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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 REPLY IN SUPPORT 

OF MOTION TO PRECLUDE 

IRRELEVANT EVIDENCE OF 

CONSPIRACY

The government’s response further demonstrates why this Court must restrict the 

evidence to only evidence that is legally relevant to the specific crime with which it has 

charged Dr. Warren. The government repeatedly attempts to blur the boundaries around the 

crime it has chosen to charge—harboring—by insisting, without explanation, that a range of 

unrelated conduct involving migrants is relevant, all the while misrepresenting the facts in 

the record and ignoring crucial governing legal principles. This court must not permit the 

government to inundate the jury with evidence about all kinds of other immigration-related 

happenings it claims are somehow vaguely related; rather, the court must restrict the 

evidence so the jury can properly and fairly evaluate Dr. Warren’s conduct in this particular 

instance, based on what he knew at the time.

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1. The Government Ignores the Crucial Distinction Between the Migrants’ Intentions 

and Dr. Warren’s Intentions.

Harboring requires proof that the defendant intended to violate the law. Unlike certain 

other immigration crimes, it does not depend on the intentions of the people alleged to have 

been harbored. The government never disputes this, nor can it. Thus, the migrants’ intentions 

are legally irrelevant. 

Nonetheless, the government argues that the migrants’ journey prior to their arrival at 

the Barn is relevant because it proves the migrants’ intentions. Gov. Br., Doc. 319, at 3. The 

government declares that “any evidence that the illegal aliens wanted to travel north, and 

presumably escape detection by law enforcement, is relevant to show the defendant’s intent 

to violate the law.” Id. And it claims that “[i]f the illegal aliens in this case wanted to be 

harbored, concealed, or shielded from detection, the defendant obliged and did precisely 

that.” Id. But it never says how, in light of the fact that a person can “harbor” a migrant no 

matter what the migrant’s intentions, this fact could possibly be legally relevant to the 

charges it has brought against Dr. Warren. It fails to identify any link. It provides no 

authority or even any argument, rational or otherwise, for this claim of relevance. Simply 

stating several times that it is relevant without explanation does not satisfy the strictures of 

Rule 401. 

Indeed, the government itself agrees that what the pre-arrival journey evidence proves is 

“the aliens’. . . motive to continue further into the United States.” Gov. Br. at 3. But the 

migrants’ “illegal journey” and “their motive” are not facts “of consequence in determining 

the action,” Fed. R. Evid. 401. The government had both of these migrants in custody for 

weeks; it had every opportunity to charge them with crimes based on their actions and 

intentions if it so desired. Having decided to charge only Dr. Warren, it must limit itself to 

discussion and proof of his intentions.

2. The Principle of “Intrinsic Evidence” Does Not Create Relevance.

Perhaps realizing that it cannot articulate any theory for how, specifically, its evidence 

is legally relevant to harboring, the government falls back on its need to “offer a coherent 

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and comprehensive story regarding the commission of the crime.” Gov. Br. at 2. It claims 

that what the migrants did before arriving at the Barn should be admitted because it is 

“intrinsic evidence,” which it must present to tell a coherent story about how Dr. Warren

allegedly committed a crime. This is a misunderstanding of elementary evidentiary concepts.

That doctrine has no application here, and the Court must instead remain guided by Rules 

401, 402, and 403—which do not permit the admission of evidence of things a defendant

did not know to prove his intentions.

The intrinsic evidence doctrine does not create relevance where none otherwise exists. 

Rather, it is an exception to Rule 404(b)’s prohibition on other-act evidence. See United

States v. Vizcarra-Martinez, 66 F.4d 1006, 1013 (9th Cir. 1995) (referring to the 

government’s need “to explain either the circumstances under which particular evidence was 

obtained or the events surrounding the commission of the crime” as an “exception to Rule 

404(b)”). It thus allows prosecutors to introduce evidence of a defendant’s other actions that 

were intertwined with the charged crime when they would otherwise potentially be excluded

as impermissible propensity evidence. It does not address the admission of evidence of 

events not involving the defendant, nor does it create a path to admission for evidence that 

is not otherwise already relevant. 404(b) evidence is, of course, relevant, United States v. 

Dorsey, 677 F.3d 944, 951 (9th Cir. 2012) (explaining that the Rule “limits the general 

admissibility of relevant evidence”); it is excluded for policy reasons. Thus, nothing about 

the intrinsic evidence doctrine contemplates the admission of evidence that has no legal 

relevance to the charged crime.

Because it is rooted in Rule 404(b), the concept of “intrinsic evidence” obviously refers 

only to actions of the defendant. The term “intrinsic” appears in the advisory committee 

notes to the 1991 amendment to Fed. R. Evid. 404, where it is used to distinguish the 

defendant’s other crimes, wrongs, or acts that are excluded under Rule 404(b) (extrinsic 

evidence) from the defendant’s actions that are intertwined with the charged offense and 

must be admitted (intrinsic evidence); see also United States v. Anderson, 741 F.3d 938, 949 

(9th Cir. 2013) (cited in Gov. Br. at 2) (explaining that “’[o]ther act’ evidence that is 

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‘inextricably intertwined’ with a charged offense” is “exempt from the requirements of Rule 

404(b)”); Dorsey, 677 F.3d at 951 (“other act evidence [that] may be ‘inextricably 

intertwined’ with a charged crime” is “exempted from the requirements of Rule 404(b)”); 

Vizcarra-Martinez, 66 F.3d at 1012 (cited in Gov. Br. at 2) (“[W]hen it is clear that particular 

acts of the defendant are part of, and thus inextricably intertwined with, a single criminal 

transaction, we have generally held that the admission of evidence regarding those acts does 

not violate Rule 404(b).”) (emphasis added). In all of these cases, the government’s 

proffered evidence was specifically about the defendant—a series of mailings of drugs the 

defendant had made similar to the one he was charged with (Williams); an uncharged sale 

of unlicensed software in a copyright prosecution (Anderson); two witnesses who saw 

defendant with a gun prior to the charged shooting (Dorsey); possession of 

methamphetamine (Vizcarra-Martinez; excluded for lack of sufficient connection to 

charged crime). The doctrine simply does not apply to evidence of other people’s actions 

that are not already technically relevant.

Admitting all manner of evidence as “intrinsic” as the government urges not only 

finds no support in the law, but would allow prosecutors to introduce irrelevant evidence 

any time they think it might make a better story. A rule like that would entirely eclipse the 

relevance requirement. Indeed, the Ninth Circuit recognizes that prosecutors continue to be 

limited by relevance requirements, and where “the prosecution would encounter little 

difficulty in presenting the evidence relevant to its case against the defendant without it, the 

evidence is not admissible as being intrinsic to the charged offense.” Anderson, 741 F.3d at 

950. That is precisely the case here. Dr. Warren is charged with harboring, which requires 

the government to prove that he “concealed, harbored, or shielded from detection” the 

migrants with intent to violate the law—all of which the government can explain without 

difficulty beginning with Dr. Warren’s arrival at the Barn. If Dr. Warren were once again 

charged with conspiracy, or with transporting or aiding and abetting an illegal entry, perhaps 

the government would need to explain how the migrants got to the Barn to “present the 

evidence relevant to its case against the defendant;” but given that the only charge is 

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harboring, it simply has no need to present any background of actions that did not involve 

Dr. Warren.

The government complains that precluding this evidence “would force the jury to 

decide whether the defendant harbored, concealed, or shielded illegal aliens, and more 

specifically whether he had any intent to violate the law, without hearing evidence about 

how the illegal aliens got from the International Border to the Barn.” Gov. Br. at 2. That is 

exactly right—it would quite correctly force the jury to decide the case without hearing 

evidence of something that forms no part of the charges. If the government thinks it might 

have trouble telling a coherent story about harboring without this legally irrelevant evidence, 

then it should rethink the wisdom of this prosecution, rather than advocating the suspension 

of the rules of evidence.

3. No Evidence in the Record Ties Dr. Warren to These Migrants Prior to Their Arrival.

The government does not dispute the principle that facts unknown to the defendant 

cannot bear on his state of mind, nor that the evidence must be excluded if the government 

cannot prove by evidence that the defendant knew of the facts. Instead, it insists, without a 

single citation to any evidence in the record, that he knew. The facts actually in the record 

do not support this claim, and this court must not admit evidence based only on the 

government’s unsubstantiated say-so.

First, the government explains that “the defendant and other members of No More Deaths 

traveled to Irineo Mujica’s shelter” to “provide medical care, give water, and provide border 

crossers with items to assist them on their illegal journey into the United States.” Gov. Br. 

at 3-4. The government provides no factual citations for this, but is apparently referring to 

their distribution of “harm-reduction kits,” which the undisputed evidence shows are small 

ziplock bags that include information on accessing emergency services, a small vial of 

chlorine and gauze to treat drinking water, ointment, a bandage, and “a comb, which is for 

the spines of cacti, to take them, remove them.” RT 6/5/19 at 17-26. The government 

declares that these activities are “relevant to demonstrate the defendant’s role in planning 

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and preparing to harbor illegal aliens.” Gov. Br. at 4. But that does not follow, and the 

government provides no explanation for why it thinks otherwise. Providing migrants at a 

shelter in Mexico with water and minimal medical necessities is an entirely separate activity 

from concealing, harboring, or shielding from detection migrants who are in the United 

States, and engaging in the former in no way implies participation in the latter. This kind of 

intentional blurring of the boundaries of the conduct actually alleged to be criminal is 

precisely what this court must not allow. 

Next, the government asserts that the “illegal aliens did not find the Barn by chance—

they were led there.” Gov. Br. at 4. Again the government neglects to cite the record, perhaps 

because the evidence in fact shows the opposite. It was the prosecutor who elicited a 

volunteer’s testimony that they did not provide migrants at the shelter with maps or 

directions. RT 6/5/19 at 41. Moreover, Mr. Perez-Villanueva, the government’s own 

witness, testified that they were not “trying to get to a particular town or a particular place,” 

Perez-Villanueva Depo at 11, and the evidence showed that he used his cell phone to look 

up a location in Ajo—the Chevron station—but not to search for the Barn or its address, 

which he surely would have done if he had been told to go there. Trial Exh. 5. The 

government presented no evidence that either migrant or even Mr. Mujica was at the shelter 

that afternoon when the volunteers visited. In fact, the only reason the government gives for 

its leap to conclusions is that the migrants, one of whom had been seen at the shelter weeks 

earlier, crossed the border the same evening after the volunteers’ visit. But that is not 

probative of anything. For one thing, the recent visit of the volunteers provided a good reason 

for any migrants there who had plans to cross in the near future no matter what their 

immediate destination, as the volunteers had brought supplies of drinking water, which is 

obviously a basic necessity for survival but was often in short supply. And in any event, 

[c]oincidence in time is insufficient. . . . There must be a sufficient contextual or substantive 

connection between the proffered evidence and the alleged crime;” even a connection to the 

subject matter is not enough without actually tying the evidence to the specific charged 

crime. Vizcarra-Martinez, 66 F.3d at 1013 (excluding evidence that a defendant charged 

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with possession of hydriodic acid with knowledge that it would be used to manufacture 

methamphetamine possessed a small amount of methamphetamine at the time of his arrest). 

The proponent of evidence bears the burden of establishing its admissibility, United States 

v. Conners, 825 F.2d 1384, 1390 (9th Cir. 1987), and the government’s unsupported

speculation falls far short of meeting this burden.

Next the government insists that Dr. Warren must have known the migrants were 

coming because he called Susannah Brown, who had encountered one of the migrants 

several weeks before at the shelter, when they arrived, and “there is no evidence that she 

gave any medical guidance on this call.” Gov. Br. at 4 (emphasis original). As an initial 

matter, the government again fails to offer any explanation for how, specifically, this phone 

call suggests that Dr. Warren intended to violate the law. It makes only a vague suggestion 

that this was somehow nefarious, but utterly fails to connect the dots. It has never produced 

any evidence or even a specific conjecture of any other purpose for the call.

In any event, contrary to what the government implies, the uncontroverted evidence 

shows that the purpose of the call was arranging a medical evaluation. Nurse Brown testified

unrebutted that when Dr. Warren called her on January 14, he told her “that there were two 

young men in need of medical care at the Barn,” and that she “went the next day.” RT 6/4/19 

at 127. She described it as “a fairly short phone call where he was just, you know, requesting 

my assistance, you know, and was calling to see if I was available to do a medical 

assessment.” Id. at 128. The government never asked her about this call at all, and it is 

undisputed that she did indeed do an in-person medical assessment the following day. Dr. 

Warren also testified that his call to Nurse Brown on the 14th was to arrange a medical 

assessment. The government attempted to suggest that the call may have had some other 

purpose, but Dr. Warren confirmed multiple times that it did not:

Q: And after you spoke with them, your first call was to Susannah Brown?

A: Certainly my first call in terms of medical assessment was to Susannah 

Brown, yeah.

Q: Did you make another call before you called Nurse Brown?

A: I don’t know.

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Q: And so to clarify that, the first person that you remember calling the day 

the illegal aliens showed up to the Barn is the same person that went with you 

to the shelter where one of the illegal aliens were staying who crossed the same 

day?

A: Well, the first person that I called in terms of doing a medical assessment, 

yeah.

RT 6/6/19 at 104. Dr. Warren also testified, again uncontroverted, that he “had 

received no communication, no advance notice by any means and from no one else 

that two migrants would or had arrived at the Barn.” RT 6/6/19 at 169. Thus, the 

government’s vague suggestion, without any citation to evidence, that this phone call 

means the whole thing was planned in advance and therefore renders the migrants’ 

journey and the volunteers’ shelter work relevant to his intentions is utterly 

unfounded. The government cannot manufacture relevance by coming up with a 

theoretically possible story that has no factual support.

Finally, the government insists that the shelter visit and the migrants’ journey 

must be relevant because “the defendant admitted in his testimony at trial that he 

arrived within minutes of the illegal aliens arriving at the Barn.” Gov. Br. at 4. It 

provides no citation for this assertion, and Dr. Warren never said that—nor could he 

have. The migrants were there when he arrived, RT 6/6/19 at 33; id. at 104, so he was 

in no position to say how long they had been there. Indeed, Mr. Sacaria-Goday, the 

government’s witness and the only person who testified on this question, testified that 

they were there about 40 minutes before Dr. Warren arrived. Sacaria-Goday Depo at

47. And the uncontradicted evidence that was presented revealed Dr. Warren’s true 

reason for going to the Barn at that time: to receive and debrief a group of new 

volunteers who were conducting a search-and-recovery mission, and to cook dinner 

for them. RT 6/6/19 at 32. Other witnesses corroborated that Dr. Warren was indeed 

facilitating a volunteer group, they had indeed gone out on a difficult recovery 

mission, they were expecting dinner to be ready upon their return to the Barn, and Dr. 

Warren conducted a debrief with them that evening, RT 6/5/19 at 31, 36. It is also 

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undisputed that Dr. Warren arrived at the Barn straight from the grocery store, with 

bags of groceries. Although it argued that this was not the real reason, the government 

points to no evidence that calls this account into question.

4. The Government Intentionally Muddies the Boundaries of What Conduct Is 

Actually Alleged to be Criminal. This Must Not Be Allowed. 

The government asserts that the shelter evidence is relevant because “[b]y 

showing the defendant planned and prepared for any aliens to enter the United States 

illegally, the Government will have met one of the elements of the offense charged, 

that is, that the defendant intended to violate the law in this case.” Gov. Br. at 4. This 

argument confirms that the government is operating on a badly mistaken view of the 

law. 

There are two problems with this argument. First, it conflates migrants 

entering the United States with the provision of shelter to migrants who are already 

in the country. Dr. Warren is not charged with any offenses relating to illegal entry

(such as “bringing in” under 8 U.S.C. § 1324(a)(1)(A)(i) “encouraging or inducing” 

under (A)(iv), or aiding and abetting an illegal entry offense under § 1325 or § 1326), 

and even if he did intend to do things that were illegal with regard to migrants crossing 

the border—of which the record contains no evidence—that would absolutely not 

establish that he intended anything regarding the provision of food, water, and shelter 

to two particular migrants within the United States. The charged crime requires that 

his specific actions—concealing, harboring, or affording shelter to two migrants—

were done with intent to violate the law. Having some other unrelated intent to do 

something else illegal does not, as the government argues, meet any element of the 

offense charged. 

Second, the government argues that proving a purported intention to assist 

other migrants in breaking the law would mean that “the Government will have met 

one of the elements” in this case. But again, the government must prove that Dr. 

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Warren intended to violate the law when he took the particular actions alleged 

regarding Mr. Perez-Villanueva and Mr. Sacaria-Goday. An intention to violate the 

law regrading some other person would not satisfy that requirement. The

government’s insistence that it can convict Dr. Warren by showing he intended to do 

something else illegal at some other time is a frankly alarming reflection on its 

understanding of its powers and responsibilities. Under the strictures of the Due 

Process protections in the Fifth Amendment, the government can charge people with

committing specific actions that violate specific laws. It cannot convict them of 

generally intending to violate various assorted laws. 

5. Evidence of Aid in Shelters in Mexico and Migrants Getting Rides In the United 

States Risks Unfair Prejudice.

The government attempts to avoid the application of Rule 403 by pretending that the 

issue is simply “seeing or hearing about illegal aliens.” Gov. Br. at 5. But that is not the 

concern. The concern is that the specific additional information about volunteers doing 

harm-reduction work in Mexico and about the migrants possibly getting a ride within the 

United States—conduct which is not part of any crime charged here—as well as migrants 

hanging around in public places like gas stations where jurors may routinely visit in their 

daily lives, would be especially inflammatory, on top of the already inherently controversial 

subject matter. Again, it is the government’s burden to establish that its evidence is 

admissible, and it has done nothing whatsoever to address the concern that these particular 

items of evidence create heightened risk of unfair prejudice and confusing the jury, while 

adding minimal probative value.

Conclusion

The government’s response to this motion consists of claiming that things are relevant 

to this particular offense because they seem vaguely connected to immigration-related 

activities generally, without addressing their specific connection to the elements of the only 

crime it has chosen to charge, and claiming that certain facts render the evidence relevant 

when the record provides no support for those claimed facts. The law limits admissible 

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evidence to that which is relevant to the elements of the crime charged. That does not mean 

it has something vaguely to do with the subject matter; it means that it has some identifiable 

bearing on a fact that is of consequence in determining the action. The party who seeks to 

admit evidence must establish its relevance, and here, the government has utterly failed to 

do so.

Dated this 16th day of September, 2019

KUYKENDALL & ASSOCIATES

By /s/ Amy P. Knight________

Gregory J. Kuykendall

Amy P. Knight

531 S Convent Avenue

Tucson, AZ 85701

Attorneys for Defendant Scott 

Daniel Warren

CERTIFICATE OF SERVICE

I certify that on September 16, 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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