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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.

  1. "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?

  2. 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.)

  3. "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?)

  4. "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.

  5. 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...

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 QUOTES TO REMEMBER
To trust arms in the hands of the people at large has, in Europe, been believed...to be an experiment fraught only with danger. Here by a long trial it has been proved to be perfectly harmless...If the government be equitable; if it be reasonable in its exactions; if proper attention be paid to the education of children in knowledge and religion, few men will be disposed to use arms, unless for their amusement, and for the defence of themselves and their country. Timothy Dwight, Travels in New England and New York [London 1823]

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