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United States v. Warren

United States District Court, D. Arizona

September 14, 2018

United States of America, Plaintiff,
Scott Daniel Warren, Defendant.


          Honorable Raner C. Collins United States District Judge.

         Pending 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.

         Legal Standard

         The 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).


         The 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.

         The 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.

         With 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.

         On 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, [ ][1], 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.

         On 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. Id.

         On May 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.[2]


         “Whether 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.

         The 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 ...

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