Bob Stewart's First Day in Court
http://www.sierratimes.com/arjj062200.htm by Liz Andreasen
Posted: 06.22.00
Robert Stewart's preliminary hearing was held today at 2:11pm in the Federal District Court in Phoenix, Arizona. Stewart was arrested last week when authorities had
reason to believe he might be in possession of one or more firearms which he is prohibited from owning due to a previous (entrapment) conviction. The proceedings started
with a sidebar hearing between the judge and the prosecution and defense attorney after which Mr. Stewart was unshackled at the judge's order so he could assist in his
defense.
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 government attempted to make a point by refering to a another case but the judge responded by saying this
hearing was not the time for citing cases.
Judge Anderson turned his attention to Stewart's defense attorney, Mr. Haney, asking him if " he had anything to add regarding the detention issue such as surprise, or
prejudice. Mr. Haney indicated his surprise at the second count and asked how it was that the Grand Jury could add to the existing charges.
Judge Anderson made his first ruling in this case, stating that "this is a Preliminary Hearing on Count 1." He further stated "there is no need for a hearing on count 2."
Judge Anderson denied the government's complaint on the second count and dismissed it without prejudice, stating that it was unfair to the defendant, Mr. Stewart.
However, he also said it would necessitate a continuance and further detention of the defendant.
The government's attorney sought to keep Mr. Stewart in custody because, "he poses a flight risk, and is a danger to the community." He predicated this belief upon
18USC A7 1431 and=A7922 (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 timeline 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 and he 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 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 kits and parts?" Mr. Tannis stated
that the kits "readily convert to a firearm and that Mr. Stewart does not have a Federal Firearms License."
The judge asked, "If only the wife worked in this business, would it be illegal?" Mr. Tannis replied in the negative and 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 $1,900 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, "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, "The 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, stating 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.
Agent Bettendorf stated that he has been a Special Agent for the ATF for 10 plus years, and recited his relevent education and work experience. He said his primary duty is
conducting criminal investigation, but when asked by Mr. Haney, how many investigations he has conducted, Mr. Bettendorf did not answer. The agent only said that he
has been in this job several months. When questioned further, Agent 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.
The government attorney asked a few more questions of the agent and then asked him to identify the defendant, which he did. Mr. Bettendorf later described how 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
USCA7 921 and A7 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 involved in the execution of the search warrant.
When asked what was found in the search, Agent. 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 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, Bettendorf said he did. 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 it was 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 said she was not.
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. (Asking what percentage of a thing has to be comlete in order for it to be complete reminds us of a scallawag who recently had trouble
defining the word "is.") Mr. Haney asked agent Bettendorf if he had heard of the criteria that said "Eighty percent 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 the field agents discussed 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, "Yes; you can use a Dremel tool. The judge
asked if you could buy this tool at Home Depot? Agent Bettendorf said you could.
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 understood 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. It's our understanding that this is patently false since 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 government's case against Mr. Stewart, 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. (This
was the second indication that there is a maximum I.Q. requirement for federal employment.)
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 was "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.
There was a brief inaudible question by the prosecuting attorney, then the judge asked Mr. Haney if he had any offer of proof. Mr. Haney said he didn't 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 website, 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 affixed post-it notes to 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, 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 and 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, and that he has no other criminal history except for the one conviction in Utah.
The judge then addressed Mr. Stewart directly. "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 states 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 won'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 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 to testify and that it would take approximately two weeks. He then asked if 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." (See? That I.Q. thing kept him from realizing that copies could be made and given to
Mr. Stewart so that he might continue supporting his family.) 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. Mr. Haney told the judge that Mr. Stewart had appropriate street clothes with him. The judge said that he
could change into them and be processed to leave.
Bob Stewart was later released and was interviewed Thursday night on a shortwave/Internet radio program about his recent, unfortunate targetting by the ATF.
So far, it looks as though he has a good attorney and a decent judge. Both of them appeared to have more of their wits about them in court this day.
The SierraTimes will keep you informed on this continuing saga as it developes.
Stay tuned...
))!!)