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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

Pro Bono 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.CR-18-00223-001-TUC-RCC

MOTION TO RECONSIDER 

MAGISTRATE’S DENIAL OF 

MOTION TO COMPEL AND TO 

WITHDRAW REFERRAL DUE TO 

IMPROPER EX PARTE 

COMMUNICATIONS

Defendant Scott Daniel Warren, through his pro bono attorneys Gregory J. 

Kuykendall and Amy P. Knight, hereby moves this Court pursuant to 28 U.S.C. § 

636(b)(1)(A) to reconsider the Magistrate Judge’s order denying his motion compel the 

Government to comply with the court’s order of November 7, 2018, and to withdraw the 

referral of pretrial matters in this case to Magistrate Judge Velasco. In support thereof, he 

states:

After being ordered to produce communications sent to two border patrol 

agents as possible evidence of retaliation against the Defendant for First 

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Amendment-protected activities, the prosecutors approached the Magistrate Judge 

ex parte and presented, in writing, an argument that they should not be required to 

disclose all the materials the Court had ordered. The Magistrate Judge, also acting 

ex parte, approved the Government’s proposed disclosure that was far more limited 

than what was covered by the order. Only after this exchange occurred did the 

defense learn of this substantive ex parte exchange. Because the Government’s ex 

parte communication to the Court was improper, and because the Magistrate Judge, 

acting without input from the defense, reached a mistaken conclusion, this Court 

should reconsider the Magistrate Judge’s denial of the defendant’s motion to 

compel because it is “clearly erroneous” and “contrary to law.” 28 U.S.C. § 

636(b)(1)(A).

BACKGROUND

On August 23, 2018, Dr. Warren filed a Motion for Discovery into Selective 

Enforcement (Doc. 113), outlining his claim that the Border Patrol surveilled and arrested 

him in retaliation for protected First Amendment speech and association. Specifically, Dr. 

Warren explained that his arrest came mere hours after No More Deaths, the 

humanitarian group with which he worked, released an embarrassing and highly critical 

report about border patrol agents destroying humanitarian aid supplies, and indeed 

emailed that report directly to border patrol officials, who forwarded it to the agent in 

charge at the local border patrol station. The motion requested seven categories of 

discovery. The Government filed a response on September 6, 2018 (Doc. 123), and Dr. 

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Warren filed a reply on September 13, 2018 (Doc. 126). The Magistrate Judge held oral 

argument on October 16, 2018 (Doc. 130). Dr. Warren filed a Notice of Supplemental 

Authority the following day, alerting the Court to the Ninth Circuit’s brand new opinion 

clarifying that the heightened selective prosecution discovery standard does not apply to 

claims of selective enforcement (Doc. 131). The Magistrate Judge issued an Order on 

November 7, 2018, directing “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” (Doc. 135).

Defense counsel contacted the Government on January 19, inquiring about the 

Government’s plans for compliance with the Court’s order. AUSA Anna Wright 

responded that afternoon, stating “I am working to identify and gather responsive 

materials, and I hope to have a timeline for disclosure sometime next week.” See Doc. 

138-1. That week passed with no response, as did the following week. Finally, on 

November 27, 2018—nearly three weeks after the order and 18 days after their first 

inquiry, defense counsel again emailed counsel for the Government, asking “Could you 

please provide us with the promised timeline for this compliance as soon as possible?” Id. 

Having received no response by December 3, the defense filed a motion to compel (Doc. 

138). 

The following day, the Government nearly simultaneously filed a response 

to the motion (Doc. 139) and notified the defense that disclosure was available for 

pickup. The response stated that the Government “provided all of the responsive 

materials to the Court in camera with a plan for disclosure,” and that the Court 

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then “issued a letter approving of the government’s disclosure plan,” and the 

government provided disclosure in accordance with that plan. Doc. 139, para. 8. 

The defense filed a reply on December 6, 2018 (Doc. 138), objecting 

strenuously to the apparent ex parte communications between the Government and 

the Magistrate Judge concerning what subset of the ordered materials it would 

actually disclose, and explaining, based on the materials that were disclosed, that 

additional responsive documents had to exist. The defense explained that if the 

Government believed the order was too broad, it should have filed—and served on 

the defense—a motion for reconsideration, seeking a narrower order, and 

explaining why it should not have to comply with the order as written. 

The Magistrate Judge issued an order denying the motion to compel on 

December 12, 2018 (Doc. 144). The Magistrate Judge insisted that the Government 

was in compliance with the disclosure order because it had disclosed “the 

information the Court determined was in compliance with the Court’s Order,” and 

that “[t]he defendant’s suggestion that he is being denied discoverable evidence is 

unfounded,” apparently because the Government’s in camera submission was quite 

broad, and “[t]he Court reviewed it and found nothing helpful to the Defendant’s 

case or theories of the case.” The Magistrate Judge attached to the order his ex 

parte correspondence with the prosecutors. 

The correspondence consists of a two-page letter from the prosecutors to the 

Magistrate Judge, dated December 3, 2018 (long after AUSA Anna Wright told 

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defense counsel she was gathering and reviewing materials), and a one-line 

response from Judge Velasco the following day. The Prosecutors’ letter explicitly 

recognized that the Court’s order was very broad, and then argued that “upon 

further review, many of the texts and emails sent or received during the relevant 

time period do not fall within the government’s disclosure obligations.” Doc. 144 

at 3. The Government asked the Magistrate Judge for “permission to disclose only 

those materials that implicate the government’s disclosure obligations under 

Federal Rules of Criminal Procedure 16 and 26.2, Federal Rules of Evidence 

404(b) and 609, 18 U.S.C. § 3500 (Jencks Act), Brady v. Maryland, or Giglio v. 

United States” (citations omitted). Id. In other words, the Government was asking, 

outside of the presence of and with no notice to the defense, for the Court to 

rescind its order requiring additional disclosure for the selective enforcement claim 

not covered by the Government’s other pre-existing disclosure obligations. The 

Government then outlined 18 distinct categories of documents apparently provided 

to the Court in camera with the letter, and delineated which ones it would be 

disclosing. Crucially, under the heading “Materials Not Subject to Disclosure,” the 

Government listed materials that “relate to other unrelated criminal investigations,” 

as well as materials that “relate to this matter but do not implicate the 

government’s disclosure obligations.” The Government then repeated its argument 

that it should only be required to produce materials covered by other pre-existing 

disclosure obligations. The Magistrate Judge’s written response said only that he 

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would “confirm your proposed disclosure as being in compliance with [his] 

previous Order.” Doc. 144 at 2. 

1. The Magistrate’s Determination that the Government’s Highly Limited 

Disclosure Complied With His Previous Order Was Clearly Erroneous.

As the Government admits in its ex parte submission, “the Court’s order 

required disclosure of all texts or emails” sent to the two agents during the 

designated time period. The Government then explicitly states that is it seeking the 

Court’s permission to disclose something narrower—not all the materials covered 

by the order, but rather “only those materials that implicate the government’s 

disclosure obligations” under other, background rules applicable in every case. 

Thus, the Magistrate Judge’s insistence that the Government’s production—which

excluded communications the agents received during the identified time period that 

related to other criminal investigations, as well as communications relating to this 

case, both of which are unambiguously covered by the order—was “in compliance 

with [his] previous Order,” (Doc. 144 at 2), is clearly erroneous. A disclosure that 

excludes materials indisputably covered by the facial terms of the order is simply 

not full compliance. 

Instead, the Magistrate Judge appears to have decided, after reviewing the

Government’s ex parte argument, to functionally revise his previous order to cover 

only communications (1) related to this case (2) that he decides are relevant to the 

defendant’s theories. That is a dramatically different order from the one he entered 

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on the docket after receiving full briefing and hearing argument from both parties. 

Yet the Magistrate Judge has insisted that this severely limited disclosure satisfies 

his “previous Order.” Doc. 144 at 2. It does not. 

2. The Government’s Argument, Made Ex Parte to the Judge, That It Must 

Disclose Only Documents Covered by Other Disclosure Obligations, Ignores 

the Governing Law.

Along with fundamental fairness, propriety, and judicial integrity, an 

important reason why ex parte communications are not generally allowed is that 

the adversary process advances the accuracy of proceedings. See, e.g., United 

States v. Napue, 834 F.2d 1311, 1319(7th Cir. 1987) (“Even where the government 

acts in good faith and diligently attempts to present information fairly during an ex 

parte proceeding, the government’s information is likely to be less reliable and the 

court’s ultimate findings less accurate than if the defendant had been permitted to 

participate.”). Here, the Government made a specious legal argument to the Court 

in private. Because the defense, unaware of the communication, had no 

opportunity to respond, no one pointed out to the Magistrate Judge the obvious 

flaws in the Government’s reasoning. 

In its ex parte submission, the Government took the position that it was only 

obligated to disclose materials covered by other disclosure obligations that existed 

independent of the Court’s order on the selective enforcement claim. This position 

is wrong. For one thing, it is utterly illogical; if the Government only ever had to 

observe pre-existing obligations (i.e., Rule 16, Rules 404(b) and 609, Jencks, 

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Brady, and Giglio), there would be no such thing as a motion for discovery into 

selective enforcement—a claim which quite obviously exists, and is recognized in 

the Ninth Circuit. See United States v. Sellers, 906 F.3d 848 (2018). Moreover, the 

Government’s own conduct belies any belief that this is actually how the law 

works; it did, in fact, disclose some additional materials pursuant to the order, 

albeit far fewer than the Court ordered it to. If its pre-existing obligations required 

this disclosure, why was it not made already? The Government’s position boils 

down to the ridiculous assertion that the Court lacks authority to order disclosure in 

addition to what the background rules require in all cases. But the Court absolutely 

has that authority—and exercised it here when it granted, in part, the defendant’s 

motion for discovery into selective enforcement. That order created a disclosure 

obligation with which the Government must comply.

The case law on selective enforcement and selective prosecution confirms 

that these background disclosure rules do not suffice where the Defendant has 

made a credible allegation, supported by evidence, that the Government is pursuing 

him for impermissible reasons. As the Ninth Circuit very recently recognized, 

claims of selective enforcement and selective prosecution are “undoubtedly 

related,” and share a common legal heritage. Sellers, 906 F.3d at 852. Both begin 

with the 1996 case of United States v. Armstrong, 517 U.S. 456 (1996). In 

Armstrong, the Court extensively discussed Federal Rule of Criminal Procedure 

16, and concluded that it did not require disclosure of materials relevant to a 

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selective prosecution claim. Rather, courts could order discovery into selective 

prosecution upon a threshold showing, based on a defendant’s equal protection and 

due process rights. Thus, the disclosure obligation recognized in Armstrong is not 

rooted in any of the obligations the Government thinks it should have to observe, 

as set out in its ex parte letter to the Magistrate Judge; it is an additional obligation 

triggered in certain cases. The Ninth Circuit recognized in Sellers that the threshold 

required to trigger that obligation is lower when the alleged discrimination is 

committed by law enforcement agents, rather than prosecutors. And Judge Velasco 

found, in his order, that that obligation was triggered here when he ordered some 

limited disclosure based on Defendant’s showing. The Government treats this 

obligation as somehow not real or binding, presumably because it does not want 

the defendant to know what these agents were saying to one another on the day of 

his arrest. But Armstrong and Sellers are just as real as Brady and Giglio.

Nor do the Magistrate Judge’s assessments of the evidence satisfy concerns 

about what the Government has elected to withhold. In particular, the order 

denying the motion to compel (Doc. 144) states that Judge Velasco found “nothing 

helpful to the Defendant’s case or theories of the case” in the materials the 

Government chose not to disclose. But that was not his assessment to make. The 

order—which the Court issued pursuant to the requirements of Sellers—called for 

broad disclosure, which would allow the defense to determine whether it could 

make use of the documents. The Magistrate is not well situated to know what the 

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defense may or may not be able to use. And a Sellers order, of course, unlike 

Brady, does not require that the material be exculpatory or favorable to the 

defense. The Magistrate Judge cannot possibly know all the possible methods the 

defense might pursue to establish discriminatory intent and effect.

Similarly, the Magistrate Judge’s blanket approval of the Government’s 

withholding of materials “that relate to other unrelated criminal investigations,” 

Doc. 144 at 4, was inconsistent with his properly issued Sellers order. Discussion 

of other things the agents were working on on the day in question could be 

extremely relevant to a claim of improper retaliatory targeting. For instance, if 

there were some more legitimate or pressing concern going on, and the agents 

chose to watch No More Deaths volunteers in hopes of catching them doing 

something instead of pursuing some active case, that could be probative. 

This is not to say that the Court could not reasonably permit the Government 

to withhold any materials covered by the Sellers order. If, for instance, the 

materials contained personal information such as birth dates of certain individuals, 

or sensitive law enforcement information about unrelated investigations that are 

ongoing, the Government could certainly petition the court—openly, including the 

defense in the process and filing its request publicly—to permit redaction, limit 

dissemination, or perhaps even withhold from disclosure particularly sensitive 

information if it has a compelling reason to do so. It could openly request in 

camera review, with openly articulated standards to which the defense is provided 

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an opportunity to object, and of which the public is informed. What it may not do 

is seek substantive revision of a court order in secret. And here, it provided 

absolutely no reason why it could not produce the ordered materials. It simply 

asserted that it should not have to, and that even among the things it did disclose, it 

would “redact certain information.” Doc. 144 at 4. It did not say what type of 

information, or why it was necessary to redact it. Yet the Magistrate Judge signed 

off, without explanation.

3. This Court Should Withdraw Its Referral of Pretrial Matters to the 

Magistrate Judge Because He Has Demonstrated a Willingness to Entertain 

Ex Parte Submissions on Substantive Questions of Law From the 

Government.

Except in specific instances where it is necessary for compelling reasons, it 

is improper for litigants to communicate privately with the judge. See, e.g., United

States v. Kenney, 911 F.2d 315, 321 (9th Cir. 1990) (“[I]n our system, adversary 

procedures are the general rule and ex parte examinations are disfavored.”); United 

States v. Napue, 834 F.2d 1311, 1316, 1318 (7th Cir. 1987) (“noting “that ex parte 

communications between the trial court and the prosecution in a criminal case are 

to be greatly discouraged and should be permitted only in very limited 

circumstances” and “[t]hey should be avoided whenever possible and, even when 

they are appropriate, their scope should be kept to a minimum.”); cf. United States 

v. Klimavicius-Viloria, 144 F.3d 1249, 1261 (9th Cir. 1998) (recognizing that “[i]n 

a case involving classified documents,” a court may use ex parte proceedings “to 

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decide the relevancy of the information,” where government “explained the 

specific damage to national defense if information were disclosed.”); Napue, 834 

F.2d at 1318 (permitting ex parte communication where defendant “was given 

notice prior to its occurrence that the ex parte communication was to be made”). 

Indeed, applicable ethical rules governing both attorneys and judges forbid private 

communications in all but the rarest of circumstances. See Arizona Rules of 

Professional Conduct, ER 3.5 (“A lawyer shall not. . . communicate ex parte with 

[a judge] during the proceeding unless authorized to do so by law or court order.”); 

Code of Conduct for United States Judges, Canon 3(4) (“[A] judge should not 

initiate, permit, or consider ex parte communications or consider other 

communications concerning a pending or impending matter that are made outside 

the presence of the parties or their lawyers.”). 

In this case, the prosecutors submitted a substantive argument concerning 

revision of a court order ex parte to the Magistrate Judge, and the Magistrate Judge 

considered and accepted that argument, and communicated back to the prosecutors, 

also ex parte. He only disclosed those communications to the defense upon their 

strenuous objection—at which point he had already made a decision based on a 

secret presentation made without the knowledge of, let alone any input from, the 

defense. Given this course of events, it is not appropriate for this Magistrate Judge 

to continue to decide pretrial matters in this case. Having permitted improper 

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influence by the Government, he can no longer issue rulings in this case with the 

appearance of the strict impartiality demanded of our judicial system.

Moreover, the defense intends to file, in the near future, a motion concerning 

the above described events and their consequences. The Magistrate Judge, as a 

participant in the improper ex parte exchange, is actually a witness to these events, 

and thus cannot consider and rule on a motion concerning those events. 

Accordingly, this Court should withdraw the referral of pretrial matters in this case 

to the Magistrate Judge, and rule on the present motion, the forthcoming motion,

and any additional pretrial matters, itself. 

RESPECTFULLY SUBMITTED this 19th day of December, 2018.

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 December 19th, 2018, 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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