Mentions of Trump, administration policies 'unfairly prejudicial' argue prosecutors in harboring case

Federal prosecutors filed a motion Thursday asking the court to block Scott Warren—a No More Deaths volunteer charged two counts of human smuggling–from talking about the Trump administration or its policies during his trial, arguing that allowing him to do so would be "unfairly prejudicial." 

"The United States of America, by and through its undersigned attorneys, files its motion in limine to prevent the defense from mentioning the President, his administration, or his administration’s policies. Any reference to the President or his administration would be irrelevant and unfairly prejudicial," wrote assistant U.S. Attorneys Nathaniel Walters and Anna Wright. 

Warren, a 36-year-old geography professor, faced trial in May on three 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 agents in Ajo, Ariz. at the "Barn," a small rustic building in the outskirts of Ajo used as a staging ground for humanitarian groups in the area. 

On the afternoon of Jan. 17, 2018, two Border Patrol agents— John Marquez and Brendan Burns—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, and after observing the barn for more than 90 minutes, Warren came out with two men, later identified as Kristian Perez-Villanueva and Jose Arnaldo Sacaria-Goday. 

In early June, after days of deliberation, a jury refused to convict Warren, but did not find him not guilty. The judge declared a mistrial because of the hung jury.

Undaunted by the jury's non-decision, federal prosecutors announced in July that they would seek a new trial, but dropped the conspiracy charge against Warren. They also announced a possible plea deal for Warren, which he did not accept by the prosecution's deadline.

As the case has moved toward a second trial, federal prosecutors and Warren's defense team have issued a flurry of motions and counter-motions that will set the stage for the new court proceeding. This includes, among other moves, the addition of a third assistant U.S. Attorney to the prosecutor's table with the addition of Glenn McCormick. 

Prosecutors said that they learned that the defense "might mention" the Trump administration and the president during a 90-minute status conference on Tuesday, the last one before the jury trial is slated to begin on November 12 at 9:30 a.m. 

During the previous trial, defense witnesses referred to the Trump administration obliquely, centering on two essential threads.  

The first thread linked the Trump administration to the long-running "prevention through deterrence," a 1994 strategy written up in a memo by the director of Immigration and Naturalization Services at that time, which became the backbone of the U.S. Border Patrol's strategy; and the second, how Warren was the target of "select prosecution" by U.S. Border Patrol agents, who were embarrassed by a report released by No More Deaths that outlined how agents were interfering with, or even vandalizing water and food drops by the humanitarian group. 

Motions fly in weeks before trial 

The judge overseeing the case, U.S. District Judge Raner Collins, has not ruled on the prosecutor's motion, and the defense has yet to provide their own challenge. 

However, on Thursday, Collins quashed the prosecutor's attempt to introduce text messages exchanged between Warren and others going back to June 2017, nearly seven months before his arrest. 

Prosecutors told the defense that they wanted to introduce texts from Warren's phone, including a message that Warren sent to Emily Saunders, writing "FYI susannah[sic] might be calling you." 

The text referred to Susannah Brown, a volunteer nurse who has been dragged into Warren's trial by prosecutors. During the first trial, assistant U.S. Attorney Nathaniel Walters accused Brown of being involved in the scheme to conceal two men from Border Patrol agents. And, just a few weeks ago, prosecutors requested that Brown receive a court-appointed attorney, and Collins granted their motion. 

Prosecutors hinted at some conspiracy, noting that the text message came on the same day that Border Patrol agents arrested four men at the No More Deaths camp south of Arivaca, Ariz. about 106 miles southeast of Ajo. 

The raid incensed No More Deaths volunteers and supporters, and has been cited as a sign of increasing targeting of humanitarian volunteers after a years-long detente between the group and U.S. Border Patrol agents. 

However, Warren's defense attorneys, Amy Knight and Greg Kuykendall, challenged the texts messages, arguing that the "Government has failed to demonstrate that the text messages are admissible for any proper purpose; therefore, this evidence must be precluded."

Not only had the government "not demonstrated" that the messages could "prove a material point," but further prosecutors had not "offered no theory at all for what they supposedly prove, or how," wrote Knight. Collins agreed, and quashed the texts, and ruled  that prosecutor's plan to introduce a "alien smuggling expert" had been rendered moot because "the government does not intend to call the witness." 

He also clarified an earlier ruling that narrowed the scope of evidence that outlined the journey of Perez-Villanueva and Sacaria-Goday from the border to the Why-Not gas station in Why, Arizona and then to "the Barn" in Ajo. 

In an August motion, Knight and Kuykendall asked the court to preclude "all evidence and argument that it not relevant to any element of harboring" including information about the men's journey, their intentions, and evidence regarding Warren's work with shelters in Mexico. 

Collins agreed in part, and agreed to withhold the description of the Perez-Villanueva and Sacaria-Goday's journey, however, he said that he would allow the jury to see video from the gas station, "since the extent of the migrants’ injury is still an issue in the case." 

A central issue during the last trial was whether the two men were injured and dehydrated when they came to the Barn, an idea that prosecutors attacked by showing video surveillance footage from inside the gas station, which showed the two men stretching and walking around, and purchasing food and a sports drink.