Stewart's Trial: Empty Building, Empty Justice
by Rick DeStephens
June 3, 2002
KeepAndBearArms.com -- I drove up to
the massive cavern known as the Sandra Day O'Connor Federal Courthouse. The
outside was as inviting as a Khrushchev-era Soviet housing project in
Minsk. The inside had all the charm of an aircraft hangar with out the
benefit of the cool planes. I stepped into the building and moved up to the
security station which sported a sign requesting "Government Issued
Photo Identification." The federal guard looked at my drivers license
perhaps long enough to be aware that it was an Arizona document but I doubt
if he could have compared the photo or read any of the information.
As I passed through the magnetometer I
asked one of the security guards (all had east-coast accents for some
reason) why they needed drivers licenses for admittance. "Increased
security," one offered. I asked how that might increase security? There
were shrugs all around. Another offered that knowing the names of people
would make the court safer. After I mentioned that all of the 19 hijackers
who flew planes into the World Trade Center used valid government Ids with
their exact names, all I got were shrugs. The rest of the day would make
about as much sense.
Judge Roslyn O. Silver entered the
courtroom fashionably late. She was forced to share her courtroom with
approximately 20 Bob Stewart supporters. The room was about two-thirds full.
Other times saw the room packed with Stewart supporters but several delays
in sentencing made it difficult to attend on this day.
To make Judge Silver feel more comfortable,
there were also at least 10 federal marshal/security guards both inside and
outside the courtroom. I guess the thought of so many potentially armed
Senior Citizens spooked her. This was accented when Bob Stewart's attorney
requested that handcuffs be removed so that Bob could shuffle through
paperwork in response to the judge's questions. Roslyn refused the sensible
The first order of business was to consider
two motions for reduced sentence filed by Bob Stewart's attorney. The first
concerned an "Acceptance of Apology Adjustment." Succinctly, if
Bob Stewart admitted that he "knowingly violated the law and accept[s]
responsibility for [his] actions," his sentence could be reduced.
Bob was willing to apologize and accept
responsibility for his actions but he had difficulty understanding why he
had to alter his position taken during the trial in which he said he was
unaware of violating the law. The questioning and conferencing went on for
many, many minutes. The hang-up continued to hinge on the word
"knowingly." "Did you knowingly and unlawfully possess
machine guns and firearms?"
The judge repeated what she wanted several
times. But the last time she repeated it, she perhaps mistakenly or
absent-mindedly left off the word "knowingly." This might have
been Bob's chance, or maybe he would later have just have to sign a document
with the phrase "knowingly violated." I don't know. Be that at it
may, Bob said he was unable to agree to those terms.
How odd is it that someone who says that he
knowingly violated a law is given a lighter prison sentence than someone who
could not say that he did it knowingly. Bob Stewart's case aside, the person
who says he did it an knew it gets off light than someone who did it out of
ignorance. Justice? Or coercion to get a lighter sentence in exchange for
the judge feeling better about herself?
As a result, Bob was unable to take
advantage of reduced prison time on that basis. However, there was one last
chance to reduce Bob's prison time from a potential 96 months to some
significantly less term.
Next up was a motion for "Downward
Departure" which under "unusual circumstances" and "very
narrow" guidelines, which Judge Silver decided were valid for
consideration, Bob's sentence could be reduced.
The judge said she considered
"Offender Characteristics." Essentially, Judge Silver said she had
seen Bob over the last two years and had grown to know him through his
testimony and had shown her his insight into the issues addressed.
"Then again," she added, "when I have strained to tell you
the position you must take…bent over backward to grant continuances and
make positions on the law, you have, until now, defied it."
Judge Silver continued, "It is rare
that this court grants downward departure. But it is [unintelligible] in
circumstances." She then explained that downward departure was
supported in case law in several circuits and even the Supreme Court.
"I have spent a considerable amount of time considering unique
factors…that you have been a loving father and husband, but I must wonder
why you have exposed them to dangerous weapons. Letters from your friends
and family have been [glowing in support of you], and you have not engaged
in violence. You have served your community [selflessly] to help
Judge Silver, attempting to make it clear
to Bob that in this section of the hearing, things were going his way,
asked, "Do your really wish to say anything?" Bob responded that
he did not.
Judge Silver then declared, "I am
going to grant a downward departure…due to a confluence of factors [that]
warrant it. I am persuaded, at least today, that this will not happen again.
If you come back in this court, I will have to reconsider and I will give
you the maximum term for violation of supervised release."
At this point I almost got the inkling that
she was going to let him off with time served. Wishful thinking, and not
provided by in federal sentencing guidelines which work on a point system.
Judge Silver stated that there was a possible 87 to 108 month sentence for
the crime given a "criminal history at Category 3. She then reduced it
to "Level 22" which called for a range of 51 months to 63 months.
She again cited letters sent to her but mentioned that many letter she
received (all copies sent to Bob by her) had a negative connotation toward
her. She maintained that these letters had no effect on her decisions.
Bob's attorney then requested that the
judge impose the lower end of the sentence scale. Fred Batista, the
government attorney, then spoke in an effort to convince the judge to impose
the higher end of the sentence range. He said that Bob had "shown his
true colors by "accusing ATF of pointing a [9mm submachine] gun at his
seven year-old son during the raid. The "accusation" caused the
government to fly regional BATF head, Marvin Richardson, away from his
duties preparing for the Salt Lake Olympics.
The government attorney claims that the
child was never harmed.
Bob responded that his son was so
frightened at staring at the MP5 submachine gun that the son wet his pants
on the spot and has been undergoing counseling for nightmares. Batista also
took exception to Bob's accusation that evidence was planted and tampered
with by BATF as well as accusing U.S. Attorney General Janet Reno of
directing BATF to put him "out of business." Judge Silver had no
comments concerning any of the statements above. Given the stellar history
of the BATF, we can come to our own conclusions.
Finally, Judge Silver, passed sentence.
For "violations of US Title 18 Section
922 (G)(1), 924(A)(2), and 922(O)": 60 months in prison.
In addition: "$600 Special
Assessment" to be paid from his prison earnings, and a $20,000 fine.
And possible payment for investigational costs incurred by the government,
subject to submittal by the US Attorney. Judge Silver noted that Bob Stewart
owned nearly $500,000 in property and could afford to pay the fines. Bob
tried to tell the judge that his family is in bankruptcy but she did not
Judge Silver continued with other
sentencing issues: After serving his 60 months in prison, he would be
subject to Supervised Release for three years, mandatory drug testing is
suspended for that period. He must also submit to search of his person,
property and business during that time, including any financial information.
Bob will also be prohibited from entering into financial contracts without
approval of the parole officer. Bob is not to engage in sales of firearms or
accessories and no ownership of firearms. 500 hours of community service to
be completed within the time of his three-year supervised release. He is
also mandated to attend a "BATF gun laws and gun safety" course.
If Bob is to appeal, he must do so within
Lastly, Bob mentioned that BATF confiscated
$500,000 of property from his family that was not related to the case.
Recall that the BATF raided his home based on manufacturing rifle kits which
are not firearms under the law. Stewart did not stand trial for that, but
for other evidence found as a result of that search. Judge Silver said she
"would consider a motion for the return of the property."
The Court was adjourned. Bob was hustled
out of the courtroom without being able to say goodbye to his supporters.
Two women began crying as they objected to the sudden separation.
As I walked out of the courtroom I could
only think that I would rather have ten Bob Stewart families in my
neighborhood than just one of the Federal Marshals I saw patrolling in and
around the courtroom.
Bob, a man that any of us would be happy to
have as a father or grandfather, is going to take up space in a prison cell.
As a result, one rapist, bank robber or murderer will be released to make
space. I don't feel any safer, do you?
At least Bob was able to take up two years
of a servile US Attorney's time as well as occupy several BATF thugs so they
can't, as the Declaration of Independence says, "[send] hither swarms
of Officers to harass our people, and eat out their substance."
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