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Retrial looms for Scott Warren as prosecutors consider launching new case

Jury deadlocked in first federal felony trial; No More Deaths volunteer still faces misdemeanor sentencing

Three weeks after a jury declared they were unable to reach a decision in the case against No More Deaths volunteer Scott Warren, federal prosecutors will announce Tuesday morning whether they will again pursue criminal charges.

The 36-year-old humanitarian aid volunteer and Arizona State University professor could again face felony charges, including 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.

A hearing in the case is set for 9:30 a.m. Tuesday.

Warren still also faces sentencing on misdemeanor convictions after a separate federal trial in May.

Related: Scott Warren trial: Hung jury in case of No More Deaths volunteer

Warren's first felony trial began on May 29, and after a seven-day trial, jurors deliberated for about 11 hours over two days before they told the court they were struggling to reach a decision. U.S. District Judge Raner Collins, who oversaw the trial, told the jurors to continue their deliberations, and issued an "Allen charge" instructing jurors to try to reach an unanimous verdict. Among the instructions read by Collins in court, jurors were told 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."

But,the next day, the third of deliberations, it became clear that the jury could not reach an unanimous verdict, and Collins declared a hung jury. Following the announcement, Collins set a new hearing for July 2, giving prosecutors time to consider whether they would pursue a retrial. 

During the trial, 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.

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Warren, along with two men in the country without authorization, was arrested during at raid by several Border Patrol agents at "the Barn," a ramshackle building on the town's outskirts regularly used as a staging point for volunteers who have been working to stem an increasing number of deaths in the remote wildlife refuges west of the unincorporated town.

As the trial loomed, Warren's prosecution took on national and international importance, and humanitarian volunteers lead by No More Deaths collected more than 120,000 signatures and submitted them to the U.S. Attorney's Office in Tucson just days before the trial began, asking for them to drop the charges. 

Warren's prosecution also came to the attention of human rights experts from the United Nations, who wrote that "providing humanitarian aid is not a crime. We urge the U.S. authorities to immediately drop all charges against Scott Warren."

In a letter written by Michael Forst, a special rapporteur on the situation of human rights defenders, the UN body said that Warren''s work is "vital and legitimate," and said that No More Deaths" upholds the right to life and prevents the deaths of migrants and asylum seekers at the US-Mexican border." 

"The prosecution of Scott Warren represents an unacceptable escalation of existing patterns criminalising migrant rights defenders along the migrant caravan routes," they said. 

Forst also noted that Warren's arrest came "hours after the release of a report" by No More Deaths which linked Border Patrol agents to the "systematic destruction of humanitarian supplies, including water stores, and denounced a pattern of harassment, intimidation and surveillance against humanitarian aid workers." 

The decision to retry Warren will be the first high-profile test for U.S. Attorney Michael Bailey, who was nominated by President Trump in February and just confirmed by the Senate on May 23. Bailey replaced Elizabeth Strange, who served as the acting U.S. attorney for more than two years after John S. Leonardo stepped down from the position in January 2017. 

Warren's case is one of three high-profile prosecutions launched against No More Deaths volunteers, including two misdemeanor trials — one also involving Warren — for the group's efforts to leave food, water, medicine, and other aid in the Cabeza Prieta National Wildlife Refuge. 

Warren's trial in the misdemeanor charges concluded in May, but Collins has not rendered a verdict in the bench trial, leaving Warren's fate in those charges also up in the air. 

After the announcement, Warren thanked supporters supporters and castigated the government for bringing charges against him.

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"In the time since I was arrested in January 2018, no fewer than 88 bodies were recovered from the Arizona desert," Warren said. "The government's plan in the midst of this humanitarian crisis? Policies to target undocumented people, refugees, and their families. Prosecutions to criminalize humanitarian aid, kindness, and solidarity. And now, the revelation that they will build an enormous and expensive wall across a vast stretch of southwestern Arizona's unbroken Sonoran Desert."

Re-trial would be complete re-do of case

With the jury deadlocked and the proceedings declared a mistrial, Collins scheduled a hearing for July 2 to review the felony case. Prosecutors may attempt to re-try Warren on the charges, as the jury did not render a verdict. If they do so, the second trial would be a complete re-do, including the selection of a new jury.

During final arguments, prosecutors argued that Warren "harbored and shielded from detection" two men in the country illegally at "the Barn," a ramshackle house used as a staging point for aid organizations trying to stem what volunteers like Warren have called a "humanitarian crisis" in the deserts west and south of Ajo, an unincorporated town about 110 miles west of Tucson. Prosecutors said 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.

Warren testified in his own defense telling jurors that his spiritual values compel him to help those who "stumble" out of the desert into the neighborhoods of Ajo, Ariz., and that doing so is "good and right, especially in a place that feels like a low-intensity conflict."

No More Deaths has maintained that the arrests of Warren and others were retribution for the release that same day of a report by the humanitarian aid group, documenting claims that Border Patrol agents vandalized water caches placed for migrants crossing the desert.

Along with the 36-year-old geography professor, 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.

After the trial closed, Warren noted that "the other men arrested with me that day Jose Sacaria-Goday and Kristian Perez-Villanueva, have not received the attention and outpouring of support that I have. I do not know how they are doing now, but I do hope they are safe."

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. 

As the case went to the jury, the 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. 

Brown sat in the courtroom and appeared shocked when she heard the federal prosecutor implicate her in a felony. 

Perez-Villanueva's phone remained a linchpin 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.

The trial began May 29 with the prosecutor asserting that federal authorities are not targeting humanitarian aid along the border with Mexico.

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“No More Deaths is not on trial,” Nathaniel Walters told the jury. “Scott Warren is.”

But during the trial, prosecutors argued that these calls and the visit was part of a plan to illegally aid migrants, and noted later that night, Perez-Villanueva and Sacaria-Goday decided to cross the border. 

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. 

A few days after announcing the tariff,  the Trump administration backed from the threat, as part of deal between Mexico and the U.S. 

As part of the deal 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. 

Mujica was later released by a judge in Mexico, after successfully proving that he was not where prosecutors claimed he was, leaving questions about the Mexican government's case and its timing. 

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 during his closing argument that it was "frankly terrifying, just terrifying" that his client was charged with a "total lack of evidence."

"It's just supposition," he said.

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In his opening statement two weeks ago, Kuykendall said Warren did not intend to break the law when he came across two undocumented immigrants early last year.

“Scott intended to perform basic human kindness,” he told jurors, and was acting in accordance with his Christian faith.

After the jury said it was deadlocked, Kuykendall was asked if "humanitarian aid being targeted by the federal government?," Kuykendall responded, "you should ask the federal government. And use your own common sense."

Kuykendall also told the court last week 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.

Warren: 'Haunting crisis'

During his testimony, Warren said that he went to Ajo in order to work on his dissertation as a doctoral candidate at Arizona State University. He became increasingly interested in issues in Ajo and met with members of the Ajo Samaritans after he attended one of the Border Patrol's citizen academies, a six-week course designed to inform the public about the agency's mission. 

He said that as he stayed in Ajo, his eyes were "really opened" to the humanitarian crisis in the desert surrounding the small desert town, and that he became heavily involved in the community, becoming an elected member of the West Pima County Community Council. "It's an elected position, but everyone runs unopposed," Warren quipped. 

As he lived in Ajo, it became clear that everyday migrants "are stumbling" out of the wilderness aching for food, water and shelter, and that helping them is a "ubiquitous experience," for residents in the town. After months in Ajo, Warren found himself part of an effort to recover the remains of a migrant who had perished in the nearby Barry M. Goldwater Bombing Range, and the experience of finding human bones in the desert, "felt like a big transition for me," Warren testified. 

"This crisis became real to me, in a haunting kind of way," Warren said. He was used to finding animal bones in the desert, but the bones from a human being who had died "not long before," stuck with him, he said. 

After finding the bones, he found that when he saw someone come out of the desert, he again saw the decaying bones at the "same time, almost like a split-screen," and that he was struck by the "disturbing reality of how people who are living can be disappeared and lost to the desert," he said. 

Warren testified that he has helped find and recover 18 sets of human remains in the desert around Ajo, and that the work is a "deeply profound effort." 

During the hearing, Warren's lawyer Kuykendall asked him, "what are you doing, spending your whole life helping strangers?" 

"It feels choice-less," Warren said. "How could you not do that when there are people dying around you?" he asked. "How could you not respond?" 

"Everyone who enters that desert will suffer," he said. Migrants attempt to cross the desert will have to walk a "long, long way" to cross the desert, and they'll witness death, either of other migrants or their companions, along the way. 

"It's an epic undertaking, you have to put everything you've got on the line in order to make it," Warren said, telling the jury that migrants often have already faced danger and deprivation in Mexico before they even attempt "the hardest thing they've ever done in their lives."

Nonetheless, Warren testified that he felt it was important to follow the law, in part to protect the students and volunteers who came to the Barn. 

"Why would you want to understand the legal limits," asked Kuykendall. 

"I want to work within the border of the law, and not be doing something illegal and put students in a situation where they're doing something illegal," Warren said.

Payback?

On the day Warren was arrested, NMD released a report that said that from 2012 to 2015, 415 caches of water left for crossers in the 800-square-mile corridor near Arivaca were vandalized, spilling nearly 3,600 gallons of water into the desert. 

During this same time period, the bodies of 1,026 people were found in the Sonoran Desert, according to records from the Pima County Office of the Medical Examiner. 

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." 

As part of the report's release, NMD also published videos of Border Patrol agents intentionally destroying water bottles, including a video in which a female Border Patrol agent systematically kicks a half-dozen water bottles, spilling their contents, and a 2017 video in which an agent punctures a water bottle with a knife. 

This report embarrassed and infuriated agents, prompting one to say that NMD had "gone too far" and "messed with the wrong guy," according to a motion filed by Warren's defense lawyers in March.

Previous prosecutions

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. 

"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."

No More Deaths vows to continue aiding migrants

“A hung jury means the government could not prove its case,” Warren defense attorney Amy Knight said. “Scott remains innocent and admirable.”

Chris Fleischman, a volunteer with No More Deaths, said the organization plans to continue its humanitarian aid work following the announcement.

“It’s still good to know that the Trump administration’s attempt to criminalize humanitarian aid has failed,” he said. “But we will still be working to end death and suffering in the borderlands.”

It wasn’t immediately clear after the trial whether the government will seek a new case against Warren.

“I would think that they wouldn’t waste their effort to do that,” Fleischman said, adding, “We’re concerned for his freedom. That he could be prosecuted for doing what we all had thought is legal anyway.”

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Paul Ingram/TucsonSentinel.com

Scott Warren, during an event in Ajo in August 2018.

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