day of May, 2019

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 May 23, 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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