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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 

AMENDED MOTION TO DISMISS 

COUNTS 2 AND 3

Erroneously and in contravention of Supreme Court precedent and Justice 

Department guidelines, the government claims: (1) the Court should not resolve 

this issue pretrial; (2) Dr. Warren’s sincerely held religious beliefs did not require 

the actions he allegedly took; and (3) no other method besides prosecuting Dr. 

Warren exists to achieve the government’s interest. Each of these arguments fails.

1. The Court Should Resolve this Motion before Trial.

Simply disputing unequivocal evidence is not the same as producing 

evidence that creates an actual factual dispute. Although the government claims the 
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migrants were not “exhausted, hungry or injured when they arrived at the Barn,” 

Gov’t’s Br., Doc. 60, at 9, in fact, they had been walking in the frigid desert since 

Friday, January 12 and testified that they were “extremely hungry” and “very 

cold.”1 Moreover, the paltry amount of food they at before arriving at the Barn was 

gone and they were extremely likely to go hungry and become hypothermic if Dr. 

Warren threw them out after discovering them. The government fails to identify 

any RFRA defense element actually turning on disputed facts.

2

The government also complains that Dr. Warren “has not submitted any 

declarations or other evidence to buttress his mere assertions,” Id., citing United 

States v. Tawahongva, 456 F.Supp.2d 1120, 1126-27 (D. Ariz. 2006) for its 

proposition that “the Court should deny the Motion to Dismiss in its entirety.” 

Gov’t Br., Doc. 60, at 9. However, Tawahongva clearly favors an evidentiary 

hearing and undermines the government’s position, as that court dismissed on the 

merits and only after an evidentiary hearing.

 

1 The defense will submit transcript of the material witnesses’ sworn deposition 

testimony at the evidentiary hearing, thereby eliminating any prospect of a disputed fact.

2 The government counterfactually bases its arguments on its allegation – as 

opposed to its evidence – that Dr. Warren concealed the migrants. But even if evidence 

existed that he had concealed the migrants, RFRA would still prohibit his prosecution.
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2. The Government Impermissibly Second-Guesses Dr. Warren’s Account of 

his Own Religious Beliefs.

The government claims the harboring statute does not substantially burden 

Dr. Warren’s beliefs because his religious beliefs did not compel him to provide 

assistance to the migrants. This argument fails for multiple reasons. 

First, the government misapprehends the nature and scope of Dr. Warren’s 

religious beliefs. The prosecution apparently believes resting for a few hours and 

eating half a gas station burrito3 before arriving at the Barn obviates the need for

religiously motivated humanitarian assistance. But as he will testify, Dr. Warren’s 

beliefs do not allow him to turn out two strangers who arrive in need, regardless of 

whether they ate before arriving.

4 Most importantly, Dr. Warren’s motivation is 

what is relevant for RFRA purposes, not the prosecution’s jaded perception of the 

migrants’ level of need. Significantly, even if the migrants had been in no actual 

distress at all, so long as Dr. Warren believed them to need his help and assisted 

 

3 Mr. Sacarías testified, “what we ate was very little and those beans didn’t taste good.”

4 The government cites Oklevueha Native American Church of Hawaii, Inc. v. Lynch, 828 

F.3d 1012 (9th Cir. 2015). But in that case, the claimants “have expressly told us that 

foregoing cannabis is not contrary to their religious beliefs.” Id. at 1016. That critical fact 

is in stark contrast to the present case, where turning away strangers in apparent need is 

directly contrary to Dr. Warren’s religious beliefs. 
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them in an exercise of his religious belief, his actions would still qualify for 

protection.

The government may not second-guess whether Dr. Warren did or did not 

need to undertake various actions pursuant to his beliefs. As Attorney General

Sessions has made explicit, “[r]eligious adherents will often be required to draw 

lines in the application of their religious beliefs, and government is not competent 

to assess the reasonableness of such lines drawn, nor would it be appropriate for 

government to do so.” See Office of the Attorney General, Federal Law Protections 

for Religious Liberty, Oct. 6, 2017 (hereinafter “DOJ Guidance”), at 4. 5 RFRA 

“does not permit a court to inquire into the reasonableness of a religious belief, 

including into the adherent’s assessment of the religious connection between a 

belief asserted and what the government forbids, requires, or prevents.” Id. at 6a 

(citing Burwell v. Hobby Lobby, 132 S.Ct. 2751, 2278 (2014)). 

Furthermore, under the plain language of the statute, activity is protected if it 

is an exercise of religion, even if the religion does not compel the action. RFRA 

applies to “any exercise of religion, whether or not compelled by. . . a system of 

religious belief.” 42 U.S.C. § 2000cc-5(7)(A). Thus, Dr. Warren need not establish 

that he had no choice but to take the alleged actions; he need only establish that 

 

5

Available at https://www.justice.gov/opa/press-release/file/1001891/download.
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such actions would be an exercise of his religious beliefs. Being criminally

prosecuted for acting on his beliefs clearly constitutes a substantial burden.

3. Any Purported Compelling Interest Must Be Framed Narrowly.

The government fatally fails to precisely articulate what interest prosecuting 

Dr. Warren advances, thereby making an alternative means analysis impossible. 6

The government must show more than a compelling interest to enforce the 

law as a general matter, but “a compelling interest to deny an accommodation to 

the particular claimant.” DOJ Guidance at 6a (citing O Centro Espirita, 546 U.S. at 

430, 435-38).7 The government “would have to show that it has a compelling 

interest in denying [the] particular accommodation.” DOJ Guidance at 7a; see also 

O Centro Espirita, 546 U.S. at 437. Courts must “scrutinize the asserted harm of 

granting specific exemptions to particular religious claimants—in other words, to 

 6

“[O]verall efforts to maintain the security of its borders and regulate immigration” (p. 

12; p. 14); “[T]o deter illegal entry and presence by aliens, and attempts to further their 

entry and presence by others within the United States (p. 13); “[D]eterring the defendant

from placing a higher priority on helping illegal aliens avoid detention by immigration

authorities than seeking appropriate medical care in a clinical setting” (p. 14); 

“[D]eterring the defendant’s actions, which include the evasion of lawful authorities (p. 

14); “[T]o achieve uniform enforcement of its immigration policy and. . . apprehending 

those who criminally violate it” (p. 14); “[D]eterring the defendant from engaging in 

similar conduct in the future” (p. 15); “[D]eterring illegal entry and presence by aliens” 

(p. 16).

7 The Government’s citation to Aguilar, a pre-RFRA Ninth Circuit case, is in direct 

conflict with the particularized approach required by the Supreme Court in RFRA cases 

and is unavailing in the face of two much more recent Supreme Court cases actually 

interpreting RFRA—O Centro Espirita and Hobby Lobby—each requiring a far narrower 

articulation of government interest.
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look to the marginal interest in enforcing the [law at issue] in these cases. Hobby 

Lobby, 134 S.Ct. at 2779 (internal quotation marks omitted). The relevant 

compelling interest therefore, cannot be prohibiting harboring or deterring illegal 

immigration, as the government suggests; it must be the much more particular 

interest in refusing an exemption specifically to Dr. Warren. 

Since the prosecution cannot establish a compelling interest based on what 

actually happened in this case, it seeks to reframe its interest as “deterring the 

defendant from engaging in similar conduct in the future.” Gov’t Br., Doc. 60, at 

15. As a preliminary matter, the government cannot render any marginal interest 

compelling simply by framing it as an interest in “deterrence.” Indeed, if that were 

true, no RFRA defense would ever succeed, since criminal prohibitions are always 

intended to deter certain conduct. Yet the whole point of the exigent compelling 

interest test is to require the government to produce concrete evidence that its 

interests are seriously at risk in a specific case. See Brown v. Entm’t Merchs. Ass’n, 

564 U.S. 786, 803 n.9 (2011) (“[T]he government does not have a compelling 

interest in each marginal percentage point by which its goals are advanced.”). 

Thus, the government cannot have a compelling interest in deterring future 

conduct unless it can demonstrate that this (future) conduct has previously 

meaningfully compromised a compelling interest. See O Centro Espirita, 546 U.S. 
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at 426.8 To bear its burden, the government must precisely articulate what that 

compelling interest is that was previously compromised. And any alleged interest

in deterring future conduct may not be speculative but must be supported by the 

evidence. Id., at 426, 436. 

Instead, the Response conflates allegations with evidence, claiming Dr. 

Warren’s actions included “helping [the migrants] avoid detection by law 

enforcement authorities.” Gov’t Br., Doc. 60, at 13. The migrants’ testimony 

shows quite the opposite—Dr. Warren took no steps to conceal them, he gave no 

instruction to remain indoors or to hide. Border Patrol observed them in broad 

daylight. The migrants testified they were free to come and go, walked outside 

whenever they chose over the two days they stayed at the Barn, smoking outside 

and taking out trash.

Finally, the government argues that the “ministers and missionaries” 

exception does not undercut the existence of a compelling government interest. Yet 

any government assertion of an interest in “unbending compliance” and “uniform 

 

8 In O Centro, the government asserted a compelling interest in preventing 

future diversion of hoasca, while the church introduced evidence that its past actions had 

not led to diversion of hoasca. Id. Because the evidence on diversion was "virtually 

balanced" the district court held that the government had not met its burden. Id. at 427. 

Similarly here, the government must show that the Dr. Warren’s alleged harboring of 

migrants meaningfully impaired its interest in detecting and apprehending two 

individuals unlawfully present. This it cannot do, since agents discovered and arrested the 

two migrants whom they believed they were searching for only 24 hours after learning of 

their existence in the country.
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enforcement,” Gov’t Br., Doc. 60, at 6, 14, must fail where an analogous 

exemption already exists. In arguing that the conduct covered is “not analogous” to 

that allowed by the exception, Gov’t Br., Doc. 60, at 15, the government entirely 

misses the legal significance of the existence of an exemption.

9 The Attorney 

General recognized the well-established principle that “[a]n asserted compelling 

interest in denying an accommodation to a particular claimant is undermined by 

evidence that exemptions or accommodations have been granted for other 

interests.” DOJ Guidance at 7a (citing O Centro Espirita, 546 U.S. at 433, 436-37; 

Hobby Lobby, 134 S.Ct. at 2780). Indeed, in O Centro Espirita, the fact of an 

existing exemption for religious organizations using a similar substance “fatally 

undermine[d]” an argument that the government had a compelling interest in 

enforcing the Controlled Substances Act in the face of a claimed RFRA exemption

for a different hallucinogenic substance. O Centro Espirita, 546 U.S. at 433.

Significantly, just as in O Centro Espirita, the harboring statute has a builtin exemption for similar religious activity: nonprofit religious organizations, as 

well as their agents and officers, cannot be prosecuted for harboring aliens who 

serve as volunteer ministers or missionaries. 8 U.S.C. § 1324(a)(1)(C). The 

 

9 The prosecution conceptually errs by analyzing the difference between the 

migrants (“they entered...for purely secular reasons” Gov’t Br., Doc. 60, at 15) and 

missionaries. The only relevant comparison is between the effect of the religious 

nonprofit’s conduct and the effect of Dr. Warren’s alleged conduct. Significantly, the 

missionary exception covers far wider conduct than anything Dr. Warren is accused of. 
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prosecution has failed to explain how an exemption in Dr. Warren’s case 

specifically would do serious harm to the government’s interest in policing 

unlawful presence, when religious organizations that harbor ministers or 

missionaries do not.10 No compelling interest exists in prosecuting Dr. Warren for 

the exercise of his religious beliefs.

4. Prosecuting Dr. Warren Is Not the Least Restrictive Means of Furthering 

any Appropriately Articulated Government Interest.

Each of the government’s least restrictive means arguments addresses

interests in either general enforcement—insufficient for RFRA purposes under O 

Centro Espirita and Hobby Lobby—or misplaced and speculative allegations about 

deterrence. There is only one possible interest left: the apprehension of the 

particular migrants Dr. Warren allegedly assisted. Yet even if this were sufficiently 

compelling—it is not—apprehending them could be easily accomplished without a 

harboring prosecution. And where an existing exemption shows a less-restrictive 

means is feasible, the government must employ it. Hobby Lobby, 134 S. Ct. at 

2784.

For the Court in Hobby Lobby, the existence of an exemption proved 

decisive to its least-restrictive-means analysis, yet the prosecution fails to even 

address § 1324(a)(1)(C) at this stage of its analysis. Nor does it allege § 

 10 Even though this motion only challenges the harboring charge, the missionary 

exception also applies to transporting, shielding, concealing, and encouraging or inducing 

to reside. 
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1324(a)(1)(C) has “undercut” its ability to further its immigration interests. O 

Centro Espirita, 546 U.S. at 435. And the government gives no rationale for why it 

cannot do what it does in the missionary context: use the many tools at its disposal 

to detect and apprehend undocumented individuals without prosecuting religiously 

motivated assistance. Hobby Lobby, 134 S. Ct. at 2786 (Kennedy, J., concurring in 

judgment) (“RFRA is inconsistent with the insistence . . . on distinguishing 

between different religious believers—burdening one while accommodating the 

other—when it may treat both equally by offering both of them the same 

accommodation.”) 

In addition, the government has failed to establish that specific lessrestrictive means would be infeasible. It creates a straw man and grossly 

misrepresents one of Dr. Warren’s proposed less restrictive means, arguing that 

“continual surveillance on locations like the Barn” would not be effective. Gov’t 

Br., Doc. 60, at 16. But Dr. Warren never proposed “continual” surveillance. The 

limited, targeted surveillance the government accomplished here was and would 

have continued to be perfectly effective. Agents began observing the Barn at 2pm 

and by 4:30 had observed two men whom they concluded to be in the country 

illegally, arresting them shortly afterwards.

Puzzlingly, the government claims surveillance is not a viable alternative to 

prosecuting Dr. Warren for the exercise of his sincere religious beliefs, because he 
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and/or No More Deaths may not “accept surveillance,” Id., at 17. Whether one 

“accepts surveillance” or not, the government can easily surveil. 

And less restrictive means besides surveillance abound in this case but the 

government does not address them, categorically defaulting on its burden. Christie, 

825 F.3d at 1061 (“At a minimum, the government must address those alternatives 

of which it has become aware during the course of this litigation”) (emphasis 

added). When the migrants left the Barn, which according to their testimony they 

planned on doing later that day, it would have been no more difficult for Border 

Patrol to locate and apprehend them than before they arrived at the Barn. Critically, 

“[i]f a less restrictive means is available for the Government to achieve its goals, 

the Government must use it.” Holt v. Hobbs, 135 S. Ct. 853, 864 (2015) (emphasis 

added). The government also fails to explain why it cannot employ other legal 

means, like obtaining a warrant.

Accordingly, the Court should GRANT Dr. Warren’s motion to dismiss.

RESPECTFULLY SUBMITTED this 7th day of May, 2018.

By /s/ Gregory J. Kuykendall

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 May 7th, 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