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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)

RESPONSE TO STATE’S NOTICE 

OF EXPERT WITNESSES AND 

MOTION IN LIMINE TO 

EXCLUDE ALIEN SMUGGLING 

EXPERT

On September 30, 2019, the government filed a “notice of expert witnesses” 

(Doc. 331). Although the Court had directed the parties to file motions by September 

30, obviously Defendant could not file any motion regarding an expert who had not 

yet been disclosed. Accordingly, defendant now moves this Court to exclude the 

government’s proposed “alien smuggling expert” pursuant to Federal Rules of 

Evidence 702, 401 and 403 because an expert on “alien smuggling” will not “help 

the trier of fact to understand the evidence or to determine a fact in issue” in this 

harboring case.

MEMORANDUM OF POINTS AND AUTHORITIES

The government proposes to call an agent to “testify regarding the methods of 

alien smuggling in the area surrounding Ajo, Arizona,” and specifically “how aliens 

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are guided into the United States and the routes aliens typically use in the area 

surrounding Ajo, Arizona,” and “common obstacles aliens encounter when they 

illegally enter the United States to include law enforcement patrols, Border Patrol 

checkpoints, and sightings by civilians.” Notice at 3-4. None of this information 

plausibly bears on any fact in issue in this harboring case, and would severely distract 

and mislead the jury and badly prejudice Dr. Warren. 

The only charge against Dr. Warren is harboring under 8 U.S.C. § 

1324(a)(1)(A)(iii). It requires only that the defendant conceal, harbor, or shield from 

detection a person he knew or should have known as not legally in the country, with 

the intent to violate the law. It does not require anything about how the “harboree” 

entered the United States or arrived at the relevant location; those activities are 

addressed by different laws. If the government wanted to present evidence about 

how these migrants crossed into the United States, it could have charged them with 

a crime, instead of electing to forego prosecution in exchange for testimony, or it 

could have identified who it believes was assisting them with the crossing, and 

charged that person with a crime. But it cannot bring this irrelevant topic into its 

prosecution of Dr. Warren solely for harboring.

None of the government’s proposed topics have anything to do with whether 

the two migrants were in fact unlawfully in the country, whether Dr. Warren knew 

that, or whether he provided them with shelter. Regarding intent, whatever the 

government agent’s view on common or typical obstacles migrants face, unless the 

government can show that that was information known to Dr. Warren at the time, it 

cannot bear on his intentions. See, e.g., United States v. Dellinger, 2013 U.S. Dist. 

LEXIS 159813, at *5 (D. Ariz. 2013) (evidence about victim offered to prove 

defendant’s intent “will be relevant only if it was known to Defendants at the time 

of the events at issue in this case. . .”); see generally Defendant’s Motion to Preclude 

Irrelevant Evidence of Conspiracy (Doc. 315). 

Indeed, because this type of expert evidence is by definition the witness’s

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opinion, it could never bear on Dr. Warren’s intent unless it could be shown that he 

not only knew of the opinion, but understood that opinion to be true such that he 

might rely on it in choosing his actions—and this is clearly an area where different 

parties have vastly differing perceptions. Even if the government could somehow 

show that Dr. Warren would have been aware of the agent’s opinion at the time of 

the events, that would establish at most that he knew that was the Border Patrol’s 

position. Absent evidence that he believed and would have relied on that 

information, it proves nothing about what Dr. Warren intended with his actions. 

In addition, the introduction of such testimony—divorced as it is from Dr. 

Warren’s knowledge and beliefs—would open up a dispute about whether the 

agent’s description of the situation in that region was accurate, essentially tasking 

the jury with evaluating the overarching situation of migrants passing through the 

Ajo region as a general matter. That is far beyond the scope of what can reasonably 

be considered in this prosecution of Dr. Warren for harboring. 

The government cites United States v. Mejia-Luna, 562 F.3d 1215 (9th Cir. 

2009) to support admission of this expert testimony. But that case is plainly 

inapplicable. The charge in Mejia-Luna was transporting aliens for profit; after 

attempting to evade border patrol agents on the road, Mejia-Luna crashed the SUV 

he was driving, which contained five undocumented people, and after a chase, agents 

apprehended him. Two of the passengers testified at trial about “their arrangement 

to be smuggled into the United States and the details of payment.” Id. at 1218. MejiaLuna argued “there was no evidence connecting him to a smuggling operation,” but 

the Court explained that that was not the case:

He picked up the aliens in his white SUV at the drop point where the 

guides had told them to wait for a white vehicle. He arrived shortly after 

the drop-off in a vehicle that matched the guides’ description. Without

saying a word to any of them, Mejia-Luna allowed the aliens to enter

his vehicle and conceal themselves, and he then drove them toward

Phoenix—the aliens’ destination and the location where payment was

to be made at the end of the smuggling route.

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Id. at 1219. The opinion does not specify how these facts were established, but 

presumably most if not all of them came in through the testimony of the passengers. 

The court considered this accumulation of facts to be “sufficient evidence to 

overcome a relevancy objection in the alien smuggling context.”

In so ruling, the court drew a contrast to United States v. Vallejo, 237 F.3d 

1008 (9th Cir. 2001) (as amended by 246 F.3d 1150) (9th Cir. 2001), in which it 

considered “whether expert testimony detailing the structure of drug trafficking 

organizations may be routinely introduced in drug importation cases, regardless of 

whether the defendant is charged with a drug trafficking conspiracy or otherwise 

charged with membership in such an organization,” and ruled that it may not. Id. at 

1012. The Court explained that because “Vallejo was not charged with conspiracy 

to import drugs; nor did the Government introduce any evidence establishing a 

connection between Vallejo and a drug trafficking organization,” the evidence was 

irrelevant. Id. at 1015. It went on to say that even if the government had introduced 

the evidence to prove knowledge, “[t]o admit this testimony on the issue of 

knowledge, the only issue in the case, was unfairly prejudicial, and an abuse of 

discretion under Rule 403.” Id. at 1017. This was because the “expert testimony 

connected seemingly innocent conduct to a vast drug empire, and through this 

connection, it unfairly attributed knowledge—the sole issue in the case—to Vallejo, 

a single individual, who was not alleged to be associated with a drug trafficking 

organization.” Id. at 1017. 

This case is Vallejo, not Mejia-Luna. The government dismissed the 

conspiracy charge, and Dr. Warren is not charged with being part of any sort of 

unlawful organization.

1 There is no evidence that the migrants in this case were 

“guided into the United States,” and certainly not by Dr. Warren; indeed, the 

1 To the extent that the government believes that No More Deaths is somehow an 

unlawful organization, it has not produced any evidence to support that supposition. 

The suspicions and accusations of Border Patrol agents and prosecutors do not render this volunteer humanitarian organization to be anything on par with an organized for-profit smuggling ring or a “vast drug empire.” 

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government’s disclosure reveals that it made repeated attempts to find evidence of a 

connection between Dr. Warren and these migrants, and could not find any. Both of 

the migrants, whom the government called as witnesses, testified that they crossed

into the United States on their own, in a group of five. The government has conceded 

that no money changed hands. See RT 6/7/19 at 30 (prosecutor arguing in closing, 

“He’s not getting money out of it. That much is clear.”). Moreover, Dr. Warren is 

not charged with, for instance, aiding and abetting an illegal entry, nor with 

transporting illegal aliens, which might reasonably be categorized as smuggling, but 

merely with harboring two people within the United States. To allow expert 

testimony about smuggling operations in this context would be precisely what the 

Vallejo Court condemned.

In sum, the government has not accused Dr. Warren of smuggling, or of being 

part of a smuggling organization; it has admitted that there is no evidence of 

payment, and it dismissed the charge that involved any kind of coordinating or 

organizing. It cannot now inundate the jury with information about a world of 

criminal activity to which it cannot tie Dr. Warren.

RESPECTFULLY SUBMITTED this 11th day of October, 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

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CERTIFICATE OF SERVICE

I certify that on October 11, 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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