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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.CR-18-00223-001-TUC-RCC(BPV)

MOTION FOR BILL OF 

PARTICULARS

The defendant, Dr. Scott Warren, by and through his undersigned attorneys, 

hereby respectfully requests this Court, pursuant to Rule 7(f) of the Federal Rules of 

Criminal Procedure, to direct the government to file a bill of particulars specifying 

the alleged participants in the conspiracy charged in Count 1 of the indictment. This 

motion is based on the legal reasoning and authorities set forth in the attached 

Memorandum of Points and Authorities. 

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MEMORANDUM OF POINTS AND AUTHORITIES

I. STATEMENT OF FACTS

Dr. Warren volunteers with the humanitarian organization No More 

Deaths, which is a ministry of the Unitarian Universalist Church of Tucson. 

Their mission is to end suffering and death along the border and – in 

partnership with other faith-based organizations – to work for fundamental 

human rights, including the right to life. See 

http://forms.nomoredeaths.org/about-no-more-deaths/. The humanitarian 

crisis they address is a well-documented problem, as hundreds of immigrants 

die every year from exposure and injury while crossing through the southern 

Arizona desert. Between 1999 and 2012 alone, there were 2,269 recorded 

deaths in this region, and many more went unnoticed. See Naming the Dead, 

May 13, 2013, available at www.arizona.edu/naming-dead.

Dr. Warren stands charged in a 3-count indictment. The indictment contains no 

introduction or factual background section. Count 1 alleges a conspiracy to 

transport and harbor illegal aliens. Specifically, Count 1 reads:

From a date unknown to un or about January 17, 2018, at or near Ajo, 

in the District of Arizona, Scott Daniel Warren, did knowingly and 

intentionally combine, conspire, confederate and agree with various 

other persons known and unknown to the grand jury, to transport and 

move Kristian Perez-Villanueva and Jose Arnaldo Sacaria-Goday, 

illegal aliens, within the United States by means of transportation or 

otherwise; and to conceal, harbor and shield from detection said illegal 

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aliens in any place, including any building or any means of 

transportation to avoid said aliens’ detention by immigration 

authorities, all in violation of Title 8, United States Code, Sections 

1324(a)(1)(A)(v)(I), 1324(a)(1)(A)(ii) and 1324(a)(1)(A)(iii).

While the indictment identifies a date and approximate location, it does not 

specify any individual with whom Dr. Warren is alleged to have conspired to 

transport and harbor the two migrants. No More Deaths volunteers work with 

one another, with other humanitarian and religious organizations, and with 

members of the community more broadly to accomplish their humanitarian 

work. Not only does the indictment fail to name any particular individual coconspirator; it also fails to specify whether Dr. Warren allegedly conspired 

with other No More Deaths volunteers, with other volunteers affiliated with 

other organizations, or with individuals not associated with any group. 

Dr. Warren was arraigned on February 21, 2018. Subsequently, on 

March 7, 2018, the parties took the depositions of two material witnesses in 

the case (the two migrants who are the subjects of the alleged conspiracy). 

During the depositions, defense counsel objected to some testimony as 

hearsay; the government responded that the statement was not hearsay 

because it was a statement of a co-conspirator. The government did not, 

however, identify who the alleged co-conspirator was. The government has 

not made the recording of these depositions available to the defense, despite 

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their request. Nor has the defense been provided with a copy of the grand jury 

transcript. 

Dr. Warren now requests that the government be ordered to provide a 

bill of particulars specifying the alleged participants in the conspiracy to allow 

him to prepare a defense. 

II. DISCUSSION

A. The Court Should Consider This Request To Be Timely.

Federal Rule of Civil Procedure 7(f) provides that “The defendant may move 

for a bill of particulars before or within 14 days after arraignment or at a later time 

if the court permits.” Although more than 14 days have passed since the 

arraignment (it has been 26 days), it has been less than 14 days since the 

government indicated its intent to rely on the co-conspirator exception to the 

hearsay rule without identifying the alleged co-conspirator. Moreover, neither the 

deposition recordings nor the grand jury transcript has been made available to the 

defense. If the government had provided that information in the interim, this 

motion might have become unnecessary; waiting thus could potentially have saved 

this Court the time and effort of ruling on a motion. However, given the 

government’s professed intent to rely on the co-conspirator hearsay exception, and 

the continued absence of information about the alleged theory of the conspiracy, a 

bill of particulars has now become necessary to allow the preparation of a defense. 

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Accordingly, the Court should not deny this request on the basis of delay, but 

rather should permit this motion for a bill of particulars, which is still close in time 

to the arraignment.

B. The Court Should Oder the Government To Identify the Alleged 

Conspirators. 

The Ninth Circuit has identified three primary functions of the bill of particulars: 

“to inform the defendant of the nature of the charge against him with sufficient 

precision to enable him to prepare for trial, to avoid or minimize the danger of 

surprise at the time of trial, and to enable him to plead his acquittal or conviction in 

bar of another prosecution for the same offense when the indictment itself is too 

vague, and indefinite for such purposes.” United States v. Giese, 597 F.2d 1170, 

1180 (9th Cir. 1979). All three functions are implicated here.

First, Dr. Warren cannot prepare for trial on the conspiracy charge if the 

government will not tell him with whom he allegedly conspired. Dr. Warren 

routinely works with a range of different individuals, both inside and outside of No 

More Deaths, to accomplish his humanitarian work. It is not possible to discern, 

from this indictment, whether the government is alleging that No More Deaths is 

itself a conspiracy, or that Dr. Warren was working with some outside group or 

individual, and this matters greatly to his ability to prepare a defense. How is he 

supposed to interview witnesses if he does not know what they are supposed to have

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witnessed? How can he litigate the admission of co-conspirator’s statements if he 

does not know who the alleged co-conspirators are? The indictment is simply 

insufficiently specific to identify the government’s theory. And while a defendant is 

not entitled to a complete accounting of the government’s evidence, he most 

certainly is entitled to an identification of “the theory of the government’s case.” 

United States v. Ryland, 806 F.2d 941, 942 (9th Cir. 1986). This indictment fails to 

provide that.

Second, there is a distinct danger of surprise at the time of trial. Dr. Warren 

has talked to dozens of people in the course of his life-saving work at the border. Yet 

he has no idea which of these conversations the government claims constitutes an 

illegal agreement to transport or harbor these individuals. Even if the government 

provides a list of witnesses, Dr. Warren still will not know who is an alleged coconspirator and who is simply a witness to some of the events described. Without 

further information, Dr. Warren will learn for the first time at trial what the 

government means by this allegation. This is precisely what the bill of particulars is 

designed to avoid. 

Finally, this indictment will not permit Dr. Warren to invoke double jeopardy 

should the government charge him with some additional conspiracy in the future. In 

particular, it is not at all clear whether the allegation here is that Dr. Warren 

committed conspiracy through his collaboration with other members of No More 

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Deaths, or whether he is alleged to be working with outside groups or individuals. 

Should the government seek an indictment for one of these offenses in the future, it 

will not be clear whether the present indictment included that conduct or not. In other 

words, an allegation that No More Deaths is an illegal conspiracy is quite a different 

thing from an allegation that Dr. Warren arranged with some other community 

member to bring the migrants to the structure where they are alleged to have stayed; 

the government must specify what it is charging now, to permit Dr. Warren to use 

the outcome of this charge as a defense should he be charged with a conspiracy in 

the future. 

To be sure, the Ninth Circuit has held that the government is not required to

identify all potential known and unknown co-conspirators. See United States v. 

Dicesare, 763 F.2d 890, 897-98 (9th Cir. 1985). In Dicesare, five individuals were 

indicted for a conspiracy. Thus, the indictment identified the primary alleged coconspirators; they were the co-defendants alleged to have conspired with one 

another. The Dicesare defendants sought identification of any additional unknown 

co-conspirators, and the Court ruled that this was not required. In so holding, the 

Court relied on Wilkins v. United States, 376 F.2d 552, 562-63 (5th Cir. 1967). 

Wilkins, like Dicesare, was a multi-defendant case in which a group charged with 

conspiracy sought the identity of any additional co-conspirators not identified in the 

indictment; the government had already verbally stipulated that there were no other 

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known co-conspirators. Id. Thus, in both cases, the defendants were aware of the 

alleged participants in the conspiracy, and simply sought identification of any 

additional or unknown co-conspirators.

Here, the government has not identified anyone alleged to have conspired with 

Dr. Warren, despite alleging that it does know who at least some of these people are. 

See Indictment, Doc No. 26, at 1 (“with various other persons known and unknown 

to the grand jury. . .”). Courts have routinely ordered bills of particulars to identify 

alleged participants in a conspiracy when it is not otherwise apparent. See, e.g., 

People v. Harmison, 124 Ill. App. 3d 236, 237, 463 N.E.2d 1373, 1375 (1984) (“The 

defendant could not develop a defense concerning the alleged agreement of the 

unnamed coconspirator without knowing the person’s identity. Consequently, we 

find the indictment did not permit the defendant to prepare his defense.”); United 

States v. Avendano, 2003 U.S. Dist. LEXIS 19228, at *25-26 (S.D.N.Y. Oct. 29, 

2003) (“The defense has shown that it needs the information in order to adequately 

operate within the constraints of the Proffer Agreement. It is unclear from the record 

whether Avendano actually knows the precise identity of the alleged coconspirator 

in the first place.”); see also United States v. Hsia, 24 F. Supp. 2d 14, 31 (D.D.C. 

1998) (“Ms. Hsia is entitled to a bill of particulars identifying, for each relevant 

paragraph of the indictment, which co-conspirator performed the specified acts.”). 

Accordingly, Dr. Warren respectfully requests this Court to direct the 

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government to file a bill of particulars that identifies the alleged co-conspirators for 

the conspiracy charged in Count 1 of the indictment.

RESPECTFULLY SUBMITTED this 19th day of March, 2018.

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 March 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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