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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)

MOTION TO DISMISS INDICTMENT

FOR VIOILATION OF 

INTERNATIONAL LAW

Defendant Scott Daniel Warren, through pro bono counsel, moves this Court to 

dismiss the felony indictment under Federal Rule of Criminal Procedure 12(b)(3)(v) for 

failure to state an offense, as well as under the Due Process Clause of the Fifth 

Amendment to the United States Constitution, and in support thereof states:

I. INTRODUCTION

On February 14, 2018, the Defendant, Scott Daniel Warren, was indicted on one 

count of Conspiracy to Transport and Harbor Illegal Aliens, in violation of 8 U.S.C. 

§1324(a)(l)(A)(v)(I), 8 U.S.C. § 1324(a)(l)(A)(ii) and 8 U.S.C. § 1324(a)(l)(A)(iii), as well 

as two counts of Harboring Illegal Aliens, in violation of 8 U.S.C. § 1324(a)(l)(A)(iii). 

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All of the charges stem from Defendant’s activities as a humanitarian aid worker 

volunteering with No More Deaths (NMD). NMD is a coalition of religious organizations, 

human rights advocates and individuals who provide food, water and medical assistance to 

migrants crossing the Arizona desert from Mexico. The Ninth Circuit has recognized that 

No More Deaths is “an organization that provides humanitarian aid to migrants.” United 

States v. Millis, 621 F.3d 914 (9th Cir. 2010).

The Complaint (Doc. 1), filed January 18, 2018, alleges that Dr. Warren “took care 

of” two migrants for three days “by giving them food, water, beds, and clean clothes.” 

Since then, the Government has produced no evidence that Dr. Warren conspired with 

anyone to transport and harbor the two migrants, let alone that the alleged offense was 

committed for financial gain or to further a criminal enterprise. The Government has 

likewise produced no evidence that Dr. Warren was attempting to conceal the two 

undocumented migrants from apprehension by U.S. authorities, or was in any way assisting 

them in avoiding apprehension. Instead, the weight of evidence indicates that the 

Government is prosecuting Defendant solely for undertaking humanitarian aid efforts for 

migrants traveling primarily on foot through the often deadly Sonoran desert.

As set out below, this prosecution is inconsistent with the United States’s binding 

treaty obligations, which dictate that aid to migrants be criminal only when committed for 

financial or other material benefit and specifically require cooperation with nongovernmental organizations to ensure their humane treatment. This internationally 

unlawful conduct further warrants dismissal because it “shocks the conscience” and 

violates the “decencies of civilized conduct.” County of Sacramento v. Lewis, 523 U.S. 

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833, 846 (1998). At a minimum, these prosecutorial transgressions warrant dismissal of 

the indictment under the court’s supervisory powers. 

II. STATEMENT OF FACTS

Much of the lifesaving work of No More Deaths volunteers must of necessity be 

carried out in the Cabeza Prieta National Wildlife Refuge, a vast and remote stretch of land 

near Ajo, Arizona that shares 56 miles with the U.S.–Mexico border. As the government’s 

own description points out, the terrain “is big and wild and can be incredibly hostile to 

those that need water to survive,” while its “56-mile border with Sonora, Mexico, might 

well be the loneliest international boundary on the continent.”1 Many desperate individuals 

attempt to cross the U.S.–Mexico border through this lethally dangerous corridor, which 

can take anywhere from four days to several weeks to traverse. The area has virtually no 

natural water sources, and summertime temperatures can top 120 degrees Fahrenheit. There 

are no towns in this remote desert wilderness and only one publicly accessible road, known 

as the Devil’s Highway. Over the past several years, the bodies of scores of people who 

died after crossing the border have been recovered in the refuge. In 2017 alone, some thirtytwo sets of human remains were found just in Cabeza Prieta, according to the Pima County 

Office of the Medical Examiner.2

 1 U.S. Fish and Wildlife Service, Cabeza Prieta: Wildlife and Habitat, at 

https://www.fws.gov/refuge/Cabeza_Prieta/wildlife_and_habitat/index.html. 2 Rory Caroll, Eight activists helping migrants cross brutal desert charged by U.S. 

government, THE GUARDIAN, Jan. 24, 2018, at https://www.theguardian.com/usnews/2018/jan/24/us-immigration-activists-arizona-no-more-deaths-charged.

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Dr. Warren works with No More Deaths to prevent migrants from dying during 

their journey. Often, this work takes the form of venturing into remote desert areas to 

place emergency water and food in areas migrants frequently traverse, as well as 

searching for migrants, both living and dead, in the desert. On this occasion, Dr. Warren 

arrived at “The Barn,” a home base used by No More Deaths, to find two migrants who 

had arrived in Ajo after walking many miles through the desert. The migrants have 

testified that they were cold and exhausted, had been forced to discard what little food 

and water they were carrying, were extremely hungry, and were in pain,3 and asked for 

food and water, and a place to rest. According to the Complaint the Government filed, 

Dr. Warren gave them that aid, and those actions are the basis for this prosecution.

II. THE COURT MUST DISMISS THE INDICTMENT FOR FAILURE TO 

STATE AN OFFENSE BECAUSE THE UNITED STATES’S TREATY 

OBLIGATIONS RENDER DR. WARREN’S CONDUCT NON-CRIMINAL.

A. The Migrant Smuggling Protocol provides that humanitarian aid to 

migrants is not criminal.

In 2005, the United States ratified the Protocol Against Smuggling of Migrants by 

Land, Sea and Air (the “Migrant Smuggling Protocol”), Nov. 15, 2000, T.I.A.S. 13127, 

2241 U.N.T.S. 507.4 See Exhibit 1, Text of the Migrant Smuggling Protocol. Notably, the 

U.S. Senate’s consent to ratification of the Migrant Protocol attached no reservations that 

 3 Even seemingly minor injuries such as blisters can be life-threatening to migrants crossing 

the desert, as they may cause individuals to be left behind or be unable to move quickly 

enough to reach safety before succumbing to exposure or dehydration.

4 At present, 146 nations are parties to the Migrant Smuggling Protocol. See United 

Nations Treaty Collection, at: 

https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XVIII-12-

b&chapter=18&lang=en.

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would limit the scope or application of these provisions under domestic law.5 Under its 

provisions, the Government is committed “to the protection of the rights” of migrants who 

have been smuggled.6 All such migrants must be provided with “humane treatment” and 

the “full protection of their rights.”7 By ratifying the Migrant Smuggling Protocol, the 

United States committed to taking “all appropriate measures” to “preserve and protect the 

rights” of smuggled migrants, including “in particular the right to life” and “the right not 

to be subjected to. . .cruel, inhuman or degrading treatment.”8 

As relevant here, the treaty accomplishes these goals through two specific 

requirements: criminalization requirements and cooperation requirements. In Article 6, the 

treaty dictates the scope of migrant-related criminal offenses: parties commit to forbidding

the smuggling of migrants “when committed intentionally and in order to obtain, directly 

or indirectly, a financial or other material benefit.”9 This motivation-based limitation 

applies to several sub-categories of crime, including crimes related to fraudulent 

documents and, crucially, “Enabling a person who is not a national or a permanent resident 

to remain in the State concerned without complying with the necessary requirements for 

legally remaining in the State” by any illegal means.10

 5 See Resolution of Ratification: Senate Consideration of Treaty Document 108-16 (Oct. 

7, 2005), at: https://www.congress.gov/treaty-document/108th-congress/16/allinfo#resolution. 6 Migrant Smuggling Protocol, Article 4.

7 Id. Preamble.

8 Id. Article 16.

9 Id. Article 6(1)(a).

10 Id. Article 6(1)(c). Notably, this provision by its terms applies to all people not authorized 

to be in the country, regardless of the method by which they entered. 

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The requirement that these actions be criminalized only when undertaken for 

financial or other material benefit is a clear reflection of the treaty’s overall purpose of 

protecting the human rights of migrants, including the right to life, and obviously exempts 

actions taken for humanitarian reasons. To read the criminalization requirements otherwise

would be inconsistent with the stated purpose of the treaty. Indeed, the Travaux 

Préparatoires for the treaty—the international law equivalent of legislative history—

confirms this in an interpretive note, explaining that the material benefit requirement was 

included specifically “to exclude the activities of those who provided support to migrants 

for humanitarian reasons,” and the protocol does not provide for criminalization of actions 

by “support groups such as religious or non-governmental organizations.”11 The Supreme 

Court has explicitly recognized the interpretive value of such pronouncements. See 

Zicherman v. Korean Airlines, 516 U.S. 217, 226 (1996) (“Because a treaty ratified by the 

United States is not only the law of this land, see U.S. Const., Art. II, § 2, but also an 

agreement among sovereign powers, we have traditionally considered as aids to its 

interpretation the negotiating and drafting history (travaux préparatoires) and the 

postratification understanding of the contracting parties.”).

Lest there be any doubt that the treaty does not permit parties to criminalize

humanitarian aid to migrants, it specifically requires the opposite: that the authorities “shall 

cooperate with each other and with competent international organizations, non-

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

Elaboration of the United Nations Convention against Transnational Organized 

Crime, interpretative notes on art. 3, p. 469), available at 

https://www.unodc.org/pdf/ctoccop_2006/04-60074_ebook-e.pdf.

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governmental organizations, other relevant organizations and other elements of civil 

society” in protecting and preserving the human rights of smuggled migrants.12

Criminalizing and prosecuting such groups’ work is obviously inconsistent with this 

explicit cooperation obligation.

Further confirming this fact, judicial interpretation of treaty requirements by the 

other signatories is given “considerable weight.’” Air France v. Saks, 470 U. S. 392, 404 

(1985). Addressing the application of the Migrant Smuggling Protocol, the Supreme

Court of Canada recently held that a federal statute making it an offence to organize, 

induce, aid or abet the entry of undocumented migrants “is unconstitutional insofar as it 

permits prosecution for humanitarian aid to undocumented entrants.”13 The Court found 

that “it would depart from the balance struck in the Smuggling Protocol to allow 

prosecution for humanitarian aid.” 3 S.C.R. 754 at 775. An exemption for humanitarian 

assistance was therefore required to ensure that the statute governing illegal entry 

“reflects the values and principles of customary and conventional international law.” Id.

at 774. The U.S. Supreme Court has agreed that if there is any ambiguity, a treaty should 

be interpreted as “enlarging [] rights which may be claimed under it.” Bacardi Corp. of 

America v. Domenech, 311 U. S. 150, 163 (1940) (citations omitted); see also Factor v. 

Laubenheimer, 290 U.S. 276, 293 (1933) (“In choosing between conflicting 

interpretations of a treaty obligation, a narrow and restricted construction is to be avoided 

 12 Migrant Smuggling Protocol Article 14(2).

13 R. v. Appulonappa, [2015] 3 S.C.R. 754, available at https://scc-csc.lexum.com/scccsc/scc-csc/en/item/15648/index.do. 

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as not consonant with the principles deemed controlling in the interpretation of 

international agreements.”). Thus, multiple rules of construction all indicate that the 

treaty exempts humanitarian aid to migrants from criminalization. 

The government’s decision to apply its laws criminalizing assistance to migrants to 

Dr. Warren, who was providing humanitarian aid in conjunction with a non-governmental 

organization, conflicts with its responsibilities under Articles 3(a) and 6(1) of the Migrant 

Smuggling Protocol, which limit criminalization of migrant smuggling to those acts 

“committed intentionally and in order to obtain, directly or indirectly, a financial or other 

material benefit,” as well as Article 14(2), which requires cooperation with nongovernmental organizations. The government has not even alleged, let alone offered any 

evidence of, a financial or material benefit to Dr. Warren. His sole purpose in rendering 

assistance to migrants in distress was to alleviate their suffering. Moreover, the 

Government has never disputed that Dr. Warren was working with the aid organization No 

More Deaths—with whom they are treaty-bound to cooperate. Accordingly, this 

prosecution is inconsistent with the United States’ obligations under the Migrant 

Smuggling Protocol.

B. The Migrant Smuggling Protocol supersedes any earlier statutory 

provisions that conflict with it.

It is long-settled law that a treaty such as the Migrant Smuggling Protocol stands on 

par with a federal statute. “By the Constitution a treaty is placed on the same footing, and 

made of like obligation, with an act of legislation.” Whitney v. Robertson, 124 U.S. 190, 

194 (1888). The Migrant Smuggling Protocol may provide the rule of decision in a case 

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where its provisions are implicated, because a treaty “is a law of the land as an act of 

congress is, whenever its provisions prescribe a rule by which the rights of the private 

citizen or subject may be determined.” Edye v. Robertson, 112 U.S. 580, 598 (1884). When 

such rights “are of a nature to be enforced in a court of justice, that court resorts to the 

treaty for a rule of decision for the case before it as it would to a statute.” Id. at 599. 

If a treaty and a federal statute conflict, “the one last in date will control the other.” 

Id. See also Breard v. Greene, 523 U.S. 371, 376 (1998) (reaffirming applicability of lastin-time rule to treaties and statutes). The statutory provisions under which the Defendant 

was charged were enacted in 1952. United States v. Acosta de Evans, 531 F. 2d 428, 430 

(9th Cir. 1976) (“In 1952 Congress amended the section, adding penalties for concealing, 

harboring, or shielding from detection.”). More than half a century later, the United States 

deposited its instrument of ratification for the Migrant Smuggling Protocol on November 

3, 2005,14 whereupon it became part of the “supreme Law of the Land” under Article VI 

of the U.S. Constitution. Thus, the treaty is the more recent law, and to the extent of any 

conflict between U.S.C. §1324(a)(l) and the Migrant Smuggling Protocol, the treaty must 

prevail.

In sum, a 1952 statute criminalized harboring migrants, without regard for any 

financial or material motivation, and without exemption for humanitarian aid. A 2005 

treaty limits criminalization of aid to migrants to those who have financial or material 

 14 See the ratification table in the United Nations Treaty Collection, at: 

https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XVIII-12-

b&chapter=18&lang=en.

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motivations, and mandates an exemption for humanitarian aid. The treaty terms thus 

prevail, and render non-criminal the provision of humanitarian aid to migrants, regardless 

of what the inconsistent earlier statute may have provided. Accordingly, the charges against 

Dr. Warren—which do not allege financial or material gain, and arise from humanitarian 

aid rendered in conjunction with a humanitarian organization—do not state an offense, and 

the Court must dismiss the indictment pursuant to Federal Rule of Criminal Procedure 

12(b)(3)(B)(v). 

This necessity is not novel; Courts have repeatedly recognized that treaty provisions 

constrain the Government’s ability to prosecute and punish. See, e.g., United States v. 

Rauscher, 119 U.S. 407 (1886) (dismissing criminal indictment that breached extradition 

treaty); Caplan v. Vokes, 649 F. 2d 1336, 1342 (9th Cir. 1981) (denying extradition where 

prosecution failed to meet limitations provision of treaty); Cook v. United States, 288 U.S. 

102, 120 (1933) (voiding criminal fines that violated treaty requirements). This Court must

likewise give effect to the requirements of the Migrant Smuggling Protocol and dismiss 

this indictment.

III. THE COURT MUST DISMISS THE INDICTMENT UNDER THE DUE 

PROCESS CLAUSE.

A. Outrageous government conduct that violates substantive due process

warrants dismissal.

The Ninth Circuit has repeatedly affirmed that “a defendant may raise a due processbased outrageous government conduct defense to a criminal indictment.” United States v. 

Bogart, 783 F.2d 1428, 1433 (9th Cir. 1986), vacated on other grounds, United States v. 

Wingender, 790 F.2d 802 (9th Cir. 1986) (citing cases). See also United States v. Simpson, 

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813 F.2d 1462, 1465 (9th Cir. 1987), cert. denied, 484 U.S. 898 (1987) (“Our circuit has 

continued to entertain complaints by defendants that their outrageous treatment by law 

enforcement officers warrants dismissal of their indictment.”). Due process requirements 

warrant dismissal of an indictment where “the government’s conduct is so grossly shocking 

and so outrageous as to violate the universal sense of justice.” United States v. Ramirez,

710 F.2d 535, 539 (9th Cir.1983). Outrageous conduct is not confined to cases of police 

brutality or the government directing and engineering a criminal enterprise. Rather, “[d]ue 

process of law, as a historic and generative principle, precludes defining, and thereby

confining, these standards of conduct more precisely than to say that convictions cannot be

brought about by methods that offend ‘a sense of justice.’” Rochin v. California, 342 U.S. 

165, 173 (1952); see also Bogart, 783 F.2d at 1435 (noting that “the precise parameters of 

such concepts as ‘fundamental fairness’ and ‘universal sense of justice’ are probably 

indefinable.”).

Courts in this Circuit have recognized official misconduct rising to a substantive 

due process violation in a wide range of circumstances. See, e.g., United States v. 

Marshank, 777 F.Supp. 1507, 1523-24 (N.D. Cal. 1991) (government’s collaboration with 

defendant’s attorney to build a case against him was “so outrageous that it shocked the 

universal sense of justice”); Cooper v. Dupnik, 963 F.2d 1220,1237 (9th Cir. 1992) (en 

banc) (egregious and systematic violation of Miranda safeguards “unquestionably shocks 

the conscience, and thus violates substantive due process.”). Dismissal for outrageous 

conduct may also be based on cumulative factors that, taken individually, would not 

necessarily warrant a remedy; instead, “it is the combination [of factors] which is 

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important.” Green v. United States, 454 F.2d 783, 787 (9th Cir. 1971); cf. United States v. 

Tobias, 662 F.2d 381, 387 (5th Cir. 1981) (whether outrageous government conduct exists

“turns upon the totality of the circumstances with no single factor controlling.”).

B. The Government’s conduct in bringing this prosecution in disregard of its 

international obligations merits dismissal. 

In bringing this case, the Government has flagrantly disregarded its obligations in 

truly outrageous ways. Common decency requires that a government do what it can to 

prevent unnecessary death and suffering inside its borders. To actively thwart efforts of its 

citizens to assist those in need through the provision of the most basic necessities—food, 

water, and shelter—is cruel and shameful behavior. And to threaten to imprison a citizen 

for providing food, water, and shelter to strangers in need—generous, humane actions the 

Government should encourage and applaud—is unconscionable. It violates the universal 

sense of justice. 

Beyond basic human decency, it is truly outrageous for the Government to display 

such open disregard for its international obligations. As explained above, the Migrant 

Smuggling Protocol obligates the United States Government to protect the rights of 

migrants who have been smuggled, and to ensure their humane treatment. It further requires 

the Government to actively cooperate with organizations like No More Deaths to protect 

migrants’ basic human rights. Rather than working to ensure the survival of migrants and 

encouraging and cooperating with groups doing the same, the Government is actively 

interfering with humanitarian efforts to safeguard the physical wellbeing of migrants. In 

maintaining this prosecution, the Government is doing precisely the opposite of what it has 

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promised the world it would do. Mere indifference to the peril faced by migrants crossing 

the Sonoran desert would itself be alarming; active interference with charitable efforts to 

preserve life and health is truly shocking. And criminal punishment for doing something 

with which the Government is legally bound to cooperate is beyond the pale.

This is especially so in light of the Government’s more general international 

obligations. In addition to the Migrant Smuggling Protocol, the United States is a party to 

the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171; 

T.I.A.S.[hereinafter the ICCPR]. Article 6 of the ICCPR provides that “[e]very human 

being has the inherent right to life,” that this right “shall be protected by law” and that no 

one “shall be arbitrarily deprived of his life.” This right applies to all people—migrants 

included. So essential is the protection of this right that, under Article 4, no derogation is 

permitted from it even in time of public emergency which threatens the life of the nation. 

Furthermore, Article 7 of the ICCPR forbids all forms of cruel, inhuman or degrading 

treatment. The foundational obligation to protect the right to life and freedom from cruel, 

inhuman or degrading treatment implicitly includes an obligation to facilitate protection of 

these rights by others, especially where the State is unable to fully safeguard the right itself. 

Given that hundreds of migrants continue to die in the desert each year,15 the Government 

obviously needs help in protecting the right to life. It is fundamentally inconsistent with 

the Government’s obligations under Articles 6 and 7 of the ICCPR to penalize activities 

 

15 See Pima County Office of the Medical Examiner, Annual Report 2017, at 30-32, 

available at i

https://webcms.pima.gov/UserFiles/Servers/Server_6/File/Government/Medical%20Exa

miner/Resources/Annual-Report-2017.pdf.

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aimed at safeguarding these basic human rights, and downright unconscionable to institute 

federal felony charges carrying up to 20 years’ prison time for working to ensure these

basic human rights the United States has agreed to honor.

Additionally, Article 26 of the ICCPR entitles every person within the United States 

to protection of this fundamental right “without any discrimination.” In applying criminal 

anti-harboring laws to humanitarian aid work, the Government is discriminating against 

certain people based on their nationality. The way the Government is now attempting to 

apply its laws, it is a crime to provide basic necessities to some people but not to others. 

Dr. Warren could not be penalized for providing food, water, and shelter to an American 

citizen lost in the desert, but according to the Government, he can be imprisoned for doing 

the same for a Guatemalan and a Salvadoran. Article 26 requires that the Government 

recognize and protect basic human rights in all people equally. Criminalizing humanitarian 

aid to some people but not others means people will have differing access to basic 

necessities depending on their nationality, in violation of this bedrock principle. Thus, the 

illegality of the Government’s decision to prosecute humanitarian aid to migrants is 

exacerbated by its discriminatory aspect.

This is not a novel or radical interpretation of these obligations. United Nations 

guidance on the protection of the human rights of migrants, which is based on existing 

legal norms including Article 6 of the ICCPR and the Migrant Smuggling Protocol, 

specifically calls on States to “[e]nsure that the organizations and individuals who rescue 

or provide assistance to migrants are not criminalized or otherwise punished for doing 

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so.”16 It further explains that States should “[p]rovide, in law and in practice, a safe, 

accessible and enabling environment for individuals and organizations that work to 

promote or protect human rights of migrants. Do not criminalize or otherwise penalize the 

provision of support and assistance to migrants.”17 Instead, States are to “[p]ublicly 

recognize the important role of human rights defenders and the legitimacy of their work.”18

The actions of the Government here are fundamentally inconsistent with this guidance.

On a basic level, international law safeguards the foundations of universal human 

morality. See Mary Ellen O'Connell, The Power and Purpose of International Law: 

Insights from the Theory and Practice of Enforcement 14 (2008) (“Through international 

law, diverse cultures can reach consensus about the moral norms that we will commonly 

live by.”). For the Government to institute and maintain a felony prosecution in disregard 

of its obligations to abide by these norms is shocking to the universal sense of justice, 

violates substantive due process, and requires dismissal.

C. The Court is authorized to dismiss Defendant’s indictment under its 

supervisory powers.

The Ninth Circuit has held that even where government misconduct does not rise to 

the level of a due process violation, “the court may nonetheless dismiss under its 

supervisory powers.” United States v. Chapman, 524 F.3d 1073, 1084 (9th Cir. 2008) 

(citation omitted). This supervisory power has been applied by the federal courtsto dismiss 

 16 Human Rights Council, Principles and practical guidance on the protection of the 

human rights of migrants in vulnerable situations, U.N. Doc. A/HRC/37/34/Add.1, (Feb. 

7 2018), Principle 4(7). 

17 Id., Principle 18(1).

18 Id., Principle 18(6)

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indictments for varying forms of prosecutorial misconduct. See, e.g., Chapman, 524 F.3d 

1073 at 1085 (dismissing for prosecutor’s discovery abuses and affirmative 

misrepresentations to the court); United States v. Samango, 607 F.2d 877, 884 (9th Cir. 

1979) (dismissing where cumulative effect of prosecutorial “errors and indiscretions” 

resulted in biased grand jury); United States v. Stein, 495 F. Supp. 2d 390 (S.D.N.Y. 2007) 

(dismissal because Government threatened to indict defendants’ employer if it paid their 

legal fees). 

These powers “may be exercised for three reasons: to remedy a constitutional or 

statutory violation; to protect judicial integrity by ensuring that a conviction rests on 

appropriate considerations validly before a jury; or to deter future illegal conduct.” United 

States v. Barrera-Moreno, 951 F. 2d 1089, 1091 (9th Cir. 1991). 

Each of the reasons identified by the Ninth Circuit applies to justify dismissal here.

First, the government violated federal constitutional and statutory requirements by 

pursuing a conviction that would conflict with binding treaty requirements; dismissal 

would remedy this. Second, Defendant would likely not be facing prosecution on felony 

charges at all, but for his volunteer work with No More Deaths and his attempts to ensure 

the humane treatment of migrants attempting the perilous crossing of the Sonoran Desert. 

Facilitating such prosecution would threaten judicial integrity. Third, dismissal is 

warranted “to deter future illegal conduct” by the Government. Chapman, 524 F.3d at 

1085. Indeed, the Government has already demonstrated its intention to continue to 

prosecute the provision of humanitarian aid to migrants, as several other federal cases, 

including a second case against Dr. Warren, are currently pending in this district. See No. 

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4:17-mj-00341-BGM (U.S. v. Warren); No. 4:17-mj-00340-BGM (U.S. v. Deighan et al.); 

No. 4:17-mj-339-BGM (U.S. v. Hoffman et al.). 

In this regard, the Court should consider whether “any lesser sanction [would be] 

like endorsing [the government’s conduct].” Chapman, 524 F.3d at 1088. Declining to

dismiss this case would endorse the pernicious notion that the Government may breach this 

nation’s solemn treaty obligations with impunity. Dismissal is the only remedy that can

effectively rectify the Government’s misconduct in this case and the resulting prejudice to 

Dr. Warren. See United States v. Morrison, 449 U.S. 361, 366 (1981) (dismissal under a 

court’s supervisory powers is appropriate when suppression of evidence cannot remedy 

prejudice to the defendant).

CONCLUSION

This case raises the specter of the United States Government using its sovereign 

power to punish an individual who was only doing what the United States itself has 

committed to doing: protecting the basic human rights of migrants. The law requires that 

the Government cooperate in, rather than punish, such aid. Preventing such perversions of 

justice is precisely why this court is empowered to dismiss this indictment:

Decency, security, and liberty alike demand that government officials shall 

be subjected to the same rules of conduct that are commands to the citizen. 

In a government of laws, existence of the government will be imperiled if it 

fails to observe the law scrupulously. . . .To declare that in the administration 

of the criminal law the end justifies the means— to declare that the 

government may commit crimes in order to secure the conviction of a private 

criminal— would bring terrible retribution. Against that pernicious doctrine 

this court should resolutely set its face.

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Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting). For 

the reasons stated above, Defendant requests this Court to dismiss his indictment.

RESPECTFULLY SUBMITTED this 27th day of August, 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 August 27th, 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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