At a bail hearing, what is at issue is whether or not the defendents can show that they meet the requirements for being released from custody prior to trial:
* They must show that they will not flee and will appear at the trial;
* They must not pose any risk to the safety of the community.
Unlike a trial, a bail hearing does not test the facts of the matter, but only determines if the defendents will neither flee nor threaten the community. This risk of flight or danger -- if the court finds it credible, but not necessarily proven beyond a reasonable doubt -- is sufficient cause to deny bail and keep the defendents in custody.
The following transcript was scanned from a twelve-page copy in the federal court files. The transcript is not complete and only contains the statements of Ms. Susan Dornman, Assistant U.S. Attorney. The arguments of the defense attorneys were not transcribed and made available. The entire proceedings were recorded, but only the initial portion of the hearing was transcribed. If the rest of the recordings of the hearing are to become public, someone will have to provide the cost of transcription from the court stenographer's records.
UNITED STATES OF AMERICA, Plaintiff,
JOHN IRVIN PITNER, FREDERIC BENJAMIN FISHER, and
RICHARD-FRANK BURTON, Defendants.
Case No. 96-281M
Seattle, Washington August 1, 1996 1:30 p.m.
PARTIAL TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE DAVID E. WILSON
UNITED STATES DISTRICT MAGISTRATE JUDGE
For the Plaintiff:
Assistant U.S. Attorneys
3600 Seafirst Fifth Avenue Plaza
Seattle, Washington 98104
For the Defendants:
Joseph F. Roth
Official Court Reporter
600 U.S. Courthouse
Seattle, Washington 98104
Proceedings recorded by computer-aided stenography.
THE COURT: This is the case of United States versus John
Irvin Pitner, Richard F. Burton and Frederick B. Fisher. Will
counsel identify themselves, please.
MS. DOHRMANN: Good afternoon, Your Honor. Susan Dohrmann on behalf of the United States.
THE COURT: Ms. Dohrmann.
MR. LOBSENZ: Good afternoon, Your Honor. James Lobsenz on behalf of Mr. Pitner.
THE COURT: Mr. Lobsenz.
MR. SHARAGA: Your Honor, I'm Ken Sharaga, representing Mr. Richard Burton.
MR. PHILLIPS: Your Honor, Brian Phillips on behalf of and with Frederick Fisher.
THE COURT: Mr. Phillips. This case is set this afternoon for a detention hearing as to all three defendants. Prior to the Court today I received Pretrial Services reports as to each defendant. I would ask at this time if all counsel have received copies of the pertinent reports related to your
MR. LOBSENZ: I have, Your Honor.
MR. SHARAGA: I have, Your Honor.
MR. PHILLIPS: Yes, Your Honor.
THE COURT: Has the government received them also, Ms. Dohrmann?
MS. DOHRMANN: Yes, your Honor.
THE COURT: In addition to the pretrial report, I have received a memoranda and certain supporting documents from the defendant Pitner, his attorney, Mr. Lobsenz, including one filed just this afternoon, Mr. Lobsenz. I have had an opportunity to read not only the Pretrial Services report, but also the materials filed by Mr. Lobsenz. Is there anything else that's been filed on this issue by any party to this case?
MS. DOHRMANN: No, Your Honor.
THE COURT: All right. We'll take the defendants one at a time this afternoon, and we'll start with Mr. Pitner. I'll ask the government, first of all, if you have anything additional to submit on the question of detention in addition to the materials that are set out in the complaint, the materials that are set out in the Pretrial Services report?
MS. DOHRMANN: By way of proffer, yes, Your Honor.
THE COURT: All right.
MS. DOHRMANN: Your Honor, even though we are taking Mr. Pitner and the other defendants separately, much of what I will proffer to the Court this afternoon really applies to all of the defendants in light of the nature of their charge, the charges against them and their association with one another.
THE COURT: Would you like to make your remarks pertinent to all three defendants?
MS. DOHRMANN: I could do that, Your Honor, yes.
THE COURT: All right.
MS. DOHRMANN: Your Honor, we concur with the assessment and recommendation of the Pretrial Services office that there is no condition or combination of conditions in this case which would reasonably assure the appearance of any of the defendants and the safety of the community. And with respect to the safety of the community, we would include in that witnesses or other government personnel.
As the Court noted in United States versus Williams, which I cited to the Court the other day, and is found at 23 F.3d, page 1. That's a First Circuit case from 1994. A conspiracy by its very nature increases the chance that a planned crime will be committed beyond mere possibility.
For several months the defendants have engaged in secret meetings and training sessions, meetings where they planned for and discussed eventual armed conflict with the government of the united Nations.
They've planned for and made destructive devices, including pipe-bombs, for which there is absolutely no peaceful purpose, regardless of whether they are used or not. The only purpose for these devices is to destroy property or injure or kill people.
And I would proffer to the Court that we have learned from the FBI laboratory in Washington, D.C., that the four pipe-bombs presented by Mr. Mack -- I realize that we are not dealing with Mr. Mack today, but, nonetheless, this is applicable, I believe -- did in fact contain blasting powder, a black blasting powder.
And with respect to other specimens that have been submitted to the FBI, we have learned today -- I don't have full details yet -- but some of the contents of those additional pipe-bombs actually flashed, and my understanding of that is that they spark out, when handled by the laboratory personnel in Washington, D.C.
I would like to proffer to the Court the substance of certain conduct that occurred during various meetings of these individuals and others, of course. On June 30th of 1995 Mr. Fisher stated that the Washington state militia cells have a number of caches in the county and that those caches include ammunition, currency and first aid.
On July 11 of 1995 Mr. Pitner stated that he had cached supplies and ammunition, food, and suggested at a meeting where Mr. Fisher was present that others do so also. At that same meeting Mr. Fisher said that the first policeman to pull in his driveway is dead.
We know that Mr. Fisher maintains a number of weapons at his residence. It is still not fully clear to the government whether he's entitled to do so. We have seen one document that indicates that a certain restoration of his civil rights has been effected, but we also know that last August Mr. Fisher applied for and was denied a concealed weapons permit.
We know further with respect to these weapons that Mr. Fisher has represented that he's not entitled to have these, and I think the important point of that is that he believes he's in violation of the law, but nonetheless, goes forward and maintains these weapons.
On July 28th of 1995 Mr. Fisher discussed needing propane bottles for some type of bomb. We believe that the propane bottles that he was discussing at that juncture are consistent with those that were found during the execution of a search warrant this past weekend.
On August 15th of 1995, in the presence of Mr. Pitner and at some point his wife, Mr. Pitner's wife, Mr. Fisher talked again about getting more propane bottles. On August 16th of 1995 Mr. Pitner, Mr. Fisher and others trained with trip wire and engaged in some type of exercise involving sniper detection.
On August 22nd of 1995 Mr. Fisher called another person and told him to take a sidearm, ammunition and propane bottles to a militia meeting the next day, which was going to be held in Mr. Pitner's residence.
On that day, that next day, August 23rd, Mr. Pitner, Mr.Mack and others engaged in firearms practice, using posters of black-hooded agents labeled FBI agent, ATF and police. They practiced quick drawing and bayonet drills at that time.
And at that time, which we submit is particularly important with respect to Mr. Pitner and the issue of danger to the community, Mr. Pitner instructed the group how to construct a bomb using a propane cylinder filled with gun powder and using trip wire.
On October the 11th of l995 Mr. Fisher brought a manual to a militia meeting that dealt with the construction of booby traps; firearms, explosives using common ingredients. There was a discussion of the construction of a 10- to 12-inch pipe-bomb to be packed with gun powder and nails taped to the outside.
On September 9th of 1996 [sic] Mr. Pitner was in the possession of a fully automatic M-16 rifle. On June 18th of 1996, at a militia meeting, it was stated -- Mr. Pitner was not present at this meeting. In fact, Mr. Mack and Mr. Kuehnoel and Mr. Kirk were present, along with the undercover agent, as referred to in the affidavit -- that war would begin when the government began to arrest people.
With respect to Mr. Fisher, as the Court is aware he is a convicted felon. He has told the undercover agent that he couldn't have guns, but, as I have said, he had several in his homes. And he was denied a permit in August of 1995.
And, again, I wish to emphasize that the important point in that regard in terms of considering whether Mr. Fisher would comply with any conditions of release as authorized by the Court, is he believes he's in violation of the law, but, nonetheless, proceeds and maintains several weapons at his residence .
We know from the search that he has propane bottles in his house and we know from the investigation that on several occasions he has referred to them as implements or ingredients or components, if you will, to be used in the construction of destructive devices.
And finally, with respect to Mr. Fisher and perhaps others in this case, we believe there may well be a significant flight issue. Mr. Fisher maintains a great deal of food and money and other supplies and water in vacuum packs at his residence,which were found during the execution of the search warrant,and it is clear that he has made preparations to leave. And
this may well be the moment that he would leave.
With respect to Mr. Burton, we have learned that Mr. Burton telephoned home after his arrest and told a family member to get rid of two bags of ammonia nitrate fertilizer and to clean out the computer because there was information on that computer which would incriminate him with respect to these pending charges.
That fertilizer, which we believe to be ammonium nitrate,was driven by a family member approximately three miles from the home and put in a dumpster, which has been recovered. When Mr. Burton brought the fertilizer to the home, he told the family member that it was to be kept outside and it should be kept outside and it should be left alone.
Mr. Burton also told this same family member that it was the same fertilizer used in the Oklahoma City bombing. And Mr. Burton also told the same family member at the same time to collect books, which the family member believed meant books regarding his activities which would in fact incriminate him. There was a loaded shotgun in the closet and several additional shotguns or rifles under the bed.
Additionally, chemicals were found at the Burton residence, three of which were consistent with those found at the Bellingham location where the arrests occurred. That location being where the bomb training school, if you will, was under way prior to the arrest. Mr. Burton's car was the one that was used to transport these explosives and ingredients to
Bellingham on July 27th.
We know that there's a danger with respect to some of these chemicals. We suspect there certainly is with respect to the ones that Mr. Burton had, because at the time of the search of the Kirk residence there were noxious fumes emitted from some of the chemicals that required the assistance of hazardous materials experts during the course of that search.
And, again, as I've indicated, the material and the pipe-bombs delivered to the undercover officer in this case by Mr. Burton and Mr. Kirk flashed at the FBI lab while being examined.
Finally, Your Honor, with respect to Mr. Pitner, he has stated -- during the course of this investigation we have learned that he has stated that they have an image to uphold, until someone fucks with them and then it's war.
He actually participated -- not actually participated, he actually did the training of persons in construction of an explosive device in August of 1995 and participated in a training session, as the complaint states, on February 27th of 1996.
At the time of his arrest guns were found in the home, one under the pillow, another secreted behind a closet wall near a water heater, and he has said that he has cached ammunition and supplies.
At the time of his arrest he told the FBI that that was all a lie, that he'd just said that he had all of this material cached in order that others would not do it. We view that as an extremely self-serving statement.
And also it's consistent with Mr. Pitner's dual presentation of himself, if you will. Mr. Pitner has appeared on television. Mr. Pitner has been interviewed by the news media in Bellingham and has always claimed that his motives are for peace and peaceful change, if there's to be any change. This is entirely inconsistent with the type of rhetoric and language and activity that has occurred when he is with his associates.
And, again, I would conclude, Your Honor, by saying that although on the surface it might appear that there is not a flight issue here because of some extensive ties that people have -- that the defendants have to the community, again there has been consistent talk of caching materials and supplies and where to bug out to if the moment comes of war, and it may well be that in the minds of the defendants that they are in that
situation right now, having been arrested by the federal government, by FBI agents.
And in conclusion, I would simply reiterate the theme in the Pretrial Services report and in the complaint and affidavit. These defendants have been engaged in extremely dangerous behavior for a period of time.
The events on the day of the arrest, not with Mr. Pitner obviously, but with Mr. Fisher and Mr. Burton, where they were actually prepared to make a device and where the undercover officer told them -- excuse me, was told that at the end of the training session they would in fact have a usable device, is danger at its most extreme.
All three of the defendants should be detained.
(Excerpt of proceedings concluded.)
There are several interesting points which can be drawn from this record. It should be remembered that the statements made by attorneys in a hearing must be based on some credible evidence, testimony or affidavit. The assertions of fact, while not subject to the test of proof by argument and cross-examination which takes place in a trial, must still be be based on more than rumor or hearsay.
* Because both conditions for granitng bail (appearance at the trial and the safety of the community) must be met, the denial of bail does not mean that both conditions have not been satisfied. It is sufficient that either a risk of flight or danger to the community be shown to exist. See Ms. Dorhman's statement regarding the assessment of the Pretrial Services office.
* The earliest statement regarding the alleged activities of the Washington State Militia appears to date from the first month that they were publishing a newsletter -- June 1995. From this statement, it can be inferred that the prosecution has information (possibly in the form of statements, depositions or affidavits from participants or informants) about the Washington State Militia which dates from their earliest activities as a formal group. Count I of the grand jury indictment states that the conspiracy to make and possess explosive devices began on or about June 28, 1995.
The informal militia activity certainly dates back to at least March 1994, when Ben Hinkle distributed an altered Militia of Montana flier at a Whatcom Coalition for Land Use Education (CLUE) meeting at the Rome Grange. According to John Pitner, he began his militia activities immediately following the April 1993 tragedy at Waco, Texas.
* The earliest alleged paramilitary training -- as opposed to just talk -- occurred in August, 1995. According to Ms. Dohrmann, this training included tripwire, detecting snipers, shooting, "quick drawing" and bayonette drills.
* Mr. Pitner is alleged to have possessed a full-auto weapon (machine gun) in September, 1995 -- which is illegal in Washington State, regardless of whether or not the proper federal taxes have been paid. The transcript reads "1996", which must either be a misstatement by the Assistant U.S. Attorney or an error in the transcript, since that date is still in the future. As of the date of this writing, no complaint has been filed against Mr. Pitner for this alleged violation of Federal and Washington law. The allegation presents something of a mystery, since there is no explanation of why this fact would be introduced in the bail hearing and not be part of the complaint or indictment.
* Mr. Pitner reportedly stated in July of 1995 that he had cached supplies, ammunition and food and that he suggested that other militia members do likewise. Yet at the time of his arrest, Pitner told the FBI that it was all a lie and that the cache did not exist. These type of statements could become a very great problem for Mr. Pitner's defense, since this sort of self-contradiction could seriously undermine his credibility as a witness. If he indeed did make both statements, he will have established that he does not always tell the truth, which could cause great problems for his defense.