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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

(BPV)

REPLY BRIEF IN SUPPORT OF 

MOTION TO COMPEL 

DISCLOSURE AND FOR 

SANCTIONS

The Government has indicated, in its response to Defendant’s motion, that 

on December 4, it “provided all of the responsive materials to the Court in camera 

with a plan for disclosure,” and that the Court then “issued a letter approving of the 

government’s disclosure plan,” and the government provided disclosure in 

accordance with that interaction it had with the Court ex parte. Doc. 139, para. 8. 

The Government states that it has now “timely and fully complied with the Court’s 

Order.” Id. para. 9. But providing documents for in camera review with a “plan for 

disclosure,” whatever that means, is not what the Court ordered on November 7, 

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2018 (Doc. 135). Nor is providing a subset of the responsive materials selected by 

some undisclosed criterion. Rather, the Court ordered that “the Government 

disclose any emails or texts sent to the two agents surveilling The Barn from 8:00 

a.m. until these two agents went off duty on January 17, 2018.” Id. at 3 (emphasis 

added). By its own admission, that is not what the Government has done.

Accordingly, this Court should order the Government to provide complete 

disclosure to the defense per its order of November 7.

1. The Disclosure Provided to Date Strongly Suggests that Additional 

Responsive Materials Exist.

As the Government notes, it disclosed a set of materials to the defense on the 

afternoon of December 4. That disclosure consisted of 63 pages, comprising:

• One redacted email sent to Agent Marquez by Thomas C. Smith at 7:24 pm, 

with attachments, source not identified

• A second copy1 of that same email, similarly redacted, also with the same 

attachments, apparently produced from the email program of Agent Marquez

• One text message conversation among three people not identified but 

believed to be Agents Albert Ballesteros, Brendan Burns, and John Marquez, 

 1 It appears that the multiple copies may be a result of the fact that the Government 

requested materials both from the Border Patrol’s E-Discovery Unit and from the two agents directly. Doc. 139 at para. 2. Thus, some of the documents do not appear to have

been produced from any particular individual’s email program, and likely came from the 

E-discovery unit; others appear to have come from the agents directly. 

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beginning at 12:06 pm, believed to have been produced from the phone of 

Agent Marquez

• One text message conversation between two people not identified but 

believed to be Fish and Wildlife Service Officer Donald Ebban and Agent 

John Marquez, beginning at 12:29 pm, believed to have been produced from 

the phone of Agent Marquez

• One email forwarded from Agent John Marquez to Agent Brendan Burns at 

10:05 pm, which contains no text but has six attachments, apparently 

produced from the email program of Agent Burns; the attachments are not 

included

• A second copy of the same email forward, this time with the attachments 

reproduced, source not identified

• A third copy of the same email forwarded by Agent John Marquez to an 

individual named Nelson R. Bentley, at 12:32 pm, also with identical 

attachments reproduced, source not identified

• 12 pages of data concerning border crossings by the defendant that are not 

clearly associated with any particular communication 

Thus, if the Government has, as it claims, actually complied with this 

Court’s order, Agent Marquez had only two text conversations and received one 

email on that day between 8:00 am and the end of his shift, and Agent Burns only 

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participated in one text conversation, and received only a single email—from 

Agent Marquez. Neither agent received any texts or emails about anything other 

than their surveillance of The Barn, the background of Scott Warren, or, 

apparently, the questioning of the two migrants arrested, and neither received any 

texts or emails from anyone other than Thomas Smith, Albert Ballesteros, and each 

other. 

First, this is facially implausible. Nobody living in the modern world and

working in a government agency receives only a single email in a given workday. 

Yet the Government’s document production, which it states constitutes full 

compliance with the Court’s order, amounts to an avowal that neither agent 

received any other texts or emails, from anybody, about anything, between 8:00 am 

and sometime late in the evening on January 17, 2018. 

Moreover, existing disclosure clearly establishes that, in fact, additional 

communications occurred that the Government has not disclosed here. For 

instance, the Court is already aware of the group text among the agents planning 

the raid on The Barn that occurred on the afternoon of January 17, which were sent 

to both Agent Burns and Agent Marquez (exhibit 3 to defendant’s motion to 

suppress, filed April 19, 2018). The previously disclosed exchange ends in the 

midst of an ongoing conversation; the Court’s order of November 7 encompasses 

the entire exchange. The Government should have included the entire exchange in 

its disclosure, and the fact that it omitted this known communication raises serious 

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questions about what else it has omitted. If whatever selection criteria the 

Government used resulted in the exclusion of those messages, the criteria cannot 

possibly have captured all of the messages either agent received during the 

identified period.

Additionally, the Government describes receiving materials from the two 

agents, reviewing those materials, and then requesting and receiving additional 

materials. Doc. 139, para. 6. But as far as defense counsel can tell, the disclosed 

materials that came from Agent Marquez consist of two text-message 

conversations and one email; the materials from Agent Burns consist of a single 

email. How is it that this disclosure includes both the materials the agents initially 

provided and the follow-up materials that it took them three weeks to produce?

Indeed, the materials from Agent Burns consist of a single email; it is not possible 

for this to be both the material initially provided on November 9 and the 

“additional materials” that continued to arrive up through November 30. Moreover, 

none of the disclosed communications refer to one another, or to any other 

communications. The Government’s explanation that it initially received a smaller 

subset, and then requested more materials, all of which are part of this disclosure, 

simply does not fit with what has been disclosed. 

Finally, the inconsistent duplication of items in the disclosure suggests 

incompleteness. If the Government is disclosing both the documents provided by 

the E-Discovery Unit and those provided by the agents—a likely explanation for 

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the fact that the materials contain both a generic copy and Agent Marquez’s copy 

of the 7:24 p.m. email from Thomas Smith, then why has the Government not 

provided Agent Marquez’s copy of the email forwarded to Agent Burns? Why has 

it only provided Agent Marquez’s copy of the group text with Agents Marquez, 

Burns, and Ballesteros, and not Agent Burns’ copy? 

This Court’s order was simple: the Government was to produce all of the 

texts and emails sent to each agent for the defined period and disclose it to the 

defense. This, it clearly has not done.

2. Submitting Documents to the Court and Subsequently Disclosing Some 

Undisclosed Subset Does Not Comply with the Court’s Order.

This Court specifically ordered the Government to “disclose” the 

communications sent to these two agents in a specific timeframe. It did not order 

submission to the Court for in camera review, nor did it order the parties to 

generate a “plan for disclosure” whereby the Government would disclose 

something other than the complete set of responsive documents. Thus, by 

submitting the complete documents only to the Court, it has not done what this 

Court publicly ordered it to do and what the parties had an opportunity to brief and 

argue.

There is of course nothing inherently wrong with a court ordering and then 

conducting an in camera review of documents to determine which are genuinely 

responsive to a discovery obligation. Indeed, in this very case this Court ordered in 

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open court, and subsequently conducted, an in camera review of texts and emails 

sent by agents John Marquez, Brendan Burns, and David Sandoval to determine if 

any of them had to be disclosed following their testimony pursuant to the Jencks

Act (Doc. 100). This makes sense; the question of whether a communication 

“relates to the subject matter as to which the witness has testified,” 18 U.S.C. § 

3500(b), is subjective, and may require the Court’s independent assessment. Thus, 

rather than issuing an order that the Government turn over all of those agents’ 

communications, it ordered the Government to submit them in camera for a 

determination of whether they must be disclosed. The Court then issued a written 

order, served on all parties and publicly filed, with the results of its review.

But here, the Court did not order such a submission; it ordered disclosure. 

Nor is there any discernable reason to order an in camera inspection, rather than 

outright disclosure, of the materials here. The Order requires disclosure of all of 

the texts and emails these two agents received during a set time period. There is 

nothing open to interpretation and nothing for the Court to determine in camera. 

This Court’s most recent order on Defendant’s motion for discovery is the 

November 7 order, and it is still in effect. Any actions taken by the Government 

outside of the public judicial process that are not part of the official record in this 

case cannot alter the orders governing this case that this Court properly entered. 

Accordingly, the Government’s admitted action in disclosing something other than 

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the complete materials the Court ordered does not “timely and fully compl[y]” 

with the Court’s order.

3. If the Government Objects to the Terms of the Court’s Order, It Must 

Litigate that Objection Openly Rather Than Engaging in Ex Parte 

Communications.

The law provides procedures for a party to seek relief where a court’s order 

requires it to do something it does not wish to do. For instance, if the Government 

did not wish to disclose every text and email sent to these agents during the 

specified time, as the Court ordered, it could have filed a motion for 

reconsideration, asking the Court to alter its discovery order. Such a motion could 

have asked, among other things, for the court to conduct an in camera review of 

materials to identify those that need not be disclosed, according to some 

specifically defined criterion. The defense would then have had the opportunity to 

respond to the Government’s proposed restrictions, and the Court would have 

made a ruling, on the public docket for this case, altering (or not) the terms of the 

November 7 order. 

Alternatively, the Government could have sought a protective order under 

Fed. R. Crim. P. 16(d)(1) (although a blanket protective order preventing 

dissemination of all disclosure is already in effect in this case (Doc. 69)), shielding 

some particular category of information from disclosure, if it deemed that 

necessary. Again, if it had filed such a motion, the defense would have received 

notice of the proposed standards to be applied, and an opportunity to be heard, and 

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the Court would then make the limitations on required disclosure part of the public 

record.

2

Here, according to the Government’s account of events, which is the only 

source of information about these communications available to the defense, after 

being ordered to produce the complete set of emails or texts sent to the two agents 

during the specified time period, the Government prepared a “plan for disclosure.” 

This document has not been provided to the defense, nor filed in the public record, 

and the Government’s pleading (Doc. 139) provides no information about its 

content. Accordingly, the defense cannot object to its terms specifically. However, 

based on the disclosure that was received, it appears that this “plan” may have 

limited which of the texts and emails subject to the terms of the November 7 order

the Government would disclose, and which it would withhold. That is not a 

proposal that the Government may make privately to the Court. See, e.g., United

 2 To be sure, Rule 16(d)(1) authorizes a showing of good cause required to justify a 

limitation on discovery to be made ex parte. But this does not mean that the very fact and 

nature of the limitations can be established in secret. Indeed, the Advisory Committee 

Notes to that provision make very clear that the request for a protective or modifying 

order is separate from the potentially ex parte good cause showing: “’[I]f a party requests 

a protective or modifying order and asks to make its showing ex parte, the court has two 

separate determinations to make. First, it must determine whether an ex parte proceeding 

is appropriate, bearing in mind that ex parte proceedings are disfavored and not to be 

encouraged. [An ex parte proceeding would seem to be appropriate if any adversary 

proceeding would defeat the purpose of the protective or modifying order. For example, 

the identity of a witness would be disclosed and the purpose of the protective order is to 

conceal that witness’ identify.] Second, it must determine whether a protective or 

modifying order shall issue.” 

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States v. Kenney, 911 F.2d 315, 321 (9th Cir. 1990) (“[I]n our system, adversary 

procedures are the general rule and ex parte examinations are disfavored.”); United 

States v. Napue, 834 F.2d 1311, 1316, 1318 (7th Cir. 1987) (“noting “that ex parte 

communications between the trial court and the prosecution in a criminal case are 

to be greatly discouraged and should be permitted only in very limited 

circumstances” and “[t]hey should be avoided whenever possible and, even when 

they are appropriate, their scope should be kept to a minimum.”); cf. United States 

v. Klimavicius-Viloria, 144 F.3d 1249, 1261 (9th Cir. 1998) (recognizing that “[i]n 

a case involving classified documents,” a court may use ex parte proceedings “to 

decide the relevancy of the information,” where government “explained the 

specific damage to national defense if information were disclosed.”); Napue, 834 

F.2d at 1318 (permitting ex parte communication where defendant “was given 

notice prior to its occurrence that the ex parte communication was to be made”). 

If, indeed, this “plan for disclosure” included some kind of content-based 

limitation on which messages the Government would disclose, Defendant is 

entitled to notice of what those proposed limitations are, and to be heard on 

whether they are appropriate. The defense is strongly opposed to any kind of 

relevance limitation. In particular, the Court may not be ideally situated to 

determine if a given conversation has any relevance to No More Deaths and the 

Defendant. The community of humanitarian aid workers involved in this retaliation 

claim is quite large; Defendant may well recognize names as pertaining to No 

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More Deaths that the Court has no reason to know. Similarly, their work comes 

with its own terminology which may be unfamiliar to the Court. Thus, the

Defendant needs a complete set of messages these agents received to determine 

whether he and/or No More Deaths were being discussed in any way. See Napue, 

834 F.2d at 1319 (“Even where the government acts in good faith and diligently 

attempts to present information fairly during an ex parte proceeding, the 

government’s information is likely to be less reliable and the court’s ultimate 

findings less accurate than if the defendant had been permitted to participate.”). 

Even if the “plan for disclosure” refers only to the redactions applied to the 

communications disclosed—a scenario that seems highly unlikely given what was 

disclosed—that, too, should be discussed in a proceeding at which both parties are 

present. While some redactions are obvious and likely appropriate—for instance, 

the official email addresses of agents—others are not clear. For instance, both 

copies of the 7:24 Thomas Smith email contain a line of text that has been 

redacted. And while there is likely no problem with the redaction of certain case 

and file numbers, social security numbers, and birth dates, why has the 

Government redacted the “Incident Type” and “Incident Disposition” for a report 

on the Defendant? And what has been redacted in the entire page of the attachment 

to the Thomas Smith email covered by a black box? They have obviously not been 

careful only to redact information for which there is a compelling need for secrecy; 

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a comparison of the two copies of the attachment to the Thomas Smith email show 

that one of them redacts the “incident date” and the other does not. 

In sum, rather than make the full disclosure ordered by this Court, the 

Government appears to have decided unilaterally what it thinks it should have to 

disclose, and provided that extremely limited set of materials in lieu of the full 

disclosure ordered by this Court. It further appears that the Government created a 

document it submitted to this Court, and the Court responded in writing, without 

copying the defense, and without first properly raising the issue of whether there 

was a compelling reason justifying the highly disfavored measure of proceeding on 

an ex parte basis. Accordingly, the Defendant requests that the Government 

comply fully with the Court’s order of November 7, and additionally that the ex 

parte communications between the prosecutors and the Court be disclosed and

made part of the official record of this case.

RESPECTFULLY SUBMITTED this 6th day of December, 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 December 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

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