1

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

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.

)

)

)

)

)

)

)

)

)

)

No. 18-cr-00223-RCC(DTF)

DEFENDANT’S MOTION

IN LIMINE TO PRECLUDE 

EVIDENCE OF MARIJUANA PIPE 

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

Kuykendall and Amy P. Knight, hereby moves this Court to preclude the government from 

introducing any evidence pertaining to the marijuana pipe and jar that were found on the 

property where he is accused of harboring illegal aliens, five days after his arrest. 

Facts

Dr. Warren was arrested on January 17, 2018 while visiting “the Barn”—a sharedspace facility in Ajo, Arizona that is used by various humanitarian groups, including No 

More Deaths (NMD). Nearly a dozen individuals had been staying at the Barn around the 

time of Dr. Warren’s arrest, and several organizations had access to the facility, with 

volunteers coming and going on a regular basis. Dr. Warren visited the Barn periodically 

Case 4:18-cr-00223-RCC-DTF Document 224 Filed 05/23/19 Page 1 of 4
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

in connection with his NMD work but did not live there or have any control over what 

occurred there when he was not present. A large group of border patrol agents and sheriff’s 

deputies entered the property without a warrant in the late afternoon on January 17, 2018.

After arresting Dr. Warren, the agents left without searching or securing the Barn. 

Eventually, on January 22, 2018, the agents obtained and executed a warrant and 

searched the Barn. They found a marijuana pipe and a plastic blue jar. Dr. Warren was not

present during the search and no evidence exists that he returned to the Barn between his

January 17 arrest and the January 22 search. Meanwhile, numerous volunteers had used

the space during the five days after Dr. Warren’s arrest and before the search. 

Argument

This Court must preclude the government from introducing evidence of the 

marijuana paraphernalia at trial because it is completely irrelevant to the charges and lacks 

any connection to Dr. Warren. See Fed. R. Evid. 401 (evidence is relevant if: “(a) it has 

any tendency to make a fact more or less probable than it would be without the evidence; 

and (b) the fact is of consequence in determining the action.”). The government has 

charged Dr. Warren with harboring illegal aliens and conspiracy to transport and harbor;

none of these charges has anything to do with drug use, or even with general unlawfulness 

outside of the context of immigration laws. Accordingly, the fact that Border Patrol agents 

found a pipe and a jar on the property where Dr. Warren is accused of harboring has no 

tendency to make any fact of consequence more or less probable. Cf. United States v. Loftis, 

843 F.3d 1173, 1176 (9th Cir. 2016) (evidence of other acts potentially relevant where they

form part of a charged conspiracy or scheme). Indicia of marijuana use is unquestionably

not part of the harboring, concealing, and/or transporting with which Dr. Warren was 

charged, and could not have furthered the alleged harboring conspiracy in any way. It is 

therefore irrelevant and should not be admitted. Cf. Fed. R. Evid. 402.

Furthermore, there is zero evidence that the paraphernalia belonged to Dr. Warren. 

It was found at the Barn five days after his arrest and there is evidence that multiple people 

had visited—and even resided—there during the relevant timeframe. And, as mentioned 

Case 4:18-cr-00223-RCC-DTF Document 224 Filed 05/23/19 Page 2 of 4
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

above, Dr. Warren did not own or control the Barn and the government has presented no 

evidence that he was there between his arrest and the search. The paraphernalia could have 

belonged to any of the numerous individuals who had visited the Barn at some point before 

or after Dr. Warren’s arrest. Thus, in addition to being irrelevant to the charges, the

evidence is also insufficiently linked to Dr. Warren to warrant its admission. 

Even if the paraphernalia were somehow relevant and sufficiently attributable to Dr. 

Warren, it would still be inadmissible under Rule 403 and Rule 404(b) because it 

constitutes evidence of an uncharged crime, and the risk of unfair prejudice would 

outweigh whatever miniscule probative value the evidence might have. See Fed. R. Evid. 

403, 404(b); see also United States v. Dorsey, 677 F.3d 944 (9th Cir. 2012) (relevant 

evidence may be excluded if probative value is substantially outweighed by danger of 

unfair prejudice); cf. United States v. Cassim, 693 F.Supp.2d 697 (S.D. Tex. 2010) 

(evidence of marijuana and paraphernalia found during search of defendant’s residence

inadmissible in conspiracy to commit copyright case where it was not offered for proper 

purpose under 404(b) and was insufficiently relevant to charge). Evidence of drug use is, 

in and of itself, highly prejudicial. See United States v. Vizcarra-Martinez, 66 F.3d 1006, 

1013 (9th Cir. 1995). For that reason, there must be a sufficient contextual or substantive 

nexus between collateral drug-use evidence and the charges before the evidence can be 

admitted. See id. (“The mere fact that a defendant is in possession of a small amount of a 

prohibited narcotic substance at the time he commits a crime is not enough to support the 

introduction of the evidence of drug usage.”); cf. Fed. R. Evid. 404(b). 

Here, no nexus exists. The fact that Border Patrol agents discovered a pipe and a 

jar at the building where Dr. Warren is accused of harboring aliens is not probative of 

anything in this case. Vizcarra-Martinez, 66 F.3d at 1013 (mere fact that defendant 

possesses drugs while committing another crime does not justify admission of drug-use 

evidence). There is no connection between the paraphernalia, Dr. Warren, and/or the 

alleged alien harboring, let alone one that is sufficient to overcome the inherently 

prejudicial effect the paraphernalia evidence would have upon the jury’s decision. See id.

Case 4:18-cr-00223-RCC-DTF Document 224 Filed 05/23/19 Page 3 of 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

at 1017; cf. United States v. Haischer, 780 F.3d 1277, 1282 (9th Cir. 2015) (evidence 

unfairly prejudicial if it tends to adversely affect jury’s attitude toward defendant wholly 

apart from its judgment as to guilt or innocence of crime charged). As a result, it must be 

precluded.

Conclusion

The marijuana paraphernalia has no bearing upon the government’s case against Dr. 

Warren. It is completely irrelevant to the alleged harboring conspiracy and provides no 

context to the events leading to the charges. Cf. Fed. R. Evid. 401. It is also highly 

prejudicial and is has no probative value. Cf. Fed. R. Evid. 403; Fed. R. Evid. 404(b). 

Accordingly, this Court must preclude all evidence and testimony pertaining to the 

paraphernalia.

Dated this 23rd 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 23rd, 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

Case 4:18-cr-00223-RCC-DTF Document 224 Filed 05/23/19 Page 4 of 4