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No More Deaths volunteers seek new trial, say prosecutors refused to disclose documents

As four volunteers with No More Deaths face sentencing Friday afternoon, their attorneys are seeking a new trial, arguing that prosecutors "refused to provide relevant, material disclosure," and that the case was part of a "vindictive and selective prosecution."

The four associated with the humanitarian aid group that assists migrants crossing the desert were found guilty of federal misdemeanors in January.

The lawyers said that the government had refused to disclose some documents in the case, but that during the trial prosecutors included testimony that referred to these documents, effectively using them against those defendants. The government also refused to provide the documents to attorneys for another group of No More Deaths volunteers who had faced prosecution.

In a 65-page filing, lawyers for the four — Natalie Hoffman, Oona Holcomb, Madeline Huse, and Zaachila Orozco-McCormick — said the government "refused to provide relevant, material disclosure repeatedly requested by the Defense and exploited the withheld information during the trial in examination of witnesses, cross examination of witnesses, and in presentation of its rebuttal."

"This misconduct and prejudice resulted in Sixth Amendment violations of the Defendants’ due process rights and right to a fair trial," wrote Ann Chapman, an attorney for the volunteers. 

The four women each face up to six months in prison and a fine of $500, after U.S. District Court Judge Bernardo Velasco ruled on Jan. 18 that they violated federal law when they entered Southern Arizona's protected Cabeza Prieta National Wildlife Refuge and left food and water in August 2017 because "they did not get an access permit, they did not remain on designated roads, and they left water, food, and crates in the Refuge," he wrote. "All of this, in addition to violating the law, erodes the national decision to maintain the Refuge in its pristine nature," Velasco said. 

Hoffman was charged with operating a motor vehicle in a wilderness area, and entering a national refuge without a permit, while Holcomb, Huse, and Orozco-McCormick were charged with entering without a permit and abandonment of property, each a class "B" misdemeanor.

Chapman included exhibits of correspondence between herself and Assistant U.S. Attorney Anna Wright, requesting a series of documents, including those held by the office, and federal officials with U.S. Customs and Border Protection and U.S. Fish and Wildlife Services. 

This includes a discovery request for documents, including those held by FWS, Border Patrol, PCSD, the Interior Department and Department of Homeland Security, including "substantive" communications "between and among any agency of the prosecution team relating to any request for permits and access to the Cabeza Prieta National Wildlife Refuge." However, in March 2018, Chapman wrote that the defense only received about 50 pages of documents for one case and 41 pages in another. 

In a sharp letter, included as evidence in her filing, Chapman wrote "again, we have made a very specific request for a material information. This is not a run of the mill misdemeanor case."

"Indeed, as you are likely aware, there is a pending Office of Inspector General investigation into the practices of law enforcement related to some of the issues in this case. To be even more explicit, the specifically requested material is material to defenses including vindictive and selective prosecution, as well as retaliatory prosecution, entrapment by estoppel, and defenses based on the First Amendment and the Religious Freedom Restoration Act," Chapman wrote. 

Along with their motion, the defense also submitted a declaration from Susan Rutman, a former botanist and plant ecologist at Organ Pipe Cactus and Cabeza Prieta, who said that "although border-related law enforcement activities can enhance Wilderness quality" law enforcement activity, "particularly by Customs and Border patrol" have "significantly and substantially degraded the Cabeza Prieta wilderness." She also said that the Sonoran Pronghorn were likely not affected by the volunteer's entry into the Charlie Bell Well area. While the women violated the law, "there is no evidence and no reasonable likelihood to a single passage along the administrative road caused any damage to flora, fauna, or wildlife."  

A central issue is whether the volunteers may have damaged the "pristine" nature of Cabeza Prieta, and whether the U.S. Border Patrol actually creates their own havoc by driving throughout the wilderness. 

The case is one of three separate prosecutions of a total of nine No More Deaths volunteers, who were charged with a range of offenses for their work in a remote and desolate region of Southern Arizona in 2017 and early 2018. 

Prosecutors settle with first group

While Hoffman and the others face sentencing, last week federal prosecutors decided to drop the charges against four other volunteers — Caitlin Persis Deighan, Zoe E. Anderson, Logan Thomas Hollarsmith, and Rebecca Katie Grossman-Richeimer — who faced their own prosecutions for entering Cabeza Prieta without a permit, and for operating a motor vehicle there in June 2017. 

On Feb. 22, prosecutors announced in a short three-minute hearing, backed on by 100-word court document that the government had agreed to settle the matter, and issue a civil infraction each carrying a fine of $250 for each. 

On Feb. 5, Chapman made similar arguments against federal prosecutors in the case against Deighan and the others, arguing that "Despite withholding requested disclosure" the government used these documents to pursue Hoffman. "The Government’s disclosure misconduct is now the subject of a Motion for New Trial in the Hoffman case," she wrote. "The same defenses raised in Hoffman are also raised in this matter and the same disclosure has been repeatedly requested and refused by the Government on multiple occasions." 

"The Government continual, intentional failure to comply with its disclosure obligations requires an order of the Court to protect the Constitutional rights of these Defendants," Chapman wrote. 

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Deighan and the others said they entered the wilderness on July 19, 2017 after No More Deaths received a call to their hotline that three migrants were in distress. Volunteers said they contacted Border Patrol agents and the Pima County Sheriff's Department, but the agencies "declined to mobilize resources to respond," so instead, the four humanitarian aid workers decided to go to the refuge and search. After searching for several hours, they were stopped and detained by an official with FWS, and later Border Patrol agents. 

Ninth volunteer still faces harboring charges

Meanwhile, federal prosecutors continue to press their case against the ninth member of No More Deaths, Scott Warren, who was arrested by U.S. Border Patrol agents on January 17, 2018, at the "Barn," a privately owned building in Ajo, regularly used as a staging point for volunteers who want to offer humanitarian aid in the harsh deserts surrounding the small Arizona town west of Tucson. 

Warren faces two counts of harboring illegal aliens and one count of conspiracy to transport and harbor illegal aliens. If convicted and sentenced to consecutive terms, Warren could face more than two decades behind bars. In the indictment, federal officials said that Warren "did knowingly and intentionally combine, conspire, confederate, and agree with various other persons" unknown to the grand jury to transport and move two men, identified as Kristian Perez-Villanueva and Jose Arnaldo Sacaria-Goday. Warren was also charged with attempting to "conceal, harbor and shield" the men to avoid detection by immigration officials.

While federal officials once attempted to prosecute a No More Deaths member in 2008 for littering in the Buenos Aires National Wildlife Refuge, another federal refuge managed by FWS—a conviction that was overturned two years later by the 9th Circuit Court of Appeals—up until recently, there has been a long standing détente between humanitarian groups and federal wildlife officers. 

However, in 2016 federal officials increasingly began to interfere with No More Deaths. In December 2016, security guards banned volunteers from the Barry M. Goldwater bombing range and the adjacent Cabeza Prieta refuge. Then, during the summer of 2017, Border Patrol agents raided the permanent No More Deaths camp near Arivaca, Ariz., after setting up a temporary checkpoint nearby and conducting surveillance on the camp.

Then, in July 2017, FWS cited Deighan's group for entering Cabeza Prieta, and in August of that year, Hoffman's group was cited and the food and water they hoped to leave was collected by FWS officers, and they were later cited. Then, in January 2018 just following the release of a NMD report that argued Border Patrol agents "are responsible for the widespread interference of essential humanitarian efforts" in the 800-square-mile corridor near Arivaca, Warren was arrested at the barn.

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Paul Ingram/TucsonSentinel.com

Volunteers with No More Deaths pass a cross for those who have died in the Arivaca corridor.

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