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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 MOTION TO 

PRECLUDE WITNESSES FOR LACK 

OF NOTICE

Dr. Scott Warren hereby moves this Court to preclude the testimony of two law 

enforcement witnesses the government has indicated it intends to call and to limit the 

testimony of other agents to the contents of their disclosed reports because the government

has refused to provide the defense with any information about their proposed testimony, 

despite a binding disclosure agreement drafted by the government that requires the 

government to do so. 

FACTS

The government has only ever provided any disclosure to the defense in this case 

on the condition that the defense agree to a “disclosure agreement” drafted by the 

government and presented to the defense on a take-it-or-leave-it basis. The government has 

strictly enforced that agreement against Dr. Warren throughout the litigation of this case, 

and the Court has agreed to give effect to its provisions when the government has so 
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requested. See, e.g., Doc. 68 (government motion for protective order based exclusively on 

provision in disclosure agreement); Doc. 69 (court entering government’s requested order). 

Paragraph 3 of that agreement specifies five categories of things that “[b]oth parties 

agree to provide. . . to each other no later than fourteen days prior to trial.” One of those 

items is “A list of all potential witnesses for the party’s case in chief and a summary of 

their expected testimony if a report or statement covering the expected testimony has not 

already been provided” (emphasis added). 

On May 15, 2019—14 days prior to trial—the defense provided the government 

with a witness list, including a brief summary of the proposed testimony of each witness, 

pursuant to this mutual obligation in the agreement. That evening, the government 

disclosed a witness list consisting of the two material witnesses already deposed in this 

case and eight United States Border Patrol agents: John Marquez, Brenan Burns, Argelia 

Robles, Ned Ewing, Rogelio Velasco, Robert Hertzberg, Andrew Beglin, and Alberto 

Ballesteros. It also provided the following explanation of the proposed testimony: 

BPA Rogelio Velasco will testify to the contents of the cell phones seized in 

this case, including an analysis of the items in the phones as they relate to 

each other and to the events in this case. His testimony may include his 

analysis of the chats, text messages, emails, images, location data, web 

search data and results, call logs, audio files, voicemails, and contacts, as 

well as any associated metadata, across all platforms/applications.

In addition to the Jencks material and other disclosure already provided, 

BPAs Burns and Marquez may testify to the gas stations’ surveillance camera 

footage. BPAs Burns and Marquez may also testify to the location of various 

streets, buildings and resources in Ajo, as well as travel between certain 

points in Ajo.

Thus, the government provided information about the proposed testimony for only three of 

the eight agents. Of the remaining five agents, only three (Ballesteros, Beglin, and 

Hertzberg) authored reports that have been disclosed to the defense; for two of the agents

(Robles and Ewing), the government has never disclosed any report or statement, and 
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provided no information about their testimony. Accordingly, the next morning, May 16, 

2019, defense counsel contacted counsel for the government explicitly requesting that the 

government “immediately specify whether Agents Ballesteros, Hertzberg and Beglin will 

limit their testimony to the contents of their respective reports, and provide a summary of 

the testimony of Agents Robles and Ewing.” As of the filing of this motion, nine days later

and ten days after the disclosure agreement unequivocally required the above disclosure, 

the government has not responded to this request in any manner. 

Significantly, however, the government did make use of the information the defense 

provided about the defense’s proposed witnesses pursuant to the agreement: on May 21, 

2019, the government filed a motion in limine seeking to preclude seven defense witnesses, 

based exclusively on the summaries the defense had provided as agreed (Doc. 215 at 2). 

The defense has not had the opportunity to litigate the admissibility of the testimony of 

government witnesses for whom it has not provided any information.

ARGUMENT

This Court should not allow the government to present witnesses whose planned 

testimony remains a complete mystery to the defense. “The course of the government 

smacks too much of a trial by ambush, in violation of the spirit of the rules.” United 

States v. Powell, 587 F.2d 443, 447 (9th Cir. 1978) (citing United States v. Kelly, 420 F.2d 

26, 29 (2d Cir. 1969)). Moreover, it violates fundamental tenets of fairness to permit the 

government to benefit repeatedly from the agreement it drafted, both earlier in the 

litigation and now, and simultaneously allow the government to refuse to honor its 

obligations under the same agreement without consequence.

Additionally, the defendant cannot effectively prepare a defense if the government 

refuses to tell him what evidence it has against him. Complete disclosure is especially 

important where the government relies on the fact that it has provided disclosure to excuse 

truly bare-bones charging documents. See Doc. 46 (government’s response to defense 

motion for a bill of particulars, stating that “it is clear that the Indictment, taken with the 

disclosure, is sufficient to advise the defendant of the possible co-conspirators”). The 
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indictment in this case contains no factual allegations, but merely a recitation of the 

elements of the charged offenses. Accordingly, without sufficient disclosure, the defendant 

cannot prepare his defense. 

Because the government has exploited the defendant’s full compliance with his 

obligations pursuant to the agreement it drafted and has repeatedly enforced, explicitly 

relying on the defendant’s disclosures to seek relief from this Court, but has refused to 

comply with its own obligations pursuant to the same agreement, and the defendant has no 

notice about several witnesses’ proposed testimony, this Court should preclude the 

government from introducing any testimony from Agents Ewing and Robles, and any 

testimony from Agents Hertzberg, Beglin, and Ballesteros on topics not explicitly covered 

in the report they wrote that the government has disclosed. 

Dated this 24th day of May, 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 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