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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

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(DTF)

RESPONSE TO GOVERNMENT’S 

MOTION IN LIMINE TO

TO PRECLUDE TESTIMONY

REGARDING AN ADVICE OF

COUNSEL DEFENSE

Defendant, Scott Daniel Warren, Ph.D., by and through his attorneys 

undersigned, Gregory J. Kuykendall, and Amy P. Knight, responds to the 

Government’s Motion in Limine to Preclude Testimony Regarding an Advice of 

Counsel Defense. This Court must deny the Government’s motion.

While the Government asks this Court to preclude evidence regarding an 

advice of counsel defense, whether the Court gives that instruction does not 

determine what evidence may be admitted, because all of the evidence the 

government is seeking to preclude is also relevant to an element of the charged 

crime—intent to violate the law.

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The government’s motion is broad, “including evidence about the protocols 

written by No More Deaths and the organization’s training program,” (Motion in 

Limine at 1), which it argues is irrelevant. (Id. at 4-5). But four days after it filed this 

motion, the government told this Court precisely the opposite: in its Response to 

Defendant’s Motion in Limine to Preclude Hypothetical Questions About Informed 

Consent, it insists that evidence regarding the protocols “is directly relevant to the 

defendant’s intent and motive.” (Doc. 339 at 2). This later-taken position, on which 

the government is now relying, is the correct one.

The Government’s reliance on Wofford is misplaced. There, the defendant 

sought a justification defense to a felon-in-possession charge under 18 U.S.C. § 

922(g)(1), based on threats he received from members of the “Hell’s Angels” gang. 

Wofford, 122 F.3d at 789. The Court found that the proffered evidence could not, as 

a matter of law, satisfy the required elements for a justification defense. Id. at 792. 

Notably, because 18 U.S.C. § 922(g)(1) is not a specific intent crime, United States 

v. Huet, 665 F.3d 588, 596 (3d Cir. 2012), the defendant’s testimony on his 

intentions and reasons was not relevant to any element of the charged crime, and 

thus, there was no basis to allow the evidence outside of the rejected affirmative 

defense.

Here, in contrast, Dr. Warren is charged with the specific intent crime of 

harboring under 8 U.S.C. § 1324(a)(1)(A)(iii), requiring an intent to violate the law. 

United States v. Tydingco, 909 F.3d 297, 304 (9th Cir. 2018). Evidence regarding 

the No More Deaths protocols and Dr. Warren’s beliefs and intentions in following 

those protocols is directly relevant to whether he possessed the requisite intent, as 

the government has now acknowledged (Doc. 339 at 2). Evidence about the protocol 

is therefore relevant and admissible under Rule of Evidence 401, and precluding this 

evidence would violate Dr. Warren’s constitutional rights to present a defense and 

to due process.

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The Government further argues that evidence regarding No More Deaths’

protocols and training program “will mislead the jury as to the applicable law,” 

particularly if “testimony about criminal immigration violations conflicts with or is 

not addressed by the Court’s instruction.” (Motion in Limine at 5). The Government 

claims this scenario occurred in the first trial, when, through the testimony of 

Professor Andy Silverman, “[t]he defendant offered legally incorrect or incomplete 

testimony regarding the elements of harboring” and “elicited testimony that intent 

to conceal is a necessary element of harboring.” (Motion in Limine, at 5-6). In fact, 

it was the Government that first questioned Dr. Silverman on cross-examination

about his awareness of various criminal immigration statutes, including the 

harboring statute. (TR 6/4/19 at 79-80).

1 If the government does not like that

testimony, it is free to ask different questions this time. It was only because the 

Government opened the door to this line of questioning that defense counsel asked 

Professor Silverman on redirect whether the prohibition against harboring “applies 

any time or only if it’s done with a certain intention?” (TR 6/4/19 at 81:8-9). Dr. 

Silverman answered:

No, the person has to intend. So no, not every time someone is -- you 

know, there are situations where someone -- and I don’t like using the 

word “harbor,” because we don’t harbor in No More Deaths. We don’t 

conceal people. So there are situations where it would not come within

the statute, and intent is required.

(TR 6/4/19 at 81:13-18). Contrary to the Government’s assertion, Dr. Silverman did not 

testify that “intent to conceal is a necessary element of harboring.” (Motion in Limine, 

at 5). Rather, after testifying that the harboring statute requires intent, he simply 

explained that No More Deaths does not “conceal people,” but did not indicate that 

1 See specifically TR 6/4/19 at 80:17-23: “Q. All right. And there’s also a statute 

that says that you cannot harbor, conceal, or shield from detection an illegal alien; 

right? A. Someone who is here illegally in the country, yes. Q. Okay. And so 

violation of that statute is a crime; right? A. Yes.”

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concealment is a “necessary element” of the offense. And in any event, no one 

disputes that intent to violate the law is a necessary element of harboring.

The Government also disingenuously argues that Dr. Warren “elicited 

speculative testimony about the consequences that No More Deaths might incur if it 

engaged in illegal actions based on this type of poor legal analysis.” (Motion in 

Limine, at 5-6). That was not the testimony. Rather, Professor Silverman testified 

that if No More Deaths continues to have issues with the criminal justice system, the 

organization will likely lose community support and its volunteer base. (TR 6/4/19 

at 49:17-50:17). The purpose of this testimony was to help the jury understand the 

incentives No More Deaths has to make sure its actions are legal, to corroborate Professor 

Silverman’s testimony that his advice was intended to be within the law. Nothing about 

this testimony misled the jury or invaded the province of the Court as to the applicable law, 

as the Government claims. (Motion in Limine, 6).

Finally, the Government repeats the argument that evidence regarding No 

More Deaths’ protocols and training program “is not material to the defendant’s 

theory of the case,” (Motion in Limine, 6), despite taking the position in a subsequent 

pleading that this evidence “is directly relevant to the defendant’s intent and 

motive.” (Doc. 339, at 2). The No More Deaths training program and protocols and 

Dr. Warren’s beliefs and intentions in following those protocols are clearly relevant 

to the mens rea requirement of harboring, and the State has failed to identify any 

valid basis for the preclusion of this evidence.

For all these reasons, this Court should deny the Government’s Motion in 

Limine to Preclude Testimony Regarding an Advice of Counsel Defense. 

RESPECTFULLY SUBMITTED this 11th day of October, 2019.

By /s/ Amy P. Knight

Gregory J. Kuykendall

Amy P. Knight

531 S Convent Avenue

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Tucson, AZ 85701

Attorneys for Defendant Scott 

Daniel Warren

CERTIFICATE OF SERVICE

I certify that on October 11, 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

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