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No More Deaths volunteer moves dismissal of human smuggling charges

Scott Warren alleges Border Patrol arrested him after release of report critical of agency

Lawyers representing a humanitarian volunteer who was arrested earlier this year by Border Patrol are challenging the case against him, arguing that his prosecution is selective and discriminatory enforcement, and was retaliation for report critical of the agency published the same day.

Scott Daniel Warren, 35, was arrested on January 17, 2018, at the "Barn," a privately owned building in Ajo, regularly used as a staging point for volunteers who want to offer humanitarian aid in the harsh deserts surrounding the small Arizona town west of Tucson

A professor at Arizona State University, Warren has been working for No More Deaths since 2014 when he moved to Ajo, which is surrounded by forbidding terrain where hundreds of people have perished in attempts to cross into the United States. 

After his arrest, federal officials sought to expand the charges, and a grand jury agreed, indicting the Arizona State University professor 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 the indictment, federal officials said that Warren "did knowingly and intentionally combine, conspire, confederate, and agree with various other persons" unknown to the grand jury to transport and move two men, identified as Kristian Perez-Villanueva and Jose Arnaldo Sacaria-Goday. Warren was also charged with attempting to "conceal, harbor and shield" the men to avoid detection by immigration officials.

During a 90-minute hearing on Tuesday, Warren’s lawyers, Gregory Kuykendall and Amy Knight, 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."

No More Deaths 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. 

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Genevieve Schroeder, a volunteer with No More Deaths, said in 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. 

In their motion, Knight and Kuykendall said that agents set up their surveillance of the "Barn" just hours after No More Deaths released the report that was sharply critical of the agency. However, to prove that, they moved to have the court order the government to release emails and other communications between Border Patrol agents, other law enforcement officers, and the U.S. Attorney’s Office as part of pre-trial discovery.

According to court filings, around 8:23 a.m., a No More Deaths volunteer emailed a copy of the report to Steve Passament, a spokesman for the Tucson Sector of the agency. Around 2 p.m., Border Patrol agents John Marquez and Brendan Burns set up surveillance across the street from the Barn. Around 4:30 p.m., the agents saw Warren enter and exit the building with two men, and sought a “knock and talk” warrant, leading to the arrests of Warren and two Mexican men.

In their motion, Knight and Kuykendall wrote, "The Equal Protection Clause of the Fifth Amendment prohibits the federal government from selectively enforcing criminal laws based on a discriminatory motive." 

"This prohibition applies both to a prosecutor’s charging decisions, as well as the activities of law enforcement agencies, including criminal investigations and arrests," they wrote. 

They also argued that his arrest was “discrimination based on the exercise of protected First Amendment activities."

"Discrimination based on the exercise of protect First Amendment activities is unlawful, regardless of whether the activities are conducted 'as an individual, or... as a member of a group unpopular with the government,’” they wrote. 

They asked the government to submit “any and all communications between Border Patrol and any other law enforcement agency" as well as internal communications, and conversations between the agency and the U.S. Attorney's Office. 

This includes, “Any and all information concerning any internal policies, standard operating procedures, memos or guidelines, whether oral or written, concerning Border Patrol’s interactions with humanitarian aid workers operating in Southern Arizona, including but not limited to, any policies or procedures for arresting individuals providing basic necessities to undocumented immigrants and referring those individuals for criminal prosecution.”

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During the hearing, Kuykendall argued that it was possible that the agents were “motivated by an unconstitutional desire” and told Magistrate Judge Bernardo P. Velasco that the court would have to put on “judicial blinders” to not make a reasonable inference that the surveillance and Warren’s arrest was connected to the release of the report.

Velasco asked if it was just a coincidence that the agents started their surveillance that day, and Kuykendall responded that it would be “foolish to believe otherwise,” and that agents across the Tucson Sector were part of an “insular culture” that had been embarrassed by the release of the report. 

Border Patrol went after Warren, Kuykendall argued, because he is the “nominal head” of No More Death’s efforts in Ajo.

Kuykendall asked for Velasco to order the government to release the communications. "We’re not asking for remedy, we’re asking for the rights afforded to the defendant," Kuykendall said. And, he said that prosecutors have so far refused to release these communications, which he called "evidence in exclusive control of the government."

Nathaniel Walters, assistant U.S. attorney, said that the discovery request was burdensome and open-ended, and said that the defense failed to show that the arrests had a discriminatory effect. "The defense wants to argue selective enforcement without any evidence," he said.

"They’re stonewalling and won’t provide it," Kuykendall shot back.

Walters characterized the "Barn" as a stash-house and said that agents had begun their investigation into "possibly illegal activity" beginning in April 2017, nearly nine months earlier.

He also rejected the idea that the “viral video” affected the choices of Agents Burns and Marquez. “Doesn’t’ matter if 65 million people saw that video, unless the defense can prove the agents saw it.”

Instead, he said, Burns and Marquez said they believed the Barn was a stash-house.

The court also heard arguments that Warren’s arrest violates the Migrant Smuggling Protocol, a international agreement signed by the U.S. and other countries in 2000. The treaty was designed to protect the rights of migrants, argued Knight, and it was inconsistent to prosecute Warren for rendering humanitarian aid under the protocol. The government, she said, was misinterpreting how the agreement limited this prosecution.

Velasco asked what would happen if the courts refused to intervene, and Knight responded that the only remedy beyond the district and circuit courts was the International Court of Justice, an international body. But, she said the U.S. has opted out of parts of the ICJ.

She also noted that humanitarian aid was necessary in the Arizona deserts because 2,816 people have died in the desert, requiring immediate aid to stop people from dying “preventably,”Knight said. She said that the prosecution’s argument against the motion was largely an attempt to charge the subject, and technical nitpicking.

Velasco asked if Warren could be charged with conspiracy, and noted that the Protocol including prohibitions against smuggling networks. Knight responded that the provision of water, food, and medical care is “never criminalized and cannot constitute a crime.”

She also noted that while the government had charged Warren with conspiracy, there was little evidence of that in his original charging documents.

Anna Wright, the other assistant U.S. attorney, said that the government had convinced a grand jury that Warren attempted to hide the men to “avoid detection” and said the neither of the men needed aid because they were taking selfies with a cellphone while they were in Ajo. She said that the protocol never explicitly creates an exception for humanitarian aid.

However, Knight responded that it was in the preamble and purpose, and that the drafting language made this “crystal clear.”

She also noted that the government’s charging document was limited and did not show evidence of Warren engaging in a conspiracy.

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“We don’t know your honor,” Kuykendall said, arguing that the government had disclosed their file, but hadn’t made it completely available to the defense. “We’re still in the dark about the specific allegation.”

“I think we know all the facts, we just don’t know the jury’s decision,” Velasco said. “That’s probably all they’ve got,” he said.

Velasco said he would render a decision soon. 

If Velasco refuses to dismiss the charges against Warren, he faces a jury trial on November 14.

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Paul Ingram/TucsonSentinel.com

Scott Warren during a ceremony in Ajo last August.