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Warren trial: BP agents testify NMD volunteer prompted raid with gestures

Border agents acknowledge scene of alleged crimes was left unsecured, unsearched for days

Three Border Patrol agents testified against Scott Warren, a No More Deaths volunteer facing felony harboring and conspiracy charges, as the trial entered its second day Thursday. Prosecutors also showed surveillance video and selfies from two Central American men who were arrested and later deported, arguing that the men did not need humanitarian aid and that Warren was trying to "shield" the men from apprehension. 

Warren, 36, is a volunteer for the humanitarian organization and in January 2018, he was arrested by U.S. Border Patrol agents at the "the Barn," a privately owned rustic building in Ajo, Ariz., regularly used as a staging point for volunteers offering humanitarian aid in the harsh Southern Arizona desert. Warren faces one count of criminal conspiracy to transport and harbor illegal aliens, and two counts of harboring. If convicted and sentenced to consecutive terms, he could face more than two decades behind bars.

Warren's lawyers have argued that his prosecution is part of a campaign to retaliate against No More Deaths, and that the arrests were built on pretext, while federal prosecutors said Wednesday that Warren, rather than the humanitarian organization, is on trial because Warren conspired to transport and "shield" the two men, and that when he was arrested, he was telling the men how to circumvent a Border Patrol checkpoint north of Ajo. 

On Thursday, Border Patrol Agents John Marquez and Brendan Burns testified that they were part of the "disrupt" unit, an anti-smuggling unit at the BP's Ajo station, where approximately 500 agents are stationed just east of the town. 

On the afternoon of Jan. 17, 2018, the two agents set up an observation post about 200-300 yards from the Barn, just across from a rural road on a patch of federally owned land. There, the agents watched through a spotter's scope and binoculars,  and surveilled the ramshackle building for around 90 minutes before Warren arrived driving a green SUV. A while later, Warren came out with two men, later identified as Kristian Perez-Villanueva and Jose Arnaldo Sacaria-Goday. 

Both men were later found to be in the country illegally. 

Although in their original reports, Burns and Marquez said that Perez-Villanueva and Sacaria-Goday were from Mexico, during the trial Wednesday, it became clear that Perez-Villanueva is from El Salvador while Sacaria-Goday is from Honduras. 

Marquez and Burns both testified that the two men matched the descriptions of two men who were reported wandering around the Why-Not gas station in Why, a hamlet about 10 miles from Ajo on Highway 85. As the agents watched, Warren came out and began to gesture toward a series of mountains to the north. 

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During his testimony, Burns said that he saw Warren point out three landmarks that would make it easier for someone to hike out and circumvent a Border Patrol checkpoint on Highway 85 north of Ajo. Burns said that Warren pointed to Child's Mountain, which is marked by antennas and red lights at night, as well as Batamote Peak, and Hat Mountain. 

Burns said that he could see Warren with Perez-Villanueva and Sacaria-Goday, and the three men were having a conversation, and that Warren pointed toward the mountains and the nearby Crater Range. Burns said that he had apprehended migrants in these areas. 

During Burns' testimony, Anna Wright, assistant U.S. attorney, asked the agent if Warren pointed out landmarks to the east, west, or south. 

Burns responded brightly, "No ma'am." 

"He only pointed out landmarks to the north," Wright asked. "Yes," Burns responded. 

During his cross-examination, Kuykendall told the jury that the checkpoint is actually south of Crater Range, and then he asked Burns if he'd made apprehensions to the south of Ajo. "Yes, sir." "To the west, to the east? In all directions, in all the points of the compass, you've arrested migrants?" 

"Yes sir," Burns replied. 

At this point, the agents decided to enter the property and conduct what both agents called a "knock and talk. Using their cellphones and radios, the agents organized a posse of at least 10 law enforcement officers, including Border Patrol agents and Pima County Sheriff's deputies to "secure the area," Burns testified. 

During this exchange, Burns texted to another agent, that there were "2 toncs at the house," using a racial epithet for undocumented people. Another agent replied, "Nice!" according to court documents. 

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." 

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During his cross-examination, Warren's lawyer, Greg Kuykendall honed in on this expression, asking Marquez, "so you described two human beings as 'toncs'?" 

Marquez said that he did, and Kuykendall asked the agent if he knew what the term meant, and asked if the term referred to the sound of flashlight hitting someone's skull. "I have heard that definition," Marquez said. "Amongst other definitions." 

Burns told Wright that the term was an acronym that "just means illegal alien." It means anyone who is illegally present, he said. 

Kuykendall also focused on a report from the anti-smuggling unit that two men were in Ajo two days earlier, on Jan. 18. Marquez said that he was told that agents had apprehended one man, and that he said two other "OTMs, or other-than-Mexicans" were in the area, and that the two men at the Barn with Warren matched their description. 

"They matched their description?" asked Kuykendall. "Or they matched the description of two brown people?" 

"In my experience, they were other-than-Mexican," said Marquez. "In my mind, these could possibly be them." 

Kuykendall then went through a series of more than a dozen attributes, and the agent said that he didn't know if the two men he later arrested matched those descriptions. "Where they tall? Or where they short? Where they fat? Skinny? Bearded? Old?" 

"You didn't know anything about them other than, they were not Mexican, isn't that true?" Kuykendall asked. He then asked Marquez to review an "intel report" which identified the two subjects as male. "There's no description of the men in there?" 

Marquez answered no. 

At 5:35 p.m., hours after they began their surveillance, the agents decided to raid the Barn. As Burns walked up the road, agents were already talking to Warren, who said that the building was for "humanitarian operation," Burns said. He came around the building and found Perez-Villanueva sitting on the threshold between the bathroom and a breezeway. He then decided to do a "protective sweep" and found Sacaria-Goday hiding in the shower, holding the shower curtain closed with his hands. 

Surveillance videos and selfies

During Burns' testimony, Wright after struggling with a recalcitrant computer until a break, showed the jury surveillance video of the Ajo gas station. The videos show both Perez-Villanueva and Sacaria-Goday hanging out, purchasing sports drinks, food and cigarettes in an eating area. During this, Wright asked Burns if he could see that the men were injured, or limping, or holding their sides. Instead, the men appear to wander around, waiting, and eventually one of them bought a cellphone charger. 

Wright also brought out a map, and showed the jury that the two men had passed not only the Border Patrol station, a medical clinic, and the Ajo ambulance service, arguing without saying so that the men were not in any medical distress when they came to the Barn. Burns answered each time that the men seemed fine, noting that in one video at the Why-Not gas station earlier that morning, Perez-Villanueva confidently approached a gas station customer at the pump. 

Later, Wright also brought out selfie photos taken by Perez-Villanueva that shows him standing in the living room of the Barn smiling, another photo that shows him cooking, and photos of him inside the bathroom with an undershirt and jeans and then shirtless.  

"Are there any cuts, scratches or bruises, or other signs of visible injury?" Wright asked. No, replied Burns each time. 

During cross-examination, Kuykendall asked Burns, "You're not a medical doctor, EMT, or nurse?" He also asked if someone could be dehydrated without showing it. 

Kuykendall also asked Burns if he knew about two other people who left the Barn during their surveillance, and Burns replied that he didn't remember. 

Barn left unsecured by agents  

As Kuykendall laid out during his opening arguments, the agency waited until Monday, Jan. 22, 2018 — days after the Jan. 17 arrest — to execute a search warrant on the property. Kuykendall brought this up again, and during questioning Marquez admitted that he "had no recollection of anyone securing the property." 

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Later, during his cross-examination of Burns, the agent said that he was unaware that the Barn was left unsecured until Kuykendall told him. 

"I don't know sir, I wasn't aware that it was left unsecured," Burns said. 

"When?" Kuykendall asked. 

"Just now when you said that, sir." Burns said. Kuykendall seemed surprised, and then he replied, "Well, thank you for your honesty." 

Fingerprints 

As the day came to a close, Border Patrol Agent Andrew Beglin, part of the evidence collection team, testified that he removed more than 90 items from the building, and that he tried to collect fingerprints, but that there were none on many of the hard surfaces, indicating that the areas had been cleaned. 

Earlier, Burns testified that someone had removed some papers from the wall in the living room, as well as a set of two-way radios, several pairs of shoes and clothing that he saw the day of Warren's arrest. 

During his cross-examination, Kuykendall showed two notes that were seized as evidence by Beglin, and a receipt from a Circle-K in Tucson from Jan. 18, 2018.

Beglin said that he did not know who was at the Barn over a five-day period, and as Kuykendall noted, other groups had gone through the building, including one that helpfully left a note about "great bagels from Flagstaff," and veggies in the fridge. Another note from Jan. 19, began with "hi buds," and listed camping equipment and buckets for "poop," a line that drew guffaws from the audience. 

He also asked the agent if he knew if the microwave, washer and dryer, were he took fingerprints, worked. Beglin said that he did not know. 

After Beglin was dismissed, the court took recess for the day, and will begin again on Monday at 9:30 a.m. 

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Paul Ingram/TucsonSentinel.com

Scott Warren in Ajo, Arizona in August 2018.

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