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ELIZABETH A. STRANGE

First Assistant United States Attorney

District of Arizona

ANNA R. WRIGHT

NATHANIEL J. WALTERS

Arizona State Bar No. 029708

Assistant U.S. Attorneys

United States Courthouse

405 W. Congress Street, Suite 4800

Tucson, Arizona 85701

Telephone: 520-620-7300

Email: 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-00223-TUC-RCC-DTF

GOVERNMENT’S RESPONSE: MOTION 

TO DISMISS INDICTMENT DUE TO 

SELECTIVE ENFORCEMENT

(Doc. 186)

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

responds to the defendant’s Motion to Dismiss Indictment Due to Selective Enforcement. 

The defendant entirely fails to show either a discriminatory effect or a discriminatory 

intent. As such, the defendant has not demonstrated that the United States Border Patrol 

selectively enforced any laws against him. Accordingly, for the reasons discussed below, 

the United States respectfully asks this Court to deny the defendant’s Motion to Dismiss.

MEMORANDUM OF POINTS AND AUTHORITIES

I. BACKGROUND

a. Factual Summary

On June 1, 2017, the defendant committed several misdemeanor offenses involving 

giving aid to illegal aliens crossing through the Cabeza Prieta National Wildlife Refuge. 

See United States of America vs. Scott Daniel Warren, 17-00341-RCC-JR. On December 

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6, 2017, the government filed an Information related to these offenses and the Court issued 

a summons to the defendant. Id. at Docs. 1, 5. At a meeting on December 12, 2017, United 

States Fish and Wildlife (FWS) Officer Donnie Ebann told United States Border Patrol 

Agent (BPA) John Marquez that he had been looking for the defendant to issue a summons. 

See Defendant’s Exhibit 8. On January 8, 2018, BPA Marquez and FWS Officer Ebann 

exchanged text messages regarding the defendant and his current address so FWS could 

serve the defendant with the summons, and BPA Marquez specifically asked if the FWS 

Officer was going to “serve the summons” that day. 

On January 17, 2018, in Ajo, Arizona, BPA Marquez texted FWS Officer Ebann at 

12:59 p.m. stating that he and his partner, BPA Brendan Burns, were to going to establish 

surveillance on a building known as the “Barn.” The Barn is a structure that Border Patrol 

believed various non-government organizations, including No More Deaths, used to harbor 

illegal aliens. Sometime between 12:59 p.m. and 3:50 p.m. that same day FWS Officer

Ebann texted BPA Marquez and informed him that No More Deaths was going to be on 

the news at 10:00 p.m. discussing vandalism to sites where the group had left water and 

food for illegal aliens crossing through the desert. BPA Marquez responded, saying, “Oh 

wow. That’s awesome. Wonder who they are gonnablame (sic).” FWS Officer Ebann

responded, “BP mainly,” and BPA Marquez stated, “Yeah. Prolly. (sic).”

During the surveillance on the Barn that same day, agents saw the defendant 

standing outside the Barn with two men, apparently engaged in conversation. Although the 

agents could not hear the conversation between the defendant and the two men, it appeared 

to the agents that the defendant was giving directions to the two men based on the 

defendant’s hand gestures and the direction the men were facing. 

Shortly after that, the agents approached the Barn on foot where they encountered 

the defendant, who told the agents to leave. The agents then conducted a knock-and-talk at 

the Barn. There they found the two men previously seen speaking with the defendant and 

identified them as Kristian Perez-Villanueva and Jose Arnaldo Sacaria-Goday. The agents 

also determined that Perez-Villanueva and Sacaria-Goday were illegally present in the 

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United States. The agents subsequently arrested the defendant on suspicion of violations 

of 8 U.S.C. § 1324, and detained Perez-Villanueva and Sacaria-Goday as material 

witnesses.

Agents later obtained a search warrant for the Barn, which Border Patrol executed

on January 22, 2018. During their search of the Barn, agents found two hand-drawn maps 

that identified Border Patrol checkpoints to the north and south of Ajo, as well as signs in 

English and Spanish posted in a common area advising the occupants of the Barn how to 

respond if immigration authorities came to the Barn.

During their video depositions on March 7, 2018, Perez-Villanueva and SacariaGoday testified that they crossed into the United States from Mexico on January 13, 2018,

and walked from the international border to Ajo, Arizona, on January 14, 2018. They 

further testified that they stopped at two gas stations in the United States before reaching 

the Barn. They further testified that at the second gas station, a few hours before they 

arrived at the Barn, they bought burritos and PowerAde with money given to them by a 

stranger. Sacaria-Goday testified that he did not finish his burrito because he did not like 

the beans; Perez-Villanueva finished what was left of Sacaria-Goday’s burrito.

Perez-Villanueva and Sacaria-Goday testified that they got a ride in a van from a 

stranger to the Barn. Once at the Barn, they hid in the bathroom until the defendant found 

them. They also testified that the defendant allowed them to stay at the Barn from January 

14, 2018, until their arrest on January 17, 2018. During that time, he gave them a place to 

sleep, a change of clothes, food, and water. During that time, he did not ask if they needed 

medical attention and did not provide medical attention of any kind.

Perez-Villanueva also testified that he carried a cell phone with him from the time 

he crossed into the United States from Mexico on January 13, 2018, until his arrest on 

January 17, 2018. A consensual forensic search of that cell phone revealed, among other 

things, photographs taken by Perez-Villanueva and Sacaria-Goday on January 14, 2018, at 

the two gas stations, along with other photographs taken during their stay at the Barn. 

Perez-Villanueva and Sacaria-Goday identified these photographs during their video 

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depositions. Agents also recovered from Perez-Villanueva’s cell phone text 

communications with a phone number associated with Ireneo Mujica related to arranging 

transportation within the United States on January 14, 2018.

b. Procedural Posture

The United States charged the defendant by complaint on January 18, 2018, with 

harboring Perez-Villanueva and Sacaria-Goday in violation of 8 U.S.C. § 

1324(a)(1)(A)(iii). Doc. 1. On February 14, 2018, a grand jury charged the defendant in a 

three-count Indictment with conspiracy to transport or harbor illegal aliens in violation of 

8 U.S.C. §§ 1324(a)(1)(A)(v)(I), (a)(1)(A)(ii), and (a)(1)(A)(iii) (Count One), and 

harboring illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) (Counts Two and 

Three). Doc. 26.

The defendant filed a Motion to Dismiss Indictment Due to Selective Enforcement 

on March 15, 2019. Doc. 179. Trial is currently scheduled for May 28, 2019. 

II. Summary of Relevant Law

Subject to constitutional constraints, the government has broad discretion in 

enforcing criminal laws. See United States v. Armstrong, 517 U.S. 456, 464 (1996). To 

this end, under the equal protection component of the Fifth Amendment Due Process 

Clause, the government may not base a decision to enforce the law on “an unjustifiable 

standard.” Id. Whether the alleged equal protection violation is selective enforcement of 

the law against a particular group or selective prosecution of defendants who are members 

of a particular group, the elements of the claim are the same. See id. at 465-66; see also

United States v. Alcaraz-Arellano, 441 F.3d 1252, 1264 (10th Cir. 2006).

To prevail on an equal protection claim, the defendant must demonstrate that 

enforcement had a discriminatory effect and law enforcement was motivated by a 

discriminatory purpose. Rosenbaum v. City & Cnty. Of S.F., 484 F.3d 1142, 1152 (9th Cir. 

2007) (citing Wayte v. United States, 470 U.S. 598, 608 (1985)). A discriminatory purpose 

could include enforcing the law on someone because of their race, religion, or the exercise 

of constitutional rights. Lacey v. Maricopa Cty., 693 F.3d 896, 920 (9th Cir. 2012). The

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defendant may show enforcement through a variety of actual or threatened arrests, searches 

and temporary seizures, citations, and other coercive conduct by the police. See 

Rosenbaum, 484 F.3d at 1152-54; see also United States v. Frazier, 408 F.3d 1102, 1108 

(8th Cir. 2005); Flowers v. Fiore, 359 F.3d 24, 34 (1st Cir. 2004); Cavez v. Ill. State Police, 

251 F.3d 612, 635 (7th Cir. 2001); United States v. Avery, 137 F.3d 343, 358 (6th Cir. 

1997). To establish a discriminatory effect, the defendant must show that “similarly 

situated individuals...were not prosecuted.” Armstrong, 517 U.S. at 464. To establish a 

discriminatory purpose, the defendant must show that law enforcement was motivated “at 

least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable 

group. Wayte, 470 U.S. at 610.

III. Discussion

The defendant is not entitled to a dismissal of the Indictment because he has not met 

his burden of showing discriminatory effect or discriminatory intent. Since, the defendant 

cannot meet this burden, he is also not entitled to additional discovery based on a theory of

selective enforcement.

a. The defendant has failed to produce any evidence of discriminatory effect.

In order to prove a discriminatory effect, “the claimant must show that similarly 

situated individuals...were not prosecuted.” Armstrong, 517 U.S. at 465; see also 

Rosenbaum, 484 F.3d at 1153-54. The standard for proving a discriminatory effect is a 

demanding one. Lacey, 693 F.3d at 920 (quotations omitted). In order for the defendant to 

prevail on a selective enforcement claim, he must show either anecdotal or statistical 

evidence that similarly situated individuals could have been prosecuted but were not. Id. If 

a defendant cannot point to a similarly situated control group, then the decision to enforce 

the law against a defendant claiming to be exercising their constitutional rights proves 

nothing. See United States v. Aguilar, 883 F.2d 662, 706 (9th Cir. 1989); see also Attorney 

General v. Irish People, Inc., 684 F.2d 928 (D.C. Cir. 1982), cert. denied, 459 U.S. 1172 

(1983) (“Discrimination cannot exist in a vacuum; it can be found only in the unequal 

treatment of people in similar circumstances.”).

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Here, the defendant argues that he can demonstrate that Border Patrol did not target, 

or refer for prosecution, similarly situated people, groups, and locations. However, the 

defendant’s anecdotal evidence shows FWS acted lawfully in enforcing the law against the 

defendant. It also fails to establish that any similarly situated person was not referred for 

prosecution. The defendant attempts to meet his burden by pointing to other locations in 

Ajo he thinks were “more reasonable” surveillance targets, to individuals present at a No 

More Deaths location in Arivaca July 2017, and to other individuals present at the Barn on 

the day of the defendant’s arrest.

Upon information and belief, the defendant has no prior law enforcement training 

or experience, and it is clear that his view of how a “more reasonable” investigation should 

have occurred is deeply flawed. Even from the information proffered about other locations, 

it is impossible to determine whether the other locations presented a viable option for 

covert surveillance. There is also no information suggesting that the other locations could 

be stash houses for illegal aliens. In contrast, it is clear that the Barn presented a covert 

vantage point for the agents, and the agents had objective facts that made the Barn a “more 

reasonable” place to conduct surveillance with the intent to apprehend illegal aliens. In 

particular, agents knew that the defendant had been inside the Barn with the illegal aliens, 

spoke to the illegal aliens, and gave them directions on how to circumvent a Border Patrol 

checkpoint.

As to the individuals at the Arivaca location in July 2017, Border Patrol did not have 

probable cause to arrest anyone in relation to that incident. There is nothing to suggest, 

who, if anyone, at the Arivaca location interacted with the illegal aliens or took any 

affirmative steps to further the illegal aliens’ entry into the United States. Similarly, as to 

the other people present at the Barn on January 17, 2018, Border Patrol did not have

evidence to suggest that those individuals were ever inside the Barn, knew illegal aliens 

were present inside the Barn, spoke to the illegal aliens, or gave them apparent directions 

on how to circumvent a Border Patrol checkpoint.

The defendant, in this case, was not similarly situated to the individuals noted in his 

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motion, and objective facts made the Barn a more reasonable place to conduct surveillance.

Therefore, he has not presented any evidence of a discriminatory effect, and his motion 

must be denied.

b. The defendant has failed to produce any evidence to demonstrate

discriminatory intent.

In addition to completely failing to meet his burden as to discriminatory effect, the 

defendant also fails to meet his burden as to discriminatory intent. In fact, the only evidence 

of discriminatory intent offered by the defendant is the fact that the Border Patrol 

investigated No More Deaths’ illegal activities. Contrary to the defendant’s argument, the 

government may investigate an individual or group, even if that investigation impinges 

upon First Amendment rights if the government can justify the investigation with a 

legitimate law enforcement purpose and is not “for the purpose of abridging First 

Amendment freedoms.” United States v. Mayer, 503 F.3d 740, 751, 753 (9th Cir. 2007). 

The government is not required to demonstrate a higher level of suspicion than that 

required for any other investigation. Id. at 751.

The agents involved in the surveillance of the Barn were assigned to the “Ajo 

targeting enforcement unit” that “specifically target[s] individuals or aliens that may be 

involved with...human smuggling.” RT 6/14/18 at 85:19-23. It is clear that Border Patrol 

chose to surveil the Barn over other locations like the Curley School and a random house 

on Rosedale Avenue for legitimate law enforcement purposes. When agents executed a 

search warrant at the Arivaca location in July 2017, they learned that there was evidence 

to suggest that No More Deaths used the location to further illegal aliens’ entry into the 

United States, although this evidence did not amount to probable cause to charge any one 

person. Second, on December 12, 2017, BPA Marquez learned from FWS Officer Ebann

that there was a lot of trash associated with illegal alien activity near the Barn. This trash 

included black water jugs used to mask reflections from the sun, and carpet booties used 

to conceal footprints when crossing illegally through the desert. With this information, it 

was reasonable to believe illegal aliens could have been at the Barn, and BPAs Marquez 

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and Burns were within the law to conduct surveillance as part of an investigation into 

potential alien harboring or smuggling.

The defendant’s arguments that the Border Patrol investigated No More Deaths in 

retaliation for No More Deaths’ public relations campaign make no sense. First, Border 

Patrol executed a search warrant at the Arivaca camp in June 2017, but did not establish 

surveillance on the Barn until approximately 6-7 months later. Had a motivating factor in 

Border Patrol’s decision to investigate illegal alien activity near the Barn been an unlawful 

retaliation against No More Deaths or the defendant, agents surely would not have waited 

over half a year to begin surveillance. Second, there is not a single piece of evidence 

demonstrating BPAs Marquez or Burns had any knowledge of the video before conducting 

their surveillance. 1 The defendant does not even claim this evidence exists. Instead, he 

asks the Court to infer that BPAs Marquez and Burns must have known about the video 

because unknown agents at the Ajo station had received news of the report.

BPAs Marquez and Burns, while doing their job, conducted surveillance after 

learning about evidence suggesting that potential illegal alien activity near the Barn, a No 

More Deaths location, and that No More Deaths assisted illegal aliens in their journey 

north. Their reasons for conducting the investigation were purely to thwart illegal 

immigration, not to infringe upon the defendant’s constitutional rights. The defendant’s

allegations, taken together or separate, fail to demonstrate that there is any evidence of 

discriminatory intent in this case. None of the allegations has any tendency to show that 

the decision to conduct surveillance was motivated by a discriminatory purpose based on 

an unjustifiable standard. See Wayte, 470 U.S. at 608. Therefore, the defendant has failed 

to meet his burden as to discriminatory intent.

c. The defendant is not entitled to additional disclosure.

Rule 16 requires the government to allow the defendant to “inspect and copy” 

various items only under certain circumstances, including if those items are “material to 

 

1 The defendant presents no evidence he had any role in creating or disseminating the video.

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preparing the defense.” Fed. R. Crim. Pro. 16(a)(1)(E)(i); see also United States v. 

Armstrong, 517 U.S. 456, 463 (1996). “Materiality is a necessary prerequisite to 

discovery.” United States v. USDC, Central Dist. Of Cal., Los Angeles, Cal., 717 F.2d 478, 

480 (9th Cir. 1983) (citations omitted). Critically, this requirement means that, before 

discovery may be ordered, a defendant must establish that he has a factual basis for 

asserting the defense that is the basis of discovery sought, and that the requested documents 

or tangible items are relevant and helpful to that defense. United States v. Murdock, 548 

F.2d 599, 600 (5th Cir. 1977) (emphasis added) (cited with approval in United States v. 

Ness, 652 F.2d 890, 892 (9th Cir. 1981)). In this regard, “[n]either a general description of 

the information sought nor conclusory allegations of materiality suffice.” United States v. 

Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990).

Simply put, the defendant has failed to carry his burden of showing discriminatory 

effect or discriminatory intent. Therefore, his Renewed Motion for Discovery must be 

denied.

IV. CONCLUSION

In this case, the defendant has failed to proffer any evidence demonstrating

discriminatory effect or discriminatory intent. Since the defendant cannot meet his burden 

as to either element, he is not entitled to a dismissal or further discovery. For these reasons, 

the United States respectfully asks the Court to deny the defendant’s motion in its entirety.

Respectfully submitted this 5th day of April 2019.

ELIZABETH A. STRANGE

First Assistant United States Attorney

District of Arizona

/s/ Anna R. Wright

ANNA R. WRIGHT

Assistant U.S. Attorney

/s/ Nathaniel J. Walters

NATHANIEL J. WALTERS

Assistant U.S. Attorney

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Copy of the foregoing served electronically or by other means this 5th day of April 2019, to:

All ECF Participants

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