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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 GOVERNMENT’S 

MOTION TO EXCEED PAGE 

LIMITATIONS AND MOTION TO 

STRIKE GOVERNMENT’S 

PROPOSED RESPONSE BRIEF

On May 31, 2018, Magistrate Judge Bernardo Velasco entered a Report and 

Recommendation regarding Dr. Warren’s Motion to Dismiss Counts 2 and 3 (Doc. 81). 

On June 14, 2018, within the time allotted by Federal Rule of Civil Procedure 59(b)(2), 

Dr. Warren filed his objections to the Report and Recommendation (Doc. 82). Consistent 

with LRCiv 7.2(c)(3), the objection is 10 pages long, including the caption which 

consumes more than half of the first page, although a portion of the signature block and 

certificate of service run onto an eleventh page. The Government did not file any 

objections, and thus waived its right to object to anything contained in the Report and 

Recommendation.
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On June 21, 2018, Professors of Religious Liberty filed a motion to file an amicus 

brief (Doc. 87) and lodged their proposed brief (Doc. 88). On June 26, 2018, two days 

before its response to Dr. Warren’s objection was due, the Government filed a motion to 

extend time to file its response for an additional week, citing as its only reason the need 

to respond to the amicus brief (Doc. 90). The following day, this Court granted the 

Professors’ motion to file their amicus brief, specifically ordering that “Should they so

choose, the parties shall have up to and including July 5, 2018 to respond to the Amicus 

Brief.” (Doc. 91 at 2). The same day, this Court also granted the Government’s motion to 

extend time, despite its separate provision of time and a forum to respond to the amicus 

brief. When July 5, 2018 arrived, the Government filed a motion to exceed the page 

limitations on its response to Dr. Warren’s objection. The Court should deny this motion. 

First, the Government argues that the rules do not dictate the length for a response 

to an objection to a Report and Recommendation. This is true; the rules themselves do 

not entitle the Government to any response at all to Dr. Warren’s objection. The 

Magistrate Judge’s Report and Recommendation, however, contemplated such a 

response. Nowhere in any local rule or Federal Rule of Procedure is there any provision 

for a response to any sort of brief that exceeds the length of the brief it is answering. 

Thus, as the Government appears to acknowledge in filing its motion, there is absolutely 

no basis for a response that exceeds the 10 pages allotted for an objection.

Next, the Government avers that Dr. Warren’s objection is 11 pages long. That is 

simply not true. The brief itself concludes at the bottom of the tenth page, including the 

caption; the eleventh page includes only part of a signature block and a certificate of 
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service. Federal courts routinely exclude such formal requirements from page counts. 

See, e.g., Studio Imps., Ltd., Inc. v. Landmark Am. Ins. Co., No. 09-60242-CIV, 2009 U.S. 

Dist. LEXIS 138565, at *17 (S.D. Fla. Aug. 4, 2009); Endeavor Meshtech, Inc. v. Zenner

Performance Meters, Inc., No. 2:15-CV-1155-WCB, 2016 U.S. Dist. LEXIS 4895, at *3 

(E.D. Tex. Jan. 13, 2016); In re Ocean Rig UDW Inc., 585 B.R. 31, 41 (S.D.N.Y. 2018).

The Government then states that the amicus brief is 15 pages long. True enough—

but the Government’s lodged proposed brief in response to Dr. Warren’s objection makes 

no mention whatsoever of this amicus brief. The amicus brief thus cannot justify any 

need for extra pages. And in any event, this Court explicitly afforded the parties an 

opportunity to file a separate response to that amicus brief, thus obviating any need to 

respond to it within the confines of its response to Dr. Warren’s objection. The 

Government chose not to avail itself of this opportunity.

The Government has no additional reasons why four additional pages (when only 

ten are allotted to begin with) are necessary. Dr. Warren confined his objection to the ten

pages allotted by the rules. This was not because he had nothing additional he could or 

would say in additional space; indeed, there are many additional arguments he might 

have made, if additional pages had been allotted. But Dr. Warren limited his response to 

the length allowed by the rules. The Government has presented no valid reason why it 

should not be required to do the same. Accordingly, this Court should deny the 

Government’s motion to file an overlength brief, and instead require the government to 

file a proper response limited to ten pages. To do otherwise would be to penalize Dr. 

Warren for complying with the rules.
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The Government’s proposed brief is inappropriate for an additional reason: it 

relies on evidence that is not properly before this Court. In its proposed brief, Doc. 95, 

the Government notes that “[d]uring the video depositions, the government provisionally 

admitted several photographs found during a consensual search of Perez-Villanueva’s 

cell phone.” Id. at 4. But the Government does not have the power to “admit” evidence; it 

can only offer exhibits into evidence. It is up to this Court to admit, or not, offered 

exhibits. And the Government did not offer any of those exhibits at the evidentiary 

hearing on the motion that is now before this Court, despite ample opportunity to do so. 

The Government has not cited any authority for the proposition that such exhibits used in 

a deposition are properly before a Court who has never ruled on their admissibility or 

even been properly presented with them. The exhibits are not automatically offered and 

admitted with the testimony. If the Government wanted to rely on that evidence in 

support of its position on this motion, it should have offered that evidence at the hearing. 

It chose not to. It cannot now rely on that evidence—never offered to this Court or 

admitted—to resist a proper motion by the defense supported by evidence offered to, and 

admitted by, the Court. Yet it has attempted to do precisely that. See Proposed Brief, Doc. 

95, at 4, 12, 13 (citing exhibits never admitted into evidence). Simply put, the 

Government missed its chance to offer this evidence in support of its position on the 

motion to dismiss. It cannot now pretend that those exhibits have been admitted because 

it finds itself at a loss for actual proper evidence. 

At the very least, if this Court allows the Government to file this doubly improper 

brief, it should grant Dr. Warren leave to file a reply to the Government’s response to Dr. 
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Warren’s objection to the Report and Recommendation, both to account for the extra 

pages the Government took advantage of, which were not available to the defense, and to 

discuss the evidence never presented at the hearing or in the briefing on the motion and 

raised for the first time in the response to the objection. 

RESPECTFULLY SUBMITTED this 6th day of July, 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

CERTIFICATE OF SERVICE

I certify that on July 6th, 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