Prosecutors: Scott Warren 'harbored, concealed & shielded' 2 men from Border Patrol
Defense attorneys argue case vs. No More Deaths volunteer is built on 'false assumptions,' not facts
Federal prosecutors argued Tuesday that Scott Warren, a volunteer for the humanitarian aid group No More Deaths, knew that the two men in his care were in the country illegally and that he "harbored, concealed, and shielded" them from detection "with the intent to violate the law" by allowing them to stay for four nights and three days at a ramshackle building on the western edge of Ajo, a small desert town west of Tucson.
However, defense attorneys said that the government's prosecution of the 37-year-old geography professor was a "house of cards" built on "false assumptions" about Warren's intent, and that he was operating under strict protocols created by legal advisors to No More Deaths when he gave the two men food, water, medical care and a place of respite because he hoped to stem the tide of deaths in the desert that surrounds the unincorporated town of Ajo, which is hemmed in by federal lands, including two wildlife refugees, and a bombing range.
This is the second time that Warren has faced trial on federal felony charges, stemming from his Jan. 2018 arrest by U.S. Border Patrol agents at the "Barn," a small building in Ajo, regularly used as a staging point for humanitarian groups in the area. Along with Warren, agents arrested two Central American men — Kristian Perez-Villanueva and Jose Arnaldo Sacaria-Goday — and launched into an investigation, ultimately charging Warren with three counts, including two counts of harboring, and a single count of criminal conspiracy.
In late May, Warren was tried on all three counts, but after eight days of trial, a jury deliberated for three days, but they could not reach a decision — jurors were split 8-4 for acquittal — and so U.S. District Judge Raner Collins declared a mistrial.
Prosecutors mulled a new trial, and announced in July that they would again put Warren in front of a jury — dropping the conspiracy charge — but not before they tried to seek a plea deal, which Warren rejected.
The trial has a major implications for the fate of humanitarian aid in Arizona's western desert, including an especially deadly stretch known as the Growler Valley, which runs north-south, and includes the remote wilderness of the Cabeza Prieta National Wildlife Refuge, and is hemmed in to the west by the Barry M. Goldwater Air Force Range, a 1.9 million-acre stretch of land littered with unexploded ordinance, and still used by pilots and troops training for combat.
In recent years, NMD has expanded its search-and-rescue operations west, and that shift has come with a gruesome task, as members of the group, including Warren, have discovered and recovered human remains.
This includes the body of 65-year-old Saul Salazar-Payan, who died on Aug. 3, 2018, in sight of houses in Ajo, and about 1.6 miles from Ajo's plaza, a wide-open space marked by green grass and tall palm trees.
Nearly 270 remains, many of them still unidentified, have been found in the Ajo area since 2001, while nearly 500 remains have been found in the wider area that includes the Cabeza Prieta wilderness, the bombing range, and Organ Pipe Cactus National Monument.
Second trial begins
A jury of 10 women and six men listened for 13 minutes as assistant U.S. Attorney Anna Wright delivered her opening arguments Tuesday, laying out her case for Warren's prosecution.
"This case is about Warren did to help two men continue their illegal journey," she said. "Consider why they stayed," Wright said, adding that the evidence shows that they stayed because they lost their camouflage clothing, and they were "safe from the watchful eye of Border Patrol."
Warren gave them everything they needed when he "sheltered and shielded" the two men from Border Patrol, Wright said. She also showed several pictures captured from of the men's cellphones, and said that the two men walked from the U.S.-Mexico border to Why, Ariz., about 26 miles north, and then spent time at a gas station there. Then, the men hitched a ride to the Ajo Chevron, eventually landing with Warren at the Barn.
Wright argued that the men then spent four nights in the Barn, reiterating that the men were "safe from Border Patrol's watchful eye," and said that on the last day, Warren went outside with the men and began pointing out landmarks, including two mountains that would allow them to circumnavigate a "major obstacle," the Border Patrol checkpoint on Highway 85, which runs north from Ajo to Interstate 8.
During jury instructions, U.S. District Raner Collins told the jury that the law "does not impose any general affirmative obligation on citizens to report suspected or known violations of law to authorities," however, Wright said that jurors are "entitled to consider" what Warren "did and did not do, or said or did not say" when he was arrested by Border Patrol agents.
"This case is about the law and the evidence," Wright said. "It is only about what Scott Warren did at the Barn."
Prosecutors have to prove four elements, including that both men were "aliens" in the country unlawfully, and that Warren "knew or acted in reckless disregard" of that fact, and that he "harbored, concealed, or shielded from detection" both men with the intent to violate U.S. law.
Warren's attorney, Greg Kuykendall, argued that the government had built their felony case Warren based on "false assumptions about his intent," believing that he was "trying to hide or help" the men escape from Border Patrol. However, Warren was acting under guidelines used internationally by humanitarian aid groups, and that he was offering legal humanitarian aid when he allowed the men to stay at the Barn, in an attempt to "prevent suffering," he said.
Warren is "nothing more or less than a good Samaritan," argued Kuykendall.
The government's case was created by two members of an agency "disrupt" unit and the agents — Brendan Burns and John Marquez — assumed that Warren was acting to harbor the men. But, their case is "based on assumptions and not evidence," he said. Warren knows "the boundaries of the law, and he stayed within them," Kuykendall said.
"No one is under the obligation to report" the immigrants to Border Patrol, Kuykendall said.
And, there was ample evidence of Warren's intent, Kuykendall argued, based on his cellphone which was seized by U.S. Border Patrol agents. Among the 17,000 pages of evidence produced from Warren's phone was "ample" evidence of Warren's "life-long commitment" to stop people from dying in the desert, part of a "predictable scenario that has played out in the desert, thousands and thousands of times," he said.
The desert around Ajo is no ordinary desert, Kuykendall said, and there are no "farm houses" or places to stop because the desert includes "millions of acres" that are managed only by the federal government, and there are few places to get help anywhere, "except for Ajo."
Kuykendall was about 10 minutes into his 54-minute opening argument when a female juror suddenly stood and fled the courtroom. After a short break, the juror returned and Collins told the courtroom that she was suffering from a "migraine," but could continue.
Kuykendall continued, telling the jury that when Warren pointed out three mountain ranges to the north, he was "orienting" the men to the terrain, a "basic survival tool" that would help keep the men from getting lost if they tried to go further north. If they drifted away from the valley between Child's Mountain and Hat Mountain, they would likely end up lost in the hostile desert, and join a predictable tally of the desert's dead.
He pointed to Warren in his blue suit and tie, and said, "He doesn't usually look like this." Rather, the No More Deaths volunteer regularly goes into the desert carrying "8-pound, one-gallon jugs" of water in a backpack "as big as he is, sometimes at the height of the Arizona summer."
Defense again links arrest to report about BP destroying water caches
Kuykendall linked Warren's arrest to the release of a report by No More Deaths on the day he was arrested. The report was highly critical of Border Patrol, and accused agents of intentionally destroying water and food drops. Along with the report, a series of videos soon became viral, and Kuykendall argued that the report's release convinced agents that Warren was "working against them" and they "assumed" his motivations were illegal.
"Starting from a complete misunderstanding of the intent and purpose of humanitarian aid in the desert," the agent's assumptions "hardened into a unshakable belief written in stone," which agents set out to prove, despite the evidence to the contrary, Kuykendall argued.
"Intent is the most critical part of your assessment in this case," Kuykendall told the jury.
'No politics' in case that's highly politicized
While the jury took a break, federal prosecutors and defense attorneys battled over whether or not President Donald Trump, his policies, or his administration could be mentioned as part of the trial.
Based on possible testimony, Wright and assistant U.S. Attorney Nathaniel Walters had filed a motion arguing referring to the president was "unfairly prejudicial." Defense attorney Amy Knight shot back in a motion that a ban on talking about Trump would violate Warren's civil rights.
"This case is about what happened between January 14 and January 17," Wright argued, and Kuykendall shot back that the "motivation" is always relevant, and that Border Patrol agents and the "president's lawyers" were working to garner the approval of their boss, the president. "Nothing has changed, not has single thing has changed in the last decade," except for the president, who is" responsible for this thing going forward," Kuykendall said.
Wright retorted that she, along with the other two attorneys at the table are "career attorneys" who work for the Department of Justice.
Collins considered their arguments for a brief moment, and then declared, "no politics in this case."
For months, No More Deaths engaged in a public campaign to get the government to drop the charges against Warren, including a MoveOn.org petition that garnered nearly 134,000 signatures, and they were joined by Amnesty International, which sent a letter Thursday to Michael Bailey, the U.S. Attorney for the District of Arizona, asking the Justice Department to "immediately drop the spurious criminal charges" against Warren.
"The Trump administration’s second attempt to prosecute Scott Warren is a cynical misuse of the justice system, intended to criminalize compassion and lifesaving humanitarian aid," said Kumi Naidoo, secretary general of Amnesty International. "This is a dark hour for the USA when the government is seeking to send a man to prison for 10 years simply for providing food, water and clean clothes to people in need.”
"U.S. authorities must stop harassing Dr. Warren and other human rights defenders who have simply shown kindness to fellow human beings," said Naidoo. The government should instead be working to save lives in a desert where thousands of people have already died in their desperate search for a safer place to call home."
Amnesty International argued that the arrest and "subsequent retaliatory criminal charges" against Warren are "an unjust criminalization of direct humanitarian assistance," that run counter to Border Patrol policies.
"No one should die while attempting to migrate, and no one deserves to be punished for working to prevent those deaths. We call on you to immediately drop all the charges against Dr. Warren," Amnesty International wrote.
Meanwhile, a national survey completed in August by Chris Zepeda-Millián, an associate professor of public policy at UCLA, and Sophia Jordán Wallace, an associate professor of political science at the University of Washington, asked more than 1,500 adults, "Do you agree or disagree that it should be a crime for people to offer humanitarian aid, such as water or first-aid, to undocumented immigrants crossing the desert along the U.S.-Mexico border?"
Nearly 87 percent of respondents said that they either strongly or somewhat disagreed with the question, with around 71 percent saying they "strongly disagreed" that it should be crime to offer humanitarian aid.
Moreover, the survey asked for people to identify themselves by political party, and among Republicans, nearly 39 percent said they "strongly disagreed" with the statement, while around 32 percent said they somewhat disagreed.
This means that around 69 percent of Republicans, "disagree that this type of border humanitarian aid should be criminalized," Zepeda-Millián said. "Overall, our findings suggest that the vast majority of Americans, including the vast majority of Republicans, do not support the criminalization of the type of work that No More Deaths and Scott Warren do," he said.
The Unitarian Universalist Church of Tucson — which hosts NMD as one of its "ministries" — has called on religious leaders to "flood the courtroom" on Wednesday Nov. 20, echoing a similar effort during the first trial when around 100 faith leaders sat in the courtroom as the jury heard testimony.
During a press call, Rev. Kathleen McTigue, the director of activism and justice education at the Unitarian Universalist Service Committee, argued that Warren's prosecution might violate doctrines of faith. "Humanitarian aid is never a crime, and people of faith have the right to act on their conscience—especially in the face of lethal conditions where people can lose their lives."
UUSC's primary focus is on Central America, she said, and the group works to make it safe for people who want to stay at home, for people who travel along the migrant trail, and the group supports the "right of asylum" and "safe migration into the U.S."
Even as Warren's fate has remained in doubt, in mid-August the Ajo Samaritans opened up a new aid office near the unincorporated town's main plaza, designed to provide "care and life-giving aid."
"Ajo residents have a long tradition of offering aid to travelers in the desert, dating back generations," the group said. "Every day, migrants arrive to the town of Ajo, the neighboring community of Why, or a village on the nearby Tohono O'odham Reservation and ask for life-saving food or water."
The aid group noted the the towns and villages are the only places of respite in the remote west desert of Arizona, and that people have to cross through up to 80 miles of desert, sometimes in over 110 degree weather. This journey takes days, if not weeks, they said, and "It is impossible to carry the amount of water you need to survive."
The aid office opened on what the group called the "hottest and deadliest time of the year for migrants crossing the desert," noting that since Warren's 2018 arrest, at least 99 sets of remains had been recovered in the Ajo area.
The trial will continue on Wednesday starting at 9:30 a.m. and is expected to continue through Friday, Nov. 22.
Correction: Due to a typo, an earlier version of this story incorrectly reported the gender breakdown of the jury.