1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Scott Daniel Warren, 

Defendant. 

No. CR-18-00223-001-TUC-RCC (BPV)

ORDER 

 Pending before the Court is Magistrate Judge Bernardo P. Velasco’s Report and 

Recommendation (“R&R”) wherein he recommends this Court, after independent review, 

deny Defendant’s Amended Motion to Dismiss Counts 2 and 3 of the Complaint (Doc. 

45). Doc. 81. Defendant filed timely objections to the R&R (Doc. 82) which the 

Government, in turn, responded to (Doc. 99). Additionally, Katherine Franke and James 

Belanger filed, with the Court’s permission, a Brief of and By Professors of Religious 

Liberty as Amicus Curiae in Support of Defendant’s Motion to Dismiss. Doc. 88. The 

Court has considered all of the above, as well as the underlying briefs. For the reasons 

explained below, the Court will accept and adopt, in part, the findings and conclusions in 

the R&R. Further, the Court will deny Motion to Dismiss. 

LEGAL STANDARD

 The Court “may accept, reject, or modify, in whole or in part, the findings or 

recommendations made by the magistrate judge” on a defendants’ motion to dismiss 
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

[counts of] an indictment. 28 U.S.C. § 636(b)(1). The Court must undertake de novo 

review of those portions of the R&R to which specific objections are made. Thomas v. 

Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th 

Cir. 2003); see also 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b)(3). 

BACKGROUND

 The R&R includes proposed findings of fact which are based upon the testimony 

and exhibits offered at the May 11, 2018, 2018 evidentiary hearing. Doc. 81 at 1-3. 

Defendant asserts that he does not dispute the findings of fact set forth at p. 1:28-2:21; p. 

2:25-28; p. 3:1-2, but objects that the remaining findings “are either irrelevant to the issue 

before the Court or not supported by any evidence before the Court in this proceeding.” 

Doc. 82 at 1. 

 The Court finds the contested factual findings are not significant to its decision on 

the issue before it and, thus, the Court will not adopt them. 

 With respect to the remaining, uncontested factual findings, the Court will accept, 

adopt, and repeat here just those which are pertinent to the instant decision. The Court 

has confirmed these facts by reviewing the indictment and record in this matter. 

 On February 14, 2018, the Defendant, Scott Daniel Warren (“Warren”) was 

indicted on one count of violating 8 U.S.C. §§ 1324(a)(1)(A)(v)(1), (a)(1)(A)(ii) and 

(a)(1)(A)(iii) (Count One) and two counts of violating 8 U.S.C. § 1324(a)(1)(A)(iii) 

(Counts 2 and 3). See Doc. 26. By and through his motion to dismiss, Warren implores 

the Court to dismiss the latter two counts. See Doc. 45 at 1. Each contested count 

alleges that “beginning on or about January 14, 2018, and continuing to January 17, 2018, 

at or near Ajo, in the District of Arizona,” Warren “knowing and in reckless disregard of 

the fact that a certain alien, [ ]1

, had come to, entered, and remained in the United States 

in violation of law, did knowingly conceal, harbor, and shield from detection said alien 

in any place . . . to avoid said aliens’ detention by immigration authorities.” Doc. 26 at 2. 

 On April 2, 2018, Warren filed a motion requesting that this Court dismiss Counts 

 1

 Each count names a different alien. 
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

2 and 3 of the Indictment against him, with prejudice, “because the Religious Freedom 

Restoration Act of 1993 (RFRA) protects Dr. Warren from being prosecuted for the 

actions he is alleged to have taken in offering assistance to the migrants.” Doc. 45 at 1. 

No other relief was requested in the motion, though Warren did request an evidentiary 

hearing. Id. 

 On May 11, 2018 Magistrate Judge Velasco held a hearing to address the Motion 

to Dismiss. See Doc. 74. Evidence was taken. Id. at 8-96. Thereafter, the Magistrate 

Judge issued an R&R recommending that this Court should deny Warren’s Motion to 

Dismiss. Doc. 81 at 1, 4. The recommendation was predicated, in part, upon Magistrate 

Judge Velasco’s finding that “[a]s a matter of law, the Court cannot conclude that 

[Warren] is entitled to judgement in his favor dismissing the Counts at issue because of 

unresolved questions of fact.” Id. at 3. The Magistrate identified these as: (1) were the 

illegal aliens, as defined by the statue, or undocumented migrants, as defined by the 

Defendant, in distress upon the first encounter or thereafter during their three-day stay at 

The Barn; (2) were The Barn conditions such as signage re: maps and legal advice 

attributable to the Defendant; (3) did the Defendant provide the material witnesses with 

the directions for their future travels and is this in violation of the law; and (4) did the 

Defendant’s remarks to the Border Patrol Agents at the scene go beyond the Defendant’s 

expressed beliefs[?]. Having identified these outstanding factual disputes, Magistrate 

Judge Velasco also concluded that “the statutes under which the Defendant is charged do 

not substantially burden his exercise of religion . . .” Id. at 4.2

LAW

 “Whether to prosecute and what charge to file or bring before a grand jury are 

decisions that generally rest in the prosecutor's discretion.” United States v. Batchelder, 

442 U.S. 114, 124, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). “It follows, as an incident of 

 2

 Magistrate Judge Velasco arrived at this conclusion after making a series of preliminary findings about the evidence presented at the May 11, 2018 hearing. Doc. 81 at 4. For example, the he found “As a result of [Warren’s explanation about the nature and extent of his beliefs], only some of his conduct may conflict with Federal immigration laws.” Id. at 4. 
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

the constitutional separation of powers, that the courts are not to interfere with the free 

exercise of the discretionary powers of the attorneys of the United States in their control 

over criminal prosecutions.” United States v. Olson, 504 F.2d 1222, 1225 (9th Cir.1974) 

(quotation omitted). However, a court may dismiss an indictment under its supervisory 

powers when the defendant suffers substantial prejudice, and where no lesser remedial 

action is available. United States v. Morales, 465 Fed. Appx. 734, 739–40 (9th Cir. 

2012) (quotations and citations omitted). Here, neither the record nor the Religious 

Freedom Restoration Act support an exercise of this Court’s supervisory powers to 

intrude on the government’s charging decision. 

 The Religious Freedom Restoration Act, 42 U.S.C. § 2000bb–1 (“RFRA”) was 

enacted by Congress in 1993 in response to the Supreme Court’s decision in Employment 

Div., Dept. of Human Resources v. Smith, 494 U.S. 872 (1990), which held that the 

government need not show a compelling interest in enforcing generally applicable laws 

that substantially burden a religious practice. Id. at 879; see also, City of Boerne v. 

Flores, 521 U.S. 507 (1997). The RFRA provides that “[g]overnment shall not 

substantially burden a person’s exercise of religion,” see 42 U.S.C. § 2000bb-1(a), and 

supplies a rule of decision in cases where a person finds himself in the position of 

needing to choose between following his faith and following the law. See United States 

v. Christie, 825 F.3d 1048, 1054-1055 (9th Cir. 2016). The Ninth Circuit has explained 

that the RFRA “supplies religious objectors . . . with an affirmative defense to criminal 

prosecution.” Christie, 825 F.3d at 1065-1066. 

DISCUSSION

 Warren objects that Magistrate Judge Velasco erred in concluding and 

recommending that his request for dismissal should be denied on the basis of unresolved 

questions of fact. Doc. 82 at 1. He further objects to the Magistrate’s conclusion that 

“only some of [Warren’s] conduct may conflict with Federal immigration laws.” Id. The 

Court will review these portions of the R&R de novo. 

 Turning first to Magistrate Judge Velasco’s conclusion that the motion to dismiss 
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

should be denied due to factual disputes – this Court finds it is in agreement with the 

Magistrate Judge and will adopt this conclusion. For the sake of clarity, this Court would 

add that the motion to dismiss is denied because deciding whether the RFRA should 

“immunize [Warren’s] past conduct from official sanction [] even though such conduct 

violated a law that is otherwise valid,” Christie, 825 F.3d at 1055, implicates “trial of the 

general issue3

” – whether and to what extent Warren is guilty of conduct that violates the 

laws alleged in the indictment. In his Motion to Dismiss, Warren implores the Court to 

circumnavigate the factual questions inherent in that determination as follows: 

Assuming only for purposes of this motion that Dr. Warren did in fact give 

the migrants food, water, beds, and clean clothes as the government alleges, 

his conduct cannot legally constitute a crime because the government 

cannot prosecute any individual for exercising his sincerely held religious 

beliefs in the necessity to provide emergency aid to fellow human beings in 

need. 

Doc. 45 at 5. 

 Such an assumption is, however, inappropriate. Moreover, resolution of the 

argument which relies on the assumption would require the Court to engage in factfinding prohibited by the Federal Rules of Criminal Procedure. 

 First, the assumption inappropriate because it requires this Court to decide that the 

only evidence of criminal conduct the Government will present at trial is Warren’s 

provision of food, water, bed(s) and clean clothing. The Court acknowledges that these 

acts are listed in the pre-indictment Complaint. See Doc. 1. However, Warren cites no 

authority, and the Court is aware of none, which would limit the Government’s case at 

trial such that it could only present evidence of Warren’s guilt if it is identical to the 

conduct described in the affidavit supporting the pre-indictment Complaint. As far as this 

Court is aware, the usual function of a criminal complaint is, solely and simply, to 

 3

 In 2014, the language formerly in Fed. R. Crim. P. 12(b)(2), which provided that “any defense, objection, or request that the court can determine without trial of the general issue” may be raised by motion before trial, was relocated and modified. The more 

modern phrase “trial on the merits” was substituted for the more archaic phrase “trial of the general issue.” No change in meaning was intended. See Fed. R. Crim. P. 12(b), 

advisory committee’s notes to 2014 amendment. 
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

recount facts, produced by an investigation, that provide probable cause to arrest. See 

Milstein v. Cooley, 257 F.3d 1004, 1012 (9th Cir. 2001). 

 Second, the argument that Warren’s conduct does not, legally, constitute a crime 

in light of the strictures announced in the RFRA – the argument underpinning his entire 

motion to dismiss – is unavailing in the context in which Warren raises it as it recites and 

relies upon facts about Warren’s alleged criminal conduct which the Government 

disputes. For instance, the argument advances and assumes, inter alia, that Warren 

“provided emergency aid” and that the recipients were “in need” on the dates listed in the 

indictment. See Doc. 62 at 8. 

 Pursuant to Rule 12 of the Federal Rules of Criminal Procedure, a “party may 

raise by pretrial motion any defense, objection, or request that the court can determine 

without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). However, a pretrial motion 

requesting dismissal is not an appropriate vehicle to challenge the merits of a case and 

cannot be used as a device for summary trial on the evidence. United States v. Jensen, 93 

F.3d 667, 669 (9th Cir. 1996). Motions to dismiss are, generally, only “capable of 

determination” before trial “if [the motion] involves questions of law rather than fact.” 

United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir.), cert. denied, 

478 U.S. 1007, (1986)(internal citations and quotations omitted) [hereinafter Shortt]; see 

also United States v. Snyder, 428 F.2d 520, 522 (9th Cir.), cert. denied, 400 U.S. 903 

(1970)(a pretrial motion to dismiss “is not the proper way to raise a defense.”) Although 

the Court may make such preliminary findings of fact as are necessary to decide legal 

questions presented by such a motion, the Court may not “invade the province of the 

ultimate finder of fact.” Shortt, 725 F.2d at 1452. (internal quotation and citation 

omitted). The Ninth Circuit has explained: 

As the ultimate finder of fact is concerned with the general issue of guilt, a 

motion requiring factual determinations may be decided before trial if trial 

of the facts surrounding the commission of the alleged offense would be of 

no assistance in determining the validity of the defense. Under this 

standard, the district court must decide the issue . . . if it is entirely 
- 7 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

segregable from the evidence to be presented at trial. If the pretrial claim is 

substantially founded upon and intertwined with evidence concerning the 

alleged offense, the motion falls within the province of the ultimate finder 

of fact and must be deferred. 

 Id. (internal quotations and citations omitted). 

 In short, arguments raised in a motion to dismiss that rely on disputed facts going 

to the general issue of a defendant’s guilt should be denied or deferred. See United States 

v. Nukida, 8 F.3d 665, 669-670 (9th Cir. 1993)(also defining the “general issue” as 

evidence relevant to the question of guilt or innocence); United States v. Caputo, 288 F. 

Supp. 2d 912, 916 (N.D. Ill. 2003), citing United States v. Shriver, 989 F.2d 898, 906 (7th 

Cir. 1992). Here, the disputed facts go to the general issue of whether Warren is guilty of 

the conduct alleged in the indictment. Accordingly, it is the province of the jury to allot 

weight and credibility if conflicting evidence is presented about the extent or nature of 

Warren’s conduct. See United States v. Sotelo-Murillo, 887 F.2d 176, 182 (9th Cir. 

1989). 

 In his objections to the R&R, Warren nonetheless insists “courts routinely resolve 

disputed facts on motions to dismiss” and “an RFRA defense must be decided pretrial” 

Id. at 2-3. Such argument(s), however, ignore the import of the Ninth Circuit’s recent, 

explicit pronouncement that the RFRA defense is an “affirmative defense.” See Christie, 

825 F.3d at 1065-1066. 

 Deciding whether an affirmative defense excuses criminal conduct, as a matter of 

law, necessarily implicates questions of fact concerning said conduct – a circumstance 

acknowledged by the Ninth Circuit when it explicitly distinguished affirmative defenses 

from the sort of “defense” which only invokes a question of law. See United States v. 

Sotelo-Murillo, 887 F.2d 176, 182 (9th Cir. 1989)(distinguishing between an affirmative 

defense and a “defense” of outrageous government conduct which raises a question of 

law rather than fact and which, if successfully raised in a pretrial motion to dismiss, 

would result in the dismissal of an indictment, regardless of the indictment’s merits). 

Warren cites no binding or relevant authority suggesting that an RFRA defense should be 
- 8 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

treated as the latter type of “defense” rather than as an affirmative defense. United States 

v. Jeffs, 2:16-CR-82 TS, 2016 WL 6745951 (D. Utah 2016) was decided by a district 

court in the Tenth Circuit which was not bound by the Ninth Circuit’s decision to classify 

an RFRA defense as an “affirmative defense” and does not otherwise issue rulings 

binding on this Court. Similarly, the decision in United States v. Lundquist, 932 F.Supp. 

1237 (D. Or. 1996) is not binding on this Court and was issued nearly twenty years 

before the Ninth Circuit clarified the procedural posture of the RFRA defense in Christie. 

 Additionally, Defendant’s non-specific reliance on cases which resolve factual 

disputes raised by motions to suppress is misplaced. See Doc. 82 at 3. Generally, any 

factual differences highlighted by a motion to suppress do not impact the ultimate issue 

of guilt. United States v. Schafer, 625 F.3d 629, 636 (9th Cir. 2010). Evidence must be 

suppressed when it is obtained in violation of a defendant’s constitutional rights. Id. 

(citing Mapp v. Ohio, 367 U.S. 643, 655–56 (1961)). A district court may make factual 

findings with regard to whether evidence was unconstitutionally obtained because such 

issues are “entirely segregable” from the issue of guilt. Id. (citing Shortt, 785 F.2d at 

1452 (discussing the types of factual findings a district court can make to resolve pretrial 

motions)). In this case, however, questions raised by Warren’s motion go to the viability 

of his affirmative defense; the outstanding factual disputes which were previously noted 

cannot be segregated from the issue that is properly decided by and through trial—

Warren’s guilt. 

 Turning next to Magistrate Judge Velasco’s finding that “only some of [Warren’s] 

conduct may conflict with Federal immigration laws” – this Court is not convinced that 

this assertion was germane to his ultimate recommendation that this Court should deny 

Warren’s motion to dismiss. Regardless, because this Court cannot now decide, pursuant 

to Federal Rule of Criminal Procedure 12, whether an RFRA defense excuses Warren’s 

conduct as a matter of law, the Court need not reach or adopt this contested finding. 

 Finally, it bears mentioning that, in resolving to adopt Magistrate Judge Velasco’s 

recommendation that the Court should deny the motion to dismiss, this Court was 
- 9 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

mindful that the question of whether a criminal defendant has presented sufficient 

evidence to warrant a jury instruction on an affirmative defense is regarded as a 

predominantly a legal question. See, e.g., United States v. Brandon, 633 F.2d 773, 778 

(9th Cir.1980)(the refusal to submit an entrapment instruction to the jury “constitutes a 

determination as [a] matter of law that the defense may not be raised”) (emphasis added). 

The Court can preclude an affirmative defense at trial if it also determines the defendant 

has failed to make a prima facie case showing he is eligible to it. See United States v. 

Moreno, 102 F.3d 997-998 (9th Cir. 1996). However, because Warren has only moved 

for dismissal and has not filed a motion in limine seeking to present an RFRA affirmative 

defense at trial, the issues of whether he has made a prima facie case under the RFRA 

and/or whether the government satisfied the RFRA’s test in turn are not properly before 

this Court. Accordingly, 

IT IS ORDERED: 

1. The findings and conclusions of the R&R (Doc. 81) are ACCEPTED AND 

 ADOPTED, IN PART, as described in the terms of this Order. 

2. The Amended Motion to Dismiss Counts 2 and 3 (Doc. 45) is DENIED. 

3. This matter is re-referred to Magistrate Judge Velasco under the cause number 

 listed above, consistent with the terms of the Court’s previous referral order. 

 Dated this 14th day of September, 2018.