Prosecutors argue No More Deaths volunteer conspired to protect 2 men in country illegally
Defense lawyers for Scott Warren say gov't can't prove 'intent'
Federal prosecutors argued Wednesday that Scott Warren, a volunteer for a humanitarian group that works to save people from dying in Arizona's hostile deserts, was engaged in a "criminal conspiracy" when he decided to harbor two men in the country without authorization at a ramshackle building on the western edge of Ajo, a small desert town west of Tucson.
However, defense lawyers responded, saying that Warren had no intent to violate the law, and that the professor and geographer took steps to ensure he was "squarely and fully in the law," and that he was responding to "unfolding crisis" in the millions of acres owned by the federal government that surrounded the town.
Warren, 36, is a volunteer for the humanitarian aid organization No More Deaths, and on Jan. 17 2018, he was arrested by Border Patrol agents at "the Barn," a privately owned building in Ajo 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, Warren could face more than two decades behind bars.
During opening arguments, assistant U.S. Attorney Nathaniel Walters said that while Warren is a "high-ranking member" of No More Deaths, the group was not on trial, rather Warren is "on trial."
"This case is not about humanitarian aid or anyone in medical distress, "Walters said, during his 13 minute opening arguments. "But, rather, this is about an attempt to shield two illegal aliens for several days," from law enforcement, he said.
Much of the government's case appears to hang on phone messages and calls between Warren and Irineo Mujica, an immigration activist who is heavily involved in Pueblo Sin Fronteras, the group that has managed many of the "caravans" of Central American migrants through Mexico over the last 12 years.
Walters said that Mujica picked up the two men, Kristian Perez-Villanueva and Jose Arnaldo Sacaria-Goday, and drove them 10 miles from a gas station at the nearby town of Why, Ariz., to the Barn.
"They were in contact with Irineo Mujica," he said, describing a scene where the two men wandered around the gas station in Why, taking selfies and asking for rides, and later purchasing sports drinks and food, until they were picked up and transported "straight" to the Barn. Walters said that the government would show through text messages, video surveillance from a gas station, and descriptions from the agents themselves that Warren was linked to the two men.
Walters said that evidence from their phones, as well as Warren's phone, will show an attempt to transport the two men, both in the country illegally.
A review of court documents does not show that Mujica has himself been charged with transporting or harboring, and during a motions hearing on Monday, Warren's attorneys said that he will testify for the defense.
Walters said that two Border Patrol agents will testify that they began keeping watch over the Barn because of complaints from "concerned citizens" about black water bottles, and carpet "booties" that are regularly used by border-crossers, and that they spotted Warren talking with two men they believed were in the country illegally.
As one agent, John Marquez, approached the Barn, he saw Perez-Villanueva in the window, and that the man "bolted" toward the back of the house. He arrested the man, and later confirmed that Perez-Villanueva was in the country ilegally, Walters said. Meanwhile, his partner, Agent Brendan Burns, found Sacaria-Goday hiding in the bathroom after a search.
Walters then defended the term "illegal aliens," telling a jury of 11 women and four men that the phrase simply means "someone who doesn't have legal status."
Warren's defense attorney dismissed these arguments. Greg Kuykendall said that there was one central question that the government had to prove: whether or not Warren intended to violate the law.
"It's not harboring to simply help someone who needs medicine, or someone who needs food, or water, or orientation, especially on a cold winter night," Kuykendall said. Instead, Warren is a "law-abiding, life giving good Samaritan" and that Ajo is at the "epicenter of a humanitarian crisis."
Kuykendall said that the Pima County Medical Examiner's Office identified more than 3,000 bodies from 2000 to 2018, and that "certainly there are many, many more who have perished and will never be found."
Moreover, Warren and other members of No More Deaths operate under legal and medical guidelines to make sure that their efforts are legal that has been developed over the 20 years by humanitarian aid organizations, Kuykendall said.
Kuykendall also dismissed the government's claim that Warren was "gesturing" in a way to describe to the two men how to circumvent a Border Patrol checkpoint on Highway 85 outside of Ajo. Instead, he said that Warren was trying to offer "orientation" to the two men, and that Ajo is surrounded by federal land, including two wildlife refuges, the Tohono O'odham Nation, and a bombing range — meaning that the town lies within an "enormous expanse" with millions of empty acres, where there's no potable water, or even lights, except for within the town itself.
The people who cross the corridor near Ajo "have the least going for them," and that because of where Ajo is, many people who decided to bail on the journey, head toward the town for food, water and shelter, he said.
Warren, he said, is working under a "belief system that every life is sacred," and he puts this into action, first as a volunteer for the Ajo Samaritans, and now as a volunteer for No More Deaths, by providing first aid and orientation for people who are lost in the desert.
In recent years, No More Deaths, a ministry of the Unitarian Universalist Church of Tucson, has expanded its operations in the Ajo area, and that has resulted in increasing friction between the volunteers and federal officials. Over the summer of 2017, along with Warren, eight other volunteers were cited with federal misdemeanors for entering the Cabeza Prieta National Wildlife Refuge without permits, driving vehicles along administrative roads, and for leaving food, water and other supplies.
Just months later, federal officials ratcheted up their pressure against the group with the arrest of Warren.
As the case has headed to trial, Warren's lawyers have challenged his prosecution, arguing that Warren's arrest "arose from selective enforcement of the laws by the Border Patrol, in violation of the Fifth Amendment’s equal protection guarantee."
Warren is "an active, vocal, and highly visible" of No More Deaths in Ajo, and law enforcement agents in that small town "certainly knew who he was" when they arrested him, his lawyers told the court. And, the attorneys argued that Border Patrol agents began keeping watch over "the Barn" after No More Deaths released a report that was sharply critical of the agency.
"That afternoon, the BP decided to surveil an NMD facility and provided a patently pretextual explanation for this choice," wrote Knight. "Agents then swiftly arrested Dr. Warren for harboring, without evidence that he had done anything illegal and despite their professed belief that he had no control over the facility."
In an 80-page document filed in March by attorney Amy Knight, who is representing Warren pro bono along with attorney 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 their motion, the lawyers included text messages between Border Patrol agents, and officials with U.S. Fish and Wildlife Services which 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."
Collins dismissed this argument last week.
The summer before, FWS officers had already cited several No More Deaths volunteers, including Warren, for entering the protected Cabeza Prieta refuge — a remote 800,000-acre wilderness area near Ajo — without permits and driving on an administrative road.
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.
In February, federal prosecutors agreed to drop charges against four NMD volunteers, agreeing to issue civil infractions and levy fines of $250.
Meanwhile, four other volunteers were found guilty by U.S. District Judge Bernardo Velasco on Jan. 18; on March 1, they were sentenced to 15 months unsupervised probation and each fined $250.
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."
Misdemeanor charges still in limbo
Warren's trial comes even as a misdemeanor case, held earlier this month, remains up in the air after a bench trial concluded on May 8.
In that trial, also held in front of Collins, the No More Deaths volunteer was accused of operating a motor vehicle in a wilderness area, and abandoning property, stemming from a 2017 incident in the 860,000-acre Cabeza Prieta refuge.
In June 2017, Warren and a dozen other people entered the refuge to leave humanitarian supplies. Warren was charged with operating a motor vehicle in a wilderness area because he drove a white Dodge Ram pickup along an administrative road closed to the public, and for abandonment of property because he and the other members of his group left one-gallon plastic water bottles, cans of beans, blankets, and other supplies near Charlie Bell Well, a remote water station established by ranchers that is now resupplied periodically for animals.
During his misdemeanor trial, Warren said that his actions that day were driven by a sincerely held religious belief that all life is sacred, and that he was “compelled” to provide aid to migrants, as well as search for their remains, as a volunteer with several aid organizations, including No More Deaths, which operates as a ministry of the Unitarian Universalist Church of Tucson.
Warren said his “motivation to act” comes from “a deep sense, and relationship” to the desert that surrounds Ajo and that because dozens of people have suffered and died in that desert, their spirts “continue to dwell in that place.”
In January, four volunteers cited for a separate incident in Cabeza Prieta in August that same year, were convicted of entering the refuge without a permit and abandoning property for leaving behind caches of water. One volunteer was also convicted of operating a motor vehicle in a wilderness area, when she drove a No More Deaths truck along that same road. In March, they were sentenced to unsupervised probation and a fine of $250.
A month later four other volunteers pleaded guilty to a civil infraction of entering the wildlife refuge without a permit, and agreed to a fine of $280. The group argued that they entered the refuge in search of three people reporting missing that week.