United States District Court, D. Arizona
Honorable Raner C. Collins United States District Judge.
before the Court is Magistrate Judge Bernardo P.
Velasco's Report and Recommendation
(“R&R”) wherein he recommends this Court,
after independent review, deny Defendant's Amended Motion
to Dismiss Counts 2 and 3 of the Complaint (Doc. 45). Doc.
81. Defendant filed timely objections to the R&R (Doc.
82) which the Government, in turn, responded to (Doc. 99).
Additionally, Katherine Franke and James Belanger filed, with
the Court's permission, a Brief of and By Professors of
Religious Liberty as Amicus Curiae in Support of
Defendant's Motion to Dismiss. Doc. 88. The Court has
considered all of the above, as well as the underlying
briefs. For the reasons explained below, the Court will
accept and adopt, in part, the findings and conclusions in
the R&R. Further, the Court will deny Motion to Dismiss.
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge” on a defendants' motion to dismiss [counts
of] an indictment. 28 U.S.C. § 636(b)(1). The Court must
undertake de novo review of those portions of the R&R to
which specific objections are made. Thomas v. Arn,
474 U.S. 140, 149 (1985); United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); see
also 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b)(3).
R&R includes proposed findings of fact which are based
upon the testimony and exhibits offered at the May 11, 2018,
2018 evidentiary hearing. Doc. 81 at 1-3. Defendant asserts
that he does not dispute the findings of fact set forth at p.
1:28-2:21; p. 2:25-28; p. 3:1-2, but objects that the
remaining findings “are either irrelevant to the issue
before the Court or not supported by any evidence before the
Court in this proceeding.” Doc. 82 at 1.
Court finds the contested factual findings are not
significant to its decision on the issue before it and, thus,
the Court will not adopt them.
respect to the remaining, uncontested factual findings, the
Court will accept, adopt, and repeat here just those which
are pertinent to the instant decision. The Court has
confirmed these facts by reviewing the indictment and record
in this matter.
February 14, 2018, the Defendant, Scott Daniel Warren
(“Warren”) was indicted on one count of violating
8 U.S.C. §§ 1324(a)(1)(A)(v)(1), (a)(1)(A)(ii) and
(a)(1)(A)(iii) (Count One) and two counts of violating 8
U.S.C. § 1324(a)(1)(A)(iii) (Counts 2 and 3).
See Doc. 26. By and through his motion to dismiss,
Warren implores the Court to dismiss the latter two counts.
See Doc. 45 at 1. Each contested count alleges that
“beginning on or about January 14, 2018, and continuing
to January 17, 2018, at or near Ajo, in the District of
Arizona, ” Warren “knowing and in reckless
disregard of the fact that a certain alien, [ ], had come to,
entered, and remained in the United States in violation of
law, did knowingly conceal, harbor, and shield from detection
said alien in any place . . . to avoid said aliens'
detention by immigration authorities.” Doc. 26 at 2.
April 2, 2018, Warren filed a motion requesting that this
Court dismiss Counts 2 and 3 of the Indictment against him,
with prejudice, “because the Religious Freedom
Restoration Act of 1993 (RFRA) protects Dr. Warren from being
prosecuted for the actions he is alleged to have taken in
offering assistance to the migrants.”
Doc. 45 at 1. No. other relief was requested in the motion,
though Warren did request an evidentiary hearing.
11, 2018 Magistrate Judge Velasco held a hearing to address
the Motion to Dismiss. See Doc. 74. Evidence was
taken. Id. at 8-96. Thereafter, the Magistrate Judge
issued an R&R recommending that this Court should deny
Warren's Motion to Dismiss. Doc. 81 at 1, 4. The
recommendation was predicated, in part, upon Magistrate Judge
Velasco's finding that “[a]s a matter of law, the
Court cannot conclude that [Warren] is entitled to judgement
in his favor dismissing the Counts at issue because of
unresolved questions of fact.” Id. at 3. The
Magistrate identified these as: (1) were the illegal aliens,
as defined by the statue, or undocumented migrants, as
defined by the Defendant, in distress upon the first
encounter or thereafter during their three-day stay at The
Barn; (2) were The Barn conditions such as signage re: maps
and legal advice attributable to the Defendant; (3) did the
Defendant provide the material witnesses with the directions
for their future travels and is this in violation of the law;
and (4) did the Defendant's remarks to the Border Patrol
Agents at the scene go beyond the Defendant's expressed
beliefs[?]. Having identified these outstanding factual
disputes, Magistrate Judge Velasco also concluded that
“the statutes under which the Defendant is charged do
not substantially burden his exercise of religion . .
.” Id. at 4.
to prosecute and what charge to file or bring before a grand
jury are decisions that generally rest in the
prosecutor's discretion.” United States v.
Batchelder, 442 U.S. 114, 124, 99 S.Ct. 2198, 60 L.Ed.2d
755 (1979). “It follows, as an incident of the
constitutional separation of powers, that the courts are not
to interfere with the free exercise of the discretionary
powers of the attorneys of the United States in their control
over criminal prosecutions.” United States v.
Olson, 504 F.2d 1222, 1225 (9th Cir.1974) (quotation
omitted). However, a court may dismiss an indictment under
its supervisory powers when the defendant suffers substantial
prejudice, and where no lesser remedial action is available.
United States v. Morales, 465 Fed.Appx. 734, 739-40
(9th Cir. 2012) (quotations and citations omitted). Here,
neither the record nor the Religious Freedom Restoration Act
support an exercise of this Court's supervisory powers to
intrude on the government's charging decision.
Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1
(“RFRA”) was enacted by Congress in 1993 in
response to the Supreme Court's decision in
Employment Div., Dept. of Human Resources v. Smith,
494 U.S. 872 (1990), which held that the government need not
show a compelling interest in enforcing generally applicable
laws that substantially burden a religious practice.
Id. at 879; see also, City of Boerne v.
Flores, 521 U.S. 507 (1997). The RFRA provides that
“[g]overnment shall not substantially burden a
person's exercise of religion, ” see 42 U.S.C.
§ 2000bb-1(a), and supplies a rule of decision in cases
where a person finds himself in the position of needing to
choose between following his faith and following the law.
See United States v. Christie, 825 F.3d ...