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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)

NOTICE OF SUPPLEMENTAL 

AUTHORTIY RE MOTION FOR 

DISCOVERY INTO SELECTIVE 

ENFORCEMENT

On August 23, 2018, Defendant filed a Motion for Discovery Into Selective 

Enforcement (Doc. 113). The Government filed a response (Doc. 123) and Defendant 

filed a reply (Doc. 126). The Court held oral argument on October 16, 2018.

It has just come to undersigned counsel’s attention that on October 15, 2018, the 

Ninth Circuit issued its opinion in United States v. Sellers, No. 16-50061, 2018 U.S. App. 

LEXIS 28902, establishing for the first time a standard in the Ninth Circuit for discovery 

in selective enforcement claims. A copy of the opinion is attached to this notice. 
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In Sellers, the defendant sought discovery for a selective enforcement claim

concerning the actions of the Bureau of Alcohol, Tobacco, Firearms and Explosives. The 

Ninth Circuit explained: 

To succeed on his selective enforcement claim, Sellers must show that the 

enforcement had a discriminatory effect and was motivated by a 

discriminatory purpose. He is unlikely to meet this demanding standard 

without information that only the government has. Sellers can obtain this 

information through discovery if he makes a threshold showing. We must 

decide what that showing is. We hold that in these stash house reverse-sting 

cases, claims of selective enforcement are governed by a less rigorous 

standard than that applied to claims of selective prosecution under United 

States v. Armstrong, 517 U.S. 456 (1996). 

Sellers, Slip Op. at 4. The Court went on to say that it would not adopt the 

Armstrong standard for selective enforcement claims because “the same 

presumption of regularity and deference to prosecutorial decision-making policy 

concerns do not apply in the selective enforcement context.” Slip Op. at 10. The 

Court explained that “Asking a defendant claiming selective enforcement to prove 

who could have been targeted by an informant, but was not, or who the ATF could 

have investigated, but did not, is asking him to prove a negative; there is simply no 

statistical record for a defendant to point to.” Slip Op. at 10-11 (emphasis 

original). It stated it would “join the Third and Seventh Circuits and hold that 

Armstrong’s rigorous discovery standard for selective prosecution cases does not 

apply strictly to discovery requests in selective enforcement claims like Sellers’s.” 

Slip Op. at 14. Instead, defendants only need have “something more than mere 

speculation to be entitled to discovery, [and] what that something looks like will 

vary from case to case.” Slip Op. at 14 (emphasis original). 
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This new authority is directly relevant to the argument in Defendant’s 

initial brief (Doc. 113) at 11-15 (arguing that in the absence of Ninth Circuit 

authority, the Court should adopt the Third and Seventh Circuit standard) and in 

his Reply Brief (Doc. 126) at 2 (explaining that Armstrong is inapplicable because 

it was based on special status of prosecutors and is often impossible to satisfy in 

selective enforcement cases). 

In addition, at the October 16, 2018 hearing, the Court inquired whether 

evidence existed that Ajo field agents, rather than just the Border Patrol Tucson 

sector leadership, had knowledge of the embarrassing report and video in advance 

of establishing surveillance on The Barn. The defense has just identified such 

information, obtained via Freedom of Information Act request from the Pima 

County Sheriff’s Department, of which they were not previously aware. The 

evidence, also attached to this notice, consists of an email from Fernando Grijalva, 

Patrol Agent in Charge at the Ajo Border Patrol Station, to individuals at the Pima 

County Sheriff’s Office and the National Park Service, advising them of the report 

release and attaching a copy in a section labeled “UPDATE as of 0900 hrs 

1/17/2018.” The email is dated Wednesday, January 17, 2018 10:34 AM.

RESPECTFULLY SUBMITTED this 17th day of October, 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 October 17th, 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