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MICHAEL BAILEY

United States Attorney

ANNA WRIGHT

Assistant U.S. Attorney

NATHANIEL J. WALTERS

Assistant U.S. Attorney

State Bar No.: 029708

405 West Congress, Suite 4800

Tucson, Arizona 85701-5040

Telephone: (520) 620-7300

E-mail: anna.wright@usdoj.gov

E-mail: nathaniel.walters@usdoj.gov Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

 Plaintiff, 

 vs. 

Scott Daniel Warren, Defendants.

CR-18-00223-RCC (DTF)

GOVERNMENT’S MOTION IN LIMINE 

TO PRECLUDE EVIDENCE OR 

ARGUMENT REGARDING SELECTIVE 

ENFORCEMENT

The United States of America, by and through its undersigned attorneys, files its 

motion in limine to preclude the defense from introducing testimony, arguments, or other 

evidence of selective enforcement. Not only would testimony, arguments, or other 

evidence be irrelevant, but they would confuse the issues at trial and mislead the jury.

I. Discussion

On March 14, 2019, the defendant lodged his proposed Motion to Dismiss 

Indictment Due to Selective Enforcement. Doc. 172. The Court accepted the Motion on 

April 1, 2019, doc. 186, and the United States responded on April 5, 2019. Doc. 192. The 

defendant replied on April 12, 2019. Doc. 194. The Court, at the defendant’s request, 

admitted all attachments to the Motion to Dismiss, and the defendant admitted several more 

exhibits at an evidentiary hearing held on May 13, 2019. Doc. 207. On May 21, 2019, the 

Court denied the defendant’s Motion to Dismiss. Doc. 213. 

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Rule 401 provides that evidence is relevant if “(a) it has any tendency to make a fact 

more or less probable than it would be without the evidence; and (b) the fact is of 

consequence in determining the action. Fed. R. Evid. 401. Irrelevant evidence is not 

admissible. Fed. R. Evid. 402. To be “relevant,” evidence need not be conclusive proof of 

a fact sought to be proved, or even strong evidence of the same. United States v. Curtin, 

489 F.3d 935, 943 (9th Cir. 2007). All that is required is a “tendency” to establish the fact 

at issue. Id. Also, Rule 403 allows the court to “exclude relevant evidence if its probative 

value is substantially outweighed by a danger of one or more of the following: unfair 

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or 

needlessly presenting cumulative evidence.”

Selective prosecution and selective enforcement claims are undoubtedly related. 

United States v. Sellers, 906 F.3d 848, 852 (9th Cir. 2018) (citing Lacey v. Maricopa 

County, 693 F.3d 896, 920 (9th Cir. 2012) (en banc)). Although Federal Rule of Criminal 

Procedure 12 does not explicitly mention selective enforcement, selective prosecution is 

noted as a motion that must be filed pretrial because it is a “defect in instituting the 

prosecution.” Fed. R. Crim. P. 12(b)(3)(A)(iv). It follows that since alleging selective 

enforcement is, in essence, an allegation of a “defect” in how the prosecution began, that a 

claim of selective enforcement should be litigated pretrial and not go before the jury. See 

United States v. Bryant, 5 F.3d 474, 475-76 (10th Cir. 1993) (upholding district court’s 

prohibition of cross-examination as to how defendant came to be charged in federal court); 

United States v. Schmidt, 935 F.2d 1440, 1449-50 (4th Cir. 1991) (upholding refusal to 

give a requested instruction on selective prosecution).

Also, since any testimony, arguments, or other evidence have no bearing on the 

defendant’s guilt or innocence, any evidence or argument going to selective enforcement 

is entirely irrelevant. See Fed. R. Crim. P. 401 & 402.

Finally, allowing the defendant to present evidence on selective enforcement, an 

issue the Court has already ruled on, would unfairly prejudice the government, mislead the 

jury, and confuse the issues for trial. See Fed. R. Crim. P. 403.

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II. Conclusion

In this case, any evidence or argument regarding selective enforcement is improper, 

irrelevant, and would violate the safeguards of Rule 403. As such, the United States 

respectfully requests that the Court preclude the defendant from introducing evidence or 

making any argument on the theory of selective enforcement.

Respectfully submitted this 22nd day of May 2019.

MICHAEL BAILEY

United States Attorney

District of Arizona

/s/ Anna R. Wright & Nathaniel J. Walters

ANNA WRIGHT &

NATHANIEL J. WALTERS

Assistant U.S. Attorneys

Copy of the foregoing served electronically or by

other means this 22nd day of May 2019, to:

All ECF participants

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