MachineGunCase AR Morning News Judge OKs Fincher Arguments

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pokerkid
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MachineGunCase AR Morning News Judge OKs Fincher Arguments

Post#1 » Wed Jan 10, 2007 2:38 pm

The Morning News: News : Judge OKs Fincher ArgumentsHere's a thread about this case. hangman
http://www.sierratimes.com/cgi-bin/ikon ... 1&start=60

Help Judge OKs Fincher Arguments
Jury trial begins today in machine gun case
This article was published on Tuesday, January 9, 2007 8:18 PM CST in News
By Ron Wood
The Morning News
FAYETTEVILLE -- A man charged with possessing illegal machine guns will be able to argue at trial federal gun laws are unconstitutional, a judge ruled Tuesday. But, the judge is not going to allow the trial to digress into a freewheeling, uncontrolled debate of the Second Amendment in front of the jury.

Hollis Wayne Fincher, 60, a lieutenant commander of the Militia of Washington County, is charged in federal court with possessing three homemade, unregistered machine guns and an unregistered sawed-off shotgun.

Jury selection is set to begin this morning with opening statements to follow later in the day.

The decision by U.S. District Judge Jimm Larry Hendren will allow Fincher to present evidence to support the defense view his possession of the guns should not be a crime because they were for use by the militia. Fincher doesn't deny he had the guns.

The government had asked Hendren to bar Fincher and his attorney, Oscar Stilley, from arguing issues of law to the jury as they present their defense.

The government argued it is the court's role, not the jury's, to decide matters of law and Fincher's arguments should not be made in the presence of the jury. Prosecutors argued the jury should only hear and decide the facts of the case, not what law should apply.

Stilley wants wide leeway in order to develop a full record in case of an appeal.

The U.S. Supreme Court has not addressed a Second Amendment issue since 1943, Stilley said. That ruling said the government could place limits on the possession of military weapons by individuals or groups but cannot prohibit the possession or use of any weapon that has any reasonable relationship to the "preservation or efficiency of a well-regulated militia."

Hendren found for the government on two other issues.

The judge ruled prosecutors won't have to prove Fincher had criminal intent to obtain a conviction, only that he possessed the guns illegally.

And Fincher won't be able to argue whether the Commerce Clause to the U.S. Constitution as it relates to the guns applies to this case. The Commerce Clause gives the federal government power to regulate commerce with foreign countries and among the states. Hendren said the government doesn't have to prove the guns were involved in interstate commerce in order for Congress to be able to regulate them.

Fincher was arrested Nov. 8 by federal agents. He remains in federal custody in lieu of $250,000 bond.

According to police, two of the .308-caliber machine guns, homemade versions of the Browning model 1919, allegedly had Fincher's name inscribed on them and a reference to the constitutional right of citizens to bear arms. The other firearms were a 9 mm STEN design submachine gun and a sawed-off shotgun.

It's been illegal for civilians to own machine guns without special permission from the U.S. Treasury Department since 1934.

Federal law permits the public to own machine guns manufactured and registered before 1986 under certain conditions. Guns made or imported after that date can be bought by law enforcement agencies but not the public.

Each new weapon is subject to a manufacturing tax and must be registered with the bureau's National Firearms Registry.

Reader Comments (2)The following comments are provided by readers and are the sole responsiblity of their authors. The Morning News does not review comments before their publication, nor do we guarantee their accuracy. By publishing a comment here you agree to abide by our comment policy. If you see a comment that violates our policy, please notify the web editor.

Truth wrote on January 10, 2007 7:15 AM:
"I find this very interesting! United States v. Cruikshank, 92 U.S. 542 (1876). This was the first case in which the Supreme Court had the opportunity to interpret the Second Amendment. The Court recognized that the right of the people to keep and bear arms was a right which existed prior to the Constitution when it stated that such a right "is not a right granted by the Constitution . . . [n]either is it in any manner dependent upon that instrument for its existence." The indictment in Cruikshank charged, inter alia, a conspiracy by Klansmen to prevent blacks from exercising their civil rights, including the bearing of arms for lawful purposes. The Court held, however, that because the right to keep and bear arms existed independent of the Constitution, and the Second Amendment guaranteed only that the right shall not be infringed by Congress, the federal government had no power to punish a violation of the right by a private individual; rather, citizens had "to look for their protection against any violation by their fellow-citizens" of their right to keep and bear arms to the police power of the state. "

Free Wayne wrote on January 10, 2007 7:51 AM:
"What is wrong with this judge and our government in general. There are criminals roaming our streets killing people and they had to mobilize 30 ATF agents and put one undercover for a year to bust poor old Wayne for 3 guns that he was open about owning. All of this is done WITH OUR TAXPAYERS MONEY. What a waste of money and time. The ATF, the judge and the prosecuters NEED TO GET A REAL LIFE."

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hangman
Acolyte
Posts: 1087

Post#2 » Thu Jan 11, 2007 6:26 pm

Paul, I've been all over this like a duck on a Junebug. This man could have been talked to by the Sheriff at any time without the Gestapo style assault on his home. But, I guess they wanted to intimidate as much as possible. I've posted a bunch at the Saloon:

http://www.sierratimes.com/cgi-bin/ikon ... 1&start=60

come on over and take a look at these 7 pages of outrage. Kirk

pokerkid
Site Admin
Posts: 7781

its almost time

Post#3 » Sat Jan 13, 2007 12:54 pm

For Unintended Consequences type of action to befall these criminal FEDstitutes.
pk

hangman
Acolyte
Posts: 1087

Post#4 » Thu Jul 12, 2007 10:05 pm

I'm going to post a few updates I posted at the 30.06. hangman

Sad news:
Sorry for the delay…computer problems all day.

Quickly before another crash.



We understand that Wayne has been sentenced to 6+ years in prison and has 10 days to appeal. We have not heard from the family so do not know any details.

It is our opinion that this edict came straight from DC and could have several purposes, the least of which is to shut down & silence Militias and 2nd Amendment patriots.



We also understand the Ark. Madison County Militia shut down recently due to this persecution…..do not know status of Fincher’s Washington County militia at this time.



Sorry, but that is all we know, but hopefully someone who knows more will report soon.



Bad news indeed for us all, most of all Hollis Wayne Fincher who hoped to reinstate part of our Constitution vs. federal mandates.



~B & J
*****
This looks futile. If the judge was willing to deny Mr. Fincher his right to testify, why would antone think he'd entertain this motion?

http://www.nwaonline.net/articles/2007/ ... incher.txt

Militia leader seeks release pending appeal
Washington County man to challenge conviction, sentence

FAYETTEVILLE -- A Washington County man convicted of having illegal machine guns wants out of jail while his conviction and sentencing are on appeal.

Hollis Wayne Fincher, commander of the Militia of Washington County, was arrested after federal agents raided his home in the Black Oak community south of Fayetteville. The agents found a number of machine guns there and at the nearby militia headquarters.

Fincher, 61, was convicted in U.S. District Court in January on a count of possessing a machine gun and possessing an unregistered firearm. He has remained in the Sebastian County Jail since his arrest.

U.S. District Judge Jimm Hendren sentenced Fincher on Friday, opting to impose the minimum recommended sentence according to federal sentencing guidelines, which set his imprisonment at between 78 and 97 months. Hendren also put Fincher on two years' probation once he leaves prison and required him to pay the government $1,000.

Fincher's attorney, Shannon Blatt, filed motions Monday asking that Fincher be allowed to post bail and remain free pending the conclusion of his appeal or at least to allow him out until he is scheduled to report to a federal prison. The motions contend Fincher's not a flight risk or a danger to the public and that the appeals, if successful, would substantially lower Fincher's prison time or reverse his conviction entirely.

Specifically, Fincher thinks he was improperly given more prison time based on the number of guns seized by police that were "attributable" to him. The government said there were 45 while Fincher contends the number should have been much lower. Fincher also challenges whether the guns were "illegally possessed" or not.

A second issue planned on appeal is whether Fincher should have been given more prison time for being an organizer or leader of a criminal activity that involved more than five people. Fincher claims that was never proven at trial.

Fincher also intends to raise Second Amendment issues his attorney said could go to the heart of his conviction and require its reversal.

The government is not opposed to letting Fincher out of jail until he is ordered to report to federal prison but opposes his staying out while the case is on appeal.

Assistant U.S. Attorney Wendy Johnson's motion, also filed Monday, said the government doesn't think there are any substantial questions of law or fact that would result in reversal or an order for a new trial on appeal.

Fincher had two .308-caliber machine guns, homemade versions of the Browning model 1919. The other firearms were 9mm STEN design submachine guns and the shotgun.

Fincher never denied he had the guns.

The defense tried to make a case of the Constitution versus gun laws; the government kept the case more simple, arguing Fincher had the machine guns and they weren't registered as required by federal law.

Fincher didn't testify before the jury. The judge ruled after hearing testimony with the jury out of the room that Fincher's proposed testimony was inadmissible because it was aimed at challenging the legality of federal gun laws, not whether Fincher had illegal, unregistered firearms in his possession.

*****
Here's where I found the story and there are a few interesting comments there. hangman

http://keepandbeararms.com/news/nl/re.. ... F26%2F2007

*****
A little respite. It looks like a get out of jail and grab your ankles kind of arrangement. hangman

http://www.nwaonline.net/articles/2007/ ... incher.txt


Fincher Released From Jail
Hearing set on indigency
This article was published on Thursday, June 28, 2007 5:56 PM CDT in News
By Ron Wood
THE MORNING NEWS

FAYETTEVILLE -- Hollis Wayne Fincher got out of jail this week but also learned he may be on the hook for attorney fees and more fines.

Fincher, who was convicted earlier this year of possessing illegal firearms, will be freed on bond until he is to report to federal prison July 24.

But, Fincher's been ordered to prove at a Tuesday hearing that he's really indigent.

Fincher, commander of the Militia of Washington County, was arrested after federal agents raided his home in the Black Oak community south of Fayetteville. The agents found a number of machine guns there and at the nearby militia headquarters.

Fincher, 61, was convicted in U.S. District Court in January on a count of possessing a machine gun and an unregistered firearm. He has remained in the Sebastian County Jail since his arrest.

U.S. District Judge Jimm Hendren sentenced Fincher on Friday, opting to impose the minimum recommended sentence according to federal sentencing guidelines, which set his imprisonment at between 78 and 97 months. Hendren also put Fincher on two years' probation once he leaves prison and required him to pay the government $1,000.

Fincher's attorney, Shannon Blatt, filed motions asking that Fincher be allowed to post bail and remain free pending the conclusion of his appeal or at least to allow him out until he is scheduled to report to a federal prison.

Hendren granted the latter request, saying Fincher can be free on $100,000 bond, electronic monitoring and home detention until he reports to prison. Other conditions include having no firearms or explosive devices, no participation in militia meetings and no contact with convicted felons.

Fincher also filed his formal notice of appeal in the case.

Next week's hearing is about whether Fincher is indigent or not. He's had court-appointed attorneys and, according to the judge, the fine imposed on Fincher was much lower than what was computed, based on federal sentencing guidelines, because Fincher led the court to believe he had no significant assets.

However, Hendren said it recently came to his attention in a presentencing report that Fincher transferred 120 acres and a home to his two daughters by quit claim deed on Jan. 29, while his wife continued to live on the property. Fincher also reserved life estates in the property to him and his wife, according to court documents. This means the couple can live on the property for the rest of their lives.

"This series of events calls into question Fincher's financial affidavit and his eligibility for services under the plan," according to Hendren. "If, at the time Fincher executed the financial affidavit, the property had significant value, the court believes it is unlikely that Fincher would have qualified for appointed counsel. Nor does the mere fact that he has divested himself of the fee in the property make him indigent from that point forward."

If Hendren finds Fincher was financially able to retain his own attorney from the beginning, he could terminate the appointment of counsel or order Fincher to pay for his legal representation. He could also increase the fines against Fincher.

Fincher had two .308-caliber machine guns, homemade versions of the Browning model 1919. The other firearms were 9mm STEN design submachine guns and a shotgun.

Fincher never denied he had the guns.

The defense tried to make a case of the Constitution versus gun laws; the government kept the case simpler, arguing Fincher had the machine guns and they weren't registered as required by federal law.

Fincher didn't testify before the jury. The judge ruled after hearing testimony with the jury out of the room that Fincher's proposed testimony was inadmissible because it was aimed at challenging the legality of federal gun laws, not whether Fincher had illegal, unregistered firearms in his possession.

Reader Comments (No comments posted.)

*****
Here's part of an article by one of the Dem-Gaz editorialists that I actually look forward to reading. hangman

Sentence was too harsh
By Mike Masterson

Tuesday, July 10, 2007

LITTLE ROCK — It’s still difficult to believe U.S. District Judge Jimm L. Hendren sentenced 61-year-old Hollis Wayne Fincher of Fayetteville to 6 1/2 years behind bars with an additional two years of supervision rather than a fine and probation.

Fincher, the lieutenant commander of the Militia of Washington County, was arrested for having two unregistered machine guns that he had fashioned and a sawed-off shotgun, all of which he previously had notified state and local officials about. He’d even openly displayed the machine gun in a newspaper feature story.

The man had no criminal record. In fact, he sprang from a salt-of-the-earth family that stretched back generations in Washington County.

A scholar of the Constitution, Fincher wasn’t allowed to use the Second Amendment in his defense at trial. He sincerely believed that his constitutional right to bear arms allowed him to build and own unregistered firearms as a member of an organized militia. Since he’d never made a secret of keeping the weapons at the militia headquarters located on his family property, his only refuge was the Constitution.

My understanding is that Fincher is not in good health. This could mean that several years behind bars could be tantamount to a death sentence. Personally, I think a suspended prison sentence and a fine would have sent a plenty harsh message from the U.S. government to its citizens.

This non-violent man, whom I’ve never met, is at least as deserving of a presidential commutation as Scooter Libby.

*****
http://waronguns.blogspot.com/

Wednesday, July 11, 2007
Fincher Out of Jail

DAD IS OUT JAIL FOR AT LEAST 4 WEEKS. HE IS OUT ON SELF REPORT. NOT SURE ABOUT AN APPEAL BOND. KEEP PRAYING. THERE ARE STIPULATIONS TO HIS RELEASE, HE CAN NOT GO ANY WHERE EXCEPT A FEW PLACES, NO MILITIA MEETINGS, NO FIREARMS, NO FELONS CAN COME AROUND HIM OR ASSOCIATE WITH HIM, HE MUST CHECK IN WITH HIS PROBATION OFFICER ONCE A WEEK. SURE THERE ARE MORE STIPULATIONS BUT CAN NOT THINK OF THEM AT THIS MOMENT. I WANT TO THANK EACH AND EVERYONE WHO HAS CONTRIBUTED TO HIS DEFENSE. THERE IS MORE TO COME AT SOME POINT. THANKS SO MUCH. AS ALWAYS GOD BLESS AND THANK YOU ALL. CONNIE FIELDS AND FAMILY

I found this email waiting for me when I finally got hooked back up to the Internet. Thing is, the message is two weeks old.

In a related development, it looks like the courts won't be satisfied until they steal the man's land. That news is a week old.

My opinion is that both of these developments merited timely mentions on gun rights blogs.

[More about Wayne Fincher from WarOnGuns]

hangman
Acolyte
Posts: 1087

Post#5 » Wed Jul 25, 2007 7:49 pm

This had to be hard on his family. God, I hate those evil POSs. They needed to make an example of someone. hangman

What happens to patriots standing up for our 2nd amendment….we are indeed living in a police state….this man never harmed a soul in his life, but illegals run rampant….but there is No Conspiracy

, right??

And pigs fly.

Please know that our thoughts are with you tonight & always….we did all we knew how to keep this injustice from happening. Do keep us posted and give us all an address where we can communicate and send him whatever he is allowed to have.

It is indeed a tragic night for all true Americans.

~B & J



To All,

Just to let you know that we got dad to prison on time. I never knew how hard something like this could be. We left at 3:00 a.m. this morning and we told stories, took pictures, eat breakfast and had a good time. We went for lunch and it started getting harder because you knew what was coming next. We cried all the way to the prison. It is not right to take a man like my dad to prison. You cannot imagine how we felt at that moment when we had to turn him over and know that he couldn't come back home with us. We all hugged him several times then watched as they took him away. He kept waving at us till they shut they door. He his in the Minimium Security at Forrest City, Arkansas which is very good. It may be a week or so before we hear from him. Will let you know as soon as we do. Please remember him and us in your prayers. Thanks for all the prayers and all the help everyone has giving. Thank you from the family of Hollis Wayne Fincher

hangman
Acolyte
Posts: 1087

Post#6 » Sat Jul 28, 2007 5:35 pm

It seems very strange that so many sheeple think Wayne is a nut because he exercised his rights. The comments at that site are overwhelmingly critical of him for having guns. Statist little assholes. And read the judges' quote. What a two-faced asshole he is. hangman

http://waronguns.blogspot.com/


Fincher Ordered To Pay For His Attorneys

A federal judge ruled Friday that Hollis Wayne Fincher misrepresented his financial condition and will have to pay for his court-appointed attorneys.

Nothing like kicking a man while he's down, eh, Jimm Larry? I understand in communist China, they make families pay for the bullets used to execute prisoners.

There's more to this than meets the eye, and I'll get into it later pending a review with some of the affected parties. For now, I'd just like to address the judge's libel that Wayne is not honest. For someone who wouldn't even allow "the supreme law of the land" to be acknowledged in his courtroom, that takes a lot of damn gall.


*****
hangman here: here's the linked post.

http://www.nwaonline.net/articles/2007/ ... incher.txt

Fincher Ordered To Pay For His Attorneys
Judge says militia leader misled the court about finances


Email this story Print this story Comment on this story FAYETTEVILLE -- A federal judge ruled Friday that Hollis Wayne Fincher misrepresented his financial condition and will have to pay for his court-appointed attorneys.

U.S. District Judge Jimm Larry Hendren also said he'll ask the 8th U.S. Circuit Court of Appeals to send the case back to him so he can resentence the militia leader based on his actual assets.

"The system demands honesty from every participant and it has not had that from Fincher with regard to his financial situation," according to U.S. District Judge Jimm Hendren.

Fincher, commander of the Militia of Washington County, was granted a court-appointed attorney soon after federal agents raided his home and the militia headquarters in November and found a number of machine guns. Fincher was allowed a court-appointed attorney because he appeared unable to pay for legal counsel.

Fincher was sentenced June 22 to six years in federal prison. He is also required to pay the government a $1,000 fine. The prison sentence fell within the minimum recommended guidelines for Fincher's offense, but the judge opted to depart significantly downward from the recommended fine because Fincher appeared at the time unable to pay more.

But, Hendren discovered in a presentencing report after Fincher's conviction Fincher had transferred the family's 120-acre ancestral home to his two daughters two weeks after his conviction. Fincher's wife continued to live on the property and Fincher also reserved life estates in the property to him and his wife in the document.
An appraisal of the property, ordered by the judge, found it to be worth $455,000.

Hendren found Fincher transferred the property in an effort to appear indigent so he could avoid paying fines and to get a free lawyer.

Friday, Hendren ordered Fincher to pay $8,357 for the two attorneys the court appointed him. Hendren is sending the information to the 8th Circuit so judges there can determine whether Fincher can have an appointed lawyer for his appeal.

Hendren also ruled Fincher will have to pay for transcripts used in his appeal.

Fincher was free on $100,000 bond, electronic monitoring and home detention but has since reported to prison.

Fincher had two .308-caliber machine guns, homemade versions of the Browning model 1919. The other firearms were 9mm STEN design submachine guns and a shotgun. Fincher never denied he had the guns.

The defense tried to make a case of the Constitution versus gun laws; the government kept the case simpler, arguing Fincher had the machine guns and they weren't registered as required by federal law.

Fincher didn't testify before the jury.

The judge ruled after hearing testimony with the jury out of the room Fincher's proposed testimony was inadmissible because it was aimed at challenging the legality of federal gun laws, not whether Fincher had illegal, unregistered firearms in his possession.

Reader Comments:
Hose B wrote on Jul 28, 2007 11:01 AM:

" So they are saying that this darling of the wingnut movement is a liar? Oh gee, what a surprise! "

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