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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Scott Daniel Warren,

Defendant. _________________________________

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NO. CR 18-00223-TUC-RCC(BPV)

ORDER RE DEFENDANT’S MOTION

FOR DISCOVERY INTO SELECTIVE

ENFORCEMENT

Defendant Scott Daniel Warren filed a Motion for Discovery into Selective

Enforcement [Doc. 113] requesting production in seven enumerated categories. The

Government opposes said Motion.

The current administration, under the direction of the President, the Secretary of

Homeland Security, and the Department of Justice, has instituted a zero tolerance policy on

illegal immigration. Upon information and belief, this Court believes the local prosecuting

agency (the U.S. Attorney) has to report on a daily basis the prosecutions initiated within the

District of Arizona.

The Government accomplishes its goals for the prosecution of immigration offenses

by the following Court processes:

1) OSL at 1:30 p.m. for petty offenses and petty/felony prosecutions;

2) Further proceedings at 9:30 a.m. for petty/misdemeanor/felony prosecutions

for jail sweeps, Port of Entry, and marijuana backpackers;

3) Felony prosecutions at 2:00 p.m. for re-entry, transporting, and harboring of

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illegal aliens (undocumented migrants/aliens: UDA’s).

As a general rule, in transporting or harboring cases, the U.S. Attorney prosecutes a

person whether the conduct is for profit or not and without regard to color (ethnicity). The

punishment for illegal re-entry is 2, 10, or 20 years, depending on the accused’s criminal

history. The Government has recently taken up the prosecution of persons who have made

false statements in the acquisition of citizenship or lawful permanent resident status. The

prosecution climate for individuals engaged in any of these activities has become very

aggressive by the Government and unpleasant for the targets of all prosecutions.

No More Deaths and similar organizations have been operating in Southern Arizona

for many years in an uneasy status. Recently, the Department of Homeland Security, through

the U.S. Border Patrol, and the Department of the Interior, through the U.S. Forest Service,

have initiated prosecutions of No More Deaths members for civil ecological infractions on

federal lands and of Defendants for transporting/harboring illegal aliens. The conduct being

targeted is not induced by Government agents, but rather the voluntary actions of the persons

subsequently subjected to prosecution. None of these persons are being prosecuted for any

First Amendment rights of speech, association, or assembly.

The previously existing period of tolerance seems to have ended. The Government

is now prosecuting No More Deaths members for all infractions of the law wherein the

Government believes it has probable cause. 

In this case, Border Patrol was notified about the suspected illegal presence of

undocumented aliens in the Ajo area. Border Patrol had, prior to this date, suspected The

Barn as a staging area for volunteers and UDA’s. A decision to surveil The Barn was made

the day after Border Patrol received notice of a suspected illegal presence in the area.

On January 17, 2018, at 8:30 a.m., No More Deaths released into the internet, the

press, and Border Patrol a video news release criticizing Border Patrol agents for vandalizing

water distribution sites. By 10:34 a.m. of the same day, Border Patrol transmitted an email

update as a For Your Information (FYI) on the No More Deaths video. No instructions,

orders, or suggestions went out to any recipients of the email.

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At 2:00 p.m. on January 17, 2018, two agents set up surveillance of The Barn in

search of the two reported undocumented aliens. During the surveillance, a decision was

made that if there was an arrest made based upon probable cause, the prosecution would be

done by the U.S. Attorney, through either Border Patrol or Homeland Security Investigations

(HSI). The case would therefore be categorized as either reactive or investigative.

After the arrest of Defendant Warren and two undocumented aliens, the U.S. Attorney

took over prosecution of the case, as what appeared to be a reactive case, presumably on the

theory that Border Patrol did the work so they should get the prosecution responsibility. 

The Defendant asserts, however, that the decision to prosecute him was based upon

No More Death’s release of the video critical of the Border Patrol. Consequently, the

Defendant asserts the surveillance agents must have been directed to arrest the suspected

Barn migrants and Defendant Warren.

This suspicion should be explored to determine whether the Defendant’s assumption

is a deliberate or coincidental Government action.

IT IS THEREFORE ORDERED that the Government disclose any emails or texts

sent to the two agents surveilling The Barn from 8:00 a.m. until these two agents went off

duty on January 17, 2018.

DATED this 7th day of November, 2018.

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