(CNN)For many in the overflow crowd attending the first two days of the federal trial of Scott Warren last week, the stakes were clear: Under the Trump administration, where does humanitarian aid to the thousands of migrants traversing the Arizona desert cross the line into a crime?
Trial begins for No More Deaths volunteer who aided migrants
Warren, a volunteer for the humanitarian aid group No More Deaths, faces three felony charges tied to his arrest on January 17, 2018, in Ajo, Arizona, for helping two undocumented migrants. Warren has pleaded not guilty to one count of conspiracy to transport and harbor the two men and to two counts of harboring undocumented immigrants. He faces up to 20 years in prison.
"This case is not about humanitarian aid," Nate Walters, the assistant US attorney leading the prosecution, said in his opening statement Wednesday. Rather, he said, it's about Warren's decision "to shield illegal aliens from law enforcement for several days."
But that is hardly a clear distinction for the many volunteers and aid groups who leave water and food in the desert, or who take part in search and rescue efforts -- or even for passersby who might stop to help struggling border crossers who've reached a highway. In the past, those who gave aid to migrants occasionally have faced charges, but many of the cases were dismissed or overturned. More often, the advance legal work of groups like No More Deaths and their outreach to the Border Patrol and other agencies have meant that authorities have tolerated their work.
The serious charges against Warren, along with escalating rhetoric from the Trump administration, suggest that the detente may be ending, which is raising concerns for the volunteers, mostly retirees and young people, who have come to observe the trial. It's "a difficult, frightening, profound moment for humanitarian workers," said Peg Bowden, a longtime volunteer with the Green Valley/Sahuarita Samaritans who sat in on the trial Wednesday. Bowden helps feed migrants at a soup kitchen in Nogales, Mexico, and teaches English to asylum seekers.
Over the past two decades, the deserts south and west of this city 70 miles north of the border have been among the busiest and deadliest crossing points from Mexico. From 2000 through the end of 2017, the Pima County Medical Examiner's office in Tucson recovered more than 2,800 human remains believed to be border crossers. Tucson is home to one of the largest Border Patrol stations in the country, and it teems with human rights and humanitarian aid groups. Last fiscal year, Border Patrol agents in the sector, which covers most of Arizona's border with Mexico, apprehended 52,172 people who crossed into the United States illegally.
The jury pool of 41 people for Warren's trial reflected a community whose lives and livelihoods are enmeshed with local border tensions, including a volunteer for the aid group Humane Borders, a Border Patrol agent, the wife of another agent, and the wife of a retired Customs and Border Protection officer. None wound up on the jury.
Warren's case revolves around a small house known as The Barn on the outskirts of Ajo, west of Tucson and about 40 miles north of the border. No More Deaths and several other aid or rescue groups use the property as a staging area for their work in the surrounding desert, which includes leaving water and food on migrant routes.
Walters, the assistant US attorney, said jurors would see evidence that Warren spoke by phone with a Mexican-American activist, Irineo Mujica, before Mujica transported two undocumented immigrants -- Kristian Perez-Villanueva, of El Salvador, and Jose Arnaldo Sacaria-Goday, of Honduras -- to The Barn. Warren showed up there a few hours later.
Greg Kuykendall, Warren's defense attorney, disputed the claim, saying Warren spoke with Mujica about recovering the remains of some border crossers Mujica knew to be west of Ajo and organizing some humanitarian aid at a shelter. Mujica, who has not been charged in the case, is listed as a possible witness for the defense.
Prosecutors showed surveillance videos from two Arizona gas stations of the two border crossers, as well as selfies that Perez-Villanueva and Sacaria-Goday took of themselves at The Barn. They cited the men's smiles as evidence the men were not in medical distress and had not needed to be sheltered for three days.
Kuykendall described Warren as a law-abiding good Samaritan whose actions in providing the men with food, water and shelter were "squarely and fully within the law in the midst of a humanitarian crisis in Ajo." He said that No More Deaths is a ministry of the Unitarian Universalist Church of Tucson, and follows long-established written protocols and procedures -- in which Warren was well trained -- to make sure the aid it provides "is effective, responsible and legal."'
He said Warren was following those medical and legal protocols when he was arrested by Border Patrol agents surveilling The Barn on January 17, 2018. When the men showed up, Kuykendall said, Warren had consulted with a nurse and a doctor. They advised him to keep the two men off their feet for several days and make sure they were monitored for dehydration and treated for blisters, cough and chest pains. The nurse had visited The Barn the next day and repeated this advice.
"Scott Warren never committed anything but basic human kindness," Kuykendall told jurors.
Repeatedly, Judge Raner Collins warned spectators not to react with groans or other sounds to anything the attorneys or witnesses said. At one point, he posted six marshals at the back of the room and warned that anyone making noise would be escorted out.
"I do think they're making an example of him," said Mark Warren, Scott Warren's father, outside the courtroom. "He's the means by which they mean to send a message."
Warren's trial is expected to continue until at least June 7. Meanwhile, he awaits a ruling from Collins on separate misdemeanor charges connected to leaving food, water and medical supplies in June 2017 on a migrant route in the Cabeza Prieta National Wildlife Refuge, a wilderness area southwest of Ajo. Eight other No More Deaths volunteers were also charged with dropping supplies in 2017. Four were sentenced March 1 to $250 fines and 15 months of probation; four others reached agreements in late February to pay $250 fines and receive civil penalties.
No More Deaths, founded in 2004, generally has operated without penalties, but its relations with the Border Patrol have not always been smooth. Volunteers occasionally have faced charges in the past.
"Trump amped up a lot of this fear, but 15 years ago I experienced exactly the same thing," said Shanti Sellz, a vegetable farmer in eastern Iowa. Sellz was a college student and visiting summer volunteer at No More Deaths in 2005 when she and another volunteer, Daniel Strauss, were arrested by Border Patrol agents while driving three dangerously ill undocumented immigrants to a hospital in Tucson. They spent three days in federal custody and were charged with conspiracy and transporting illegal aliens, both felonies.
"We argued that humanitarian aid is never a crime," Sellz said by phone.
That case, too, wound up before Judge Collins. In September 2006, he dismissed the charges, noting that No More Deaths had shared its protocols with the Border Patrol to make sure it was following the law, and that "for three years, the conduct of people similar to those now charged in this case had been, at least tacitly, approved by the Border Patrol."
"The Court is making no ruling as to whether or not the protocol is or is not a violation of the law. That issue must wait for another day," Collins wrote, adding that, for Sellz and Strauss, "further prosecution would violate the Defendant's due process rights."
Another No More Deaths volunteer, Dan Millis, was arrested in February 2008 and convicted of littering for leaving food and water on a migrant trail through the Buenos Aires National Wildlife Refuge, in southern Arizona.
"On February 20 I found the body of a 14-year-old girl who had died" in the desert, Millis said. "Two days later I got the littering ticket. It broke my heart."
Millis said he sees the Warren case as the part of the same old story from the federal government on border issues, he said. But he said he was heartened by the initial outcome of his case. "When I was convicted, the judge gave me a suspended sentence," he said, "which I thought was indicative of his feeling that it wasn't worth punishing me for it."
Millis spent a year and a half appealing his conviction, which was overturned in 2009 by the 9th Circuit Court of Appeals. In the interim, he found a job with an environmental organization.
"I'm pretty sure I'm the only convicted litterer ever hired by the Sierra Club," he said.