Notes on Preliminary Hearing for Robert Stewart
June 22, 2000
Federal District Court, Phoenix, AZ
Magistrate Lawrence O. Anderson, 5th Fl. Courtroom
Time of Hearing 2:11p.m. PST
Defense Attny: Mr. Thomas Haney, Public Defender
Gov't Attny: Mr. Welty, subbing for Mr. Welty, Mr. Tannis or Dennis, I couldn't hear clearly.
Prior to the official start of the Preliminary hearing, Judge Anderson called
For Mr. Haney and Mr. Tannis come forward for a side-bar discussion.
After the side-bar was concluded, Mr. Haney requested the judge unshackle Mr. Stewart so that he could assist in his defense during the hearing. The Judge ordered him unshackled.
The judge stated that just prior to this hearing that he had been handed an amended complaint adding a Count 2. Count 2 was for the same date as count 1, and was for unlawful possession of a machine gun. The Attorney for the Gov't mentioned the Spyer's case. The judge said that this hearing was not the time for citing cases.
Judge Anderson turned his attention to Attorney Haney asking him if " he had anything to add regarding detention issue such as surprise, or prejudice." Mr. Haney responded that "since this issue must go to the Grand Jury, and the second added count is a surprise to us, that the Grand Jury could add more counts itself."
Judge Anderson made his first ruling in this case, stating that "this is a Preliminary Hearing on Count 1." Further "there is no need for a hearing on count 2." Judge Anderson denied the government's complaint on count 2 and dismissed it without prejudice, stating further that it was unfair to the defendant, Mr. Stewart. That adding
That count 2 would necessitate a continuance and further detention of the defendant.
The hearing continued at this point with the attorney for the government seeking to detain Mr. Stewart in custody because "he poses a flight risk, and is a danger to the community." He predicated this belief upon 18USC § 1431 and §922 (G) (1), which cover this issue as a crime of violence, as well as citing the Dillard decision of the 2nd
Circuit Court of Appeals.
The government attorney then recited the time-line leading up to the arrest of Mr. Stewart. This was not a clean recitation, as the Judge interposed his own questions upon the attorney. Mr. Tannis lead off with the search warrant being executed on June 16th of 2000 and that they placed significant weight upon a newspaper article run by the Arizona Republic where Mr. Stewart admitted his prior felony conviction in Utah. Mr. Stewart has no other criminal past or record, at this point the judge objected to the insertion of the newspaper article by the government, but allowed the recitation to continue. Mr. Tannis stated that Mr. Stewart is 61 years old, he has 3 minor children under the age of 8 and has been married to the current Mrs. Stewart for 8 or 9 years. Mr. Tannis then said that Mrs. Stewart owns the business and that the they sell kits for customers to build .50 caliber firearms. At that point, Judge Anderson asked, "is it the government's position that Mr. Stewart is a danger due to the kit and parts?" Mr. Tannis stated that the kits "readily convert to a firearm and that Mr. Stewart does not have a Federal Firearms License."
At this point the discussion was between the Judge and the attorney for the government. The judge asked, " if the wife only worked in this business would it be illegal?" Mr. Tannis replied, "no." Mr. Tannis then gave a recitation of Mr. Stewart's assets. He owns two homes, his primary residence having an
approximate value of $250,000, that the kits his business sells go for $1900 each and that over the last 10 years he has sold approximately 3000 of the kits. Judge Anderson then asked the attorney for the government, " what does all of this have to do with the case?" Mr. Tannis answered that "Mr. Stewart poses a flight risk due to his financial success." Mr. Tannis then
went through the Utah conviction information, that it occurred in 1994, he was convicted on possession and transfer of a firearm receiving a sentence of 2 years in prison and probation, which was completed with no further arrests occurring. The judge then said "defendant has only the one prior, with a light sentence and probation, doesn't sound like a danger to me." Mr. Tannis made an inaudible comment to which the defense attorney Mr. Haney objected. The judge noted the objection and the prosecuting attorney did not repeat the behavior.
Mr. Tannis continued his litany against Mr. Stewart, he stated that " due to Mr. Stewart's Unacceptance of the current gun laws, his prior conviction of 6years ago, and his staunch second amendment beliefs, and his sale of the kits, with the kits being "inherently dangerous……because "who know where the guns will end up?"
At this point, the court swore in ATF Special Agent Bettendorf as the only witness called
to testify for the government. As a part of the recitation requested by the prosecuting attorney, Mr. Bettendorf, he stated that he has been a Special Agent for the ATF for 10 plus years, receiving his BS at ASU in Criminal Justice in 1989, that he has spent
8 years in Southern California in the Orange County office of the ATF. Under questioning of Mr. Haney, Mr. Bettendorf said his primary duties are criminal investigations, but when asked how many investigations he has
conducted, Mr. Bettendorf did not answer. Mr. Bettendorf then said that he has been in this job several months. When questioned further, Mr. Bettendorf answered that he received his investigatory information from ATF Inspectors who do the background checks on individuals and through surfing the Internet for gun sites and through reading gun specific magazines and newspapers, such as ShotGun News. He further stated to the court
that he was provided the information regarding Mr. Stewart's business by the Regulatory department of the ATF in March of this year. At that point he said that he made a request for and received a copy of Mr. Stewart's Utah conviction, at this point
Mr. Tannis asked him about how he identified Mr. Stewart, he said that it was the "same name, social security number and that the booking photograph and the current description of Mr. Stewart all matched. He was then asked if he saw that same man that he had identified in the court, he answered, "Yes, he is the man sitting over there, pointing to Mr. Stewart."
Mr. Bettendorf then stated that in April of this year, an undercover agent, Mr. Scott Tanaki went to the Stewart residence and purchased one of the kits from Mr. Stewart.
This kit was sent from the local office to the ATF's technical branch in Washington, D.C. where an officer at the technical branch informed them that the kit "was readily convertible." Thus falling under Title 18 USC§ 921 and § 922 (G) (1). On June 14th, they obtained a search warrant from Judge Stettler and on June 16th they executed
that warrant at the Stewart residence in Mesa, Arizona. There were 10 ATF officers and 3 Mesa Police in attendance of this service.
When asked what was found in the search, Mr. Bettendorf stated that they recovered from the master bedroom a .357 Ruger Blackhawk, which was on a shelf in the closet by itself above the rack holding men's slacks. He then
stated that they recovered a Winchester lever-action in .357 located on a shelf above the men's clothes in the closet.
There were numerous items of paperwork in plain view with the names of Mr. and Mrs. Stewart on them.
Agent Bettendorf did not speak with Mr. Stewart, since he had requested an attorney, and no further interviews
were attempted. He did however, speak with Mrs. Stewart asking her about the pistol, and he said she mentioned
that "the ATF planted it." As far as the Winchester, Bettendorf said that Mrs. Stewart "thought it was a BB gun."
When asked by the prosecuting attorney about whether he did a background nexus check on the pistol, Mr.
Bettendorf answered, "yes". His information was that the pistol was made in Connecticut, and thus it was covered
under Interstate Commerce.
Attorney Haney then questioned Agent Bettendorf on who are the ATF Inspectors, to which he answered, James
Jewell, and Chad Yale. Bettendorf said "that it is their job to do background checks."
Mr. Haney then asked Bettendorf if "special agent Scott Tanaki identified himself to Mr. Stewart as an ATF agent?
He was met with an answer of "no."
Haney then asked the agent "do the kits meet the definition of a firearm?" Bettendorf answered, "yes." Mr. Haney
then followed with " is this definition under ATF regulations?
Bettendorf answered, "no, just under U. S. code."
Mr. Haney then asked, "what part of the kit is incomplete?"
Bettendorf answered, "the receiver." At this point it became a discussion of what percentage of completion
makes the receiver completed. Mr. Haney asked agent Bettendorf if he had heard of a statement " eighty per cent
or less isn't complete?" Bettendorf answered, "no, only from Mr. Stewart have I heard that statement."
Bettendorf was then asked, "at what point do we know if we have a gun, or a potential gun?" He said it would
have to be sent to the D.C. technical department to see if it meets the agency's criteria.
Mr. Haney then asked the agent if there were any other textual discussions, and he said that they discussed (the
field agents) the fact that the receiver was readily convertible by cutting out two holes. The judge then asked,
"would a machinist be able to do this? A child? An attorney? He was answered with a yes; you can use a Dremel
tool. The judge then said can you buy this tool at Home Depot? Agent Bettendorf said," yes."
Mr. Haney then went into a line of questioning regarding the Blackhawk pistol attempting to determine where it
was manufactured and how that played into the ATF's
Interest in the ownership of the gun. The attorney asked where the agents get their information on what is made
at the Sturm-Ruger plant in Prescott. The agent replied that they had literature. Haney asked, "is it print
literature?" " Does it cover last year's manufacturing or next year's products? " Bettendorf replied that " as he
understands it, they make only one line of products at that location in Prescott." Bettendorf then made a big
mistake, he said that the Prescott Sturm-Ruger plant only makes Centerfire arms, and that the Blackhawk is a
semi-auto pistol. This is patently false! The Blackhawk is a six-shot "western style" pistol.
The questioning then turned back to where the pistol was made. Mr. Haney asked if the agent had a serial
number directory and if the agent checked it. He said, yes he had a directory and he had checked it stating that
the gun was manufactured in Southport, Connecticut. This is also a hole in the logic, since this is the Corporate
Headquarters, and as such the stamping of the corporate headquarters does not mean that all products are
manufactured at the corporate offices!
Mr. Haney then turned back to the plant in Prescott. He asked if the agent had talked to anyone in the Prescott
facility to ask if they did make the pistol. The agent said a firearm trace was made, but that he has not received a
report from them. Bettendorf then said that he had seen the pistol on the closet shelf prior to it being taken into
evidence, that it was sitting alone on the shelf in its holster, that it was unloaded and that they found no
ammunition for it in the bedroom. Haney then asked if Mr. Stewart was in the room? Did the agent know if Mr.
Stewart slept in the room or not? Did you apprehend the children at the same time as their parents? At this point,
the prosecution objected and Mr. Haney withdrew the question. The answer to the remaining questions were
"no."
Haney then rattled off three more questions to Bettendorf rapid fire; "did you dust for fingerprints on the pistol?
The answer was no. Who took the pistol into evidence? Bettendorf answered "agent Scott Tanaki." Haney asked,
"who owns the pistol?" Bettendorf answered " there's been no return on the trace."
Haney said so the weapon in the house is Stewart's because no one else has admitted ownership? Bettendorf said
no one admitted ownership. Due to the answers provided by Mrs. Stewart the agent assumed that the guns were
Mr. Stewart's. That the Nexus string shows a relationship to the manufacturer, and whether it was foreign or
interstate transport to get it to Arizona, and into Mr. Stewart's possession.
There was a brief inaudible question by the prosecuting attorney, and the judge then asked Mr. Haney if he had
any offer of proof? Mr. Haney said, no, but that he wanted to argue the Probable Cause. Judge Anderson
interjected that he was in receipt of a cover letter, and has also received 100 faxes from individuals, those who
have known Mr. Stewart only through his Web site, all across the country, and those who know Mr. Stewart and
his family personally. He has been trying to separate out the clients, and
Supporters of his second amendment position from those who are family and friends.
He noted to the defense and prosecution that he had post-it noted those faxes from personal friends and family
for them.
Mr. Haney then asked the judge to return to the Probable Cause portion of the hearing.
Judge Anderson stated that the government's position is that the gun was found in the house, that meets the
probable cause in the context of this case. But, in return there can be no probable cause just because the gun is
in the house, it is not reasonable to assume that Mr. Stewart is the owner.
Prosecutor Dennis said that possession NOT ownership is the issue, that since the other adult in the home, Mrs.
Stewart thought the long rifle was a BB gun, it was a good assumption that Mr. Stewart was the owner and
possessor of the weapons found in the home.
Judge Anderson said the court finds the crime of felony possession under U.S. code, but that it is difficult for lay
people to understand. He said that he has adopted the 2nd Circuits ruling of May 22nd of this year, where a crime
of violence and felony possession is the same thing. So they must meet in this case. The judge said that the
government failed to prove this. Judge Anderson said that Mr. Stewart is not a danger to the community nor is he
a flight risk. He is the father of 3 kids under 8 years, he has lived in this area for 4 years, that he has no other
criminal history except for the one in Utah.
The judge then addressed Mr. Stewart directly. He said, " you are a law-abiding citizen with one flaw, you don't
believe in gun laws. You don't believe they apply to you. I have read the Constitution, and the Supreme Court
cases on gun laws. I'm aware that there are two major views on the second amendment, one is the individual
argument, where the right is an individual right, and two, protection of the state's from the federal government,
or the collective argument. I believe that the 1939 case of U.S. v. Miller
adopts a collective right to gun ownership. This position was affirmed in 1980 Supreme Court ruling of U.S. v.
Lewis and in the 9th Circuit's ruling of Hickman v. Block, 81 F. 3d. 98, which states those individuals can't assume
an individual right for something that is collective. I also base my decision on Brigham Young University Law
Review article from 1998, Lawyer's Guide to the Second Amendment. I do not interpret the law that is up to the
Supreme Court, they change the laws, I am just a lowly magistrate, and it is no reflection on you.
At this point, the judge called Mr. Stewart and his attorney, Mr. Haney to the podium.
The judge said " I do find probable cause for dominion and control of the .357." I will also order you be released
on your own recognizance. I trust that you don't commit any
State, federal, or local crimes. I will set a hearing for the government to prove whether your business is or isn't
against the law. You may continue as an active participant in your company. Don't try to leave Maricopa County,
unless you notify the Court in advance. Judge Anderson then asked Mr. Stewart if he had a passport, he said he
didn't, the judge said, "don't get one" without the approval of the Court. Mr. Stewart you may not possess
firearms, destructive devices or ammunition, unless it is necessary to the continuation of your business. You may
continue in your business until I say you can't.
You must keep in weekly contact with your attorney, by every Friday at noon you must call his office and ask if
there is a message for you from the Judge, if there is no message, then you have met the terms of the contact.
At this point the Judge spoke to the attorneys, saying that the only remaining issue was the hearing on the
business. The prosecuting attorney said he would need to have someone from D.C. fly out here to testify that would take approximately two weeks. He then asked would July 6th be all right? The judge then asked if one hour
would be a reasonable amount of time for the hearing. The prosecutor said one to two hours. Defense attorney Haney said two hours would be reasonable, only if Mr. Stewart chooses to continue his business. The Judge
asked why there was a problem with continuing the business. Mr. Haney stated that in the raid, the ATF took all the records of the business and the client lists, thus preventing Mr. Stewart from lawfully continuing his business.
Mr. Haney asked if the records could be returned. The prosecutor said, "no, they are part of the evidence against the defendant and are a part of our case." Judge Anderson said that the hearing on the business "must happen." He set the time for two hours, one hour for each side to present their cases and any witnesses. The hearing was set for July 10th at 1:30 p.m. PST in Judge Anderson's court.
At this point, Judge Anderson ordered Mr. Stewart released now. Mr. Haney told the judge that Mr. Stewart had appropriate street clothes with him. The judge said that he could change into them and then is processed to leave.
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"Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American." Tench Coxe 2/20/1788
