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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

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.

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

REPLY TO GOVERNMENT’S 

RESPONSE TO MOTION FOR 

DISCOVERY INTO SELECTIVE 

ENFORCEMENT

The Government never denies that No More Deaths released a highly critical report 

on the morning of the day Dr. Warren was arrested, nor that the Border Patrol knew about 

the report when agents decided to establish surveillance on a No More Deaths facility and 

arrest Dr. Warren. It never denies agents knew Dr. Warren was a volunteer and sometimesspokesman for the same organization that had just posted its critiques along with an 

embarrassing video that was quickly spreading on the internet. Instead, the Government 

quibbles with the appropriate discovery standard and urges technical distinctions in an 

unavailing attempt to avoid the inevitable conclusion that Border Patrol has previously 

observed highly similar conduct and, when that conduct was not immediately preceded by 

this protected First Amendment activity, never arrested the volunteers.

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The Government correctly acknowledges that the United States Supreme Court has 

not addressed the discovery standard for selective enforcement claims. Nevertheless, 

relying solely on two decisions out of the Tenth and Eighth Circuits, it urges this Court to 

apply the rigorous discovery standard for selective prosecution claims established in United 

States v. Armstrong, 517 U.S. 456 (1996). (Response at 7-8). However, only one of those 

cases, United States v. Alcaraz-Arellano, 441 F.3d 1252 (10th Cir. 2006), involved a 

selective enforcement claim, while the other case involved a selective prosecution claim

and does not support the Government’s position. See United States v. Deering, 179 F.3d 

592, 594 (8th Cir. 1999) (“Before his trial, Deering made a motion to dismiss 

the indictment ‘on the grounds of selective prosecution.’”).

The Government has failed to offer any persuasive reason why Armstrong should 

apply here. Contrary to the Government’s assertion, law enforcement agencies are not 

entitled to the same “presumption of regularity” afforded to prosecutors. See United States

v. Davis, 793 F.3d 712, 720-721 (7th Cir. 2015); see also Armstrong, 517 U.S. at 464 

(recognizing the source of the protection for prosecution decisions in statutes governing 

duties of Attorney General and United States Attorneys). Furthermore, as recognized by 

numerous courts, the Armstrong standard is often impossible to meet in selective 

enforcement cases, “effectively den[ying] [defendants] any ability to discover or prove 

such a claim.” United States v. Mesa-Roche, 288 F. Supp. 2d 1172, 1187 (D. Kan. 2003). 

See Motion for Discovery at 14-15. But even if this Court applies Armstrong, Defendant

has met its standard by presenting “some evidence” of discriminatory effect and intent. 517 

U.S. at 468.

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1. Defendant has presented “some evidence” of discriminatory effect even 

under the Armstrong standard.

The Government’s entire argument on Armstrong’s first prong relies on an incorrect

interpretation of the “similarly situated” requirement—namely, that the similarly situated

group must have engaged in the exact same conduct under the exact same circumstances 

as the defendant. (Response at 8-9) (“When considering the details of the charges against 

the defendant, it is clear that none of the volunteers with No More Deaths or similar 

organizations in southern Arizona offered up by the defendant were similarly situated.”).

Under Armstrong, the correct inquiry is whether there are individuals who are not members 

of the protected class who “could have been” arrested or charged for the same offense. 517 

U.S. at 470. No requirement exists that the similarly situated individuals engaged in the 

exact same conduct as the defendant. Such a requirement would be impossible to meet in 

most, if not all, cases.

In United States v. Mumphrey, 193 F. Supp. 3d 1040, 1042 (N.D. Cal. 2016), the 

defendants claimed they were arrested and charged with drug trafficking offenses because 

they were black. The government claimed the defendants were arrested as part of program 

designed “to aggressively prosecute drug dealers around schools and playgrounds in the 

Tenderloin district” of San Francisco. 193 F. Supp. 3d at 1042. While ultimately finding it 

unnecessary under United States v. Davis, 793 F.3d 712 (7th Cir. 2015), the court found 

the defendants satisfied the similarly-situated requirement based on data showing that a 

significant number of individuals who were not black “could have been charged” with 

drug-trafficking near a school or playground in the Tenderloin, but were not. Mumphrey, 

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193 F. Supp. 3d at 1061. The government argued these individuals were not similarly 

situated to the defendants because they did not involve “the same basic crime” committed 

“in substantially the same manner.” Id. at 1062. Specifically, while the charged defendants

engaged in hand-to-hand drug deals, not all the non-black individuals who were not 

charged made hand-to-hand deals. The court found this difference irrelevant, because the 

“manner of sales make[s] [no] difference from the viewpoint of the objective” to target

drug transactions near schools and playgrounds in the Tenderloin. Id.1 Thus, “[a] court 

should take ‘care[] not to define the [similarly situated] requirement too narrowly.’” 

Mumphrey, 193 F. Supp. 3d at 1061; see also Fedorov v. United States, 600 A.2d 370, 380-

81 (D.C. 1991) (en banc) (protesters’ unlawful entry convictions reversed where trial court 

erroneously concluded “that the appropriate comparison group for selective prosecution 

analysis was all persons who had participated the same night in the demonstration on 

behalf of the homeless at the same place[.]”) (emphasis in original). Focusing solely on 

persons whose conduct was exactly the same “defeat[s] any meaningful comparison for 

selective prosecution [or enforcement] purposes.” Fedorov, 600 A.2d at 380. 

Dr. Warren has identified a group of similarly situated individuals who could have 

been arrested on suspicion of harboring under similar circumstances: the volunteers who 

were present when Border Patrol raided a different No More Deaths facility in June, 2017. 

 1 Although not argued here, the court also rejected the government’s argument that the 

defendants were properly targeted because there was “strong evidence” of their crimes in 

the form of video recordings. “The question for selective enforcement is whether law 

enforcement was improperly targeting African Americans in the first place.” Mumphrey, 

193 F. Supp. 3d at 1061-1062.

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See Motion for Discovery at 17. The Government ignores this obvious example, perhaps

because it cannot reasonably distinguish it. To be sure, Dr. Warren “is charged with 

harboring illegal aliens to avoid their detection by immigration authorities, not just 

providing ‘necessities to an undocumented migrant.’” Response at 8. But the factual basis 

of the criminal complaint states only that Dr. Warren “took care” of the migrants for three 

days “by giving them food, water, beds, and clean clothes,” (Doc. 1), and the Government 

has never produced any evidence of anything else.

2 No material differences exist between 

the conduct of those NMD volunteers and the alleged conduct of Dr. Warren—except that 

Dr. Warren’s conduct occurred after the publication of the NMD report. See Mumphrey, 

193 F. Supp. 2d at 1062 (“the question is whether [any] difference was material for the 

similarly saturated analysis”). And of course, a relevant difference would have to be in the 

conduct, not in exactly how the Government elects to define the charges. Who is to say that 

volunteers in the June, 2017 incident could not have been charged the same way? Indeed, 

if the Government had the power to render a case dissimilar simply by changing its precise

allegations, it could fully insulate itself from all selective enforcement and selective 

prosecution claims through careful pleading. That is obviously not the law. Accordingly, 

Dr. Warren has made an initial showing of discriminatory effect. Mumphrey, 193 F. Supp. 

2d at 1062 (“One similarly situated example is arguably all Defendants need to show 

 2 Indeed, the Government’s own witnesses—the two migrants who have already been deposed—both testified Dr. Warren had not given them any instruction to hide, and that 

they walked around outdoors in plain view. Nor is the allegation that the migrants had stayed there two nights significant; in the Arivaca incident, agents had also observed 

migrants staying overnight in the facility. See Paul Ingram, “Border Patrol raids No More Deaths camp, arrest migrants seeking medical care,” Tucson Sentinel, June 15, 2017. 

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discriminatory effect.”) (citing United States v. Alabi, 597 Fed. Appx. 991, 996 (10th Cir. 

2015) (recognizing “the identification of a similarly situated individual who could have 

been, but was not, stopped or arrested” as sufficient) (emphasis added)).

2. Defendant has presented “some evidence” of discriminatory intent.

The Government accuses Defendant of “ignor[ing] the timeline of events and 

explanations for the agents’ actions offered during their earlier testimony.” Response at 9-

10. But Defendant’s expressly stated position is that even if this Court credits the agents’ 

testimony that they had reasons for surveiling The Barn unrelated to the report, this would 

not defeat discriminatory intent. Motion for Discovery at 22-23. See United States v. 

Turner, 104 F.3d 1180, 1184 (9th Cir. 1997) (defendant must demonstrate only that the 

government was motivated “at least in part because of” its adverse effects upon a particular 

group or person) (internal citations omitted). The required showing can be based entirely 

on circumstantial evidence. Alcaraz-Arellano, 441 F.3d at 1264.

The Government also mischaracterizes Defendant’s argument regarding the agents’ 

alleged search for the two migrants believed to be around Ajo. As an initial matter, Ajo is 

only about 40 miles from the border, and migrants arrive there routinely. The Government 

has never suggested that the “information” they had about hiding migrants was out of the 

ordinary. Looking for migrants is what these agents do every day, and the suggestion that 

a tip that there might be two of them somewhere in Ajo somehow changed the 

circumstances and explains their choice to target The Barn is implausible.

Defendant never suggested the agents had not been told two migrants might be 

hiding in Ajo, as the Government claims. Response at 9-10. Rather, Defendant questioned 

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whether this was their true motivation in surveilling the Barn that day, given that they had 

no idea what the two individuals they were allegedly searching for looked like—even 

whether they were men or women. Motion for Discovery at 7, 22. Testimony that they 

were searching for two particular individuals is simply not credible when they had not 

bothered to gather even the most rudimentary information about them. And even if they

were actually searching for two specific people that day, the Government has identified no 

non-discriminatory reason why the agents would have thought these two particular 

individuals were, of all places, at the Barn. The testimony the Government relies on for 

this choice shows only that Agent Marquez had identified the owner, that he had first 

researched the property in April, 2017, and that some unidentified local residents were 

“concerned” that the building “was being used to harbor illegal aliens.” Tr. 7/13 at 45. How 

this general, unsubstantiated “concern” reported at some unknown time between April and 

January gave agents any plausible reason to believe two particular individuals would be 

there on January 17, 2018, the Government never says. 

The Government further accuses Defendant of mispresenting the testimony at the 

suppression hearing regarding Agent Burns’ text message about “tak[ing] everyone in 

regardless.” Response at 11. But the fact that Border Patrol could initiate a prosecution 

does not explain the agent’s expressed unqualified intention to make arrests. He may have 

subsequently said, when confronted with potentially damaging messages, that he meant 

they were only going to do it if they legitimately determined that a crime was being 

committed, but that is not what he texted to his colleagues at the time. The point is simply 

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that the agent’s expressed enthusiasm for making arrests at the Barn provides some 

circumstantial evidence of discriminatory intent.

Considering all the relevant circumstances, including the timing of Dr. Warren’s 

arrest in relation to the publication of the report, Dr. Warren has demonstrated “some 

evidence” of discriminatory intent. Because the Government has failed to rebut this 

showing, Defendant is entitled to discovery under the flexible standards adopted by the 

Seventh and Third Circuits, as well as the higher standard established in Armstrong.

3. Defendant’s discovery requests are necessary and appropriate.

The Government argues that requests 1, 3-5, and 7 “have no bearing on his selective 

enforcement claim.” Response at 12. The first request, for communications regarding 

Border Patrol’s decision to surveil The Barn, is indisputably relevant to a selective 

enforcement claim, as it could reveal the underlying reasons for initiating the surveillance. 

Additionally, if agents previously surveilled The Barn and suspected illegal activity there

but did not make any arrests, this would be further evidence of discriminatory effect. The

fourth demand—regarding investigations of any other humanitarian aid workers in 

Southern Arizona—could also reveal that Border Patrol was aware of other individuals 

engaging in similar conduct, but did not take enforcement action. The fifth demand—

Border Patrol’s internal policies and procedures for interacting with humanitarian aid 

workers—could also illuminate whether Dr. Warren’s arrest was consistent with the 

agency’s normal practices. See Davis, 793 F.3d at 723 (“Analysis of the targeting criteria 

(and whether agents followed those rules in practice) could shed light on whether an initial 

suspicion of race discrimination in this case is justified.”).The third demand, for 

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information related to Border Patrol’s communications with any other law enforcement 

agency regarding the decision to charge Dr. Warren and refer his case for prosecution, is 

relevant because it could reveal that Border Patrol encouraged other agencies to pursue Dr. 

Warren for improper reasons, and could help establish discriminatory intent. 

The Government argues Defendant’s seventh demand—for data on charging 

practices—is not relevant because “[t]he decision whether to bring charges in any given 

case is a matter of prosecutorial discretion, not selective enforcement.” Response at 12. 

But the cases hold that data on prosecutions (or lack of prosecutions) for the same offenses 

under similar circumstances are relevant to discriminatory effect, even when the claim is 

one of selective enforcement. Davis, 793 F.3d at 722 (“The racial disproportion in stashhouse prosecutions remains troubling, however, and it is a legitimate reason for discovery 

provided that the district court does not transgress Armstrong or an applicable privilege.”) 

(emphasis added); United States v. Washington, 869 F.3d 193, 214 (3d Cir. 2017) (evidence 

of discriminatory effect “may be based in part on patterns of prosecutorial decisions (as 

was the case in Davis) even if the underlying challenge is to law enforcement decision”);

Mumphrey, 193 F. Supp. 2d at 1062 (“some evidence” of discriminatory effect established, 

in part, by charging data on similar offenses in state court).

The Government also states that charging data is publicly available, citing a footnote 

in Defendant’s motion listing harboring cases found on Lexis. Response at 13. However, 

Lexis does not include information on cases resolved prior to trial without substantive court 

orders or decisions that would be reported in a legal search engine, or cases in which the 

U.S. Attorney’s Office brought charges but subsequently declined to prosecute. 

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The Government further complains that Defendant’s demands are overly 

burdensome because the time frame for the requested materials is open-ended. Response

at 12. If that is of concern, the Court may order discovery in “measured steps,” Davis, 793 

F.3d at 722, for example, by first ordering disclosure of relevant materials from the past 

five years. If further discovery is warranted following a review of these materials, the Court 

could then extend its order.

Additionally, the Government avers it should not be required to disclose “oral 

communications” that have not been reduced to writing and are not within its custody and 

control. Response at 12. But this type of information could expose Border Patrol’s 

motivations for targeting The Barn and Dr. Warren (Requests 1 and 2), and could reveal

whether the agency has any informal, unwritten policies regarding the treatment of 

humanitarian aid workers that were not followed in this case (Request 5). The Court may 

inquire into these matters through means other than by written discovery, such as by taking 

“affidavits or testimony of the case agents, to determine whether forbidden selectivity 

occurred or plausibly could have occurred.” Davis, 793 F.3d at 723. 

Moreover, Defendant’s requests for relevant information from “any law 

enforcement agency” (Requests 1-4) are not overbroad. The Government’s disclosure 

duties typically extend to materials “in the possession, custody or control of any federal 

agency participating in the same investigation of the defendant.” United States v. 

Bryan, 868 F.2d 1032, 1036 (9th Cir. 1989).

Finally, to the extent the Government claims any of the requested materials are 

privileged or protected as work product (Response at 12), these concerns are outweighed 

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by Dr. Warren’s compelling need for the materials to establish his selective enforcement 

claim. See Doubleday v. Ruh, 149 F.R.D. 601, 608-610 (E.D. Cal. 1993) (attorney’s mental 

impressions and official government information may be disclosed “if the needs of the case 

are ‘substantial” and even ‘compelling’”). Denying Defendant access to these materials 

would “effectively den[y] [him] any ability to discover or prove such a claim.” MesaRoche, 288 F. Supp. 2d at 1187. If necessary, this Court could review the materials in 

camera to assess whether the Government may properly assert any privileges, and “weigh 

the potential benefits of the disclosure against the potential disadvantages.” Id. at 609 

(internal citations omitted). See United States v. Aguilar, 883 F.2d 662, 708 n.49 (9th Cir. 

1989) (district court reviewed documents related to decision to prosecute under seal); 

Davis, 793 F.3d at 723 (court may review law enforcement’s targeting criteria in camera).

CONCLUSION

For the foregoing reasons and those previously presented in Defendant’s Motion for 

Discovery Into Selective Enforcement, Defendant requests this Court to issue an order 

requiring the Government to disclose any and all information related to his selective 

enforcement claim, including but not limited to Items (1) through (7) listed above.

RESPECTFULLY SUBMITTED this 13th day of September, 2018.

By /s/ Amy P. Knight

Gregory J. Kuykendall

Amy P. Knight

531 S Convent Avenue

Tucson, AZ 85701

Attorneys for Defendant Scott 

Daniel Warren

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CERTIFICATE OF SERVICE

I certify that on September 13th, 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

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