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News & Editorials

Bob Stewart's Trial: Empty Building, Empty Justice

by Rick DeStephens

June 3, 2002 -- 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 request.

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 others."

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 respond.

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 10 days.

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."

Rick DeStephens
Phoenix, Arizona

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