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Warren trial: Deadlocked jury given 'Allen charge' by judge, told to keep deliberating

Judge invokes pressure to avoid hung jury in No More Deaths case

The jury reviewing the case against No More Deaths volunteer Scott Warren will continue to deliberate for a third day, after the judge in the case issued an "Allen charge" Monday and instructed them to try to reach a unanimous verdict.

Warren is facing one count of criminal conspiracy to transport and harbor illegal aliens, and two counts of harboring stemming from his January 2018 arrest by U.S. Border Patrol in Ajo, Ariz.

The jury of eight women and four men deliberated for about 11 hours over Friday and Monday, but has not yet reached a decision following the seven-day trial. 

U.S. District Judge Raner Collins' move to formally instruct the jury to continue deliberating indicates that they are deadlocked on at least one of the charges against Warren.

The instructions ask jurors to reexamine their own views, but not to change "an honest belief" because of the opinions of fellow jurors or "for the mere purpose of returning a verdict."

A "hung jury" would be the result if the jurors do not reach unanimous consensus on the three charges.

Collins issued the instruction to the jury just before 5 p.m. on Monday, after the group informed him that they had been unable to reach a decision on the three charges.

During the trial, including in final arguments last week, prosecutors argued that Warren "harbored and shielded from detection" two men in the country illegally at the Barn, and that he was at "hub" of a plan to transport and protect the two men after they illegally crossed the border by climbing over the border fence somewhere near Sonoyta, a Mexican border town. 

Along with Warren, Border Patrol agents arrested Kristian Perez-Villanueva, a 23-year-old man from El Salvador, and Jose Arnaldo Sacaria-Goday, a 21-year-old man from Honduras. The men arrived together and stayed for four days and three nights at the Barn. 

Warren and other volunteers testified that the men needed medical care, as they were suffering from blisters on their feet, a minor cold, and injuries from being in the desert. However, prosecutors said that this was a "smokescreen," and repeatedly referred to selfie photos captured from Perez-Villanueva's cellphone and surveillance video from the Why-Not gas station in Why, Arizona to show that the men were not injured or sick. 

Evidence of a humanitarian crisis, and the loss of lives in the desert didn't matter because border crossers haven't died in Ajo. "That's not this case, that's a smokescreen and a distraction for this case," assistant U.S. Attorney Anna Wright said during her closing arguments. 

On Wednesday, Border Patrol said that it recovered the body of a Guatemalan woman who died trying to cross the Barry M. Goldwater bombing range, which sits just to the north of Ajo and straddles Highway 85.

Wright said that after Perez-Villanueva and Sacaria-Goday arrived at the barn, Warren called Susannah Brown, a registered nurse who volunteers for No More Deaths, not in an effort to get the men medical attention, but rather because she was involved in the "plan" to smuggle the men. 

Perez-Villanueva's phone remained a lynchpin to the prosecutor's case, and Wright highlighted as much saying that while other people who testified might have a bias, the photos and video were evidence that "doesn't lie." 

Prosecutors showed video from Perez-Villanueva's phone in which Brown briefly speaks with him during a Christmas Day celebration at the shelter in Sonoyta. In the video, Perez-Villanueva asks the nurse her name, and she responds with the same question. 

The video also showed for a brief moment, a man who remains at the periphery of the case. 

As Perez-Villanueva turns his camera, Irineo Mujica comes into view and tells the man to put the phone down. Mujica and Warren had repeatedly emailed about the shelter and its needs, according to documents shown to the jury. Warren said that he called Mujica to help arrange a Jan. 12 visit to the shelter, and that a group of No More Deaths volunteers went to Mexico to bring water and operate a temporary medical clinic. 

Prosecutors argued that these calls, and the visit was part of the plan, and noted later that night, Perez-Villanueva and Sacaria-Goday decided to cross the border. 

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This brief interaction was enough to show a nexus of relationships between Warren, Mujica, Perez-Villanueva and Brown that could not be a coincidence, Wright argued. 

While Warren testified Wednesday, Mujica was arrested in Sonoyta by Mexican authorities. 

While Mexican officials have been tight-lipped about the reason for his arrest, the incident comes on the heels of demands by the Trump administration to crack down on migration through Mexico, or face rising tariffs on goods coming into the United States along the southwestern border. 

On Friday, the Trump administration backed from the tariff threat, after Mexico agreed to "curb irregular migration" and deploy troops to its southern border. This would include an expansion of the troubled Migrant Protection Protocol, which has been the focus of a series of lawsuits, across the entire southwestern border, including Arizona. 

Defense lawyers said that instead, prosecutors had on "guilty goggles," and tried "to twist and interpret" everything that Warren did during the week before he was arrested as evidence of his guilt. "But, there is no evidence of guilt in this case," said Greg Kuykendall, Warren's defense attorney, during closing arguments Friday. 

During the trial, a Border Patrol agent testified that he reviewed 14,000 pages of data from Warren's phone, and from those thousands of pages the agent produced a one-page report. "They were not interested in innocence," Kuykendall said. 

Defense attorney Greg Kuykendall said that it was "frankly terrifying, just terrifying" that his client was charged with a "total lack of evidence."

"It's just supposition," he said. 

Kuykendall also said that emails between Mujica and Warren, along with others showed that Warren was working on search and rescue and recovery efforts, and that when volunteers went to help the "Hope Shelter" there, they should contact Mujica. 

The U.S. government, he said, had all the power and resources to direct the agent to investigate and present all the evidence to the jury, he said. He also argued that the government failed to interview Mujica, noting that as one of the agents who arrested Warren — Brendan Burns — testified, he was called to a checkpoint after Mujica was held in a secondary inspection area, and yet he did not "interrogate" the man who might be at the center of the conspiracy. 

Photos from Perez-Villanueva's phone shows the two men inside a van, after apparently leaving a gas station in Ajo. In the warrant for Warren's phone, another agent noted that in Mujica's vehicle Burns found black water bottles, a notebook containing a "detailed account" of travel through Mexico, and identity cards of men who were later apprehended by Border Patrol. However, Mujica wasn't arrested by Burns, and weeks later, a passenger in his van was apprehended for being in the country illegally, leaving questions about Mujica's role in Warren's case. 

During opening arguments, assistant U.S. Attorney Nathaniel Walters tried to downplay the case's consequences for humanitarian aid in the borderlands. While Warren is a "high-ranking member" of No More Deaths, the group was not on trial, rather Warren is "on trial," Walters said. 

"This case is not  about humanitarian aid or anyone in medical distress," Walters said. "But, rather, this is about an attempt to shield two illegal aliens for several days," from law enforcement, he said. 

However, during her closing arguments, Wright focused on the idea that Warren was a "high-ranking member" of No More Deaths, and she admitted that Warren did not receive a financial benefit, but said that instead, Warren "gets to further the goals of the organization" and "thwart the Border Patrol at every turn."

During the trial, the two Border Patrol agents— Burns and John Marquez —said they 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. 

As part of an anti-smuggling unit called the "disrupt unit," the agents said they worked to break up smuggling organizations, but on Jan. 17—the same day that No More Deaths published a report that was highly critical of the agency, including videos of Border Patrol agents destroying water drops that immediately went viral—the two plain-clothes agents parked themselves near the Barn, and using a spotting scope, zeroed in on Warren "gesturing" to the mountains with two men they believed to be illegally in the U.S. 

Warren said during the trial that he was trying to "orient" the men, who were preparing to head north, and that he was telling them to stay inside a valley between Child's Mountain and Hat Peak, where they "if they got in trouble" they could head to Highway 85 and seek help. Prosecutors said that Warren was telling the men how to bypass a Border Patrol checkpoint on the highway and that Warren was giving them a pathway to follow from Ajo toward Interstate 8. 

Warren said that he stayed outside and was working on building a fire in preparation for students from a high-school in Flagstaff to come the Barn, when he saw a "convoy" of vehicles heading his way. Once agents came up to the barn, Warren said during testimony that he was handcuffed within two minutes, but that he offered to walk into the Barn with the agents. 

Burns and Marquez arrived moments later, and went around to the back where Perez-Villanueva was sitting on the threshold in the bathroom door. Inside, Sacaria-Goday was hiding behind the shower curtain. 

Wright attacked Warren's credibility, saying that by seeking "context" he was actually trying to "distract" from the central issue and that Warren use of the word "orientation" was just a "fancy word for giving people directions." When he was outside and spotted by Border Patrol agents, he was giving the men information so they could go "from point A, Ajo, to point B, Interstate 8." These directions gave the men a "path" to follow away from the Border Patrol checkpoint allowing them to "further their journey," she said. 

Federal officials have attempted to prosecute humanitarian volunteers before, though after two high-profile cases in 2005 and 2008, the government avoided formal prosecutions until 2017, when nine No More Deaths volunteers–including Warren—were charged with entering a wildlife refuge without a permit and leaving food, water, and other supplies on the Cabeza Prieta National Wildlife Refuge, a 800,000-acre wilderness, west of Ajo. 

In 2005, agents arrested Shanti A. Sellz and Daniel M. Strauss after they stopped the two volunteers, and found three people in the country without authorization in their car. However, that indictment was tossed by U.S. District Judge Raner Collins—the same judge who is overseeing Warren's case. 

In 2008, U.S. Fish and Wildlife officers cited volunteer Dan Millis for littering on the Buenos Aires National Wildlife Refugee after he left water jugs there, however, the Ninth Circuit Court of Appeals overturned his conviction. 

But, after eight years, a detente between the group and Border Patrol began to collapse, beginning with surveillance of the group's camp on private land south of Arivaca in 2016, and followed by a June 2017 incident when, with a warrant in hand, Border Patrol agents raided the camp and arrested four men, all migrants suspected of being in the country illegally. 

That raid followed an announcement by then-Attorney General Jeff Sessions who told reporters during a press conference in Nogales on April 11, 2017 that federal prosecutors "are now required to consider for prosecution" the "transportation or harboring of aliens." 

Sessions announcement was part of the Trump administrations "zero tolerance" policies as part of a hard-nosed crackdown on border and immigrant communities, and just nine months later, prosecutors in Tucson sought an indictment against Warren. 

Kuykendall also questioned the credibility of the agents, noting their use in messages in a group chat of the word "tonc." 

The term "tonc" or "tonk" is widely used by agents to refer to border-crossers, but the term's origin is unclear. 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." 

And, Kuykendall said that Burns did not know that the Barn remained unlocked and unsecured. After Warren's arrest on Jan. 17, 2018, Border Patrol agents waited until Jan. 22 to execute a warrant and search the property. Burns appeared to not know that detail until he was told so by Kuykendall in court. 

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"What kind of investigation is this, that leaves the building unsecured for 120 hours?," the attorney rhetorically asked the jury.

Kuykendall also argued that the two men who also arrested with Warren were given immunity from immigration charges so they would testify in a video deposition shown to the jury on Monday.

"They are the government's own witnesses" and yet they disputed some of Wright's arguments. "This is the best the government can come up with?" he asked. 

Kuykendall said that government's lack of evidence, "if it weren't so scary, it would be laughable."

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Paul Ingram/TucsonSentinel.com

Scott Warren waits for a jury to return a verdict on Friday, June 7, 2019.

Model instructions for deadlocked juries

Federal procedures allow for the "Allen charge" — named for an 1896 Supreme Court case — an instruction for juries that have been unable to reach a unanimous verdict. Arizona state courts do not allow judges to so instruct juries. Warren is being tried in U.S. District Court, so this instruction approved by the 9th Circuit Court of Appeals could be applied by the judge in his case:

Members of the jury, you have advised that you have been unable to agree upon a verdict in this case. I have decided to suggest a few thoughts to you.

As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict if each of you can do so without violating your individual judgment and conscience. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to reexamine your own views and change your opinion if you become persuaded that it is wrong. However, you should not change an honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict.

All of you are equally honest and conscientious jurors who have heard the same evidence. All of you share an equal desire to arrive at a verdict. Each of you should ask yourself whether you should question the correctness of your present position.

I remind you that in your deliberations you are to consider the instructions I have given you as a whole. You should not single out any part of any instruction, including this one, and ignore others. They are all equally important.

You may now retire and continue your deliberations.

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