Prosecution rests, defense begins in 3rd day of re-trial of Scott Warren
Video testimony & expert in cellphone data rounds out prosecutors' case
The second federal felony trial of Scott Warren, a No More Deaths volunteer accused of harboring illegal immigrants in Arizona's western desert in 2018, continued Thursday, as the prosecution wrapped up their case and the defense team began laying out the case of humanitarian aid in the desert.
Scott Warren, 37, faces two charges of harboring two undocumented men following a January 2018 raid on the ramshackle building known as “the Barn” on the outskirts of Ajo, an unincorporated town surrounded by remote deserts about 110 miles west of Tucson. Warren was first tried earlier this year, but the jury in that case could not reach a decision and the judge declared a mistrial. That left the Trump administration free to put Warren on trial a second time.
This was the third day of the trial, following Wednesday when two Border Patrol agents testified that they saw Warren "gesture" toward a range of mountains north of Ajo, which they believed was a sign that Warren was telling the two men how to get around a Border Patrol checkpoint on Highway 85, which runs north from Ajo toward Interstate 8.
Most of the trial Thursday was consumed by playing for the jury the video depositions of the two men who served as the catalyst for Warren's arrest.
On Jan. 12 2018, Kristian Perez-Villanueva and Jose Arnaldo Sacaria-Goday, then 23 and 20 years old respectively, climbed over the border fence near Sonoyta, Sonora, and began to make their way into the United States, along with three other men.
Perez-Villanueva said in his video testimony that he left El Salvador, because he had "problems" in his country, but that those problems followed him to northern Mexico, and that "forced" him to enter the U.S.
He said that he decided to cross on January 12, because "the same situation, the same problem" happened to come up again. "i felt that I had to enter, because my plans had not originally been to come to the United States. I was going to stay in Mexico until the trouble was resolved," he said, through a translator.
At some point, three of the men "got thorns" in their hands and feet and "would yell a lot in the desert," said Perez-Villanueva. The men replied, "go to hell," he said, and so Perez-Villanueva and Sacaria-Goday abandoned the trio, and headed deeper into the desert, guided by a compass and by the stars.
"From there on, just Jose continued with me, and we kept guiding ourselves by the compass. I also would guide myself by the stars," said Perez-Villanueva. "Between the two of us, we made a good team, so we supported each other mutually."
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The men walked for one night, and rested the next day waited for nightfall, and then they walked for eight or nine hours, and that around 2 a.m., they could see lights of town. They waited for morning, but at some point, "immigration chased us," Sacaria-Goday said.
Perez-Villanueva said they ran into a patrol, and the two men abandoned their backpacks and ran, leaving their food and water. They returned, and found that their backpacks were gone, but their water remained, so the men continued on foot, walking at least 26 miles through the wilderness.
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They arrived at the Why-Not gas station in the hamlet of Why, Ariz., and stayed there for a short time, asking people for rides and making phone calls. Someone gave the men $40, and they used that money to buy food at a Chevron gas station in Ajo, Ariz., buying a burrito and a sports drink.
Sacaria-Goday thought the beans in the burrito "didn't taste very good," so Perez-Villanueva ate the rest. Sacaria-Goday said that by the time they arrived at the Barn, it had been "11 hours" since they had eaten something, and so they were tired and hungry.
During the video testimony, prosecutors showed photos from Perez-Villanueva's cellphone, which included selfies, as well as shots of Sacaria-Goday sitting on a bench just outside the Ajo Chevron.
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They eventually arrived at the Barn, but no one was around, so they waited in the unlocked bathroom of the Barn— which is a separate part of the main building— and later, Warren drove up and found them. "We asked him if he could help us, and he said yes," said Sacaria-Goday.
The video-taped deposition was recorded after Warren's indictment and was played during the first trial, however, because prosecutors dropped the conspiracy charge against him, segments of the video describing the migrants journey into the United States had been clipped.
Prosecutors repeatedly asked if Warren had given the men "instructions on how" to continue their journey "north in the United States." Assistant U.S. Attorney Nathaniel Walters asked Sacaria-Goday if Warren had pointed out a mountain named "El Cuadro."
"Do you remember, at one point, ever standing outside with the defendant and being told where to cross by him pointing?"
"No," Sacaria-Goday said.
Border Patrol Agents Brendan Burns and John Marquez said Wednesday that Warren stood outside the Barn with the two men, and pointed toward Child's Mountain, Hat Mountain, and Crater Range, and that his gestured predicated a "knock and talk" raid on the Barn, which included several law enforcement officers, including Border Patrol agents and Pima County Sheriff's deputies.
The testimony was a mixed bag for both prosecutors and the defense. While neither man said that Warren gave them directions to the north, they also said that Warren did give them medical aid.
"Did he ever show you the mountains that were to the north?" Kuykendall asked Perez-Villanueva. "Well, I already knew which mountains were north," he responded.
Anna Wright, assistant U.S. Attorney, asked "Did anyone give you first aid while you were there?"
Perez-Villanueva asked," What do you mean by that?"
"Did anyone take care of any cuts, or bruises, or injuries that you had?" the prosecutor asked.
"No," he said.
"Did he ever offer to drive you to the hospital?" Walters asked Sacaria-Goday.
"Did you ever tell the defendant you needed medical attention?" Walters asked.
"No, I did not tell him," Sacaria-Goday said.
It also became clear that Warren's limited Spanish, and the limited English of both Perez-Villanueva and Sacaria-Goday, kept the men from having detailed conversations.
During cross-examination, one of Warren's attorneys, Greg Kuykendall, asked about the help that Warren gave the men. While Warren brought in food for the men, and other guests at the Barn, the men cooked for themselves at least once. Kuykendall asked if the men were given a flashlight, a headlamp, a map — even joking at one point if Warren gave the men a beer — and Perez-Villanueva said no to each item.
"And your and Jose's plan was to continue walking toward Gila Bend and Phoenix right?" Kuykendall asked.
"The plan was to get to the freeway that's called 8," Perez-Villanueva replied, referring to Interstate 8.
"Dr. Warren never offered to help you get to Interstate 8, did he?" Kuykendall asked.
"No, he never did."
Perez-Villanueva said that Warren was rarely at the Barn, and that they regularly went outside to take out the trash and smoke cigarettes. And, he said that Warren never told them to hide.
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Perez-Villanueva also said that the day they were arrested, they were preparing to leave that night. And, he disputed Marquez's testimony that he saw the Salvadoran through the window. Rather, he said he was in the bathroom with Sacaria-Goday.
"We were going to leave that night," he said. "We were just going to wait about 15, 20 minutes to take up our road again, our way—go on the way again."
Perez-Villanueva said he heard the convoy of law enforcement vehicles pull up, and he asked Sacaria-Goday what they should do, and his partner responded, "let's shut the door and let's not make noise."
After the video depositions ended, the prosecutors called Patti Fitzsimmons, an enforcement analysis specialist for the Border Patrol's Tucson Sector. Fitzsimmons testified about the data harvested from both Warren's and Perez-Villanueva's cellphones, and confirmed that Warren spoke to the Pima County Sheriff's Department the day that the two men arrived, and that he spoke with several other members of No More Deaths, but that he did not have any contact with either Perez-Villanueva or Sacaria-Goday.
In video shown to the jury, Perez-Villanueva borrows a cellphone to make a call, but a report that included more than 41 pages of data showed that neither man contacted the other through the seized phones. Fitzsimmons confirmed the location and time of many that selfies that were taken from Perez-Villanueva's phone, and she also testified that Perez-Villanueva sent a Facebook message to someone telling that he would be delayed, because his partner "injured his ribs."
Fitzsimmon's report also showed that Warren spent most of his time working on a report that accused Border Patrol of destroying water drops, and was preparing for a press conference, that Warren was prepping for classes, and that he was working with Pima County sheriff's deputies.
It also showed that after the men arrived, he called and texted a registered nurse, who volunteers for No More Deaths, and Dr. Norma Price, a medical doctor who directs care.
After Fitzsimmons testified, the government rested, leaving a passel of other witnesses, who were announced by the prosecutors before the trial began, out of the trial record.
Amy Knight, one of Warren's attorneys, immediately asked U.S. District Judge Raner Collins to issue a verdict of acquittal because the government had failed to prove its case. Collins dismissed the maneuver quickly, and so after a break, the defense began with Dr. Gregory Hess, the chief medical examiner for Pima County.
Hess testified that from 2000 to 2017, the office had dealt with 2,816 recovered human remains identified as "undocumented border crossers." And, that during this time period, the office averaged 164 sets of remains per year.
While most the remains are skeletal, based on the remains of people when the cause of death could be identified, Hess aid that the "vast majority died from exposure."
The defense also submitted testimony from Professor Ed McCullough, a geographer who has spent the last several years helping to create maps that show where human remains are found. Because McCullough could not be at the trial, instead, his testimony was read into the record by another man, who explained to the jury that desert west of Ajo, included "trail of death from the border to the Growler Valley."
The trial will resume at 11:30 a.m. on Friday.