ORDER

BERNARDO P. VELASCO, Magistrate Judge.

Currently pending before the Court is Defendant Scott Daniel Warren's Motion to Dismiss Charges Pursuant to the Religious Freedom Restoration Act (Doc. 58); Motion to Dismiss Charges for Violation of International Law (Doc. 59); and Motion for Discovery into Selective Enforcement (Docs. 47 & 60). The Government has responded to each motion, and Defendant replied. Govt.'s Response to Def.'s Mot. to Dismiss Charges Pursuant to the Religious Freedom Restoration Act (Doc. 65); Def.'s Reply in Support of Mot. to Dismiss Charges Pursuant to the Religous [sic] Freedom Restoration Act (Doc. 72); Govt.'s Response to Def.'s Mot. to Dismiss Charges for Violation of Int'l Law (Doc. 67); Def.'s Reply in Support of Mot. to Dismiss Charges for Violation of Int'l Law (Doc. 70); Govt.'s Response to Def.'s Mot. for Discovery into Selective Enforcement (Doc. 66); Def.'s Reply to Govt.'s Response to Mot. for Discovery into Selective Enforcement (Doc. 71). Defendant Scott Daniel Warren is charged with one (1) count of operating a motor vehicle in a wilderness area, and one (1) count of abandoning property in a national wildlife refuge. Information (Doc. 1).

The Court was recently reassigned to preside over these cases. These cases raise issues similar to those previously considered by this Court in United States v. Warren, Case Number CR-18-00223-TUC-RCC (BPV). The Parties have adequately presented the facts and legal arguments in their briefs and supporting documents, and the decisional process would not be significantly aided by oral argument.

I. FACTUAL BACKGROUND

The Court has previously outlined the relevant factual background in the May 29, 2018 Order (Doc. 35). Those recitations are adopted herein by reference.

II. ANALYSIS

A. Federal Rules of Criminal Procedure 12

Rule 12, Federal Rules of Criminal Procedure provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). "A pretrial motion is generally capable of determination before trial if it involves questions of law rather than fact." United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986) (citations and quotations omitted). "[A] district court may make preliminary findings of fact necessary to decide the questions of law presented by pre-trial motions so long as the court's findings on the motion do not invade the province of the ultimate finder of fact." Id. (citations omitted). "As the ultimate finder of fact is concerned with the general issue of guilt, a motion requiring factual determinations may be decided before trial if trial of the facts surrounding the commission of the alleged offense would be no assistance in determining the validity of the defense." Id. (citations omitted); see also United States v. Schafer, 625 F.3d 629, 635 (9th Cir. 2010). Accordingly, "the district court must decide the issue raised in the pretrial motion before trial if it is `entirely segregable' from the evidence to be presented at trial." Schortt Accountancy Corp., 785 F.2d at 1452 (citations omitted). "If the pretrial claim is substantially founded upon and intertwined with evidence concerning the alleged offense, the motion falls within the province of the ultimate finder of fact and must be deferred." Id. (quotations and citations omitted). As such, "a Rule 12(b) motion to dismiss is not the proper way to raise a factual defense." United States v. Nukida, 8 F.3d 665, 669 (9th Cir. 1993) (citations omitted). "[T]he unavailability of Rule 12 in determination of general issues of guilt or innocence . . . helps ensure that the respective provinces of the judge and jury are respected, . . . and that the facts are fully developed before disposition of the case." Id. at 670 (citations omitted).

B. Religious Freedom Restoration Act ("RFRA")

Defendants seek dismissal of the Information "because the Government may not prosecute him for exercising his sincerely held religious beliefs in the necessity to provide humanitarian aid to fellow human beings in need and recover and honor the dead." Def.'s Mot. to Dismiss Charges Pursuant to RFRA (Doc. 58) at 5.

This Court presided over the May 11, 2018 evidentiary hearing in United States v. Warren, Case Number CR-18-223-TUC-RCC (BPV), the transcript of which Defendant provided with his motion. See Def.'s Mot. to Dismiss Pursuant to RFRA (Doc. 58), Exhibit "1." As the Court observed in that case "No testimony was presented that the statutes at issue compelled the Defendant to do anything in violation of his religious beliefs." United States v. Warren, Case No. CR-18-223-TUC-RCC (BPV), Report & Recommendation 5/31/2018 (Doc. 81) at 3, adopted by Order 9/17/2018 (Doc. 127). Moreover, "[t]he laws at issue are of a general nature that apply to all and do not single him or any identifiable group into acting in conflict with their religious beliefs." Id. "The Defendant is at best told not to violate the laws that apply equally to all." Id. The Court is inclined to deny Defendant's motion in its entirety; however, because Defendant has not had the opportunity to testify in this case, this denial will be without prejudice to re-assert the defense at trial.

C. International Law

Defendant seeks dismissal of the indictment, alleging that the "Protocol Against Smuggling of Migrants by Land, Sea, and Air renders their conduct non-criminal. Defs.' Mot. to Dismiss Charges for Violation of International Law (Doc. 59) at 5-11.

The stated purpose of the Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations' Convention Against Transnational Organized Crime ("the 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." Def.'s Mot. to Dismiss Charges for Violation of International Law (Doc. 59), The Protocol (Exh. "1"), Art. 2. "Smuggling of migrants" is defined as "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." Id., Exh. "1" at Art. 3, subsec. (a). "Th[e] 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." Id., Exh. "1" at Art. 4. The Protocol mandates "[e]ach State Party" to "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" various activities related to the smuggling of migrants, including providing false documents; acting as an accomplice; and acts which endanger or degrade migrants.1 Id., Exh. "1" at Art. 6, subsecs. 1-3. Article 6 concludes with the following admonition: "Nothing in this Protocol shall prevent a State Party from taking measures against a person whose conduct constitutes an offence under its domestic law." Id., Exh. "1" at Art. 6, subsec. 4. The Protocol also provides for the return of smuggled migrants, and directs that it shall not be construed to "affect the other rights obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law" prior to the Protocol's authorization. Def.'s Mot. to Dismiss Charges for Violation of International Law (Doc. 59), Exh. "1" at Arts. 18 & 19. As this Court noted in Defendant's felony matter, "Article 20 of the Treaty, which provides the enforcement mechanism for violations of the Treaty, was not adopted." United States v. Warren, Case No. CR-18-00223-TUC-RCC (BGM), Report & Recommendation 11/7/2018 (Doc. 134).

"[T]reaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties." Air France v. Saks, 470 U.S. 392, 396, 109 S.Ct. 1338, 1341, 84 L.Ed.2d 289 (1985) (quoting Choctaw Nation of Indians v. United States, 318 U.S. 423, 431-32, 63 S.Ct. 672, 677-78, 87 S.Ct. 877 (1943)) (alterations in original). "The analysis must begin, however, with the text of the treaty and the context in which the written words are used." Id. (citations omitted).

Defendant asserts that he is a humanitarian aid worker who is entitled to protection from domestic criminal prosecution based on the Protocol. As an initial matter, nothing in Defendant's factual basis suggests that any migrants were smuggled. Moreover, nothing in the plain language of the Protocol can be read to suggest that humanitarian aid work is a defense to a signatory State Party's ability to enforce its own domestic law. In fact, the Protocol's plain language reinforces the ability of signatories to enforce their own criminal laws. See Defs.' Mot. to Dismiss Charges for Violation of International Law (Doc. 72), Exh. "1" at Art. 6, subsec. 4. Furthermore, the text of the Protocol demonstrates that it is not self-executing—the terms of the Protocol anticipate further action, and as such is "merely [an] executory agreement[] . . . and ha[s] no effect on domestic law absent additional governmental action." Islamic Republic of Iran v. Boeing Co., 771 F.2d 1279, 1283 (9th Cir. 1985). Finally, there is nothing in the Protocol to support a private right of action by Defendants. See Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975) (delineating four-part test to determine a private right of action including whether the Protocol created a federal right in favor of Defendants).

Defendant additionally seeks dismissal based upon the Government's alleged "outrageous conduct." Defendant alleges a due process violation, because "[i]n bringing this case, the Government has flagrantly disregarded its obligations in truly outrageous ways." Def.'s Mot. to Dismiss Charges for Violation of International Law (Doc. 59) at 13. As noted, supra, the Protocol is neither self-executing nor does it provide a private right of action for Defendant. Moreover, the Government enforcing its own domestic laws regarding permits for entrance into a wildlife preserve can hardly be considered "outrageous." Accordingly, Defendant's motion to dismiss (Doc. 59) is denied.

D. Selective Enforcement

Defendant seeks discovery relevant to selective enforcement. See Def.'s Mot. for Discovery Into Selective Enforcement (Doc. 60) at 1. Defendant seeks the following discovery:

Def.'s Mot. for Discovery Into Selective Enforcement (Doc. 60) at 1-3.

"A government entity has discretion in prosecuting its criminal laws, but enforcement is subject to constitutional constraints." Rosenbaum v. City and County of San Francisco, 484 F.3d 1142, 1152 (9th Cir. 2007) (citing Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). "To prevail on its claim under the equal protection clause of the Fourteenth Amendment, a plaintiff must demonstrate that enforcement had a discriminatory effect and the police were motivated by a discriminatory purpose." Id. (citations omitted). "To establish a discriminatory effect . . ., the claimant must show that similarly situated individuals . . . were not prosecuted." Id. at 1153 (quotations and citations omitted) (alterations in original). "To show discriminatory purpose, a plaintiff must establish that the decision maker . . . selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of' its adverse effects upon an identifiable group." Id. (quotations and citations omitted) (alterations in original).

Defendant submitted supplemental authority in support of his motion, urging that United States v. Sellers, 906 F.3d 848 (9th Cir. 2018), urging the Court to allow further discovery regarding selective enforcement. As an initial matter, in Sellers, the Court was concerned that the prosecution of drug dealers was focused on black dealers to the exclusion of all others so that there was selective prosecution. In the case before the Court, the only people exceeding the scope of their permits and abandoning property are associated in some way with "humanitarian groups." Consequently, the enforcement is not selective, but rather against all individuals engaged in this behavior rather than their association with any group. Defendant seeks broad discovery that is unwarranted in this case. Accordingly, Defendant's Motion for Discovery Into Selective Enforcement (Doc. 60) shall be denied. . . .

III. CONCLUSION

Based upon the foregoing, the Court finds it appropriate to allow Defendants to urge a RFRA defense at the time of trial, but denies all other motions in their entirety. Accordingly, IT IS HEREBY ORDERED that: