Border agents testify against Scott Warren in 2nd day of re-trial of migrant aid volunteer

The second federal felony trial of Scott Warren, a humanitarian aid volunteer accused of harboring illegal immigrants in Arizona's western desert in 2018, continued Wednesday, as prosecution witnesses began to testify.

Two Border Patrol agents took the stand Wednesday, telling the court that while they were conducting surveillance on a privately owned building used as a staging point for humanitarian aid organizations in Ajo, Ariz., in January 2018, they saw Warren standing outside with two undocumented migrants. Warren made a "snake-like" gesture to several distant landmarks often used by people attempting to get around a Border Patrol checkpoint on the highway about 12 miles north of Ajo, the agents said.

The two agents — Brendan Burns and John Marquez — were the lead witnesses in the prosecution of Warren, who faces two charges of harboring the undocumented men following a January 2018 raid on the ramshackle building known as “the Barn” on the outskirts of Ajo. 

This was the second day of the trial, following Tuesday when prosecutors and defense attorneys laid out their opening arguments to a jury of 10 women and six men. 

Along with Warren, agents arrested Kristian Perez-Villanueva and Jose Arnaldo Sacaria-Goday, both Central American men who had crossed into the United States on Jan. 14, making their way on foot to Why, Ariz., about 27 miles north of the border. The men later found a ride to a Chevron gas station, and later arrived at the Barn, which sits near the end of a residential street at the western edge of the unincorporated town of Ajo, about 110 miles west of Tucson.

On Jan. 17, 2018, Marquez and Burns decided to surveil the Barn, setting up at an observation post about 500 to 900 feet away in a patch of desert, hidden behind a creosote bush. 

The agents watched the Barn for more than an hour before Warren drove up, and went into the building, and about 75 minutes later, Warren walked out the building with Perez-Villanueva and Sacaria-Goday and pointed to mountain ranges to the northwest and northeast of Ajo. 

"I believe he was showing them how to go further north into the U.S." Burns said. People trying to go north use the landmarks to "stay in the desert, away from traffic and people, and avoid Border Patrol." 

That includes Child's Mountain, Hat Mountain, and the Bracamonte range. 

During redirect questioning, Assistant U.S. Attorney Anna Wright asked Burns about why the landmarks were so important, and Burns testified that once people get to a Border Patrol checkpoint on Highway 85,  about 12 miles north of Ajo, they can start to see the lights of Gila Bend and Interstate 8, where people can more easily catch a ride to the rest of the United States. 

Burns said that among the places Warren gestured toward is the Crater Mountains, an area rife with mountain passes where migrants can "lay down" resting, cooking food, or hide from agents. 

Warren's attorney, Greg Kuykendall, argued during opening statements that the 37-year-old geography professor was trying to "orient" the men and help them understand the landmarks that surrounded Ajo. 

Marquez said that the two men with Warren were wearing “ill-fitting clothes” that were dirty, but not from walking through the desert, but rather appeared to be “bought from a thrift-store,” and that he believed that their appearance, in combination with their behavior, and Warren’s gestures meant he was giving them directions to head north. 

Warren, he said made a "snake-like" gesture, and that his hand-motions, along with the two men's behavior and clothing made him "suspicious" that the two men were in the country illegally, and so he and Burns launched a convoy that brought as many as a dozen agents to the property to conduct a "knock and talk." 

Warren was outside when the men approached, while Perez-Villanueva and Sacaria-Goday had gone back into the building. Burns went to speak to Warren, while Marquez went to the front of the building where a window faces north, and he testified that he saw one of the men—Perez-Villanueva—"scurry" for the back of the building. He rushed around the building's east side, and found the man in bathroom connected to the main building, Marquez said. 

Agents interrogated him, Perez-Villanueva, and after discovering he was in the country illegally, they arrested both him and Warren. The agents later found Sacaria-Goday hiding in the shower, attempting to hold the shower curtain closed and arrested him as well. 

During opening arguments, Kuykendall argued that the prosecution’s case was made on "assumptions, not evidence” and that Warren never intended to break the law and conceal the man, but rather was giving them food, water, medical care and respite.

"Intent is the most critical part of your assessment in the case,” Kuykendall told the jury during opening statements Tuesday.

This is the second time that Warren has faced trial on federal felony charges stemming from his January 2018 arrest. Warren was initially charged with three counts, including two counts of harboring, and a single count of criminal conspiracy. 

In late May 2019, Warren was tried on all three counts. 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. 

Agent watches videos critical of agency while on surveillance 

During Marquez's testimony Wednesday, he said that he watched a video published by No More Deaths that showed Border Patrol agents destroyed water caches, released as part of a report that accused the agency of systematically destroying water drops in the western desert. 

Warren's defense team have argued that the agents decided to arrest Warren in retaliation for the report, and the videos which went viral, and Marquez said that he didn't see the videos until he and Burns were already surveilling the barn. Marquez dismissed the videos as "dated." 

Marquez said that he was "unaware" of the highly critical report, but he became aware while keeping watch on the Barn. In a text message, Marquez wrote: "Wonder who they're going to blame. Probably the Border Patrol." 

Kuykendall asked to submit the videos as evidence, but prosecutors objected, and U.S. District Court Judge Raner Collins sustained their objection. 

Burns said that he didn't see the videos, but that Marquez described them to him while they were surveilling the barn. 

However, Burns admitted that before he went to surveil the barn, at 12:32 p.m. he emailed a "six-pack" of photos to an intelligence agent, Nelson Bentley. The photos included images of Warren, along with Susannah Brown, a volunteer nurse, John Hyde, and Emily Saunders. Burns also submitted a Word document, titled "No More Deaths." 

Kuykendall argued that the email with the subject "FW: ISDA No More Deaths" was important for "impeachment" purposes, arguing that the Burns and Marquez may have targeted Warren rather than just happened upon him gesturing toward the desert wilderness. He also argued that Burns wrote in his report after the arrests that Warren "speaks publicly on immigration issues." 

"All that was in your mind before you began surveilling?" he asked. 

Burns testified that he knew who Warren was, and that he knew that Warren drove a green Nissan SUV. 

Kuykendall asked Burns if other people were at the Barn, and Burns testified that he saw other people drive away in a vehicle, but that he did not arrest them. And, he pressed Burns on how his testimony that Perez-Villanueva and Arnaldo Sacaria-Goday "matched" the descriptions of two men who were linked with a third man who was taken into custody by Border Patrol agents a day earlier. 

Burns said that he believed the two men matched the description because in his mind, he encounters people "from around the world" and his experience as Border Patrol agent told him they were from Central America. 

"So, the only thing you knew was that they were OTM?" Kuykendall asked, referring to a term used by agents that means "Other-than-Mexican."

"Yes," Burns replied. 

"You made an assumption, is that fair?" Kuykendall asked, and Burns agreed. 

Perez-Villanueva is from El Salvador, while Sacaria-Goday is from Honduras; however, in their original arrest report, Burns and Marquez said that Perez-Villanueva and Sacaria-Goday were from Mexico. 

Marquez testified that his "assumption is that something illegal was happening" at the Barn, and he referenced a "concerned citizen" who told him that the Barn was being used as a stash house.

"You knew the place was a depot?" for water and food, Kuykendall asked. 

"Yes, I assumed something was going on that was illegal at the property," he said. 

NAU Lumberjack story a source for investigation 

During Marquez's testimony, Kuykendall asked why the agent had included an article published in the Lumberjack, a newspaper published by students at Northern Arizona University. 

The article, titled "The graveyard in Arizona’s borderlands" was published in March 2017, and describes Warren, as well as a high school group that hikes into the remote desert to help migrants. Marquez included this article in his arrest report because he said that the article described Warren as a "de-facto" leader of No More Deaths, it showed he was "reckless" by taking a student group into the desert, and that in the Growler Valley, Warren and the students gave food and water to two migrants as a Border Patrol helicopter searched the desert. 

Kuykendall began to read parts of the article into evidence, prompting a series of objections from assistant U.S. Attorney Nathaniel Walters. At one point, exasperated, he complained, "He's just reading the article again," as Kuykendall read the article's kicker, "Whether he is giving aid to migrants or finding human remains, that question stays with him: Has he done enough?" 

'Toncs at the barn' and the Brave Dogs

During opening arguments, Wright defended the use of the term "alien" and "illegal alien" telling the jury that it came from the U.S. legal code, but during cross-examination, Burns also had to defend the term, "tonc" which he used in a group chat, titled "Los Perros Bravos" or the Brave Dogs. 

As Burns organized a posse of at least 10 law enforcement, including Border Patrol agents and Pima County Sheriff's deputies to "secure the area," he also texted to another agent that there was "2 toncs at the house," using a racial epithet for undocumented people. 

The term "tonc" is widely used by agents to refer to border-crossers, but the term's origin is unknown. Many border agents and activists have said that the term refers to the sound of a metal flashlight hitting a skull, while others have claimed that it stands for "temporarily outside naturalized country," or "true origin not known." 

Burns told the jury that the term means "traveler outside of native country," or "true origin not known." 

As Burns approached, he spoke to Warren in a "conversational tone." He said that he wanted to speak to Warren because "I knew what he had seen" and Warren told him that he was on private property and the building was a humanitarian aid station. 

Burns testified that he wanted to speak with the owner of the property, and wanted to knock on the door, and Warren followed the agent, coming around the building to where Marquez had Perez-Villanueva sitting on the floor at the threshold to the bathroom. 

Agents leave building unsecured

During cross-examination, Kuykendall asked Burns about the date of a search warrant that was issued on January 22, 2018, days after Warren's arrest. Burns told Kuykendall that he didn't know that the building had been left unsecured; during the preceding trial of Warren, on May 31, he testified that he wasn't aware that the Barn was left unsecured until Kuykendall told him while he was on the stand.

"I don't know sir, I wasn't aware that it was left unsecured," Burns said in May. 

"When?" Kuykendall asked. 

"Just now when you said that, sir." Burns said. Kuykendall seemed surprised, and then he replied, "Well, thank you for your honesty." 

"When did you learn that the building was not secured," Kuykendall asked on Wednesday. "During the last hearing," Burns said. "When you told me." 

The trial will continue on Thursday, beginning at 9:30 a.m. with the video depositions of Perez-Villanueva and Sacaria-Goday. 

"I have been told by the attorneys, that we start tomorrow with video depositions. Drink lots of coffee," Judge Collins told the jury.