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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. 18-cr-00223-RCC(DTF)

DEFENDANT’S RESPONSE TO 

GOVERNMENT’S MOTIONS IN 

LIMINE

The government has filed 5 motions in limine (Docs 214, 215, 216, 217, and 220). 

Several of these are based on overly narrow assumptions about the nature of the defenses 

being asserted; others merely ask the Court to apply the rules of evidence. Accordingly, 

the Court should deny these motions; if the Court determines, during trial, that evidence is 

not admissible in the context of the case as it develops, it can exclude it then. Moreover, if 

the government opens the door to evidence by its own conduct, a ruling would be needed 

at that time. Currently, because of the government’s failure to abide by its disclosure 

agreement, it is unclear what the government’s evidence will be.

RFRA DEFENSE (Doc. 214)

The government argues that if the defendant’s evidence will be insufficient to 

support an asserted defense as a matter of law, no evidence supporting that defense should 
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be allowed. Defendant does not disagree with this proposition as a general matter. He does, 

however, dispute the government’s characterization of the testimony already presented and 

its relationship to the prima facie case, in light of this Court’s existing findings. 

Magistrate Judge Velasco held an evidentiary hearing on Dr. Warren’s pretrial 

motion to dismiss Counts 2 and 3 pursuant to the Religious Freedom Restoration Act 

(RFRA). He subsequently issued a report and recommendation containing findings of fact 

that neither party objected to, including a finding that the defendant (and his father) believe 

“that the Earth is their house of worship and they respect the dignity and wishes of all they 

encounter. A key element of the Defendant’s belief system is to help others in distress to 

the point of being a duty or compulsion.” (Doc. 81 at 2). The Court recognized his views 

at “religious beliefs,” which it categorized as being “in the nature of animism.” Id. The 

Court found that “Defendant’s belief is a somewhat modified Golden Rule, in that he has 

a compulsion to help those in their immediate need, i.e. food, water, and medical aid. His 

beliefs do not seem to reach assistance for the ultimate goal. He believes he will help people 

where they are, but not help them get to their ultimate destination.” Id. Finally, the Court 

recognized that “[t]he Defendant, along with others who have similar beliefs in part, 

utilizes the property known as The Barn to exercise his religious beliefs of assisting people 

in distress.” 

This Court then ruled that it could not determine pretrial whether RFRA protected 

Dr. Warren’s conduct because factual disputes remained about what conduct he in fact 

undertook, and resolving those questions implicates “a trial on the general issue.” Doc. 127 

at 5. For instance, the Court could not determine pretrial whether Dr. Warren’s conduct 

extended beyond the alleged acts of providing “food, water, bed(s) and clean clothing” 

(id.), or whether the two migrants were “in need.” Id. at 6. The Court ruled that resolving 

these questions, which would determine whether RFRA provided protection, was “the 

province of the jury.” (Doc. 127 at 7). Accordingly, Dr. Warren has proposed a jury 

instruction directing the jury to determine whether his conduct was limited to that 

encompassed by the religious beliefs this Court has already found he holds.
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This case is unusual among RFRA cases; typically, no dispute exists about the 

defendant’s actions, and the questions are limited to what the defendant’s beliefs are, and 

whether the government truly needs to enforce the law in this manner. Here, because 

harboring is a somewhat abstract concept (as opposed to, say, possession of marijuana), a

defendant could theoretically commit the crime in a variety of ways, some of which may 

constitute religious exercise and some of which may not. In other words, an assertion that 

the defendant took certain actions and they were a religious exercise does not necessarily 

answer the question of whether (1) he is actually guilty of the charged crime and (2) all of 

is allegedly criminal actions were part of the religious exercise. Either way, it is for the 

government to prove what actions the defendant took that allegedly violate the law, 

especially because the complaint is limited to allegations that are encompassed in his 

religious beliefs, and the indictment contains no factual allegations, but merely a recitation 

of the elements of the crime. Because the remaining questions concerning whether Dr. 

Warren’s conduct was limited to that which was compelled by his religious beliefs all 

depend on that what the government chooses to present, Dr. Warren cannot reasonably be 

required to offer any further proof on this point at this juncture. Nothing about the fact that 

this is an affirmative defense requires Dr. Warren to prove a negative, i.e., that he did not 

do any number of other things never mentioned in any charging document that are not part 

of his religious exercise, such as actively assisting migrants with getting to some ultimate 

destination, or affirmatively concealing them from immigration authorities. It is for the 

government to prove any actions it believes he took that violate the law.

The Court may only preclude a defense if the evidence shows that the defendant 

cannot establish it. Here, Dr. Warren has already established that he can receive this 

protection; the only question that remains is whether the government will seek to prove, 

and succeed in proving, that his conduct encompassed actions beyond the assistance 

mandated by his religious beliefs. Because the jury will ultimately be tasked with 

determining whether all of Dr. Warren’s allegedly illegal conduct was an exercise of his 

religious beliefs, even though the nature of those beliefs has already been determined by 
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the Court, the defense must be permitted to provide some context for this determination, 

including the religious nature of the actions in question. 

The government also claims that Dr. Warren “refused to testify regarding the second 

prong of his prima facie case,” i.e., substantial burden (Doc. 214 at 2). Substantial burden, 

however, is a question of law for the court; it is not a question of fact, and need not be 

supported by specific testimony. See Guam v. Guerrero, 290 F.3d 1210, 1212 (9th Cir. 

2002). Indeed, Dr. Warren’s position at the time was, and has remained, that a criminal 

prosecution for actions that are taken as a religious exercise constitutes a substantial burden 

as a matter of law. And in any event, even if Dr. Warren had testified about the actions he 

undertook that day, the Court’s primary concern would have remained: that the government 

could still seek to prove that he committed other acts beyond those he identified as part of 

his religious practice, and this Court has determined that that must occur at trial. 

The government also objects that the testimony of various witnesses it believes 

might be offered to support the RFRA claim are irrelevant (Doc. 214 at 3). These claims 

are repeated in a separate motion the government filed at the same time; Dr. Warren will 

address those claims in conjunction with the separate motion. 

Finally, the government argues that defendant should not be permitted to testify only 

about his religious beliefs while invoking his Fifth Amendment privilege. Because he was 

already permitted to offer testimony about his religious beliefs at a pretrial hearing in this 

case and the Court already made factual findings about the nature and requirements of his 

religious beliefs, and the government did not object to the findings made in this regard, he 

does not face the dilemma of having to surrender his Fifth Amendment right in order to 

preserve his RFRA rights. Accordingly, if he chooses to testify at trial, he will not be 

seeking to limit his testimony 

TESTIMONY OF CERTAIN WITNESSES (Doc. 215)

The government has also moved to preclude the testimony of seven witnesses by 

asserting without explanation that “nothing in their testimony goes to any element of the 
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charged offenses or any defense.” (Doc. 215 at 3). This bare assertion ignores the scope of 

the charges the government has brought.

Regarding Count 1 (conspiracy), the indictment (Doc. 26) alleges that a conspiracy 

occurred “From a date unknown to on or about January 17, 2018,” and that Dr. Warren 

conspired “with various other persons known and unknown to the grand jury” to transport 

and harbor two individuals. Dr. Warren moved for a Bill of Particulars, seeking to have the 

government specify who Dr. Warren allegedly conspired with (Doc. 35); the government 

refused to identify even a single co-conspirator (Doc. 46) and the Court denied the motion 

without explanation (Doc. 56). Conspiracy charges can frequently sweep in large amounts 

of evidence not immediately connected to the particular substantive crime at issue; this is 

especially so where the government remains unwilling to define the scope of what it 

alleges, either by date or by who supposedly conspired. If the government wanted the 

defense to present a narrower case, it could have provided more information about what it 

is accusing Dr. Warren of. 

Given the potential breadth of the government’s evidence on the conspiracy charge, 

Dr. Warren necessarily intends to present evidence about the nature of, and reasons for, his 

communications and coordination with a wide swath of his colleagues and associates. In 

order to understand the explicitly non-criminal nature of the various humanitarian 

collaborations in which Dr. Warren engages, the jury will require some context for the his

activities, including information about the dangers facing the population to whom they 

provide humanitarian aid and the reasons why his various activities are necessary to that 

work. Without this context, it would be difficult for any jury to understand what he is 

actually doing and why—which is crucial for the jury to see that the goals of any 

collaboration do not include the commission of any crimes. Evidence of the real and serious 

nature of the crisis he and his colleagues address will corroborate testimony that their work 

is indeed humanitarian in nature and urgent in character, and call into question the 

government’s anticipated characterization of various activities as aimed at encouraging 

illegal immigration rather than at responding to the crisis they see unfolding around them 
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every day. Accordingly, the testimony of Dr. Edgar McCullough,1 Dr. Gregory Hess, and 

Dr. Robin Reineke is directly relevant to Dr. Warren’s defenses. 

Regarding Counts 2 and 3 (harboring), the Ninth Circuit recently clarified that 

harboring requires “an instruction that the defendant intended to violate the law.” United 

States v. Tydingco, 909 F.3d 297, 304 (9th Cir. 2018). Because the government must prove 

that the defendant intended to violate the law, evidence that he was in fact earnestly 

attempting to avoid violating any laws, including evidence regarding the protocols Dr. 

Warren was following, the legal training he has both received and provided, and the 

information he and his colleagues have received regarding law enforcement agencies’ 

positions on what activities were and were not permissible, is directly relevant to an 

element of the offense. Accordingly, no basis exists to preclude the testimony of Margo 

Cowan or Andy Silverman. 

Additionally, the government has provided a witness list that includes eight agents 

of the United States Border Patrol. As with any witness the opposing party calls, Dr. 

Warren is entitled to present evidence bearing on their credibility, including evidence of 

bias or motive to fabricate or lie. Evidence about public criticism of the agency by a group 

with whom Dr. Warren is associated is directly relevant to the credibility of these eight 

witnesses. Moreover, the government’s exhibit list includes reports by several agents 

intimating that they suspect No More Deaths volunteers of removing items from the Barn 

between the time of Dr. Warren’s arrest and the execution of the search warrant five days 

later. The report will provide the jury with context for understanding what reasons (other 

than the government’s implication of attempts to conceal wrongdoing) No More Deaths 

volunteers might have for wishing to keep certain information out of the hands of the 

Border Patrol. Accordingly, the testimony of Maryada Vallet is relevant to rebut the 

government’s anticipated arguments.

Finally, the government claims the proposed testimony of Rev. Bethany RussellLowe is irrelevant. But her testimony is relevant for at least two reasons. First, Dr. Warren 

 1 The government incorrectly identifies this witness as “Edward” McCullough. 
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is asserting a religious freedom defense. Rev. Russell-Lowe’s testimony will provide the 

jury with necessary context for understanding the work of No More Deaths as a religious 

practice rooted in principles widely shared among people of faith, including principles 

explicitly articulated by Dr. Warren. Because the Court heard Dr. Warren’s testimony on 

this question pretrial, some testimony about how and why desert humanitarian aid work is 

connected to these spiritual beliefs, including those specifically articulated by Dr. Warren, 

will be immensely helpful to them in evaluating this defense. And the fact that something 

has been previously established and need not be proven to this jury does not prevent the 

parties from presenting some evidence on it to assist the jury’s evaluation. For example, in 

death penalty cases, if a death sentence is reversed and a court must conduct a retrial of the 

penalty phase only, the government is routinely permitted to present evidence about the 

crime, even though the defendant’s guilt and death eligibility are already proven.

Second, again, the government has refused to provide any information about the 

scope of the conspiracy it is alleging. Accordingly, as of now, Dr. Warren must proceed as 

though any and all aid activities he coordinates through any group or network are 

potentially relevant to the government’s unspecified accusation. Accordingly, testimony 

about the relationship between the work Dr. Warren does with No More Deaths and the 

organization that sponsors it is potentially vital to the jury’s understanding of the noncriminal nature of the relationships surrounding this work. 

In sum, as a consequence of the government refusing to narrow the universe of 

evidence it may choose to present against Dr. Warren concerning his work with others, Dr. 

Warren is and must be prepared to present similarly wide-ranging evidence about who he 

actually works with and for what legitimate purposes. If this evidence is more wide-ranging 

than the government would like this trial to be, that is a problem of its own making. It 

clearly cannot have it both ways: limit the defense’s potential evidence while at the same 

time refusing to explain the scope or even the persons allegedly involved in the alleged 

conspiracy.
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Jury Nullification (Doc. 216)

The government insists, without explanation, that arguing that “humanitarian aid is 

never a crime” constitutes an argument for jury nullification. It never explains how or why 

it thinks these two things are equivalent, and they obviously are not.

As an initial matter, the government invokes the Ninth Circuit case United States v. 

Millis, 621 F.3d 914 (9th Cir. 2010), apparently in an attempt to assure this Court that 

because the defendant in that case and Dr. Warren are both part of No More Deaths, the 

fact that the defendant in Millis asserted that argument means Dr. Warren will too. But the 

government ignores the other obvious implication of the Ninth Circuit’s discussion: it 

seemed to find nothing wrong with the defendant making that argument.

In any event, whatever other defendants may have argued in other cases, and 

whatever members of the public may say about this case outside of the courtroom, this 

Court must assess any arguments presented in this case in the context in which they are 

made. Here, the government has charged Dr. Warren with two crimes, both of which 

require intent to commit a crime. Arguing that actions undertaken by Dr. Warren were acts 

of humanitarian aid and therefore do not constitute crimes, in this context, is nothing like

an argument for jury nullification; it is an application of logic. The required criminal mental 

states are incompatible with purely humanitarian motivations, and thus by asserting that 

humanitarian aid is not criminal, the defense would only be arguing to the jury that if it 

believes the defendant’s explanation that his actions were motivated by humanitarian 

concerns, it cannot find that the government has proven all the elements of the charged 

crimes. That is not jury nullification; that is an argument about application of the law to 

the facts.

Finally, none of the cases the government relies on address what defense counsel 

may argue. In United States v. Powell, 955 F.2d 1206, 1213 (9th Cir. 1991), the Court 

simply held that a district court did not abuse its discretion in refusing to instruct the jury 

that it could “disregard the strict requirements of the law” based on “the values involved in 

this case.” And in United States v. Navarro-Vargas, 408 F.3d 1184, 1202-06 (9th Cir. 2005), 
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the Court held that it did not violate the Fifth Amendment to instruct a grand jury that it 

“should vote to indict” if the evidence was sufficiently strong or that it “cannot judge the 

wisdom of the criminal laws enacted by Congress.” The government cites no authority for 

the proposition that it is improper for defense counsel to argue that certain types of conduct 

are not criminal. There is a vast difference between a Court explicitly instructing a jury 

that they may disregard the law if they don’t think it’s fair, and defense counsel making a 

legitimate, logical argument that actions undertaken only with the intent to protect the life 

and health of others do not violate criminal laws. 

Irrelevant Evidence (Doc. 217)

The government argues that two items the defense has disclosed—a video produced by 

Vice TV and an autopsy report—are irrelevant to this case. But just because the 

government does not understand exactly how they tie in does not mean that they will not 

be relevant to the defense. 

Again, the government has charged Dr. Warren with conspiring during an open-ended 

time period with individuals it refuses to identify. Depending on what the government 

actually introduces at trial, these items may very well be relevant, as they will provide an 

alternative narrative to explain certain actions and communications that the government 

may suggest to the jury constituted part of a criminal conspiracy. If, in the context of the

trial and testimony that the defense offers to explain how the video and autopsy report 

refute the government’s allegations, the Court determines they do not meet the relevance 

threshold, it can of course exclude them at that time. But it cannot exclude them now, 

before the government has even fully revealed its theory of the conspiracy, and the defense 

is not required to provide a detailed explanation of exactly how it intends to use these items 

at trial at this juncture. 

The same is true of the autopsy report. The government insists “[t]here is no evidence 

that this individual was involved in the events underlying this case or that his autopsy is 

relevant to any fact of consequence in this case.” (Doc. 217 at 2). But the government has 
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not yet heard the testimony of defense witnesses about the events on the days in question, 

so it has absolutely no way to know whether the evidence will in fact tie this autopsy to 

those events. 

Finally, the government asserts that both items constitute hearsay. But whether or not 

evidence is hearsay depends on the purpose for which it is introduced. Statements are not 

hearsay unless a party offers them “to prove the truth of the matter asserted in the 

statement.” Fed. R Evid. 801(c)(2). The government has no idea for what purpose these 

items might be offered, and thus no basis at this juncture for asserting that they are 

inadmissible hearsay. For instance, out-of-court statements offered to prove their effect on 

the listener, or the simple fact that they were made without regard to their truth, are both 

admissible. If the defense attempts to introduce these items at trial and the government at 

that point has reason to believe they are being offered to prove the truth of matters asserted 

therein, it can raise a hearsay objection at that time, and the Court can make the necessary 

determination. 

Self-Serving Hearsay Statements (Doc. 218)

The government asks this court to preclude Dr. Warren from “introducing his own 

self-serving, out-of-court statements through any method” (Doc. 2018 at 1). But the 

government has not identified any particular evidence it is seeking to preclude; rather, this 

motion constitutes, in essence, a motion for the Court to apply the rules of evidence if and 

when the defendant attempts to introduce something that the government contends might 

be inadmissible. There is no reasonable way for the defendant to respond to, or the court 

to rule on, a motion preemptively seeking to apply existing rules that will apply anyway to 

unspecified evidence. Accordingly, the Court should deny the government’s motion, and 

rule on any objections the government makes to specific evidence at trial.

Selective Enforcement (Doc. 220)

The government argues that the defense must be precluded from offering any 
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evidence about selective enforcement because Federal Rule of Criminal Procedure 12 

requires a different claim (selective prosecution) to be raised before trial, and because “any 

evidence or argument going to selective enforcement is entirely irrelevant.” (Doc. 220 at 

2). As an initial matter, the difference between selective prosecution, which is covered by 

Rule 12, and selective enforcement, which is not, is important here. Selective prosecution 

claims implicate decisions by prosecutors—government attorneys. The motivations of 

those attorneys do not have any bearing on the actual evidence presented at trial. But where 

the claim is selective enforcement, the challenged actions are those of testifying law 

enforcement officers, and their motivations can influence the evidence in a case. 

Accordingly, a rule for selective prosecution does not govern selective enforcement.

The government’s motion is vague as to what exactly it is seeking to preclude. Dr. 

Warren does not intend to ask the jury to consider whether the government selectively 

enforced the law against Dr. Warren in violation of his equal protection rights; as the 

government correctly asserts, this Court has already ruled on that issue (although its ruling 

did not specify whether it found the claim not proven on the discriminatory intent prong or 

the discriminatory effect prong).

Evidence regarding Border Patrol agents’ bias against Dr. Warren and No More 

Deaths is, however, deeply relevant to their credibility as witnesses against Dr. Warren, 

both in their bias and motivation to testify and write reports untruthfully and in their 

assumptions about No More Deaths volunteers’ motivations. Dr. Warren is entitled to 

present to the jury evidence about what reasons other than alleged criminal behavior the 

Border Patrol may have had for its various actions against him and the assumptions and 

conclusions the agents drew about the things they observed. 

Dated this 24th day of May, 2019

KUYKENDALL & ASSOCIATES

By /s/ Amy P. Knight________

Gregory J. Kuykendall
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Amy P. Knight

531 S Convent Avenue

Tucson, AZ 85701

Attorneys for Defendant Scott 

Daniel Warren

CERTIFICATE OF SERVICE

I certify that on May 24, 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