Posted on 01/12/2007 2:09:53 PM PST by Wasichu
Fincher Guilty In Machine Gun Case Friday, January 12, 2007 3:37 PM CST
It took a jury just under five hours to find Hollis Wayne Fincher guilty of owning illegal machine guns and a sawed-off shotgun.
Closing arguments in federal court in Fayetteville wrapped at mid-morning and the case went to the federal jury about 10:30 a.m. The jury returned its verdict about 3:20 p.m.
Anyone know how long till court records and transcript will be available?
Now, hopefully, this will go to the next level court on appeal.
Ping!
I heartily recommend John Ross' book, "Unintended Consequences".
The story has been updated and expanded...here is the new version online (same weblink):
[b]Fincher Guilty In Machine Gun Case
This article was published on Friday, January 12, 2007 3:37 PM CST in News By The Morning News[/b]
It took a jury just under five hours to find Hollis Wayne Fincher guilty of owning illegal machine guns and a sawed-off shotgun.
Closing arguments in federal court in Fayetteville wrapped at mid-morning and the case went to the federal jury about 10:30 a.m. The jury returned its verdict about 3:20 p.m.
According to police, Fincher had two .308-caliber machine guns, homemade versions of the Browning model 1919. The other firearms were 9 mm STEN design submachine guns and a sawed-off shotgun.
The defense tried to make the case an issue of the Constitution versus federal gun laws. The government tried to make the case as simple as possible for jurors — Fincher had the machine guns and they weren’t registered as required by federal law.
A major issue was whether the Militia of Washington County is a valid state militia for second amendment purposes. Judge Jimm Larry Hendren ruled it’s not.
Bump for later study.
How can someone in good concience vote to convict someone who wasn't allowed to voice his defense in court? I certainly would not.
I would love to hear the instructions the jury was given.
The following comment was posted on "The Morning News" website in regards to this story, view at http://www.nwaonline.net/articles/2007/01/12/news/011207fincherguilty.txt
Quote:
Thomas wrote on January 12, 2007 4:23 PM:
"Just got off the phone with the GOA and with Fincher's legal defense fund chief. I'm donating a STI Texican serial numbered Fincher 001 as a fund raiser. Details on the raffle and legalities of a national/international gun raffle are being determined as we speak. If you aren't able to receive a firearm through an FFL or have an FFL or an equivalent in your country of residence than just contribute to the appeal funs at: The Wayne Fincher Defense Fund” at 2225 North Mockingbird Lane, Fayetteville, AR 72703. Some of us shall not go gently into a world of chains and thieves. Should have things sorted by Monday or Tuesday at the latest. posting updates will be at http://amishtomsgunland.blogspot.com/"
Given that the defense was denied the opportunity to present their Constitutional defense, perhaps they felt a guilty verdict was a given, and was just waiting for it so they could start the procedural appeal based on that denial.
IOW, maybe this is unfolding according to their game plan.
Note...weblink to expanded story is actually:
http://www.nwaonline.net/articles/2007/01/12/news/011207fincherguilty.txt
After what happend to Michael New, I still think his plan unwise. I have scanned his "Silver Bullet Letter", but it does not matter how Constitutionally valid his claims are in today's courts.
How the in HELL does that square with innocent until proven guilty?
It's really getting close to time.
"A major issue was whether the Militia of Washington County is a valid state militia for second amendment purposes. Judge Jimm Larry Hendren ruled it’s not." The judge is likely correct that the Militia of Washington County is not a valid state militia. Valid state militias have officers appointed by the state governor. This guy was not an officer in the state militia. Also, if Fincher is over 45, he is not a member of the Militia of the United States under US Code TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311. That said, the right to keep and bear arms is a right of the people, not a right of the state. This is a bum rap, but you'd have to look pretty hard to get a judge who wasn't in on the conspiracy to disarm us.
I don't know this case but in any case...BLOAT
People don't need to be members of no steeinking militia to exercise an inalienable right.
How the in HELL does that square with innocent until proven guilty?
The judge didn't say the defendant couldn't testify. He said the defendant couldn't argue to the jury that the law was unconstitutional, because that is a question of law for the judge (and the appellate courts).
That (right or wrong) is how our system has operated since 1895, when the Supreme Court ruled that defendants could not argue legal issues (or jury nullification) to the jury.
He can still argue the constitutionality of the law on appeal, but that will be decided by the appellate court, not by a jury.
The issue has gone beyond "(right or wrong)" -- Such arguments completely ignore the defendants 5th & 6th amendment rights, --- in order to prevent jury nullification.
"-- At the time of the American Revolution, the jury was known to have the power to be the judge of both law and fact.
In a case involving the civil forfeiture of private property by the state of Georgia, first Supreme Court Justice John Jay, instructed jurors that the jury has "a right to determine the law as well as the fact in controversy."
(Georgia vs. Brailsford, 1794:4)
You can't appeal unless you lose, in most circumstances anyway. He lost, now he can appeal. We should support the effort.
It's also irrelevant to the case, the Right in question belongs to "the People" not to "The Militia". It says so right there in the Constitution.
But, evidently this court finds the Constitution unsuitable for use in court.
If you research history you will find that prior to the enabling act of 1934 it was proper to argue the constitutionality of a law to challenge the jurisdiction of a court. From about 1912 up till 1934 there was an orchestrated effort to eliminate the ability by the sheeple to assert their constitutional rights.
There. Fixed it for them.
It's BEEN time for a while now...
I think in such circumstances, I'd be kind of "less than coherent" as well.
in court is it proper to ask the judge for his definition of 'inalienable' before arguments... or 'shall not' or infringed...
just wondering...
teeman8r
This point is irrelevant. It's being tossed in by the papers as a subtle way of swaying the public that the 2nd Amend only coveres Govm't militias. In other words so the public believes the AMend reads, the right of the States to keep and bear arms, shall not be infringed.
"Why didn't the defense take more time building their case?"
The defense built their case before they notified the governor and all the LEO orgs involved that they made the guns. The SCOTUS makes the rules for the fed trial court and those rules don't allow for a defense that includes, "the law is unconstitutional". The judge didn't make that determination in this case. What he did was listen to the jist of the defense proposed, and determined it violated the fed trial court rules. The defense then rested it's case, because they intend and know the trial must, and will be held in the appeal courts. The argument that the conviction was based on unconstitutional law, must be brought up in a habeas corpus appeal after conviction. Any plan for appeal would be announced very shortly after, if not immediately after conviction and sentencing.
Quote: A major issue was whether the Militia of Washington County is a valid state militia for second amendment purposes. Judge Jimm Larry Hendren ruled it’s not.
Are any of us legally Militia? It seems to me that with this case precedence has been set against us and against the Constitutional description of the Militia.
According to this judge, unless you have a letter from your Governor stating that you are in the Militia, you are not. This directly contradicts the Constitution, but reinforces the argument that the "National Guard is the militia."
What if the defendant had sought to argue that the firearms he had produced were of a type suitable for military use and thus, per U.S. v. Miller, Constitutionally exempt from NFA'34?
Scouts Out! Cavalry Ho!
Which directly contradicts 10 USC 311, the Militia Act of 1903, which clearly differentiates between the organized militia (the National Guard and the Naval Militia) and the unorganized militia (everyone else 17-45). Another case of legislating from the bench. Patriots, are you ready?
Scouts Out! Cavalry Ho!
Not that it matters, the right belongs to the people, not the militia, but states have their definitions of the militia. While the federal definition only includes males, and female National Guardsmen, and only to 45, Texas has it up to , and includes men and women, it also includes legal residents not yet citizens who have declared their intentions to become citizens.
Alas, I just checked and Arkansas' Constitution's definition is the same as that in the US code, ie males 18-45.
No. Precidence can only be set when something is determined and a ruling is made. Nothing was determined in this case, except guilt. The judge was only following trial rules set by the SCOTUS previously.
" According to this judge, unless you have a letter from your Governor stating that you are in the Militia, you are not. This directly contradicts the Constitution, but reinforces the argument that the "National Guard is the militia."
The National guard is the State militia, unless a governor designates some ceremonial unit. Some States even have some ceremonnial units that are involved in some form of emergency response. The unorganized militia is anyone 18-45, or so.
There is no US Constitutional definition of the militia. There is in the US code, which dates from just after the second amendment was passed, and there is one in the Arkansas Constitution. They are essentially the same, all males 18-45. YMMV by state. In Texas it's ordinary law, not a constitutional provision, which define the militia as all legal residents of the state, men and women alike, 18-60. Even this old cat is part of the Texas militia. (I'm also carried on the Retired Reserve list of the US Air Force).
That still would be a matter of law, and under the "new rules" not a proper topic to present to the jury. They could have asked for a dismissal based on the law not being constitutional, based on Miller. From what I've read I can't tell if they did, or if they did if the Judge refused the motion.
Your post is all in italics, but I think I understand the question. Miller was ~'34? the Scotus since about that time has taken over fed court rulemaking and Constitutional issues can;t be brought up. Whether, or not he was officially a State militia member could though. Maybe at one time this org got a certificate (ceremonial) from a governor of AK, that said congrats xxx militia for a great job, or something. In order to be a regular State Militia, they'd need much more than that. Like orders from the Gov. The trial court must make the State Militia determinaiton.
The National Guard is only part of the state militia. Most states have one or two other components. One is an organized group usually called the State Guard, the other is the called variously the "Reserve Militia" or "Unorganized Militia". Texas has both. I don't know if Arkansas has a State Guard, but I'd guess they probably do.
In the years I've been in Texas the State Guard has gone from barely organized and rarely used to a well organized part of the State Defense forces, including both an Army and Air component. They help run the armories of the National Guard, especially when the Guard called into federal service. They provide disaster relief and serve other functions as well.
The Reserve Militia portion is males 18-45 in Arkansas, it's all legal residents 18-60, male and female, except a few defined public officials.
Of course they can, but not before the jury. Under those federal rules, the judge determines what the law is, including if it's a law at all, while the jury determines the facts of the case. That is, did the defendant violate the "law", not "what is the law, is it valid or not?".
Had Miller and Layton gone to trial, they would have been able to argue the suitability of a short-barreled shotgun before a jury. That the Supreme Court failed to take judicial notice that such an instrument was or was not suitable for military use meant that the issue had to be determined as a factual matter in trial court.
The government's end-run around this was rather clever, and a number of lower courts have gone along with it, citing the syllabus from Miller as opposed to the decision itself. The bottom line (literally) on Miller was that the case was remanded to trial court for further proceedings. Such proceedings would have included factual matters raised by the Supreme Court. The syllabus omits this little detail, however, and so do the courts that cite it.
No, because then the guns would be on trial and the Constitutional issues raised then, not the defendant. The defendant's also 60 and doesn't fit the statutory, unorganized militia age group. That part must be a determination made in habeas corpus. All the trial court could determine is, if the guns were indeed the kind referred to in the fed laws and if the defendant had them.
" Of course they can, but not before the jury.
The issues involved would have the effect of putting the law directly on trial. That can't be done in a trial court. The trial court must take the law and precident at face value.
And then only when the feds let the state borrow it. Various court cases have determined that a governor has no power over his state's National Guard, if the feds want to use it for something. All guardsmen, and I was one long ago and in far away land (called Oklahoma), are also dual hatted as members of the federal military reserve. Those officers that are to be appointed by the governor according to the Constitution are mostly, but not entirely, people commissioned into the federal military, or in most cases into the federal reserves (ie. ROTC grads, OTC/OCS graduates, or even Academy grads). Those few actually appointed by the states still have to be "federally recognized", which means that the feds could not recognize them, and thus have a veto over what is a power of the states as defined by the US Constitution.
So it's something of a legal fiction that the National Guard is even a part of the State Militia.
That's not true of the State Guard, which is a true militia (although most of the officers are still former federal military officers (but then again George Washington was once an officer in the British Royal Militia). But even the State Guard is not "The" State militia or "the Militia" it's only part of it.
Remember when the judge ordered Bobby Seale, the Black Panther, to be bound and gagged at his trial?
Ohio is another example...they obviously have their National Guard, but also have an Ohio Organized Militia (state-sanctioned) and UOMA (Unorganized Militia of Ohio.)
Fincher apparently was claiming to be part of the general, unorganized militia; however the state made their case on the fact that he wasn't part of the State Militia.
He may be 60, and officially too old to be part of the "militia" but a true patriot is militia until he dies of old age.
You gotta be a lawyer....
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