Wednesday, August 24, 2005
Panel Upholds Inmate’s Conviction for Soliciting Murder of Judge
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Ninth U.S. Circuit Court of Appeals yesterday upheld an Arizona inmate’s conviction for plotting to murder U.S. District Judge Roslyn O. Silver.
In an opinion by Judge Carlos Bea, the panel rejected Robert Stewart Jr.’s contention that he did not really intend to kill the judge and that statements made to a fellow inmate who turned informant, including that he wanted to “string the [judge] up and cut her throat,” were constitutionally protected opinion.
The court did, however, overturn Stewart’s conviction on one charge in the five-count indictment—lying to an FBI agent—and also ordered that the 24-year sentence be reconsidered in light of the intervening Supreme Court ruling that the Sentencing Guidelines are advisory rather than mandatory.
Stewart was tried and sentenced by U.S. District Judge Howard McKibben of Nevada, who was specially designated to hear the case.
Stewart, 65, has been described as a political extremist with ties to the “militia” and “sovereign citizen” movements. Silver tried him on weapons charges resulting from a June 2000 raid on his home in which various firearms and kits to build .50 caliber weapons were found.
Several of the weapons were machine guns, which cannot be possessed under federal law. Stewart could not legally possess any firearm at the time, because he was convicted on weapons charges in Utah in 1994.
Silver testified before McKibben that Stewart’s demeanor turned extremely angry at the trial after she rejected a line of defense based on his claim that the federal government lacks the authority to enforce gun laws, a view often espoused by the sovereignty movement.
The prosecution’s key witness, fellow inmate August Weiss, contacted the FBI after Stewart allegedly offered him $100,000 plus guns to kill the judge. Weiss agreed to wear a wire and recorded a conversation in which the two men ostensibly agreed that the informant’s brother-in-law—a fictitious person—would kill the judge and would receive the guns from Stewart’s sister.
Stewart gave a description of the judge and where in the Phoenix federal courthouse she could be located. The cash was supposedly going to come from the Aryan Brotherhood.
An FBI agent testified to two conversations with Stewart, who denied having threatened the judge and said he would not do so because it might endanger his appeal of the weapons conviction. At the end of the second conversation, the agent said he played the tape of the defendant’s conversation with Weiss.
Stewart, the agent testified, did not respond when he heard the tape.
The defendant, formerly a history teacher, said at sentencing that the case against him was a setup and cited Waco and Ruby Ridge as examples of how the FBI falsifies evidence.
Bea, writing for the Ninth Circuit, said the government presented more than sufficient evidence to prove that Stewart made a “true threat” and actually solicited the murder of the judge.
The jury, Bea noted, heard the tape and was able “to evaluate the tone of Stewart’s voice, whether he was serious or joking, and the emphasis of the threats.”
McKibben did err, however, in allowing the jury to find the defendant guilty of two counts of lying to the FBI by denying that he threatened the judge. Since both statements were made to the same agent, and contained the same substance, they were legally a single crime, requiring reversal on one of the two counts, Bea said.
Judge Diarmuid F. O’Scannlain and visiting Senior Judge Robert E. Cowen of the Third Circuit concurred in the opinion.
The case is United States v. Stewart, 03-10662.
Copyright 2005, Metropolitan News Company