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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.CR-18-00223-001-TUC-RCC(DTF)

DEFENDANT’S OBJECTION TO 

GOVERNMENT’S PROPOSED 

JURY INSTRUCTION

The government has asked this Court to change the legally correct and 

appropriate instruction it gave the jury in the first trial on the law regarding the 

absence of any obligation to report known or suspected violations of the law. The 

additional material the government now proposes—an advisement that the jury can 

consider a defendant’s entirely lawful choice not to summon authorities in 

determining whether the government has proved the elements of harboring (i.e., 

intent to violate the law)—is wholly inappropriate, misstates the law, and if given 

would constitute an impermissible comment by this Court on the evidence. The 

government never before objected to the instruction used in the first trial and has no 

basis for doing so now.

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The government claims two cases on pre-Miranda silence that the parties have 

already discussed extensively, United States v. Oplinger, 150 F.3d 1061 (9th Cir. 

1998) and United States v. Beckman, 298 F.3d 788 (9th Cir. 2002) 1support its novel 

proposition. But neither of these cases addresses a person’s non-obligation, or 

decision whether or not, to contact authorities; both Oplinger and Beckman deal with 

what a defendant does or does not say when already being questioned by authorities 

who are already present. An enormously legally relevant difference exists between 

what is communicated to an officer who is already present and asking a suspect 

questions, and a defendant affirmatively deciding whether to summon authorities to 

the scene. Nor does United States v. Tydingco, 909 F.3d 297 (9th Cir. 2018) say 

anything remotely like what the prosecution cites it for; the cited passage establishes 

only that a harboring conviction requires intent to violate the law. 

As this Court has acknowledged, private citizens have every right to not call

law enforcement, even when they know a crime is being committed. The law in the 

United States imposes no obligations for citizens to inform on one another; one court 

even recently recognized a “right not to snitch.” Burns v. Martuscello, 890 F.3d 77, 

88-89 (2d. Cir. 2018). It is thus entirely inappropriate for the government to argue, 

and much worse for this Court to instruct the jury, that exercising that right is 

evidence of guilt. 

Significantly, a large number of potential jurors already appear to mistakenly

believe that the law does impose an obligation to report, but the government asks 

this Court not to even advise the jury what the law actually is until after it has heard 

and seen all the evidence. Because the jurors will know that they must assess intent 

to violate the law, it is crucial that they not consider the evidence while under this 

common and insidious misconception. The government offers no reason whatsoever 

1 Defendant maintains his position that these cases do not allow the government to 

comment on a defendant’s exercise of his Fourth Amendment right not to engage voluntarily with police, but acknowledges that this Court has ruled, based on these cases, 

that the government may introduce evidence concerning what Dr. Warren could have but did not say to the agents who were present at the Barn.

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why this Court should keep the jurors misinformed and in the dark about the correct 

statement of the law until the end of the trial. The only reason conceivable is to 

improperly allow the government to take advantage of the phenomenon of jurors 

already laboring under a profound and material misunderstanding of the law.

RESPECTFULLY SUBMITTED this 1st day of November, 2019.

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 November 1, 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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