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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

OBJECTION TO MAGISTRATE’S 

REPORT AND RECOMMENDATION 

RE MOTION TO DISMISS 

INDICTMENT FOR VIOLATION OF 

INTERNATIONAL LAW

Defendant Scott Daniel Warren, through his pro bono attorneys, objects to the 

Report and Recommendation (R&R) (Doc. 134) recommending denial of his motion to 

dismiss in its entirety. The Government is prosecuting Dr. Warren under a statute that 

broadly forbids assisting undocumented individuals in coming to and remaining in the 

United States. The Magistrate wrongly determined that it could do so despite its 

international commitment in the Protocol Against Smuggling of Migrants by Land, Sea 

and Air (the “Migrant Smuggling Protocol”) to protect the human rights of migrants. This 

Court, in its de novo review of this question of statutory interpretation, must give effect to 

America’s promise that, while maintaining its right to prosecute migrants for immigration

offenses, it would work to ensure that their human rights are protected. 

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1. The R&R Fundamentally Misunderstands the Legal Basis for the Claim. 

The R&R notes in its statement of facts that “Article 20 of the Treaty, which 

provides the enforcement mechanisms for violations of the Treaty, was not adopted.” Doc. 

132 at 2. Subsequently, it states “the Defendant conceded he did not have a private right 

action [sic] pursuant to the Treaty.” Doc. 134 at 3. These observations are irrelevant to the 

claim presented here. Dr. Warren has not claimed that the treaty itself provides him with 

some sort of legal claim, and is not asking this Court to settle a dispute between parties to 

the treaty. Rather, he asserts that as a matter of domestic law, which includes the effect of 

ratified treaties, his alleged conduct is excluded from the definition of harboring. In other 

words, the question before the Court is whether, taking into account any changes worked 

by the Migrant Smuggling Protocol upon its ratification in 2005,1 8 U.S.C. § 1324 forbids 

the alleged conduct. Dr. Warren maintains that in light of the treaty, which was ratified

after and thus prevails over the statute, his alleged conduct is not prohibited under United 

States law. The legal basis for relief is thus not the treaty, but Federal Rule of Criminal 

Procedure 12(b)(3)(B)(v), which provides for dismissal when an indictment fails to state 

an offense, and this Court’s task is interpreting § 1324. See Cabrera-Alvarez v. Gonzales, 

423 F.3d 1006, 1009 (9th Cir. 2005) (interpreting immigration statute in light of United 

Nations Convention on the Rights of the Child). 

Under Article VI of the United States Constitution, ratified treaties are the supreme 

law of the land in this country, regardless of the mechanisms they may or may not provide 

 1 The R&R states that “In the year 2000, the United States became a member of the Protocol 

Against the Smuggling of Migrants by Land, Sea, and Air.” Doc. 134 at 2. The United 

States did sign the protocol on December 13, 2000 at Palermo, Italy, but it was not ratified 

by the Senate until October 7, 2005.

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for the settlement of a dispute between two nations. A ratified treaty’s terms apply in the 

United States just as federal statutes do. Thus, in a domestic court proceeding in this 

country, a ratified treaty is one source of governing law, alongside the Constitution, 

statutes, and common law. This Court has been asked simply to determine the application 

of some of those laws to this case. See, e.g., United States v. Smiskin, 487 F.3d 1260 (9th

Cir. 2007) (affirming dismissal of indictment because treaty exempted alleged conduct); 

Nuru v. Gonzales, 404 F.3d 1207, 1217-23 (9th Cir. 2005) (interpreting Convention Against 

Torture to require withholding of removal in immigration proceeding). There is nothing 

unusual about considering the effect of treaties on the federal statutes under which the 

government brings a legal action.

To be sure, the Migrant Smuggling Protocol does provide, as many treaties do, that 

if a dispute arises between two countries who are both party to the treaty, they may, after 

completing arbitration, submit the dispute to the International Court of Justice (ICJ). Art. 

20(2). But the settlement of disputes between nations about what a country must do to 

comply is an entirely different question from the application of a ratified treaty’s 

requirements domestically. Indeed, domestic courts’ application vel non of a treaty’s 

required protections can itself be the basis of the type of international dispute contemplated 

by remedy provisions like Article 20. See, e.g., Avena and Other Mexican Nationals (Mex. 

V. U.S.), 2004 I.C.J. 12 (Judgment of March 31).2 In other words, in the realm of 

 2 In Avena, Mexico filed an application to institute proceedings in the ICJ, alleging that the 

United States had violated the terms of the Vienna Convention on Consular Relations “in 

arresting, detaining, trying, convicting, and sentencing” 54 specifically identified Mexican 

nationals. Para. 12(1). Thus, the complained-of actions were in part those of domestic 

courts in neglecting the treaty’s requirements in criminal proceedings. The ICJ ruled, 

among other things, that in some cases, the United States breached treaty obligations “by 

not permitting the review and reconsideration, in light of the rights set forth in the 

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international obligations, domestic courts are among the actors charged with carrying out 

the obligations, not the ultimate arbiters of their meaning. 

And of course, opting out of a treaty’s inter-country dispute resolution mechanism 

in no way limits the obligations of a State Party to act in compliance with its terms. If that 

were the case, ratification of a treaty without submitting to a particular enforcement 

mechanism would be a meaningless act. But the treaty itself explicitly provides States Party 

with the option of exempting themselves from ICJ dispute resolution, see Art. 20(3), as the 

United States has done. Thus, this treaty’s drafters clearly recognized that it would serve 

to constrain parties’ actions regardless of participation in the ICJ dispute resolution 

mechanism. 

2. The Treaty’s Preservation of Domestic Law Was Intended Only to Prevent 

Wholesale Exemption of Migrants From All Liability.

Article 6(4) of the Migrant Smuggling Protocol provides, “Nothing in this Protocol 

shall prevent a State Party from taking measures against a person whose conduct constitutes 

an offence under its domestic law.” The Magistrate takes this to mean that unlike the rest 

of the treaties to which the United States is party, this one automatically subjugates itself 

to any earlier-enacted law that is in any way inconsistent. This is error.

First, the provision’s drafting history makes clear that its purpose was to clarify that 

although parties could not criminalize migrants simply for being the victims of organized 

smuggling, it could still punish migrants for regular, pre-existing immigration offenses, so 

long as their punishments were not enhanced for their victimization by the criminal 

 convention, of the conviction and sentences” of certain defendants. Para. 153(8). It was 

thus in part the actions of courts in the United States that violated the treaty. 

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smuggling operation. The Supreme Court directs courts to consider the negotiating and 

drafting history of treaties in interpreting its terms. Zicherman v. Korean Airlines, 516 U.S. 

217, 226 (1996). The initial draft of the provision provided that “A person whose illegal 

entry and/or illegal residence is procured or intended by the smuggling of migrants shall 

not become punishable under this Protocol.” Travaux Préperatoires3 at 478. However, 

“several delegations were apprehensive about the possibility of the protocol granting 

immunity to illegal migrants, especially if they had committed a crime, including the 

smuggling of other illegal migrants.” Id. at 482 n. 20. The Notes by the Secretariat explain 

that “there was consensus that migrants were victims and should therefore not be 

criminalized. It was also agreed, however, that migrants should not be given full 

immunity.” Id. at 483. At one point, a coalition of seven countries including the United 

States suggested the language “Nothing in this Protocol shall be interpreted as requiring 

States Parties to take measures against a migrant for the mere fact of having been 

smuggled.” Id. at 484. Ultimately, the drafters settled on the adopted language to 

accomplish their objective of preventing the wholesale immunization of migrants from any 

criminal sanction.

Crucially, at the same time, and in the same discussions, the drafters were refining the 

language of Article 6, paragraph 1, the provision that provides for criminalization of 

various actions “when committed intentionally and in order to obtain, directly or indirectly, 

a financial or other material benefit.” As detailed in the briefing on this motion, the drafters 

 3 United Nations Office on Drugs and Crime, Travaux Préparatoires of the Negotiations for the

Elaboration of the United Nations Convention against Transnational Organized

Crime, available at https://www.unodc.org/pdf/ctoccop_2006/04-60074_ebook-e.pdf.

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were explicitly concerned with ensuring that humanitarian support was not criminalized. 

See Doc. 115 at 6; Doc. 128 at 7. Thus, the drafters of Article 6 had a coherent vision about 

what would and would not be criminalized under the Migrant Smuggling Protocol: 

smuggling for profit and activities taken in support of that enterprise would be criminal; 

being victimized by for-profit smuggling would not be criminal; humanitarian support by 

NGOs, churches, and family members would not be criminal; and immigration and other

offenses by smuggling victims would be unaffected. 

Second, as a matter of U.S. law, a treaty’s provisions do prevail over the terms of an 

earlier-passed statute. In Whitney v. Robertson, 124 U.S. 190 (1888), merchants 

complained that the imposition of a tax on goods they brought into New York violated a 

treaty with the Dominican Republic. The Court explained that the tax applied, treaty 

notwithstanding, because the statute imposing it “was passed after the treaty with the 

Dominican Republic, and, if there be any conflict between the stipulations of the treaty and 

the requirements of the law, the latter must control. . . . if the two are inconsistent, the one 

last in date will control the other.” Id. at 194 (emphasis added); see also Breard v. Greene, 

523 U.S. 371, 376 (1998) (holding that an international treaty providing an individual right 

to assistance cannot be enforced in postconviction proceedings where a later-enacted 

federal statute limits availability of relief). The Migrant Smuggling Protocol’s provision 

limiting the immunity of migrants to charges stemming from their victimization cannot 

overcome this bedrock principle. 

3. The Treaty Adds Protection of the Human Rights of Migrants to Existing Human 

Rights Obligations.

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The R&R characterizes Article 19 of the Migrant Smuggling Protocol as a “[d]ecision 

not to expand any humanitarian rights that existed prior to the Protocol’s authorization.” 

This is an odd reading of a self-identified “Saving clause,” which was clearly intended to 

prevent any interpretation of the Smuggling Protocol that would limit or otherwise override 

existing human rights obligations. The provision serves to clarify that the Smuggling 

Protocol’s requirements are in addition to, not instead of, existing international human 

rights obligations; it says nothing about whether the protocol itself creates rights and 

obligations. Indeed, the protocol explicitly includes among is stated purposes “protecting 

the rights of smuggled migrants,” Art. 2, and notes in its preamble that it responds, in part, 

to a concern “that the smuggling of migrants can endanger the lives or security of the 

migrants involved.” It is thus nonsensical to suggest that the inclusion of a saving clause 

somehow means the treaty does not create any human rights obligations. 

4. This Interpretation of the Harboring Statute is Simply an Application of Existing

Laws. 

Applying the Migrant Smuggling Protocol’s provisions consistently with our cosignatories and the guidance of the United Nations does not constitute “creating the laws 

of this country.” Doc. 134 at 2. In so characterizing the proffered interpretation of § 1324 

in conjunction with the Migrant Smuggling Protocol, the R&R treats a binding, ratified 

treaty as though it were not already the law in this country. This is a grave error. The law 

already exists. This Court need only determine what, in light of the ratification of the 

Migrant Smuggling Protocol, § 1324 can legally punish. 

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The opinion of the Supreme Court of Canada in R. v. Appulonappa, 2015 SCC 59,4

perfectly illustrates this. In Appolunappa, a group of Sri Lankan migrants was apprehended 

off the coast of Vancouver Island. Four of the migrants were charged under a Canadian 

statute stating “No person shall organize, induce, aid or abet the coming into Canada of 

one or more persons knowing that, or being reckless as to whether, their coming into 

Canada is or would be in contravention of this Act.” This statute bears obvious similarities 

to 8 U.S.C. § 1324. The Canadian Supreme Court ruled that “insofar as [the statute] permits 

prosecution for humanitarian aid to undocumented entrants. . . it is unconstitutional.” Para. 

5. Canada, like the United States, maintains a presumption that legislation complies with 

its international obligations. Para. 40. The Court thus looked to the Migrant Smuggling 

Protocol, which Canada had ratified, and, recognizing the “material benefit” limitation in 

Article 6 and the saving clause preserving existing humanitarian obligations, explained that 

“It would depart from the balance struck in the Smuggling Protocol to allow prosecution 

for mutual assistance among refugees, family support and reunification, and humanitarian 

aid.” Para. 44. This analysis did not entail the creation of any new law; it merely examined 

an existing statute in light of Canada’s international obligations, including the same 

Migrant Smuggling Protocol at issue here, and determined that it could not extend as far 

as the prosecutors wished to stretch it. That is precisely what this Court must do. 

The R&R includes a four-point list of what it presents as a “fair reading of the 

Treaty.” Doc. 132 at 2. In assembling this incomplete list, the Magistrate fails to address 

the considerations the Supreme Court has repeatedly identified as relevant to the 

 

4 Available at https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15648/index.do.

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interpretation of a treaty. The analysis fails to consider:

• The negotiating and drafting history (travaux préparatoires), Zicherman v. 

Korean Airlines, 516 U.S. 217, 226 (1996)

• The Senate’s statements and actions regarding the Treaty, United States v. Stuart, 

489 U.S. 353, 368 (1989)

• The “great weight” afforded the views of fellow signatories, Air France v. Saks, 

470 U. S. 392, 404 (1985)

• The views of the United Nations, INS v. Cardoza- Fonseca, 480 U.S. 421, 452 

(1987)

Thus, the R&R’s reading neglects significant evidence that reveals the intent of the 

parties in agreeing to the Migrant Smuggling Protocol. 

The United States seeks, here, to criminally punish a volunteer for the provision of 

humanitarian aid because the recipients of that aid did not have legal authorization to be in 

this country. But these prosecutors are agents of the same government that has committed 

to the protection of the human rights of migrants and agreed to a protocol that exempts 

such actions from punishment. Accordingly, it cannot maintain this prosecution.

RESPECTFULLY SUBMITTED this 21st day of November, 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 November 21st, 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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