1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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.

)

)

)

)

)

)

)

)

)

)

No.CR-18-00223-001-TUC-RCC(DTF)

REPLY IN SUPPORT OF MOTION 

IN LIMINE TO PRECLUDE 

HYPOTHETICAL QUESTIONS 

ABOUT INFORMED CONSENT

The government argues that this motion “has no basis in law or fact.” 

Response (Doc. 339) at 1. But it arrives at this conclusion by completely ignoring 

all of the law and most of the facts defendant cited, and glossing over the rest with 

an inaccurate summary. When the Court examines the actual testimony from the first 

trial, it is readily apparent that the hypothetical questions must be excluded under 

Rules 401, 402, and 403, as well as Rules 702 and 703. The government never even 

tries to explain why these rules do not bar the hypothetical questions. 

The government avers that its questions were “regarding the section of the 

protocols specifically related to calling 911 for illegal aliens in need of emergency 

medical care,” and that the “testimony showed that volunteers do not follow this 

Case 4:18-cr-00223-RCC-DTF Document 346 Filed 10/09/19 Page 1 of 7
2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

section of the protocols as written and that at least some of the volunteers understand 

that avoiding immigration authorities is treated as an equal goal with providing 

medical care.” Resp. at 2. For this broad proposition, the government cites two twopage transcript excerpts, without providing any specifics about what they contain

how it purportedly supports that conclusion. And it cannot; that was not the 

testimony. 

Both excerpts the government identifies are from the prosecutor’s questioning

of Geena Jackson; the government ignores the improper questions posed to 

Susannah Brown and Dr. Norma Price discussed in defendant’s motion. And neither 

excerpt from Ms. Jackson’s testimony says what the government claims it does. In 

the first, the relevant exchange was:

Q: If a patient asks to turn themselves in to Border Patrol, do you 

immediately just drop everything and call 911?

A: If that’s – yes. 

Q: You don’t try to explain to them what the potential consequences 

are if they call Border Patrol first?

A: Part of the information in that full consent would be that one of 

people’s options can be calling 911 or calling Border Patrol, and that 

would mean detention by the law enforcement agency. So yes, I would 

give someone that information, but if that’s someone’s decision, then 

I call 911 and have done that many times.

Q: And I imagine that you would disagree with me when I say that 

telling them that they call Border Patrol will lead [sic] to their detention 

and their likely deportation from the country is not persuasion 

whatsoever?

A: No, sir. I don’t think that’s dissuasion. I think that’s full consent.

RT 6/5/19 at 122:7-23 (emphasis added).

1

First of all, defendant explicitly identified this testimony as proper, and is not 

seeking to exclude it. See Motion at 5:2-4. Thus, to the extent the government is 

arguing it may ask those questions, defendant agrees. Second, the witness simply 

1 It is unclear why the government’s citation also includes page 123. The testimony on that 

page exclusively concerned what occurred in the Barn when it was unsecured after Dr. 

Warren’s arrest.

Case 4:18-cr-00223-RCC-DTF Document 346 Filed 10/09/19 Page 2 of 7
3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

never said anything remotely like a claim that avoiding immigration authorities is an 

equal goal with providing medical care. She never said anything at all about avoiding 

authorities. To the contrary, she made quite clear that the volunteers do not make 

decisions about whether to call immigration authorities; they provide information, 

and then assist “if that’s someone’s decision.” Perhaps the government would prefer 

that people not receive this accurate information before they decide whether to 

summon help, or would prefer that people have no other way to receive medical care 

but to summon immigration authorities, but disagreeing with such tactics, and 

providing people with true information, is not a crime. Nor is that question at issue 

in this case, where everyone agrees there was no need to call 911. It is far afield.

The second excerpt the government identifies bears no relation to the 

government’s alleged summary:

Q: So you said that it would be, if somebody needed IV treatment, that 

it would be illogical, right?

A: So what I said and what I mean is that to give someone a medical 

assessment and then have them deny medical care is not a situation I’ve 

ever been in. For example—

Q: Well, but again, we’re asking what would you do in a particular 

hypothetical, not situations that you have been in. So again, what would 

you do?

A: I operate on the consent of the patient.

Q: And if that person says no, what would you do?

A: If that person says no to treatment?

Q: Let’s just call it if the person says no, would you let the person just 

die?

A: No, because of the information that I’ve given that person. So a 

hypothetical could be like a snakebite. Someone gets bitten by a snake. 

Then I can do an assessment and tell them, I think the snakebite is 

poisonous. I think it’s a life-threat. I think you will die imminently. And 

then with that information, the patient can then decide what to do next. 

But the person will very probably say, I would like to be treated for the 

snakebite.

Q: But what if they don’t? You’re not answering the question. What if 

they don’t? What would you do? Would you let the person die or would 

you call 911?

Case 4:18-cr-00223-RCC-DTF Document 346 Filed 10/09/19 Page 3 of 7
4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

A: If the person loses consciousness, then I have implied consent, and 

I would call 911.

Q: We’re not talking about loss of consciousness. 

THE COURT: Stop, stop, stop. His question is this: Assume the 

person’s oriented, of sound mind. You’ve given them advice. They still 

say no. What would you do?

THE WITNESS: I would operate on the consent of the patient.

RT 6/5/19 at 145:3-146:10 (emphasis added). There is nothing in any of this 

testimony about the protocol, nor about avoiding immigration authorities. Again, to 

the extent the government believes this answer indicates a willingness to violate 

protocol—and as detailed below, it actually indicates the opposite—what this

witness would or would not do in a highly unlikely and ethically difficult situation 

she has never encountered simply does not bear either on Dr. Warren’s intentions or 

on her credibility as a witness.

The government claims its cross-examination was “regarding the section of 

the protocols specifically related to calling 911 for illegal aliens in need of 

emergency medical care.” Response at 2. The government does not bother to cite 

anything in the record about the protocol, or to identify what provision it actually 

means. The Desert Aid Protocol was introduced at trial as Exhibit 203A, and 

includes nine sections: (I) Standards for No More Deaths Volunteers and Programs; 

(II) Protocol for encountering patients on the trail, roads, washes, etc.; (III) Protocol 

for evacuation to emergency care; (IV) Protocol for evacuations to continued 

medical observation; (V) Definition of persons presenting ‘endangered persons 

criteria”; (VI) Protocol for legally protected persons; (VII) Protocol for interacting 

with Border Patrol; (VIII) Protocol for encountering human remains; and (IX) 

Protocol for patients in medical observation. The situation that gave rise to this case 

is addressed by section IX; that is the protocol Dr. Warren was following. 

The government, however, was very focused on particular provisions in an 

entirely different section that had no application to the migrants who arrived at the 

Barn, and was particularly obsessed with section III, which addresses lifeCase 4:18-cr-00223-RCC-DTF Document 346 Filed 10/09/19 Page 4 of 7
5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

threatening illnesses requiring emergency medical services, and includes the 

following provisions:

• “Patient consent for evacuation must be given unless a medically trained 

volunteer determines the patient to be incapable of giving consent: Evacuation 

to emergency medical care is required if the patient is unconscious or unable 

to give consent due to mental status changes.” (p. 6)

• “Having consulted a member of the Medical team or, if phone service is 

unavailable, physician-advised standing orders, if medical evacuation is 

advised, obtain informed consent from the patient: Explain that calling 911 

will alert Border Patrol and that they will be in custody while receiving 

treatment at the hospital. After they are released from the hospital they will 

remain in Border Patrol custody. (p. 7)

The protocol then goes on to detail the logistics of calling 911: when to take 

a patient to the fire department, when to call 911 for an ambulance, when to call 911 

for a helicopter, and what information to have on hand to provide to the 911 operator, 

information that volunteers obviously would not need if their policy was to avoid 

immigration authorities at all costs. Thus, even if the testimony had shown that 

volunteers do not follow these directives, it would have nothing to do with the 

situation at issue in this case. But Ms. Jackson’s testimony was in fact perfectly 

consistent with this protocol, to the letter. The government’s repeated badgering 

about what she would do in an extreme situation thus did not constitute proper 

impeachment.

In any event, the whole point of the motion is that many of the government’s 

questions did not address the protocol at all. Defendant explicitly identified several 

questions posed during the first trial that concerned the witness’s hypothetical 

choices in situations not at issue in this case without reference to the protocol. For 

instance, in questioning Susannah Brown, the prosecutor asked for her opinion of a 

situation “as a nurse,” and asked her not what the protocol required, but what she 

Case 4:18-cr-00223-RCC-DTF Document 346 Filed 10/09/19 Page 5 of 7
6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

would do. See Motion at 3:9-25. The government never denies that this testimony 

was about the witness’s ethical and moral choices, not about the protocol. Similarly, 

Dr. Norma Price was asked for her opinion “[a]s a physician,” not her understanding 

of what the protocol requires. Motion at 4:4-5. 

The government then avers, with no citations and no explanation, that “the 

protocols direct volunteers to take steps that will help illegal aliens avoid 

apprehension by immigration authorities” and “following the protocols can be 

consistent with intending to violate the law.” Response at 2. But it never even

suggests what steps it means, or where the protocol directs them, nor what the 

protocol directs that involves an intent to violate the law. The protocol certainly does 

direct volunteers providing medical care not to affirmatively alert immigration 

enforcement without a patient’s consent, and perhaps providing a source of 

unconditional medical care that does not come with apprehension interferes, as a 

practical matter, with the Border Patrol’s enforcement tactic of forcing imperiled 

people to turn themselves in to avoid dying, but none of that is illegal. As this Court 

properly instructed the jury, “[t]he law does not impose any general affirmative 

obligation on citizens to report suspected or known violations of law to authorities.” 

Doc. 273 at 23. 

Finally, to the extent that the government’s complaint is about “conflating 

informed medical consent with legal advice,” Response at 2, that was entirely the 

government’s doing, and is exactly what defendant now seeks to prevent. 

RESPECTFULLY SUBMITTED this 9th 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

Case 4:18-cr-00223-RCC-DTF Document 346 Filed 10/09/19 Page 6 of 7
7

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CERTIFICATE OF SERVICE

I certify that on October 9, 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

Case 4:18-cr-00223-RCC-DTF Document 346 Filed 10/09/19 Page 7 of 7