Dismiss Indictment

Case 4:18-cr-00223-RCC-BPV Document 115 Filed 08/27/18 Page 1 of 19
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
5 greg@kuykendall-law.com
amyknight@kuykendall-law.com
6 Pro Bono Attorneys for Defendant Scott Daniel Warren
7
8 UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
9
10 United States of America, )
) No.CR-18-00223-001-TUC-RCC(BPV)
11
Plaintiff, )
12 ) MOTION TO DISMISS INDICTMENT
vs. ) FOR VIOILATION OF
13 ) INTERNATIONAL LAW
14 SCOTT DANIEL WARREN, )
)
15 Defendant. )
16 )
17 Defendant Scott Daniel Warren, through pro bono counsel, moves this Court to
18
dismiss the felony indictment under Federal Rule of Criminal Procedure 12(b)(3)(v) for
19
20 failure to state an offense, as well as under the Due Process Clause of the Fifth
21 Amendment to the United States Constitution, and in support thereof states:

22
I. INTRODUCTION
23
On February 14, 2018, the Defendant, Scott Daniel Warren, was indicted on one
24
25 count of Conspiracy to Transport and Harbor Illegal Aliens, in violation of 8 U.S.C.
26 §1324(a)(l)(A)(v)(I), 8 U.S.C. § 1324(a)(l)(A)(ii) and 8 U.S.C. § 1324(a)(l)(A)(iii), as well
27
as two counts of Harboring Illegal Aliens, in violation of 8 U.S.C. § 1324(a)(l)(A)(iii).
28
1 All of the charges stem from Defendant’s activities as a humanitarian aid worker
2 volunteering with No More Deaths (NMD). NMD is a coalition of religious organizations,

3
human rights advocates and individuals who provide food, water and medical assistance to
4
5 migrants crossing the Arizona desert from Mexico. The Ninth Circuit has recognized that
6 No More Deaths is “an organization that provides humanitarian aid to migrants.” United
7
States v. Millis, 621 F.3d 914 (9th Cir. 2010).
8
The Complaint (Doc. 1), filed January 18, 2018, alleges that Dr. Warren “took care
9
10 of” two migrants for three days “by giving them food, water, beds, and clean clothes.”
11 Since then, the Government has produced no evidence that Dr. Warren conspired with
12
anyone to transport and harbor the two migrants, let alone that the alleged offense was
13
14 committed for financial gain or to further a criminal enterprise. The Government has
15 likewise produced no evidence that Dr. Warren was attempting to conceal the two
16
undocumented migrants from apprehension by U.S. authorities, or was in any way assisting
17
18 them in avoiding apprehension. Instead, the weight of evidence indicates that the
19 Government is prosecuting Defendant solely for undertaking humanitarian aid efforts for
20
migrants traveling primarily on foot through the often deadly Sonoran desert.
21
As set out below, this prosecution is inconsistent with the United States’s binding
22
23 treaty obligations, which dictate that aid to migrants be criminal only when committed for
24 financial or other material benefit and specifically require cooperation with non-
25
governmental organizations to ensure their humane treatment. This internationally
26
27 unlawful conduct further warrants dismissal because it “shocks the conscience” and
28 violates the “decencies of civilized conduct.” County of Sacramento v. Lewis, 523 U.S.
2
1 833, 846 (1998). At a minimum, these prosecutorial transgressions warrant dismissal of
2 the indictment under the court’s supervisory powers.

3
II. STATEMENT OF FACTS
4
5 Much of the lifesaving work of No More Deaths volunteers must of necessity be
6 carried out in the Cabeza Prieta National Wildlife Refuge, a vast and remote stretch of land
7
near Ajo, Arizona that shares 56 miles with the U.S.–Mexico border. As the government’s
8
own description points out, the terrain “is big and wild and can be incredibly hostile to
9
10 those that need water to survive,” while its “56-mile border with Sonora, Mexico, might
11 well be the loneliest international boundary on the continent.”1 Many desperate individuals
12
attempt to cross the U.S.–Mexico border through this lethally dangerous corridor, which
13
14 can take anywhere from four days to several weeks to traverse. The area has virtually no
15 natural water sources, and summertime temperatures can top 120 degrees Fahrenheit. There
16
are no towns in this remote desert wilderness and only one publicly accessible road, known
17
18 as the Devil’s Highway. Over the past several years, the bodies of scores of people who
19 died after crossing the border have been recovered in the refuge. In 2017 alone, some thirty-
20
two sets of human remains were found just in Cabeza Prieta, according to the Pima County
21
Office of the Medical Examiner.2
22
23
24
1
25 U.S. Fish and Wildlife Service, Cabeza Prieta: Wildlife and Habitat, at
https://www.fws.gov/refuge/Cabeza_Prieta/wildlife_and_habitat/index.html.
26 2
Rory Caroll, Eight activists helping migrants cross brutal desert charged by U.S.
27 government, THE GUARDIAN, Jan. 24, 2018, at https://www.theguardian.com/us-
news/2018/jan/24/us-immigration-activists-arizona-no-more-deaths-charged.
28
3
1 Dr. Warren works with No More Deaths to prevent migrants from dying during
2 their journey. Often, this work takes the form of venturing into remote desert areas to
3
place emergency water and food in areas migrants frequently traverse, as well as
4
5 searching for migrants, both living and dead, in the desert. On this occasion, Dr. Warren
6 arrived at “The Barn,” a home base used by No More Deaths, to find two migrants who
7
had arrived in Ajo after walking many miles through the desert. The migrants have
8
testified that they were cold and exhausted, had been forced to discard what little food
9
10 and water they were carrying, were extremely hungry, and were in pain,3 and asked for
11 food and water, and a place to rest. According to the Complaint the Government filed,
12
Dr. Warren gave them that aid, and those actions are the basis for this prosecution.
13
14 II. THE COURT MUST DISMISS THE INDICTMENT FOR FAILURE TO
STATE AN OFFENSE BECAUSE THE UNITED STATES’S TREATY
15 OBLIGATIONS RENDER DR. WARREN’S CONDUCT NON-CRIMINAL.
16
A. The Migrant Smuggling Protocol provides that humanitarian aid to
17 migrants is not criminal.
18
In 2005, the United States ratified the Protocol Against Smuggling of Migrants by
19
Land, Sea and Air (the “Migrant Smuggling Protocol”), Nov. 15, 2000, T.I.A.S. 13127,
20
21 2241 U.N.T.S. 507.4 See Exhibit 1, Text of the Migrant Smuggling Protocol. Notably, the
22
U.S. Senate’s consent to ratification of the Migrant Protocol attached no reservations that
23
24 3
Even seemingly minor injuries such as blisters can be life-threatening to migrants crossing
25 the desert, as they may cause individuals to be left behind or be unable to move quickly
enough to reach safety before succumbing to exposure or dehydration.
26 4
At present, 146 nations are parties to the Migrant Smuggling Protocol. See United
27 Nations Treaty Collection, at:
https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XVIII-12-
28 b&chapter=18&lang=en.
4
1 would limit the scope or application of these provisions under domestic law.5 Under its
2 provisions, the Government is committed “to the protection of the rights” of migrants who
3
have been smuggled.6 All such migrants must be provided with “humane treatment” and
4
5 the “full protection of their rights.”7 By ratifying the Migrant Smuggling Protocol, the
6 United States committed to taking “all appropriate measures” to “preserve and protect the
7
rights” of smuggled migrants, including “in particular the right to life” and “the right not
8
to be subjected to. . .cruel, inhuman or degrading treatment.”8
9
10 As relevant here, the treaty accomplishes these goals through two specific
11 requirements: criminalization requirements and cooperation requirements. In Article 6, the
12
treaty dictates the scope of migrant-related criminal offenses: parties commit to forbidding
13
14 the smuggling of migrants “when committed intentionally and in order to obtain, directly
15 or indirectly, a financial or other material benefit.”9 This motivation-based limitation

16
applies to several sub-categories of crime, including crimes related to fraudulent
17
18 documents and, crucially, “Enabling a person who is not a national or a permanent resident
19 to remain in the State concerned without complying with the necessary requirements for
20
legally remaining in the State” by any illegal means.10
21
22
5
23 See Resolution of Ratification: Senate Consideration of Treaty Document 108-16 (Oct.
7, 2005), at: https://www.congress.gov/treaty-document/108th-congress/16/all-
24
info#resolution.
6
25 Migrant Smuggling Protocol, Article 4.
7
Id. Preamble.
26 8
Id. Article 16.
9
27 Id. Article 6(1)(a).
10
Id. Article 6(1)(c). Notably, this provision by its terms applies to all people not authorized
28 to be in the country, regardless of the method by which they entered.
5
1 The requirement that these actions be criminalized only when undertaken for
2 financial or other material benefit is a clear reflection of the treaty’s overall purpose of
3
protecting the human rights of migrants, including the right to life, and obviously exempts
4
5 actions taken for humanitarian reasons. To read the criminalization requirements otherwise
6 would be inconsistent with the stated purpose of the treaty. Indeed, the Travaux
7
Préparatoires for the treaty—the international law equivalent of legislative history—
8
confirms this in an interpretive note, explaining that the material benefit requirement was
9
10 included specifically “to exclude the activities of those who provided support to migrants
11 for humanitarian reasons,” and the protocol does not provide for criminalization of actions
12
by “support groups such as religious or non-governmental organizations.”11 The Supreme
13
14 Court has explicitly recognized the interpretive value of such pronouncements. See
15 Zicherman v. Korean Airlines, 516 U.S. 217, 226 (1996) (“Because a treaty ratified by the
16
United States is not only the law of this land, see U.S. Const., Art. II, § 2, but also an
17
18 agreement among sovereign powers, we have traditionally considered as aids to its
19 interpretation the negotiating and drafting history (travaux préparatoires) and the
20
postratification understanding of the contracting parties.”).
21
Lest there be any doubt that the treaty does not permit parties to criminalize
22
23 humanitarian aid to migrants, it specifically requires the opposite: that the authorities “shall
24 cooperate with each other and with competent international organizations, non-
25
26 11
United Nations Office on Drugs and Crime, Travaux Préparatoires of the Negotiations for the
27 Elaboration of the United Nations Convention against Transnational Organized
Crime, interpretative notes on art. 3, p. 469), available at
28 https://www.unodc.org/pdf/ctoccop_2006/04-60074_ebook-e.pdf.
6
1 governmental organizations, other relevant organizations and other elements of civil
2 society” in protecting and preserving the human rights of smuggled migrants.12

3
Criminalizing and prosecuting such groups’ work is obviously inconsistent with this
4
5 explicit cooperation obligation.
6 Further confirming this fact, judicial interpretation of treaty requirements by the

7
other signatories is given “considerable weight.’” Air France v. Saks, 470 U. S. 392, 404
8
(1985). Addressing the application of the Migrant Smuggling Protocol, the Supreme
9
10 Court of Canada recently held that a federal statute making it an offence to organize,
11 induce, aid or abet the entry of undocumented migrants “is unconstitutional insofar as it
12
permits prosecution for humanitarian aid to undocumented entrants.”13 The Court found
13
14 that “it would depart from the balance struck in the Smuggling Protocol to allow
15 prosecution for humanitarian aid.” 3 S.C.R. 754 at 775. An exemption for humanitarian
16
assistance was therefore required to ensure that the statute governing illegal entry
17
18 “reflects the values and principles of customary and conventional international law.” Id.
19 at 774. The U.S. Supreme Court has agreed that if there is any ambiguity, a treaty should
20
be interpreted as “enlarging [] rights which may be claimed under it.” Bacardi Corp. of
21
America v. Domenech, 311 U. S. 150, 163 (1940) (citations omitted); see also Factor v.
22
23 Laubenheimer, 290 U.S. 276, 293 (1933) (“In choosing between conflicting
24 interpretations of a treaty obligation, a narrow and restricted construction is to be avoided
25
26
12
27 Migrant Smuggling Protocol Article 14(2).
13
R. v. Appulonappa, [2015] 3 S.C.R. 754, available at https://scc-csc.lexum.com/scc-
28 csc/scc-csc/en/item/15648/index.do.
7
1 as not consonant with the principles deemed controlling in the interpretation of
2 international agreements.”). Thus, multiple rules of construction all indicate that the
3
treaty exempts humanitarian aid to migrants from criminalization.
4
5 The government’s decision to apply its laws criminalizing assistance to migrants to
6 Dr. Warren, who was providing humanitarian aid in conjunction with a non-governmental
7
organization, conflicts with its responsibilities under Articles 3(a) and 6(1) of the Migrant
8
Smuggling Protocol, which limit criminalization of migrant smuggling to those acts
9
10 “committed intentionally and in order to obtain, directly or indirectly, a financial or other
11 material benefit,” as well as Article 14(2), which requires cooperation with non-
12
governmental organizations. The government has not even alleged, let alone offered any
13
14 evidence of, a financial or material benefit to Dr. Warren. His sole purpose in rendering
15 assistance to migrants in distress was to alleviate their suffering. Moreover, the

16
Government has never disputed that Dr. Warren was working with the aid organization No
17
18 More Deaths—with whom they are treaty-bound to cooperate. Accordingly, this
19 prosecution is inconsistent with the United States’ obligations under the Migrant
20
Smuggling Protocol.
21
B. The Migrant Smuggling Protocol supersedes any earlier statutory
22
provisions that conflict with it.
23
It is long-settled law that a treaty such as the Migrant Smuggling Protocol stands on
24
25 par with a federal statute. “By the Constitution a treaty is placed on the same footing, and
26 made of like obligation, with an act of legislation.” Whitney v. Robertson, 124 U.S. 190,
27
194 (1888). The Migrant Smuggling Protocol may provide the rule of decision in a case
28
8
1 where its provisions are implicated, because a treaty “is a law of the land as an act of
2 congress is, whenever its provisions prescribe a rule by which the rights of the private
3
citizen or subject may be determined.” Edye v. Robertson, 112 U.S. 580, 598 (1884). When
4
5 such rights “are of a nature to be enforced in a court of justice, that court resorts to the
6 treaty for a rule of decision for the case before it as it would to a statute.” Id. at 599.
7
If a treaty and a federal statute conflict, “the one last in date will control the other.”
8
Id. See also Breard v. Greene, 523 U.S. 371, 376 (1998) (reaffirming applicability of last-
9
10 in-time rule to treaties and statutes). The statutory provisions under which the Defendant
11 was charged were enacted in 1952. United States v. Acosta de Evans, 531 F. 2d 428, 430
12
(9th Cir. 1976) (“In 1952 Congress amended the section, adding penalties for concealing,
13
14 harboring, or shielding from detection.”). More than half a century later, the United States
15 deposited its instrument of ratification for the Migrant Smuggling Protocol on November
16
3, 2005,14 whereupon it became part of the “supreme Law of the Land” under Article VI
17
18 of the U.S. Constitution. Thus, the treaty is the more recent law, and to the extent of any
19 conflict between U.S.C. §1324(a)(l) and the Migrant Smuggling Protocol, the treaty must
20
prevail.
21
In sum, a 1952 statute criminalized harboring migrants, without regard for any
22
23 financial or material motivation, and without exemption for humanitarian aid. A 2005
24 treaty limits criminalization of aid to migrants to those who have financial or material
25
26
14
27 See the ratification table in the United Nations Treaty Collection, at:
https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XVIII-12-
28 b&chapter=18&lang=en.
9
1 motivations, and mandates an exemption for humanitarian aid. The treaty terms thus
2 prevail, and render non-criminal the provision of humanitarian aid to migrants, regardless
3
of what the inconsistent earlier statute may have provided. Accordingly, the charges against
4
5 Dr. Warren—which do not allege financial or material gain, and arise from humanitarian
6 aid rendered in conjunction with a humanitarian organization—do not state an offense, and
7
the Court must dismiss the indictment pursuant to Federal Rule of Criminal Procedure
8
12(b)(3)(B)(v).
9
10 This necessity is not novel; Courts have repeatedly recognized that treaty provisions
11 constrain the Government’s ability to prosecute and punish. See, e.g., United States v.
12
Rauscher, 119 U.S. 407 (1886) (dismissing criminal indictment that breached extradition
13
14 treaty); Caplan v. Vokes, 649 F. 2d 1336, 1342 (9th Cir. 1981) (denying extradition where
15 prosecution failed to meet limitations provision of treaty); Cook v. United States, 288 U.S.
16
102, 120 (1933) (voiding criminal fines that violated treaty requirements). This Court must
17
18 likewise give effect to the requirements of the Migrant Smuggling Protocol and dismiss
19 this indictment.
20
III. THE COURT MUST DISMISS THE INDICTMENT UNDER THE DUE
21 PROCESS CLAUSE.
22
A. Outrageous government conduct that violates substantive due process
23 warrants dismissal.
24 The Ninth Circuit has repeatedly affirmed that “a defendant may raise a due process-
25
based outrageous government conduct defense to a criminal indictment.” United States v.
26
27 Bogart, 783 F.2d 1428, 1433 (9th Cir. 1986), vacated on other grounds, United States v.
28 Wingender, 790 F.2d 802 (9th Cir. 1986) (citing cases). See also United States v. Simpson,
10
1 813 F.2d 1462, 1465 (9th Cir. 1987), cert. denied, 484 U.S. 898 (1987) (“Our circuit has
2 continued to entertain complaints by defendants that their outrageous treatment by law

3
enforcement officers warrants dismissal of their indictment.”). Due process requirements
4
5 warrant dismissal of an indictment where “the government’s conduct is so grossly shocking
6 and so outrageous as to violate the universal sense of justice.” United States v. Ramirez,
7
710 F.2d 535, 539 (9th Cir.1983). Outrageous conduct is not confined to cases of police
8
brutality or the government directing and engineering a criminal enterprise. Rather, “[d]ue
9
10 process of law, as a historic and generative principle, precludes defining, and thereby
11 confining, these standards of conduct more precisely than to say that convictions cannot be
12
brought about by methods that offend ‘a sense of justice.’” Rochin v. California, 342 U.S.
13
14 165, 173 (1952); see also Bogart, 783 F.2d at 1435 (noting that “the precise parameters of
15 such concepts as ‘fundamental fairness’ and ‘universal sense of justice’ are probably
16
indefinable.”).
17
18 Courts in this Circuit have recognized official misconduct rising to a substantive
19 due process violation in a wide range of circumstances. See, e.g., United States v.
20
Marshank, 777 F.Supp. 1507, 1523-24 (N.D. Cal. 1991) (government’s collaboration with
21
defendant’s attorney to build a case against him was “so outrageous that it shocked the
22
23 universal sense of justice”); Cooper v. Dupnik, 963 F.2d 1220,1237 (9th Cir. 1992) (en
24 banc) (egregious and systematic violation of Miranda safeguards “unquestionably shocks
25
the conscience, and thus violates substantive due process.”). Dismissal for outrageous
26
27 conduct may also be based on cumulative factors that, taken individually, would not
28 necessarily warrant a remedy; instead, “it is the combination [of factors] which is
11
1 important.” Green v. United States, 454 F.2d 783, 787 (9th Cir. 1971); cf. United States v.
2 Tobias, 662 F.2d 381, 387 (5th Cir. 1981) (whether outrageous government conduct exists
3
“turns upon the totality of the circumstances with no single factor controlling.”).
4
5 B. The Government’s conduct in bringing this prosecution in disregard of its
international obligations merits dismissal.
6
7 In bringing this case, the Government has flagrantly disregarded its obligations in
8 truly outrageous ways. Common decency requires that a government do what it can to
9
prevent unnecessary death and suffering inside its borders. To actively thwart efforts of its
10
citizens to assist those in need through the provision of the most basic necessities—food,
11
12 water, and shelter—is cruel and shameful behavior. And to threaten to imprison a citizen
13 for providing food, water, and shelter to strangers in need—generous, humane actions the
14
Government should encourage and applaud—is unconscionable. It violates the universal
15
16 sense of justice.
17 Beyond basic human decency, it is truly outrageous for the Government to display
18
such open disregard for its international obligations. As explained above, the Migrant
19
Smuggling Protocol obligates the United States Government to protect the rights of
20
21 migrants who have been smuggled, and to ensure their humane treatment. It further requires
22
the Government to actively cooperate with organizations like No More Deaths to protect
23
migrants’ basic human rights. Rather than working to ensure the survival of migrants and
24
25 encouraging and cooperating with groups doing the same, the Government is actively
26 interfering with humanitarian efforts to safeguard the physical wellbeing of migrants. In
27
maintaining this prosecution, the Government is doing precisely the opposite of what it has
28
12
1 promised the world it would do. Mere indifference to the peril faced by migrants crossing
2 the Sonoran desert would itself be alarming; active interference with charitable efforts to
3
preserve life and health is truly shocking. And criminal punishment for doing something
4
5 with which the Government is legally bound to cooperate is beyond the pale.
6 This is especially so in light of the Government’s more general international

7
obligations. In addition to the Migrant Smuggling Protocol, the United States is a party to
8
the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171;
9
10 T.I.A.S.[hereinafter the ICCPR]. Article 6 of the ICCPR provides that “[e]very human
11 being has the inherent right to life,” that this right “shall be protected by law” and that no
12
one “shall be arbitrarily deprived of his life.” This right applies to all people—migrants
13
14 included. So essential is the protection of this right that, under Article 4, no derogation is
15 permitted from it even in time of public emergency which threatens the life of the nation.
16
Furthermore, Article 7 of the ICCPR forbids all forms of cruel, inhuman or degrading
17
18 treatment. The foundational obligation to protect the right to life and freedom from cruel,
19 inhuman or degrading treatment implicitly includes an obligation to facilitate protection of

20
these rights by others, especially where the State is unable to fully safeguard the right itself.
21
Given that hundreds of migrants continue to die in the desert each year,15 the Government
22
23 obviously needs help in protecting the right to life. It is fundamentally inconsistent with
24 the Government’s obligations under Articles 6 and 7 of the ICCPR to penalize activities
25
26
15
See Pima County Office of the Medical Examiner, Annual Report 2017, at 30-32,
27 available at i
https://webcms.pima.gov/UserFiles/Servers/Server_6/File/Government/Medical%20Exa
28 miner/Resources/Annual-Report-2017.pdf.
13
1 aimed at safeguarding these basic human rights, and downright unconscionable to institute
2 federal felony charges carrying up to 20 years’ prison time for working to ensure these
3
basic human rights the United States has agreed to honor.
4
5 Additionally, Article 26 of the ICCPR entitles every person within the United States
6 to protection of this fundamental right “without any discrimination.” In applying criminal

7
anti-harboring laws to humanitarian aid work, the Government is discriminating against
8
certain people based on their nationality. The way the Government is now attempting to
9
10 apply its laws, it is a crime to provide basic necessities to some people but not to others.
11 Dr. Warren could not be penalized for providing food, water, and shelter to an American
12
citizen lost in the desert, but according to the Government, he can be imprisoned for doing
13
14 the same for a Guatemalan and a Salvadoran. Article 26 requires that the Government
15 recognize and protect basic human rights in all people equally. Criminalizing humanitarian
16
aid to some people but not others means people will have differing access to basic
17
18 necessities depending on their nationality, in violation of this bedrock principle. Thus, the
19 illegality of the Government’s decision to prosecute humanitarian aid to migrants is

20
exacerbated by its discriminatory aspect.
21
This is not a novel or radical interpretation of these obligations. United Nations
22
23 guidance on the protection of the human rights of migrants, which is based on existing
24 legal norms including Article 6 of the ICCPR and the Migrant Smuggling Protocol,
25
specifically calls on States to “[e]nsure that the organizations and individuals who rescue
26
27 or provide assistance to migrants are not criminalized or otherwise punished for doing
28
14
1 so.”16 It further explains that States should “[p]rovide, in law and in practice, a safe,
2 accessible and enabling environment for individuals and organizations that work to
3
promote or protect human rights of migrants. Do not criminalize or otherwise penalize the
4
5 provision of support and assistance to migrants.”17 Instead, States are to “[p]ublicly
6 recognize the important role of human rights defenders and the legitimacy of their work.”18
7
The actions of the Government here are fundamentally inconsistent with this guidance.
8
On a basic level, international law safeguards the foundations of universal human
9
10 morality. See Mary Ellen O'Connell, The Power and Purpose of International Law:
11 Insights from the Theory and Practice of Enforcement 14 (2008) (“Through international
12
law, diverse cultures can reach consensus about the moral norms that we will commonly
13
14 live by.”). For the Government to institute and maintain a felony prosecution in disregard
15 of its obligations to abide by these norms is shocking to the universal sense of justice,
16
violates substantive due process, and requires dismissal.
17
18 C. The Court is authorized to dismiss Defendant’s indictment under its
supervisory powers.
19
The Ninth Circuit has held that even where government misconduct does not rise to
20
21 the level of a due process violation, “the court may nonetheless dismiss under its
22
supervisory powers.” United States v. Chapman, 524 F.3d 1073, 1084 (9th Cir. 2008)
23
(citation omitted). This supervisory power has been applied by the federal courts to dismiss
24
25
16
Human Rights Council, Principles and practical guidance on the protection of the
26 human rights of migrants in vulnerable situations, U.N. Doc. A/HRC/37/34/Add.1, (Feb.
27 7 2018), Principle 4(7).
17
Id., Principle 18(1).
28 18
Id., Principle 18(6)
15
1 indictments for varying forms of prosecutorial misconduct. See, e.g., Chapman, 524 F.3d
2 1073 at 1085 (dismissing for prosecutor’s discovery abuses and affirmative

3
misrepresentations to the court); United States v. Samango, 607 F.2d 877, 884 (9th Cir.
4
5 1979) (dismissing where cumulative effect of prosecutorial “errors and indiscretions”
6 resulted in biased grand jury); United States v. Stein, 495 F. Supp. 2d 390 (S.D.N.Y. 2007)
7
(dismissal because Government threatened to indict defendants’ employer if it paid their
8
legal fees).
9
10 These powers “may be exercised for three reasons: to remedy a constitutional or
11 statutory violation; to protect judicial integrity by ensuring that a conviction rests on
12
appropriate considerations validly before a jury; or to deter future illegal conduct.” United
13
14 States v. Barrera-Moreno, 951 F. 2d 1089, 1091 (9th Cir. 1991).
15 Each of the reasons identified by the Ninth Circuit applies to justify dismissal here.
16
First, the government violated federal constitutional and statutory requirements by
17
18 pursuing a conviction that would conflict with binding treaty requirements; dismissal
19 would remedy this. Second, Defendant would likely not be facing prosecution on felony
20
charges at all, but for his volunteer work with No More Deaths and his attempts to ensure
21
the humane treatment of migrants attempting the perilous crossing of the Sonoran Desert.
22
23 Facilitating such prosecution would threaten judicial integrity. Third, dismissal is
24 warranted “to deter future illegal conduct” by the Government. Chapman, 524 F.3d at
25
1085. Indeed, the Government has already demonstrated its intention to continue to
26
27 prosecute the provision of humanitarian aid to migrants, as several other federal cases,
28 including a second case against Dr. Warren, are currently pending in this district. See No.
16
1 4:17-mj-00341-BGM (U.S. v. Warren); No. 4:17-mj-00340-BGM (U.S. v. Deighan et al.);
2 No. 4:17-mj-339-BGM (U.S. v. Hoffman et al.).

3
In this regard, the Court should consider whether “any lesser sanction [would be]
4
5 like endorsing [the government’s conduct].” Chapman, 524 F.3d at 1088. Declining to
6 dismiss this case would endorse the pernicious notion that the Government may breach this
7
nation’s solemn treaty obligations with impunity. Dismissal is the only remedy that can
8
effectively rectify the Government’s misconduct in this case and the resulting prejudice to
9
10 Dr. Warren. See United States v. Morrison, 449 U.S. 361, 366 (1981) (dismissal under a
11 court’s supervisory powers is appropriate when suppression of evidence cannot remedy
12
prejudice to the defendant).
13
14 CONCLUSION
15 This case raises the specter of the United States Government using its sovereign
16
power to punish an individual who was only doing what the United States itself has
17
18 committed to doing: protecting the basic human rights of migrants. The law requires that
19 the Government cooperate in, rather than punish, such aid. Preventing such perversions of
20
justice is precisely why this court is empowered to dismiss this indictment:
21
Decency, security, and liberty alike demand that government officials shall
22
be subjected to the same rules of conduct that are commands to the citizen.
23 In a government of laws, existence of the government will be imperiled if it
fails to observe the law scrupulously. . . .To declare that in the administration
24 of the criminal law the end justifies the means— to declare that the
25 government may commit crimes in order to secure the conviction of a private
criminal— would bring terrible retribution. Against that pernicious doctrine
26 this court should resolutely set its face.
27
28
17
1 Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting). For
2 the reasons stated above, Defendant requests this Court to dismiss his indictment.
3
RESPECTFULLY SUBMITTED this 27th day of August, 2018.
4
5 By /s/ Amy P. Knight
Gregory J. Kuykendall
6 Amy P. Knight
531 S Convent Avenue
7
Tucson, AZ 85701
8 Attorneys for Defendant Scott
Daniel Warren
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1 CERTIFICATE OF SERVICE
2 I certify that on August 27th, 2018, I electronically transmitted a PDF version of

3 this document to the Clerk of Court using the CM/ECF System for filing and for
transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
4
5 Nathaniel J. Walters, Esq. (email: Nathaniel.walters@usdoj.gov)
Anna R. Wright, Esq. (email: anna.wright@usdoj.gov)
6 United States Attorney’s Office
405 W. Congress, Suite 4800
7
Tucson, AZ 85701
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Case 4:18-cr-00223-RCC-BPV Document 115-1 Filed 08/27/18 Page 1 of 16
EXHIBIT 1
PROTOCOL AGAINST THE SMUGGLING OF

MIGRANTS BY LAND, SEA AND AIR,
SUPPLEMENTING THE UNITED NATIONS
CONVENTION AGAINST
TRANSNATIONAL ORGANIZED CRIME
Advance copy of the authentic text. The copy certified

by the Secretary-General will be issued at a later time.
UNITED NATIONS
2000
PROTOCOL AGAINST THE SMUGGLING OF MIGRANTS BY

LAND, SEA AND AIR, SUPPLEMENTING THE UNITED NATIONS
CONVENTION AGAINST
TRANSNATIONAL ORGANIZED CRIME
Preamble
The States Parties to this Protocol,
Declaring that effective action to prevent and combat the smuggling
of migrants by land, sea and air requires a comprehensive international
approach, including cooperation, the exchange of information and other
appropriate measures, including socio-economic measures, at the national,
regional and international levels,
Recalling General Assembly resolution 54/212 of 22 December
1999, in which the Assembly urged Member States and the United Nations
system to strengthen international cooperation in the area of international
migration and development in order to address the root causes of migration,
especially those related to poverty, and to maximize the benefits of
international migration to those concerned, and encouraged, where relevant,
interregional, regional and subregional mechanisms to continue to address
the question of migration and development,
Convinced of the need to provide migrants with humane treatment
and full protection of their rights,
Taking into account the fact that, despite work undertaken in other
international forums, there is no universal instrument that addresses all
aspects of smuggling of migrants and other related issues,
Concerned at the significant increase in the activities of organized
criminal groups in smuggling of migrants and other related criminal
activities set forth in this Protocol, which bring great harm to the States
concerned,
Also concerned that the smuggling of migrants can endanger the
lives or security of the migrants involved,
Recalling General Assembly resolution 53/111 of 9 December 1998,
in which the Assembly decided to establish an open-ended
intergovernmental ad hoc committee for the purpose of elaborating a
comprehensive international convention against transnational organized
crime and of discussing the elaboration of, inter alia, an international
instrument addressing illegal trafficking in and transporting of migrants,
including by sea,
Convinced that supplementing the United Nations Convention
against Transnational Organized Crime with an international instrument
against the smuggling of migrants by land, sea and air will be useful in
preventing and combating that crime,
Have agreed as follows:
I. General provisions
Article 1
Relation with the United Nations Convention
against Transnational Organized Crime
1. This Protocol supplements the United Nations Convention
against Transnational Organized Crime. It shall be interpreted together with
the Convention.
2. The provisions of the Convention shall apply, mutatis
mutandis, to this Protocol unless otherwise provided herein.
3. The offences established in accordance with article 6 of this
Protocol shall be regarded as offences established in accordance with the
Convention.
Article 2
Statement of purpose
The purpose of this Protocol is to prevent and combat the smuggling
of migrants, as well as to promote cooperation among States Parties to that
end, while protecting the rights of smuggled migrants.
Article 3
Use of terms
For the purposes of this Protocol:
(a) “Smuggling of migrants” shall mean the procurement, in order
to obtain, directly or indirectly, a financial or other material benefit, of the
illegal entry of a person into a State Party of which the person is not a
national or a permanent resident;
(b) “Illegal entry” shall mean crossing borders without complying
with the necessary requirements for legal entry into the receiving State;
(c) “Fraudulent travel or identity document” shall mean any travel
or identity document:
(i) That has been falsely made or altered in some material way by
anyone other than a person or agency lawfully authorized to make or
issue the travel or identity document on behalf of a State; or
–2–
(ii) That has been improperly issued or obtained through

misrepresentation, corruption or duress or in any other unlawful
manner; or
(iii) That is being used by a person other than the rightful holder;
(d) “Vessel” shall mean any type of water craft, including non-
displacement craft and seaplanes, used or capable of being used as a means
of transportation on water, except a warship, naval auxiliary or other vessel
owned or operated by a Government and used, for the time being, only on
government non-commercial service.
Article 4
Scope of application
This Protocol shall apply, except as otherwise stated herein, to the
prevention, investigation and prosecution of the offences established in
accordance with article 6 of this Protocol, where the offences are
transnational in nature and involve an organized criminal group, as well as
to the protection of the rights of persons who have been the object of such
offences.
Article 5
Criminal liability of migrants
Migrants shall not become liable to criminal prosecution under this
Protocol for the fact of having been the object of conduct set forth in article
6 of this Protocol.
Article 6
Criminalization
1. Each State Party shall adopt such legislative and other
measures as may be necessary to establish as criminal offences, when
committed intentionally and in order to obtain, directly or indirectly, a
financial or other material benefit:
(a) The smuggling of migrants;
(b) When committed for the purpose of enabling the smuggling of
migrants:
(i) Producing a fraudulent travel or identity document;
(ii) Procuring, providing or possessing such a document;
(c) Enabling a person who is not a national or a permanent
resident to remain in the State concerned without complying with the
–3–
necessary requirements for legally remaining in the State by the means

mentioned in subparagraph (b) of this paragraph or any other illegal means.
2. Each State Party shall also adopt such legislative and other
measures as may be necessary to establish as criminal offences:
(a) Subject to the basic concepts of its legal system, attempting to
commit an offence established in accordance with paragraph 1 of this
article;
(b) Participating as an accomplice in an offence established in
accordance with paragraph 1 (a), (b) (i) or (c) of this article and, subject to
the basic concepts of its legal system, participating as an accomplice in an
offence established in accordance with paragraph 1 (b) (ii) of this article;
(c) Organizing or directing other persons to commit an offence
established in accordance with paragraph 1 of this article.
3. Each State Party shall adopt such legislative and other
measures as may be necessary to establish as aggravating circumstances to
the offences established in accordance with paragraph 1 (a), (b) (i) and (c)
of this article and, subject to the basic concepts of its legal system, to the
offences established in accordance with paragraph 2 (b) and (c) of this
article, circumstances:
(a) That endanger, or are likely to endanger, the lives or safety of
the migrants concerned; or
(b) That entail inhuman or degrading treatment, including for
exploitation, of such migrants.
4. Nothing in this Protocol shall prevent a State Party from
taking measures against a person whose conduct constitutes an offence
under its domestic law.
II. Smuggling of migrants by sea

Article 7
Cooperation
States Parties shall cooperate to the fullest extent possible to prevent
and suppress the smuggling of migrants by sea, in accordance with the
international law of the sea.
Article 8
Measures against the smuggling of migrants by sea
1. A State Party that has reasonable grounds to suspect that a
vessel that is flying its flag or claiming its registry, that is without
nationality or that, though flying a foreign flag or refusing to show a flag, is
in reality of the nationality of the State Party concerned is engaged in the
–4–
smuggling of migrants by sea may request the assistance of other States

Parties in suppressing the use of the vessel for that purpose. The States
Parties so requested shall render such assistance to the extent possible
within their means.
vessel exercising freedom of navigation in accordance with international
law and flying the flag or displaying the marks of registry of another State
Party is engaged in the smuggling of migrants by sea may so notify the flag
State, request confirmation of registry and, if confirmed, request
authorization from the flag State to take appropriate measures with regard
to that vessel. The flag State may authorize the requesting State, inter alia:
(a) To board the vessel;
(b) To search the vessel; and
(c) If evidence is found that the vessel is engaged in the
smuggling of migrants by sea, to take appropriate measures with respect to
the vessel and persons and cargo on board, as authorized by the flag State.
3. A State Party that has taken any measure in accordance with
paragraph 2 of this article shall promptly inform the flag State concerned of
the results of that measure.
4. A State Party shall respond expeditiously to a request from
another State Party to determine whether a vessel that is claiming its
registry or flying its flag is entitled to do so and to a request for
authorization made in accordance with paragraph 2 of this article.
5. A flag State may, consistent with article 7 of this Protocol,
subject its authorization to conditions to be agreed by it and the requesting
State, including conditions relating to responsibility and the extent of
effective measures to be taken. A State Party shall take no additional
measures without the express authorization of the flag State, except those
necessary to relieve imminent danger to the lives of persons or those which
derive from relevant bilateral or multilateral agreements.
6. Each State Party shall designate an authority or, where
necessary, authorities to receive and respond to requests for assistance, for
confirmation of registry or of the right of a vessel to fly its flag and for
authorization to take appropriate measures. Such designation shall be
notified through the Secretary-General to all other States Parties within one
month of the designation.
vessel is engaged in the smuggling of migrants by sea and is without
nationality or may be assimilated to a vessel without nationality may board
and search the vessel. If evidence confirming the suspicion is found, that
–5–
State Party shall take appropriate measures in accordance with relevant

domestic and international law.
Article 9
Safeguard clauses
1. Where a State Party takes measures against a vessel in
accordance with article 8 of this Protocol, it shall:
(a) Ensure the safety and humane treatment of the persons on
board;
(b) Take due account of the need not to endanger the security of
the vessel or its cargo;
(c) Take due account of the need not to prejudice the commercial
or legal interests of the flag State or any other interested State;
(d) Ensure, within available means, that any measure taken with
regard to the vessel is environmentally sound.
2. Where the grounds for measures taken pursuant to article 8 of
this Protocol prove to be unfounded, the vessel shall be compensated for
any loss or damage that may have been sustained, provided that the vessel
has not committed any act justifying the measures taken.
3. Any measure taken, adopted or implemented in accordance
with this chapter shall take due account of the need not to interfere with or
to affect:
(a) The rights and obligations and the exercise of jurisdiction of
coastal States in accordance with the international law of the sea; or
(b) The authority of the flag State to exercise jurisdiction and
control in administrative, technical and social matters involving the vessel.
4. Any measure taken at sea pursuant to this chapter shall be
carried out only by warships or military aircraft, or by other ships or
aircraft clearly marked and identifiable as being on government service and
authorized to that effect.
III. Prevention, cooperation and other measures

Article 10
Information
1. Without prejudice to articles 27 and 28 of the Convention,
States Parties, in particular those with common borders or located on routes
along which migrants are smuggled, shall, for the purpose of achieving the
objectives of this Protocol, exchange among themselves, consistent with
–6–
their respective domestic legal and administrative systems, relevant

information on matters such as:
(a) Embarkation and destination points, as well as routes, carriers
and means of transportation, known to be or suspected of being used by an
organized criminal group engaged in conduct set forth in article 6 of this
Protocol;
(b) The identity and methods of organizations or organized
criminal groups known to be or suspected of being engaged in conduct set
forth in article 6 of this Protocol;
(c) The authenticity and proper form of travel documents issued
by a State Party and the theft or related misuse of blank travel or identity
documents;
(d) Means and methods of concealment and transportation of
persons, the unlawful alteration, reproduction or acquisition or other misuse
of travel or identity documents used in conduct set forth in article 6 of this
Protocol and ways of detecting them;
(e) Legislative experiences and practices and measures to prevent
and combat the conduct set forth in article 6 of this Protocol; and
(f) Scientific and technological information useful to law
enforcement, so as to enhance each other’s ability to prevent, detect and
investigate the conduct set forth in article 6 of this Protocol and to
prosecute those involved.
2. A State Party that receives information shall comply with any
request by the State Party that transmitted the information that places
restrictions on its use.
Article 11
Border measures
1. Without prejudice to international commitments in relation to
the free movement of people, States Parties shall strengthen, to the extent
possible, such border controls as may be necessary to prevent and detect the
smuggling of migrants.
2. Each State Party shall adopt legislative or other appropriate
measures to prevent, to the extent possible, means of transport operated by
commercial carriers from being used in the commission of the offence
established in accordance with article 6, paragraph 1 (a), of this Protocol.
3. Where appropriate, and without prejudice to applicable
international conventions, such measures shall include establishing the
obligation of commercial carriers, including any transportation company or
the owner or operator of any means of transport, to ascertain that all
–7–
passengers are in possession of the travel documents required for entry into
the receiving State.
4. Each State Party shall take the necessary measures, in
accordance with its domestic law, to provide for sanctions in cases of
violation of the obligation set forth in paragraph 3 of this article.
5. Each State Party shall consider taking measures that permit, in
accordance with its domestic law, the denial of entry or revocation of visas
of persons implicated in the commission of offences established in
accordance with this Protocol.
6. Without prejudice to article 27 of the Convention, States
Parties shall consider strengthening cooperation among border control
agencies by, inter alia, establishing and maintaining direct channels of
communication.
Article 12
Security and control of documents
Each State Party shall take such measures as may be necessary,
within available means:
(a) To ensure that travel or identity documents issued by it are of
such quality that they cannot easily be misused and cannot readily be
falsified or unlawfully altered, replicated or issued; and
(b) To ensure the integrity and security of travel or identity
documents issued by or on behalf of the State Party and to prevent their
unlawful creation, issuance and use.
Article 13
Legitimacy and validity of documents
At the request of another State Party, a State Party shall, in
accordance with its domestic law, verify within a reasonable time the
legitimacy and validity of travel or identity documents issued or purported
to have been issued in its name and suspected of being used for purposes of
conduct set forth in article 6 of this Protocol.
Article 14
Training and technical cooperation
1. States Parties shall provide or strengthen specialized training
for immigration and other relevant officials in preventing the conduct set
forth in article 6 of this Protocol and in the humane treatment of migrants
who have been the object of such conduct, while respecting their rights as
set forth in this Protocol.
–8–
2. States Parties shall cooperate with each other and with

competent international organizations, non-governmental organizations,
other relevant organizations and other elements of civil society as
appropriate to ensure that there is adequate personnel training in their
territories to prevent, combat and eradicate the conduct set forth in article 6
of this Protocol and to protect the rights of migrants who have been the
object of such conduct. Such training shall include:
(a) Improving the security and quality of travel documents;
(b) Recognizing and detecting fraudulent travel or identity
documents;
(c) Gathering criminal intelligence, relating in particular to the
identification of organized criminal groups known to be or suspected of
being engaged in conduct set forth in article 6 of this Protocol, the methods
used to transport smuggled migrants, the misuse of travel or identity
documents for purposes of conduct set forth in article 6 and the means of
concealment used in the smuggling of migrants;
(d) Improving procedures for detecting smuggled persons at
conventional and non-conventional points of entry and exit; and
(e) The humane treatment of migrants and the protection of their
rights as set forth in this Protocol.
3. States Parties with relevant expertise shall consider providing
technical assistance to States that are frequently countries of origin or
transit for persons who have been the object of conduct set forth in article 6
of this Protocol. States Parties shall make every effort to provide the
necessary resources, such as vehicles, computer systems and document
readers, to combat the conduct set forth in article 6.
Article 15
Other prevention measures
1. Each State Party shall take measures to ensure that it provides
or strengthens information programmes to increase public awareness of the
fact that the conduct set forth in article 6 of this Protocol is a criminal
activity frequently perpetrated by organized criminal groups for profit and
that it poses serious risks to the migrants concerned.
2. In accordance with article 31 of the Convention, States Parties
shall cooperate in the field of public information for the purpose of
preventing potential migrants from falling victim to organized criminal
groups.
3. Each State Party shall promote or strengthen, as appropriate,
development programmes and cooperation at the national, regional and
international levels, taking into account the socio-economic realities of
–9–
migration and paying special attention to economically and socially

depressed areas, in order to combat the root socio-economic causes of the
smuggling of migrants, such as poverty and underdevelopment.
Article 16
Protection and assistance measures
1. In implementing this Protocol, each State Party shall take,
consistent with its obligations under international law, all appropriate
measures, including legislation if necessary, to preserve and protect the
rights of persons who have been the object of conduct set forth in article 6
of this Protocol as accorded under applicable international law, in particular
the right to life and the right not to be subjected to torture or other cruel,
inhuman or degrading treatment or punishment.
2. Each State Party shall take appropriate measures to afford
migrants appropriate protection against violence that may be inflicted upon
them, whether by individuals or groups, by reason of being the object of
conduct set forth in article 6 of this Protocol.
3. Each State Party shall afford appropriate assistance to
migrants whose lives or safety are endangered by reason of being the object
of conduct set forth in article 6 of this Protocol.
4. In applying the provisions of this article, States Parties shall
take into account the special needs of women and children.
5. In the case of the detention of a person who has been the
object of conduct set forth in article 6 of this Protocol, each State Party
shall comply with its obligations under the Vienna Convention on Consular
Relations, where applicable, including that of informing the person
concerned without delay about the provisions concerning notification to
and communication with consular officers.
Article 17
Agreements and arrangements
States Parties shall consider the conclusion of bilateral or regional
agreements or operational arrangements or understandings aimed at:
(a) Establishing the most appropriate and effective measures to
prevent and combat the conduct set forth in article 6 of this Protocol; or
(b) Enhancing the provisions of this Protocol among themselves.
Article 18
Return of smuggled migrants
1. Each State Party agrees to facilitate and accept, without undue
or unreasonable delay, the return of a person who has been the object of
– 10 –
conduct set forth in article 6 of this Protocol and who is its national or who
has the right of permanent residence in its territory at the time of return.
2. Each State Party shall consider the possibility of facilitating
and accepting the return of a person who has been the object of conduct set
forth in article 6 of this Protocol and who had the right of permanent
residence in its territory at the time of entry into the receiving State in
accordance with its domestic law.
3. At the request of the receiving State Party, a requested State
Party shall, without undue or unreasonable delay, verify whether a person
who has been the object of conduct set forth in article 6 of this Protocol is
its national or has the right of permanent residence in its territory.
4. In order to facilitate the return of a person who has been the
object of conduct set forth in article 6 of this Protocol and is without proper
documentation, the State Party of which that person is a national or in
which he or she has the right of permanent residence shall agree to issue, at
the request of the receiving State Party, such travel documents or other
authorization as may be necessary to enable the person to travel to and re-
enter its territory.
5. Each State Party involved with the return of a person who has
been the object of conduct set forth in article 6 of this Protocol shall take all
appropriate measures to carry out the return in an orderly manner and with
due regard for the safety and dignity of the person.
6. States Parties may cooperate with relevant international
organizations in the implementation of this article.
7. This article shall be without prejudice to any right afforded to
persons who have been the object of conduct set forth in article 6 of this
Protocol by any domestic law of the receiving State Party.
8. This article shall not affect the obligations entered into under
any other applicable treaty, bilateral or multilateral, or any other applicable
operational agreement or arrangement that governs, in whole or in part, the
return of persons who have been the object of conduct set forth in article 6
of this Protocol.
IV. Final provisions

Article 19
Saving clause
1. Nothing in this Protocol shall affect the other rights,
obligations and responsibilities of States and individuals under international
law, including international humanitarian law and international human
rights law and, in particular, where applicable, the 1951 Convention and the
– 11 –
1967 Protocol relating to the Status of Refugees and the principle of non-
refoulement as contained therein.
2. The measures set forth in this Protocol shall be interpreted and
applied in a way that is not discriminatory to persons on the ground that
they are the object of conduct set forth in article 6 of this Protocol. The
interpretation and application of those measures shall be consistent with
internationally recognized principles of non-discrimination.
Article 20
Settlement of disputes
l. States Parties shall endeavour to settle disputes concerning the
interpretation or application of this Protocol through negotiation.
2. Any dispute between two or more States Parties concerning
the interpretation or application of this Protocol that cannot be settled
through negotiation within a reasonable time shall, at the request of one of
those States Parties, be submitted to arbitration. If, six months after the date
of the request for arbitration, those States Parties are unable to agree on the
organization of the arbitration, any one of those States Parties may refer the
dispute to the International Court of Justice by request in accordance with
the Statute of the Court.
3. Each State Party may, at the time of signature, ratification,
acceptance or approval of or accession to this Protocol, declare that it does
not consider itself bound by paragraph 2 of this article. The other States
Parties shall not be bound by paragraph 2 of this article with respect to any
State Party that has made such a reservation.
4. Any State Party that has made a reservation in accordance with
paragraph 3 of this article may at any time withdraw that reservation by
notification to the Secretary-General of the United Nations.
Article 21
Signature, ratification, acceptance, approval
and accession
1. This Protocol shall be open to all States for signature from 12
to 15 December 2000 in Palermo, Italy, and thereafter at United Nations
Headquarters in New York until 12 December 2002.
2. This Protocol shall also be open for signature by regional
economic integration organizations provided that at least one member State
of such organization has signed this Protocol in accordance with paragraph
1 of this article.
3. This Protocol is subject to ratification, acceptance or approval.
Instruments of ratification, acceptance or approval shall be deposited with
– 12 –
the Secretary-General of the United Nations. A regional economic

integration organization may deposit its instrument of ratification,
acceptance or approval if at least one of its member States has done
likewise. In that instrument of ratification, acceptance or approval, such
organization shall declare the extent of its competence with respect to the
matters governed by this Protocol. Such organization shall also inform the
depositary of any relevant modification in the extent of its competence.
4. This Protocol is open for accession by any State or any
regional economic integration organization of which at least one member
State is a Party to this Protocol. Instruments of accession shall be deposited
with the Secretary-General of the United Nations. At the time of its
accession, a regional economic integration organization shall declare the
extent of its competence with respect to matters governed by this Protocol.
Such organization shall also inform the depositary of any relevant
modification in the extent of its competence.
Article 22
Entry into force
1. This Protocol shall enter into force on the ninetieth day after
the date of deposit of the fortieth instrument of ratification, acceptance,
approval or accession, except that it shall not enter into force before the
entry into force of the Convention. For the purpose of this paragraph, any
instrument deposited by a regional economic integration organization shall
not be counted as additional to those deposited by member States of such
organization.
2. For each State or regional economic integration organization
ratifying, accepting, approving or acceding to this Protocol after the deposit
of the fortieth instrument of such action, this Protocol shall enter into force
on the thirtieth day after the date of deposit by such State or organization of
the relevant instrument or on the date this Protocol enters into force
pursuant to paragraph 1 of this article, whichever is the later.
Article 23
Amendment
1. After the expiry of five years from the entry into force of this
Protocol, a State Party to the Protocol may propose an amendment and file
it with the Secretary-General of the United Nations, who shall thereupon
communicate the proposed amendment to the States Parties and to the
Conference of the Parties to the Convention for the purpose of considering
and deciding on the proposal. The States Parties to this Protocol meeting at
the Conference of the Parties shall make every effort to achieve consensus
on each amendment. If all efforts at consensus have been exhausted and no
– 13 –
agreement has been reached, the amendment shall, as a last resort, require
for its adoption a two-thirds majority vote of the States Parties to this
Protocol present and voting at the meeting of the Conference of the Parties.
2. Regional economic integration organizations, in matters within
their competence, shall exercise their right to vote under this article with a
number of votes equal to the number of their member States that are Parties
to this Protocol. Such organizations shall not exercise their right to vote if
their member States exercise theirs and vice versa.
3. An amendment adopted in accordance with paragraph 1 of this
article is subject to ratification, acceptance or approval by States Parties.
4. An amendment adopted in accordance with paragraph 1 of this
article shall enter into force in respect of a State Party ninety days after the
date of the deposit with the Secretary-General of the United Nations of an
instrument of ratification, acceptance or approval of such amendment.
5. When an amendment enters into force, it shall be binding on
those States Parties which have expressed their consent to be bound by it.
Other States Parties shall still be bound by the provisions of this Protocol
and any earlier amendments that they have ratified, accepted or approved.
Article 24
Denunciation
1. A State Party may denounce this Protocol by written
notification to the Secretary-General of the United Nations. Such
denunciation shall become effective one year after the date of receipt of the
notification by the Secretary-General.
2. A regional economic integration organization shall cease to be
a Party to this Protocol when all of its member States have denounced it.
Article 25
Depositary and languages
1. The Secretary-General of the United Nations is designated
depositary of this Protocol.
2. The original of this Protocol, of which the Arabic, Chinese,
English, French, Russian and Spanish texts are equally authentic, shall be
deposited with the Secretary-General of the United Nations.
IN WITNESS WHEREOF, the undersigned plenipotentiaries, being
duly authorized thereto by their respective Governments, have signed this
Protocol.
– 14 –

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Case 4:18-cr-00223-RCC-BPV Document 115 Filed 08/27/18 Page 1 of 19

1 Gregory J. Kuykendall, Bar # 012508

21 Amendment to the United States Constitution, and in support thereof states:

2 volunteering with No More Deaths (NMD). NMD is a coalition of religious organizations,

1 833, 846 (1998). At a minimum, these prosecutorial transgressions warrant dismissal of

2 the indictment under the court’s supervisory powers.

15 or indirectly, a financial or other material benefit.”9 This motivation-based limitation

1 governmental organizations, other relevant organizations and other elements of civil

2 society” in protecting and preserving the human rights of smuggled migrants.12

6 Further confirming this fact, judicial interpretation of treaty requirements by the

1 as not consonant with the principles deemed controlling in the interpretation of

15 assistance to migrants in distress was to alleviate their suffering. Moreover, the

2 continued to entertain complaints by defendants that their outrageous treatment by law

6 This is especially so in light of the Government’s more general international

19 inhuman or degrading treatment implicitly includes an obligation to facilitate protection of

6 to protection of this fundamental right “without any discrimination.” In applying criminal

19 illegality of the Government’s decision to prosecute humanitarian aid to migrants is

2 1073 at 1085 (dismissing for prosecutor’s discovery abuses and affirmative

1 4:17-mj-00341-BGM (U.S. v. Warren); No. 4:17-mj-00340-BGM (U.S. v. Deighan et al.);

2 No. 4:17-mj-339-BGM (U.S. v. Hoffman et al.).

2 I certify that on August 27th, 2018, I electronically transmitted a PDF version of

PROTOCOL AGAINST THE SMUGGLING OF

Advance copy of the authentic text. The copy certified

PROTOCOL AGAINST THE SMUGGLING OF MIGRANTS BY

(ii) That has been improperly issued or obtained through

necessary requirements for legally remaining in the State by the means

II. Smuggling of migrants by sea

smuggling of migrants by sea may request the assistance of other States

State Party shall take appropriate measures in accordance with relevant

III. Prevention, cooperation and other measures

their respective domestic legal and administrative systems, relevant

2. States Parties shall cooperate with each other and with

migration and paying special attention to economically and socially

IV. Final provisions

the Secretary-General of the United Nations. A regional economic

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