U.S. vs.
Stewart Hearing Gives Another Pause
by Angel Shamaya
Founder/Director
KeepAndBearArms.com
January 29, 2001
Bob Stewart's fair and speedy trial seems to be
neither. He was raided by the Bureau of Alcohol, Tobacco and
Firearms and arrested in June for selling his .50 caliber Maadi-Griffin kit. The
ATF said it was "readily convertible," and therefore "is a
gun." Earlier reports:
Today's hearing was to determine whether or not
the court would grant a Franks hearing (evidentiary hearing) in order for the
defense to question the federal agents involved in the case. The process of
requesting a Franks hearing refers to Franks v. Delaware, 438 U.S. 154
and relates to an assertion by the defense that false or misleading statements
were made on the affidavit in order to get the judge (in this case U.S.
Magistrate Morton Sitver) to sign the search warrant affidavit. Stewart
asserts that the ATF misled the judge in the affidavit, but failed to convince
the judge of his arguments. There will be no Franks hearing.
The defense was given a few more days to
provide the judge another brief concerning the details of this case, for
consideration before the next hearing. Should you wish more details than that,
here you go...
Bob Stewart's attorney is now Mark
Victor. In today's hearing, Mr. Victor said,
"The ATF made false or misleading
statements in the affidavit and therefore did not have probable cause to
conduct the search."
He also said the following in these exact
words:
"The ATF had no legal standing to say
the firearm was 'readily convertible'."
Mr. Victor was asking for a Franks hearing to
prove his assertion -- that ATF misled the judge in the affidavit -- through
calling ATF agents to the witness stand. The items in quotation marks below are
Mr. Victor's words. The rest are either taken from my notes, paraphrased, or are
my thoughts after having gone over my notes.
- "The ATF failed to mention some of
the specialized equipment required to convert Mr. Stewart's kit" to
a full-functioning weapon, also "leaving out some tools while
claiming the Maadi-Griffin is 'readily convertible'." This seems
relevant; a tig weld is not something just anybody can do, and most people
do not have a drill press, either. In fact, we are still waiting, over a
month later, for the completion of the Maadi-Griffin kit we raffled to raise
operating funds. If this kit is so "readily converted," why is our
winner still patiently waiting, a month later, to receive his prize?
- The ATF did not provide their own clear
definition of what "readily converted" means to them. According to
Mr. Victor, "the standard itself is vague, so ATF didn't have fair
probable cause." Since they were basing their case against Mr.
Stewart on their interpretation of that term, it seems reasonable that they
would have made it clear to the judge how they were defining the term.
(NOTE: During this section of the hearing, Judge Silver actually
acknowledged that there was an issue of Constitutionality on the table,
though not about the Second Amendment. She was referring to probable cause.
It was a glimmer of light that lasted for two minutes, right up until she
said there was no reason for a Franks hearing even though it was plain as
day to gunowners present that a Franks hearing is exactly what is needed.)
- "The ATF never completed the
conversion of the kit into a gun. Why didn't they finish the kit and fire a
live round?" They converted it enough to shoot a blank round.
(Exploding a primer is like a firecracker. Firing a .50 caliber round is a
bit more intense. It's fair to say that the ATF would not have fired a live
round through their partially converted kit. Therefore, if they didn't even
complete the conversion, why were they calling it a gun?)
- "The actual time it took ATF to
assemble" the one kit their undercover agent purchased from Mr.
Stewart "was left out of the affidavit. Why?" Considering
the fact that they only partially converted the kit, and considering the
fact that the length of time for conversion was a major justification for
their raid and subsequent incarceration of Mr. Stewart, expecting their time
period of conversion to be offered to the judge as a written record
shouldn't be expecting too much.
- Mr. Victor also brought up the issue of fair
warning, saying that the ATF gave Mr. Stewart "no notice"
that he was in violation of any laws. To quote Mr. Victor, "Why
would Mr. Stewart hold himself out in the national community with full page
ads in Shotgun News if he thought he was violating federal laws?"
That is not only a fair question, it points to why many people are outraged
by the ATF's actions in this case: it could have been handled with a phone
call and a friendly visit, guns holstered.
The ATF's attorney is a fellow by the name of
Welty. Mr. Welty gave us the quote of the day:
"The defense is not entitled to a Franks
hearing. It sounds like a fishing expedition."
ATF is notorious for their fishing expeditions,
so I find it ironic (and maddening) to have them suggest such a thing. Though I
do not have the exact numbers on arrest-to-prosecution ratios for the ATF's
actions in the last 8 years, their prosecution rate is as low as it is because they
fish.
| If it's an undercover
federal agent doing the talking, their speculation counts as your
warning? |
In addressing the fair warning issue, Mr. Welty
said ATF "gave fair warning to the nature of presumed conduct."
Oddly, the "fair warning" he alleges was said, by him, to have come
from the undercover federal agent who dealt with Mr. Stewart during the
acquisition of one of his kits. If we are to accept such a thing, this means
that we must assume that every speculation (as to the legality of any gun laws)
we receive from anyone off the streets should be taken into careful
consideration -- because if it's an undercover federal agent doing the talking,
their speculation counts as your warning.
There were about 30 people attending the
hearing this afternoon. Why there weren't 500, I do not know. Some people came
up from Tucson, Bo Gritz flew in from another state, as did radio talk show host
Pam Stegner (Radio Free liberty, 1140am, Liberty, Missouri).
Additional Things to Consider
Bob Stewart is a really great guy. He's never
hurt anyone (other than maybe a broken heart or two in his younger days), never
criminally misused a gun, is a father of three young boys with a lovely wife --
a man of God, and even a preacher. When I meet with him, I hug him. He's bright,
sweet, gentle and even cheery. The kind of guy you'd like to have as a neighbor.
His passion for freedom and knowledge of some of what stands in our way are both
truly brilliant.
When he was arrested and locked up in the
county jail after the ATF confiscated hundreds of thousands of dollars worth of
his property, at his first hearing, the ATF motioned to keep him in lockup -- to
deny him access to his young boys, his wife... to making money to
sustain his family. That was over 6 months ago, and no trial date has even been
set yet. And they are seeking to put him in prison for a very long
time -- when all it would have taken was a simple telephone call.
I don't know how everyone else felt when they
walked out of the courtroom. I felt empty. That's all I can say. I
guess when you get to know a guy like Bob and watch what is being done to him in
a country we still call America, it touches a bit deeper...
