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ELIZABETH A. STRANGE

First Assistant 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, Defendant.

18-CR-223-TUC-RCC (BPV)

GOVERNMENT’S RESPONSE TO 

DEFENDANT’S AMENDED MOTION 

TO DISMISS COUNTS 2 AND 3

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

responds to the defendant’s Amended Motion to Dismiss Counts 2 and 3 of the Indictment 

pursuant to the Religious Freedom Restoration Act (RFRA) (Doc. 45), and respectfully 

requests that the Court deny the defendant the relief he seeks because (1) the motion is 

procedurally improper because it relies on disputed facts, (2) the defendant cannot establish 

a prima facie case, and (3) the government has chosen the least restrictive means to fulfill 

its compelling interests.

///
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I. Background

a. Factual Summary1

On January 17, 2018, in Ajo, Arizona, agents conducting surveillance on a building 

known as the “Barn” observed the defendant and two men standing outside the Barn and 

appearing to engage in conversation. Although the agents could not hear the conversation 

between the defendant and the two men, it appeared to the agents that the defendant was 

giving directions to the two men based on the defendant’s hand gestures and the direction 

the men were facing. Shortly thereafter, the agents approached the Barn on foot where 

they encountered the defendant, who told the agents to leave. The agents then conducted 

a knock-and-talk at the Barn. There they found the two men previously seen speaking with 

the defendant, and identified them as Kristian Perez-Villanueva and Jose Arnaldo SacariaGoday. The agents also determined that Perez-Villanueva and Sacaria-Goday illegally 

present in the United States. The agents subsequently arrested the defendant on suspicion 

of violations of 8 U.S.C. § 1324, and detained Perez-Villanueva and Sacaria-Goday as 

material witnesses.

Agents later obtained a search warrant for the Barn, which was executed on January 

22, 2018. During their search of the Barn, agents found two hand-drawn maps that 

identified Border Patrol checkpoints to the north and south of Ajo, as well as signs in 

 1 The government disputes the facts as stated by the defendant, including but not limited to

facts related to the “humanitarian crisis,” the defendant’s characterization of his “aid 

work,” and the defendant’s summary and characterization of the testimony by the 

material witnesses in this case. See Doc. 45 at 2-5.
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English and Spanish posted in a common area advising the occupants of the Barn how to 

respond if immigration authorities came to the Barn.

During their video depositions on March 7, 2018, Perez-Villanueva and SacariaGoday testified that they crossed into the United States from Mexico on January 13, 2018, 

and walked from the international border to Ajo, Arizona, on January 14, 2018. They 

further testified that they stopped at two gas stations in the United States prior to reaching 

the Barn. They further testified that, at the second gas station, a few hours before they 

arrived at the Barn, they bought burritos and PowerAde with money given to them by a 

stranger. Sacaria-Goday testified that he did not finish his burrito because he did not like 

the beans; Perez-Villanueva finished what was left of Sacaria-Goday’s burrito.

Perez-Villanueva and Sacaria-Goday testified that they got a ride in a van from a 

stranger to the Barn. Once at the Barn, they hid in the bathroom until they were found by 

the defendant. They also testified that the defendant allowed them to stay at the Barn from 

January 14, 2018, until their arrest on January 17, 2018. During that time, he gave them a 

place to sleep, a change of clothes, food and water. During that time, he did not ask if they 

needed medical attention and did not provide medical attention of any kind.

Perez-Villanueva also testified that he carried a cell phone with him from the time 

he crossed into the United States from Mexico on January 13, 2018, until his arrest on 

January 17, 2018. A consensual forensic search of that cell phone revealed, among other 

things, photographs by taken Perez-Villanueva and Sacaria-Goday on January 14, 2018, at 

the two gas stations, along with other photographs taken during their stay at the Barn. 

Perez-Villanueva and Sacaria-Goday identified these photographs during their video 
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depositions. Agents also recovered from Perez-Villanueva’s cell phone text 

communications with a phone number associated with Ireneo Mujica related to arranging 

transportation within the United States on January 14, 2018.

b. Procedural Posture

The government charged the defendant by complaint on January 18, 2018, with 

harboring Perez-Villanueva and Sacaria-Goday in violation of 8 U.S.C. 

§ 1324(a)(1)(A)(iii). Doc. 1. On February 14, 2018, a grand jury charged the defendant in 

a three-count Indictment with conspiracy to transport or harbor illegal aliens in violation 

of 8 U.S.C. §§ 1324(a)(1)(A)(v)(I), (a)(1)(A)(ii) and (a)(1)(A)(iii) (Count One), and 

harboring illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) (Counts Two and 

Three). Doc. 26. Trial is currently set to begin the week of June 11, 2018. Doc. 38.

II. Summary of Law

a. Statutory Background

In 1990, the United States Supreme Court upheld the state of Oregon’s refusal to 

give unemployment benefits to two Native Americans fired from their jobs after testing 

positive for using peyote, an illegal substance, in a religious ceremony. Employment 

Division v. Smith, 494 U.S. 872 (1990). In response, Congress passed the Religious 

Freedom Restoration Act (RFRA) of 1993, codified as 42 U.S.C. § 2000bb, to reinstate the 

“Sherbert Test,” which mandated that strict scrutiny be used when determining if the Free 

Exercise Clause of the First Amendment has been violated. See Holt v. Hobbs, 135 S. Ct. 

853, 860 (2015). While RFRA as written applied to the states as well as the federal 

government, the Supreme Court held in City of Boerne v. Flores, 521 U.S. 507 (1997), that 
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RFRA exceeded Congress’s power under the Enforcement Clause of the Fourteenth 

Amendment and invalidated RFRA as it applied to the states. In response, Congress passed 

the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000, codified as 

42 U.S.C. § 2000cc, which mandates that strict scrutiny apply to Free Exercise Clause

claims made by prisoners and prison regulations, and to Free Exercise Clause related to 

laws regulating land use of properties in the state and federal contexts. See Holt v. Hobbs, 

135 S. Ct. 853, 860 (2015).

b. Prima Facie Case

To establish a prima facie RFRA claim, a defendant must present evidence that (1) 

the defendant’s activities were an “exercise of religion,” and (2) the government action 

“substantially burdened” the defendant’s exercise of religion. 42 U.S.C. § 2000bb-1(a); 

Navajo Nation v. United States Forest Serv., 535 F.3d 1058, 1068-69 (9th Cir. 2008). To 

do this he must first articulate the scope of his beliefs, and then show that his beliefs are 

religious in nature, that they are sincerely held, and that the exercise of his sincerely held 

beliefs is substantially burdened by a government action. United States v. Zimmerman, 

514 F.3d 851, 853 (9th Cir. 2007). 

The sincerity and full scope of a claimant’s asserted beliefs should be scrutinized. 

See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779 (2014); United States v. 

Bauer, 84 F.3d 1549, 1559 (9th Cir. 1996); Zimmerman, 514 F.3d at 854; Guam v. 

Guerrero, 290 F.3d 1210, 1222-23 (9th Cir. 2002). However, the reasonableness or 

validity of a claimant’s beliefs may not be subject to scrutiny. See Hobby Lobby Stores, 

Inc., 134 S. Ct. at 2779; see also Bauer, 84 F.3d at 1559. “Exercise of religion” is defined 
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as “any exercise of religion, whether or not compelled by, or central to, a system of 

religious belief.” 42 U.S.C. § 2000bb-2(4) (incorporating by reference 42 U.S.C. 

§ 2000cc-5(7)(A)).

To establish that a government action constitutes a substantial burden on a 

claimant’s sincerely held religious belief, a claimant must show either (1) that he or she 

was forced to choose between following his or her sincerely held religious beliefs or 

receiving government benefit, or (2) that he or she was coerced to act contrary to his or her

sincerely held religious beliefs by the threat of criminal or civil sanctions. Snoqualmie 

Indian Tribe v. F.E.R.C., 545 F.3d 1207, 1214 (9th Cir. 2008) (quoting Navajo Nation, 535 

F.3d at 1070).

c. Strict Scrutiny

Only once a defendant has established both elements does the burden shift to the 

government to demonstrate that the “substantial burden” posed by the government action 

is (1) in furtherance of a compelling governmental interest and (2) the least restrictive 

means of furthering that compelling governmental interest. Navajo Nation, 535 F.3d at

1068 (citing 42 U.S.C. § 2000bb–1(b)).

To demonstrate that the government’s action is in furtherance of a compelling 

interest, the government must demonstrate that the “application of the challenged law [to]

the particular claimant whose sincere exercise of religion is being substantially burdened” 

furthers a compelling interest. Gonzales v. O Centro Espirita Beneficente Uniao do 

Vegetal, 546 U.S. 418, 432 (2006). Put another way, the government’s action is in 

furtherance of a compelling interest if demanding “unbending compliance” advances its 
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stated interest to a “meaningful degree.” United States v. Christie, 825 F.3d 1048, 1056

(9th Cir. 2016). In determining whether an interest is compelling as to a particular 

claimant, courts look to whether analogous exceptions to the challenged statute already 

exist and to the particularity with which the interest is alleged. See Hobby Lobby Stores, 

Inc., 134 S. Ct. at 2779; O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. at 432.

If the government identifies a compelling interest with particularity, then it must 

still demonstrate that no less restrictive means of furthering its interest exists. 42 U.S.C. 

§ 2000bb-1(b)(2). Stated another way, the government must demonstrate that it cannot 

accommodate the claimant’s belief more without furthering its interest less. Christie, 825 

F.3d at 1056. To do this, the government must demonstrate that its preferred means are 

reasonable and that any other proffered options are either not less restrictive or not 

plausible. Id. at 1061. 

d. Motions to Dismiss Criminal Charges

Federal Rule of Criminal Procedure 12(b)(2) provides “[a] party may raise by 

pretrial motion any defense, objection, or request that the court can determine without a 

trial of the general issue.” Fed. R. Crim. P. 12(b)(2) (2006). A criminal charge may be 

dismissed if it is subject to a defense that may be decided solely as a matter of law. See 

United States v. Tawahongva, 456 F.Supp.2d 1120, 1125 (D. Ariz. September 11, 2006). 

While a court must evaluate the evidence in the light most favorable to the government 

when considering a motion to dismiss criminal charges, see United States v. Ubaldo, 859 

F.3d 690, 700 (9th Cir. 2017), a court must deny any motion to dismiss that requires 

resolution of disputed facts, see Tawahongva, 456 F.Supp.2d at 1125.
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III. Summary of Argument

As an initial matter, the Court should deny the defendant’s motion because it rests 

on disputed factual issues, including the characterization of potential testimony in this case. 

As to his prima facie case, the defendant asserts that he believes he is “morally, 

ethically, and spiritually bound” to assist people “in need of basic necessities,” to provide 

“life-saving care to” people “in distress,” and to help exhausted, hungry and injured 

strangers. Doc. 45 at 3, 8, 9 at n. 5, 12. He argues that his prosecution in this matter 

substantially burdens this belief. Doc. 45 at 8, 13. However, the prosecution in this matter 

does not substantially burden the defendant’s stated beliefs since his beliefs are not in 

conflict with the criminal charges in this case. He is not required by his beliefs to aid in 

the evasion of law enforcement. Nor were the people associated with these charges “in 

distress.”

As to the government’s compelling interest, the defendant argues that the 

government cannot prove a compelling interest in prosecuting him for these offenses since 

it cannot have a compelling interest in allowing the two illegal aliens to “remain[ ]

dehydrated, hypothermic or famished”; any interest it does have in prosecuting this case is 

necessarily incremental and marginal; the defendant’s conduct did not interfere with the 

aliens’ apprehension; and there are existing exceptions to the statutory scheme. Id. at 17-

20. Contrary to the defendant’s argument, the government does have a compelling interest 

in deterring the defendant’s harboring of illegal aliens, and in deterring the coordination of 

efforts to harbor aliens and evade law enforcement.
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Finally, as to the availability of less restrictive means, the defendant argues that the 

government could “conduct surveillance to locate migrants who are receiving temporary 

emergency shelter,” “obtain search warrants for a property if they have probable cause to 

believe there are undocumented individuals inside,” or “wait for the migrants to leave” the 

temporary emergency shelter. Id. at 22. These suggested alternatives miss the point, 

because they do not prevent evasion of law enforcement. They also are implausible and 

impracticable, and no less restrictive means exist to advance the government’s compelling 

interests.

IV. Discussion

a. The Motion to Dismiss because it rests on disputed factual issues.

The defendant’s RFRA claim relies on disputed facts, including the defendant’s 

characterization of his actions in this case, and the defendant’s summary and 

characterization of the testimony by the material witnesses in this case. See Doc. 45 at 2-

5. The defendant has not submitted any declarations or other evidence to buttress his mere 

assertions. As such, the Court should deny the Motion to Dismiss in its entirety. See 

Fed.R.Crim.P. 12(b)(2) (2006); Tawahongva, 456 F.Supp.2d at 1125.

b. The defendant cannot show that his beliefs are substantially burdened 

by prosecution for violations of 8 U.S.C. § 1324.

The defendant asserts that he believes he is required to render aid to people who are 

in distress, including people who are exhausted, hungry or injured. Doc. 45 at 3, 8, 9 at n.

5, 12. However, taking the evidence in the light most favorable to the government, the 

people at issue in this case (Perez-Villanueva and Sacaria-Goday) were not exhausted, 
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hungry or injured when they arrived at the Barn on January 14, 2018. In addition, the 

defendant is charged with harboring “to avoid [Perez-Villanueva’s and Sacaria-Goday’s] 

detention by immigration authorities[.]” Nothing about the defendant’s proffered beliefs 

requires him to choose between his beliefs and following the law. Therefore, the 

defendant’s exercise of his proffered beliefs is not substantially burdened by his 

prosecution for violations of 8 U.S.C. § 1324. See Navajo Nation, 535 F.3d at 1070 (“A

‘substantial burden’ is imposed only when individuals are forced to choose between 

following the tenets of their religion and receiving a governmental benefit...or coerced to 

act contrary to their religious beliefs by the threat of civil or criminal sanctions[.]”); United 

States v. Aguilar, 883 F.2d 662, 694-695 (1989) (adopting finding in United States v. 

Merkt, 794 F.2d 950 (5th Cir. 1986), that nothing about claimants’ beliefs required them

to participate in the sanctuary movement); Oklevueha Native American Church of Hawaii 

v. Lynch, 828 F.3d 1012, 1016 (9th Cir. 2016) (finding no substantial burden where 

claimants could substitute legal substances for marijuana consistent with beliefs). The lack 

of conflict between the defendant’s beliefs and the laws he is accused of violating on the 

facts of this case is further highlighted by his failure to assert that his prosecution for 

conspiring to harbor Perez-Villanueva and Sacaria-Goday substantially burdens the 

exercise of his proffered beliefs. See Doc. 45.

Relying on Wisconsin v. Yoder, 406 U.S. 205 (1972), and Gonzales v. O Centro 

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006), the defendant argues that the 

government has substantially burdened the exercise of his proffered beliefs simply by 

bringing criminal charges against him. Doc. 45 at 13. The defendant’s argument is not 
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supported by either case. Yoder and O Centro are easily distinguishable from the facts in 

this case, because in both cases there was an unavoidable conflict between the claimants’ 

sincerely held religious beliefs and the criminal statutes at issue. See Yoder, 406 U.S. at 

218 (the imposition of criminal sanctions forced the claimants “to perform acts undeniably 

at odds with fundamental tenets of their religious beliefs”); O Centro Espirita Beneficiente 

Uniao Do Vegetal v. Ashcroft, 282 F. Supp. 2d 1236, 1240 (D.N.M. 2002), aff’d 389 F.3d 

973 (10th Cir. 2004) (en banc), aff’d and remanded, 546 U.S. 418 (small religious sect 

imported and used a hallucinogenic tea in violation of the Controlled Substances Act 

because consumption of the tea “played a central role in the religious ceremonies” of the 

sect). 

That a substantial burden only exists when there is a conflict between the exercise 

of a religious belief and the enforcement of a criminal statute is illustrated by Guam v. 

Guerrero, 290 F.3d 1210 (9th Cir. 2002), and United States v. Bauer, 84 F.3d 1549 (9th 

Cir. 1996). In both cases, Rastafarian defendants were charged with various violations of 

the Controlled Substances Act related to marijuana. In both cases, the Ninth Circuit held 

that, while “marijuana use is sacramental in the practice of” Rastafarianism, 290 F.3d at 

1213, only prosecution for simple possession of marijuana imposes a substantial burden on 

the exercise of defendants’ Rastafarian beliefs because defendants’ Rastafarianism does 

not require adherents to possess with intent to distribute, conspire to distribute, import, or 

launder money in relation to marijuana. Guerrero at 1222-23; Bauer, 84 F.3d at 1559. As 

such, the government can prosecute a Rastafarian defendant for any marijuana related 

violation of the Controlled Substances Act other than simple possession consistent with the 
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constraints of RFRA because the exercise of Rastafarian beliefs is not in direct conflict 

with these portions of the Controlled Substances Act. See also Oklevueha Native American 

Church of Hawaii, 828 F.3d at 1016 (finding no substantial burden where claimants could 

substitute legal substances for marijuana consistent with beliefs).

In this case, like the defendants in Guerrero and Bauer and unlike those in Yoder

and O Centro, the offenses alleged the Indictment are not in conflict with the defendant’s 

exercise of his proffered beliefs. The defendant’s proffered beliefs do not require him to

take actions meant “to avoid [Perez-Villanueva’s and Sacaria-Goday’s] detention by

immigration authorities,” and they do not require him to provide aid to people who are not 

exhausted, hungry or injured. Accordingly, the government’s decision to prosecute the 

defendant for the offenses alleged in the Indictment does not impose a substantial burden 

on the defendant’s exercise of his proffered beliefs.

c. The United States has chosen the least restrictive means to fulfill its 

compelling interests.

i. The government’s prosecution of the defendant for the offenses 

alleged in the Indictment furthers its compelling interest in 

deterring defendant’s coordination of efforts to and the harboring 

of illegal aliens to avoid detention by immigration authorities.

As part of its overall efforts to maintain the security of its borders and regulate 

immigration, a compelling interest in and of itself, Congress chose to impose criminal 

sanctions on those who harbor and those who coordinate efforts to harbor illegal aliens, in 

addition to imposing criminal sanctions on those aliens who enter the United States without 

authorization. 8 U.S.C. §§ 1324-1326; see also Aguilar, 883 F.2d at 695 (“The proposition 

that the government has a compelling interest in regulating its border hardly needs 
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testimonial documentation.”). These criminal sanctions serve to deter illegal entry and 

presence by aliens, and attempts to further their entry and presence by others within the 

United States. The government’s prosecution of the defendant in this case furthers this 

compelling interest to a meaningful degree. 

Taking the evidence in the light most favorable to the government, the defendant 

coordinated with others to further Perez-Villanueva’s and Sacaria-Goday’s illegal presence 

in the United States by helping them avoid detection by law enforcement authorities, and 

providing them with supplies and directions. The defendant’s actions in this case are part 

of his ongoing participation with various self-described humanitarian groups operating in 

southern Arizona, including No More Deaths. Doc. 45 at 2. These groups help aliens 

illegally enter the United States, see http://forms.nomoredeaths.org/about-no-more-deaths/

(last accessed on April 29, 2018), and the Barn was an integral part of their mission, see 

Doc. 45 at 3. As such, there is a substantial risk that, left unaddressed, the defendant’s 

actions would help illegal aliens reach the interior of the United States and avoid detection 

by law enforcement. See Christie, 825 F.3d at 1057 (compelling interest established where

the government showed a substantial risk of diversion of marijuana from sacramental use). 

The defendant advances several arguments to refute the government’s clearly 

compelling interest. These arguments are meritless. First, the defendant argues that the 

government cannot demonstrate a compelling interest in prosecuting this case, because it 

cannot have a compelling interest in allowing the two illegal aliens to “remain[ ]

dehydrated, hypothermic or famished.” Doc. 45 at 17-18. This argument fails, because, 

as discussed above, the evidence is that Perez-Villanueva and Sacaria-Goday were not 
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dehydrated, hypothermic or famished at any point during their trip, let alone when they 

arrived at the Barn and were taken in by the defendant. In addition, even if the men were 

dehydrated, hypothermic or famished, the government has a compelling interest in 

deterring 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. 

Second, the defendant argues that any interest the government does have in 

apprehending Perez-Villanueva and Sacaria-Goday is necessarily incremental and 

marginal. Doc. 45 at 18-19. There are two problems with this argument. First, it is 

misplaced in that it focuses on the government’s interest in apprehending Perez-Villanueva 

and Sacaria-Goday rather than the government’s interest in deterring the defendant’s 

actions, which include the evasion of lawful authorities. Second, the apprehension data 

cited by the defendant demonstrates, rather than undercuts, the government’s commitment 

to furthering its interests in maintaining its borders and regulating immigration through 

enforcement actions. See Doc. 45 at 18. To argue otherwise would be nonsensical since 

it would create an inverse relationship between the government’s efforts to achieve uniform 

enforcement of its immigration policy and its interest in apprehending those who criminally 

violate it. See Aguilar, 883 F.2d at 694 n. 31.

Third, the defendant argues that his conduct did not interfere with the aliens’ 

apprehension to a meaningful degree because the government apprehended PerezVillanueva and Sacaria-Goday. Doc. 45 at 19. This argument fails on the facts of this 

case, since the defendant took actions to avoid detention of Perez-Villanueva and Sacaria-
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Goday. In addition, the compelling interest analysis focuses on the government’s interest 

in not “immunizing the [claimant’s] past conduct from official sanction” and not 

“nullifying, in whole or in part, his continuing duty to comply with a generally applicable 

command.” Christie, 825 F.3d at 1056. The apprehension of Perez-Villanueva and 

Sacaria-Goday does nothing to address the government’s ongoing compelling interest in 

deterring the defendant from engaging in similar conduct in the future.

Finally, the defendant argues that an exemption codified at 8 U.S.C. § 1324(a)(1)(C) 

fatally undercuts the government’s interest because it concerns conduct analogous to the 

defendant’s in this case. Doc. 45 at 20-21, 24-25. The defendant’s conduct in this case is 

not analogous to the conduct covered by § 1324(a)(1)(C). Section 1324(a)(1)(C) only 

covers actions by a religious denomination relating to illegal aliens (1) already present in 

the United States (2) who are volunteer ministers or missionaries and (3) have been 

members of their respective denominations for at least a year. The illegal aliens in this 

case do not begin to fit within this narrow exception because they recently entered the 

United States, and they entered the United States for purely secular reasons. This is an 

important distinction, since it addresses the motivation of both the religious denomination 

and the illegal alien in engaging in the conduct, as well as character traits of the illegal 

aliens that set them apart from other illegal aliens. See Christie, 825 F.3d at 1059 (rejecting 

church’s argument that preexisting exemptions to the Controlled Substances act for peyote 

and a hallucinogenic tea fatally undercut compelling interest, because prior claimants were 

“materially distinguishable” from the church).
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ii. The prosecution of the defendant in this matter is a reasonable 

method to advance the government’s compelling interests, and no 

less restrictive means exist.

The prosecution in this case is a reasonable method for the government to advance 

its compelling interests in deterring illegal entry and presence by aliens, and attempts to 

further their entry and presence by others within the United States. The burden then falls 

to the defendant to identify less restrictive and practicable means available to the 

government to further its interests and to the government to address those means. See 

Christie, 825 F.3d at 1061.

The defendant argues as an initial matter that, having apprehended Perez-Villanueva 

and Sacaria-Goday, the government could simply dismiss the charges against him. Doc. 

45 at 22. As discussed above, the apprehension of Perez-Villanueva and Sacaria-Goday

without prosecution of the defendant does nothing to address the government’s ongoing 

compelling interest in deterring the defendant from engaging in similar conduct in the 

future.

The defendant next argues that the government could conduct continualsurveillance 

on locations like the Barn, and then either obtain search warrants for those locations or 

apprehend any illegal aliens after they leave the locations. Doc. 45 at 21-22. But this 

misses the point: the crux of this case is the defendant’s activity in assisting with and the 

coordination of the evasion of law enforcement. That activity is not confined to a particular 

location. Indeed, it is not confined to a physical location at all, for information about law 

enforcement locations can be conveyed by conversation (as observed in this case) and 

conversation may occur by phone, text message, electronic mail, and other means. 
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Consequently, these alternatives are impracticable because they would require constant 

surveillance of a person and his communications to determine what locations and methods 

are being used to harbor illegal aliens. That will consume a not insignificant amount of 

agency resources. Cost can be “an important factor in the least-restrictive-means analysis,” 

Hobby Lobby Stores, Inc., 134 S. Ct. at 2781, and in this case, it weighs in the government’s 

favor. In addition, there is nothing “less restrictive” about constant surveillance of a 

person, especially if that person is aware of the surveillance.

In addition, these alternatives are not plausible because there is no reason to believe 

that the defendant or his associates would accept them. Specifically, the defendant claims 

that his conduct in this case was on behalf of and in coordination with No More Deaths. 

No More Deaths has already strongly and publicly rejected much more limited surveillance 

of its operations. See http://forms.nomoredeaths.org/border-patrol-raids-humanitarianaid-camp-in-targeted-attack/ (last accessed on April 29, 2018). There is no reason to 

believe that the defendant or No More Deaths would now accept near constant surveillance 

of its operations. See Christie, 825 F.3d at 1063-64 (holding that claimants’ offer to submit 

to regulation not plausible in light of claimants’ history of negligent behavior that created 

substantial risk of diversion of marijuana from sacramental use).

V. Conclusion

The government respectfully requests that the Court deny the defendant’s Motion 

to Dismiss in its entirety. As an initial matter, the defendant’s motion is procedurally 

improper because it relies on disputed issues of fact. In addition, the defendant has failed 

to establish a prima facie case because the government’s actions do not substantially 
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burden his proffered beliefs since there is no conflict between the defendant’s proffered 

beliefs and the criminal charges in this case. Finally, even if the Court finds that the 

prosecution in this matter constitutes a substantial burden on the defendant’s proffered 

beliefs, the government has a compelling interest in deterring the defendant’s harboring of 

illegal aliens, and in deterring the coordination of efforts to harbor aliens and evade law 

enforcement, and no less restrictive means are available to the government to further its 

compelling interests.

Respectfully submitted this 30th day of April, 2018.

ELIZABETH A. STRANGE

First Assistant 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 30th day of April, 2018, to:

All ECF participants