Defense makes case for Scott Warren providing care to migrants; aid volunteer's 2nd trial continues

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 Friday, as defense attorneys laid out their argument that the two undocumented men in the case needed medical care and respite. 

Warren, 37, faces two charges of harboring two 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 press the case against Warren a second time.

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Friday was the fourth day of the trial, following testimony Thursday from Dr. Gregory Hess, the chief medical examiner for Pima County, and read-in testimony from Ed McCullough, who has long created maps that show where human remains have been recovered in the vast deserts that surround Ajo. The prosecution rested its case against Warren last week, with the defense beginning to present his case to the jury in a federal courtroom in Downtown Tucson.

On Friday, court started late, and defense attorneys asked Andy Silverman, a member of the No More Deaths legal team and a professor emeritus at the University of Arizona's School of Law, to testify. 

Silverman told a jury of 10 women and six men that No More Deaths had developed protocols to ensure that the organization operated within the framework of the law. 

"One of the very basic principles of No More Deaths and civil initiative is that we are transparent in everything we do," Silverman said. "The work we do, and the way we do it, is proper and legal," he said. "We provide all information and materials to prevent the loss of life." 

During cross examination, Assistant U.S. Attorney Glenn McCormick finally showed why he'd been added to the prosecution's team as a third attorney, by pressing Silverman on the group's transparency.

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McCormick also questioned Warren's behavior as the two Border Patrol agents—John Marquez and Brendan Burns—entered the property during the Jan. 17, 2018, raid. McCormick argued that Warren should have told the agents that two men, Kristian Perez-Villanueva and Jose Arnaldo Sacaria-Goday, were on the property and that they were not in the country legally. 

Burns testified that Warren told him that they were on private property and that the Barn was a humanitarian aid station, but McCormick implied that "under the principle of transparency" Warren should have informed the agents that the two men were there. 

"We don't hide people, and we don't conceal people in any way," Silverman replied. McCormick went further, arguing that allowing the two men to "hide" in the Barn, created a "dangerous situation for both Border Patrol agents, and those undocumented persons."

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

"Most migrants are not dangerous," Silverman replied. McCormick repeatedly tried to get Silverman to take the bait on a series of hypotheticals, but Silverman repeatedly refused to agree to those arguments, and repeatedly asked McCormick to repeat his questions. "Again, we don't hide people," Silverman said, but he allowed that situation "might become dangerous." 

Later, McCormick also attacked the group's protocols. "Protocols are not laws, they're not statutes?" "No," Silverman said. "But, they're based on reasonable reading of the law." 

"They're purely opinions, they don't have the force of law," McCormick argued. "They are not laws, they are guiding principles that are put together consistent with the law," Silverman replied. 

Silverman also defended the possibility that Warren "gestured" to three mountains north of Ajo. During their testimony,  the two Border Patrol who were surveilling the Barn via a spotting scope, testified that Warren pointed 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. 

Warren was offering the men "orientation" which is allowed under NMD's protocols, Silverman said. 

McCormick argued that because Warren didn't point to the west and east, where the desert could be either "dangerous" or  "vast nothingness," he was instead giving Perez-Villanueva and Sacaria-Goday directions to an area "commonly used" by smugglers.

"Presumably, they know that," Silverman shot back. Even with the aid of a compass, and knowledge of the stars, which Perez-Villanueva testified that he had during a video deposition, the two men "may not know the desert surrounding them as well as we do," Silverman said.

McCormick also challenged the time that the men spent at the Barn. Perez-Villanueva and Sacaria-Goday arrived on Jan. 14, and stayed until their arrest on Jan. 17—though in an ironic note, Perez-Villanueva testified that he and his partner were preparing to leave, and were in the bathroom getting ready when Border Patrol agents arrived.

"For someone to stay in the barn for medical assistance, they would need to be getting medical care?"

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"Medical care as we do it is really expansive," Silverman said, adding that NMD had to ensure the men were hydrated and in good shape before they could leave.

Here McCormick tried to get the law professor to answer to a series of increasingly narrow hypothetical questions, and each time Silverman replied, McCormick argued that he was added facts that weren't in the given situation.

"Do you let your students add facts?," he asked.

NMD volunteers testify 

Following Silverman, two NMD volunteers testified about their experiences the week that Warren arrested. 

Elizabeth Kaszniak said that on Jan. 14, 2018, she drove from Tucson to Ajo, and arrived at the Barn around sunset, and she was told that two men were staying there, and she found Warren trying to cook dinner while talking on the phone. 

Kaszniak said she took over cooking from Warren, and spoke to Perez-Villanueva and Sacaria-Goday in Spanish, who were both "exhausted and strained," she said. 

Two No More Deaths groups had been out in the desert searching for human remains, and one group had located the remains and stood by while Pima County sheriff's deputies recovered the remains. Both groups arrived and they all ate dinner together, and then most of the volunteers went to bed to prepare for water drops the next morning, Kaszniak testified.

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Kaszniak said that Sacaria-Goday was coughing and had symptoms of a head cold, and that both men had blisters on the feet. Later in the day, the two men said they were thinking of leaving the Barn to press on through the desert, which Kaszniak testified "concerned" her, because she worried that the two men were "naive" about the dangers they faced in the desert. 

"I carry a high level of concern for people getting lost," she said. "If someone is in trouble, you can't sit down and wait for somebody to find you, you need to find yourself help," she said. 

She testified that both men were "incredibly polite and kind, but also incredibly young." 

She also testified that on Tuesday, Jan. 16, the two men were walking around outside, including between the Barn, and a storage shed she called the "Barn-let" which contained food donations that she went to organize while the two men looked on. 

That same day, a retired nurse who volunteers with No More Deaths, Susannah Brown came by, and with translation via Kaszniak, evaluated the two men. Brown has become a central figure in the case against Warren. In May, during the first trial, prosecutors tried to tie Brown into a conspiracy that involved the two men, Warren, and an immigration-rights activist based in Mexico. 

Just before this trial began, prosecutors asked U.S. District Judge Raner Collins to appoint a criminal defense attorney "out of an abundance of caution." 

Sacaria-Goday had a large blister on each foot, including on that had ruptured, and the 20-year-old man "couldn't stop picking at it," Kaszniak said. 

Brown treated the blisters and also wrapped the man's chest with an ace bandage because he complained that his ribs hurt from falling against a rock, she said. 

A central issue in the case against Warren is whether he let the men stay at the Barn because they needed medical attention, or that he did so to shield the men from the "watchful eyes" of Border Patrol. 

When asked why she volunteers with NMD, Kaszniak said that she grew up in Tucson, "hiking and recreating in the desert. When I began to hear of deaths in the desert, it hit quite literally, close to home. When a tragedy is happening in a place you call home, it compels you to act." 

During cross-examination, assistant U.S. Attorney Nathaniel Walters honed in on the idea that Kaszniak and other volunteers slept in tent outside as temperatures dropped, while Perez-Villanueva and Sacaria-Goday stayed inside, and he repeatedly questioned why she didn't include details on a series of notes, called Subjective-Objective Assessment Plan or SOAP notes, including the fact that she gave the men tea, and Brown gave the men Vapo-rub. 

Along with Kaszniak, NMD volunteer Isabella Reis-Newsom said that January 2018 was her first month in the desert, and that on Jan. 14, she was part of the team that searched for, and found human remains in a remote section of the Cabeza Prieta National Wildlife refuge an area that McCullough called a "trail of death from the border to the Growler Valley." 

There Reis-Newsom said they found a human skull.

"We hiked several miles down until we came to the skull, then we did a grid search," she said. "It was my first encountering a human body in the desert." 

She said that on meeting the men, they seemed "bewildered and exhausted" and that she saw signs that Scaria-Goday had fallen and hurt his ribs. 

'Everyone out there is dehydrated' 

Reis-Newsom was followed on the stand by Dr. Norma Price, a retired physician who regularly works with NMD. She testified that anyone in the desert should be considered dehydrated because a person in the desert can lose more than 15 liters of water, or nearly four gallons, every 24 hours, and it's impossible for someone to carry that much water, weighing nearly 32 pounds, much less the water they'd need for the multi-day trek across the deserts around Ajo. 

Perez-Villanueva and Scaria-Goday spent nearly two days trekking from Sonoyta, Sonora to a gas station in Why, Ariz., traveling at least 27 miles. 

Prosecutors repeatedly showed the jury photos that Perez-Villanueva took with his cellphone, showing the two men at the gas station in Why, and at the Barn, evidence that the two men may not have needed medical care when they stayed in Ajo. 

But, Price rejected this telling the courtroom that "you can't" tell if someone is dehydrated by looking at them. She said that the men were suffering from blisters that required the men stay off their feet. 

"Can you die from blisters?," asked McCormick. 

"Any injury to the lower extremity can impair someone's travel," Price explained. "If they can't keep up with the group they are left behind. If they are left behind, they get lost and if they're not found or stumbled upon, they will die from exposure in the desert." 

She said that people may not know they're "medically compromised" and that some people can escape the desert, but find themselves needing dialysis in a year because as they hiked through the terrain, their muscles broke down releasing a protein that clogs the kidneys. 

Later, McCormick asked why the men couldn't use moleskins, or small pads used by hikers to keep blisters from forming. Price rejected this idea. 

"It sounds great, doesn't it?" she said. "It doesn't work in this situation," because people are often "rapidly moving" and adding enough padding to protect a person's foot would mean so much padding they would need larger shoes. 

"They have to stay off their feet or they're not going to heal," Price said. 

Warren's trial will continue on Tuesday, beginning at 9:30 a.m.