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Lawyers for No More Deaths volunteer argue surveillance, arrest was 'retaliatory'

Lawyers are asking a federal court to dismiss harboring charges against a No More Deaths volunteer, arguing that newly disclosed text messages show the decision to keep watch on the group was based on a "patently pretextual explanation," and done in retaliation for a critical report on Border Patrol released just hours earlier.

Scott Daniel Warren was arrested on Jan. 17, 2018, at the "Barn," a privately owned building in Ajo, regularly used as a staging point for volunteers offering humanitarian aid in the harsh deserts surrounding the small Arizona town west of Tucson.

After his arrest, federal officials sought to expand the charges from the single count of harboring that Warren was arrested for, and a grand jury agreed, indicting him with 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 an 80-page document filed last Thursday by attorney Amy Knight, who is representing Warren pro bono along with Gregory Kuykendall, she wrote that the court must dismiss the charges against Warren, or "at the very least, order the disclosure of evidence necessary" to show that Warren was the subject of selective enforcement. 

In sharply critical language, Knight wrote that text messages between Border Patrol agents, and officials with U.S. Fish and Wildlife Services show that on the afternoon of January 17, Border Patrol agents "decided to begin surveilling a NMD facility and provided a patently pretextual explanation for this choice."

Knight argued that there was "strong evidence" that the actions of one of the Border Patrol agents who arrested Warren "were motivated by his feelings about the group and its activities, rather than by legitimate law enforcement interests." 

And, Knight wrote that in a report describing his decision to keep watch over the Barn, the agent’s explanations were "abjectly false; even a cursory examination of the details reveals that this was not the true reason for the Border Patrol’s actions in setting up surveillance." 

The text messages were released following a November 7 order by U.S. District Judge Bernardo Velasco, who required prosecutors to "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."

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Federal prosecutors have yet to file a response, and TucsonSentinel.com asked for comment from U.S. Customs and Border Protection and the government's attorneys, but they have not responded. 

CBP typically will not comment on "pending litigation."

The Barn has become a staging ground for No More Deaths as the group has shifted its efforts from the Arivaca corridor, north of Nogales, to the harsh and remote terrain of the Cabeza Prieta National Wildlife Refuge, a remote 800,000-acre wilderness area.

At least 137 human remains have been found from 2001 to 2018, including 32 in 2017 alone in the Cabeza Prieta corridor, according to database operated as a joint collaboration between Humane Borders, its own humanitarian organization, and Pima County's Office of the Medical Examiner. 

Texts show Marquez tracking NMD with 'a kind of relish'

In her filing, Knight wrote that messages between Marquez and Margo Bissel, a FWS official at the Cabeza Prieta National Wildlife Refuge, along with other agents showed that Marquez was "actively tracking NMD members, and, based on the tone of the exchanges, was doing so with a kind of relish not reflective of proper law enforcement motives." 

"Notably, the activities he was discussing with Bissel involved placement of food and water in the desert; there was no mention of anything to do with conduct that might violate immigration laws, and thus be of relevance to any proper purpose Marquez may have had," Knight wrote. Marquez also met with FWS officer Donald Ebann, who sent the agent photos of Warren's vehicle, and a copy of a permit for entry on the wildlife refuge. 

"Thus, Marquez was again using FWS personnel to collect information about the comings and going of NMD members in the course of their work supplying emergency aid supplies in remote areas," Knight said. And, she noted that Marquez described Ebann and Bissel each as a "concerned citizen." 

Marquez also asked Bissel to let him know when "beandroppers" asked for permits, apparently referring to the fact that No More Deaths volunteers regularly leave canned beans at food drops. Bissel replied that she would "figure out who they are," Knight wrote. 

In Marquez's report, he said Ebann notified him "of suspicious activity near his place of residence in Ajo, Arizona," which turned out to be the Barn. 

"This disingenuous attempt to pretend he was simply communicating with a citizen making a report suggests that Marquez released his unofficial inter-agency collaboration to track group members may not have been entirely permissible," Knight wrote.

If Marquez was being “truthful in his report, then he apparently regarded the simple fact” of NMD’s presence to be “suspicious," she wrote. 

Warren's arrest linked to Arivaca raid & critical report

During a previous hearing in August, Knight and Kuykendall linked their client's arrest to the release of a report by No More Deaths and Derechos Humanos that implicated BP agents in the Tucson Sector with intentionally destroying food and water caches. 

In the report, released the same day Warren was arrested, No More Deaths said that from 2012 to 2015, 415 caches of water left for crossers in the 800-square-mile corridor near Arivaca, south of Tucson, were vandalized, spilling nearly 3,600 gallons of water into the desert. Using statistical analysis, including land-use patterns, as well as video from trail cameras, and personal experiences to support their claims, the group said that U.S. Border Patrol agents "are responsible for the widespread interference with essential humanitarian efforts." 

The group also published videos of Border Patrol agents intentionally destroying water bottles, including a video in which a female Border Patrol agent systematically kicked a half-dozen water bottles, spilling their contents, and a 2017 video in which an agent punctured a water bottle with a knife. 

Genevieve Schroeder, a fellow volunteer with No More Deaths, said in last February that the arrest of Warren was "noteworthy" because it came just hours after the release of the report, and videos that "went viral." 

"The timeline, folks can look at that and it's intriguing," she said. 

Moreover, Warren was one of nine No More Deaths volunteers who was prosecuted by U.S. officials following incidents in 2017 and 2018. 

In Feb., federal prosecutors agreed to drop charges against four NMD volunteers, agreeing to issue civil infractions and a fine of $250. 

Meanwhile, four other volunteers were found guilty by Judge Velasco on Jan. 18, and on March 1, they were sentenced to 15 months unsupervised probation and a fine of $250. 

In her filing, Knight also noted that another Border Patrol agent was furious over bad publicity that the agency received after it decided to raid the No More Deaths camp just south of Arivaca, and arrest four Mexican men suspected of being undocumented. 

According to testimony from Dr. Robin Reineke, the head of the Colibri Center, which works with the Pima County's medical examiner to identify people who have died in the desert, following the raid she met with BPA Mario Agundez, who was "defensive and angry" and said that NMD had gone "too far" in generating negative press, and that the group had "messed with the wrong guy." According to Reineke, Agundez said that the Border Patrol intended "to shut them down." 

"This report constitutes direct evidence that Border Patrol possessed the intent to retaliate against NMD for their practice of publicly criticizing the agency," Knight wrote. 

"Thus, during the approximately six-month period following the raid on the Arivaca camp and Agent Agundez’s expression of the Border Patrol’s anger at the group over bad press and intention to shut them down, Agent Marquez actively collected information on  group members and tracked their activities, without ever documenting any connection to real or even suspected criminal activity. Why he paid such extensive attention to work he only ever described as 'humanitarian,' he never says," Knight wrote. 

As part of the report's release, a No More Deaths volunteer emailed the report to Steven Passament, a Border Patrol agent, and later, the Patrol Agent in Charge of the Ajo Station Fernando Grijalva emailed the report to a deputy with the Pima County Sheriff's Department with the text "For your situational awareness." 

Early that same afternoon, Marquez texts Ebann that that he and his partner, "are gonna set up for a few hours to watch the barn."

Ebann replies that “NMD is going to be on news channel 4 at 10 pm talking about vandalism to their water drop sites.” 

Marquez responded, “Oh wow. That’s awwsome. Wonder who they are gonnablame [sic]." 

'Toncs at the barn,' and the Brave Dogs 

In a group text, nicknamed “Los Perros Bravos part 3,” Marquez's partner Brendan Burns sends text messages to a larger group of agents, including Allberto Ballesteros, apparently nicknamed “Balls” by other agents. 

In the message to Ballesteros and Marquez, Burns tells the two agents, “2 toncs at the house,” using a racial epithet for undocumented people,  Ballesteros replies “Nice!” 

The term "tonc" is widely used by agents to refer to border crossers, but the term's origin is unknown. Some have argued that the term refers to the sound of a metal flashlight hitting a skull, while others have said that it stands for "temporarily outside naturalized country," or "true origin not known." 

Burns later writes to the group, "Toncs at the barn." 

"This is surely not the reaction of a professional Border Patrol agent every time he locates an undocumented individual. Nor is it the reaction of a Border Patrol Agent who had reasonable suspicion in the first place that the surveillance of the Barn was going to reveal the presence of undocumented aliens," Knight wrote. 

The agents later entered the property, and arrested Warren, "an additional act of discriminatory retaliation," Knight wrote. "The only evidence agents  had when they entered the property was their assumption that due to 'ill-fitting clothing' the two men were undocumented, and their glimpse of Dr. Warren standing with the men, pointing somewhere to the North." 

"The conclusion is inescapable that they arrested Dr. Warren because they perceived him as a leader of the group that had criticized them, and because he had nearly derailed their raid by asserting his constitutional rights. Such a retaliatory arrest lacking probably cause is strong evidence of selective enforcement. 

"All of the above evidence establishes that the Border Patrol was at least partially motivated by a desire to retaliate against NMD for its report," she wrote. 

"Crucially, the impermissible motive need not be the sole motivating factor," Knight wrote. "Even if the Border Patrol was legitimately attempting to stop what was viewed as harboring, and to locate undocumented individuals, if it was also undertaking these actions to punish the people who had criticized and embarrassed them, that violates the Firth Amendment, and requires dismissal of the indictment." 

On Thursday, a minute order also showed that the case has been reassigned to Magistrate Judge Thomas Ferraro, with a jury trial scheduled to begin on May 29. 

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Paul Ingram/TucsonSentinel.com

Scott Warren during a ceremony in Ajo last August.