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Case 4:18-cr-00223-RCC-BPV Document 172 Filed 03/14/19 Page 1 of 35

1 Gregory J. Kuykendall, Bar # 012508


Amy P. Knight, Bar # 031374
2 KUYKENDALL & ASSOCIATES
3 531 S Convent Avenue
Tucson, AZ 85701
4 (520) 792-8033
greg@kuykendall-law.com
5 amyknight@kuykendall-law.com
6 Pro Bono Attorneys for Defendant Scott Daniel Warren
7
8 UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
9
United States of America, )
10 ) No.CR-18-00223-001-TUC-RCC(BPV)
11 Plaintiff, )
) MOTION TO DISMISS INDICTMENT
12 vs. ) DUE TO SELECTIVE
13 ) ENFORCEMENT
SCOTT DANIEL WARREN, )
14 )
Defendant. )
15 )
16 )
17
Defendant Scott Daniel Warren, through his pro bono attorneys Gregory J.
18
Kuykendall and Amy P. Knight, hereby moves this Court to dismiss this indictment because
19
20 it arose from discriminatory selective enforcement of the laws by the United States Border

21 Patrol, in violation of Defendant’s right to equal protection of the laws guaranteed by the
22
Fifth Amendment of the United States Constitution. In the alternative, Dr. Warren moves
23
this Court to order disclosure on the specific question of discriminatory effect, as identified
24
25 in the Appendix to this motion. In support thereof, he states as follows:

26
27
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Case 4:18-cr-00223-RCC-BPV Document 172 Filed 03/14/19 Page 2 of 35

1 INTRODUCTION

2 The Supreme Court has long recognized that “the possibility that a good-faith critic
3
of the government will be penalized for his criticism. . . strikes at the very center of the
4
constitutionally protected area of free expression.” New York Times Co. v. Sullivan, 376
5
6 U.S. 254 (1964). No More Deaths (NMD), a church-sponsored humanitarian organization of

7 which defendant Dr. Scott Warren is an active and publicly visible member, regularly
8
publishes reports criticizing the Border Patrol for practices they view as unjust. Beginning
9
with 2008’s “Crossing the Line: Human Rights Abuses of Migrants in Short-Term Custody
10
11 on the Arizona/Sonora Border,” NMD has highlighted, among other problems, abusive

12 conditions in custody, the agency’s failure to return confiscated money and possessions
13
prior to deportation, and apprehension methods that put migrant lives in danger.1 For years,
14
NMD has been discussing these abuses in the press. For instance, a 2013 article in the
15
16 Phoenix New Times opened: “When U.S. Border Patrol Agents are not shooting each other

17 or unarmed teenagers, they like to destroy water jugs and steal supplies left in the desert for
18
crossing migrants. That’s the charge of the Tucson-based group No More Deaths, which has
19
captured the Border Patrol’s finest with hidden cameras vandalizing and ripping off goods
20
21 left by NMD.”2 While these statements may make their targets uncomfortable, such
22 criticisms constitute the epitome of First-Amendment-protected expression.
23
Dr. Warren is an active, vocal, and highly visible—especially in the small town of
24
Ajo—member of NMD. Prior to his arrest, he was frequently quoted in the media as an
25
26
1All of NMD’s reports are available at http://forms.nomoredeaths.org/abuse-documentation/.
2 Stephen Lemons, “Border Patrol Agents Steals Blankets, Provisions Meant for Migrants,
27
Says No More Deaths,” Phoenix New Times, Jan. 17, 2013,
28 https://www.phoenixnewtimes.com/news/facing-scrutiny-grand-canyon-university-worked-
with-governors-office-11227950.

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1 NMD member.3 Law enforcement agents in Ajo—including Fish and Wildlife Service

2 (FWS) officers and Border Patrol agents—certainly knew who he was. See Exh. 1 at 5 (July
3
31, 2017 text message conversation between FWS employee and Border Patrol agent
4
discussing Dr. Warren); Exh. 2 at 5-6 (text message conversation between Border Patrol
5
6 agent and different FWS officer exchanging Dr. Warren’s home address and current

7 location); Exh. 3 at 3 (Border Patrol agent’s report after arrest describing prior knowledge of
8
Dr. Warren’s activities).
9
On January 17, 2018, shortly before 8:30 in the morning, NMD published a new
10
11 report criticizing the Border Patrol (see Exh. 4), including video footage of agents behaving

12 cruelly and unprofessionally that was viewed hundreds of thousands of times that day alone.
13
The 22-page report, which was posted along with a “Press Kit,”4 makes specific accusations,
14
including:
15
16 • Border Patrol agents in the Arizona borderlands routinely intimidate, harass, and
surveil humanitarian-aid volunteers, thus impeding the administration of
17 humanitarian aid. These actions call into question the Border Patrol’s own claims
18 to be humanitarian. (p. 2)
• While humanitarian-aid volunteers attempt to mitigate the crisis of death and
19 disappearance, Border Patrol agents routinely sabotage this work and maximize
20 the suffering of border crossers. (p. 2)

21
3 See, e.g., Daniel González, “In crushing heat wave, Border Patrol ready to rescue migrants,”
22 The Republic, June 22, 2017, https://www.azcentral.com/story/news/politics/ border-
issues/2017/06/22/migrant-rescues-arizona-desert-border-heat-wave/421781001/
23 (identifying Dr. Warren as NMD volunteer and quoting him about border crossing in extreme
heat); Andrea Jaramillo Valencia, “As border wall prototype construction starts, Arizona
24 geographer speaks up,” Cronkite News, Sept. 28, 2017, https://cronkitenews.azpbs.
org/2017/09/28/border-lecture/ (describing Dr. Warren’s public lecture on “Social and
25 Environmental Costs of the Border Wall”); Rory Carroll, “Arizona’s Organ Pipe park is a
‘paradise’ for tourists but a death trap for migrants,” The Guardian, Oct. 15, 2015,
26 https://www.theguardian.com/us-news/2015/oct/15/organ-pipe-national-monument-
migrants-mexico (with photo captioned “Scott Warren, an academic and activist with No
27 More Deaths, stops for a water break.”).
4 The report, video, and press kit are available at a dedicated website the group set up for this
28 project: http://www.thedisappearedreport.org.

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1 • Our analysis leads us to believe that Border Patrol agents engage in regular and
widespread destruction of water supplies with little or no apparent consequence.
2 The de facto state sanctioning of the destruction of humanitarian-aid supplies
3 devalues the lives of border crossers and encourages other actors in the region to
do the same. (p. 11)
4 • The US Border Patrol’s own enforcement strategies are responsible for the crisis
5 of death and disappearance of border crosses; the Border Patrol cannot adequately
respond to this same crisis, only exacerbate it. (p. 15)
6
That afternoon, the Border Patrol decided to begin surveilling an NMD facility and
7
8 provided a patently pretextual explanation for this choice. Agents then swiftly arrested Dr.

9 Warren, whom they knew to be a leader of NMD, for harboring, without evidence that Dr.
10
Warren himself had done anything illegal and despite their professed belief that he had no
11
control over the facility. Based on these facts, on August 23, 2018, Defendant filed a Motion
12
13 for Discovery Into Selective Enforcement (Doc. 113) seeking seven categories of

14 information. On November 7, 2018, the Court, recognizing that based on the information
15
available to that point, Defendant’s “suspicion” of retaliation “should be explored,” ordered
16
a limited subset of the requested information disclosed (Doc. 135). The Government
17
18 ultimately disclosed a still smaller subset of what that order called for, although this Court

19 deemed that sufficient. Based on (1) the facts supporting the August 23 motion, (2)
20
additional facts uncovered by investigation over the last six months and (3) information
21
contained in the disclosure provided pursuant to the Court’s November 7 order, Dr. Warren
22
23 now asks this Court to dismiss the indictment because he has established that he was
24 targeted for investigation, surveillance, and arrest by the Border Patrol in violation of his
25
equal protection rights. Alternatively, at the very least, Dr. Warren asks this Court to order
26
additional disclosure to allow him to fully prove selective enforcement.
27
28

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1 I. Selective Enforcement of the Criminal Laws Violates the Requirement of Equal


Protection Guaranteed by the Fifth Amendment.
2
Over a century ago, the Supreme Court explained that even if a “law itself be fair on its
3
4 face and impartial in appearance, yet, if it is applied and administered by public authority
5 with an evil eye and an unequal hand, so as practically to make unjust and illegal
6
discriminations between persons in similar circumstances, material to their rights, the denial
7
8 of equal justice is still within the prohibition of the Constitution.” Yick Wo v. Hopkins, 118

9 U.S. 356, 373-74 (1886). Selective enforcement claims are judged “according to ordinary
10 equal protection standards,” which “require petitioner to show both that the [government
11
action] had a discriminatory effect and that it was motivated by a discriminatory purpose.”
12
13 Wayte v. United States, 470 U.S. 598, 608 (1985) (citing Personnel Administrator

14 of Massachusetts v. Feeney, 442 U.S. 256 (1979); Arlington Heights v. Metropolitan


15 Housing Dev. Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976)).
16
In this circuit a defendant “is entitled to an acquittal if his evidence proved that the
17
18 authorities purposefully discriminated against those who chose to exercise their First

19 Amendment rights.” United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972). Similarly,
20 in Dixon v. District of Columbia, 394 F.2d 966 (D.C. Cir. 1968), the Court, upon
21
determining that the prosecution was brought in retaliation for the defendant’s filing a
22
23 complaint against police officers, ordered the information dismissed. See also United States

24 v. Mumphrey, 193 F.Supp.3d 1040, 1055-59 (N.D. Cal. 2016) (discussing at length the
25 authority supporting dismissal where selective enforcement is proven).
26
A. Impermissible Bases for Differential Treatment
27
28

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1 Government action violates equal protection where it is “deliberately based upon an

2 unjustifiable standard such as race, religion, or other arbitrary classification.” Oyler v. Boles,
3
368 U.S. 448, 456 (1962). “Unjustifiable standards” include “the exercise of protected
4
statutory and constitutional rights.” Wayte, 470 U.S. at 608. Thus, in Wayte, the Petitioner’s
5
6 claim—which the Court recognized would be valid if proven—was that the government

7 prosecuted him for failure to register for the selective service “because of his protest
8
activities.” Id. at 609 (emphasis original); see also United States v. Falk, 479 F.2d 616, 620
9
(7th Cir. 1973) (en banc) (“[J]ust as discrimination on the basis of religion or race is
10
11 forbidden by the Constitution, so is discrimination on the basis of the exercise of protected

12 First Amendment activities.”). The government is similarly prohibited from punishing


13
individuals more harshly simply for being “a member of a group unpopular with the
14
government.” Falk, 479 F.2d at 620 (remanding for a hearing on selective prosecution
15
16 where defendant alleged he was targeted as a member of Chicago Area Draft Resisters).

17 B. Discriminatory Intent
18
A defendant need not present an explicit admission of impermissible discrimination, or a
19
“smoking gun,” to succeed on an equal protection claim; Courts have widely agreed that
20
21 circumstantial evidence of intent can suffice. See, e.g., Diaz v. San Jose United School Dist.,
22 733 F.2d 660, 662 (9th Cir. 1984) (“Ordinarily, only circumstantial evidence is available to
23
establish segregative intent”). This rule recognizes the reality that officials often refrain
24
from putting illegal motivations in writing.
25
26 In the seminal equal protection case Arlington Heights, on which the Supreme Court
27 relied in discussing selective enforcement in Wayte, the Court explained, “[d]etermining
28
whether invidious discriminatory purpose was a motivating factor demands a sensitive

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1 inquiry into such circumstantial and direct evidence of intent as may be available.” 429 U.S.

2 at 266. It gave examples of circumstantial evidence that might prove discriminatory intent:
3
• “The historical background of the decision is one evidentiary source, particularly if it
4 reveals a series of official actions taken for invidious purposes.” Id. at 267.
5 • “The specific sequence of events leading up to the challenged decision may also shed
some light on the decisionmaker’s purposes.” Id. at 267 (noting it would be highly
6 relevant if an authority’s position “suddenly was changed” when it learned of the
information it is alleged of using discriminatorily).
7
• “Departures from the normal procedural sequence” and “Substantive departures”
8 could “afford evidence that improper purposes are playing a role.” Id. at 267.
9 The Court has also recognized “mere temporal proximity” between the actor’s
10
“knowledge of protected activity” and its adverse action may constitute “sufficient evidence
11
of causality to establish a prima facie case” if “the temporal proximity [is] ‘very close.’”
12
13 Clark County Sch. Dist. V. Breeden, 532 U.S. 268, 273-74 (2001). Thus, “causation can be
14 inferred from timing alone” if the challenged action “follows on the heels of protected
15
activity.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002).
16
In addition, where the government actors assert an explanation for their actions that does
17
18 not withstand scrutiny, this may be strong evidence of discriminatory intent; “[p]roof that
19 the defendant's explanation is unworthy of credence is simply one form of circumstantial
20
evidence that is probative of intentional discrimination, and it may be quite persuasive.”
21
Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147 (2000); see also Engquist v. Or.
22
23 Dep't of Agric., 478 F.3d 985, 993 (9th Cir. 2007) (“[I]n an equal protection claim based on
24 selective enforcement of the law, a plaintiff can show that a defendant’s alleged rational
25
basis for his acts is a pretext for an impermissible motive.”).
26
The decision need not be made pursuant to a formal policy; even a spur-of-the-moment
27
28 decision by a single officer can violate equal protection if made with discriminatory intent.

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1 See, e.g., Chavez, 251 F.3d at 645 (claim that “individual ISP officers utilize impermissible

2 racial classifications in determining whom to stop, detain, and search,” if proven, “would
3
amount to a violation of the Equal Protection Clause of the Fourteenth Amendment.”).
4
Finally, a defendant need not prove that the improper purpose was the only reason for
5
6 the challenged action. In Wayte, the Supreme Court explained the challenged action need

7 only be “at least in part ‘because of’ not merely ‘in spite of,’ its adverse effects on an
8
identifiable group.” Wayte at 610 (citing Feeney, 442 U.S. at 279). In Arlington Heights, the
9
Court elaborated on this causation analysis, explaining that it was rare to find “a decision
10
11 motivated solely by a single concern, or even that a particular purpose was the ‘dominant’ or

12 ‘primary’ one.” 429 U.S. at 265. Thus, the discriminatory purpose need only have “been a
13
motivating factor in the decision.” Id. at 266.
14
C. Discriminatory Effect
15
16 A claim of selective enforcement, like any equal protection claim, requires proof that

17 “similarly situated individuals of a different race or classification were not prosecuted,


18
arrested, or otherwise investigated.” United States v. Washington, 869 F.3d 193, 214 (3d
19
Cir. 2017) (cited with approval in United States v. Sellers, 906 F.3d 848 (9th Cir. 2018)).
20
21 What “similarly situated” means necessarily varies between contexts. Thus, in a typical
22 selective prosecution case, the comparison group would be people who had committed the
23
same crime but were not prosecuted. See United States v. Aguilar, 883 F.2d 662, 706 (9th
24
Cir. 1989). But where the challenged action is instead investigation, that concept is a poor
25
26 fit, Sellers, 906 F.3d 848, largely because at the time when the purportedly discriminatory
27 decision to investigate is made, agents by definition do not yet know whether the targets
28
have committed any crimes. The Government is not looking at a group of people known to

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1 have broken the law and deciding which ones to punish; it is looking at a group of people

2 who could potentially be breaking the law, and deciding which to target for investigation.
3
“Different factors will be relevant for different types of inquiries—it would be imprudent to
4
turn a common-sense inquiry into a complicated legal one.” Chavez v. Ill. State Police, 251
5
6 F.3d 612 (7th Cir. 2001). One consideration in assessing the Government’s selection of

7 targets for investigation should be “the goals of the program.” United States v. Mumphrey,
8
193 F. Supp. 3d 1040, 1061 (N.D. Cal. 2016).
9
Crucially, as the Mumphrey Court pointed out, the Government cannot rely on the
10
11 strength of the evidence it has against certain individuals to justify its behavior when part of

12 the challenged action is its development of that evidence in the first instance. 193 F.Supp.3d
13
at 1062 (Government cannot justify different treatment based on the fact that the drug
14
transactions it prosecuted were videotaped, because it was the one that chose whom to
15
16 videotape). Nor can officials justify differential treatment merely by identifying

17 distinguishing factors; distinctions must be pertinent to the challenged decisions. Thus, in


18
Chavez, officers claimed that a motorist they did not stop was not similarly situated to the
19
one they did “because she was female, drove a different color car with a non-California
20
21 plate, did not have the same items visible in her car, and did not receive a warning ticket.”
22 251 F.3d at 637-38. The Court rejected these distinctions because nothing in the record
23
suggested any of them actually bore on their decision as to which motorists to stop; indeed,
24
one of the factors (the items visible in the car) was not known to the officers until after the
25
26 challenged stop occurred. Id. Thus, despite factual differences, the other motorist was
27 similarly situated in all respects that mattered in terms of choosing whom to pull over.
28

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1 A defendant need not produce dozens of examples to prove selective enforcement.

2 Indeed, “[o]ne similarly situated example is arguably all Defendants need to show
3
discriminatory effect.” Mumphrey, 193 F. Supp. 3d at 1062. Federal courts have
4
“recognized three possible methods of proving discriminatory effect in a selective-
5
6 enforcement case: statistical evidence; the identification of a similarly situated individual

7 who could have been, but was not, stopped or arrested; and, in certain circumstances,
8
anecdotal evidence establishing an officer's pattern of similar discriminatory behavior.
9
United States v. Alabi, 597 F. App'x 991, 996 (10th Cir. 2015) (emphasis added); see also
10
11 Chavez, 251 F.3d at 637 (“The relevant inquiry is whether a similarly situated individual

12 was treated differently than the plaintiff.”) (emphasis added); Jones v. Wal-Mart Stores,
13
Inc., 2009 U.S. Dist. LEXIS 67197, at *27 (D. Ariz. 2009) (single similarly situated
14
individual constituted “the requisite degree of proof necessary to establish a prima facie case
15
16 that other employees with similar qualifications were treated more favorably.”); Brock v.

17 Langford, 2017 U.S. Dist. LEXIS 200090 at *6 (C.D. Cal. 2017) (noting equal protection
18
claim requires evidence that party “was intentionally treated differently form [sic] a
19
similarly situated individual”) (emphasis added); Williams v. County of Alameda, 26 F.
20
21 Supp. 3d 925 (N.D. Cal. 2014) (declining to dismiss selective enforcement claim where
22 plaintiff identified one similarly situated individual not arrested).
23
D. If the Court decides the evidence of discriminatory effect falls short of requiring
24 dismissal, the Court must at the very least order disclosure of the information
necessary to establish that component of the claim.
25
26 In 2018, the Ninth Circuit decided Sellers, ruling that the heightened discovery standard
27
for challenging the decisions of prosecutors announced in United States v. Armstrong, 517
28

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1 U.S. 456 (1996), does not apply where the challenged conduct is in the investigative

2 activities of police. 906 F.3d 848. In doing so, it explained that unlike in selective
3
prosecution cases, where it is often possible to identify people who had committed certain
4
crimes but never been prosecuted (for instance by identifying those arrested but never
5
6 charged), such information simply does not exist for selective enforcement: “Asking a

7 defendant claiming selective enforcement to prove who could have been targeted by an
8
informant, but was not. . . is asking him to prove a negative; there is simply no statistical
9
record for a defendant to point to.” Id. at 853. Because the type of comparison required in
10
11 Armstrong is not possible when law enforcement never investigated those not in the targeted

12 group, that information cannot be required to entitle a defendant to discovery about targeting
13
by law enforcement agents’ investigations. The resulting standard, the Court announced, is:
14
While a defendant must have something more than mere speculation to be
15 entitled to discovery, what that something looks like will vary from case to
16 case. The district court should use its discretion—as it does for all discovery
matters—to allow limited or broad discovery based on the reliability and
17 strength of the defendant's showing.
18
Sellers, 906 F.3d at 855. This, the Court continued, means that “evidence of discriminatory
19
intent may be enough to warrant discovery.” Id. at 856.
20
21 The disclosure this Court ordered in November—of texts and emails sent to the two
22 agents establishing the surveillance on the day in question—was focused almost exclusively
23
on discriminatory intent.5 But the part that is more difficult to prove without discovery is
24
25 5 The Court’s November 7 order wrongly represents Defendant’s position. The Order claims
“Defendant asserts the surveillance agents must have been directed to arrest the suspected
26 Barn migrants and Defendant Warren.” Doc. 135 at 3. Although this was a possibility, it is
certainly not the only possible scenario for selective enforcement. The particular agents who
27 set up and participated in this surveillance and arrest could have decided to target the Barn for
retaliatory reasons themselves, without being so directed. It does not matter whether a superior
28 agent directed surveillance for discriminatory reasons, or whether the line agents made the
discriminatory decision themselves; both are equally illegal.

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1 discriminatory effect. See Sellers, 906 F.3d at 853-54 (recognizing that Armstrong standard

2 cannot apply to claims about investigation because while “the Supreme Court concluded that
3
requiring evidence about similarly situated defendants would not ‘make a selective-
4
prosecution claim impossible to prove,’ [t]hat is not the case here.”). Accordingly, more
5
6 information unquestionably exists that might assist with this other portion of the claim not

7 addressed by this Court’s prior order. See Appendix.


8
II. The Border Patrol Established Surveillance and Arrested Dr. Warren With
9 Discriminatory Intent.
10
Dr. Warren is a recognized leader of NMD. The Border Patrol has repeatedly
11
12 demonstrated its hostility toward the group and its members, particularly in connection with

13 their abuse documentation work. Evidence shows that the Border Patrol was motivated in
14
significant part by a desire to retaliate against NMD for its criticism of the agency, a core
15
protected First Amendment activity, see McConnell v. FEC, 540 U.S. 93, 248 (2003)
16
17 (Scalia, J., concurring in part and dissenting in part) (overruled in part by Citizens United v.

18 FEC, 558 U.S. 310 (2010) (recognizing that “the heart of what the First Amendment is
19
meant to protect [is] the right to criticize the government.”).
20
A. Historical Evidence
21
22 The Border Patrol has had what the New York Times calls “a history of tense relations

23 with No More Deaths.”6 For instance, compiled video footage captured over several years
24
shows Border Patrol agents intentionally destroying supplies the group left in the desert for
25
26
27
6Fernanda Santos, “Border Patrol Raids Humanitarian Aid Group Camp in Arizona,” New
28 York Times, June 16, 2017, https://www.nytimes.com/2017/06/16/us/border-patrol-
immigration-no-more-deaths.html.

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1 the use of imperiled migrants.7 The first clip in the montage bears a date stamp of January

2 10, 2011, and depicts three agents walking in the desert; they come upon a row of water
3
jugs, and one of the agents goes down the line of jugs, giving each one a firm kick, then
4
walk way, leaving the empty jugs in the desert. Another clip, which begins about 22 seconds
5
6 into the video, shows an agent pouring out jugs of water and apparently addressing the

7 person holding the camera. He sneers at the filmer, believed to be an NMD volunteer,
8
saying “Are you gonna get a good shot? I’m picking up the trash that somebody left on the
9
trail. It’s not yours, is it? All you have to do is tell me if it’s yours. It’s not yours. You’re not
10
11 gonna tell me, huh?” The “trash” the agent is referring to is a cache of about a dozen jugs of

12 what appears to be potable drinking water.8 Although the video is not date-stamped, it is
13
believed to have been recorded in the summer of 2010. Additional clips depict further
14
destruction of supplies. Crucially, the agents in these videos are not simply removing items
15
16 from the desert (and indeed, the Border Patrol is not the agency charged with maintaining

17 public lands); they are destroying them, sometimes violently, and in some cases, leaving the
18
destroyed supplies behind. These actions serve no conceivable purpose other than to
19
interfere with humanitarian aid and express hostility toward the humanitarian workers.
20
21 On June 15, 2017, agents raided a medical camp run by NMD in Arivaca, Arizona.9
22 Documents associated with the search warrant they obtained strongly suggest they had had
23
the camp under surveillance; one journalist noted,“[t]he arrests two days after the sensor
24
25
7 This video can be viewed at https://youtu.be/eqaslbj5Th8.
26 8 Cf. United States v. Millis, 621 F.3d 914, 917-18 (9th Cir. 2010) (holding, in a case against
an NMD volunteer, that the term “garbage” would not necessarily be understood to include
27 “purified water in a sealed bottle intended for human consumption.”)
9 See Fernanda Santos, “Border Patrol Raids Humanitarian Aid Group Camp in Arizona,” The
28 New York Times, June 16, 2017, https://www.nytimes.com/2017/06/16/us/border-patrol-
immigration-no-more-deaths.html.

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1 took photos of the men raised questions as to why the agents didn’t arrest them before they

2 arrived at the camp or after they left.”10 Video footage of the raid11 shows at least a dozen
3
vehicles, a helicopter, and dozens of armed agents, with military-style rifles—all to arrest
4
four individuals who were receiving emergency medical care. This grossly excessive show
5
6 of force again reflects the agency’s hostility, as well as its intent to intimidate NMD.

7 Following this raid, NMD issued a statement, reported in national and international press,
8
calling the Border Patrol’s raid “a shameful reflection of the current administration’s
9
disregard for the lives of migrants and refugees.”12
10
11 A few days after this raid, Dr. Robin Reineke, a local human rights expert who

12 teaches anthropology at the University of Arizona and runs a nonprofit organization that
13
works closely with the Pima County Office of the Medical Examiner, had a previously
14
scheduled meeting with two Tucson Sector Border Patrol agents. Dr. Reineke reported that
15
16 at this meeting, she “expressed [her] anger and dismay that agents would raid a

17 humanitarian aid station in the desert during a heatwave.” Exh. 5 at ¶ 9. Agent Mario
18
Agundez “was defensive and angry in explaining why the Border Patrol had raided the
19
medical facility. He referred to negative press against the Border Patrol generated by No
20
21 More Deaths, and said they had ‘gone too far,’ that, ‘they have messed with the wrong
22 guy.’” Id. Agent Agundez also told Dr. Reineke the Border Patrol intended “to shut them
23
down.” Id. This report constitutes direct evidence that the Border Patrol possessed the intent
24
25 10 Curt Prendergast, “Arrests at Arivaca migrant aid camp don’t signal a policy shift, Border
Patrol says,” Arizona Daily Star, June 16, 2017, https://tucson.com/news/local/border/arrests-
26 at-arivaca-migrant-aid-camp-don-t-signal-a/article_c2d8e7e6-8136-503b-8c92-
0b69bc3e309a.html.
11 This video can be viewed at https://youtu.be/gIhltQo5rjM.
27
12 See, e.g., Tom Dart, “’Shameful’ raid on aid camp at US-Mexico border puts lives at risk,
28 volunteers say,” The Guardian, June 16, 2017, https://www.theguardian.com/us-
news/2017/jun/16/us-mexico-border-aid-camp-raid.

14
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1 to retaliate against NMD for their practice of publicly criticizing the agency, and that part of

2 that intent was to chill their First Amendment-protected activity.


3
B. Following Agent Agundez’s Outburst, Agent Marquez Initiated Text Message
4 Contact With FWS Officials to Keep Tabs on NMD and Dr. Warren.
5
In July, 2017 (the month after another agent told Dr. Reineke that the Border Patrol was
6
7 angry with NMD for their criticism), Agent John Marquez had a text exchange with Margot

8 Bissel, a FWS who works in the office of the Cabeza Prieta National Wildlife Refuge in
9
Ajo, an area where NMD volunteers had recently been active in distributing emergency life-
10
saving supplies. Apparently following up on a previous conversation the two had had, Bissel
11
12 provided Marquez with information “about new volunteers with membership with No More

13 Deaths/No Mas Muertes,” as well as the name of a leader they believed to be with the
14
Unitarian Universalist Church. Exh. 1 at 1. Marquez noted his knowledge that NMD
15
operates under that church, apparently to explain why she had provided him this information
16
17 or why he found it significant. Id. Thus, he collected information about this person

18 specifically because he believed him to be connected to NMD.


19
On July 28, 2017, the two had another conversation about NMD, exchanging
20
information about the group’s level of activity following attempts by FWS to put a stop to
21
22 their activities. Id. at 7-8. Three days later, Marquez asked Bissel to “Let [him] know of

23 anymore [sic] bean droppers come around.” Id. at 4. Bissel complied, and on Marquez’s
24
suggestion that he would “figure out who they are,” she provided him with two names of
25
individuals who had applied for permits to enter the refuge. Id. at 4-5.
26
27 A few months later, on October 13, 2017, Bissel again texted Marquez, as he had
28 requested, to tell him there had been “A ton of No More Deaths last two days in here getting

15
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1 permits.” Id. at 6. Marquez’s response was “Sweet.” Id. Thus, he was apparently happy

2 about the opportunity to collect more information about the group and its members. He then
3
asked Bissel for “any new info or names.” Id.
4
Although the messages the Government has provided are obviously incomplete excerpts
5
6 from an ongoing exchange, they clearly establish that Marquez was actively tracking NMD

7 members, and, based on the tone of the exchanges, was doing so with a kind of relish not
8
reflective of proper law enforcement motives. Notably, the activities he was discussing with
9
Bissel involved placement of food and water in the desert; there was no mention of anything
10
11 to do with conduct that might violate immigration laws, and thus be of relevance to any

12 proper purpose Marquez may have had.


13
On December 20, 2017, Marquez met with Donald Ebann, a FWS Officer with law
14
enforcement duties working in the Cabeza Prieta refuge. Exh. 6. During this meeting, Ebann
15
16 apparently told Marquez that The Barn, which is near Ebann’s home, was used by NMD

17 volunteers, and that a black Nissan Xterra like one owned by Dr. Warren was frequently
18
there. Id. That same day, Marquez established text message contact with Ebann. Exh. 2.
19
On Wednesday, January 3, 2018, Ebann sent Marquez a photo of a permit for entry on
20
21 the Cabeza Prieta National Wildlife Refuge. The two then worked together to determine that
22 the vehicle identified in the permit was currently parked at The Barn, which Marquez by
23
then knew was a” base of operations” for humanitarian work. Id. at 1. Thus, Marquez was
24
again using FWS personnel to collect information about the comings and goings of NMD
25
26 members in the course of their work supplying emergency aid supplies in remote areas.
27 That Saturday, Ebann alerted Marquez that “The barn is active this morning.” Exh. 2 at
28
4. The following Monday, Ebann indicated, apparently in response to some other

16
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1 conversation the two had had outside of the text message string, that he was “trying to get

2 me a female’s subjects [sic] name related to No More Deaths/No Mas Muertes.” Id. at 1.
3
Marquez then provided Scott Warren’s home address to Ebann (why he knew it, he does not
4
say). The two exchanged information about vehicles Ebann had observed at The Barn,
5
6 which included some he referred to as “the NMD vehicles.” Ebann even told Marquez that

7 “Warrens POV [privately owned vehicle] is there as well,” to which Marquez responded
8
“Oh nice.” Id. at 7-8. The two law enforcement officers thus kept track not only of where
9
Scott Warren lived, but also what type of car he drove, and his whereabouts. This exchange
10
11 makes clear that Marquez had his sights set on NMD, and Scott Warren specifically,

12 although he never stated any reason to suspect them of doing anything illegal.
13
Marquez created no official report about any of these text message exchanges until May
14
21, 2018, approximately four months into this litigation, after the defense requested that the
15
16 Government provide more details about disclosed messages. In his after-the-fact reports,

17 Marquez refers to Ebann as “concerned citizen Donald EBANN,” Exh. 2 at 1, although the
18
messages the two exchanged relied on information that Ebann obtained in his capacity as a
19
government officer, and included Marquez providing information for Ebann and his
20
21 colleagues to use in carrying out their official duties. This disingenuous attempt to pretend
22 he was simply communicating with a citizen making a report suggests that Marquez realized
23
his unofficial inter-agency collaboration to track group members may not have been entirely
24
permissible. He also described Ebann’s contact with him as “notif[ying] me of suspicious
25
26 activity near his place of residence in Ajo, Arizona.” Id. But nothing in the messages, or
27 Marquez’s description of them, suggests anything other than members of NMD being
28
present at The Barn. If Marquez was being truthful in his report, then he apparently regarded

17
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1 the simple fact of a group of NMD members’ presence at The Barn to be “suspicious.” That

2 is strong evidence that Marquez’s actions were motivated by his feelings about the group
3
and its activities, rather than by legitimate law enforcement interests. He also referred to
4
“concerned citizen Margot BISSEL, who notified me of suspicious activity near his place of
5
6 residence in Ajo, Arizona.” Exh. 1 at 1. Marquez apparently forgot to change this from his

7 report about the Ebann messages, and did not otherwise provide any explanation for his
8
exchanges with a federal employee who was giving him information she had gleaned in the
9
performance of her duties, nor did he indicate anywhere else in the report what any of the
10
11 group members he was tracking had allegedly done wrong.

12 Thus, during the approximately six-month period following the raid on the Arivaca camp
13
and Agent Agundez’s expression of the Border Patrol’s anger at the group over bad press
14
and intention to shut them down, Agent Marquez actively collected information on group
15
16 members and tracked their activities, without ever documenting any connection to real or

17 even suspected criminal activity. Why he paid such extensive attention to work he only ever
18
described as “humanitarian,” he never says.
19
This was the state of the Border Patrol’s stance toward NMD when NMD issued its
20
21 report video on January 17, 2018—a context crucial for understanding that the agents, upon
22 learning of the new report, decided to target NMD for surveillance in hopes of finding some
23
excuse to arrest its leaders.
24
D. The Events of January 17, 2018
25
26 In addition to widely sharing the report online and with media contacts, an NMD
27 representative emailed a copy directly to Steven Passament, a Tucson Sector Border Patrol
28
official, at 8:23 in the morning on January 17, 2018. Exh. 7. Although the Government has

18
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1 not produced any additional communications concerning the transmission of this report

2 within the Border Patrol, and Customs and Border Protection has failed to respond to
3
various FOIA requests, the Pima County Sheriff’s Office (PCSO) did respond to a FOIA
4
request, producing an email received by Robert Koumal, the PCSO chief of operations in
5
6 Ajo, from Border Patrol Agent Fernando Grijalva, Agent in Charge of Ajo Border Patrol

7 Station. Exh. 8. In that email, sent at 10:34 am, Agent Grijalva was forwarding a message he
8
had received (the disclosed materials do not say when or from whom) summarizing the
9
NMD report and planned NMD activities, and attaching a PDF copy of the report. The
10
11 anonymous author of the original email to Agent Grijalva notes, in an update dated “0900

12 hrs 01/17,2018,” “I have saved it as a PDF and attached it for your convenience and
13
dissemination.” Thus, obviously, prior to 10:34 that morning, agents at the Ajo station had
14
received news of the report.
15
16 Early that afternoon, Agent Marquez, again texting Ebann, stated at 12:59 pm, that he

17 and his “partner Brendan are gonna set up for a few hours to watch the barn.” Exh. 9 at 1.
18
Crucially, he did not say they were setting up surveillance to locate undocumented
19
individuals, nor ask Ebann if perhaps he had seen particular subjects he was looking for; he
20
21 stated they were going to “watch the barn.” Ebann then told Marquez, “NMD is going to be
22 on news channel 4 tonight at 10 pm talking about vandalism to their water drop sites.” Id. at
23
2. Marquez responded, “Oh wow. That’s awesome. Wonder who they are gonnablame [sic].
24
Ebann said “BP mainly,” and Marquez agreed “Yeah. Prolly.” Id at 3. Although not
25
26 explicitly referencing the report circulated that morning, it does clearly suggest an
27 awareness on both mens’ part that NMD had issued that criticism and was widely
28

19
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1 publicizing it in the news media, and that the report did indeed blame the Border Patrol. And

2 Ebann, at least, linked that topic to Marquez’s plan to “watch the barn.”
3
One hour later, according to his report, Marquez and his partner, Brendan Burns, “set up
4
a LP/OP within the Bureau of Land Management (BLM) area near the town of Ajo.” Exh. 3
5
6 at 3. Approximately half an hour after that, another agent, Alberto Ballesteros,13 sent a text

7 message to Burns and Marquez. Exh. 10 at 1. It is not clear where Ballesteros was, although
8
from the content of the messages, it appears he had a view of the Cabeza Prieta refuge
9
parking lot just off of Highway 85, about a mile to the south of Snyder Road (where The
10
11 Barn is). Over the next two hours or so (the individual messages were provided without time

12 stamps), the three exchanged information about the comings and goings at The Barn:
13
Ballesteros: I am in place. Anything good going on?
14 Marquez: No. Just walking around. Making calls
Marquez: Looks like they bought supplies and unloaded it
15 Marquez: One male two females so far
16 Balllesteros: Cool cool

17 Id. at 1-2.
18
At approximately 3:33 pm, Burns spotted the Nissan Xterra that Marquez
19
believed belonged to Scott Warren arriving at The Barn. Exh. 3 at 3. Marquez
20
21 relayed this to Ballesteros, along with a description of what Warren was wearing.
22 Exh 10 at 2-5.
23
Marquez then sent Ballesteros the description of another person, who “was
24
seen unloading water” from a truck and was driving away from The Barn in a “Small
25
26 White Toyota pickup” with a California license plate. Id. at 5-6. Ballesteros caught
27
28 13 The other agents generally refer to this agent as “Balls.”

20
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1 sight of the vehicle, confirmed it had the same plate, and reported that it had arrived

2 at the Cabeza office lot. Id. at 7. Subsequently, Burns described the departure of
3
another truck from The Barn containing “2 females.” Id. at 8. Ballesteros identified it
4
by license plate. Burns reported that the first truck, the white Toyota, was back at The
5
6 Barn. Id. at 10. Somewhere in this timeframe, Marquez texted Ebann again, asking if

7 the individual meeting the description he’d given Ballesteros, driving the white
8
Toyota, had turned up at the Cabeza office. Exh. 9 at 3-4.
9
Thus, during these two or so hours, the three agents were collecting information about
10
11 NMD vehicles and tracking the members. Notably, in his report about this incident,

12 Ballesteros says nothing about any participation prior to responding to a call for assistance
13
with a “knock and talk” at 5:30 pm. Exh. 11. These activities do, however, match up with
14
Marquez’s earlier statement to Ebann that what he and Agent Burns intended to do was to
15
16 “watch the barn.” Moreover, Ballesteros’s question about “anything good” suggests

17 excitement at the idea of catching people from NMD doing something wrong.
18
At 4:38 pm, Marquez reports, he saw Dr. Warren step outside at The Barn with two
19
individuals he believed to be undocumented. Exh. 3 at 4. At this point, Burns sent two text
20
21 messages—one to Marquez and Ballesteros, and one to a larger group of agents he had
22 apparently nicknamed “Los Perros Bravos part 3.”14
23
In the message to Ballesteros and Marquez, Burns says, “2 toncs at the house.” Exh. 10
24
at 11. Ballesteros responds, “What!?!?!?!?!?! Nice!” Id. This is surely not the reaction of a
25
26
27
14 The participants in this group message included Albert Ballesteros, Desi Vargas (the
28 supervisor), Alex Sandoval, Chris Smith, Anthony Martinez, and Marquez, who is listed a
“John Rambo Marquez.”

21
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1 professional Border Patrol Agent every time he locates an undocumented individual. Nor is

2 it the reaction of a Border Patrol Agent who had a reasonable suspicion in the first place that
3
the surveillance of the Barn was going to reveal the presence of undocumented aliens.
4
Rather, it evidences Agent Ballesteros’s excitement at the idea of “busting” NMD.
5
6 Around the same time, Burns also texted the “Perros Bravos” group, “Toncs at the barn.”

7 Exh. 12 at 1. Marquez also received a text from Ebann: “Is that you on childs.” Exh. 9 at 5.
8
Marquez responds “Yup. We are gonna be live soon. Ha.” Id. Marquez’s “Ha” is incredibly
9
telling; it suggests not an agent simply doing his job and enforcing the law, but one relishing
10
11 the opportunity to make this particular arrest.

12 Burns and Marquez then report seeing Dr. Warren and the two suspected undocumented
13
individuals “conversing with each other,” and Dr. Warren “pointing out the mountains and
14
other landmarks.” Exh. 3 at 4; Exh. 13 at 1. At this point, agent Burns reports that he
15
16 “notified Supervisory Border Patrol Agent (SBPA) Desiderio Vargas that we believed

17 WARREN to be harboring illegal aliens at the property, and that we intended to conduct a
18
‘knock and talk’ at the structure.” Exh. 13 at 1. This is apparently a reference to the fact that
19
the “Perros Bravos” group he texted about the “Toncs at the barn” included Vargas; Burns
20
21 then texted, “We’d like to get guys in position to get up and knock it fast before they can
22 bolt,” and Vargas replied, “Ok.” Exh. 12 at 1.
23
At this point, the agents entered the property. Notably, Burns has testified that at the time
24
they entered, he did not believe they had probable cause to arrest anyone. Exh. 14 at 4.
25
26 Burns approached Dr. Warren in the driveway and Dr. Warren informed him that he was on
27 private property. Exh. 13 at 2. Burns stated he had the right to walk up to the front door and
28
knock, as a consensual encounter, and Dr. Warren, asserting his Fourth Amendment right to

22
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1 refuse consent, asked the agents to leave. Id. Burns already knew that Warren was not the

2 owner of the property, but asked him anyway if he was; Warren declined to answer, and
3
Burns then insisted that he could go to the front door in search of the owner, over Dr.
4
Warren’s asserted objection. Id.
5
6 Agent Marquez then saw one of the men through the window of the house, and went

7 around the house to the door, where he located and detained him. Exh. 1 at 4. Burns arrived
8
and determined his immigration status, then placed him under arrest, Exh. 13 at 2, and,
9
“based on [their] observations of activity on the property [Marquez] placed WARREN
10
11 under arrest and informed him that he was being charged with 8 USC 1324, harboring

12 aliens.” Exh. 3 at 4.
13
This arrest was an additional act of discriminatory retaliation. The only evidence agents
14
had when they entered the property was their assumption that due to “ill-fitting clothing,”
15
16 the two men were undocumented, and their glimpse of Dr. Warren standing with the men,

17 pointing somewhere to the North. They knew multiple people were there at the property,
18
having watched it all afternoon, and that Dr. Warren did not own it, and, at least in their
19
view, did not have the authority to exclude people (such as the agents themselves) from it.
20
21 As discussed above, they had concluded, correctly, that that was insufficient evidence to
22 conclude that any particular individual had “harbored, concealed, or shielded from
23
detection” any individual. 8 U.S.C. § 1324(a)(1)(A)(iii).
24
The only things that had changed by the time they arrested Dr. Warren were that they
25
26 had confirmed their assumption that one of the men was undocumented, and that Dr. Warren
27 had asserted his Fourth Amendment right to refuse consent for the agents to enter. They still
28
had no reason to believe that Dr. Warren himself had done anything to conceal the two

23
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1 individuals, that he had any authority over The Barn such that he could have “provided”

2 them shelter there, or that he, rather than anyone else who was present, was in any way
3
responsible for allowing them to be or remain there.15 What agents did know—as reflected
4
in their reports—is that Dr. Warren was “an active volunteer for NMD who organizes and
5
6 recruits college students,” that he “speaks publicly on immigration issues,” as reflected in

7 the news media, Exh. 3 at 3, and that he had refused to answer questions and asserted his
8
Fourth Amendment right to demand that the Border Patrol agents leave the property Exh. 13
9
at 2.
10
11 Given that they did not arrest anyone they did not recognize as a leader and vocal

12 proponent of the group, despite the fact that anyone else there, as far as the agents knew, had
13
just as much responsibility for the two migrants as Dr. Warren, and the fact that they
14
handcuffed and arrested Dr. Warren without probable cause when they could have waited
15
16 until after they’d interviewed the migrants they’d arrested to determine if Dr. Warren had

17 actually had any significant involvement, the conclusion is inescapable that they arrested Dr.
18
Warren because they perceived him as a leader of the group that had criticized them, and
19
because he had nearly derailed their raid by asserting his constitutional rights. Such a
20
21 retaliatory arrest lacking probable cause is strong evidence of selective enforcement.
22 Moreover, the contrast between the Arivaca raid seven months earlier and this one,
23
which followed public criticism of how the Arivaca raid was handled and came mere hours
24
25
15The agents’ assertion that they saw Dr. Warren pointing out landmarks is irrelevant for two
26 reasons. First, pointing out landmarks, even if that did occur, and even if it was done for the
purpose of assisting the migrants in traveling further into the country, both of which Dr.
27 Warren disputes, is not prohibited by the harboring statute, which only addresses concealing,
harboring, or shielding from detection, and contains no element of intending to further a
28 migrant’s journey. Second, they have acknowledged that they lacked probable cause even
after seeing the pointing by Dr. Warren.

24
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1 after the release of the newest critical report, is very telling.16 Prior to the latest round of

2 criticism, when agents suspected undocumented individuals were in an NMD facility, they
3
took photographs, obtained a search warrant, and arrested the undocumented individuals.
4
Immediately following the criticism, they entered without making any attempt to obtain a
5
6 warrant, ignored a volunteer’s proper assertion of his Fourth Amendment right to refuse

7 consent to their entry, and swiftly arrested not only the undocumented individuals, but also
8
the volunteer they perceived as a vocal NMD leader. These are precisely the type of
9
“[d]epartures from the normal procedural sequence” the Arlington Heights Court recognized
10
11 could “afford evidence that improper purposes are playing a role.” 429 U.S. at 267.

12 C. The Border Patrol’s Explanation for its Decision to Surveil Is Pretextual.


13
The “official story” for why the agents set up their surveillance, as represented in
14
Marquez’s report, was:
15
16 “The day prior, on January 16, I was informed that an illegal alien was
apprehended in the town of Ajo near the Immaculate Conception Catholic
17 Church. . . The illegal alien stated that he had been travelling with two other
18 subjects from Central America. He stated that prior to his apprehension, the
other two subjects said that they were going go [sic] their separate ways and
19 were going to get picked up in the town of Ajo by an unknown subject and
smuggled north towards Phoenix.” Exh. 3 at 3.
20
21 Burns wrote essentially the same thing. Exh. 13 at 1. These explanations are abjectly
22 false; even a cursory examination of the details reveals that this was not the true reason for
23
the Border Patrol’s actions in setting up surveillance.
24
25
26
27
16This is not to say that the Arivaca raid was appropriate or conducted for a proper purpose,
28 but merely to highlight the escalation of tactics immediately following the most recent round
of public criticism.

25
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1 For one thing, although Marquez stated in his report that the two men he saw with Dr.

2 Warren “matched the description of the two illegal aliens who evaded capture from the day
3
prior,” Exh. 3 at 4, his later testimony revealed that in fact he never obtained any description
4
of what the allegedly missing individuals looked like:
5
6 Q: But the truth is, you didn’t know anything about the characteristics of those two
people that were supposedly with the migrant captured the day before; is that true?
7 A: I don’t understand.
8 Q: Did you know whether they were young?
A: No.
9 Q: Did you know whether they were old?
A: No.
10 Q: Did you know whether they were tall?
11 A: No.
Q: Did you know whether they were short?
12 A: No.
13 Q: Did you know whether they had facial hair?
A: No.
14 Q: Did you know whether they had long hair?
A: No.
15 Q: Did you know whether they were brown?
16 A: No.
Q: Black?
17 A: No.
18 Q: White?
A: No.
19 Q: Male?
A: I assumed male.
20
21 Exh. 15 at 4-5. If Marquez had actually gone to The Barn to look for two particular
22 individuals, surely he would have obtained at least a general description first. His failure to
23
learn even the most basic information about the people he claims to have been looking for
24
strongly supports the notion that the asserted reason was pretextual.
25
26 Even the paltry information Marquez did have about the alleged objects of his search
27 was largely inaccurate. The government disclosed documentation regarding the arrest of
28
Mario Sauceda, a man from Honduras coincidentally arrested in Ajo on January 16, and

26
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1 Marquez’s story matches it only in the most superficial way. For one thing, Marquez got the

2 location wrong; Sauceda was arrested not at the Immaculate Conception Catholic Church,
3
but at the Calvary Baptist Church. Exh. 16 at 1. This mistake suggests that Marquez was not
4
actually involved in the investigation into this group and did not undertake to learn about it
5
6 at all or even read the interview summary before setting up surveillance, as would be

7 expected if he was actually attempting to locate and apprehend the two missing companions.
8
Moreover, Sauceda was interviewed at 1:28 pm. Id. If this was an active search for two
9
individuals believed to have been in the area very recently, but who were intending to leave,
10
11 why would the agents wait until the next afternoon to look for them?

12 Additionally, in choosing a cover story, the agents neglected to pay attention to the
13
timing. Although the interviewing agent’s report confirms that Sauceda was indeed arrested
14
and interviewed on January 16, the day before Burns and Marquez set up surveillance, it
15
16 also states that he entered the country on January 9—a full week before he was

17 apprehended. Id. at 2. Marquez’s version, in his report, is that the two missing subjects had
18
separated from Sauceda “prior to his apprehension,” but the interview report is more
19
specific: “Once in AJO, SAUCEDA looked for work and the other two individuals left him
20
21 since they had a ride from there.” Id. at 1. Ajo is only about 40 miles from the border; thus,
22 even if it took them three days of walking to get there, the two companions would have
23
already been gone for several days, having received a pre-arranged ride.17 The fact that
24
Sauceda told the interviewer he had been looking for work in Ajo confirms that he had
25
26 likely been there for days—without his companions—by the time he was arrested. The
27
28 17 The two migrants eventually arrested at The Barn were not Sauceda’s companions.

27
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1 upshot of this discrepancy is that the arrest of Sauceda provided no reason to believe that his

2 two companions were anywhere in Ajo on January 17, eight days after they crossed the
3
border. If the agents were actually looking for them, they certainly would have realized this.
4
Other agents’ reactions to the surprise spotting of two Hispanic-looking people at The
5
6 Barn confirm that nobody was actually expecting to find these two particular men from

7 Honduras there. If this were really a routine surveillance operation to find the two
8
individuals who had been with Mr. Sauceda, Ballesteros’s reaction to finding two men there
9
would not have been “What!?!?!?!?!?!” Exh. 10 at 11.
10
11 Finally, Burns and Marquez both revealed in their reports that they were interested not in

12 finding the individuals, but in pursuing NMD. Burns wrote, in his introductory paragraph
13
describing “The Barn,” that it “is known to be used by self-described ‘humanitarian groups’
14
to provide aid and assistance to illegal aliens in furtherance of their unlawful entry into the
15
16 United States.” Exh. 13 at 1. If the Border Patrol agents were looking for undocumented

17 individuals, and believed The Barn was a good place to look because they believed it to be
18
used by various groups “to provide aid and assistance to illegal aliens,” that was all they
19
needed to know, or to say; it wouldn’t matter which group was using it at any given time.
20
21 But Burns did not stop there; he went on to state, “One of these groups is called ‘No More
22 Deaths/No Mas Muertes.” Id. That information is irrelevant to the asserted legitimate
23
purpose—following up on the possibility that, because various groups conducted aid there,
24
The Barn was a possible location for finding undocumented individuals. But Burns
25
26 continued, stating Marquez had confirmed the man he saw fit the description of Dr. Warren,
27 whom Marquez knew was part of NMD. Id. Again, Warren’s affiliation with that particular
28
group was irrelevant if the agents were simply looking for the migrants; the fact that he was

28
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1 present at the humanitarian facility and was seen in the company of two people the agents

2 believed to be undocumented was the relevant part. Burns’s repeated mentions of Dr.
3
Warren’s connection to the group that had criticized the Border Patrol that morning thus
4
belies the position that the surveillance had nothing to do with the report.
5
6 Marquez’s report similarly reveals his bias. In addition to unnecessarily stating, as

7 Burns did, that one of several organizations using The Barn for aid work was NMD, he also
8
specifically identified Scott Warren as “an active volunteer for NMD who organizes and
9
recruits college students to aid in supply drops, and speaks publicly on immigration issues.
10
11 This is documented on various online college newspapers such as Northern Arizona

12 University’s ‘The Lumberjack’ and local news websites describing his participation in
13
humanitarian efforts with NMD.” Exh. 3 at 3. Again, if, as they stated, the agents were
14
operating on information that The Barn was used by various groups for the provision of aid
15
16 to migrants, the particular affiliation would not have mattered. Nor, of course, could the fact

17 that Dr. Warren “speaks publicly on immigration issues” properly bear on the agents’
18
decision to watch him or arrest him. Indeed, Dr. Warren is also an active member of Ajo
19
Samaritans, another organization that provides humanitarian aid to migrants and sometimes
20
21 uses The Barn; if the true purpose was finding people providing aid to migrants that the
22 Border Patrol viewed as violating the law, this affiliation would have been equally relevant.
23
But the Samaritans are not outspoken critics of the Border Patrol; it was thus the NMD
24
affiliation that mattered to the agents. Marquez’s decision to include the group affiliation
25
26 and Dr. Warren’s history of speaking publicly about immigration in his official report
27 confirms that he was targeting Warren not because he had reliable information about
28

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1 activities at The Barn, but because Warren was a vocal member of the particular

2 organization that had just released the critical report.


3
All of the above evidence clearly establishes that the Border Patrol was at least partially
4
motivated by a desire to retaliate against NMD for its report. Crucially, the impermissible
5
6 motive need not be the sole motivating factor; even if the Border Patrol was legitimately

7 attempting to stop what it viewed as harboring and to locate undocumented individuals, if it


8
was also undertaking these actions to punish the people who had criticized and embarrassed
9
them, that violates the Fifth Amendment, and requires dismissal of the indictment. The
10
11 provision of a clearly pretextual explanation, the agents’ expressions of excitement and glee

12 at the arrests, a fellow agent’s history of threatening the group in response to bad press they
13
had generated, and the other evidence identified above forcefully demonstrate that animus
14
toward NMD was “a motivating factor in the decision.” Arlington Heights, 429 U.S. at 266.
15
16 III. Similarly Situated Locations Not Associated With NMD Were Not Targeted for
Surveillance.
17
The discriminatory effect of this surveillance can be established in two ways. First, the
18
19 agents chose a facility primarily used by NMD,18 even though there were other places in Ajo
20 not associated with NMD that would have been just as reasonable, if not more reasonable,
21
places to look for migrants believed to be hiding in the town, based on information Border
22
Patrol agents had collected. These other locations, about which they had also received tips
23
24 or information as possible aid sites, are thus similarly situated to The Barn.
25
26
18As mentioned above, in explaining their choice to surveil The Barn, both agents emphasized
27
that it was known to be used by NMD. Thus, although the facility is used by other groups,
28 which Marquez knew, both he and Burns specifically relied on its role as an NMD facility
without mentioning any of the other organizations. Exh. 3 at 3; Exh. 13 at 1.

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1 Specifically, just over a week before he decided to target The Barn, Marquez reported

2 receiving information about several other locations in Ajo where migrants may have been
3
receiving assistance. Although declining to name his sources, Marquez reported information
4
about a “suspected illegal alien” found in Ajo who had asked for “Mimi” and “said that he
5
6 wanted to go to the ‘escuela.’” Exh. 17. Marquez understood the “escuela” to be a reference

7 to the Curley School building in Ajo, a residential building. Exh.18 at 3. If he was looking
8
for places where, based on his prior investigation, migrants might be staying, the Curley
9
School would have been a reasonable choice, and was similarly situated to The Barn in that
10
11 he had nonspecific, hearsay information that it might have been a site for aid to migrants.

12 Marquez also reported receiving information on January 8, 2018 that “an older couple”
13
who lived on Rosedale Avenue brought a van and arranged help for an injured migrant. Exh.
14
17. The agents could certainly have watched for suspected migrants there; although they
15
16 lacked a specific address, they knew the street and that the potential harborers had a large

17 white van; a brief drive up Rosedale Avenue could thus have revealed a specific location.
18
And Marquez’s information included yet another possibility: a woman involved in aiding a
19
lost migrant who “resides in Ajo in the area of Cholla or Arroyo Avenues, on the east side
20
21 of the railroad tracks.” Exh. 17. These two neighboring streets are each only two blocks
22 long, and are in a dead-end area. Thus, two or three agents (such as Marquez, Burns, and
23
Ballesteros) could easily have set up to watch all the comings and goings from that location.
24
If “similarly situated” locations are places in Ajo where the Border Patrol had heard tell of
25
26 aid to migrants, the Curley School, a house on Rosedale Avenue with a large white van, and
27 Cholla and Arroyo Avenues are all similarly situated areas not associated with NMD where
28
the Border Patrol could have looked for allegedly missing individuals, but did not.

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1 Other possible locations include buildings used by other humanitarian groups the Border

2 Patrol had identified as involved in possible aid to migrants in and around Ajo. For instance,
3
Marquez reported interviewing another anonymous individual who stated that Mimi Philips
4
was involved in harboring; Philips was believed to be affiliated with the International
5
6 Sonoran Desert Alliance (ISDA), described by Marquez as one of the “self-described

7 ‘humanitarian’ organizations. . .”. Exh 19. The ISDA has a headquarters building in Ajo the
8
agents could easily have located and surveilled instead of choosing the facility largely used
9
by NMD. Likewise, an informer identified Philips as a supporter of Ajo Samaritans, Exh.
10
11 17, and Marquez certainly thought Ajo Samaritans were involved in the alleged crimes he

12 claimed to be investigating; he titled his timeline of the investigation “Ajo Samaritans/No


13
More Deaths Organization Timeline.” Exh. 18 at 1. The Samaritans are known to meet
14
regularly at the Ajo Federated Church, yet the agents did not set up their surveillance there.
15
16 Second, to the extent that the Border Patrol justifies its choice of The Barn by the fact

17 that it had received anonymous information that that particular property was used for
18
harboring, Marquez reports receiving that information as early as April 24, 2017. Exh. 18 at
19
1. Thus, throughout the remainder of 2017 and the first two weeks of 2018, The Barn itself
20
21 was a similarly situated facility not targeted for surveillance—and the relevant comparison
22 can be made between the facility under usual circumstances, when the Border Patrol had
23
suspicions about what went on there but the group most strongly associated with it had not
24
just released an inflammatory critical report, and that same facility when its primary users
25
26 had just exercised their First Amendment rights.
27 Finally, concerning the retaliatory arrest following the illegally motivated surveillance,
28
two incidents provide examples of similarly situated individuals not arrested. Marquez

32
Case 4:18-cr-00223-RCC-BPV Document 172 Filed 03/14/19 Page 33 of 35

1 himself identified the first group of individuals in his report when he brought up the warrant

2 executed at NMD’s “humanitarian station near Arivaca, Arizona.” Exh. 3 at 3. He noted that
3
there, too, NMD volunteers “would provide illegal aliens with food and water along with
4
showers and new clothes to wear,” id., and that several undocumented individuals were
5
6 arrested there. But on that occasion, which predated the January 17 report (and obviously

7 predated the negative press surrounding the Arivaca raid itself), the Border Patrol did not
8
arrest any of the volunteers who were present, whether or not they interacted with the
9
undocumented individuals. The volunteers present on that day thus represent similarly
10
11 situated individuals in all relevant respects, who had not just undertaken protected First

12 Amendment activity, and were not arrested.


13
Second, on the day they arrested Dr. Warren, the agents reported the presence of several
14
other individuals at The Barn whom the agents did not recognize as NMD leaders or people
15
16 who speak publicly on immigration issues. Marquez reported that while the arrests was

17 occurring, “the white dodge that was seen earlier leaving the property returned with the two
18
female subjects,” whom Marquez did not recognize. Exh. 3 at 5. Marquez and Ballesteros
19
attempted to question them, but like Dr. Warren, they refused to answer any questions; after
20
21 checking their records, the agents released them. Id.
22 Burns similarly reported that after Dr. Warren was arrested, he approached two other
23
individuals whom he “had earlier observed on the property via the spotting scope.” Exh. 13
24
at 2. Burns did not recognize them either, and they, also like Dr. Warren, “refused to answer
25
26 any questions regarding their involvement at the property.” Id. Burns reported that he
27 released them, instead of treating them as he had Dr. Warren, because the agents “did not
28
observe either of them interacting with the aliens.” Id. But again, interacting with the

33
Case 4:18-cr-00223-RCC-BPV Document 172 Filed 03/14/19 Page 34 of 35

1 migrants has nothing to do with concealing them or affording them shelter. In the agents’

2 view of things, nobody other than the owner had the right to kick anyone—including
3
them—off the property, and thus, at least as far as the agents were or should have been
4
concerned, nobody there could afford or deny shelter to the migrants. They certainly had no
5
6 reason to believe any particular individual they saw at The Barn had more or less authority

7 over who could stay there than anyone else. The four individuals also at The Barn whom
8
agents approached after arresting Dr. Warren were situated, in every regard relevant for the
9
actual elements of harboring, exactly as Dr. Warren was—merely present at the property
10
11 owned by someone else. The only difference is that the agents did not recognize them as

12 leaders of the group who spoke out publicly. All four thus constitute similarly situated
13
individuals who were not arrested.
14
CONCLUSION
15
16 Government agents may not target some people over others even in part on the basis

17 of the exercise of fundamental rights. The First Amendment right to free speech—which
18
incudes at its core the right to criticize the government—is among these rights, and the
19
evidence is strong that the Border Patrol decided to engage in law enforcement activities at
20
21 The Barn and against Dr. Warren at least in part because of his public association with
22 NMD, who had that very morning taken a strong, public, critical stance. The evidence also
23
shows that the Border Patrol did not similarly take action at other places and against other
24
people about which it had similar information, but who had not just issued withering
25
26 criticisms of the agency. Accordingly, this Court must dismiss the indictment, or at the very
27 least, order the disclosure of evidence necessary to establish more examples of similarly
28
situated places and individuals not targeted for enforcement as identified in the Appendix.

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Case 4:18-cr-00223-RCC-BPV Document 172 Filed 03/14/19 Page 35 of 35

1 RESPECTFULLY SUBMITTED this 14th day of March, 2019.

2 By /s/ Amy P. Knight


Gregory J. Kuykendall
3
Amy P. Knight
4 531 S Convent Avenue
Tucson, AZ 85701
5 Attorneys for Defendant Scott
6 Daniel Warren

7
8 CERTIFICATE OF SERVICE

9 I certify that on March 14th, 2019, I electronically transmitted a PDF version of this
document to the Clerk of Court using the CM/ECF System for filing and for transmittal of a
10 Notice of Electronic Filing to the following CM/ECF registrants:
11
Nathaniel J. Walters, Esq. (email: Nathaniel.walters@usdoj.gov)
12 Anna R. Wright, Esq. (email: anna.wright@usdoj.gov)
13 United States Attorney’s Office
405 W. Congress, Suite 4800
14 Tucson, AZ 85701
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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EXHIBIT 4
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Case 4:18-cr-00223-RCC-BPV Document 172-1 Filed 03/14/19 Page 3 of 24

Part II: Interference with Humanitarian Aid


Death and Disappearance on the US–Mexico Border

Slashed gallons of water

Miguel, a 37-year-old man from Sinaloa, tried to cross the US–Mexico border on four separate
occasions, each time walking between seven and eight days. On each of these trips he saw food and
water gallons left out on trails. On the third day of one of his trips, he came across water gallons that
had been vandalized:

“Yes. I saw the water bottles stabbed. They break the bottles so you can’t even use them to fill up in
the tanks. I needed water, some of the other people in the group needed water, but we found them
destroyed. [I felt] helplessness, rage. They [the US Border Patrol] must hate us. It’s their work to capture
us, but we are humans. And they don’t treat us like humans. It’s hate is what it is. They break the bottles
out of hate.”1

In the desert of the Arizona–Mexico borderlands, where thousands of people die of dehydration and
heat-related illness, Border Patrol agents are destroying gallons of water intended for border crossers.
Border Patrol agents stab, stomp, kick, drain, and confiscate the bottles of water that humanitarian-
aid volunteers leave along known migrant routes in the Arizona desert. These actions condemn border
crossers to suffering, death, and disappearance. In data collected by No More Deaths from 2012 to
2015, we find that at least 3,586 gallon jugs of water were destroyed in an approximately 800-square-
mile desert corridor near Arivaca, Arizona.

1  Personal interview, September 20, 2016, Nogales, Sonora, Mexico.

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Case 4:18-cr-00223-RCC-BPV Document 172-1 Filed 03/14/19 Page 4 of 24

Furthermore, Border Patrol agents in the Arizona borderlands routinely intimidate, harass, and surveil
humanitarian-aid volunteers, thus impeding the administration of humanitarian aid. These actions
call into question the Border Patrol’s own claims to be humanitarian. The practice of destruction
of and interference with aid is not the deviant behavior of a few rogue Border Patrol agents, it is a
systemic feature of enforcement practices in the borderlands and a logical extension of the broader
strategy of Prevention Through Deterrence. According to the logic of Prevention Through Deterrence1,
anything that makes the journey more dangerous or difficult for border crossers could be considered
a reasonable tactic for enforcement, including the vandalization of safe drinking water.2 While
humanitarian-aid volunteers attempt to mitigate the crisis of death and disappearance, Border Patrol
agents routinely sabotage this work and maximize the suffering of border crossers.

Part II of this three-part report series documents the interference with and obstruction of
humanitarian-aid efforts in the Arivaca migration corridor in the Arizona borderlands. Interference
with Humanitarian Aid: Death and Disappearance on the US-Mexico Border is divided into four sections.

The first section establishes the critical role that the provision of humanitarian aid plays in mitigating
death and suffering for those crossing the US–Mexico border. An understanding of the perils of the
border crossing, the deadly logic of Prevention Through Deterrence, and the medical consequences
of dehydration and exposure to the elements are necessary to understand why people are dying and
disappearing along the border.

The second section explores the vandalization of the water drops established by No More Deaths
volunteers in the remote borderlands of Arizona. Drawing on data collected by volunteers over a three-
year period, we use a Geographic Information Systems (GIS) analysis to provide evidence that Border
Patrol agents are the most likely actor responsible for the destruction of water provisions. We also use
GIS analyses to establish the potential consequences of these actions for border crossers.

The third section documents the obstruction of humanitarian-aid efforts. Testimonies offered by
No More Deaths volunteers reveal the extent to which law-enforcement agencies have targeted
humanitarian volunteers, preventing border crossers from accessing lifesaving resources and medical
aid in the remote regions of the borderlands.

Finally, we demonstrate the need for a non-enforcement related response to the crisis of deaths and
disappearances along the US–Mexico border. We demand the dismantling of the border-enforcement
agencies and an end to the policies responsible for this human-made crisis. We also call for an end to
interference with humanitarian aid.

1  US Border Patrol, Border Patrol Strategic Plan: 1994 and Beyond, July 1994, http://cw.routledge.com/text-
books/9780415996945/gov-docs/1994.pdf.
2  See the introduction to this report series for further analysis of Prevention Through Deterrence.

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Case 4:18-cr-00223-RCC-BPV Document 172-1 Filed 03/14/19 Page 5 of 24

Data Sources
The data sources used in this report include logbook entries of all water drops serviced by No More
Deaths during a three-year period; interviews with border crossers both at the No More Deaths remote
aid station and in Nogales, Sonora, Mexico; and testimonies given by long-term No More Deaths
volunteers.

GIS Analysis
Relying on logbook data provided by No More Deaths volunteers, a GIS-data-analysis team undertook
to answer the following research questions: What is the extent of destruction at water-drop sites?
What are the patterns of destruction and what can we infer from these patterns? We also used GIS
analysis to explore some of the costs of Prevention Through Deterrence, specifically the caloric cost
of crossing on foot through the rugged border landscape. This analysis then sheds light on how water
vandalization works to maximize the hardship and suffering inflicted on border crossers.

Interviews with Border Crossers


While the GIS data analysis reveals measurable patterns of water vandalism, we also value the
personal experiences of those crossing the border. We include quotes and narratives offered to us by
border crossers who we met both at the No More Deaths remote aid station and in Nogales, Sonora,
Mexico to further illustrate the impacts and consequences of vandalizing water drops and obstructing
humanitarian-aid efforts. These personal testimonies are included with express consent from the
individual. All names have been changed or withheld to protect the anonymity of those quoted.

Testimonies from Long-Term Volunteers


Currently, No More Deaths does not have a formal documentation method for instances when
volunteers experience law-enforcement harassment, surveillance, or obstruction while providing aid
in the field. So to gain a more thorough understanding of the scope of these violations, we conducted
interviews with 10 long-term volunteers.1

1  For the purpose of this study, long-term volunteer was defined as someone who had actively worked with the organization
for five years or more.

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Background: The Need for Humanitarian Aid

Map of study area with recovered human remains, 2012–2015

“The reality is you’re looking at 114 degree temperatures,


this very rugged terrain that you see behind us, and once they cross the border,
many times they’re abandoned there and left vulnerable to the elements.”
—Manuel Padilla, Jr., Border Patrol Tucson Sector Chief, 2013–20151

Over the last two decades, the remains of at least 7,000 people2 have been recovered in the United
States borderlands. During the three-year period of data collection for this study (FY2012–2015), the
Pima County Office of the Medical Examiner received the remains of at least 593 border crossers.3 The

1  “Border Patrol Rescue Beacons Let Immigrants Call for Help,” Fox News, May 1, 2014, www.foxnews.com/
us/2014/05/01/border-patrol-beacons-let-immigrants-call-for-help.html.
2  According to the US Border Patrol, 6,915 remains of people presumed to be migrants were recovered along the border
between FY1998 and FY2016. According to the International Organization for Migration (https://missingmigrants.iom.int/),
at least 239 migrant remains have been recovered in 2017 as of July 31, an increase over the same period last year despite
drastically lower numbers of apprehensions.
3  Due to the remoteness of the terrain where people are crossing, only a fraction of those who perish in the desert are discov-
ered, and those who are never found are considered disappeared.

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Case 4:18-cr-00223-RCC-BPV Document 172-1 Filed 03/14/19 Page 7 of 24

cause of death in the majority of these cases is exposure to the elements, which includes extreme heat
and cold, as well as dehydration from lack of access to water.

Medical professionals recommend that border crossers drink between 5 and 12 liters (1.3–3.1 gallons)
of water daily depending on conditions, according to one study. However, because water sources are
scarce, border crossers rely on water they can carry, which is rarely more than 7 liters (2 gallons) for the
entire journey.1 The quickest a border crosser in the Arivaca corridor could complete their journey is
approximately four days. However, it is common for the journey to take much longer than that, and No
More Deaths volunteers encounter border crossers who have been in the desert anywhere from over a
week to nearly a month.

As we explore in the introduction to this report series, the policy of Prevention Through Deterrence
ushered in the construction of more segments of border wall, bolstered the presence of armed agents,
expanded the network of internal highway checkpoints, and developed surveillance technology in
urban areas along the international boundary. The effect has been to funnel border crossers into “more
hostile”2 and remote terrain, as well as greatly extending the length of the journey. In Southern Arizona,
these policing methods have intentionally pushed unauthorized migration into the far reaches of the
Sonoran Desert—an extremely arid, sparsely populated region with few natural water sources. In the
summer months this area of the desert regularly experiences temperatures over 100 degrees

1  S. J. Montain, M. Ely, W. R. Santee, and K. Friedl, Water Requirements and Soldier Hydration, Washington, DC: Borden
Institute, 2010.
2  This language is taken directly from the Border Patrol’s 1994 strategic plan: “The prediction is that with traditional entry
and smuggling routes disrupted, illegal traffic will be deterred, or forced over more hostile terrain, less suited for cross-
ing and more suited for enforcement.” US Border Patrol, Border Patrol Strategic Plan: 1994 and Beyond, July 1994, http://
cw.routledge.com/textbooks/9780415996945/gov-docs/1994.pdf.

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Case 4:18-cr-00223-RCC-BPV Document 172-1 Filed 03/14/19 Page 8 of 24

Fahrenheit. Of the limited water sources that do exist,


most are contaminated cattle tanks or other stagnant When two men from Guatemala were
preparing to cross into the United States
pools that, if drunk from, are likely to cause serious from Sasabe, Sonora, Mexico, they were told
illness. Given the staggering length and ruggedness of that they would see destroyed water gallons
the journey, it is physically impossible for anyone on the journey. Later, humanitarian-aid
attempting to cross the border on foot to carry enough workers encountered them in the field and
the two men told this story:
water and food supplies to survive. As a result,
thousands of border crossers have died of thirst in the During their crossing, US Border Patrol
open desert. agents chased the men for half a day, forcing
them to drop their supplies. When they
tried to circle back around to where they
In response to this crisis, humanitarian-aid volunteers had dropped their supplies during the chase,
have worked since at least 2002 to deliver caches of they found their belongings destroyed: the
water and food to the most arid and remote regions water was dumped out and the food strewn
of the Southern Arizona desert. From 2012 to 2015, all over the ground. The Border Patrol also
cut the straps of their backpacks so they
No More Deaths alone distributed over 31,558 could no longer use them. When asked why
gallon jugs of water on migration trails. Over 86% they thought the Border Patrol destroys food
of this water was used. This high level of water use and water left for border crossers, they said:
underscores the urgent need for access to water in the
They want to kill us. They are murderers.
borderlands. They treat us no better than animals.
They know that without food and without
The purpose of humanitarian aid is to save lives, water and without rest we will die. We
alleviate suffering, and maintain human dignity after are dogs to them. We have families, and
they have families too but they never
or during human-made crises and natural disasters. A think of that, or see that we could be
short-term response intended as a stopgap until long- the same as them. The difference is that
term relief is provided, No More Deaths’ provision of they [US Border Patrol agents] don’t
water sources in the desert is a matter of basic life have to leave their homes because they
have what they need here [in the United
support. States] . . . It’s not that people are dying,
they are killing us. We are being killed.2

The Destruction of Water


The data presented below was gathered over a 46-month period, from March 2012 to December 2015,
by No More Deaths humanitarian-aid volunteers1 who leave food and water on trails for those crossing
the Sonoran Desert on foot. We refer to each location where we leave food and water as a water-drop
site. In the time period examined in this report, every visit to a water-drop site was logged and the
following information was recorded: the number of gallons found unused, the number that had clearly
been vandalized, and the number of new gallons that were added. The analysis presented below is
based on data from 139 water-drop sites distributed across an approximately 800-square-mile area
of the Sonoran Desert southwest of Tucson, Arizona. For more information on methodology, see the
appendix.2

1  Many other organizations leave out food and water for people crossing the border. Humane Borders, the Tucson Samari-
tans, the South Texas Human Rights Center, and Border Angels are a few of these.
2  Anonymous, personal interview, September 21, 2016, Arivaca, Arizona.

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In addition to vandalism of water jugs, No More Deaths also frequently finds cans of beans that have been dumped out or stabbed so the
beans inside rot. Border crossers encountered by volunteers have often gone days without food.

Findings
During the 46-month period covered in this study, No More Deaths recorded 5,187 events—instances
of volunteers servicing a particular water-drop site—during which volunteers placed a total of 31,558
water gallons along migrant trails in remote stretches of the Sonoran Desert. Of the distributed 31,558
gallons, records indicate that 27,439 gallons were used by those in need of water. On average, 5.4
gallons were found to have been used by border crossers on each visit to each site.

Occasionally, unused gallons of water were destroyed by birds, cattle, and other animals. A total of
533 gallons of water showed telltale signs of animal damage. The vast majority of destroyed gallons,
however, were destroyed by people. We refer to this human-caused destruction as vandalism.

Vandalized Water Gallons


No More Deaths volunteers found water gallons vandalized a total of 415 times during our study
period, or more than twice a week on average. In all, 3,586 gallons of water were vandalized during this
time period.

Who Is Likely Responsible for Vandalizing Humanitarian Aid?


Hunters, hikers, birders, members of militia groups, ranchers, forest-service personnel, and wildlife-
refuge personnel—as well as local residents—are all present in the area where No More Deaths works.
There is limited reliable data we can collect that would catalogue the activities of all of these different
actors. Although it is likely that multiple actors are responsible for the destruction of humanitarian
aid at our water-drop sites, the results of our GIS data analysis indicate that US Border Patrol agents
likely are the most consistent actors. We have arrived at this conclusion by using a series of statistical
tests combining the logbook data with information about land jurisdiction and hunting seasons. Each
geographical variable we looked at is keyed to the locations of the vandalized water-drop sites and the

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Case 4:18-cr-00223-RCC-BPV Document 172-1 Filed 03/14/19 Page 10 of 24

time of visits to those sites. These tests clearly


identify patterns of vandalism that are extensive
across space and time.

Differences in land jurisdiction help us narrow


down who is vandalizing humanitarian aid by
asking the question, Does vandalism occur more
frequently on land where only some actors have
access?

No More Deaths places water at drop sites in


three different land jurisdictions in the Arivaca
corridor: the Coronado National Forest (accessed
by National Forest Service personnel, hunters,
and militia), Arizona State Trust land (accessed
by ranchers and miners), and private land
(accessed by the landowners). In order to answer
this question, we compared the three different
land jurisdictions according to two normalized
measurements1 of humanitarian-aid vandalism.

1. Frequency of vandalism of water-drop sites


2. Volume of vandalism in gallons

By either one of the two ways of measuring


water-gallon vandalism, there is no statistically
significant difference in vandalism according
to land jurisdiction. In other words, vandalism
is happening at a similar rate across land
jurisdictions. The US Border Patrol is the
only group that has regular access to and
is consistently present in all three land
jurisdictions.2

The second data set we examined was vandalism


rates during hunting season in comparison to
vandalism rates during the off-season, in order to
answer the question, How much humanitarian-
aid vandalism is attributable to hunters?

The area where we provide humanitarian aid is split into three hunting zones within Region V of the

1  See the appendix on methodology for more information on how each of these values was measured.
2  Section 287 of the US Immigration and Nationality Act gives the US Border Patrol “access to private lands . . . for the pur-
pose of patrolling the border to prevent the illegal entry of aliens into the United States” within 25 miles of the international
border.

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Arizona Statewide Management Map.1 Each of these


hunting zones has distinct but overlapping hunting seasons
depending on targeted species.2 We found that during
hunting season there is a vandalism-event rate at our
water-drop sites of 9.3%. During the off-season for hunting,
we find that there is a vandalism-event rate of 6.6%.
This change in the rate of vandalism does indicate that
recreational hunters play a role in vandalism. However, the
baseline vandalism rate of 6.6% is especially interesting.
This baseline rate, which persists even when there is no
authorized hunting, demonstrates that hunters are not
responsible for the majority of the destruction.

Which Actor Is Capable of the Scope


Several of the No More Deaths volunteers of Vandalism Recorded in the Arivaca
interviewed for this report discussed
experiences where Border Patrol vehicles Corridor?
or agents were seen near a drop, or were As reflected in the analysis above, it is not our claim
seen on the trail hiking away from a water- that the US Border Patrol is exclusively responsible
drop site that was immediately afterward for the vandalism of water supplies. In addition to
found to have been vandalized. While this hunters, we know that other actors in the area are
is only anecdotal evidence, it is a common
experience. On many of the trails where periodically involved in destroying water. For instance,
No More Deaths volunteers find water there is a small right-wing militia group with occasional
vandalized, Border Patrol agents are not presence near Arivaca, Arizona that publicized
only the most consistent but the only other destroying humanitarian aid during the time period
people to frequent the area aside from
border crossers. One volunteer reported in which this data was collected. However, this militia
being in a group that was stopped and presence was sporadic and generally confined to a
questioned by two Border Patrol agents small geographic area. Given the scope of destruction,
on a trail close to a drop site. When the we conclude that the only actors with a sufficiently
volunteers continued to their water-drop
site, they found recently slashed bottles large and consistent presence across a sufficiently
and cans of beans dumped out. On another wide area of the desert, during periods when hunting
occasion, volunteers were out on patrol is both authorized and prohibited, are agents of the US
when Border Patrol agents approached Border Patrol.
their truck on ATVs and proceeded to detain
and question the volunteers for around 20
minutes. One of the volunteers reported: In addition to the statistical analysis above, No More
Deaths volunteers have ample anecdotal evidence of
“[The agents] had come from the US Border Patrol agents destroying and confiscating
direction of where this person [a border
crosser] had died and we had left water humanitarian supplies, including multiple eyewitness
there. At the spot where he had died accounts of agents pouring out or destroying water
there’s a cross. And when we went back supplies and four separate occasions when this
there [the water] was slashed . . . It was vandalism was caught on video (see pictures on pg
the worst heat I have ever been in in the
desert.” 10).

1  Provided by the Arizona Game and Fish Department. See https://www.azgfd.com/hunting/units/.


2  For the sake of this analysis, we defined hunting season as any month during which any hunting of any species was autho-
rized.

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Documentation of Vandalism:

Border Patrol agent pouring out water left for border crossers, 2010

Border Patrol agent kicking water gallons left for border crossers, 2012

Border Patrol agent removing blanket left Border Patrol agent stabbing
out for border crossers, 2017 water gallons left for border crossers, 2017

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Our analysis leads us to believe that Border Patrol agents engage in regular and widespread destruction
of water supplies with little or no apparent consequence. The de facto state sanctioning of the
destruction of humanitarian-aid supplies devalues the lives of border crossers and encourages other
actors in the region to do the same.

Ruggedness and Caloric Cost1


The destruction of humanitarian aid impacts the lives and well-being of border crossers. To quantify this
impact we used the tools available through GIS analysis. Analyzing the terrain of the Arivaca corridor
(accomplished via a ruggedness index) and the physiological difficulty of crossing this terrain on foot
(referred to here as caloric cost) offers an understanding of the everyday harm and suffering imposed
by the Border Patrol’s strategy of Prevention Through Deterrence; applying these measurements of
ruggedness and caloric cost to the water-drop sites that are most consistently vandalized demonstrates
the specific contribution of water vandalization.

The ruggedness index was arrived at by calculating distance and exposure using various spatial data.
These include pixel-level values for ground cover, slope, jaggedness of terrain (change in slope), and
average daytime temperature (in July, consistently the hottest and deadliest month in Southern
Arizona). As an alternative to Euclidian distance (“as the crow flies”), we calculated a cost distance (CD)
using this ruggedness index to show the difficulty of traversing the landscape to reach any given point
following a direct route from the international border.2

To provide a measurement of the physiological difficulty of traversing this rugged landscape we


converted cumulative ruggedness-cost distance to a measurement of caloric expenditure (what we call

1  Anonymous, personal interview, August 2014, Tucson, Arizona.


2  We then measured the Euclidean distance (ED) from the border and normalized the cost distance using the formula (CD –
ED)/ED. This produced a map measuring the ruggedness-based cost of reaching any given location that was not dependent on
Euclidean distance from the border.

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caloric cost). This was accomplished by calculating the


values for the average weight, walking speed, and carrying
load for one person, plus the slope, slope direction, and
terrain that a person traversing the landscape on foot
would encounter (with an assumption that the direction
of travel is north).1 We find that the average caloric
expenditure to arrive at one of the vandalized water-drop
sites is 2,390.433 calories, with a range from 41.230 to
5,677.548.2 This average is slightly higher than the daily
average human caloric use, which according to the US
Department of Agriculture is 2,253 for active persons of
any age group or gender.3

By analyzing caloric cost and ruggedness, we observe that water is vandalized in locations where
its impact is likely to be lethal—locations where individuals have already experienced considerable
physiological stress, based on the terrain and environment they have traversed, and beyond which it
will become increasingly difficult for them to reduce this stress.

Apache Well sits low in a lush, grassy area surrounded by cottonwood trees. This water-drop site
is part of a trail running north from the border, a trail that traverses mountains and canyons down
to the grasslands between. Sitting about 10 linear miles north of the border and 11 miles south of
a Border Patrol checkpoint, it is a natural resting stop in the long and arduous journey through the
Sonoran Desert.

In the past, this water-drop site was so frequented that volunteers used to place 150 gallons of
water and dozens of cans of beans there every week in order to keep up with the needs of border
crossers. Beginning in 2010, however, Apache Well became an area where humanitarian aid was
regularly vandalized. Despite aid workers’ efforts to outmaneuver this vandalism, it became clear
that any food or water left at Apache Well would quickly be slashed or confiscated.

In the fall of 2010, a border crosser reached the No More Deaths remote aid station with news
that a very sick woman had been left behind in the hills toward the east. Volunteers set out to look
for her. She was found deceased, lying under a tree at Apache Well. The coroner’s report officially
states her cause of death as hypothermia. Though we cannot say for certain if she would have
survived had she had access to food, clean water, and blankets throughout her journey, we can
assume that her chances would have considerably increased.

The woman’s name was Rosalinda Toledano Toledano. At the time of her death she was 38 years
old and was crossing to be reunited with her husband and four children in Texas. Under the tree
where she spent her last moments, we have inscribed her name with white rocks. Aid workers
continue to place food, water, and blankets there for Rosalinda and the many others who travel
this trail.1

1  K. B. Pandolf, M. F. Haisman, and R. F. Goldman, “Metabolic Energy Expenditure, Terrain Coefficients for Walking on
Snow,” Ergonomics 19 (1976): 683–690; Devin A. White and Sarah Barber, “Geospatial Modeling of Pedestrian Transpor-
tation Networks: A Case Study from Precolumbian Oaxaca, Mexico,” Journal of Archaeological Science 39 (2012): 2684–
2696.
2  This calculation still assumes a direct and linear route of transit from the international border to the specific water-drop site
to which the figure applies, rather than the additional distance travelled to circumnavigate impediments.
3  J. J. Otten, J. P. Hellwig, and L. D. Meyers, eds., Dietary Reference Intakes: The Essential Guide to Nutrient Requirements,
Washington, DC: National Academies Press, 2006.

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Obstruction of Humanitarian Aid


Border Patrol harassment of aid volunteers dates back to the initial efforts to provide humanitarian aid
in the US–Mexico borderlands. One of the most publicized instances was the arrest and prosecution
of Daniel Strauss and Shanti Sellz in 2005. Strauss and Sellz encountered a group of border crossers in
need of emergency medical care. While driving these individuals to a medical clinic in Tucson, Arizona,
they were arrested for and charged with trafficking and conspiracy to transport migrants. Between
2007 and 2008 eight humanitarian volunteers were detained by Border Patrol agents, who summoned
US Fish and Wildlife Service personnel to ticket volunteers for “littering” after they left water gallons
on migrant trails. Despite the fact that, in the first case, charges were ultimately dismissed and, in the
second case, the littering convictions were overturned by the US Court of Appeals for the Ninth Circuit,
a precedent of intimidation was set, and harassment of aid volunteers and surveillance of aid stations
continues.

On June 15, 2017, after surrounding the No More Deaths medical-aid base camp for 48 hours, Border
Patrol agents conducted a military-style raid. Approximately 30 agents, along with 15 trucks and a
helicopter, entered the camp with a warrant to arrest four migrants receiving medical care. The raid
took place in the midst of a record heat wave, with temperatures reaching well over 110 degrees
Fahrenheit. During the most dangerous time of year in the borderlands, the Border Patrol’s resources
were focused on policing a humanitarian-aid station. According to the federal search warrant, the
Border Patrol had placed sensors and cameras around the camp to track people entering to seek aid,
turning the camp into a trap for enforcement. This raid followed months of increasing surveillance and
harassment of humanitarian activities by the Border Patrol.

US Border Patrol agents outside No More Deaths’ Humanitarian Aid Camp during raid on June 15th, 2017.

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Throughout No More Deaths’ history, Border Patrol agents have on multiple occasions surrounded
and surveilled the medical-aid camp, threatened to obtain a warrant, or entered the property without
one. Their actions create an atmosphere of fear and tension in a place where injured, ill, and often
deeply traumatized people come in need of medical aid and respite. As one volunteer stated, the raids
and surveillance “destroy . . . the environment of safety that camp requires in order to help people
with healing.” In addition, migrants in need of medical care can be frightened away and deterred from
seeking help at the camp if they believe it will result in their arrest. For them, this means continuing to
walk rather than seek help, potentially under conditions of severe dehydration and untreated injuries
or illnesses.

Volunteers experience direct harassment from the Border Patrol in the field and at camp as they
attempt to provide aid. Examples of Border Patrol harassment include:
• Threat of physical violence and arrest
• Aggressive interrogation
• Suggestion that volunteers are smugglers or cartel members
• Detention
• Brandishment of firearms
• Forcing volunteers’ vehicles off the road with trucks
• Surveillance with low-flying helicopters
• Following volunteers in the field with helicopters, trucks, on horseback, and on foot

One humanitarian-aid volunteer recalls that, while delivering water to a drop site, “[a Border Patrol
agent] came running out of bushes on horseback, with his gun pointed at us and screaming at us to
get on the ground.” Another volunteer was threatened by a Border Patrol agent who had entered the
medical-aid camp: “As [the agent] turned around he put his hand on the handle of his gun and said,
‘You better not follow me. If you do, I’m going to assume you’re attacking me and it’s not going to
end well.’” Another volunteer was handcuffed to the steering wheel of a vehicle for nearly an hour in
sweltering summer heat.

The interference with humanitarian aid and the harassment of humanitarian-aid volunteers, while
discouraging and sometimes traumatic for the volunteers, has deadly implications for those crossing
the border. Due to the history of abuse against border crossers, documented in previous reports, many
are hesitant to seek assistance from law enforcement, even in cases of dire need. We believe that the
unimpeded provision of non-enforcement related humanitarian assistance is essential.

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The Border Patrol’s False


Self-Representation as “Humanitarian”
In recent years, in response to increased public pressure, the US Border Patrol has attempted to portray
itself as a humanitarian organization. In 1998 the Border Patrol launched the Border Safety Initiative,
with the stated goal of “the reduction of injuries and prevention of deaths in the southwest border
region,” while also claiming to build on “the longstanding public safety and humanitarian measures
practiced by the United States Border Patrol.” The Border Patrol has also routinely claimed to work
with and support humanitarian-aid groups. In a meeting with several Tucson immigrant-rights groups—
including representatives from No More Deaths—Acting Deputy Chief Patrol Agent Raleigh Leonard
said in response to a question about agents destroying humanitarian aid:

I saw that video, by the way, of the guy cutting up the water bottles, and I still bring it up in the
staff meetings. It was appalling. He’s gone now. He retired from the Border Patrol, and I’m glad
he’s gone, because like the chief said, that doesn’t represent this organization. That’s not who we
are . . . And if I hear about something like that, as acting deputy chief of the Tucson Sector, then I
will initiate appropriate action against that person.1

Despite such claims, the Border Patrol’s policies and disciplinary procedures around humanitarian-
aid vandalism are unclear. To our knowledge the Border Patrol agent that the deputy chief refers to
above, who was caught on tape harassing aid workers and destroying humanitarian aid, was never
disciplined. Instead, years later, he simply retired from the agency. Members of No More Deaths have
met repeatedly with the Tucson Sector’s chief patrol agent to state the purpose and scope of our work
and to request respect for humanitarian efforts. Sometimes these attempts at dialogue have resulted
in verbal agreements that water vandalization and surveillance of the aid station would stop. These
agreements, however, never resulted in changes on the ground, and the vandalism of water and the
interference with humanitarian aid persists.

“Yes, I remember people smashing and stepping on water bottles, I remember that being imparted
to us in one way or another,” one former Border Patrol agent told us. “I also remember that the logic
behind that, the logic that was imparted to us with that action, was that you stomp on their water,
and ransack their food cache, in order to expedite their apprehension.” The stated logic of Prevention
Through Deterrence is that through heightened Border Patrol presence throughout main migration
corridors along the US-Mexican border, the threats of arrest and physical violence would be so great
to individuals crossing that they would choose not to attempt to cross or choose to turn themselves
in while crossing. In practice this policy not only prioritizes arrest over human life and dignity, it also
funnels individuals into the most deadly, rugged, and remote parts of the US-Mexican borderlands and
justifies Border Patrols destruction of life-saving aid. The US Border Patrol’s own enforcement strategies
are responsible for the crisis of death and disappearance of border crossers; the Border Patrol cannot
adequately respond to this same crisis, only exacerbate it. Any effort by the Border Patrol to provide
humanitarian aid is merely a band-aid solution to a crisis of its own making.

1  Nancy Montoya, “Rare Meeting Between Tucson Rights Groups, Border Patrol,” Arizona Public Media, April 17, 2017.

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Conclusion

“We would die without water, and they [the Border Patrol] don’t want us to live.”
—Border crosser 1

“Humanitarianism is not a tool to end war or create peace. It is a citizen’s response to political failure. It
is an immediate, short-term act that cannot erase the long-term necessity of political responsibility.”
—James Orbinski, of Médecins sans Frontières2

Humanitarian aid will never solve the crisis of death and disappearance in the borderlands of the US
Southwest. This man-made catastrophe will only end when the walls come down, when the army of
Border Patrol agents disappears, and when the paramilitary approach to border control is abandoned.
Meanwhile, border crossers are forced to endure a gauntlet of surveillance technology and armed
agents in the remote wilderness. The proliferation of surveillance towers, drones, and internal
checkpoints, along with fear of apprehension by agents known for aggression and abuse, combine to
force crossers to walk farther distances in increasingly rugged and remote terrain. To carry sufficient
supplies for such a journey is impossible. In this deadly context, the provision of water is essential.
Through video evidence and geographical analysis, as well as personal experience, our team has

1  Anonymous, personal interview, September 21, 2016, Arivaca, Arizona.


2  Nobel lecture by James Orbinski, Médecins sans Frontières, Oslo, December 10, 1999.

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uncovered a disturbing reality: US Border Patrol agents participate in the widespread interference with
essential humanitarian efforts. During the period of study, at least 3,586 gallons left in the desert by
humanitarian-aid volunteers were destroyed. We attribute the majority of this destruction to the
Border Patrol agents circulating in massive numbers throughout remote areas of the Sonoran Desert.

Hundreds of vandalism acts cannot be dismissed as the misguided behavior of a few bad apples. Rather,
after extensive statistical analysis, we conclude that the culture and policies of the US Border Patrol as a
law-enforcement agency both authorize and normalize acts of cruelty against border crossers. A culture
of dehumanization is apparent in the destruction of water sources and, as discussed in part I of this
report, in the routine, deadly policing practice of chasing and scattering border crossers in the remote
backcountry. It is also apparent in the Border Patrol’s failure to adequately respond to emergency calls
concerning missing or distressed migrants, to be explored in part III, and it is explicit in the agency’s
enforcement doctrine, which aims to police the border by placing those crossing in “mortal danger.”1

1  “Temperatures ranging from sub-zero along the northern border to the searing heat of the southern border effect [sic] ille-
gal entry traffic as well as enforcement efforts. Illegal entrants crossing through remote, uninhabited expanses of land and sea
along the border can find themselves in mortal danger.” US Border Patrol, Border Patrol Strategic Plan: 1994 and Beyond,
July 1994, http://cw.routledge.com/textbooks/9780415996945/gov-docs/1994.pdf.

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Demands
The findings of this report oblige us to conclude that the US Border Patrol’s obstruction of humanitarian
efforts is widespread and routine, and that the agency as a whole is guilty of significant human-rights
violations. Based on this investigation and the findings of our previous reports, it is clear that the
depraved and murderous behavior exhibited by the Border Patrol reflects a deeply entrenched culture
of violence within the agency. We therefore consider our first demand to be the most crucial:

(1) We call on Customs and Border Protection to permanently dismantle the US Border Patrol and to
establish a reparations program for the families of all persons disappeared or deceased as a result of
the US border policy of Prevention Through Deterrence.

We submit the following additional recommendations to Customs and Border Protection as provisional
measures to address the problems outlined in this report:

(2) Designate the destruction of humanitarian-aid supplies and the obstruction of humanitarian-
aid efforts as a fireable offense for US Border Patrol agents. Document these and all other internal
disciplinary measures in publicly accessible records.

(3) End the harassment of humanitarian-aid volunteers and the obstruction of humanitarian-
aid stations by establishing federal policy guidelines prohibiting the destruction and confiscation
of water and other humanitarian-aid supplies. Cease and desist from any and all operations
placing humanitarian-aid stations under surveillance or concentrating enforcement efforts around
humanitarian-aid stations.

Additionally, we seek the following:

(4) We call on the United Nations and the Inter-American Commission on Human Rights to open
inquiries into the US Border Patrol’s obstruction of humanitarian-aid efforts. The actions of the Border
Patrol detailed in this report constitute a clear violation of customary international human-rights law
and should be investigated as such.

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Appendix A: Extended Methodology


Data Normalization
The data used for the majority of the analysis came from No More Deaths’ logbook data from March
2012 through March 2015. Entries were excluded when the written entry was illegible or the water-
drops serviced were experimental drops (visited by volunteers less than 5 times during period of
analysis).

In total, 4,459 logbook entries (restocking of water-drop sites) were used in this analysis. We used
two distinct ways of normalizing the water gallon data. The first is by frequency of water-drop site
visits and the second is by volume. These two ways of normalizing the data allows us to control for
the effect of our re-stocking of humanitarian aid supplies on the dataset. For example, the number of
water gallons used at a drop by border-crossers is affected by the number of water gallons we have left
there and how many times we re-stocked that water-drop over a period of time. These two manners of
normalizing the data were also used when looking at vandalism.

Frequency = Number of vandalism events/Number of visits to water-drop site


Volume = Number of gallons vandalized/total number of gallons left at water-drop site

Ruggedness
A ‘ruggedness’ index was developed using ArcGIS 10.3.1 (ESRI 2015) tools and various sources of
spatial data. The primary parts of the index included temperature (T), groundcover (GC), slope (S),
and jaggedness (J). Temperature was calculated, for the month of June of 2016, as Land Surface
Temperature an adjusted remote sensing methodology(Rajeshwari and Mani 2014) requiring Landsat
8 data(Roy et al. 2014). The model uses Thermal Infrared Bands, Land Surface Emissivity, and numeric
values for average air temperature and humidity to calculate the Land Surface Temperature (LST)
(Buettner and Kern 1965).

NDVI was also used for groundcover and was calculated using the formula (Near Infrared - Red)/(Near
Infrared + Red)(Rouse et al. 1974). Slope was calculated using a 1/3rd Arc-second Digital Elevation
Model (DEM)(Gesch et al. 2002). Jaggedness served as a measure of the frequency of change in
slope by calculating focal statistics of the range in a 3 X 3 cell moving window for each slope raster
cell. Abrupt changes in slope would be more difficult to traverse than gradual changes and be typical
of rugged terrain. Each variable was normalized to a value with a maximum value of 1000 using
the formula ((value-min)/(max-min))*1000. An equally weighted sum of all variables served as the
ruggedness index (RI) in the form T+GC+S+J=RI.

A cost distance (CD) was calculated, using RI, from the U.S./Mexico border and masked to the extent
of the water stations. A Euclidean distance (ED) was also calculated from the same line and the same
extent. The cost distance was normalized using the formula(CD-ED)/ED. This produced a raster surface
measuring the ruggedness based cost that was not dependent on the Euclidean distance from the
border, or a ruggedness cost distance (RCD).

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Caloric Cost
The potential metabolic rate in watts (Pandolf et al. 1976; Wood & Wood 2006; White and Barber 2012)
was calculated in watts as:

MR=M-C on downhill slopes and MR=M on uphill slopes, where


M = 1.5w +2.0(w + l)(l/w)2 +η(w +l)[1.5v2 +0.35vs]
and
C = η[(s(w+l)v)/3.5−(((w +l)(s+6)2 )/w)+(25− v2)]

w being the average weight of a person in kilograms;


l is typical load carried in kilograms;
v is walking speed in meters per second;
s is slope in percentage;
η is terrain factor

Terrain types were determined by the National Land Cover Database (NLCD) (Homer et al. 2015) and
were reclassified by terrain factor (Soule and Goldman 1972; White and Barber 2012) as seen in Table
1. Open water, such as reservoirs, was considered uncrossable.

Table 1: Terrain factors used to reclass land cover and calculate total calories per raster cell (Soule and
Goldman 1972; White and Barber 2012)

As border crossers are generally moving from South to North, uphill and downhill slopes were
determined by slope direction. All slopes from 90 to 270 in direction were calculated as uphill whereas
all slopes from 0 to 90 and 270 to 360 were calculated as downhill. Wattage was then converted to
Calories by accounting for cell size and time, creating a Caloric Index (CI).

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Volunteer Interviews
To gain a more qualitative understanding of interference with humanitarian aid, we used a grounded
theory methodology of 10 semi-structured interviews with long-term (5 to 13 years) humanitarian-
aid volunteers, of a wide age range and differing genders. All of those interviewed shared stories of
Border Patrol obstruction of humanitarian-aid activities but with varying levels of severity. From these
interviews we were able to identify key events, patterns, and changes over time relating to Border
Patrol obstruction of humanitarian aid, as well as their effect on the people involved.

Citations

Buettner and Kern, The determination of infrared emissivities of terrestrial surfaces, Journal of
Geophysical Research, Vol 70 Issue 6, 1965

Gesch, D., Oimoen, M., Greenlee, S., Nelson, C., Steuck, M., & Tyler, D. (2002). The national elevation
dataset. Photogrammetric engineering and remote sensing, 68(1), 5-32.

Homer, C. G., Dewitz, J. A., Yang, L., Jin, S., Danielson, P., Xian, G., Coulston, J., Herold, N.D., Wickham,
J.D. & Megown, K. (2015). Completion of the 2011 National Land Cover Database for the conterminous
United States-Representing a decade of land cover change information. Photogrammetric Engineering
and Remote Sensing, 81(5), 345-354.

Pandolf, K. B., Givoni, B., & Goldman, R. F. (1976). Predicting energy expenditure with loads while
standing or walking very slowly (No. USARIEM-M-3/77). ARMY RESEARCH INST OF ENVIRONMENTAL
MEDICINE NATICK MA.

Rajeshwari, A., & Mani, N. D. (2014). Estimation of land surface temperature of Dindigul district using
Landsat 8 data. International Journal of Research in Engineering and Technology, 3(5), 122-126.

Roy, D. P., Wulder, M. A., Loveland, T. R., Woodcock, C. E., Allen, R. G., Anderson, M. C.,Helder, D.,
Irons, J.R., Johnson, D.M., Kennedy, R., Scambos, T.A., Schaaf, C.B., Schott, J.R., Sheng, Y., Vermote,
E.F., Belward, A.S., Bindschadler, R., Cohen, W.B., Gao, F., Hipple, J.D., Hostert, P., Huntington, J.,
Justice, C.O., Kilic, A., Kovalskyy, V., Lee, Z.P., Lymburner, L., Masek, J.G., McCorkel, J., Shuai, Y., Trezza,
R., Vogelmann, J., Wynne, R.H., & Zhu, Z. (2014). Landsat-8: Science and product vision for terrestrial
global change research. Remote Sensing of Environment, 145, 154-172.

Rouse Jr, J., Haas, R. H., Schell, J. A., & Deering, D. W. (1974). Monitoring vegetation systems in the
Great Plains with ERTS.

Santee, W. R., Allison, W. F., Blanchard, L. A., & Small, M. G. (2001). A proposed model for load carriage
on sloped terrain. Aviation, space, and environmental medicine, 72(6), 562-566.

Soule, R. G., & Goldman, R. F. (1972). Terrain coefficients for energy cost prediction. Journal of Applied
Physiology, 32(5), 706-708.

White, D. A., & Barber, S. B. (2012). Geospatial modeling of pedestrian transportation networks: a case
study from precolumbian Oaxaca, Mexico. Journal of archaeological science, 39(8), 2684-2696

21
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Wood, B. M., & Wood, Z. J. (2006, January). Energetically optimal travel across terrain: visualizations
and a new metric of geographic distance with anthropological applications. In Electronic Imaging 2006
(pp. 60600F-60600F). International Society for Optics and Photonics.

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EXHIBIT 7
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From: Kate Morgan-Olsen katemorganolsen@gmail.com


Subject: Fwd: Copy of report released today on destruction of humanitarian aid
Date: March 22, 2018 at 6:05 PM
To: Amy Knight amyknight@kuykendall-law.com

Amy,

Below is the message that we sent to BP from the NMD media account on the morning of the release of the report.

Best,
Kate

----- Original Message -----


From: media@nomoredeaths.org
To: steven.passament@cbp.dhs.gov
Sent: Wed, 17 Jan 2018 08:23:18 -0800
Subject: Copy of report released today on destruction of humanitarian aid
Hello Steven,

Today we just made public this report detailing destruction of humanitarian supplies, which
largely implicates Border Patrol. We wanted to make sure you also received it. Please note that
we demand strong action in the form of a SOP policy or directive by the Tucson Sector
leadership to stop this from happening. See attached.

Best regards,
Maryada (for the media/report release team)

520-240-1641

Disappeared
Part 2 (1).pdf
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EXHIBIT 8
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From: Robert Koumal


To: GRIJALVA, FERNANDO T
Subject: RE: No More Deaths - Disappeared Part 2
Date: Wednesday, January 17, 2018 10:59:00 AM

TY

From: GRIJALVA, FERNANDO T [mailto:FERNANDO.T.GRIJALVA@cbp.dhs.gov]


Sent: Wednesday, January 17, 2018 10:34 AM
To: Robert Koumal <Robert.Koumal@sheriff.pima.gov>; Rijk Morawe <rijk_morawe@nps.gov>
Subject: FW: No More Deaths - Disappeared Part 2

For your situational awareness. 

Fernando T. Grijalva
Patrol Agent in Charge
Ajo Border Patrol Station
520-387-0401 (office)
520-******* (mobile)

Subject: FW: No More Deaths - Disappeared Part 2

Awareness for No More Deaths (NMD) events.  This information has been shared with TCA PAO.

NMD is hosting part two of a three-part series relating to the negative impact of border enforcement
on the lives of illegal aliens.

Part 1 - Centered on “Chase and Scatter,” implying that Border Patrol pursues illegal aliens
with the intent of causing them to scatter and get lost in the desert, making them more
prone to injury and/or getting lost (referred to as “disappeared”).

Part 2 - Focuses on allegations that the Border Patrol attempts to thwart humanitarian
efforts by vandalizing food and water drops left by organizations such as No More Deaths.
NMD will further describe its claims on 01/17/2018 at the Global Justice Center, and will
post its report online, at http://www.thedisappearedreport.org.

Part 3 – TBD.

Attached are additional PDFs taken from NMD’s publically posted content if you need them for
reference.  These are from Part 1 as well as the “Spring Volunteer” info.  We can keep an eye out for
Part 2 if it gets posted tomorrow.

Additional Spring Volunteer events scheduled for March (to include participating in water drops and
attending a Streamline session at the federal courthouse).  See attachment for additional details.  All
Case 4:18-cr-00223-RCC-BPV Document 172-4 Filed 03/14/19 Page 3 of 4

referenced data for their statistics is said to be from years 2012-2015.


 
UPDATE as of 0900 hrs 01/17/2018.
 
No More Deaths just posted Part 2 of its three-part “Death and Disappearance” series on its website,
www.thedisappearedreport.com. I have saved it as a PDF and attached it for your convenience and
dissemination.
 
Also, NMD has posted a “Call Flood” message on its Facebook page, encouraging people to call the
Tucson Border Patrol Station to express their outrage at Border Patrol for vandalizing and impeding
humanitarian efforts. They have included the main line for the station (520-748-3000), and a sample
script of what to say. Agents and staff at TUS should be made aware in case they receive a flood of
calls.
 
Case 4:18-cr-00223-RCC-BPV Document 172-4 Filed 03/14/19 Page 4 of 4

 
In general, the addresses vandalism of their food and water drops, highlights the Border Patrol raid
on their camp in June 2017, and uses various scientific calculations to illustrate that the punctured
water bottles were located in areas where their loss would be most lethal to migrants.
 
Game cam photos are included, ranging from 2010 to 2017. There is an image from 2017 of an agent
“stealing” a blanket, though he could also be innocently retrieving what appears to be trash left in a
remote location. In the wake of the NMD Camp raid in June 2017, the video footage of agents
vandalizing water bottles in 2012 was re-circulated online. It is likely there is video footage of the
2017 encounters. I haven’t located this footage yet; it is also possible more will be shown at the
meeting scheduled for tonight at 8pm at the Global Justice Center.
 
Case 4:18-cr-00223-RCC-BPV Document 172-5 Filed 03/14/19 Page 1 of 5

EXHIBIT 14
Case 4:18-cr-00223-RCC-BPV Document 172-5 Filed 03/14/19 Page 2 of 5

1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF ARIZONA

3 United States of America, )


)
4 Plaintiff, )
) CR-18-0223-TUC-RCC(BPV)
5 vs. )
) Tucson, Arizona
6 Scott Daniel Warren, ) July 13, 2018
) 9:33 a.m.
7 Defendant. )
_______________________________ )
8

9 REPORTER'S TRANSCRIPT OF PROCEEDINGS

10 CONTINUED MOTION TO SUPPRESS

11 BEFORE: THE HONORABLE BERNARDO P. VELASCO


UNITED STATES MAGISTRATE JUDGE
12

13 APPEARANCES

14 For the Government:


U.S. Attorney's Office
15 By: NATHANIEL WALTERS, ESQ.
ANNA WRIGHT, ESQ.
16 405 West Congress Street, Suite 4800
Tucson, Arizona 85701-4050
17
For the Defendant:
18 Kuykendall & Associates
By: AMY PICKERING KNIGHT, ESQ.
19 GREGORY J. KUYKENDALL, ESQ.
531 South Convent Avenue
20 Tucson, Arizona 85701-2612

21
Cheryl L. Cummings, RDR-CRR-RMR
22 Official Court Reporter
Evo A. DeConcini U.S. Courthouse
23 405 West Congress, Suite 1500
Tucson, Arizona 85701
24 (520)205-4290

25 Proceedings Reported by Stenographic Court Reporter


Transcript Prepared by Computer-Aided Transcription
Case 4:18-cr-00223-RCC-BPV Document 172-5 Filed 03/14/19 Page 3 of 5
2

1 INDEX

2 WITNESSES CALLED ON BEHALF OF THE GOVERNMENT

3 JOHN MARQUEZ

4 CROSS BY MR. KUYKENDALL 4

5 REDIRECT BY MR. WALTERS 40

6 RECROSS BY MR. KUYKENDALL 50

7
BRENDAN BURNS
8
DIRECT BY MR. WALTERS 52
9
CROSS BY MR. KUYKENDALL 79
10
REDIRECT BY MS. WRIGHT 104
11

12

13 CLOSING ARGUMENT ON BEHALF OF THE GOVERNMENT 110

14 CLOSING ARGUMENT ON BEHALF OF THE DEFENDANT 129

15

16

17

18

19

20

21

22

23

24

25
Case 4:18-cr-00223-RCC-BPV Document 172-5 Filed 03/14/19 Page 4 of 5
BURNS - CROSS 89

1 agents shall not proceed with the knock and talk and will

2 immediately leave the premises.

3 Are you aware -- were you aware on January 17 of that

4 policy?

5 A. Yes.

6 MS. WRIGHT: Your Honor, if we could not have

7 exhibits up that are not presently being used.

8 THE COURT: Sure.

9 BY MR. KUYKENDALL:

10 Q. Now, when you were corresponding with your supervisor,

11 you indicated to your supervisor prior to actually arriving on

12 the scene, quote, We're going to take everyone in regardless;

13 right?

14 A. Correct.

15 Q. And by take everyone in, that means detain them; right?

16 A. Correct.

17 Q. Put handcuffs on them; right?

18 A. Correct.

19 Q. And take them to the station; right?

20 A. Yes, sir.

21 Q. And by everyone, you mean -- you meant everyone present

22 at the property known as the barn?

23 A. That's not correct.

24 Q. Who's everyone?

25 A. Everyone on whom I had good probable cause to arrest.


Case 4:18-cr-00223-RCC-BPV Document 172-5 Filed 03/14/19 Page 5 of 5
BURNS - CROSS 90

1 Q. But you weren't going in with probable cause; right?

2 A. No.

3 Q. You were going in to conduct a knock and talk.

4 A. Correct.

5 Q. And you indicated that you were going to take everyone in

6 supposedly after the knock and talk that you developed

7 probable cause to take in; right?

8 A. I was going to take in anyone at any time if I believed

9 that I had good probable cause to believe that they were

10 engaged in criminal activity.

11 Q. And why did you need to write that? Isn't that your job,

12 to arrest people with probable cause?

13 A. Yes, sir, that's my job.

14 Q. I mean, isn't this pretty redundant to say I'm going take

15 everyone in regardless?

16 A. No, because I was being clear to refer to the

17 conversation with Agent Smith.

18 Q. And can you show us in this text stream where Agent Smith

19 appears and creates this thing you're talking about?

20 A. He's not on this page.

21 Q. All right. I just turned the page. Is it on that page?

22 A. No, sir.

23 Q. All right. There's a Chris Smith on the next page.

24 A. You'll see where I specifically say Smitty, something

25 along the lines of look over at your side for prosecution.


Case 4:18-cr-00223-RCC-BPV Document 172-6 Filed 03/14/19 Page 1 of 6

EXHIBIT 15
Case 4:18-cr-00223-RCC-BPV Document 172-6 Filed 03/14/19 Page 2 of 6
1

2 UNITED STATES DISTRICT COURT

3 DISTRICT OF ARIZONA

4 United States of America, )


)
5 Plaintiff, ) CR 18-00223-RCC(BPV)
)
6 vs. )
) Tucson, Arizona
7 Scott Daniel Warren, ) June 14, 2018
) 1:47 p.m.
8 Defendant. )

10
TRANSCRIPT OF PROCEEDINGS
11 MOTION HEARING

12

13

14
BEFORE THE HONORABLE BERNARDO P. VELASCO
15 UNITED STATES MAGISTRATE JUDGE
405 W. CONGRESS STREET
16 TUCSON, ARIZONA 85701

17

18

19

20 Cindy J. Shearman, RDR, CRR, CRC


405 W. Congress Street, Suite 1500
21 Tucson, AZ 85701
520-205-4286
22

23 Proceedings Reported by Realtime Court Reporter


Transcript prepared by computer-aided transcription
24

25

UNITED STATES DISTRICT COURT


Case 4:18-cr-00223-RCC-BPV Document 172-6 Filed 03/14/19 Page 3 of 6
2

1 A P P E A R A N C E S

2
For the Plaintiff:
3
Nathaniel J. Walters
4 Anna R. Wright
Assistant U.S. Attorneys
5 405 W. Congress Street, Suite 4800
Tucson, Arizona 85701
6

7 For the Defendant:

8 Gregory J. Kuykendall
Amy P. Knight
9 Kuykendall & Associates
531 S. Convent Avenue
10 Tucson, Arizona 85701

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

UNITED STATES DISTRICT COURT


Case 4:18-cr-00223-RCC-BPV Document 172-6 Filed 03/14/19 Page 4 of 6
3

1 I N D E X

2 WITNESS PAGE

3 CAROL ANN JOHNSON

4 Direct examination by Mr. Kuykendall 6


Cross-examination by Ms. Wright 15
5 Redirect examination by Mr. Kuykendall 26
Follow-up examination by Mr. Kuykendall 29
6
SCOTT DANIEL WARREN
7
Direct examination by Mr. Kuykendall 31
8 Cross-examination by Mr. Walters 56
Redirect examination by Mr. Kuykendall 82
9
JOHN MARQUEZ
10
Direct examination by Mr. Walters 85
11 Cross-examination by Mr. Kuykendall 104

12

13
E X H I B I T S
14
IDENTIFIED OFFERED ADMITTED
15
Gov 72 83 83
16 Gov 75 86 86
Gov 75A 94 94
17 Gov 76 95 96
Def 101 83 84
18 Def 102 83 84
Def 103 83 84
19 Def 105 83 84
Def 106 83 84
20 Def 107 83 84
Def 108 83 84
21 Def 109 83 84
Def 121 83 83
22

23

24

25

UNITED STATES DISTRICT COURT


Case 4:18-cr-00223-RCC-BPV Document 172-6 Filed 03/14/19 Page 5 of 6
CROSS-EXAMINATION - JOHN MARQUEZ 112

1 description, right?

2 A. Yes.

3 Q. So -- and, in fact, you even wrote in your report that

4 those two guys matched the description given by the migrant

5 that had been captured the day before in Ajo, right?

6 A. Yes, I did write that.

7 Q. But the truth is, you didn't know anything about the

8 characteristics of those two people that were supposedly with

9 the migrant captured the day before; is that true?

10 A. I don't understand.

11 Q. Did you know whether they were young?

12 A. No.

13 Q. Did you know whether they were old?

14 A. No.

15 Q. Did you know whether they were tall?

16 A. No.

17 Q. Did you know whether they were short?

18 A. No.

19 Q. Did you know whether they had facial hair?

20 A. No.

21 Q. Did you know whether they had long hair?

22 A. No.

23 Q. Did you know whether they were brown?

24 A. No.

25 Q. Black?

UNITED STATES DISTRICT COURT


Case 4:18-cr-00223-RCC-BPV Document 172-6 Filed 03/14/19 Page 6 of 6
CROSS-EXAMINATION - JOHN MARQUEZ 113

1 A. No.

2 Q. White?

3 A. No.

4 Q. Male?

5 A. I assumed male.

6 Q. You assumed it?

7 A. Uh-huh.

8 Q. But what you wrote in your report is that they matched the

9 description that you'd received the day before, and that's a

10 lie, isn't it?

11 A. No.

12 Q. How did these people who were possibly tall, short, bald,

13 hairy, bearded, old, young, how did they match the description

14 of the two guys that you saw with Dr. Warren?

15 A. Through my experience as being a Border Patrol agent --

16 Q. Uh-huh.

17 A. -- we knew that they were Central Americans.

18 Q. You could tell from a distance of a quarter mile through

19 your scope that they were Central Americans?

20 A. I didn't say a quarter mile.

21 Q. Okay. You could tell by looking through your telescope or

22 your binoculars, your spotting scope, that they were Central

23 Americans?

24 A. Through my experience being a Border Patrol agent, yes, I

25 assumed they were Central Americans.

UNITED STATES DISTRICT COURT